He’d been in courtroom 121 many times, but he’d never seen it as crowded as it was today. Never even close. He made his way steadily across the carpeted floor and through the swinging wooden gate, and he went quickly up to the witness-box. After he was sworn, he turned to look at Fernandez. Some cops liked to play to the judge; others liked to eyeball the defense counsel or, when the media was there, to try to talk to the press gallery. Kennicott always kept direct eye contact with the person who was asking him the questions, and no one else.
“Officer Kennicott, you’ve been a member of the Toronto Police Force for three years now, is that correct?” Fernandez asked.
Kennicott had learned that, back in the 1980s, when the citywide police force was amalgamated, its name had been changed from Police Force to Police Service. Most of the older cops resented the new name. They were a force, not a service. And the older judges felt the same way.
Summers peered over his glasses at Fernandez and gave him a little smile.
“A bit more than that. On June twenty-first it will be four years since I joined,” Kennicott said, thinking, And five years since Michael’s murder. Most cops gave clipped answers that made them sound like “yes sir”/“no sir” automatons. Kennicott liked to engage in a conversation and steer away from words like “correct” or “right.”
“And before that you were a lawyer?”
“A criminal defense lawyer, for five years.”
“Now, I’d like you to take your mind back to the morning of December seventeenth of last year and the events that bring you to court today. I understand that you made notes at that time, is that correct?”
Kennicott reached into his pocket and withdrew his notebook. This, he knew, would be the first point of contention. He expected the defense lawyer, Nancy Parish, to run him through the mill on his notes before she agreed to his being able to refer to them in court.
“Yes, I did. Here they are.”
“A copy of your notes has been provided to the defense. Do you wish to refer to them to refresh your memory when you testify?”
Out of the corner of his eye he could see Parish rising to her feet.
The usual dance was that he’d say he needed the notes to refresh his memory, then she’d ask him every question she could think of about how and when he made the notes, and then the judge would let him use them. A smart defense lawyer would do that not to prevent him from using the notes, but to get in an early dig at how the notes might not be entirely accurate.
Kennicott took a deep breath. “I don’t think it’s necessary,” he said. “I remember the morning very well, and I’ve memorized all the relevant times. If I do need to look at them, I’ll let you know.”
He kept his eyes on Fernandez. Beside him he heard Judge Summers sit up in his seat. He knew he’d caught his attention. Parish was still on her feet.
“Now, that’s impressive,” Summers said. “Saves us having to go through all the nonsense of qualifying the notes. Good for you, Officer. Ms. Parish?”
Parish looked at Kennicott and smiled. “I’ll leave any questions I have for this officer for cross-examination,” she said, and sat down.
Fernandez began to lead Kennicott through his evidence. He wasn’t a flashy lawyer, but Fernandez was extremely competent and well prepared. A full-scale architectural drawing of the apartment was on a nearby easel, and Fernandez asked Kennicott to come over to it and mark his movements of that morning with a felt pen.
“When you first saw Mr. Singh and Mr. Brace, where were you, Officer?”
“I was here.” Kennicott marked the end of the hallway, at the entrance to the kitchen.
“And what happened next?”
“I approached Mr. Brace, and I slipped on the tile floor,” Kennicott said, putting a little
x
on the spot. “I fell here, and my gun, which had been in my right hand, slid all the way to here.” He drew a dotted line up to the kitchen counter.
He’d been back to Brace’s condominium so often, he felt he knew every inch of the place. Still, seeing the layout in an architectural drawing gave him a totally different perspective on the space. He found himself staring at the easel even when he got back to the witness-box.
Fernandez had many more questions for him. About what he did the rest of the day, his review of the lobby videotapes, and all that he’d learned about Brace’s and Torn’s lifestyles. They’d agreed to avoid any discussion of Torn’s drinking problem. All of this had been disclosed
to the defense. If it was going to come out in court, let Parish bring it up. That way Dr. and Mrs. Torn wouldn’t blame them for it, and perhaps they could get them back on the Crown’s side.
When Fernandez was done, Parish got to her feet. She was an accomplished cross-examiner. Kennicott could see right from the start what her technique was. Ask only leading questions, limit him to answers that were either yes or no, gradually work him into a corner, like an endgame strategy in chess, when the player with the advantage slowly cuts off his opponent’s avenues of escape.
As he expected, Parish started off asking about his notes.
“Taking notes is an essential part of your job. Correct, Officer Kennicott?”
“That’s right, it’s required,” he said.
“You’re trained to take notes, correct?”
“We are. They even bring in an ex–homicide detective to do a special seminar on note taking. It is very thorough.”
“You’re required to take notes under the Police Act. Correct?”
“That’s right.”
“And as a defense lawyer, you cross-examined hundreds of police officers about the accuracy of their notes. Correct?”
There was a murmur of laughter in the courtroom. Kennicott smiled. Keep it casual, he told himself, don’t be stiff.
“With great pleasure,” he said, and everyone laughed, even Summers.
Here it comes, Kennicott thought. He’d read his notes over a dozen times, looking for something he’d missed. He hadn’t found anything. But she must have found something.
“Could I look at your book, please, Officer?” Parish asked. “I have a photocopy, but I’ve never seen your original notes.”
“Be my guest,” Kennicott said. This was strange. Was Parish looking to see if he’d somehow doctored his original notes?
She approached him on the witness stand. He watched her eyes as she slowly flipped through his notes. Taking her time. What was she looking for?
She moved back to her place behind her table. “Your notes and the photocopy you provided are exactly the same. Correct?”
“Correct.” Damn it, Kennicott thought. Here he was echoing her with that damn word “correct.” His first one-word answer. Now he got it. She’d done her little act looking at his notes just to try to rattle him.
“Officer, you’ve looked at these notes many times before you testified today.”
“At least ten times.”
“Is there anything you can think of that you’ve left out?”
It was the first question she’d asked that was not a leading question, that didn’t suggest an answer of either yes or no. Parish had just broken the first rule of cross-examination: Don’t ever ask a question you don’t know the answer to.
But Kennicott realized it was a smart move. If he said he didn’t leave anything out—and there was always something—then he was stuck with that answer and she had a free shot at him when she found something. If he said he noticed something he’d left out, then he’d have to explain his error. Either way, she’d put him on the defensive.
On top of that, she’d established a quick rhythm in her cross-examination, an underlying beat to their conversation. He knew that if he hesitated too long, it would break the pacing and make him look unsure of himself. Kennicott heard Summers’s pen stop. Out of the corner of his eye he saw Fernandez and Greene look up at him.
“Of course I didn’t put every minor detail in my notes,” he said. “Things like the color of Mr. Singh’s shoes, for example. But I can’t think of anything important that I left out.”
“When you first saw Mr. Brace, he was having tea with Mr. Singh. Correct?” Parish had moved off the notes and was heading into the meat of the cross. Here we go, Kennicott thought.
“I was told they were having a special tea that Mr. Singh had given Mr. Brace.”
As much as he wanted to keep focused on Parish, Kennicott’s eyes were drawn back to the scale rendering of the apartment. When Fernandez
was examining him, he’d noticed something that had never occurred to him before. How, he demanded of himself, did I miss that?
Parish lifted her copy of Kennicott’s notes. “On page forty-eight you’ve written, ‘Brace and Singh seated at breakfast table. Brace on the left—west side, Singh on the east. Drinking tea.’ And you even made a little drawing of the location of both people.”
“I did,” Kennicott said. He was staring at the full-scale drawing. His mind slipped back. Suddenly he wasn’t in courtroom 121. He was in Brace’s condominium. First man in on a murder call. He could see it all in his mind. “Mr. Brace didn’t look at me,” he said. “He was looking down at his cup, stirring his tea with a spoon and pouring in honey. Mr. Singh said the tea was a special blend and that it was good for constipation.”
“That’s not in your notes, Officer Kennicott.”
Kennicott looked at Parish. It was as if he’d just come back from a short journey.
“What’s not in my notes?” he asked. “The constipation?” There was a murmur of laughter in the audience.
“No. In fact, Mr. Singh’s comment about the constipation is in your notes, on the next page. But I’m talking about the honey and the spoon.”
“The honey and the teaspoon are not in my notes,” Kennicott agreed. “But I remember them distinctly. I simply didn’t think they were important details.”
“Less important than the constipation?” Parish asked.
There was another murmur of laughter, a little louder this time.
“The constipation was part of the statement made by Mr. Singh. It was the first thing he spoke about after he’d introduced himself. That’s why I noted it. I noted every word Mr. Singh said to me. No one said anything about the honey and the teaspoon, it was just an observation.”
“What did you observe about the honey and the teaspoon?”
Kennicott took a moment to put himself back in the breakfast room again. He looked at the drawing. It was important as a witness
not to rush things. When he was a lawyer, he’d always told his clients to tap their feet three times before they answered a question. It was easier said than done, he’d learned once he started to testify himself.
“Brace had the teaspoon in his left hand, and he was pouring the honey with his right. I thought it looked awkward, and now that I think of it again, I guess it occurred to me that Brace must be left-handed.”
“Thank you very much, Officer Kennicott. No further questions.” Parish smiled. It seemed as if she couldn’t wait to sit down.
Fernandez had no reexamination, and a moment later Summers was thanking Kennicott and he was climbing down from the witness-box. It had all ended so quickly. He took another look at the drawing as he walked out of the courtroom.
He could see what Parish was trying to do. The position of Torn’s body in the bathtub made it clear that the obvious way to stab her was with the right hand. But even a lefty could have stabbed a naked, vulnerable woman in the bathtub using his other hand.
That was not what had distracted him while he was on the stand. It was what he’d seen looking at the scale drawing of Suite 12A. It was so obvious. As he reached for the swinging doors leading out of the counsel area, Kennicott sneaked one last look back at the drawing. It was right there in front of him all the time. And he’d missed it. They’d all missed it.
I
realized this afternoon that I made a big mistake in your case,” Nancy Parish said after Kevin Brace took his seat in interview room 301 and Mr. Buzz had closed the door. She noticed, as he walked in, that he’d stomped down the back of his prison running shoes. “We now have a serious problem.”
Brace didn’t look away. For once, she seemed to have gotten his attention. In fact he seemed surprised.
He brought out his notebook and reached for his pen, but Parish put up her hand to stop him.
“No,” she said, her voice rising in anger. “It’s my turn to talk. That’s the mistake I’ve made. Every other client I’ve ever had, I tell them the same thing. I call it ‘the speech.’ And I’ve never given it to you. So here it is.”
Brace took his hand off the pen. He kept his eyes on her. Well, well, we’re making progress here, Parish thought. But to her chagrin, her own internal voice sounded the way her mother’s did when she was angry.
“I take cases because I want to win. Straight-out. And why do I want to win? Because if I don’t win, I don’t sleep. And that’s our problem. I like to sleep. Is that clear?”
Brace looked at his notebook.
“You don’t need your notebook to answer this question,” Parish said. She was mad. “Is that clear?” This could be the best cross-examination I do all day, she thought.
Brace nodded his head. That’s a first, she thought. We’ve moved from written communication to gestures.
“And I can’t win a case when my client isn’t listening to me.”
Brace tilted his head a bit. He looked confused.
“I’ve told you over and over again, don’t talk to anyone in this place about your case. But that move Fernandez pulled today in court about the ban on publication, saying he might need to challenge it in ‘exceptional circumstances.’ I know what that means. He’s got a rat in here somewhere. Any minute now I’m expecting to be told about a statement you made to some asshole that’s going to torpedo our case. And then we’ll lose. And then I won’t sleep. Got it?”
Brace reached again for his pen. Parish didn’t object. He started writing furiously. At last he passed his book over to her.
I’ve never said a word, with but one exception. Back in February, when the Leafs were losing, I said to my cell mate that with the older goalie, the Leafs would be better. That’s it.
Parish read the note twice. Was Brace deranged? Did she literally need to get his head examined? Finally she passed the notebook back to him.