"She says she understands. But she asks when her mother is coming back.
" It seems that at the tender age of five, going to heaven is a concept with all the finality of a trip to Disneyland. In her young mind. Mommy is due back wearing mouse ears any day.
"You tell her that her mother is not in the hospital," says Radovich. It's clear that the judge is not going to do this. From the look, Radovich would rather take a good beating by some thug with a sap.
The shrink walks over and delivers the message. This takes several seconds, and by the time we get back to the counsel table Radovich is back in place.
He quickly gets off the subject of death and asks her where she found Binky that night.
The little girl is thinking, swallowing buckets of saliva, images playing in her tiny brain, the aftermath of violence.
"Do you remember where you picked him up?" She nods. "Where?"
"On the floor," she says. "Binky was on the floor." "Where on the floor?" ''By Mommy," she says. "How did Binky get dirty?" says Radovich.
"I heard Mommy in the front room. They were shouting."
"Who was shouting?" Radovich is picking up the pace, as if now maybe he's getting somewhere.
"Mommy."
"Who was with Mommy?" She shakes her head and offers a tentative shrug, a lot of expression for such a little body.
"You don't know?" She shakes her head again.
"You never saw who was there with Mommy?" More head shaking.
"Let the record reflect that she did not see whoever was with her mother that night," says Radovich. First big point.
I can sense Acosta as he gives a palpable sigh, his entire body suddenly easing in the chair.
Radovich questions her for ten minutes and gets nothing of substance. This is hard work. He is sweating profusely. His white dress shirt is stuck to his back, soaked through in three places. "Maybe you'd like to try for a while." He turns to me. "You're doing fine," I tell him.
"Right." Talking to this little girl now is to play with fire. So far she has not hurt us. If she says anything damaging I will have no choice but to crossexamine her.
Radovich returns to her on the stand, and offers her a glass of water. She takes it and asks for a straw. He has his clerk search for one in her office, and when she comes back empty he sends out to the cafeteria. "Maybe you'd like a Coke?" he says.
This lights up her face and she nods. Radovich pulls a five-dollar bill from his pocket and gives it to the bailiff.
"Maybe some ice cream, too," he says.
While we're waiting, Radovich continues his questions, asking Kimberly to tell him about that night.
"They were really mad," she says. "Who?" says Radovich.
"Mommy ..." Stark looks from the little girl, as if she can't fill in the other blank, the other voice she may have heard that night.
"Do you know if the other voice was a lady's voice, like Mommy s, or was it a man's?"
"I heard Mommy," she says. "She was crying."
"Yes. But did you hear the other voice?" She shakes her head. A five-year-old, cowering in a dark closet, listening to the voices of violence; it is little wonder that all she would hear is her mother crying.
"Did your mother say anything?" "She said, No!" She was real mad."
"Did you hear a man's voice?" This is suggestive and I could object, but Radovich is likely to roll over me, since it is he who posed it.
"I think so," she says.
I wince with a little pain. "Your Honor, I have to object. It's a powerful suggestion to a little child," I tell him.
"You can clean it up later," he says.
"We could strike it now," I tell him, "and avoid the necessity." "It'll stay for the moment," he says.
The Coke comes from the cafeteria and Kimberly sips from the straw.
The ice cream goes up on the bench to melt for a while. Radovich continues to question her about her toy bear and how it came to have blood on it.
"Binky was out with Mommy," she says. "They both got hurt." It becomes clear that Kimberly has rationalized the blood on the bear so that it has now become Binky's.
"Binky must be a pretty good friend?" says Radovich. "Binky keeps all my treasures," she says.
"I had a fuzzy little friend when I was your age, too," says the judge.
"We were real buddies. I could talk to him about anything." Radovich takes a sip from the coffee cup. "Tell me, Kimberly, did you see how Mommy got hurt that night?" She looks at him very seriously for a moment, then shakes her head.
The court reporter records this. One more stake through the prosecutor's heart.
"Your bear, was he out in the front room when Mommy was hurt?" To this he gets a big nod.
"And were you in the closet?"
"I was in my bedroom first," she says.
"You went from the bedroom to the closet?" "Uh huh." She nods.
"Did you go there when you heard the shouting?" She nods.
He is leading her shamelessly, but it is likely that with a child he would allow counsel to do the same. It is the only way to get her story.
"So you heard shouting when you were in your bedroom, and then you went into the closet. Why did you go into the closet?"
"I was scared," she says.
This probably saved her life, and Radovich knows it. It is the kind of point that would not be lost on a jury, the sort of thing that could inflame them against a criminal defendant if there is no other party against whom they can vent their wrath.
"So this was a very loud argument that Mommy was having, if it scared you so much?" She gives him a big nod.
"Did you hear what they were saying, your Mommy and this other person?" "A lot of bad words," she says, "Bad words?" Radovich draws this out and rubs his chin whiskers.
"Uh huh. Mommy said a lot of bad words." To listen to the little girl, Brittany Hall died uttering a shower of profanities, though there is no substance to the conversation that might lend a clue as to who was with her that night.
"A couple more questions," says Radovich, "and then we'll be through. Kimberly, I want you to think real hard now. Did you see anybody with your Mommy that night? The night she was hurt?" She looks at him but makes no gesture.
"Is there anybody in this room that you saw that night?" I can feel Acosta tense up in the chair next to me.
Kimberly starts on the right of the courtroom, the area nearest the jury railing, and studies the faces in the room; first the deputy D.A.. then Radovich himself, the court reporter, and the bailiff. She works her way left, past the reporter and the psychologist to our table, first me, and then Acosta, studying long and hard. The expression on her face is tense, then she points with one hand at our table--not at Acosta. but at me.
I give a sick little laugh. The blood in my system heads south to my stomach like lead. My sweat turns cold.
Radovich is looking at me. So is Acosta.
"Transference," says the shrink. This draws their attention away from me for an instant.
"ill: m ?
"He objected to one of your questions." She winks at Radovich and they convene out of earshot of the witness.
The D.A. and I join them, though my knees are so weak at this moment I can barely walk.
The psychologist is whispering to Radovich. "She knows that somebody in the room is a bad person. She knows it's not the lady at the other table." She means the deputy D.A. "Or the officer who brought her the drink. She figures it has to be one of the men at the other table.
It's simple. You're the one who spoke up." She looks at me. "So she picked you. She guessed." The wonders of modern analysis.
"The record will reflect that the witness indicated the defense attorney," says Radovich. "What else?" There's a few chuckles in the courtroom, the bailiff and the clerk.
Kimberly's grandmother is eyeing me warily, whispering to her husband. I am thankful that Kline is not here to see this. He would no doubt make more of it than the judge, put two and two together: Lenore's print on the front door along with the little girl's make on me. By tonight I would be talking with bright lights in my eyes, figuring ways to save my ticket to practice.
TODAY THE COURTROOM IS PACKED, EVERY SEAT IS occupied, with a line two columns deep in the hallway outside, roped and cordoned to one side to keep the halls clear for workaday foot traffic.
Even with the notoriety of this case, it is not likely that we will see such a crowd again until a verdict is delivered.
There are pickets carrying signs on the steps outside--"Women Against Violence,"
"Mothers Against Crime"--exclusive franchises of virtue from which all men are blackballed.
Since the disclosure of the evidence in Acosta's case, the talk airwaves are hot with anti-male rhetoric, aimed chiefly at those of the political class. At night I can turn on anything electronic and hear screaming voices with their endless anecdotal tales of predatory men. From the more farfetched of this crowd, there is now a cry for a federally mandated neutering program for the male of the species, presumably to tame the violent among us, though this is not entirely clear.
"Susan B. Anthony's final solution," says Harry.
From another quarter there is talk of whether judges are sufficiently monitored in their personal behavior. Acosta's case is the rallying point for judicial reform among the "cause-of-the-hour set" in the state legislature.
These are lawmakers who watch television in the afternoon to see what bills they should introduce in the morning.
There are budding campaigns for the protection of witnesses, and the limiting of judicial terms of office. There is even a proposal to limit the number of words that a lawyer may utter in a trial, like the preemptory challenge of jurors, the only difference being that when you run out" they hang your client.
In all, Acosta's case is a cross between Carnaval and a public hanging with hucksters peddling snake oil from the tailgate of your television set. It is in this maelstrom of hysterical political dialogue that we are now to obtain a fair trial.
In the shadows there is the deft hand of Coleman Kline, whipping t his froth for spin. He is suddenly everywhere on the airwaves. While he studiously discusses none of the particulars of the case, he has views on e very social and political issue swirling about it, enough to lay a plush carpet of blame all the way to Acosta's cell door.
This morning Armando sits next to me dressed in a dark suit, something Lili picked from his wardrobe. It hangs on him like the skin on an Auschwitz survivor, so much weight has he lost since we started.
Our first move is tactical. I ask the court to exclude all witnesses from the courtroom. This so that they may not hear the opening statements and conform their testimony accordingly.
Radovich goes me one better and instructs them not to listen to or read reports of the doings in this trial, though this is impossible to enforce.
"Mr. Kline, are you prepared to open?" says Radovich.
"Your Honor." Kline rises from his chair. He tugs the French cuffs of his linen shirt an inch from the end of each sleeve of his suit coat, like a Warrior girding himself for battle. Today he is dressed in his finest, a dark Worsted suit, power blue, set off against a blue-and-red-striped club tie. The maroon satin lining of his coat flashes open as he approaches the Jury box, and glances quickly at the watch on his wrist.
Then to the rapt silence of the courtroom, Kline opens slowly with the core concepts of his case, the central themes of the prosecution.
Standing four feet from the jury railing, without benefit of a rostrum or notes, he speaks in firm, clear tones, the discourse of death; how the victim's body was found, dumped unceremoniously in a trash bin, how copious amounts of blood were discovered in her apartment, and the graphic nature of her death a prelude to the pathologist who will soon take the stand.
"The state, ladies and gentlemen, will prove that this was a murder committed by the defendant, a man who held a position of trust in our society, a judicial officer sworn to uphold the law," he says,"
betrayed that oath of office." Through all of this he has an outstretched arm loosely directed at Acosta, pointed more generally at our table so that his words are an assault on any who might support the defendant.
This is an important theme, since if Acosta takes the stand, Kline is certain to revisit the implied violation of his sacred oath of office in weighing the man's credibility. In all of this, the elements of deceit, the betrayal of trust, place high among the uncharged sins of my client the inferential and unstated reasons why the jury should put him to death.
"We will show that this murder was intended to obstruct the very ends of justice to which the defendant, Armando Acosta, was himself sworn to protect." With this, Kline lays open his theme, "the fallen judge," to which he will return time and again. He tells them that the state will produce a witness who will verify beyond any reasonable doubt that the defendant attempted to engage in illicit and unlawful sexual relations with the victim, an undercover operative working with the police, and that Acosta was netted in this undercover sting, "a corrupted and fallen judge," he says.
He walks them through the chronology of events in the earlier case, from the failed wire on Brittany Hall the night of the prostitution sting, to the collection other statement by prosecutors, the contents of which he carefully skirts to avoid the hearsay objection. Still the point is well made: that Acosta had a clear and indisputable motive for murder.
Through all of this, the eighteen souls twelve jurors and six alternates sit behind the railing, riveted by the unfolding tale.
Kline deftly deals with the picky little points, the circumstances that incriminate, stacking one upon the other as he continues to gather steam, until at a point he breaches the surface, belching fire and brimstone, unable to avoid the moral judgment. He is a verbal Vesuvius.
"We will show," says Kline, "that this defendant had a reputation for illicit liaisons with other women that ultimately led to prostitution and murder." Radovich's eyes go wide. A look at the seamier side, judicial life in the big city.
I can hear the frantic scratching of soft lead on paper. Reporters behind us in the front row getting cramps taking notes, trying to catch all the sewage being dumped on Acosta's head at this moment.
The man is tugging at my sleeve. "You should object," he says.
I am already halfway to my feet as he says this. "Your Honor, this is improper."