"Well. If you were there, is it fair to assume that these were professional visits and not social calls?"
"Right, they would have been professional." This seems for Tony the only certainty.
"What would you have been doing there professionally?"
"If I have no specific recollection of being at her apartment, how am I supposed to remember why I might have gone there?" He looks at the jury a little nervously, then laughs, like the logic of this is self-evident.
"Is it possible you might have been there discussing cases?" "Probably," he says. "We both worked Vice."
"Precisely," I say.
There are certain taboos, questions I cannot ask with Tony, that relate to my prior representation, questions of corruption that I skirt.
"When you were there, if you were there"--we continue to play this game--"is it likely you would have gone there with others besides the victim, or would you have been alone?"
"I can't remember. Probably with others," he says. This sounds better, to Tony more businesslike.
"Do you know, did the victim, did Ms. Hall, have your home telephone number?"
"How do I know?"
"Did she ever call you at home?" He makes a face. Tony knows we have access to phone records.
"She might have."
"Your home number is unlisted, isn't it?" "Yes."
"So how would she get it unless you gave it to her?" This stumps him for a moment. Tony in a quandary, darting eyes.
Then he says, "She could have gotten it from the department, if she had a business reason."
"Ah. Policy? To give out your number?"
"Sometimes." He actually smiles, satisfied with a good answer; he knows I cannot check this out without more time.
"So your number could have been included in her personal phone directory?"
"I don't know."
"Unfortunately nor do we. It seems the pages under the letter A were ripped from that directory." Tony looks at me as if this were an accusation. Kline is on his feet, about to object, when I turn it into a question.
"You wouldn't know how this happened, the pages being ripped out?" I say.
"No. How would I know?"
"I thought it might be something else you forgot," I tell him, "Objection." Kline shoots to his feet.
"Sustained. The jury is to disregard. Mr. Madriani!" says Radovich.
He shakes the gavel in my direction. "Are you done with this witness?" "Not quite. Your Honor."
"Then get on with it, but be quick."
"Sergeant Arguillo, can you tell the jury how they came to identify the victim in the alley the night she died?"
"What do you mean?"
"Well, as I understand it she was not clothed or carrying any form of identification. How did the police know who she was?"
"I don't know. I'm not sure," he says. "But you were on the scene."
"Right," he says.
"You didn't see the body? You never looked at the victim?" "Maybe from a distance," he says.
"So how did they identify her?"
"They had some trouble," he says. "It took a while." "How long?"
"A couple of hours," he says.
"And in the end how did they do it?"
"I think it might have been another cop," he says. "Somebody from the department who recognized her."
"But you had worked with the victim in Vice," I remind him.
"True," he says. "But I didn't get a close look." The problem for Tony is that he is now victimized by his own conniving. It took time to call Lenore, to have her trek to the victim's apartment, to look for a note and destroy it. Tony needed time. The only way he could buy it was to keep his colleagues in the dark as to the victim's identity. Tony kept his cool, stayed mum at the scene, and used his cellular.
"So you waited for two hours in the dark, looking for evidence, knowing that the other officers could not identify the body, and you never thought to take a look yourself?" "No," he says.
"Did anybody order you not to look at the body?" "No."
"You simply chose not to?"
"Right," he says. This does not fit the image. A nearly naked young woman, even in death a feast for an army of male eyes, ogling cops from three jurisdictions, and Tony doesn't take the time to look.
"Were you there in Ms. Hall's apartment that night?" I ask. "The night she was killed?"
"That's a lie," he says. As a witness, Tony is too hot by half. "Objection. Vague as to time." Kline understands the question. Tony does not.
He suddenly senses that he has overreacted, but in doing so, has conveyed more than he intended.
"Rephrase the question," says the judge.
"Sorry," I say. By now I am smiling at Tony, who is looking red faced. "Did you have occasion to visit the victim's apartment that evening or in the early-morning hours following her murder? In your official capacity?" I add.
"Oh," says Tony. "Yeah. I was one of the cops officers who was directed to the scene after her body was found."
"After she was identified?" "Right."
"And who directed you there?" "Lieutenant Stobel. He was in charge."
"And what did you do once you arrived at the apartment?"
"Canvassed for evidence. Talked to neighbors. The usual." I turn from him for a moment.
"Can you tell us. Sergeant, how it is that your name came to appear in a note stuck to the victim's calendar for the date of the murder?
There is commotion in the courtroom, jostling bodies in the press rows for a better angle to see the witness.
"Objection!" Kline is on his feet as if propelled by a skyrocket.
"Assumes facts not in evidence. Outrageous! Can we approach?" he asks the judge.
"Sustained," says Radovich. "To the bench," he says, eyes like two blazing coals, aimed at me.
"You," he points at me before I get there, "are trying my patience," he says.
"We request an admonishment, before the jury," says Kline. He's gauged the judge's anger and will take advantage where he can get it.
"Where is this going?" asks the judge.
"We have a right to ask whether he met with the victim that night before her death." Kline argues that there is no basis in the evidence for such a belief.
"We should be allowed to ask the question," I insist. Radovich mulls this momentarily as we both eye him.
"One question," he finally says, "but no innuendo." Before I am back to the rostrum he is giving the admonition. "The jury is to disregard the last question by the defense counsel as if it had never been asked.
" He gives me a nod, like ask your question.
"Sergeant. Did you have a date with the victim, Brittany Hall, on the evening of july fifteenth, the night that she was murdered?"
"No," he says. Tony seems at a loss as to how to play this, whether indignation or detached professionalism, and so the denial comes off as something less than emphatic.
"Are you sure?" I say.
"Objection. Asked and answered," says Kline.
"Absolutely." Tony answers before the judge can rule, and Radovich lets it stand.
"And to your knowledge, your name did not appear on a small Post-it note on her calendar for the date in question?" The inference here is slick, the jury left to wonder if Tony did not remove the note himself, once he reported to the scene.
Kline shoots to his feet, an objection at the top of his lungs. "Your Honor, I'm asking him if he knows."
"Sustained," says Radovich. "I've warned you," he says. He's halfway out of his chair up on the bench, the gavel pointed at me like a Roman candle about to shoot flaming colored balls. "No. There was no note," says Tony.
"Shut up," says Radovich.
Tony hunches his head down into his collar, like a turtle shrinking into its shell.
"You don't answer a question when I've sustained an objection." He would add, "you stupid shit" but the collection of bulging eyes in the jury box has curbed his temper.
"The jury will disregard the question, and the answer," he says. "Both are stricken." The only one foolish enough to speak at this moment is yours truly.
"There is a good-faith reason for the question," I tell him.
Radovich looks at me as if there is nothing this side of the moon that could possibly justify what I have done after his earlier admonition.
"There is evidence, a basis upon which I have pursued this question." He sends the jury out. Radovich looks at me, fire in his eyes. "In chambers," he says. "And it better be good."
It STARTS AS A TRIP TO THE JUDICIAL WOODSHED.
"I hope to hell you brought your toothbrush." It is Radovich's opener to me from behind the mahogany desk once we arrive in chambers.
He is not smiling. He doesn't sit or remove his robes, the sign that he expects this to be short--a summary execution.
Kline and Stobel take up positions like bookends, with Harry and me in the middle. We huddle, standing around the desk, jockeying for position to advance our arguments. The court reporter has his little machine between his knees, though he has not started scribing. My guess is that the judge would not want these overt threats on the record, one of the perks that come with power.
"You keep stirring the embers on this note from the calendar," says Radovich. "Something you can't prove up."
"There is a reason," I say.
"It better damn well be a good one, or you're gonna do the night in jail," he tells me.
There are sniggers and smiles from Kline and Stobel, like two kids who just farted in choir.
Kline weighs in, making his pitch that we are trying to impeach our own witness, a taboo of procedure, unless Tony is declared to be a hostile witness. He claims there is no basis for this.
"There's no evidence that he's lying, or that he's surprised you." The legal test in pursuing the alleged note on the calendar is a good-faith belief. If there is some basis in fact for me to believe the note existed and that Tony's name was on it, I have a right to ask. If not, I will be undergoing cavity searches by sunset.
I ask to make an offer of proof, a showing that I have such a good-faith belief. I ask Radovich if I can bring in one more person.
The judge nods. "Make it quick." When Harry opens the door it is to admit Laurie Snyder, the special master appointed by Radovich to oversee the collection of our physical evidence.
Snyder is in her late thirties, a big woman, taller than I--dark hair and all business. She is now in private practice, but spent eight years working as a prosecutor in this town. Her appearance in chambers takes some of the edge off of Radovich's attitude, so that when he sees her he is compelled to at least smile and offer a greeting.
After this he slumps into his chair, a concession that this is likely to take longer than he'd hoped.
"Two days ago, early in the afternoon," I say, "evidence was discovered, the significance of which was only made apparent to us this morning," I tell Radovich.
"I should have known," says Kline. "Last-minute surprises. Your Honor, if this is evidence we have not seen I'm going to object."
"Please sit down. Be quiet," he says. Kline does it, but he's not happy.
"It was developed, as a direct result of evidence presented by the state in its case in chief," I say, "and it's in the nature of impeachment."
"What is this evidence?" says Radovich.
"Carpet fibers from another vehicle which correspond in kind and character to those found on the blanket used to wrap the body of the victim."
"That's it?" says Kline. "That's what you have? Your Honor ..." "Mr. Kline, if you don't shut up, the two of you can share a cell tonight. Then you can piss all over each other to your heart's content, and we won't have to listen to it." At this moment the court reporter is the only one smiling.
"That's not all," I say. "These carpet fibers were discovered in another county-owned vehicle, part of the fleet. It was the police car assigned to the witness, Tony Arguillo."
"Fibers are not fingerprints," says Kline. Radovich shoots him a look, death in a glance.
"I hope for your sake it gets better," says the judge.
This seems to pacify the prosecutor, at least for the moment. "There was more," I say. "They also found hair in this vehicle."
Radovich gives Snyder a look, and the sobering nod he gets in return tells him there is something significant here. "What kind of hair?" says the judge.
"Horse hair," I tell him, "and human hair." He motions for me to tell him more.
"The forensics experts have already confirmed that the animal hair is consistent in all respects with the horse hair previously identified.
They're prepared to testify that it's consistent in color and character with the hair found on the blanket used to wrap the body of the victim as well as those found in her apartment." Radovich is rocking in his chair, hands coupled behind the back of his neck as he listens to this.
His expression, pursed lips and pensive, tells me that he is doing the job of judging--in this case weighing the evidence.
"We all know, hair is not dispositive," says Kline. "You made the argument yourself," he tells me.
Radovich nods like maybe he agrees with him, that this merely establishes a swearing contest among the experts.
"They have also identified human hair on the floor of the front seat in Tony Arguillo's unmarked police car. A lot of incriminating evidence." I remind him that the police have failed to turn up any hair matching that of the victim in my client's own vehicle. "On balance, at this moment, there is more evidence pointing to Sergeant Arguillo than Judge Acosta," I add.
Kline huffs and puffs, makes a mockery of this. "Did they find Sergeant Arguillo's glasses at the scene of the murder?" When I don't respond he answers for me. "No," he says.
"The issue is not whether I can prove the guilt of the officer beyond a reasonable doubt," I tell Radovich, "but whether I should be permitted to inquire into the officer's whereabouts on the night of the murder, and the possibility that he had a date with the victim."
"Your Honor, we've had no chance to examine any of this," says Kline. "It is very convenient in the eleventh hour." He calls it "trial by ambush." When he finally stops arguing, all we are hearing is the ticking of an antique regulator clock on the wall, while Radovich thinks.
"And when did you say you found all of this?" he asks.
"Until two days ago, when we subpoenaed the witness, his vehicle was unavailable to us. In service," I tell him. "We collected the first hair and fibers yesterday morning. They were examined late yesterday and last night."
"So you believe they had a date that night?" says Radovich. "I'm convinced of it," I tell him.
"There's still a dispute over the indented writing," says Kline. "My experts tell me there is nothing there."
"Ms. Snyder. This stuff, the hair and fibers," says Radovich. "Does it look like a good search?"
"From what I could see," she says.
"And the forensics experts who analyzed it, reputable?" he asks. "A legitimate lab," she says.
Kline senses shifting sand under his feet.
"Have you checked motor pool records? Are you certain that the vehicle was checked out to the witness on the date of the murder?" says the judge.
"We have checked. It was signed out to Arguillo," I tell him.
At this moment Radovich is mired in thought. "I'm concerned about the surprise element," he finally says. "If I allow this I'm going to have to give the state time to prepare for the cross examination of this witness." Like cowboys drawing their guns, we are all suddenly reaching for our pocket calendars.
"How much time do you think you need?" Radovich asks Kline. After some quibbling they settle on four days.
Then Radovich wants to know how long it will take me to put on our hair and fibers evidence and finish with Tony.
I tell him it will be done by Thursday afternoon.
"It looks like a long weekend," says the judge. We go dark Friday. Reconvene Wednesday morning. Two days for cross examination." We all agree that this will work, though Kline doesn't like the idea.
He will be placed in the awkward position of having to rehabilitate a witness he has not called to the stand. He tells the judge this.
Radovich catches only part of this as he is already setting the schedule in motion, giving the new plans to his clerk. He wants all the exhibits locked up, secured while we are shut down. She will find a place by Friday morning, an empty locker someplace in the courthouse.
Kline is still grousing, but the decision is made. In any trial, the major battles are always procedural.