The Judge

CHAPTER 16

Radovich has labored over the issue of the little girl, Kimberly Hall, for nearly two weeks.

At issue is the right to a public trial in a criminal case. Kline wants to put Hall’s daughter on the stand, but out of the presence of the public and the press, with only the jury, judge, and lawyers present. He argues that to do otherwise would traumatize her, that she has suffered enough.

We have resisted this motion, and have demanded the right to voir dire Kimberly out of the presence of the jury before the start of trial. This is not an unusual procedure with young children. It is important to find out if the child understands the difference between truth and fantasy and, in this case, to determine if she saw anything that night which would make her a competent witness.

All we know is that the night of the murder, the cops found Kimberly cowering in a dark closet a few feet from the living room clutching a teddy bear stained with her own mother’s blood. What Kimberly may or may not have seen that night remains a mystery.

This morning we are assembled in the courtroom-the judge, the lawyers, Acosta, and a psychologist from Child Protective Services. What is revealed here today will determine whether Kimberly testifies in the trial.

Kline has assigned one of the female deputies in his office the task of dealing with the little girl, though she is not likely to ask many questions here today, as this is our party. His theory is that a woman may be able to get more from the child than he would. No doubt our side would have had Lenore do this had she not been bounced.

Then the thought hits me like an iced dagger, something I had not considered before this moment: Kimberly was in that closet when Lenore and I entered the apartment that night.

The thought sends a cold chill, apart from the fact that she may have seen us, that without knowing we had left her there. The former I quickly dismiss. She could not have seen anything. The closet door was nearly closed, at least I think it was.

The only people beyond the railing of the bar are Brittany Hall’s mother and her stepfather, who at this moment are waving at their granddaughter, as she sits perched on two telephone books in the witness chair.

“Are you okay down there?” Radovich leans over the side of the bench and gives her a broad paternal grin.

“We’re pretty special. They let us sit way up here,” he says. “So we can see everybody out there.”

She looks at him, but says nothing. She seems neither amused nor comforted by his words.

Radovich has shed his robes and sits in shirtsleeves and an open collar, a concession to the child’s anxiety.

“Would you like me to come down there with you?” he says.

She shakes her head.

“We’re gonna do this together, aren’t we?”

She looks at him silently, conveying the thought, no doubt, that she would rather he do it alone.

“Let’s go on the record,” he tells the court reporter.

The woman starts hitting the keys on the stenograph.

“You’re not scared, are you?” says Radovich.

She shakes her head bravely.

“Let the record reflect that she has indicated ‘no.’”

She is just too terrified to speak.

Radovich gets up from the bench and comes down into the well of the courtroom, in front of the witness stand, where he is almost at eye level with the little girl.

“Kimberly. Do you know why you are here?” the judge asks.

More head shaking, the judge interpreting for the record.

“Can you tell us what your name is?”

She shakes her head.

“You don’t know your name?”

More head shaking.

“You know your name?”

She nods.

“You know your name, but you won’t tell me?”

She nods again.

“Wonderful,” says Radovich.

“Will she talk to you?” The judge is addressing the psychologist.

The woman gets up and crosses the room. She huddles with the little girl at the witness stand, talking in tones that I cannot hear. From this conversation comes a tremulous little voice.

“Kimberly,” it says.

“And your last name?” says the woman.

“Hall.”

“Good.”

Radovich signals the psychologist not to go too far.

“Kimberly. We need to have you tell us what, if anything, you saw the night your mommy was hurt. Do you think you can do that?”

She looks out at her grandparents for encouragement. Her grandmother is nodding her head feverishly, until the judge intervenes.

“Madam, the purpose of this exercise is to find out whether the little girl knows anything. Don’t coach her,” he says.

The woman folds her hands in her lap. Mum is the word.

“Do you remember that night, Kimberly? The night your mommy was hurt?” Radovich wants to do as much of this himself as he can to avoid traumatizing the child.

She nods again.

“I’ll bet you do,” Radovich whispers under his breath as he straightens up and wipes sweat off his brow with a handkerchief.

“You didn’t take down that last comment,” he says to the court reporter.

A few key strokes and it disappears.

“Kimberly, can you tell me where you were that night?” he says.

The first question for which a nod will not suffice.

She looks up at him, chews a silent word with her mouth, and then responds, “I was in the closet.”

“You were in there alone?”

She shakes her head. The court reporter by now is taking license to record the silent yeas and nays without the judge’s instruction.

“Was somebody in there with you?”

She nods.

“Who?”

“Binky,” she says.

“Who’s Bulky?”

“My bear.”

“Ah. I’ve seen Binky,” says Radovich. “A fine-looking bear.”

“Where is he?” she asks. “Why can’t I have him?”

Radovich turns around and rolls his eyes. He’s managed to step in it.

“Didn’t the policeman give you a little bear?”

“It wasn’t Binky,” she says.

“Well, we’ll talk to them about that. Okay?”

A stern nod that is something out of a Shirley Temple movie, as though this is a promise she expects him to honor.

“Was it dark in the closet that night?” says Radovich.

Another nod.

“Could you see anything?”

The child is shaking her head.

Radovich turns and gives us a look, like, “Maybe this is a dry hole.”

“Let’s go off the record,” he says, and he takes a short walk to the other side of the bench, followed by the psychologist. In a couple of seconds this becomes a convocation as the female deputy from Kline’s office and I mosey over to hear what is being said.

“It’s a delicate issue.” Radovich is speaking to the psychologist. “How do I ask her how her mother’s blood got all over the little bear?”

“Very tactfully,” says the shrink. “She might not know it’s blood. You might ask her how it got dirty.”

Radovich gives her an expression of approval. “Good idea,” he says.

We adjourn and he returns to the witness box.

“Kimberly. Can you tell me how Binky got dirty?”

“Mommy bled all over it,” she says.

So much for indirection.

“Did you see this?” says Radovich.

“Oh, yeah. Binky’s all bloody. I think he got hurt, too,” she says.

“I think Binky’s gonna be fine,” he says. “He’s in the hospital getting better,” he tells her.

“Mommy, too?” she says.

Radovich turns so that only the lawyers and Hall’s parents can see him. The expression on his face tells me there is not enough money in the world to compensate for this kind of work.

He turns back to Kimberly. “Just a second, sweetheart. I’ll be right back.” Radovich wants another conference. We convene in the same place.

“Has anybody told her her mother is dead?” he asks.

“She has been told that her mother is in heaven,” says the psychologist. “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 cross-examine 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.

“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 are 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.