The Judge

CHAPTER 20

We are now four days into the state’s case, and Kline’s presentation of the evidence, if not electrifying, is methodical. He leaves no stone unturned, and misses no opportunity to score points, regardless how slight.

Outside of court, he has managed to deflect Radovich’s expectable rage over the second intrusion by the cops into my home. Chief Hansen has been pushed up front as the point man to take this one on the chops personally. He has now suspended all of the officers involved in the initial raid. I have learned that cable man is a cop named Howard Hoag attached to Vice. He was one of the officers present the day that Zack Wiley was killed. After I cold-cocked him in my hallway I called 911. Hoag was arrested on several misdemeanor counts, including criminal trespass. He was released the next morning on his own recognizance. His buddy in the van did not wait around to see what happened, but drove off when the first squad car arrived at my house with lights flashing.

Kline has put this entire episode behind him and chooses to move on with the trial as if nothing has happened. It is a good act, but he knows that the conduct of Hoag and his compatriots confirms the central tenet of our defense: that there is a contingent of bad cops out of control in this city.

Kline has spent three and a half days with the two lead investigators on the stand. They testified as to both the scene in the alley where the body was found as well as the evidence in Hall’s apartment. They told of seeing hair and fibers on the blanket in which the body was wrapped, and instructed forensic technicians to collect these. One of them testified about finding similar evidence, hairs at Acosta’s house and collecting carpet fibers from the trunk of his car. It is all predictable and straightforward.

They seem uncertain as to a murder weapon, the consensus being that the victim’s head struck the sharp metal corner of the coffee table, though they have tried to embellish this with testimony that she was slammed repeatedly against this object.

Radovich sustained my objection to this on grounds that the testimony exceeded the expertise of these witnesses. Neither man is medically qualified, and had no specific training in blood-spatter evidence, the element of crime scene reconstruction that cuts to this point.

Kline closed with the detectives on a strong point, perhaps the most damaging evidence in the case, the note on Hall’s calendar in her own hand, that by inference at least, shows that Acosta met with the victim on the afternoon of the murder.

I had objected to this notation as hearsay. It is one of those ironies of the law, that the victim who suffered most, who in the case of murder lost everything, cannot testify. The problem is that Acosta, when confronted with the calendar note before his arrest, did not deny a meeting with the victim. In fact he claimed no privilege, and according to the cops made certain gestures and comments leading them to believe that a meeting had occurred. He now denies this, but acknowledges that he may have been foolish in his comments to police. It was enough for Kline to get the note into evidence as an adoptive admission, one of the exceptions to the hearsay rule. I have had words with my client over this, that a judge could be so foolish.

It is here that I start, this morning, to undo some of the damage.

Detective John Stobel is in his late forties, fair skinned and bald, a twenty-year veteran of Homicide who could pass for an accountant or college professor if you saw him on the street. His manner is low key, professional. Every word he utters is a plain statement of fact, with little embellishment, simple yeses and noes wherever he can. He offers no spin, and in this way is the most dangerous of witnesses, because he comes across as credible.

This morning we exchange pleasantries. He looks at me square on, not what I would describe as amiable, but neutral. He tolerates me as a necessary part of the process and conveys this attitude well to the jury, part of his air of professionalism.

“Detective, I want to call your attention to the victim’s calendar.”

This is already propped on an easel in front of the jury. It was introduced by Kline into evidence two days ago. The wall-hanging calendar has pictures of far-off places printed on the back of each month so that when you lift and pin up the next month it is a whole new world. What I am looking at is a shot of an old covered bridge bathed in spring glories somewhere in New England.

Stobel nods that he can see the calendar adequately from where he sits.

“Who actually first saw the notation with my client’s name? Was it you or your partner?”

He ponders this for a moment. “I think it was me.”

“And you then called Detective Jamison’s attention to the notation? Is that correct?”

“Right.”

“So you both read this notation?”

“Yes.”

“And you made a note of it on your pad? Your investigative notes?”

“Yes.”

“Because you thought it was significant?”

“Objection. Calls for a conclusion,” says Kline.

“Overruled.”

Stobel makes a face. “Yeah. I thought it was significant.”

“Did you make notes of any other entries from the calendar in your notebook?” I already know the answer to this from my examination of his notes.

“No.”

“So in your judgment none of the other notations that the victim made on her calendar were significant to your investigation?”

“In my judgment, no.”

“Did you read all of the notations on the calendar for each month?”

“I looked at them.”

“And none of them were significant in your opinion?”

“I didn’t see any significance.”

“And yet the entry of my client’s name you immediately thought to be significant?”

“I don’t know if it was immediate,” he says.

“Well, you made a notation on it while you were there, during the initial investigation.”

“Because it was one of the entries for the day of the murder.”

“Ah, so it was only because my client’s name appears as an entry on the calendar for the date in question that you thought it was significant?”

This is a narrowing of the implications, a concession he would rather not make, so he restates it in his own words.

“Because based on the note there is a possibility that the defendant would have been the last person to see her,” he says.

“But that’s an assumption, isn’t it? In fact you don’t know whether my client was ever there at the victim’s apartment that day, do you?”

“No.”

“In fact the actual language of the note, the words written by the victim on the calendar, don’t actually say that she had a meeting with my client, do they?”

“It’s one interpretation,” he says.

“Move to strike as nonresponsive,” I say.

“The witness’s answer will be stricken. The jury will disregard it.”

“That note does not use the word meeting, does it, Detective Stobel?”

“No.”

“What do the words say, Detective? Read them for the jury.” This has been done several times, but I want to emphasize it for my own point.

“Acosta, four-thirty,” he says.

“And that’s all, isn’t it? The name Acosta, and the numerals four-thirty?”

“That’s it.”

“And the other notation for the day in question?” I ask him. “I’m talking about the note that Kimberly was to go to her grandmother’s after school. That doesn’t have anything to do with my client, does it?”

Though this is technically hearsay, Kline, for some reason, does not object.

“No.”

“Did you consider that notation to be significant?”

“Not really.”

“Why not?”

“Nothing unusual about it,” he says.

I turn on him, bug-eyed. “You don’t consider it unusual that the victim indicated that her daughter was supposed to be at Grandma’s the day of the murder?”

He looks at me, not certain what I’m trying to get at. “Not really.”

“In the early-morning hours following the murder, where did you find Kimberly Hall, Detective?”

“Oh.” He sees where I’m going. “We found her in a closet in the apartment. Hiding,” he says.

“Why wasn’t she at her grandmother’s like the note said?”

He’s not sure. “Perhaps she was killed before she could take the child over there.” As soon as he says it he realizes he’s stepped in a snake pit.

“What time did the child get out of school?” I ask him.

He consults his notes. “Two forty-five.”

“So you think the victim was killed in the early afternoon, around the time school let out?”

“I didn’t say that.” This would be an hour and forty-five minutes before the alleged meeting with Acosta. Kline already has problems with the time of death. It seems a neighbor told the cops she heard a single shout, a loud voice sometime between seven-thirty and eight that evening coming from Hall’s apartment. The woman will testify to this. None of these square with a four-thirty appointment with Acosta.

“Why wasn’t the child taken to her grandmother’s, as stated in the calendar note?”

“I don’t know.”

“But you didn’t consider this significant?”

“No.”

The point is not lost on the jury. Another item they cannot answer.

“And her grandmother didn’t come to check when she didn’t show up?”

“The victim’s mother told us she didn’t know she was supposed to be baby-sitting that night.” It is hearsay, but Kline is not about to object.

“So you assumed that the victim never told her?”

“Seems a fair assumption,” he says.

“Let’s talk about the Acosta note, Detective. Were you aware at the time that you saw this notation on the calendar that the victim was a potential adverse witness in another case involving my client?”

“Yes.”

“Wouldn’t it be unusual for an adverse witness to be meeting with someone she is planning to testify against?”

“I wouldn’t know,” he says.

“Well, do you, as a police officer, encourage witnesses in criminal cases to meet privately with the suspects they are going to testify against?”

“No. It could be dangerous,” he says.

“Move to strike,” I say.

“Granted. Officer, just answer the question,” says Radovich.

Stobel gives him a look that says he thought he had.

“Do you normally advise witnesses in criminal cases to meet privately with the suspects they plan to testify against?”

“No.”

“And yet when you saw the notation on the victim’s calendar you immediately concluded that the words ‘Acosta, four-thirty’ could mean only one thing: that the victim and my client were planning to meet?”

“That’s what I assumed.”

“Isn’t it possible that the notation could have referred to something else besides a meeting between Mr. Acosta and Ms. Hall?”

“Objection. Calls for speculation,” says Kline.

“Seems he’s already engaged in it,” I tell the court. “When he assumed that my client and the victim met on the day of her murder.”

“I’ll overrule it,” says Radovich.

“Do you understand the question?” I ask Stobel.

“No.”

“I mean, couldn’t this notation on the calendar refer to some other meeting not necessarily between the defendant and Ms. Hall, but perhaps pertaining to her testimony regarding the defendant in the other case?”

“I don’t know,” he says.

“But you can’t tell us, as you sit here today, that the notation on that calendar, a single cryptic word, ‘Acosta,’ followed by the entry of apparent time, ‘four-thirty,’ did not mean just that.”

“Objection. Speculation.”

“Overruled.”

“Isn’t it possible that Brittany Hall had a meeting with someone else, perhaps someone in your own department, or the prosecutor’s office, or a lawyer that she had hired privately before testifying, to discuss her pending testimony in the other case?”

He gives me a face but does not answer.

“Objection.” Kline tries one more time.

“Overruled.”

Stobel doesn’t want to answer the question.

“As you sit here today, Detective, you cannot testify with certainty and tell us that this is in fact not what that notation means, can you?”

“No.”

“In fact, based on your own advice as a police officer, your testimony previously that you would not advise a witness to meet privately with a suspect in a case, wouldn’t it be more likely that this is what the notation reflects, a meeting with others to discuss this testimony, rather than a meeting with the defendant himself?”

“Objection. That’s complete speculation,” says Kline.

“Sustained as to the probabilities.” Radovich is willing to give me some latitude, but not this. Still, the seed is planted.

I take Stobel over the falls on the lack of other evidence linking Acosta to the crime scene. He concedes that they found no fingerprints, for Acosta or anybody else. From this he concludes only that the killer was meticulous in wiping the place clean.

“With regard to your investigation of the area surrounding the victim’s apartment, did you turn up any witnesses who told you that they saw my client in or about the apartment that afternoon, or evening?”

“No.”

“So you have no fingerprints, and no witnesses at the apartment?”

“No.”

These are points I have promised to deliver on in my opening statement. I avoid the issue of witnesses in the alley where they found Hall’s body. While Kline has delivered nothing concrete by way of statements from the indigent who found her in the trash bin, pushing the issue could lead to one of those questions that is better left alone for now.

“Detective Stobel, among the items of evidence that you took into custody, I believe you found a personal telephone directory belonging to the victim?”

“That’s correct”

“Did you examine that directory?”

“I looked through it.”

Kline has not marked this for identification, so I have the clerk produce it, and have it identified as “Defendant’s One.” I hand it to Stobel, a maroon phone directory, like a million others that can be purchased in any stationery store.

“Is this the directory you found at Brittany Hall’s apartment?”

He pages through it. “It appears to be.”

“Did you examine the handwriting in that directory?”

“Yes.”

“Did it appear to be that of the victim?”

I draw an objection on this, since Stobel is not an expert in the field. Radovich sustains this.

I ask him if the entries in the book appear, in his judgment, to be of the same handwriting as the entry on Hall’s calendar. Another objection, but Radovich rules that such an observation, a comparison as to whether they appear to be similar between two samplers, is within the proper purview of a layman without expertise in handwriting analysis.

“They looked similar,” says Stobel.

“So as far as you were concerned, this was the victim’s phone directory, with the entries in her own hand?”

“I assumed so,” he says.

“Did you notice anything peculiar about the book?”

“I don’t know what you mean.”

“Were any pages missing?”

“Oh. Yes. Several pages,” he says.

“Do you recall which ones?”

He’d made a note on it at the time, and has to refresh his recollection. Then he looks at the book again, turns some pages, and studies the binding.

“The pages for four letters were missing,” he says.

“Four pages?”

“It looks like maybe five,” he says. “The missing pages are for the letters A, I, K, and L. And it looks like there may have been two pages for the letter L.”

“How were these removed?”

“Torn out,” he says. “It looks like they came out cleanly, right at the binding.”

“Did you examine any of the phone numbers in that book?”

“I looked at them.”

“Did you consider any of the people in that book to be possible suspects?”

“Objection as to time,” says Kline. “The question is vague.”

“Sustained.”

“Detective Stobel. At any time during your investigation of the murder of Brittany Hall did you consider any of the people whose names appear in that directory to be suspects in her murder?”

“I don’t know,” he says.

“Well, you were investigating the case, weren’t you?”

“Yes.”

“Did you ever call any of the people in that directory in connection with her murder?”

“Hmm.” He thinks for a moment. “No.”

“Did you ever visit any of them to question them?”

“No.” Then he qualifies. “I don’t think I did. We talked to a lot of people. It’s possible we might have.”

“But you didn’t talk to them because their names were in that book?”

“No.” On this he is sure.

“Can you tell me, Detective Stobel, how many police officers appear in that directory?”

“I don’t know.”

“But you recognized the names of several police officers in it, didn’t you?”

“Yeah.”

“Do you know these people?”

“Yes.”

“May I have it for a moment?”

He hands me the book. I turn a few pages.

“Who is Carl Jenson?”

“A police officer.”

“What division?”

“Vice,” he says.

I turn a few more pages. “Who is Alex Turner?”

“Another officer.”

“Is he assigned to Vice?”

“The last time I looked,” he says.

“Who is Norman Jefferies?”

“Vice officer,” he says.

“And Howard Hoag?” I have saved the best for last.

“Same,” he says.

“Do you know if these officers are currently on active duty with the Capital City Police Department?”

To this I get a howling response from Kline, who is out of his chair. “Objection. Sidebar,” he says.

Radovich waves us over.

“Your Honor, he’s trying to poison the jury,” says Kline. “He knows damn well they are suspended.”

“Maybe the jury needs to know it,” I tell him.

“What’s the relevance?” says Kline.

“That my client was framed, and that these same officers are now attempting to plant evidence of contraband in the home of his lawyer,” I say.

“There’s no evidence of that,” says Kline.

“They are suspended from active duty,” I tell him.

“Pending an investigation,” he says.

“Talk to me,” says Radovich. “I’m the one making the decisions here.”

Kline makes an appeal that evidence of the suspension is irrelevant. That it may mislead the jury.

I counter that police misconduct goes to the heart of our case.

Solomon style, Radovich slices the baby in half. “You can inquire as to the suspension, but not the cause,” he says.

We depart from the bench, each with half a loaf.

“Detective Stobel, can you tell the jury whether these officers, the names I have read to you from the victim’s phone directory, whether they are currently on active duty with the police department?”

“They are under suspension,” he says, “pending investigation.”

I study the faces of the jury. This has an effect, curiosity if nothing else. There is almost a palpable groan from Kline’s table.

“And the names of each of these officers appear in the victim’s telephone directory, in what appears to be her own handwriting?”

“It would appear so,” he says.

“Can you tell me who is Zack Wiley?” I ask.

“He was an officer. Deceased,” says Stobel.

“Was he assigned to Vice?”

“Yes.”

“And how did he die?”

“He was shot to death during a drug raid,” says Stobel.

“And the victim, Brittany Hall, apparently knew him as well.”

“Objection. Calls for speculation. Just because his name appears in the book,” says Kline.

“Sustained. Rephrase it,” says Radovich.

“The dead officer, Zack Wiley’s name appears in the victim’s telephone directory, in her own hand, isn’t that so?”

“Yes.”

“So all of these officers would have known each other if they worked on the same detail in Vice?”

“I assume so,” he says.

“And the victim, Brittany Hall, would have known them because on occasion she worked Vice undercover, as a reserve deputy?”

“Yes.”

“Do you know if she ever socialized with any of these officers?”

“I don’t know.”

“You never asked during your investigation?”

“No.”

“Why not? Wouldn’t that be pertinent information?”

“Not necessarily.”

“Isn’t it possible that Brittany Hall might have been killed by a jealous lover?”

“There was no evidence of that,” he says.

“How would you know if you didn’t ask?”

“We didn’t ask because it seemed purposeless,” he says.

“And you still don’t know whether the victim dated any of the men listed in that little book?”

“No.”

“If she had dated any of them, would you consider that significant?”

“Maybe. It would depend on the circumstances.”

“If she had a date with any of them on the night of the murder, would you consider that significant?”

“Objection. Assumes facts not in evidence,” says Kline. He wants to put an end to this inquiry as quickly as possible.

“Sustained,” says Radovich.

“Do you know, Detective, whether there is an active investigation into the death of Officer Wiley, the officer listed in this little book?”

“I’m going to object to that,” says Kline. “Irrelevant.”

“Not if Brittany Hall knew something about Wiley’s death that others did not want the authorities to know.”

Radovich holds up a hand for me to stop talking, a stern look, and waves us to the side of the bench.

When I get there he’s waiting for me. “Mr. Madriani, I’d appreciate it if you wait to make your point until after I rule on the objection.”

The plain fact is that by then I might not be able to.

“Sorry, Your Honor.”

“Don’t do it again,” he says.

“I want an instruction that the jury is to disregard it,” says Kline. “There is no evidence that she knew anything of the kind.”

Radovich looks to me. “Do you have an offer of proof?” he says.

“She knew some of the officers present at Wiley’s shooting. They show up in her book.”

“So what?” says Kline. “There’s no evidence she knew anything.”

Radovich gives me an arched eyebrow, waiting for more. When it is not forthcoming, he sustains the objection.

“I don’t want to hear anything more about the Wiley investigation unless there is some evidence of linkage,” he says. “Am I clear?”

I give him a grudging nod, and he dismisses us.

“The jury will disregard the last comment of defense counsel, as if you never heard it,” he says. “Do you have any further questions of this witness?”

I confer briefly with Harry, then raise my head. “I think we are done.”

“Maybe we should take a break,” says Radovich.

Then it hits me. “One more question, Your Honor. If I could.”

“One more,” he says.

“Detective Stobel. Do you know why the killer moved Ms. Hall’s body from her apartment to the Dumpster in the alley?”

“We think maybe he panicked,” he says.

“Panicked?” I say.

“People who panic do a lot of crazy things,” he says.

“Yes. They run from the scene. They drop evidence. They may confess to a friend. But they don’t usually take the body with them, unless there is a reason.”

“Is that a question?” says Radovich.

“Do they?” I ask.

The expression on Stobel’s face at this moment is a million unstated answers, none of them sufficiently plausible to justify words.

“I don’t know,” he finally says.

“Thank you.” It is what I thought it would be, a gaping hole in their case, something they cannot answer. If Acosta killed her, why did he move her body?