The Judge

CHAPTER 26

The last witness the State brings on is there for a single purpose, to end their case on a note of melancholy.

It is played for high drama with much fanfare. Coleman Kline excuses himself moments before she arrives in the courtroom. He tells Radovich that the next witness will require special attention. Since he has other business outside of the courtroom Kline has assigned one of his deputies, a woman who he says is specially skilled, to handle the next witness.

He gathers his papers and departs by way of the door through the judge’s chambers, a back route that allows him to avoid the cameras and the throng of press outside. There are several moments of breathless anticipation during which the clerk does not announce the witness by name, this by special arrangement, though those of us involved know who it will be.

All eyes are riveted on the door at the rear of the courtroom. It swings open partially for an instant, then closes again. When it is finally opened again a bailiff leads the way, followed by a small entourage. Hidden in this procession, close to the ground, all three and a half feet of her, is Kimberly Hall. Holding a small stuffed bear under one arm, she trudges down the center aisle. From the hush soon come whispers from the public rows-“Brittany’s little girl.” We have lost this fray, and Kline now makes the most of it. Harry and I had argued vigorously in the noticed hearing that Kimberly could offer nothing approaching probative evidence, but Kline prevailed.

The child was able to testify that she heard loud arguing, a lot of anger before her mother’s death. And while it was the product of Radovich’s leading question, she also identified a male voice as being the other person present with her mother that night. I have renewed my motion to strike this from the transcript of the hearing, a motion that Radovich denied. It could become a point on appeal if she restates this here on the stand.

Still, it is clear that Kline’s purpose in calling this witness is not substantive but tactical. Kimberly is here to remind the jury of the continuing loss inflicted by this crime, that the suffering did not end with her mother’s death. It is a bold play by Kline, and poses some danger for both sides.

Kimberly is guarded by a phalanx of supporters, her grandmother, the psychologist from Child Protective Services, and Julie Hovander, the A.D.A. who has established rapport through months of hand-holding.

They situate the child in the witness box. Her grandmother moves to her seat beyond the bar, out in the public section. The psychologist takes up a position next to Kimberly, just outside the railing to the witness stand, where she can run a hand up the child’s dress and move the kid’s mouth if need be-her version of Punch and Judy.

I object to this, and Radovich after some protestation by the psychologist orders her to take a seat.

“If we need your services,” he tells her, “I’ll be the first to call.”

He draws a glare from the woman, who finally sits down, but inside the bar. She plants herself at the counsel table next to the D.A.

When I object to this, Radovich makes an exception, and tells me to be quiet. We are walking on eggs. He does not want to unnerve the child. Holding her little bear, she sits poised in the box, like an eight-hundred-pound gorilla in a party dress.

Kline and his minions have had months now to hold her hand, to offer suggestions, some perhaps not so subtle. The fear here is that Kimberly will say things she did not during the earlier hearing-the product of coaching. This would place me in the impossible position of having to impeach her with her earlier statements, something that the jury would not appreciate. Acosta could find himself convicted of murder because his lawyer harassed a little girl on the stand.

“What do you think?” he asks me. “Will she stick with her earlier testimony?”

“Who can tell what’s in a child’s mind?” I tell him.

“My thoughts exactly,” he says.

There’s some whispering off the record between Radovich and the child. Broad smiles from the bench. He does not have her sworn but instead asks if she knows the difference between the truth and a lie.

She tells him the truth is what really happened and a lie is something you make up.

“Do you know which one is good?” he says.

“The truth,” she tells him.

“And do you promise to tell us the truth today?”

“Yes,” she says.

“Only the truth. No lies?” says Radovich.

“Yes.”

She is clearly more verbal in her responses than she was months ago at the hearing. I take this as a sign that they have been working with her.

“Your witness,” says Radovich.

Hovander is a plodder, not impressive in her style, but thorough, one of those lawyers who moves two steps forward and three back with each set of questions.

“What’s your bear’s name?” says Hovander. Something to establish trust.

“Hungry,” she says. This is the bear given to her by the police after Binky, the bear from the murder scene, was seized as evidence.

“Why is he called Hungry?”

“Bears are always hungry, and he can’t eat,” she says.

“Well, that’s true,” says Hovander.

Kline has taken the tactical high ground. The chemistry between Hovander and the child is soft, relaxed. Harry, I’m afraid, will not fare so well.

She establishes quickly that a child of five has no concept of time or dates. Kimberly is unable to offer any assistance as to the time of death. All she can say is that when her mother began to argue and make noise it was still light outside.

Hovander fares better on spatial relationships, the geography of the crime scene. This comes in as it did in the earlier hearing. Kimberly was in her bedroom playing when the argument between her mother and whoever killed her started. It appears to have escalated quickly so that within what was probably no more than a couple of minutes the child became frightened by the volume of voices and something being thrown in the living room, then she slipped down the hall and into the closet.

“Did you see anything?” says Hovander.

To this she gets a shaking head, stern and adamant. The record is left to reflect that she did not.

“Did you see the other person there with your mother that night?”

“No.”

“But you heard his voice?”

“Objection.” Harry is doing this. We have decided that he will take the cross examination of the child. Harry hasn’t been told why I suggested this, but I think he has guessed. Ever since Kimberly identified me as having been there that night, I have not wanted to tempt fate. In fact, I had considered absenting myself today, but decided to risk it. If I were not here, Acosta would ask questions.

“On what grounds do you object?” says Radovich.

“Assumes facts not in evidence,” says Harry. “The gender of the other person that night.”

“Sustained.”

“Kimberly, did you hear another voice that night besides your mother?” says Hovander.

She nods.

Radovich does the honors on this, directing the court reporter as to how the record should read.

“Was it a man’s voice or a lady’s voice?”

“A man.” She says this without hesitation, so that now I can assume whether true or not, she believes it. The power of suggestion.

There is some confusion here as the child alters her story several times, but the essentials are fixed. At some point after the fatal argument, Kimberly emerged from the closet and found her mother’s lifeless body on the floor, blood all around.

“I tried to wake her up,” she says. “But I couldn’t. So I got Binky.”

“Binky is your stuffed bear?” says Hovander.

“Uh huh.”

“And where did you find Binky?”

“By Mommy. On the floor.”

“What was Binky doing by Mommy?”

“I put him on the table when I came home from the baby-sitter.”

“Do you remember what time you came home from the baby-sitter?”

Kimberly looks at the ceiling, a screwed-up expression on her face. “I think it was ten o’clock. Maybe it was eight.” She pulls numbers from the air, leaving us to wonder if she is confusing the time with the size of a shoe or the age of a friend. To children of this age numbers are meaningless, and all interchangeable.

Hovander tries to square this away. Earlier testimony has already established that Brittany picked up her daughter from the baby-sitter just after five, and probably arrived back home sometime between five-thirty and six. She had been home from work earlier in the day, having taken the afternoon off for some unknown reason.

“So you got Binky, and then what did you do?”

“I sat down with Mommy,” she says. “I tried to wake her up. But I couldn’t.”

There are haunted expressions on the faces of several jurors. The mental image of a child sitting on the floor beside the body of her dead mother, her only comfort the synthetic fur of a stuffed animal, does not conjure thoughts of clemency.

“After that did you go back to the closet?”

She nods her head. “I took Binky.”

“Why? Why did you go back to the closet?”

“’Cuz I heard him coming,” she says.

“Who?”

“The man who hurt Mommy.”

“Where was he coming from?”

“Outside,” she says. “He opened the door.”

“Did he see you?”

She shakes her head, wonder in her eyes, perhaps puzzled herself how he could have missed her.

“I ran,” she says.

“Were you scared?”

The child offers a succession of large nods.

“Did you think this person would hurt you?”

“Yes. ’Cuz he hurt Mommy.”

“Objection. Calls for speculation,” says Harry.

“Sustained. The jury will disregard,” says Radovich. It is not likely.

Hovander is turning the screws, jurors on the edge of their seats. The tactic here is to plumb the fears of the child, to leave the clear supposition that Acosta, who had killed her mother, would have had no choice but to dispatch the child if he’d known she was there. Indictment for a crime not committed.

“Did you see this man when he came back?”

“His shoes,” she says. “They were black and shiny.”

At this moment every eye in the jury box is under our table. I am tempted to look myself, but exercise restraint.

“Did you see this man’s face?”

She shakes her head.

“How did you see his shoes?”

“He walked down the hall to Mommy’s room. I saw his feet go by.”

“By the closet where you were hiding?”

She nods. “The door was open.”

“All the way?”

“A little bit,” she says.

“So you hid in the closet again when you heard the man come back?”

“Binky and me, we got in the closet. Fast,” she says.

“And you stayed there?”

A big nod.

“Do you know how long you were in the closet?”

“A long time,” she says. “He came and went, and then he came and he went again,” she says.

“So that we get this right,” says Hovander. “The man came back more than once?”

Kimberly gives the lawyer a big nod. Now I am confused. This is the first we are hearing of any of this. At first I think Kimberly is embellishing, and then it hits me. The child is telling the truth. The first intruder no doubt was the killer, coming back for the body. The second was the sound of Lenore and me.

“Do you know what the man was doing when he came back?”

She shakes her head. “I stayed in the closet a long time. And when I came out Mommy was gone.”

“Then what did you do?”

Kimberly looks for a moment at the jury, then she says, “I came out of the closet and I fed Binky.”

“Did you hear anything while you were in the closet?”

For a moment she is stone still in the witness box.

“Sweetheart, did you hear something?”

“Mommy,” she says.

“You heard Mommy?”

There is a rustle through the jury box, murmuring in the audience.

Kimberly nods. “She hollered,” says the child. “Just after the man came back the first time.”

Acosta and I look at each other. Harry is mystified. Then it finally dawns on me. My gaze makes contact with Radovich up on the bench in the instant that he comes to the same conclusion. The child, huddled in the dark closet, holding her bear, had heard her mother’s call from beyond the veil, what the coroner had attested to on the stand-Brittany Hall’s death rattle.

Following a brief recess, Hovander takes a different tack, a few preliminaries. She has the child identify Binky, her stuffed bear, which is sitting on the evidence cart. They get into it when Kimberly demands this back. Harry seems bemused by the specter of a prosecutor in a tug-of-war with a five-year-old over a stuffed toy.

Hovander tries to move on, and the child won’t let her. At one point Kimberly actually turns to the judge up on the bench and demands to know if Binky is in jail. Radovich doesn’t know what to say. Finally he tells Hovander to let her have it for a while. This results in a bench conference, three lawyers and the judge, how to dig yourself a hole.

“The toy has her mother’s blood on it,” says Hovander. “The child would require rubber gloves. There are health concerns.” Hovander won’t take the responsibility.

Harry objects to the gloves as a negative image in front of the jury. Something else that the prosecution can psychically hang on Acosta.

“Then you tell her she can’t have it back,” says Hovander.

“You got into it,” says Harry. “You get out.”

“This is getting us nowhere,” says Radovich. He calls in the troops. The shrink gets the dirty detail. She dons surgical gloves, gets Binky off the evidence cart, and approaches Kimberly on the stand. We return to our tables, the judge to the bench.

There are several seconds of whispering as the shrink talks to the child, efforts at some reasoned solution. All the while the child is a bundle of nervous gestures, tugging on the sleeve of her dress, then pulling on one of the heart-shaped buttons on the front until she tears this off.

Just as we start to think that she has resolved this crisis, Kimberly in a full voice demands to know if Binky is sick.

“What have you done to him?” She turns this on Radovich. “You’re not taking care of him.”

The judge has his palms turned up, shrugging shoulders under black robes, as if to say it’s not his fault.

It is comic relief. Even Acosta is laughing.

By now the psychologist is leaning over the witness railing, trying to get Kimberly’s attention. Before she can react, Kimberly turns on her and snatches the bear from her hands. She hugs it to her body and withdraws in the box, out of the chair, and into a corner where she cannot be reached. A stark look on the shrink’s face. Who would think a kid would be so quick?

She reaches over and tries to take it away from Kimberly, and there is a scream heard around the courtroom, something to pierce every eardrum. Hysterics in the witness box, tears and lashing little fingers.

By this time Kimberly’s grandmother is coming through the gate railing like mama bear protecting her own. She is followed by a bailiff who is trying to grab her.

Radovich calls him off.

“Enough,” says the judge. “Leave her alone. She can have the bear. You sit down.” He’s looking at the psychologist.

“You can stay,” he tells Grandma.

It takes several minutes, during which the jury is let out, of her grandmother holding her before the child stops crying. By now they are both seated in the witness box, the child on her grandmother’s lap, Binky in her arms. At one point she pets the toy as if it were alive and then, talking to it, feeds it the button torn from her dress. This disappears into the bear’s mouth, and when she removes her fingers the button is gone.

Hovander approaches the stand to talk. I can’t hear the conversation, but it’s animated, a lot of smiles and laughter between the child, grandmother, and the lawyer, who is busy repairing trust.

Once it is clear that Kimberly has calmed down, the jury is brought back in and Grandma’s off the stand. Hovander and Kimberly are friends again now that the witness has both bears.

“You know you still have to tell the truth.” Radovich is looking over his glasses at the little girl.

“Uh huh.”

“Go ahead,” he tells Hovander.

“Kimberly. Earlier you told us that you heard a man’s voice the night your mommy was hurt. Do you remember that?”

She nods.

“Do you think you might recognize that voice if you heard it again?”

“I might,” she says, a lilting voice.

This has been thrashed out behind closed doors, after much argument in chambers. Hovander wants to have Acosta speak, presumably angry words that the child heard that night, to see if she can recognize his voice.

We have argued that this is impossible, given the suggestive nature of such a test with a child so young, though there is no Fifth Amendment issue here. The courts have held that voice identification is not testimonial, but more in the nature of taking blood, or lifting fingerprints.

Radovich, always one to search for the middle ground, has ordered that the prosecution is entitled to a voice sample on tape, but with no words spoken in anger. He reasons that this will neutralize the suggestive nature of the exercise. There will be three separate voices, one selected by the state, one by us, and the defendant sandwiched in between. We have picked a Latino, a paralegal with another firm who is a baritone like Acosta, with similar Hispanic intonations.

They set up the equipment and Hovander tells Kimberly to listen carefully. They play the first voice.

It is high pitched, almost nasal, such that you might not recognize it as a man’s voice. “Hello, Kimberly. Do you know my voice?” It’s all it says.

Hovander tells her not to answer yet, but to listen to the other two.

Acosta is next, reading the same text. Then our ringer.

Kimberly sits dazed in the box, the first time that I have seen real pressure exhibited in her expression.

“Do you recognize any of them?” says Hovander.

She shakes her head.

“Do you want to hear them again?”

Harry is looking at me wondering whether he should object.

Radovich orders it played one more time.

They do it.

“Do you recognize any of them now?” says Hovander.

The balance of life hanging on the whim of a little child. Acosta sitting next to me. I grip his arm under the table.

Radovich, realizing the stakes, tells her not to guess. “Answer only if you recognize a voice,” he says.

She makes a face, something you might see when your kid is trying to figure which hand the candy is in. “The last two,” she finally says.

Hovander has a look of victory. “Maybe we could play the last two,” she says.

Harry objects. Radovich overrules him.

The clerk plays with a headset, screening out the first voice so that this time Acosta leads off. I watch as a rivulet of sweat makes its way down his cheek and finally drips from his chin onto the table.

“Do you recognize either of the voices?” says Hovander.

The prominent position of Acosta’s words up front on the tape has me worried. First impressions with a child are strong.

“I think it’s him,” she says.

Acosta’s head does a double take, first toward me, then Harry.

“Which one?” says Hovander.

A desperate look from the child, as though she doesn’t understand the question. She thought she was done. Then it settles on us. She thinks both voices are the same man.

Hovander tries to argue that the witness has selected one of them, and wants to clarify with a follow-up question. Radovich tells her no and leans over the bench.

“Kimberly. How many voices do you think are on the tape?”

She looks out at her grandmother, anxious for help.

“There’s no need to be afraid,” says Radovich. “If you don’t know you can just say you don’t know.”

“I don’t know.” Kimberly leaps on this like a lifeboat.

Acosta turns to Jell-O in his seat.

Radovich calls a sidebar. We all attend, leaving Acosta backed up by guards at the table. The court reporter muscles in with us.

“She’s confused,” says the judge. “I’m not inclined to let this go on.”

“Just a couple more questions?” says Hovander.

“This ain’t right,” says Harry. “Given the pressure, she’ll say whatever she thinks we want to hear. She couldn’t even tell how many voices were on the tape.”

“That’s because you guys played games,” says Hovander.

“Yeah, and your guy needed Preparation H for his adenoids,” says Harry.

“People.” Radovich in command. “This isn’t getting us anywhere.”

“If I could ask just a couple more questions?” says Hovander.

“What do you want to ask?” he says.

“If she recognizes either of the two voices played last on the tape.”

“She already said she only heard one voice,” says Harry.

“We should be allowed to clarify the point,” says Hovander.

“Right,” says Harry. “Then, when you get her to understand that there are two voices on that tape, you can do eanie, meanie, minie, mo. This is no way to determine the truth.”

“That’s what I’m afraid of,” says Radovich.

Harry tells Radovich he wants to voir dire the witness on her voice-identification skills. Hovander objects, but the judge finds it a fair request. We break up and Harry is left standing in front of the witness box.

Kimberly looks at him, uncertain what to make of this new development.

“Kimberly, I’m Mr. Hinds. How do you do?”

She looks at him but does not respond.

“Do you recognize my voice, Kimberly? Do I sound like the voice you heard that night?”

A new adult now confronting her, a new threat. Kimberly nods.

“My voice sounds like the voice you heard that night?”

More nodding.

“Do you remember hearing the judge’s voice?” Harry points at Judge Radovich.

She nods.

“Does he sound like the voice you heard that night?”

This time she shakes her head.

“If I could, Your Honor, one more sample?”

Radovich motions Harry to proceed.

He looks over at me and tells me to stand up. At this moment I could kill him.

“Stand up,” he says.

I do it.

“Say something.”

I am covered with expressions of contempt for Harry at this moment.

“Say something.”

“Do you recognize my voice, Kimberly?”

Before I have completed the sentence she is nodding vigorously, shrinking into her chair.

“There you have it,” says Harry.

We’re back to the sidebar. This time Radovich has called the psychologist to join us.

“If she knows the voice and is not threatened by it, it doesn’t sound like the voice she heard that night. If she doesn’t know it, it does.” Harry’s school of psychology. “It has more to do with her comfort factor than what she heard or remembers,” he says.

“What do you think?” Radovich asks the psychologist.

“I agree. Seems to be what’s going on.”

“This is not going any further,” says Radovich. “Do you have another line of questions for the witness?” he asks Hovander.

“Nothing else,” she says.

“Do you have anything?” he asks Harry.

We confer off to the side, Harry and I.

“We’re not likely to score points beating up some little kid,” says Harry. “So far she hasn’t hurt us, but that could change anytime.”

I agree.

“Besides,” he says. “You seem to have a problem with her.” Harry gives me one of his enigmatic smiles, reading my mind.

Before I can open my mouth in protest, some bullshit that Harry can smell coming, he says, “Why tempt fate?”

“We have nothing for the witness,” he tells Radovich.

“Good,” says the judge. He climbs back on the bench.

“We’re going to take the noon break,” he announces. “The witness is excused. There’s no need for her to come back,” he tells the grandmother.

The jury seems relieved by this news. They are admonished by the judge, instructions not to talk about the case, and excused for the day. Radovich has other business this afternoon.

We wander away, Harry and I, back to the table.

“That was not too bad,” says Acosta.

“We dodged a bullet,” I tell him.

Harry is looking at him as if perhaps the child knew what she was saying, that Acosta’s voice is what she heard that night. Harry has never fully boarded this train that is the defense.

Someone, one of the clerks, has given Kimberly some jelly beans. It seems they are trying to coax Binky away, to put him back on the evidence cart. The child wants to take the animal home.

When I look over my shoulder I notice that Kline has completed his business outside of court. He is huddled near the back of the room, conferring with Hovander, a briefing on the morning’s developments, trying to determine how much damage they have done to us.

As I study them, Hovander is watching the antics at the witness stand, laughing. Two clerks and a bailiff are trying to reason with Kimberly. They are locked in a contest over the bear, which must go back on the evidence cart. More jelly beans are in the offing. The child stuffs two of these into the bear’s mouth.

The only one not laughing by this point is Kline. As they say, “perhaps you had to be there.” Like the only sober man in a party of drunks, he stands stone-faced, mesmerized, and listening to the laughter as tiny fingers and candy disappear into the furry confines of the little animal.