The Judge

CHAPTER 30

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.

“Can we ask for immediate disclosure of all of their lab reports?” he says.

“A fair request,” says Radovich.

“And our experts would like to stand in on any further tests that are performed on this evidence.”

“Any objection?” The judge looks at me.

“No, Your Honor, but they are working through the night. As long as there’s no interference.”

“Could we have a split of the evidence? For our own test?”

“We’ll try,” I tell him. “No promises. The lab techs will have to tell me how much they have.”

Kline wants to know where Tony’s unmarked car is now located.

I tell him that it is being held in the police evidence shed, and he instructs Stobel to have their own evidence technicians gather carpet fibers.

In twelve hours he will know everything we know.

This does not solve Kline’s problem. He wants a ruling on whether I will be allowed to impeach my own witness. He argues, at least for the record, that there is no basis.

“There is some,” says Radovich. “Unless somebody borrowed his car, the witness seems to have a considerable indifference toward the truth.

“Let’s see if he has any good explanations,” he says. “Then I will let you know about impeachment.”

In the afternoon Kline passes on cross examination of Tony. As a tactic, he chooses to wait until the final act, since Radovich has told the witness that he is subject to being recalled. Arguillo is not happy about this. He senses something is up, but cannot be sure what. In a break I see him closeted with Lano on a bench, the two men throwing daggers with their eyes at me as I pass.

The rest of the day is consumed with evidence of hair and fibers, our witnesses who pored over Tony’s car. There are magnified photographs on poster board, a score of squiggly lines the size of snakes, talk of cortex and medulla making the proceedings sound like a course in Greek mythology. In the end there is a firm trail of evidence raising questions about Tony’s activities on the night of the murder, or at least the involvement of his vehicle. I bring on a motor pool employee to show that records reveal that Tony had possession of the car that night.

It is not until the following afternoon that Tony is back on the stand.

He looks as if he has slept in his clothes. He has aged a year since yesterday. The swagger and smirk have now departed, and when they peel him away from his pal Lano in the outer corridor to retake the stand, Harry tells me that Tony has the look of a man jettisoned from a lifeboat.

If I had to guess, I suspect that pieces of information have filtered to him, so that by now it is not what he knows, but what he does not know that is the basis of his anxiety.

He is reminded that he is still under oath, and Radovich tells me to proceed.

“Sergeant Arguillo. How are you?”

“Good,” he says, “fine.” His appearance belies this, to say nothing of the attitude he projects from the stand, one of unfiltered belligerence. Tony, with the help of the union, has employed his own lawyer, who raised objections out of the presence of the jury. He told Radovich that my examination of Arguillo violates the attorney-client privilege based on my prior representation of Tony. Radovich ruled that thus far he sees no conflict.

“Sergeant, we’ve talked a little about your activities on July fifteenth, the night that Brittany Hall was killed.”

He confirms that this is so.

“Were you officially on duty that night?”

“Hmm, no,” he says. “It was supposed to be my night off.”

“How was it that you became involved in this case, then?”

“I was downtown and picked up the radio message that a body had been found in the alley. I responded,” he says.

“Do you often do this? Respond to crime scenes on your day off?”

“Depends,” he says.

“On what?”

“What I’m doing. How far away it is.”

“I see. Very civic of you.”

Tony gives me a look of contempt.

“You have told us that you were present in the alley with other officers after the body was discovered. True?”

“That’s right.”

“And that at some point during that evening or the early-morning hours of the following day you were told to report to the victim’s apartment. Correct?”

“Right.”

“You told us that you knew the victim, but that you did not identify her body in the alley that night for the reason that you never got close enough to her for a good look, is that correct?”

“That’s right.”

“That another officer ultimately identified her?”

“Right.”

“Then I take it you never touched the body, or the blanket she was wrapped in that night?”

“Correct.”

“And when you went to her apartment, what were your specific duties? Did you go inside?”

“I did.”

“Did you report to anyone?”

“There was a lieutenant there, Michaelson,” he says.

“You reported to Lieutenant Michaelson?”

“Yeah.”

“And what did he tell you to do?”

“He told me to look around outside. Check windows, look for evidence of a break-in.”

“And did you do this?”

“I did.”

“Now, when you arrived at the apartment, were forensic technicians already there?”

He thinks for a moment. Gives me a shrug. “The log would tell you.”

“I’m asking you if you remember.”

“I think there mighta been. I don’t know. It’s possible.”

“Was there any yellow police tape around the apartment? By the front door?”

“Yeah. It was roped off,” he says.

“So you had to go under this to get in?”

“I don’t remember. I think so.”

I hand him the logbook and ask him if it would refresh his memory as to Forensics and whether they were there when he arrived.

“Sure.”

“Please look,” I tell him.

He scrolls with a finger, wets a thumb and turns a page, then looks at me.

“Yeah, they were already there when I arrived.”

“How many technicians were there?”

He looks again. “Two,” he says. “Sanchez and Sally Swartz.”

“Now that you’ve read the log, do you recall seeing them at the scene?”

“I probably did, but I don’t remember.”

“Where would they have been?”

“Coulda been anywhere. Probably inside,” he says.

“The living room?”

“That’s where it happened,” he says.

“So I take it that if you have no vivid recollection of seeing these forensic technicians at the scene, you did not spend much time in the living room?”

“No.”

“Was this sort of off limits to officers other than forensic technicians?”

Kline can see where I am going with this, closing off avenues of retreat.

“Not exactly,” says Arguillo. “The lieutenant went in there, a few other people. If they had business,” he says.

“But you had no business in there?”

He mulls this for a moment, like a fox eyeing leaves on the forest floor for a trap.

“I don’t remember,” he says.

“Do you remember walking through the area near the coffee table that night? Seeing the blood on the carpet of the living room?”

“I might have,” he says.

“But you don’t remember seeing the forensic technicians?”

“Mighta been afterwards,” he says. “After they left.” He takes a sip of water from a cup on the railing of the witness stand and smiles at me for the first time. Tony is keeping all options open.

“I see. Did you personally gather any evidence from that area of the apartment, in the living room?” I say.

“No.” This is provable and Tony knows it.

“Did you confer with any of the technicians or other officers while they were working in that area?”

“No.”

“Did you take possession of any of the physical evidence that they gathered from that area?”

“No.”

“Then perhaps you can tell us, Sergeant, how the defendant’s own technicians managed to find strands of hair that correspond to the victim’s on the floor in the front seat of your unmarked car?”

Tony’s eyes dart. His Adam’s apple bobs just a little.

“How would I know,” he says. “Coulda picked it up anywhere.”

“Anywhere?”

“Sure. Just walking through her apartment.”

I nod like perhaps this is possible. I have photos on poster boards brought out and mounted on easels in front of the jury box.

“And hairs like these,” I say. “These have been identified as equine. Horse hair, corresponding in all respects to the hair found on the blanket used to wrap the body of the victim and in her apartment. These particular hairs were found on the floor in the front seat of your police vehicle. Do you have any idea how they got there, Sergeant?”

Tony’s giving me the so-what shrug. “Same thing. Probably stuck to my feet as I walked through.”

“As you walked through her apartment?” I say.

“Sure.”

I take up the pointer and position myself in front of the poster-board pictures.

“And this, Sergeant. Do you see this?” I am pointing to other, lighter-colored objects, like rods of gold that have clung to some of the hairs.

“Do you know what these are, Sergeant?”

“Don’t have a clue,” he says.

“They are fibers,” I tell him. “Sixty percent Dacron polyester, forty percent Orion acrylic. The precise composition, character, and color of the blanket used to wrap the victim. Can you tell us, Sergeant, how these fibers came to be found in your vehicle, along with the hair that was on that blanket?”

It is the cumulative nature of this more than any single item that is damning.

“Like I said. I was in that apartment.”

“And there is blood as well. Type A, same as the victim’s, that was found on the carpet of your vehicle.”

“I’m not surprised,” he says. “There’s a lot of blood in police cars.”

“Would you like to wait to see what the DNA reveals?” I ask him.

Tony does not respond to this.

These last two items I had not argued with Radovich in chambers. Technicians had found them, but had not analyzed them at the time of my motion. They were, however, brought into evidence during the testimony of our expert.

“How do you explain the presence of blood and blanket fibers?”

“Like I said, I walked through her apartment.”

“And did you wallow in her blood? Roll on the floor to pick up hair and fibers?” I say.

“Objection,” says Kline.

“No,” says Tony.

“Objection. Move to strike,” says Kline.

“Overruled.”

“But counsel is impeaching his own witness,” he says.

“Overruled. The witness will be deemed hostile,” says Radovich.

I am now free to lead him.

“Isn’t it a fact, Sergeant, that you had a date with the victim, Brittany Hall, on the night of the murder and that you were there in her apartment hours earlier, before police ever discovered her body in that alley? Isn’t it a fact that you killed her?”

“That’s bullshit,” says Tony. Arguillo is up out of his chair.

“Sit down,” says Radovich, “and watch your language.”

“That’s not true,” he says.

“What about the note?”

“It was canceled,” he says.

The instant the words leave his lips, Tony knows he has miscued. It is the problem with lying. You tend to forget which portion of the lie you told to which audience.

“What did you say?” I say.

“Nothing,” he says. “I misunderstood.”

“What was canceled?”

“I misunderstood you.”

“What was it you misunderstood, Sergeant? Which part of your own lie?” I ask.

Kline does not even bother to object. He is left with the fact that the items he could not find in Acosta’s vehicle, the blanket fibers, blood, and the victim’s own hair-that all of these have turned up in Tony’s car.