Cruel Justice

59

WHILE THE WITNESS MOVED to the front of the courtroom, the bailiff set up the television and VCR and positioned them so the jury could watch.

Lieutenant Bickley could’ve been Paglino’s brother—the one who couldn’t get into medical school. He was short, compact, wiry, aggressive. Overcompensating, according to Mike. Mike rarely spoke ill of another police officer, and this was no exception, but Ben still had the distinct impression Bickley was not one of Mike’s favorites.

After the witness’s background and credentials were established, Bullock asked Bickley to recall the night of the murder ten years before.

“Why were you at the crime scene, Detective?”

“When Sergeant Tompkins radioed in, he indicated that he had discovered a homicide. I was the homicide detective on call that night.”

“What did you do when you arrived?”

“First, I conferred with the officers on the scene—Tompkins, Sandstrom, and Morelli. Then I inspected the crime scene. I carefully completed a search of the building and the surrounding grounds.”

“Did you interrogate Leeman Hayes?”

“I tried. He was cuffed to the door when I arrived. I read him his rights again, then asked him what happened. He didn’t respond.”

“What did you do?”

“Well, I realized this case was going to require special attention, so I finished the physical investigation and postponed the questioning for a more formal environment, after I’d had a chance to consult with specialists in … difficult witnesses.”

“When did you resume the questioning?”

“The next day. About twelve hours later.”

“Is there a record of this interrogation?”

“Yes. A videotape.”

“Was it common procedure to tape interrogations ten years ago?”

“No. Matter of fact, we had only obtained the video equipment a few weeks before. The reason I thought to use it in this case was, well, the defendant was not answering our questions verbally, but in some instances, he seemed to be … acting out his answers.”

“You mean, in sign language.”

“No. I don’t think he knew sign language. It was more like … pantomime.”

“You’re saying the defendant was … a mime?”

Ben frowned. Cheap shot, Bullock.

“It’s hard to explain,” Bickley said. “I can probably explain it better if I can show me tape.”

“The tape would assist you in delivering your testimony to the jury?”

“Definitely.”

Bullock had Bickley identify the tape and establish the chain of custody. Then he offered the tape into evidence. Ben renewed his prior objections to the use of the tape, but they were overruled. Bullock requested that the jury be permitted to view the tape. Judge Hawkins consented.

Although Ben wasn’t able to keep the tape from being used at trial, he successfully insisted that the entire tape be shown. No edited versions, no cutting to the good parts. Ben wanted the jury to understand that the pantomime in question wasn’t something Leeman blurted out suddenly; it came only as the product of long, high-pressure, intensive questioning.

Ben had another reason as well, although he would never have admitted it to the judge. The tape showed almost half an hour of fruitless questioning before the critical performance.

Ben hoped that by the time the jury got there, they would be too brain-dead to be horrified.

Unfortunately, this was not to be. From start to finish, the jury seemed fascinated by the tape. Ben supposed it was like being invited backstage—getting to see how confessions are extracted. The climax to the drama came in the form of Leeman reenacting the murder of Maria Alvarez. Although Ben had seen it many times before, it was no less chilling seeing it again.

Through Leeman’s eyes, the jury witnessed the whole terrible crime. They saw Leeman run up to Maria and shove her back against the wall; they saw Maria scream in terror. They saw the club plummet down on Maria’s head, then saw the broken shaft pierce her throat. Worst of all, they saw Leeman’s rage, the expression on his face that seemed to say he was capable of doing anything to anyone.

In the midst of all that, Ben wondered if anyone had noticed the quick quiet moment when Leeman held his palm flat over his eyes. See?

He doubted it. He hadn’t noticed it himself the first two times he viewed the tape.

After the tape was shown, Bullock concluded his examination. Ben raced to the podium.

“Detective Bickley, how long did you question Leeman before you began videotaping?”

“I’m not sure,” Bickley answered.

“Can you give me an estimate?”

“More than two hours.”

“So by the time we get to what you called the pantomime, Leeman had been subject to questioning for almost three hours.”

“I suppose that’s right.”

“And this wasn’t the first time you questioned him, was it?”

“No. This was the afternoon session. We had interrogated him unsuccessfully for about two and a half hours that morning as well.”

“That would be an extremely stressful way to spend the day, don’t you agree?”

“All the proper procedures were followed. He exercised his right to have an attorney present. He even had his father there.”

“And none of that changes in the least the fact that you pounded him with questions for over five hours. Won’t you agree that would be rather stressful?”

“For him or for me? I was doing all the work. He never said a word.”

Ben walked back toward the defendant’s table where Leeman sat. For once, Ben wanted the jury to notice Leeman.

“Detective, you’re aware that Leeman suffers from special learning difficulties, aren’t you?”

“That’s what I’ve been told.”

“Do you have any reason to doubt it?”

“I’m always suspicious when attorneys start making excuses for defendants.” He winked at the jury. “Most of these guys only turn out to be nuts after the lawyers get their hands on them.”

“Are you a psychiatrist, Detective?”

“No.”

“Are you a specialist in learning disabilities?”

“No.”

“Are you any kind of medical doctor?”

“Obviously not.”

“Then I’ll ask you to keep your uninformed opinions to yourself.” Sometimes, a sharp word was better than an objection. “Did you consider having a therapist present at the questioning?”

“I don’t recall that we did.”

“Did you consider consulting a specialist in learning disabilities or special education?”

“Look, our budget is extremely limited—”

“Don’t make excuses, Detective. Did you?”

“No. Look”—Bickley leaned forward, pressing against the outer perimeter of the witness box—“our job isn’t to make the witness as cozy and relaxed as possible, okay? Our job is to get him to talk. And to accomplish that goal, we do what it takes.” He glanced hastily up at the judge. “Within the boundaries of the law, of course.”

“So in other words, you had no intention of giving Leeman a fair shake.”

“My intention was to follow the law to the letter. Which I did. End of story.”

Ben walked to the VCR, grabbed the remote, and ran the tape back to just before Leeman began his protracted reenactment, when he briefly put his hand over his eyes. See?

Ben replayed the snippet three times, until he was certain everyone had observed the action. “Detective, what is the significance of that gesture made by Leeman Hayes before he began the pantomime?”

“The significance? I suppose the sun got in his eyes.”

“The sun? You appear to me to be indoors. In a room with no windows.”

“Okay, the overhead lights then. So?”

“Your testimony is that the overhead lights shone in his eyes for two seconds just before he began the reenactment—and never before or after. Give the jury some credit, Detective.”

“Objection,” Bullock said angrily. “This is argumentative.”

“Agreed,” Hawkins said. “The objection will be sustained. I remind counsel of my previous warning. I meant it.”

Ben decided to take another tack. “Detective, you’ve acknowledged that Leeman was trying to communicate through pantomime, correct?”

“I guess that’s so.”

“And your testimony is based upon your interpretation of some of his gestures, right?”

“Right.”

“To be fair, then, shouldn’t we try to interpret all of his gestures? Not just the ones you find useful.”

“I think I already said—”

“Shouldn’t we be trying to determine what he meant when he put his hand over his eyes?”

Bickley smirked. “I’m more interested in the gestures that came later. Like when he beat the woman over the head with the golf club.”

“That’s your interpretation,” Ben said evenly. “But it’s a pretty selective one, isn’t it? Interpreting the action to which I directed your attention spoils your entire confession theory, doesn’t it?”

“I don’t know what you mean,” Bickley said, but as Ben gazed into the man’s eyes he was certain that he did. He had undoubtedly told Bullock, too. They knew. They both knew. They had known all along.

“When you put your hand over your eyes in that manner,” Ben continued, “you’re communicating that you’re looking. Seeing. Wasn’t Leeman trying to say that this was all something that he saw?”

“I wouldn’t say so, no.”

“Is that because you didn’t take that meaning, or because you don’t want to spoil Mr. Bullock’s case?”

“Objection!” Bullock shouted. He was getting angry, or at least putting on a good show of it.

“Sustained. Counsel, the only reason you’re not in jail right now is that I don’t want to prejudice your client’s rights in the middle of a trial.”

The hell you don’t, Ben thought.

“After the trial, I may not be so generous. If you can’t control yourself, I’ll terminate this examination.”

Ben continued to stare down the witness. Hawkins wouldn’t be jumping all over him if he weren’t close to something. He couldn’t let up now. “Isn’t that what Leeman was trying to say? Isn’t that what he meant? That he was going to reenact for you something that he saw?”

Bickley began to squirm uncomfortably. “How should I know what he was trying to say?”

“Perhaps if you had bothered to consult some people who were trained in this area, you would’ve known.”

“Objection!” Bullock repeated.

Ben ignored him. “Isn’t it true that you didn’t have anyone there for the same reason you didn’t ask anyone about it later. Because you didn’t want an unfavorable interpretation to screw up your airtight case!”

“That’s a crock of—”

“Objection!” Bullock insisted.

The judge leaned forward. “Counsel—”

Ben plowed on ahead. “Isn’t that true, Detective?”

“That’s preposterous. I don’t—”

“Isn’t it true?”

“Look,” Bickley said, almost shouting, “we all saw what we saw! The tape speaks for itself.”

“No it doesn’t!” Ben shouted back. “It doesn’t speak for itself because Leeman can’t speak for himself. He can’t defend himself against people like you who are more interested in getting convictions than getting the truth!”

Judge Hawkins pounded his gavel. “Counsel, I want you to sit down! Now! This examination is over!”

“This is a gross injustice, your honor! They stacked the deck against Leeman ten years ago and they’re still stacking it today.”

The judge continued to pound. “I am commanding you to sit down!”

“But this isn’t a search for the truth! This is a travesty!”

The judge motioned for the sergeant at arms.

“All right, all right,” Ben said, brushing him away. “I’m sitting already.”

The judge relaxed a bit, then drew himself up and spoke to the jury in his most authoritative tone. “You will disregard every word of counsel’s outbursts. In fact, you will disregard his entire cross-examination. I order it stricken from the record. And Mr. Kincaid, we will be discussing disciplinary action at the conclusion of this trial. That’s a promise.”

Ben didn’t doubt it. He didn’t look forward to that, but he had to break through the stone wall Bullock and Hawkins were erecting around his client and try to make the jury see the truth. He probably hadn’t accomplished a damn thing, but it was just possible someone in the jury box heard what he was trying to say. At the least, Ben had forced the jury to focus on the central ambiguity of the tape. With any luck, perhaps he slowed down the Bullock juggernaut. A little bit, anyway.

“Mr. Bullock, any redirect?”

“Yes.” Bullock rose to his feet slowly. Ben had the impression he hadn’t actually prepared anything; he just didn’t want the jury to go home with Ben’s impassioned speech ringing in their heads.

“What happened,” Bullock said finally, “after the defendant finished his reenactment of the murder?”

Bickley twisted his neck and adjusted his tie. “You saw it for yourself. He ran away. Ran into the corner and folded up into a ball.”

“Did you ask any further questions?”

“No. I didn’t see much point.”

“Did you hear anything the defendant said?”

“I don’t think he said anything. But I saw him. I saw the look in his eyes.”

Ben raised his head. This sounded like it was coming dangerously close to opinion testimony rather than fact, but given Ben’s performance a few moments before, he didn’t think the jury would be impressed by any great show of outrage.

“How would you describe his expression? Was he scared?”

“Scared? No, that wasn’t it. Let me tell you, I’ve been on the force for eighteen years, and I know that expression. It isn’t fear. It’s shame.”

“Nothing more,” Bullock said quickly, and sat down.

Hawkins pointedly did not ask Ben if he had any recross. “The witness will step down. Anything further from the prosecution?”

“No, your honor. The prosecution rests.”

“Very well, then we’ll retire for the day. Court will resume at nine o’clock in the morning with the defendant’s first witness. If you gentlemen have any motions you’d like to raise before then, see me in chambers.”

Ben did, of course. He would make the traditional motion for a directed verdict, but it would do no good. Hawkins was a prosecution judge, and even if he wasn’t, the prosecution had met its burden. They proved that a murder had occurred, and gave more than adequate reason to believe Leeman Hayes was the murderer. What’s more, the jury believed it; Ben could see it in their eyes. If Ben was going to turn the jury around, he was going to have to give them some evidence that made them question what they already believed, something that created a reasonable doubt that had not previously cluttered their thoughts.

Ben saw Bullock moving toward the back of the courtroom, where a group of reporters was waiting for him.

“Not yet,” Ben told him. “I’ve got motions to make.”

“Myrna can handle that, I’m sure,” Bullock said, grinning, barely looking back.

The message was clear. Bullock believed he was winning by such a gigantic margin that he could leave his junior assistant to handle Ben’s fruitless motions while he schmoozed the press. In other words, he had nothing to worry about. He thought he had the trial in the bag.

And the terrible thing was, he was right.