"Why not?" asks Harry. "You don"t want to be unfair to the defendant do you?"
"No, but I don"t want to get in any trouble either."
"How are you gonna get in trouble?" asks Harry. "Certainly not by telling us the truth."
"Okay, sure," he says. "They had a conversation."
"Did you hear any of it?"
He shakes his head.
"Is that a no?" I ask.
"Crone took her by the arm. Moved her away from the table. I couldn"t hear any of it."
"But you could see it?"
He nods.
"Was it a friendly conversation?"
"Depends on what you mean by "friendly." He didn"t hit her, if that"s what you mean. They had some words."
"An argument?"
"Probably. As I said, I couldn"t hear. They kept their voices down. At least Crone did."
"So he didn"t shout at her?"
"Not that I heard."
"But Kalista, what did she do? Did she raise her voice?"
"Might have," he says. "I can"t remember."
Harry can"t believe our good luck.
"Besides taking her arm to move her away for privacy, did Dr. Crone ever touch Kalista Jordan that evening? Did he put his hands on her?" I ask.
This is how I would couch the question in the courtroom, preface it with a little softening context.
"No. Not that I remember."
I look to Harry to make sure he"s gotten every word, my question verbatim, and Epperson"s response. Harry would be the witness if Epperson says anything different on the stand, merely to verify the accuracy of his notes.
"Would you be willing to give us a signed statement to that effect?" Harry pounces on it.
"I don"t know if I could do that," he says.
"Why not? We"d make it very brief. Just the questions we"ve asked you here. We could call to clarify over the phone if we have anything more."
"Yeah. Right. You call me," he says. "Right now, I have to go."
"There is one more thing," I say.
"What"s that?"
"Those papers. The ones Kali . . ." I"m talking and suddenly I notice that he"s no longer looking at me. Instead his gaze is fixed on something in the distance, over my shoulder.
I turn and see that the elevator"s doors are open. Standing in front of them is Aaron Tash. He is taking a particular interest in the three of us on the other side of the foyer, though he doesn"t make a move to join us.
"Listen, I"m late for my meeting. Gotta go," says Epperson.
"You will give us a signed statement? Under oath?" asks Harry.
Epperson is already halfway to the door. "Call me," he says. With that he is gone, out the door, disappearing onto the sidewalk and around the corner in strides that Harry and I couldn"t match if we ran.
"You"d think we"d come down with a sudden case of the plague," says Harry.
"Yeah." I"m looking at Tash. "I wouldn"t be offering any odds that we"ll catch him at the office.
chapter.
eleven.
a good trial lawyer is a magician, one who excels at the art of misdirection. Tannery is good at this. He has kept us focused on William Epperson in order to distract us. This morning, in the judge"s chambers, he plucks a surprise from his other sleeve.
It is Tannery"s mystery witness, Tanya Jordan, Kalista"s mother. She has been on the prosecution"s witness list for months, we had a.s.sumed for other purposes.
Harry makes the pitch that while the witness may have been disclosed, her testimony, which is now highly prejudicial, was not. "The state is obligated to disclose," he tells the judge.
"I know the law, Mr. Hinds." Coats is not impressed.
We are asking him to exclude the testimony and, from the look on the judge"s face, this may be an uphill battle.
"She was on our witness list," says Tannery. "The defense had every opportunity to approach her to obtain a statement. If they failed . . ."
"How could we obtain a statement? According to your own proffer, she lied to your investigators at least three times before she finally came up with this story."
"That"s a good point," says Coats.
Harry finally scores one.
"We kept after her, and she finally told us the truth," says Tannery.
"Right. You browbeat her until she made up a lie you could live with." Harry turns back to the judge. "Besides, we tried talking with several of their other witnesses and got stonewalled."
"Are you saying that we instructed them not to make disclosures?"
Harry looks at Tannery for a brief instant, frustration etched in the lines on his face. "Yes."
"Do you have evidence?" asks Coats.
"No."
Tannery is smiling.
"That brings us back to the conflicting stories," says the judge. "What about that?"
"It goes to credibility," says Tannery. "They are free to raise it before the jury. Ask the witness why she changed her story."
"What have you told her to say?" says Harry.
"I resent that."
"Gentlemen, please." Coats is getting irritated.
"Mr. Madriani, we haven"t heard from you."
I am shaking my head. "What can I say? This is the ultimate eleventh-hour surprise. A bombsh.e.l.l," I tell him.
"Do you have any suggestions?"
"Exclude it."
"Sure," says Tannery. "What do you expect him to say?"
Harry and I had pa.s.sed on Tanya Jordan for a simple reason. We a.s.sumed she was on the state"s list as a setup, probably a victim-impact witness, somebody they could use if Crone was convicted, to solidify their case in the penalty phase.
According to police reports, except for two brief telephone conversations, she had no contact with her daughter during the month before the killing. I have seen her only once, outside the courtroom. An attractive woman in her late forties. The family resemblance was striking. It was not difficult to imagine this statuesque woman as related to the victim. A neck like a swan, high cheekbones; even in middle age she possessed all the qualities magazine editors might covet in a cover model. And like her daughter, she had opted for other things. She is a teacher at a Michigan high school, a single woman who helped put her only child through college and is now left with nothing but memories. Why she is doing this we can only guess, but bitterness is high on our list of conjecture.
"We were right all along," says Tannery. "It was a crime of pa.s.sion. Admittedly it wasn"t romantic, but pa.s.sion nonetheless."
"What are you saying?" asks Harry.
"Merely that the murder of Kalista Jordan was motivated by emotion, call it rage if you like. In this case, it was racial."
"Now we have a hate crime." Harry is beside himself. "Your Honor, you can"t permit them to do this."
"I admit it should have been charged earlier. We would have asked for a capital sentence, death qualified the jury, but we didn"t know all the facts," says Tannery. "The state is prepared to live with the consequences." This is the bone he is trying to throw Coats to get the evidence in.
Harry points out that it is an empty bag. "You"re not charging it as a hate crime because you can"t. The law is clear on that point. Unless you want to dismiss and start over. And if you dismiss, we"ll argue jeopardy has attached."
"As I said, we"re not interested in recharging. But we want the evidence in." Tannery ignores Harry and makes his argument to the court.
"What evidence? The ranting of a distraught mother who will say anything to convict the man the state says killed her daughter?"
"Again, you can argue that to the jury," says Tannery.
"Mr. Madriani." The judge tries to move around them. "Have you looked at the state"s offer of proof?"
"I"ve scanned it. It was delivered to us only this morning."
"Understood. That isn"t much time. And the court is sensitive to the defense"s need to prepare." This is not a good sign. Coats is trying to fix the problem, patch it up and sail on.
"We only confirmed the information ourselves late last evening," says Tannery.
The judge puts up a hand. He doesn"t want to hear anything more from the state. The judge"s problem is fundamental fairness. Can the defendant, in light of the new evidence, get a fair trial? If not, he has two choices: exclude the evidence or declare a mistrial.
"How much damage does it do to your case?"
I"m not going to discuss theories of defense in front of the prosecutor. Coats knows this. He is merely inquiring as to a general a.s.sessment of damage.
"Try a torpedo below the waterline," says Harry.
"Do you agree?" Coats looks at me.
"It"s a serious matter. I would consider it highly prejudicial."
Coats turns his attention back to Tannery. He walks a fine line. A court on appeal has twenty-twenty hindsight.
"How long have you known about this?"
"As I said, we confirmed it only late last night."
"That"s not what I asked. How long have you had reason to know there was additional incriminating evidence?"
"The witness lied to us. It"s all right there," says Tannery. "We exercised due diligence, but you can"t discover what is being affirmatively withheld by a witness."
Tannery has provided a witness statement, a transcript, a copy to the court and separate copies to Harry and me. We scan these as Tannery pitches the judge.
"The first time we talked to her, she knew nothing. We interviewed her three times, and each time she told us the same thing. It wasn"t until we got an inside tip," says Tannery, "another woman who"d known her back in college, that we got the information. That was two days ago."
"You told us a week ago," says Harry.
"We told you we had a lead, nothing definite," says Tannery.