by Jane Seville
Jack sat up straighter. “How is that relevant?”
“It isn’t,” Brad said, quickly. “But during voir dire he kept asking potential jurors about their attitudes toward gay men, and he seemed to be favoring the ones who disapprove. The real trick will be how the hell he intends to get that mentioned in court, because there’s no way it’s legally relevant, but even if he just asks the question and I object and it’s sustained, even if his question is stricken and the jury is instructed to disregard, he’s still gotten it out there, you know? I really don’t know where he’s going with this. Dragging it in could backfire for him; if he tries to use your sexuality against you there’s a real good chance he’ll just come off looking desperate for anything that might possibly taint you as a witness. I just want you to be prepared.”
“Okay.”
“Attacking your reliability is safer. Carlisle is a big fan of touting the fallibility of cross-racial identifications.”
Jack stared. “Seriously?”
“Believe it or not, the idea has some truth to it. There’ve been several criminological studies that have demonstrated that witnesses have more difficulty distinguishing the facial features of people who are not of their own race. This doesn’t mean that cross-racial identifications are worthless, but it definitely gave defense lawyers a big bag of tools to use against eyewitnesses.”
“But… these defendants—”
“Are Latino, and you’re white, which I know is a bit of a stretch to call them a different race, but I’ll lay odds he’ll try it. He loves to play little courtroom tricks to demonstrate this too. I remember one case he tried—I just heard about this, mind you—where the defendant was a black man and the witness was a middle-aged white woman. He had her turn her back so she couldn’t see what he was doing, and when she turned around again, he’d lined up the defendant with four other black men with the same height, build, haircut, skin tone, and facial hair, wearing the same clothes as the defendant. And she couldn’t pick out the defendant, even though she’d been staring at him for hours sitting at the defense table.”
Jack blinked. “Damn.”
“Yeah, it pretty much destroyed her testimony, even though she’d picked the defendant out of a police lineup. It was a disaster for that prosecutor, who just about blew a blood vessel objecting to this demonstration, but was overruled.”
“Well, he’s not going to get me on something like that. I’m a facial reconstructive surgeon, Brad. I look at faces for a living.”
“I’m counting on that.” Brad was quiet for a moment. “Jack… if he brings up your homosexuality, I will do whatever I can to keep him from pursuing that line of questioning. I’m prepared for several avenues he could go down. But I may have to question you on rebuttal to refute things he’s implied, if they’re allowed to stand. I need to know if you’re okay with that.”
Jack leaned forward. “You do whatever you have to do to make sure that jury believes me, Brad. You have no idea what I’m giving up to be here and sit on that stand.”
“I have an idea.”
“No, you really don’t. So if it becomes necessary to ask me about my sex life, you go right ahead. I didn’t come all this way to have some asshole defense lawyer make it all be for nothing.” Jack sighed. “I just want to get it over with.”
“Well, you’ll get your wish, because I’m calling you after lunch barring catastrophe. I’m going to make it very difficult for him to attack you without looking like an asshole, so hopefully cross will be short and you will be done today.”
Jack couldn’t fathom being done. This testimony had loomed so large and so all-encompassing over him for so long that it had reshaped everything about his life. The idea that it could just be over and done with in one afternoon seemed ludicrous. “Okay. I’ll be ready.”
~~~~~
“Please state your name for the record.”
“John Edward Francisco.”
“And what is your occupation?”
“I’m a maxillofacial surgeon, with a subspecialty in craniofacial surgery.”
Brad smiled, that disarming aw-shucks smile that said I’m just regular folks like you and I don’t get this fancy medical jargon either. “And what is that, exactly?”
“I specialize in facial reconstructive surgery, when there’s been trauma, and also in the correction of birth defects of the face, jaw, and skull.”
“What degrees have you earned?”
“I have a bachelor of science degree from Dartmouth University, a Doctor of Dental Surgery and a Doctor of Medicine degree, both from Ohio State University.”
“So you hold two separate professional degrees, one in dentistry and one in medicine.”
“Yes. A DDS degree is required to specialize in maxillofacial surgery.”
“You went to dental school and medical school?” Brad infused a touch of can-you-believe-how-amazing-this-guy-is? awe into his question, clearly for the jury’s benefit. They did seem pretty impressed.
“Yes, it was a lot of school,” Jack said, smiling a little in what he hoped was a self-deprecating manner. The last thing he wanted was to come off as an arrogant asshole with a God complex.
“And where did you work at the time of the crime, Dr. Francisco?”
“At Johns Hopkins Medical Center.”
“In what capacity?”
“I was an attending surgeon.”
“The victim, Maria Dominguez, also worked at Johns Hopkins, is that correct?”
“Yes. I’m told she worked in physical facilities as part of the cleaning staff.”
“Did you know her?”
“No. I had seen her around, but I didn’t know her by name. It’s a large hospital.”
“Were you aware that her husband, who she was in the process of divorcing, was second cousin to the defendant, Tommy Dominguez, and his brother Raoul?”
“Not at all.”
“The day of Maria’s death, what time did you leave work?”
“Around six-thirty.”
“And where did you go?”
“To the staff parking garage.”
“Why did you go there?”
“To get in my car and go home.”
“Dr. Francisco, please describe what you saw when you entered the parking garage.”
Jack resettled himself in his chair and took a breath. This was it. So far, it had been cake; Brad was easing him into the courtroom setting and establishing his bona fides for the jury. He’d done as instructed and not looked at the defendants or the jury, keeping his eyes on Brad, who stood in front of the prosecutor’s table near the jury box so they had a good look at him. Brad had pragmatically advised Jack to play his looks to the female jurors, if he could do so without seeming smarmy or conceited, but Jack didn’t really know how to do that except to sit up straight, so that’s what he did. “I was about halfway to my car. I had my keys in my hand. There was a van parked against the wall to my right. As I passed behind a retaining wall between me and the van, I heard a struggle. I stopped and looked. There were two men restraining a woman.”
“Did you recognize Maria Dominguez?”
“Not immediately.”
“Please continue.”
“Before I could even open my mouth to call out, one of the men stabbed her here,” he said, putting his hand on his upper chest. “Overhand, like this,” he said, demonstrating.
“Which of the men did the stabbing?”
“The taller one.”
“What did you do when you saw this man stab Maria?”
“I dropped down to a crouch behind the retaining wall, so the men couldn’t see me.”
“Were you frightened?”
“Yes. I was afraid if they knew I’d seen, they’d come and kill me too.”
“What did you do then?”
“I heard car doors open and close, and I heard the car pull out. I looked over the wall and tried to remember the license plate. I called nine-one-one. The woman was lying on the ground by the van
. After the car had gone, I went to her to see if I could render aid.”
“And could you?”
“Her stab wound was very deep and bleeding profusely. I put pressure on it, but there was very little I could do. The police arrived very quickly, and they brought a gurney out of the hospital to take her inside. I told the police what I’d seen, and what I could remember of the license plate.”
“Dr. Francisco, do you see the men who stabbed Maria Dominguez in the courtroom today?”
“Yes, I do.” At this point, Jack swung over and looked at the defendants, seeing their faces for the first time since the day he’d seen them commit murder. It was chilling. They were both staring at him with flat, reptilian eyes, no affect visible on their faces, clean-shaven and wearing good-boy suits. “Those are the men, right there,” he said, pointing.
Brad nodded. “Let the record show that the witness had identified the defendants, Thomas Dominguez and Carlos Alvarez.”
“So noted,” said Judge Petersen.
“Dr. Francisco, just a few more questions. Do you stand to gain anything by testifying here today?”
“No.”
“In fact, your testimony has placed you in considerable danger.”
Carlisle rose. “Objection, Your Honor. The people have introduced no direct evidence that Dr. Francisco’s life has been threatened, by my clients or anyone else.”
“I’ll withdraw the question. Dr. Francisco, what has been your living situation since you witnessed this crime?”
“I’ve been under the protection of the U.S. Marshals’ office.”
“Witness protection, you mean.”
“Yes.”
“In fact you’ve had to give up your career, your home, your friends and family, all for the sake of this testimony.”
Jack sighed. “Yes, that’s true.”
“Thank you, Dr. Francisco. No further questions.” Brad sat down at the prosecutor’s table, giving Jack a small, tight nod of approval.
Rod Carlisle stood up and approached the podium. Jack mentally braced himself, because unlike the questions posed to him by Brad Salie, he didn’t know exactly what to expect.
Carlisle, unlike Brad, looked like a high-powered defense attorney. He was tall and leonine, with a mane of perfectly coiffed silver hair and a Caribbean tan. His clothes were perfect. He took his sweet time getting up and gathering his papers, as if Jack were not worth his haste and the testimony he’d just given was of no consequence. Jack waited patiently, watching him.
Finally, he stood before the witness stand and fixed Jack with a steady gaze. “Dr. Francisco, are you a homosexual?”
Brad shot to his feet as if he’d just been zapped with a cattle prod. “Objection, Your Honor! The witness’s sexual orientation is not relevant!”
Petersen gave Carlisle a withering look. “He has a point, Counselor.”
“Your Honor, we suspect that the witness was distracted in that parking garage, and the relevance of his sexual orientation will be clear in a moment.”
Petersen sighed. “It had better become clear damn quick. Overruled.”
Carlisle turned back to Jack. “Dr. Francisco?”
Jack didn’t allow himself a flinch or a fidget. “Yes, I am.”
“And are you currently in a relationship?”
Jack sighed. “If you’re asking me for a date, Mr. Carlisle, your timing sucks.” The courtroom erupted in laughter, and Carlisle flushed. He turned to the judge.
“Your Honor, I’d ask that you direct the witness to refrain from flippant remarks and answer the question.”
“Dr. Francisco, please answer Mr. Carlisle’s… question,” Petersen said, his distaste for this line of questioning evident.
The problem was that Jack didn’t really know the answer. He knew what he wanted the answer to be, so he went with that. “Yes, I am.”
“Were you at the time of the crime?”
“No, I was not.”
“So, you’ve met someone since you’ve been in… what was the term? Protective custody?”
Brad jumped up again. “Your Honor, is there a relevant question anywhere in our future?”
“Get to the point, Mr. Carlisle.”
Carlisle whirled around in dramatic fashion and faced Jack. “Dr. Francisco, isn’t it true that you had arranged to meet up with a male prostitute in that parking garage?”
Jack was stunned by this blatant fabrication, but was spared answering by the seizure Brad Salie appeared to be having. “Objection!” he boomed, both hands going into the air. “Presumes facts not in evidence! Your Honor, defense counsel has no evidence that such a person ever existed or that such an encounter was ever planned!”
“Sustained.”
Carlisle wasn’t done. “And isn’t it true that you were, in fact, receiving oral sex at the time of the crime and were therefore too distracted to have seen anything at all, let alone my clients murdering anyone?”
“Now he’s just making stuff up!” Brad yelled. The courtroom was awash in shocked murmurings.
Petersen banged his gavel to quiet the hubbub. “Approach!” he barked. The two attorneys approached the bench, but Jack could hear every word.
“Mr. Carlisle, do you have any evidence that Dr. Francisco was thus engaged?” Petersen asked.
“Your Honor, I am entitled to present reasonable theories as to witness reliability.”
“Reasonable theories,” Brad hissed. “No such encounter was planned or executed, Your Honor, and any attempt to insinuate otherwise is an outright lie, and I will have him censured and disbarred for making false and prejudicial accusations! He is not allowed to just invent people and events that never existed!”
“If I am not allowed to question the witness’s reliability then I have grounds for appeal right there,” Carlisle said.
“Don’t you threaten me in my courtroom,” Petersen said. “You will cease this line of questioning immediately and your questions about the witness’s sexuality will be stricken.” He looked at Brad. “This may be grounds for a mistrial, Mr. Salie.”
Jack’s heart sank. Please, don’t ask for a mistrial. I can’t go through this again.
“I know it is, Your Honor, but my witnesses are in enough danger as it is. In fact, I might suspect Mr. Carlisle of intentionally introducing prejudicial lines of questioning hoping to get a mistrial to give his clients more time to bump off the people brave enough to testify against them!”
“Your Honor, this is an outrage—” Carlisle began, but was quickly shushed.
“You’ve said quite enough, Mr. Carlisle. You don’t intend to move for a mistrial, Brad?”
“No, Your Honor, but it still remains that the defense has introduced this idea into the jury’s minds and—”
“I know, Counselor. I’ll deal with it. Dismissed.” Brad and Carlisle returned to their tables and Judge Petersen faced the jury. “Ladies and gentleman, Mr. Carlisle’s questions regarding Dr. Francisco’s sexual orientation will be stricken from the record and I instruct you to disregard them. Further, there has been no evidence submitted to this court that the encounter Mr. Carlisle described ever took place, nor does this court have any reason to think it did. On a personal note I’d like to apologize to Dr. Francisco for having allowed this line of questioning and subjected him to this accusation.”
“Thank you, Your Honor,” Jack said. He glanced at Brad, who nodded, looking grim but determined.
“Mr. Carlisle, if you have any relevant questions for Dr. Francisco, you may continue.”
Carlisle appeared to be totally unruffled by his defeat and went on as if everything was going just how he’d planned. “Dr. Francisco, what is your race, for the record?”
Jack glanced at Brad, who gave him a slight here-we-go eye-roll. “Genetically, there’s no such thing as race,” he said.
“I’ll rephrase. What is your race in the common, non-genetic use of the term?”
“I’m Caucasian.”
“And the defendant
s are Latino, are they not?”
“They are.”
“Dr. Francisco, earlier today we heard testimony from an expert in eyewitness identification who informed us that witnesses often have difficulty accurately identifying people of a different race from their own. Are you familiar with this phenomenon?”
“I am, yes.”
“Do you still maintain that the men you saw murder Maria Dominguez were the defendants?”
“Yes, absolutely.”
“How can you be so positive?”
“Mr. Carlisle, I’m a doctor who specializes in faces, and I have a very good eye for detail. Their ethnicity did not affect my ability to clearly identify them. I am positive that the men I saw are your clients.” That had been a tip from Brad, to refer to the defendants as “your clients” during cross-examination, to subtly reinforce the attorney’s connection to the criminals on trial and his desire to get them off.
“You have a good eye for detail?” Carlisle said.
“I think so, yes.”
Carlisle abruptly turned his back to Jack. “What color are my eyes, then?”
Brad jumped up. “Your Honor, the witness has answered defense counsel’s questions; this demonstration is argumentative and unnecessary.”
Carlisle answered while keeping his back turned. “Witness has touted his eye for detail, I am entitled to test this assertion if we are to accept his identification of the defendants.”
Petersen sighed. “Overruled.”
“Dr. Francisco? We’re waiting.”
Jack smiled. Oral sex in the garage. You asked for this, asshole. “Mr. Carlisle, your eyes appear to be blue. However, the presence of a thin circle of brown around the pupils makes me think they’re probably colored contact lenses. Your eyelashes are unusually short, your lower lip is slightly fuller than your upper, and I suspect you are of Mediterranean descent based on your prominent brow shelf, cleft chin and squared-off jawline. Your earlobes are small and attached and you nicked yourself shaving this morning under the left side of your jaw. You have a small mole on your upper right cheek, a chicken pox scar in almost the same spot on your left, your teeth are veneers, you’ve had a nose job, and I think you’ve had cheek implants too.” He was sorely tempted to add a smart-ass Anything else? but he thought he’d made his point, and rubbing it in would just make him look like a smug jerk.