“Did you hear him say anything?”
“No.”
“Did you see anyone shoot Mr. Tho?”
“No.”
Good. “Mr. Jones, were you aware that the owner of the store, Mr. Ortega Cruz, kept an AR-15 rifle behind the counter?”
“Yes.”
“Do you know if he still keeps a weapon in the store?”
“Yes. A Glock.”
“How do you know?”
“He’s shown it to me on several occasions.”
“Did he ever threaten you?”
Jones paused. “Not really.”
“Could you please be more specific?”
“One time, he was angry because I had arrived late. He told me that if it happened again, he would use the gun on me.”
“No further questions.”
Erickson addressed Jones from the prosecution table. “When Mr. Cruz said that he would use the gun on you if you were late again, was it your belief that he was serious?”
“No.”
“You also said that you didn’t hear Mr. Tho say anything when he entered the store.”
“Correct.”
“Is it possible that Mr. Tho said something to Mr. Cruz without you having heard it?”
“Objection. Speculation.”
“Sustained.”
“In fact, he might have threatened Mr. Cruz, right?”
“Objection. Speculation.”
“Sustained.”
“No further questions.”
Judge McDaniel looked at me. “We’re in recess for lunch, Mr. Daley. We’ll resume at two o’clock.”
“Yes, Your Honor.”
We were scoring points and perhaps giving the jury some evidence of reasonable doubt, but we hadn’t come up with a silver bullet that would get us an acquittal. Trial work was an all-or-nothing deal. In the grand scheme of things, we were getting killed.
53
“WE’RE DONE”
Thomas stared at his uneaten turkey sandwich. “We’re done, aren’t we?”
“We’re still in the game,” I said.
Thomas, his mother, Rolanda, Rosie, and I were sitting inside a consultation room down the hall from Judge McDaniel’s courtroom. Our lunches were untouched.
I kept my tone even. “The jury is listening. We’re scoring points.”
“Not enough.”
“We aren’t finished.”
His voice filled with frustration. “We need more than a hired gun to testify that it’s theoretically possible that somebody other than Ortega Cruz fired the shots.”
“We’ve cast doubt on whether Cruz killed Tho.”
“He admitted it.”
“We’re showing that he might have been trying to protect somebody.”
“It doesn’t prove anything.”
“We don’t need to prove it. We just need to provide enough evidence to convince one juror to vote for acquittal.”
“They aren’t buying it.”
“I disagree.” I wasn’t sure if I was trying to convince my great-nephew or myself.
“What makes you think that the testimony from Jones did any good? You just got him to say that he didn’t hear anything.”
“It mitigates the self-defense claim.”
“He was in the back of the store. The fact that he didn’t hear anything doesn’t prove that Tho didn’t threaten Cruz.”
“It’s hard to prove a negative—especially since we have two corroborating witnesses.”
Melinda spoke up in her son’s defense. “You need to prove that somebody else shot Tho.”
“That’s going to be very hard.”
“Then you have to show that Tho didn’t threaten Cruz. That’s our defense, right?”
“We’re putting the lipreading expert on later this afternoon. She’ll testify that Tho never threatened Cruz. We’re also going to show that Cruz is trigger happy and has a bad temper. If we can convince the jury that he acted unilaterally, then he had the necessary criminal intent to be charged with murder or voluntary manslaughter. If Cruz had criminal intent on his own, it can’t be imputed to Thomas.”
“You’re saying that we need to prove that Cruz is guilty of murder?”
“We don’t need to prove it beyond a reasonable doubt. We just need to convince one juror that it’s a reasonable possibility.”
“Anything else?”
“We’re going to put up Brian Holton.”
“The homeless guy? What on earth for?”
“He’ll testify that Cruz threatened him several times.”
“You realize that he isn’t the most credible witness in the world.”
“We do.”
“Then what?”
“We’ll put Cruz on the stand and see if we can shake him.”
* * *
“This isn’t going well,” Rosie observed.
“No, it isn’t,” I said.
We were standing in the otherwise-empty corridor outside Judge McDaniel’s courtroom.
“Thomas and his mother are scared,” she said.
“Can’t blame them.”
“You got anything left?”
“We’ve got a couple of rabbits left in our hat.”
“Really?”
I answered her honestly. “No.”
“Are you really going to have the homeless guy testify?”
“Yes.”
“Then what?”
“I’ll go after Ortega Cruz.”
Rosie was about to respond when a red-faced Jerry Edwards came strolling up the hallway, unlit cigarette in his hand. “Care to comment on your trial?”
“Nope.”
“From where I’ve been sitting, it doesn’t look like things are going so well for your side.”
“No comment, Jerry.”
“You got anything besides smoke and mirrors?”
Not really. “We have a couple more witnesses.”
“You think it will make any difference?”
Probably not. “Yes.”
He pulled the sleeve of his thread-bare suit jacket. “Still glad you took this case?”
“Yes. Still think we’re giving my great-nephew special treatment?”
“No.”
* * *
Pete’s tone was hushed. “Where are you, Mick?”
“My auxiliary office.”
“The men’s room?”
“Yeah.”
“Which stall?”
“Pete, I need to get back to court.”
“Which stall, Mick?”
“Number three.”
“Good. You’ve always done your best work in stall number three.”
“I don’t have time for this.”
His tone turned serious. “Who’s up next?”
“Our lipreading expert followed by the Lion of the Loin.”
“Anybody else?”
“Ortega Cruz.”
“See if you can slow-walk them through their testimony.”
My pulse started to race. “You got something that we can use?”
“I don’t know yet.”
54
“WATCH HIS MOUTH”
The willowy African-American woman with the hoop-style earrings and Hillary Clinton pantsuit leaned forward in the witness box and spoke with understated authority. “My name is Dr. Candace Greene.”
Rolanda nodded. “What is your area of expertise, Dr. Greene?”
“Children with hearing disabilities.”
“Would that include knowledge in the science of lipreading?”
“Yes.”
Rosie’s college classmate had grown up in the projects at Hunters Point. She was the youngest of four daughters of a single mother.
“Where did you go to college?” Rolanda asked.
“San Francisco State. My undergraduate degree was in psychology. I also earned my teaching credential there.”
“You have several advanced degrees, don’t you?”
“I have a master’s and a Ph.D
. in special education from UCLA.”
Erickson got to his feet. “Your Honor, we will stipulate that Dr. Greene is an expert in the field of lipreading.”
Rolanda wasn’t satisfied. “Are you also prepared to stipulate that Dr. Greene is a nationally recognized authority in her field?”
“Yes.”
“Thank you.” She turned to the judge. “Your Honor, we respectfully request permission for Dr. Greene to leave the witness box so that she can point out certain items in the security video.”
“That’s fine.”
As Greene left the stand and took her place in front of the TV monitor, I opened my laptop and cued the security video.
“Dr. Greene,” Rolanda said, “are you familiar with the security video taken at Alcatraz Liquors at ten-forty-seven on the night of December fourteenth of last year?”
“Yes.”
“Would you mind if we showed you that film one more time to refresh your memory?”
“Certainly.”
Actually, Rolanda wanted to refresh the jury’s memory.
Rolanda pointed at me and I played the video. Tho walked into the store and turned to his right. His mouth opened for an instant. His eyes opened wide. His chest exploded. I stopped the video. At Rolanda’s request, I re-ran it in super-slow-motion.
Rolanda turned back to Greene. “You’ve had a chance to review this film in detail?”
“I have.”
“And you’ve had an opportunity to study Mr. Tho’s movements?”
“Yes.”
“In particular, you were able to study the movements of his mouth in both real time and slow-motion?”
“Yes.”
“Does it appear to you that Mr. Tho said something?”
“Possibly.”
“Based upon your expert knowledge as a lipreader, what did he say?”
“I don’t know.”
“I beg your pardon?”
Greene shot a conspiratorial glance at the jury. “I don’t know,” she repeated.
Rolanda pretended that she hadn’t anticipated the answer. “I don’t understand. You’re a nationally recognized expert at lipreading.”
“It’s much more of an art than an exact science.”
“How so?”
“A lot depends upon context and environment. It helps if you’re in a well-lit room and you can see the speaker head-on. It becomes much more difficult if the speaker is moving. Good lipreaders also study body language. In addition, many words and letters look similar. For example, without context, it is almost impossible to distinguish the letter ‘B’ from the letter ‘P.’”
“How much can a competent lipreader discern?”
“Between thirty and forty percent of what’s being said. A highly trained lipreader can distinguish between forty and fifty percent.”
“What about an expert?”
“There is some evidence that a small percentage of lipreaders can identify as much as ninety percent.”
“You’re an expert. What percentage can you identify by sight alone?”
“Under ideal conditions, between fifty and sixty percent.”
Rolanda feigned disappointment. “Let’s look at this video once more in slow motion.”
Greene stood in front of the TV. “Would it be possible for me to control the video this time? It will make it easier for me to point out certain things.”
“No objection,” Erickson said.
I handed Greene the remote. She pressed the start button, then stopped the video almost immediately. “This is where Mr. Tho walked into the store. Notice that his mouth is closed. He hasn’t said anything yet.”
She advanced the video a little further and stopped it again. “This is where Mr. Tho turns toward the counter. Since the camera is above the register, we have a good view of his mouth, although his face is somewhat in the shadows.” She ran it a little more and used her hand to circle Tho’s mouth. “Here Mr. Tho has opened his mouth. It almost looks as if he’s smiling.” She advanced it a little more. “You can see that his mouth was still open when the shooting started.”
“What did he say?”
“I don’t know. His mouth was in a position where he could have said ‘Hi.’ Or he might have said ‘Ah.’ Or he might have said nothing.”
“Can you tell whether he said more than one word?”
“No.”
“Is it possible to determine whether he uttered more than one syllable?”
“Based upon the shape of his mouth and the positions of his lips and tongue, no.”
“Based upon your experience as an expert lipreader, what do you think he said?”
“I don’t know.”
“Would you care to hazard an educated guess?”
“I’m afraid that’s impossible.”
Rolanda glanced at the jury. No discernable reaction. She turned back to Greene. “Have you reviewed the police reports relating to the events at Alcatraz Liquors on the night of December fourteenth of last year?”
“Yes.”
“Are you aware that the owner of the store, Mr. Ortega Cruz, told the police that Mr. Tho entered his store and demanded money?”
“Yes.”
“Are you also aware that Mr. Cruz’s son and nephew also told the police that Mr. Tho demanded money?”
“Yes.”
“Based upon the video evidence, do you think that Mr. Tho did so?”
Greene’s tone was emphatic. “No.”
“How do you know?”
“Watch his mouth.” Greene restarted the video and played it until the end. “Now watch my mouth when I say the word ‘money.’” She faced the jury and enunciated each syllable. “When I said the word ‘money,’ I pressed my lips together. It’s the only way that you can make the sound of the letter ‘M.’ When Mr. Tho walked into the store, he opened his mouth, but he didn’t press his lips together.”
“Is it therefore your expert opinion that Mr. Tho did not say the word ‘money’ when he entered the store?”
“Yes. I would go further to say that he didn’t say any word containing the letters ‘M,’ ‘B,’ or ‘P.’”
“No further questions, Your Honor.”
“Cross exam, Mr. Erickson?”
“Yes.” He approached Greene. “You said that even an expert lipreader can only discern forty to fifty percent of what’s been spoken.”
“Correct.”
“That means that your ability to determine what Mr. Tho said has about a fifty-fifty proposition, right?”
“Yes, but —,”
Erickson stopped her. “No further questions.”
Rolanda was up immediately. “Mr. Erickson didn’t allow Dr. Greene to finish her answer.”
The judge nodded. “Did you wish to add something, Dr. Greene?”
“Yes. Your Honor. While it is true that I can distinguish only about half of the words spoken, I can distinguish certain sounds with almost one hundred percent certainty. I was able to determine that Mr. Tho did not say any words containing the letter ‘M.’”
“Thank you, Dr. Greene. Anything else, Mr. Erickson?”
Erickson scowled. “Just one more question. Dr. Greene, isn’t it possible that Mr. Tho’s manner of speaking and diction habits might have made it more difficult for you to discern not only the words that he was saying, but certain sounds that he might have made?”
“Yes.”
“Including the question of whether he said any words containing the letter ‘M’?”
“Yes. It’s also possible that Mr. Tho was a professional ventriloquist, in which case he would have had special training to say many words without moving his lips or mouth. In such circumstances, I wouldn’t have been able to read his lips.”
Erickson had the good judgment to leave it there. “No further questions, Your Honor.”
Judge McDaniel looked at her watch. “I think we have time for one more witness this afternoon, Ms. Fernandez.”
“The defense calls Brian Hol
ton.”
The Lion of the Loin was going to get his moment in the sun.
55
“HE WANTED TO SEND A MESSAGE”
The Lion of the Loin unbuttoned the jacket of the double-breasted suit that he had chosen from the donated clothing closet at the P.D.’s Office. I had lobbied for something more subdued, but he had insisted on a flashier look with pinstripes and wide lapels. He spoke in a measured tone. “My name is Brian Holton.”
Rolanda stood in front of the witness box. “What is your occupation?”
“I’m retired.”
Don’t get cute.
Cleanly shaved with a fresh haircut, Holton looked more like a mid-level government bureaucrat than a homeless guy. He was also reasonably well rested. We had rented him a room at the Holiday Inn on Tenth Street near City Hall, where we had assigned one of Pete’s operatives to babysit him. Holton had tried to escape only once. The shopping cart with his belongings was parked safely inside Pete’s garage in Marin. We had also provided him with ten crisp twenty-dollar bills. He would receive an additional installment at the end of his testimony if he followed Rolanda’s lead.
Rolanda was all business. “Were you standing outside Alcatraz Liquors at ten-forty-seven p.m. on the evening of December fourteenth of last year?”
“Yes.”
“Did you see a man named Duc Tho enter the store?”
“Yes.”
“Had you ever seen him before?”
“A couple of times.”
“Had you ever seen him carry a weapon?”
“No.”
“Was he carrying a weapon that night?”
“I didn’t see a gun.”
Rolanda nodded with satisfaction. “Mr. Holton, what happened when he went inside?”
“He turned to face the counter. Then he was shot.”
“Did you see who shot him?”
“No.”
“Did Mr. Tho draw a gun?”
“Not that I saw.”
“Did he say anything when he went inside the store?”
“Not that I heard.”
So far, so good.
“Mr. Holton, are you acquainted with Mr. Ortega Cruz?”
“Yes. He’s the owner of Alcatraz Liquors.”
“Do you know him well?”
“Pretty well. He used to pay me a little cash to keep the troublemakers away from his store.”
“Does he still pay you to watch his store?”
“No.”
“Do you know that he keeps a gun under the counter by the cash register?”
Higher Law Boxset, Volume 3 Page 22