‘There are no rules to cross-examination,’ he explained as he paced before the whiteboard. ‘It’s not something you can pick up overnight. You hone your skills over years so that your judgment, your ability to execute and adapt in a split second becomes instinctive. Cross-examination is psychology, it’s staring someone down to elicit a desired response. And how do you get desired responses? Preparation. You need to know the evidence inside and out, and you need to know the subjects you’ll be touching on. If you’re crossing a cop, for instance, you’d damn well better know how police are supposed to conduct a criminal investigation.’
CHURCH:Is it not standard procedure in the investigation of a homicide for the lead detective to use all available resources to canvass the surrounding area?
FUKUMOTO:It is.
CHURCH:Did you instruct any of your officers on the night of the murder to canvass the area surrounding the crime scene?
FUKUMOTO:I did not.
CHURCH:Did you not have the resources available to go door to door along Tantalus Drive?
FUKUMOTO:I had the resources.
CHURCH: Yet you skipped this critical step in the process. Tell us, Detective. Was the reason you didn’t canvass the neighborhood that evening because you had already determined that Ethan Jakes had murdered this young woman, yes or no?
FUKUMOTO:No, it was because—
CHURCH:You’ve answered my question, Detective. Did it in any way enter into your think—
LAU:Objection. The witness should have a reasonable opportunity to provide his answer.
CHURCH:It was a yes or no question. He’d provided his answer.
LAU:You cut him off mid-sentence. The question was framed in such a way the witness should be able to provide a brief explanation.
JUDGE:Counselors, you will address the Court, not each other. The objection is sustained. Detective, if you need time to continue your answer, you may do so now.
FUKUMOTO:I have nothing further to add.
CHURCH: Well, now I’d like to hear it as well, Detective.
FUKUMOTO:I did not order a canvass of the neighborhood because this was a late-night crime scene. Standard procedure for late-night is to only interview significant witnesses or eyewitnesses.
CHURCH:I’m sorry, remind us what time you arrived on-scene.
FUKUMOTO:9:36 p.m.
CHURCH: So 9:36 was past business hours? When are your operating hours, Detective, so we can note them for future reference?
FUKUMOTO:I use my discretion.
CHURCH: OK, so your discretion told you that 9:36 was too late-night to canvass the neighborhood in the wake of the murder of a young woman. Would it have made a difference if you’d arrived at 9:29?
FUKUMOTO:No.
CHURCH:How about 8:45?
FUKUMOTO:Unlikely.
CHURCH:Did you have any objective criteria at all to determine when to canvass the area and when not to?
FUKUMOTO:I used common sense.
CHURCH:Which told you that 9:36 p.m. was too late for a canvass?
FUKUMOTO:In that neighborhood, yes.
CHURCH:In that neighborhood? What does that mean, Detective?
FUKUMOTO:In that area, people tend to go to bed earlier.
CHURCH:Because they’re older? Maybe even well into their seventies?
FUKUMOTO:No, that’s not the reason at all.
CHURCH:Then how do you know this, Detective?
FUKUMOTO:When I drive by at that time of night, everyone’s lights are out.
‘Don’t ask one question too many,’ Church had said the previous night. ‘Once you have what you want, move on. A smart witness will use the opportunity to hurt you, if not with something substantive, then by endearing himself to the jurors.’
CHURCH:Do you drive up Mount Tantalus around that time often, Detective?
FUKUMOTO:I do. My husband and I bring our seven-year-old nephew up to the park at least once a week to set up our telescope and study the stars.
In the editing room, interspersing footage of Church’s cross with footage of the previous night’s strategy session, I glance at the watch Church bought me and decide to keep going.
Onscreen, Church writes the word Plan on the whiteboard. Says, ‘We need a plan that’s consistent with our theory of the case, which is that Nathan Jakes committed this murder. An unfortunate consequence of that theory is that it undermines what little physical evidence we had going for us. The foreign footprint? Too small. Not Nathan’s. The blood on the tree behind the victim’s house? Not Nathan’s. We’re left with very little. So, on cross-examination, we need to collect as much favorable material for our summation as possible.’
CHURCH:Detective, when you first learned that a pubic hair belonging to Nathan Jakes was discovered in the victim’s pubic region, did you request a search warrant for Nathan Jakes’ vehicles, yes or no?
FUKUMOTO:The first thing I did—
CHURCH:My question wasn’t about the first thing you did, Detective. Please catch up.
LAU:Objection!
CHURCH: Withdrawn. Detective, do you need the question repeated back to you?
FUKUMOTO:No, I did not request a search warrant for Nathan Jakes’ vehicles.
CHURCH: When you learned of the pubic hair, did you request a search warrant for Nathan Jakes’ house, yes or no?
FUKUMOTO:No.
CHURCH:When you learned of the pubic hair, did you request a search warrant for Nathan Jakes’ law office, yes or no?
FUKUMOTO:No.
Onscreen, standing before the whiteboard, Church says, ‘Witnesses wiggle like earthworms. It’s our job to pin them down. Once they’re inextricably linked to their responses, we exploit any inconsistencies from past statements, any testimony contrary to physical evidence, and any testimony that contradicts other witness testimony. But we need to gauge each witness. We need to know, if we push this witness will he backpedal? Will he cave? Or will he push back in a way that strengthens his unfavorable testimony. We need to know when to go in for the kill, and when not to.’
CHURCH:Just so we’re clear, Detective. Is it your testimony that, as you sit here today, you still have not recovered the clothes the victim was last seen in?
FUKUMOTO:We don’t know that they are missing. We don’t know that such clothes even exist.
CHURCH:Really? So you didn’t search for the UH T-shirt and shorts that an eyewitness – namely my client - told you the victim was last seen wearing?
FUKUMOTO:We searched for them.
CHURCH:Where did you specifically search for these items of clothing, Detective? In the victim’s house?
FUKUMOTO:Yes.
CHURCH:Around the victim’s property?
FUKUMOTO:Yes.
CHURCH:In the victim’s vehicle?
FUKUMOTO:Yes.
CHURCH:In my client’s vehicle?
FUKUMOTO:Yes.
CHURCH:In my client’s apartment up North Shore?
FUKUMOTO:Yes.
CHURCH:In the woods behind the victim’s house?
FUKUMOTO:Yes.
CHURCH:In the drainage pipes and storm sewers in that area?
FUKUMOTO:Yes.
CHURCH:Well, Detective, I’m almost out of breath, but it sounds to me like you did an awful lot of searching for clothes you don’t think exist.
‘We need to maintain control of our witness at all times. We do not want to give the witness a chance to “explain” a yes or no answer.’
CHURCH:As you sit here today, Detective, have you ever recovered a weapon that may have been used to kill Piper Kingsley, yes or no.
FUKUMOTO:No, but—
CHURCH:No further questions for this witness, Your Honor.
‘And we don’t need to concern ourselves with trying to elicit favorable conclusions – we will make the conclusions ourselves during summation.’
‘Do we know who’s testifying tomorrow?’ Brody asks, onscreen, in Church’s suite.
‘The chief medical examiner, Sheila Rutley.’ As Church paces, he gulps from his mug. ‘Just as with jury selection, our technique on cross changes from case to case, witness to witness. It’s like surgery; we need a different tool for every part of the operation.’
‘What do we know about Dr Rutley?’ I ask the speakerphone, which by now, I’m used to, maybe even enjoying a bit.
Jesse says, ‘Straight shooter, as far as I can tell. Apolitical. Has clashed with past prosecutors who pushed her to give more than she was willing to give.’
‘Does the local defense bar like her?’ Church asks.
‘Right up until the point her straight-shooting is aimed at them.’
‘We are a fickle bunch, aren’t we?’
CHURCH:So, as chief medical examiner, you cannot tell this jury, to a reasonable degree of medical certainty, whether the victim died from suffocation?
RUTLEY:No, I cannot.
CHURCH: You cannot tell this jury whether the victim died from strangulation?
RUTLEY:No, I cannot.
CHURCH:You cannot tell this jury whether the victim died from drowning?
RUTLEY:No, I cannot.
‘Finally, we can’t be afraid to say, “No cross-examination, Your Honor.” We don’t want to go fishing. We don’t want the witness repeating damaging information elicited on direct, and we never want to ask a question we don’t know the answer to.’
He abruptly ceased pacing. ‘I cannot understate the dangers of cross. Too many defense lawyers inadvertently fill in the gaps of the prosecutor’s case on cross. If we don’t think we can improve our case, we walk away. Last thing we want is to elicit statements prejudicial to our client. Declining to cross a witness, if done properly, gives jurors the impression that the witness’s testimony wasn’t all that important. Better that than hurting ourselves.’
JUDGE:Mr Church, you may cross-examine Mr Zane Kingsley?
CHURCH:No desire for cross, Your Honor. The defense is sympathetic to the witness, but as Ms Lau just so deftly demonstrated on direct, Mr Kingsley has no firsthand knowledge of any facts or evidence relevant to this case.
FORTY
‘I never cybered, I never sexted. Never got the point, really. Sex should be intimate, it should be sweaty. I don’t like what technology has done for sex over the past twenty years. People are losing the distinction between distance and closeness.’
Dr Farrockh says, ‘I don’t disagree. If they asked me two decades ago, what’s needed to improve sex, I’d have told them it’s good as is.’
I smile. ‘They always want to fuck with the formula.’
‘Everyone’s so desperate for discovery. People are afraid to learn this is all there is. Nowadays, you can travel the world as a young adult, you can conquer an industry by the time you are thirty. What do you do with the remaining half-century?’
‘I’ll be thirty when my film is released. Marissa Linden was only twenty-eight.’
‘Life is not a competition, Riley.’
‘Tell that to society.’
‘I’m telling you. You have very lofty goals, and that’s wonderful. You have the talent and ability to achieve them, and that’s even better. But your timelines could use some revisions.’
‘They’re not my timelines, they’re the film industry’s. It’s not just actors, you know. It’s writers, it’s directors, it’s cinematographers, musicians. If you don’t get in while you’re young, you don’t get in. And I feel like I wasted two precious years of my life schlepping for Big Pharma.’
‘You constantly obsess over those two years, and some of the decisions you made and a few that were made for you. But have you thought about the fact that if you had gone to UCLA’s film school, you may have never gone to New York, you may have never met Brody, you may have never met Professor Leary? You wouldn’t likely have been here in Hawaii when your friend was murdered, and you likely wouldn’t have had the money to make the film, even if you were.’
‘You’re right, it all comes back to the movie. This is my opportunity.’
‘This is an opportunity, Riley. Remember that. Be better to yourself.’
I sigh, settle deeper into the sofa. ‘Next week, before she and Church head off to Maui, Marissa is going to come down to the editing room to review the present cut and give me notes.’
‘That’s kind of her, right?’
‘If making me feel sick to my stomach with nerves is kind, then yeah.’
‘You’re nervous because you respect her opinion.’
‘I don’t like her.’
‘You don’t have to like her to respect her opinion, Riley. Those are two very different things. And, I should point out, you still never put your finger on why you don’t like her.’ She pauses. ‘Why don’t you like her? First words that pop into your head, fast.’
‘I don’t like the way Brody looks at her.’
‘He’s still attracted to her?’
‘Yeah, but that’s not it. I think he’s also attracted to Nate’s ex-wife, Cheyenne, and that doesn’t bother me. It’s more his fascination with Marissa.’
‘Is she fascinating?’
‘Yeah.’
‘As are you.’
‘Not yet. Maybe once this movie is in the bucket—’
‘No, Riley, no. “Once the movie is made, once the movie is sold, once the movie is distributed, once it premieres, once it wins an award, once I begin my second film …” There will always be something you want more. There will always be a more significant achievement. Victories are brief, and we’re never more than a broken rung from falling off the ladder. Work hard, but don’t wait for something great to happen to love yourself. Today is as important as the day your movie comes out.’
‘I’m terrified of failing.’
‘I was terrified too once. When I first came to the United States as a small child, from Iran of all places, I was sure I would never make a friend.’
‘Let me guess. You met someone the first day, and you’re still friends with her.’
She shook her head. On her face was a deep and painful sadness. ‘No,’ she says, ‘the first friend I made was in my junior year of high school. And she was military, so she moved away after one semester. I didn’t make another real friend until medical school.’
‘How did you get through all that time?’
‘I kept in mind something my father told me when I told him I feared I was a failure at making friends and always would be. He said in his thick Middle Eastern accent, “Keep trying, Yasmin, try every day. And if you keep trying, if you try every day, if you try right up until the moment you die, you’ll never even know that you failed.”’
To say we did not know what to expect from Nate’s testimony would have been a monumental understatement. The brothers had not spoken since their blowup, and the strategy employed by the defense over the course of this trial was not going to mend any fraternal fences anytime soon. Church intended to persuade the twelve men and women in the jury box that Nathan Jakes, not Ethan, had murdered Piper Kingsley on February 22 of this year.
Church wasn’t necessarily placing Nathan in legal jeopardy, not directly anyway. It was highly unlikely, absent significant new evidence, that the prosecution would pursue Nathan Jakes if Ethan was acquitted. No, the damage Church inflicted on Nathan Jakes was already done. We’d witnessed the death blow at Church’s ‘First/Last Press Conference’ months ago, when Church revealed to the world that Nathan Jakes had had sexual relations with the victim on the day she was murdered.
Since that day, Nate’s life had been in a downward spiral. After losing Piper and the love of his only brother, he lost Cheyenne and the kids. Because Cheyenne could prove infidelity, she would have swept the floor with Nate in divorce court. Nate chose instead to settle quietly, but he paid dearly for that silence. Then, not long after the divorce settlement was finalized, the other shoe dropped. Because of his toxicity and the overwhelming media scrutiny (to say nothing of his continued poor performance), Natha
n Jakes lost his partnership at the firm.
Church had Tahoma tailing Nate ever since. After moving out of the family home, Nate rented a small studio apartment in Waikiki. He went out nightly, got drunk, hit on tourists. He was tossed out of three different bars on Kalakaua alone, two for the night, one for life. The cops on the beat didn’t like him either. They watched him closely, hoping he’d piss in public, purchase an eight ball, maybe sock one of the locals in the eye, so they could slap on the cuffs. Police did, however, look the other way when Nate took hookers to his room, but only as a courtesy to the hookers.
The night before Nate’s testimony, Church told us to prepare for the worst. Ethan, who had been regularly skipping strategy sessions in recent weeks, had been summoned to this one. For the first half-hour, as Church discussed Nate’s likely direct testimony, Ethan remained silent. He was inexorably torn. Personally, I didn’t know Nate well enough to decide whether he’d hurt his own brother with the stakes this high. But then I also felt that if Nate intended to help Ethan in any way, he would have at least contacted the defense team to discuss. But no, he’d even declined Tahoma’s request for a witness interview. The best we could hope for, I was sure, was neutral testimony.
‘Before we discuss anything else,’ Church said, circling the table, ‘we’re going to address the two-hundred-pound jackass in the room. Anyone want to take a shot at pinning the tail? I’ll give you a hint – he’s fucking trending on Twitter.’
We all remained silent.
Finally, Ethan said, ‘Most of it’s been positive. People want to be supportive.’
‘Let’s see,’ Church said, pulling out his phone. ‘Ah, this is positive. Cumbubble83 says you look “tall, dark and killy”.’ Church scrolled. ‘Ah, here. Barebackit871 says, “Look at the size of those hands. Wouldn’t mind havin’ em around MY throat. Hashtag: RestrictMyO2”. Oh, wait, this one’s supportive. WhitePowerHour40 says, “His asshole’s gonna be the size of a lamppost by Day 2, and that’s only if he don’t drop no soap on Day 1”. Grammatical errors are your fans’, Ethan, not mine.’
‘I won’t post anymore,’ Ethan said quietly.
‘Are you sure, Ethan? There are no swimsuit pics you’d like to throw out there for PussyInBoots32? Maybe pull out your Anthony Weiner and post a few dick pics? That’ll increase your number of followers, I’m sure.’
The Rough Cut Page 23