He is sworn and before I can reach the podium, Kline is on his feet objecting.
“Your Honor, we have received no report from this witness. No findings or written opinion,” he says.
“For a simple reason,” I tell the court. “Because the witness did not render one.”
I have given Kline a summary of Franks’s testimony, but only to a certain point, enough to make him curious and satisfy the elements of discovery.
“Well, can we at least ask the purpose of his appearance here today?” says Kline.
Radovich wants a sidebar. We huddle at the edge of the bench.
“What’s this about, Mr. Madriani?”
“Evidence relating to the calendar in the victim’s apartment, Your Honor.”
I have had Franks examine four or five items of evidence, the calendar being one among them, so that Kline could not focus on a single issue.
“What about the calendar?” says Radovich.
“There appears to have been some notations, impressions on the calendar that we believe are relevant.”
“Being offered for what purpose?” says Kline.
“To show that there was more written by the victim on her calendar for the date of the murder than has been revealed thus far,” I tell the judge.
“No wonder he didn’t provide a report,” says Kline. “Even if this is true, it’s hearsay.”
Unless we can fit Hall’s notation under some exception, Kline is right. He had to find an exception to hearsay himself to get the note on Acosta’s meeting into evidence, as an adoptive admission.
“The content may or may not be hearsay,” I tell him, “but the fact that there may have been other entries on the victim’s calendar for that date is not.”
The problem for Kline is that this, an additional meeting on the date of the murder, is certain to inspire assumptions by the jury that Kline cannot control.
“For that limited purpose,” says Radovich, “the witness may testify. But keep it tight,” he tells me.
I look at Franks on the stand. “Right.”
We back off. I see Acosta is sitting next to Harry at the table questioning him as to what is going on.
For all that she is not here in court today, Lenore is now increasingly at the center of our case.
It was as much tactics as loyalty that has kept me from calling her into court. What Kline thinks she knows, or has, is now his darkest dream, what I would not wish on anyone except an adversary at trial, something to keep him awake with angst in the night.
Without Lenore, I have had to back-fill and jury-rig to figure some way to get at the note that Lenore removed from Hall’s calendar, the fact that at some point the victim and Tony Arguillo had scheduled a date for that night. It is the reason for Franks’s appearance here today.
We do the thing regarding his credentials. This takes only a moment.
Kline wants to voir dire the witness as to expertise. He is allowed to ask several questions, and when he is finished he objects to the witness.
“He does not qualify as an expert. Not in the field of paper and impressions,” says Kline.
We get into an argument over this.
Franks has attended two seminars on the subject, one of them five years ago. He has dabbled, though he cannot tell the court that he has ever testified previously concerning the topic of indented writings.
Radovich cuts us off. He asks the witness a few questions of his own regarding his background and the technique of identifying impressions in paper. He finally concludes that the issue, the existence or nonexistence of indented writings, does not involve high science.
“If he were going to testify on the content I might agree,” he tells Kline. “But in this case, it’s a matter for the jury in ascribing the weight to be given to the witness’s testimony.”
Kline is not happy but he sits down. Franks hasn’t said a word and he is already mired in controversy.
“Mr. Franks, can you tell us whether you examined a calendar made available to you by the police at my request?”
“I did,” he says. “And I found—”
“Just answer the question.” I cut him off. Franks would like to cut to the chase, collect his fee, and get out.
I have the calendar brought over from the evidence cart, and Franks identifies it as the one he examined. I flip it open to July and place it on an easel in front of the jury, back far enough so that they would need binoculars to dwell on the incriminating note with Acosta’s name.
“I call your attention to July fifteenth and ask whether you specifically examined the calendar block, the white portion or space for that date on this calendar?”
“I did.”
“Can you tell the jury what type of examination you performed?”
“I was requested to examine the calendar for the date in question, to determine if there was any evidence of writings not otherwise visible. Indented or impressed writing.”
“And what is this, ‘indented writing’?” I ask.
“These are impressions or fragments of impressions left on a piece of paper by the pressure of writing on a sheet that was placed over it at one time and later removed.”
“Like successive pieces of paper on a pad?”
“Yes.”
“Were you able to determine the existence of such impressions on the calendar in question for the date of July fifteenth?”
“I was,” he says. “There appeared to be impressions of handwriting.”
“And were these decipherable?”
“Objection. Hearsay,” says Kline.
“The question was whether this intended writing was readable, not what it said.” I turn on him, and Radovich tells me to direct any argument to the bench.
“The witness can answer the question yes or no,” says the judge.
“Yes,” says Franks.
“The note was readable?”
“Yes.”
I turn away from the podium for a moment, considering ways to nibble at the edges.
“In examining the calendar, was there any way to determine what kind of paper the original note might have been written on, the paper that was removed?”
It always helps when you know what the evidence is before you go looking. Franks and I have worked on this. I told him what it was, and he contrived methods to discover it.
“There is some indication,” he says.
Kline is getting antsy.
“And what was that?”
“Examination under a microscope revealed the existence of some very fine mucilage.”
He loved the word and had to put it in, told me that it provided credibility.
“This mucilage was on the surface of the calendar for the date in question.”
“Mucilage?”
“Glue,” says Franks.
“Ah. What kind of glue?”
“Under intense light,” he says, “and with high magnification, I would say that it is very similar to what might be imparted by one of those yellow stick-on notes we all use.”
Under intense light and high magnification, bullshit is still bullshit and Kline smells it. He rolls his eyes and starts grousing at his table. He actually throws two pieces of paper into the air and lets them float back down onto the surface in front of him as if to make sure that the rules of physics are still functioning. He flashes Stobel a “can you believe it” look.
Harry has one of the stick-on notes, a sample, at the counsel table ready to hand to me, so I show it to the witness.
“That’s the kind I’m talking about,” he says.
Kline by now is convinced that this is an impossibility. He wants to look at this, and with Stobel at his side they stick it to a piece of paper, roll it with a thumb, and pull it of
f. Kline feels with his fingers for glue, and shakes his head. He holds it up to the light, looking for evidence of the glue.
Before I can object, Franks takes care of this for me.
“Oh, you need a microscope.” He says this with guileless sincerity, to Kline, so that a couple of jurors actually laugh. Kline gives the witness a look as if the word cross had suddenly taken on a whole new meaning: three nails and two boards. He starts collecting venom for his cross examination.
“Now you said that the impression from this notation was legible. What technique or process did you use to read it?”
“I did it the old-fashioned way,” he says.
He pauses to look at me. For a moment I think he’s going to say, “I made it up.”
And then he says, “Oblique light.”
“Explain to the jury, please.”
“You take a bright light and shine it across the surface of the impression. Shadows appear in the indented areas of the paper, and if they are deep enough they become legible. There are other methods, some more sophisticated,” he says.
“I’ll bet,” says Kline.
I object to this, and Radovich admonishes him. Tells him he’ll have his turn.
“I can’t wait,” he says.
I ignore him.
“This oblique-light method worked?” I ask.
“It was sufficient for our purposes.”
“How many words appeared on the indented notation?”
“Objection,” says Kline. “Hearsay.”
“I’m not asking for content, just word count,” I say.
We are treading on the edge, and Radovich considers for a moment before he rules.
“I’ll allow it,” he says, “but nothing more.”
“Let’s see.” Franks counts with his fingers and I begin to wonder if he’s going to have to feel through the hole in his shoe if he gets above ten.
“Does the man’s initial and the time count, or just the name?” he asks.
“Objection.” Kline storms to his feet. “Move to strike,” he says.
“The witness’s comment will be stricken,” says Radovich. “The jury is to disregard it.” The judge gives me a look, eyes that burn. Then he turns this on Franks in the stand.
“Just answer the question,” says Radovich. “How many words? Anything beyond that and you’ll spend the night in jail. Do we understand each other?”
“Lemme see.” Franks starts counting again.
“Do we understand each other?”
“Oh, yeah. Sure.”
“Two or three,” he says. “Depending on how you count.”
Radovich looks as if he wants to reach out and hit him with the gavel.
“Your witness,” I say.
“Saved by the bell,” says the judge. A few jurors laugh at this.
Kline rips in like a shark with blood in the water.
“Isn’t it customary to take photographs when examining indented writing?” he says.
“Some people do,” says Franks. “I don’t.”
“Come now,” says Kline. “Isn’t it a fact that in order to read such impressions, photographs are necessary?”
“I can read them without it,” says the witness.
“And I’ll bet you speak in tongues, too,” says Kline.
“Objection.”
“Stick to questions,” says Radovich.
“So all we have is your word that these impressions existed? There’s no hard physical evidence that you can show to the jury, is there?”
“No.”
“How convenient,” says Kline.
“Is that a question?” says Radovich.
“Sure,” says Kline. He decides to get cute. “Isn’t it a fact that you found this, the absence of photographs, convenient?”
“In what way?” says Franks.
“Because if you were forced to produce photographs we could examine them. The jury could see them. Without them you can say whatever you want and there’s no way to question what you say. Isn’t that so?”
“There was a reason there were no photographs, but that’s not it,” says Franks.
In front of the jury it is like a dare, a test of his manhood. Kline has no choice but to ask why. He does.
“Photographs would have been inadmissible,” says the witness. “You said it yourself. The content of that writing in a photograph would have been hearsay.”
Kline stands in front of the jury box, hoist with his own petard.
“Well, the judge could have looked at them, behind closed doors.” Kline says this lamely, knowing that he’s just had his butt flamed. He retreats for cover, changing the topic to the glue.
“How can you be sure that what you saw on that calendar was glue from a stick-on note?”
“It’s what it looked like when I did comparisons.”
“Are you sure you didn’t sniff this glue?”
Franks actually says, “No,” before he realizes that this is a dig by Kline.
“I have no more use for this witness,” says Kline. He musters all the contempt possible in a human body and dismisses the witness with a gesture, the back of his hand.
It is the best he can do, given the anger that is welling up within him at this moment. His rage would be stratospheric if he only knew the truth. The impressions attested to by Jerry Franks are mythic. The content of the note, what we have agreed he would testify to if it came to that, would read, Tony A. 7:30.
It is short and crisp, a cryptic reconstruction by Lenore of what was on the paper that night, the best she can remember months after the fact.
“You’re out of your mind. Crazy,” says Harry. “Gonna lose your ticket. And the judge ain’t worth it.” Harry’s talking about Acosta. We square off in the corridor outside the cafeteria during a break, where I have finally told Harry the truth about Franks’s testimony. “This is not like you,” he says.
The fact that this could offend Harry’s sense of ethics for a moment has me wondering about my own moral center of gravity. Then I realize it’s not that I have done something wrong that bothers Harry, but that I might get caught.
It’s a gamble of some proportions, but not as great as Harry thinks. I have not shared some of the things I know, and others that I now suspect, with my partner.
“What are you gonna do next?” he says.
“Gall the next witness.”
“No, I mean for a living, after you get disbarred.”
I look at him and he is not laughing.
We push through the crowd in the corridor outside the courtroom, the end of our morning break. A news crew, cameraman, sound tech, and a reporter on the fringes are the first to see us. The reporter jockeys for an angle to herd us into one of the side corridors.
“Can we have just a minute for an interview?”
Harry and I are trying to pick up the pace to get away.
“No time now,” I tell him.
“The D.A. is saying that he’s going to subject the calendar to his own testing. Do you have any comment?” Lights in my eyes.
“We will expect him to share his results,” I say.
“You’re not concerned about this?”
“Why should I be? I know what was on that calendar.” At least part of this is the truth.
“Whose name was on the note?” By now there are more cameras, enough lights to film a movie, a growing throng so that they block our way.
“Follow the trial,” I tell them, “and you’ll find out. All will be revealed,” I say, giving them a deliberate sound bite so that several of them turn in front of their own cameras, to put a twist on it for a closer: “There you have it. . .”
Out of the crowd comes a hand on my arm from behind. When I turn
it is Gus Lano.
“Cute. Very cute,” he says.
The last thing I want is an argument here in front of the cameras with Lano.
“Now if you could tell me when you’re gonna call me?” He is almost polite in his inquiry.
“When I get around to it,” I tell him.
Lano has been cooling his heels in the outer corridor for two days now, under subpoena. I have told him he could be called at any moment. Tony is standing behind him over his shoulder, two bumps on the same log.
Lano waves a small paper envelope in front of my eyes, florid drawings in bright colors, a commercial jet superimposed over an exotic beach somewhere, a female bottom in a bikini poking over the wing tip, all the fantasies conjured by commercial art.
“Tickets to fly,” says Lano, “bags packed and downstairs. I’m outta here tomorrow night. Five o’clock flight.”
“We all have our problems.” I push by him and he grabs my arm one more time.
“Five o’clock,” he says. “You can call me next and get it over with.” He is serious. Lano thinks I will actually structure the order of my evidence to accommodate his vacation plans.
“If you like I can get an order from the court to have the marshal hold you.” I remind him that as a peace officer he is an attaché of the court and cannot leave until they are finished with him.
“My ass,” he says.
“It will be if you try to leave.”
Several of the cameras are now back on, capturing these last words for posterity.
“Excuse me.” I push through, Harry behind me.
“Are you a witness?” One of them asks Lano.
“Only because of the harassment and abuse of the defense. Figments of their imaginations. They are calling witnesses that have nothing to do with the case as a smoke screen.”
The reporters are eating this up.
He has an outstretched arm pointed in my direction as I walk away. “The defense in this case is grounded on the defamation of upstanding law enforcement officers,” he tells them. “People who risk their lives for public safety every day,” he says. “They are willing to do anything to win.” Lights are suddenly on my back, accusations I can do nothing about and would rather not hear. Lano’s impromptu news conference. I hear my name taken in vain one more time as Harry lets the courtroom door close behind us. The war of media spin is beginning to leave tractor marks on my face.
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