Presumption of Guilt

by Rachel Sinclair

  I knew that this direct exam was going very well. This woman was painting Jacob as the monster that he was. I looked over at the jury, I saw that their faces were contorted in horror at what Calista was saying. A couple of them were shaking their heads with disgusted looks on their faces. I smiled, then turned back around so that I could ask Calista a few more questions.

  “You know my client, Esme, correct?”

  “Of course. I worked with her for many months.”

  “To your knowledge, have the Whitmores ever accused her of stealing anything from them?”

  “ No. Never.”

  “I have nothing further for this witness.”

  I sat down, and Brent stood up. He cross-examined her for the better part of the next half hour. But it was no use. I could tell just by looking at the jury that I had hit home with my questioning.

  It was getting to be in the late afternoon, and I was thinking, in the back of my mind, the whole time that the proceedings were going on, about that 23 and Me document. I realized that there was no harm in asking for a motion in limine. The worst that could happen would be that the judge would tell me that there was no way that he would allow that document to come in. I would not be out anything if he said that, because I was expecting that.

  Nothing ventured, nothing gained.

  Brent had finished his cross-examination of Calista, and the judge asked me to call my next witness.

  “I would like a short recess, Your Honor. I would like a conference with Your Honor and the prosecutors. Thank you.”

  Judge Warner nodded his head. “It’s a good time for a recess. Okay, ladies and gentlemen of the jury, stretch your legs a little bit. This court will recess for 15 minutes. Please be back by 3:45. Thank you.”

  The jury filed out, and I could feel my heart pounding. This might be the game changer, if the judge was going to allow this piece of information in. If he did not allow it in, it was not going to change my original strategy. However, my original strategy was going to rely on a lot of luck, and a lot of skill in breaking down Jacob when he took the stand as my witness. It would be so much easier if I could just bring in this DNA test, and show the jury exactly who Jacob was.

  I went to the bench, along with Christian, Brent, and his second chair, Gina Mathews.

  “Well, counselor, what did you need to have a conference about?” Judge Warner asked me.

  “I have a document I would like to enter into evidence. However, I needed to see if I could possibly schedule a motion in limine on the document.”

  “And what, exactly, is the document in question?” Judge Warner asked me.

  “I have in my possession a 23 and Me report. This is the report that demonstrates the true identity of Jacob Whitmore. It’s crucial to prove motive for why it was that Jacob would have killed Sophia, Aria’s imposter. Furthermore, it establishes absolute motive for his having murdered Aria herself. Now, I understand that this is not a trial regarding the murder of Aria, the original Aria, but it’s very important to establish the chain of events that led to Sophia’s death.”

  “Obviously, this report is not going to be admissible. It would be impossible to establish a chain of custody.” Brent was pretty cocksure about himself, and he probably should not have been, because I was starting to understand that this judge wanted as much information as possible to be available to the jury to establish my case. I had never been in front of this judge before, so I had no idea if he was always this liberal with his attorneys in court, or if he really wanted to make sure that this particular case was tried fairly. I knew that because of the media attention surrounding this case was intense, the judge was under a lot of pressure to make sure that as much information came out as possible.

  And getting this particular report into evidence was going to be sensational, to say the very least. It would be something that would make headlines all over the world. That much, I knew.

  “Ms. Collins, how would you go about establishing the chain of custody for this report?”

  I took a deep breath. I did not have time to subpoena the teacher, Helen Rosen. Moreover, I knew that she was going to be working tomorrow, so it was going to be difficult to persuade her to come to the court willingly to testify. But that would be the only way that I would be able to get this report into evidence. I would have to get her to testify about how she received the report, and that she had not actually reviewed the report, but that she just put it into Aria’s file. She was going to have to testify that she did not alter the report in any way, shape, or form. She was going to have to testify that she was the only one who had access to the report. In short, she was going to have to establish a chain of custody for the report. Even then, it was going to be difficult to get past the hearsay objections. I knew that that was going to be the sticking point, if there was going to be a sticking point on this matter.

  “I could get the teacher, Helen Rosen, to testify in court in the motion in limine hearing. We can do it early tomorrow morning, before the jury is scheduled to report. She can testify about the chain of custody.”

  Brent was shaking his head. “Your Honor, a 23 and Me report is hearsay. Plain and simple. It cannot fall under any of the hearsay exceptions, including the business records exception. Ms. Collins would have to bring in the custodian of the records, and that custodian would have to have actual knowledge of the information contained in the report. She might be able to track that person down, but not by tomorrow. And I’m not going to agree to any continuance of this case.”

  I decided that I was going to go ahead and throw something at the wall, and see if it stuck. “There is another exception to the hearsay rule. It’s an exception for family records. If a record is a statement of fact about the personal or family history, including genealogy, then that record is excepted from hearsay.”

  Brent jumped in. “That particular exception was clearly for records involving a person’s family tree. It does not cover something like 23 and Me, which is not the family tree record per se, but, rather a family DNA record. That’s very different than what is contemplated in that particular rule.”

  The judge nodded his head. “Ms. Collins is right. There is a rule that states that family records are excepted from the hearsay rule. While I agree with Mr. Atwood that that rule probably does refer to family tree reports, the rule has not been very specific on exactly what kind of genealogy reports are allowed, and not allowed. Since this is a borderline case, I will allow it, provided that Ms. Collins is able to call Helen Rosen to the stand tomorrow morning at 8 AM, for a motion in limine on whether or not the report is admissible. I will go ahead and adjourn until tomorrow, when the jury comes in. However, if you, Mr. Atwood, can find me case law that shows that that report is not admissible, I will consider that.”

  I sat down, after thanking Judge Warner profusely for his ruling. I was happy that I knew then about that hearsay exception so well off the top of my head. Truth be told, the family records exception was not used very often. I had never used it. But I knew that it was there, so, it saved me.

  However, it also put a lot of pressure on me. If I could not get Helen Rosen to come to court tomorrow morning at eight, without a subpoena, I was dead in the water anyways on this matter.

  The jury came in, the judge excused them for the day, and it was time to go home.

  But I wasn’t going home.

  I was going to call Regina and see if she could meet me. I needed her to talk to Helen Rosen, and fast.

  Chapter 42

  I called Regina from the car on my way home from court. “Regina, you need to do something for me, and you need to do it for me as soon as you can. There’s a lady by the name of Helen Rosen. She works at the Waldorf School in San Diego. I believe that she is still a teacher there, anyhow. I need you to see her, and do what you can to make sure that she is in court tomorrow at 8 AM. Bribe her, whatever you need to do, I just need to have her in court tomorrow morning. I cannot subpoena her, there’s no time for that. Thanks.”r />
  Regina and I talked for a few minutes, and I hung up. All of a sudden, getting that report into evidence was primary on my mind. I didn’t even know that it was a possibility, until Lauren told me what she told me, and now that was all that I could think about. I was going to simply question Jacob about his past. And I knew that he was going to lie about it, because why not? He was going to try and make me look like I was a fool, and I was prepared for that. My questions were geared for that. All that I had to do was put some reasonable doubt in the jury’s mind, and my job was done. But if I could just get this report into evidence, it would make my life so much easier.

  And I knew that if, by chance, Regina was not able to secure Helen’s cooperation by tomorrow morning at eight, I was going to be devastated. I hated that I felt that way. I just figured that there would be no way that the judge would even allow it, even if there was testimony from Helen. But, when he indicated that he was open to it, I suddenly knew that I wanted that report to be entered into evidence. I wanted it badly.

  I went home, after picking up the dogs from their daycare, I went to the beach with them. It was past 6 o’clock, so the dogs were allowed on the beach. I sat on the sand, watching the waves come in and out, one dog on my right side and one dog on my left. I was leaning against a small chair that was in the sand, and my phone was always by my side. I realized that I needed the calming sound of the waves coming in and out, because my anxiety had suddenly spiked. I felt a nagging knot in the pit of my stomach as I waited for Regina to call me. I just wanted her to give me some kind of a status update. Was she able to find Helen? Was Helen able to get off work tomorrow morning to come and testify? Was Helen willing to testify? These were the questions that were running through my mind as I checked my phone, again and again, making sure that it worked. All the while, I sat there on the beach, listening to the waves, and feeling like things were going to take a turn for the worse if I could not get that report into evidence.

  I got up, and started walking the dogs. We got closer to the shore, and I let the warm water lap around my ankles. In the distance, I could see people surfing. I was halfway tempted to go and get my own wetsuit on, and join them. I wasn’t a very good surfer. Aidan was much better than me, but he had a lot more practice than I did. Surfing was something that he did all the time. When he wasn’t working, going to school, interning, and getting baked, he was surfing. Me, I just did it on occasion. I wasn’t the most coordinated person in the entire world, that was for sure.

  But I wanted something to take my mind off of the damn phone that refused to ring.

  As I walked along the shore, I finally heard Regina’s ring. I had programmed the phone to start playing Radiohead’s song Creep, simply because that was mine and Regina’s favorite song. I heard the opening bars, and I immediately picked up.

  “What’s the word?” I asked her. I tried to keep the desperation out of my voice, but I knew that it was there anyhow.

  “I found the chick, and she’ll be there tomorrow morning. You just gotta give her a $500 spa gift card. She ain’t doing it for free, and she told me that she could really use a good microbrasion facial and she also wants to get her eyelashes extended. Personally, I don’t think she really needs eyelash extensions, but whatever. She likes Secret Spa and Salon in La Jolla. You go get that card, and she’ll meet you at the court tomorrow morning at eight.”

  “Woo hoo!” I screamed. “I’ll be driving to that spa right now. Love you, girl!”

  I hung up, and I decided to go ahead and take the dogs with me up to La Jolla. They really enjoyed driving in the car, and La Jolla was about a half-hour drive, considering traffic.

  I went to that spot, got a card, and went home.

  And I slept a good night’s sleep, the best sleep I’ve had in a long time.

  Chapter 43

  The next day, I got to the court, bright and early. I got there at 7:30 in the morning, because I was just too wound to sleep. I had called Helen on the phone, and told her what I needed from her, and she told me that that was just fine. She was able to go ahead and take off from work, and the reason why she wanted the spa gift card was because that’s where she was going to be heading after court. “I figured that since I am taking the morning off, I might as well just take the entire day off and play hooky. I’m looking forward to a day of pampering. That’ll be my reward for coming in and testifying for you in court.”

  I was nervous. But I knew that there was a good chance that the judge was going to go ahead and allow those DNA results to be entered into evidence. At the same time, I knew that Brent was probably going to be loaded for bear. He was probably going to be coming with case law, and everything else. I decided to do my own research on the matter. I didn’t find a case on point, however. At least, not in the state of California. I was cheered by that, because I doubted that Brent could find on-point case law about it, either.

  Sure enough, when Brent got into the courtroom, he had copies of statutes, and rulebooks. “I researched the whole hearsay exception issue, and in the state of California the exception has to be a family record. As in a record that was kept by the family. I’m going to renew my objection to this entire proceeding.”

  “I understand that, but the federal rules are much more ambiguous as to what constitutes a family records exception. It simply says that if there is evidence about family history contained in a family record such as a genealogy, whatever that means, that record is excepted. I believe that the 23 and Me is a modern-day genealogy chart that a family would keep. I know that the California rule is a little bit more specific, but, I don’t think it’s necessarily a bright line either. This could be considered to be a family chart.” I knew that I was stretching the argument, but I also knew that this judge was probably going to go ahead and rule in my favor. He had already decided that he was going to hear this motion in limine, so that was a good sign.

  Helen arrived, and it was time to go. Helen was a young and pretty brunette woman, very petite, with dark hair and big brown eyes. Her nose and lips made her look like a little pixie girl, and Regina was right - she didn’t need eyelash extensions. She had full eyelashes anyways, the kind of eyelashes that I always coveted for myself.

  She smiled, and I felt more at ease about her testifying.

  The judge got on the bench, and the bailiff instructed us to remain seated. “Now, I understand we have a motion in limine hearing this morning before the jury is scheduled to arrive. This is on the matter of the admission of a 23 and Me DNA report that was in the possession of a Ms. Helen Rosen. Counselor, you may call your witness.”

  At that, Brent stood up. “Your Honor, if it please the court, I would like to renew my objection to this admission. I still believe it is hearsay under the California Rules of Evidence. The rules of evidence excepts family records if they are contained in a family Bible or other family chart. This particular piece of evidence is not contained in any kind of a family chart or Bible, so I still believe it is excluded by the hearsay rule.”

  “I understand your objection, and it is on the record. Appeal me if you like, but I’m going to allow this record as long as Ms. Rosen here can establish a chain of custody. So, Ms. Collins, you may proceed.”

  I took a deep breath, and the bailiff instructed Helen to take the stand. She raised her right hand, was sworn in, and I got to work.

  “Please state your name for the record.”

  “Helen Alexandria Rosen.”

  “And Ms. Rosen, you had in your possession a DNA report that was given to you by a student by the name of Aria Whitmore. Is that correct?”

  “Yes. That is correct.”

  “And why did you have that report in your possession?”

  “I gave my students an extra credit assignment. I gave them the option of either researching their family tree through an online DNA report, or, if their parents did not consent to them getting a DNA report, the students had the option to research their family tree through other means, such as the Ancestry
dot com site. It was their choice, and it was strictly optional. It was extra credit. I figured it would be fun for them to find out about their family tree, and we could make it into an assignment where a student could take one of his or her ancestors, and do a report on the life of that ancestor. You know, maybe a student would have an ancestor who was a World War I vet. They could give a report on that vet, going into the history of World War I, maybe talk about that particular person’s platoon, maybe going through what the person’s everyday life was like, and putting it into a historical context. I thought that would be a fun project for the students, and they really got into it.”

  “And you received the DNA report for Aria Whitmore?” I asked.

  “Yes. I did. I received them in the mail, as I guess that Aria went ahead and ordered the test. One test came to her, and one test came to me.”

  “And when you received that report, what did you do with it?”

  “I put it in Aria’s file. I did not open it. I kept it sealed in the envelope, and I put it in her file and just left it there. I was not going to open it until she did her report, and, unfortunately, she got into a car accident in Mexico, and she was gone for the rest of the school year, so she never got a chance to present the report. And, I confess, when she came back to school the next semester, I completely forgot about giving the report back to her. In fact, I had completely forgotten about the report at all, until I was visited by Lauren Whitmore, who asked me for it.”

  “And so are you representing to the court that you are the only person who has had your hands on this report?”

  “Yes. That is correct.”

  “And did you alter this report in any way?”

  “No. I did not.”

  “ I have nothing further for this witness, Your Honor.”

  “Mr. Atwood, do you have any cross-examination of the witness?”