Undue Influence

by Steve Martini

  Looking at his watch, Woodruff gives me the nod.

  ‘You got twenty minutes,’ he says.

  I call Jimmy Lama to the stand and have him sworn to testify.

  Lama has prepped for this as well as he can under the circumstances. True to form, he has tried to sandbag us on a witness.

  Margaret Miller is Jack Vega’s neighbor. Harry and I had talked to her in the weeks following the murder. She had given us dirt about Melanie’s male visitors and the fact that she had seen Laurel twice at the Vega home on the night of the murder, the first time when the two women argued on the front porch. The second visit was closer to the time of the murder, and Miller has told the police that she saw Laurel in a sweatshirt and hood out on the street in front of the house.

  The problem here is one of procedure and fundamental fairness, something as alien as moon rocks to Lama.

  I turn to Jimmy in the witness box.

  We establish the facts, that he heads up the investigation in the case, and that he interviewed Mrs. Miller.

  ‘How many times did you interview her?’

  Lama’s counting on his fingers. ‘Three…’ A glazed look in his eyes as he thinks back. ‘Three interviews and a lineup,’ he says.

  ‘And at this lineup did Mrs. Miller identify Laurel Vega?’

  ‘She did. She said the defendant was at the house twice that night.’

  ‘This lineup – it was the one attended by my colleague, Mr. Hinds?’ I look over at Harry.

  ‘Yeah. He was there. He didn’t object, say anything was wrong at the time,’ says Lama. Getting in his digs.

  ‘Was that the only lineup you conducted for this witness?’

  He makes a face. ‘How do you define lineup?’ he says. Knowing Lama, he is not above a little perjury – it’s just that if he’s doing it, he wants to know it.

  ‘I’m talking about a live appearance of the defendant with other potential suspects before the witness.’

  ‘Then that was the only lineup,’ he says.

  Harry has advised me that Laurel was picked out of a group of five other women, all dressed as she was, in jail togs. The women were all of the same approximate height and coloring. Each one was asked to step forward and one at a time to don a sweatshirt with a hood, and to give a full profile, both sides of her face, to the witness, who was in a booth, behind a glare screen. It was a textbook lineup, no suggestions by Lama or the other cops who were present. The problem, it appears, developed earlier.

  ‘Before you scheduled the lineup for the witness, did you have occasion to show Mrs. Miller some photographs?’

  ‘Yeah.’

  ‘How many photographs did you show her?’

  He makes a face. ‘Four, five, maybe a half dozen?’ He leaves a lot of wiggle room.

  ‘And was Mrs. Miller able to identify the defendant from the photographs shown to her?’

  ‘She was.’

  ‘Did you bring these photographs with you?’ I know that he has because I have subpoenaed them. It is reversible error, grounds to exclude Mrs. Miller’s identification if he cannot produce all of the pictures used.

  Lama’s holding a large manila folder, an inch thick, overflowing with a couple dozen photographs, various sizes, black-and-white and color.

  He hands me the folder. Jimmy’s starting to play games -hide the trees in the forest.

  ‘This is all very nice.’ I start to chew his ass. ‘But I subpoenaed the photographs used in the identification by Mrs. Miller, not your entire file.’

  ‘They’re in there,’ he says, like you find ’em.

  I hand the file back to him. ‘Show me.’

  He makes like a table with the railing in front of the witness box and starts propping up pictures, first one, then another.

  ‘I think it was this one. No. No. This one here.’ He goes through twenty shots and finds two that look familiar.

  The law is clear. A defendant has an absolute right to the presence of counsel at a lineup, something that doesn’t attach to a photo identification. But there are rules. The police are free to show a witness pictures of a suspect who is in custody, as a prelude to a more formal lineup. The problem develops when the photo identification is so suggestive as to single out the defendant and therefore poison the whole process.

  It is the kind of game that Lama lives for – sear some picture of your client into the mind of a witness, with all the finesse of a branding iron on a bovine’s ass, and then run the suspect through the loading chute of a lineup. This is Jimmy’s kind of sport.

  It takes Lama three minutes, and he is certain only about the picture of Laurel, an eight-by-ten color photo with bright lights in her eyes and numbers jammed under her chin on a placard. As for the other four shots of women he pulls from the file, he thinks they are the ones used in the photo lineup.

  These are harmless, all color shots, the same size as Laurel’s of women in booking poses with white numerals on black placards.

  Lama wiggles and twists like a worm on a hook when I ask him if he’s absolutely certain that these are the photos. I press him.

  ‘Pretty sure,’ he says.

  This gets the eyes of the judge looking at him.

  ‘Lieutenant, I ask you for the last time – are you absolutely certain that these are the photographs used in the identification of Laurel Vega?’

  Cassidy’s looking at him. A critical piece of evidence hanging in the balance. If he says no, the fate of the witness is sealed. The law is clear. The identification must be excluded. The defense has an absolute right to see the pictures used to identify a suspect, to test the validity of the process. If the state can’t produce them, that’s all she wrote.

  Sweat on Jimmy’s head. Looking at me, then to Cassidy.

  ‘Yeah,’ he says. ‘They’re the ones.’ He leans as if he’d like to say it – ‘I’m pretty sure’ – but I’m waiting to kick his ass and he knows it.

  The sigh from Cassidy at her table is nearly palpable.

  ‘That’s all for this witness,’ I say.

  ‘Anything on cross?’ says the judge.

  Cassidy begs off.

  Lama starts to leave with the folder of pictures.

  ‘I’d like to keep those for the moment.’

  He starts to pick through, to hand me the five he identified.

  ‘All of them,’ I say.

  A look that could kill, then he hands me the folder.

  I ask the court if another attorney can join Harry and me at the table.

  Cassidy is all eyes.

  ‘Any objection?’ The judge looks to her.

  She steps into it with trepidation, the two women locking eyes.

  ‘I know Ms. Colby well,’ she says. Some light banter – what Dana’s doing slumming in the state courts. The two women exchange stiff smiles. ‘Though I would like to know what a Deputy U.S. Attorney is doing in these proceedings.’

  ‘Here in an unofficial capacity,’ I tell the court.

  ‘What’s the purpose?’ says Cassidy.

  ‘Professional courtesy,’ I tell her.

  The court allows her to come inside the railing and sit in the chairs behind us but not at counsel table.

  Close enough for my purposes, I think.

  Miller has been outside, sequestered in the hallway. We had a cordial conversation by phone a week ago, a follow-up to our earlier meeting. We talked about the lineup and the photo ID, a conversation that proceeded with regularity until near the end, when she asked a question.

  Lama takes his seat next to Cassidy. He’s whispering in her ear.

  ‘I hope this won’t take long,’ says Woodruff.

  ‘A couple of minutes,’ I tell him.

  Margaret Miller is on the stand and sworn, the picture of fairness, what you would think of as womanhood if someone said ‘apple pie.’ She wears a print dress and an attitude like portraits on a candy box, hair like spun silk, all smiles and maternal warmth. Sitting next to Woodruff, the two look like the ‘before’ ad f
or some aging-hair elixir.

  I ask the court for a moment in private, and I spend my time turned away from the witness, talking in Dana’s ear, idle chatter, but obvious so that Mrs. Miller cannot miss this. Then I turn my attention to the witness.

  She identifies herself for the record, and we take up the details of the photo ID. I ask her if she remembers meeting with Lama on the day in question.

  ‘Very clearly,’ she says.

  ‘And did he show you some pictures?’

  ‘He showed me one picture first, by itself, the night that Melanie – Mrs. Vega – died, and then later several others.’

  ‘That one picture, do you remember it?’

  ‘Oh sure. Your client,’ she says. ‘I’ve seen plenty of pictures of her in the paper since.’

  I have wondered what Jack was doing with a picture of Laurel, the ex-wife he loathed, unless there was some design in this. It appears that he and Lama found a purpose for this photo in poisoning the wellspring of Mrs. Miller’s recollections, planting the seed that it was Laurel that Miller saw that night – an onslaught of suggestion.

  We talk about Lama’s photo lineup. I’m shuffling some of the prints in my hands, images down so she cannot see them.

  ‘Do you think you would remember those pictures if I showed them to you again?’

  ‘I think so. I could try,’ she says.

  I show her the first in the series, one of the shots offered up by Lama moments before.

  ‘Emm.’ She asks if she can hold it in her hand, so I give it to her. She’s shaking her head. ‘Maybe I don’t remember as well as I thought,’ she says.

  I try the next. No luck.

  It’s not until the third picture, Laurel’s, that she finally smiles. ‘That’s the one I identified,’ she says. She looks at me. ‘Your client, I believe,’ she says.

  I nod.

  She’s squinting at Dana in the distance.

  Finally Cassidy gets it.

  ‘Your honor, I’m going to object to the process being used with this witness.’ Cassidy’s out of her chair. ‘This is deceptive,’ she says.

  ‘A fair test of the witness’s memory,’ I say. I ask the court if I can approach for a sidebar, a conference at the bench.

  ‘What’s the problem?’ whispers Woodruff.

  Cassidy wants Dana outside the railing. She’s leveling assertions that I’m intentionally confusing the witness.

  ‘Lawyers are routinely allowed inside the bar,’ I tell him.

  He makes a face. ‘Fine,’ he says, ‘but no more private conversations with the lady.’ He gives me a look.

  ‘Fine, your honor.’

  We’re back out.

  ‘Mrs. Miller, can I ask you to look at a few more pictures?’

  ‘Certainly.’

  I give her the last two that Lama culled from the file. No cigar. She has no recollection of these. ‘But then I only saw them once,’ she says.

  ‘How many times did you see the picture of my client?’ I keep it face down so she can’t get another look.

  ‘Oh. At least twice, maybe three times,’ she says. ‘The officers showed it to me the first time they came to the house. They asked me if I ever saw the woman before.’

  ‘This was in connection with the death of Melanie Vega?’

  ‘Oh, yes.’

  ‘Did you assume from this that the woman in the picture might be a suspect in the crime?’

  ‘Objection,’ says Cassidy. ‘Calls for speculation on the part of the witness.’

  ‘I’m asking about her state of mind at the time,’ I say, ‘not what she thinks now.’

  ‘I’ll allow it,’ says Woodruff.

  ‘And they kept showing you this picture, the one of my client?’

  ‘Yes,’ she says.

  ‘Fair game,’ says Cassidy. ‘That’s a permissible process during the course of investigation.’

  ‘And a very good way to alter the memory of a witness,’ I tell the court.

  Woodruff wags his head from side to side. Maybe, but not sufficient to exclude the identification.

  I’m wandering in the courtroom. I end up leaning against the railing, a few feet from Dana, where we look at each other but say nothing.

  Lama’s talking to Cassidy, but she sees what’s going on and tears herself away.

  ‘Your honor, I’m going to object. This is a clear deception. Counsel would have this witness believe that Ms. Colby, the lawyer sitting there, is the defendant.’ She points toward Dana. ‘It’s a clear effort to confuse the witness, and I think it should be put on the record.’

  ‘What are you objecting to?’ says Woodruff. ‘I didn’t hear a question,’ he says.

  ‘I’m objecting to where counsel is standing.’

  ‘Give me a break,’ says the judge.

  ‘Fine,’ says Cassidy. ‘Withdrawn.’ She smiles, damage done.

  Lama has the back of one hand halfway down his throat, suppressing a high-strung cackle.

  Mrs. Miller gives me a look like ‘you nasty man.’ Still, she reserves a goodhearted smile. A woman who enjoys a contest of wits.

  So we’ll do it the hard way.

  ‘Mrs. Miller – did you think that the woman sitting here looked like the defendant? Like the woman in the photograph?’ I ask. It’s a fair question.

  Cassidy’s expression is little simpers, like good luck.

  ‘I thought maybe she changed her hair color,’ says Miller. ‘It’s different,’ she says. ‘But I think there is a little resemblance.’

  Apart from the fact that they share a gender, there is virtually no likeness between Laurel and Dana. What mischief suggestion can play with the human mind.

  ‘Now, you’ve looked at five photographs of different women, Mrs. Miller. Apart from the picture of my client, do you recognize any of the other pictures in the group?’

  ‘I can’t say that I do,’ she says.

  ‘Are these the pictures that Lieutenant Lama showed you at the time of the photo identification?’

  ‘I can’t be sure of some of them,’ she says. ‘But two I know are missing,’ she tells the court.

  ‘Which are those?’

  ‘The black woman,’ she says.

  Woodruff is incredulous. ‘He showed you a picture of a black woman?’

  She nods to the judge.

  Lama’s ducking for cover, slinking in his chair.

  ‘Lieutenant. None of these pictures, the ones you picked out, shows a black woman.’ Screw the fact that Lama isn’t on the stand. The judge wants an answer.

  Shoulders and a lot of shrugging from Lama.

  ‘What about it?’ says Woodruff.

  ‘I think the witness is mistaken,’ he says. Left with an alternative, admitting to perjury or impeaching the memory of his own witness, Lama’s made his choice.

  ‘You also missed the one that looked like my granddaughter,’ says Miller. ‘Remember? We talked about it.’ If the devil is in the details, Lama’s on his way to hell.

  It was the question about the black suspect from Mrs. Miller on the phone that alerted me. Why would a police officer show her a picture of a black woman when she had told him repeatedly that the figure she saw that night outside the Vegas’ house was white?

  I offer her the folder and ask her to look through it. She finds the black woman in twenty seconds, a mug shot of a face with corn-rows, a severe birthmark going up the side of her face into the hairline. There would be no confusing this with pictures of Laurel. It takes her a couple more minutes to find the other four photos. Like debutantes at a ball, these are not mug shots, but black-and-white glossies, like something from a high-school yearbook. Lama must have scoured the files of some local modeling agency for these. If you were going to pick a doer from among the bunch, it would not be this lot.

  ‘I told him that this one here looked like my granddaughter,’ says Miller. She holds up one of the photos, proud of the good-looking girl in her hand, all-American youth, a good twenty years younger than La
urel.

  ‘Your honor, I move that the identification of the witness be excluded.’

  Cassidy is hissing profanities into Jimmy Lama’s ear, feeling victimized by his shoddy practices. She breaks off in midsentence to salvage what she can.

  ‘Your honor, the witness may have an independent recollection of the defendant, untainted by the photographs.’ Morgan’s out of her chair, open palms to the bench, the supplicant. ‘It could be harmless error,’ she says.

  ‘You have a strange notion of error, counsel.’ Woodruff bearing down from the bench. It is one thing to argue legal points, another to mislead a court. Lama has crossed the line. The only question for Woodruff is whether Cassidy was along for the ride.

  Woodruff, for a show of fairness, allows her a chance to redeem the evidence. A token gesture. I think he’s already made up his mind. What happens when you drag lies before a court.

  Cassidy’s off-balance. She throws a few softball questions at Mrs. Miller. Whether she had a firm recollection of the figure she saw that night in front of Vega’s house. Whether she had a clear view.

  Rattled, and now unsure of what is happening, thinking that perhaps she has done something wrong, Mrs. Miller is filled with equivocations, not certain of her recollections. It’s been a long time; it was dark that night; the woman wore a hood – enough backstroking for an Olympic medal. Try as she will, Cassidy can’t get the witness to hurdle the fence back to the land of certainty.

  Finally she puts an end to a painful process.

  ‘Your honor, we would argue that any error is harmless.’ She makes a final stab. But no gold ring.

  ‘The motion is granted,’ says Woodruff. ‘The identification of the defendant by this witness is excluded.’

  ‘Is there anything else?’ he says. Woodruff is looking at Cassidy. He is clearly angry, a sense that he has been badly used by Lama. What a judge feels when he knows he’s been lied to. If jeopardy had attached, and I had some plausible grounds for dismissal, I would lay them before the court at this moment.

  A pained expression on Jimmy’s face. Woodruff wants to see him in chambers after lunch. Lama had better hope that the judge takes his from a bottle and that Woodruff is a happy drunk.

  Chapter 18