“Do you also receive a pension from the Orlando Police Department?”
“Yes, I do.”
“Was Mrs. Zide aware that you would receive that pension?”
“I told her, of course.”
“And in addition to that pension, and above the quarter-of-a- million-dollar lump-sum payment she gave to you, Mr. O’Rourke, in the past eight years has Mrs. Zide paid you any more money?”
“She has not, but I receive a check from one of Mr. Neil’s companies, every month, for four thousand dollars.”
“Health insurance and major medical?”
“I have that from them too.”
“Did you ever expect such handsome retirement benefits?”
“No, but I’ve told you, they are good people.”
“Pass the witness,” I said.
This time it was Muriel who jumped up to do the cross. She and Beldon thought highly of young Whatley, but Muriel wanted Terence O’Rourke for her own. She beat at him, she insulted him, she questioned his sobriety and his mental capacity and even his loyalty to his former employers, tried to twist his words and hammer at his memory and degrade his story in any way she could—as any lawyer would have done had he or she been standing in her shoes—indeed, as I would have done had I been the prosecutor.
Like infidelity, the law is a cruel sport.
I held Muriel in check as best I could by objecting to just about every other question. It was unnecessary: Terence wouldn’t budge. He was telling the truth, and the more Muriel tried to twist the knives of ridicule and doubt, the more certain he became. Finally she said, “I have no more questions,” and I thanked Terence, and the court told him he could leave.
Judge Fleming looked down from his lofty position on the bench. He was king and emperor and court jester. “Is that all?” he asked me. “You look like death on a cracker. Are you ready to go home and get some sleep?”
“No, Judge, I’m just fine, and I have one more witness. And possibly a second one.”
“Can we get them done this afternoon before we close up shop?”
“Yes, sir,” I said, somewhat recklessly. “They’re both here in the courtroom.”
“Let’s hear the first one.”
“The defense calls Constance Zide.”
Chapter 31
“YOUR HONOR, I would like to declare Mrs. Zide to be a hostile witness.”
“Objection!” cried Muriel Suarez.
“State your reasons,” Judge Fleming said, clutching his coffee mug and peering down at me.
“I’m going by Rule 90.62 Subsection 2,” I said, “of the Florida Criminal Code. Mrs. Zide has already been a witness for the state in the jury trial and in this hearing. That makes her adverse by any standards. If she’s my witness now, and presumed to be friendly, I can’t ask her leading questions. And I don’t believe I can get her to speak the truth other than by leading her.”
“You want to cross-examine her, Mr. Jaffe? Is that what you’re telling me?”
“Yes, Your Honor. But with some latitude.”
“You could have cross-examined her day before yesterday, when she was a witness for the state. You said you had no more questions.”
“But I asked to have her stay on call.”
“And she has.” He pointed with his bony hand. “She’s here in the courtroom, isn’t she?”
“Yes, Your Honor, she’s right here.”
“So I’ll let you cross-examine her, but the cross has to be limited to those matters she discussed under direct examination by Ms. Suarez. Those are the rules of evidence, sir, and they’re my rules too. Don’t you consider them fair?”
Yes, but they weren’t what I wanted. I wanted to open up new territory, and I couldn’t do that under his rules.
“Your Honor, I understand your point. And therefore I repeat my motion to declare this witness as adverse and hostile.”
The judge smiled at me as if I were a backward child. He sipped his coffee, then leaned forward toward Muriel in a gentle, inquiring fashion. “Madam Prosecutor, what say you?”
“There’s no indication at all of hostility on the part of Mrs. Zide,” Muriel fired back. “He asked her to stay on call, and she did. Defense counsel wants to go on a fishing expedition. Let’s have a proffer. Then we’ll know what kind of fish he’s after, and what he’s using to bait his hook.”
The judge added a nod and a twinkle to his smile. Fish-and-bait was his style of metaphor. Muriel had also learned how to deal with him.
A proffer was an offer before the court, in the presence of opposing counsel, as to what you planned to do. In this instance, a proffer seemed like a logical request—there were no jurors present to be confused by what was going on. Moreover, a proffer would quickly tell the judge if Connie was what I claimed her to be: a hostile witness. But it would also prepare Connie, and alert Muriel to my intentions.
“A proffer’s a good idea,” the judge said. “Mr. Jaffe? Tell us what you’re going to try to prove.”
Muriel gave me a soft, smug look. Still friends, sweetie?
“I withdraw my motion, Your Honor”—I tried not to look too hangdog—”although I reserve the right to renew it. I’ll take the witness on direct, and we’ll consider her to be friendly.”
Muriel swooped in for the coup de grace. “I want to remind opposing counsel that if she’s his witness now, he vouches for the truth of what she tells us.”
I spread my hands as if to say, “Win some, lose some,” and turned to Connie, who had sat there in the box with hardly a change of expression during this entire colloquy. Her eyes were quiet and dull; she almost seemed drugged. And I began:
“Do you recall, Mrs. Zide, that when your son testified I asked if I might call him Neil? Because we’d known each other socially for fourteen years?”
“Yes, I recall that,” she said calmly, “and if you’re going to ask me the same question, the answer is of course yes. Please call me Connie.”
“Actually, Mrs. Zide, I wasn’t going to ask the same privilege of you. I was going to ask if you’d tell the court how I met Neil.”
She looked briefly flustered, a little hurt. She clasped her hands together in her lap. “You met him through me, I believe.”
“And how did you and I meet?”
From the corner of my eye I saw Muriel open her mouth to object. She could have done so on the grounds of relevance, although I would have battled her. But she closed her mouth. Surely no danger lurked in such a question, she must have thought.
Connie smiled gently, and briefly related to the court the story of her mugging by Alejandro Ortega in the parking lot of the Regency Plaza Mall. Enter her hero. All’s well that ends well.
“I asked you a question that day, Mrs. Zide, and I imagine you’ve forgotten it. But I’ll ask it again, if you don’t mind. When you ripped the gold chain off the young man who had attacked you outside Dillard’s, weren’t you frightened that he’d retaliate?”
Muriel still looked puzzled, and so did Judge Fleming. And Muriel still held back.
“No,” Connie said, “not really. I was just acting on impulse, as I recall. Not thinking clearly.”
“Were you armed?”
A little nerve in Connie’s cheek twitched. She said, “Armed?”
Now Muriel jumped up swiftly to object. “Where’s this going, Your Honor? It’s certainly an odd line of questioning. What’s the relevance? Can we have a proffer on that?”
The judge looked at me, shrugged, and nodded his approval.
“Of course, Your Honor,” I said. “Mrs. Zide told me on that occasion that she was armed. That, indeed, she carried a pistol in her handbag and was prepared to use it in an emergency.”
Muriel nearly exploded. “Your Honor, that’s out of line! He’s not testifying!”
“You asked for a proffer, Ms. Suarez,” the judge said. “And he gave you one.”
She’d been bushwhacked, and she saw it immediately. She stepped back, sighing. Even though no
jury was present and it wasn’t necessary to act, she rolled her eyes heavenward.
Judge Fleming focused again on Connie. “I’ll allow the question,” he said. “You may answer, Madam.”
“Shall I repeat it?” I asked Connie, when still she hesitated.
“Yes, please.”
“Were you armed that day in the parking lot outside Dillard’s, fourteen years ago?”
“Yes,” she replied.
I was over the first hurdle. She could have said no. There was no way I could have proved it.
“Armed with what, Mrs. Zide?”
“A pistol.”
“Where you did you carry it?”
“In my handbag.”
“What kind of pistol was it?”
She hesitated, twisting the rings on her fingers. “I don’t really remember.” That, of course, was why she felt safe in admitting she’d been armed.
She was my witness; I couldn’t hack at her without incurring the wrath of the court. I couldn’t impeach her by questioning her veracity.
But I could nibble at the edges of it.
“Are you sure you don’t remember, Mrs. Zide?”
“Objection!” Muriel said angrily. “Asked and answered!”
“True,” the judge responded. He gave me a stern look. “Go forward, Mr. Jaffe.”
“Was it a revolver or an automatic, Mrs. Zide?”
“Asked and answered!” Muriel cried again. “She said she didn’t remember!”
“Withdraw the question,” I said. “Did you have a license for that pistol, Mrs. Zide? Or were you carrying it in your handbag, as a concealed weapon, illegally?”
“Objection!” Muriel cried.
“On what grounds?” the judge inquired.
“Relevance!”
“Seems harmless enough to me. You may answer, Mrs. Zide.”
Connie had little choice. In a trembling voice she said, “I don’t remember.”
She had good instincts; “I don’t remember” was the safest place to hide, and it was exactly what I had feared.
I turned to the judge. “Your Honor, on this specific matter of her carrying a weapon, since the witness is evasive, I ask her to be declared adverse and ask permission to cross-examine.”
Muriel almost danced up and down in anger. “She’s not being evasive! It’s fourteen years ago, and she doesn’t remember! He has to accept that!”
Judge Fleming, looking almost sad at the decision he felt he was forced to make, said to me, “I’m afraid that’s so, Mr. Jaffe. Her memory isn’t fresh, and we have to live with it.”
“Perhaps I can refresh her memory,” I said.
“You may do that, sir, but not by cross-examining her.”
I reached into the folder in front of me on the counsel table and took out a cream-colored document. Gary had dug for me in the deepest recesses of the county’s files. But it was too long ago; no record of Connie’s pistol registration existed, not even on microfilm.
I said, “I would like to place this in evidence, Your Honor, and then have my witness examine it.”
Connie blanched. She looked at Muriel, waiting for an objection, but now none was forthcoming. There were no grounds for one, and Muriel, like the court, was waiting.
Connie blew out her breath and said quietly, “Wait. I remember now. It was registered. I did have a permit, of course. I wouldn’t carry a pistol illegally.”
“And now that you remember that you had a permit for the weapon,” I said, waving the piece of paper at her, “does that jog your memory to remember what kind of pistol it was, Mrs. Zide?”
“Yes, I think so.”
“Objection!” Muriel barked.
“She’s answered!” I barked back.
“And the objection is overruled,” the judge said.
I raised my voice but tried to be calming, composed. “Would you be kind enough to tell us, Mrs. Zide, what kind of pistol it was?”
“A Smith and Wesson Chief Special.”
“Do you recall the caliber?”
She hesitated, and the muscles of her face seemed to sag. I waved the paper in my hand slightly. She said, “I believe it was a thirty- eight-caliber.”
“And it fit in your purse?”
“It was only a little gun.”
“With a two-inch barrel?”
“That’s possible. It was small.”
“May it please the court,” I said, “that this document in my hand be marked defendant’s ‘A’ for identification?”
I walked to the bench and handed the cream-colored piece of paper up to Judge Fleming. He stared at it in puzzlement, blinked a few times behind his tortoiseshell spectacles, then cocked a shaggy white eyebrow.
“Mr. Jaffe, this paper is your sworn affidavit that Mrs. Zide told you she carried a pistol in her handbag. It’s not a registration permit to carry that pistol.”
“I never said it was, Your Honor.”
“Damn you!” Connie cried at me, before Muriel could intervene.
It was all I needed. “Your Honor, this witness is demonstrably hostile! And this witness has been evasive. I can’t get her to be responsive other than by frightening her or by asking her leading questions. I don’t want to frighten her—that’s not fair. I renew my motion to cross-examine.”
Muriel said angrily, “That business with the affidavit was sheer trickery! There’s no basis for the renewal of the motion!”
“Why?” the judge inquired. “He didn’t make any statements that it was other than an affidavit. He even showed it to us. Who did he trick? Or whom? There’s no jury. You’re too smart to be tricked. And the witness had her memory refreshed.”
“It’s cheap, Your Honor!”
“Flashy, maybe. Not what I’d call cheap. Kind of like a Rolex as opposed to a Timex. I’m going to grant his motion to cross-examine.” He turned back to me and wagged a crooked finger. “No more stunts, though, Counselor. We’ve been entertained, but once is enough. Just ask proper questions.”
“Yes, sir!” I said, as if he were a general and I were a lieutenant. “May we have a ten-minute break, Your Honor?” Muriel said sharply.
Connie came back to the witness stand. Her anger had waned. Her eyes were clear and her gaze steady, as if she had been through something and had triumphed over it. The buzz in the courtroom subsided, and I began again.
“Mrs. Zide … you’ve been in this courtroom during previous testimony, haven’t you?”
“Yes, you’ve seen me here.”
“On Monday, you heard the testimony of your son?”
“Yes.”
“And this morning, the testimony of Mr. Stanzi, the ballistics expert?”
“Yes.”
“And also, this morning, you heard Terence O’Rourke, your former security guard?”
“Yes.”
“You heard certain contradictions between what those last three witnesses swore to and what you and your son said here in this courtroom under oath, didn’t you?”
“Contradictions?”
“Disagreements as to facts, if you will.”
“I’m not sure what you mean. There were some differences of opinion, but that’s natural, isn’t it? We’re talking about events that occurred many years ago.”
“What were those differences of opinion, as you call them?”
“I was generalizing. I don’t recall offhand.”
“Do you recall Mr. O’Rourke saying that on the night of your husband’s murder there was a single shot, and then, a minute or two later, three more shots?”
“Yes, I believe he did say that.”
“But thirteen years ago you swore under oath”—I glanced down at my notes and lifted a sheet of paper from the table—”that ‘there were three, four, five shots.’ Is that correct?”
“Yes, I believe so.”
I kept looking at the sheet of paper in my hand. “And didn’t you say, just two days ago, in your testimony here in this court: ‘The shots came one after the other. T
hen I rushed out to the terrace.’ Didn’t you say that under oath, Mrs. Zide?”
She had been bluffed and hurt once; she wouldn’t allow it to happen twice. That was where her calmness came from. “I don’t recall saying that on Monday, Mr. Jaffe. I did say there were a total of three or four shots, and of course I said I rushed out to the terrace. But that’s all I recall saying.”
“Is it your testimony now, Mrs. Zide, that the shots did not come one after another?”
“I’m not sure what you mean.”
“I’ll put it another way. Was Mr. O’Rourke telling the truth when he said there was a single shot, and then, a minute or two later, three more shots?”
“I don’t know.” She sighed. “It was so long ago.”
I handed her the piece of paper in my hand. “Would you identify this, please, Mrs. Zide?”
She stared at it for a moment. “It seems to be part of a trial transcript.”
“And the date, as notarized by the court clerk?”
“It says April 14, 1979.”
“And who is asking the questions?”
“I believe you were,” Connie said softly.
“And who is testifying?”
“I was.”
“That testimony took place in this same courtroom in which we sit today, did it not?”
“Yes.”
“When you testified here in April of 1979, a man was on trial for his life, was he not?”
“Yes.”
“Before a jury of his peers?”
“Yes.”
“The same man who sits next to me today?” I laid my hand on Darryl’s hot shoulder.
“Yes.”
“You identified this man as the one who shot your husband, did you not?”
“Yes.”
“And at that trial in April of 1979, there was a judge sitting on the bench, as Judge Fleming sits today, wasn’t there?”
“Yes.”
“Cloaked in black?”
“Yes.”
“Symbolizing the gravity of the occasion and the majesty of our law?”
“Yes, I suppose so.”
I frowned. “You weren’t sure that the trial of a man for murder was a grave occasion?”
“I’m sorry—yes, I was sure.”
“And on that occasion, before you testified, the clerk of the court asked you to raise your hand to God and swear to tell the truth, did she not?”
Clifford Irving's Legal Novels - 02 - FINAL ARGUMENT - a Legal Thriller Page 33