Open and Shut ac-1

by David Rosenfelt

  THE EYEWITNESS, CATHY PEARL, HAS BEEN A single mother since she was eighteen, supporting her daughter by working until one A.M. each night in a run-down diner. That daughter, as Wallace lets her proudly reveal, has just won a scholarship to Cornell University. Cathy is the type of person that juries believe, and very definitely not the type of person they like to see dismantled on the stand.

  Wallace takes her through her history, right up to the frightening moment when she saw Willie Miller standing over the bloody body of Denise McGregor.

  “How did you happen to be in that alley that night, Ms. Pearl?”

  “The diner I work at is on the next block. I cut through the alley on my way home from work. It saves about ten minutes, and at one o'clock in the morning, every minute counts.” Everybody, jury included, chuckles at this comment. Everybody except me.

  “Please describe what you saw.”

  She proceeds to describe the scene in graphic, stark terms. She saw Willie standing over the body, and he saw her as well, but instead of attacking her he ran off. She thanks God for that every day, and she especially thanks God that she was able to pick him out of a lineup the next day.

  Cathy is a very credible witness, and based on the jury's reaction to her I don't know whether to cross-examine her or ask for her autograph.

  “Ms. Pearl,” I begin, “was it unusual for you to cut through this particular alley?”

  “No, I do it every night.”

  “Every night? At the same time?”

  “Yes. I got off at one o'clock, and I sure didn't hang around. At one sharp, I was out of there. Every night.”

  “So anybody watching your pattern over some time would have known you were going to be there?”

  “Why would somebody want to do that? I don't think anybody was watching me.”

  “I understand that. But if somebody were watching you, even if you were unaware of it, they would know that you go by there every night just after one o'clock?”

  She looks at Wallace for help, but there is none forthcoming.

  “I suppose so, yes.”

  “Thank you. Now, you testified that you didn't actually see the defendant stabbing Denise McGregor, you just saw him standing over her body. Is that correct?”

  Cathy nods a little too hard, pleased that this is something she can agree with. “Right. He was just sort of standing there, looking at me. Not moving much.”

  “I would think something like that must have been very scary, particularly at that time of night.”

  Another vigorous nod. “Yes, it was.”

  “Did you run away?”

  “Well, no … not right then … at first I didn't know it was a body he was standing over. It was dark.”

  “Dark?”

  She quickly tries to correct what she realizes was a bad move. “Not so dark that I couldn't see.”

  I nod. “I understand. It was the kind of dark where you could see a face but not a body. That kind of dark.”

  “Well …”

  “And then the defendant looked at you. Is that right?”

  “Right. And he looked weird. Out of it.”

  “Maybe drunk?”

  “Right. Yes.”

  “And what was he doing with the knife?”

  “I didn't see a knife,” she says.

  I look at the jurors, to confirm that they find this as confusing as I do. They don't, but they will.

  “Help me out here. In the kind of dark where one can see faces but not bodies, do knives show up?”

  Wallace stands. “Objection, Your Honor. This is badgering.”

  “Sustained. Rephrase the question.”

  “Yes, Your Honor.” I turn back to Cathy. “So you didn't see a knife?”

  “I've said that all along. I didn't see a knife. I'm not saying it wasn't there, I just didn't see it.”

  “No doubt he had run three blocks, placed it in the trash with his fingerprints and blood still on it, and returned in time to be there for your one o'clock walk.”

  This was aimed at Wallace, but Cathy feels the need to defend herself.

  “I know what I saw.” She points to Willie. “I saw him.”

  I shake my head sadly. “No, Ms. Pearl, I'm afraid you have no idea what you saw.”

  “Objection.”

  “Sustained. Watch it, Mr. Carpenter.”

  “Yes, Your Honor,” I say, “I will.” So I rephrase: “Now, Ms. Pearl, since it was light enough to see the defendant's face, and since he looked right at you, is it fair to say he could see your face?”

  “Sure … I guess.”

  “But he didn't try to hurt you? To do to you what you believe he did to Denise McGregor?”

  “No, he just ran away.”

  “Yet he should have realized that you could identify him, isn't that right?”

  “I guess …”

  “He would have known you could someday be an eyewitness, just like you are now?”

  “I suppose so.”

  “Maybe he had nothing to hide,” I say. “No further questions.”

  Wallace gets up to rehabilitate her. “Ms. Pearl, when was the next time you saw the defendant after that night?”

  “The next morning, at the police station. He was in the lineup. I picked him out right away.”

  “With other men?”

  Cathy nods. “A bunch of them.”

  “And you had no doubt he was the man you saw in the alley the previous night?”

  “No doubt. He was the one. I was positive then, and I'm just as positive now.”

  Cathy leaves the stand. I definitely did not do enough to damage her. She seemed credible and has no reason to lie. If I were on the jury, I would believe her. And if I believed her, I would vote to convict Willie Miller of murder in the first degree.

  I barely have time to reflect on how depressing the situation is when it gets considerably worse. Wallace tells Hatchet, “Your Honor, the state calls Randy Sacich.”

  This is not good news; I've never heard of Randy Sacich, and witnesses that I've never heard of are the absolute worst.

  “Your Honor,” I protest, “there is no such person on the state's witness list.”

  Wallace nods. “We regret that, Your Honor, but Mr. Sacich only came to our attention late yesterday. Our people were questioning him this morning to confirm that he is a reliable witness.”

  “Your Honor,” I reply, “I'm not sure our ‘people’ would come to the same conclusion as Mr. Wallace's ‘people.’ In any event, there should not be surprise witnesses before these people.” I point at the jury to show who I am referring to.

  Hatchet sends the jury out of the room, and Wallace and I kick it around some more. Hatchet buys his position, and Sacich is allowed in. As the jury comes back into the room, I speak to Willie.

  “Do you know who this guy is?”

  “Nope.”

  With the jury seated, Randy Sacich is brought in, and Willie stiffens in surprise. He leans in to me.

  “He's the guy in the cell next to me.”

  “Did you tell him anything incriminating?”

  “What's that?”

  “Bad. Did you tell him anything bad?”

  Willie is wounded. “How many times I got to tell you, man? I got nothing bad to say.”

  Wallace apparently believes otherwise. He takes Sacich through his connection to this case, which is basically one of geography.

  “I'm in the cell next to his.”

  Wallace continues, “And from this vantage point, are you two able to talk to each other?”

  “Sure,” Sacich says. “Right through the bars.” He says this matter-of-factly, as though they live in suburbia and stop by to borrow cups of sugar.

  “Did Mr. Miller ever mention the crime for which he is currently imprisoned?” Wallace asks.

  Sacich nods agreeably. “Sure, he talked about it all the time. He didn't talk about nothing else.”

  “Did he ever speak to the legitimacy of the charges?”


  “Huh?”

  Wallace rephrases. “Did he ever say whether or not he had done it?”

  Randy responds softly, almost hard to hear. “Yeah, a bunch of times. He said he did.”

  “Please speak up so that the jury can hear you, Mr. Sacich.”

  As rehearsed, Sacich turns to the jury. “He said he sliced her up and watched her guts pour out.”

  The jury recoils in horror from this, and there is an audible rumble in the courtroom. Hatchet bangs his gavel and demands quiet. He gets it.

  Wallace finishes with his questioning and Hatchet calls us to the bench. Out of earshot of the jury, he gives me the option of adjourning for the day and starting cross-examination tomorrow, or going ahead right now.

  It's a difficult choice. If I delay, the jury sits with this in-controverted bombshell all night. If I go now, I do so without any background information on Sacich and his story. I will be breaking the cardinal sin-asking questions I do not know the answers to.

  I consult briefly with Kevin, and he agrees with my assessment. We've got to go ahead now.

  “Mr. Sacich, how did you come to live in the same neighborhood as Mr. Miller?”

  “What do you mean?”

  “Well, I'm not asking who your real estate agent was, or how big a mortgage you took out on the cell.”

  “Objection.”

  “Sustained. Mr. Carpenter, less sarcasm and clearer questions would be appreciated.”

  “Yes, Your Honor. Mr. Sacich, why are you in jail? What crime were you convicted of?”

  Wallace objects as to relevance, and I tell Hatchet that since I had no time to depose this witness, I really need a little leeway. Besides, the offense he has been convicted of might well go to credibility.

  Hatchet overrules the objection and instructs Sacich to answer.

  “Rape.”

  I nod. “Rape. I see. Who did you rape?”

  Sacich's eyes dart around the room; he thought he was here to talk about Willie, and now he's being asked to confess to rape under oath.

  “I didn't say I did it.”

  “Did you do it?” There's no downside to this question. If he says no, he looks like a liar. Yes, and he's a rapist. It's like the old “Do you think I'm fit to live with pigs?”

  “No,” is his answer.

  I walk over to the jury box. “Did a jury, sitting in a jury box like these people, vote to convict you?”

  “Yeah.”

  “You wouldn't lie about whether you actually committed the rape, would you? Because if you did, then how could this jury believe anything you say about this case?”

  “I'm not lying.”

  “So the jury was wrong?”

  “Objection. Asked and answered.”

  “Overruled. You may answer.”

  “Yeah. The jury was wrong.”

  “Now, as to what Willie Miller may or may not have told you-”

  He interrupts. “He told me he did it.”

  “Did anyone else hear him make the confession?”

  “I don't know. You'd have to ask them.” He's getting more and more belligerent.

  “But when you heard it, when he said it to you, were the two of you alone, or was there anyone else around?”

  “We were alone.”

  “How long have you been friends with Willie Miller?”

  “We just met … we sit there all day and we talk some.”

  “Do most people consider you a good listener? Do they have a tendency to confide in you?”

  He nods; this is something he can agree with. “I guess so. Sure. I'm a pretty good listener.”

  “Do you have any experience in the ministry?” This draws a laugh from the gallery and jury, and an objection from Wallace.

  “Your Honor, this is ludicrous.”

  “Sustained.”

  “Did anyone promise you anything at all in return for your testimony today?”

  “No.”

  “No talk of a lighter sentence, or of the authorities treating you more favorably in the future?”

  Sacich looks toward Wallace, worried about what he is supposed to say. I jump on this. “Do you want to consult with Mr. Wallace? We can take a few moments, and you can get further coaching if that will help you.”

  “Objection! This witness has not been coached, and I resent the implication that he has.”

  “Sustained.”

  “Mr. Sacich,” I continue, “what did the authorities say would result from your testimony today?”

  “They told me it would look good on my record.”

  “Who reviews that record?”

  “The parole board,” he says grudgingly.

  It's time to wrap this up. “Okay, Mr. Sacich,” I say, “let's forget about logic and your lack of credibility for a moment, and let's assume this happened the way you said, that Willie Miller told you he had done this crime. Do you believe everything you hear in prison?”

  “Depends,” he allows.

  “Do you think people ever lie, maybe to make themselves look tougher in the eyes of other inmates, distinguished innocent citizens like yourself? Or do you think that everyone in maximum security prisons is scrupulously honest?”

  “Look, I just know what he told me, and he didn't seem to be lying.”

  I shake my head sadly. “I'm surprised, Mr. Sacich, because you of all people should know lying when you hear it.”

  I dismiss Sacich, and Wallace has only a few follow-up questions for him. Kevin's slight nod to me indicates that he believes we have effectively neutralized Sacich's testimony, and I agree.

  Wallace calls Diana Martez, another name I am not familiar with. I am about to stand and object, when Kevin points to her name on the list. It says that she works at Cranford Labs, a company that does work in DNA and more conventional blood testing. We never bothered to interview her because we had planned our strategy in this area, which was to argue about the collection techniques and possible contamination of the samples, rather than about the science itself.

  I'm surprised that Wallace is calling Martez at this point in the case, but I'm not worried about it. That changes the moment she walks into the room and I see Willie Miller's face. All he says, very softly, is “Ooohhh, shit.”

  All I can do is sit there and brace myself for what is sure to be a disaster, and it is just that. Martez is a twenty-six-year-old Hispanic woman, whose connection to the case has nothing whatsoever to do with the laboratory at which she works. That is a coincidence, and one which Wallace knew he could rely on to minimize the likelihood of our checking her out in advance.

  Wallace leads her through her story, which takes place on a June night nine years ago, almost three years before the McGregor murder. Speaking with a heavy Spanish accent, she relates meeting Willie Miller at a bar. He was drinking heavily, but she agreed to go outside with him. He walked her into an alley behind the bar, where he became verbally abusive. When she tried to leave and reenter the bar, he punched and kicked her.

  “I screamed. I begged him to stop, but it was like he couldn't even hear me. I thought he was going to kill me.”

  “What happened next?” asks Wallace.

  “His friends came out and pulled him off of me.”

  “Was that easy for them to do?”

  “No, it took four people. He was completely out of control. Kicking and screaming profanities.”

  “Did you speak to any of them afterward?”

  She nods. “Yes, they said he had done this before, that he had a drinking problem he couldn't control.”

  Wallace draws out of her the fact that she was treated at a hospital for her injuries, and produces the emergency room record to substantiate her account. He then turns her over to me to cross-examine. I have no idea what the hell to ask her.

  “Ms. Martez, did you report this alleged incident to the police?” I ask.

  “No, I was not a citizen then, and-”

  “You were here illegally?”

  “Yes, but now I
am an American. I became a citizen two years ago,” she says proudly. Great, next I'll get her to show the flag she's knitted to hang over the courthouse.

  She tells the court that she was afraid to report the incident, because she did not want to risk deportation. And she didn't see any coverage of the first trial, because she was in another city living with her sister. It was only when she saw the current media blitz that she recognized Willie and came forward, which she considered her duty as a citizen of America, the country she loves, the land of the free and the home of the brave.

  I end my cross, before I do any more damage to my client's case. I do this even though I would very much like to kill my client for not telling me anything about this.

  Kevin, Laurie, and I arrange to meet with Willie in an anteroom after the court session, and we sit there talking, waiting for his arrival. Kevin is distraught that he blew it by not following up on Martez's name, but I don't blame him. I blame myself.

  “I didn't lay a glove on her.”

  “How could you?” Kevin asks.

  I ignore that; it doesn't fit in with my self-flagellation. “I'm a lawyer defending somebody on trial for his life. I'm supposed to be prepared.”

  Laurie tries to change the subject to the defense's case, which is coming up rapidly. She asks who my first witnesses are going to be.

  “Witnesses?” I ask. “You mean I'm supposed to have witnesses that can help my client?”

  “Andy-”

  I cut her off. “I must have been out the day they went over that in law school. Because I don't have a goddamn thing, and-”

  I could go on like this for hours, but I'm interrupted by Willie being led into the room. Thank goodness, the one person I'd rather beat up than myself.

  Willie, in an uncharacteristically contrite manner, tells us that the story Diana Martez told is true. He had a drinking problem for over three years, but he became sober at least six months before Denise McGregor was killed.

  “You told us you never had a problem with alcohol before,” I say.

  “I was embarrassed, okay?”

  This man who has been on death row for murder for most of the past decade was embarrassed to reveal that he had a drinking problem, which he subsequently conquered. The mind boggles.