by Adam Mitzner
“You heard Ms. Kaplan refer to our client over and over again as Legally Dead. But that’s just a stage name. Like Lady Gaga or Pink or Eminem. No one actually calls him Legally Dead in real life. His friends call him L.D., and that’s what we’re going to call him.
“I’d be the first to admit that his lyrics are often harsh, but even hip-hop artists fall in love,” I told the jury, trying to wax poetic. The reference to L.D. as a hip-hop artist, rather than as a rapper, was deliberate, our attempt to conjure a softer image, more Drake or Bruno Mars than 50 Cent. “L.D. loved Roxanne, and for that simple reason, no one wants justice for Roxanne more than he does. But there can be no justice for Roxanne unless L.D. is found not guilty. He is innocent of this horrible crime, and the only way Roxanne’s murderer will be brought to justice is if you find L.D. not guilty.”
I went through the mirror opposite of Kaplan’s opening, listing the evidence that wasn’t there. “Keep focused on what the prosecution cannot prove,” I said, trying my best to suggest that something sinister was afoot. “The prosecutor, Ms. Kaplan”—and then I did the pointing thing right back, extending my arm in Kaplan’s direction—“is going to ask you to assume all sorts of things. But assumptions aren’t facts or evidence. So don’t be tricked by them.
“The biggest assumption the prosecution is going to ask you to make is also the most unfounded, and that’s about the song Ms. Kaplan played for you. She says it’s about Roxanne, but what evidence does she have for that? Zero. Nada. Zilch. The truth is, it’s just a song. It doesn’t reflect L.D.’s innermost feelings. Do you think Elvis really owned blue suede shoes? Did the Beatles really all live in a yellow submarine? These are made-up stories set to music. So is the song that Ms. Kaplan played for you. It’s a work of brutal fiction.”
The last five minutes of my opening were all SODDI. But I followed Nina’s advice, not once naming Brooks as our SODDI guy, just in case we needed to go in a different direction after we saw the evidence.
“If L.D. did not commit this crime, then who did?” I said, my voice rising. “If I were sitting where you are, that’s what I’d want to know. After all, we’ve all watched enough cop shows to know that the boyfriend is suspect number one, right? But what if there was more than one boyfriend? The prosecution doesn’t want you to know about Roxanne’s other lover. Ms. Kaplan never said a word about that, now, did she? But the evidence will tell you that. The evidence says that loud and clear. We’ll show you evidence that several pubic hairs were found in Roxanne’s bed that could not possibly have come from L.D. Those pubic hairs came from a Caucasian, and that Caucasian was in Roxanne’s bed right before she was murdered. Maybe even on that very day. So . . . who was it?”
I stopped and tried to make eye contact with each juror before going on. Some of them looked away, but most of them didn’t.
Benjamin Ethan called it the nod poll. “If I get a nod during opening statements, that juror is mine through deliberations,” he’d say. Kaplan had a few nods during her opening, but she would ultimately need twelve votes to convict. So far I had maybe one headshake, but no nods.
“What do we know about Roxanne’s other lover?” I said. “One thing we know for sure is that the police didn’t do anything to find him. Another thing we know for sure is that this man didn’t come forward to publicly acknowledge that he’d been in Roxanne’s bed, perhaps as recently as the day she was murdered.”
I stopped, offering the jury another dramatic pause.
“Why didn’t the police find him? They had his pubic hairs and possibly his fingerprints, and yet they did nothing to locate him. Why? Again, the answer is simple. It’s because the police had already arrested L.D., and so they didn’t want the embarrassment of admitting that they were wrong. And why didn’t this man come forward on his own accord? If you were in a relationship with someone who was killed shortly after you’d been naked in their bed, wouldn’t you come forward? Wouldn’t you realize that you might have critical information to share with the police?” Another pause. “You already know why he didn’t do that, don’t you? The man who shared Roxanne’s bed that last time did not come forward for one reason and one reason only: he’s the man who murdered her.”
And there it was. Two jurors nodded.
40
The prosecution’s first witness was a police detective named Boyle. He was a big, burly Irishman with doughy features and a ruddy face. The prototypical grizzled cop straight out of central casting. Just one look at him made you think he was the kind of guy you’d want to buy a beer and hear his stories because you knew he’d pretty much seen it all.
Kaplan made sure the jury knew that Boyle didn’t just look the part.
“How many years have you been a police officer, Detective Boyle?”
“Twenty-two.”
“Is this your first murder investigation?”
“No, ma’am.”
“Your second?”
“No, ma’am. Far from it.”
“How many murder cases have you handled, Detective?”
“I’m sorry to say, it’s been thirty-seven.”
“Anyone on the NYPD handle more murder cases than you?”
“I don’t know for a fact, ma’am, but I’ve never met a cop who has.”
Kaplan turned away from her witness and toward the jury. She smiled, and held the pose when I caught her eye.
Boyle’s direct testimony held no surprises. Kaplan’s questions were more or less limited to “And what happened next?” but that was enough to get Boyle to tell the jury everything Kaplan wanted them to know.
She started with the crime scene.
With an actor’s cadence, Boyle said, “The first thing that I noticed when I got to Roxanne’s house was that there was no evidence of forced entry. That’s very important because it usually means that the victim allowed the murderer entry into the home. In this case, you had a situation where Roxanne was killed between eleven p.m. and three or four in the morning, and in her bedroom. That told me that she not only knew her murderer but was likely intimate with him, because she allowed him not only into her home late at night but also into her bedroom.”
This made perfect sense, but it was also riddled with holes and assumptions. Contrary to Boyle’s conclusions, the murderer could have tricked Roxanne into letting him in, pretending to be a neighbor or even the police. Or the murderer might have entered the apartment much earlier, held Roxanne hostage for the day, and forced her up to the bedroom hours later to kill her. But that’s the thing with direct examination. You have no choice but to sit helplessly by while the other side makes its points, no matter how misleading, and wait until cross-examination to correct them. Of course, by then, most of the damage has already been done.
“Please tell the jury what you observed in Roxanne’s bedroom, Detective Boyle?” Kaplan asked.
“Roxanne was lying facedown, beside her bed. Her white, silk comforter was completely soaked red with blood. The walls were also covered in blood. In my twenty-two years on the force, this was probably the most gruesome crime scene I’d ever seen.”
I would have bet twenty bucks that with the dead body of a famous pop star in front of him, Boyle hadn’t spent time analyzing the fabric of Roxanne’s comforter, and I’d have gone double or nothing that he didn’t even know what fabric his own comforter was made out of. These were undoubtedly little verbal cues supplied by Kaplan to paint a more vivid picture of the crime scene. “Blood on her covers” just doesn’t hit you like a “white, silk comforter that was completely soaked red with blood.”
Kaplan handed me the crime scene photos, the standard protocol before passing them on to the jury. I’d seen them dozens of times by now. So often, in fact, that I’d become inured to their shock value. But so much of a trial is theater, and I knew that the jurors would draw conclusions based on my reaction, and so I did my best to look horrified.
L.D. knew the drill, too. Showing no emotion would make him seem like a sociopath, but false emo
tion would cast him as a liar, which wasn’t much better.
He looked stoically at the first picture, lingering on it for a few seconds, and he held that pose through the second. By the time he’d reached the third, however, he shed a tear, something he’d never done when we looked at them in private, not even the first time. He then pushed the stack back to me without looking at the rest, as if he couldn’t bear to see another one. As far as I knew, L.D. had never done any acting outside of his videos, which hardly qualified, but this was an Academy Award performance.
I handed the photos back to Kaplan, expecting her immediately to pass them on to the jury. Unfortunately, she still had a little more lily gilding to do.
“I have to caution you in advance, ladies and gentlemen,” she said, “I’m now going to distribute photographs of the crime scene, which include pictures of Roxanne shortly after she was murdered. I wish there was a way that you could fulfill your service without having to see the horror depicted in these photographs, so that you could all remember Roxanne as the beautiful young woman she was in life, and not the disfigurement of her death. I apologize in advance for having to give them to you, but it is very important that you see these pictures to fully understand the brutality of this crime.”
Not a word of Kaplan’s little speech was true. There’s nothing ADAs like better than showing juries gore, and juries don’t have to see the victim lying in blood to understand that a murder occurred.
When they finally got hold of the photos, each juror seemingly went through the same process. First they’d excitedly take them, the way you look forward to seeing the car accident that’s caused all the traffic, but as soon as they’d made it to the second one, their expression changed abruptly, as if they’d just realized that this was a real person. A murdered woman. Then each juror stared right at L.D. with utter revulsion.
When the last of the jurors had performed this exercise, Kaplan finally broke the silence. “Detective Boyle, was there any evidentiary matter in Roxanne’s bed?”
This settled a side bet between Nina and me. Nina thought Kaplan wouldn’t address the pubic hairs at all during her direct examination. I disagreed. “If she doesn’t,” I said at the time, “she’s undermining her credibility with the jury.” It was smart of her to do it right after showing the photos because the jury would still be thinking about what they’d just seen.
“Yes,” Boyle said, “we found three hairs.”
“Did you later learn anything more about those hairs?”
“Yes. I learned from the crime investigators that they were pubic hairs.”
“What assumption, if any, did you reach concerning who the pubic hair in Roxanne’s bed belonged to?”
“The most obvious assumption was that Roxanne left them, naturally.”
Nina kicked me under the table. Was it possible that Harry Davis hadn’t seen what Popofsky did? Did the prosecution not realize that Roxanne didn’t have any pubic hair?
Kaplan told Judge Pielmeier that she had no further questions for Detective Boyle. When she turned to walk back to counsel table, her confident bearing made clear that she thought it had gone very well.
Before I began my cross, Judge Pielmeier gave the jurors a fifteen-minute midmorning break, which she never failed to refer to as a leg stretch. She prohibited the lawyers from leaving the courtroom for the first ten minutes, so we wouldn’t run into jurors in the bathroom.
“What do you think is going on?” Nina whispered to me as we watched the jurors file out. “Do you think Kaplan doesn’t know about the waxing?”
“Popofsky says it’s obvious from the autopsy,” I replied, “but who knows? Maybe they just weren’t focused down there. It’s not like there are any wounds on that part of her body.”
“Are you going to cross Boyle on it?”
“Let’s see how it goes,” I said.
41
When it was my turn with Boyle, I began by playing up the rush-to-judgment angle.
“Detective Boyle, did you ever consider any other possible suspects?”
“Everyone is a suspect at the beginning,” he said, the standard police line.
“For how long were you open-minded to the idea that someone other than L.D. may have committed this crime?”
“Until the evidence indicated that your client killed her.”
The smug look on his face made clear that Boyle viewed this as some type of competition, and he thought he’d scored first. If that was what he believed, he was sorely mistaken. The witness-interrogator battle is hardly a fair fight. If I did this right, I wouldn’t ask Boyle any question to which I didn’t already know the answer. That meant I’d always have the upper hand.
“Of course, Detective,” I said with a dismissive tone, my signal to the jury that I didn’t believe him. “But how long was it before, in your opinion, the evidence pointed to L.D. as Roxanne’s killer? Was it days? Or hours? Minutes?”
“I don’t remember the exact moment, Counselor. But it wasn’t immediate, if that’s what you’re trying to imply. We considered the facts for some time.”
“Some time,” I repeated. “That sounds like more than a day, then, right?”
“Yes,” he said, as if I must be the stupidest person on earth not to know that some time meant more than twenty-four hours.
His tone didn’t matter, however, because now I had the poor bastard. He just didn’t know it yet. It felt good to be on top of my game again. After the months of wallowing with a bottle, I was finally back.
“Let’s see, now, Detective Boyle,” I said, making little effort not to telegraph I was going to thoroughly enjoy this. “You knew pretty much from the start that L.D. was the victim’s boyfriend, right?”
“Yes.”
“As an experienced police detective with twenty-two years on the force, is it common for you to focus on someone that the victim was having a relationship with—such as a husband or boyfriend?”
He paused. His eyes said he realized where this was heading.
“The statistics bear that out.”
“But it’s your testimony that the fact that L.D. was Roxanne’s boyfriend did not cause you to suspect him from the start because you considered the facts for some time—which you just testified is more than twenty-four hours—before focusing on L.D. as a person of interest.”
“I don’t believe I said that, Counselor.”
He was right. He hadn’t said that, but what a witness actually says doesn’t matter. Although jurors can ask for some portions of the trial transcript to be read back to them during deliberations, they usually don’t, which means that what the jurors think has been said matters much more than the actual testimony. The questions lawyers ask can change what the jurors recall about the testimony, much the way that political punditry sometimes alters people’s recollection of the actual event being pontificated about.
“Well, it’s true that you just testified that it took some time before you concluded that L.D. was guilty. You’re not changing your story on that, are you, Detective?”
“No, Counselor. As I said, we arrested the defendant after some consideration.”
Boyle had the tricks down, I had to give him that. He never referred to L.D. by name, always calling him “the defendant” or “your client.” It was subtle, but it reduced L.D.’s humanity, making it easier for the jury to convict. It’s also why I never used such terms and invoked L.D.’s name as much as I could. Boyle’s other little verbal tic was to call me “Counselor.” It was a nice touch, actually, because it reinforced the idea that I was there doing a job, and not that I actually believed in L.D.’s innocence.
“There was no evidence at the crime scene linking L.D. to the crime, was there, Detective?”
“We believe your client wiped the scene clean of his fingerprints. Given that he was Roxanne’s boyfriend, his prints should have been in her house. As a result, the fact that his prints were not there was actually an indicator of guilt, not the other way around.”
“That’s very interesting,” I said, my hand on my chin, as if I was actually pondering this information. “So, if I understand what you’re saying, it’s your testimony that the fact that there was no evidence of L.D. being anywhere near the crime scene was interpreted by you to be actual evidence that he was, in fact, there.”
“Objection!” Kaplan called out. “Your Honor, the question is argumentative.”
“Mr. Sorensen, please move on to something else,” said Judge Pielmeier, her way of saying that she agreed with Kaplan, but not so much as to sustain the objection.
“Of course, whoever wiped the crime scene would have removed L.D.’s prints. It didn’t have to be L.D. who did that, now, did it, Detective?”
“Was that a question, Counselor?” He chuckled and gave a nasty little smirk.
“You’ll find this question more straightforward perhaps, Detective. Did you find the murder weapon in L.D.’s possession?”
“You know that we didn’t, Counselor.” Boyle punctuated this thought with a loud sigh, his signal to the jurors that the very fact I was daring to ask him questions was a waste of his precious time. I decided to call him on it, for little reason other than to show him who was really in charge here.
“That’s right, Detective, I do know that. But I asked you the question so that the jury would know, too.”
“No, we never found the baseball bat. Are you happy now, Counselor?”
I was happy. I’d called it the murder weapon. He’d called it a baseball bat.
“No, I’m not happy about that, Detective. Because if you had found the murder weapon, be it a baseball bat or something else, it would have proven that L.D. is innocent of this crime. But, by your testimony, it seems pretty clear that you were looking for a baseball bat, which I take to mean that you ignored all the other possible murder weapons, doesn’t it?”
“Objection!”