The Defense: A Novel

by Steve Cavanagh

  “When one looks at the construction of the letter ‘G’ from ‘Geraldo,’ one can see there is a pronounced tail on the ‘G,’ which is formed with a continuous unbroken line descending from the top curve of the character. The character or letter is then finished with a horizontal dash beginning inside the curve of the ‘G’ and moving from left to right and slightly ascending. This letter or character is constructed identically in all the samples I examined, including known samples of the defendant’s handwriting. Therefore I’m able to say, with a large degree of certainty, that it was the defendant who wrote the name of the victim on this one-ruble bill.”

  “To what degree are you certain, Doctor?”

  “Ninety-five to ninety-eight percent certain.”

  “How can you be so certain?”

  “This character has such a unique and consistent construction throughout all of the handwriting I examined. The note could only have been written by the defendant.”

  “Doctor, what is graphology?” she asked.

  Miriam could have played out Goldstein’s evidence for the rest of the day, but she couldn’t afford that luxury because she’d taken up too much time in her opening statement. She had to keep things moving for this jury. Besides, Miriam no doubt believed I would take hours with the witness. Taking a long time cross-examining the expert is believed, by some lawyers, to be the best way to disable an expert witness. Trot out every theory; confuse, obfuscate, and argue with the expert about everything until the evidence becomes meaningless and dull. I didn’t have that kind of time. Neither did Amy.

  Dr. Goldstein appeared to be a little taken aback by Miriam’s question, but he did manage a smile despite the obvious discomfort it caused him. He shifted in his seat, crossed his legs, and wetted his lips. Graphology must have been close to his heart, and he obviously knew it was a possible line of attack.

  “What is graphology? Well, it’s a term used to describe an examination of handwriting and what it reveals about the author in relation to personality or sickness or psychosis. It’s not concerned with determining who wrote a particular document. It’s more about interpreting the personality of the author.”

  Go on, Miriam. Ask him. You know you want to, I thought.

  “Doctor, some would say a single individual who practices both forensic document examination and graphology would be like having an archaeologist who’s a born-again Christian testify that the world is only five thousand years old. In other words, it’s a contradiction.”

  Bingo.

  “Objection, Your Honor.” I jumped to my feet, and despite my joy at hooking Miriam, I did my very best to look pissed as all hell.

  “On what grounds?” asked the judge.

  “On the grounds of religious belief, Your Honor: I believe in God, and I don’t want my beliefs questioned by the prosecutor; nor do I think it’s right that the Lord Jesus Christ, our Lord, should be dragged into a legal argument by the prosecution. It’s a discriminatory statement against Christians; it implies an atheist belief on behalf of the prosecutor, and it’s against the constitutional right to religious freedom. No matter what the prosecutor might believe, it’s wrong to impose those beliefs on others or ridicule my beliefs to prove a point.”

  Miriam looked like she wanted to kill me. I didn’t blame her. It was nasty, and she’d fallen for it.

  The jury looked like they would happily carry me home on their shoulders. I’d banked on a Christian jury in this part of town, and I was right. Four jurors wore crucifixes. Finding a juror’s idol and holding it before them is the surest way of getting them on your side. You just need to find the right idol. If I were in Vegas, it would have been Elvis, or Sammy Davis, Jr.; in football-crazy Texas—Sammy Baugh; in Oklahoma—Mickey Mantle. In this part of New York, something liberal and Christian works every time. Most of the jury smiled at me, but the ones who weren’t were too busy giving Miriam dirty looks.

  Big score.

  But the judge was not at all impressed. She saw that coming a mile away.

  “Ms. Sullivan, perhaps you could consider rephrasing your last question,” said the judge.

  Miriam was done.

  “Nothing further, Your Honor.”

  CHAPTER THIRTEEN

  On my feet, behind the defense table with my props ready, tucked underneath the desk like a cheap magician, I suddenly became conscious that I hadn’t prepared, that I could fall flat on my ass at any second. I told myself to take it slow. My eyes closed for a moment. Just enough time to take in a deep breath, and yet I knew I would see her in the dark. Hanna Tublowski. I saw her most nights before I fell asleep. That same image woke me every morning. I’d tried to wash away that vision with bourbon and cold beer. I knew when I first saw her that my heart would forever bear a scar, and I hadn’t practiced law since. The path of my life seemed to be broken in two, a life seen in terms of what happened before I took on the Berkley case and what happened after.

  When my eyes opened and my head cleared, I looked at Goldstein and I could again see the questions in my mind.

  “Dr. Goldstein,” I heard myself say, “would I be right in saying that if you’re comparing handwriting samples, it’s best practice to compare like for like documents? So, for example, two résumés, two passport applications, two driver’s license applications.”

  “Yes, but that’s not always possible. Not unless your client wrote two different orders to have people killed and I could examine them both,” said Goldstein, looking at me over the rim of his glasses. A nervous round of laughter made its way across the audience. The doc looked rather too pleased with himself and his answer. I needed to take more care.

  “You said that you formed the opinion that the unknown author of the note and the known author of the sample documents, my client, were in fact the same person. And you came to that conclusion based upon your examination of the letter formation and construction?”

  “Yes,” said Goldstein. He’d obviously been told to keep it tight with me, to make his answers short and snappy. The idiot’s guide to surviving cross-examination—don’t say too much and you can’t do too much damage.

  “Isn’t that what graphology does? It’s an interpretation of letter and word formation?”

  “Yes.”

  “So there’s a strong similarity in the analysis?”

  “To a degree.”

  “So there’s a strong similarity in the analysis?” I repeated, very slowly, like talking to a naughty child and making sure he understood the question. He had to give a more definitive answer now or risk looking like a liar or a moron in front of the jury. My method of repeating the question already made him look evasive.

  “Yes. There is a strong similarity in the analysis.”

  Excellent, I thought.

  “The prosecutor tried to ask you about graphology. I think she was trying to ask you if it’s a legitimate system of analysis. So, is it legitimate?”

  “Yes. Of course it is.”

  “Isn’t it true that a graphologist interpreted a blot on John Wayne’s signature to be his unconscious mind telling him that he had lung cancer? That’s correct, isn’t it?”

  I gave the jury an incredulous look, like this was the craziest thing I’d ever heard, but I put my back to the witness so that he couldn’t see my expression. I had, in fact, asked him if a graphologist had made that interpretation about John Wayne, and of course, he would know that to be correct. But because I gave the jury a strong visual aid, the jury heard an answer to a different question.

  “Yes,” he said. He answered correctly, that a graphologist had indeed made this interpretation, but because of my face pulling, the jury heard him say that he agreed with the crazy theory, not the mere fact that the theory existed.

  “So it’s more like fortune-telling?”

  “No. It is a legitimate interpretational method of analysis.”

  “I don’t know what that means, Doctor.” I turned to the jury and put my hands in the air to let them know that even the
high-paid lawyer didn’t know what this guy was talking about. They smiled.

  “Let’s see if we can have a practical demonstration.”

  It was time to load up the base without the doc seeing. I pulled out my blowup of a letter “G” that I’d made in the photocopier upstairs and held it up for the jury. I turned it so the doc could see it and then placed it on the easel next to the “G” from the one-ruble note. With both the blowups side by side, they looked identical. Most prosecutors would object at this point, and we’d have an argument on whether I could test the expert’s findings. Normally the judge gives a little leeway to cross-examine. Miriam didn’t object because she knew I’d get my way and that it might appear to the jury that she was shielding her witness. When she could, Miriam liked to let witnesses stand on their own feet.

  “Doctor this ‘G’ is constructed in a similar way to the letter ‘G’ in the disputed note and the known samples of my client’s signature, correct?” I hoped he would agree. It seemed like a minute had gone by with just him and the jury staring at the large letters in front of them. Goldstein screwed up his face as he carefully examined the letters.

  I had to give him a nudge. “The ‘G’ on this blowup does appear to be similar to the letter ‘G’ in the note, doesn’t it?”

  “It could be, yes.”

  “It is similar, isn’t it?”

  “Yes.”

  “And this one?” I pulled up another big sheet of paper. The “G” looked similar, but it was a different sample; part of another letter was visible on this copy. A long laborious stare from Goldstein, but not as long as the last.

  “Yes. It’s very similar.”

  “Graphologists make judgments about people based on the way a person might construct the letter ‘G,’ correct?”

  “Correct.”

  “And isn’t it correct that a graphologist would say that the person who wrote this letter ‘G’ is a sexual deviant?” I let the last two words dominate the sentence by increasing my volume and letting those words boom and echo around the courtroom—a great way to wake everybody up. Handwriting is dull. Sex is interesting. Sexual deviancy is damn interesting.

  “Yes,” he said. “The author, or whoever wrote those letter ‘Gs,’ would have tendencies toward deviancy in their sex life.”

  I paused. I wanted the jury’s mind working, questioning this statement.

  “You have met the acting district attorney for this part of the world, Miriam Sullivan?”

  He was suddenly nervous. “Yes. Of course I have.”

  “Is Miriam Sullivan a sexual deviant?”

  “What? Of course not!”

  “Your Honor…” Miriam cried.

  “Yes. It’s okay, Ms. Sullivan,” said Judge Pike. “Mr. Flynn, please behave yourself.”

  “My apologies, Your Honor, but might I just ask if Your Honor indulges in any sexually deviant practices?” Now, this was totally outrageous. I was in danger of losing all my jury points and ending up in the cells below the court for contempt.

  Judge Pike dragged her glasses to the end of her cosmetically corrected nose and looked at me over those rims, like a serial killer surveying her prey over the hood of a hot Chevy before running over the little maggot. “Mr. Flynn, you’ve got ten seconds before I throw your ass in jail.” The jury looked physically shocked.

  I felt two blasts of vibration across the small of my back. Arturas had triggered the device. I remembered what he’d said earlier about the remote detonator: two buttons, one to arm, one to detonate. I figured the bomb was now armed and live.

  CHAPTER FOURTEEN

  Arturas looked at me like I held a knife to his mother’s throat. I was certain that arming the bomb was a warning—if I got sent to custody, Arturas would trigger the device.

  Judge Pike seemed to rise from her chair as if the fury boiling in her cheeks was enough to physically levitate her from her seat.

  “Your Honor, members of the jury, please turn to bundle B, page seven,” I said.

  I’d never seen pages turned more furiously. Judge Pike opened her file to the correct page and returned her outraged stare to me. The jury looked perplexed.

  I placed myself beside the easel to emphasize my point.

  “Your Honor, the first character I have blown up here is the first ‘G’ from your signature on the certificate of listing on page seven—Gabriella Pike. Correct?”

  “Yes,” she said, still angry but now a little curious.

  “Dr. Goldstein, according to your findings, the judge could have written the disputed note.”

  “No.”

  I took a yellow Post-it note out of my pants pocket and handed it to the well-dressed Hispanic juror.

  “This note was handed to me by the prosecutor this morning. Please pass it around to your fellow jurors.”

  YOUR CLIENT’S GOING DOWN. I’LL HAVE HIS BAIL REVOKED BY 5 P.M.

  “The jury will see the ‘G’ at the beginning of ‘going’ is in fact the same letter that I’ve blown up here, in this poster. It’s the same method of construction used by the author of the disputed handwriting. Isn’t that right, Doctor?”

  “I already said it was similar.”

  “On your evidence, the murder note could have been written by the defendant or the judge or the prosecutor?”

  “No. You’re twisting everything.”

  “Let’s allow the jury to look at the note. They can decide.”

  The note passed around the jury. One by one they looked at the note. Looked at the blown-up “G” from “going” and looked at Miriam. The look was the same; Miriam was a kid with her hand in the candy jar. She put her head in her hands. The jury would think her presumptuous, cocky, not one of them.

  “Let’s be clear about this, Doctor. Some graphologists say that a person who puts a pronounced tail on their letter ‘G’ has sexually deviant tendencies, but not all graphologists have the same opinion, right?” He thought I was throwing him a rope, and he grabbed it.

  “That’s right.”

  “Doctor, isn’t it correct that we construct letters of the alphabet according to how we were initially taught to write them, either at home or in school?”

  “That’s a big factor, but not the only one. Some people alter their handwriting as they get older, but not substantially; I grant you that.”

  “So, the nuns who taught me to write in Catholic school. If they put a tail on the letter ‘G’ when they wrote it up on the blackboard to allow me to copy it, that wouldn’t mean they were sexually deviant, now, would it?”

  The members of the jury who wore crucifixes seemed to sit up a little straighter.

  “No. It wouldn’t.”

  “And it doesn’t mean that the judge or the prosecutor have deviant inclinations either, or indeed, whoever wrote on this one-ruble note. It’s more than likely to do with the way they were taught to write, and lots of perfectly normal people construct that letter in exactly the same way, correct?”

  “You’re right.”

  “It’s a fairly common way of constructing that letter?”

  “Yes.”

  “There’s maybe two hundred people in this court. How many would construct that letter of the alphabet in the same way? A quarter? A third of them?”

  “A good many would construct it that way,” he said. He was backpedaling rapidly. His hands shook as he took a sip of water. I’d taken him to a place he really didn’t want to go, and Goldstein wanted to get out as quickly as possible and move on.

  The jury finished handing around Miriam’s note, and the court officer handed it to the judge. If possible, she looked angrier with Miriam than with me. I’d almost finished with Goldstein; the lid was on the coffin, and I just had to nail it down.

  “It’s impossible to tell if someone is sexually abnormal just from their handwriting, isn’t it?”

  “I would have to say yes. On reflection, it’s impossible,” he said, quick to divorce himself finally from graphology. Unfortunately, that was the en
d for Dr. Goldstein.

  “You now say it’s impossible, yet in the year 2000, you wrote a paper entitled, Identifying Repeat Sexual Offenders through their Handwriting. In this paper you say you can identify rapists, pedophiles, and deviants from nothing more than their tax returns. You did write this paper, didn’t you?” I held it aloft for the jury.

  Goldstein stared straight ahead. His jaw and mouth worked soundlessly until he nodded.

  “I take it that’s a ‘yes.’ So, Doctor, given that your sworn testimony today is that it’s impossible to identify sexual practices from handwriting, but in the year 2000, you wrote a paper claiming that not only can you identify sexual predators from their handwriting but that you can discern what kind of predator they are…” I paused. I hadn’t actually asked a question yet, but the pause served to let me look at the jury as if I were taking my question from them. “The question this jury will want an answer to is this: Doctor, were you lying in your paper in 2000, or are you lying now? Which is the lie?”

  An unanswerable question is clearly the best kind. It didn’t matter what he said; no one would believe a word. Indeed, he said nothing. He simply hung his head. Two of the black women on the jury physically recoiled from Dr. Goldstein with a healthy look of disgust on their faces. The rest of the jury looked angry at the doc or just couldn’t look at him at all and stared at their shoes instead.

  No re-examination from Miriam. Her note had given me the idea. The “G” in her note had been written in a similar way to the letter “G” that Goldstein focused on in his report, and it didn’t take long to find another similar letter in the trial bundle. Lucky it was from the judge. Doc Goldstein walked sheepishly from the witness stand to take his place at the back of the court.

  “I can’t stand any more of this today,” said Judge Pike. The armed guard came back into court to escort the jury to their room before they left for the day.