by Adam Mitzner
“Mostly Ms. Goodwin.”
“So you’re saying that it never occurred to you that the violent reaction Mr. Trofino experienced upon the sight of Dana Goodwin—throwing up on her—was because he knew at that time that Ms. Goodwin was Ms. Wright’s lover?”
“No. That did not occur to me.”
Gabriel shows no sign of being outmaneuvered, but I’m certain he knows that LeMarcus has won the fight. Our sole objective is to remind the jury at every turn that Richard Trofino killed his wife. A key predicate we need to establish is that he knew about Lauren’s infidelity. Even though Gabriel didn’t say it, I’d wager that every juror now thinks the vomiting supports that conclusion.
“Lieutenant, you knew, did you not, that the day before Ms. Wright’s murder, her husband met her at her office. In fact, he was meeting his wife there so that the two of them could go together to dinner with you and Ms. Broden.”
“I am aware of that, yes,” Gabriel replies.
If the situation were any other, I’d feel bad for Gabriel. He’s being made to look incompetent. First it seems he never put two and two together to realize that the reason Richard threw up on me was because I was his wife’s lover, and now he’s going to say that it never occurred to him that Richard had the opportunity to take my cell phone during his office visit. Of course, I had never shared with him anything about my affair with Lauren, so there was no reason for him to consider any of it. But hindsight is twenty-twenty, especially in a murder trial.
“Do you know if during that visit Mr. Trofino took Ms. Goodwin’s cell phone?”
“I have no reason to believe that he did.”
“That wasn’t my question, Lieutenant. Any reason you chose not to answer my question?”
“I thought I had.”
“Really?”
LeMarcus has a way of making the word “really” sound like “bullshit.” From the expression on Gabriel’s face, he knows it too.
“Up until now, you’ve been very precise, Lieutenant. In fact, I bet that Ms. Broden, when she was preparing you to testify, told you to answer my questions, but only my questions, so as not to volunteer information that wasn’t asked of you. She said that, right?”
Every lawyer preps their witnesses that way. Two cardinal rules of witnessing: tell the truth; don’t volunteer.
“She said something along those lines, yes.”
“Okay, so I’m going to ask you to follow Ms. Broden’s instructions. I’m going to ask my question again. Yes or no, can you categorically deny that Mr. Trofino took Ms. Goodwin’s phone during his visit to her office the night of the murder?”
“I will answer you the way I did before. I am not aware of any evidence that he did that.”
“Come now, Lieutenant. That’s not true. You are aware of evidence that Ms. Goodwin’s phone had been stolen, aren’t you?”
Gabriel’s jaw tightens. It’s subtle, and I’m sure not noticeable to the jurors, but I recognize the gesture as a sign that he’s angry at himself.
“I know she claimed she lost her phone.”
“The evidence will show Ms. Goodwin bought a new iPhone on the very day that she learned of Ms. Wright’s murder. In fact, shortly after she was told about the crime. You’re not testifying that her receipt from the Apple store is a forgery, are you?”
“No. I’m saying that—”
LeMarcus cuts him off. “Thank you, Lieutenant. So. Let’s revisit this issue. You don’t dispute that the Apple receipt is genuine, and that proves Ms. Goodwin bought a new phone on the very day that she learned of the murder. And you also concede that your investigation revealed that on the evening Ms. Wright was killed, her husband was in Ms. Goodwin’s office, alone.”
Ella rightly objects. By the tenor of her voice, I can tell that she knows that Gabriel is getting his clock cleaned.
“Assumes facts not in evidence, Your Honor,” Ella says. “There’s been no testimony that Mr. Trofino was ever alone in Ms. Goodwin’s office.”
Judge Gold agrees. “Sustained.”
LeMarcus looks like a shark who smells blood. “Lieutenant, you did confiscate Ms. Goodwin’s phone when she was arrested, correct?”
“Yes.”
“Did it have a passcode on it?”
“No, it did not.”
“I see. So you, or frankly anyone else, could read all of her text messages on that phone?”
“It was a fairly new phone, so there wasn’t much on it.”
“Again, Lieutenant, that wasn’t my question. Let me ask it again. Could you or anyone else who had Ms. Goodwin’s phone read her text messages?”
“It was not passcode protected, so I could.”
LeMarcus smiles as if to say, Now, wasn’t that easy? Gabriel does not smile back, as if to say, Go to hell.
“Lieutenant, sitting here today, do you believe that at any time during that visit on the evening of Ms. Wright’s murder that Mr. Trofino was in Dana Goodwin’s office alone? And by alone, I mean all alone. Without even Ms. Goodwin present?”
“I don’t have any reason to believe that he was there alone.”
“But if you did believe that, can we agree that you, as a fine investigator, would have questioned Mr. Trofino about whether he took that opportunity to steal Ms. Goodwin’s phone.”
“Objection!” Ella shouts again.
It’s the same grounds. Facts not in evidence.
“Sustained,” Judge Gold says again.
LeMarcus doesn’t seem to care. Nor should he. The answers Gabriel provides have ceased to matter. This is all about his questions making the point that Richard Trofino should be the one on trial here, not me.
“You never asked Richard Trofino whether he took Ms. Goodwin’s phone, did you, Lieutenant?”
“No.”
LeMarcus returns to counsel table. Once there, he leans over to whisper in my ear.
“Not too bad, if I do say so myself.”
I couldn’t agree more.
47.
ELLA BRODEN
Wednesday and most of Thursday are the “science fair,” the term prosecutors use to describe putting on forensic evidence. It’s boring for everyone, including me, as it takes hours to make a single point. Establishing chain of evidence is no one’s idea of riveting testimony. Nevertheless, I think the jury gets the highlights: Lauren Wright was murdered at the duck pond in Central Park, where her body was found. Her assailant fired two gunshots into her head at 1:27 a.m. The murder weapon is a Glock 19, and the gun was previously owned by Detective Gregory Papamichael, who never reported his pistol stolen.
I also put on the evidence of the affair, just to break up the monotony a bit. Although talk of secret hotel visits perks up the jurors, they fall back into their sleepy daze when they realize that there won’t be any prurient details. Still, I establish that Lauren made a $300 cash withdrawal from her ATM nearly every week for close to six months, almost always on Tuesdays, with the occasional Wednesday thrown in. During some of those withdrawals, Dana Goodwin was captured beside Lauren by the ATM camera, and so I show the jurors the two of them together; sometimes their faces are much closer than I’m certain any jurors have ever gotten to their own bosses. The hotel clerk from the Best Western testifies that Dana and Lauren were regulars, and then he points them out on the hotel’s grainy black-and-white surveillance footage, hand in hand in the lobby, wearing the goofy grins of high schoolers.
On cross, Burrows drives home one point repeatedly: none of the evidence I’ve put on directly ties Dana Goodwin to the crime. There are no fingerprints, DNA, or eyewitnesses that place her at the duck pond on the night of the murder. There’s no record of her ever owning a Glock 19. Burrows doesn’t even question the Citibank representative about the cash withdrawals or the Best Western clerks as he’s conceding the affair.
A representative of Dana Goodwin’s cell-phone carrier, a tired-looking man with heavily hooded eyes, testifies that Dana’s phone was off for most of the evening of the murder, which
was a rare occurrence for her. For that reason, there was no way to trace where it was, as he explains that even an idle phone sends pings to towers that indicate location, but not one that has been powered down.
“It went back on at about one o’clock in the morning, in the vicinity of Central Park,” the witness says.
“Let me see if I have this right,” Burrows says when it’s his turn. “Your testimony is that by studying cell-phone tower pings, you know, beyond a shadow of a doubt, that Ms. Goodwin’s phone was shut off while it was at One Hogan Place, at about six thirty on the night of the murder, and that it did not go on again until approximately one in the morning, or within a half hour of the murder. And you can further determine, conclusively, that when the phone went back on, it was in the vicinity of Central Park. Do I have that all correct?”
“Yes.”
“Would this same ping occur if, for example, someone stole Ms. Goodwin’s phone from her office at six thirty on the night of the murder, and turned it off at that time, and then that person turned it back on while standing in Central Park at one a.m.?”
“Yes.”
“Please tell us, sir, where was the phone between six thirty p.m. and one a.m.?”
The phone company rep seems confused. “That’s the whole point. I don’t know.”
“Oh. So you don’t know if, for example, it was taken by Richard Trofino and brought to his home, correct?”
“I don’t know who Richard Trofino is.”
“And you don’t know whether it was Mr. Trofino who turned off Ms. Goodwin’s phone, after taking it from Ms. Goodwin’s desk, and then powered it back on once he was in Central Park, ready to kill his wife. That’s correct too, isn’t it?”
The double negatives, as well as the repetition of a name the witness has already indicated is unfamiliar to him, renders the man speechless. I object, just to give the witness some time to get his bearings.
Judge Gold sustains my objection, even though he probably shouldn’t. The fact that the witness is spared from answering the question, however, is of little import. The damage has already been done.
Yosef Izikson is the last of the science fair for a reason—he’s going to be the means by which I get the text messages into evidence.
Izikson is a short, bald man, of slight build, who speaks with a heavy Israeli accent, even though he testifies that he’s been living in this country for more than thirty years. He tells the jurors that he’s the chief executive officer of a firm located in New Jersey called ABS, which does nothing to erase the jurors’ glassy-eyed expectation that Izikson is just another nerd testifying about boring science.
It’s only when he says that his firm specializes in security, and was responsible for cracking Lauren Wright’s iPhone, that I hear the rumblings in the jury box of people starting to focus. But before I can ask my first substantive question about Lauren’s cell phone, Burrows objects.
Rather than state his grounds, Burrows asks Judge Gold for permission to approach. The judge curls his fingers, inviting us to the bench.
When everyone arrives, the judge has already placed his hand over the microphone and is leaning over to hear us better. “Your dance. You lead, Mr. Burrows,” Judge Gold says in a whisper.
“The last text received on Ms. Wright’s phone is hearsay,” Burrows says. “The prosecution is going to argue that these texts came from Ms. Goodwin because it says so on Ms. Wright’s call log. But that statement—like any document—is still hearsay if it’s being offered for its truth.”
Black’s Law Dictionary defines hearsay as a declaration made out of court presented in court for its truth. Therefore, in a technical sense, Burrows is correct. The phone’s identification of Dana Goodwin as the sender of a text is hearsay, because it was not made under oath in open court and is being presented as evidence that Dana was the author and sender. But there are at least forty exceptions to the hearsay rule, ranging from excited utterances to business records to verbal acts. The king of these exceptions is that anything the defendant says off the stand is always admissible. That’s how the prosecution can admit into evidence confessions made to police officers or wiretap recordings.
“Ah, were it that simple, Mr. Burrows,” Judge Gold says, this time slightly more audibly. “I’m going to steal some of Ms. Broden’s thunder here and jump in to make her case for her, because it seems to this old jurist that the text is a party admission, no different than if your client uttered the words she typed into her phone.”
“That would be true if Ms. Goodwin typed those words into her phone,” Burrows counters. “But she did not. And there’s been no offer of proof that she did.”
I enter the fray. “The offer of proof, Your Honor, is the text itself. It’s self-authenticating. It literally says that the speaker is Ms. Goodwin. There is no doubt that if Ms. Goodwin shouted her message from her window into Ms. Wright’s window, those statements would be admissible as a party admission. The fact that the statement here occurred electronically doesn’t change the law.”
“She’s right, isn’t she, Mr. Burrows?” says Judge Gold.
“She would be,” Burrows concedes, “but—”
“Ah, the distinguishing but.” Judge Gold laughs.
“The critical but,” Burrows says with a laugh of his own before he quickly resumes a more serious expression. “In Ms. Broden’s example, in order for the statement to be admitted over a hearsay objection, the prosecution would have to put on some proof that it was Ms. Goodwin shouting out the window. For example, someone would have to identify Ms. Goodwin’s voice, or testify to seeing Ms. Goodwin leaning out the window at the time the words were uttered. Here that corroborating evidence is lacking. We have no idea who actually sent the text. All the witness knows is that it came from a phone owned by Ms. Goodwin.”
“Forgive me, counselor, but isn’t that exactly the corroborating evidence needed for admission?” Judge Gold asks. “You can argue a different person actually sent it if you want, and maybe the jury will believe you, but that seems a question for them regarding how much credence to put on that particular piece of evidence, not one for me on admissibility.”
“Respectfully, no, Your Honor,” Burrows says. “A text is not entitled to any presumption of reliability because it is so easily manipulated. For example, sometimes my children text me using my wife’s phone. When I get a text message from my wife that says, ‘Dad, when are you coming home?’ I assume it’s from one of my children, not my wife, even though if you look at my phone it appears that the message has come from my wife.”
“I love it when modern technology muddies what heretofore had been so clear,” Judge Gold says. “I’m going to need more guidance on this before issuing a ruling. So I’m going to send the jury home and tell them to come back tomorrow at eleven. You all need to be here at ten and prepared to recite chapter and verse on the law on this issue.”
48.
DANA GOODWIN
It’s going to be a long night. LeMarcus gave me the choice of where to order from, but when I said I didn’t care, he selected a pizza place. He also said he was open to any toppings except olives and anchovies, but I still didn’t have an opinion, so he ordered the pie plain.
I usually do my own legal research, and I can see by LeMarcus’s familiarity with the legal databases that he doesn’t delegate this task to junior lawyers either. Our issue—the admissibility of a text message against a hearsay challenge—wasn’t even a consideration ten years ago, which greatly limits the scope of the research. The “patient zero” of text admission cases is from Pennsylvania, a September 16, 2011, ruling issued by a “Bowles, J,” according to the written decision. I can’t tell if “J” stands for his first name or signifies that he’s a judge.
To my utter shock, “Bowles, J” ruled that the text message in that case was inadmissible. I start reading from the opinion out loud, breaking what must have been twenty minutes without either of us making a sound.
“‘As a matter of fir
st impression, the appellant challenged the admissibility of the text message evidence and what is necessary to authenticate a text message’ . . . blah, blah, blah . . . ‘appellant claimed there was no evidence substantiating that she was the author of the text messages or evidence that the texts were directed to her because there was evidence that another person was using her phone for some of the time. The court noted that electronic communications, such as e-mail and instant messages, can be authenticated’ . . . case citations omitted . . . and here’s the key part . . . ‘such evidence is evaluated on a case-by-case basis as any other document.’ In this case, police could not confirm that the appellant was the author. The court found that, quote, ‘authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.’”
LeMarcus has been listening throughout. “What’s the court?” he asks.
All judicial opinions do not receive the same weight. Courts directly above the trial court—in New York that means the First Appellate Division, the Court of Appeals, and the United States Supreme Court—must be followed under the legal dictate of stare decisis. Decisions from other courts are used simply as guidance.
“Pennsylvania Superior,” I say.
“Okay . . .” he says, but he might as well have said, “What’s that?”
“It’s an appellate court at least, but an intermediate one.”
“Is the case called Koch?”
I scroll to the top of the decision I’m reading. “Yeah. Commonwealth v. Koch.”
“I saw that too. You’re right, it’s good for us. But the facts in that case aren’t that close to ours. It seems like some of the texts in question there clearly didn’t come from the defendant. The opinion says that the prosecution conceded that, which seems to have cast doubt on whether the texts introduced as evidence were authored by her. And here’s more of a good news/bad news situation. The case was affirmed by the Supreme Court of Pennsylvania, but on a three-three split.”