by Adam Mitzner
Like the saying in baseball that the tie goes to the runner, a split in an appellate court means the lower court’s decision stands. However, it doesn’t provide the kind of judicial imprimatur of acceptance that we’re after. If anything, it goes the other way. Three members of the Pennsylvania Supreme Court would have admitted the text message even with the undisputed evidence that other people were using the defendant’s phone.
When the pizza comes, LeMarcus suggests that we stop our work to eat. The receptionist I met upon my first visit—who I now know is named Brian and serves a multitude of functions around the office besides greeting visitors, including being a paralegal and, in this case, a server of late-night pizza—brings out actual china on which to put the pizza, and crystal glassware into which our soda can be poured. More often than not in my late-night pizza days, I ate it straight out of the box, without even a paper plate.
Throughout the trial, LeMarcus has not asked anything about me that wasn’t relevant to the case, and he hasn’t revealed anything about himself. I am not sure whether that’s because he makes it a practice not to get to know his clients on any personal level—the lack of familiarity no doubt easing the blow when they’re convicted—or because it’s part of his legal strategy not to be tainted with information that might create an ethical quandary for him if I were to take the stand.
Yet over our meal, his formal bearing eases up. LeMarcus says that he is the father of eight-year-old twins. After establishing that they are fraternal, I ask what they’re like.
“Couldn’t be more different, actually. James takes after his mother, both in looks and personality. He’s the prettiest little boy you’re ever going to want to meet, but shy. He likes to read picture books about dinosaurs and other fanciful things. Lawrence, sadly for him, is his father’s son. A born lawyer, I fear. If you say day, he’ll argue that it’s night. Doesn’t matter how high the sun is in the sky, he’s got some explanation for why you shouldn’t believe your own eyes.”
I laugh at the comment, imagining a tiny LeMarcus Burrows. “Does he wear three-piece suits?”
“No. Not yet, anyway,” LeMarcus says with a laugh of his own.
“My little guy, he’s all about superheroes,” I say. “Sometimes I envy that he can believe that there’s this greater force that can save you no matter how much peril you’re in. You know?”
LeMarcus looks puzzled by my statement. “I’m not sure if you’re suggesting that I’m your superhero in this instance, or that you don’t think my superpowers are up to the task.”
“No, I’m sorry. It wasn’t intended to be a comment about you at all. I know you’re doing everything you can. But even you have to admit you’ve been dealt a bad hand.”
“Don’t give up on me yet, Dana. If we win tomorrow’s motion, the prosecution will dismiss the charges. They’ll have no other choice. Without the text, the only evidence that they have against you is the affair, and Judge Gold won’t let them go to the jury with only that.”
“They have Franklin Pearse,” I remind him.
“That’s still awfully thin,” LeMarcus says after swallowing a bite of pizza. “I’d agree if the homeless guy identified you. Or if he provided a description close to resembling you, or even if he saw the actual shooting. But all he gives the prosecution is that someone around five and a half feet tall, maybe a man, maybe a woman, maybe black but maybe white, who was wearing a hoodie, was near the duck pond. Even though Richard Trofino is slightly taller, it’s close enough to be a positive ID of him too.”
“So you’re saying that I’m going to be free this time tomorrow?”
I say this with a smile because I know that LeMarcus hasn’t actually opined on how Judge Gold will rule. To the contrary, we both know that he’s more likely than not to admit the text message into evidence. And if that happens, my conviction will be a foregone conclusion.
49.
ELLA BRODEN
I place the odds at fifty-fifty that Judge Gold rules the text inadmissible. A coin-flip chance.
Heads, the case ends today with Dana Goodwin going free.
Tails, she spends the rest of her life in prison.
When Judge Gold takes the bench, he appears to be well rested. He went to bed early last night, no doubt. By contrast, I was at the office until two in the morning, collecting virtually every written legal opinion I could find on the exclusion of text messages, e-mails, or any other type of electronic evidence objected to on hearsay grounds. It gives me some pleasure that LeMarcus looks as tired as I feel.
The jury has not been called, so their chairs are empty. Judge Gold is going to take the legal argument outside of their presence. He doesn’t waste much time with preliminaries, aside from saying good morning.
“Mr. Burrows, please make your argument regarding the inadmissibility of the text message on hearsay grounds.”
Burrows’s pitch is not much different from what he said at the bench conference yesterday, but it takes much longer and includes a sprinkling of case citations. The good news is that he hasn’t found any legal authority that I didn’t. The bad news is that he did find the Pennsylvania case that excluded some drug dealer’s texts. He’s telling Judge Gold that the situation there was nearly identical to what he has before him, even though the two fact patterns bear virtually no similarities.
Burrows’s point is a simple one—the standard is whether there are indicia of reliability that the owner of the phone sent the text message. If there is, the text should be admitted. If not, it should be excluded.
Judge Gold lets him speak for about ten minutes without interruption. When it’s my turn, I take just as much time, with more of it devoted to the facts in the Pennsylvania case than I had originally planned. I emphasize that case represents the rare exception on the admissibility of text messages, and the judge there only excluded them because there was clear and uncontested evidence that someone other than the owner of the phone had used the phone, which is not the case with Dana’s texts.
“And even in that situation, the Pennsylvania Supreme Court deadlocked on whether that decision was correct,” I say. “Now compare that case with the one here. There is absolutely nothing to indicate that anyone other than Dana Goodwin sent the text message to Ms. Wright. There are no other messages on Ms. Goodwin’s phone that were sent by others, which makes this fact pattern completely different than the scenario in the Pennsylvania case. And the only evidence that Ms. Goodwin did not have possession of her phone at the time of the messages is the say-so of the defendant. In other words, Your Honor, if you exclude the text message in this case, then I don’t see how a text message or an e-mail is ever going to be admitted in any case. All it would take is exactly what the defense is doing here: making a bald claim that someone else might have had access to the phone.”
Judge Gold is as solicitous of me as he had been of Burrows. When I’m finished making my argument, he says, “Thank you both. This issue quite clearly turns on the proof. I might hear evidence on that later, but for our purposes now, I’d like a proffer from you, Mr. Burrows, on what your witnesses will say regarding the access to Ms. Goodwin’s phone.”
A proffer of proof is a free shot for Burrows. He gets to summarize what his witnesses will say. I’ve never heard a proffer that came close to the nuance of actual testimony, especially after cross-examination.
“Your Honor, the defense proffers as follows: the evidence will show that Richard Trofino was present in Ms. Goodwin’s office on the day of the murder, sometime after six. Lieutenant Velasquez has already testified to this, but we also expect that Mr. Trofino will confirm that fact when he takes the stand. We don’t know if Mr. Trofino will admit to being alone in Ms. Goodwin’s office, but even if he were to deny it, that denial will be rebutted by the testimony of one of the secretaries at the DA’s office, who will say that she saw him alone in Ms. Goodwin’s office for several minutes. So on that front, we think we have strong evidence of Mr. Trofino being alone in Ms. Goodwin’s offic
e.”
Judge Gold interrupts to get to the point. “There’s a big difference between proving that Mr. Trofino was alone in Ms. Goodwin’s office and establishing that he took her phone. What evidence do you have on that score?”
“Lieutenant Velasquez has already testified that Ms. Goodwin told him that she lost her phone,” LeMarcus says. “The receipt from the Apple store shows that Ms. Goodwin replaced her phone the day of the murder—”
“Why shouldn’t I conclude from your statement that Ms. Goodwin sent the text and then got rid of her phone and bought a replacement?” Judge Gold interrupts.
“Because her husband will corroborate that she did not have her phone when she got home, which was hours before Ms. Wright was killed.”
The look on Judge Gold’s face indicates that he sees nothing wrong with LeMarcus’s theory. When it’s my turn, I tell him why it’s very wrong.
“Your Honor, the prosecution has multiple objections to the proffer just made by Mr. Burrows, but the main one is that the testimony he’s promised has absolutely no credibility. Specifically, Ms. Goodwin’s testimony that she lost her phone before the murder is all based solely on her word. And her husband’s so-called corroboration is just as self-serving. He can be expected to lie to protect his wife and the mother of his young son from a murder conviction. By contrast, the People’s proffer is that Mr. Trofino will deny all of it. He will testify that he did not take Ms. Wright’s phone and he never sent the text at issue.”
“Talk about self-serving,” Burrows says, trying to talk over me. “Every word out of Richard Trofino’s mouth is a lie.”
“Okay, thank you both,” Judge Gold says, trying to reestablish some order. “I’ve heard enough.”
He looks down at a sheet of paper in front of him. That means he decided how he was going to rule last night and has already written out his decision, which he’s about to read into the record. This morning’s argument—and indeed last night’s research session—was largely just to put us through our paces.
Of course, I have no idea whether Judge Gold’s epiphany last night was for or against me. I say a silent prayer and wait—like everyone else in the courtroom.
“This is indeed an interesting issue,” Judge Gold says, “and one that has been well argued by both sides. As technology advances, the rules of evidence have to advance as well, or else they will become obsolete. I will issue a more detailed ruling on this issue because I think it is of scholarly interest and can be considered by others in different contexts from this one. But I realize that it is primarily of interest to the parties before me, and that my ruling will have important implications for this trial. Indeed, the text message at issue here is the lynchpin of the prosecution’s case. So much so that excluding it from evidence could well result in a directed verdict, and double jeopardy having already attached, the prosecution would have no right to appeal my ruling. By contrast, admitting the text message will preserve this issue for the appellate courts to consider. Of course, that only occurs in the event of a guilty verdict, but if Ms. Goodwin is acquitted even with the admission of this text message, then ruling it admissible obviously had no prejudice to the defense. And so my ruling might be considered either Solomonic or cowardly, depending on your point of view. I will accept the text into evidence, and thereby preserve this issue for appellate review. I do so because I agree with the prosecution that the evidence that Ms. Goodwin did not send the text is uncorroborated, and therefore the authenticity has been sufficiently established to accept the text into evidence. I will, however, give the defense latitude to maintain its argument that someone other than the defendant could have authored those texts, and the jury is free to acquit on that basis.”
Burrows jumps to his feet. “Your Honor—”
“Mr. Burrows, sit down. I’ve ruled. If you have anything to say about it, you’re going to need to tell it to the appellate court.”
50.
DANA GOODWIN
I try not to show it, but the last vestige of hope leaves my body with Judge Gold’s ruling.
LeMarcus sits beside me wearing a similar poker face, but he too slumps slightly in defeat.
After announcing his decision, Judge Gold calls for a fifteen-minute recess. We all stand to watch the judge walk through the side door and back to his chambers. The moment the door closes behind him, the reporters reach for their phones, eager to tweet out this recent development.
I must be wearing my disappointment on my sleeve, because LeMarcus leans over to whisper in my ear. “We still have a shot, Dana.”
“Yeah, slim to none—and slim just left town,” I say.
“What?” he says, apparently not familiar with an expression my father used all the time.
“It means I’m going to be convicted.”
“Not yet. Stay strong. I need you to project confidence to the jury.”
I nod that I understand, but the introduction of the text message means that the prosecution is going to be able to link me directly to Lauren’s murder. When court resumes, Ella will put on her evidence of the text messages. My adultery in all its glory. Not to mention the evidence that I lured my lover to Central Park, to her death.
After that ignominy, Ella will call to the stand a cleaned-up Franklin Pearse. He’ll identify me—or at least someone fitting my description, general though it may be—as being the only other person he saw in the park at the time of the murder.
The final nail in the coffin of my defense will be the testimony of Richard Trofino, who will say over and over again how much he loved his wife. A repeat, no doubt, of his eulogy. After he finishes his song and dance, the prosecution will rest.
That will be more than enough for them to sustain their burden of proof, at least as a legal matter. Which means that I’m going to have to put on a defense.
LeMarcus has been circumspect with regard to his strategy for my defense. I know that’s because he wants to avoid a fight with his client. He’s been clear that Stuart will be our first witness, and that a lot rides on his testimony. Stuart provides me an alibi, and will corroborate that I did not have my phone after Richard Trofino left my office.
The part LeMarcus hasn’t wanted to discuss with me is what role, if any, I’m going to play in my own defense. He knows I want to testify, but every time I’ve raised the issue he’s responded by telling about the acquittals he’s obtained without his clients taking the stand.
I understand his reluctance. Defendants are usually easy pickings for a prosecutor. Too many lies to keep straight, and all it takes is for one of them to be revealed on cross for even the most expertly established defense to fail.
“Being a criminal defender is like being a chef,” LeMarcus told me. “You use every ingredient you have to put together your defense, but you have to take special care that nothing spoils the broth. And a lie, no matter how small, poisons everything.”
At the same time, I think my testimony is critical. Richard Trofino is going to swear to the jury that he loved Lauren and would never in a million years have harmed her. I’m certain that to obtain my freedom, I’m going to need to say exactly the same thing.
I wonder what that will do to Stuart. He’s convinced himself that my relationship with Lauren was a mistake that I regret. But to make my defense convincing, I’ll need to say that I was in love. That there was no reason for me to kill Lauren because she loved me too. I’ll need to be convincing that my happily-ever-after hopes involved being with her, not Stuart.
Just as this thought rolls through my head, Stuart approaches the defense table. He’s allowed to watch the proceedings as long as they don’t include witness testimony, which means he’s seen firsthand that my hope of acquittal has just been dashed with the admission of the text message.
He places a supportive hand on my shoulder. “I’m sorry,” he says. “I really thought the judge was going to exclude it.”
LeMarcus suggests that we talk outside, glancing at Ella, who sits only a few feet away from us
. She’s looking down at her notes, seemingly oblivious to our discussion.
Without waiting for our consent, LeMarcus gets up and makes his way to the hallway. Stuart and I follow him out.
When we’re in an abandoned corner of the hallway, away from prying eyes and ears, LeMarcus says, “Okay, here’s how I see the rest of the day going. The odds are very good that the prosecution is going to rest today. Maybe even before lunch, if they finish Richard’s testimony quickly. Stuart, that means you might take the stand as early as right after lunch.”
“Okay,” Stuart says. “I’m ready.”
“Good. Your testimony is now absolutely critical. Remember what we went over during prep. You need to be firm that Dana did not have her phone the night of the murder. After that testimony, you’ll provide Dana’s alibi. It’s equally important that you testify she never left your sight that night, and she definitely didn’t leave the apartment. No hesitation at all on those points. Got me?”
“Yes. That’s exactly what I’ll say.”
Stuart and I both know that his testimony will be littered with perjury. We’ve discussed the lies, making sure that he gets them right. His testimony about my losing my cell phone only requires that he move the timeline from the morning, when I first told him I couldn’t find it, to the evening before. We decided to fix the time as right after dinner, the idea being that we had a lovely family dinner, after which I went to check my phone, and that’s when I alerted him to the fact that I couldn’t find it.
The other lie Stuart will tell concerns my alibi. Stuart and I didn’t share a bed that night. I slept in Jacob’s room. As a result, there’s no way Stuart would know if I’d left the apartment.
“Thank you,” I say to Stuart.
“No need to thank me. I love you.”