by Adam Mitzner
51.
ELLA BRODEN
Judge Gold gives me more leeway than I would have anticipated for Izikson to explain the history of the law-enforcement battle between Apple and the federal government over the unlocking of iPhones. Specifically, the phone of Syed Farook, the San Bernardino shooter.
“If you go on the Internet, you see all sorts of theories,” Izikson says. “Some articles claim that Farook’s cell phone was cracked by freelance hackers. Others say that Cellebrite, a competitor of ours, did it. The cost of the work is also hotly debated. There are people who advertise on the web that they can do it for a hundred bucks, while the FBI director at the time said in a speech that it cost more than his entire salary for the remaining years of his tenure, which would be in excess of a million dollars. I don’t know how Cellebrite, or whoever the FBI used, did it. But I know how we do it. And I know it isn’t cheap, but it doesn’t cost a million dollars either.”
I ask him to explain how he does it, even though I know he’s not going to answer. I just don’t want to look like I’m hiding anything from the jury.
“I cannot answer that question,” Izikson says. “It is not only highly proprietary, but a matter of national security. If it became known how we can get into cell phones that are locked, then terrorists and others could engineer around our methods.”
Burrows objects, although I’m certain he knows he’s going to lose. National security supersedes everything these days.
Judge Gold makes it official. “Ladies and gentlemen, ordinarily you are entitled to know how an expert performed his or her work,” he says, facing the jury. “However, in this case, I side with the national security concerns and therefore rule that this witness need not divulge the steps that led to his conclusions. You are not to make any negative inference regarding the work performed by this witness based on my ruling. Instead, trust that he did this work in a professional manner, and that the information retrieved from Lauren Wright’s phone that has been presented here is, in fact, the information that was contained on that phone.”
With that green light, I spend the next hour going back through the key text messages. Obviously, Izikson has nothing to add substantively to Lauren and Dana’s correspondence, but I lay the foundation that each one was indeed found on Lauren’s iPhone, and that the time stamp is accurate, as are the sender and recipient information.
And then, at last, the moment that all of this has been leading to is at hand. The introduction of the last text message Lauren Wright ever received and sent.
There are eight screens around the courtroom, which makes it look a bit like a sports bar. Instead of a football game, though, the TVs project the text that is at the heart of the prosecution’s case.
NEED TO SEE YOU ASAP!!! DUCK POND. I’M ALREADY HERE. PLEASE COME! IT’S URGENT!!!
And underneath is Lauren’s response.
BE THERE IN 5
“Does Ms. Wright’s phone indicate who sent the message asking that she meet at the duck pond?” I ask.
“Yes.”
“And who sent—”
“Objection,” Burrows says.
His tone is halfhearted. He’s only objecting for the record, so that he preserves this issue for appeal. He knows it’s going to be overruled, which it is.
I want the question and answer to be in sequence, so I repeat the question. “Mr. Izikson, once again, who sent this message to Ms. Wright? The message requesting that she meet at the duck pond?”
“Dana Goodwin sent it,” Izikson says.
When it’s Burrows’s turn to conduct his cross-examination, he handles Izikson in the shortest amount of time possible. In fact, he asks only one actual question, although Burrows rephrases it numerous times.
The point he’s trying to make, of course, is that no amount of security expertise can ascertain who authored a text. All anyone knows is the device it was sent from.
I had instructed Izikson not to fight Burrows on that. As a result, he concedes that he didn’t see who actually typed the letters into the phone. All he knows is that it was sent from Dana Goodwin’s phone.
In fictionalized versions of trials, they always make a point of putting homeless guys in fancy suits and giving them haircuts so that they look like bankers. In reality, that’s not very effective because it comes out pretty quickly that that’s what you’ve done and the jury feels like you’re trying to pull one over on them. On the other hand, no one wants to be in the presence of a man who hasn’t bathed in weeks. My practice has always been to have the witness shower and to launder his clothes, but otherwise not to change his appearance. That means Franklin Pearse takes the witness stand wearing clean clothing—blue jeans, a blue workman’s shirt, and a light blue windbreaker. His hair is as spiky in parts as when we first met, but it was his decision to be appear clean-shaven.
I get Pearse’s life situation out of the way at the start.
“Mr. Pearse, please tell the jury where you reside.”
“Everywhere. Anywhere.”
Pearse’s voice is steady, although low. Judge Gold asks him to lean forward and speak into the microphone.
“What does that mean?” I ask.
“I normally sleep in the park. Unless it’s too cold, and then sometimes I go to the shelter.”
“In other words, you’re homeless?”
“That’s right.”
“I want to ask you a few questions about one night in November. It’s the night you saw and heard something in Central Park. The same night the police have asked you about before. Can you please tell the jury what you saw and heard that evening?”
“Okay. I go to the park a lot at night to empty out the garbage cans for recyclables. Near the duck pond is a good spot because they have that restaurant there, and they serve soda in cans. That night I couldn’t get into the shelter because it was full, and it was really cold, so I was trying to stay awake. Anyway, I was at the garbage cans near the restaurant when I heard these two booms. Like boom, boom. Quicklike. And then I saw this person—not sure if it was a man or a woman because I only saw from the back. Wearing a black hoodie and running away.”
“How far away were you from this person?”
“Not too far, but not close either.”
“Tell us by reference to this courtroom. As close as I am to you?”
“No. Farther than that.”
“As close as the door to this courtroom?”
Pearse considers this. “Yeah. A little closer than that, I think.”
That places the distance between Franklin Pearse and Lauren Wright’s murderer at farther than ten feet but closer than fifty. Next, I introduce into evidence a black hoodie sweatshirt and make a big show of telling the jury that the cops found it in Dana Goodwin’s closet. I have a sweatshirt just like it in mine too. I suspect there’s not a woman in New York City who doesn’t. Still, it’s evidence.
“The hoodie you saw, did it look like this?” I ask, holding it up in front of me like I’m the number-one draft pick of the NBA.
“Yeah. Black hoodie. Like that one.”
“Mr. Pearse, were you able to tell how tall this person was?”
“I think so.”
“Tell us, please.”
“Not too tall. Not real short either, though.”
Time for a little more court theatrics. “Your Honor, we request that Ms. Goodwin stand so that the witness can make an identification.”
Burrows stands with his client without any prompt from Judge Gold. Burrows is a tall man, which is helpful for me and probably not something that occurred to him. He rose most likely out of reflex, something he always does whenever his client stands as a subliminal message to the jury of solidarity. But by doing so this time, he’s going to allow Franklin Pearse to positively ID Dana as the same height as the murderer.
“Drawing your attention to the defendant’s table, was the height of the person you saw similar to the defendant’s, Dana Goodwin?”
“Yeah. Like the lady.
Not the man.”
On cross, Burrows establishes that Pearse can’t say that the person he saw—“at a distance in the pitch blackness of night,” as Burrows repeatedly reminds the jury—wasn’t a few inches taller than the defendant.
“Have you met ever met a man named Richard Trofino?” Burrows asks.
“No. Don’t think so, anyways.”
“So the police never asked if you could identify the husband of the woman who was dead?”
“No.”
“Do you know how tall Mr. Trofino is?”
“No.”
“So, you don’t know if he’s approximately the same height as the person you saw—at a distance in the pitch blackness—in the park that night?”
“No.”
“Well, he is,” Burrows says.
My final witness is Richard Trofino.
I begin by expressing my condolences, and Richard nods and says thank you. The background portion takes fifteen minutes, long enough to establish with those jurors who don’t recognize him that he’s a man of power and influence in the city, but short enough to keep him from seeming like a borderline mobster.
Richard has made a point of calling me every night after the trial. I felt that I owed him this time, as the court’s sequestration order meant that his only window into what was unfolding was what I told him on those calls and what he read in the news. Still, I dreaded talking to him. There wasn’t a single conversation that didn’t involve his screaming at me about how it was playing out. I told him that the defense wasn’t getting anywhere with its strategy of blaming him, even as I wondered whether that was true.
Last night, I prepared him for this testimony. He was no more pleased with me than he had been during our phone conversations. Even my victory regarding the text didn’t satisfy him.
The one thing that emerged quite clearly from these discussions was that, the more time I spend in Richard’s company, the more it seems to me that he does in fact have the hair-trigger temper of a man who might just kill his wife. Needless to say, I am hoping to keep that side of him from the jury.
I begin my examination by asking Richard how long he and Lauren were married. This was intended to be a soft lob, but his back stiffens slightly. He pauses for a moment to rub his eyes before answering.
“It would have been sixteen years this coming February fourteenth,” he says, acting as if he’s still not accustomed to discussing her in the past tense, even though I’ve seen him do it countless times before with much less drama.
“Please describe the state of your marriage in the last year.”
“I don’t know quite how to answer that. I can tell you what I thought it was, and then I can tell you what I learned about in the course of this trial . . . the investigation.”
We had rehearsed that I would ask a deliberately complicated question so that Richard could correct me, just as he did.
“Tell the jury your thoughts about your marriage in the past twelve months.”
“I was very happy,” he says through a strained smile, now looking directly at the jury. Again, just as we practiced. “But I’m not going to overly romanticize it. After as many years as we’d been together, we had our issues. Quirks that bothered the other one, that kind of thing. But that type of longevity also strengthens your bond and brings you into a period where you know that this person is your person, until . . . well, I was about to say until death do you part.”
I would have preferred he not say that. Some jurors might conclude that was the only way Richard could get out of a bad marriage.
“And more recently, since your wife’s murder, have you come to a different conclusion about the state of your marriage in the past year?”
“Yes and no,” he says, again turning to face the jury. “Yes, in that I know that Lauren must have felt something was missing if she engaged in an extramarital affair. The fact that she became involved with a woman further indicates to me that she was searching for something that I couldn’t provide her. That revelation . . . it was like losing Lauren for a second time. I’m never going to be able to talk to her about what drove her away like that. I’m never going to be able to make it up to her.”
To my surprise, Richard begins to choke up. During prep he had done a similar speech, but always delivered it smoothly. I’m not sure if it’s the realization of the fact that he’s doing it for real that has brought on this rush of emotion or if he’s putting on a show.
“You answered my previous question concerning whether the recent revelations about your wife’s affair with Ms. Goodwin brought you to a different conclusion regarding the state of your marriage by saying yes and no. I think you provided us the yes part of your answer. What’s the no part?”
“The no part is that I know that my feelings for Lauren were true. I loved her. And, although I can never be certain of this, I have to believe that she loved me too. The way I think about it now is that she got lost, but she would have found her way back to me in the end. I know that I would have welcomed her back with open arms. That’s why her death . . . her murder . . . is so much more tragic. Not only because we’ve been denied the rest of our lives together, but also because I have to live with uncertainty about how she felt about me in the end. I know Lauren. She would have thought that taking away my faith in her love was somehow worse than death.”
Richard’s laying it on thick, that’s for sure. I would have told him to tone it down if he’d shared with me that he was going to say that Lauren would view his uncertainty about her love as worse than death. That’s something a narcissist says, not a grieving husband.
“When did you first learn that your wife had been unfaithful?”
“When . . . ironically enough now, Dana Goodwin told me. It was part of the police investigation. She was with Lieutenant Velasquez. They told me that there was circumstantial evidence of an affair. I honestly didn’t believe it. And then, of course, when Dana was arrested, I learned of the text messages. There was no denying it any longer.”
“To be one hundred percent clear, you had no idea of the affair until after your wife was murdered?”
“That is correct. Not only no idea—not even an inkling of an idea. It was the furthest thing from my mind.”
“I take it, though, that your wife had spoken about Dana Goodwin?”
“Yes. They worked together.”
“In the week prior to your wife’s murder, what did she say about Ms. Goodwin?”
This earns a hearsay objection, but I suspect LeMarcus hasn’t thought it all the way through. I’m not introducing Lauren’s statements because they’re true. Rather, the point is to show she was lying to her husband.
“Ms. Broden?” Judge Gold says, allowing me to unpack the reasoning behind my question.
“It is the defense’s theory that Mr. Trofino had motive because he knew about the affair. He just testified that he did not know of the affair. What his wife told him about her relationship with Ms. Goodwin speaks to his state of mind, and therefore meets that exception to the hearsay rule.”
“That it does,” Judge Gold confirms. “Proceed.”
“Please tell the jury what your wife told you about Ms. Goodwin in that last week of her life.”
“The night Lauren was murdered, she told me that Dana was going to return to General Crimes.”
“What was your reaction to this news?”
“I was surprised. Even though I’d be the first to admit that I don’t know all the ins and outs of the DA’s office, I understood that being a deputy chief was a promotion from being a line ADA. Later that night, I said this to Lauren, but she told me that it didn’t always work that way, and that Dana missed doing trial work.”
“Did you believe your wife when she told you that?”
“I did. It made sense at the time.”
“And now?”
“Well, knowing that Lauren and Dana were lovers makes me think about Dana’s decision to leave her job at Special Vics and to go back to General Crimes
very differently.”
LeMarcus objects. This time he’s right.
“Mr. Trofino,” Judge Gold says, “please limit your responses to your beliefs before your wife’s murder. What you concluded after is not relevant.” He turns to the jury. “Ladies and gentlemen, I’m sustaining that objection because there’s been no evidence entered that Ms. Goodwin was planning to leave her job. Mr. Trofino’s testimony is only that he was told that by his wife. I know it’s a bit confusing, but this testimony is only relevant to the extent it addresses what Mr. Trofino was thinking at the time because the defense has put his mental state into issue, claiming that he knew of the affair and therefore had motive to commit the crime for which Ms. Goodwin stands accused. But Mr. Trofino’s speculation now, after evaluating the evidence, about what it all means is no more relevant to Ms. Goodwin’s guilt or innocence than yours or mine. And because we can’t ask Ms. Wright if she told her husband the truth, it cannot be considered by you as the truth. Please proceed, Ms. Broden.”
I quickly consider whether the jury realizes that the only reason Lauren would have told her husband that Dana was leaving Special Vics was because they had broken up. It seems obvious to me, but juries can be dense about anything not explicitly laid out. I decide to weather some judicial ire to drive this point home.
“Thank you, Your Honor,” I say. “Mr. Trofino, do you now believe that your wife was saying this to you because her relationship with Ms. Goodwin had ended?”
Burrows is back on his feet. “Your Honor, you just cautioned that Mr. Trofino’s state of mind after the murder is of no relevance.”
“Sustained,” Judge Gold says, an edge to his voice. He knows I did that deliberately. “Move on, Ms. Broden.”
My last area of inquiry is to recount the last hours of Lauren’s life. I begin with Richard’s visit to Lauren’s office.
“What caused you to visit Lauren that evening?”
“We had dinner plans—with you, Ms. Broden, and your boyfriend. It was Lauren’s idea that we arrive together at the restaurant, so I met her at her office.”
“Did you see Dana Goodwin on that visit?”