by Jay Brandon
‘I don’t—’
‘If it was legitimate, why wouldn’t the person who had it bring it to you in person? Just appear at the front desk and say, “I’ve got some evidence in a murder prosecution your office has going on.” Why the secrecy?’
‘A lot of people don’t want to get involved, you know that.’ David glanced at the TV screen as if he wanted to look at the DVD again from the perspective Edward was suggesting.
‘Yes, a lot of inadvertent witnesses to a crime don’t want to come forward, for fear of retaliation or whatever, but this came from someone Paul supposedly trusted enough to give them this special assignment. This trust. “Turn this over to police if I’m found dead.” Why wouldn’t the person do just that? And I mean the day after the murder was on the front page. If this came from someone who actually cared about Paul, he would have shown up with this in hand, so he could answer questions about what else Paul was thinking and the other things that made him suspicious. Instead, they want to hide in the dark while making sure you keep the spotlight trained on Amy. It stinks, David. It stinks like day-old skunk shit.’
Edward could see David thinking. Edward was actually pretty impressed with himself, with his rapid responses to this devastating evidence. He was spinning out theories like a madman, drawing the prosecutor farther and farther from the evidence itself.
No, not like a madman. Like a lawyer.
David seemed to have the same thought himself. He looked at Edward with a little smile and said, ‘You’re pretty good, old pal.’
‘Because you know I’m right.’
David only shrugged.
Edward stepped closer to him, pointing at the television screen. ‘Do not release that to the press,’ he said carefully and quietly.
David shook his head. ‘I won’t.’
Edward felt a rush of relief. This DVD was still horribly dangerous to Amy, but there was a good chance Edward could keep it out of evidence at trial. It was, after all, hearsay, and denied him his right to cross-examine a witness, Amy’s constitutional right to confront her accuser. You can’t question the dead.
Well, you can, but it’s unproductive.
‘Thank you,’ he said. ‘That’ll give us both time to investigate this. You have a copy for me?’
‘Back in my office.’
‘And if you change your mind about releasing it you’ll let me know first, so I can try to talk you out of it or we can go to the judge?’
‘Sure, Edward.’
‘Thank you.’ Edward turned and started walking out. When he’d reached the doorway David cleared his throat and Edward felt a chill.
‘Unless I’m ordered to release it,’ the prosecutor said.
‘I have something for you to see,’ Edward said into his cell phone. By the time he got to Amy’s house she was there.
‘What’s happened, Edward?’
He just looked at her, and she saw it in his face: something terrible.
‘Come in, come in.’
‘Thank you. Where’s your DVD player?’
While turning on Amy’s television a minute later, Edward suddenly realized how mean this was. On his already fragile sister, he was about to spring the sight of her dead husband, suddenly alive again and accusing her of ushering him across the veil. Prim little Amy, sitting on the couch with her knees together and hands folded. She looked so innocent, like a little girl waiting for a surprise she’d been promised. Amy was about to be hurt badly, again, and he was the one doing it. But he wanted very much to see her reaction the first time she saw this, before she could put up defenses.
‘Come on,’ she said.
‘Amy, this is going to be bad. It’s Paul. Just prepare yourself, OK?’
He pressed Play on the DVD player and sat beside her, putting his hand over hers, those hands of hers that were twisted as tightly together as barbed wire.
Almost as soon as the DVD started, he realized he’d made another mistake, tactically, by sitting beside his sister. He couldn’t see her face. But he felt her reactions through her hands. They loosened when she saw Paul on the screen, alive again, looking at her. From the side, Edward saw his sister smile a little. When Paul began his accusation of her, Amy’s hands fell open completely, surprise making her slack. A minute later she leaned forward, concentrating on her late husband as he explained why she would want to murder him. Glancing aside, Edward saw studiousness and intense curiosity in the curve of her back.
Released from her hands, Edward stood up and moved to the side, to where he could see Amy’s whole face for the rest of the video. He’d seen the DVD already and he had weeks to study it. Only these few moments allowed him to see his sister’s first reaction to it.
Amy stared at the screen thoughtfully now, without apparent emotion. When the DVD came to the most hurtful part of Paul’s statement, that his wife wanted them to be ‘amorous’ again and the thought appeared to make him shudder, Amy didn’t flinch. She just watched the conclusion of Paul’s performance with apparent nostalgic affection.
‘So I thought it would be prudent to make this record and give it to a friend, who will mail it to police if I’m murdered. As I said, I’m probably being melodramatic or overly – what’s the word? – but at any rate, I wanted to do this. Thank you.’
Amy nodded when her husband stumbled over the one lost word. She looked up at her brother calmly.
‘Where’d this come from?’
‘We don’t know. Someone mailed it to the D.A.’s office.’
‘Mailed it? They didn’t bring it in person?’ Amy sat back and said, ‘Huh.’
‘Well?’
‘Well what?’ she asked, with an actual look of bafflement.
‘What about this, Amy? Is it true? Why would Paul have made this? Were you scaring him?’
She was scaring her brother a little, reacting so calmly, with nerves as calm as a professional killer’s.
She gave an exasperated expulsion of breath. ‘Please. Paul afraid of me? Don’t be ridiculous. Attacked him? Can you see that? Me coming at him, with my big claws out?’ Amy made her hands into claws for a mocking moment, and he had to admit it looked silly, like a little girl pretending to be a cat. She was at least half a foot shorter than her dead husband and slight by comparison. Edward had never known her to get enraged to the point of violence, not even throwing a cup.
‘Then why would he do this?’
‘He’s drunk,’ she said.
‘What?’
She waved a hand at the screen as if it were obvious. ‘On the DVD. He’s drunk on his ass.’
Edward turned to the blank screen. ‘I don’t think—’
‘You have to know Paul really well to be able to see it. He was a very accomplished drinker. You could tell when he’d start feeling it because he got more precise. His language got very careful, even eloquent. Feed him enough scotch and he’d turn into Winston Churchill.’
‘Amy, I didn’t see any sign of that.’
‘Because you didn’t know him that well. I’ve seen it a lot. Like when he said, “I jusht want to get divorced.” Did you hear that little slur? We’ll watch it again and I’ll show you. And then at the end, where he couldn’t think of the word he wanted? He was about to pass out, trust me.’
Did he? Did Edward trust what his sister was telling him? How could someone react this coolly to being accused of murder?
‘Would anybody else be able to recognize what you’re telling me, that he was drunk? Anybody else who knew him well enough?’
‘I don’t know. Maybe one of his old friends from college or med school. Not Dad. He was always very careful around Mom and Dad.’
Edward shifted tacks. ‘But what difference does that make, Amy? Answer my question. Is any of it true?’
‘Such as that he still wanted a divorce? I don’t know. Maybe he was just leading me on so I’d take it easier on him about the money and such. Maybe he just wanted another bounce with me out of nostalgia, or pride. I don’t think so, but maybe.
Obviously he was pretty good at hiding things from me. Maybe our little reconciliation would have run its course and we would have still gotten divorced anyway.’
Edward observed, ‘You don’t seem very upset.’
Amy shrugged. ‘I’ve had a lot of time to think about it. Believe me, I’ve had my tearful nights, even screaming at him for being dead. But I’ve had time to move on from the marriage. When he first left I thought I’d die, it’s true. I mean, die. I thought I would. But I didn’t.’ She looked up at her brother a little proudly. ‘I got up every day and went about my business and carried on with my job. I even went on a couple of dates, Edward. You didn’t know that, did you? I’m very discreet.’ She laughed, a brassy sound. ‘I saw that there were other possibilities in my life. I still loved Paul, yes, and if I could make it work with him I wanted to. But I wasn’t suicidal. Certainly not homicidal.’
It was a great performance, but she’d had time to practice it. He had to admit her reaction wasn’t what he’d expected. Paul’s accusation hadn’t knocked the legs out from under her at all.
As if to demonstrate her poise, Amy stood up. She walked to the television and started the DVD again. This time they talked as they watched it, like the DVD commentary to a TV show. Amy pointed out critically the places where Paul seemed to slur a word slightly. Under her tutelage, Edward began to hear it too.
But that didn’t make what Paul was saying lies. In vino veritas, as the saying went. Or as James McMurtry put it in a song, ‘Whiskey don’t make liars, it just makes fools.’
‘What about this?’ Edward dared to ask this second time around. ‘That you wanted to get “amorous” and it almost makes Paul shudder?’
‘Oh, please.’ Amy actually laughed. ‘He wanted it more than I did. That was always true. He came on to me first, Edward. Not subtly, either. One time we were talking, right here, he was sitting next to me at the table, going over our portfolio, of all things, when he leaned over and kissed me and, almost immediately, grabbed my – my breast. I was startled, to say the least. At first I thought it was just, you know, wanting to bag the one that got away.’
‘Did you say “bag”?’
‘Shut up. You know I’m not a trashmouth like you.’ She laughed again. Edward smirked back at her. It was amazing how they could fall that quickly back into their childhood patterns, but the grooves were laid long and deep.
‘Anyway, that lingering attraction was completely mutual,’ Amy finished.
‘Did you know he was seeing other women?’
‘My doctor husband going out with other women in the medical community, in which I spend my every working day? No, Edward, that was a complete mystery to me … Of course I knew it. He didn’t make any secret of it. He wanted to show me how attractive other women found him.’
‘Maybe he just wanted the other women.’
Amy looked at him frankly. ‘Maybe.’
Which made Edward wonder if his sister had had other outlets herself for those urges. She said she’d had ‘dates’. How had they ended? These questions weren’t prurient. They were lawyerly. A woman with other men on the side was less likely to get murderous over her husband’s having other lovers – at least, theoretically. Edward didn’t like it, but he was going to have to question his sister more closely about her personal life. Maybe even have one of her lovers testify at trial, to show the jury she had other irons in the fire, so to speak.
She interrupted his thoughts. ‘Here’s the important question, Edward. Who’s Paul talking to?’
He frowned. ‘The future? Police?’
‘No.’ Amy shook her head impatiently. ‘Who’s holding the camera? Who’s he making that little gesture to at the end to turn it off?’
Edward looked at her with one eyebrow lifted. His sister asked a good question.
Before he left, he told Amy he wanted her to see a psychiatrist.
‘You think I have mental health issues?’ she asked, cocking her head.
Possibly, he thought. ‘Not at all. I want to be able to show the prosecutor, and maybe eventually a jury, that you don’t. I want you to have a psychological evaluation. Something objective, on paper, which I can use if I need it.’
She stared at him, looking for his real motive. He understood her suspicion.
Amy asked slowly, ‘What if it shows something – that doesn’t benefit us?’
‘Then we keep it to ourselves. It will be confidential.’
‘But then at least you’d know,’ Amy concluded, looking him in the eye.
She was so damned smart.
By the end of summer, trial was drawing close. Edward still worked at his day job, but he was spending more and more time on the case. More time with the ‘defense team,’ Mike and Amy. Those two treated each other like colleagues, not friends, speaking very carefully and politely when the other was present.
In early September they had a court date, a vitally important one, over the DVD, Paul’s recording. Edward had filed a motion to suppress that evidence, which brought him back before Judge Cynthia. This time right up at the bench in front of her, with David Galindo close by his side.
‘Your Honor, could we have this hearing in chambers?’ Edward asked quietly. Behind him, the courtroom was half full of negotiating lawyers and anxious defendants and their families. Maybe even a newspaper reporter, for all Edward knew.
‘Why?’ the judge asked. The prosecutor stood silent, taking no position.
‘The nature of the evidence is so prejudicial, if it got out we wouldn’t be able to pick an impartial jury in this county,’ Edward said. He looked for anything in Cynthia’s expression that said she remembered him as anything more than a lawyer who went wrong and couldn’t find it. In spite of her early warning that she’d do nothing to help him, he held out hope for at least a subtle influence on her.
‘Why don’t you just make a proffer to me of what the evidence is? Can you two agree on that? Is there any reason I actually have to see it?’
Edward and David turned to each other, lifted their eyebrows, shrugged, and nodded.
‘Sure,’ the prosecutor said. He nodded his head toward Edward.
Edward cleared his throat. ‘It is a recording apparently showing the deceased, Your Honor, saying that if he is found murdered it will be my – the defendant in this case who killed him. He doesn’t really give a reason—’
‘Is whether he gives a reason or not relevant to the legal issue?’ Cynthia questioned. ‘No? Then let’s get on with it. What’s your objection to it, counselor?’
Edward began tentatively. ‘Well, obviously it’s hearsay, Judge. It denies my client her constitutional right to confront and cross-examine her accuser. There are a lot of questions I want to ask about why he would make this recording, questions that would go to his credibility, but I can’t.’
Edward’s voice got stronger as he talked. Cynthia had put him in a difficult position, springing this hearing on him so suddenly. He had to be careful to make all his legal objections right now, for the record, or lose them for the trial and possible appeal. Preserving error, it was called. He wouldn’t be allowed to argue something later that he wasn’t telling the judge right now. So his mind raced ahead of his tongue, dodging one way and another, like a frantic student pulling books off shelves, hastily flipping through them, then tossing them aside.
‘There’s also a question of authenticity, Your Honor. I don’t see how the prosecution can authenticate this recording when we don’t know who recorded it, how and where it was filmed, or whether it’s been altered in any way. Usually, of course, the prosecutor has a witness to say, “I took this video, it hasn’t been changed, it looks like what I saw when I was taping it.” There can’t be such testimony in this case.’
‘We can get a witness to say this is the deceased, this is what he looked and sounded like,’ David said.
‘But not to say this is how he looked on this occasion, which is crucial. It’s hearsay, Your Honor, pure and simple.’ Edward remember
ed what his lawyer acquaintance had told him about Judge Cynthia, that maybe she didn’t know the law so well after all. ‘It’s an out of court statement offered for the truth of the matter asserted.’
‘Yes, Mr Hall, we’re all familiar with the definition of hearsay.’
‘But there are very good reasons why it’s not admissible in court, Your Honor. Cross-examination is all we have in court, Judge. When a witness makes a bare statement it may sound believable. It’s only under questioning that it may become apparent that what he’s saying isn’t reliable at all. And this isn’t just a witness making a statement about something he saw. It’s him predicting the future. It’s purest speculation. It wouldn’t be admissible on that basis alone.’
He felt proud for remembering that word on the fly. ‘Speculation.’ That was a legal objection. It was a little absurd how quietly happy with himself that made him. The judge made sure he was finished, then with her expression still completely blank, turned to the prosecutor and lifted an eyebrow.
‘To begin with, Your Honor, it’s a dying declaration,’ David Galindo began.
‘No, it’s not.’
‘Please, counselor, I allowed you to make your argument without interruption, please give me the same courtesy.’
Edward wanted to interrupt him again to say that David had in fact interrupted him, but he could hear the childishness of that even before he said it. Instead he just rolled his eyes.
‘It’s a statement by the victim made in anticipation of his death,’ David continued. ‘Such dying declarations are specifically admissible as an exception to the hearsay rule. They are deemed reliable because no one knows this information better than the victim. We admit 911 calls from victims saying, “Someone’s trying to break in and I think it’s my ex-husband. He called earlier and threatened to kill me.” As for the defense’s other objections, we can produce any number of witnesses to say the person on this DVD is Paul Shilling, the victim. I also anticipate having expert testimony that this recording hasn’t been altered from the time it was made.’