Mystery Writers of America Presents the Prosecution Rests

by Inc. Mystery Writers of America

  Johnson waited a few seconds in the silent courtroom, then placed himself between the defense and prosecution tables. “Mr. Jagoda, did you get a good look at the person who shot your wife?”

  “Yes. He is that man”—pointing—“in the light blue shirt and dark blue jacket.”

  “Please note that the witness has pointed out the defendant, Harold Vekt.” Harold began to open his mouth but was glared down by Herrera.

  “Would you tell us, Mr. Jagoda, if the defendant’s appearance differs in any significant way from what it was at the time of the crime.”

  “His hair is different. It was blond, and much longer.”

  “Then how can you be certain it was he?”

  “When I first saw his picture at the police station, there was something about it, but I passed it up because of the hair. But then I remembered that I’d been told to pay more attention to the permanent features than the changeable ones. And I suddenly recalled that as my wife pulled the robber’s hair it had appeared to shift slightly, backward from the hairline.

  “The eyes and mouth, the shape of the chin were exactly as I remembered them.”

  “One more question, sir. For how long a time would you estimate you had an opportunity to observe the defendant’s face and become familiar with it?”

  “I can’t tell you in minutes or seconds. For as long as it took him to ask for an address, and for me to answer him; and for him to threaten us with his gun and demand our valuables, and for each of us to remove our valuables and put them in the briefcase, and for him to back away several feet and run forward again.”

  “I appreciate that you can’t know the exact time lapse. But between two minutes and half an hour, which is closer?”

  “Two minutes.”

  “How about between two minutes and fifteen minutes?”

  “Fifteen. Definitely.”

  “Thank you, Mr. Jagoda. Pass the witness.”

  Herrera, four inches shorter and considerably bulkier than the prosecutor, rose from his chair but stayed behind the table. “Mr. Jagoda, may I offer my sincere condolences for your losses.” Jagoda’s expression did not change. “But you must appreciate that describing the tragic nature of a crime does not provide evidence that any specific person committed it.”

  “Objection.”

  “Sustained. Save it for the summation, Mr. Herrera.”

  “Sorry. Mr. Jagoda, you estimated the time you and the robber were in each other’s presence as between two and fifteen minutes, closer to fifteen. During how much of that time were you actually looking at his face?”

  “I don’t understand.”

  “Let’s start with the time before he pulled the gun. When he asked directions and you answered him. Were you looking at his face throughout that time?”

  “Well—I suppose so. What else would I have looked at?”

  Vekt scribbled something. Herrera threw it a stony glance and took an audible breath before continuing.

  “Was he, for example, holding anything in his hand?”

  Jagoda hesitated. “Ye-es. A bit of paper. I assumed the address he wanted was on it.”

  “You assumed—so you didn’t actually see it?”

  “I tried to, but it was out of reach.”

  “You tried to. So then, for part of that time, were you not looking at the paper rather than at the man’s face?”

  Jagoda was silent.

  “Please answer.”

  “I would have to say yes.”

  “Now—let’s get to the rest of the time, after the gun was displayed. How did you react when you first saw the gun?”

  “I was horrified—paralyzed.”

  “Where were your eyes? What were you looking at?”

  Jagoda sighed and closed his eyes. “The gun, mostly.”

  “And when you were putting your valuables into the briefcase, what were you looking at?”

  “The items I was handling, and the gun, and his face.”

  “When he turned his attention to your wife, what were you looking at?”

  “Primarily the gun. It was jabbed into her side. I was terrified that it would go off.”

  “So, would it not be accurate to say that for most of the duration of this event you were looking at the gun, not at the perpetrator’s face?”

  Jagoda’s gaze left the attorney’s face and swept out a semicircle across the floor, coming to rest on a far wall. Barely audible, he said, “Perhaps. I can’t be sure.”

  Herrera nodded gently, as though he and the witness had arrived at an understanding. Then he moved a few steps closer to him. “Now, sir, is it correct to say that you identified the defendant first from pictures shown you by the police and then from a lineup of six people?”

  “Yes.”

  “What did Detective Swayze say to you as you prepared to view the lineup?”

  “Objection. Your Honor, you’ve already ruled that the speaker is the best source—”

  “In this instance,” Herrera interrupted with a touch of indignation, “the speaker has already said he doesn’t remember.”

  Judge Quinn looked from Herrera to Johnson to Jagoda, then pursed his lips and said, “Overruled. The witness may answer.”

  Jagoda nodded. “He instructed me to view each of the men carefully and select the assailant.”

  “‘Select the assailant.’ Were those his exact words?”

  “I don’t believe so, but—”

  “Let me put it another way. Did he say, in effect, ‘Is it one of them?’ or did he say, ‘Which of them is it?’”

  “The latter is closer.”

  “Let’s clarify that. He asked not if one of them did it, he asked which of them did it. Is that correct?”

  “Yes.”

  “Now, Mr. Jagoda, you said that shortly after your first sight of Mr. Vekt’s picture you suddenly remembered that the robber’s hair had seemed to shift as your wife pulled it. Why did you not say this in your first statement to the police, when you described the person as having shoulder-length blond hair?”

  “I didn’t remember it at the time. You must realize, I was in a state of shock.”

  “Yes,” Herrera said softly, “tell us about that.” Vekt looked up at him, puzzled.

  Jagoda, focused inward, continued. “The police had found me sitting on the ground, in a complete daze, with Annabelle in my arms. I didn’t realize that I had also been shot. They took me to the emergency room, where my arm was treated, then to the intensive-care unit to see her.

  “As we entered I heard a doctor say to the detectives, ‘She’s still alive, barely. Frankly, with that wound, we don’t know why.’

  “I looked through a glass partition at a mass of technology: tubes, machines, all attached to this papier-mâché creature: yellowish-gray skin, concave cheeks—surely not my Annabelle.”

  Vekt stared at Herrera. Why was he permitting, even encouraging, this ploy for sympathy?

  He drew a huge question mark on the yellow pad, but Herrera either failed or chose not to see it.

  “The doctor was explaining to me,” Jagoda was saying, “that all her functions were being mechanically supported, but his words floated by me, carrying their meaning away. The electronic beeps speeded up, and there was a great deal of to-ing and fro-ing, but then the sound changed to an unmodulated signal, and everyone suddenly stopped moving. The doctor looked at his watch and”—Jagoda inhaled deeply—“pronounced Annabelle dead, at two forty-six a.m.

  “Very soon afterward, the police took my statement. So you can see why I might have left something out.”

  Herrera sighed, as though moved. “So what you mean to tell us, Mr. Jagoda, is that because of trauma you had forgotten about seeing the hairline shift, but that on a later occasion you suddenly recalled it?”

  “Yes.”

  ____

  TWO CORRECTION OFFICERS escorted Vekt to the defense table at 10:15 a.m.; everyone else, except the judge, was in place.

  Herrera looked at him. Vekt stra
ightened his tie. “How are you?” the lawyer asked.

  “Slept lousy. That tear-jerking stuff—the jury ate it up. How come you let him go on like that?”

  “Because it makes a very bad impression if you negate the victim’s suffering.” Vekt raised his eyebrows. “And,” Herrera continued coldly, “we shall probably make use of it later in the trial.”

  Vekt opened his mouth, but just then Judge Quinn entered. “Remain seated, please. Mr. Johnson, have you any more witnesses?”

  “One bit of redirect for Mr. Jagoda, Your Honor.”

  Morris Jagoda seemed to have lost weight since just the day before. Johnson asked him one question: “What was there about Mr. Vekt’s picture that drew your attention to it despite the fact that the hair looked different?”

  “The eyes and the shape of the mouth are rather unusual.”

  Vekt reflexively touched the betraying features. Herrera also had one more question for Jagoda: “What time was it when this person first approached you?”

  “I can’t say exactly. But we’d left the restaurant at about ten oh-five and walked slowly, because Annabelle was wearing high heels. Probably ten twenty or so.”

  “Ten twenty. Thank you, Mr. Jagoda.”

  Vekt followed Jagoda’s stiff descent from the witness chair and saw him take a seat at the end of the first row, next to a couple in their fifties who’d been there every day of the trial.

  “What’s he doing there?” he hissed. “I thought he wasn’t allowed in.”

  “That was before he testified. Now it doesn’t matter.”

  “It matters to me!”

  Herrera’s cheek muscles twitched. “His wife was murdered.”

  “Yeah.”

  ____

  THE FIRST WITNESS for the defense was Harold’s mother. “Mrs. Vekt, where, to your knowledge, was your son on the evening of March twenty-first?”

  “He came to my place for dinner.”

  “Where do you live?”

  “In Yonkers.”

  “Do you remember what time he left?”

  “About ten minutes to ten.”

  “How do you know that?”

  “We watched Celebrity Poker for a while, and he helped me unload the dishwasher. Then he had to rush off to make sure of catching the ten o’clock bus.”

  “And that bus arrives in the city about what time?”

  “Maybe ten to eleven, if the traffic’s light.”

  “Thank you, Mrs. Vekt. Pass the witness.”

  Johnson positioned himself about six feet from the witness stand. “Mrs. Vekt, how often does your son visit you?”

  “Two or three times a month.”

  “How is it, then, that you remember this one instance so clearly?”

  “It was the last time before he was arrested.” Johnson blinked and turned his back to her momentarily.

  “Mrs. Vekt, do you love your son?”

  “You bet I do. He’s a great kid.” Harold smiled, hoping she wouldn’t mention the gifts he’d given her.

  “Wouldn’t you, then, lie in order to keep your son out of prison?”

  “I don’t know.”

  “Please respond with yes or no.”

  “Objection,” called Herrera, but Theresa Vekt spoke over him.

  “I can’t say yes or no. A person can’t answer that sort of question unless they really need to decide about doing it. But I don’t need to because I’m telling the truth.”

  “Right on, Mom,” Harold mumbled, eliciting another squelching glance from Herrera.

  “Sustained,” the judge said, finally. He looked at Johnson. Anything further?”

  “No,” the prosecutor grunted.

  “Call your next witness, Mr. Herrera.”

  “Please call…,” Herrera said before he noticed that Harold was beckoning him. “Just a moment, please.” He sat down, and Vekt leaned over to speak into his right ear.

  “Put me on the stand. I’ll knock’em dead, the way Mom just did.”

  Herrera winced. He glanced around at the nearest spectators, then placed his mouth next to Harold’s left ear and shielded it with his cupped right hand. “I thought we’d settled this. You have a legal right to testify, and if you are adamant I can’t stop you. But in my experiencedprofessional opinion, it would be extremely unwise—in fact, disastrous. So much so that I am unwilling to stake my reputation on it, and if you insist, I will apply to the judge to withdraw as your counsel. He might not consent, but the fact that I’ve asked will not do you any good.”

  The lawyer rose without waiting for a reply. Vekt stared at his back, no longer uncertain if Herrera knew he was guilty.

  ____

  “PLEASE CALL DR. Madeline Smithers.”

  “Objection! We see no legitimate purpose—”

  “You certainly understand the significance of—”

  “Let’s not have cross-talk between the attorneys. Come.”

  Johnson and Herrera leaned across the bench. Vekt strained to hear the whispers.

  Herrera: “… acknowledged expert…”

  Johnson: “… no relevance…”

  Herrera: “… solely on… severely stressed witness.”

  Judge Quinn: “Gentlemen, lower your voices.” The discussion continued inaudibly for about ninety seconds, and then the judge waved the attorneys away.

  “The witness may be called. But, Mr. Herrera—and you too, Mr. Johnson—she may be questioned only regarding her own expert knowledge, and not about the specifics of this case. Is that understood?”

  The attorneys, each looking dissatisfied, mumbled, “Yes.”

  ____

  MADELINE SMITHERS DIFFERED from most witnesses in not swiveling her gaze furtively from defendant to prosecutor to jury as she entered the courtroom with brisk, sure steps. She took the oath firmly and swept the back of her taupe wool skirt free of wrinkles as she seated herself in an erect posture. She was slender, with smoothly groomed graying dark hair and a long, oval face. Vekt’s assessing eyes found only a plain gold wedding band and a hint of gold watch under the left sleeve of her suit jacket.

  Herrera was standing between the defense table and the jury box. “Please state for the record your full name, title if any, city of residence, and place of employment.”

  “I am Madeline Curry Smithers, PhD. I reside in Chicago and am a full professor in the psychology department at West Chicago University.”

  “Please describe the area of psychology in which you specialize.”

  “For the past seventeen years my associates and I have been engaged in experimental investigation of perception and memory, in particular, the accuracy of eyewitness description and identification.”

  “In general terms, what have been your findings?”

  “Unfortunately, inaccuracies and erroneous identifications have proven to be very common.”

  “Objection. What does ‘very common’ mean?”

  “There will be more specific testimony.”

  “Overruled, provisionally.”

  Herrera turned back to the witness. “In your expert opinion, Dr. Smithers, what are the causes of eyewitness inaccuracies?”

  “There are many influences on what we believe we remember. The wording of the questioning, for instance, can be crucial.”

  “Please give us an example.”

  “When a witness is asked to identify someone from among a group—either by photograph or in person—the police sometimes ask, ‘Which of them is it?’ rather than ‘Is the person you saw among them?’ Witnesses then tend to assume that one of the choices must be correct and select the one closest to their recollection, however remote the resemblance.

  “A witness may also sense, through subtle—usually unintentional—tonal and behavioral cues, which choice the questioner would prefer and respond accordingly.”

  “Doctor, can a traumatized person be suddenly ‘jogged’ into remembering what he previously did not?”

  “Sometimes; however, trauma obstructs observation
, and what is not initially perceived cannot be recalled. Our findings contradict the common assumption that everything we are in a position to observe is stored in our minds and available for retrieval. Perception tends to be very piecemeal; we construct whole memories by using these pieces as raw material and filling in the logical gaps. Such sudden ‘remembering,’ therefore, is often resolution of uncertainty rather than accurate recall.”

  “Regarding this transition from uncertainty to spurious certainty—”

  “Objection to the word ‘spurious.’ Implies that such remembering is always inaccurate.”

  Quinn looked skeptically from Johnson to Herrera, then said, less than forcefully, “Sustained.”

  “In that case,” Herrera intoned, “I ask you if indeed such memory recovery is always spurious.”

  “Not one hundred percent, but often enough so that one should be wary about relying on it.”

  “Objection! It’s up to the jury to decide what testimony to rely on.”

  “Sustained. Strike everything after the word ‘percent.’”

  Herrera blinked and turned back to the witness. “Please tell us in what way, if any, accuracy of observation is affected if there’s a gun involved in the traumatic incident.”

  “The tendency is for one’s eyes to remain riveted on the gun, largely screening out everything else.”

  “Including faces?”

  “Yes, I’m afraid so.”

  Herrera returned to the table and scanned a printed sheet. He rattled the page briefly, and Vekt’s half-closed eyes snapped open.

  “Dr. Smithers, have any of your studies involved the procedure known as a police lineup?”

  “Yes. I’ve run two such studies, one with college students as subjects, the other using the general population. Identical studies, with closely matching results, have been carried out at several other universities.

  “In each trial an incident was staged, and witnesses were later asked to identify the ‘perpetrator’ by choosing among six people in a lineup. In sixty-seven percent of the trials the wrong person was selected, whether or not the right one was among the six.

  “Witnesses tend to select someone they’ve seen before in any context if that is the only familiar face. In one study, a man who had come into the room to empty wastebaskets just before a staged assault was lined up with five men who had not been present at all. Fifty-eight percent of the witnesses identified him as the one who had punched the ‘victim’ in the jaw.”