“Mr. Hanson’s testimony is never brief,” Grim grumbles.
Now that’s gratuitous. “It will be today,” I shoot back. It has to be.
The judge silences the smattering of chuckles in the back of the courtroom with an upraised hand. “I will hear Mr. Hanson’s testimony,” he says. “I will also expect you to show some new information immediately.”
“Yes, Your Honor.” I resist the temptation to give Grim a sarcastic glare for being a niggling ass. I place my right hand on the edge of the witness box. “You’ve been a private investigator for many years, haven’t you, Mr. Hanson?”
A jumpy Grim is up again. “Objection, Your Honor. Leading.”
“Sustained.”
I don’t have time for a sniping contest. “I’ll rephrase the question.” I ask Nick how long he’s been a PI.
“Seventy years.”
“Did Mr. Fineman’s attorney hire you to assist his defense team?”
“Objection,” Grim says. “This material was covered at trial.”
Come on. “I’m simply allowing Mr. Hanson to explain his role in this case,” I say.
“Overruled.”
I repeat the question. Nick nods respectfully toward Mort. “Indeed he did.”
“When did he hire you?”
“The day Mr. Fineman was arrested.”
“What was your assignment?”
“I was asked to locate witnesses who had information about the case.”
“Did the witnesses include a man named Eugene Tsai and a woman named Jasmine Luk?”
“Yes.”
I need to phrase the next question in a manner that will give Nick a chance to place Bryant in the alley before Grim can lodge a hearsay objection. “Mr. Hanson,” I say in an offhand tone, “what can you tell us about them?”
The corner of Nick’s mouth turns up and he delivers the goods. “Mr. Tsai and Ms. Luk were employed at the Chinese Hospital. They were walking home together in the alley behind the Golden Dragon Restaurant immediately after the shootings occurred, when they were accosted by an African American man named Marshawn Bryant.”
Perfect.
As expected, Grim is up on his feet immediately. “Move to strike,” he says. “The trial record indicates that Mr. Hanson never spoke to Eugene Tsai or Jasmine Luk. That means he must have obtained this information from a third party. As a result, this testimony is inadmissible hearsay that should be stricken from the record and disregarded.”
“Your Honor,” I say, “Mr. Hanson obtained the information with respect to Eugene Tsai from Mr. Tsai’s brother. In addition, while Mr. Hanson didn’t speak to Ms. Luk at the time of the original investigation, he did in fact speak to her on Thursday.”
Grim is still standing. “It’s still hearsay,” he says.
He’s right. The purpose of this charade is to plant the idea with the judge and the gallery that Eugene and Jasmine saw Bryant in the alley. Even if Judge Stumpf decides to strike Nick’s testimony—which he probably will—I’m hoping that he won’t be able to strike it completely from his memory. I will have Wendell and Jasmine repeat the same story in a few minutes.
Judge Stumpf addresses Nick directly. “Mr. Hanson,” he says, “did you interview Eugene Tsai?”
“No, Your Honor.”
“Where did you obtain the information about what he saw?”
Nick answers him honestly. “From Mr. Tsai’s brother.”
“Did you interview Ms. Luk?”
“Yes, Your Honor. Two days ago.”
Grim interjects, “Classic hearsay in both cases, Your Honor.”
Indeed it is. We’ll have the same issue when Wendell takes the stand and I ask him what his brother told him, unless I can persuade the judge that an exception to the hearsay rule should apply. Here goes. “Your Honor,” I say, “as we delineated in our papers, among other things, Mr. Hanson’s testimony is admissible under Rule 807 of the Federal Rules of Evidence.”
Rule 807 is sometimes called the “catchall” or “residual” exception to the hearsay rule. It allows the admission of statements by an unavailable witness if the information goes to a material fact and has substantial evidentiary value, and there is no other reasonable way to present it. Rule 807 also makes reference to the “interests of justice,” a wonderfully vague notion that allows lawyers to serve up high-sounding platitudes without offering any real substance. Judges are generally reluctant to invoke Rule 807 because nobody really knows what it means.
“Your Honor,” I continue, “Mr. Fineman’s execution is less than fourteen hours from now. We have no time to engage in a lengthy appellate process. Rule 807 is intended to ensure that a rote reading of the hearsay rule does not lead to a gross miscarriage of justice. In this case, that would result in the ultimate penalty––Mr. Fineman’s death.”
Grim fires back. “Your Honor,” he says, “with all due respect to Mr. Daley and the interests of justice, it is well established that the residual exemption should be used sparingly because its parameters are not well defined. A jury weighed the evidence. The appellate process has played its course. It would be an even greater miscarriage of justice to overturn the will of a jury by admitting unreliable hearsay ten years later.”
Judges are loath to overturn jury decisions. “Your Honor,” I say, “just because Rule 807 is invoked infrequently doesn’t mean it shouldn’t be invoked at all––especially in circumstances where the stakes are high and the ramifications are irreversible.”
“That doesn’t address the inherent unreliability of this testimony,” Grim says.
Nick leaps back into the fight. “Who are you calling unreliable?” he snaps.
The judge reminds him that this is an issue for the attorneys to resolve.
We volley for five more precious minutes before Judge Stumpf finally makes the call. “I’m generally reluctant to invoke Rule 807,” he says. “However, there appears to be no realistic alternative. Given the graveness of the penalty and the lateness of the hour, I am prepared to admit some limited hearsay testimony.”
I turn and catch Rosie’s eye for an instant. This is a victory for our side.
The judge is still talking. “I want to set some ground rules. It is settled that such testimony should be proffered by a person who has the greatest credibility with respect to the unavailable witness. Mr. Hanson never spoke to Eugene Tsai and only recently spoke to Jasmine Luk. I am therefore ruling that Wendell Tsai should testify as to what his brother told him, and Jasmine Luk should testify as to what she saw.”
It isn’t ideal, but I can get what I need from them. “That’s fine with us, Your Honor.”
It isn’t fine with Grim. “Your Honor,” he whines, “the circumstances surrounding this case do not change the inherently unreliable nature of this testimony. It is still inadmissible hearsay that may be highly prejudicial. It should be disregarded.”
“I’ve ruled, Mr. Grim.”
He slumps back into his chair. “Yes, Your Honor.”
The judge looks over the top of his glasses at me. “Do you have any further non-hearsay questions for Mr. Hanson?”
“Just one, Your Honor.” I turn back to Nick. “Mr. Hanson,” I say, “did Mr. Eugene Tsai and Ms. Jasmine Luk testify at Mr. Fineman’s trial?”
“No.”
“Why not?”
He turns and speaks directly to the judge. “Mr. Tsai was killed a few days after the shootings at the Golden Dragon. Ms. Luk disappeared shortly thereafter.”
50/ NOT AN ACCIDENT
Saturday, July 18. 10:32 a.m.
13 hours and 29 minutes until execution.
Wendell Tsai’s body language makes it clear that he’d rather be having a root canal than sitting in the witness box. He tugs at the sleeves of an ill-fitting black suit that he must have borrowed for the occasion. He gulps down his second glass of water. It is difficult to elicit convincing testimony from a terrified witness. It’s even trickier when he speaks halting English. I’ll have to keep th
e questions simple and lead him one step at a time.
I start slowly. “Your brother was only seventeen when you came to America, wasn’t he?”
I’ve told him to look at me, but he’s staring straight down. “Yes.”
“He found a job at the Chinese Hospital?”
“Yes.”
“He went to school to study English during the day?”
“Yes.”
“Eugene was a bright young man, wasn’t he?”
Grim starts to stand, then reconsiders. It’s another blatantly leading question, and Tsai hardly qualifies as an expert on Eugene’s IQ. Nevertheless, he correctly surmises that he’ll look petty if he objects.
Tsai takes a drink of water and gives me a confused look. “Repeat question.”
“Your brother was a bright young man, wasn’t he?”
“Yes.”
“And ambitious?”
“Yes.”
“He picked up English quickly, didn’t he?”
“Yes.”
“He wanted to be a doctor?”
“Yes.”
I play for a little emotion. “He never had a chance, did he?”
He swallows hard. “No.”
The courtroom is stone-cold silent.
“He was killed ten years ago, wasn’t he?”
Tsai folds his arms as if he’s trying to find a place to hide. “Yes.”
“How old was he at the time?”
“Nineteen.”
“Nineteen.” I pause to let it sink in. “Did the police ever find the person who killed him?”
He shakes his head vigorously. “No.”
The warm-ups are over. “Your brother used to walk home from work through an alley behind the Golden Dragon Restaurant, didn’t he?”
Grim finally decides to stop the flow. “Objection, Your Honor. Leading.”
“Sustained.”
I rephrase. Tsai confirms that his brother used to cut through the alley. I ask him if Eugene took that route on the night three people were killed at the Golden Dragon.
“Yes.”
“How do you know?”
“He tell me.”
Grim tries again. “Objection, Your Honor. Hearsay.”
“Overruled.” The judge sternly reminds Grim that he’s already ruled on the admissibility of Wendell’s testimony.
I hold up a hand to reassure my bewildered witness. “Mr. Tsai, did Eugene see anyone on his walk home through the alley that night?”
Grim is still standing. “Objection, Your Honor. Foundation. There is nothing in the record to establish that the witness knows if his brother saw anyone on his walk home that night.”
“Overruled.” The judge addresses Tsai in a soft tone. “Please take your time and answer Mr. Daley’s question.”
His eyes dart around the courtroom. “He see black man in alley.”
Good. “Did the man say anything to him?” I ask.
“No.”
“Did your brother talk to the police?”
“Yes.”
“Was he able to identify the man?”
He shakes his head from side to side. “No.”
“Is it possible that the man’s name was Marshawn Bryant?”
“Objection. Speculation.”
“Sustained.”
I knew that was coming. I’m still trying to burn Bryant’s name into the judge’s mind. “Your brother was quite sure that it was an African American man?”
Grim is back up. “Objection, Your Honor. Asked and answered.”
“Sustained.”
Grim isn’t satisfied. “Your Honor, I must protest this line of questioning. Not only is Mr. Daley leading this witness, there isn’t a shred of evidence that a man named Marshawn Bryant was in the alley behind the Golden Dragon on the night in question.”
He’s overreacting. He’s also doing me a favor by repeating Bryant’s name. I decide to tweak him. “Your Honor,” I say, “we will be calling another witness in a moment to provide further proof that Marshawn Bryant was in the alley. At this time, we are simply pointing out that Eugene Tsai also saw him.”
Grim’s voice rises. “There was no such evidence,” he says. “Mr. Tsai did not make a positive ID. Moreover, Mr. Bryant was questioned by the police and his alibi was verified. Mr. Daley is attempting a last-ditch effort to save his client by introducing uncorroborated hearsay testimony from an unreliable witness at the eleventh hour.”
That’s the whole idea of a habeas petition. “Your Honor,” I say, “Mr. Grim is now calling Mr. Tsai a liar.”
“No, I’m not,” Grim says.
“Yes, he is.” It’s my turn to make a speech. “Mr. Grim’s behavior is inappropriate and disrespectful. Mr. Tsai’s brother was tragically killed after he had the courage to come forward with information about the events at the Golden Dragon. Mr. Tsai should be commended for showing the same type of bravery by testifying today. If Mr. Grim wishes to question his credibility, he will have an opportunity to do so on cross. In the meantime, he should limit his comments to legally recognized objections.”
“Your Honor,” Grim whines, “Mr. Daley is testifying.”
Judge Stumpf goes my way. “The objection is overruled.”
So there. I’m scoring points, but I haven’t hit one out of the park and the clock is running. I turn back to Tsai. “Did your brother walk home by himself that night?”
An emboldened Tsai sits up a little taller. “No.”
“Who was with him?”
“Pretty girl live in alley in back of restaurant. Name Jasmine Luk. She work at hospital with Eugene.” He nods and adds, “They walk home together a lot.”
“Eugene told you that they walked home together that night?”
Grim starts to stand, then changes his mind.
“Yes,” Tsai says.
“Was Ms. Luk with your brother when he saw the man in the alley?”
“Yes.”
“Did she see the man, too?”
“Yes.”
“How do you know?”
“Eugene told me.”
“Did she talk to the police?”
“Yes.”
“Did Ms. Luk testify at the trial?”
“No.”
“Why not?”
“Got scared after Eugene was killed. Left town.”
I take a step back and lower my voice. “Mr. Tsai,” I continue, “why didn’t your brother testify at the trial?”
His eyes turn downward. “Was killed.”
“When?”
“After he talk to police. Somebody find out.”
“Do you know who killed him?”
“No.”
“Was his murder ever solved?”
“No.”
“Why didn’t the police provide protection?”
“They try.” He purses his lips with contempt. “Do bad job.”
So it would seem. I move directly in front of the witness box. “Do you believe his death was an accident?”
“Objection,” Grim shouts. “Speculative.”
“Sustained.”
My eyes are still locked on Tsai’s. “Do you have any information regarding the circumstances surrounding your brother’s death?”
He starts to shake and his voice cracks as it gets louder. “Not an accident,” he says. “Not an accident.”
“No further questions, Your Honor.”
“Cross-exam, Mr. Grim?”
“Just one question, Your Honor.” Grim addresses Tsai from his seat. “Mr. Tsai,” he says, “did your brother positively identify the man that he supposedly saw in the alley?”
Tsai shakes his head. “No,” he says softly.
“No further questions, Your Honor.”
“Please call your next witness, Mr. Daley.”
On to the main event. “We call Ms. Jasmine Luk, Your Honor.”
51/ I WAS AFRAID
Saturday, July 18. 10:40 a.m.
13 hours and 21 minutes until execution.
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br /> The conventional wisdom says a trial lawyer should never ask a question unless he already knows the answer. That rule isn’t going to apply to our direct exam of Jasmine Luk. The good news is that she speaks fluent English. The bad news is that we have little idea what she’s about to say––or how convincingly she’ll say it. Our goal is modest: to place Bryant in the alley behind the Golden Dragon. Then we want to get her off the stand as fast as we can.
Rosie has a softer touch, so we’ve agreed that she’ll handle Luk’s direct exam. She stands a respectful distance from the witness box and starts with an easy one. “Would you please state your name for the record?”
“Jasmine Luk.” Amanda Wong’s great-niece is uncomfortable using her given name. It’s been a while. She stares straight down as she tugs at a silk scarf that she borrowed from her great-aunt. If she were wound any tighter, she’d explode.
Rosie shoots a reassuring glance at Wong, who is seated behind me. Rosie asks the judge for permission to approach Luk, then she moves in cautiously. “Jasmine, you were born in China, weren’t you?”
“Yes.”
“You came to this country when you were just twelve, didn’t you?”
“Yes.”
“And you lived in an apartment in Chinatown?”
“Yes.”
“And your mother passed away shortly after you graduated from high school?”
Grim finally offers a halfhearted objection. “She’s leading the witness, Your Honor.”
Yes, she is. Luk isn’t exactly a hostile witness, but she isn’t going to be wildly helpful, either. “Your Honor,” Rosie says, “Ms. Luk is a reluctant witness who is here at great personal sacrifice. I would appreciate some latitude to make this easier for her.”
In other words, she wants permission to lead her shamelessly.
“I’ll give you a little leeway, Ms. Fernandez. However, the objection is sustained.”
There are no surprises as Rosie takes Luk through the highlights of her life story, which Luk delivers in a detached monotone with her eyes trained on her toes. She came here from China with her mother, with assistance from her great-aunt. She found a job at the Chinese Hospital after she finished high school. That’s where she met Eugene Tsai. She stayed in the apartment in the alley behind the Golden Dragon after her mother died.
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