by Ed Gaffney
“Yes.”
“And there were only four different numbers that Mr. Cruz called, isn’t that correct?”
The witness wasn’t happy with me, but he was doing a good job hiding it from the jury. “That’s correct.”
“And wasn’t one of those numbers for Mr. Cruz’s parents’ home line, and the other three numbers the cell phones of his mother and his two sisters?”
“Yes, that’s right.”
“So although you didn’t find Mr. Cruz’s cell phone, you did find a bill for his cell phone service for the period running from about six weeks before the attack to two weeks before the attack, and over that four-week time span, the records indicate that Mr. Cruz had no cell phone contact, whatsoever, with my client, the defendant, Juan Gomez?”
“That’s right,” the witness replied. “But of course, he might have bought disposable cell phones and contacted your client that way.”
Up to that point in his testimony, the state police officer had seemed only interested in making sure that the jury kept in mind that just because my questions were steering them in one direction, there were plenty of other directions to work with.
His last effort along those lines sounded less like he was just making sure we had all the facts, and more like a gratuitous shot at me to make sure that the jury believed only his version of the facts.
In a trial where I felt like the opportunities to come out ahead were going to be very, very rare, I seized this one.
“But of course, you found no disposable cell phones in the apartment, nor any receipts indicating that Mr. Cruz had purchased any disposable cell phones.”
The police captain knew he had to concede, and when he finally did so, he did it quietly. “That’s correct.”
I didn’t think I had anything else I could get out of Captain Francona, so I returned to my position behind the defense table, and prepared to excuse the witness.
Just then, the voice from the device in my ear said, “Don’t stop there, Counselor. It’s time to make some noise.”
NINETEEN
I’VE USED HEARING aids since I was seven years old. And ever since then, I’ve been fully aware of the fact that the way the aids work is to amplify the sounds I’m hearing naturally. It never made sense to stick my finger into my ear to improve a hearing aid’s performance.
So for the first few years I used the aids, I was confused when I saw television personalities occasionally put a finger in an ear. I had no idea they were trying to hear whatever the producer or director was communicating to them through their earpiece. I just thought they didn’t know how to use their hearing aids.
When Beta began to speak to me through the earpiece, the first thing I wanted to do was to put my finger into my ear, so that the only thing I could hear through that passageway was the little voice from the tiny piece of plastic lodged in there.
Of course, that would have made me look spectacularly suspicious. Just like someone listening to a disembodied voice through a hearing device.
Happily, I managed to detour my hand just south of its original target, and before untold millions of viewers, I stood behind the defense table, and self-consciously scratched my left cheek. Rather than suspicious, I merely looked stupid.
“Ask him if he’s familiar with the death of an unidentified individual which took place two days before the tunnel bombing in Greene County, Colorado, just north of Colorado Springs.”
The only thing that I managed to do in response to this message was to stop scratching my cheek. Since no one else in the courtroom had heard what Beta had told me, it merely looked like after Captain Francona had answered my last question, I decided to return to the defense table, and stand there, intermittently attending to my itchy face.
“Mr. Carpenter,” Judge Lomax said. “Do you have any further questions for this witness?”
“Ask him!” snarled Beta. “Don’t just stand there. Trust me. It’ll make sense soon enough.”
I had no idea where Beta was going. I had no idea where anything was going. But even though I didn’t understand the purpose of the question, I decided there was no harm in asking it.
Unfortunately, by that time, I had forgotten it.
“No…I mean yes, Your Honor,” I said. “Yes. I have further questions.” I turned to the witness. “Captain Francona, are you familiar with the death of an unidentified individual…” It was all I could remember.
Beta was disgusted with me. “Jesus Christ. Which took place two days before the tunnel bombing in Greene County, Colorado, just north of Colorado Springs.”
The voice was crisp, and clear. Not particularly loud, though, which was a bit of a concern, because when it was speaking, I found myself freezing into a completely still position, as if that would minimize any ambient noise that might interfere with my ability to understand what was being said.
Cliff later said that I looked a little bit like a defective robot. Every once in a while, I would stand dead still, looking straight ahead, saying nothing. And then, all of a sudden, I would snap out of it, and start moving and speaking again.
“Which took place two days before the tunnel bombing in Greene County, Colorado, just north of Colorado Springs.”
Varick was on his feet in no time. “Objection, Your Honor. Irrelevant.”
Judge Lomax turned to me. “I assume that the relevance of this information will become apparent in a reasonable amount of time, Mr. Carpenter?”
I swallowed. I had absolutely no idea. “I believe so, Your Honor.”
“Very well,” the judge said. “Continue.”
Now all eyes turned to the witness for his extremely anticlimactic answer. “No, I’m not familiar with any John Doe situation in Greene County two days before the tunnel blew,” he said. “Of course, just because I didn’t hear about it, doesn’t mean there wasn’t a John Doe up there.”
That was fair enough. Unfortunately, as far as I could see, as A.D.A. Varick had pointed out, it was also completely irrelevant to this trial. I tried to stall by flipping over a page on the legal pad sitting in front of me on the table. I sensed that my client, sitting to my left, could see that it was blank. Finally, my cue came. “The body was autopsied by the medical examiner’s office.”
I was painfully aware of how much time had passed between the end of the witness’s answer and my next question, so I started talking a little bit before my brain had completely formulated the appropriate question. “Um, the body was autopsied…so you are unaware of the fact that this unidentified individual, the corpse of this John Doe, was autopsied by the medical examiner’s office?”
Captain Francona did not try to hide his confusion. “No, sir. Obviously, if I didn’t know that there was a John Doe, I didn’t know that he had been autopsied.”
Even experienced courtroom lawyers occasionally look silly as they’re conducting cross-examination. A witness takes a left turn when they’re expecting a right, and suddenly, their entire line of inquiry, and sometimes their entire case, gets blindsided.
I was far from an experienced courtroom lawyer, and I was being fed my lines by a non-attorney, on the fly. “Silly” didn’t begin to cover how I was looking at that moment.
“Ask him if he has Cruz’s fingerprints.”
I sighed, and considered telling the judge I was done. It sure sounded like Beta didn’t have anything worth saying, and I really didn’t feel like making a mockery out of the system I held so dear.
“Ask him, Counselor. In about two minutes, this whole thing is going to go nuclear. Innocent people’s lives are on the line, and I can’t save them without you. Just ask him about the damn fingerprints.”
Judge Lomax was losing patience. “Mr. Carpenter?”
I came out from behind the table. “Sorry, Judge.” I turned to the witness. “Sir, did Esteban Cruz have a criminal record, to your knowledge?”
Francona was caught off guard by my question, and blinked. “No. As a matter of fact, we checked that out after we spoke t
o his employer. But no. He wasn’t in the state system, or the federal system. No warrants from other states, no arrests, nothing.”
The voice in my ear began to say something, but I talked over it.
“I see. So then, you have no fingerprint records for Mr. Cruz?”
By this time, I had an inkling where this was going. I didn’t believe it, and I didn’t like it, but until I found out more, I was going to play along with Beta’s theory.
“That’s right. We had no fingerprint records.”
I pressed on. “So then when you searched Cruz’s apartment, you didn’t dust for prints, correct?”
“That’s correct,” the witness responded. “We were not looking for evidence as to whether Mr. Cruz had been in his apartment. We were not looking for his fingerprints.”
I was in something of a rhythm, even though I now knew I was going to end my time in the spotlight far before I achieved anything significant. “And naturally, you did not attempt to retrieve DNA samples from the apartment, correct?”
“That’s correct. That’s not why we were there.”
“And because the tanker truck had been so thoroughly incinerated, there was no ability to take fingerprints or DNA samples from the inside of the driver’s compartment, correct?”
Again, the witness confirmed my statement.
“There were no surveillance cameras pointed at vehicles entering the tunnel other than the one that recorded the tape we just recently viewed. Isn’t that correct?”
“That’s correct.”
And with that, sadly, my rather modest mission was complete. I have to admit that I was disappointed. The secret earpiece and Beta’s clandestine communications had suckered me—or at least the very naive and competitive part of me—into believing that I was about to uncover some pivotal fact, some vital information, that would have a significant impact on the trial. Instead, my elaborate cloak-and-dagger two-step with Beta the Bathroom Assailant had led only to the presentation of the most facile, transparent, and frankly, lame attempt to create reasonable doubt in the jurors’ minds.
The argument was supposed to go like this: Ladies and gentlemen of the jury. In order to find my client guilty, you must find that he committed these crimes beyond a reasonable doubt. You have evidence that an unidentified individual died two days before the Denver Tunnel Bombing. An autopsy was done, fingerprints and DNA samples were taken. The prosecution wants you to believe that Esteban Cruz was the driver of the truck that caused the explosion in the tunnel, but they have no direct proof that he was the driver. And they have no DNA or fingerprints of Mr. Cruz, so we cannot rule out that he, in fact, was the John Doe who died two days before the bombing. Since there is a reasonable doubt that Esteban Cruz was responsible for the Denver Tunnel Bombing, you must find my client not guilty.
I took a deep breath, and returned to my place behind the defense table. “I have—”
“Don’t say anything yet,” my invisible companion said. “But go ahead and sit down.”
I’m not sure why I rebelled at that point. Maybe I was just tired of being threatened, of following orders from someone I really didn’t trust. Or maybe I was just frustrated with myself at believing the implication that something important was coming, when Beta so dramatically said, It’s time to make some noise.
But I had had enough. I said, “I have nothing further, Your Honor,” and I sat down.
As the judge thanked the witness, Beta said, “I can’t believe you did that, you idiot. Reach under the table. Get the envelope I taped there.”
Cliff said that even though the camera was located behind me, he could see that at that point, I was disgusted. I looked off to the left, shaking my head, and then I reached under the table.
One part of me didn’t believe there would be anything there. The other part believed there would be an envelope, but that it would contain nothing of significance.
In a matter of seconds, I learned that neither part of me was right.
While Oswald Francona got up and left the witness stand, I awkwardly reached under the table and sure enough, I felt something taped there. I pulled the large manila envelope onto the table in front of me, removed the single sheet of paper contained within it, and immediately stood up.
“I apologize, Your Honor, but I have one more question of the witness.” Judge Lomax looked at me hard. “With the court’s indulgence,” I added, somewhat meekly.
“Very well,” he said, gravely. His tone indicated without much doubt that I had just used up whatever indulgences I was going to receive.
By this time, Captain Francona was halfway up the aisle of the courtroom, so it took him a minute to return to the witness stand.
“You are still under oath, sir,” Judge Lomax reminded him.
And with that, I approached the witness, and handed him the piece of paper I’d received from Beta. Then I asked, “If Esteban Cruz truly was the driver of the gasoline truck that ignited the explosion in the Marion Perkins Tunnel in Denver, and his body was entirely cremated by the resulting fire, then how is it that he appears in this autopsy photo taken of his corpse two days before the Denver Tunnel Bombing?”
TWENTY
THE PICTURE was unambiguous. It was Esteban Cruz, right down to the oval birthmark, lying there, dead, on an autopsy slab. The photo had been certified by the Greene County Medical Examiner as taken on May 14, two full days before the Denver Tunnel Bombing.
Preston Varick was apoplectic. “Objection, Your Honor!” he shouted, jumping up from his seat. “I have never seen this picture, and I have no way of knowing of its authenticity. This entire thing is an outrageous stunt designed to confuse the jury and obfuscate the facts in this case.”
I rather thought that was an overstatement, but I certainly could understand why Preston was so upset. Right there, in front of the jury and everyone watching television all over the country, reasonable doubt had just kicked open the door to the courtroom, and it looked like he was planning to stay, at least for a little while.
By now, the entire gallery was buzzing. Sarge got up from his seat with a strange look on his face, just as Judge Lomax said, in a loud voice, “If this room is not silent immediately, I will instruct the court officers to clear the room.”
That quieted everyone down.
Captain Francona was sitting there in the witness chair, staring at the photograph, apparently dumbstruck. Preston Varick was standing behind his table, in a state Amy likes to describe as “emotionally vibrant.” Cliff told me later that it looked like if you had plucked the man you’d have heard a high E-flat.
And the jury was absolutely rapt. Most of their faces were frozen in shock. The grad student sat there with his mouth actually hanging open.
“I think this would be a good time to excuse the jury,” Judge Lomax said, turning to them. “Ladies and gentlemen, I expect that this objection will require some discussion between myself and the attorneys. You are instructed not to speak about this latest development, nor about any other aspect of the trial, with anyone, including amongst yourselves.”
Sarge called out, “All rise,” and we stood up, as Mike led the jurors out of the room through a door near the end of the jury box.
When they had left, we all sat down. Except for A.D.A. Varick, who looked like he might not ever move again.
Judge Lomax turned to me, and said, “Mr. Carpenter. A.D.A. Varick has not seen this photograph before.”
I stood. “That’s right, Your Honor. I just learned today of the existence of this picture.”
Preston made a noise of disbelief.
“I see,” the judge continued. “Do you intend to enter it as an exhibit?”
“Yes, Your Honor.”
“With the necessary foundation, I assume. Do you anticipate calling the medical examiner as a witness?”
Anytime a party wishes to introduce a photograph as evidence in a trial, they are required to present a foundation—that is, the testimony of an individual confirming that the
photograph is a fair and accurate representation of what appears in the photograph.
“Yes, Your Honor, I do.” Of course I hadn’t, five minutes earlier. But now that I did, I had no idea how I was going to find him. Until the electronic voice in my ear said, “Damn right you intend to call him. I made sure he went into hiding, yesterday, but we can get him here if you need him.”
To Beta, it sounded like placing people in hiding was a commonplace event. To me, the fact that a county official had to fear for his life as a result of his involvement in this case was the latest in a series of considerably alarming discoveries delivered by my electronic prompter.
“I have no idea who this mystery witness is,” complained the assistant district attorney. “How can I possibly prepare my cross-examination if I don’t know the first thing about the witnesses the defense intends to call? I again object to this entire line of questioning, Your Honor. Justice is not served by allowing the defense to pull off these last-minute tricks and theatrics to cloud a process so important to the hundreds and thousands of victims and survivors.”
If anyone was being theatrical, I thought it was Preston himself. But I didn’t think it was particularly seemly to point that out at the moment.
Judge Lomax looked back and forth between us, and then at the clock on the courtroom wall above the empty jury box. “It is now twenty minutes to four. I think that given the circumstances, we will all be best served by recessing until Monday morning. Mr. Carpenter, you will deliver the necessary information regarding this witness to Mr. Varick when we reconvene at that time. And, Mr. Varick, after you have finished presenting your case, if Mr. Carpenter calls the witness, I will make sure that you have adequate time to prepare your cross.” He looked back at me, pointedly. “Is there anything else before we break today?”
I couldn’t tell if the judge was prompting me. The only thing I could think of was a long shot, but I really couldn’t see the downside of trying. “Yes, Your Honor. At this time, I’d like to move that the court dismiss the charges against Mr. Gomez, with prejudice.”