Jack read the same lines. Phone numbers. None that Jack recognized. He looked up in time to see Debra’s copy shaking in her hand.
“This is . . .” said Debra, her voice fading. “I know what this is.”
“Does it refresh your recollection as to what you and Sashi were arguing about?”
Debra nodded, and yet her body language indicated that she had needed no reminder—that she had never really forgotten the cause of their argument. Until this moment, however, no one had ever forced the issue.
“We argued about things Sashi was doing on the Internet,” said Debra.
“What, specifically?”
Debra breathed so heavily that her shoulders heaved, then slumped. “Sashi was making contact with . . . strangers.”
“Men?”
“Yes.”
“She was sending pictures of herself to these men, was she not?”
“Yes.”
“Some were provocative, shall we say?”
“Yes.”
“How did you find out about this behavior?”
Debra’s eyes closed, then opened, as if she were summoning some inner strength to speak. “Some of the men called.”
“The men Sashi had contacted called you, correct?”
“Yes,” said Debra.
“Because Sashi was giving these men your phone number, correct?”
“That’s correct.”
“Some of the men that Sashi contacted were what you might call ‘undesirables,’ am I right?”
“That’s an accurate statement.”
“At least one of men who called you was a registered sex offender. True?”
“That turned out to be the case.”
The prosecutor retrieved the document, holding it up for Debra to see. “In fact, these phone calls—the ones highlighted on this bill—were the reason you and Sashi had an argument on the day in question. Correct?”
Debra drew a breath, then another. “Yes.”
“You were angry with Sashi, weren’t you?”
“I was.”
“You were furious.”
“I suppose.”
“You were fed up.”
“I don’t know.”
“You said some things you regret.”
Debra was tightening up, fighting back tears. “Yes.”
The prosecutor checked her notes again, as if to warn the witness that there was no wiggling out of this. “You told her that you were going to send her back to Russia, didn’t you?”
Debra’s body shook. The dam burst. A tear rolled down her cheek. “Yes.”
The prosecutor paused. The courtroom fell silent, save for the sound of Debra’s sobbing.
“You didn’t mean what you said, did you?”
“No. No, I didn’t. I didn’t mean a word of it.”
“You wish you could take it back?”
“Yes.”
“You’d like to have a second chance.”
“Of course.”
“This week, you went so far as to reopen the ‘Find Sashi’ command center at a local motel. Am I right?”
“For a time.”
“It’s closed now?”
“Yes. Aquinnah and I shut it down. The motel was nice enough to give us our money back.”
“Nobody came to help find Sashi?”
“Well, Mr. Swyteck came.”
Debra was looking right at Jack, as if begging for some show of support. Jack could only watch.
“Anyone else?” asked the prosecutor.
“A couple of my friends stopped by. But not to help find Sashi. They told me I needed to find closure.”
“Ms. Burgette, so long as the official police investigation into Sashi’s disappearance remains closed, no one is going to help you search for Sashi. You know that’s true, right?”
“I don’t know.”
“Ms. Burgette, I can’t say that anyone in this courtroom would blame you, but if it would keep the investigation open, you would lie to the police, wouldn’t you?”
“Objection!” said Hannah, rising.
Jack and the judge exchanged glances, since it was technically Jack’s role to pose objections, not Hannah’s.
“Grounds?” asked the judge.
Hannah paused, struggling. “She’s . . . she’s just being mean.”
The judge leaned back in his leather chair, pondering it. “Well, I can’t say I’ve ever heard that one before. But, you know what? I’m actually going to sustain the objection. Ms. Carmichael, really. Isn’t there a more humane way to make the point you’re trying to make?”
“I’ll wrap it up, Your Honor.” She moved closer to the witness, tightening her virtual grasp. “Ms. Burgette, you received phone calls from no fewer than ten different strangers, each of whom had received your cell number from Sashi over the Internet. Isn’t that true?”
“It could have been that many. It had gotten out of control.”
“You rebuffed every single one of those men, did you not?”
“Of course.”
“And be honest now, because I’m sure this has crossed your mind: Couldn’t any one of those men have made those phone calls to you in which you heard only silence, after Sashi’s disappearance?”
“Objection,” said Jack.
The judge considered it. “If the witness can answer, I’ll allow it.”
Debra leaned closer to the microphone to answer, then hesitated, as if not sure what to say. “I really don’t know.”
“No,” said the prosecutor. “None of us really know, do we?”
“Objection.”
“Sustained.”
“I have nothing further, Your Honor.” The prosecutor took the long way back to her seat, and as she walked past the petitioner’s table, she spoke under her breath, so only Jack could hear.
“I can’t believe you forced me to do that,” she hissed.
The prosecutor returned to her table. Debra remained seated on the witness stand, seemingly numb from the experience. Jack watched from his seat, crushed by the weight of her stare—her silent cry for help.
“Mr. Swyteck,” the judge said. “You may have a few minutes of redirect, if you wish.”
“Thank you, Judge,” he said, rising. “I’ll be very brief. In fact, I have just one question for the witness.
“Ms. Burgette, have you ever knowingly provided false information to anyone in law enforcement regarding the disappearance or whereabouts of your daughter Sashi?”
She didn’t move. Her mixed expression was one of fear and confusion as Judge Frederick prodded her again.
“Ms. Burgette?”
Debra wobbled to her feet.
“Ms. Burgette, there’s a question pending,” said the judge.
She settled back into her seat. “I’m sorry. Could you repeat it, please?”
Jack did so. It was a simple question, one that any lawyer would ask to rehabilitate his witness on the stand. And yet there was hesitation from Debra.
Finally, she answered. “No, I never lied.”
Jack would have liked a more forceful response. He wasn’t sure if Debra was so beaten down by the prosecutor’s cross-examination that her heart was no longer in the fight, or if there was more to it. But the examination of his own witness was no time to explore the unknown. He decided that he’d get to the bottom of it after the hearing—immediately after the hearing—straight from Debra.
“No further questions,” said Jack.
“Ms. Burgette, you are excused,” said the judge.
Debra rose and stepped down from the witness stand.
Hannah leaned closer to Jack. “What the heck’s up with Debra?” she whispered.
Jack wondered as well. Without question, the prosecutor had siphoned off much of Jack’s enthusiasm for representing Dylan Reeves. Maybe she’d drained the last bit of Debra’s strength, too. But Dylan Reeves was still Jack’s client, and Jack was duty bound to exploit every opportunity—and the prosecutor was far less clever than she th
ought she was.
“I don’t know,” he whispered back, “but Barbara Carmichael may have just handed us a new trial.”
“Say what?”
“Mr. Swyteck, is that the end of your case in chief?” asked the judge.
Jack rose. “No, Your Honor. There’s one more witness I would like to call.”
CHAPTER 24
Mr. Swyteck, I need a name,” said Judge Frederick. “That’s all I’m asking: What is the name of your next—and, hopefully, final—witness?”
“I don’t have a specific name,” said Jack.
“That sounds like a rather serious problem for you,” the judge said.
Jack stepped away from his table, positioning himself more in the center of the room. “Judge, here’s the situation. During cross-examination, Ms. Carmichael showed Debra Burgette a phone record that listed at least ten ‘undesirables,’ including one convicted sex offender, who had called her cell. Less than a month before her disappearance, Sashi Burgette had online communications with each of these men, sent them ‘provocative’ photographs, and gave them her mother’s cell number. In the prosecutor’s own words, ‘any one of those men’ could have made the phone calls that Ms. Burgette now believes were from Sashi.” Jack paused for effect, then delivered his punch:
“Well, Judge, it’s equally true that any one of those men could be responsible for the disappearance of Sashi Burgette.”
The prosecutor rose. “Judge, it’s also possible that the bogeyman did it. It’s time for this to end.”
“Let Mr. Swyteck finish,” said the judge.
Jack continued. “Mr. Reeves should have been given the opportunity to explore those leads—especially in this case, where a body was never recovered. But the prosecution never told Mr. Reeves or his trial lawyer about any of this. The failure to turn over the names of other potential suspects is grounds for reversal of Mr. Reeves’ conviction and for a new trial.”
“This information is Brady material, is that your argument, Mr. Swyteck?”
“Yes,” said Jack, pleased that the judge got it. Brady v. Maryland was the landmark Supreme Court holding that the Constitution requires the prosecution to hand over before trial all material evidence that is favorable to the accused.
“If I understand correctly,” the judge said, “you want this court to order the state of Florida to bring forward a witness from the Miami-Dade Police Department or the office of the state attorney to explain why this information was withheld from Mr. Reeves before trial. Do I have that right?”
“Yes,” said Jack. “I believe the examination of that witness will demonstrate my client’s right to a new trial.”
Judge Frederick’s gaze drifted to the other side of the courtroom. “What is the state’s position?”
“First of all, this hearing was supposed to be limited to one question: Is Sashi Burgette still alive? Clearly Mr. Swyteck has lost that argument. So what does he do? He attacks the police and the prosecutor with allegations of misconduct. This is insulting and offensive.”
“Your indignation is noted,” said the judge. “Did the government turn over this evidence to the defense before trial or not?”
“No, we did not.”
“Why not?”
“There are many good and compelling reasons, Judge.”
“Wonderful. I’m eager to hear them. You have thirty minutes to produce a witness who can explain those reasons to the court.”
“But—”
“Ms. Carmichael, the alternative is to put you on the stand and let you explain. I suggest you find a witness.”
There was silence, and Jack was certain that silence was far more uncomfortable on the prosecutor’s side of the courtroom.
“The state of Florida will produce a witness,” she said.
“Good call,” said the judge. “We’ll reconvene in thirty minutes.”
Please state your name for the record,” Jack said to the witness.
The thirty-minute recess had passed in the blink of an eye. Jack had done his best to prepare, but this would be no ordinary cross-examination. The cardinal rule was never to ask a question on cross if you didn’t already know the answer: knowledge and preparation were the trial lawyer’s instruments of control when dealing with an adverse witness. Jack would be traveling on deduction and instinct to frame his questions. It was enough to get even a seasoned criminal defense lawyer’s heart pounding.
“My name is Emilio Hernandez,” said the witness. “I’m a detective with the Miami-Dade Police Department.”
It took Jack less than a minute to elicit the necessary background, and two minutes more to confirm that Detective Hernandez was indeed the person who could explain the handling of evidence gathered from Sashi Burgette’s computer, as well as the phone records from Debra’s cell that connected her and Sashi to the “strangers”—or, as Jack called them, the potential murder suspects.
“Detective Hernandez, I’m now handing you Exhibit 11, which has previously been identified as the call detail report for Debra Burgette’s cell phone for the month prior to her daughter’s disappearance. Have you seen this before?”
“Yes. I was the one who obtained that information from Ms. Burgette’s service provider.”
Jack hesitated. Of all the questions not to ask on cross-examination, none ranked higher than the dreaded open-ended “why” question. But Jack was in no position to do otherwise. “Why did you get it?”
“Standard practice in a homicide investigation. We requested cell-phone records from the victim and everyone else in her family.”
Jack breathed a sigh of relief. A “why” question that an MDPD detective failed to grab with both hands and shove right down the defense lawyer’s throat. Oh, happy day. “This report lists many, many incoming phone calls to Debra Burgette’s cell. Ten of these entries are highlighted in yellow. Do you see that?”
“Yes.”
“We were told earlier that one of these highlighted numbers belongs to a convicted sex offender. Can you tell which one?”
“Yes,” he said, referencing the list. “Moving down from the top, it is the third highlighted phone number.”
Jack checked his copy. “I notice that there is no account-holder name associated with the incoming call. Just a phone number.”
The detective said nothing. He was a well-coached witness: don’t start running your mouth every time a defense lawyer pauses; wait for a question. Jack continued, but he wasn’t ready to ask another “why” question. He went with his instincts: “Is that because this number was connected to a prepaid cell phone with no registered account holder?”
“Yes, that’s correct.”
It was the answer Jack wanted, and it provided the assurance he needed to ask the next open-ended question. “Then how did you determine that the person making the call was a convicted sex offender?”
“The physical phone itself was found in the possession of Mr. Carlos Mendoza. And Mr. Mendoza is a convicted sex offender.”
A younger lawyer might have jumped up and kicked his heels, giddy with excitement. A quick glance over his shoulder confirmed that Hannah was not far from liftoff. Jack kept it cool.
“Back up a second, please, Detective. When was the prepaid cell phone found in Mr. Mendoza’s possession? Before or after Sashi Burgette disappeared?”
“About six months after.”
“How did it happen that MDPD found the phone on Mr. Mendoza’s person?”
“He was arrested.”
Another score. Jack forged ahead. “On what charges?”
The witness hesitated, as if wishing the lawyer hadn’t asked. “Human trafficking.”
Holy shit. “Where is Mr. Mendoza these days?”
An even longer pause from the witness, then he replied. “Mr. Mendoza is currently serving a ten-year sentence in Florida State Prison.”
Holier than holy shit. “You said earlier that he was arrested six months after Sashi’s disappearance. Was he released on bail?”
“So, he has been incarcerated continuously since his arrest, is that right?”
“Yes.”
“Then you would have to agree with me that Mr. Mendoza has not been making phone calls to Debra Burgette on a prepaid cell phone over the past two and half years.”
“Objection,” said the prosecutor. “Calls for speculation.”
“Overruled. The witness may answer.”
“Yes. I would agree with that,” said the detective.
I could kiss this guy. “It is also a fact that the murder trial against Dylan Reeves began seven months after the disappearance of Sashi Burgette, am I right?”
“That sounds right.”
“So Mr. Mendoza was arrested and the prepaid cell phone was recovered roughly four months before trial began.”
“Roughly, yes.”
Jack could feel the momentum, and he was ready to go in for the kill. “In other words, four months before Dylan Reeves’ trial, MDPD knew that Debra Burgette had received a phone call on a prepaid cell from a man who had been charged with the crime of human trafficking. Isn’t that right, sir?”
“No, that’s dead wrong,” he said.
He looked straight at Jack, as if daring the lawyer to ask the dangerous follow-up question—to ask a seasoned detective to explain his answer. Jack knew better, but the witness turned to the judge. “I can explain why, if Your Honor would like to know.”
“Yes, the court would like to know.”
Just like that, Jack had lost control. Very smart witness.
“Your Honor, the counselor’s question assumes that MDPD had connected all the dots before the start of Mr. Reeves’ trial. The truth is, we didn’t immediately know that the phone number for the prepaid cell found in Mr. Mendoza’s possession matched one of the incoming numbers that appeared on Debra Burgette’s call record. There’s no MDPD database that magically makes that connection.”
Jack wanted his witness back, but the judge was on a roll, firing off another question from the bench.
“When did MDPD first become aware that Mr. Mendoza was one of the callers?”
“Yesterday,” said the detective.
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