Conclusive Evidence

by Al Macy

  “How many?” I asked.

  “In the group?”

  “Yeah.”

  “Only three. Do you remember the leaked materials showing that Tempura Energy’s recorded assets and profits were inflated and in some cases totally nonexistent?”

  Jen was already a bit starstruck, and her eyes widened. “That was you?”

  Sheridan nodded.

  “Before you go further,” I said, “know that there are statutes of limitations that might be relevant.”

  “I know that. I’m not worried about any of the things we leaked. As time went on, we grew a little bigheaded based on the success we were having. We got a little cocky and decided that exposing corporate greed wasn’t enough; we wanted to do something about it. So, we did.”

  She finally wedged the purse between her thigh and the side of the chair, where it wouldn’t reveal her nervousness. “We found that a company called Hellton Developers falsified information on an environmental impact report, and, as a result, their permit for a major development south of Crescent City, on the ocean, was granted. They went ahead despite the protests and made millions from it.”

  “What did you do to them?”

  “We had a girl—only sixteen—who was a child prodigy when it came to hacking. She liberated seventy thousand dollars from their coffers in a way that made it seem like an accounting error. They were totally oblivious. We used their own obfuscation tricks against them.”

  “Didn’t the company go bankrupt?” Jen asked.

  “It did.”

  “Was that any of your doing?”

  “No. They didn’t need any help from us. It was their own mismanagement. My theory is that if you hire people who are willing to commit or overlook fraud, you’re probably not getting the best people.”

  I rubbed the back of my neck. “What did you do with the money?”

  “We didn’t keep it. Not a penny.” She smiled. “We took it and made anonymous contributions to the California Coastal Commission, various land trusts, and some charities.”

  “When was this?”

  “1991.”

  “If you’re thinking that there’s no statute of limitations because it’s embezzlement,” I said, “that’s only relevant for public funds. You moved money into public funds, not out.”

  She smoothed her hair. “I understand that, but here’s the thing. I mentioned that we made the withdrawal hard to find, but eventually they discovered it. Only a year ago.”

  “And the clock doesn’t start ticking until the crime is discovered.”

  “Right.”

  I asked, “Have they offered you a plea deal?”

  “They have, but any guilty plea would end my political career, as my opponent, pulling strings behind the scenes, knows. I’ve decided to roll the dice and go for a jury trial.”

  “Do you have any reason to believe you’ll be acquitted?” I glanced at Jen, and she responded with a micro-nod.

  “No.”

  * * *

  Back in Courtroom 4, the bailiff called Carly’s case. Reporters, as well as citizens with nothing better to do, filled the spectator seats. The drizzly weather resulted in a wet-dog smell from all the damp coats and sweatshirts.

  It was the day to argue my motions to suppress two pieces of evidence: the eyewitness testimony and the video recording of Carly’s conversation with Bridget. Without the eyewitness testimony, the prosecution had no way to place Carly at the scene of the alleged crime. Without the conversation, they had nothing suggesting a motive. Proving motive isn’t required for a conviction, but it can go a long way toward convincing a jury of the defendant’s guilt.

  Science warns us not to rely on eyewitness testimony, and yet it is often an important part of the prosecution’s case. In 1984, a man by the name of Kirk Bloodsworth was sentenced to death based primarily on the testimony of five eyewitnesses. It was only after he spent six long years in prison waiting for his execution that DNA evidence exonerated him.

  In fact, The Innocence Project found that of the cases overturned by DNA analysis, seventy-three percent relied on eyewitness testimony. Testimony that turned out to be wrong. Memory doesn’t work like Google Photos, with pictures or videos stored in our brains, available to be reviewed later on. It’s more like a jigsaw puzzle, and often the police will supply some of the wrong pieces in order to bolster their case.

  Scientists have recommended that the officer conducting any lineup or photo identification session should not be aware of the identity of the suspect, and the witness should be told that the suspect may not be in the lineup. In the real world, those recommendations are rarely followed.

  I’d chosen a Harris tweed sport coat, something that might get me thrown out of an LA courtroom, but counted as overdressed in Humboldt. I put two hands on the lectern. “Your Honor, Detective Crawford poisoned this witness the moment he showed her Ms. Romero’s photo all by itself. That seared the image into her mind, so that any later photo lineups weren’t reliable.”

  Finn stood. “Our witness is very sure of the ID. She’ll testify that there’s no question about it.”

  I turned from Finn to the judge. “She’s sure now but not when she made the initial ID. May I read from the court transcript, Your Honor?”

  “Yes.”

  “Let’s see. This is from my cross, concerning the photo of the defendant that Detective Crawford showed the witness. ‘Question by Mr. Goodlove: How sure were you at that point, when he first showed you the photo? Answer: Well, maybe not so sure then. But I’ve played it over. In my head. I realized that it was her.’”

  I put down the transcript. “Your Honor, that’s a textbook example of why many courts now advise jurors to ignore expressions of confidence when listening to witnesses testify.”

  The judge turned to the prosecution table. “Ms. Finn?”

  “Mr. Goodlove is free to discredit the witness at trial.”

  Stevens nodded. “I agree. I am going to allow the testimony. Mr. Goodlove, I’ll ask you to submit jury instructions related to eyewitness testimony, which I will evaluate.” She rapped the gavel. “Okay, your next motion concerns … the inadvertently recorded sign-language conversation between Ms. Romero and Ms. Dundon.”

  Jen handled this one. “Your Honor, California Penal Code Section six thirty-two states that all parties must consent when an electronic recording device is used to eavesdrop upon a confidential communication. The security camera at the coffee shop is a recording device even though it records video and not audio. Also, I’ll ask you to imagine the outcry if microphones routinely recorded conversations at coffee shops and other public places. Security cams are tolerated only because sign-language conversations are rare.”

  “Ms. Finn?”

  “Yes, Your Honor. Under the plain view doctrine, if a homeowner leaves his curtains open, he can’t expect privacy from someone looking in. In a federal case concerning butt-dialing, the—”

  “What dialing?” Judge Stevens’s frown brought her eyebrows from their freakishly high position down to something approaching normal.

  “I’m sorry, Your Honor. That term refers to inadvertently dialing a number, sometimes nine-one-one, by sitting on your smartphone. When that happens, whoever was called hears your conversations even though you may not realize you are being overheard.”

  “I did not know that. Please continue.” Her lack of knowledge cemented the impression that this dowager had been transported to the twenty-first century from Downton Abbey.

  “In that case, the federal judge wrote that, and I’m quoting, ‘a person who knowingly operates a device that is capable of inadvertently exposing his conversations to third-party listeners and fails to take simple precautions to prevent such exposure does not have a reasonable expectation of privacy with respect to statements that are exposed to an outsider by the inadvertent operation of that device.’”

  “Your Honor,” Jen said, “that case is not on point. Neither of the participants was operating the secu
rity camera.”

  Finn almost seemed to whine, sounding desperate. “But their conversation was in plain view, anyone could see it.”

  Jen shook her head. “But not record it. That would have been illegal.”

  “The cameras are there to prevent crime, not eavesdrop on conversations, Your Honor.” Finn was grasping at straws and not being careful about which straw she grabbed.

  “Yes,” Jen said, “and that’s exactly why the two women, even if they knew the coffee shop had security cameras, had no reasonable expectation their privacy would be violated.”

  “Thank you, counselors. I am ruling in favor of the defense on this motion. The video may not be introduced or referred to in the trial.” She banged her gavel.

  Jen and I gathered up our papers. One loss, one win. I whispered in Jen’s ear. “Would have been better the other way.”

  She knew what I meant. With the exclusion of the eyewitness testimony, their case would have been knocked out of the sky like a hot-air balloon hit with the cruise missile. Our exclusion of the video, on the other hand, wouldn’t prevent the prosecution from calling Bridget Dundon to testify.

  Chapter Eleven

  Jen and I once again found ourselves in Humboldt’s largest courtroom, Courtroom 4. The public interest in Isabel Sheridan’s trial for grand theft was as great as for Carly’s trial, and the spectator area was standing room only. I had rapidly become Humboldt’s most famous lawyer, with people recognizing me on the street and potential clients climbing into our office over the transom.

  The murmuring crowd contained a few paparazzi, as rare as desert antelopes in the redwood forest. Photos weren’t allowed in the courtroom, but I thought maybe they were covertly snapping shots of the beautiful politician. Certainly, they would alert their cohorts outside the courthouse as soon as Sheridan was about to leave.

  Our judge was the florid Tipp Theodore, known by his inevitable nickname, Tipsy Ted. Ted was a man with a constant hangover. I was convinced he self-medicated with hair of the dog during recesses. His nose looked like a Ballpark Frank that had plumped until it burst, and his eyebrows suggested he had some Sasquatch in his gene pool.

  I pitied him, actually. I rarely drank hard liquor because the next day always came packaged with a twelve-hour hangover, during which I was useless. I’d learned my lesson when I’d defended a drug user—a case in which Finn was the prosecutor, in fact. I’d had too many drinks with an old law school friend the night before, and the resultant hangover took a wrecking ball to my closing arguments. Finn took full advantage of my impairment, but I managed to squeak by with an acquittal. Never again.

  Isabel Sheridan’s misdeeds had been uncovered during the interminable period of forensic accounting that followed Hellton’s bankruptcy. Her fingerprints were all over the fraudulent transactions, and her younger colleague had long since fled the country, continuing her guerrilla hacktivism from an undisclosed location.

  The prosecution made the mistake of vilifying our client. Did they not envision the outcome that Jen and I hoped for? They also put the jury to sleep by slogging through the complicated accounting wizardry that had uncovered the deeds of the activists.

  They recounted the nefarious techniques Ms. Sheridan and her “gang” had used to escape detection: moving from place to place, wardriving, illegally piggybacking on the networks of unsuspecting homeowners.

  Tipsy Ted sent some suspicious looks my way, definitely suspecting our strategy. As long as we were careful, we’d escape any sanctions.

  Our expert accountant testified that every penny of the money fraudulently withdrawn from the company, including interest, was transferred by Sheridan’s outlaw group to the charities representing interests most harmed by Hellton Developers. In addition, Ms. Sheridan had, before her crime was discovered, contributed to the Hellton liquidation fund in the amount of $70,000. She did that anonymously, but we were able to show that the contribution came from her account. Bottom line, she didn’t keep any money from the embezzlement, and she used her own funds to help those who’d lost their investments in Hellton.

  We put our client on the stand, where she shone. Would Carly do as well as a witness? You might have thought it was Keira Knightly up on the stand based on the reaction of the crowd. They sat spellbound as she admitted her crime. She didn’t express remorse as much as convey that it had been a stupid thing to do.

  The prosecutor pounced on her lack of remorse, even though we’d preemptively minimized the effects of such an attack with our demonstration that she’d made restitution in her secretive way. “How long were you in this gang?” he asked.

  “Four years.”

  “And how do we know that you haven’t committed other crimes that have not come to light?”

  “Objection. Argumentative and beyond the scope of direct.”

  “Sustained.” The ADA got his point across to the jury, however. Perhaps this beautiful woman wasn’t as innocent as she seemed. She’d confessed when they caught her, but who knew what evil lurked in her heart?

  When the case was given to the jurors, Sheridan, Jen, and I walked to the Lost Coast Brewery and Cafe, two blocks from the courthouse. I had some raw oysters, Jen had a coffee, and Ms. Sheridan went to the women’s room to throw up.

  When she returned, having lost some of her perpetual tan, she asked, “How can you stand the suspense, the tension? Do you get used to it?”

  I shook my head. “No. You learn to deal with it, but it’s always there. Like a houseguest who has overstayed his welcome.” Lousy analogy. I guess I was a bit tongue-tied. Jen frowned and looked at me sideways. Like, What’s with the boss today?

  After lunch, we took a walk down Redwood Point’s boardwalk. Not boards, but cement scored to look like wood. It was deserted, as usual. Envisioned as a gathering place, it functioned mostly as a place for homeless people to nap. Sheridan stopped to talk to a few of them—they probably thought they were dreaming.

  On the hike back to our office, I got the call that the jury had reached a verdict. I never speculate about whether a quick deliberation was good for the prosecution or the defense. It’s no more productive than picking petals off a daisy: The jury loves me; the jury loves me not.

  We were mobbed when we approached the courthouse. As a politician, Sheridan innately understood the concept of “no comment.”

  We all rose as the jurors entered the room. Several of them looked at Sheridan as they filed into the jury box.

  Judge Theodore cleared his throat. “Has the jury reached a verdict?”

  “We have, sir.”

  “Would you please hand that verdict to the bailiff?”

  When the judge got the folded-over sheet, he held it close to his face, going over it. “Okay. The Court has reviewed the verdict form and finds it in order. I’m going to hand it to the court clerk, Ms. Beacon, who will publish the verdict.”

  Ms. Beacon stood. “The Superior Court of California, Humboldt County. The people of the State of California, plaintiff, versus Isabel Rachel Sheridan, defendant. Case number CR 2987721. We, the jury in the above-entitled action, find the defendant, Isabel Rachel Sheridan, not guilty of the crime of grand theft in violation of Penal Code Section four eight seven …”

  Ms. Sheridan squeezed my hand. I reached for the airplane sickness bag in my briefcase, but she didn’t need it.

  She hugged me and then Jen. “Thank you both.”

  The judge gave me a dirty look before cracking his gavel and dismissing the jury.

  Jury nullification was what we’d been hoping for, and it’s what we got. The courts like to keep it under wraps, but a jury is free to bring back a not guilty verdict even when they believe that a law was broken. That is, they cannot be penalized for saying, “Sure, the defendant is guilty, but screw that, we’re going to acquit him. Or her.”

  I’d watched the jurors when the judge read the relevant part of the jury instructions, namely: You must follow the law exactly as I give it to you, even if you disagree wit
h it.

  Such a strange thing. Jurors are lied to by the judge. They’re told they must decide based only on the law, something that’s not true. The example that’s often given is that of a suitor who uses his key to sneak into his girlfriend’s house and add a fortune cookie to the cookie jar. The confection holds an engagement ring, with which he intends to surprise her. Upon hearing unsettling noises from the bedroom, he goes in and interrupts his bride-no-longer-to-be in flagrante delicto. Arguments ensue, and the girlfriend kicks the unhappy suitor out of the house, demanding his key. The suitor then remembers the ring, breaks in, and takes it back. Despite clear evidence of breaking and entering, jurors might feel they don’t agree with the law in that case and acquit the defendant.

  That was the result we’d hoped for, and the jury came through. If I’d even hinted that they could ignore the judge’s instructions during the trial, I’d have been in trouble, but somehow the message got through.

  The judge can do nothing to change the verdict. When it goes the other way, if the jury convicts the defendant despite a clear lack of evidence of guilt, the judge can give a directed verdict of not guilty. That situation, known as “jury vilification” is rare. Jury nullification, however, is much more common than most realize.

  The three of us, Jen, Sheridan, and I, went back to the office and celebrated with a hot fire and a cold bottle of champagne.

  * * *

  I was at a coffee shop in an armchair, reading the news on my phone when something—a bug?—tickled the top of my ear. I flicked it with a finger and kept reading. It happened again, but that second time, I knew it was no bug. Fool me twice and all that. But I didn’t let on, flapping again as if totally absorbed in my reading. Someone nearby giggled. The third time I was ready.

  When it came, I snapped my hand up, grabbed the offending fingers, and held on.

  “Ow!” Sibyl Finn tried to pull her hand back.

  I kept my grip. “I think there was a spider on my ear. Were you trying to save me?”

  “C’mon, Garrett, let go.” She was smiling now, and I imagined pulling her hand until she dropped into my lap.