The Judge (44 page)

"Mommy," she says.

"You heard Mommy?" There is a rustle through the jury box, murmuring in the audience.

Kimberly nods. "She hollered," says the child. "Just after the man came back the first time." Acosta and I look at each other. Harry is mystified. Then it finally dawns on me. My gaze makes contact with Radovich up on the bench in the instant that he comes to the same conclusion. The child, huddled in the dark closet, holding her bear, had heard her mother's call from beyond the veil, what the coroner had attested to on the stand--Brittany Hall's death rattle.

Allowing a brief recess, Hovander takes a different tack, a few preliminaries.

She has the child identify Binky, her stuffed bear, which is sitting on the evidence cart. They get into it when Kimberly demands this back.

Harry seems bemused by the specter of a prosecutor in a tug-of-war with a five-year-old over a stuffed toy.

Hovander tries to move on, and the child won't let her. At one point Kimberly actually turns to the judge up on the bench and demands to know if Binky is in jail. Radovich doesn't know what to say. Finally he tells Hovander to let her have it for a while. This results in a bench conference, three lawyers and the judge, how to dig yourself a hole.

"The toy has her mother's blood on it," says Hovander. "The child would require rubber gloves. There are health concerns." Hovander won't take the responsibility.

Harry objects to the gloves as a negative image in front of the jury. Something else that the prosecution can psychically hang on Acosta. "Then you tell her she can't have it back," says Hovander.

"You got into it," says Harry. "You get out."

"This is getting us nowhere," says Radovich. He calls in the troops. The shrink gets the dirty detail. She dons surgical gloves, gets Binky off the evidence cart, and approaches Kimberly on the stand. We return to our tables, the judge to the bench.

There are several seconds of whispering as the shrink talks to the child, efforts at some reasoned solution. All the while the child is a bundle of nervous gestures, tugging on the sleeve other dress, then pulling on one of the heart-shaped buttons on the front until she tears this off.

Just as we start to think that she has resolved this crisis, Kimberly in a full voice demands to know if binky is sick.

"What have you done to him?" She turns this on Radovich. "You're not taking care of him." The judge has his palms turned up, shrugging shoulders under black robes, as if to say it's not his fault.

It is comic relief. Even Acosta is laughing.

By now the psychologist is leaning over the witness railing, trying to get Kimberly's attention. Before she can react, Kimberly turns on her and snatches the bear from her hands. She hugs it to her body and with draws in the box, out of the chair, and into a corner where she cannot be reached. A stark look on the shrink's face. Who would think a kid would be so quick?

She reaches over and tries to take it away from Kimberly, and there is a scream heard around the courtroom, something to pierce every eardrum.

Hysterics in the witness box, tears and lashing little fingers.

By this time Kimberly's grandmother is coming through the gate railing like mama bear protecting her own. She is followed by a bailiff who is trying to grab her.

Radovich calls him off.

"Enough," says the judge. "Leave her alone. She can have the bear. You sit down." He's looking at the psychologist.

"You can stay," he tells Grandma.

It takes several minutes, during which the jury is let out, her grand mother holding her before the child stops crying. By now they are both seated in the witness box, the child on her grandmother's lap, Binky in her arms. At one point she pets the toy as if it were alive and then talking to it, feeds it the button torn from her dress. This disappears into the bear's mouth, and when she removes her fingers the button is gone.

Hovander approaches the stand to talk. I can't hear the conversation, but it's animated, a lot of smiles and laughter between the child, grand mother, and the lawyer, who is busy repairing trust.

Once it is clear that Kimberly has calmed down, the jury is brought back in and Grandma's off the stand. Hovander and Kimberly are friends again now that the witness has both bears.

"You know you still have to tell the truth." Radovich is looking over his glasses at the little girl.

"Uh huh."

"Go ahead," he tells Hovander.

"Kimberly. Earlier you told us that you heard a man's voice the night your mommy was hurt. Do you remember that?" She nods.

"Do you think you might recognize that voice if you heard it again?" "I might," she says, a lilting voice.

This has been thrashed out behind closed doors, after much argument in chambers. Hovander wants to have Acosta speak, presumably angry words that the child heard that night, to see if she can recognize his voice.

We have argued that this is impossible, given the suggestive nature of such a test with a child so young, though there is no Fifth Amendment issue here. The courts have held that voice identification is not testimonial, but more in the nature of taking blood, or lifting fingerprints.

Radovich, always one to search for the middle ground, has ordered that the prosecution is entitled to a voice sample on tape, but with no words spoken in anger. He reasons that this will neutralize the suggestive nature of the exercise. There will be three separate voices, one selected by the state, one by us, and the defendant sandwiched in between. We have picked a Latino, a paralegal with another firm who is a baritone like Acosta, with similar Hispanic intonations.

They set up the equipment and Hovander tells Kimberly to listen carefully. They play the first voice.

It is high pitched, almost nasal, such that you might not recognize it as a man's voice. "Hello, Kimberly. Do you know my voice?" It's all it says.

Hovander tells her not to answer yet, but to listen to the other two. Acosta is next, reading the same text. Then our ringer.

Kimberly sits dazed in the box, the first time that I have seen real pressure exhibited in her expression.

"Do you recognize any of them?" says Hovander. She shakes her head.

"Do you want to hear them again?" Harry is looking at me wondering whether he should object.

Radovich orders it played one more time. They do it.

"Do you recognize any of them now?" says Hovander.

The balance of life hanging on the whim of a little child. Acosta sitting next to me. I grip his arm under the table.

Radovich, realizing the stakes, tells her not to guess. "Answer only if you recognize a voice," he says.

She makes a face, something you might see when your kid is trying to figure which hand the candy is in. "The last two," she finally says.

Hovander has a look of victory. "Maybe we could play the last two," she says.

Harry objects. Radovich overrules him.

The clerk plays with a headset, screening out the first voice so that this time Acosta leads off. I watch as a rivulet of sweat makes its way down his cheek and finally drips from his chin onto the table.

"Do you recognize either of the voices?" says Hovander.

The prominent position of acosta's words up front on the tape has me worried. First impressions with a child are strong.

"I think it's him," she says.

Acosta's head does a double take, first toward me, then Harry. "Which one?" says Hovander.

A desperate look from the child, as though she doesn't understand the question. She thought she was done. Then it settles on us. She thinks both voices are the same man.

Hovander tries to argue that the witness has selected one of them, and wants to clarify with a follow-up question. Radovich tells her no and leans over the bench.

"Kimberly. How many voices do you think are on the tape?" She looks out at her grandmother, anxious for help.

"There's no need to be afraid," says Radovich. "If you don't know you can just say you don't know."

"I don't know." Kimberly leaps on this like a lifeboat. Acosta turns to Jell-o in his seat.

Radovich calls a sidebar. We all attend, leaving Acosta backed up by guards at the table. The court reporter muscles in with us.

"She's confused," says the judge. "I'm not inclined to let this go on. "

"Just a couple more questions?" says Hovander.

"This ain't right," says Harry. "Given the pressure, she'll say what ever she thinks we want to hear. She couldn't even tell how many voices were on the tape."

"That's because you guys played games," says Hovander.

"Yeah, and your guy needed Preparation H for his adenoids," says Harry. "People." Radovich in command. "This isn't getting us anywhere."

"If I could ask just a couple more questions?" says Hovander. "What do you want to ask?" he says.

"If she recognizes either of the two voices played last on the tape." "She already said she only heard one voice," says Harry.

"We should be allowed to clarify the point," says Hovander.

"Right," says Harry. "Then, when you get her to understand that there are two voices on that tape, you can do eanie, meanie, minie, mo.

This is no way to determine the truth." "That's what I'm afraid of," says Radovich.

Harry tells Radovich he wants to voir dire the witness on her voice-identification skills. Hovander objects, but the judge finds it a fair request. We break up and Harry is left standing in front of the witness box.

Kimberly looks at him, uncertain what to make of this new development. "Kimberly, I'm Mr. Hinds. How do you do?" She looks at him but does not respond.

"Do you recognize my voice, Kimberly? Do I sound like the voice you heard that night?" A new adult now confronting her, a new threat.

Kimberly nods.

"My voice sounds like the voice you heard that night?" More nodding. "Do you remember hearing the judge's voice?" Harry points at Judge Radovich. She nods.

"Does he sound like the voice you heard that night?" This time she shakes her head.

"If I could, Your Honor, one more sample?" Radovich motions Harry to proceed.

He looks over at me and tells me to stand up. At this moment I could kill him.

"Stand up," he says.

I do it.

"Say something." I am covered with expressions of contempt for Harry' at this moment.

"Say something."

"Do you recognize my voice, Kimberly?" Before I have completed the sentence she is nodding vigorously, shrinking into her chair.

"There you have it," says Harry.

We're back to the sidebar. This time Radovich has called the psychologist to join us.

"If she knows the voice and is not threatened by it, it doesn't sound like the voice she heard that night. If she doesn't know it, it does." Harry's school of psychology. "It has more to do with her comfort factor than what she heard or remembers," he says.

"What do you think?" Radovich asks the psychologist. "I agree. Seems to be what's going on."

"This is not going any further," says Radovich. "Do you have another line of questions for the witness?" he asks Hovander.

"Nothing else," she says.

"Do you have anything?" he asks Harry. We confer off to the side, Harry and I.

"We're not likely to score points beating up some little kid," says Harry. "So far she hasn't hurt us, but that could change anytime." I agree.

"Besides," he says. "You seem to have a problem with her." Harry gives me one of his enigmatic smiles, reading my mind.

Before I can open my mouth in protest, some bullshit that Harry can smell coming, he says, "Why tempt fate?"

"We have nothing for the witness," he tells Radovich. "Good," says the judge. He climbs back on the bench.

"We're going to take the noon break," he announces. "The witness is excused. There's no need for her to come back," he tells the grandmother.

The jury seems relieved by this news. They are admonished by the judge, instructions not to talk about the case, and excused for the day.

Radovich has other business this afternoon.

We wander away, Harry and I, back to the table. "That was not too bad," says Acosta.

"We dodged a bullet," I tell him.

Harry is looking at him as if perhaps the child knew what she was saying, that Acosta's voice is what she heard that night. Harry has never fully boarded this train that is the defense.

Someone, one of the clerks, has given Kimberly some jelly beans. It seems they are trying to coax Binky away, to put him back on the evidence cart. The child wants to take the animal home.

When I look over my shoulder I notice that Kline has completed his business outside of court. He is huddled near the back of the room, conferring with Hovander, a briefing on the morning's developments, trying to determine how much damage they have done to us.

As I study them, Hovander is watching the antics at the witness stand, laughing. Two clerks and a bailiff are trying to reason with Kimberly.

They are locked in a contest over the bear, which must go back on the evidence cart. More jelly beans are in the offing. The child stuffs two of these into the bear's mouth.

The only one not laughing by this point is Kline. As they say, "perhaps you had to be there." Like the only sober man in a party of drunks, he stands stone faced, mesmerized, and listening to the laughter as tiny fingers and candy disappear into the furry confines of the little animal. WE GOT A MINUTE. have YOU GIVEN ANY thought to what we talked about the other day? Kline's comment?" Lenore and I are in my office with the door closed. Harry is outside at reception, on the telephone, about to join us for a meeting.

"I've racked my brain," says Lenore. "I don't know what he's talking about. The man's paranoid." The subject here is Kline's private conversation at the fund-raiser, his ruminations that Lenore knows something she is not saying.

"You want my best guess?" she says. "Shoot."

"He's trying to sow seeds of dissension," she tells me.

"Why?" She laughs. "With Kline, injecting strife into somebody else's life is a major career goal. He's certifiable." I don't buy this.

Kline's words were not idle banter. There is something major that Kline doesn't know about his own case. The trick is to discover it before he does.

Lenore has been studying me in silence for several seconds as I consider this.

"You think I'm holding something back?" she says.

"No. No. It's possible that it could be something we already know, but haven't put together."

"Tell Kline to give you a clue," she says. "You can play lawyer's dozen with him."

"Right."

"You know everything that I know. He never gave a hint as to what it was?"

"No." I scratch the budding beard on my chin. We are out of court today and I have given my face the day off.

"But I think it narrows to two possibilities," I say. "Your conversation with Hall that day in the office. He seems to have deep-seated concerns that she told you something she didn't tell him." "First sign of paranoia," she says.

"Maybe. Could be why he fired you." This seems to spark her interest.

"Why would she confide some dark secret in me?" I give her an expression that is a question mark. "Maybe he figures two women talking She might have more confidence in you."

"If she did, it had nothing to do with gender," she tells me. "Still he's preoccupied with the thought," I say.

"I'm sure you could fill a casebook with his obsessions," she says. "What's the other?" she asks.

"Hmm?"

"You said there were two possibilities?" "Oh that. Just a guess," I tell her.

"What is it?"

"The fact that they found your print on Hall's front door. It's possible that he thinks if you went inside ..." I leave the thought to linger.

"He thinks I found something?" "A possibility."

"Like what?"

"I don't know." This sets her mind to churning. "You didn't tell him about the Post-it with Tony's name?" she says.

"Do I look like a fool?" I ask.

"You think he knows something about it?"

"Not unless you told him," I say. "There are only five people who know about that note. One of them is dead, there's Tony and Acosta and the other two are sitting here in this room." I am too defensive by half, and it provokes her curiosity.

"What are you going to do about the note? You haven't told me," she says.

"For good reason," I tell her. "Suffice it to say, you will not be called to testify."

"Then you're dropping it?" she says. Lenore has another agenda.