Grant of Immunity (26 page)

I
t had been a long day
, but as the jury entered the courtroom, Fitzgerald could see, that despite the day’s length, they were still vitally interested in the case. Fitz felt that way too. No one who witnessed today’s testimony could fail to see that Jordan had made major progress in attacking the prosecution’s case. All of this underscored that Fitz had been right when he urged Reynolds to wait, so that he could do more investigation to establish corroboration. There was so much that needed to be learned before Hart was arrested — before Hart was tipped off that he was a murder suspect.

“Ms. Reynolds, do you wish to further examine your witness?” Judge Fields asked after the jurors were seated.

Doris Reynolds stood, looked at the jury and then at Judge Fields. “I have no further questions of Sergeant Babbage,” she said, and then declared, “Subject to the court admitting People’s One, the Autopsy Report, People’s Two, the Coroner’s Diagram, and People’s Three, Mr. Babbage’s Audio Statement and Transcript, the people rest.”

Judge Fields looked at Jordan. “Do you object to the admission into evidence of the exhibits?”

Jordan stood. “Not at all, Your Honor. However, I request the court admit Defense A, the DNA report.”

“I object to Defense A being admitted,” Reynolds said.

“Overruled,” the judge said. “Exhibits One, Two, Three, and A are admitted into evidence. Anything further before we begin the defense case?”

Jordan stood. “Your Honor, at this time, the defense wishes to make a motion to dismiss under Penal Code Section eleven-eighteen-point-one.”

Fitzgerald could feel the tension in the courtroom. The jurors didn’t know what the Penal Code section meant, but they understood dismissal. There was no reaction from Reynolds—she knew, as he did, that it was routine for defense lawyers to make this motion in every case. Fitz didn’t think much of the case that Reynolds put on, but he knew it was highly unlikely that the judge would grant Jordan’s motion.

Judge Fields turned to the jury. “Ladies and gentleman, we must now hold a hearing outside of your presence. Since this may be a lengthy hearing, I’m going to excuse you until tomorrow morning at eight-thirty a.m.”

One by one, the men and women of the jury gathered their personal items, put their spiral notebooks on their chairs, and filed out of the room.

Judge Fields said, “We are outside the presence of the jury. Ms. Jordan, you may now argue your motion to dismiss.”

“Your Honor,” Jordan began, “at the outset, I want to make it clear that I believe the evidence shows that Mr. Babbage is a liar, that his entire testimony is preposterous, and that he sought immunity to escape prosecution for the murder of Sarah Collins. The clear inference is that he picked a story that can’t be verified, because otherwise he would be caught by his own lies.”

Reynolds interrupted. “That’s for the jury to decide, Counsel, not you. I object, Judge.”

“Overruled,” said Fields. “Sit down, Ms. Reynolds. You’ll get your chance to argue. Please don’t interrupt.” Reynolds glared at Fields and remained standing. Fields looked back at Jordan. “Continue with your argument.”

Jordan nodded. “Your Honor, the prosecution has presented no direct evidence that establishes a case against Daniel Hart, or even establishes that Mr. Hart was present the night of the murder. In fact, aside from Mr. Babbage’s testimony, there is not a scintilla of evidence, direct or circumstantial that links my client to the murder. Even with the preposterous Babbage testimony, the evidence is so weak that no reasonable jury could convict. But, beyond that, Mr. Babbage is an accomplice, by his own testimony, and as such, must be corroborated in order for this case to go to the jury. There has been no corroboration. Your Honor, the court must grant my motion to dismiss. There is simply no logical alternative.”

Jordan continued. “It is uncontroverted that Mr. Babbage destroyed evidence. He says he did it because he was afraid. But of what? If everything occurred the way he claims it did, the logical thing would have been to go to the police immediately, not to burn Sarah Collins’s clothing. Going to the police would have allowed investigators to dust Babbage’s car for fingerprints and get other forensic evidence. The clear inference is that Mr. Babbage was afraid he would be held accountable for the murder of Sarah Collins.”

Reynolds still had not sat down. “I object to this unsubstantiated speculation. There’s absolutely no evidence of car fingerprints or blood on the clothing.” She pointed at Jordan. “
She
is making this up.”

“Overruled,” said Judge Fields.

Jordan said, “If Mr. Babbage had come forward on that July fifth, it would have been possible to examine his supposed head injury for lumps and bruises. After all, if he was hit on the head with such force that he lost consciousness for the entire time the murder took place, surely he would have sustained observable damage.”

“Let her argue that to the jury, Judge,” Reynolds said.

“Please continue, Ms. Jordan,” Fields said.

“It’s clear that Mr. Babbage is a liar. He’s already admitted lying about this incident. When he applied to become a police officer, he lied in response to a direct, material question. He said he had never used drugs, when in fact he had smoked marijuana on the night of the murder.

“But there’s a far more serious and dangerous area of testimony where Babbage lied directly to the court and to the jury. This afternoon, Mr. Babbage admitted that while on duty, and in full uniform, using red lights and siren, he stopped motorist Erin Collins, and using his badge, coerced her into orally copulating him. That, by itself, is a reason for not believing anything Babbage says. But in response to my question, Babbage denied that he was aware that Erin Collins is Sarah Collins’s daughter. That was either a lie or the world’s most bizarre coincidence. Can the court give any credibility to such a man?

“Oh my God,” Reynolds said.

“If that’s an objection, it’s overruled,” Fields said. “Continue, Ms. Jordan.”

“As I’ve said, Your Honor, I believe the evidence is clear that Mr. Babbage’s story is a total fabrication. He claims he didn’t see who hit him, didn’t see who stabbed Sarah Collins. He maintains that when he awoke the first time, he was bound to a tree by duct tape. But where did this duct tape come from? He says it wasn’t his, but by his own statement we know that he drove to the Lake Hollywood Reservoir in his car. Where would anyone possibly find duct tape at the Lake Hollywood Reservoir after midnight?

“Next, he professes he saw Sarah Collins on her knees in front of my client. But again by his own testimony, he was still in the brush area that
he
had selected because it couldn’t be seen from the water’s edge. How could he peer through such shrubbery and see what was happening at the same water’s edge? And why would he be facing in that direction in the first place? Nevertheless, he wants us to believe that at night, without lighting, he saw through these obstacles and witnessed Sarah Collins orally copulate my client, gag, and spit semen.”

Jordan picked up a document, looked at it, and placed it on the podium in front of her. “Your Honor,” she said, “by stipulation, the DNA results from the swabs taken from Sarah Collins’s mouth are positive for Jake Babbage and negative for Daniel Hart.”

Reynolds made a face.

Jordan went on. “After claiming to see what he clearly could not, he conveniently faints again and awakes to find Sarah Collins dead. He removes the duct tape and walks home. How is it that he was able to get free from the duct tape after he awoke a second time, but for some unexplained reason was unable to do the same when he first revived?

“And now we come to the most preposterous part of this obviously manufactured story. He claims that a slight, barely fifteen-year-old boy managed to subdue him, a one-hundred-ninety pound, nearly twenty-one-year-old man. And he would have us believe this same fifteen-year-old boy inflicted numerous, agonizing stab wounds on a one-hundred-twenty-five-pound adult woman, all the while preventing her from using her hands to defend herself.”

Jordan turned to where Reynolds was sitting, looking directly at her. “Your Honor, this case has disturbed me ever since I first read Mr. Babbage’s statement.” She turned back to the judge. “It’s filled with inconsistencies and contradictions. It defies common sense. It doesn’t make sense that Jake Babbage would bring the fifteen-year-old along on a date.

“It doesn’t make sense that a skinny fifteen-year-old boy would knock out a husky twenty-year-old man. And with what object? No bloody rock or duct tape was found by police at the scene. It doesn’t make sense that duct tape would somehow magically appear at the Lake Hollywood Reservoir at night and disappear afterwards.

“It doesn’t make sense that Jake Babbage could see the water’s edge at night without artificial light, after having deliberately picked a spot hidden from the water’s edge to have sex with Sarah Collins. It doesn’t make sense that Jake Babbage could observe Sarah Collins orally copulate Daniel Hart, watch Sarah spit out the semen, and have the DNA swab show negative for Daniel Hart.”

Jordan continued. “It simply doesn’t make sense that a skinny boy could subdue a one-hundred-and-twenty-five-pound woman by himself and render her helpless to defend herself. It doesn’t make sense that Jake Babbage would burn Sarah Collins’s clothing. It doesn’t make sense that Jake Babbage would not go to the police immediately. I could go on and on.”

Jordan took a breath. “But instead I will make an observation. I have listed a dozen things that make no sense
if
we assume that things happened as Mr. Babbage said in his immunity statement.

“But all of these things make
perfect
sense if Jake Babbage is the real murderer.”

“Don’t go there, Counsel,” Reynolds warned. “Judge, how many times do I have to object to improper argument? This court has demonstrated so much bias against the prosecution that I believe a mistrial should be declared. The People need an impartial judge.”

“Ms. Reynolds,” Fields said. “I’ve said that we will deal with your issues during your argument. The next outburst and you will be held in contempt.” Fields looked at Jordan. “Please finish your argument, Counsel.”

“Your Honor, the DNA results are completely consistent with Jake Babbage having killed Sarah Collins after forcing her to orally copulate him.

“My final point, Your Honor, is that there is not one shred of evidence to corroborate anything that Mr. Babbage has testified to. For these reasons, and in the interests of justice, this case must be dismissed. Thank you.”

Jordan sat down.

“Now, you may argue, Ms. Reynolds,” Fields said.

Doris Reynolds stood. “Judge, I hope you’re not seriously considering granting her motion. Because if you are, I have two things to say to you. First, try to remember that if you grant this motion, the People cannot appeal and the defendant will go free, having escaped accountability for the murder of Sarah Collins.

“The court must let the jury decide the issues in this case. The defense argues that there wasn’t enough evidence to send this case to the jury. I vehemently disagree. Officer Jake Babbage testified clearly, candidly, and succinctly. It’s true that he did not actually witness the defendant stabbing the victim. But he did testify that he was with the defendant and the victim before the murder.

“He was knocked out. He awoke the first time to see the forced oral copulation by Sarah Collins and the second time to find the victim’s body. By then the defendant was missing and so was Officer Babbage’s vehicle. That vehicle was driven to Officer Babbage’s residence. It doesn’t take a rocket scientist to realize that the defendant was the person who knocked out Jake Babbage. The defendant was the person who drove the car to the house and also was the person who forced oral sex, stabbed, and murdered Sarah Collins.

“On the corroboration issue, the answer is very simple. Jake Babbage’s testimony does not have to be corroborated because he’s not an accomplice. He was unconscious during the murder and did nothing to aid in the crime. If the defendant’s lawyer thinks that merely being there makes Jake Babbage an accomplice, then she should go back to law school.”

Fields looked thoughtful. “We’ll put aside the corroboration issue for a moment. Ms. Reynolds, what are your comments with respect to Ms. Jordan’s argument about the internal inconsistencies of Mr. Babbage’s testimony?”

“There are no inconsistencies. Defense Counsel’s entire argument is speculation, without any foundation in fact. It’s up to the jury to evaluate the credibility of the witnesses. If the defendant’s lawyer doesn’t believe Officer Babbage, so what? The test for a motion to dismiss isn’t in the strength of the evidence. The test is whether or not there is any basis for the jury to convict. If they believe Officer Babbage, then they will. If they don’t, they’ll acquit. I don’t see how the court can use the defendant’s lawyer’s belief that Jake Babbage lied to prevent a jury from rendering its verdict. Let the jury decide who’s telling the truth and who’s not.”

“All right,” Fields said. “Let’s look for the moment at the corroboration issue. Ms. Reynolds, do you see any corroboration here?”

“That’s not an issue that needs to be decided, Judge. As I said, the only time that there’s a requirement of corroboration is when the complaining witness is an accomplice. Officer Jake Babbage was
not
an accomplice. There’s not a shred of evidence upon which a trier of fact could conclude otherwise.”

Fields looked to Jordan. “Ms. Jordan, the prosecution is right about the credibility issue. I can’t substitute your or even my judgment for that of the jury. On the corroboration issue, I tend to agree with you that there is no corroboration of Mr. Babbage’s testimony. And Ms. Reynolds has not been able to point to any such corroboration. But she appears again to be correct on the issue of whether or not Mr. Babbage was an accomplice. Has there been any evidence presented that would allow the court to conclude that Mr. Babbage was indeed an accomplice?”

Jordan stood. “Yes, Your Honor.”