The Ophelia Cut (38 page)

Hardy’s secretary/receptionist, Phyllis, had called in sick this morning, and he opined as to how many days in a row she’d have to miss before he would be justified in letting her go. After her forty years with the firm—in truth, since before it was a firm—it seemed cruel of him to demand perfect attendance. But if she missed three days in a row, then surely a case could be made.

The Beck, meanwhile, had invited Ben Feinstein to a picnic thrown by the firm where she was interning this summer. More developments to come.

Oh, and Abe and Treya were taking a real vacation for the first time perhaps ever, in late August, and asked if the Hardys had ever been to Santa Catalina island, and would they like to go along?

Dinner was Caesar salad, which Frannie made from scratch with Romaine lettuce, a raw egg and an entire tin of anchovies, garlic and Worcestershire sauce, Dijon mustard and the juice of a Meyer lemon, all emulsified with Parmesan cheese and extra-virgin olive oil. Frannie left out the croutons but added three jumbo prawns each, and they ate every speck.

By now the trial was no longer off-limits, and they replayed everything, beginning with the gorilla video, then proceeding from Dr. Paley’s exhaustive testimony to Susan’s hit man idea, to Glitsky’s decision to become a defense witness if Hardy needed him, to Wyatt Hunt’s objections to the wild goose chase of an investigation.

At nine-thirty, they were in bed.

At ten, he kissed her one last time, again told her he loved her, reached over, and turned out the bedside light.

P
AUL
S
TIER CAME
out of his corner the next morning like a boxer who’d taken a bad hit in the previous round and wanted to prove he was still in the fight. Gone was the friendly avuncularity he’d shown to Winston Paley when he introduced himself and Gunderson. Similarly absent was the petulant and overmatched debater from the sidebar with Hardy yesterday.

Exuding confidence, Stier could barely wait to get out of his chair—indeed, from the corner of his eye, Hardy noted that Stier stood up twice as the judge first welcomed the jurors back for another day and then recalled Paley to the stand. For a man who hadn’t objected once the day before, he came out at the bell with an enthusiasm that Hardy found a bit unnerving. What the hell was he so excited about?

Stier’s opening line of cross-examination hammered Paley on his reference sources. It was well and good that the doctor had all the credentials in the world, and admittedly interesting that, in his opinion, buttressed by dozens if not hundreds of studies, eyewitness testimony was essentially useless. But could he cite specific studies that would lend credibility to his overall testimony?

For example: “Dr. Paley. You’ve testified that a short man with a weapon will be identified as over six feet tall. Does this happen every time?”

“No. I don’t think so.”

“You don’t think so. You’re not sure?”

“It happens a majority of the time.”

“Do you have an exact percentage?”

“I’d say about ninety-five.”

“And the other five percent, do they get the size of the person with the weapon correct? Or perhaps someone who is five-eight, they say is five feet?”

“No. That doesn’t happen.”

“Never?”

“I’ve never heard of it happening. The differences—and now we’re only talking about the five percent—tend to be off by an inch or two.”

“Can you give us the study that corroborates this?”

“Not specifically. But James McDowell conducted several studies—”

“Who?”

“James McDowell, one of the first expert witnesses in California on this topic. He was a well-recognized and respected forensic psychologist.”

“Doctor, I notice you said ‘was.’ Is Mr. McDowell deceased?”

“Yes.”

“When did he die?”

“I’m not sure. Six or seven years ago.”

“And—I hope I’m getting this right—you say he wrote the primary study about the issue of people with weapons being identified as larger than they actually are?”

“Yes.”

“Again, the name of that study?”

“I’m afraid I don’t have it at my fingertips.”

“How about a publication that one of these seven-year-old studies appeared in?”

Hardy, if only to break up the attack, stood at his table. “Objection, Your Honor. Argumentative and badgering.”

With what Hardy saw as a look of mild disappointment, Gomez shook her head. “I think neither,” she said. “Overruled.”

Stier didn’t even seem to take a breath. He reminded the doctor of his last question. “A publication where any of these studies appeared?”

The doctor, straining to maintain his air of affability, motioned down in front of the witness stand. “I’m sure some of the publications and studies are in my briefcase.”

“But you don’t remember any specific names or publications?”

“Not at this time, no.”

This was a slight loss for Hardy. Paley’s value hinged on his credibility as a scientist who had the right answers. Stier was making it sound as though he might be making the stuff up, and therefore, by extension, it wasn’t even true.

The next exchange didn’t improve matters. “Doctor, you said yesterday that you have appeared as an expert witness over a hundred times?”

“Yes. Well over a hundred. Perhaps two or three hundred.”

“Three hundred times?”

“Approximately.”

“Out of those three hundred court appearances, how many times have you testified for the prosecution?”

“They haven’t asked me.”

“They haven’t asked you?” Stier, low-key, nevertheless managed to convey his astonishment to the jury. “They have never asked you?”

“No.”

“So you have never testified for the prosecution?”

Hardy stood. “Objection. Asked and answered. Badgering.”

Again, Gomez overruled him. “Not exactly. Doctor?”

“No. I’ve never testified for the prosecution.”

Stier, perhaps getting ahead of himself in his enthusiasm, did not want to appear to be badgering the witness, who remained, after all, sympathetic. Tearing a page from Hardy’s own playbook, he cleared his throat and walked back to his table for a sip of water. Returning to his place in front of the jury box, he continued, “Doctor, you have described yourself as a forensic psychologist. Would you characterize your profession as expert witness?”

“Yes.”

“Appearances like this make up at least part of your income, is that right?”

“Yes.”

“What percentage, would you say?”

Hardy pushed his chair back, got all the way to his feet. “Your Honor, immaterial. Irrelevant.”

Stier wasn’t the only one getting caught up in the moment. Hardy gave himself a mental kick in the pants almost before the words were out. He was objecting far too often to stuff he knew would be overruled, therefore alienating Gomez, and now he had given Stier an opportunity to make a speaking rebuttal.

“Your Honor,” said Stier, rising to the opportunity, “the fact that this
man makes a living testifying for the defense gives him an obvious motive to color his testimony. He’s a gun for hire.”

Gomez: “Enough. Both of you. Mr. Hardy, the question is clearly proper. The objection is overruled. Mr. Stier, we can live without the editorializing. Confine yourself to proper legal argument.”

Paley threw an apologetic glance at Hardy. An experienced witness, he knew he was being skewered, but there was nothing he could do. Stier had done his homework. “Lately,” Paley said, “this type of work has comprised a large percentage of my income. Maybe eighty percent.”

Having won that skirmish, Stier elected not to risk another objection by asking exactly how much Paley was getting paid. He was flying along and had made the point: Paley’s testimony was for sale and far from objective. Ugly, living up to his nickname, moved along to the meat of the matter. “Doctor, have you ever received a request to testify where you’ve looked over the eyewitness testimony and said you’d prefer not to testify because the ID or IDs looked good to you?”

“Yes, I’ve done that.”

“And what did you do in preparation for this case?”

“I saw police reports, read the eyewitness testimony, looked at some transcripts.”

“And did you read about the identification testimonies of Anantha Douglas, Liza Moreno, Susan Antaramian, and Fred Dyer?”

“I did.”

“And which of these identification testimonies was the strongest?”

“I didn’t think any of them were particularly strong.”

Although he’d known that this answer was coming, Stier pretended that it surprised him. “None of them? Well, then, can you differentiate between the testimonies of these four witnesses?”

“Well, obviously, they are from four different people who had different interactions with the person they hoped to identify.”

“So each one of them got it wrong in his or her own way?”

“In fact, counsel, each of the witnesses got it wrong in part for the same reason. It appears they were improperly influenced by the police. To that extent, each of them got it wrong for the same reason.”

Stier straightened up, clearly stung by the body blow. But he came
right back. “But just to be clear, Doctor, four separate witnesses picked the same wrong person?”

“I’m not here to say whether any given witness is right or wrong. I’m saying the IDs were not strong. Each for different reasons. I’m not going to comment on which were stronger, because none of them were strong.”

“They didn’t see who they said they saw?”

“Their testimonies did not establish that.”

“Doctor, let me ask you this. Is there any hypothetical identification anyone could make, ever, that you would accept in a court of law? Could a son incorrectly identify his own mother? A husband his wife? A father and—”

“Your Honor,” Hardy said. “This is badgering, pure and simple.”

Before Gomez could rule, Stier said, “I’ll withdraw the question, Your Honor.”

“Court will take this opportunity for a recess,” Gomez said. “Let’s all meet back here at eleven o’clock.”

O
N HIS WAY
to use the restroom, Paley, looking genuinely contrite, stopped by the defense table. “The bare fact remains,” he said, “that none of the eyewitness testimony is very good. What was I supposed to say?”

“You did fine,” Hardy said. “It’s all going to come down to the specifics anyway. Why Anantha was wrong. Why, separately, Fred Dyer was wrong. Liza Moreno. Susan Antaramian. We’ll take them individually when they come up and prove what you’ve just said is true. Don’t you worry about it.”

Paley still didn’t like the way it had gone, and Hardy didn’t blame him in the least. “I should have the names of those studies and the citations at my fingertips. If you want to redirect, I’ll spend this break and find the articles.”

“That might be worthwhile,” Hardy said. “Let’s see what he pulls out next and take it from there.”

“I’ll throw in a couple of footnotes; that always impresses.”

Hardy, wishing Paley had come into the courtroom with that mind-set and a little more attention to detail, gave him a confident grin. “We’re not killing them, but after yesterday we’re still winning,” he said. “Just stay friendly and comfortable up there. Don’t let him rattle you. It’s all about credibility, and you’ve got more of that than Stier on his best day. As long
as you stay loose, we’re golden.” Hardy thought he’d lighten things up with a little humor. “Now go do what you’ve got to do. We don’t want you squirming up there on the stand.”

H
AVING ESTABLISHED THAT
Paley was a hired hand citing unsubstantiated claims about the basic facts of eyewitness testimony, Stier could have dismissed the witness, feeling that he’d done an adequate job of discrediting him. Hardy certainly thought he’d done enough damage, but this time, as Stier returned to his expert witness, he was the same boxer who’d knocked his opponent down in the second round and now planned to finish him off.

Hardy had no idea what he had up his sleeve.

“Dr. Paley,” Stier began. “Yesterday morning, I introduced myself to you right here in this courtroom. Did I not?”

“Yes, you did.” Paley, heeding Hardy’s advice, added, “And very graciously, I might add.”

“Thank you.” Stier backed away and half turned, gesturing toward the People’s table. “And do you recall that at that time you also met my assistant, Lars Gunderson?”

“Yes.”

“The gentleman seated at the table right in front of you?”

“Yes.”

“That’s the man you met yesterday with me just inside the bar rail?”

“Yes.”

“You’re certain it’s him?”

Paley took an uncomfortable ten seconds or so, scowling briefly, then regaining his amiability. “Yes, that’s him.”

“With what degree of certainty, Doctor, can you say that Mr. Gunderson is the same Mr. Gunderson you met yesterday?”

Paley, too experienced in cross-examination to believe that this was all in good fun, paused again, glanced at the jury and then at Hardy, who raised his eyebrows ambiguously. Paley was in this one all alone. “I’m certain it’s him. Ninety-nine to a hundred percent.”

“Ninety-nine percent. That’s very certain. So you had a chance to observe him at close range in good light, and you’re ninety-nine percent convinced that Lars is the man you met yesterday.”

“Actually”—Paley rose to the bait—“I’m a hundred percent certain. Unless he’s got an identical twin.”

“No. He has no twin.”

Paley never took his eyes off Gunderson. “Then that’s the man.”

“Splendid, Dr. Paley. Now, you have testified that the witnesses in this case are not reliable because of, among other things, discrepancies in their descriptions of the clothing that the man was wearing and because, in some cases, they couldn’t describe the clothing at all. Is that correct?”

“Yes, it is.”

“Do you remember what Mr. Gunderson was wearing yesterday when you observed and met him?”

A longish pause. “No. I assume some kind of business attire. I didn’t specifically notice it. It seemed to fit in here at the courtroom.”

“Was he wearing a tie?”

“I think so, yes.”

“Might it have been a bow tie?”

A beat. “Maybe.”