Steve Martini - Double Tap

I turn it around on him: “If they have other evidence, why do they need the tape, Your Honor? The contents of that tape are highly prejudicial.”

“I agree,” says Templeton. “It shows that he had a reason to kill her. He was in love and she’d cut him off.”

“It shows nothing of the kind, Your Honor.”

“One at a time,” says Gilcrest. “Mr. Madriani, since it’s your motion to suppress, you first.”

I cite provisions of the state’s evidence code that give the court discretion, allowing the judge to keep items in evidence out of the hands of the jury in situations where they could poison their view of the defendant to such an extent that he could not get a fair trial. “Prejudicial effect versus probative value,” I say. “What is the state trying to prove? That two people had an affair that lasted over a period of time, and that it became so intense that the defendant became infatuated with the victim to the degree that when she told him to go away he killed her. That’s their case.”

“That and the murder weapon and some awfully good shooting,” says Templeton.

The judge swats him down. “Enough, Mr. Templeton. You’ll get your chance.” Templeton bows his head toward the bench in acquiescence and straightens his bow tie.

“But does the content of that videotape prove the existence of such a long-term and torrid relationship? No. It establishes one incident of what can only be called a moment of lust. Not a motive for murder. And the images on the screen are so likely to offend a jury as to make it impossible for the defendant to redeem himself or have any chance of a fair trial. Your Honor, to show that tape to the jury is to poison their minds so irreversibly against the defendant that the contents of the videotape must be excluded.”

Gilcrest absorbs this without any hint as to whether it sways him. “Mr. Templeton. Now.”

Templeton somehow gets the heels of his shoes on the front part of the seat of the chair so that an instant later he is standing on the seat, the wrinkled knees of his suit pants an inch or so above the level of the table. The image is a gripper.

It is a first for me, never having tried a case against him. My jaw drops. When I turn back toward the bench, it’s apparent from the judge’s expression that he has caught the astonished look on my face.

“My learned opponent says that the tape fails to establish a long-term and torrid relationship,” says Templeton. “What does he expect, a four-night miniseries? That tape proves that they had an affair. It is one piece in a sequence of evidence that establishes the duration and the intensity of a relationship between the defendant and the victim that is at the heart of the victim’s death. Without that tape, the state’s case would be immeasurably weakened,” says Templeton. “And that relationship is central to our theory of the crime. Take it away and you may as well”-he pauses for effect-“cut off my legs.”

Still standing at the table, I glance sideways down at Harry, who is seated next to me. Harry’s face is an expression of I told you so .

“That’s all fine and good,” says Gilcrest, “but I’m still concerned about the tape. How do we get the jury to disregard all of that huffing and puffing, to say nothing of the sweaty bodies on the screen? Especially since only one of those bodies is going to be present during the trial?”

Gilcrest is the best kind of former defense lawyer, the kind that wears black robes.

“It goes with the turf,” says Templeton. “It is what it is. What’s on the tape is what they did.”

“But what’s on the tape isn’t an act of murder,” says Gilcrest. “Not unless he humped her to death.”

“Of course not, and we’re not saying that it is, Your Honor.” Templeton laughs. “But it’s an incremental part of our case. Vital evidence,” he says.

“It’s also highly prejudicial-”

Gilcrest puts up a hand and stops me as if to say he’s heard enough from my side of the argument. “So it comes down to whether there is anything that the state might be able to substitute for the contents of that tape. Is that where we are?” asks the judge.

“Your Honor, there’s nothing that can substitute for that tape,” says Templeton.

“If my goal was to poison the jury, I’d agree with you,” says Gilcrest. “As I recall, there was a young woman who entered during part of the tape. Though my eyes were riveted-as yours were, I’m sure-on the action, I believe she was a redhead.”

I supply the name. “Karen Rogan, Your Honor.”

“Good. For the record: Ms. Rogan. She’d have to be blind not to have seen what was going on,” says the judge.

“The defense would stipulate that Ms. Rogan can testify as to what she saw,” I say.

“I’ll bet you would,” says the judge, “after seeing that tape. She can testify, can’t she?” Gilcrest puts it to Templeton like a robber pointing a gun.

“I don’t know,” says Templeton. “We haven’t planned to put her on for that purpose.”

“Well, maybe you should,” says the judge.

“Your Honor. .” Templeton tries to stop him before he can rule.

“Put her under subpoena and find out,” says the judge. “Next item.”

“Does that mean the tape is out?” says Templeton.

“It does.”

“Your Honor, the state takes exception.”

“I’m sure it does. Let’s move on.”

What I had hoped for: Gilcrest is our leveling hand.

The rest of the morning we run through pretrial motions, mostly minor stuff. We win a few, lose a few, until just before noon, when Templeton announces that he has a witness and outside counsel with an interest in the remaining issues. They won’t be available until afternoon.

Gilcrest decides to take the noon break. Harry and I head to lunch.

Mac’s is a greasy spoon three blocks from the courthouse, a small sandwich shop, a hole-in-the-wall stuck in the crack between two larger office buildings. Harry and I have made a habit of coming here for lunch whenever we’re in trial. There are four tiny tables against one wall, a counter against the other, and a narrow corridor between the two just wide enough for one person to walk. It is one of the few places within shouting distance of the courthouse where the walls don’t have ears. While the occasional bailiff or clerk may come in for takeout, there aren’t enough tables or space for the courthouse crowd to hang. Whenever the tables are full, Harry and I take sandwiches to one of the benches outside. It’s the nice thing about San Diego: you seldom have to worry about rain, and the last time it snowed, people were still hoofing it across the landbridge from Asia.

Today we are a little early and Mac’s is empty except for one other guy in a shirt and tie under a dark trench coat who came in just behind us.

The fare here is sandwiches, but for the few regulars who eat in and who know what’s available off the menu, Mac can turn a wicked Caesar salad, though it takes a few minutes. Harry orders the barbecue beef along with a towel to keep the sauce off his suit, then heads for the john through the closed door in the back.

I shuffle through a stack of newspapers by the register, find the front section of the morning edition, and grab a table.

Madelyn Chapman and the “Double Tap Murder Trial” make it into a double column just below the fold on the front page. Speculation that Isotenics, Inc., one of the largest employers in the county, may be drawn into the trial occupies the lead and several paragraphs following it. Apparently some enterprising reporter has heard the flutter of angst from Havlitz and his cronies over the subpoenas I served on his lawyer that day at the office. The fact that Harry and I are trying to burrow our way into filing cabinets out at Software City has the local economic prophets more than a little edgy. While the nationals may love the idea of dragging IFS into the middle of the trial, the local paper is nervous as to the fallout. If the government project is canceled, a lot of county residents-newspaper subscribers who fertilize the economy and justify full-page ads for white sales-could be laid off.