Steve Martini - The Judge

“Didn’t the policeman give you a little bear?”

“It wasn’t Binky,” she says.

“Well, we’ll talk to them about that. Okay?”

A stern nod that is something out of a Shirley Temple movie, as though this is a promise she expects him to honor.

“Was it dark in the closet that night?” says Radovich.

Another nod.

“Could you see anything?”

The child is shaking her head.

Radovich turns and gives us a look, like, “Maybe this is a dry hole.”

“Let’s go off the record,” he says, and he takes a short walk to the other side of the bench, followed by the psychologist. In a couple of seconds this becomes a convocation as the female deputy from Kline’s office and I mosey over to hear what is being said.

“It’s a delicate issue.” Radovich is speaking to the psychologist. “How do I ask her how her mother’s blood got all over the little bear?”

“Very tactfully,” says the shrink. “She might not know it’s blood. You might ask her how it got dirty.”

Radovich gives her an expression of approval. “Good idea,” he says.

We adjourn and he returns to the witness box.

“Kimberly. Can you tell me how Binky got dirty?”

“Mommy bled all over it,” she says.

So much for indirection.

“Did you see this?” says Radovich.

“Oh, yeah. Binky’s all bloody. I think he got hurt, too,” she says.

“I think Binky’s gonna be fine,” he says. “He’s in the hospital getting better,” he tells her.

“Mommy, too?” she says.

Radovich turns so that only the lawyers and Hall’s parents can see him. The expression on his face tells me there is not enough money in the world to compensate for this kind of work.

He turns back to Kimberly. “Just a second, sweetheart. I’ll be right back.” Radovich wants another conference. We convene in the same place.

“Has anybody told her her mother is dead?” he asks.

“She has been told that her mother is in heaven,” says the psychologist. “She says she understands. But she asks when her mother is coming back.”

It seems that at the tender age of five, going to heaven is a concept with all the finality of a trip to Disneyland. In her young mind, Mommy is due back wearing mouse ears any day.

“You tell her that her mother is not in the hospital,” says Radovich. It’s clear that the judge is not going to do this. From the look, Radovich would rather take a good beating by some thug with a sap.

The shrink walks over and delivers the message. This takes several seconds, and by the time we get back to the counsel table Radovich is back in place.

He quickly gets off the subject of death and asks her where she found Binky that night.

The little girl is thinking, swallowing buckets of saliva, images playing in her tiny brain, the aftermath of violence.

“Do you remember where you picked him up?”

She nods.

“Where?”

“On the floor,” she says. “Binky was on the floor.”

“Where on the floor?”

“By Mommy,” she says.

“How did Binky get dirty?” says Radovich.

“I heard Mommy in the front room. They were shouting.”

“Who was shouting?” Radovich is picking up the pace, as if now maybe he’s getting somewhere.

“Mommy.”

“Who was with Mommy?”

She shakes her head and offers a tentative shrug, a lot of expression for such a little body.

“You don’t know?”

She shakes her head again.

“You never saw who was there with Mommy?”

More head shaking.

“Let the record reflect that she did not see whoever was with her mother that night,” says Radovich. First big point.

I can sense Acosta as he gives a palpable sigh, his entire body suddenly easing in the chair.

Radovich questions her for ten minutes and gets nothing of substance. This is hard work. He is sweating profusely. His white dress shirt is stuck to his back, soaked through in three places.

“Maybe you’d like to try for a while.” He turns to me.

“You’re doing fine,” I tell him.

“Right.”

Talking to this little girl now is to play with fire. So far she has not hurt us. If she says anything damaging I will have no choice but to cross-examine her.

Radovich returns to her on the stand, and offers her a glass of water. She takes it and asks for a straw. He has his clerk search for one in her office, and when she comes back empty he sends out to the cafeteria.

“Maybe you’d like a Coke?” he says.

This lights up her face and she nods. Radovich pulls a five-dollar bill from his pocket and gives it to the bailiff.

“Maybe some ice cream, too,” he says.

While we’re waiting, Radovich continues his questions, asking Kimberly to tell him about that night.

“They were really mad,” she says.

“Who?” says Radovich.

“Mommy. .” Stark looks from the little girl, as if she can’t fill in the other blank, the other voice she may have heard that night.

“Do you know if the other voice was a lady’s voice, like Mommy’s, or was it a man’s?”

“I heard Mommy,” she says. “She was crying.”

“Yes. But did you hear the other voice?”

She shakes her head. A five-year-old, cowering in a dark closet, listening to the voices of violence; it is little wonder that all she would hear is her mother crying.

“Did your mother say anything?”

“She said, ‘No!’ She was real mad.”

“Did you hear a man’s voice?”

This is suggestive and I could object, but Radovich is likely to roll over me, since it is he who posed it.

“I think so,” she says.

I wince with a little pain. “Your Honor, I have to object. It’s a powerful suggestion to a little child,” I tell him.

“You can clean it up later,” he says.

“We could strike it now,” I tell him, “and avoid the necessity.”

“It’ll stay for the moment,” he says.

The Coke comes from the cafeteria and Kimberly sips from the straw. The ice cream goes up on the bench to melt for a while. Radovich continues to question her about her toy bear and how it came to have blood on it.

“Binky was out with Mommy,” she says. “They both got hurt.”

It becomes clear that Kimberly has rationalized the blood on the bear so that it has now become Binky’s.

“Binky must be a pretty good friend?” says Radovich.

“Binky keeps all my treasures,” she says.

“I had a fuzzy little friend when I was your age, too,” says the judge. “We were real buddies. I could talk to him about anything.” Radovich takes a sip from the coffee cup. “Tell me, Kimberly, did you see how Mommy got hurt that night?”

She looks at him very seriously for a moment, then shakes her head.

The court reporter records this. One more stake through the prosecutor’s heart.

“Your bear, was he out in the front room when Mommy was hurt?”

To this he gets a big nod.

“And were you in the closet?”

“I was in my bedroom first,” she says.

“You went from the bedroom to the closet?”

“Uh huh.” She nods.

“Did you go there when you heard the shouting?”

She nods.

He is leading her shamelessly, but it is likely that with a child he would allow counsel to do the same. It is the only way to get her story.

“So you heard shouting when you were in your bedroom, and then you went into the closet. Why did you go into the closet?”

“I was scared,” she says.

This probably saved her life, and Radovich knows it. It is the kind of point that would not be lost on a jury, the sort of thing that could inflame them against a criminal defendant if there is no other party against whom they can vent their wrath.