Steve Martini - The Judge

“The truth,” she tells him.

“And do you promise to tell us the truth today?”

“Yes,” she says.

“Only the truth. No lies?” says Radovich.

“Yes.”

She is clearly more verbal in her responses than she was months ago at the hearing. I take this as a sign that they have been working with her.

“Your witness,” says Radovich.

Hovander is a plodder, not impressive in her style, but thorough, one of those lawyers who moves two steps forward and three back with each set of questions.

“What’s your bear’s name?” says Hovander. Something to establish trust.

“Hungry,” she says. This is the bear given to her by the police after Binky, the bear from the murder scene, was seized as evidence.

“Why is he called Hungry?”

“Bears are always hungry, and he can’t eat,” she says.

“Well, that’s true,” says Hovander.

Kline has taken the tactical high ground. The chemistry between Hovander and the child is soft, relaxed. Harry, I’m afraid, will not fare so well.

She establishes quickly that a child of five has no concept of time or dates. Kimberly is unable to offer any assistance as to the time of death. All she can say is that when her mother began to argue and make noise it was still light outside.

Hovander fares better on spatial relationships, the geography of the crime scene. This comes in as it did in the earlier hearing. Kimberly was in her bedroom playing when the argument between her mother and whoever killed her started. It appears to have escalated quickly so that within what was probably no more than a couple of minutes the child became frightened by the volume of voices and something being thrown in the living room, then she slipped down the hall and into the closet.

“Did you see anything?” says Hovander.

To this she gets a shaking head, stern and adamant. The record is left to reflect that she did not.

“Did you see the other person there with your mother that night?”

“No.”

“But you heard his voice?”

“Objection.” Harry is doing this. We have decided that he will take the cross examination of the child. Harry hasn’t been told why I suggested this, but I think he has guessed. Ever since Kimberly identified me as having been there that night, I have not wanted to tempt fate. In fact, I had considered absenting myself today, but decided to risk it. If I were not here, Acosta would ask questions.

“On what grounds do you object?” says Radovich.

“Assumes facts not in evidence,” says Harry. “The gender of the other person that night.”

“Sustained.”

“Kimberly, did you hear another voice that night besides your mother?” says Hovander.

She nods.

Radovich does the honors on this, directing the court reporter as to how the record should read.

“Was it a man’s voice or a lady’s voice?”

“A man.” She says this without hesitation, so that now I can assume whether true or not, she believes it. The power of suggestion.

There is some confusion here as the child alters her story several times, but the essentials are fixed. At some point after the fatal argument, Kimberly emerged from the closet and found her mother’s lifeless body on the floor, blood all around.

“I tried to wake her up,” she says. “But I couldn’t. So I got Binky.”

“Binky is your stuffed bear?” says Hovander.

“Uh huh.”

“And where did you find Binky?”

“By Mommy. On the floor.”

“What was Binky doing by Mommy?”

“I put him on the table when I came home from the baby-sitter.”

“Do you remember what time you came home from the baby-sitter?”

Kimberly looks at the ceiling, a screwed-up expression on her face. “I think it was ten o’clock. Maybe it was eight.” She pulls numbers from the air, leaving us to wonder if she is confusing the time with the size of a shoe or the age of a friend. To children of this age numbers are meaningless, and all interchangeable.

Hovander tries to square this away. Earlier testimony has already established that Brittany picked up her daughter from the baby-sitter just after five, and probably arrived back home sometime between five-thirty and six. She had been home from work earlier in the day, having taken the afternoon off for some unknown reason.

“So you got Binky, and then what did you do?”

“I sat down with Mommy,” she says. “I tried to wake her up. But I couldn’t.”

There are haunted expressions on the faces of several jurors. The mental image of a child sitting on the floor beside the body of her dead mother, her only comfort the synthetic fur of a stuffed animal, does not conjure thoughts of clemency.

“After that did you go back to the closet?”

She nods her head. “I took Binky.”

“Why? Why did you go back to the closet?”

“’Cuz I heard him coming,” she says.

“Who?”

“The man who hurt Mommy.”

“Where was he coming from?”

“Outside,” she says. “He opened the door.”

“Did he see you?”

She shakes her head, wonder in her eyes, perhaps puzzled herself how he could have missed her.

“I ran,” she says.

“Were you scared?”

The child offers a succession of large nods.

“Did you think this person would hurt you?”

“Yes. ’Cuz he hurt Mommy.”

“Objection. Calls for speculation,” says Harry.

“Sustained. The jury will disregard,” says Radovich. It is not likely.

Hovander is turning the screws, jurors on the edge of their seats. The tactic here is to plumb the fears of the child, to leave the clear supposition that Acosta, who had killed her mother, would have had no choice but to dispatch the child if he’d known she was there. Indictment for a crime not committed.

“Did you see this man when he came back?”

“His shoes,” she says. “They were black and shiny.”

At this moment every eye in the jury box is under our table. I am tempted to look myself, but exercise restraint.

“Did you see this man’s face?”

She shakes her head.

“How did you see his shoes?”

“He walked down the hall to Mommy’s room. I saw his feet go by.”

“By the closet where you were hiding?”

She nods. “The door was open.”

“All the way?”

“A little bit,” she says.

“So you hid in the closet again when you heard the man come back?”

“Binky and me, we got in the closet. Fast,” she says.

“And you stayed there?”

A big nod.

“Do you know how long you were in the closet?”

“A long time,” she says. “He came and went, and then he came and he went again,” she says.

“So that we get this right,” says Hovander. “The man came back more than once?”

Kimberly gives the lawyer a big nod. Now I am confused. This is the first we are hearing of any of this. At first I think Kimberly is embellishing, and then it hits me. The child is telling the truth. The first intruder no doubt was the killer, coming back for the body. The second was the sound of Lenore and me.

“Do you know what the man was doing when he came back?”

She shakes her head. “I stayed in the closet a long time. And when I came out Mommy was gone.”

“Then what did you do?”

Kimberly looks for a moment at the jury, then she says, “I came out of the closet and I fed Binky.”

“Did you hear anything while you were in the closet?”

For a moment she is stone still in the witness box.

“Sweetheart, did you hear something?”

“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.”