Steve Martini - The Judge

Acosta and I look at each other. Harry is mystified. Then it finally dawns on me. My gaze makes contact with Radovich up on the bench in the instant that he comes to the same conclusion. The child, huddled in the dark closet, holding her bear, had heard her mother’s call from beyond the veil, what the coroner had attested to on the stand-Brittany Hall’s death rattle.

Following a brief recess, Hovander takes a different tack, a few preliminaries. She has the child identify Binky, her stuffed bear, which is sitting on the evidence cart. They get into it when Kimberly demands this back. Harry seems bemused by the specter of a prosecutor in a tug-of-war with a five-year-old over a stuffed toy.

Hovander tries to move on, and the child won’t let her. At one point Kimberly actually turns to the judge up on the bench and demands to know if Binky is in jail. Radovich doesn’t know what to say. Finally he tells Hovander to let her have it for a while. This results in a bench conference, three lawyers and the judge, how to dig yourself a hole.

“The toy has her mother’s blood on it,” says Hovander. “The child would require rubber gloves. There are health concerns.” Hovander won’t take the responsibility.

Harry objects to the gloves as a negative image in front of the jury. Something else that the prosecution can psychically hang on Acosta.

“Then you tell her she can’t have it back,” says Hovander.

“You got into it,” says Harry. “You get out.”

“This is getting us nowhere,” says Radovich. He calls in the troops. The shrink gets the dirty detail. She dons surgical gloves, gets Binky off the evidence cart, and approaches Kimberly on the stand. We return to our tables, the judge to the bench.

There are several seconds of whispering as the shrink talks to the child, efforts at some reasoned solution. All the while the child is a bundle of nervous gestures, tugging on the sleeve of her dress, then pulling on one of the heart-shaped buttons on the front until she tears this off.

Just as we start to think that she has resolved this crisis, Kimberly in a full voice demands to know if Binky is sick.

“What have you done to him?” She turns this on Radovich. “You’re not taking care of him.”

The judge has his palms turned up, shrugging shoulders under black robes, as if to say it’s not his fault.

It is comic relief. Even Acosta is laughing.

By now the psychologist is leaning over the witness railing, trying to get Kimberly’s attention. Before she can react, Kimberly turns on her and snatches the bear from her hands. She hugs it to her body and withdraws in the box, out of the chair, and into a corner where she cannot be reached. A stark look on the shrink’s face. Who would think a kid would be so quick?

She reaches over and tries to take it away from Kimberly, and there is a scream heard around the courtroom, something to pierce every eardrum. Hysterics in the witness box, tears and lashing little fingers.

By this time Kimberly’s grandmother is coming through the gate railing like mama bear protecting her own. She is followed by a bailiff who is trying to grab her.

Radovich calls him off.

“Enough,” says the judge. “Leave her alone. She can have the bear. You sit down.” He’s looking at the psychologist.

“You can stay,” he tells Grandma.

It takes several minutes, during which the jury is let out, of her grandmother holding her before the child stops crying. By now they are both seated in the witness box, the child on her grandmother’s lap, Binky in her arms. At one point she pets the toy as if it were alive and then, talking to it, feeds it the button torn from her dress. This disappears into the bear’s mouth, and when she removes her fingers the button is gone.

Hovander approaches the stand to talk. I can’t hear the conversation, but it’s animated, a lot of smiles and laughter between the child, grandmother, and the lawyer, who is busy repairing trust.

Once it is clear that Kimberly has calmed down, the jury is brought back in and Grandma’s off the stand. Hovander and Kimberly are friends again now that the witness has both bears.

“You know you still have to tell the truth.” Radovich is looking over his glasses at the little girl.

“Uh huh.”

“Go ahead,” he tells Hovander.

“Kimberly. Earlier you told us that you heard a man’s voice the night your mommy was hurt. Do you remember that?”

She nods.

“Do you think you might recognize that voice if you heard it again?”

“I might,” she says, a lilting voice.

This has been thrashed out behind closed doors, after much argument in chambers. Hovander wants to have Acosta speak, presumably angry words that the child heard that night, to see if she can recognize his voice.

We have argued that this is impossible, given the suggestive nature of such a test with a child so young, though there is no Fifth Amendment issue here. The courts have held that voice identification is not testimonial, but more in the nature of taking blood, or lifting fingerprints.

Radovich, always one to search for the middle ground, has ordered that the prosecution is entitled to a voice sample on tape, but with no words spoken in anger. He reasons that this will neutralize the suggestive nature of the exercise. There will be three separate voices, one selected by the state, one by us, and the defendant sandwiched in between. We have picked a Latino, a paralegal with another firm who is a baritone like Acosta, with similar Hispanic intonations.

They set up the equipment and Hovander tells Kimberly to listen carefully. They play the first voice.

It is high pitched, almost nasal, such that you might not recognize it as a man’s voice. “Hello, Kimberly. Do you know my voice?” It’s all it says.

Hovander tells her not to answer yet, but to listen to the other two.

Acosta is next, reading the same text. Then our ringer.

Kimberly sits dazed in the box, the first time that I have seen real pressure exhibited in her expression.

“Do you recognize any of them?” says Hovander.

She shakes her head.

“Do you want to hear them again?”

Harry is looking at me wondering whether he should object.

Radovich orders it played one more time.

They do it.

“Do you recognize any of them now?” says Hovander.

The balance of life hanging on the whim of a little child. Acosta sitting next to me. I grip his arm under the table.

Radovich, realizing the stakes, tells her not to guess. “Answer only if you recognize a voice,” he says.

She makes a face, something you might see when your kid is trying to figure which hand the candy is in. “The last two,” she finally says.

Hovander has a look of victory. “Maybe we could play the last two,” she says.

Harry objects. Radovich overrules him.

The clerk plays with a headset, screening out the first voice so that this time Acosta leads off. I watch as a rivulet of sweat makes its way down his cheek and finally drips from his chin onto the table.

“Do you recognize either of the voices?” says Hovander.

The prominent position of Acosta’s words up front on the tape has me worried. First impressions with a child are strong.

“I think it’s him,” she says.

Acosta’s head does a double take, first toward me, then Harry.

“Which one?” says Hovander.

A desperate look from the child, as though she doesn’t understand the question. She thought she was done. Then it settles on us. She thinks both voices are the same man.

Hovander tries to argue that the witness has selected one of them, and wants to clarify with a follow-up question. Radovich tells her no and leans over the bench.