Steve Martini - The Judge

While he may have mastered the jargon, his grasp of the science is not always there.

He is short and stout with tousled hair, what is left of it, and thick glasses in horn-rim frames. These are set with clear glass, like windowpanes, so that I have always assumed they are for effect. His sport coat is part of the uniform for court, corduroy that went out twenty years ago with leather-patched elbows, and pants so stiff with perspiration that they might produce dangerous vapors under the press of an iron. His black shoes are strangers to polish, with a hole in one sole that I have seen him display with pride when he crossed one leg in a hearing a year ago. He cultivates the image of the debauched professor, someone who you might guess has drunk his own juice from some lab experiment.

As Franks climbs toward the stand, Stobel says something to Kline and the two men actually laugh, so that there is no question as to the butt of their joke. Among lawyers in this town and the more perceptive jurors, Franks’s opinion on any subject is likely to carry the weight of helium. With a jury this is less certain, though a good attorney can usually cut him to shreds.

He is sworn and before I can reach the podium, Kline is on his feet objecting.

“Your Honor, we have received no report from this witness. No findings or written opinion,” he says.

“For a simple reason,” I tell the court. “Because the witness did not render one.”

I have given Kline a summary of Franks’s testimony, but only to a certain point, enough to make him curious and satisfy the elements of discovery.

“Well, can we at least ask the purpose of his appearance here today?” says Kline.

Radovich wants a sidebar. We huddle at the edge of the bench.

“What’s this about, Mr. Madriani?”

“Evidence relating to the calendar in the victim’s apartment, Your Honor.”

I have had Franks examine four or five items of evidence, the calendar being one among them, so that Kline could not focus on a single issue.

“What about the calendar?” says Radovich.

“There appears to have been some notations, impressions on the calendar that we believe are relevant.”

“Being offered for what purpose?” says Kline.

“To show that there was more written by the victim on her calendar for the date of the murder than has been revealed thus far,” I tell the judge.

“No wonder he didn’t provide a report,” says Kline. “Even if this is true, it’s hearsay.”

Unless we can fit Hall’s notation under some exception, Kline is right. He had to find an exception to hearsay himself to get the note on Acosta’s meeting into evidence, as an adoptive admission.

“The content may or may not be hearsay,” I tell him, “but the fact that there may have been other entries on the victim’s calendar for that date is not.”

The problem for Kline is that this, an additional meeting on the date of the murder, is certain to inspire assumptions by the jury that Kline cannot control.

“For that limited purpose,” says Radovich, “the witness may testify. But keep it tight,” he tells me.

I look at Franks on the stand. “Right.”

We back off. I see Acosta is sitting next to Harry at the table questioning him as to what is going on.

For all that she is not here in court today, Lenore is now increasingly at the center of our case.

It was as much tactics as loyalty that has kept me from calling her into court. What Kline thinks she knows, or has, is now his darkest dream, what I would not wish on anyone except an adversary at trial, something to keep him awake with angst in the night.

Without Lenore, I have had to back-fill and jury-rig to figure some way to get at the note that Lenore removed from Hall’s calendar, the fact that at some point the victim and Tony Arguillo had scheduled a date for that night. It is the reason for Franks’s appearance here today.

We do the thing regarding his credentials. This takes only a moment.

Kline wants to voir dire the witness as to expertise. He is allowed to ask several questions, and when he is finished he objects to the witness.

“He does not qualify as an expert. Not in the field of paper and impressions,” says Kline.

We get into an argument over this.

Franks has attended two seminars on the subject, one of them five years ago. He has dabbled, though he cannot tell the court that he has ever testified previously concerning the topic of indented writings.

Radovich cuts us off. He asks the witness a few questions of his own regarding his background and the technique of identifying impressions in paper. He finally concludes that the issue, the existence or nonexistence of indented writings, does not involve high science.

“If he were going to testify on the content I might agree,” he tells Kline. “But in this case, it’s a matter for the jury in ascribing the weight to be given to the witness’s testimony.”

Kline is not happy but he sits down. Franks hasn’t said a word and he is already mired in controversy.

“Mr. Franks, can you tell us whether you examined a calendar made available to you by the police at my request?”

“I did,” he says. “And I found-”

“Just answer the question.” I cut him off. Franks would like to cut to the chase, collect his fee, and get out.

I have the calendar brought over from the evidence cart, and Franks identifies it as the one he examined. I flip it open to July and place it on an easel in front of the jury, back far enough so that they would need binoculars to dwell on the incriminating note with Acosta’s name.

“I call your attention to July fifteenth and ask whether you specifically examined the calendar block, the white portion or space for that date on this calendar?”

“I did.”

“Can you tell the jury what type of examination you performed?”

“I was requested to examine the calendar for the date in question, to determine if there was any evidence of writings not otherwise visible. Indented or impressed writing.”

“And what is this, ‘indented writing’?” I ask.

“These are impressions or fragments of impressions left on a piece of paper by the pressure of writing on a sheet that was placed over it at one time and later removed.”

“Like successive pieces of paper on a pad?”

“Yes.”

“Were you able to determine the existence of such impressions on the calendar in question for the date of July fifteenth?”

“I was,” he says. “There appeared to be impressions of handwriting.”

“And were these decipherable?”

“Objection. Hearsay,” says Kline.

“The question was whether this intended writing was readable, not what it said.” I turn on him, and Radovich tells me to direct any argument to the bench.

“The witness can answer the question yes or no,” says the judge.

“Yes,” says Franks.

“The note was readable?”

“Yes.”

I turn away from the podium for a moment, considering ways to nibble at the edges.

“In examining the calendar, was there any way to determine what kind of paper the original note might have been written on, the paper that was removed?”

It always helps when you know what the evidence is before you go looking. Franks and I have worked on this. I told him what it was, and he contrived methods to discover it.

“There is some indication,” he says.

Kline is getting antsy.

“And what was that?”

“Examination under a microscope revealed the existence of some very fine mucilage.”

He loved the word and had to put it in, told me that it provided credibility.

“This mucilage was on the surface of the calendar for the date in question.”

“Mucilage?”