William Bernhardt - Blind Justice

“Harmless,” Ben whispered to Christina. “Nothing in his testimony establishes sufficient cause to hold you over for trial.”

Moltke continued his direct examination. “Did Ms. McCall say anything as you arrested her?”

“Yes.” Abshire looked up at the magistrate. “She said, ‘I killed him.’ ”

There was an unmistakable reaction from the gallery, audible for all its silence.

Ben pressed close to Christina’s ear. “Is that true?”

“I’m not sure. I remember saying something, but it didn’t happen like that.”

“No more questions,” Moltke said, stepping down.

“Very well.” Gould turned toward Ben. “Any cross?”

Ben was trying to understand what Christina was whispering in his ear. “Just a moment, sir.”

“It’s now or never, counselor.”

“Then I guess it’s now.” Ben went to the podium. “Agent Abshire, did you see Ms. McCall fire the gun?”

“No.”

“Did you even see her holding the gun?”

“I’m not sure.”

“Agent Abshire, can you swear under oath that you saw Ms. McCall holding the gun?”

He frowned. “No.”

“You did not come into the apartment until after the crime was committed.”

“True.”

“When you searched Ms. McCall, did you find a gun on her person?”

“No.”

“Or any other weapon?”

“No.”

“Did you find any drugs or other illegal substances?”

“No.” He glanced at Moltke. “ I didn’t.”

What was that supposed to mean? “And that self-serving hearsay statement you repeated, what was the context of the statement?”

“I’m…not sure I understand you.”

“Well, didn’t you first accuse Ms. McCall of killing Lombardi?”

He shifted his weight slightly. “I may have said something to that effect.”

“Did she seem to comprehend your question?”

“She sure as hell didn’t deny it.”

“Please answer my question.”

“She confessed right there in my face.”

“Isn’t it true she merely repeated your words?”

“Look, if she wasn’t guilty, all she had to do was say so.”

“Please answer the question.”

“But instead, she says ‘I killed him.’ Now if that isn’t a confession, I don’t know what is.”

“Magistrate, please instruct the witness to answer my question.”

“It’s your job to control the witness on cross-examination, counselor. But I will instruct the witness to listen carefully to the question and try to be more responsive.”

“I’m sorry, sir,” Abshire said contritely.

“I’m sure you are. Proceed.”

“Agent Abshire, would it be fair to say that your comment, whatever it was, provoked Ms. McCall’s statement?”

“Cards-on-the-table time? No, I didn’t make her say anything. Maybe her own guilt did—”

“Move to strike the last remark. Agent Abshire, she didn’t just start babbling out of the blue, did she?”

“I don’t exactly remember.”

“She was responding to what you said.”

“I suppose.”

“In other words”—Ben paused—“you had begun questioning her.”

Abshire drew back. He was beginning to see where they were headed. “I wouldn’t say that.”

“Had you read Ms. McCall her rights yet?”

“Well…” He licked his lips. “Not yet. We hadn’t had time.”

“You had time to initiate a conversation. One designed to elicit…what were your own words?…a confession. Sounds like a Miranda problem to me.”

Moltke rose to his feet. “Magistrate, I object. If we’re going to have legal argument, it should be addressed to the court, not a witness.”

“That will be overruled, Mr. Prosecutor. He’s entitled to explore the legalities surrounding this alleged confession, to determine the full extent of the taint created by this apparent Miranda violation. Unless,” he added significantly, “you wish to withdraw that testimony.”

Ben watched the magistrate stare down Moltke. The choice he was offering was clear. Withdraw the testimony, or risk a ruling that a custodial interrogation took place prior to reading Christina her rights, a violation that could conceivably make all their evidence to date inadmissible. No choice at all, really. Moltke would have to confer with Abshire later to determine the gravity of the problem and plan a course of action for the trial. But he couldn’t run the risk now.

“We’ll withdraw the testimony, sir. For the purpose of this hearing only, of course.”

Why not? Having heard the testimony, the magistrate would remember it, withdrawn or not. He might not decide the case based upon it, but he couldn’t possibly put it out of his mind.

Round one was a draw.

There was nothing duller than forensic testimony. Autopsies, fabrics, fibers, blood types. All sure-fire yawn inducers. Gould had been tapping his pen for ten minutes, a certain sign that this testimony had gone too long.

The investigating officer droned on. “We then proceeded to examine the room for dactylograms.”

“I beg your pardon?” Moltke said.

“Fingerprints.”

“Ah. And you didn’t find the defendant’s fingerprints on Lombardi’s body, did you?”

“No, I did not.”

“And you didn’t find her fingerprints in the bloodstains?”

“No, I did not.”

“Well, I guess that looks pretty good for the defendant.”

Ben’s head jerked up. Cheap theatrics were almost certainly a prelude to something Moltke thought was important.

“It seems like I’m forgetting something,” Moltke said. He snapped his fingers. “Oh, yes. I know what it was. I wanted to ask you, Officer—did you find any fingerprints on the gun ?”

“Yes, sir, I did.”

“And whose fingerprints were they?”

“They were the defendant’s.”

“Are you sure?”

“Absolutely positive. We discovered two crystal clear latents. Thumb and forefinger.”

Ben cupped his hand over Christina’s ear. “Did you pick up the gun?”

“ ’Fraid so, pal.”

This was bad news. Although still circumstantial, eventually even circumstantial evidence could suggest only one reasonable conclusion.

Ben suddenly realized the magistrate was trying to get his attention. “I asked, will there be any cross-examination?”

“No, sir,” Ben said. He glanced at Christina and shrugged. There was no point.

Round two went to the prosecution.

Ben hoped that was the end of it. The gun evidence wasn’t helpful, but it was far from conclusive. There was still a chance he could get the charges dismissed.

“Any further witnesses?” Gould asked.

“No, sir. The prosecution—”

Moltke stopped mid-sentence. One of his junior assistants jabbed his arm, then pointed to the rear of the room, where a man in uniform stood.

“Magistrate,” Moltke said, “may I have a brief recess to confer with a possible witness?”

“I’ll give you two minutes,” Gould said.

Moltke walked to the back and talked with the officer. Ben tried to read lips or pick up some hint of what they were discussing, but it was impossible.

Just before his time elapsed, Moltke returned to the podium. He seemed energized. Even worse, he was smiling.

“Magistrate Gould, the government wishes to call one more witness.”

“Very well. Get on with it.”

“The United States calls Officer John Tompkins.”

Officer Tompkins, a ruddy, well-scrubbed officer in middle age and middle paunch, took the stand. Moltke made a cursory run through his credentials, principally his years on the Tulsa police force. Moltke appeared eager to move on.

“What was your first assignment when you reported to work this morning, Officer?”