“And your words removed her fear.”
“Objection,” said the prosecutor. “How would the witness know what was in the victim’s head?”
“Your Honor, based on his own perception, Sergeant Paulo just testified that the victim was too scared to talk. I’m entitled to an answer, again based on his own perception: Did his words allay her fears?”
“I strongly object,” said the prosecutor.
The judge frowned with thought. “There’s no jury here. I’ll allow it. The witness may answer.”
Vince considered it, then said, “I’m sure it helped.”
It wasn’t a perfect answer, but this was unpleasant work for Jack, and he had pushed Vince as far as he cared to push.
“Your Honor, at this time…”
His voice halted, and Jack was suddenly at war with himself. Again, he glanced over his shoulder. What if Jamal is guilty?
The question gnawed at his soul, but Jack fought through it, reminding himself that he wouldn’t have come this far if Jamal hadn’t passed a polygraph examination. If McKenna’s own father hadn’t expressed doubts about Jamal’s guilt. If the government hadn’t pushed back so hard against Jamal’s alibi. If the witness who had flown all the way from the Czech Republic to support the alibi hadn’t died so mysteriously at Lincoln Road Mall.
If the message scrawled on Jack’s napkin hadn’t read “Are you afraid of The Dark?”
“At this time,” Jack continued, “the defense moves to exclude the answering machine recording as hearsay.”
The prosecutor was on his feet. “It’s admissible as a dying declaration,” he said, noting one of the oldest exceptions to the hearsay rule.
Jack said, “The premise underlying a dying declaration is that a victim of a violent crime has no reason to lie about the identity of her attacker if she knows that she is about to die. The key concept is that she must know-or at least believe-that death is imminent. The opposite is true here. Sergeant Paulo told her repeatedly that she was not going to die.”
“To put her at ease,” said the prosecutor.
“Precisely my point,” said Jack. “Sergeant Paulo testified that the victim was so scared that she couldn’t even speak. After he told her three times that she was not going to die, she was able to name her attacker. Clearly, she did not believe her death was imminent-or even likely.”
The judge seemed troubled. The prosecutor was clearly worried.
“Judge, we-” said the prosecutor, but the judge cut him off.
“Hold it, Mr. McCue. I’m thinking.”
Jack glanced at Neil, who looked almost as surprised as Jack. This was a long shot that had played out much better than either of them had anticipated.
The judge asked, “What is left of the government’s case against Mr. Wakefield if this recording is excluded?”
“Virtually nothing,” said Jack.
“That’s not true,” said the prosecutor.
The judge asked, “Is there any physical evidence linking the defendant to the commission of the crime?”
“None,” said Jack.
“It burned in the fire,” said the prosecutor.
“It never existed,” said Jack. “My client was in a detention facility in the Czech Republic at the time of the crime.”
The Justice Department lawyer was suddenly yanking at the prosecutor’s sleeve, and the two of them huddled into an intense exchange of whispers. The judge leaned back in his chair until he was staring up at the ceiling tiles, retreating even deeper into thought.
“Judge, we’d like a recess,” said the prosecutor.
“I’m in the middle of my examination,” said Jack.
The judge ignored the exchange between the lawyers, rocking in his chair and thinking aloud. “If I rule this recording inadmissible,” he said, “I would imagine the defense will be filing a motion to dismiss the indictment.”
“That would be correct,” said Jack.
That sent the prosecution scrambling. “Judge-”
“Quiet, Mr. McCue.”
“Judge,” said the prosecutor, “I have an announcement. The state of Florida withdraws its objection to the release of Mr. Wakefield on bond.”
The judge seemed poised to rebuke him for the sudden change of position, but he quickly appreciated that his own butt was off the hook. Throwing out McKenna’s dying declaration would have been front-page news-and letting accused murders go free was generally not a career-enhancing move for an elected state court judge.
“That certainly changes things,” said the judge.
Smart move, thought Jack. The government was better off letting Jamal out of jail on pretrial release than digging in its heels and losing the entire case at a bail hearing.
“We would ask for release on the prisoner’s own recognizance,” said Jack.
“Bail should be set at one million dollars,” said the prosecutor. “And Mr. Wakefield should be required to wear a GPS tracking bracelet.”
“A tracking device seems like a reasonable request in a case of first degree murder,” said the judge. “But a million dollars? Really now. Anything further from the defense?”
Jack knew when to cut and run. “No, Your Honor.”
“Bail is set at seventy-five thousand dollars,” said the judge. “The prisoner is to be released on the condition that he remain in Miami-Dade County and wear an ankle bracelet at all times. The witness is dismissed. We’re adjourned.”
With a bang of the gavel and bailiff’s announcement-“All rise!”-the judge started toward his chambers.
Jack looked at Vince. He was frozen in his chair, as if he were reliving McKenna’s funeral, so distraught that the bailiff’s command to rise probably hadn’t even registered. As Jack started back toward the defense table, Alicia caught his eye. She was on the other side of the rail in the first row of public seating behind the prosecution. Her stare was deadly. She moved to the defense side of the courtroom, came to the rail, and practically leaned over, leaving just a few feet between her and Jack.
“Shame on you,” she said.
Jack could find no response. It wasn’t the foulmouthed vitriol he might have gotten from other cops or their wives, but that only made it worse.
“Shame on you,” she said, and it was even worse the second time. She walked to the center of the rail, pushed through the low swinging gate, and went to her husband on the stand.
Neil laid his hand on Jack’s shoulder. “That was a great piece of lawyering, my friend. I’m proud of you.”
The words were lost on Jack. His client attempted to shake his hand in gratitude, but Jack’s gaze was fixed on the witness stand. Vince was still in a state of shock, his wife trying to console him.
At that moment, Jack hated his job.
Chapter Twenty-four
For the first time in three years, Jamal Wakefield was a free man.
His mother had come up with the 10 percent fee for F. Lee Bail-me Inc.-the only bail bondsman in Miami with a sense of humor-to post the $75,000 bond. It was just pretrial release, and he was a long way from an acquittal, but that was not going to spoil his Saturday night on South Beach. A 5.3-ounce Omnilink ankle bracelet was a small concession in the big scheme of things. Some chicks might even think it was cool. Jamal the bad boy. Computer genius. Smarter than the losers in law enforcement who monitor ankle bracelets. Smarter than the guy who invented the damn device. Smarter than the interrogators who had thought barking dogs and waterboarding would make him talk. Smarter than Vince Paulo, the prosecutors, and his defense lawyers put together. Smarter than
