The Underground Man

When Joseph Bissel had been seated on the witness stand, Steve Winslow stood up. Before he crossed in to the witness, he looked at the jury. He could read the answer on their faces, and it was just as he’d expected. Any attempt on his part to brow-beat this helpless man and break down his identification was going to alienate them all.

In the back of the courtroom, Tracy Garvin could read the situation too. Joseph Bissel’s identification of Jeremy Dawson was shaky at best. Jeremy Dawson in court was a clean-cut kid in a suit, and Joseph Bissel had seen a punk with green hair. Joseph Bissel didn’t know the day or the time of the occurrence, so in all likelihood he had been drinking, which was something Steve had a legal right to bring up. But if he did, he’d lose the jury.

So what the hell could Steve do?

Steve Winslow took a moment to refer to his notes. Then he straightened up, crossed in to the witness, and smiled. “Good morning, Mr. Bissel.”

“Good morning, sir.”

“You testified yesterday, Mr. Bissel, that you saw Jack Walsh in the 66th Street subway station on February 26th, is that right?”

“I don’t know if it was the 26th. I only know it was the day of the fire.”

Steve nodded. “That’s fine, Mr. Bissel. I appreciate your frankness. Now, you also stated that Jack Walsh had someone with him at that time. Is that right?”

“Yes, it is.”

“And I believe you also stated that that person was my client, Jeremy Dawson. Is that right?”

“Yes, it is.”

“Did you also state that the person in the subway station had green hair?”

“Yes, I did.”

Steve turned and indicated Jeremy Dawson. “My client does not have green hair now. So obviously you are not identifying him by his hair. Mr. Bissel, can you tell me how it is that you’re certain it was my client that you saw with Jack Walsh at that time?”

Bissel nodded. “The hair is different, but the face is the same. I’ve always had a good memory for faces. Some people do and some people don’t. But I’ve always been good that way.” He raised his finger to point. “And that is the face of the man I saw.”

“Thank you,” Steve said. “One moment, Your Honor.” He turned and crossed to the defense table, picked up a manila envelope and pulled out the eight-by-ten photographs. “Your Honor, I ask that these pictures be marked for identification as Defense Exhibits A one through five.”

“One moment, Your Honor,” Dirkson said. “May I see those?”

“Certainly,” Steve said. He passed the photos over.

Dirkson took a look at the photographs. His face flushed. “Your Honor, I object.”

Judge Grimes smiled. “You can’t object to him marking them for identification.”

“I know, Your Honor. I object to him showing them to the witness.”

“The objection is overruled. Counsel may show the witness anything he likes.”

“But-”

Judge Grimes held up his hand. “That will do, Mr. Dirkson.”

The court reporter marked the photographs.

Steve Winslow took them and approached the witness. “Mr. Bissel, you have stated that you recognize Jeremy Dawson as being the person you saw in the subway station with Jack Walsh, that his hair was cut in a green mohawk at the time, but that you recognize him anyway because you are very good with faces. Is that right?”

“Yes, it is.”

“I hand you five eight-by-ten color photographs of young men with green hair, and ask you if you can look them over and tell me which one of them is the man you saw in the subway station.”

Dirkson lunged to his feet. “Your Honor, I object.”

Judge Grimes frowned. “On what grounds?”

“On the grounds that this is not a proper test. Those photographs have all been carefully staged. They are all young men with green hair, and they have all been shot at exactly the same light at exactly the same angle.”

“Of course they have, Your Honor,” Steve said. “Otherwise, it would not be a fair test.”

“It is a test designed to confuse the witness, Your Honor.”

“I beg your pardon,” Steve said. “Your Honor, I object to the prosecutor characterizing what I am trying to do.”

Dirkson’s angry retort was cut off by Judge Grimes’s gavel. “That will do. The objection is overruled. The witness will answer the question.”

“Thank you, Your Honor,” Steve said. “Now, Mr. Bissel, if you’d just look at the pictures and tell me if you recognize the man you saw in the subway station with Jack Walsh.”

Joseph Bissel leafed through the pictures, looked closely at each one. On his second time through the stack he stopped and pointed to a picture. “That’s him,” he said. “That’s the one.”

Steve Winslow leaned forward, picked up the picture, held it up in front of the witness. “This one, Mr. Bissel?”

“Yes, sir. That’s him.”

Steve turned with a big smile on his face. “Let the record show that the witness has identified the picture marked for identification as Defense Exhibit A-2.” Steve turned back to the witness. “Thank you very much, Mr. Bissel. No further questions.”

Dirkson lunged to his feet. His face looked murderous. “All right, all right,” he said. “Let me see those pictures.” He snatched the pictures, found the one marked A-2. He turned it over, looked at it, clenched his fist. He turned to the witness. “Mr. Bissel,” he said ominously, “you are now stating that the man you saw in the subway station with Jack Walsh is the young man in this picture?”

Joseph Bissel cringed slightly. He seemed surprised and hurt at this unexpected attack from a supposed ally. “Yes, sir,” he said. “That’s him.”

“I want you to look at the picture again. In fact, I want you to look at all the pictures again. And tell me if you can identify any of them as being the man you saw in the subway station. In fact, whether you can even tell one picture from the other.”

“Objection, Your Honor,” Steve Winslow said. “Counsel is brow-beating the witness. Mr. Bissel has already made his identification.”

“Mr. Bissel was tricked into making his identification,” Dirkson snapped. “These photographs are a trick on the part of Counsel, and are totally unfair.”

“Your Honor,” Steve said. “Joseph Bissel strikes me as an exceptionally competent witness, and I would certainly trust his judgment. I’m not sure I understand. Is the District Attorney taking the position that Joseph Bissel can’t identify the person he saw in the subway station?”

“No, I am not,” Dirkson said. “Your Honor, I charge the defense attorney with misconduct.”

“Misconduct, Mr. Dirkson?”

“Yes, Your Honor. Counsel specifically asked the witness which one of these pictures was of the man he saw in the subway station. That was an improper statement designed to deceive the witness into believing one of the pictures he was going to see would be of that man. When in point of fact, Your Honor, none of these pictures Counsel has shown the witness is of the defendant, Jeremy Dawson. I assign his asking the question as misconduct.”

“And I assign that statement as misconduct,” Steve said. “Your Honor, the prosecutor is making prejudicial statements in the presence of the jury. In an attempt to belittle the testimony of this witness, he is making statements of fact that are not in evidence. I ask that you cite him for misconduct.”

Judge Grimes banged the gavel. “That will do. Not another word from either of you. Mr. Dirkson, your remarks were out of order. I ask you to remember yourself, particularly in the presence of the jury. Now, with regard to your objections to this particular test, they are overruled. The witness has testified, and that testimony is in the record. If you would like to take exception to that testimony, if you would like to try to impeach the witness, you may do so by cross-examination. But that is your only remedy at the present time.