KAMINSKY: Was the defendant represented at that point?
TEMPLETON: Represented?
KAMINSKY: Did he have a lawyer yet?
TEMPLETON: Yes. (Refers to his notes) He'd been accompanied by an attorney named Chester Ludlow at the time he surrendered and was taken into custody.
Good, thought Jaywalker. At least the witness wasn't going to pretend that he wasn't aware there was a lawyer in the picture. That meant they'd had an affirmative duty to notify counsel and give him an opportunity to attend.
KAMINSKY: Prior to conducting the lineup, did you notify Mr. Ludlow that you were about to do so?
TEMPLETON: Yes. I placed three calls to Mr. Ludlow's office, the first at 1705 hours, the second at 1845, and the third at 1901. In civilian time, that would be 5:05, 6:45 and 7:01 p.m.
KAMINSKY: And did you ever get to speak with Mr. Ludlow?
TEMPLETON: Yes. Mr. Ludlow finally called me from his home at 2014, or 8:14 p.m. He said he didn't expect to stay with the case, and had no intention of driving back up to New City for any- May I quote him?
KAMINSKY: Yes.
TEMPLETON: For any fucking lineup.
Great, thought Jaywalker. The guy bills at seven hundred and fifty dollars an hour, but he's too lazy to hop in his car, take a drive and watch what goes on. Or to get some paralegal or first-year associate to show up for him. Then again, it's just the only eyewitness we're talking about here, and it's nothing but a run-of-the-mill, nine-victim murder case.
God, how he hated lawyers.
KAMINSKY: Did you conduct the lineup anyway?
TEMPLETON: Yes, I did.
KAMINSKY: Please tell us how you went about it.
Templeton described how he'd been unable to round up 'civilians' at that time of evening. So he'd recruited five fellow troopers. He'd had them remove their hats, holsters and weapons, and change out of their uniform shirts into civilian shirts or jackets. Then he'd placed them in the 'suspect room,' in front of a one-way viewing mirror. Once the defendant had been brought into the suspect room by another trooper, Templeton had directed him to select whichever position he wanted to stand in, from 1 to 6. When Drake had picked 5, he'd been given a large placard with that number on it, to hold against his chest. The five fill-ins had been given similar placards, 1 through 4, and 6.
KAMINSKY: What did you do next?
TEMPLETON: I left the suspect room and went around to the viewing room, where I met Mr. Testigo, the witness.
KAMINSKY: Was this the first time you'd met him?
TEMPLETON: Yes.
KAMINSKY: What time was it?
TEMPLETON: It was 2033, or 8:33 p.m.
KAMINSKY: Did you have a conversation with him?
TEMPLETON: I did.
KAMINSKY: What did you say, and what did he say?
TEMPLETON: I told him that when the shutters were opened he'd be looking at a lineup of six individuals. That he'd be able to see them, but they wouldn't be able to see him. That he could take as much time as he needed to look at them. And then I'd be asking him two questions. Did he recognize any of them? And if so, where did he recognize him from? I asked him if understood, and he said yes.
It was textbook stuff, Jaywalker knew. First, in allowing the suspect to pick his own number, Templeton had eliminated the appearance that the lineup had been rigged. Then, by keeping Templeton and Testigo isolated from each other until the lineup, the troopers had avoided the possibility that the investigator might infect the witness's choice, either intentionally or inadvertently. Next, by limiting the questions that Testigo would be asked, Templeton had eliminated any suggestiveness that might otherwise have seeped in. ('Are you sure?' 'Take a good look.' 'Remember, the guy might be dressed differently now, or have shaved since the other day.' And, all else failing, good old 'How about number five?')
Finally, although a few controlled studies had shown that sequential lineups-in which the witness looked at only one individual at a time-produced fewer false identifications than old-fashioned simultaneous lineups, they also produced fewer true identifications. Shown six people, one after the other, witnesses often failed to pick out any of them. Shown the same six together, they were more willing to choose the one who most resembled the perpetrator. Give the average person a multiple-choice question, and he'll take a guess, educated or not. But in spite of those studies, the vast majority of police departments still clung to the old model. And judges, who are never to be confused with innovators, uniformly went along.
KAMINSKY: What happened next?
TEMPLETON: I opened the shutters and gave Mr. Testigo an opportunity to view the lineup. After a second or two, he said, 'Okay.' I asked him if he recognized anyone, and he said, 'Yes, number five.' I asked him where he recognized him from, and he said, 'He was the guy who was driving the Audi.'
On cross-examination, Jaywalker spent a few minutes getting some more specificity from Templeton regarding Chester Ludlow's refusal to show up for the lineup. He'd already dispatched Nicolo LeGrosso to serve a subpoena on Ludlow, more out of spite than anything else. It wasn't that he doubted Chet had opted out. That, Jaywalker knew, was fully in character. But he wondered if Ludlow's sheer indifference might not have risen to the level of ineffective assistance of counsel, an issue for an eventual appeal. Beyond that, there was the poetic justice of it. Eight months ago, Ludlow couldn't be bothered to make the trip, even though it would have meant picking up a couple thousand dollars for his time. Let him see how he liked doing it now, for nothing.
From there, Jaywalker turned to the composition of the lineup itself.
JAYWALKER: Let's talk about the fill-ins you selected, okay?
TEMPLETON: Okay.
JAYWALKER: You say they were all fellow troopers?
TEMPLETON: That's right.
JAYWALKER: And that's because it was too late in the day to find civilians?
TEMPLETON: Correct.
JAYWALKER: What time was it when you were first told to conduct the lineup?
TEMPLETON: May I check my notes?
JAYWALKER: Sure.
(Witness reviews report)
TEMPLETON: It was 1645 hours, 4:45 p.m.
JAYWALKER: And the streets were empty?
(No response)
JAYWALKER: Where did you go to look for civilian fill-ins?
TEMPLETON: Where did I go?
JAYWALKER: Yes.
TEMPLETON: Nowhere.
JAYWALKER: Nowhere?
TEMPLETON: Nowhere.
JAYWALKER: And despite going nowhere over the next four hours, you still weren't able to find anyone?
KAMINSKY: Objection.
THE COURT: Sustained. I get the point, Mr. Jaywalker. Let's move on.
JAYWALKER: All right. Can you tell us the ages of the troopers you used as fill-ins?
TEMPLETON: I'd have to read from my notes.
Jaywalker, who by this time had copies of the witness's notes, photos of the lineup and several pounds of additional documents, invited him to read away.
TEMPLETON: Their ages were twenty-four, twentythree, thirty-one, twenty-five and twenty-seven.
JAYWALKER: And the defendant was how old at the time?
