TEMPLETON: Uh, forty-four.
JAYWALKER: In other words, thirteen years older than the oldest fill-in, eighteen years older than the average of their ages, and twenty-one years older than the youngest.
TEMPLETON: If you say so.
JAYWALKER: Would you like a moment to do the math?
TEMPLETON: No.
JAYWALKER: I ask that this photograph be marked for identification as Defendant's Exhibit A at the hearing.
(Exhibit marked for identification)
JAYWALKER: Do you recognize the photo?
TEMPLETON: I do.
JAYWALKER: How do you recognize it?
TEMPLETON: I took it.
JAYWALKER: Does it fairly and accurately depict the lineup that Mr. Testigo viewed?
TEMPLETON: It does.
JAYWALKER: I offer it into evidence.
KAMINSKY: Objection.
THE COURT: You're objecting to a photo of the lineup?
KAMINSKY: Yes.
THE COURT: On what basis?
KAMINSKY: I'll withdraw the objection.
THE COURT: Received as Defendant's A.
(Exhibit marked in evidence)
JAYWALKER: Taking a look at Defendant's A if you need to, do you recall the colors of the pants the men in the lineup were wearing?
TEMPLETON: Five were wearing gray pants, and one was wearing tan pants, I guess.
JAYWALKER: And the name of the one wearing tan pants?
TEMPLETON: Carter Drake.
JAYWALKER: And those five pairs of gray pants. Did they by any chance have a pair of contrasting stripes run ning down the full outer length of them?
TEMPLETON: Yes.
JAYWALKER: All five of them?
TEMPLETON: Yes.
JAYWALKER: Ten stripes?
TEMPLETON: Yes.
JAYWALKER: How about the shoes?
TEMPLETON: The five troopers are wearing regulation dress boots.
JAYWALKER: What color?
TEMPLETON: Black.
JAYWALKER: And Mr. Drake?
TEMPLETON: Looks like brown loafers, with tassels.
THE COURT: Anything else, Mr. Jaywalker?
There were times when such an interruption by a judge would anger him to the point where he'd not only say 'Yes, as a matter of fact,' but continue for another twenty minutes, long after he was out of questions. But this interruption was different. It meant Justice Hinkley had heard enough and was prepared to suppress the lineup.
'No,' said Jaywalker. 'I have nothing else.'
But David Kaminsky did. Smart enough to realize where things were going, he excused Investigator Templeton and called Concepcion Testigo to the stand, in order to redirect his focus to the second prong of the hearing, whether or not the taint from the suggestive lineup would infect the witness's identification of the defendant at trial, requiring that to be excluded, as well.
But in the process, he'd be forced to give Jaywalker the free look at the eyewitness he so wanted.
Testigo strode into the courtroom easily. He was a construction worker by trade, a guy who made his living with his hands, framing walls. He didn't strike Jaywalker as a man with an agenda, or one who was overly impressed with his role in the drama. In other words, he was likely to be a good witness.
Kaminsky spent only a few minutes on preliminaries, knowing that the less ground he covered, the less Jaywalker would be permitted to go over. Then he got to the point.
KAMINSKY: Tell me, Mr. Testigo. As you sit here now, looking at Mr. Drake, where do you remember seeing him from, the lineup or the scene of the crime?
JAYWALKER: Objection.
THE COURT: Overruled. There's no jury here. I assure you, I'm not going to be swayed by the phrase scene of the crime.
JAYWALKER: That's good to know, Your Honor. But that's not the basis of my objection.
THE COURT: What is it, then?
JAYWALKER: May we approach?
THE COURT: Come up.
(At the bench)
JAYWALKER: Counsel has improperly made the question an either-or exercise. By doing so, he's committed the logical fallacy called e xcluding the middle. The witness's recollection might be based upon neither the lineup nor the accident scene, but upon something else entirely. Or upon both of those things, in combination. Or upon THE COURT: The objection is sustained. Rephrase the question, Mr. Kaminsky. Leave out the choices.
(Back in open court)
KAMINSKY: Exactly where do you remember Mr. Drake from?
TESTIGO: I remember him from the crash site, where I saw him force the van off the road.
KAMINSKY: Is there any doubt in your mind?
TESTIGO: As to what?
KAMINSKY: That he was the one who forced the van off the road.
TESTIGO: No.
KAMINSKY: Or that that's where you remember him from?
JAYWALKER: Objection. Leading.
THE COURT: Overruled. You may answer.
TESTIGO: No, no doubt at all.
As soon as Jaywalker heard the answer, he knew he could forget about any victory celebration. Justice Hinkley would hang her hat on Testigo's answer and permit him to point Drake out at trial as the one who'd run the van off the road. Still, he was determined to make it as hard as he could for her, and in the process nail the witness down on some details. He started where Kaminsky had left off.
JAYWALKER: Tell me, Mr. Testigo. That question that Mr. Kaminsky put to you, about where you remember my client from. Is this the first time you've heard it asked?
TESTIGO: Yes.
JAYWALKER: Are you sure?
Even as he asked the question, Jaywalker was fishing through one of the three cartons Abe Firestone had dumped on him five months earlier, and extracting a document. It happened to be a photocopy of an obscure subsection of the Vehicle and Traffic Law, something about a right turn being permitted at a steady red light after a full stop outside a municipality with a population not in excess of a million people. But the witness had no way of knowing that.
TESTIGO: Yeah, I'm sure. I mean, we may have talked about it.
JAYWALKER: We?
TESTIGO: Me and Mr. Kaminsky. And Mr. Firestone, I guess, once or twice.
JAYWALKER: So you talked about it on a number of occasions. Right?
