word “fable,” but the judge would jump on him.
“First of all, they didn’t tell me to do it. They asked me, and I said yes.”
“So you were anxious to come here today and testify?”
“No. I can’t say I’m enjoying the experience,” she says.
Some of the members of the jury laugh.
“But if that’s the case, why are you here instead of Mr. Diggs? He saw the same things you did, didn’t he?”
“Not exactly,” she says. “Mr. Diggs didn’t find the envelope on the floor. I’m not a lawyer,” she says, “but I didn’t think he could testify to that. Could he?”
Quinn’s chuckling up on the bench, and then he whispers, “You may not be a lawyer, but you’re doing fine.” He looks at the court reporter and wags a finger. He doesn’t want the comment on the record.
“Well, other than the economy of witnesses,” says Tuchio, “was there any other reason Mr. Diggs couldn’t testify here today? I mean, you certainly could have taken the stand and told the jury how you found the envelope, but the rest of it, why not use Mr. Diggs?”
“Why bother, since I’m here already?” she says.
“Mr. Diggs is the African American investigator in your office, isn’t he?”
“That’s correct.”
“Well, wouldn’t it be more natural for an investigator-who sees things, investigates matters, and I assume who testifies regularly in court-to appear here today to tell us what he saw rather than a paralegal? And believe me,” he adds, “I’m not trying to denigrate what you do for a living. We have paralegals in our office, and without them we couldn’t survive. But why you and not the investigator, that’s what I want to know.”
“I don’t know,” she says. “Maybe he was busy.”
“Ah,” he says. “Too busy to testify in the biggest case in their office?” He looks over at our table, then back to the jury box.
“I don’t know,” she says. “All I know is that they asked me if I was willing to do it, and I said yes.”
“Is it possible that they-by ‘they’ I mean Mr. Madriani and Mr. Hinds-may have asked Mr. Diggs to testify here today and that Mr. Diggs declined?”
“What would make you think that?” she says.
“I get to ask the questions. You get to answer them,” says Tuchio. “Is it possible that Mr. Diggs declined to testify?”
“No,” she says.
“Do you know that to be a fact?” he asks.
“Well, no, I don’t know it, but I know Herman-”
“So you haven’t discussed this with Mr. Diggs, whether they asked him to testify here today and what he may have said?”
“No. We’ve been busy,” she says.
Tuchio can be sure that this was a tactical decision made by Harry and me. He could also be certain that we wouldn’t share the rationale for this decision with Jennifer, for the very reason that if he asked her on the stand as he has, she would be able to say truthfully that she didn’t know why she was here instead of Herman. Why force your witness to tell jurors to their face that you’re trying to manipulate them?
Besides the fact that she discovered the envelope on the floor, something Herman couldn’t testify to, is the simple fact that with a majority of women on the jury, she is the sympathetic witness, a woman on the stand testifying before women on the jury. Tuchio would have to use more restraint in the manner in which he attacked her on cross.
So now he feels free to damage us in other ways, planting the false seed, the innuendo, that perhaps Herman knew something, maybe about the way in which the letter and the hairs arrived at our office, and that therefore he either declined or was not permitted by Harry and me to testify.
When I look over, Harry is already working his cell phone under the table, sending a text message to Herman, telling him to come on over and join the party.
“Since you’re not sure about the answer to that one, let me ask another question,” says Tuchio. “When Mr. Madriani opened the envelope on his desk that morning-Monday, I believe-I think you testified that he pulled the bloody letter out of the envelope with a large pair of tweezers, not his hand, is that correct?”
“That’s right.”
“Why did he do this?”
Jennifer gives him a quizzical look. “I don’t understand the question.”
“What I mean is, when you open an envelope, don’t you usually just reach in and take out whatever’s inside? I mean, unless you think there’s a bomb, or a snake, or a bloody letter in there, why would you go and get a pair of forceps before you even reached inside with your hand?”
“I think I testified that he did reach inside,” she says.
“But he didn’t take it out, not with his hand, did he?”
Jennifer hesitates.
“Did he?” he says. Tuchio knows I didn’t, because my prints were not on the letter when the crime lab examined it.
“No. I think he may-”
“You’ve answered the question,” he says. “The answer is no. So let me ask you a different question.” He’s starting to get into a rhythm. “I know you’re not a lawyer,” he says. “But you have worked on this case, right?”
“To some extent.”
“You know what it’s about, most of the evidence, right?”
“Some of it.”
“Well, you know about the mysterious missing item?” As he says this, Tuchio turns and looks back at me.
When she doesn’t answer, he looks back to her. “The bloody letter?” he clarifies it for her.
“Yes.”
“And the hair evidence, the strands of hair in the bathroom and on the chair at the scene.”
“I know what I’ve read in the papers,” she says. Jennifer’s getting cautious now.
“That would be enough,” he says. “If someone wanted to plant evidence-say, slip it under a lawyer’s door, an item that was taken from the scene of a murder in order to show that the person who was charged didn’t do the crime, and let’s say there was evidence, clear, conclusive evidence that the defendant had in fact been at the scene of the crime-wouldn’t that present a problem?”
“I guess I’m not following,” says Jennifer.
“What I mean is, if we know that the defendant was at the scene and that the item was taken from the scene, doesn’t it stand to reason that the defendant could have taken it in the first place, and if so, how does that clear him?”
“I’m going to object, Your Honor. Hypothetical questions. Counsel is asking the witness to speculate. She’s not a lawyer. She’s not a crime-scene-reconstruction expert.”
“No, but she is here testifying as to how the envelope arrived at their office. The question doesn’t go to her expertise, it goes to credibility. If she doesn’t understand what may be happening here, then maybe she’s in the clear.”
What Tuchio is saying is maybe Jennifer thinks she is telling the truth and that she’s being used, on the stand, for this reason.
“Overruled,” says Quinn. “I’ll allow it.”
Tuchio restates the question without mentioning names. How could Carl be exonerated, cleared by the sudden and mysterious appearance of an item that was at the scene, when we know that Carl was at the scene?
“Well, if he didn’t have the item when he was arrested and he’s been in jail, how could he-”
“Deliver the item to your office?” Tuchio finishes the question for her. “Easy. He could have handed it off to someone else. A friend, a family member, a lawyer,” he says.
Jennifer shakes her head. “No. No…no.”
“How would you know?” he says. “Are you familiar with every item, every scrap of paper, every scintilla and wisp of evidence in the files at your office? Do you know what’s in everybody’s desk drawers or for that matter what they might have in their possession outside of the office?”
