Interrogate everything. Bore everybody. Win in the end.
Seismic (to moderate) revelations through mundane details
It was past time for lunch, and I was tired1.
The witness was bored.
Her lawyer was, I was almost certain, asleep.
“What do you like to cook?” I asked.
“Lots of things,” she said.
“Please, give me some examples.”
She scoffed. I’d never actually heard anyone scoff in person up to that point. I’d thought it was some kind of theoretical ejaculation, perhaps a psuedo-Austenian invention, used by writers who’d run out of ideas for turning a monologue, or, here, an anecdote, into something more closely resembling dialogue.
“Please tell me what you cook, at home,” I asked.
The witness looked at her attorney. He hadn’t objected.
“Soup,” she said. “I only have a hot plate.”
“Anything else?” I asked.
The witness folded her arms and pursed her lips.
Eventually she admitted that she also made chili. She described the recipe. She sometimes made fish, too. Stew was a favorite, in the winter.
Her lawyer interrupted, at one point, to say that I was wasting time.
Later, during that deposition, the issue of “wasted time” may again have been raised, when I asked the witness to describe the flooring choices she’d made during a renovation, the number of books she kept, the window coverings, the type of wood stove she installed, and when and how she used it.
At trial she admitted, on cross, a number of facts from her deposition.
She seemed, once again, a bit bored by it all:
Yes, she cooks chili.
Yes, she cooks fish.
Yes, she uses garlic.
Yes, she loves peppers.
Yes, she took up the carpet.
Yes, she put down hardwood.
Yes, she took down the blinds.
Yes, she took down the drapes.
Yes, she she took out the bookshelves.
I doubt she thought about these questions, and answers, when she went home that night. Or the next day. Or the next week, when she took the stand again.
But, during my closing, I think she understood.
Defendant contends that she did what she did, not to drive out her neighbors, but because she was so oppressed by the smell of their food, and the sounds of their voices, and the music they’d play, ‘coming through her floors.’
But defendant herself cooks with garlic. She cooks with onions. She loves spicy food. She eats fish. She cooks fish. In an open plan loft. Even while she was so distressed about the sounds coming from the unit below, the defendant was pulling up the carpet, in her unit, taking down anything and everything that would have dampened the sounds. Bookcases out. Heavy drapes, gone. Does that sound like someone who was concerned about what her neighbors did, or about who they were?
When the jury verdict came in, the defendant was shocked. Offended, even. She had no idea that the boring questions, asked on an ordinary afternoon, about things that couldn’t even matter, were going to mean everything.
But of course they did. You can’t ask the big questions.
So you ask a thousand little ones.
Stepping away from my day job, for a bit.
At about the same time I started that trial, Justin and I were looking at a statement given to police in a murder investigation2.
The witness, one of the last people to see the victim alive, identified some pieces of her clothing. Cowboy boots with red trim at the top, long skirt, a pullover sweater with a hole in it. A t-shirt with a logo on the back.
Not only did the witness identify the clothing as belonging to the victim, but confidently said that she’d seen the victim wearing the clothing during their last meeting.
Although we can’t sit the witness at a table, and bore her to death in front of a court reporter, we can still interrogate the statement, associated testimony, and gather the supporting information, to evaluate the credibility of the clothing identification:
How long was the meeting?
What was the weather like?
Where did the meeting take place?
Was anyone else there?
Was this a conference room, or an office?
Can we find a picture of the office?
How many chairs were there?
What was the layout?
Was there a lobby?
Who arrived first?
Who left first?
You can’t answer the big questions.3 No matter how many police reports you receive, or FOIA returns you sort, you’re not going to get a photocopied post-it that says “PS, witness was lying.4”
But. You can reason:
Photographs of clothing show an ankle-length skirt, no slit at either side, kickpleat in the back; closed-weave, dark-colored pullover sweater with hole near the tag, dark-colored t-shirt with green logo, on the back side. Tall brown boots with burgundy trim at top.
As witness identified each piece of clothing, independently, as the ones victim was wearing when she disappeared, after describing a fifteen minute meeting during office hours, on a cool day in autumn, the clothing items themselves give reason to doubt the veracity of either the meeting description or clothing identification. Witness' statements to police describe a quick meeting, in a small office. The victim is said to not even have taken time to sit down. The witness did not mention that the victim removed her sweater during the meeting. Under ordinary circumstances, the fringe on the boots, hole in the sweater, and logo on the shirt would not have been visible at the same time during the meeting described.
No mic drops. No conclusions drawn. The small facts merely arranged in such a way that the ultimate fact finder can determine who, and what, to believe.
Pursuant to Mass. R. Prof. C. 1.6, I have an obligation to refrain from disclosure of confidential matter gained from representation of a client, unless the client has given permission for the disclosure, the matter is “generally known” in the community.
This story is a bit of a pastiche, combining elements of a case taken to trial — and thus, facts generally known in the community — along with details that have been changed to allow greater anonymity to participants. And me.
These details are incredibly changed. Of course. For so many different reasons. Including that I haven’t asked Justin “is it okay to write about this one yet?” - I don’t even know what she’s talking about! - Justin
Often, it’s not actually your place to answer them.
Also, if you did, why would you believe it?
Ennie’s writing unfolds so nicely. Love it.