“Did you find any?”
“No.”
Talia’s squirming next to me in the chair. She leans over toward me.
“They know,” she says.
I smile at her, for the benefit of the jury, like she has just said something amusing, a little wit to take the edge off the monotony. Then I nudge her with my knee, hard under the table. If she is acquitted, Talia could still be bruised for life.
“What other action, if any, did you take to verify this alibi?”
“According to the defendant she gained admission to the property in Vacaville by use of a realtor’s lockbox. The combination was given to her by the listing real estate agent in Vacaville. We dusted that box for prints, to see if we could identify the defendant’s fingerprints on the box.”
“Did you find her fingerprints on the lockbox?”
“No, we did not.”
“So you were unable to establish any independent verification that the defendant was in fact in Vacaville on the date that Ben Potter died, is that correct?”
“That’s correct.”
This is the high-water mark of Canard’s testimony, a piece in a mosaic, a flood of circumstances from which the jury is to infer that Talia was not surprised by Ben’s death because she had participated in it, that she in fact lied to the police concerning her whereabouts, that she possessed the opportunity to commit murder.
Nelson looks at me. “Your witness.”
For a lawyer, in trial there is nothing more difficult than dealing with a lie by your client to the authorities. I cannot put Talia on the stand to refute this. To do so would be to suborn perjury. I am left to nibble around the edges at the inferences and conclusions drawn by the cops based on this erroneous information.
“Officer Canard …”
“Detective,” he says, a little shot for dominance in the eyes of the jury.
I’m rising, moving toward him in the box.
“Excuse me. Detective Canard. How many homicide cases have you investigated in your career?”
“I don’t know, exactly.”
“A hundred?”
“More,” he says.
“Two hundred?”
“I don’t know.” Canard is wary, not sure of where I am going with this.
“A good number, I assume, enough cases that you would be considered experienced, a veteran homicide investigator?”
“Yes,” he says, satisfied that such abstractions are safe ground.
“So it’s safe to say that you’ve dealt with a good number of cases involving grieving family members, survivors of victims?”
“Yes.”
“How many do you think, a hundred such survivors?”
“I don’t know.” We’re back to numbers and Canard is taking a dive.
“A guess?” I say.
“Objection.” Nelson keeps his seat. “The witness has answered the question.”
“Sustained.”
“You’ve been heading up homicide’s special section for twelve years, is that correct?”
“Yes.”
“I assume that in that twelve-year period you would have had numerous occasions when it would have been necessary for you to bring bad tidings to survivors of crime victims, to tell a wife or child that a husband or father had been killed? Is that true?”
“The worst part of the job,” he says.
“I assume that some of these survivors might go into a state of shock on hearing this news?”
“I suppose,” he says.
“Do you know, detective, the physical symptoms of shock? For example, do you know whether a family member who is stunned to a state of shock by such horrible news, whether that family member would cry? Whether there would be instant tears at the moment they hear the news?”
“Objection, Your Honor. The witness is not a physician.”
“Sustained.”
I have what I want. I’ve planted the seed with the jury. I shift gears-from speculation to experience.
“Detective Canard, in all the homicide cases in your long career, is it your experience, is it your testimony, that in delivering news of some tragedy, the death of a close family member, that the survivor always and invariably, without exceptions, breaks down in tears upon hearing this news?”
One of the axioms of cross-examination-draw the question in absolutes, push it to the brink of the absurd, and over.
“Not always,” he says.
“So there have been some people in your experience as a homicide investigator who when told of the death of a loved one, actually did not immediately begin to cry?”
“That’s true,” he says. Anything else would bring laughter from the jury.
“And have you always and invariably concluded from this that the survivor who does not instantaneously break down in tears somehow is implicated in the death of the victim? Do you always assume that the person who doesn’t cry is a murderer?”
“Objection, Your Honor. The defense is misconstruing the testimony of the witness.”
“I think not, Your Honor. If the absence of instantaneous tears on the part of Talia Potter was not being offered to this jury for the sole and express purpose of implying her guilt in murder, I would like the district attorney to tell us for what purpose it was offered.”
Nelson is motioning with his hands, making faces, buying time to think.
“To show the defendant’s state of mind,” he says.
“Exactly,” I say, “to imply by any means, fair or foul, that she had a guilty state of mind.”
“It’s a fair question. The witness will answer it,” says Acosta.
Canard can’t remember the question.
“I’ll restate it,” I tell him. “Do you always assume that the person who doesn’t cry is a murderer?”
“No,” he says.
I look over at Nelson. I can tell he is beginning to wonder if he has not picked up the dirty end of this thing he has tried to bludgeon us with.
“So then in fact there is no theorem of police science, no reliable formula of law enforcement, that allows you to take a cup and measure the production of a person’s tear ducts in order to determine whether they are responsible for the death of their loved one?”
“Your Honor, I must object.” Nelson’s busy trying to break my rhythm.
Canard is a bundle of resentment sitting in the box.
Before the judge can rule on Nelson’s objection, Canard responds.
“No,” his teeth clenched.
Acosta lets the objection go by, no grounds being stated.
“So it is entirely possible, based on your experience as a seasoned homicide investigator, that the reason my client Talia Potter did not immediately break down in tears upon hearing the news of her husband’s death had absolutely nothing to do with any theory that she might be implicated in his death? Isn’t that correct?”
“I suppose,” he says.
“That it could well have been due to other factors, the shock that this news inflicted on her system, the variations in individual emotional makeup, all those things that, not being a physician, you wouldn’t know about?”
I look at Nelson, who’s trying to put a face on it, nonchalant, sprawled in his chair, playing with his pencil.
“I don’t know,” says Canard. “I suppose.”
“Fine,” I say. I allow a breather, a little punctuation to let the jury know I’m moving on to other subjects, that I consider this campaign finished.
Now I turn on the charm, easing back, signaling Canard that maybe the worst is over.
I ease into the next phase and get a quick admission. Canard’s tired of being beaten on. He concedes that it could take considerably longer than two hours to travel between Capitol City and Vacaville and back again if any portion of the trip was during the rush hour. In doing so he gives up any plausible argument that this would have been possible given the time of death in this case, about seven in the evening. Nelson scratches another point from his score card.
I ask Canard whether in the inventory of the personal effects found on the victim the police found his keys-to his car, the office, and his house. He confirms that these were on the body when it was discovered in the office.