The Huntley Hearing had emotionally exhausted Vince’s family members as if it were the trial itself. Now, on the final day, they fervently hoped this step would be completed within hours, but they’d grown accustomed to delays that dragged the process on and on. They were filled with anxiety that this would happen yet again and make their never-ending quest for justice a journey that would never reach its destination.
Richard Portale began the morning by handing the judge copies of Court of Appeals case law, in an attempt to block the introduction of Angelika’s taped interrogation at trial. Prosecutor Byrne contended that the same case law proved that all the state needed to submit was a witness to authenticate the recording, and argued that their witnesses had done just that. The judge ended the discussion by saying he would allow both sides to submit any additional arguments or materials on the issue.
With that temporarily settled, Investigator Donald DeQuarto returned to the stand to continue his cross-examination by Portale.
“You testified that, on Bannerman’s Island April 29, 2015, when you were seated on the trail—yourself, Investigators Moscato and DaSilva, and my client—that a volunteer had come up to speak with Miss Graswald; is that correct?”
“Yes.”
“And how many times did that volunteer come up to speak with Miss Graswald at that time?”
“One time.”
“Had there been other times that that volunteer had come up?”
“Yes,” DeQuarto conceded.
“How many other times?”
“One other time.”
“One other time?”
“Once on the trail and once on the—”
“So, two, total?” Portale interrupted.
“Yes.”
“Are you sure?”
“Yes.”
Byrne objected. “Asked and answered from yesterday and asked and answered from today.”
“It seems that way, Mr. Portale,” the judge said. “If you have something that differs, just proceed on that.”
Portale moved on. “What was the name of the volunteer?”
“I believe her first name was Susan.”
“Did you speak to her on the island?”
“No.”
“Did you speak to her at some point afterward?”
“Yes.”
“Do you know her last name?”
“McCardell.”
“Where did you speak to her after that?”
“Objection, Your Honor,” Byrne cut in again. “No relevance to this proceeding whatsoever as to the voluntariness of the defendant’s statements.”
“Really?” Portale asked. “Because this woman, he’s saying, came over to check on Miss Graswald to see if she’s okay, so that’s actually pretty relevant.”
“What happened to her is already on the record,” Byrne argued.
“What was her demeanor, what was her mind-set?” Portale countered.
Judge Freehill asked, “So, are you calling her to see if she thought Miss Graswald was in custody?”
“If I may,” Portale answered, “we have observations from three New York State Police officers, those are the actual guys doing the interrogating, so, yeah, we actually are entitled to call Ms. McCardell, if we can find her, to testify as a witness. Defense cannot call witnesses that can testify to their observations? Only the government is allowed to call witnesses, is that what we are going to do?”
The situation devolved into a bitter argument, leading the judge to ask the clerk to read the initial question back to the court. Upon hearing it again, the judge ruled that it could be answered. DeQuarto said that he spoke to Susan later at the state police barracks.
“You had a conversation with Investigators DaSilva and Moscato after speaking to Miss Graswald alone on Bannerman’s Island, correct?” the defense attorney asked.
“Correct.”
“And you had related to them what you thought Miss Graswald said to you?”
“Objection, Your Honor,” the state interrupted. “Asked and answered.”
“This is all repetitive,” the judge agreed.
“No, it’s not. I want to know—” Portale began
“It’s a recap,” the judge insisted. “You’re going back and asking.”
“It’s foundation, I want to know what it is they said to him. It’s fair play; they’re saying that she just confessed to murder. Their reactions to that is absolutely fair play. Was she placed in handcuffs?”
After further back-and-forth between the prosecutor and defense lawyer, the judge sustained the state’s objections, chastising the lawyers for arguing over each other.
Portale tried a different tack. “When you were on Bannerman’s, did you ask any of the volunteers that were there whether they had recovered anything that might relate to Miss Graswald’s case?”
“No,” DeQuarto said.
“You testified, I think on direct, that the volunteers were there as a cleanup crew?”
“There were volunteers there, yes.”
Portale then showed the investigator four photographs and asked if they were the ones he had taken of the kayaks and the paddles. DeQuarto insisted that they were not the ones he’d testified to taking with the station camera. The photographs he’d taken were burned to a DVD, he said, and eventually given to Ms. Mohl.
Portale, however, kept asking him about the pictures as if DeQuarto had given the opposite response. The judge interrupted and asked the witness, “Did I miss something? Did you say these aren’t them?”
“These are not the photos.”
Portale continued his questioning, implying that the investigator didn’t know which kayak belonged to whom. DeQuarto asserted that he’d learned that information from Angelika’s deposition on April 19, 2015.
The defense attorney switched to another topic, trying to insinuate an inappropriate friendship between DeQuarto and Angelika. “You had testified on direct that Miss Graswald had told you that she thought you were cute?”
“Yes.”
“Did you write that in any of your reports?”
“I don’t believe so.”
“In fact, you have two pages of handwritten notes from that day, from the twenty-ninth, right?”
“Yes.”
“You have several other handwritten notes that we went over yesterday; do you remember those?”
“Yes.”
“How many pages was your New York State Police incident report?”
“I don’t recall at the moment.”
“Let’s look at it,” he said, picking it up from the defense table and flipping through it. “Thirteen pages. And nowhere in that report did you write that Miss Graswald told you she thought you were cute, right?”
“No,” DeQuarto admitted.
“You testified also on direct that Miss Graswald had offered to give you some gift cards and some figurines; do you remember that testimony?”
“Yes.”
“That’s not contained anywhere in any of your reports, is it, either of those two gestures?”
“I don’t believe so, no.”
“All right, let’s talk a little bit about this videotaped question and answer with Miss Graswald. The entire length of that interrogation video, according to your direct testimony, is eleven hours and ten minutes. Is it fair to say that, the last hour or so, there’s no real conversation going on, it’s just Miss Graswald by herself in the room?”
“I believe she was in there and she was taken out for processing at one point.”
“But the last hour is not much interaction, not much question and answer?”
“No.”
“And you testified that Miss Graswald was alone for six hours of the eleven; is that what you said on direct?”
“Yes.”
“Well, I mean, she was given eight breaks, correct?”
“I don’t recall the number of breaks.”
“All right. So, if we played the different breaks on the video, would that help you remember?”
“Objection, Your Honor,” Byrne interrupted. “Your Honor ruled yesterday that defense counsel could use the video for purposes of impeachment—”
Portale walked back his comment. “Let’s go back to—”
Byrne interrupted him in turn, asserting that the videotape had already been submitted as evidence and it spoke for itself, so any testimony about its contents was redundant. Portale argued that the state was expecting a piece of evidence to authenticate itself.
Judge Freehill intervened. “Well, in this particular case, we’re not going to do it. Obviously when I look at the full tape, I’m going to see how many breaks the defendant had.”
Portale forged ahead. “Investigator Skarkas was alone with Miss Graswald without you present seven different times, correct?”
“I don’t know how many times,” DeQuarto said.
“You don’t know, or you don’t remember?”
“I don’t recall how many times,” he clarified.
“Well, I have some questions about some of the questions that were asked and the answers that were given between Investigator Skarkas and Miss Graswald, so, are you going to be able to testify about those?”
Another objection from ADA Byrne. “The content of what Miss Graswald said is not relevant to this proceeding in the context of the video interview. It doesn’t matter whether you admitted or denied, just that her statements were voluntary. She could have said nothing all that time. She could have said ‘I did it,’ ‘I didn’t do it.’ Who cares when the only relevant issue is voluntariness? The only question is, did she say what she said voluntarily.”
After another exchange between the lawyers, the judge dismissed court for its lunch recess.
Investigator DeQuarto returned to the stand after lunch and Richard Portale continued in his combative style. He pressed the witness for the detailed timing of his whereabouts during the first three hours of the interrogation and tried to depict the investigator as callously ignoring Angelika’s emotional state.
“During those initial three-plus hours, you’re with Miss Graswald, she indicates to you on four different occasions that she’s tired, correct?”
“I don’t recall.”
“Five different times during that initial period, she asked you questions and indicates to you that she is on her period; do you remember that?”
“Yes.”
“And then, again, about somewhere between five and six hours, then she brings it up again; do you remember that?”
“I do not remember her bringing it up again.”
“Four times during that three-or-plus-hour period when you are with her, she’s crying, correct?”
“I didn’t count the number of times, so I can’t answer that really,” DeQuarto said.
“Do you remember, do you want to try to remember?”
“I recall her crying to a point. I don’t recall how many times she was crying.”
“In fact, on twelve different occasions in the first six hours, you personally accused her of either lying or not being truthful or not being honest, correct?”
“Again, I didn’t count the times.”
“Do you want to try to count them now?” Portale asked.
“I won’t be able to remember that now.”
“During the entire eleven-plus hours, she’s breathing heavily, yes, holding her stomach?”
“Not for the duration of eleven hours, no.”
“For the majority of the eleven hours she is?”
“There are times in the video she is, yes.”
“About two hours in, you allow her to use the bathroom?”
“Somewhere around there.”
Then Portale, who’d just questioned the detective about his client being on her menstrual cycle at the time of the interview, brought up Angelika’s own contradiction. “And she comes back and relates to you that she thought she maybe had a miscarriage; do you remember that?”
“Yes,” DeQuarto said, but didn’t elaborate or mention his offer to get her medical help.
“So those first three hours, she doesn’t admit to you that she has killed Mr. Viafore, correct?”
“Again, I can’t recall or remember the entirety of the duration on the video because it’s been memorialized on DVD and it’s a very lengthy video, so for me to recall specific times during that, I don’t think it’s possible,” DeQuarto argued.
“Prior to Investigator Skarkas reentering the room for the first time, she had admitted to killing Mr. Viafore?”
The state objected to the question and the judge sustained it.
Portale tried again. “So, prior to Investigator Skarkas reentering the room for the first time, did Miss Graswald admit to killing Mr. Vincent Viafore?”
Byrne objected. “The basis being whether she admitted it or denied it is irrelevant. The only issue is [if] what she said was said voluntarily.”
“I’m going to give a little bit of leeway,” the judge said. “I agree with Mr. Byrne, but this is going to some direction that is going to involve the issue of voluntariness. I’ll let it go.”
The question was read back and DeQuarto answered, “I’m not sure at what point that she says that she intentionally removed a plug from his kayak so that he would drown.”
Portale then went through a series of queries about what was said and when while DeQuarto was absent from the interrogation room, in an attempt to prove the investigator could not authenticate the video since he was not there the entire time.
DeQuarto reiterated, “As I stated earlier, it would be impossible for me to remember a six-hour interview word for word. So, I would have to review it to refresh my recollection.”
“Do you recall at 4:46:38 of the interrogation video, Investigator Skarkas is alone with my client and he tells her that this is her window of opportunity? He says, ‘This is for you to provide what I call, you know what I mean, your slice of the pie, your version of the truth from your perspective. There’s only one person in the world that can provide that perspective and that’s you, you know what I mean. You don’t want other people or other things to portray a picture of you that’s going to be unfair. And, obviously, the facts are what the facts are.’ Do you remember that?”
“I remember something of that context, yes.”
“And then at 5:18:36, yourself and Investigator Skarkas are together with Miss Graswald and Investigator Skarkas says, ‘You don’t want anyone to have your slice of the pie. You want to keep those walls and keep up those barriers and not open up to us, you let other people tell your version of the truth and have your slice of pie’; do you recall that?”
“Yes,” DeQuarto said.
“So, about seven hours in, at 7:03:43 time stamp, Investigator Skarkas is alone with Miss Graswald and do you remember her asking him about Miranda?”
“No.”
“Were you there when that happened?”
“No.”
‘Were you watching through the two-way mirror, listening?”
“I never watched through the two-way mirror.”
‘You didn’t?” Portale seemed surprised.
“No.”
“So, you have no knowledge of my client asking, ‘What’s Miranda?,’ ‘Who’s Miranda?,’ seven hours in?” Portale said, insinuating that these questions meant that Angelika didn’t understand the warning. He failed to mention the context that implied she was merely inquiring about the historical basis for the name.
“As I stated earlier, I cannot remember every single thing that happened in that video. I’ve reviewed it. I’ve been in and out of the room while Investigator Skarkas was speaking with your client, but I cannot remember every word or conversation that occurred between them.”
“Well, this isn’t a matter of remembering. You weren’t there for it and you didn’t hear it when it happened, right?”
“No.”
“You administered my client’s Miranda warnings. You read it to her from a card. Are you sure she understood what you were saying?”
“Yes, I am.”
“Well, but later on she says, ‘Who’s Miranda?, ‘What’s Miranda?’; how do you know she understood?”
“I asked her if she understood and she said yes,” DeQuarto argued.
“Are you aware that as she sat in that room, she read from her piece of paper and you could hear it on video, are you aware of this? ‘You have the right to talk to a lawyer or to have one present while you’re being questioned’; she was questioning that. Did you hear that?”
Byrne objected, and the judge overruled.
“I remember her reading the piece of paper and writing it on to a piece of paper, the Miranda warnings,” DeQuarto said.
“At any point during this eleven-plus hours, did you read her Miranda warnings again to her?”
“No.”
“Did Investigator Skarkas come up to you and say, ‘Hey, listen, she’s questioning Miranda,’ did you have a conversation with him about that?”
“No.”
“Did Investigator Skarkas reread Miss Graswald her Miranda warnings at any point?”
“Not that I’m aware.”
“Well, it’s yes or no. You’ve authenticated the video. So, did he do it or didn’t he do it?”
“No.”
When Portale again tried to argue that DeQuarto couldn’t authenticate the video because he couldn’t recall what had happened while Skarkas was alone in the room with Angelika, ADA Byrne stepped in to object.
“It’s the test of witness recall based upon an interview which is reflected in an exhibit before this court, that’s what this is, as opposed to testing the truth, which is reflected in the video before this court. It’s a testing of the witness’s recall of an eleven-hour incident.”
“I don’t even understand what that means,” Portale said. “But the bottom line is it—”
Judge Freehill cut him off. “That’s another version of saying the video speaks for itself.”
“And I’m also questioning my position of authentication,” Portale continued. “It’s impossible for him to authenticate this video. I just wanted—”
The judge interrupted the defense again. “I doubt if it’s going to come out exactly the way you want it, but that objection is sustained and you can continue questioning.”
Forced to move on, Portale asked, “Do you recall Miss Graswald’s demeanor when she was being interviewed by Investigator Skarkas?”
“No.”
Portale then asked a series of questions about jumps or skips in the video, where DeQuarto had reviewed the video, whether it was the original or enhanced version, where he’d gotten it from, and where and when he had watched it.
When DeQuarto said that he watched it on his computer in the barracks, Portale said, “You didn’t put it back into the same machine that recorded it?”
“No.”
“Did you sit for eleven hours?”
“On and off, yes … I took a break. I didn’t sit there for the duration of the video, but I viewed the whole video in a single day.”
Circling back to the events on April 29, Portale asked, “So, at the conclusion of the video and after Miss Graswald was processed, what did you do?”
“I was hanging out at the barracks, speaking to investigators.”
“Who did you speak to?”
“Objection, Your Honor,” Byrne said, “relevancy for this hearing.”
Portale withdrew the question and the judge said, “Good.”
Portale continued, “At some point, you took down some notes about your conversation at Bannerman’s, right?”
“Correct.”
“When was that?”
“About three in the morning.”
“After that eleven-plus hours you spent with my client, you went back and wrote notes from your memory about your conversations on Bannerman’s, yes?”
“That is correct.”
With that, Portale handed the witness back to the prosecution team. The state had no additional questions and, with that, the prosecution rested their case. In the courtroom, Vince’s family breathed a sigh of relief. They were one step closer to this ordeal being over.