Julie Mohl walked Susan McCardell back through her direct testimony and then got down to more serious questioning. “Prior to getting back on the boat to Bannerman’s Island with the defendant, did you hear a phone call between the defendant and a member of the police?”
“Yes.”
“After that phone call, you didn’t hear Miss Graswald say, ‘I don’t want to go out to Bannerman’s anymore,’ did you?”
“Forever?” Susan asked.
“No, that day. She didn’t say to you, ‘Susan I don’t want to go over there anymore,’ did she?”
“No.”
“And when she arrived to Bannerman’s Island, she didn’t seem surprised that the police were there?”
“She called them,” Susan pointed out.
“Right. So she knew they were going to be there, correct?”
“She called and asked them to go, yes. They said they would try to get there. So, she was happy to see them,” she said, contradicting her own testimony of the investigators’ surly statement about Angelika’s cigarette.
Portale objected. “She doesn’t know whether Miss Graswald was surprised. She can testify to observations, but she doesn’t know whether or not my client—”
The judge cut him off with one word: “Sustained.”
“She asked them to go to the island; is that right, ma’am?” Mohl asked.
Portale objected. “Asked and answered.”
“Overruled; you can answer,” the judge intoned.
“Yes, she asked them—she was going to do a ceremony for Vinny—‘Are you guys gonna come?’ and they said they would try to get there.”
“And her demeanor was happy; is that right?”
“Yes.”
“In fact, she greeted one of them with a hug; is that right?”
“I don’t remember that.”
“And she introduced you to them?”
“Yes.”
“And you stated that they went up the stairs and off on the trail … at that time, you did not go with them; is that fair to say?”
“I went shortly thereafter.”
“And where did you go?”
“I was with Katie and we just took a walk and I showed her the different sides of the island she had never been on.”
“So, you gave her a tour of the island?”
“Yes.”
“And then you stated you came over to check on Angelika?”
“Yes.”
“And when you came over to check on her, she stated she was okay and you asked if she needed anything and she said no, correct?”
“I asked her, I said, ‘Are you okay?,’ and she looked, obviously not okay.”
“Objection, Your Honor, not responsive,” the ADA said.
The defense took umbrage at that. “She didn’t give the answer she wants and now she wants to strike it.”
“It was not responsive to the question,” Mohl said.
“Actually, it is responsive,” Portale argued.
“I’ll decide that,” the judge said, “And I think it is. The answer stays. Continue.”
“Can she finish with her answer?” Mohl asked.
“I’m not sure—” the judge began.
Susan spoke up. “I’m finished. I mean, it was obvious to me and I think it was obvious to anyone she should not be alone with these three men talking to her like that so—”
Judge Freehill stopped her. “That’s something of a different answer.”
“Well, not really,” Susan said.
“Continue, Ms. Mohl,” the judge told the attorney
“She stated to you that she was okay?”
“She did.”
“And you came over a second time and, again, she stated she was okay?”
“She did.”
“And you stated you went over there a third time.… And again, she stated she was okay?”
“She told me she was okay.”
“After each time you left, you never sent over a different volunteer to check on her, did you?”
“No.”
“And you never heard as you were walking away, ‘Wait, Susan, help me, help me,’ did you?” Mohl asked.
“No.”
Prosecutor Mohl took Susan through a series of questions about any conversations she’d had with the defense attorney or any investigator on the defense team. Susan insisted that the first conversation had been the evening before.
“Ms. McCardell, you’ve known Miss Graswald for over a year; is that right?”
“That’s right.”
“And in fact, you stated in a prior conversation with investigators that, of all people that you have volunteered with at Bannerman’s, you’re the closest to her; is that right?”
Susan agreed.
“And in fact, you’ve gone to visit her at the Orange County Jail, haven’t you?”
“That is correct.”
Mohl then tried to argue that the defense was not in compliance with the Rosario rule, a commonly used statute in New York criminal cases. According to the Rosario rule, the prosecution is required to turn over to the defense any reports regarding the anticipated testimony of the witnesses they call. The defense is required to do the same, with one exception—they do not need to provide anything regarding the defendant if their client intends to take the stand. The defense, however, had not provided the prosecution with a report regarding Susan’s expected testimony.
Portale responded in a self-righteous tone and then pointed the finger at the prosecution, insisting they turn over any reports on his witness to the defense.
His words provoked a testy response from the judge: “Why would you say that as if I didn’t know that?”
“I was trying to remind you, Your Honor,” Portale answered, digging a deeper hole.
“You don’t need to remind me,” the judge bit back.
When Julie Mohl passed on the witness, the judge spoke to Susan directly. “Out of this approximately ten volunteers, this crew, was there a person that was in charge?”
“Well, we have a person in charge of the gardeners and then we have—”
“On-site?”
“On-site. We’re volunteers, or adult volunteers in charge of gardening. And then there’s people that, yes, she was there, she is in charge, yes.”
“And … what was her name?”
“Her name is…” Susan hesitated. “I’m sorry, I’m nervous.”
“Don’t be nervous,” the judge urged.
“I can’t even believe I’m blanking on it.”
“It’s not that important.”
“I can give it to you.… Donna is her name.”
“So when your group of volunteers arrived en masse, did Donna parcel you out where you should go, or was this a routine that you knew where you should go?”
“It was the first time of the season,” Susan explained. “So, it’s a little broadsided to be on the island because you can’t go the rest of the year. There’s a little more looking around than usual and checking around from the season and she assigns—”
“So, everyone has their own particular spots?”
“They have comfort zones, they have gardens they call their own.”
“How many acres?” the judge asked.
“I think it’s like four. It could be seven. It’s built like a volcano.”
“The area you observed the BCI investigators speaking to the defendant, was that one of her comfort zones?”
“I wouldn’t think so, it’s on the trail.”
The judge asked Portale if he had any redirect and the attorney asked Susan to explain their brief conversation before court that morning. She testified that he had simply directed her to the third floor.
Mohl was invited to recross and she, too, was brief. “Ma’am, had you seen Miss Graswald on the trail before?”
“You have to use it to get anywhere,” Susan confirmed. With that, Susan was released from the witness stand.
With no more witnesses to call, Richard Portale again argued against the use of the interrogation tape at trial. He alleged that Graswald may have miscarried a baby while in police custody, making her more vulnerable and increasing the probability that she could be coerced. An odd assertion, considering he’d previously alleged she was on her period at the time—normally, menstruation does not coincide with pregnancy. In addition, he brought up his client asking, ‘Who is Miranda?’ after she was read her Miranda Rights. Portale argued that her question demonstrated that she did not grasp the implications of her eleven-hour interview. Investigator Donald DeQuarto, however, had insisted that Angelika understood her rights completely when he’d read them to her and she’d read them to herself.
The two sides bickered over reports, photographs, and the need to keep the hearing open for another day. When ADA Mohl asserted that the defense had rested their case, Portale denied that he had.
“You said you rested, Mr. Portale,” Mohl insisted.
“I said I have no further witnesses,” Portale argued.
The judge intervened. “We consider that to rest. In Orange County, we use different words for things apparently.”
“I never said the words ‘I rest,’” Portale maintained. “I said, ‘I don’t have any more witnesses.’ We may recall the same witnesses if—”
“We’re not recalling anybody,” the judge said. “You’re both going to have two weeks to submit memorandums. You have two weeks. Beyond that, you’ll be back here for decision.”
Chartier chimed in to argue again that the hearing should remain open, but the judge rebuffed his request.
The judge now had to determine if testimony of the unrecorded statements, as well as the video of Angelika’s interrogation, could be presented to a jury. Courtroom observers wondered if it was possible for the state to present a case if all of her statements were prohibited from being shown in the courtroom. Prosecutors had little other evidence that pointed directly to guilt.
In five days, seven witnesses had provided information to the court. The judge requested that the state provide him with an English translation of the conversation Angelika had had with the Russian interpreter toward the end of the eleven-hour interview.
The attorneys would have to wait much longer than they’d expected for Judge Freehill to reach his decision.