ECHO
• CORROBORATING WITNESSES: LEEMIE TAKES THE TESTIMONY OF DETECTIVES, A TELEPHONE COMPANY INVESTIGATOR, AND A NEW WITNESS TO SUPPORT THE TESTIMONY OF HER COOPERATING WITNESSES.
• GLENN TRIES TO PROVE THAT LEEMIE’S EVIDENCE IS NOT STRONG ENOUGH TO CONVICT JOE CHEN.
In New York State, the testimony of an accomplice must be corroborated. That means there must be independent evidence connecting the defendant with the charge. One afternoon in a Malaysian restaurant in Chinatown, Judge Fried described how the corroboration rule works. “Let’s say I am walking down the street and somebody steals my wallet. I point him out to the police. When the officer stops him, I say, ‘This is the man.’ You either believe me or you do not believe me. There is no need to corroborate because I have no particular reason to finger an innocent person.
“If, on the other hand, two people rob me. The police arrest one, but the other one gets away. Then the arrested fellow says that he will tell who was with him in return for a lighter sentence; he will cooperate. A deal is made, and the man says, ‘Smith was with me.’ The police arrest Smith. The first man testifies against Smith. That testimony must be corroborated because he does have a reason to finger an innocent person, or at least not to finger the real guilty party because he may be his friend or he may be afraid of him. Some other evidence must link the second person to the crime. Otherwise, it would be easy for the first person to simply name anybody in order to get a lighter sentence.”
The judge lifted a square of fried tofu with his chopsticks and continued. “Let’s say I never saw the face of the person who robbed me, but when he turned and ran, I, or some other witness to the crime, saw that he had green hair. Our Mr. Smith has green hair. ‘Green hair’ might be sufficient corroborating evidence.
“In other courts where you do not need corroboration as a matter of law, the jury is told to scrutinize the credibility of the cooperating witness with great care.”
Back to the courtroom and the corroborating evidence against Joe Chen.
THE CORROBORATORS
Leemie’s first corroborating evidence comes from Detective David Chan. He conducted the lineups for the two victims, Mr. Wang and Mr. Li.
THE DETECTIVE EXPLAINS LINEUPS:
A lineup is an identification procedure. We place a suspect in a lineup with five other individuals who are about the same age, race, and features as the suspect.
There are usually six people, including the suspect, in the lineup. The suspect can stand anywhere he or she chooses.
Dave describes what transpired during the lineups. Leemie reminds the jury that the first victim knew Jane Ding and Sonny Chen and could easily identify them. He also saw Cow Eyes. The second victim knew Johnny Ding by his nickname, Charlie Chan, and immediately picked him out. Arresting and convicting these three were relatively easy. Joe Chen is another matter. Neither victim ever saw his face.
The detective describes Joe Chen’s arrest and then helps Leemie lay the foundation for the second corroborating witness, a Bell Telephone investigator, by reporting various steps in the investigation.
Although Mr. Wang and Mr. Li were unable to tell the detectives where they were being held, they did have a phone number for the apartment. Apparently Mr. Li’s father refused to pay any money until he knew that his son was alive. He told the kidnappers, “I want to be able to call him.” The kidnappers then gave the father their telephone number at the Rivington Street apartment.
During the investigation, Mr. Li’s parents, in China, searched through their bills and found the phone number. Later, Leemie says, “The group had accomplices in China, but we have no idea who they are.” The detectives submitted that phone number to the D.A.’s office. They, in turn, subpoenaed Bell Telephone for subscriber information. From there they were able to get the address of the apartment. The detectives went to that location and learned that it was rented to Joe Chen. Leemie believes that this is part of the evidence that supports the testimony of her cooperating witnesses.
Glenn disagrees. He does not think that this is corroborating evidence. Remember, everyone already admits that the apartment is rented in Joe Chen’s name and the telephone is listed in Joe Chen’s name. For Glenn, the telephone investigator’s testimony adds nothing. When the defense attorney cross-examines the detective, he once again stresses the fact that his client wasn’t described as the leader of the kidnappers until after Johnny Ding was arrested. “And up until the time of that arrest,” Glenn asks the detective, “there was no information provided to you that Joe Chen was ever involved in this kidnapping, isn’t that correct?”
“Correct,” says Dave. He leans back in his chair, totally relaxed.
Glenn tries to work the detective’s responses to his advantage. He points out differences between the witnesses’ descriptions on the witness stand and their descriptions recorded during the interrogations. Take, for example, the sunglasses.
Glenn later says, “If I remember correctly, the sunglasses belonged to Cow Eyes. He is a big, lanky guy—a bad dude. Jane Ding described him as the guy with the sunglasses. At one point, I think it was the second complainant who said that the leader was wearing sunglasses. ‘The dailo had sunglasses.’ I was trying to show that that person was Cow Eyes, who played a leadership role until Johnny Ding arrived on the scene, and that Johnny Ding was actually the true leader.”
Another inconsistency: the physical descriptions of the kidnappers. The second victim said that Johnny Ding is six feet tall. But, in fact, he is only five five. The tallest member of the group is Cow Eyes, who is five eleven. Again, this supports Glenn’s theory that Cow Eyes was a leader.
But later, away from the jury, the detective gives a different explanation about why there are mistaken identifications in criminal investigations. “Here’s a person who just went through the worst experience of his whole life. He was blindfolded and beaten and tortured, the whole bit. Put yourself in his shoes. Could you remember the heights and the names and characteristics of every one of these people? Would you be able to explain it all to a detective over the telephone? Would it come out totally accurate? That’s very, very hard.”
Hard or easy, in Glenn’s view this corroborating evidence will not hurt his client. After all, no one, other than witnesses who have much to gain, has implicated Joe Chen as a kidnapper, much less the dailo. If Glenn can produce a strong defense, he just might be able to win a not-guilty verdict for his client.
Then Leemie calls a new witness.
ECHO
Once Detective Chan steps down, the jury takes a break and Leemie prepares to call her next witness to the stand. Glenn is not happy about this turn of events. “What’s the nature of this testimony?” he asks. “I was told about this witness at ten o’clock this morning. After the direct examination, I ask that we break for lunch so that I have an opportunity to consider her testimony and that—”
JUDGE FRIED SAYS:
In a criminal case the defendant is entitled to know who the witnesses are so that his lawyer can prepare an effective cross-examination.
“Offer of proof” is advance information about what the witness is going to talk about.
“We will break for lunch after direct—if it’s finished. If it is not finished, we’ll finish it after lunch,” Judge Fried replies.
Glenn will not back down. “First of all, I ask for an offer of proof about what this witness is going to say. This witness is not on the witness list.”
All along it had been Glenn’s understanding that every one of the witnesses who could connect Joe Chen to the kidnappings had cooperation agreements as indicted codefendants. He based his defense on the fact that these witnesses are not credible. Now a new witness, who did not participate in the kidnapping, may place Joe Chen at the crime. Glenn demands an answer. “I need to know the nature of this testimony.”
“Let me hear in a sentence what the offer of proof is,” Judge Fried asks Leemie.
Leemie explains that the new witness visited the apartment during the time of the kidnapping and that on one occasion she heard the defendant give an order for the victims to be beaten.
“There’s your offer of proof.” The judge looks down at Glenn. “What is the issue with the witness?”
“The issue is, Your Honor, that this is the first time that I’m finding out about it,” his voice strains. “It is distinct from every representation the prosecutor has made about what proof would occur in this case.” Glenn is so angry he can barely look at Leemie.
“How can I keep her from calling this witness? What basis could there be for me to do that?” Judge Fried asks Glenn.
The basis is the fact that this witness is a surprise. Glenn wants time to research any legal arguments about producing her at the last minute. Glenn’s body stiffens. “The witness is not on the witness list,” he repeats.
When asked why the witness is not on the list, Leemie respectfully explains that after her interview with Echo, she didn’t think that the woman would ever show up at the trial. Months before the trial Leemie had interviewed Echo along with other possible witnesses. After their interview, Leemie decided not to call her. But once Johnny Ding testified, the prosecutor changed her mind because she thought that Echo could help make Johnny seem more sympathetic.
Last Friday her detectives combed the sweatshops in Chinatown searching for Echo. They found her and told her to come to court Monday. To everyone’s surprise, Echo showed up. Now it is up to the judge to decide whether or not Echo may testify, even though she is not on the witness list. The courtroom is silent.
Three seconds pass.
Five seconds.
Ten.
“Call your next witness.”
Judge Fried looks at the defense attorney, who is slumped in his chair. After Leemie’s direct examination the judge will give Glenn extra time to prepare for his cross.
“At this time the People call Miss Echo,” Leemie announces after the jurors have taken their seats.
Like the two cooperating witnesses, Echo does not look at Joe Chen when she enters the courtroom. Dressed in a red-and-white check shirt, overalls, and black cotton jacket, twenty-three-year-old Echo is not as ordinary looking as Jane Ding, nor as glamorous as the defendant’s girlfriend. She tells the jury that she is a graduate of elementary school and speaks both Mandarin and Fujianese. She came to America in June 1994, after a three-month boat ride for which her family paid the snake head $25,000. Two days after her release, she started working in a sweatshop. “I sew clothes from nine A.M. to ten at night, six days a week.” She still has to repay $10,000 of her smuggling debt. She sends money to her mother in China every month.
Six months after Johnny Ding arrived in America, he met Echo. They have been going together ever since. When Johnny moved to Baltimore, though, she remained in New York, unwilling to give up her steady paycheck working in the garment factory. Then, when Johnny returned (with the second victim), he called her. She spent a number of nights in the apartment where the kidnapped victims were being held. The second victim, Mr. Li, said that one woman was kind to him while he was held. She gave him food and talked to him. That woman was Echo.
LUNCH BREAK
Once the jury leaves the courtroom, Glenn asks if Echo is under arrest. She is not. Glenn wants to talk with the witness.
But he knows that an interview with Echo will be difficult. She has just been escorted out into the hallway behind the courtroom. Glenn believes that there are a number of detectives back there with her. “Will she talk to me freely with the detectives watching us?”
JUDGE FRIED SAYS:
A witness can be subpoenaed to testify in a courtroom, but cannot be forced to talk to the other side.
Judge Fried asks Leemie to see if Echo would be willing to speak with the defense attorney. Glenn wants to be present when Leemie asks Echo; he does not trust the prosecution. But Judge Fried says that she can make this inquiry alone.
Leemie returns with the announcement that Echo does not want to talk to the defense attorney. “She is in a state of confusion and is afraid and upset because she didn’t know that she was going to be testifying today,” Leemie explains. “I volunteered that I would be present during Glenn’s talk with her, but she is in a very agitated state right now.”
Once again anger bubbles from deep inside the defender. He protests that the prosecutor was outside for only four minutes. He complains that detectives are in the hall with the witness. Later Glenn recalls why he wanted to be present when Leemie spoke with Echo. “Once I heard that Leemie was allowed to speak with Echo alone, I knew it was all over. It is not uncommon for lawyers—on both sides—to tell their witness in a persuasive way why it is not in their best interest to speak to opposing counsel. Ninety-nine out of a hundred times a witness will elect not to speak to an opposing attorney. And that’s what I think happened here.”
“There are no police officers,” Leemie says. “She is standing in the back hallway with a Mandarin interpreter, who is female.” Leemie is determined not to let Glenn’s emotional outbursts get her off track. The two victims are counting on her. No one—not even a nice guy like Glenn—will come between these victims and her evidence.
But Joe Chen is counting on Glenn. And no one—not even nice guys like the two victims—will interfere with Glenn’s client’s right to a fair trial.
DISCRETIONARY RULINGS:
In certain specific instances a judge may rule according to the dictates of his or her own conscience and judgment, within the bounds of the principles of law.
* * *
When court is adjourned for lunch, Glenn races two blocks back to his office. “Damn!” he yells, throwing his briefcase on the floor. “Can I block this witness?” He cannot. The judge has the discretionary right to make this ruling.
Glenn calls two defense lawyers, friends, who have had a great deal of trial experience. They hurry over to help plan strategy for Glenn’s cross-examination. “Treat her gently but firmly,” they advise, “and get her off the stand as soon as possible.” The lawyers decide that the cross-examination should focus on two issues: Echo’s immigration status and her relationship with her boyfriend, Johnny Ding.
AFTERNOON SESSION
After the lunch break Leemie has Echo describe some of the same events that were mentioned earlier in the trial. She talks about the time the second victim told her he was kidnapped by Johnny Ding. Three jurors nod in recognition of the incident—a point not missed by the two lawyers.
Later, Leemie explained why she asked these questions. “You always try to reinforce what the complaining witnesses said earlier in the trial.”
CROSS-EXAMINATION
“Are you aware that you could be deported?” Glenn asks, implying that the government has pressured Echo into testifying.
In barely a whisper Echo admits that deportation is a concern. Glenn raises one eyebrow and moves on to another point.
A second reason for Echo to lie is the “stand by your man” motive. When Echo admits that she knows that Johnny Ding is cooperating with the government in order to get a lighter sentence, Glenn glances over at the jury again. Convinced that the jury got both his points, Glenn quickly ends his cross.
REDIRECT
Leemie moves in for damage control. “Did anyone threaten you to get you to come to court today?”
“Objection!” shouts Glenn. He believes that Leemie’s question has nothing to do with his cross-examination.
“She can ask that,” the judge says.
Glenn asks to approach the bench.
“Sure,” agrees the judge pleasantly.
Once at the side, Glenn complains that Leemie is giving an improper line of redirect. “My cross was designed to show that she may have been frightened and concerned about the government, not that she has been threatened by them. And I made a specific effort not to suggest that she had been threatened.” Here is another instance where paying attention to words and their implications is especially important.
Leemie is fast. “Judge, I think that the fact that he even raised the issue—that she is concerned about deportation—leaves open the question whether or not she was threatened.”
Leemie’s next move, Glenn declares, will surely be to ask Echo if promises were made (on Johnny Ding’s behalf) in return for her testimony. There is no reason she cannot ask that question, especially since Glenn brought up the “stand by your man” notion during his cross-examination.
Back in open court Leemie does exactly as Glenn had anticipated. “Did anyone make you a promise for your testimony today?” she asks Echo.
“No.”
“Same objection, Your Honor.”
“Objection overruled.”
“Were there any promises made to you that have to do with your boyfriend or his sentence in order to get you to come and testify today?”
“Same objection,” says the defense attorney. Glenn wants his objections on record in case Joe Chen is found guilty and asks for an appeal.
“Same ruling, it is overruled.”
“No,” answers the witness. Leemie is convinced that she successfully eliminated any suspicion that the government would either threaten or make promises to Echo for her testimony. “I have no further questions.”
Glenn, who is still satisfied that the jury will agree with him that Echo is not a credible witness, has no further questions either.
* * *
“That’s it for this afternoon, ladies and gentlemen,” the judge tells the jury. “There are some legal issues I must deal with. We are going to resume tomorrow morning in this courtroom at ten o’clock. Please do not discuss the case amongst yourselves. Have a good evening.”
REMINDER:
The defense does not have to produce witnesses. The defense only has to undermine the prosecutor’s case.
A MOTION:
This is a formal request, or petition, made by a lawyer to test the constitutionality of the manner in which a statement, physical evidence, or an identification procedure (such as photographs or a lineup) has been obtained.
Lawyers also make an “application for a motion” to challenge the admissibility of evidence. If the judge grants the motion, the evidence cannot be used.
The trial is moving faster than anyone thought. The end of the prosecutor’s case is minutes away. Judge Fried asks Glenn if there will be witnesses for the defense. Glenn reports that he is planning to call witnesses.
After the prosecutor rests, the defense will make his motion to dismiss the case. If Judge Fried denies the motion, the defense must be ready. Glenn returns to his office to prepare the motion, even though he knows that the chances that this will be granted are one in a million.
* * *
Judge Fried sprints downstairs to his chambers and asks his law clerk, Elizabeth, to begin preparing the charge to the jury for when it is needed.
JUDGE FRIED SAYS:
At the conclusion of the prosecutor’s case, it is automatic for the defense attorney to make a motion asking the judge to dismiss the case. The motion calls for an acquittal or a dismissal because the prosecutor has failed to prove the case. This motion is rarely granted.
CHARGE TO THE JURY:
The judge instructs the jury on the law relevant to the case and about the process of deliberation. In other words, the judge defines the relevant law, and the jury finds the facts and applies the law to the facts.
Elizabeth searches the file cabinet for a previous similar case to use as the framework for the charges.
“Did you find it?” the judge asks her while taking off his robe.
“No.”
“Watch this!” he says with a flourish. The judge reaches into the files, expecting to come up with it fast. Not there. Elizabeth giggles. He rummages through the cabinet while Elizabeth works at her desk, trying hard not to laugh. “I see that smirk,” he says merrily. “I’ll find it yet.” He digs deeper. Elizabeth’s head is partially hidden behind stacks of legal paper that sit on her desk. Mrs. Cassidy telephones to say that the judge is needed in the courtroom for a pretrial hearing on a different case.
“You’ll see.” He turns to Elizabeth lightheartedly. “It’ll come to me when I’m on the bench.”
“Yeah, yeah,” she laughs.
TIME: LATER THAT EVENING
PLACE: GLENN’S OFFICE
Glenn returns to his office for his late-night meeting with a mystery witness. While waiting, he pores over tons of case law to help him build an argument for yet another continuance to prepare his case. The judge will deny it, of course, because he doesn’t want to hold the jury any longer than absolutely necessary. But Glenn works on a brief anyway. If Joe Chen is convicted, the themes in this motion could later set the bases for an appeal.
Just before the mystery witness is due to arrive, Glenn asks everyone to leave the offices. In general, defense lawyers tend toward a heightened state of distrust when the government is involved. Glenn is particularly apprehensive about the state finding this witness before he has a chance to talk to him. He even pulls down his blinds.
A tall, skinny man enters the darkened waiting room.