WITNESS FOR THE DEFENSE
• GLENN REVEALS THE NAME OF HIS MYSTERY WITNESS.
• JOE CHEN’S GIRLFRIEND IS THE STAR WITNESS FOR THE DEFENSE.
• LEEMIE CROSS-EXAMINES THE WITNESS.
DATE: TUESDAY, APRIL 28, 1998; 3:00 P.M.
PLACE: JUDGE FRIED’S COURTROOM
The time has finally come for Glenn to reveal the name of his mystery witness. Without the jury present, Glenn announces formally, “Your Honor, the witness that I intended to call goes by the name Stick. This is an individual whose name has come up throughout the trial. He was smuggled to the States along with the two confessed kidnappers, Sonny Chen and Jane Ding, as well as their victim, Mr. Wang.” (Remember, Mr. Wang testified that while he was held captive he thought that he recognized Stick’s voice.)
Glenn wants Stick as a witness because he was present during part of the kidnapping and could shed light on some of the facts.
Glenn says, “Stick was supposed to be in my office at one o’clock. He did not show up.” Glenn says that Stick is nervous because he is subject to arrest for his involvement in this kidnapping. To protect his rights, Glenn asks that a court-appointed lawyer be assigned to him. Because Glenn is Joe Chen’s lawyer, it would be a conflict of interest to represent Stick as well. Furthermore, Glenn, who is always suspicious about the state’s actions, wants this court-appointed lawyer to meet Stick in a secret place—a place unknown to law enforcement.
Judge Fried asks Leemie if this witness is subject to arrest.
“Yes, judge,” she replies. Law enforcement would love to get Stick.
Judge Fried signs a subpoena forcing Stick to appear. Then he arranges for a translator and a lawyer to represent this witness. He gives Glenn till the next morning to see if Stick will show up. In the meantime, the judge wants Glenn to continue with his other witnesses.
None of these precautions matter, because Stick has disappeared.
Next.
Glenn wants an additional witness, Detective Dave Chan. Leemie is against it. She says that Glenn is re-calling the detective, her witness, only to talk about the participants’ ages again—and that’s not relevant. Leemie later explains, “When a direct examination goes smoothly, you don’t want anything to disturb it. Things could come up that, even though they are not particularly relevant, the defense might try to make into a big deal. It’s not as if Dave will come on the stand and say, ‘Oh, yeah, I remember now, Joe Chen didn’t do it.’ It’s not going to be anything catastrophic, but still, a person’s recollection can change slightly. Those little changes can chip away at the case. Dave’s testimony went smoothly and I did not want to disturb it.”
Glenn says that the participants’ ages are indeed relevant. Johnny Ding is older than Joe Chen. According to Leemie’s earlier reasoning, the dailo is always the oldest. That means that Johnny Ding is the leader of the kidnappers.
“You did raise the cultural relationships,” the judge reminds Leemie.
“Only among relatives does age count,” replies Leemie. “Johnny Ding is not related to Joe Chen.”
The judge leans back in his seat, taking a moment to ponder the arguments. “Speculation,” he says, agreeing with Leemie.
Glenn’s face reddens. He shifts his weight from side to side. “There’s a double standard here,” he complains. “As I see it, the exact same point that she utilized, I can’t.”
Leemie claims that there is a difference between family hierarchy and gang hierarchy. If Glenn argues that they are equal, Leemie wants an opportunity to bring on an expert witness to prove him wrong.
“Does the State have an expert witness about Asian gangs?” the judge asks.
“Pardon me?” she says, thrown by the question. Collecting herself, she says that she could get an expert by this afternoon.
Ruling: The defense can include the ages of the kidnappers and the prosecutor can bring in her expert. Neither lawyer is happy. Are they both bluffing? Is the judge calling their bluffs? No one will say.
It’s Glenn’s move in this high-stakes poker game. He asks for yet another continuance because he needs time to interview his own expert to rebut her expert. “And since I do not have the resources that she has, I will need at least two or three days to get an adequate expert.”
Judge Fried stops them both. “I’m going back! I am precluding the age. According to the testimony already developed, age is not relevant between Johnny Ding and the defendant. The point that Johnny Ding must be the leader simply because he is older than the defendant is pure speculation.” Glenn is about to speak, but the judge has the final word. “I’m not going to allow any further arguments on this. I have made a ruling!” Everyone is tense. Glenn withdraws the detective’s name from the witness list. Leemie marches to her seat. Joe Chen is silent. The jury enters.
“THE DEFENSE CALLS SUZY LING”
At first glance Suzy Ling is gorgeous, dressed in a long silk skirt, black sleeveless blouse, and sandals. She has high cheekbones, very long legs, and very, very long hair—hair falling well below her waist. Look again. Her eyes are deep black holes—dead eyes.
Suzy is on the stand to show that Joe Chen did not live in the apartment on Rivington Street during the time of the kidnapping. He lived with her.
Mary Cassidy administers the oath and Glenn begins his direct examination by asking questions about Suzy’s life.
Suzy tells the court that she is twenty-eight years old and a high school graduate. In 1993 her family paid a snake head $30,000 to smuggle her to Los Angeles. It was there she met Joe Chen. When he moved to New York, she went with him. For a while she was a hostess in a restaurant. Then she worked at a massage parlor. “I work there now,” she says dully. “I’ve been arrested and convicted for prostitution. When that happened, I gave the police different names.”
Glenn asks the witness about her current relationship with Joe Chen. He wants the record to show that the witness and his client are no longer a couple, and therefore Suzy Ling has no reason to lie to protect him. Searching for a dramatic presentation, Glenn takes a moment to talk quietly to his client. He twirls toward the witness. “Has Joe Chen been in jail for the last ten months?” Up until this time everyone has been careful not to let the jury know that the defendant has been imprisoned. The knowledge of the incarceration might have a psychological effect on the jury that could be prejudicial.
“Yes,” she replies simply. The jurors do not seem surprised.
Later Glenn explains why he asked this question. “I figured it didn’t matter at this point. There was enough bad stuff coming out against him. And I may create some sympathy for him.”
Suzy tells the court that when Joe Chen was arrested, she visited him one or two times a week. She spoke to him on the telephone until three months ago, when she decided to end the relationship. He still calls her, but sometimes she doesn’t answer the phone.
“Do you feel uncomfortable being involved with this?”
“Objection!” shouts the prosecutor. Leemie anticipates that Glenn’s line of questioning implies that Suzy Ling’s “discomfort” is in seeing the prosecutor, Leemie, watching her every move. His next question will suggest that the prosecutor interrogated Suzy Ling while Glenn was waiting to interview her. Leemie insists that that is not true.
The judge allows Glenn’s question and Suzy answers no, she is not uncomfortable.
Since the night Suzy was with the prosecutor when she was supposed to go over the defense, Glenn has been resentful. He won’t let the issue drop.
“Did you see this woman there when you went to the D.A.’s office?” he says loudly, thrusting his arm toward the prosecutor. Leemie sits quietly at the table, listening to the testimony.
Suzy tells the court that she was in the assistant district attorney’s office from noon to eight P.M. and that she was questioned about the kidnapping. Glenn glares at Leemie. Then, with a nod to the jurors, he moves on to a new line of questioning.
Earlier Glenn carefully prepped Suzy to speak truthfully, but say very limited things about the apartment where the kidnappers were held. For instance, she told Glenn that she never saw Joe Chen at the apartment—he wasn’t living there. At first her testimony is exactly as Glenn expected. She says that in the early part of 1995 she lived with Joe Chen at the Rivington Street apartment. In June they moved out. They returned to pick up some of her belongings that were left behind in the back bedroom. She was in the apartment for about ten minutes.
“Was the front bedroom door open or closed?” Glenn asks.
“Open,” she says. That means she had to have seen the victims who were chained to the window grate in the front bedroom. Then, in front of the judge, the jury, the prosecutor, and her ex-boyfriend, Suzy Ling changes her testimony from what she had told Glenn. “After I left, Joe Chen stayed. A few of them were talking.”
Leemie sits up.
Glenn’s mouth drops. “Oh, no!” he says to himself, afraid that his entire case is about to unravel. This presumably innocent remark puts the defendant smack dab in the middle of the crime. Why would Joe stay? What was he doing there?
He tries to pull her back to the areas they discussed last night. Glenn doesn’t even have to look over at the prosecutor’s desk; he knows that Leemie is busy writing notes.
“Did you go back there?” he asks her, trying to get her back on track.
“Two days later, to get more things.”
“Who was there?” Suzy says that she only saw Johnny Ding and his girlfriend at the apartment.
“See him making telephone calls?”
“No.”
“Did you see the victims of the kidnapping in handcuffs or—”
“No, I did not. I did not!” But the victims said that more than once they saw a woman with very long hair. “Move on! Move on!” A voice howls in Glenn’s head. He must get her off the stand. “I have no further questions.”
* * *
Before Leemie’s cross-examination, Judge Fried calls the lawyers to the side. He checks that Glenn still wants him to instruct the jury after Leemie’s cross concerning the time Joe Chen beat his girlfriend. Glenn prefers to make the decision after the cross.
“Judge, let me ask a couple more questions,” Glenn adds.
“Sure.”
He returns to Suzy. “You have come to my office only to talk about your testimony?”
“Yes.”
“Did I ever tell you to lie?” Lawyers often ask this question so that the jury hears that they would never ask witnesses to lie.
“No.”
“I have no further questions.”
CROSS-EXAMINATION
First Leemie wants to clear up the reason a police officer brought Suzy Ling to her office. Second she wants to prove that Suzy is not afraid to testify in front of the prosecutor.
Leemie approaches the witness with the following questions that call for yes or no answers. “You remember who I am. Right?” she asks sweetly. “In fact we met face-to-face last Monday. Right?… The person who asked you to come here is Police Officer Tsoi?… He was the police officer who arrested certain individuals for a robbery at your massage parlor.… On that robbery case you met with another assistant district attorney who was a man. Right?… You testified at the grand jury on that?”
“Yes. Yes. Yes. Yes. Yes. Yes.”
“Officer Tsoi asked you to come down to the district attorney’s office last Monday?”
“Uh-huh.”
“Just for the record, if you could say ‘yes’ or ‘no,’ because the stenographer can’t really write down what ‘uh-huh’ is.”
“Okay. I won’t ‘uh-huh’ anymore.” Three jurors giggle.
All along Leemie has insisted that she spoke with Suzy in her office for a very short time and then went off to court. Afterward, Leemie explains why it was a short time: “During the time that Suzy Ling was in my office, she adamantly denied that she was even in the kidnappers’ apartment. Mostly, I think, she was afraid of being implicated in this crime. For her to say, ‘Yes, he was there at certain times,’ or ‘Yes, I was there and saw such-and-such,’ might be seen as an admission of guilt. She was not going to do that, no matter what.”
After Suzy says that she waited at length for the prosecutor to return from court, Leemie moves on to the relationship between the witness and the defendant. Leemie explains afterward, “Once I realized I wasn’t going to get anything more about the kidnappings from her, I tried to get information about her relationship with Joe Chen. I was looking for any motive she might have for protecting him. I asked about other bad acts that she might have committed for him because I wanted to show that she would do anything to help her boyfriend, including lie on the witness stand.”
Always meticulous about laying the foundation for her future questions, Leemie first asks Suzy to point out Joe Chen by identifying an article of clothing that he is wearing.
“He’s wearing a black-colored suit.”
The judge looks up. “What color suit?”
“Black.”
Judge Fried asks her to describe another article of clothing.
“He’s wearing a white color shirt and a flowery tie.”
Leemie is trying hard not to laugh. “Well, judge, that is actually Mr. Garber.” Everyone is laughing, even Glenn. Not quite everyone—Joe Chen does not laugh.
Judge Fried suggests that the witness turn around and face the table. “Do you see him at that table?” Suzy describes her ex-boyfriend as the one with glasses. Leemie moves on.
During the summer of 1995, Suzy Ling worked at a massage parlor from noon to midnight. Sometimes, though, when business was slow, she went home early. At that time Joe Chen was not working. Suzy testifies that when Mr. Wang and Mr. Li were first kidnapped, Joe Chen was not in her apartment when she returned home, even though he did not have a day job. She readily tells the court, “Oh, at night he always returned.”
“Stop! Stop! Stop!” thinks Glenn, looking straight ahead.
But Leemie does not stop. “Is Joe Chen the only person you know in America?”
“Who did I say that to?” Suzy didn’t practice this question.
“Okay. I will make it clear. You have no other relatives other than your boyfriend?”
“That’s right. Yes.”
“Didn’t you come to his earlier court appearance?” [This refers to the pretrial hearing to suppress Joe Chen’s two statements.]
“Oh, no,” Glenn thinks, “she is building the relationship I so carefully tore apart.”
“Yes, that’s right,” Suzy answers.
Leemie digs deeper, soliciting the very information she was prepared to obtain from Joe Chen if he chose to testify. “In November of 1995, the defendant hit you at your apartment.”
“Right.”
“You pressed charges with the police on November 20, 1995?”
“I don’t remember the date.”
“But after that you never came to court?”
“I didn’t went to court.” Instead, Suzy protected her boyfriend.
By the end of the day’s testimony, Leemie manages to get into evidence a prior bad act committed by Joe Chen (hitting his girlfriend) that suggests he is a violent person. She manages to get into evidence the fact that Joe was not working and was not always home with his girlfriend. What was Joe doing all day? Was he with the kidnappers? The answers to Leemie’s questions, coupled with the perfect statement “After I left, Joe Chen stayed,” are all the prosecutor needs. No further questions.
The best thing Glenn can do for his client is get Suzy Ling off the stand. “I have no questions,” he tells the court.
Suzy is dismissed with a “Thank you” from the judge. She appears to have no idea of the debacle that just took place. But then, maybe she planned it.
* * *
The trial is moving faster than Judge Fried anticipated. “I think there’s an 80 percent possibility that this case is going to be completely finished by tomorrow,” he tells the jury. “If I’m correct, I will then charge you after lunch. I am hoping you can begin your deliberations right then.”
A hand goes up in the jury box. “Does that mean that we are going to be sequestered if—”
“If you deliberate tomorrow, and you are unable to reach a verdict, there’s a possibility you may be sequestered,” the judge says.
“See you tomorrow at ten o’clock. Please be here promptly so we can begin promptly. Have a pleasant evening. Do not discuss the case.”
Judge Fried gives both lawyers a draft of his charge to the jury, and they plan to meet the following morning, after Glenn has a chance to look over the material.
CHARGING THE JURY:
The judge instructs the jury on the rules of law that apply to the case they are about to deliberate.
Glenn talks briefly with his client before he is taken back to his cell. He packs his notes into his well-worn briefcase. “I want to go home, see my family, and work on my summation. I am working on three hours’ sleep. I can’t function anymore.” He shakes his head and sighs. “She was terrible up there. I can’t believe I put her on the stand.”
Leemie leans across the aisle. “At least you didn’t redirect.” Glenn shakes his head and walks out of the courtroom.
JUDGE FRIED SAYS:
Both lawyers are entitled to review and discuss the judge’s charge to the jury before they give their summations.