I CANNOT BE CERTAIN
• LEEMIE CONTINUES HER DIRECT EXAMINATION OF MR. WANG.
• GLENN CROSS-EXAMINES THE VICTIM.
TIME: THURSDAY. APRIL 16. 1998; 9:00 A.M.
PLACE: OUTSIDE THE COURTHOUSE
His Honor Bernard Fried kisses his wife good-bye—“Have a nice day”—when she drops him off at the judge’s entrance to the courthouse. He watches as she drives off, heading south toward Brooklyn and the federal courts where she is a judge.
He uses a plastic card to open the JUDGES ONLY elevator. It seems that everyone else in the lobby floods in with him. Judges. Police officers. Guards. Clerks. Secretaries. “Good mornings” all around.
Arriving in chambers, the judge greets his law clerk, Elizabeth Candreva, and his secretary, Esther Josiah, who are already working. He takes off his sport coat and hangs it beside one of two black judge’s robes. He looks at his computer. The screen saver has a photograph of his grandchild. He smiles as if she was there and taps a key two times to bring up his calendar. He dunks a Lapsang souchong tea bag into a mug of boiling water. “Anyone want tea?” he calls to his staff. “Coffee?”
“Nope, we’ve already had,” they reply.
Bernard Fried has been a trial judge for eighteen years. “My job is very, very interesting,” he says. “I love my job.”
The telephone rings. It’s Mother Superior. “Good morning, judge. Ten o’clock and all are present.”
Judge Fried in his chambers.
MOTHER SUPERIOR
A large bowl of candy and a box of tissues sit on Mary Cassidy’s desk inside the well of the courtroom. Mary is referred to as Mother Superior by just about everyone in the building. She is Judge Fried’s court clerk. She watches over the judge’s courtroom like a robin protecting her chicks, keeping account of the witnesses, recording the exhibits into a ledger, and administering oaths to the witnesses. Mary says, “I tell people this is the best job I have ever had. It fulfills my lifelong addiction to murder mysteries.”
After Mary telephones the judge, he puts on his robe, takes one last sip of tea, and sprints up the back stairwell to his courtroom. With everyone in place, a guard escorts the jury into the courtroom and the witness returns to the stand.
When Judge Fried asks the lawyers to continue, Leemie thanks the judge and approaches the witness box. Mary reminds the witness that he is still under oath. Mr. Wang appears less nervous.
Mr. Wang explains that after his first beating, “Sonny Chen lay on the bed and I was handcuffed to the bar. I chatted with him. He said it was under somebody else’s order that I was kidnapped.”
The prosecutor asks, “After Jane Ding brought you into the apartment, did you have any other contact with her during that whole period of time that you were in the apartment?”
“I had no contact with her.”
“Did she say anything to you after you were brought into the apartment?”
“Objection!” shouts Glenn, anticipating Leemie’s future questions. Glenn supposes that Leemie is trying to get the witness to repeat what somebody else has said about the defendant. That is hearsay and not admissible.
HEARSAY EVIDENCE:
The witness cannot repeat conversations that he or she heard about from a third party, with certain exceptions.
“Can we go to the side, please,” the judge says. Away from the ears of the jurors, the judge asks what the objection is. “She’s started to lay a foundation for hearsay,” Glenn replies. Glenn’s voice is calm and professional, but his face reddens ever so slightly.
Leemie says that she is not. “I’m trying to elicit that she didn’t say anything to him, she didn’t do anything to him.” It is not hearsay. They return to open court. “The objection is overruled,” the judge says. Leemie can ask this question.
The prosecutor continues her questioning. “Did Jane Ding ever say anything to you during the time you were in the apartment?”
“No.”
“Did she do anything to you while you were in the apartment?”
“No.”
“Did you ever hear her give orders to anybody concerning you while you were in the apartment?”
“No.”
Glenn, annoyed by Leemie’s pointed emphasis of the word you, clenches his pencil but remains silent.
Moving to a new issue, Leemie asks, “Do you know a person by the name Stick?”
“He was on the boat with me.” One day, while Mr. Wang was held captive, someone beat him severely on the upper chest. He thinks he heard Stick’s voice say, “Do not hit him.” He’s not sure though. “I never heard Stick’s voice after that day.” Then he adds, “Afterwards, there was another person who said Mr. Li’s finger has been chopped off. That person, I realized, was often there. He carried a cell phone all the time, and he could speak a little English.”
Leemie has two objectives: one, to elicit more details of Mr. Wang’s life in captivity, and two, to establish that the man whose voice he heard, the man with the cell phone, could only be Joe Chen. She moves closer to the witness. “So other than Sonny Chen, Jane Ding, and Stick, did you personally know anybody who was in the apartment during that period of time?”
Eyes like Cow. Cow Eyes. That’s a nickname, I’m pretty sure. That’s what other people always called him. Cow Eyes sometimes hit me. He punched me and my arm went numb. At night Sonny Chen slept in the bed while Cow Eyes slept across the door, across the doorway, to block the doorway.
The apartment lights were always on. The cloth over my eyes often became loose. Sometimes I could see through the cloth. I could see Sonny Chen and the person known as Cow Eyes. I couldn’t exactly see their faces but he, Cow Eyes, was taller than Sonny Chen.
In the beginning my hand was cuffed very tight and was hurting. I asked Sonny whether he can loosen up a little. He agreed to my request. And on one night, one night I was able to loosen myself from the handcuffs. Sonny was already asleep. I took the blindfold off. I slowly went to the door of the room and went out.
As soon as I got outside, I was able to see in the kitchen. There was a table in the kitchen with four sides and a lot of people around it. I was very scared so I went back to my original position. After I got inside, I quickly put my blindfold on and put my hands into the handcuffs. Sonny jumped up and asked, “What are you doing?” I said, “Nothing.”
I didn’t have a chance to see the faces of the people around the table. As soon as I saw that there were people, I returned right away.
Sonny told me not to move. “If you move,” he said, “people outside will beat you to death.”
During that period of time, I tried to speak with Sonny. I said, “Sonny Chen, we came to this country in the same ship. During that trip we took in a lot of hard time. That’s very difficult for us to come here. Now you kidnapped me? It’s really not a good thing to do.” He said he’s only following somebody’s order and he has no choice.
I asked him whether he can reduce the amount of money they are asking for. He said, “I will try to help you and I’ll try to talk to the group about the money.”
WHO IS JOHNNY DING?
Here comes a tricky section in the trial. Mr. Wang says that one of the kidnappers said that his name was Johnny Ding. A few days later a second victim is brought to the apartment by a man called Charlie Chan. Charlie Chan is Johnny Ding’s nickname.
Mr. Wang is certain that the man he first heard and the man who kidnapped the other victim are two different people. Who then was the first Johnny Ding?
Leemie implies that that person is the defendant, using the name Johnny Ding to hide his own identity. Glenn will later suggest that person could be one of any number of people, some of whom are still at large.
LEEMIE KAHNG’S CHART:
Joe Chen—the defendant
Sonny Chen—his brother
Luke Chen—his cousin, also known as “Cow Eyes”
Jane Ding—cousin by marriage
Johnny Ding—a distant cousin of Jane Ding, also known as “Charlie Chan”
The jury looks at Leemie Kahng’s name chart to reduce the confusion. Leemie needs another identification to reinforce her argument.
Mr. Wang tells the jury that the man with the cell phone—the first Johnny Ding—was often accompanied by a woman with very long hair. Although this woman never spoke to Mr. Wang, he figures that she was the first Johnny Ding’s girlfriend.
But then, after the second victim was brought to the apartment, yet another woman arrived. She came with the real Johnny Ding, a.k.a. Charlie Chan.
Mr. Wang says that the second woman was very kind.
She brought me food, an apple. I deeply appreciated what she was doing. I told her—I said in Mandarin—I said, “Female usually has a heart like a mother.” And she replied to me, saying, “Of course.”
I cannot describe this woman.
Leemie asks, “Mr. Wang, can you tell me whether anybody here in this courtroom was at the apartment during that period of time?” He stares at everyone: the jurors, lawyers, Mother Superior, the guards, and even the judge. He studies Joe Chen’s face for a long time. Finally, head lowered, his voice is barely a whisper. “I cannot be certain.”
Glenn Garber scribbles his response on a yellow legal pad and underlines it two times. “I cannot be certain!”
* * *
Although Leemie cannot tell how the jury is responding, she believes that Mr. Wang is a good witness. “I think he is coming across as an honest person. There was no exaggerating. He didn’t make up anything.”
Leemie moves ahead to the technical parts of the prosecution, including the identification of the kidnappers in lineups. Then she asks, “And how did this ransom get paid?”
“My family in China contacted the person with the beeper number.”
“Objection!” shouts the defense. Remember, the witness generally cannot repeat anything that he heard about from a third party. Lawyers have to be totally alert, ready to challenge any question, any phrase, or any single word by the opposing side.
“I’m going to stop the answer,” the judge says. “Why don’t we take a break, ladies and gentlemen, because this will take a few moments to resolve. We’ll be with you in five or ten minutes, and then we’ll work through to lunch.”
The jury leaves the room.
The judge has anticipated the defense attorney’s objection. “Is the objection on hearsay grounds?”
“Yes,” agrees Glenn.
“Why isn’t it classic hearsay?” Judge Fried asks the prosecutor. Remember, hearsay is repeating evidence you heard about from others.
Leemie is on the spot. “I don’t know, judge, actually.” A sheepish smile crosses her face.
The judge answers his own question. “It’s classic hearsay. The objection is sustained. I will let you ask if he learned the ransom had been paid in China and end it at that. I don’t see that as a problem.”
Before they go back into session, Glenn has a few more requests on behalf of his client. He wants a better copy of the diagram of the apartment. He wants to know whether or not the detectives wrote memo entries about their conversations with this complaining witness. He wants any 911 tapes and any recordings made of telephone calls to Mr. Wang. Leemie doesn’t think there are any, but she will check.
Once back in open court, the direct examination continues. Throughout this long morning, all members of the jury pay careful attention. No one fidgets, no one even yawns. Leemie asks, “Judge, may I proceed?”
“Yes.”
“The woman who came with Johnny Ding, and who fed you the apple, was she there during the morning or nighttime?” she asks, setting the stage for a future witness.
“Night.”
“I have no further questions.” Leemie takes her seat.
CROSS-EXAMINATION
Glenn’s job is to raise reasonable doubt about whether his client was actually one of the kidnappers. He will poke holes, show gaps, and expose any inconsistencies in Leemie’s evidence.
“The standard practice in criminal defense is not only to show there is reasonable doubt, but also to give the jury an out,” Glenn explains after the trial. “I was taught to give an alternative explanation consistent with the defendant’s innocence.”
Glenn walks toward the complaining witness with a friendly smile. The witness stiffens. “Mr. Wang, I represent Joe Chen, and I’m going to ask a number of questions now; okay?”
“Okay,” Mr. Wang says, distrustful.
“If you don’t understand the question, please let me know.”
“What did you say?” he grunts.
“If you don’t understand the question, please let me know, like you did right now.”
“Okay.”
“Did this happen about two and a half years ago?”
“This happened in 1995.”
Glenn wants to show that this witness is unable to remember enough details to incriminate his client. “Is it fair to say your memory was better then than it is now?”
“Of course.” Another grunt.
Glenn moves to a different line of questioning. “Do you recall telling Detective Hayman Goon that you were able to identify your kidnappers?”
“I did.”
“Do you recall giving him the names of the kidnappers in this case?”
“I did.”
“Do you recall telling him that there was an individual by the name of Johnny Ding who was involved in this kidnapping?”
The witness complains that the attorney is not pronouncing Chinese names correctly. “The name is Johnny Ding. Can you pronounce the name more correctly?”
“I don’t mean to state anything incorrectly, Mr. Wang. And I assume that you will be better with Chinese names than I will be.”
“Of course.” The jury is smiling; some jurors smother laughter.
“We hope so,” adds the judge. “Continue.”
Mr. Wang is a sympathetic witness, and Glenn does not want to appear to be harassing him. “In the event that I mispronounce a name, please feel free to correct me.”
“No problem,” replies the witness, and grudgingly answers the question. “I did not say I was able to identify the leader. I said I was only able to identify some of the kidnappers.”
Glenn tips his head sideways and asks if he once described Johnny Ding as being five feet nine inches tall. Leemie objects to this question, but Judge Fried allows it. Physical descriptions, especially height and weight, are a typical way to identify perpetrators. Mr. Wang does not remember saying that Johnny Ding is five feet nine inches tall.
REDIRECT:
Redirect comes after cross-examination. The redirect gives the lawyer who called the witness an opportunity to go back and review details. The questions are limited to subject matter covered during the cross.
As the defense attorney works, Leemie watches the jury’s reactions and jots down questions she will use during the redirect examination. This comes after Glenn’s cross. “I must be prepared to object if he’s going for testimony that I don’t think should come out.”
While the cross-examination continues, Leemie is making a chart. On the left-hand side, she lists Glenn’s main points. On the right-hand side, she writes questions to rebut his points. “Sometimes I’ll even use different colored pens to clarify complex issues.”
In rapid-fire sentences Glenn asks, “Do you recall telling the detective that Buddy Pan [Mr. Wang’s friend from China] was one of those Asian males? Do you recall telling him that Buddy Pan had a gun? Do you recall telling Detective Goon that in September of 1995, Buddy Pan contacted you and threatened you about this kidnapping?”
“I did. I did. I did.”
“Objection!” calls Leemie. She does not want Glenn badgering her witness.
The judge calms everyone down and calls for a lunch break. After the jury and the witness leave the courtroom, Judge Fried asks Leemie, “Objection to what?”
“Judge, he’s trying to elicit something that Buddy Pan supposedly said to him which I think is hearsay.”
Judge Fried replies, “I thought the question was whether he told the detective something Buddy Pan said to him.”
Leemie knows where Glenn is going. “The next question will be, ‘Didn’t Buddy tell you…’ That’s when I objected.”
Leemie is right. That is exactly where the defense attorney is going.
“What I’m trying to establish,” Glenn explains to the judge, “is that there are other individuals involved in this kidnapping. On direct examination the witness claimed he did not know or could not identify all the perpetrators. But he later said he identified them in the beginning of the investigation. His current recollection is different from his original report. That’s what I’m trying to establish.” Glenn gallantly offers to withdraw or rephrase the question.
LUNCH BREAK
After lunch Glenn moves on to another topic. “Let’s talk about an individual by the name of Buddy Pan. How do you know that person?”
“We were friends back in China.”
“Did you have any arguments with him or fight with him on the boat ride over here?” Before the trial Glenn read about a disagreement in the detective’s notes. Now he can use this information as a plausible motive for someone else’s deciding to kidnap Mr. Wang.
“Had a fight with who?” It is not clear whether Mr. Wang does not understand or is just making life difficult for the defender.
“Buddy Pan.”
“We had some disagreement,” he admits reluctantly.
“On the boat?”
“Um-hmm.”
“So you weren’t friendly with him after the boat ride; is that correct?”
“We were still friends,” the witness insists.
Glenn asks, “Now, Buddy Pan was one of the kidnappers; isn’t that correct?”
“I cannot be definitely sure.” Mr. Wang juts out his jaw contemptuously.
“Well, you told the police that he was one of the people who was involved in your kidnapping. Isn’t that correct?”
“I didn’t say that. I didn’t say he was one of the kidnappers. No, I didn’t.”
“Is it your testimony that he did not have a gun during the kidnapping?”
“No, he didn’t!” he shouts angrily.
“Noooooo?” The shock in Glenn’s voice implies that this is not true. On to a new approach. “Now, Buddy Pan contacted you in September of 1995; is that correct?”
“After I was released from the kidnapping, he contacted me once. Exactly what was the date, I cannot remember.”
Glenn nods as if to imply There, there, you’re doing fine. Again Mr. Wang will not respond. “When he contacted you, he threatened you not to report this kidnapping to the police. Is that correct?”
“He said this: ‘Whatever the loss you suffer, that’s already—it’s over. If you report to the police, it’s not going to make much difference.’ That’s what he said.”
“Isn’t it true that Buddy Pan is involved in a gang that commits crimes in the Baltimore area?”
“Objection!” says Leemie.
“Let’s go to the side, please,” the judge says.
Once aside, Leemie objects because this information is not relevant to the kidnapping; she maintains it has nothing to do with it. The judge asks Glenn how this issue is relevant. He replies that Johnny Ding, who is one of the future cooperating witnesses, committed crimes in the Baltimore area. Johnny Ding and Buddy Pan are somehow connected.
The judge doesn’t see this point as relevant. He sustains the objection.
“What grounds?” Glenn demands.
“Completely irrelevant,” Judge Fried snaps back. “Those are the grounds.” Back to open court.
Glenn must establish the fact that Johnny Ding is one very bad man. And he must establish that this very bad man is the leader of the kidnappers. He asks Mr. Wang if Johnny Ding ever pointed a gun to his head. Did he hit him? How often did he beat the other victim? Did he order Sonny Chen to beat him?
Mr. Wang says, “I was always blindfolded during the period of time. I was hit by a lot of people. I do not know who hit me.”
“Is it fair to say that people were coming in and out of the apartment and spoke to the kidnappers, but did not harm you?”
“I was hit by a lot of people,” he repeats.
Glenn switches back to the time Mr. Wang first arrived in America. He asks what it was like to be held in captivity by the brutal snake heads. Mr. Wang says, “If you don’t have money to pay them, they will hit you really, really hard. If, coincidentally, they hit you to death, that’s what you get.”
As Glenn continues to ask questions about Sonny Chen and the snake heads, Leemie objects to every one. They are not relevant to this kidnapping. Although every objection is sustained, Glenn doesn’t seem to mind. He is planting seeds of doubt for future witnesses. Besides, the members of the jury hear the questions, even though legally they must pretend they did not.
“I have no further questions.”
Mr. Wang breathes a deep sigh.
REDIRECT AND RECROSS
During her direct examination of a witness, Leemie lets the witness tell the story in a free-flowing way. With redirect she zeros in to clarify issues that Glenn brought up during his cross. How did Jane Ding get his phone number? (From Buddy Pan.) Did he ever actually see Buddy Pan in the apartment? (No.) Did the kidnapping leave him emotional and fearful? (Yes.) Does he believe that Johnny Ding and Charlie Chan are two different persons? (Yes. They are different.)
Once she has no further questions, the defense has a chance to recross. The rules for recross are the same as redirect. Glenn can ask questions that relate to Leemie’s redirect only. In this way the testimony gets narrower and narrower, like water pouring down a funnel.
Glenn stands by his client at the defense table as a subtle way to remind the jurors that this witness cannot identify his client. He says, “This individual you referred to as Johnny Ding, was he the person with the sunglasses?”
“That’s right.”
“And that person made phone calls to China. Correct?”
“He did.”
“As a matter of fact, he was the individual who forced you on numerous occasions to speak to your family in China. Correct?”
“He did force me to talk to my family, but not a number of times.”
There are no further questions.
The judge calls for a short break before the next witness, the second kidnapping victim, Mr. Li, is called.
Both Leemie and Glenn are pleased with their examinations. Leemie was able to humanize the crime because Mr. Wang was a very believable witness. Glenn was able to raise some reasonable doubt that his client was a kidnapper because Mr. Wang was unable to positively identify him. So far so good.