NOW I DON’T TRUST NOBODY
• GLENN CROSS-EXAMINES JANE DING.
• JANE DING AVOIDS HIS QUESTIONS.
• LEEMIE TRIES TO PROTECT HER WITNESS.
TIME: WEDNESDAY. APRIL 22. 1998: 10:30 A.M.
PLACE: INSIDE THE COURTROOM
Detective David Chan rushes into the courtroom. “There is one more bus arriving from Riker’s Island [the prison] at eleven o’clock. She may be on that bus!”
“Let me tell you what happened,” Judge Fried, rubbing his forehead, says to the jury. “It’s no wonder I haven’t any hair left.” They smile at him as he shrugs his shoulders. “As you know, the witness who was supposed to be here this morning is in jail. She must be transported to this building by law enforcement personnel.
“There’s been a glitch. We don’t know what the glitch is yet, and we can’t find out whether she has, in fact, left. I know it’s going to take at least half an hour. If she is not on that bus, it might take all morning.
“Normally there would be other witnesses available to squeeze in, but we fully expected that she would be on the stand all morning, and I authorized the assistant district attorney not to have any additional witnesses ready.” He smiles at Leemie. “She can blame me for it. So have a pleasant walk outside, if that’s what you would like to do. You can remain in the hallway. I’m going to use this time in the courtroom to take care of some business that I need to with the lawyers. I ask for your understanding. Come back at eleven o’clock. Sorry for this delay.”
Just after the last juror leaves the courtroom, the telephone rings. It’s the prison. Jane Ding is on a special bus that will bring her to this building. If the traffic holds, she should be here by eleven-thirty.
In the meantime there are rulings Judge Fried needs to make before the following witness, the infamous Johnny Ding, is brought before the jury. “All right.” The judge looks to the prosecutor. “Let’s tick them off one at a time.”
Leemie recites a “wish list” of Joe Chen’s acts, all bad, that she wants to tell the jury in order to substantiate that he had a relationship with Johnny Ding. Just as she did earlier in the trial, Leemie cites a number of decisions, case law, to back up the reasons she should be allowed to include these items in the trial.
But Glenn has case law, too, to show why these items cannot be revealed. “I assume the source of this information about my client’s bad acts is Johnny Ding.” It is. “Is there independent evidence to support Johnny Ding’s claims?” There is not.
According to Glenn, these acts are extremely prejudicial to his client. If the jury hears about any of them, they will presume that his client is a very bad man. And if his client is a very bad man, the jury could presume he is guilty of this kidnapping. The defense must resist this.
JUDGE FRIED SAYS:
In such evidentiary rulings, the court must balance the relevance of the information against the prejudicial effect on the jury.
Judge Fried will give them a ruling tomorrow morning.
LEEMIE’S WISH LIST:
Item I: Relationship with the Chinese gang called Tung On.
Joe Chen is not a member of Tung On, but he was present when some members, including Johnny Ding, took part in gang activities.
Leemie wants Johnny Ding to be allowed to talk about these activities.
Item II: Beatings and the murder.
Joe Chen and Johnny Ding took part in the beating of a rival gang member. Also, Joe Chen was present when Johnny Ding shot to death a member of another gang.
Item III: The Halloween night incident.
On Halloween night, 1994, Joe Chen took part in another kidnapping. Johnny Ding visited the crime apartment. That’s why Johnny Ding decided to call him about the second victim, Mr. Li.
Item IV: Handcuffs.
Johnny Ding later committed his own kidnapping. He says that he learned where to buy handcuffs from Joe Chen.
GLENN’S RESPONSE:
Item I: Joe Chen isn’t even in the gang. He was merely present at these gang incidents. He’s not been charged with anything.
Item II: All the participants were from the same village in China. They grew up together. Therefore, it is not necessary to talk about gang-related incidents in the United States to show that they have a relationship. It’s too prejudicial.
Item III: But Johnny Ding once kidnapped the defendant’s brother, Sonny Chen. Joe Chen negotiated with Johnny Ding for his release. The significance of this act shows that the two men had dealings with each other regarding a kidnapping.
Besides, Johnny Ding’s real relationship is with Jane Ding, who was living at the apartment. It was Johnny Ding who suggested to Jane Ding the kidnapping of Mr. Wang.
Item IV: The fact that the defendant told Johnny Ding where to get handcuffs has no relevance whatsoever.
* * *
AFTERNOON SESSION
Jane Ding finally arrives and is about to face Joe Chen’s attorney. Leemie worries about her. “Jane is afraid. She is deathly afraid of Joe Chen, and she has no understanding of the legal system. At first she was even suspicious of me.”
Just before the cross-examination, Judge Fried talks to the witness: “Ms. Ding, if you are asked a question that calls for a yes or no answer, just answer it ‘yes’ or ‘no.’ Don’t volunteer information unless it’s asked for. And if you do not understand the question, simply say that you do not understand the question.” Jane nods.
“Proceed, Mr. Garber.”
Glenn approaches the witness, his mind racing. He must impeach, or undermine, Jane Ding’s direct testimony. After all, the defense contends, this woman is selling out her boyfriend’s brother, who was also her friend, who was also her cousin-in-law, in order to get less time in jail.
IMPEACH:
To challenge the credibility or the validity of the testimony of a witness; to cast doubt on.
First question. “Is it your testimony that you were promised no money for the kidnapping?”
“What do you mean? I do not understand,” says the witness.
Glenn rephrases.
She still does not understand. He asks again.
It does not take long for this cross-examination to get lost in a quagmire of words. The witness is infuriatingly vague. “What are you talking about?” she asks over and over again. She refuses to answer any of his questions. “I cannot answer the question because I do not know what you mean,” she tells Glenn. He restates. “I don’t understand.” He rephrases. “I don’t understand.” He repeats.
“Huh?”
Nothing works.
Half an hour goes by. Then an hour. Then an hour and a half. The interpreter is becoming surly. Glenn’s shirttail pulls out of his trousers. The jury is having a hard time following the line of questioning. Everybody is.
Glenn wets his lips. “Nobody promised you any money for your participation in this kidnapping, is that what you’re saying?”
“No,” she answers, wide-eyed.
Glenn pushes on, “Were you asked the following question at the grand jury proceeding?” He reads the question from the grand jury transcript, spitting out her answer, “Yes.”
JANE DING’S GRAND JURY TESTIMONY:
Question: “And were you promised some money, and did you, in fact, receive some money for participating in this kidnapping?”
Answer: “Yes.”
No reaction.
He moves to his next point, the fact that Jane Ding still owed a great deal of money for her smuggling fee. “You told the police officers you owed Johnny Ding $3,000, isn’t that correct?”
“It was not what I owed him. He requested that amount of money from my parents.”
“So, you did not owe him $3,000. Is that what you are saying?” He is shouting.
“I did not say that,” she shouts back.
Glenn wants to show the jury that this witness has a strong motive for placing the blame on his client. He focuses on her plea agreement with the district attorney’s office. It’s as if he were a dentist pulling teeth. Somehow, though, he manages to make a record of the following information: Jane was arrested on July 15, 1996. Her lawyer told her that if she went to trial she would possibly spend the rest of her life in jail. Rather than face trial, she pleaded guilty. Then she entered into an agreement with the district attorney’s office.
Glenn asks about the plea agreement, but once again she doesn’t understand his question. He speaks very slowly. “I — asked — you whether — you — entered — into — an — agreement — with — the — district — attorney’s — office. It calls for a yes or no answer.”
“I do not understand.”
Glenn demands, “You know this person over here?” And he points to the assistant district attorney, his voice rising higher and higher.
“Yes, I know her.”
“What’s her name?” he spouts.
“Lee Lee.” Jurors giggle.
“Leemie Kahng, correct?”
“Yes.”
He stops, head cocked, fighting laughter. “You call her Lee Lee?”
“I don’t know. I never called her.”
“Ha!” members of the jury burst out. Jane shifts in her seat; she is very tense.
Glenn yells again. “And the deal was that you can get as low as three years in jail if you cooperate?”
“I don’t understand,” she whispers. “Can I say something?”
“No,” storms Glenn. He is pacing back and forth.
“I cannot answer your question because I do not know what you mean,” she roars back.
Palms up, Glenn looks to the judge for help. “Can we approach for a second?”
“Let me see if I can clarify,” says the judge.
Judge Fried believes that Jane is terrified because a wrong move with the defense could cost her the cooperation agreement. Jane answers the judge’s questions about her plea agreement easily, yeses and noes, and they are able to move on.
By now the interpreter is absolutely exhausted and needs a break. The jury, too, is tired and noticeably confused. Not much has been accomplished. Almost everyone leaves the courtroom. Glenn continues pacing. He knows that he must impeach this witness. He senses that the cross is taking too long, he is losing the jury.
“Maybe I should mention that Jane Ding has a dragon tattoo on her arm?” he says, leaning toward me. A dragon tattoo is the symbol of the Green Dragons, another street gang in Chinatown. “But then that could leave open the fact that Joe Chen also has a dragon tattoo.” He shakes his head. “Kahng is very thorough. She’ll figure out some way to include it in the trial.”
When the trial resumes, Glenn glances at his notes and moves on to the time when Jane Ding told the detectives that Johnny Ding was the dailo.
“Johnny Ding is a snake head, isn’t that right?”
“That’s right,” she answers before the translator has a chance to tell her the question.
Glenn jumps at this. “You were nodding before I finished the question. Do you understand English?”
“I have been in jail for two years. I do know some.”
“So you understood my question, right?” He hopes the jury sees that she is not as confused as she appears. Now he needs to show the jury that she will say anything to cut a better deal.
“After you gave information about Johnny Ding, he got arrested, right?”
“Possibly that was the case. I don’t remember when.”
“Up to this point, you did not say anything about Joe Chen’s being involved in the kidnapping, correct?”
“Right.”
“Now, all of a sudden, you are going to talk about Joe Chen?”
“Not all of a sudden, almost a year. I loved my boyfriend, Sonny Chen. That’s why I waited almost a year. First time I talked to the police, I lied because of my boyfriend.” Juror number one, a beautiful young woman, nods her head.
“You are now facing three years in jail.” He’s getting what he needs from her now—and Jane knows it. Leemie writes furiously on her legal pad.
“This is what I’ve been told. I don’t believe it. All I know is my heart is not satisfied.”
Forget “satisfied,” Glenn says to himself; stay on the numbers. “Now your range is three to nine years, rather than six to eighteen years?”
“All I know, I have to tell all the truth. Maybe then they will give me three-to-nine. But why I’m here is not regarding three years. My heart is not satisfied because everybody was involved in this, and we are in here and he is out there in freedom.”
Glenn asks if she lied to the police.
“At the beginning I didn’t really lie. I only mentioned Johnny Ding. I didn’t mention Joe Chen. Now, I am not lying.”
“After you lied to them, you ended up with a better deal from the government.” She shakes her head. He continues. “At some point it was explained to you that if you cooperate you can get as low as three-to-nine?”
“Yes.” She repeats, “They told me I have to tell the truth.”
Glenn tries hard to keep her on track. This is just what he needs to punch holes in her testimony. But Glenn has paid a price to reach this point. He is aggravated and exhausted. His once-ironed white shirt hangs crumpled from his trousers. “What I’m asking you about is the agreement that you have with this office.” He points to Leemie again. Then he lowers his voice and walks toward the jury. “That is what I’m asking about. Maybe we can get through this. I’m not asking you about the truth right now.” In a blink a tiny smile crosses the prosecutor’s face. She writes his comment in big letters.
The judge corrects him. “I think that you mean that you are not asking about the facts.”
“Whatever,” says Glenn, with a wave of his arm, anxious to finish this cross.
“There’s a difference,” the judge says gently.
Glenn realizes his mistake. “I’m not talking about her reference to the truth. I’m talking about the agreement.”
Judge Fried addresses Jane. “Do you understand? He’s asking you only about the agreement you have with the district attorney’s office.”
Jane looks over at the judge. “Can you tell him that I apologize because sometimes I don’t understand the question?”
* * *
There is a ten-minute break. More pacing. “She’s smart,” says Glenn. “She answers the judge’s questions, but plays dumb with me. On top of that, the translators act as a wedge between the witness and me.”
He says, “Oh, this is a disaster. Jane Ding says that Joe Chen is free while the rest of the group are in jail. I could tell the jury that he is in jail, too, as another indication that she is a liar. But then they will see a crook for a defendant. I’m between a rock and a hard place. I have to figure out where to go with this. When the judge appears to agree with me, she straightens out. When he appears not to agree with me, she plays games. I must make the jury understand that she is a manipulator. She is manipulating everyone, including me.”
* * *
After the break Glenn asks for a sidebar. He tells Judge Fried that when Jane Ding said that she did not implicate Joe Chen because she loved his brother, she was lying. She did incriminate him once before, for a number of burglaries. She also told the police that he was involved in gang activity. So much for family loyalty. But unless Glenn brings it before the jury, which, obviously, he doesn’t want to do, they will not know these facts and there is nothing the judge can do about it.
By four-thirty Judge Fried has dismissed the jury. “Are we close?” a juror asks.
“We’re not off schedule,” the judge tells the group. “I anticipated there would be problems, so I built it into my schedule for you. So have a pleasant evening. See you tomorrow morning.”
Never trusting the other side, Glenn asks that the judge instruct the assistant district attorney not to confer with Jane Ding about this part of her testimony.
Leemie is annoyed. She knows the rules, that she cannot talk to a witness during cross-examination.
* * *
Glenn sees that his confrontational style is getting him nowhere. “My frustration was becoming an issue in the trial,” he later tells me. “I was too emotional.” That night Glenn discussed his strategy with his wife. “She gave me insights. I should become removed and just get the facts out.” He decides to be less sarcastic, less confrontational.
TIME: THURSDAY. APRIL 23. 1998; 9:30 A.M.
PLACE: THE COURTROOM
When Judge Fried enters the courtroom, he finds the two attorneys working pleasantly, side by side. The previous day’s rancor is gone. Leemie looks spectacular in a long gray wool pleated skirt, gray jacket, black heels. Glenn is elegant in a charcoal-gray suit with a blue-and-white pin-striped shirt. Joe Chen sits ramrod straight, still wearing his gray suit and Statue of Liberty tie.
The judge is ready to rule on the four items, Leemie’s wish list, that were discussed yesterday. “It seems to me,” he says, “that most of the evidence of the defendant’s bad acts is relevant.” Glenn throws down his pencil and jerks his head forward in disbelief. Leemie does not move an inch. Judge Fried cites case law to explain his decision.
JUDGE FRIED’S RULING:
Items I and II: The prosecutor may ask Johnny Ding if Joe Chen spent time with the Tung Ons when they were involved in gang-related activity. But she may not ask about specific criminal activities. The fact that Joe Chen was present during the shooting incident does not mean that he took part in a kidnapping. It is too prejudicial to the defendant to be included.
Item III: The prosecutor may ask about the Halloween kidnapping because it will explain why Johnny Ding called the defendant.
Item IV: The prosecutor may ask Johnny Ding if he had a conversation with Joe Chen about where to buy handcuffs. This will help explain why Johnny Ding would have brought the second victim to the apartment.
While Glenn is one very unhappy defense attorney, Joe Chen shows no reaction at all.
Once the trial resumes, Jane enters the courtroom wearing the same clothing as the day before. This time, though, she looks quite pale.
The defense attorney has questions about her boyfriend, Sonny Chen. When Jane continues to dodge, Glenn softly asks, “Miss Ding, is it the exact words that you are confused with?”
“I don’t understand what you are talking about,” she replies.
“Now, when Ms. Kahng was asking you questions, you didn’t have much difficulty answering those questions, did you?” He tilts his head.
“Not right,” she counters brusquely.
“Your Honor…” Glenn groans.
The judge talks directly to Jane: “The way we conduct a trial is that you are asked a question and then you answer the question. At a later point you may have an opportunity to explain. But an explanation at this time is not being asked for. Do you understand that?”
“I understand. What you are saying is that one day you are going to give me a chance to explain my answer.” Not quite. The witness will be allowed to explain her answers only if the assistant district attorney decides her explanation is important for the jury to know.
* * *
At long last Jane testifies that after the kidnapping she moved to a cousin’s apartment. Under interrogation she told the police that her cousin was, instead, her sister.
“Can I explain what I meant?” she asks for the umpteenth time.
“Tell me what you meant,” Glenn says magnanimously.
Judge Fried reminds her, “You can only explain if Mr. Garber allows you to explain. You can’t explain it on your own.”
Jane asks, “Did he say it’s okay?”
Glenn, with a big, fatherly smile, says, “I said it was okay.”
“You know, among our Fukinese, we don’t really call cousin, first cousin, second cousin. We just call sisters or brothers. When I went to jail, the other inmates explained that my father’s brother’s daughter is my cousin, not my sister.”
“Is this a good time to break, Mr. Garber?” asks the judge.
“This is fine.”
“Have a nice lunch, ladies and gentlemen. Please do not discuss this case among yourselves.”
AFTERNOON SESSION
Glenn changes his tactics once again. Speaking in rapid-fire, staccato sentences, he asks about Johnny Ding. Does she like him? Does she hate him?
“I hate him because he asked my parents for money when I first came to the United States. He called my parents and asked for $3,000.”
What about Mr. Wang, the first victim? “We were only casual friends.”
“You were married to Joe Chen’s first cousin. Are you still married to him?”
“When we got married, we didn’t sign the paper [marriage certificate].”
He quickly changes the subject. “Do you trust the district attorney’s office?”
“Now I don’t trust nobody.”
He changes again. “When Sonny Chen and you became boyfriend-girlfriend, the defendant was very angry.”
“Objection!” calls the prosecutor.
Sidebar!
Leemie does not see the relevance of these questions. The defense lawyer says that it “goes to motive to lie against my client.” Judge Fried agrees with the defense. Objection overruled.
“Does Joe Chen’s anger affect your relation with him?”
“Possibly yes.” That’s the answer the defense attorney is looking for. Throughout this ordeal, Glenn has kept one eye on the jury. He thinks that they do not believe this witness, so he puts everyone out of their misery.
“No further questions.”
REDIRECT
In a flash Leemie is up. Before going to trial, Leemie interviewed Jane about her relationship with Sonny Chen. “She was devoted to the defendant’s brother, really in love with him. It’s sort of like a True Romance story when you talk to her,” Leemie tells me after the trial. Leemie asks the witness why she did not immediately tell the police about Joe Chen.
“Because of his younger brother, Sonny Chen,” Jane says.
“But then why did you eventually decide to tell about Joe Chen?” Leemie asks.
One day I realized they were using me. I was in prison for two years. Joe Chen came to the prison and visited me once. He sent me fifty dollars. He told me not to say anything. In my heart nobody can tell me whether—what I should say, what I not to say.
On the first day I entered the prison, I wanted to tell, but I didn’t, only because I loved his younger brother. After I pleaded guilty, I called Joe Chen. I wanted him to give me a ten-dollar phone card so I can call China and talk to my parents. I was in prison for almost one year, and I didn’t ask for anything. All I knew was I loved my boyfriend. I can give myself up for him. But later on I gave more thought that I only loved his younger brother, why should I give myself up for Joe Chen.
I talked to my boyfriend on the phone only once. I told him, I said, “I love you. I can do anything for you.” Even though at that time I didn’t want to plead guilty. He begged me. He said to me—
“Objection!”
“Sustained.”
Jane is crying.
Glenn asks to approach the bench again. He objects to this line of questioning. And once again Leemie is ready for him. “Judge, she was pretty well instructed to answer either ‘yes’ or ‘no’ on cross-examination, and I thought it only fair that she be entitled to give an explanation about her answers during cross-examination.”
“Objection overruled.”
The prosecutor asks one final question. “Miss Ding, is that why you did not tell about Joe Chen at first?”
“Yes.”
Leemie has no further questions.
RECROSS
Glenn asks if it is just a coincidence that Jane changed her story after she heard about the new deal for a lower sentence. “I don’t pay any concern to these,” she replies to Glenn’s questions.
Then, surprisingly, she becomes a chatterbox, describing elaborate, alternative sentencing agreements. Glenn does not stop her. Her response easily implies that she knows the law, she knows what she is doing, and that she set up Joe Chen to get less time in prison. He’s already proved that she is willing to lie, so the defense has no further questions.
REDIRECT AGAIN
Leemie must undo this last testimony. She asks questions to undercut Glenn’s cross-examination that Jane would implicate the defendant to get less time. As always, Glenn listens carefully to Leemie’s every word.
“Did you ever think you could get less than six years?”
“No.”
“And it wasn’t until after Joe Chen was arrested that you were approached about testifying against him. Isn’t that true?”
“Objection!” roars Glenn, pouncing on the word “after.” He rushes to the sidebar and tells the judge, “I move for a mistrial.”
ONE TINY WORD
Glenn has based much of his cross-examination on the fact that both Jane Ding and the next witness (Johnny Ding) told law enforcement there was another kidnapper so that they could get lighter sentences. Then Joe Chen was arrested.
“I specifically made a request for information about the timing of the cooperation agreement,” Glenn tells the judge. Remember, the government must give the defense all the evidence prior to the trial. Otherwise, the defendant’s attorney cannot prepare a rigorous defense. Now, this simple word, “after,” could make or break the case. Glenn’s face is bright red, his arms wave in the air.
If Joe was arrested because Jane and Johnny fingered him, Leemie’s question makes no sense. But if Joe was arrested, and then Jane accused him after, that should have showed up in the records. Misinformation, or information unduly withheld, could be grounds to end the trial. That one word could make all Leemie’s preparations, all the witnesses, all the evidence, go by the board.
Surprisingly, Leemie is not worried. She does not think a mistrial will be granted. Later she says, “I think Glenn legitimately thought he had grounds for a mistrial. Defense attorneys ask for a mistrial a lot when something happens that they believe prejudices their client in front of the jury.”
Jury members strain their necks, fascinated, even though they can’t hear anything. Joe Chen stares straight ahead as if nothing was happening.
Leemie is very careful. There was a period before the trial when she and her superior, Carla Freedman, chief of the Asian Gang Unit, had a number of conversations with Jane Ding. “I wasn’t clear about what exact date she actually implicated him.”
She tells the judge, “My question was based on the assumption that we would never talk about a cooperation agreement before a person is arrested. We talk about it after the arrest.”
The judge calmly mediates. He will not grant a mistrial. Then they would have to start all over again, or Joe Chen could go free. He settles on a compromise: Leemie will withdraw the question. The jury will disregard this testimony. Glenn will keep his theory in play. No mistrial.
Back to open court. Glenn is not smiling. The judge instructs the jury to disregard the last question. Once again the jury is asked to follow the rules of the law, not what they heard. In effect the judge is saying, “You did not hear that,” even though they did.
“Anything further?” asks the judge.
“No,” says Leemie. Glenn has nothing more. The witness, Jane Ding, is finally excused.
* * *
Although it’s been a tough battle, Glenn was able to show that Jane Ding has a strong motive to lie about Joe Chen. But this victory comes with a heavy price: the jury became restless, confused, and impatient. A lawyer cannot afford to lose the attention of a jury. Glenn may have won the battle, but did he lose the war?