Winning Tactics
Office of ADA Mike Cutter
6th Floor, One Hogan Place
7 pm Thursday May 10th 2007
Cutter paced from one side of his office to the other, baseball bat resting on his shoulder.
The day in court had definitely been … unusual.
Understatement, Cutter thought wryly.
Markham had blindsided him with her challenge to the medical report. It was the only piece of forensic evidence the prosecution had, and now not only did he have doubts about the veracity of the report, but the judge did as well. He'd been forced to decide on the spot whether it would be worse to let the report go, immeasurably weakening his case but preventing Markham from introducing evidence that it was falsified, or bring it in and hope for the best.
He'd picked the second option. Not the first trial I've had to spend flying by the seat of my pants.
His decision not to call Keri Dyson first was now looking like a bad mistake. With an appealing victim, and not much else, he'd decided to use her to close his case rather than open it, leaving the jury with the image of her battered face to distract them from whatever Regan Markham had to say. Now… If I'd called her today, Markham wouldn't have had enough to convincingly impeach her. Now, even if I call her first thing in the morning, Markham can hammer her on that inconsistent signature.
The only reason the prosecution was as in as good a shape as they were right now was entirely due to Jack McCoy. Cutter had been wary when he'd seen McCoy prevent his lawyer from giving an opening statement. He'd been perplexed when Markham had declined the opportunity to cross-examine his first two witnesses. When McCoy had offered to change his plea to guilty in the judge's chambers …
Whatever the problems with the hospital chart, whatever the problems with my case, I have a defendant who admits he's guilty. And by god, I'm going to convict the son-of-a-bitch.
"Hey, Mike," Connie said from the door.
Cutter turned, spinning the bat in his hands. "What've got for me, Connie?"
"Keri Dyson will be here in thirty minutes."
"You said that an hour ago," Cutter pointed out.
"Her car broke down. I sent two guys from the Investigator's division down to give her lift," Connie said.
"Okay. What else?"
"Taylor and Crossetti hit Baltimore a couple of hours ago, they're still running witnesses but so far everything Dr Jordan said checks out, one hundred percent."
"Shit!" Cutter's hands clenched on the bat. "Markham's going to get that into evidence!"
"Yes, she is," Connie said. "I still can't find the doorman. Not at work, not at home, I've hammered on his door personally, no luck. But when the jury hears Mr. Rodriguez – "
"The jury won't hear Mr. Rodriguez," Cutter said quickly.
"If we don't put him on the stand, Regan will – "
"Not if she doesn't know about him. And it's Regan now, is it?"
"Yeah, it's Regan, Jack and Mike," Connie said evenly. "And you have to turn over his name."
"Why?"
"It's exculpatory!" Connie said. "EC 7-13 – "
Cutter shook his head. "No it isn't. Rodriguez didn't go up to the apartment, he didn't see anything after he left Dyson and McCoy in the foyer. For all we know, McCoy perked right up in the elevator, and all the rest happened just like Dyson said." He shrugged. "It's not exculpatory – I don't have a duty to disclose. And you can stop chasing the doorman. You've made every effort to locate him, you've exhausted your responsibility."
"I don't think I have," Connie said sharply.
"Don't get up on your high horse, Connie," Cutter warned. "Our job is to get a conviction."
"We represent the people and the interests of the people are served by a fair outcome," Connie said hotly.
"The interests of the people are served by convicting a guilty man," Cutter said.
"And you're so sure he's guilty?"
"He offered to change his plea in chambers," Cutter said.
Connie took a sharp breath, eyes widening in shock. "He what?"
"Offered to change his plea," Cutter said. He swung the bat idly. "Judge wouldn't accept it on the basis of lack of factual basis. But whatever shape our case is, we have a defendant who is willing to admit guilt. And I'm going to make sure the jury gets the message. Is there anything else?"
"No," Connie said slowly. "No, nothing."
"Let me know when Dyson gets here," Cutter said.
As the door closed behind Connie, Cutter took another swing with the bat.
EC 7 -13 … His lips quirked in an ironic smile. The responsibility of a public prosecutor is to seek justice, not merely to convict. because: decisions affecting the public interest should be fair to all; the prosecutor should make timely disclosure to the defense of available evidence, known to the prosecutor, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused.
Jack McCoy's run close to the wire on E 7 -13 in his time, Cutter thought. Let him get a taste of his own medicine.
That had been Arthur Branch's instruction to him. Give the stubborn son-of-a-bitch a taste of his own medicine.
Cutter smiled. Happy to oblige.
He went back to his desk and clicked open the link for LawLib, and typed 'judicial discretion to refuse plea' in the search box.
He was still reading when Connie returned to tell him that Keri Dyson had arrived.
Dyson's bruises were just as startling every time Cutter saw her. As she took a seat, he wondered if he had gone easier on her during witness prep because she was so different from the usual range of witnesses he dealt with. In narcotics, there are no victims. I can't remember the last time I had a tax-paying citizen on the stand – it's just one skell testifying against another skell, out of spite, for a deal, because a conviction will settle a territorial dispute.
Keri Dyson was a colleague, was a young woman in a fragile mental state, wore the evidence of her ordeal clear on her face.
Cutter took a breath and settled himself across from Dyson, Connie in the corner with a legal pad.
"Keri, we had some problems in court today," Cutter said, starting gently. "The defense has found evidence, that we've been able to confirm, that the doctor who signed your chart at the hospital couldn't have possibly treated you."
Dyson blinked. "I don't know what that means," she said.
"I don't know what it means, either," Cutter said. "I need you to sign this release – " he picked up the form he'd already prepared – "so we can get the originals of your records from the hospital and try to work out what's gone wrong here."
Dyson folded her hands together rather than reach out for the form. "I've given you a copy."
"You did," Cutter acknowledged. "But the judge wants the originals examined by an expert."
Dyson shook her head. "I didn't need to even give you the copies," she said.
"But you did, Keri," Connie said, leaning forward. "Which is really the same thing, in terms of privacy, as the originals."
"No it isn't," Dyson said. "You have to give a lot of information when they treat you at the ER. A lot of stuff that isn't relevant. I don't want that in evidence."
"I understand," Cutter said. "But the judge has ordered us to present the original – "
"He can't make that order," Dyson said sharply. "And you know it. He can't make a judicial order against doctor-patient confidentiality."
'What do you have to hide, Keri?" Cutter asked.
"I'm the victim here," Dyson said, her eyes welling with tears. "I'm not going to give up my rights because someone committed a crime against me!"
Cutter tried for a little while longer to persuade her of the importance of her testimony, but she wouldn't change her position. It didn't make him feel any better about putting her on the stand.
"Keri," he said, trying a different tack, "you know, we talked to the cab driver who took you and Jack McCoy to his building. He said that Jack passed out on the drive and had to be carried inside."
Dyson shrugged. "He was drunk. He came around when we got upstairs – and got aggressive with me. Just like I said."
"Okay," Cutter said. "I'm not sure if I'm going to call you tomorrow or not, so make sure you're at the courthouse, okay?"
"Okay," Dyson said. "Anything else?"
There wasn't. Connie walked her out, then came back into Cutter's office.
"Do you believe her?" she asked bluntly.
"Less and less," Cutter said, equally bluntly. "But I have no evidence that would prevent me putting her on the stand."
"How about this," Connie said. "I subpoenaed Jack's phone records. At 9.28 that night, a call was placed from his cell phone to the home number of a Dr Edward Margolis."
"The DA's Office 'in-house' physician," Cutter said, nodding. "Well, so he realized after he hit her how badly he'd hurt her and called for medical help."
"We don't know that," Connie said. "I'll call Margolis and – "
"No," Cutter said.
"But we need to know – Jesus, Mike, what if he can shed some light – "
"I don't want to know what light he can shed," Cutter said sharply. "I'm satisfied that whatever he has to say must be condemnatory, or else McCoy and Markham would have him on the witness list. No. We'll use the call to impeach McCoy if he takes the stand. That's it."
"Mike – "
"Whose side are you on, Connie?" Cutter asked sharply. "You saw McCoy in the courtroom – he doesn't even want to offer a defense. And I told you that he wanted to change his plea in chambers. He's guilty, and he knows it."
"I'm on the People's side," Connie said, but her tone was conciliatory. "I'm sorry, Mike, I don't mean to argue. I just – "
"Yeah," Cutter said. "I know. We don't have much besides outrage."
After Connie left, Cutter picked up his baseball bat and began to pace around the office. A guilty plea before McCoy knew how weak our case was, that makes sense, he thought. But after? How does that make sense?
He knows he's guilty. His conscience is getting to him.
Or he's worried about what else we might have.
Cutter swung idly. Something worse than evidence proving his guilty, because he's prepared to admit his guilt.
But it must be something that I could get admitted as proof of guilt, because otherwise, he wouldn't be afraid of it coming into court.
Prior bad act? Cutter frowned, resting the bat over his shoulders. Dyson's allegation is that McCoy assaulted her when she refused his sexual advances. I could argue for admission of prior acts under exception 704.
He set the bat down against the wall and dropped into his desk chair, picking up his phone and dialing an extension. "Colleen," he said. "Can you send Jack McCoy's personnel file down to me, please?"
"I'm sorry, Mr. Cutter," Colleen Petraky said, not sounding the slightest bit sorry, "you're not authorized to view files outside the Narcotics Bureau."
"Who is authorized to view that file?" Cutter asked.
"Office protocols are clear, only supervisors can view staff files," Colleen said.
"So McCoy can view my file but I can't see his?"
"That's about the size of it, Mr. Cutter," Colleen said.
"Is Arthur in?" Cutter asked.
"He's gone for the evening," Colleen said.
"Okay, then, can I leave word for him to call me first thing in the morning?"
"Of course, Mr. Cutter," Colleen said.
Cutter hung up and shook the mouse on his computer to wake the machine. He clicked open the web browser.
When in doubt, start with Google.
.oOo.
