Admissible Admissions
Trial Part 3
Supreme Court 100 Centre St
2.45 pm Friday May 11th 2007
Regan cut her eyes to the courtroom clock, checking the time while maintaining the appearance of diligent attention to Mike Cutter's questions as far as the jury was concerned. Already mid-afternoon and Cutter was still showing no sign of calling Keri Dyson to the stand.
Already mid-afternoon, Regan thought with an internal groan. She felt as if the day had been going for weeks, a parade of inconsequential witnesses who she would not even have bothered to call if she had been prosecuting. Other ADAs who had been at the bar – the bar-tender – Regan listened to Cutter's questions and cross-examined the witnesses, feeling as if neither prosecution nor defense were making much headway.
Not only had Cutter not called Keri Dyson, but he had not produced the originals of the medical records Keri Dyson had brought into Jack McCoy's office as evidence.
After Danielle had passed on Serena's message, Regan knew why Cutter couldn't produce the originals. What she didn't know was whether Cutter knew about the forgeries.
In Judge Wright's chambers, Cutter had claimed that Keri Dyson had refused to give a waiver to give the DA's Office access to her records at Mercy General. Either he's telling the truth, Regan thought, or he's deliberately withholding exculpatory evidence.
Mike Cutter's reputation for hardball not-withstanding, Regan didn't think he'd lie to the judge. So Keri's lying to him. And something about the way his gaze shifted when he told the judge about Keri's refusal to grant a waiver gave Regan the impression that Mike Cutter was beginning to suspect it.
Judge Wright had been decidedly unimpressed by Cutter's failure to produce the original documents – especially since Cutter had been forced to admit that the DA's investigators had confirmed Rob Jordan's story. The doctor had been in Baltimore that night, not at Mercy General. He could not possibly have treated Keri Dyson.
Regan had suggested the copy Keri Dyson had given the DA's Office be sent to the experts in the document lab at One Police Plaza for thorough examination. Not just the signature, she'd urged. The whole of the documents. Including the dates.
Both Wright and Cutter had picked up on that. The judge had wanted to know what she based her suspicions on, and he'd been sternly disapproving when she prevaricated. You're not doing yourself or your case any good, Ms Markham, he'd warned, but Regan had weighed his disapprobation against admitting Rey Curtis had gained illegal access to hospital records, and kept quiet.
Mike Cutter had said nothing, but from time to time in the courtroom Regan had caught his gaze to find him watching her speculatively. He's guessed how Keri forged the records, she concluded. I tipped my hand too far – not that I had much choice – and now he's wondering how I know.
She glanced at the clock again. Three thirty. Will this day ever end?
Too late for Cutter to call Dyson now. He must be saving her for Monday.
Or he's going to close without putting her on the stand.
That wouldn't be good. Although the prosecution case would be weaker without the victim's testimony, so too the defense would be weaker with Keri Dyson in the jury's mind as an absent but honest victim. I need to show them she's lying. And without the chance to impeach her on the stand, Regan would be hamstrung in what she could say in closing argument about Keri's honesty – or lack of it.
All I'd be able to do is draw the jury's attention to the fact that she didn't testify – not speculate as to why not.
"Regan," Danielle whispered urgently behind her.
Regan turned in her chair to see Serena Southerlyn crouching in the aisle beside Danielle's chair. At the back of the courtroom, she could see Rey Curtis standing near the door.
"Get a recess," Danielle said. "You need to hear this right away."
Regan nodded. As she turned back to the front of the courtroom Cutter finished his questioning of a young narcotics ADA and sat down.
"Your honor, can I ask for a brief recess?" Regan asked.
"Will you have questions for this witness?" Wright asked.
Regan hesitated. "No, your honor," she said, making up her mind. "The repetitive nature of the prosecution's – "
"That's enough, Ms Markham," Wright said. "Although I take your point." He looked at the clock, frowning. "Mr. Cutter, I note you have only one witness left on your list. Are you planning on calling her this afternoon?"
Cutter rose to his feet. "No, your honor, I planned to suggest that Monday – "
"Noted. All right, everybody, court is adjourned until Monday morning. Mr. Cutter, Ms Markham, a word before you go."
Regan leaned over to McCoy as Cutter started toward the bench and the jury began to file out. "Don't go anywhere," she said, worried he would repeat yesterday's speedy exit from the courtroom.
"You want me to sit here and wait for the reporters?" McCoy asked acidly, with a pointed glance to the back of courtroom where the journalists who had been watching proceedings were already pressing forward.
"Case Conference Seven," Danielle said to them both. "Sally finished early and she's waiting for us there."
"I'll meet you," Regan said, and then as Wright cleared his throat she hurried after Cutter.
"Mr. Cutter, I hope you're planning on introducing some actual evidence on Monday," Wright said warningly. "And I hope your associate has delivered the contested documents to One Police Plaza."
"She has, your honor," Cutter said. "But there is a considerable backlog of work. The lab won't be able to report until – "
"You will have a report for me in chambers on Monday morning," Wright said, "or we will stand adjourned until you do. Am I clear?"
"Yes, your honor," Cutter said, subdued.
"And you, Ms Markham," Wright said. "I don't like lawyers who play ambush in my courtroom. You better not be planning to introduce something you should have mentioned in chambers this morning."
"Your honor," Regan said, "I can honestly say that there is nothing I know at this time that I have any intention of introducing as evidence in this courtroom."
Wright stared at her with narrowed eyes. "That's less categorical than I would like, Ms Markham. You chose your words as carefully as – "
"As a lawyer, your honor?" Regan asked with a bland smile.
"Exactly," Wright said sourly. "You're fortunate that your colleague at the prosecution table has been sailing so close to the wind. I'm inclined to give you similar leeway."
"Thank you, your honor," Regan said.
"Monday morning, Mr. Cutter," Wright said. "Or else."
Regan glanced at Cutter as they walked back to their respective tables. He was frowning slightly, looking, she thought, troubled.
"Ms Markham! Ms Markham! Mr. Cutter!" the reporters started calling as the two lawyers reached the bar, their voices blending into a cacophony of questions. "How's the trial going, Mr. Cutter? Can you tell us what the judge was saying? Is Jack McCoy innocent, Ms Markham? How do you feel the trial is going? When are you going to call Keri Dyson, Mr. Cutter? Are you – "
"I have no comment on a matter currently sub judice," Cutter said, picking up his briefcase. He opened the bar gate and began to force his way through the throng.
Regan grabbed her own briefcase and followed him, trying to keep her face neutrally pleasant and not look evasive as cameras and microphones were poked in her face. "No comment," she said, over and over again. "No comment." As the reporters pressed in on her she found herself disoriented, unable to see the room beyond the glare of television lights. A journalist pushed another to try and get closer, causing a domino reaction that sent Regan staggering.
Suddenly a hand seized her arm.
"No comment," Mike Cutter said firmly, hauling Regan after him toward the exit, shouldering a particularly aggressive cameraman out of the way. "No comment. No comment."
The media scrum moved with them to the doors, but fell back as Cutter pulled Regan after him into the hallway. The courtroom doors shut behind them, cutting off the shouted questions.
"I thought they can't film in the courtroom," Regan said, shaken.
"They can't film the trial," Cutter said. "And they can't film in chambers, or case conference, or – ironically – the corridors. But they can mob you on your way up the aisle after the trial is adjourned, and then again on the steps outside. And you're welcome, by the way."
"Thanks," Regan said belatedly. "I wasn't – I've never been in that kind of – Jesus, no wonder celebrities snap!"
Cutter chuckled. "No question, there's plenty of interest for People v McCoy," he said. "I've tried some high-profile drug cases in my time, but I've never seen anything like this." Regan shook her head in bewilderment, and Cutter snorted. "Oh, come on, Ms Markham, you can't be surprised. Jack McCoy's made plenty of headlines in his time and he's talked about as Arthur's successor in some circles. He's spent three decades being New York's self-appointed moral guardian and now he's been shown to have feet of clay. That's news."
"You're talking as if he's been convicted," Regan snapped back. "You haven't won yet, Mr. Cutter. Maybe the story is going to be how an ambitious young ADA cut one too many corners in his race to the top and came comprehensively unstuck."
Cutter hesitated, then looked around to make sure they were unobserved, and took her arm again, pulling her to a corner. "Look," he said, quiet and intense, "I know you have something. You must think it's a magic bullet, or you wouldn't be so confident. You know and I know that whatever the police lab says, those medical records stink like five-day-old fish. Tell me what you've got."
"You want a preview of my case, counselor?" Regan asked.
"You ambush me, I'll scream to high heaven," Cutter warned.
"Why don't you tell me something," Regan countered. "You know those records aren't real. And – " Light dawned. "And you know Keri Dyson's lying. That's why you won't put her on the stand! You can't put her on the stand without running foul of EC 7-26, can you?"
Cutter said nothing, and that nothing was an admission.
"Then why in hell are you still prosecuting?" Regan demanded. "DR 7 – "
"I know what DR 7-103 says," Cutter said. "And first of all, Ms Markham, it's about instituting charges, not continuing them. And secondly – I don't have any reason to believe these charges are unsupported. Oh – " he raised his hand to cut her off as she opened her mouth to speak and she fell silent. "I know that there are some holes in my witness's story. I know that I don't know what happened that night. But I do know one thing, Ms Markham."
"And what's that?" she demanded.
"I know your client would have pled to the charges if he'd followed his own inclination," Cutter said. "So, Ms Markham, I may not know exactly what happened, and I admit, I'm going to have some trouble proving my case, but I do know, for sure and certain, that Jack McCoy is a guilty man."
.oOo.
A/N: EC 7-26 is that part of the 'Code of Professional Responsibility' that prohibits the use of 'fraudulent, false, or perjured testimony or evidence', while DR 7-103 states that 'A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he or she knows or it is obvious that the charges are not supported by probable cause.'
As far as media in the courtroom is concerned, I have tried to be consistent with what's shown in various episodes in L&O, which are not all consistent with each other and are generally not consistent with the state of the law in New York State. So, for example, in 'Blaze' it's a matter of some controversy that witness testimony be filmed; in an episode featuring Jamie Ross, McCoy and Jamie have to force their way out of the courtroom through a mob of reporters.
