Twisted Justice, page 18
“And I’m sure you will. But that doesn’t mean you should turn a blind eye to illegal data gathering. Those billions of photos from social media were collected illegally.”
“Arguably,” the Knife inserted.
“Definitely in violation of the platforms’ stated public policies. Their terms of service.”
“If Facebook wishes to sue, I believe they have the means to do so,” Hembeck said. “I don’t see why we need to get involved.”
“Because if you think about this,” Maria continued, “the whole concept is terrifying. Once the use of this program is widespread, it will be impossible to walk down the street anonymously. Get this. The program comes equipped with programming language designed to pair it with augmented-reality glasses. Cops could walk down the street and ID everyone they see. They could instantly know who you are, where you live, who you know.”
“Only a problem if you’re doing something illegal,” the Knife commented.
“I disagree. Cops could identify anyone attending a protest rally. Cops could trail an ex, or any woman who catches their eye on a bus. The stalker potential is frightening.”
“But we’re not talking about it being used by a stalker today,” the judge said. “It was used by law enforcement to help them do their jobs. And it worked.”
“That’s how it was used today, your honor. What about tomorrow? I urge the court to rule that this program violates the privacy rights the US Supreme Court has said are part of the US Constitution. This is not the tool of a free state. This is the tool of a totalitarian government. If this becomes widespread, privacy will cease to exist. Some large cities, like San Francisco, have banned it.”
“That was the act of politicians. Not cops. Cops need all the help they can get.”
“They don’t need this. No one does. This is beyond Big Brother. Even George Orwell never imagined anything so invasive.”
The Knife waved his hand in the air. “I’m sorry, your honor, but this is pure hyperbole. Police departments have used facial-recognition software for decades. The only thing that’s different here is the size of the database. If people are foolish enough to post pictures of themselves online, they have no one to blame but themselves.”
“It’s not always people posting pics of themselves,” Maria rebutted. “This witness wasn’t ID’d because of photos she posted. The best match was a pic her niece posted at a birthday party. She knew nothing about it. But it was still used to track her down.”
“And no one has been harmed in the slightest,” the Knife said. “I’m sorry, your honor, but this argument is the desperate ploy of a desperate lawyer representing a guilty client.”
“That’s a complete crock,” Maria said. Her voice took on a palpable edge. “We don’t even know how accurate this program is. The larger the database, the greater the chances of a mistake. Some people do resemble others. And they’re all on the internet. If this court took a stand, it would force people to think twice about using this indiscriminately.”
“It would start a chain of appeals that could go all the way to the top and cost the government a fortune,” the Knife said. “Even though it has nothing to do with this case or her client’s guilt or innocence. Do you think six hundred law enforcement agencies would be using this program if it were so awful?”
“Absolutely,” Maria said. “Clearview is pushing it hard because there’s so much money to be made. Government contracts can be enormously lucrative. The only way to stop this, your honor, is by banning its use in the courtroom. You can be the first.”
The judge drew herself up. “I hear what you’re saying, counsel. But I have to make a determination based upon what’s best in this case. The software has not hurt anyone. To the contrary, it has enabled the police to locate a valuable witness. And I have to note that she is not complaining about this. Frankly, I’m not sure you have standing to raise this issue.”
“It impacts my client, your honor.” She glanced at Dan. “In a big way.”
“Nonetheless, I’m overruling your motion in limine. The prosecution may call the witness. Ms. Morales, you of course are free to appeal.”
And Dan knew she would. And maybe she would be successful, years down the line. But it would be too late to do him any good.
Harriet Clooney would take the stand. And she would place him at the scene of the crime.
Chapter 33
Dan watched as the Knife returned to the prosecution table. He and Garfield exchanged a pleased look of triumph. Everything appeared to be going their way. Their confidence was more than a little annoying.
And frightening.
“The prosecution calls Harriet Clooney, your honor.”
Clooney was middle-aged, around fifty. Stiff collar. Kitty-cat lapel pin. Strand of pearls. She said she worked as a waitress at the Beachcomber, though Dan didn’t recall seeing her there. Perhaps she was new. At any rate, that explained why she was in the area.
Clooney straightened herself and explained that, on the night in question, she was on her way home just after sunset but couldn’t remember where she had parked her car. She reached for her phone because she knew Google Maps automatically recorded her parking place. “While I was standing there, a man raced out of the back alley.”
“Did you get a good look at him?” Garfield asked.
“Fairly decent. He was moving fast.”
“Could you describe him?”
“About six feet tall. Slender. Fit. Wore a stocking cap.”
“Did you speak to him?”
“Oh my, no. He was gone before I could blink twice.”
“What did you do next?”
“Nothing. I drove home and forgot about it. Until I got the call from Officer Dunlevy. I told him what I had seen.”
“Did you identify the person you saw?”
“Yes. After I gave the police a description, they showed me five photos and asked me to pick the person I saw.”
Garfield held up a pre-marked set of pictures. “Is this the photo array you reviewed?”
“Yes.”
“Were you able to identify the man you saw?”
“Oh yes. It wasn’t hard.”
“Who did you identify?”
“Him.” She pointed toward the defense table. Dan tried not to react. “The defendant. Daniel Pike.”
“Thank you. No more questions from me.”
Maria rose quickly, not missing a beat. “Quite a coincidence, isn’t it?”
Clooney was understandably confused. “I’m...not sure what you mean.”
“Your testimony. Everything you said. You were behind the club at just the right moment to see the suspect the police were already investigating. And better yet, you were photographed.”
“I didn’t know there was going to be a murder.”
“Is it possible that you are mistaken?”
“About seeing someone leave the alley?”
“No. But I wonder if you had time to see the person in question well enough to be sure it was my client.”
“I’m sure.”
“Were you sure before the police showed you his photograph? Or only after?”
“Objection,” Garfield said.
“It’s a fair question,” Maria replied. “The witness said she only saw the man for a fleeting moment. Can she really be expected to make a positive identification based upon that?”
“Well, she did,” Garfield said.
“Based upon a brief glimpse, in a dark alley, after sunset—and the face was partly obscured by a cap.”
“And yet,” Garfield said, impatience creeping into her voice, “she made the ID.”
“The objection is sustained,” the judge said. “The question will be stricken from the record. Please proceed.”
Maria continued. “I noticed that you didn’t mention the hair color of the person you saw leaving the alleyway.”
“I didn’t see it. As you’ve already mentioned, he was wearing a stocking cap.”
“Warm weather to be wearing a wooly cap.” Maria glanced at the photo array. “But that explains why my client is wearing a stocking cap in this photo.”
Dan turned away from the jury and winced, reminding Maria that never in a million years would he ever wear that ugly cap.
“The problem,” Maria said, “is that my client has never been photographed in this cap or anything like this cap. This image has been digitally altered. Photoshopped. Your honor, I renew my motion to exclude this evidence based upon tampering by the prosecution.”
“Which we oppose,” Garfield said. “And we object to counsel making speeches in front of the jury. May we approach?”
Judge Hembeck waved them forward. Dan followed. The judge was also beginning to look impatient. This was the second bench conference in far too short a time for her taste. The defense was impacting her efficiency rating.
The judge covered her microphone. “What’s your problem, counsel?”
“I’ve filed a brief on this, your honor, and I mentioned it at the pretrial conference. You said we’d take it up if the evidence arose at trial.”
“I remember. What's the basis for your objection?”
“Isn’t it obvious? The cops doctored my client’s photo. They added a cap to make him look more like the description the witness gave them.”
The Knife shook his head, making a tsking sound. “They don’t seem to like any of our evidence, do they, your honor?”
“Because it’s all tainted,” Maria said.
“No, because it all points in the same direction. Your client is a murderer.”
“Not true.”
The Knife addressed the judge. “An eyewitness account is obviously of great persuasive value to the jury, your honor. There are no grounds for excluding this testimony.”
“You doctored Dan’s photo,” Maria said, “to make him look more like what the witness was expecting to see.”
“Standard practice.”
“If you’d put a cap on all five of the photos, I might agree. But you didn’t. Only on Dan’s.”
“We weren’t trying to confuse the woman. We were helping her determine if the part of the face she saw resembled the defendant.”
“You were stacking the deck.”
Judge Hembeck held up her hands. “Okay, everyone calm down. Mr. Blunt, please explain what happened.”
“It’s standard police procedure,” the Knife explained.
“Sadly enough,” Maria muttered.
“Sergeant Dunlevy used photo-editing software to add a stocking cap to the photo of Daniel Pike he obtained from the internet. They couldn’t find a shot of him in a stocking cap—”
“And never will,” Dan murmured.
“So they created one. Police officers creating photo lineups often airbrush away a discrepancy or add fillers to make the non-suspect photos more plausible. Even the New York City police department, the largest force in the nation, does it. Regularly.”
“You’re altering photos to encourage witnesses to make positive identifications,” Maria said. “It’s unfair. What’s worse is that you had Dunlevy on the witness stand, but you didn’t ask him to discuss this. If you’d had him acknowledge and explain how the photo was altered, that would be different. But you tried to slide it through and hoped I wouldn’t notice.”
“It’s not my job to make your case for you, counsel.”
“No. Your job is to railroad inno—”
Dan jumped in. “Maybe when I take the stand, I can explain that I do not own and would not wear such an atrocious cap.”
“Yes,” the Knife said. “I’m sure the jury will be persuaded once they acknowledge the defendant’s fine fashion sense. Look, your honor. The witness said she saw a guy in a cap. If we showed her no guys in caps, she would probably not be able to make an identification, even if we showed her the killer.”
“I can see where you might be tempted to alter the dummy photographs to make them plausible,” Maria said. “But altering the suspect’s photo should be absolutely forbidden.”
“Oddly enough, the department’s policies are not drafted by defense lawyers.”
“You already had Dan in custody. You could have created a true lineup. Instead, you used photos because they can be doctored. You knew that increased the chances of a positive identification. And once you tell the witness that the person they’ve been encouraged to ID is a suspect already in custody, they’ll become absolutely certain they were right.” She drew in her breath. “Even if they weren’t.”
“I hear what you’re saying,” the judge replied. “And let me say, for what little it’s worth, that the court considers this a far more valid argument for the exclusion of evidence than the many others you’ve presented.”
“Thanks....”
“But I’m still not granting the motion. You will be free to cross-examine the witness at length about her identification, but—”
“She’s not the one who doctored the photo.”
The judge’s lips tightened. Dan tried to send Maria a mental message. Don’t interrupt the judge!
“And if you wish,” Judge Hembeck continued, “you may call Sergeant Dunlevy back to the stand and ask him chapter and verse about what he did to the photos. But I will not exclude the testimony.”
“Your honor, I consider this a gross miscarriage of justice.”
Judge Hembeck’s eyes narrowed. “Counsel, since you’re being honest with me, I will be equally honest with you. Whether you care to admit it or not, your client was identified at the scene of the crime, just as forensic evidence has put him at the scene of the crime, and just as an audio recording revealed him planning the crime. This evidence is completely consistent with everything that has been presented in this case. Your problem has nothing to do with the court’s rulings.”
Judge Hembeck leaned closer, lowering her voice. “Your problem is that all the evidence in this case demonstrates that your client is a murderer.”
Chapter 34
Dan tried to remain calm, but it was becoming increasingly difficult. He was experienced in the art of not letting his emotions show, so he had no problem maintaining a stoic expression. But that didn’t stifle the turmoil roiling inside. His stomach was tossing and turning, and for good reason.
This case was turning decisively against him. And he knew it.
Unfortunately, it was about to get much worse. Garfield told Maria she was only planning to call one more witness.
She saved her best for last.
“Your honor,” Garfield said, “for our final witness, we call Ed Warner to the witness stand.”
Warner was currently a resident of the St. Pete jailhouse, the same facility Dan had visited for far too long. He would like to think any sensible juror would disregard the kind of evidence he was about to offer. But sadly, he knew from experience that was not the case. Prosecutors used snitch testimony because it worked so well.
And Garfield had chosen to put this man on for her climax.
Warner made his way to the witness stand. They’d cleaned him up and put him in a suit for trial. Nothing fancy, but enough to remove some of the jailhouse stink. He was a lean, wiry man with deep-etched lines in his face. Birthmark on the left cheek. White socks. A habit of rubbing right thumb and fingers together.
Garfield whipped through the preliminaries, establishing what the jury needed to know to understand the relevance of his testimony. “Mr. Warner, how long have you been incarcerated?”
“I’ve been locked up for about a year now. But to tell you the truth, this isn’t my first time.” If nothing else, the man seemed honest. Which of course was the best way to snitch. Appear forthright—then drop the hammer.
“You’ve had prior convictions?”
“Yeah.”
“Felonies?”
“Four or five, something like that. Two counts of larceny. One for fraud.” Warner shrugged, looking appropriately ashamed. “I wrote some bad checks.”
Strategically speaking, that would be the one to emphasize. What person his age hadn’t written a check that bounced?
“Have you been promised anything in return for your testimony today?”
“No,” Warner said solemnly. “Absolutely not.”
That response didn’t surprise Dan. It might not be completely false. For someone as experienced as Warner, no express promise was necessary. He knew that if his testimony helped them convict the defendant, he’d see his sentence sharply curtailed. He’d probably be out in a few days once the jury decided to convict.
“Have you ever testified in a court of law?”
“Yes. Several times.”
“How did that happen?”
Again the shrug. “I guess I just got one of them faces. People talk to me. Probably helps that I work in the library. People sit around together, people who are normally locked up by themselves. Only natural that they start gabbing. Sometimes they come to me for advice.”
“For advice? Do you have an area of expertise?”
“I used to be a police officer. They all know that in the joint. Some think I might be able to help them with their legal problems.”
“Do you?”
“I help when I can. But I’m no lawyer.” With the last word, he glanced at Dan, presumably reminding the jury who in this courtroom was a tricky pettifogger.
“Does that have anything to do with your appearance in court today?”
“Yeah, I guess it does.” He looked a little proud, a little downcast. “I still got law enforcement in my blood. I believe in justice. Right and wrong. I don’t like to see anyone getting away with anything.” He paused. “Especially murder.”
To Dan, that sounded as contrived as anything he could imagine. But the jury seemed to be paying attention.
“Mr. Warner,” Garfield said, “have you ever had occasion to speak with the defendant, Daniel Pike?”
“Yeah, once.”
“When did that happen?”
“Not long after he was arrested. He wasn’t in long. He managed to slip out pretty quick.”
A gratuitous jab, probably intended to suggest that he had already gamed the system for special privileges.
