“Yes, it was.”
“Do you know the exact percentage, Mr. Schermer?”
“No.”
“And espresso is roasted differently than other blends of coffee, is it not?”
“Yes.”
Hardy, hammering the man mercilessly, decided to back off for a moment lest to the jury he come across as unsympathetic. He walked back to his desk, took a sip of water, gave half a nod first to his client and then to Joel Townshend and Harlen Fisk, sitting next to one another in the front row. He pulled his legal pad over and pretended to read from it, then turned and came back to his place in the center of the courtroom.
“Mr. Schermer, at the beginning of this cross-examination testimony, you said that your analysis of raw coffee bought versus coffee served was merely an estimate with a margin for error, isn’t that true?”
“Yes.”
“But there is no industry standard that defines an acceptable margin for error for an analysis of coffee shops, is there? Not for this particular comparison?”
“Correct.”
“Would you care now to estimate for the jury, and after the questions I’ve just put to you, how high the margin for error could go on an analysis such as this, with different density beans, and differing strengths of various coffee drinks?”
“I don’t know if I could say.”
“Ten percent? Twenty percent?”
“Yes. Yes, I suppose.”
“In fact, since there is no industry standard on this margin for error for this particular test, it could even be higher, could it not?”
“In theory, I suppose it could.”
“How about fifty percent? Could it be as much as that?”
“Well, I really don’t think so.”
“You don’t think so?” Hardy repeated with just enough emphasis on think to make his point to the jury.
“That’s correct. I don’t think so.”
“Okay, then let’s go with the twenty percent that you admit is a possible margin of error. Now, if I could just ask you for a moment to revisit the actual income numbers you gave in your direct testimony.” Hardy went back to his desk quickly and this time brought back with him his yellow legal pad. “You said the amount of raw coffee bought should have produced income from coffee drinks sold of three hundred and seventy thousand dollars, and instead BBW’s books showed an income of four hundred sixty-two thousand dollars, isn’t that right?”
“Yes.”
“And would you agree, sir, that twenty percent of three hundred seventy thousand dollars-the margin for error we’ve been discussing-is seventy-four thousand dollars?”
“That sounds right.”
“It is right, sir. Which means that, according to your own calculations, BBW’s coffee drink income from raw coffee bought could have easily been as high as four hundred forty-four thousand dollars, or only sixteen thousand dollars short of the reported income, isn’t that right?”
Thoroughly dispirited by now, Schermer stared down at the floor in front of him. “It sounds like it.”
“Well, Mr. Schermer,” Hardy said, “given your direct testimony outlining sixty-seven simple accounting errors, does a sixteen-thousand-dollar discrepancy on a gross income of between three and four hundred thousand dollars strike you now as necessarily indicative of money laundering?”
Stier started to rise, but before he could object, the witness replied. “Not necessarily, no.”
The judge let the answer stand, and Hardy whirled, smiling. “No further questions.” Stier had no redirect.
“Mr. Schermer,” Braun said, “you may step down. Mr. Stier, your next witness.”
Stier threw a look over at Hardy, back up to the judge. “Your Honor, the People rest.”
Braun nodded once and looked up. “Very well. Mr. Hardy, I believe you’ll have a motion?”
“Yes, Your Honor.”
“All right. Ladies and gentlemen of the jury, I’m going to give you a longer recess than usual. Please remember my admonition not to form or express any opinion about the case or discuss it among yourselves or with anyone else until the matter is submitted to you. Come back in forty-five minutes.”
Ten minutes later, with Braun back on the bench, Hardy made his 1118.1-his motion to dismiss the charges on both Vogler and Preslee. Normally, this is a pro forma motion made at the end of the prosecution case in every criminal trial. But at least as to the Preslee count, Hardy actually thought he might have something to talk about.
“Your Honor,” he said, “no reasonable juror could possibly convict my client, particularly of the Levon Preslee murder.”
Stier defended the charges. “In spite of Inspector Schiff’s admission about the lack of physical evidence in the Preslee slaying, there is no net change in the prosecution case. Admittedly, it is light on physical evidence, but as you know there are other kinds of evidence, and they can be compelling. Eyewitness testimony, for example. Consciousness of guilt. This is circumstantial but compelling evidence.”
“Yes, Your Honor. But the burden of proof is on the prosecution to prove not just that Maya was in the hallway, but that she was inside the apartment, and more than that, that when she was in there she killed Levon Preslee. They have nothing remotely approaching that. You don’t just convict the person with a motive who happens to be closest to the scene of the crime, especially in a case like this where you have no idea who else might have had a motive. Or, for that matter, who else had been inside. I don’t have to prove that Maya wasn’t inside that apartment. Mr. Stier has to prove she was. And there simply is no such proof. Letting the jury consider this evidence in this count would not be only an error with respect to the Levon Preslee charge, it would inevitably taint any verdict on the Vogler count.”
Hardy was pushing it pretty hard here. Normally a judge could figure that if the evidence was really as weak as the defense claimed, the jury would simply acquit as to that count, and the defense would have nothing to appeal. But Hardy was taking that out away from Braun. By tying the charges together Hardy was arguing that the judge would be tainting any verdict on Vogler, even if the jury acquitted on Preslee.
So Braun was actually going to have to make this decision or expect to hear about it on appeal later. Hardy had her in a corner and she knew it. She took in the situation with a reptilian silence, her eyes closing to mere slits. Turning to her recorder, she said, “Ann, I’m hoping you got all that.”
“Yes, Your Honor.”
“Mr. Stier. Comment?”
“Your Honor, the prosecution rejects Mr. Hardy’s efforts to tie these counts together like that. Each count stands on its own, each count is supported by the evidence, and that’s how the court should rule.”
“Nobody has put Maya inside the place, Your Honor,” Hardy said. “You can’t ask the jury to decide she was there if there’s nothing putting her there.”
“I can do what I want in my courtroom, Mr. Hardy. I could get up on my desk and do a tap dance if I want to.”
“Yes, of course, Your Honor, I didn’t mean you couldn’t-”
“That’s what you said, Mr. Hardy.”
“I’m sorry, Your Honor. I misspoke.”
“Apology noted.” And now Braun surprised him. “All right. Mr. Hardy, you raise a colorable point. Give me a moment, please.” She came forward and put her elbows onto her desk, her fingers templed over her nose, her eyes closed. Finally, her shoulders heaved and she brought her head back up. “This issue is too complex to decide on the spur of the moment. Court is in recess for another half hour. I’ll have a decision for you before the jury is seated again.”
36
Hardy had a message on his cell phone that Craig Chiurco was outside in the hall, having escorted Lori Bradford down on her subpoena as a courtesy-service with a smile from Freeman, Farrell, Hardy & Roake.
Now, with the court in recess, Hardy walked out through the gallery, accepting congratulations from Joel and Harlen and some of his associates who’d shown up as they usually did when one of the bosses was in a big trial, to see how it was done. All and sundry agreed that he had just kicked some serious ass with Schermer, and between that cross-examination, his lunch at Sam’s with Glitsky, and Braun’s unexpected consideration of his motion to dismiss, Hardy had to fight to keep himself from getting cocky.