“I did,” he says. “And I found-”
“Just answer the question.” I cut him off. Franks would like to cut to the chase, collect his fee, and get out.
I have the calendar brought over from the evidence cart, and Franks identifies it as the one he examined. I flip it open to July and place it on an easel in front of the jury, back far enough so that they would need binoculars to dwell on the incriminating note with Acosta’s name.
“I call your attention to July fifteenth and ask whether you specifically examined the calendar block, the white portion or space for that date on this calendar?”
“I did.”
“Can you tell the jury what type of examination you performed?”
“I was requested to examine the calendar for the date in question, to determine if there was any evidence of writings not otherwise visible. Indented or impressed writing.”
“And what is this, ‘indented writing’?” I ask.
“These are impressions or fragments of impressions left on a piece of paper by the pressure of writing on a sheet that was placed over it at one time and later removed.”
“Like successive pieces of paper on a pad?”
“Yes.”
“Were you able to determine the existence of such impressions on the calendar in question for the date of July fifteenth?”
“I was,” he says. “There appeared to be impressions of handwriting.”
“And were these decipherable?”
“Objection. Hearsay,” says Kline.
“The question was whether this intended writing was readable, not what it said.” I turn on him, and Radovich tells me to direct any argument to the bench.
“The witness can answer the question yes or no,” says the judge.
“Yes,” says Franks.
“The note was readable?”
“Yes.”
I turn away from the podium for a moment, considering ways to nibble at the edges.
“In examining the calendar, was there any way to determine what kind of paper the original note might have been written on, the paper that was removed?”
It always helps when you know what the evidence is before you go looking. Franks and I have worked on this. I told him what it was, and he contrived methods to discover it.
“There is some indication,” he says.
Kline is getting antsy.
“And what was that?”
“Examination under a microscope revealed the existence of some very fine mucilage.”
He loved the word and had to put it in, told me that it provided credibility.
“This mucilage was on the surface of the calendar for the date in question.”
“Mucilage?”
“Glue,” says Franks.
“Ah. What kind of glue?”
“Under intense light,” he says, “and with high magnification, I would say that it is very similar to what might be imparted by one of those yellow stick-on notes we all use.”
Under intense light and high magnification, bullshit is still bullshit and Kline smells it. He rolls his eyes and starts grousing at his table. He actually throws two pieces of paper into the air and lets them float back down onto the surface in front of him as if to make sure that the rules of physics are still functioning. He flashes Stobel a “can you believe it” look.
Harry has one of the stick-on notes, a sample, at the counsel table ready to hand to me, so I show it to the witness.
“That’s the kind I’m talking about,” he says.
Kline by now is convinced that this is an impossibility. He wants to look at this, and with Stobel at his side they stick it to a piece of paper, roll it with a thumb, and pull it off. Kline feels with his fingers for glue, and shakes his head. He holds it up to the light, looking for evidence of the glue.
Before I can object, Franks takes care of this for me.
“Oh, you need a microscope.” He says this with guileless sincerity, to Kline, so that a couple of jurors actually laugh. Kline gives the witness a look as if the word cross had suddenly taken on a whole new meaning: three nails and two boards. He starts collecting venom for his cross examination.
“Now you said that the impression from this notation was legible. What technique or process did you use to read it?”
“I did it the old-fashioned way,” he says.
He pauses to look at me. For a moment I think he’s going to say, “I made it up.”
And then he says, “Oblique light.”
“Explain to the jury, please.”
“You take a bright light and shine it across the surface of the impression. Shadows appear in the indented areas of the paper, and if they are deep enough they become legible. There are other methods, some more sophisticated,” he says.
“I’ll bet,” says Kline.
I object to this, and Radovich admonishes him. Tells him he’ll have his turn.
“I can’t wait,” he says.
I ignore him.
“This oblique-light method worked?” I ask.
“It was sufficient for our purposes.”
“How many words appeared on the indented notation?”
“Objection,” says Kline. “Hearsay.”
“I’m not asking for content, just word count,” I say.
We are treading on the edge, and Radovich considers for a moment before he rules.
“I’ll allow it,” he says, “but nothing more.”
“Let’s see.” Franks counts with his fingers and I begin to wonder if he’s going to have to feel through the hole in his shoe if he gets above ten.
“Does the man’s initial and the time count, or just the name?” he asks.
“Objection.” Kline storms to his feet. “Move to strike,” he says.
“The witness’s comment will be stricken,” says Radovich. “The jury is to disregard it.” The judge gives me a look, eyes that burn. Then he turns this on Franks in the stand.
“Just answer the question,” says Radovich. “How many words? Anything beyond that and you’ll spend the night in jail. Do we understand each other?”
“Lemme see.” Franks starts counting again.
“Do we understand each other?”
“Oh, yeah. Sure.”
“Two or three,” he says. “Depending on how you count.”
Radovich looks as if he wants to reach out and hit him with the gavel.
“Your witness,” I say.
“Saved by the bell,” says the judge. A few jurors laugh at this.
Kline rips in like a shark with blood in the water.
“Isn’t it customary to take photographs when examining indented writing?” he says.
“Some people do,” says Franks. “I don’t.”
“Come now,” says Kline. “Isn’t it a fact that in order to read such impressions, photographs are necessary?”
“I can read them without it,” says the witness.
“And I’ll bet you speak in tongues, too,” says Kline.
“Objection.”
“Stick to questions,” says Radovich.
“So all we have is your word that these impressions existed? There’s no hard physical evidence that you can show to the jury, is there?”
“No.”
“How convenient,” says Kline.
“Is that a question?” says Radovich.
“Sure,” says Kline. He decides to get cute. “Isn’t it a fact that you found this, the absence of photographs, convenient?”
“In what way?” says Franks.
“Because if you were forced to produce photographs we could examine them. The jury could see them. Without them you can say whatever you want and there’s no way to question what you say. Isn’t that so?”
“There was a reason there were no photographs, but that’s not it,” says Franks.
In front of the jury it is like a dare, a test of his manhood. Kline has no choice but to ask why. He does.
“Photographs would have been inadmissible,” says the witness. “You said it yourself. The content of that writing in a photograph would have been hearsay.”
Kline stands in front of the jury box, hoist with his own petard.
“Well, the judge could have looked at them, behind closed doors.” Kline says this lamely, knowing that he’s just had his butt flamed. He retreats for cover, changing the topic to the glue.
“How can you be sure that what you saw on that calendar was glue from a stick-on note?”