Afraid of the Dark - James Grippando [52]
Vince considered it, then said, “I’m sure it helped.”
It wasn’t a perfect answer, but this was unpleasant work for Jack, and he had pushed Vince as far as he cared to push.
“Your Honor, at this time . . .”
His voice halted, and Jack was suddenly at war with himself. Again, he glanced over his shoulder. What if Jamal is guilty?
The question gnawed at his soul, but Jack fought through it, reminding himself that he wouldn’t have come this far if Jamal hadn’t passed a polygraph examination. If McKenna’s own father hadn’t expressed doubts about Jamal’s guilt. If the government hadn’t pushed back so hard against Jamal’s alibi. If the witness who had flown all the way from the Czech Republic to support the alibi hadn’t died so mysteriously at Lincoln Road Mall.
If the message scrawled on Jack’s napkin hadn’t read “Are you afraid of The Dark?”
“At this time,” Jack continued, “the defense moves to exclude the answering machine recording as hearsay.”
The prosecutor was on his feet. “It’s admissible as a dying declaration,” he said, noting one of the oldest exceptions to the hearsay rule.
Jack said, “The premise underlying a dying declaration is that a victim of a violent crime has no reason to lie about the identity of her attacker if she knows that she is about to die. The key concept is that she must know—or at least believe—that death is imminent. The opposite is true here. Sergeant Paulo told her repeatedly that she was not going to die.”
“To put her at ease,” said the prosecutor.
“Precisely my point,” said Jack. “Sergeant Paulo testified that the victim was so scared that she couldn’t even speak. After he told her three times that she was not going to die, she was able to name her attacker. Clearly, she did not believe her death was imminent—or even likely.”
The judge seemed troubled. The prosecutor was clearly worried.
“Judge, we—” said the prosecutor, but the judge cut him off.
“Hold it, Mr. McCue. I’m thinking.”
Jack glanced at Neil, who looked almost as surprised as Jack. This was a long shot that had played out much better than either of them had anticipated.
The judge asked, “What is left of the government’s case against Mr. Wakefield if this recording is excluded?”
“Virtually nothing,” said Jack.
“That’s not true,” said the prosecutor.
The judge asked, “Is there any physical evidence linking the defendant to the commission of the crime?”
“None,” said Jack.
“It burned in the fire,” said the prosecutor.
“It never existed,” said Jack. “My client was in a detention facility in the Czech Republic at the time of the crime.”
The Justice Department lawyer was suddenly yanking at the prosecutor’s sleeve, and the two of them huddled into an intense exchange of whispers. The judge leaned back in his chair until he was staring up at the ceiling tiles, retreating even deeper into thought.
“Judge, we’d like a recess,” said the prosecutor.
“I’m in the middle of my examination,” said Jack.
The judge ignored the exchange between the lawyers, rocking in his chair and thinking aloud. “If I rule this recording inadmissible,” he said, “I would imagine the defense will be filing a motion to dismiss the indictment.”
“That would be correct,” said Jack.
That sent the prosecution scrambling. “Judge—”
“Quiet, Mr. McCue.”
“Judge,” said the prosecutor, “I have an announcement. The state of Florida withdraws its objection to the release of Mr. Wakefield on bond.”
The judge seemed poised to rebuke him for the sudden change of position, but he quickly appreciated that his own butt was off the hook. Throwing out McKenna’s dying declaration would have been front-page news—and letting accused murders go free was generally not a career-enhancing move for an elected state court judge.
“That certainly changes things,” said the judge.
Smart move, thought Jack. The government was better off letting Jamal out of jail on pretrial release than digging in its heels and losing the entire case at a bail hearing.
“We would ask for release on the prisoner’s own recognizance,” said Jack.
“Bail should be set at one million dollars,