“Counsel for the defendant, do you have an opening?” the judge says.
When Lundy began speaking, my heart was pounding, but now there are no nerves, only the burning desire to refute what he’s said. My adrenaline level is so high I have to force myself to slow down.
Instead of walking to the lectern, I stand behind Hailey and put my hands on her shoulders. I didn’t tell her that I was going to do this, and she starts slightly in surprise. Good. I don’t want the jury to think this is rehearsed. I’m a lawyer humanizing my client; a father showing I love and trust my daughter.
“Members of the jury, Hailey Hovanes is a sixteen-year-old rising high school junior who’s had an exemplary record. She’s a star athlete, a mentor to younger kids, and a good student. She’s never before been in trouble, never before been accused of bullying anyone. She didn’t bully Farah Medhipour. Farah’s death is a tragedy, but not every tragedy is a crime. There’s not a shred of evidence that Hailey caused Farah’s death, much less evidence beyond a reasonable doubt. No, sadly, Farah died by her own hand.”
I move to the lectern and make eye contact with each juror. “Farah was one of those younger students who Hailey mentored. There’s no dispute that Hailey was kind to Farah, helpful. That, members of the jury, isn’t the profile of a bully but rather the opposite of bullying. You’ll hear evidence that Farah Medhipour had profound psychological issues long before she entered high school, that she had a history of conflict with other children, that she was being treated for severe depression. And because of those issues, she took Hailey’s acts of kindness the wrong way, expressed romantic love for Hailey, and eventually stalked Hailey. What the prosecution calls bullying was just Hailey’s way of protecting herself.”
I point out that the threatening e-mails are anonymous and could’ve come from anyone; that a schoolyard confrontation doesn’t amount to bullying; that you can’t criminalize every harsh word or insensitive act, especially where teenagers are involved. I note that other important forces—parents, other kids, teachers, therapists—all influenced Farah’s state of mind.
Then I confront the most damning piece of evidence. “Yes, you’ll see a horrible video that no parent, no person should have to see. But that video will show one thing beyond any doubt: Farah Medhipour died by her own hand.” Two of the jurors are nodding, and that’s a good thing, especially so early in the case.
As I’m about to finish, I momentarily turn away from the jury so I can stand near Hailey when I ask the jury to acquit her. My eyes fall on Daniel, who’s sitting slouched in a chair in the third row of the gallery. His long legs are in the aisle, crossed at the ankles. He looks as if he’s lounging. He has a disrespectful—no, disbelieving—smirk on his face. I struggle to remain composed: if even one of the jurors notices Daniel’s demeanor, this opening statement, no matter how effective, could be worthless. How could Hailey be innocent if her own brother thinks she’s guilty?
Chapter 18
The judge calls for a fifteen-minute recess. As soon as the jury exits and the judge leaves the bench, I tell Hailey to stay with Debra, half-sprint toward Daniel and Janet, and usher them into the attorney conference room.
“What the hell, Daniel?” I say.
“I tried to nudge him, but I didn’t want to make a scene,” Janet says.
He seems genuinely confused. “What did I do now?”
“Slouching like that, with your legs in the aisle,” I say.
“Those chairs are hard, and it’s cramped. This courtroom sucks. Anyway, so what?”
“You were smirking, like you were ridiculing what I was saying.”
“Jesus, Dad, that’s the way I always look. I wasn’t doing anything.”
For all his issues, Daniel isn’t stupid. How could he be unaware of his behavior? Of course, I don’t want to believe he’s trying to sabotage his sister’s case, but I can’t take the risk.
When he takes out his cell phone and starts playing some game, I lose it. “You’re not going to set foot in this courtroom again while this trial is going on! Take an Uber back home now and don’t come back.”
He recoils as if I’ve slapped him in the face. I expect him to hurl invectives at me, but he just pockets his phone and shuffles out.
Janet nods, as if this is a triumph rather than yet another crack in our family’s foundation.
I worry that I’ve been too harsh. Maybe his behavior wasn’t intentional. Daniel has difficulty reading social cues. It doesn’t matter. He can’t come back.
“Do you think the jury noticed?” I ask.
Janet shakes her head. “They were all focused only on you. You were terrific. Riveting.”
I’ve always craved her praise, and her words lift me out of the gloom that this incident with Daniel has caused. We share a sweet awkwardness we haven’t experienced in a long time.
“You’d better get back,” she says.
Chapter 19
The People call Detective Ernesto Velasquez.”
Dressed in a tailored charcoal-blue suit—Velasquez is a flashy dresser, especially for a cop—he lumbers to the stand. He’s testified hundreds of times before and has a good courtroom demeanor. The perfect first witness.
Velasquez recounts his investigation, which began with Farah’s video suicide note and continued when police forensics found the anonymous threatening e-mails on the girl’s computer. Lundy offers into evidence the message that reads leave Aaron alone bitch or you’re dead.
“Objection,” I say. “No foundation as to authenticity.” What I mean is that because the e-mails are anonymous, they can’t be traced to Hailey and are irrelevant.
“Overruled,” the judge says. “I’m going to admit them for the limited purpose of showing that the victim was harassed. The jury is instructed that unless authenticated, these e-mails can’t be used as evidence that the defendant sent them.”
Honest jurors try to follow limiting instructions, but it’s like telling someone not to think of giraffes for ten seconds. Our jury can’t help but conclude that Hailey sent these disgusting messages.
“In your investigation, did you discover a video in which Farah Medhipour discussed committing suicide?” Lundy asks.
“We did.” Velasquez spends the next ten minutes testifying about the investigation and forensic analysis surrounding the video.
“At this time, we’d like to play that video for the jury,” Lundy says.
“Objection,” I say. “Hearsay.”
“It comes in under the dying declaration exception,” Lundy says. “The victim had a belief in her impending death.”
“But she hadn’t suffered her injuries yet, and the case law holds that injury is required before the statement is made.”
“Not unprecedented at all,” Lundy says. “West Virginia and the federal courts in Illinois hold that a suicide note is admissible as a dying declaration.”
“Those cases involved written notes,” I say. “And California and Louisiana don’t even let notes in.”
“The medium doesn’t matter, it’s still a dying declaration, Your Honor. The California and Louisiana cases that Mr. Hovanes mentions are outdated and ill-reasoned. And besides, Farah Medhipour had suffered injury when she made the video—the taunts and harassment and bullying and psychological wounds inflicted by Hailey Hovanes.”
“Objection!” I shout.
“Lower your voice, Mr. Hovanes,” Judge Sears says. “And don’t do anything like that again, Mr. Lundy. The jury will disregard Mr. Lundy’s statement about the defendant inflicting wounds. That’s for you to decide after all the evidence is in.”
“Very well, Your Honor,” Lundy says with false contrition.
“As for the hearsay objection, it’s overruled,” the judge says. “The video will come in as a dying declaration. I know this is a case of first impression, but I agree with Mr. Lundy—the medium doesn’t matter. And it’s highly relevant to this case, whatever the prejudice.”
Debra exhales audibly. Th
is is a major defeat and a mistake on my part. I should’ve asked to approach the bench so we could argue out of the jury’s presence. We have grounds to appeal, but that assumes a conviction—a nightmare scenario.
“What we’ll do now is clear the courtroom of everyone but the media, law enforcement, and family members of the defendant and the victim who choose to stay,” the judge says.
Farah’s mother and uncle leave. Janet stays. I warned her about the video but also advised her that remaining in the courtroom would signify a strong show of support for our daughter. I admire her willingness to sit through this.
And then, to my shock, I see Daniel sitting in the back row. Why is he here after I demanded he stay away? His mother doesn’t seem to notice him.
Hailey has never seen the video, and it will be hard on her. More than that, her reaction will influence how the jury views her.
Lundy’s assistant taps on her keyboard, and the five courtroom monitors power up. The video starts like any other kid’s selfie, with Farah looking down as she adjusts the camera. Because she made the recording on a cell phone, the video quality is slightly fuzzy on the large high-definition screens. She’s a kid, a pretty girl with raven hair and olive skin, at fourteen still a child in a way that Hailey wasn’t at that age. She looks into the camera, her dark-brown eyes clear and sad—but no tears. She’s wearing her school soccer uniform.
“Maamaan, if you’re watching this, I’m already dead and at peace,” she says, and what’s chilling is that she sounds at peace. “Please don’t blame yourself. You were a great mom, did everything for me. I love you.” She adjusts the camera to zoom in. “I’m ending my life, yes, to stop my own pain, because I’ve been hurting so bad for as long as I can remember. But that’s not the only reason. I want to help other kids who are in pain so they don’t have to do what I’m doing. I just can’t stand the torture anymore—the horrible, mean words, the texts, the shoving, the loneliness. Maybe that’s the worst, the isolation. The torture has gone on for so, so long.” She takes a deep breath. “Why, Hailey? I just wanted to be your friend. You were supposed to be my mentor, my teammate. So what if I liked you more than you liked me? So what if I’m not as cool or pretty as you and your friends? So what if I said I loved you? You didn’t have to be mean, you didn’t have to torture me, to get the other kids to torture me. Don’t you have any feelings at all? Why did you hurt me like that, with those ugly e-mails, and the…? I warned you, Hailey. I told you that you were making me want to die. I hope you see this video someday soon. It’s for you, too, to help you and other bullies. So you won’t do to other kids what you did to me. We’re all just teenagers, in the same boat, right?” She pauses, showing no signs of fear. “I guess that’s it. I love you, Maamaan.” She repeats the words in Farsi, her last.
She maneuvers her cell phone upward so the camera is focused on the second-floor balustrade. A heavy-duty orange extension cord—industrial grade—dangles from the top railing. You can hear her climbing the stairs. Then interminable silence, as if she’s reconsidering, but, of course, she doesn’t reconsider. The extension cord is pulled upward. There’s another long pause as she forms the noose and wraps it around her neck—we don’t see this, but we know. Then she maneuvers her youthful, athletic legs over the railing, and she seems to be sitting for a moment, and the decisive drop, and a short high-pitched shriek, and the gurgling and the convulsions—legs and arms and torso flailing helplessly against death despite what her brain and soul may desire, and her face a bloated, hideous death mask before actual death, and the spasms subside and become tremors. Then even that paltry indicator of life ceases. Only just before the screens go blank does it become clear that Farah soiled herself.
Three jurors are in tears, and several glare at Hailey, who, as the video played, showed no emotion at all. It would’ve been better if she’d become hysterical.
I scan the gallery. Janet stares at the ceiling, jaw clenched, hands clasped tightly on her lap. Daniel is nowhere to be seen.
Chapter 20
I jump out of my chair and go to the lectern, a message to the jury that I can’t wait to have at Velasquez, that nothing about his testimony or the video bothers me. I hope I’m a good actor.
“The e-mails that you found on Farah Medhipour’s computer were sent anonymously, weren’t they, Detective Velasquez.”
“Yes, sir.”
“In fact, the sender uses the name Farahs_Nightmare.”
“That is correct.”
“And no one in law enforcement knows who sent them.”
“Correct.”
“The police department examined Hailey Hovanes’s computer and smartphone?”
“Yes.”
“And after a thorough forensic analysis, you found no evidence that Hailey Hovanes sent those e-mails from her computer or phone.”
“No. Not from those devices.”
“Well, detective, have you found evidence that Hailey sent the e-mails from any other devices?”
“No, sir.”
“Let’s talk about the video we just saw.” I show him a transcription of Farah’s words. “Farah said, ‘I’ve been hurting so bad for as long as I can remember.’ That would seem to mean that she was in pain since she was a small child.”
“I’ve seen reports that she suffered from depression for a number of years.”
“And that depression was a reason she gave for committing suicide?”
“You could interpret it like that.”
“That’s how you interpret it, isn’t it, Detective?”
He shrugs.
“And Farah only met Hailey at the beginning of the school year?”
“Correct.”
“So, the pain Farah was suffering that led to her suicide predated her meeting Hailey?”
“It’s hard to know what the victim was thinking,” he says. He tugs at his tie, a tell that he knows he’s made a mistake.
“If we can’t know what Farah was thinking, we can’t know what caused Farah to commit suicide, can we, Detective?”
Then another unfathomable error from an experienced witness—he glances at Lundy.
“Do you need Mr. Lundy’s help to answer that question?” It’s a low blow, but effective.
“No, counselor. The video speaks for itself. Farah mentioned Hailey by name.”
“Farah also said, ‘The torture has gone on for so, so long.’ But according to your investigation, the alleged dispute between Farah and Hailey only went on for a matter of weeks.”
“That’s what the investigation turned up. But in those weeks, the harassment was unrelenting.”
“Farah had been bullied in middle school, correct?”
“I don’t know that to be true.”
“Did you investigate whether she’d been bullied in middle school?”
“Based on the e-mails and videos, there was no reason to do that.”
“So, you just saw the video and read the e-mails and assumed that Hailey Hovanes was guilty without pursuing any other suspect, without investigating who else might’ve bullied Farah?”
“There were no other suspects.”
“Did you come to that conclusion because the police department didn’t want to find any other suspects? Because Hailey Hovanes’s father is in the business of holding the police accountable for their civil rights violations and acts of brutality?”
“Objection, argumentative,” Lundy says.
“Sustained,” the judge says.
It doesn’t matter. I’ve made my point. “In the video, Farah says, ‘I warned you, Hailey.’”
Velasquez nods.
“Isn’t that an odd word for Farah to have used—warned?”
“I wouldn’t say so.”
“Doesn’t the word warned indicate that Farah made some sort of threat?”
“It might or might not.”
“As you pointed out, we don’t know what was in Farah’s mind.”
No answer.
“So, detective, Fara
h might have taken action to carry out some sort of threat she’d made against Hailey?”
“Anything’s possible, counselor. But—”
“You’ve answered, sir. No further questions.”
I’ve chipped away at the testimony and evidence. But nothing I did on cross could possibly blot out the image of that poor child in her death throes. The jury will want to blame someone for Farah’s demise, and the easy target is Hailey Hovanes.
Chapter 21
The prosecution calls Coach Nicholas Volokh, who describes Hailey’s abusive behavior toward Farah—the threatening words, the freeze-out during games, the dirty play. Worse, for one of the rare times in his adult life, the son of a bitch isn’t drunk or hungover.
On cross-examination, I ask, “Hailey Hovanes played on your club team for several years?”
“She did.”
“Good player?”
“Hailey’s okay.”
“She was your captain, your leading goal scorer, and your assist leader for three years running, wasn’t she?”
“I don’t pay that much attention to statistics. I coach kids.” Except that when Hailey played on his club team, Volokh knew every statistic for every child on his team and on the opposition.
“Your club team, the Dynamo, played at the gold level?”
“Yes.”
“One level down from the premier level?”
“Yes.”
“And Hailey left to play for a premier-league team?”
“I thought it was a mistake. She wasn’t ready.”
“And yet, she’s been a star on her new team at the higher level?”
He shrugs. “I haven’t followed her career. It’s youth soccer. Anyway, it depends on your definition of star.”
I establish that his teams won when Hailey was on the team and lost after she left, that he can’t survive on his high-school coach’s salary alone, that even youth club soccer coaches eventually lose their jobs if they don’t win. I try to shake his testimony that Hailey’s tackle of Farah during practice was a dirty play, but he holds firm. Which makes me decide to engage in a dirty tactic of my own—a tactic that Debra vehemently objects to.