“One day when he no longer is, if he ever was, the fastest gun on the block, or on any block, not anymore, and the wind has blown so much of the detritus of the times over the street where he lives, over where he lives and over where he was born, one day when his muscles ache, when his energy has ebbed, he will find himself trying to remember his parents. He will want to remember them. He should be able to remember them. He’s not that old and, after all, he was there when, in their separate and conflicted ways, they pursued what was missing in their lives, missing in their home. They didn’t mean any harm. They possibly meant well. He will want to remember them as he lies there, still and cold. But he won’t be able to.”
“So now you’re telling me how to save my son?”
“I’ve saved him once already.”
“What are you talking about?”
“Anna, he was drowning once.”
“What?”
“In your backyard swimming pool. He fell in wearing his school clothes. It was a hot summer day. I was there. I pulled him out. He was panicking. I gave him—”
“Yes, that’s right. Your psychiatrist told me about this. He said you’d tell me this. I don’t believe you.”
“Ask him. Ask him, Anna. Ask Sam about the time the gardener rescued him from the pool. He was frightened. He’ll remember.”
“How come I didn’t know about this?”
“I don’t know. He dried off in the sun before you came home. Your housekeeper missed it. Joe wasn’t home . . . I won’t be there to rescue him next time. Maybe you’ll save him. You can save him now.”
19. It is necessary in cross-examination to put to another party’s witness all contrary facts to be alleged and inferences to be drawn in opposition to that witness’s evidence. It’s required both as a matter of fairness and to ensure for the trier of fact that the opposing cases are factually anchored to each other and are not permitted to float past one another like ships in the night. This requirement, Gina explained, is known as the rule in Browne v. Dunn. It means that, despite the burden of proof being on the prosecution at the trial, Gina would not be able to stay silent about my relationship with Anna until the end when she addressed the jury. She would have to give Anna the opportunity to deny it in cross-examination.
“There’s no way out of it,” Gina told me.
“She’ll deny it.”
“I know, but we’ll be ready for that. We’ll stress the intensity of your relationship with her when you were students, and all the reasons she has to deny the illicit reborn relationship, as against your lack of any conceivable reason, other than her request, to pick up her son from school. We’ve also got the fact of her recent visit to you here. It suggests some ongoing emotional involvement with you.”
“What about Angelique . . . sorry, Angela? Surely this rule applies to her, assuming she’s still treated as a ‘hostile’ witness. And can’t the fact of her visiting me here be used against her, against me?”
“You’re right but . . . they’re not calling her.”
“Why not? Don’t they trust her after the committal?”
“Maybe it’s partly that but also . . . didn’t Alex tell you?”
“Tell me what?”
“Simon, I’m sorry. I thought he’d already . . . She’s been in an accident.”
Alex had been keeping it from me. He said he knew it would distress me and since there was nothing I could do to help her, he hadn’t told me. As it was, he knew very little about it. He had been unable to contact her. He couldn’t even tell me how he knew.
“Has she . . . had she become a patient of yours?”
“No.”
“Had you . . . were you seeing her?”
“Simon, I can’t believe you’re asking me that.”
“Do you think I’d say something to Gina? I wouldn’t.”
“Simon, you’re upset and you’re being ridiculous.”
“Is Kelly a patient?”
“Kelly?”
“Her room-mate.”
“No, she’s not a patient . . . and I’m not seeing her either.”
“But a patient told you about her accident, right? Come on, Alex!”
“Yes.”
“A man?”
“I’ve told you everything I—”
“It’s Joe Geraghty, isn’t it?”
No one would tell me what had happened to her. If Alex had kept the fact of the accident from me, maybe he was now hiding the details. Perhaps he did know the extent of her injuries and just wasn’t telling me. I called her home for the first time since my arrest, but the line had been disconnected. I lay awake wondering what had happened to my brave young friend. What risk had she taken now? I owed her an apology and more. I owed her an explanation and, for the sake of parity, many, many attempts to save her life. At least, I consoled myself, I had not been the cause of whatever had happened to her.
20. The Turk shivered. I knew that way of shivering. It had nothing to do with feeling cold, nothing to do with the temperature. I have shivered like that, talking with eyes averted to shop assistants and bank tellers. I’ve spent whole days traveling around the city on trains shivering the way Nazim the Turk shivered in my cell. He had found a guard who would let him in so long as I agreed, and I had. I wanted to keep him on side in case I needed his assistance later. And, as far as one could, I liked him.
The Turk had taken a hit in the “War on Drugs.” A dealer on the outside, prison life, the problems with his wife, and now the rumors about her had seen him become a user. To make matters worse, there was a heroin crisis, not just on the inside but in the real world as well. Everyone inside, even the non-users, knew about it because it had affected the price of everything on the black market, from gum to glue to protection. The price of heroin had gone up quite suddenly. It was harder to get and around two-thirds as pure when you got it. No one really knew why, but everybody had a theory. Some said it was the Taliban’s “slash and burn” tactics. Others that it was a severe drought in Burma. Or the police. Whatever it was, it was making life inside even more unpredictable, even more violent, than before.
The Turk had taken to substituting other things for heroin, anything he could get his hands on. Crystal methamphetamine, or ice, as it was called, became his substitute of choice, but he also injected cocaine powder when he could. The particular problem with ice was its oiliness, which produced injection-related skin problems not usually associated with heroin. Perhaps worse than that were the psychiatric symptoms which, exacerbated by prison, could be fatal. He had become more paranoid, more anxious, and more often more obviously psychotic.
He whispered to me, “She’s a bitch, hey, Fuck?”
“Who is?”
“My wife.”
“No, I’m sure she’s not.”
“She is, Fuck. Open for business. Open all night. All day, all night.”
“No. Don’t believe what these—”
“Say for me again. Your Turkish friend, Nazim.”
Quietly, with him breathing hot breath on my face in the tiny cell, I started to recite yet again Nazim Hikmet’s “Some Advice to Those Who Will Serve Time in Prison.” With tears in his eyes he hugged me, started to squeeze me.
“Nazim, it’s okay. You can let—”
“Say again for me.”
“No.”
“Say again. Please. You say me again, hey you, Fuck?”
He wasn’t letting go, and I started again. He turned me around and when I struggled he held me tighter and put his hand over my mouth.
“Shut up. Just say again and again,” he whispered, and I thought of Angelique and of how often she must have felt like this when, at the very last minute, you stop resisting. You stand up and take it like a man. To think of abrasive trauma, fissures, contusions, thrombosed hemorrhoids, lacerations with bleeding, and pain in prison is bad. To think of friendship is good. And I also recommend closing your eyes, trapping the tears, and thinking of death.
21. Maria Manzano, Mrs. Maria
Manzano—who was she and how did she come to delay the beginning of my trial on the morning it was due to commence?
At the time Gina and I had expected to be in court listening to the prosecutor’s opening to the jury, we found ourselves discussing the power of language, quite calmly, at least for a few moments there in the cells at the court. Criminal procedure everywhere in the world suffers from the same quite unavoidable problem. There is a tendency for people to hear a story once and, thereafter, to deem any deviation from that first telling, from the version they heard first, a deviation from the truth, to regard the first version as the true version against which other versions are measured. But since, by necessity, the prosecutor in a criminal trial has to go first or else there is no case to answer, there can never be any way around this. The judge or jury will always hear the prosecution’s version first.
It was an academic observation Gina made in passing as we waited. “People have to fight against it. Even lawyers,” she said, “who really ought to know better, fall into these kinds of traps, following blindly, not thinking clearly. I saw examples of this in law school all the time. The very area of law we’re waiting to deal with now is universally but quite inaccurately known by lawyers in Commonwealth jurisdictions as the ‘similar fact’ rule, although the term similar fact actually refers specifically to an exception to a rule of exclusion.”
“What’s that?”
“Okay, it’s a rule, and we’ll shortly be seeking to rely on it, which prevents or excludes the prosecutor from leading evidence for the purpose of establishing ‘discreditable disposition’ on the part of the accused. Evidence of a ‘discreditable disposition’ is highly influential on a jury. We say here it prejudices a jury against you. They say it helps them prove your guilt. In this case it’s just a ‘try-on.’ They can’t possibly expect to get this in.”
Maria Manzano was the mother of Carlo Manzano, the little boy who had gone missing while I was trying to improve his reading and boost his confidence. According to the prosecution, my “discreditable disposition,” as far as I could understand the alleged relevance of her evidence, was a tendency for me to be in some way connected to children who were missing.
“But Carlo’s disappearance has nothing in common with me taking Sam.”
“I know, nothing in common with it but the fact that both boys went missing from their schools and, of course, you.”
“This is . . . crazy. It’s completely unfair. It’s something out of Kafka.”
“We’ll fight the calling of any evidence concerning the disappearance of Carlo, or any kidnapped children, for that matter. The court has to weigh the probative value of the evidence against its prejudicial value. Where the evidence is more likely to cause a jury to be prejudiced against you than it is to provide actual proof of the charges against you, that evidence has to be ruled inadmissible. Here it’s an easy call.”
“Why?”
“Simon, have you read Mrs. Manzano’s statement? It’s full of nothing but uncontentious and irrelevant facts. You, as his teacher, were providing Carlo with extra, remedial classes, after school. She knew about it and approved. At the end of one of these classes, Carlo disappeared. You were the last one to see him. He’s still not been found. She and her family were devastated. They continue to be. They’re not over it. She doesn’t think they ever will be. This has absolutely nothing to do with the charges against you. It’s not evidence of any propensity on your part. It’s just a nasty, sleazy, and quite crude and clumsy attempt to poison the minds of the jurors, to somehow connect you causally and in a sinister way to the crime committed against Carlo. They want to carry on what the tabloids started.”
“If it’s so obviously crude and clumsy, why are they doing it?”
“I don’t know. I guess they think it’s worth a try. The police were very, very angry, absolutely livid, after Angela’s evidence at the committal. Now they’re really determined to get you convicted. Even so, this is remarkably crude. It would make a great appeal point.”
The judge read Carlo’s mother’s statement, and even I felt confident he was not going to let her evidence in. Gina requested a day to prepare a legal submission as to why he shouldn’t. He gave her two hours.
The prosecutor never had a chance. Gina threw everything at him. She said that admitting Mrs. Manzano’s evidence would have the same effect as reversing the onus of proof, especially given the links to other children the tabloids had made at the time of my arrest and then again at the time of the committal. When both sides had finished addressing him, the judge delivered a ruling along the lines of the draft ruling Gina had handed up. The judge made it unambiguously clear that the prosecution was strictly prohibited from leading evidence of, or drawing any inference from, or raising in any way the disappearance of Carlo or any other child victims of any crime. The jury was impaneled, and I tried to look as Gina had instructed me to look at the time of the committal. When all twelve of them were seated and ready for the commencement of proceedings, the judge adjourned the prosecution opening until the following day.
The prosecution opened its case the next morning. I’d heard it all before, but the jury hadn’t. They listened attentively first to the prosecutor, then to Detectives Threlfall and Staszic. Staszic seemed even more stubbornly inflexible than at the committal. He was having difficulty hiding his hostility to me. He wasn’t the only one.
Joe Geraghty, dressed in a navy suit, took the oath like a man swearing revenge, but it wasn’t till Gina’s cross-examination that his composure deserted him. He chewed the vigor in the logic of her questions and spat it out in words dripping with frustration and pain.
“Mr. Geraghty,” she asked him. “You said you had received a note at work telling you that Sam would be returning late from a school excursion, didn’t you?”
“Yes.”
“You don’t have that note now, do you?”
“No.”
“In fact, you’ve never been able to produce that note, have you?”
“No.”
“And there’s nobody from your former employer who can testify as to taking that message for you, is there?”
“No.”
“You know, don’t you, that your son’s teacher has said previously, and is going to give sworn evidence to this court, that Sam’s class did not go on an excursion that day at all.”
“Yes, but somebody gave me the message—”
“You don’t know who left that message, do you?”
“Well, I assumed it was my wife.”
“You don’t know now that it wasn’t from her, do you?”
“I only know what she tells me.”
“You don’t always tell each other everything though, do you, Mr. Geraghty?”
“I don’t know what you mean.”
“I think you do.”
“Why don’t you just tell me and stop showing everyone how clever—”
“Mr. Geraghty,” the judge interrupted, “please confine your answers to Ms. Serkin’s questions.”
“Mr. Geraghty,” Gina continued, “your marriage was not in the best of health, was it?”
“It has its ups and downs, like anyone’s marriage.”
“Are you really saying that it was like anyone’s marriage?”
“Yes . . . more or less.”
“But you were very dissatisfied within it, weren’t you?”
“No, not especially.”
“You weren’t?”
“No.”
“Mr. Geraghty, you were seeing a prostitute approximately once a week for two years, weren’t you?”
Joe Geraghty closed his eyes and shook his head.
“You’re shaking your head. Are you saying ‘no’? Mr. Geraghty, please answer the question, yes or no.”
“Yes. Yes, she was his girlfriend though, the defendant’s girlfriend. But I didn’t know that then.”
“Mr. Geraghty, if a married man sees a prostitute once a week for two years, it suggests some distance betwe
en him and his wife, doesn’t it?”
“Look, I know what you’re trying to suggest here and it’s quite, quite wrong. It’s completely misleading. You’re trying to mislead the jury.”
“Please, just answer my questions as I put them to you, Mr. Geraghty.”
Joe looked ready to jump the box.
“My wife wasn’t having an affair with him but the prostitute was. She conspired with him to kidnap my son from his school. She would’ve known he’d know how to do it.”
“Please, Mr. Geraghty,” the judge interrupted. “This will be over much sooner if you just answer the—”
“It’s ridiculous, Your Honor. Where’s the justice here? Everybody knows he’s already kidnapped that little Italian boy and he’s still missing.”
Nobody had warned Joe Geraghty about the inappropriately named “similar fact” evidence rule. The prosecutor put his hand to his face before rising. “Thank you, Mr. Geraghty.”
“What the hell . . . You wanted the whole truth and nothing but—”
“Thank you, Mr. Geraghty,” the judge said. “You may step down now.”
“But, sir—”
“Mr. Geraghty, we’ve heard enough from you for the moment. I’m asking you to step down.”
Joseph Geraghty stepped down utterly bewildered. The judge asked the members of the jury if they would like to stretch their legs in the jury room. At least some of them clearly understood what had just happened. When they had filed out, Gina, the judge, and the prosecutor all agreed that the jury would have to be discharged. The trial was aborted. We were going to have to start again.
22. Exhausted almost to the point of tears, I was taken downstairs to the cells to wait for transport back to the prison. It was only a few days that had been lost, but I couldn’t bear the prospect of sitting there in the dock, the target of accusatory glances from twelve new jurors hearing afresh what I had done. One of the guards told me my lawyer would be coming down to see me before I left. I thought she would want to console me for having to go through it again. But walking toward me, she seemed too animated to be feeling the way I did.