Beyond Reasonable Doubt (Keera Duggan), page 27
“We did.”
“Did those records provide any additional information about the content of her father’s phone call?”
“No.”
“Because, as we agreed, no voice mail or text message substantiated what Sirus Kohl actually said; correct?”
“Correct. I might add, that by subpoenaing Sirus Kohl’s CDRs, we confirmed he made the call at 9:32 p.m.”
“Thank you, Detective Rossi. But the fact of the matter is, we don’t know that Sirus Kohl actually pushed the buttons on that phone and made that call, and we don’t know what he said to his daughter, other than what Adria Kohl says he said; correct?”
Rossi shrugged as if the point she was making was of no import. “That is correct.”
“That call lasted fifty seconds; correct?”
“That’s what the records indicate.”
“They do,” Keera said. “Let’s pause for fifty seconds; shall we?”
Keera made a point of staring at the clock on the wall, watching the second hand tick. The jurors, and likely everyone in the gallery behind her, also turned their attention to the clock. Rossi looked more and more uncomfortable as the seconds slowly passed.
Finally, at fifty seconds, which felt a lot longer while staring at the clock, Keera said, “That’s a long time to confirm a meeting; isn’t it?”
“I guess they discussed other things.”
“You guess? Ms. Kohl didn’t tell you she and her father discussed anything else; did she?”
“I don’t know that we asked.”
“But she didn’t tell you they discussed anything more; did she?”
“No.”
“There’s no indication in your report that they discussed anything else; is there?”
“No.”
“You testified that when you subpoenaed Sirus Kohl’s CDR records you confirmed a text conversation between him and Jenna Bernstein the night before the morning his daughter found him; correct?”
“Yes.”
Keera put the exhibit documenting the text conversation back up on the computer screen for the jurors. “You never found the second burner cell phone with the number noted on the text conversation; did you?”
“No.”
“Adria Kohl told you the one phone belonged to her father and the other phone belonged to Jenna Bernstein; didn’t she?”
“She did.”
“And you assumed this was accurate; didn’t you?”
“We confirmed those numbers were assigned to Sirus Kohl and Jenna Bernstein.”
“But you never found the phone Adria Kohl told you belonged to Jenna Bernstein; correct?”
“That’s correct.”
“So you don’t know for a fact that Jenna Bernstein sent the text messages; do you?”
“We presumed it, based on the nature of the text messages on the phone.”
Rossi should have known better. Keera pounced. “‘Presumed’ is just a fancy way of saying you ‘guessed’; isn’t it? You ‘guessed’ Jenna Bernstein possessed that phone because Adria Kohl said so; didn’t she?”
“We had the text messages, and we deduced Jenna Bernstein had her burner phone that evening.”
“‘Deduced’ is also a fancy word for ‘guessed’; isn’t it?”
Rossi grinned. “I don’t know. I suppose you could check a thesaurus.”
“You guessed the two of them sent each other these text messages because you couldn’t confirm it; correct?”
“We had the CDR records.”
“But those records don’t tell you who actually pushed the buttons on the phone; do they?”
“No. They don’t.”
“Did Sirus Kohl’s CDRs indicate he sent text messages to Jenna Bernstein prior to that night?”
“Not for some time.”
“But between the date PDRT was dissolved and the shooting of Sirus Kohl, he had sent Jenna Bernstein text messages; hadn’t he?”
“He had.”
“Let’s look at some of those; shall we?”
Keera posted a message from Sirus Kohl and its date on the computer screen.
Can we talk?
“That doesn’t sound like Sirus Kohl is angry; does it?”
“I can’t tell from just three words. He could have wanted to talk about something he was angry about.”
“Here’s another text message.”
I just want to better understand why.
“Did you form any opinions about this text message?”
“No. I didn’t note it in any way.”
“Here’s one delivered just three weeks before the shooting.”
I need to talk to you. I just need a few minutes. Please?
“This doesn’t sound like a man who was about to testify against a woman he once lived with and cared for deeply; does it?”
Thompson again stood. “Objection. Improper opinion, irrelevant. No foundation.”
“Sustained,” Judge Marshall said.
“Did you form any opinion based on the language used in this text message, Detective Rossi?”
“Again. No.”
“Would you at least agree with me that the word ‘please’ indicates Sirus Kohl was pleading with Jenna Bernstein?” Keera really didn’t care whether Rossi agreed or not.
Thompson pushed back his chair, but Rossi responded before he could object. “Or he was just being polite.”
Keera said, “Okay. I can live with that. It certainly didn’t convey any animosity, though; did it?”
Rossi, perhaps realizing he’d stepped on Thompson’s objection, waited a beat, but Thompson did not rise. “There doesn’t seem to be any animosity, no.”
“And you found no return texts in response to those text messages; did you?”
“No. I didn’t.”
“Not one?”
“Not one.”
“And the person who had that phone didn’t call Sirus Kohl to talk either; did they?”
“We didn’t find any calls from that cell phone in Mr. Kohl’s CDRs, no.”
“Now let’s look at the text messages sent that night of the shooting.” Keera put the exhibit previously used up on the screen—it had been redacted to remove mention of the Wei trial.
What goes around comes around.
What is that supposed to mean?
You shit on me in . Time to return the favor.
I don’t know what you’re talking about.
“You would agree there is animosity in these text messages from Sirus Kohl’s phone; isn’t there?”
“Again, I was more interested in the text messages as having provided Jenna Bernstein with knowledge Sirus Kohl was going to meet with the US Attorney and provide evidence against her.”
“But the text messages don’t actually say that; do they?”
“Not in those precise words; no.”
“You presumed it; didn’t you?” she said with a smile.
“I guess so,” he said, also smiling.
“Assuming Sirus Kohl sent these texts, which you don’t know for a fact, and assuming Jenna Bernstein sent these replies, which you don’t know for certain either, what if she didn’t ‘presume’ what you presumed? What if she didn’t know about the meeting with the US Attorney? Then, using your analysis, she would not have had a motivation to shoot Sirus Kohl; would she?”
“She walked to Volunteer Park right after she sent the text messages,” Rossi said.
“But we’ve established you guessed she sent the messages.”
“It was her phone.”
Keera shrugged as if the response was no big deal. “Let’s talk about her walk; shall we? There’s no evidence she walked to Sirus Kohl’s house; is there?”
“Not to his house, no.”
“Her fingerprints were not found anywhere in the house; were they?”
“No.”
“Her DNA was not found anywhere in the house; was it?”
“No.”
“No photograph exists of her at the house; does it?”
“No.”
“So again, you guessed she went to his house; didn’t you?”
“We made a deduction based on all the evidence.”
“You traced a different cell phone, that we know for certain belonged to Jenna Bernstein, to her condominium that night.”
“We did.”
“But Jenna Bernstein did not take that cell phone with her when she left the condominium for her walk; did she?”
“She didn’t.”
“You thought it curious; right?”
“I did.”
“You also testified she wore a ‘disguise,’ and pointed it out on the video that attorney Thompson played for the jury; correct?”
“I did. And she did.”
“A hat and a pair of glasses.”
“And baggy clothes.”
“Comfortable-fitting clothes for a walk; right?”
“You could say that.”
“And perhaps a hat because her hair was dirty?” Keera suggested.
Rossi shrugged. “I don’t know.”
“A lot of people wear sunglasses when they go out; don’t they?”
“Sure,” Rossi said.
“But let’s ‘guess’—as you did—that Ms. Bernstein’s outfit was intended as a ‘disguise.’” Keera used air quotes. “She had recently been prominent in the public eye; hadn’t she?”
“She had been in the news.”
“The publicity pertaining to PDRT and her was not positive; was it?”
“It was not.”
“In fact, Adria Kohl told you that Sirus Kohl had received death threats; didn’t she?”
“We were told that by Adria Kohl, and PDRT’s security company confirmed that to have been the case.”
“You couldn’t confirm it with documents though?”
“No, but I’m not surprised a person would not put the threat in writing.”
“Again, you believed what Adria Kohl told you; didn’t you?”
“And the security company.”
“But it was Adria Kohl who told the security company there had been threats; wasn’t it?”
“No reason to doubt her.”
“So can I also conclude you presumed Jenna Bernstein had also received death threats?”
“I don’t know if she did or didn’t.”
“Because Adria Kohl didn’t tell you she did; did she?”
“She didn’t.”
“If Sirus Kohl received threats, it would make sense Jenna also received threats; wouldn’t it?”
“It’s possible; though she did not report any to the police.”
“Nor did Sirus Kohl; did he?”
“No.”
“But if Jenna Bernstein had received death threats, it could explain why she disguised her identity when she went out that night; couldn’t it?”
“Speculation,” Walker said.
“Overruled.”
Rossi shrugged. “It could.”
Keera walked back to her computer, and with a few strokes of the keyboard put up the image of Jenna Bernstein purchasing a burrito from Bitchin Burritos. “This is a photograph of Jenna Bernstein buying dinner that evening; isn’t it?”
“It’s a picture of her in line at a burrito truck; yes.”
“You have no other photograph or video of Jenna Bernstein after this one; do you?”
“No.”
“Did you find it unusual that someone who you believe disguised their identity would stop off at a food truck with a camera to get a bite to eat?” Keera didn’t care whether Rossi did or didn’t. She wanted to plant the thought in the jurors’ minds.
“She may not have known the camera was there.”
Keera put up another photograph JP Harrison took at the food truck. “There’s a sign, isn’t there, that says, ‘Smile. You’re on Candid Camera.’?”
“Yes.”
“But you presumed she didn’t see that; didn’t you?”
“I don’t know if she saw it or not.”
“She’s looking directly at the camera in this photograph; isn’t she?”
“I don’t know. It could be the angle of the camera making it appear to be the case.”
“So again, you are ‘guessing’ that, after leaving her building in a disguise, she went to the one food truck in the park that had a camera, bought herself dinner, and . . . What? Wolfed down the burrito, then walked to Sirus Kohl’s house and shot him?”
“It was a deduction we made based on all the evidence. I wasn’t focused on what she ate as much as the fact that she was in the park, in close proximity to the crime scene.”
“That doesn’t sound like a ‘well-thought-out, pre-planned murder committed by a person who does not wish to be caught’; does it?” Keera said, again using Thompson’s words in his opening statement against him.
“I can’t tell you what she was thinking.”
“I assume you would be open to some alternative presumptions and guesses; wouldn’t you?”
“I’m all ears,” Rossi said.
“Good,” Keera said. Then, without offering a single alternative, she turned to Judge Marshall. “I have no further questions for Detective Rossi at this time. However, the defense asks the court to instruct this witness that he is not dismissed subject to the defense calling him in its case in chief.”
Judge Marshall did so.
Keera didn’t look at the jurors, but she hoped they looked as they did when Thompson had completed his direct examination. Except this time, she hoped they looked like they had their plates taken away just as they picked up their cutlery, and they were now more curious than ever about what alternative Keera was about to serve them.
Before Keera left the courthouse, Jenna asked to speak to her. Keera arranged to do so in a windowless room down the hall from the courtroom. Keera entered and set her briefcase on the table. The room was warm and the air stale. She’d taken depositions in rooms in the courthouse like this during trials. You couldn’t open the door because the voices of people passing in the corridor were too loud, and the court reporter had trouble hearing. It could be oppressive, often what Keera intended.
Jenna remained standing. When she and Keera had been young, Jenna had used her height, as well as her ice-blue stare, to intimidate, but neither had any impact on Keera now. She, too, remained standing, and she wasn’t about to speak first. She looked at Jenna as if to say: You called this meeting.
“Your cross-examination of Detective Rossi was effective, but to what end? It gained us limited points; don’t you think?” Jenna said.
“What do you mean?” Keera asked. She’d also become immune to Jenna’s subtle put-downs.
“You didn’t really establish anything except that Detective Rossi made presumptions.”
“It’s a circumstantial case, Jenna. I’ve told you, that’s going to be our best avenue of attack. We can’t refute you walked to Volunteer Park the evening Kohl was killed, and a jury is going to presume you went further, to his house. But if you did, why would you stop off for a burrito?”
“I thought that argument was effective, though Thompson will argue I stopped at the burrito truck to explain the purpose for the walk.”
“If he does, then I’ll argue that if it was purposeful, why wouldn’t you have used a credit card so a receipt would prove that’s what you did? The jury will also presume you sent those text messages, though no phone has been produced. We don’t have anything to refute the phone was assigned to you, or that you sent those texts, except to point out that the information comes only from Adria Kohl’s testimony. I’m trying to create reasonable doubt by showing she directed the police investigation to you as a suspect from the very start.”
“I can refute the evidence. I can say I haven’t seen that phone since I left Sirus’s house.”
She’d become easy to predict. Again, Keera said, “I don’t want to put you on the stand. It’s risky.” She hoped it sounded forceful.
“Patsy felt the same way, but I handled Walker Thompson then. I can handle him again. I convinced that jury, and I will convince this one. As you said, we don’t have any evidence to refute Rossi’s presumptions—except me. I can refute them.”
Keera blew out a breath and closed her eyes, as if exhausted. After a beat she looked up at Jenna. “We start our case in chief tomorrow. Let’s not make any decisions tonight. Let’s see how the evidence from the other witnesses goes in.”
“You haven’t told me much about our case in chief.”
“I’ll be recalling several State’s witnesses,” she said, not being specific. “I think we can score points and continue to create reasonable doubt, which is all we need to do.”
“I don’t want to just create reasonable doubt,” Jenna said, sounding like the insolent child she had been when she didn’t get her way. “I want my innocence to be proven beyond reasonable doubt. I have to live in this city. I don’t want to be a pariah. I want the jurors and the public to know I am innocent.”
“I can’t control what others think, Jenna.”
“I can,” she said. “I can convince them I didn’t kill Sirus.”
Keera looked away, as if in thought. Don’t give in. Make her think she beat you.
“You’re going to have to trust me, Keera. Just as Patsy trusted me.”
Keera paused as if Jenna’s reference to Patsy had hit home. It hadn’t. She wanted Jenna to testify, but she wanted Jenna to make that decision. “Okay,” she said. “If you’re sure?”
“I am,” Jenna said, and she smiled as she always did when she got her way.
“Walker Thompson will be prepared. He won’t make the same mistake again.”
“Leave Walker Thompson to me,” Jenna said.
Chapter 32
The following morning, when court reconvened, Judge Marshall instructed the jury regarding the defense presenting its case in chief, then invited Keera to give her opening statement. Keera rose and approached the jury box. Over the past two weeks, Keera had established a rapport with the jurors, one advantage of waiting to give her opening statement. They had a better understanding of who she was, and she had a better understanding of who they all were as well—whom she needed to convince. The delay also heightened suspense, and suspense meant she had their attention. It was natural for people to wonder what the defense was going to say, especially when the circumstantial evidence created a presumption of guilt.
