“We can try,” he replied. “But I’m not sure it’ll be good enough for the judge.”
The trial reconvened precisely on schedule. After taking his seat on the bench, Flexon Mubita summoned Darious to the dock. “Call your next witness,” he said to Sarge.
“Your Worship,” the prosecutor replied, barely suppressing his anger, “we just learned that the witness we had scheduled to testify this morning—a critical witness in our case—was murdered last night. Officer Kabuta found him in his home.”
Mubita’s jaw went slack and he stared at Sarge transfixed. The fear that haunted his eyes appeared genuine. “Do you have any evidence linking this murder to the accused?”
Sarge shook his head. “We do not.”
Mubita took off his glasses and massaged the bridge of his nose. “In all my years on the bench, I’ve never seen anything like this. Do you want an adjournment? I’ll give you one.”
Sarge shook his head. “No, Your Worship. Officer Kabuta recorded the witness’s testimony months ago. We wish to offer the recordings into evidence.”
Mubita raised his eyebrows in surprise.
“Your Worship,” said Benson Luchembe, leaping to his feet, “the violence we have seen in the past two days is reprehensible. But counsel’s proposition has grave implications for my client’s defense. If the witness doesn’t appear, how can I cross-examine him? The accused would be sorely prejudiced by the admission of an unverified recording. And it is my client’s freedom, not the prosecution’s, that is at stake in this proceeding.”
The judge glared at Luchembe, but he offered no rebuke. Instead, he asked Sarge, “How do you propose to verify the recordings?”
“Four people were present when they were made,” Sarge replied. “The deceased, his attorney, Bob Wangwe, Officer Kabuta, and Ms. Fleming. Mr. Wangwe had agreed to appear at this hearing, but it seems he’s disappeared.”
“Disappeared?” Mubita said, narrowing his eyes.
“We haven’t been able to reach him. The best I can do is offer the testimony of Officer Kabuta and Ms. Fleming. Both of their voices are on the tape.”
The judge cleared his throat. “If the officer certifies the authenticity of the recordings, I’ll accept them under advisement. I need to look at the law on this.”
Sarge sighed visibly. “Very well. I call Joseph Kabuta to the stand.”
In the end, the judge allowed the recordings to be aired in open court. Sarge placed the recording device on counsel table, turned up the volume, and pressed play. The static echoed in the vaulted space, then Joseph made his introductions. When he identified the witness by name—Dr. Mwenya Amos—Darious motioned hastily to Luchembe, and Zoe caught the worry in his eyes. You didn’t know? she thought, fascinated. That means your parents are calling all the shots.
Luchembe seemed off balance, but he righted himself quickly. “I was not aware the witness was a physician,” he objected, as Sarge paused the recording. “I’m concerned that this testimony invades the doctor-patient privilege.”
“Your Worship,” Sarge interjected, “the privilege is subject to judicial discretion. If the testimony relates to irrelevant matters, you can disregard it. But I respectfully request that you permit the recording to be played in its entirety. It is critical to our case.”
The judge furrowed his brow wearily. “Go ahead.”
Luchembe settled into his chair and didn’t speak again. Darious, however, grew increasingly agitated as Amos recounted his concern about AIDS, the course of his treatment, the fears he harbored about his father, and his hatred of the unnamed mahule who had bewitched his family with “strife and pain” and left him with a deadly disease.
In the midst of the testimony, Zoe glanced at Frederick in the back row. He looked irritated but unconcerned. She tuned in to the recording again as Amos described Darious’s last visit, only a month before the rape—his obsession with the curse of the mahule, his fixation on virgin cleansing, and his uncompromising resolve to “bewitch the witch.”
“Those were his exact words?” Joseph asked, his voice echoing in the courtroom.
“It is not the sort of thing a person forgets,” Amos replied.
When the judge asked Sarge to call his next witness, the prosecutor nodded at Zoe. Here we go, she thought, standing up and walking toward the exit. Over her shoulder, she heard him say: “I call Kuyeya Mizinga to the stand.”
At this declaration, war broke out between the attorneys over Kuyeya’s capacity to testify. Luchembe cried foul, citing Dr. Mbao’s initial evaluation, and Sarge defended on the basis of her more recent conclusions. He offered the Court an affidavit from the psychiatrist stating that Kuyeya could answer simple questions. Luchembe demanded a chance to cross-examine the psychiatrist, and Sarge countered, arguing that the affidavit was sufficient.