As Battles followed Cho and Clark out of the courtroom, she heard the crowd behind her continuing to protest. At the end of the hall they entered a cramped office Rivas had commandeered for the hearing. It contained an austere metal desk and metal shelving with just a few books. Rivas moved behind the desk. Battles stood on the far left next to the shelving. Clark and Cho stood to her right. The court reporter, Bob Grassilli, stood closest to the door.
“Let’s go through this again,” Rivas said to Cho, trying to bring calm to a tense situation. “You checked out the videotape from lockup when?”
“Yesterday afternoon.” Still seething, Cho looked as though ants were crawling over his skin. “We were preparing for this hearing.”
“And you’re sure you signed it back in?”
“Yes. We signed in the evidence box, not just the videotape. The sign-in log will confirm it.”
Cho looked to Grassilli for confirmation. He had a copy of the sheet and reviewed it. “That’s correct, Your Honor. They signed the box back in at five thirty-two p.m.”
“Was the tape in the box at that time?”
“I assume so,” Cho said.
“You don’t know for certain.”
“It was in the box when we went over the evidence so, yeah, I’d say it was in the box when we returned it.”
Rivas turned to Battles. “You had the tape last night?”
“I had the same box of evidence,” she said, trying not to look or sound guilty. “I signed it out and asked that it be brought to my office just before Bob went home, but I don’t specifically recall seeing the tape.”
“Meaning what?” Rivas asked.
“Meaning I didn’t look at the tape last night. There was no reason to view it again and, besides, I didn’t have a television to play it.”
Rivas turned again to Cho. “I thought you said the last time you saw the tape was last night?”
“The box,” Cho said, his gaze intense. “I didn’t see the tape specifically, but I saw the box on her desk last night. Where else—”
Rivas cut him off, looking again to Battles. “Did you return the box?”
Battles nodded. “I brought it back and left it on Bob’s chair. He’d already left for the day.”
“So it wasn’t logged back in?”
Grassilli shook his head.
“But I did return it,” Battles said to Grassilli. “You had the box this morning, right?”
“I had the box,” Grassilli said.
“But not the tape,” Cho said.
“I returned the box,” Battles said. “We don’t know about the tape, whether it was in the box.”
“And the tape isn’t in your office?” Rivas asked Grassilli.
“Not that I can find.”
“And it wasn’t in the box this morning?”
“No,” Clark and Cho each said.
“And it isn’t in an office somewhere, got misplaced?” Rivas asked.
“Not that I’m aware of,” Cho said.
“I didn’t take it out,” Battles said.
“Check,” Rivas said.
They agreed they would.
“Is there a copy?” Rivas asked Grassilli.
Grassilli sighed. “It was a VCR tape, Judge. We’re not equipped to copy that here and it was in use by counsel preparing for this hearing, which, as you know, was being expedited. We were going to send it out after the hearing.”
“There’s no copy?” Rivas looked to Cho, her voice rising in both pitch and volume.
“No,” Cho said. He rushed to confirm what Grassilli had said. “The equipment used at the convenience store was outdated. We couldn’t copy it here and it was in use . . . I intended to send it out to be copied after the hearing.”
“What about the Seattle Police Department? Did they keep a copy?” Rivas asked.
“I doubt it,” Cho said. “We took jurisdiction almost immediately.”
“Well, I think you better find out.”
“I will,” Cho said, not sounding optimistic.
Rivas looked at Grassilli before making a pyramid with her hands and putting her fingers to her lips, perhaps thinking, but not saying, what everyone in the room was also thinking. This was a significant problem for the prosecution to overcome, especially at a subsequent court-martial, which required a higher degree of proof of guilt.
“Your Honor,” Cho said, “I can prove the existence of the tape through Archibald Issa, the owner of the convenience store, and both he and Detective Crosswhite could testify to having seen Laszlo Trejo on the tape.”
Rivas shook her head and lowered her hands. “Without the videotape, any further testimony by Detective Crosswhite related to that tape could not be effectively challenged by Mr. Trejo and his counsel. I won’t allow it. And I can guarantee you that, at a court-martial, a judge would find that the lack of the video impedes Mr. Trejo’s Sixth Amendment right to confront and cross-examine not only Detective Crosswhite but Mr. Issa, and anyone else you might put on the stand.”
“We could call Mr. Issa to establish that he recalled Mr. Trejo being in his store,” Clark said.
“Does he specifically? Does he independent of the tape? Or would that only be because he received a telephone call and subsequently viewed the videotape? That was—what, nearly three weeks ago now? Does he remember any other customer?” She shook her head, her voice becoming more emphatic. “Even if he recalled the defendant in his store, the best evidence is missing. You have the same problem. And given my understanding that the videotape will tie together all the other evidence—like the significance of the store receipt found in the car—you might get by this hearing, but you won’t get by any subsequent court-martial where the rules of evidence and the burden of proof are strictly enforced.”
Cho pointed his finger at Battles. “There is no dispute the prosecution logged the evidence back in yesterday afternoon and no dispute that she requested and had it in her possession after that. She just said she clearly had it last. That is not debatable.”
Battles shook her head. “I said I don’t recall viewing the videotape, and I resent the insinuation. I brought the box back to Bob’s office.”
“The log-in sheet doesn’t confirm that,” Cho said.
Rivas looked to Grassilli, who reluctantly shook his head. Battles could see that she had put him in a bad spot and she regretted having done so.
Cho faced Battles, Grassilli now between them like a promoter between two fighters at an upcoming fight press conference.
“I left the box on Bob’s chair,” Battles said. “Maybe the tape didn’t get put back in the box.”
Cho spoke through clenched teeth. “This is the slimiest thing—”
“Enough,” Rivas said. Cho turned away, his head cocked at a defiant angle. It felt like someone had suddenly sucked all the air out of the room and no one could breathe. “Unfortunately, Lieutenant, the prosecution has an absolute duty to preserve evidence.”