Play Dead

We are led into Judge Gordon’s chambers after only a five-minute wait. He looks to be in his mid-forties, though his hair is sprinkled with gray. Actually, I think gray hair may be a requirement to take a seat on the bench; prospective judges probably have to walk through some maturity screener that rejects pure black or brown hair as frivolous.

A court stenographer is also present, and Judge Gordon explains that this session will be on the record. He wanted to hold this particular argument in chambers because of “the large media contingent on hand,” and he makes little effort to conceal the fact that he blames me for the turnout. It is particularly frustrating because this time it’s not true.

“The question before us is whether to allow the golden retriever known as Reggie to appear in court,” says the judge before turning to me. “What is the purpose behind the request?”

“We want to demonstrate that he is in fact Mr. Evans’s dog and that he did not die along with Ms. Harriman, as the prosecution claimed at trial.”

“And how do you propose to do that?” he asks.

“Through testimony by his veterinarian and by the actions of the dog as he relates to Mr. Evans. We believe it is vital to establish ownership beyond a doubt.”

The judge turns to the prosecutors. “Ms. Coletti?”

“Your Honor, as stated in our brief, the state feels that such a maneuver is completely out of bounds and likely to turn the proceedings into a circus. There is no precedent for a dog to take on the role of witness, and such testimony would be inherently unreliable.”

I shake my head. “Your Honor, the reliability of canine testimony, as demonstrated through actions, has been amply demonstrated in many court proceedings, including those of Your Honor himself.”

Judge Gordon looks surprised. “Would you care to explain that?”

I nod. “Certainly. In New Jersey v. Grantham you ruled that a search that uncovered drugs was reasonable, when the only fact presented to justify the search was the action of a DEA German shepherd who detected the drugs by his sense of smell.”

“That dog was not a witness in court,” the judge says.

“That’s true. But you affirmed his reliability by allowing the search. He was, in effect, presented through hearsay testimony. If you’d like, we could conduct our own test outside of court, with you present or through videotape. Then the reference to Grantham would be exactly on point.”

Coletti shakes her head in disagreement. “Your Honor, that dog was trained in drug detection. It is an entirely different situation.”

“No, it is exactly the same,” I say. “We will demonstrate Reggie’s training in court, training that could only have been done by Mr. Evans. And untrained dogs have testified as well, through hearsay. Even in the O. J. Simpson trial, endless testimony referenced the barking of a dog, and it was used to pinpoint the time of the murders.”

“Obviously we disagree, Your Honor,” says Coletti. “But we object just as strongly on the ground of relevance. Mr. Evans was not convicted of murdering his dog, and whether or not the dog is alive is of no consequence. He was convicted for murdering his fiancée, and her death has been confirmed by DNA.”

“Mr. Carpenter?”

“Ms. Coletti was not the prosecutor at trial, so perhaps she is unaware that Mr. Steinberg, who did prosecute, referenced the deceased dog thirty-one times. He did so in his opening and closing arguments and through witness testimony. He used it to argue the facts of the case and to demonstrate Mr. Evans’s ‘extreme callousness.’ The jury certainly considered it; he instructed them to. And this new evidence will prove that he should not have been able to reference it, and they certainly should not have considered it.”

The judge continues questioning us for another fifteen minutes. My assessment is that he does not want to allow Reggie into the courtroom but is unable to come up with an adequate legal justification to prevent it.

“Your Honor,” I say, “we think the evidence to be introduced by the dog will be compelling. But Richard Evans has not seen the dog in five years, and maybe we’ll be wrong. Maybe it will blow up in our faces. But either way, what harm can come of it?”

“What do you mean?” he asks.

“There’s no jury here to protect from being misled. You are the judge and jury, the sole arbiter. You can see it and assign whatever importance to it that you wish. If you think it has no value, you will ignore it. If you consider it valuable for either side, you’ll assign it the appropriate weight. It will be significant or harmless, or somewhere in between, and only you will decide which.”

The judge then asks how we would proceed, and I tell him that Karen Evans would bring Reggie in, that her presence as someone he knows would put him at ease. Then Richard would put him through some training paces, tricks that he had taught him, as a way to demonstrate familiarity.