Mistaken Identity

“Yeah.”

“And when you were shown it, didn’t you pick out the left middle picture as the woman who you saw ru

“So what?” Munoz tossed the photo array to the side, and Be

“Your Honor,” Hilliard interrupted, “may we continue this discussion in chambers?”

“Objection, Your Honor.” Be

Judge Guthrie slammed the gavel to its pedestal. Crack! “Silence! In chambers, now, Ms. Rosato! Mr. Deputy, dismiss the jury! Mr. Hilliard, the Commonwealth’s outstanding motion to strike is granted. This colloquy is not for the record.”

“Place my ru

“Ms. Rosato!” Judge Guthrie shouted, whirling around in his leather chair. “Don’t you dare give orders to my court reporter! Court is in recess! Counsel, in chambers! Deputy, move!”

75

Judge Guthrie stood behind his desk chair, his black robe unhooked at the top and his starchy white shirt exposed. His lined hands clutched the top of his leather chair, and Be

“Ms. Rosato,” he said, “I was shocked by your conduct this morning. The accusations, the i

“Your Honor, Ms. Rosato is intentionally confusing and manipulating the jury. She came to court today dressed identically to her client, in a gray suit with gray shoes, and she looks exactly like her client. Her scheme has succeeded in confusing a vital fact witness. Ms. Rosato ca

Be

“Quiet, Ms. Rosato!” Judge Guthrie ordered.

Hilliard edged forward on his seat. “Ms. Rosato’s conduct has been outrageous and unethical. She should be replaced by one of her associates. There would be no prejudice to the defendant, because Ms. Rosato’s associates have been in the courtroom every day.”

Judge Guthrie faced Be

“Judge, I did not plan to dress like my client today. I had no idea what my client would wear. I look like my client, that’s true, but it’s unprecedented to remove me as trial counsel merely for my physical appearance. There’s no case law that holds that a client on trial for her life may not retain her lawyer of choice because that lawyer looks like her.”

Hilliard’s smooth pate snapped around. “There’s no precedent because it’s never happened. How many times you think a twin represents her twin, in a murder trial?”

“Excuse me.” Be

Judge Guthrie stiffened. “This Court did not, and could not, have anticipated that you would attempt to so boldly exploit the situation.”

“I didn’t do that, Your Honor. The courtroom ID was requested by the prosecutor and the testimony was given by Mr. Munoz, the Commonwealth’s own witness. I merely acted to protect the record and the witness’s testimony, and was under a legal and ethical duty to make a mistaken identity argument at that point. The record is clear that Mr. Munoz could not make a positive ID of my client in court. The jury is entitled to weigh that testimony, as any other, and we should all be back in court right now, starting on my cross.”

“What?” Hilliard was so frustrated he banged his crutches into the soft rug. “After that stunt you just pulled? You should be held in contempt!”

“There’s no basis for a contempt citation,” Be

Judge Guthrie held up a cautionary finger. “Not so fast, Ms. Rosato.” He paused and sighed. “The Court finds itself between a rock and a hard place, counsel. The question is where we go from here. My law clerks tell me that Ms. Rosato may stay on as counsel regardless of the physical similarity between her and her client. The cases suggest, and they are scant indeed, that if the Court were to sua sponte, or on the Commonwealth’s oral motion, ask her to withdraw in these circumstances, at this point, it could constitute reversible error and create a colorable issue for appeal.”

Hilliard addressed the judge. “But going forward with Ms. Rosato prejudices the Commonwealth. We can’t do redirect on Munoz and we can’t put up the other neighbors to say they saw Co

Be

“Save your closing for the jury,” Hilliard snapped, but Be

“Your Honor, the prosecution already has Mrs. Lambertsen’s ID. The rest of the witnesses are cumulative, and there’s no prejudice to the Commonwealth.”

“They were corroborative witnesses!” Hilliard shouted. “Don’t tell me how to try my case!”

Judge Guthrie walked around to the front of his chair and sat down slowly, his eyes avoiding both lawyers. “Mr. Prosecutor, I understand your frustration, but there are no other options at this point. We find ourselves in a quandary. The only alternative is a mistrial, and the Court doubts the Commonwealth will request that.”

“Absolutely not,” Hilliard said. “The Commonwealth can’t take the chance on double jeopardy attaching. Then we couldn’t retry Co

Judge Guthrie nodded slowly, his gaze straying from both lawyers to the window. “Then we must go forward, after lunch. Court resumes, at one-thirty.”

“Thank you, Your Honor,” Hilliard said, almost sarcastically, hoisting himself to his feet, and Be

Having a tiger by the tail wasn’t all it was cracked up to be, especially in a murder case.