“Well, no, not exactly, but-”
“No is sufficient, thank you, Mr. Schermer. Now, can you please tell the jury a little about the methodology you employed to measure the amount of coffee needed to make a cup at BBW?”
Finally given a chance to simply discourse on his specialty again, Schermer leaned back in the chair and faced the panel. “Well, I gathered information from other coffee shops in the city, both chain and individually owned, and took the average of the number of cups of coffee produced from every hundred pounds of beans.”
“How many coffee shops did you use for your comparison?”
“Ten.”
“And how many different kinds of beans were represented in your answer?”
“I don’t know what you mean.”
“Well, beans come from a lot of different places. South America, Africa, Jamaica, and so on. So what kinds of beans were represented in your sample?”
“As I recall, most of them were from Colombia.”
“And is that the sole source of BBW’s beans, Colombia?”
“No, I don’t think so.”
“They came from all over the world, did they not?”
“Yes, I believe so.”
“All right. And do you know how many bags were delivered from all over the world over the course of the fiscal year to BBW?”
“I don’t know that, exactly. Perhaps hundreds.”
“But several thousand pounds of coffee, wouldn’t you say?”
“Yes, at least.”
“And did you test to make sure that all of that coffee had the same density? That is, approximate number of beans per pound?”
“Uh, no.”
“So the representative sample you used for your analysis might have been stores that used more or fewer beans to make a cup, isn’t that true?”
“I guess so. Yes.”
“And in fact, BBW was a very popular coffeehouse, was it not?”
“Yes.”
“Could that popularity have been based on the flavor of its coffee? That is, that its coffee was stronger or more mild than the shops you used in your sample?”
“I have no way of knowing that.”
“All right, then.” Hardy glanced over to the jury, all of whom were with him, following the cross-examination with none of the more common postlunch torpor. “Let’s talk for a minute, if we may, about the coffee made from these beans. Is there a standard BBW uses for various strengths of coffee? Strong? Medium? Weak?”
“I used medium, which is their house blend strength.”
“But do they serve other coffees of different strengths?”
“Yes.”
“Both stronger and weaker?”
“Yes, which is why I used medium, to be about average.”
“But do you in fact know the percentage of coffee actually brewed there that is weak, medium, or strong?”
Schermer took a breath, no longer enjoying himself at all. “No.”
“And what about espresso?”
“What about it?”
“It was a rather large percentage of the coffee sold at BBW, was it not?”
“Yes, it was.”
“Do you know the exact percentage, Mr. Schermer?”
“No.”
“And espresso is roasted differently than other blends of coffee, is it not?”
“Yes.”
Hardy, hammering the man mercilessly, decided to back off for a moment lest to the jury he come across as unsympathetic. He walked back to his desk, took a sip of water, gave half a nod first to his client and then to Joel Townshend and Harlen Fisk, sitting next to one another in the front row. He pulled his legal pad over and pretended to read from it, then turned and came back to his place in the center of the courtroom.
“Mr. Schermer, at the beginning of this cross-examination testimony, you said that your analysis of raw coffee bought versus coffee served was merely an estimate with a margin for error, isn’t that true?”
“Yes.”
“But there is no industry standard that defines an acceptable margin for error for an analysis of coffee shops, is there? Not for this particular comparison?”
“Correct.”
“Would you care now to estimate for the jury, and after the questions I’ve just put to you, how high the margin for error could go on an analysis such as this, with different density beans, and differing strengths of various coffee drinks?”
“I don’t know if I could say.”
“Ten percent? Twenty percent?”
“Yes. Yes, I suppose.”
“In fact, since there is no industry standard on this margin for error for this particular test, it could even be higher, could it not?”
“In theory, I suppose it could.”
“How about fifty percent? Could it be as much as that?”
“Well, I really don’t think so.”
“You don’t think so?” Hardy repeated with just enough emphasis on think to make his point to the jury.
“That’s correct. I don’t think so.”
“Okay, then let’s go with the twenty percent that you admit is a possible margin of error. Now, if I could just ask you for a moment to revisit the actual income numbers you gave in your direct testimony.” Hardy went back to his desk quickly and this time brought back with him his yellow legal pad. “You said the amount of raw coffee bought should have produced income from coffee drinks sold of three hundred and seventy thousand dollars, and instead BBW’s books showed an income of four hundred sixty-two thousand dollars, isn’t that right?”
“Yes.”
“And would you agree, sir, that twenty percent of three hundred seventy thousand dollars-the margin for error we’ve been discussing-is seventy-four thousand dollars?”
“That sounds right.”
“It is right, sir. Which means that, according to your own calculations, BBW’s coffee drink income from raw coffee bought could have easily been as high as four hundred forty-four thousand dollars, or only sixteen thousand dollars short of the reported income, isn’t that right?”
Thoroughly dispirited by now, Schermer stared down at the floor in front of him. “It sounds like it.”
“Well, Mr. Schermer,” Hardy said, “given your direct testimony outlining sixty-seven simple accounting errors, does a sixteen-thousand-dollar discrepancy on a gross income of between three and four hundred thousand dollars strike you now as necessarily indicative of money laundering?”
Stier started to rise, but before he could object, the witness replied. “Not necessarily, no.”
The judge let the answer stand, and Hardy whirled, smiling. “No further questions.” Stier had no redirect.
“Mr. Schermer,” Braun said, “you may step down. Mr. Stier, your next witness.”
Stier threw a look over at Hardy, back up to the judge. “Your Honor, the People rest.”
Braun nodded once and looked up. “Very well. Mr. Hardy, I believe you’ll have a motion?”
“Yes, Your Honor.”
“All right. Ladies and gentlemen of the jury, I’m going to give you a longer recess than usual. Please remember my admonition not to form or express any opinion about the case or discuss it among yourselves or with anyone else until the matter is submitted to you. Come back in forty-five minutes.”
Ten minutes later, with Braun back on the bench, Hardy made his 1118.1-his motion to dismiss the charges on both Vogler and Preslee. Normally, this is a pro forma motion made at the end of the prosecution case in every criminal trial. But at least as to the Preslee count, Hardy actually thought he might have something to talk about.
“Your Honor,” he said, “no reasonable juror could possibly convict my client, particularly of the Levon Preslee murder.”
Stier defended the charges. “In spite of Inspector Schiff’s admission about the lack of physical evidence in the Preslee slaying, there is no net change in the prosecution case. Admittedly, it is light on physical evidence, but as you know there are other kinds of evidence, and they can be compelling. Eyewitness testimony, for example. Consciousness of guilt. This is circumstantial but compelling evidence.”
“Yes, Your Honor. But the burden of proof is on the prosecution to prove not just that Maya was in the hallway, but that she was inside the apartment, and more than that, that when she was in there she killed Levon Preslee. They have nothing remotely approaching that. You don’t just convict the person with a motive who happens to be closest to the scene of the crime, especially in a case like this where you have no idea who else might have had a motive. Or, for that matter, who else had been inside. I don’t have to prove that Maya wasn’t inside that apartment. Mr. Stier has to prove she was. And there simply is no such proof. Letting the jury consider this evidence in this count would not be only an error with respect to the Levon Preslee charge, it would inevitably taint any verdict on the Vogler count.”