Page 109
I CALL MY NEXT witness, a retired police captain who is, next to Jimmy Cunniff, the smartest and best cop I’ve ever known. A friend of my father’s when we lived in Patchogue, he now runs a private security firm in Manorville and has helped me out on other trials.
John Kyle looks younger than I know he is, more like an army general than a retired cop.
Tall, bald, cobalt-blue eyes, ramrod perfect posture, even sitting down.
Even in civilian clothes, he somehow seems to be in uniform.
I half expect the members of the jury to sit up a little straighter once he’s been sworn in.
Addressing him as Captain Kyle, I lead him into a brief history of his career.
Then I get right to it, having already asked the clerk to put up the time-stamped photograph that Katherine Welsh has long since introduced into evidence, the one of Rob Jacobson walking down the Carsons’ street the night of the murders.
“Captain Kyle,” I say, “in your professional opinion, should the jury automatically assume that this photograph was actually taken on the night in question?”
“ Could it have been?” he says. “Certainly. But that hardly means it’s conclusive that it was.”
“Please explain, sir.”
Kyle says, “There are multiple photo editing programs now available for digital pictures. Anybody has the ability to add them to their computers and devices. If you want a picture to appear to have been taken on a specific time and day, you could theoretically use any picture from your own files, change it by zooming in a little closer on it, then save it in its new form.”
“So this new picture could have been created—I put quotes around ‘created’—to show the desired date and time. In this case, the date and time shown on our screen?”
I walk over to the time stamp, which I asked the clerk in advance to highlight.
“If you had the phone used to take the picture,” Captain Kyle continues, “you could set it in a savvy way that wouldn’t be obvious but would stand up to even intense forensic examination.”
“Is there any other way to falsify what is essentially supposed to be a moment frozen in time?” I ask him.
He nods, and grins. “There are other ways, actually, including nefarious ones.”
I grin back at him. “Nefarious, sir?”
“Dishonest would be another way of putting it.”
“Perhaps the kind of savvy and dishonest person looking to frame an innocent man?” I ask.
“Objection, Your Honor!” Welsh snaps. “I’m sorry, is this Ms. Smith questioning this witness, or her offering yet another preview, if an unsubstantiated one, of her summation?”
“Sustained,” Judge Horton says. “Ms. Smith, you have made this same point on countless occasions throughout this proceeding. Ms. Welsh is right, in this instance: Save the editorializing for the summation, one I’m sure we all look forward to.”
“I apologize profusely, Your Honor.”
Profusely and insincerely.
To Captain John Kyle I say, “Please elaborate for the court the ways a dishonest person could alter a photograph like this one.”
“You simply change the date and time on a cell phone or digital camera after you’ve unchecked your update tab,” he says. “That alone will make the cell phone appear to have taken a picture on a particular date and time when it was, in fact, not taken at that time.”
“That will be all, Captain,” I say. “And thank you.”
He’s not quite finished, as it turns out. John Kyle isn’t just not an ex-cop. He’s a rigidly honest ex-cop.
“I’m not saying that’s what happened with this particular photograph,” he says. “But it absolutely could have happened.” He shrugs. “I hope I haven’t sounded too obtuse.”
“Not obtuse at all, sir,” I say. “Because when it comes to the alleged ”—I give Katherine Welsh a quick look as I step hard on that word—“authenticity of what was presented as such a damning piece of evidence, you’re really only talking about one important thing here.”
I turn to fully face the jury.
“Reasonable doubt,” I say.
Other than “Not guilty,” the two most beautiful words in the English language.
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