“Don’t give up on me yet, Dana. If we win tomorrow’s motion, the prosecution will dismiss the charges. They’ll have no other choice. Without the text, the only evidence that they have against you is the affair, and Judge Gold won’t let them go to the jury with only that.”

“They have Franklin Pearse,” I remind him.

“That’s still awfully thin,” LeMarcus says after swallowing a bite of pizza. “I’d agree if the homeless guy identified you. Or if he provided a description close to resembling you, or even if he saw the actual shooting. But all he gives the prosecution is that someone around five and a half feet tall, maybe a man, maybe a woman, maybe black but maybe white, who was wearing a hoodie, was near the duck pond. Even though Richard Trofino is slightly taller, it’s close enough to be a positive ID of him too.”

“So you’re saying that I’m going to be free this time tomorrow?”

I say this with a smile because I know that LeMarcus hasn’t actually opined on how Judge Gold will rule. To the contrary, we both know that he’s more likely than not to admit the text message into evidence. And if that happens, my conviction will be a foregone conclusion.

49. ELLA BRODEN

49.

ELLA BRODEN

I place the odds at fifty-fifty that Judge Gold rules the text inadmissible. A coin-flip chance.

Heads, the case ends today with Dana Goodwin going free.

Tails, she spends the rest of her life in prison.

When Judge Gold takes the bench, he appears to be well rested. He went to bed early last night, no doubt. By contrast, I was at the office until two in the morning, collecting virtually every written legal opinion I could find on the exclusion of text messages, e-mails, or any other type of electronic evidence objected to on hearsay grounds. It gives me some pleasure that LeMarcus looks as tired as I feel.

The jury has not been called, so their chairs are empty. Judge Gold is going to take the legal argument outside of their presence. He doesn’t waste much time with preliminaries, aside from saying good morning.

“Mr. Burrows, please make your argument regarding the inadmissibility of the text message on hearsay grounds.”

Burrows’s pitch is not much different from what he said at the bench conference yesterday, but it takes much longer and includes a sprinkling of case citations. The good news is that he hasn’t found any legal authority that I didn’t. The bad news is that he did find the Pennsylvania case that excluded some drug dealer’s texts. He’s telling Judge Gold that the situation there was nearly identical to what he has before him, even though the two fact patterns bear virtually no similarities.