Involuntary Witness - Страница 33

I recovered only when we parted, with hugs and kisses.

Ciao, Magda. When we meet again I’ll pluck up the courage to ask you what we talked about, nearly every evening for two whole months, fifteen years ago.

The judge asked the public prosecutor and counsel for the civil party if they wished to produce any additional evidence. They both said no. Then he turned to me with the same question. I got to my feet and before speaking adjusted my robe, which, as usual, was slipping off my shoulders.

“Yes, Your Honour. We have applications in accordance with Article 507 of the code of criminal procedure. A short while ago the court heard the examination of the defendant. He stated that he was registered as the owner of a mobile telephone. This fact, moreover, has already emerged from the documents in your possession, because among the papers on file is the report of the confiscation of the instrument in question and the relative card, corresponding to the number 0339-7134964, the property of the defendant. The defendant stated that he took this telephone with him on that trip to Naples, and that he probably made and received calls on that occasion. You certainly know as well as I do that the use of a mobile phone leaves a trace which is preserved on a magnetic support by the telephone company, in this case Telecom. It is possible to acquire mobile-phone records showing the numbers of incoming and outgoing calls, the time and duration of each call and, above all, the area in which the telephone user was at the time of the call.

“Having said that, I think I need not make any further explanation of what importance may attach to the acquisition from Telecom Italia of the records relative to the use of the mobile telephone number 0339-7134964 on the day of 5 August 1999. It is true that we have no witness who can confirm the alibi of the defendant. The outcome of the mobile-phone records, however, might be far more telling than any witness. The location of the instrument in question at a precise time of day might provide evidence decisive to the outcome of the trial. In conclusion, therefore, in accordance with Article 507 of the code of criminal procedure, I request an order of attachment of the mobile-phone records relative to the subscriber number 0339-7134964 for the day of 5 August 1999. I have nothing more to add. Thank you.”

The judge kept his eyes on me for several moments after I had finished speaking. He was about to turn to the associate judge when he must have remembered that they had had a quarrel a couple of hours earlier. At least, I was convinced that for some reason or other they had quarrelled. There’s no doubt that Zavoianni was turning towards the other judge and stopped half way. So suddenly that he had to strike an attitude, resting his chin on his hand with a thoughtful air. He had moved like a character in a farce and for some moments remained quite unnaturally motionless. Then he addressed the public prosecutor.

“Does the prosecution have any observations to make about this application by the defence?”

“Your Honour, I have many doubts not only about the absolute necessity, but even concerning the relevance to the present trial of this request on the part of the defence. These doubts may be summed up in a few words. Who is to say whether on 5 August 1999 this mobile phone was at Thiam’s disposal? It is true that it was found in his possession at the time of the search. But this is of little significance. The search took place some days later, and we know that in certain circles – such as that of drug pushers, with which the accused has told us he is familiar, if not actively involved – it is common practice to pass around mobile phones, as it is with weapons and other things. In the absence of proof that this instrument was available to Thiam at the date on which the unlawful restraint of the child took place, the evidence requested is without relevance.

“I might add a consideration of a purely procedural nature. Article 507 permits the taking of additional evidence when the need for it has emerged in the course of the proceedings. In this case the evidence could easily have been requested in the introductory phase, but the defence did not so act, whether from negligence or some other reason we do not know. In any case the request is late, and in this respect also it must be rejected.”

“Does the civil party have any observations?” said the judge.

“We concur with the considerations put forward by the public prosecutor.”

“Your Honour,” I put in, “may I be permitted a brief objection to the observations made by the prosecution?”

“As you well know, Avvocato, objections are not admitted at this stage.”

“Your Honour…”

“Avvocato, not a word more. I repeat, not a word more.”

Thus saying, he rose to retire. One by one the members of the jury rose to follow him. The associate judge remained seated. I got the impression that he clenched his teeth for a moment. Then he too got up and was the last to leave the courtroom.

The wait was a long one. Usually decisions of that kind, regarding applications for additional evidence, are taken directly in the hearing, or after only a few minutes of consultation in camera. But not that day. The hours went by without anything happening. I chatted a bit with the clerk of the court, who told me he didn’t understand the reason for the delay. I told him that I didn’t either, but it wasn’t true. They were out that long because the court was in fact divided between those who had already decided to convict Abdou and those who wanted to understand things better. If the first lot won, and my application for the attachment of the phone records was rejected, I might as well save myself the trouble of disputing the case. Abdou was already done for. Only if the others won was our hat still in the ring.

From where he was in the cage, Abdou asked me what was going on and I lied to him, saying that the wait was perfectly normal.

I had an urge to call up Margherita, but I didn’t.

For no reason I could put my finger on, there came to mind an ancient Turkish proverb that goes more or less like this: “Before you fall in love, learn to walk on snow without leaving footprints.” Now why did that come to mind?

I felt terribly alone and, hell and dammit, I was on the verge of tears. After months, just then of all times, just there of all places.

No. Please, no!

I made for the courtroom door, just in case I should make a spectacle of myself, and anyway to have another cigarette. I had already put it to my lips when the providential ringing of the bell tore through my thoughts.

I returned to my place, put on my robe, and realized I still had the cigarette dangling from the corner of my mouth even when the court had filed back in and taken their seats and the judge was beginning to read the ruling.

I lowered my eyes to my desk, half closing them, blurring the papers lying there. I listened.

“The Court of Assizes of Bari, pronouncing on the application for the taking of additional evidence put forward by the defence of the accused Abdou Thiam, observes as follows.

“The defence of the accused – in accordance with Article 507 of the code of criminal procedure – applies for the attachment of the mobile-telephone records relative to the telephone traffic of mobile number 0339-7134964 for the day of 5 August 1999, on the double presupposition that the necessity for the aforesaid attachment has emerged in the course of the proceedings (and in particular from the examination of the accused) and that in any case the above-mentioned attachment is absolutely necessary to the ascertainment of the truth.

“The public prosecutor objects, maintaining the non-relevance (or at any rate the absence of absolute necessity) and the tardiness of this request.

“In fact – as the public prosecutor observed – the application could well have been made at the time of the introductory exposition, because the elements to make it were at that stage already in the possession of the defence.

“Technically, therefore, the application is to be considered tardy.”

The judge paused, or so it seemed to me. I stayed stock still, eyes cast down, head bent. A moment or two later I realized I had been holding my breath.

“From another point of view, however…”

However! They’d granted it.

“From another point of view, however, we have to point out, in accordance with the judicial principles of the Court of Appeal, that the presiding judge is obliged not to neglect the fact that the primary purpose of a criminal trial cannot be other than to search for the truth. Within this perspective we cannot accept methods or decisions which unreasonably obstruct such ascertainment of the course of events as is required to arrive at a just decision.

“This said, we are bound to stress the fact that the evidence requested is to be considered as potentially decisive. From the attachment of the mobile-telephone records there could in fact emerge a real and proper alibi, in the case of the accused being located in a place incompatible with the hypothesis of his responsibility for the facts set down in the indictment.

“For these motives the Court of Assizes of Bari orders the attachment of the mobile-telephone records relative to the telephone traffic of subscriber number 0339-7134964 for the day of 5 August 1999 from 06.00 to 24.00 hours.

“It furthermore orders the presence of the officer responsible for Telecom (Bari Branch), or another employee of the company expressly empowered, to explain the precise meaning of the records before the court.

“It charges the criminal police with the execution of this order within five days.