Did the accused murderer say he was pretending or acting emotion when shown photographs of the homicide victim’s body?
On such shades of nuance can a cross-examination turn.
Pretending seems clear enough: faking it. Acting emotionally could be interpreted differently: As in acting out of emotion, as a genuine display of distress.
A filament of disagreement but possibly of deep significance.
There is apparently no audio recording of what transpired in the early morning hours of Feb. 5, 2018, in side-by-side holding cells, between an undercover officer and Kalen Schlatter, who has pleaded not guilty to first degree murder in the strangulation death of Tess Richey.
And that’s a head-scratcher right there, why the lengthy exchange wasn’t captured for both audio and video purposes, which would likely have settled many of the interpretive issues raised by Schlatter’s defence lawyer, Lydia Riva.
On Friday, a jury watched just five minutes of a silent five-hour video, with the officer — identified only as UC1 to protect his identity as he testified from behind a large screen — subjected to intense cross examination about the evidence he’d given in chief.
For the most part, UC1 blunted Riva’s attempts to winkle out contradictions and discrepancies. “To the best of my recollection, he said pretended,” he said.
Cross-examination is, of course, an inherently adversarial exercise, often prefaced by, “Would you agree with me that …”
Riva lasered in on the witness’ earlier account that Schlatter had told him, of his sexual pursuit of women, “Sometimes you have to push the boundaries with women and see where it goes.”
“My client actually said he never pushes the boundaries …” Riva suggested to the officer. That, “if she wants to sleep with you, she will. Pushing the boundaries would just make things worse.”
Witness: “No. I disagree. No, that is not the truth. I don’t agree with that.”
In last week’s opening address to the jury, the prosecution said Schlatter strangled Richey and left her crumpled body at the bottom of an external stairwell between two houses on Church St. after she rebuffed his sexual advances. Jurors have been told about — but not yet seen — videos the Crown said will show Richey and Schlatter disappearing down an alleyway at around 4 a.m. on Nov. 25, 2017, and then Schlatter emerging alone some 45 minutes later.
The jury will see, the Crown has said, surveillance video of Schlatter following Richey and a female friend from the moment they left a Gay Village bar, Crews and Tangos.
Richey’s body was discovered four days later by her mother and a family friend, who’d driven down from North Bay to scour the area themselves after reporting the young woman missing, with no trace of 22-year-old turned up by an allegedly mishandled police search.
Schlatter, now 23, was arrested after watching the 2018 Super Bowl with his family. The undercover officer and another, UC2 — pretending to be in custody for possessing stolen goods — were positioned in adjoining cells just before the suspect was booked. UC1 was not wearing a wire, he told court. He was also adamant that he hadn’t steered Schlatter towards discussing the reason for his arrest or plumping him with leading questions. “There was no point where I was directing the conversation in a certain way.”
It was Schlatter, court heard, who talked and talked and talked, boasting about his sexual exploits with women, how he trolled gay bars because straight girls could always be found there, that he’d had threesomes and foursomes, and professing that he’d slept with upwards of 40 women even though he was only 21.
Further, the witness testified, it was Schlatter who first mentioned the name Tess Richey — asking if the undercover officers knew of her — and that he’d been arrested for “something big.”
The officer, who wrote 26 pages of formal notes following his jail cell encounter with Schlatter, working from memory — “brain dump,” he’d described it — conceded to having made an error in his earlier testimony. He’d testified Schlatter had not told him that he was gay. But it was in his notes that Schlatter had indeed said that.
“I apologize. You are correct.”
Riva: “What’s the root of that mistake? Is it that you don’t really remember what happened in that conversation? Why did you give two answers?”
The defence lawyer put it to the witness that he was constructing his answers to slant the evidence a certain way, or to align with what might be seen on the video or what the second undercover officer might say when he testifies.
Witness: “I don’t articulate my evidence thinking of what you’re going to do or what I think I’m going to be asked.”
Riva suggested the officer was loath to say anything that might be contracted by the second undercover cop.
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“No, that’s ridiculous.”
But his recounting of the conversation, and the notes he subsequently wrote, were not a verbatim presentation of their conversation, the officer pointed out.
At one juncture, although he couldn’t be seen, the witness was clearly addressing the jury to explain the tenor of his conversation with Schlatter. After the accused had bragged about his success with women, UC1 expressed appreciative amazement. “How can you be in this place when you’re such an amazing guy?”
Apparently directing his prolonged comments to the jury, the officer said it had been “a natural progression” of the conversation.
Riva, either in annoyance or sarcasm: “I can appreciate that you had a bit of a preamble workout there.”
It was Riva, however, who was repeatedly rebuked by Superior Court Justice Michael Dambrot for referring to evidence that has not yet been put before the jury, from the preliminary hearing and statements to police.
“You are not to announce to the jury what you know or don’t know from other matters,” a clearly displeased Dambrot told the lawyer. “It’s the third time I’ve told you, it’s the last time I’m telling you. Don’t do it.”
And yet, only minutes later, when Dambrot again found fault with Riva over an area she broached: “You seem to have an unfailing desire to put before the jury what is not in front of them.”
In front of the jury, Riva asked if she could make submissions — legal arguments — over the issue.
Dambrot: “No. No. Please carry on.”
Another objection immediately ensued from the Crown over a reference to pretrial motions. “You’re doing it again and I’m feeling really tired of it,” Dambrot scolded. “I am insistent that you stop doing it. It’s wrong.”
But lawyers on both sides do try to push boundaries, to borrow a phrase from what the defendant may or may not have said to the undercover officer.
In that jail cell conversation, Schlatter told UC1 that Richey was alive when he left her, court has heard.
The final question Riva put to the witness before he left the stand Friday afternoon: “Did Mr. Schlatter ever tell you he murdered Tess Richey?”
The trial resumes Monday.