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premium significance. In truth, George views Molto as a better appellate advocate than many of his deputies. He gets to the point, answers questions directly, and does his best with his argument’s weaknesses without pretending that doubts are unreasonable. Representing the state in Warnovits, Molto meandered safely through his response, first explaining how the case comfortably fit within the legislative exceptions to the state statute of limitations. Then he echoed the points Koll had made in disputing Sapperstein’s claim that the videotape of the rape should have been severely edited before being shown to the jury.
    Not uncharacteristically, Koll suddenly seemed to abandon his own point of view.
    ‘Mr. Molto,’ he said, ‘after this Court’s decision in Brewer, can you and I agree that the videotaping of Mindy DeBoyer without her consent violated the state’s eavesdropping law?’
    Brewer, decided a few months ago, concerned a junior high school janitor who had used the camera on his cell phone to collect images in the boys’ locker room. Molto nodded cautiously. The weight of every crime and every bad guy who had slipped away seemed to have led to an overall descent in his ruined face, and what little of the gray hair that remained atop his head stood straight up in an unfortunate breeze from the courthouse ventilation system. His suit, as usual, looked as if it had been stuffed into his desk drawer for storage overnight.
    ‘I agree, but that crime was not charged, Your Honor.’
    ‘Indeed, Mr. Molto. That crime was not charged. And Section (c)( 6) of the eavesdropping law says clearly, and I quote, “Evidence obtained in violation of this chapter is inadmissible in any civil or criminal case, except a prosecution for violation of this chapter.” That to me means that your videotape clearly should not have been received in evidence.’
    Molto looked as if he’d been stabbed. Behind him at the defendants’ table, Sapperstein rocketed back against his chair so hard that he might have done with an air bag.
    “You’re not suggesting, Nate, are you,” says Summerset Purfoyle now, “that we should reverse these convictions on that basis?”
    “Why not? No tape, no case.”
    “But Sapperstein didn’t argue the point here, and neither did the defense lawyers at trial. We can’t take it up now.” It is the essential nature of an appeal that it is decided in a kind of twilight zone- only what was recorded in the trial court can be considered. The whole truth-the contents of the police reports, the statements of witnesses not called, the byplay between the lawyers and the judge at sidebars or in chambers-may not be taken into account. It is like writing a history from the fragments left after a fire. In the same vein, it is a cardinal rule that legal objections that the trial judge had no chance to correct cannot be raised on appeal.
    “Foolish on his part,” answers Koll. “Damn near malpractice.” The truth, George realizes; is that until Brewer, a few months ago, even the best lawyer might not have thought that a law passed in the 1970s to safeguard the conversations of citizens- and legislators-from unwanted snooping was worded broadly enough to reach video recording as well.
    “Nathan, that provision was meant to keep people who eavesdrop from taking advantage of their crime in court,” Summer says. “A fellow can’t bug his wife, then use the tapes in their divorce case. But I just don’t see the sense, in circumstances like these, of saying that the defendants can’t be prosecuted for anything but illegal surveillance, no matter how god-awful the conduct that’s recorded there. Why would the legislature want to short-change the victim like that?”
    “The words of the statute couldn’t be clearer. It’s plain error,” Koll adds, invoking the doctrine that allows the appellate court to recognize overlooked trial mistakes when they would clearly alter the outcome.
    George reacts to this.