“What did you conclude?”
“The defendant carefully planned to kill Mr. King and engaged in a cold-blooded act with a callous disregard for the victim’s life.”
In other words, Lexy committed first-degree murder.
“No further questions, Your Honor.”
Judge McDaniel looked at the clock above the door. “It’s after five, Mr. Daley. I am going to recess until nine a.m., when you may begin your cross-examination.”
I glanced over at Harper, who was pleased with himself. He had timed Lee’s testimony to coincide with the end of the court day. The jury would have all night to digest it.
53
“WE MAY NEED YOU TO TESTIFY”
A burly sheriff’s deputy entered the consultation room and closed the door behind him. “I need to escort your client back to her cell in five minutes.”
“We’re almost finished,” I said.
He let himself out.
At five-thirty on Thursday evening, Lexy’s mood was grim as she stared at the cinder-block wall in the room down the hall from Judge McDaniel’s courtroom. “That didn’t go well.”
“The prosecution always has the upper hand at the beginning.”
“You said the same thing about the prelim.”
“It was true then, and it’s true now.”
“Couldn’t you have stopped them?”
“I objected when Harper asked inappropriate questions or tried to introduce inadmissible evidence. We’ll lose credibility if I object to every question.”
“Maybe we should have taken a plea bargain.”
“I can raise it again.”
She thought about it for a moment. “No.”
Lexy was more engaged than two weeks earlier, but her mood swings were becoming more frequent and unpredictable. I was concerned that she might have an outburst in court, which would have been understandable, but not helpful.
Nady leaned over and touched Lexy’s hand. “We need you to stay strong. We’ll get you through this.”
It was a kind sentiment. I cleared my throat and spoke to Lexy. “We may need you to testify.”
Her eyes turned down. “I’m not sure that’s a good idea.”
Neither am I. “A forceful denial would impress the jury.” There’s also a substantial risk that Harper will eat you up on cross.
“I need to think about it.”
So do I. “We don’t need to decide now.” But we’ll need to decide soon.
* * *
Nady took off her reading glasses. “Do you think it was a good idea to mention the possibility of testifying to Lexy?”
“I want her to get used to the idea.” And I wanted to see how she would react.
The P.D.’s Office was quiet at eight o’clock on Thursday night. I liked the quiet hours. It gave me time to think.
Nady lowered her voice. “Are you really planning to put her on the stand?”
“Maybe. We’ll see how it goes and whether she’s up to it.”
“You’ve always taught me that a defendant shouldn’t testify unless we’re desperate.”
“Correct.”
“Are we?”
“Not yet.”
* * *
Rosie touched my cheek. “You okay?”
“Fine.”
“Really?”
I leaned over and kissed her. “No.”
At eleven-thirty on Thursday night, I was dutifully giving a status report to my boss. Other than the fact that we were in bed, it was a standard de-briefing.
“I’ll go after Lee in the morning,” I told her.
“You won’t be able to intimidate him. And you won’t get an acquittal tomorrow, either.”
I didn’t always agree with her, but I appreciated her instincts and her honesty. “We’ll have more arrows in our quiver when we start our defense. For one, King provided the heroin.”
“Says Lexy. Jones said she bought it right before she went up to King’s house.”
“It doesn’t prove that she brought it up to King’s house. And it still seems unlikely to me that a billionaire didn’t provide his own.”
“They have video of Lexy giving him the shot.”
“It proves that she injected him. It doesn’t prove that she brought it. And it sure as hell doesn’t prove that she intended to kill him.”
It was Rosie’s turn to kiss me. “You think it’s enough?”
“Probably not. We’ll tee up our SODDI defense and try to foist blame on everybody else at the party.”
“Do you have any hard evidence to corroborate it?”
“Not yet.”
“Or motive?”
“Working on it.”
She pulled up the blanket. “Anything else, Mike?”
“I’m thinking of putting Lexy on the stand.”
“Seriously?”
“Yes. I think the jury will respect her if she says that she didn’t intend to kill King.”
“It’s up to the jury to decide whether she’s telling the truth.”
“We only need one to get to reasonable doubt.”
My ex-wife, former law partner, and current boss flashed the smile that I still found seductive. “You’ll find a way, Mike. You always do.”
I wasn’t as confident. “I hope so.”
“Are you going to walk the steps in the morning?”
“Yes.”
“Give my best to Zvi. How is he getting along?”
“Pretty well. His doctor won’t let him do the steps every day, so he goes over to Safeway and walks the aisles. Some other seniors have joined him. He’s the Pied Piper of Larkspur.”
“He’s my hero.” Rosie leaned over and whispered into my ear. “The world will look brighter in the morning, Mike. It always does.”
54
“IT’S IMPOSSIBLE TO PROVE A NEGATIVE”
Inspector Lee was sitting in the witness box at eleven-fifteen the following morning. For two hours, he had deftly parried my attempts to cast doubt upon the integrity of the crime scene, the handling of evidence, the process of interviewing witnesses, and the procurement of the security videos. To his credit, he had endured my onslaught of leading questions without taking a sip of water. Strong witnesses have strong constitutions.
I cued the video of Lexy coming up the stairs and froze it as she was about to enter the bathroom. “You testified yesterday that Ms. Low had heroin in her possession.”
“Correct.”
I stared at the screen for a long moment. “Would you please point it out for us?”
“You can’t see it in the video. It was in her purse.”
I picked up the purse from the evidence cart and showed it to him. “You can see through leather?”
“No, Mr. Daley.”
“Neither can I, Inspector. Unless you have x-ray vision, you can’t possibly know that there was heroin inside, can you?”
“She had purchased it from Mr. Jones a half-hour earlier.”
“But she could have consumed it herself or disposed of it before she went up to Mr. King’s house, right?”
A hesitation. “We found traces of heroin in the baggie inside her purse that matched the heroin in the syringe that she used to inject Mr. King.”
“But we also watched video showing Ms. Low put the baggie, syringes, spoon, lighter, etc., into her purse right before she left the bedroom. It shows that she put the items inside her purse as she was leaving, but it doesn’t prove that she brought the heroin into the house in the first place.”
“Objection,” Harper said. “There wasn’t a question there.”
No, there wasn’t. “I’ll rephrase. You don’t have any physical or visual evidence that Ms. Low had heroin in her possession when she entered Mr. King’s house, do you?”
“No.”
Good. “And you don’t have any physical or visual evidence that Mr. King did not leave the heroin in the bathroom for Ms. Low, right?”
“It’s impossible to prove a negative, Mr. Daley.”
Good answer. “But you would acknowledge that it’s possible—and perhaps even likely—that Mr. King left some high-powered heroin in his own bathroom, right?”
“Objection. Calls for speculation.”
Yes, it does.
“Sustained.”
“Officer Dito testified that Mr. Jones was holding two baggies of heroin when he and his partner pursued him, didn’t he?”
“Yes.”
“He also testified that Mr. Jones had emptied those baggies into a puddle and dropped them onto the street, right?”
“Yes.”
“Which means that any traces of heroin in those baggies were contaminated by water and other elements, weren’t they?”
“Yes.”
“So it was impossible to compare the traces of heroin in those baggies with the traces found in the baggie in Ms. Low’s purse, right?”
Lee nodded. “Right.”
Once more. “You can’t possibly know that Mr. King did not leave a baggie of heroin inside his own bathroom, can you?”
Lee showed his first hint of impatience. “We’re talking in circles, Mr. Daley.”
That’s the whole idea. “The fact remains that you have no proof that Ms. Low brought heroin into Mr. King’s house, do you?”
Harper stood up. “Asked and answered, Your Honor.”
“Please move along, Mr. Daley.”
“The video showed several people other than Mr. King and Ms. Low entering the bathroom, didn’t it?”
“Objection. Mr. Daley is asking Inspector Lee about matters not addressed during direct.”
I fired back. “Mr. Harper showed the beginning of the video when Ms. Low entered the bathroom, and the ending where Mr. King did so, too. He fast-forwarded through the period in-between because he didn’t want us to see the other people who entered the bathroom—any one of whom could have left the heroin there. We should be allowed to show it in its entirety.”
Harper responded from his seat. “This is an improper subject on cross, and Mr. Daley is testifying.”
I’m definitely testifying, but it is an appropriate subject on cross. “Mr. Harper introduced the video during direct. I should be able to question the witness about it on cross.”
“The objection is overruled. You may show the entire video and question Inspector Lee about it, Mr. Daley.”
I started the video as Lexy entered the bathroom. Then I fast-forwarded to eleven-fifteen and froze it. “Can you identify the person entering the master bath?”
“The victim, Jeff King.”
I ran it a little further, then stopped it again. “And now?”
“Mr. King exited the master bath and went back downstairs.”
“Can you confirm that Mr. King did not have heroin in his possession?”
“We’ve already addressed this issue, Mr. Daley. I can’t.”
“It was his house. He could have left heroin in his own master bath at any time, right?”
“I found no evidence that he did so.”
The woman from Salesforce looked skeptical. I forwarded the video to eleven-eighteen and stopped it again. “And who is this?”
“Gopal Patel.”
“Did he have a baggie of heroin in his possession? Maybe in his pocket?”
“I have no evidence that he did, and you can’t see it in the video. Moreover, when I asked him about it, he confirmed that he did not have heroin in his possession.”
Big surprise. “You took his word for it?”
“I had no reason to disbelieve him, and I found no evidence that he did.”
“Did you consider the possibility that he lied to you?”
“Yes. I had no reason to believe that he did so.”
“Or he may be a very good liar. Either way, you can’t rule out the possibility that he had a baggie in his pocket, can you?”
“Objection. Calls for speculation.”
“Overruled.”
Lee answered in a grudging voice. “I cannot rule out the possibility that Mr. Patel brought a hidden baggie into the bathroom, but I found no evidence that he did.”
“What about the possibility that he tampered with a baggie that Mr. King had left there?”
“Once again, it’s impossible to prove a negative, Mr. Daley.”
“But you were willing to testify that Ms. Low brought a baggie of heroin into the house even though you have no evidence that she did, either.”
“Objection. Mr. Daley is testifying again.”
Yes, I am.
“Sustained.”
It took me another hour to walk Lee through the rest of the video and identify everybody who entered the bathroom. Eleven-twenty: Ben-Shalom. Eleven-twenty-five: Sanchez. Eleven-forty-eight: the ‘Guy from Rye.’ Eleven-fifty-two: Steele. Eleven-fifty-five: Moore. Twelve-oh-one: Ben-Shalom again.
I stopped the video and the TV went black. “Inspector, based on what we just saw, isn’t it true that between eleven p.m. when Ms. Low entered the bathroom, and twelve-fourteen a.m. when Mr. King returned upstairs, seven people—including Mr. King—entered the master bath?”
“Yes.”
“Yet you concluded that the only person who could have left a baggie of heroin in the bathroom was Ms. Low?”
“She purchased heroin a short time before she arrived. We found her fingerprints on the baggie. We found no other identifiable prints, and we found no evidence that anybody else planted the heroin in the decedent’s bathroom.”
“What about the smudged prints? How could you rule out the possibility that the person whose prints were smudged brought the heroin into the bathroom?”
“I had no evidence in support of that conclusion.”
“So you chose to believe everyone but Ms. Low, right?”
“We found her fingerprints on the baggie.”
“She could have gotten her prints on the baggie as she was leaving the room, couldn’t she?”
Harper was on his feet. “This subject has already been addressed.”
“Please move on, Mr. Daley.”
“Inspector, did you seriously consider the possibility that somebody other than Ms. Low put the heroin in the bathroom?”
“We considered everyone at Mr. King’s house. We found no evidence that anyone else brought heroin into the master bath.”
“Except for the video showing seven other people entering the bathroom.”
“Objection. Argumentative.”
“Withdrawn.” I glanced at Rosie, who closed her eyes. “No further questions.”
“Cross-exam, Mr. Harper?”
“No, Your Honor. We have no other witnesses. The prosecution rests.”
“Did you wish to make a motion, Mr. Daley?”
“Yes, Your Honor.” Here goes. “We move that all charges be dismissed on the grounds that the prosecution has failed to meet its burden of proving its case beyond a reasonable doubt.”
“Denied.” She looked at her watch. “We’ll recess for lunch. Please be ready to call your first witness at one-thirty sharp.”
* * *
I was standing in the stairwell down the hall from Judge McDaniel’s courtroom when I punched Pete’s number on my speed dial.
He answered on the first ring. “I trust you got Lee to break down on the stand?”
“Not quite.”
“You’re no Perry Mason, Mick.”
I’m well aware of that. “I don’t have a lot of time. Anything new that we can use?”
“Working on it.”
“What about Debbie Steele?”
“Kaela Joy is checking rehabs south of the Golden Gate. I’m looking north.”
“Can’t you track her down using her phone?”
“She turned it off last week. Either she’s going cold turkey, or she’s using a burner.”
“I’m due in court.”
“Keep tap dancing, Mick. We’ll come up with something.”
55
“HE WAS A WALKING TIME BOMB”
The elf-
like man with the trim beard and the John Lennon spectacles sported a double-breasted suit matching his styled gray hair. “My name is Dr. Gary Goldstein.”
“You’re a medical doctor?” Nady asked.
“I am. I’ve been practicing for forty-seven years.”
He’d been a reliable paid-for-hire defense witness for almost as long.
Nady walked him through his C.V. Trained at Stanford and UCSF, the internist was a throwback to the days when doctors knew their patients by name. The fourth-generation native San Franciscan had opened an office across the street from Mount Zion Hospital decades before it was swallowed up by UCSF. He began supplementing his income with a lucrative side gig as an expert witness. When he started spending more time in court than with patients, he handed his practice over to his daughter and son-in-law (also UCSF-trained) and became a full-time hired gun. “Dr. G” was on the speed dial of every defense attorney in town. Juries loved the cherub-like man who dispensed earthy medical wisdom in easily digestible soundbites. More important, they believed him.
Nady handed him a copy of the autopsy report. “You’re familiar with this document?”
“I have studied it very carefully.”
For the better part of an hour.
“Dr. Siu concluded that the decedent died of a heroin overdose. In your best medical judgment, do you agree with her conclusion?”
He contorted his rubbery face in a manner suggesting that it gave him heartburn to disagree with the esteemed Chief Medical Examiner. “I have great respect for Dr. Siu, who taught at my alma mater, UCSF. However, in this instance, I’m afraid that she made an error.”
Just the way they had rehearsed it.
“Could you please explain why?”
“It would help if I could refer to a copy of the decedent’s medical chart.”
Nady walked over to the evidence cart and picked up a manila folder. “Your Honor, we would like to introduce Mr. King’s medical chart into evidence.”
Higher Law Boxset, Volume 3 Page 74