by Angela Hunt
“So she learned to suffer in silence. And one morning, after a particularly bad beating, Erin woke early, tiptoed out of bed, and crept into the kitchen. When Jeffrey didn’t appear to demand his breakfast, she went to check on him…and found him dead. She called 911 in a panic, she tried to administer CPR, she rode with the ambulance to the hospital. She sat in the morgue, shocked into grief, waiting for someone to explain why her strong and healthy husband stopped breathing in the middle of the night.
“Erin Wilson Tomassi did not murder her husband.” Briley looks down the first row of jurors, meeting the gaze of each somber individual before shifting to the next person. “The prosecution says they can prove Erin is a killer. They say she killed him because murder was her only way out of an unhappy marriage. But we will demonstrate that Erin couldn’t kill him. On the night in question, she had been badly beaten. She was in so much pain that she went into her bathroom and took a double dose of sleeping pills. She went to bed and didn’t wake until morning. She did not murder him. Why do I say that? Because no matter how many times Jeffrey hit her, she still loved him.”
Briley pauses beside the lectern, knowing that the jurors are looking in Erin’s direction when they look at her. “Erin Tomassi did not commit murder. Perhaps the victim injected himself, perhaps an intruder entered the house. Jeffrey Tomassi’s death may have been a suicide, a murder, or an accident. We don’t know, because we don’t have all the facts. We may never have all the facts. But our duty in this courtroom is to tell Erin’s story. After hearing it, you’ll understand that my client did not, could not, kill anyone.”
The prosecutor calls his first witness.
Briley opens her trial notebook and picks up a pen as Detective Mark Malone steps out of the gallery and takes the stand. Bystrowski begins his examination, first laying a foundation to establish the cop’s expertise and experience, then he begins to question him about the morning he examined Jeffrey Tomassi’s body. The detective testifies that rigor mortis had set in by the time he arrived, so the man obviously died sometime during the night. He also testifies about the alarm system, the security cameras, and the videotapes that did not reveal any intruder. When Bystrowski asks, Malone tells the jury that the police took several hair samples from the crime scene and the crime lab later reported that DNA from the samples matched Jeffrey Tomassi and his wife. Finally, Bystrowski asks about the syringe discovered in the bathroom trash—a syringe marked with a partial print from Erin Tomassi’s thumb.
While Bystrowski goes through the routine of having the evidence marked for identification and entered into evidence, Briley looks at her client. Erin has been mostly silent during the trial, her eyes centered either in her lap or on the witness box. She does not, Briley notices, look at the jury, as if she’s afraid of what she might see in their eyes.
Briley needs to tell Erin to keep her chin up and look more confident. She makes a note on her legal pad: Fake it till you feel it.
Bystrowski leaves his latest evidence bags with the clerk, then steps back to the lectern. “Detective, in your examination of the many objects gathered at the crime scene, did you find anything to indicate that anyone other than the victim and the defendant were present at the scene?”
“We found a few other latent fingerprints, which were subsequently identified as the housekeeper’s. Nothing else.”
“Thank you, Detective.” The prosecutor nods at the jury, then moves back to his counsel table.
Briley’s pulse quickens when the judge looks her way. “Ms. Lester, you may cross-examine the witness.”
Conscious of the pressure of dozens of curious eyes, she stands and moves to the lectern. “Thank you, Detective Malone, for your fine work on this case. In your examination of the Tomassi home’s exterior, you testified that you saw no footprints in the flower beds. Do you recall if those areas were covered with mulch?”
The policeman tugs on his shirt collar. “I’m not sure.”
“Let me show you this photo. Perhaps I can refresh your memory.” She pulls a photograph from her folio and glances at the judge. “May I approach?”
“You may.”
“Now, Detective—” Briley shows the photo to the man in the witness box “—do you recognize this property?”
“Yes, it’s the crime scene.”
“I should remind you, sir, that we haven’t established that a crime has been committed. Can you identify this property by address?”
The detective checks his notes. “It’s 944 Montana Street in Lincoln Park. Home of Mr. and Mrs. Jeffrey Tomassi.”
“Thank you. Now, if you will, please examine the leafless shrubbery next to the front door. Isn’t that mulch on the ground?”
The detective props his reading glasses on the end of his nose, sucks at the inside of his cheek, and grunts. “Looks like it.”
“It is, isn’t it? And isn’t it true that pine bark mulch wouldn’t reveal an intruder’s footprint if one existed?”
The cop scowls at her. “We checked the ground-floor windows. No one forced an entry.”
“You didn’t answer my question. If an intruder entered that house through an unlocked window, he wouldn’t leave any footprints, would he?”
“He might not have left a footprint, but if he’d been in that bedroom, he would have touched something. He would have left some trace of his presence. Fingerprints, at least.”
“Unless he was wearing gloves.”
The detective’s scowl deepens as Bystrowski stands. “Objection, Your Honor. Where’s the question?”
The judge gives Briley a warning look. “Objection sustained.”
“Thank you, Your Honor, I do have a question. In your examination of the windows, Detective, do you recall noticing if any of them were unlocked?”
Malone’s face goes blank for an instant. “I don’t recall.”
“Did you check the windows?”
“We looked for signs of a break-in. We found no evidence of forced entry.”
“So you never actually tested the windows, correct? To see if any of them were unlocked?”
“No, we didn’t test the windows.”
“Did you spend much time examining the kitchen?”
Malone yanks on his tie. “No, ma’am. We found the victim in the bedroom, so we designated that as the crime scene. Nothing in the kitchen appeared out of place. Ditto for the guest room and the living room.”
“Did you empty the trash cans throughout the home? Did you go through the trash compactor?”
“We saw no need to turn the house upside down.”
“Later, when you read the autopsy report—a document stipulated to be admissible by me and the prosecutor—did you find yourself wishing you had checked the kitchen compactor? Or the trash cans outside?”
“Lady,” the detective drawls, “I don’t know what you mean.”
Briley forces a smile. “Have you read the autopsy report?”
“Yes. So?”
“According to the medical examiner’s report, what was Jeffrey Tomassi’s cause of death?”
The cop drapes both arms over the chair’s armrests. “Insulin overdose.”
“So don’t you wish you’d checked those other waste receptacles? Isn’t it possible that you left the house without discovering the actual murder weapon?”
The cop eases back in his chair, his irritated expression shifting into one of bored tolerance. “What if Santa Claus did it? That’d be mighty convenient, but highly unlikely.”
Briley ignores a wave of twittering from the jury box. “Detective Malone, you testified that you found a sharps disposal unit. Where did you find it?”
“Under the bathroom sink.”
“And in it you found how many syringes?”
“Twenty-two.”
“How do you know the syringe displayed here as state’s exhibit one was the murder weapon? Why couldn’t the murder have been committed with one of the twenty-two in the sharps receptacle?”
The detective
holds Briley’s gaze as he knuckles small sparkles of sweat from his upper lip. “Mrs. Tomassi’s prints were on the syringe in the evidence bag.”
“That doesn’t mean this particular syringe was used to kill Jeffrey Tomassi, does it? Or that his wife administered the fatal dose?”
“Then it must mean she’s a liar, because she told me she never gave her husband injections.”
Briley closes her eyes and remains facing forward so that the jurors can’t see her grimace. She has broken the cardinal rule, the one drummed into every trial lawyer’s head: never ask a question if you’re not sure of the response. She wasn’t expecting the cop to be so clever.
“Your Honor,” she says, her voice strangled, “the defense moves to strike Detective Malone’s last answer as unresponsive.”
Trask tilts his head. “The jury will disregard that last answer.”
“Detective—” she forces a smile as she focuses on the grinning cop “—one set of fingerprints on a single syringe doesn’t inconclusively prove that you’ve found the murder weapon, does it?”
His smile fades a degree. “No. But it sure sets that syringe apart from the others.”
Sensing trouble, Briley moves on. “What else did Mrs. Tomassi tell you that day? Did she relate the events of the morning and the previous night?”
“Yeah—Yes. She said they got home late. She took sleeping pills and went to bed.”
“The sleeping pills…did she specify what type they were?”
When he gives her a confused look, she knows he’s intentionally giving her a hard time. His report was far more specific. “The brand name, sir?”
“Ah, yes. Ambien.”
“Thank you.” Briley glances at her notes. “Previously, you testified that Mrs. Tomassi gave you permission to search the house.”
This time, the detective does not look at Erin. “Yes.”
“Did she seem reluctant to grant permission?”
“She was upset. I don’t think she gave the question much thought.”
“Are you always able to read the minds of the people you interrogate?”
“Objection, Your Honor.” Bystrowski rises. “Counselor is badgering the witness.”
“I’ll withdraw the question.” Briley gives the detective a more sincere smile. “This permission you received from Mrs. Tomassi—was it tape-recorded?”
“No.”
“Written, then. As a conscientious officer of the law, you knew that any evidence you discovered without permission could be excluded from a trial. So you had her sign a document, right?”
The man looks away as his face reddens. “No.”
Briley widens her eyes, feigning surprise. “Then how is it that we have evidence from the Tomassi home?”
The cop glares at her. “Because I gathered it.”
“Isn’t it true, Detective, that all the evidence from the alleged crime scene has been allowed into this trial solely because Erin Tomassi personally told the judge that she gave you permission to search?”
“Objection!” Bystrowski is on his feet again. “Counsel is out of line, and she knows it.”
“Objection sustained,” Trask rules, frowning down at Briley. “The jury will disregard that last question.”
The cop crosses his arms and stares at the back wall, refusing to meet Briley’s gaze.
“I’ll withdraw the question.” Briley inhales a deep breath, content that she has given the jury an important piece of information about her client’s integrity. “How many years have you been interviewing homicide suspects, Detective Malone? Was it ten?”
“That’s right.”
“Given your extensive personal experience with suspects in murder cases, when you interviewed Mrs. Tomassi, did you suspect her of being the sort of woman who would pick up a syringe and give her husband a fatal overdose?”
When she turns and sees a smirk on Bystrowski’s face, she realizes she’s made an egregious mistake. She’s asked a leading question to which Bystrowski ought to object, but he’s keeping silent, giving the detective yards of rope to wrap around her neck. Now that she’s opened the door, he can claim that Erin was as cool as Lizzie Borden or as friendly as Ted Bundy….
Time slows to a crawl as she turns to face the witness stand. She holds her breath, watching as the detective looks at the expectant prosecutor and shakes his head in what looks like slow motion.
“No, I didn’t.” His answer reverberates in Briley’s ears, filling her with relief. She’s about to smile her thanks for being an honest cop, but Malone can’t resist a parting shot: “But first impressions can be deceiving.”
“Indeed, they can be.” Briley exhales in a rush as time resumes its normal pace. She smiles at the jury. “Sometimes a situation is not at all what it appears to be. Thank you, Detective,” she says. She walks away, determined to cut her losses. “Thank you very much.”
The medical examiner, Dr. James Drew, squints at the item in the evidence bag. “Yes, that’s a typical insulin syringe.”
Bystrowski turns the bag for the jury to view. “Based on your examination of the evidence, are you able to conclude if this is the murder weapon?”
The man’s dark brows shoot toward his forehead. “In order to make such a conclusion, we have to weigh all the elements of the crime scene.”
“What particular facts about this syringe did you consider?”
Dr. Drew leans an elbow on the witness chair. “Twenty-two syringes were found in a sharps disposal unit. Police records indicate that this syringe was found by itself, in a regular trash can. Logic tells me that as a diabetic who gave himself daily injections, Mr. Tomassi had almost certainly developed the habit of disposing of his needles in a sharps receptacle. Obviously, whoever threw this syringe into the trash did not share that habit.”
“Objection, Your Honor.” Briley rises. “The witness is drawing conclusions.”
“I’ll allow it.” Trask inclines his head. “Mr. Bystrowski, you may continue.”
Bystrowski crosses one arm over his chest and studies the doctor with an air of thoughtful contemplation. “Can you be certain that whoever administered insulin with this syringe wasn’t giving him the usual nighttime dose?”
“I am quite certain the injection was intended to be fatal.” The medical examiner looks at the jury, his eyes grave. “The dose administered to Jeffrey Tomassi was more than enough to kill him. In cases of accidental insulin overdose, the patient usually slips into a coma, but a massive overdose can end a life in a matter of hours. I have no doubt that whoever injected the victim intended to kill him.”
Briley stands again. “Your Honor, move to strike as unresponsive. The witness did not answer the question.”
The judge inclines his head in a slow nod. “Objection sustained. The jury should disregard that last statement.”
But it doesn’t matter. The jury has heard the medical examiner’s opinion, and Briley can see acceptance in their eyes. They’re believing every word the man says.
The prosecutor thanks the medical examiner, then nods in Briley’s direction. “Your witness.”
Briley glances at her notes, then stands. “Dr. Drew,” she begins without any preamble, “would the average person know how much insulin is required to kill someone?”
The medical examiner frowns. “I don’t believe the average person would know—but a diabetic’s spouse isn’t really an average person.”
“A simple yes or no will do.” Briley gives him a stiff smile and moves to the lectern. “Detective Malone has testified that Mrs. Tomassi never gave her husband injections. Would a wife who never deals with her husband’s insulin know the difference between a coma-inducing overdose and a fatal one?”
The M.E. shrugs. “I have no idea how much the defendant knows about diabetes treatment. But a quick Google search of the Internet could provide a definite answer.”
Briley stifles a grimace. “You are a medical doctor, correct?”
“All medical examiners in the state
of Illinois are medical doctors. Most are also certified in anatomical and forensic pathology.”
“That’s good to know. We will value your expert opinion all the more.”
“Objection.” Bystrowski stands, frustration evident in the line of his hunched shoulders. “Is counsel planning to ask a question?”
Before the judge can admonish her, Briley looks directly at the medical examiner. “After Mrs. Tomassi took two Ambien and fell asleep, could someone have planted her fingerprints on that syringe? If she were in a deep, drugged sleep, isn’t it possible she might remain unaware that someone was manipulating her hand?”
“Objection, Your Honor.” Bystrowski is on his feet again. “Calls for speculation on the part of the witness. We don’t know if Mrs. Tomassi took two Ambien, one Ambien, or any pills at all.”
Trask gives Briley a reproving look. “Objection sustained. Either drop the question or rephrase it.”
“I’ll rephrase.” Briley returns her attention to the man in the witness box. “Dr. Drew, is Ambien an effective sleep-inducer?”
He nods. “Indubitably.”
“Does it promote deep sleep? The sort of sleep in which a person might not be aware of being moved?”
The medical examiner glances at Bystrowski before speaking to the jury. “Yes, depending upon the individual, of course. People react differently to various drugs.”
“Is Ambien so effective that a double dose might have put Mrs. Tomassi in such a deep sleep that she would remain unaware of someone manipulating her hand?”
“I suppose so.”
“Could Jeffrey Tomassi have injected himself with an overdose, wiped the instrument clean, and placed the syringe in his wife’s hand?”
“I have no idea—”
“Can you think of any reason to conclude that this scenario absolutely could not have happened?”
“Anything’s possible, but what you’re describing is highly unlikely.”
“Many things are unlikely, sir, but still they occur. Such a scenario is possible, isn’t it?”
The M.E. sighs. “Yes.”
“Thank you. Now, can you tell the jury what prompted you to look for signs of an insulin overdose? It’s my understanding that this is not a common cause of death.”