“Thank you, Deputy Stallworth. I hope you can go get some sleep now.”
I sat down and left the witness for Golantz. He slowly got up and took the lectern. He knew exactly where I was going now but there was little he was going to be able to do to stop me. But I had to give him credit. He found a small crack in my direct and tried his best to exploit it.
“Deputy Stallworth, approximately how long did you wait for your car to be repaired at the downtown motor hub?”
“About two hours. They only have a couple guys work midnight watch and they were juggling jobs down there.”
“Did you stay with the car for those two hours?”
“No, I grabbed a desk in the office and wrote up the arrest report on Wyms.”
“And you testified earlier that no matter what the procedure is supposed to be, you generally rely on the motor pool to keep the fleet cars clean, is that correct?”
“Yes, correct.”
“Do you make a formal request or do people working in the motor hub just take it upon themselves to clean and maintain the car?”
“I’ve never made a formal request. It just gets done, I guess.”
“Now, during those two hours that you were away from the car and writing the report, do you know if the employees in the motor hub cleaned or disinfected the car?”
“No, I do not.”
“They could have and you wouldn’t necessarily know about it, right?”
“Right.”
“Thank you, Deputy.”
I hesitated but got up for redirect.
“Deputy Stallworth, you said it took them two hours to repair the car because they were short-handed and busy, correct?”
“Correct.”
He said it in a boy-am-I-getting-tired-of-this tone.
“So it is unlikely that these guys would have taken the time to clean your car if you didn’t ask, right?”
“I don’t know. You’d have to ask them.”
“Did you specifically ask them to clean the car?”
“Nope.”
“Thank you, Deputy.”
I sat down and Golantz passed on another round.
It was now almost noon. The judge adjourned for lunch but gave the jury and lawyers only a forty-five-minute break as he sought to make up for time lost during the morning. That was fine with me. My star witness was next and the sooner I got her on the stand, the closer my client was going to be to a verdict of acquittal.
Forty-nine
Dr. Shamiram Arslanian was a surprise witness. Not in terms of her presence at the trial—she had been on the witness list longer than I had been on the case. But in terms of her physical appearance and personality. Her name and pedigree in forensics conjured an image of a woman deep, dark, and scientific. A white lab coat and hair ironed back in a knot. But she was none of that. She was a vivacious, blue-eyed blonde with a cheerful disposition and easy smile. She wasn’t just photogenic. She was telegenic. She was articulate and confident but never came close to being arrogant. The one-word description for her was the one-word description every lawyer wants for every one of his witnesses: likable. And it was rare to get that in a witness delivering your forensic case.
I had spent most of the weekend with Shami, as she preferred to be called. We had gone over the gunshot residue evidence in the Elliot case and the testimony she would give for the defense, as well as the cross-examination she could expect to receive from Golantz. This had been delayed until so late in the game to avoid discovery issues. What my expert didn’t know she couldn’t reveal to the prosecutor. So she was kept in the dark about the magic bullet until the last possible moment.
There was no doubt that she was a celebrity gun for hire. She had once hosted a show about her own exploits on Court TV. She was asked twice for her autograph when I took her to dinner at the Palm and was on a first-name basis with a couple of TV execs who visited the table. She charged a celebrity-level fee as well. For four days in Los Angeles to study, prepare, and testify she would receive a flat rate of $10,000 plus expenses. Nice work if you could get it, and she could. She was known to study the many requests for her time and to choose only those in which she steadfastly believed there had been a grievous error committed or a miscarriage of justice. It also didn’t hurt if you had a case that was getting the attention of the national media.
I knew after spending the first ten minutes with her that she was going to be worth every penny Elliot would pay her. She would be double trouble for the prosecution. Her personality was going to win over the jury, and her facts were going to seal the deal. So much of trial work comes down to who is testifying, not what the testimony actually reveals. It’s about selling your case to the jury, and Shami could sell burnt matches. The state’s forensic witness was a lab geek with the personality of a test tube. My witness had hosted a television show called Chemically Dependent.
I heard the low hum of recognition in the courtroom as my big-haired witness made her entrance from the back, holding all eyes as she walked up the center aisle, through the gate, and across the proving grounds to the witness stand. She wore a navy blue suit that fit her curves snugly and accentuated the cascade of blonde curls over her shoulders. Even Judge Stanton seemed infatuated. He asked the courtroom deputy to get her a glass of water before she had even taken the oath. He hadn’t asked the state’s forensic geek if he had wanted jack shit.
After she gave her name and spelled it and took the oath to tell nothing but the truth, I got up with my legal pad and went to the lectern.
“Good afternoon, Dr. Arslanian. How are you?”
“I’m doin’ just fine. Thanks for asking.”
There was a slight trace of a southern accent in her voice.
“Before we go over your curriculum vitae, I want to get something out of the way up front. You are a paid consultant to the defense, is that correct?”
“Yes, that is correct. I’m paid to be here, not paid to testify to anything other than my own opinion—whether it’s in line with the defense or not. That’s my deal and I never change it.”
“Okay, tell us where you are from, Doctor.”
“I live in Ossining, New York, right now. I was born and raised in Florida and spent a lot of years in the Boston area, going to different schools here and there.”
“Shamiram Arslanian. That doesn’t sound like a Florida name.”
She smiled brilliantly.
“My father is one hundred percent Armenian. So I guess that makes me half Armenian and half Floridian. My father said I was Armageddian when I was a girl.”
Many in the courtroom chuckled politely.
“What is your background in forensic sciences?” I asked.
“Well, I’ve got two related degrees. I got my master’s at MIT—the Massachusetts Institute of Technology—and that is in chemical engineering. I then got a PhD in criminology and that was awarded to me from John Jay College in New York.”
“When you say ‘awarded,’ does that mean it’s an honorary degree?”
“Hell, no,” she said forcefully. “I worked my butt off two years to get that sucker.”
This time laughter broke out across the courtroom and I noticed that even the judge smiled before politely tapping his gavel one time for order.
“I saw on your résumé that you have two undergraduate degrees as well. Is that true?”
“I’ve got two of everything, it seems. Two kids. Two cars. I’ve even got two cats at home, named Wilbur and Orville.”
I glanced over at the prosecution table and saw that Golantz and his second were staring straight forward and had not so much as cracked a smile. I then checked the jury and saw all twenty-four eyes holding on my witness with rapt attention. She had them eating out of her hand and she hadn’t even started yet.
“What are your undergraduate degrees?”
“I got one from Harvard in engineering and one from the Berklee College of Music. I went to both schools at the same time.”
“You have
a music degree?” I said with feigned surprise.
“I like to sing.”
More laughter. The hits kept coming. One surprise after another. Shami Arslanian was the perfect witness.
Golantz finally stood and addressed the judge.
“Your Honor, the state would ask that the witness provide testimony regarding forensics and not music or pet names or things not germane to the serious nature of this trial.”
The judge grudgingly asked me to keep my examination on point. Golantz sat down. He had won the point but lost the position. Everybody in the room now viewed him as a spoilsport, stealing what little levity there was in such a serious matter.
I asked a few more questions, which revealed that Dr. Arslanian currently worked as a teacher and researcher at John Jay. I covered her history and limited availability as an expert witness and finally brought her testimony to her study of the gunshot residue found on Walter Elliot’s body and clothing on the day of the murders in Malibu. She testified that she reviewed the procedures and results of the sheriff’s lab and conducted her own evaluations and modeling. She said she also reviewed all videotapes submitted to her by the defense in conjunction with her studies.
“Now, Dr. Arslanian, the state’s forensic witness testified earlier in this trial that the tabs wiped on Mr. Elliot’s hands and sleeves and jacket tested positive for elevated levels of certain elements associated with gunshot residue. Do you agree with that conclusion?”
“Yes, I do,” my witness said.
A low vibration of surprise rolled through the room.
“You are saying that your studies concluded that the defendant had gunshot residue on his hands and clothes?”
“That is correct. Elevated levels of barium, antimony, and lead. In combination, these are indications of gunshot residue.”
“What does ‘elevated levels’ mean?”
“It just means that some of these materials you would find on a person’s body whether they had fired or handled a weapon or not. Just from everyday life.”
“So it is elevated levels of all three materials that are required for a positive result in gunshot residue testing, correct?”
“Yes, that and concentration patterns.”
“Can you explain what you mean by ‘concentration patterns’?”
“Sure. When a gun discharges—in this case we think we’re talking about a handgun—there is an explosion in the chamber that gives the bullet its energy and velocity. That explosion sends gases out the barrel with the bullet as well as out any little crack and opening in the gun. The breech—that is, the part at the rear of the gun’s barrel—comes open after a shot has been fired. The escaping gases propel these microscopic elements we’re talking about backward onto the shooter.”
“And that’s what happened in this case, correct?”
“No, not correct. Based on the totality of my investigation I cannot say that.”
I raised my eyebrows in feigned surprise.
“But Doctor, you just said you agreed with the state’s conclusion that there was gunshot residue on the defendant’s hands and sleeves.”
“I do agree with the state’s conclusion that there was GSR on the defendant. But that wasn’t the question you asked.”
I took a moment as if to retrace my question.
“Dr. Arslanian, are you saying that there could be an alternate explanation for the gunshot residue on Mr. Elliot?”
“Yes, I am.”
We were there. We had finally arrived at the crux of the defense’s case. It was time to shoot the magic bullet.
“Did your study of the materials provided to you over the weekend by the defense lead you to an alternate explanation for the gunshot residue on Walter Elliot’s hands and clothing?”
“Yes, they did.”
“And what is that explanation?”
“It is very highly likely, in my opinion, that the residue on Mr. Elliot’s hands and clothes was transferred there.”
“Transferred? Are you suggesting someone intentionally planted GSR on him?”
“No, I am not. I am suggesting that it occurred inadvertently by happenstance or mistake. Gunshot residue is basically microscopic dust. It moves. It can be transferred by contact.”
“What does ‘transferred by contact’ mean?”
“It means the material we are talking about lights on a surface after it is discharged from the firearm. If that surface comes into contact with another, some of the material will transfer. It will rub off, is what’m saying. This is why there are law enforcement protocols for safeguarding against this. The victims and suspects in gun crimes often have their clothes removed for preservation and study. Some agencies put evidence bags over people’s hands to preserve and guard against transference.”
“Can this material be transferred more than once?”
“Yes, it can, with depreciating levels. This is a solid material. It’s not a gas. It doesn’t dissipate like a gas. It is microscopic but solid and it has to be someplace at the end of the day. I have conducted numerous studies of this and found that transference can repeat and repeat.”
“But in the case of repeated transference, wouldn’t the amount of material depreciate with each transfer until negligible?”
“That’s right. Each new surface will hold less than the prior surface. So it’s all a matter of how much you start with. The more you start with, the greater the amount that can be transferred.”
I nodded and took a small break by flipping up pages on my pad as if I were looking for something. I wanted there to be a clear line between the discussion of theory and the specific case at hand.
“Okay, Doctor,” I finally said. “With these theories in mind, can you tell us what happened in the Elliot case?”
“I can tell you and show you,” Dr. Arslanian said. “When Mr. Elliot was handcuffed and placed in the back of the four-alpha patrol car, he was literally placed in a hotbed of gunshot residue. That is where and when the transference took place.”
“How so?”
“His hands, arms, and clothing were placed in direct contact with gunshot residue from another case. Transfer to him would have been inevitable.”
Golantz quickly objected, saying I had not laid the groundwork for such an answer. I told the judge I intended to do that right now and asked permission to set the video equipment up in front of the jury again.
Dr. Arslanian had taken the video shot by my first witness, Julio Muniz, and edited it into one demonstration video. I introduced it as a defense exhibit over Golantz’s failed objection. Using it as a visual aid, I carefully walked my witness through the defense’s theory of transference. It was a demonstration that took nearly an hour and was one of the most thorough presentations of alternate theory I had ever been involved in.
We started with Eli Wyms’s arrest and his placement in the backseat of the alpha car. We then cut to Elliot being placed in the same patrol car less than ten hours later. The same car and the same seat. Both men’s hands cuffed behind their backs. She was stunningly authoritative in her conclusion.
“A man who had fired weapons at least ninety-four times was placed in that seat,” she said. “ Ninety-four times! He would have literally been reeking of gunshot residue.”
“And is it your expert opinion that gunshot residue would have transferred from Eli Wyms to that car seat?” I asked.
“Most definitely.”
“And is it your expert opinion that the gunshot residue on that seat could then have been transferred to the next person who sat there?”
“Yes, it is.”
“And is it your expert opinion that this was the origin of the gunshot residue on Walter Elliot’s hands and clothes?”
“Again, with his hands behind his back like that, he came in direct contact with a transfer surface. Yes, in my expert opinion, I do believe that this is how he got the gunshot residue on his hands and clothes.”
I paused again to drive home the expert’s conclusions. I
f I knew anything about reasonable doubt, I knew I had just embedded it in every juror’s consciousness. Whether they would later vote their conscience was another matter.
Fifty
It was now time to bring in the big prop to drive Dr. Arslanian’s testimony home.
“Doctor, did you draw any other conclusions from your analysis of the GSR evidence that supported the theory of transference you have outlined here?”
“Yes, I did.”
“And what was that?”
“Can I use my mannequin to demonstrate?”
I asked the judge for permission to allow the witness to use a mannequin for demonstration purposes and he granted it without objection from Golantz. I then stepped through the clerk’s corral to the hallway leading to the judge’s chambers. I had left Dr. Arslanian’s mannequin here until it had been ruled admissible. I wheeled it out to the center of the proving grounds in front of the jury—and the Court TV camera. I signaled to Dr. Arslanian to come down from the witness stand to make her demonstration.
The mannequin was a full-body model with fully manipulating limbs, hands, and even fingers. It was made of white plastic and had several smudges of gray on its face and hands from experiments and demonstrations conducted over the years. It was dressed in blue jeans and a dark blue collared shirt beneath a windbreaker with a design on the back commemorating a University of Florida national football championship earlier in the year. The mannequin was suspended two inches off the ground on a metal brace and wheeled platform.
I realized I had forgotten something and went over to my rolling bag. I quickly pulled out the wooden dummy gun and collapsing pointer. I handed them both to Dr. Arslanian and then went back to the lectern.
“Okay, what do we have here, Doctor?”
“This is Manny, my demonstration mannequin. Manny, this is the jury.”
There was a bit of laughter and one juror, the lawyer, even nodded his hello to the dummy.
“Manny’s a Florida Gator fan?”
“Uh, he is today.”
Sometimes the messenger can obscure the message. With some witnesses you want that because their testimony isn’t all that helpful. But that was not the case with Dr. Arslanian. I knew I had been walking a tightrope with her: too cute and entertaining on one side; solid scientific evidence on the other. The proper balance would make her and her information leave the strongest impression on the jury. I knew it was now time to get back to serious testimony.
The Brass Verdict Page 34