“And were you later able to obtain identification of those prints?”
“Most of them, yeah. The ones we found belonging to the defendant were all over.”
She interrupted him. “I’m sorry, what do you mean by ‘all over?’ All over her?”
“No. All over the house. On the bedposts, in the bathroom, on a bottle of wine and glasses in the living room.”
“When did you identify the fingerprints?”
“I can’t recall, exactly.”
“Would it help refresh your memory if I showed you your report?”
“It would.”
Ann looked to Howard for guidance. He turned to Sam. “Any objection, Mr. Johnstone?”
“No objection, Judge.”
“Your Honor, may I approach the witness?” Ann inquired, holding a sheaf of papers in her hand.
“You may.”
Ann approached Punch and handed him a copy of his report. While she returned to the podium, he perused it quickly and then looked up at her. “It looks like we got Emily’s, er, Ms. Smith’s fingerprints identified the next day,” he said. “We got the others identified around the middle of November. There’s still at least two sets we haven’t identified.”
“So,” Ann asked, looking at Sam, who was scribbling on a legal pad. “After the defendant’s fingerprints were identified, what did you do?”
“Well, I spoke with Mr. Olsen and asked him if he knew Ms. Smith, and if he’d come in and talk with me.”
“What day was that?”
“That would have been the day after we identified his prints,” Punch said. “I remember because I got the call we’d identified his prints while I was watching the Broncos playing the Chiefs.”
“And did he?”
“Did he what?”
“Well, both. Did he admit knowing her?”
“Yes. Said she was his lawyer.”
“And did he willingly come in to meet with you?”
“You bet. Came right in.”
“And what happened then?”
“Well, he denied knowing anything about Ms. Smith’s death, but said he’d been in her house and they’d had consensual sex.”
“And so what did you do?”
“Well, at the time I let him go. Honestly, his story seemed to be standing up, he had an explanation for being there, and I just didn’t think I had enough to hold him.”
“But at some point, you changed your mind?”
“Yes.”
“Why was that?”
“Well, we already had a match on his fingerprints in the kitchen and elsewhere in the house—that was bad for him. He had already admitted to being with her, his truck was seen in the neighborhood about that time, and then the DNA came back as a match with his from the federal database.”
“Anything else make him a suspect?” Ann asked.
“Well, his name was in her scheduling book, and after speaking with him it was clear that he was the last one we could find who’d seen her alive, and, well, he had military training and knew how to use a blade.”
“How did you find that out?”
“He told me.”
“Okay. Anything else?”
“He lost several ranks in the Corps because he hit a woman.”
“Move to strike,” Sam said. “Hearsay, irrelevant, unfairly prejudicial—”
“Overruled,” Howard said. “For what it’s worth.”
“Anything else?” Ann asked.
“Well, like I said, we got a warrant to search his house, and we found a bayonet matching what the forensics guys told us to look for.”
“When did you get the warrant?”
“It was November 13. I remember because it was Friday the 13th.”
“So, you searched Mr. Olsen’s house under the auspices of a warrant?”
“Uh, yes. We had a warrant.”
“The bayonet, I think you called it. What is a bayonet?”
“Well, it’s sort of a knife.”
“What do you mean, ‘sort of?’”
“Well, you can hold it in your hand and use it as a knife, or you can attach it to the barrel or body of a military rifle and use it that way,” Punch answered, gesturing with his hands.
“Was there anything of interest found?”
“Yes.”
“What was that?”
“The blade was missing a small piece, which was interesting because the medical examiner had found some metal in the deceased’s neck area during the autopsy. And there was blood on the bayonet. It turned out to be Ms. Smith’s.”
“How did you determine that?”
“We sent it to the lab. Didn’t take long to get a match because we already had a lot of her blood on hand.” An audible groan emanated from the audience. “Sorry,” he added.
“What did you do then?”
“We matched some of the prints on the bayonet to the defendant.”
“And then?”
“I went back to my office and put together an affidavit and an arrest warrant.”
“And then what?”
“Well, then I got it reviewed by you, and eventually it got signed by Judge Howard. I’d had Mr. Olsen followed, so we arrested him as he was trying to leave town.”
“He was trying to leave?”
“Yes.”
“Did he say anything?”
“He said he didn’t do it.”
“Anything else?”
“He told me to kiss his ass.”
Ann waited a moment for the laughter to dissipate. “Anything happen since that time to make you think you got the right guy?”
“Yes.”
“What, Detective?”
“Well, he got in a fight with another inmate in a holding cell. According to the victim of that attack, Mr. Olsen here told him that, ‘He’d get his, just like that bitch got hers.’”
Again, the small crowd gasped.
Tommy leaned over to Sam and whispered fiercely, “That’s bullshit. I said—”
“Not now, Tommy,” Sam said. He gave some thought to objecting, but because hearsay was admissible, it wouldn’t do any good. Besides, you can’t “un-ring the bell,” as the old trial adage went, and Howard had already heard it. An objection would give Ann the opportunity to restate what was said, so that anyone who might not have heard it—to include the reporters present—would get a second chance.
“Your Honor, may I have a moment?” Ann asked, wanting the last point to sink in for a moment before she yielded the podium.
“Of course,” Howard said, staring down the audience members to ensure silence.
Ann appeared to consult briefly with Nice, who always sat second chair during major trials. Second chair allowed her to be present and take partial credit for a good result while shielding herself if everything went south. “Your Honor, the State has no further questions.”
“Mr. Johnstone, care to cross-examine?” Judge Howard asked.
“Your Honor, could I consult briefly with my client?”
“Make it quick.”
Sam and Tommy consulted for a couple of minutes. Sam didn’t have a lot of questions to ask. When it came to preliminary hearings, the defense was at a decided disadvantage. There wasn’t a lot he could do beyond locking down some key testimony.
“Any cross-examination, Mr. Johnstone?” Howard asked impatiently.
“Yes, Your Honor.”
Howard sighed and stared at Sam levelly. “Then get to it, son.”
Sam moved to the podium. “Detective Polson, did you know the deceased?”
“No, sir.”
“Where exactly was that bayonet located?” He skipped to another subject, just to keep the witness off balance.
“It was in his garage, in a toolbox.”
“Does the garage door lock?”
“Yes.”
“How did you get in?”
“I got the combination for the automatic door opener—there’s a pad on the garage door frame—from the defenda
nt.”
“And you just opened it and went in?”
“I had both a warrant and his consent.”
“Anyone with that combination could’ve done the same?”
“Sure.”
“Who else had the combination?”
“Well, I guess I’m not sure. The defendant, I suppose his wife, although she moved out a coupla months ago, he says. Unless he changed it. His kids, maybe.”
“And maybe some other people, too—true?”
“I don’t know. Couldn’t speculate.”
“Why were you looking for a bayonet?”
“I was not necessarily looking for a bayonet; I was looking for a large knife that could have made the kind of wound the medical examiner described. But we knew he was a former Marine, so it didn’t surprise me. Jensen said he came across the bayonet and it looked like it might fit the bill. Plus, it had what looked like blood on it.”
“Did your men find a scabbard anywhere in the house?”
“Yeah. The scabbard was in his gun safe. They found that first.”
“How did you get access to the gun safe?”
“The defendant gave me the combination.”
“Willingly?”
“Well, I explained to him that if he would not give me the combination, then I would have someone drill the safe. My men found the empty scabbard in there, so they started looking around and then found the bayonet in the toolbox.”
“Does the toolbox lock?”
“It does, but it wasn’t locked.”
“So, anyone could have gotten in there?”
“Yes.”
“Do you know why he would keep the bayonet anywhere other than in the scabbard?”
“Objection. Calls for speculation,” Ann said. It was a harmless question, but Sam was getting too comfortable.
“Your Honor, I’m not asking the witness to speculate,” Sam said. “I’m merely asking if he knows. I can re-phrase, if necessary.”
“I’ll hear it. Answer the question,” Howard instructed.
“No.”
“Detective Polson, how many sets of fingerprints did you find in Emily Smith’s home?”
“At least six.”
“At least?”
“Well, the lab boys said they can identify six separate sets for sure. There are others around that are smeared or incomplete or whatever,” Punch said. “They can’t tell if some are from one of those six people or not.”
“How many have been identified to this point?”
“Four. The deceased, her mother, her housekeeper, and the defendant.”
“So, you checked the bayonet for fingerprints?”
“Yes.”
“And what did you find?”
“There were two sets of prints on it. The defendant’s, and another, unidentified set.”
“Does that unidentified set match any of the unidentified sets in the decedent’s house?”
“Objection,” Ann said.
“Overruled,” Howard said. “You may answer.”
“I’m told it is not a match.”
“So there are three sets of unidentified prints that are relevant to this case?” Sam asked.
“Objection; not a lawyer,” Ann said.
“Your Honor, it’s a prelim—”
“Sustained. Mr. Johnstone, I see where you are going. But you and I both know that line of questioning is not going to be dispositive given the limited purposes of this hearing.”
Sam looked at Howard for a long minute, then turned back to Punch to try another tactic. “Detective, you said you found evidence that she had sexual relations prior to her death?”
“Yes, as I said—”
“And you said my client was not the only man she had sex with immediately prior to her death?”
“Your Honor, I object!” Ann said. “Misstates the evidence, and the deceased is not on trial here.”
“Mr. Johnstone, you know well that a preliminary hearing is not a discovery device. I am willing to allow you a ‘lap around the lake,’ figuratively speaking, but be careful. No fishing,” he warned. Then he turned to Punch. “But I will overrule the objection. Answer the question.”
“No,” said the detective. “As I mentioned before, two samples of semen were located.”
“And they belonged to different men?”
“Yes.”
“And you identified only one sample?”
“Yes.”
A thought came to Sam’s mind. He considered his options, then decided he might as well get this out in the open. “And one sample matches my client?”
“So I’m told. I’m not an expert.”
“But the other sample is that of another, unknown man?”
“That’s my understanding. We collected the DNA from someone other than Defendant Olsen on her bed sheets,” Punch said. “But we haven’t been able to match it.”
“So, you have matched only one sample to a donor?” Sam asked.
“DNA guys tell me one sample is from Tommy Olsen.”
“But you’ve no match for the other?”
“No,” Polson said.
“But you’re working on it?”
“Yes.”
“How long might it take?”
“Well, it could be quick—if we had a potential donor or suspect or whatever and could get a sample of his DNA. Maybe weeks in that situation.”
“And if not?”
“Well, that could take a long time. It would be prohibitively expensive, and—”
“And?”
“Well, it’d be like finding a needle in a haystack.”
While awaiting Punch’s answer, Sam leaned down and whispered in Tommy's ear, and then listened as Tommy whispered back. Sam thought for a moment, then returned to the podium. “Judge, I have no further questions for this witness.”
“Detective Polson, you can step down,” Howard said. “Ms. Fulks, any other witnesses?”
“No, Your Honor.”
“Well, then, I’ll hear from each of you before I announce my decision.”
Ann stood and addressed the court perfunctorily. “Your Honor, the State has made a sufficient showing that a crime was committed, and that the defendant is the person who committed it. We ask the court to bind Mr. Olsen over to the district court for further proceedings.”
Howard nodded, then turned his attention to Sam. “Mr. Johnstone, any response?”
“Briefly, Your Honor.”
“That would be appreciated.”
“Your Honor, the State has shown by a preponderance of the evidence that a crime was committed, but it has failed to show probable cause that my client committed it. There are simply too many unanswered questions regarding the so-called evidence. My client, during his interview with Detective Polson, admitted he’s been in the house, that he had consensual sex with the victim. He explained the presence of his blood. There are unexplained fingerprints, and evidence that she had sex with another man at some point—”
“Mr. Johnstone, don’t you agree that goes to the weight of the evidence, and is not particularly relevant to this hearing?”
"Your Honor, again, I would ask the court to heed—”
“Mr. Johnstone, I’m heeding. I simply don’t place the kind of weight on your argument that you do. Anything else?” he asked pointedly.
“No, Judge.”
“Thank you both,” Howard said, then looked at Tommy. “Mr. Olsen, in a hearing like this, the State’s burden is set at ‘probable cause.’ As I said earlier, the State’s task today was merely to show that a crime has been committed, and that a reasonable person with the information before him could conclude that you committed that crime. Having heard and considered the evidence here today, this court finds that there is probable cause to believe that on or about October 31, in Custer County, Wyoming, the crime of first-degree murder, a violation of Wyoming Statute Section 6-2-101, was committed, and that you were the person responsible. Mr. Olsen, your case will be transferred to
district court for all further proceedings.”
He turned to Ann. “Ms. Fulks, are there other matters to be addressed in connection with this defendant?”
“No, Your Honor.”
“Mr. Johnstone?”
“Yes, Your Honor, I’d like to revisit the issue of bond. I—”
“Denied.”
“Your Honor, we’ve heard information that brings into question whether my client—”
“Denied, Mr. Johnstone. I am not going to hear it. You can take the motion up at district court.”
“But, Your Honor—”
“Is there anything further to come before the court?” Howard asked, looking around the courtroom. “If not, we’ll be in recess.” He pounded his gavel and left the courtroom.
The crowd filed out, abuzz with discussion regarding the day’s events. After his client left with court security, Sam sat alone at the defense table, reviewing in his mind the judge’s various rulings. He’d told Tommy he’d see him tonight and explain the events more fully, but right now he needed a drink.
31
“The preliminary hearing went well,” Ann began. “Got him bound over—”
“Any idiot could do that,” Daniels said, looking through a cabinet. “Shit! Where are those little glasses?”
“We can’t have this talk, you know,” she said.
“What do you mean?”
“I mean any communication between us about the case is a violation of ethics rules. You know that.”
“Seriously? You want to lecture me about ethics?” Daniels opened his desk drawer and rummaged around. “I thought I had a couple of those little airplane bottles in here. You want a drink?”
“Your Honor, I’m uncomfortable with this. The more time I spend in your chambers, the more likely it is that people are going to talk,” Ann said, shaking her head to decline the offered bottle in the judge’s hand. “I just don’t think it is very smart.”
“And I don’t give a shit what you think. You need to do what you are told. I thought I made that clear the last time we had this little discussion.”
“I just—”
“Ann, you don't understand, do you? You think it’s an accident that you got this job? That you were assigned to prosecute this case because of the great work you have done?” Daniels paused to take a swig. “Because if you do, let me make something clear: you are trying this case because you are the best of a lousy bunch of prosecutors. That’s it. Do you understand?”
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