Misjudged

by James Chandler

  “City and state will be fine.”

  “I live right here in Custer, Wyoming.”

  “Are you employed?”

  “I am.”

  “What is your occupation?”

  “I am a physician.”

  “Do you have a specialty?”

  “I am a pathologist, and within that specialty I am further certified as a forensic pathologist.”

  “So, could you tell the jurors what you do as a forensic pathologist?”

  “Certainly. Pathology is a large field of medicine and is divided into two major subfields: forensic pathology and clinical pathology. So I am often involved in clarifying medical or scientific questions that come up in the courtroom, to include the investigation of sudden or unexpected death.”

  “Can you give the jury an idea of your medical education?”

  “Certainly. I grew up in Cody, Wyoming, and attended public schools there. I did my undergraduate work at the University of Wyoming, graduating with a degree in microbiology. After graduation, I attended the University of Washington School of Medicine, graduating with a doctor of medicine degree. Then I did a five-year residency in pathology at the Hennepin County Medical Center and surrounding hospitals and labs in the Minneapolis area.”

  “Are you board certified?”

  “I am board certified in the sub-specialties of clinical, anatomic, and forensic pathology.”

  “Do you work at present as a physician?”

  “I do. I am a pathologist with Custer County Health and I am the appointed Custer County Medical Examiner.”

  “What is the medical examiner?”

  “The medical examiner is the physician assigned to the coroner’s office. The coroner is an elected position and does not have to be a licensed physician. The medical examiner heads the office that is in charge of investigating the two major types of death investigations: non-natural deaths—the accidents, suicides, and homicides that take place in a community every day—and sudden unexpected deaths—deaths where no doctor was in attendance to sign a death certificate. We investigate those cases.”

  “We?”

  “Well, generally, me. I can ask for assistance from the State Department of Health if I need it.”

  “Do you perform autopsies?”

  “Routinely, yes.”

  I want to go back to last November—the early part of the month,” Ann said. “Were you asked to perform an autopsy on one C. Emily Smith?”

  “No.”

  “You weren’t?”

  “Of course not,” Laws said. “As I just explained, the decision to perform an autopsy is well within the purview of my responsibilities. No one asked me.”

  Sam smiled to himself. Typical doctor.

  “In any event, you performed an autopsy on Ms. Smith during the first week in November?”

  “I did.”

  “How is an autopsy conducted?”

  The doctor embarked on a lengthy explanation of the procedure he generally followed. From time to time Ann would interrupt the monologue long enough to ask a clarifying question, whereupon the doctor would explain in excruciating detail. As a result, the direct examination took the better part of the morning. Sam was losing patience when Ann finally zeroed in on what was important. “What of significance did you find upon your initial examination of Ms. Smith?”

  “The body was well-preserved, deterioration was minimal. In examination the most immediate observation was an enormous laceration of the throat and neck.”

  “What portion of the neck?”

  “Well, really, almost ear to ear,” the doctor replied, gesturing as he did so.

  “Did you have X-rays done?”

  “I did.”

  “What, if anything, did they reveal?”

  “The X-rays revealed a metal object in the neck area. I later removed the object, which I believe to be a shard of metal from a knife of some sort.”

  “Your Honor, may I approach the witness?”

  “You may.”

  “I’m handing the witness what I’ve marked as Exhibit 14,” Ann said.

  “Your Honor, the defendant will stipulate to foundation, relevance, and to admission of Exhibit 14,” Sam said. Juror 465 was looking at him approvingly.

  “Exhibit 14 is received,” Daniels said.

  Ann continued. “Doctor, looking at Exhibit 14. What is it?”

  “This is the X-ray I ordered of the decedent’s upper torso, showing the bones of the neck and skull. On the right side of the X-ray is a white, kind of triangular-shaped area. That’s where I later extracted what I believe to be a piece of a knife.”

  “And why do you believe it to be part of a knife?”

  “Well, I’ve seen knives, it looks like part of a knife, and the cops told me later—”

  “Objection. Hearsay,” Sam said.

  “Sustained,” Judge Daniels said. Sam noted the doctor’s irritation.

  “This portion of a knife,” Ann began, looking at the jury. “It would have been located where on Emily’s body?”

  “Right about here.” The doctor touched his own throat. “On what she would have deemed her left side.”

  “Did you remove the shard?”

  “Yes, I did.”

  “What did you do with it?”

  “I gave it to Punch Polson.”

  “Is that Detective Kenneth Polson of the Custer Police Department?”

  “Yes. He’s sitting right next to you.”

  Ann ignored the insult and jury’s laughter. “And after removing the shard and giving it to Detective Polson, what did you do?”

  “I completed the autopsy; took samples, weighed the organs, and the like.”

  “And following the autopsy, did you reach a conclusion as to the cause of death?”

  “I did.”

  “What, in your opinion, was the cause of Ms. Smith’s death?”

  “Exsanguination as the result of the laceration to her neck,” the doctor responded. Then, seeing Ann’s reaction, he looked to the jury and explained, “She bled to death after having her throat slashed.”

  “No further questions, Your Honor,” Ann said.

  “Mr. Johnstone,” the judge began as Sam rose for cross-examination. “How long do you suppose your cross-examination will take? I’d like to see that these good people are able to enjoy lunch.”

  The judge’s question was entirely inappropriate but had the intended effect. The jurors were looking at Sam expectantly. He had a stark, unsatisfactory choice: he could either rush through his cross-examination to meet the jurors’ judicially-induced expectation, he could risk alienating them by properly doing his job, or he could ask the judge to take a recess before commencing his cross-examination, thereby allowing the doctor’s testimony to ferment unchallenged in the jurors’ minds.

  “Counsel, we’re awaiting a response?” Daniels said, clearly expecting Sam to request to commence cross-examination after lunch.

  “Your Honor, I think my cross-examination will take no more than five to ten minutes,” Sam ventured.

  “Well, then, make it five,” Daniels snapped. “Please begin.”

  “Good morning, Doctor,” Sam said.

  “Good morning.”

  “You’re not an expert on knives, are you?”

  “I am not,” the doctor admitted.

  “So, you cannot say for certain that the piece of metal you extracted from the decedent’s body came from a knife, can you?”

  “I cannot.”

  “Did you estimate the time of death?”

  “I would say she died about forty-eight hours before I saw her, so any time between 11:00 p.m. on the 31st and 4:00 a.m. on the 1st.”

  “And did she die in her home?”

  “Are you asking if she had been moved?”

  “Yes.”

  “Well, not my area of expertise, but given the blood in the immediate vicinity, I think she sustained the injury and died within several feet of where she was found.”

&n
bsp; “Was there any alcohol in her system?”

  “Yes.”

  “How much?”

  “Objection, Your Honor,” Ann said. “Relevance.”

  “What is the relevance, Mr. Johnstone?” Daniels asked.

  “Your Honor, the decedent’s actions immediately prior to her death are relevant to how she died. My client has the right to inquire—”

  “Overruled. You may answer,” Daniels said to the doctor.

  “Yes. She had a blood alcohol content of approximately .10.”

  “She was legally drunk?”

  “Well, she was presumptively too intoxicated to safely drive, if I understand the law.”

  “Thank you, Doctor.” Sam turned from the podium and appeared to be heading to the defendant’s table when he stopped, swung around, and returned to the podium. “Did your investigation reveal the presence of any drugs?”

  “Objection, Your Honor!” Ann said. “Again, what is the relevance?”

  “Mr. Johnstone?”

  “Same response, Judge,” Sam said. “My client—”

  “You may answer,” the judge said, surprising Sam.

  “Yes. Her blood showed the presence of tetrahydrocannabinol. That’s THC, the intoxicating element in marijuana.”

  “Can you surmise as to how recently she had consumed it?”

  “The state lab estimated within twelve hours of her death.”

  “Did you examine Ms. Smith’s vagina?”

  “During the autopsy, yes,” the doctor replied, to courtroom titters.

  “Was there any evidence that she had been sexually assaulted?”

  “No.”

  “Had she had sex before she died?”

  “Yes.”

  “How do you know?”

  “There was seminal fluid in and on her.”

  “Do you know whom she had sex with?”

  “No. Not my area of concern.”

  “Can you say whether it was one or more men?”

  “Objection! Your Honor, the defendant is attempting to—”

  “Sustained,” Judge Daniels said. “Move along, counsel.”

  “Your Honor, may we approach?” Sam asked.

  When Sam and Ann had positioned themselves in front of the judge, Sam began, “Judge, I’d like to make an offer of proof.” In order for an objection to be taken seriously by an appellate court, an attorney generally had to offer proof that the evidence, if admitted, was material and could affect the outcome. Otherwise, even if the judge did commit an error in making his ruling, it would be examined under a “plain error” standard, meaning it was unlikely to be overturned on appeal.

  “No. Denied,” Judge Daniels replied. “Move along, counsel.” Sam stared hard at Daniels, who had no authority to deny his making an offer of proof. On the other hand, there was a record of the denial, and if the jury was paying attention, they now knew that Emily Smith was drunk, stoned, and having sex with someone before she died—and that’s what Sam was trying to get in front of them to begin with. Looking at Juror 465, Sam withdrew.

  “One final question, Doctor,” Sam began when he got to the podium.

  “Yes?” Laws looked at Sam expectantly.

  “From your standpoint as a medical doctor, it’s true, isn’t it, that Ms. Smith was killed at the hands of an unknown killer using an unknown weapon.”

  The doctor sat perfectly still, clearly thinking. “Yes, that’s true,” he finally answered.

  “Nothing further,” Sam said, and sat down.

  Daniels scowled at Ann. “Redirect?”

  “No further questions,” Ann said, content with the fact that she had gotten the date, approximate time, and manner of death into evidence.

  “Thank you for your consideration, counsel. Doctor, you may step down,” Daniels said. “We’ll break for lunch.”

  41

  The next couple of days were painful for Sam. He kept an eye on the jurors, hoping to see them driven to boredom by Ann, who appeared determined to call and inquire of anyone who had even tertiary involvement in the investigation. Sam had objected twice, arguing that witnesses were cumulative. Each time he had been rebuffed by Daniels; each time Juror 465 beamed at Daniels approvingly, then shot Sam the fisheye. As he watched helplessly, a string of increasingly well-trained and good-looking men and women took the stand and earnestly recounted their part in the investigation that culminated in Tommy’s arrest. They spoke at great length and in precise detail about measurements taken, distances from here to there, the condition of the body and the activity of neighbors, presenting a picture of a comprehensive and flawlessly executed investigation, all while Sam drank water and tried to feign indifference.

  Ann was thorough, prepared, and clearly intending to get every bit of inculpatory evidence in the record. Sam understood, but wanted it in quickly and with as little discussion as possible, so where he believed it to be to Tommy’s advantage, he attempted to cooperate by stipulating to the admission of exhibits and by asking few but pointed questions on cross-examination. While that tactic no doubt pleased Judge Daniels and Juror 465, it was concerning to Tommy. “Shouldn’t you be doing something?” he asked.

  “Not a lot to do,” Sam whispered. “This is all routine stuff. We need to save our energy for the important fights.”

  “But they’re burying me,” Tommy insisted.

  “I know it seems that way.” Sam nodded. “But not a lot I can do right now.”

  “Sam, you have to eat,” Veronica had said over the phone. They hadn’t seen each other in days. Between Sam’s preparations and her own schedule, they’d each been overcome by events of late. She’d finally talked him into a late dinner. She was having a glass of chardonnay. He was drinking sparkling water.

  “I guess I’ve never seen you drink water,” she observed. “Is this how you react under stress?”

  “For most of my life, stress resulted in a lot of booze.”

  “But now?”

  “Now, a guy’s life is in my hands. I’m trying not to do anything I’ll regret.”

  “Not true.”

  “How so?”

  “Tommy’s life will be in the jury’s hands. It’s not your job to win or lose. It’s only your job to tell his story, and to challenge the State’s witnesses and evidence,” she said.

  “Not bad,” Sam observed. “Civics class?”

  “Professor Sam Johnstone,” she giggled. He liked the way she laughed when she’d had a glass of wine. That seemed healthy. “Besides, who do you think types up the judge’s advisories to the jury?”

  Sam smiled and pushed a roasted potato around his plate. He’d been skipping meals for the better part of two weeks, too busy to cook or sit down for a proper meal. But he could hardly bring himself to eat anything even now. He looked at the remaining half of the ribeye he’d ordered with little enthusiasm, then at Veronica.

  “Sam, what is it?” she asked.

  “It’s just the trial,” he said, taking a sip of the water and making a wry face as he swallowed. He had to stay sober. “I don’t like the way it’s started. I just need one juror to go Tommy’s way—just one juror who will question the State’s investigation and vote accordingly. But I don’t see that guy or gal. I—”

  “Sam, you can’t take all this on. You can’t make the jurors see what they cannot or will not see.”

  “That’s my job.”

  “That’s the ideal. Your job is less straightforward than that. You can’t take this on. You didn’t do it.”

  “Neither did Tommy.”

  “You don’t know that, Sam.”

  “I know it.”

  “You can’t know it. The only people who know what happened are Emily and whoever killed her. The rest of us are just guessing—looking for the truth.”

  “Right,” he said.

  “How is the counseling going?”

  “All right. I like the guy,” Sam said. “I can’t see him during the trial, of course, but he gave me his phone number for emerg
encies and a book that’s helping me understand why I think the way I do.”

  “Good to hear.”

  “Yeah. He’s been some places, seen some things. Not what I expected.”

  “I’ll bet he’d say the same about you.”

  “Probably.” Sam smiled. “He’s got me doing some mindfulness exercises.”

  “Are they working?”

  “No.”

  “How do you know?”

  “Because I don’t feel any different.”

  “Sam.” Veronica placed her hand on his. “These things take time.”

  “I don’t have time. I can’t have another freak-out in court.”

  She looked at the circles under his eyes and shook her head. “Well, you haven’t had any problems yet, have you?”

  “Not yet.”

  “What are you doing tonight?”

  “I’ve got to get ready to cross one of their experts. Then I’m just going to try and relax.”

  “Why don’t I come over and see if I can help you?”

  “What do you know about cross-examination?” he asked, smiling.

  42

  “Your Honor, the State calls Cale Pleasance,” Ann announced in a strong, steady voice. She was gaining confidence with every witness, Sam noted.

  The deputies retrieved Pleasance and brought him before the judge while the jurors watched. He was sworn and took the stand. After obtaining identifying information from him, Ann asked about his occupation.

  “I’m a fingerprint examiner for Custer County.”

  “And how long have you been so employed?”

  “Oh, five, maybe six years.”

  “And have you received any specialized training in connection with your employment?”

  “Your Honor, the defense will stipulate to Mr. Pleasance’s expert qualifications,” Sam offered. He wasn’t being magnanimous; this was another effort to blunt the effectiveness of the coming testimony, and Daniels knew it.

  “Thank you, counsel,” Daniels replied. “Mr. Pleasance, you may answer.”

  “Yes. I was originally hired back east as a lab tech, then after a couple of years I was trained in Virginia at the FBI Academy, spent three years with the FBI at one of their labs, and then applied for and was hired by the State of Wyoming’s Division of Criminal Investigation. A few years after that I transferred here to Custer. My wife’s from here.”