Daniels took another sip of scotch. Asking another question would mean no turning back. On the other hand, Punch wouldn’t be here if the matter wasn’t critical. Punch was a good cop. Daniels made his decision.
“What is it you think I can do, Detective?”
“I have reason to believe that certain information possessed by the State—information that is potentially exculpatory—has not been turned over to Olsen and his attorney,” Punch said. There. It was done. The judge had the information now.
“Again? We’ve already dealt with the nondisclosure of a fingerprint,” Daniels mused.
“Right, Judge.”
“More of the same or new information?”
“New.”
“And you’re not a licensed member of the bar.” Daniels knocked the ashes off his cigar, sat back, and took a deep puff.
“No.”
“What makes you think it hasn’t been passed on?”
“Because if Sam Johnstone had seen the information, he would be standing on your desk right now.”
“How do you know he is not waiting until Olsen’s case-in-chief to bring it up—maybe for tactical reasons?”
“I guess I don’t,” Punch allowed. “Not sure he could. No foundation, I think you’d call it.”
Daniels smiled. “You’ve seen hundreds of trials, haven’t you?”
“I have.”
“And in your experience, has the prosecution generally turned this kind of information over?”
“Without exception.”
“And this information, Detective—you believe it to be exculpatory?”
“Absolutely.”
“What is the nature of the evidence?” Daniels asked, and then, clarifying, followed up. “Would you term it documentary? Video? Testimonial?”
“Not sure what category, sir. It’s, uh, more in the nature of . . . forensic evidence.”
Daniels was very still. Punch met his stare. “So, like . . .?”
“DNA.”
Daniels had it now. No turning back. “Well, lots of DNA at a young woman’s house seems natural. I would think—”
“The DNA from some of the semen on the decedent’s sheets matches a set of fingerprints found in the decedent’s home.”
Daniels sat quietly. He reached forward and retrieved his tumbler, finishing the drink. “How do you know?”
Punch explained the process he’d used. “Good attorney could explain that away,” Daniels mused. “Likely not admissible. No chain of custody. You’re no expert.”
“Judge—”
“Ann might be able to explain away the decision to keep the evidence out of the trial.”
“Maybe,” Punch allowed. “Look, I’m no lawyer, but if the donor of DNA found on the dead girl’s sheets being someone other than the defendant isn’t exculpatory, I don’t know what could meet the definition.”
“You’ve got an evidentiary issue, Detective,” Daniels said. “Who knows about this?”
“The match?”
“Yeah. The match.”
“You, me, Ann—plus anyone she’s told.”
“And no one knows you’re here now?”
“No, sir,” Punch answered. “Are you looking for plausible deniability?”
“Don’t insult me, Detective,” Daniels snapped.
“Fair enough. You want to know the really shitty part?”
Daniels stood and began pacing his chambers. He went into his private restroom, retrieved a tissue, and loudly blew his nose. Tossing the tissue near the wastebasket next to his desk, he resumed pacing. After a moment, he turned to Punch. “I doubt it, but go ahead. What is it?”
“You sure?”
“Of course I’m sure, Detective! What is it?”
“It’s Howard’s print that matches the semen.”
Daniels sat back down and spoke quietly. “Are you absolutely certain?” Then, recognizing the inanity of the question, he finished his thought. “Of course you are . . . So you told Ann all of this—”
“I did.”
“And you think she’s refusing to turn it over?”
“She told me she wouldn’t disclose, so I’m assuming she hasn’t. Either that, or Johnstone is the worst attorney ever,” Punch concluded.
“Or playing a tactical hand we cannot discern,” Daniels said.
“I don’t think she passed the information, sir,” Punch said.
“But you don’t know for sure, Detective—do you?”
“No.”
“And you don’t know that she won’t turn it over, do you?”
“No.” Punch stared at Daniels, who was standing again. “What are you going to do?”
“Right now, I’m going to finish that bottle.”
“You know what I mean, Your Honor.”
“I do.”
“Do you have a plan?”
“I think so.”
“What are you going to do, sir?”
“Detective, you’ve accomplished what you set out to do,” Daniels said, filling the tumbler once again. “Your conscience should be clear. Allow me to handle this from here on out.”
“You’ve got to let Sam know!”
“I suppose I do,” Daniels answered. “But not right now.”
“Will you do it tomorrow?”
“No.”
“But the trial’s almost over!”
“Mercifully.”
“And Judge Howard did the preliminary examination!”
“He did.”
“And that was a conflict!”
“We’ve already dealt with that.” Daniels took a long pull from the glass.
“And now we know he’d been sleeping with the deceased!”
“Regrettably.” Daniels wiped his mouth with the back of his hand.
“You have to do something.”
“I will.”
“What?”
“Detective Polson, I told you I’d handle it, and I will.” Daniels stood and looked out the window of his chambers. The sun was setting. “Now, please leave me to it.”
“Sir?”
“Yes, Detective?”
“You have to know my next step will be the Wyoming Supreme Court and the newspaper.”
“Close the door behind you, and please don’t threaten me,” Daniels said. “I’ll handle this; you have my word. Just give me some time.”
48
“Have you decided?” Veronica pushed a pea around her plate.
“I think so,” Sam sad, trying to sip the single malt. “I think I’ve got a plan. It’s not necessarily a good plan, but it’s a plan.”
“You are going to put him on, aren’t you?”
“I think so.”
“Dangerous, you said.”
“Absolutely, but I’ve been watching the jury, and I’m thinking the only way he walks is if he personally can convince the jury that he didn’t do it.”
“Ann will be hard on him.”
“She should be. That’s her job. And I’ve told him to expect that.”
“But they’re never ready, are they?”
“Nope.”
“Can you limit the scope of your direct, and try to limit Ann’s cross-examination that way?”
“I can try, but Tommy’s got so much bottled up inside I’m not sure it’s going to matter much what I ask. I think he’ll say what he wants to say in any event.”
“Yeesh.”
“Yeah. It’s gonna be ugly.”
“Have you talked with your counselor?” she asked, looking at his tumbler.
Sam looked at her and then sipped his scotch. “I have.”
“And?”
“And I’m doing a lot of meditating. Look at me.” He spread his arms wide. “It’s the new me. I’m a smiling cloud.”
They were laughing when his phone rang. The number was unfamiliar, but Sam picked it up anyway. “This is Russ Johnson. That’s kinda funny, Johnson calling Johnstone—huh?”
“It’s a riot.” Sam shrugged at Veronica, who was looking at hi
m curiously.
“Yeah, so I’m a technician with Stillman Forensics in Denver. You wanted us to look at some prints for you?”
Sam sat up in his chair. “Right! What do you have?”
“Well, what we have is a match between a couple of those prints you sent us.”
“Which ones?”
“Well, let me see here,” Johnson said. Sam could hear Johnson clicking his mouse and breathing into the microphone as he searched. “There was a print on a knife or something.”
“Right?”
“Yeah, we found a match.”
“To what?”
“To a print in the house, I guess,” Johnson said.
“I know that!” Sam blurted out, instantly regretting it. “Sorry, under a bit of stress here. Where in the house did you find the match? Was it from the print found on a vase full of flowers?”
“No, it was from a shot glass.”
“Thank you,” Sam said. “I’m gonna need someone here to testify for me.”
“We bill at—”
“I don’t care. I need whoever ran that match to get here as soon as possible. My client will cover all fees, costs, and expenses.”
“There’ll be a premium because of the short notice. Our usual rate—”
“Don’t care,” Sam said. “Just get here. And Mr. Johnson?”
“Yes?”
“Were you able to match that print to anyone in the system?”
“I can’t do that, Mr. Johnstone. You gotta have a law enforcement type do that. Your donor have a record?”
“I think she got busted years ago in New Orleans.”
“Well, there you go. Should be easy.”
“Thanks, see you soon,” Sam said, hanging up.
“What is it?” Veronica asked.
“I might have gotten a break,” he said. “I’ve got to get to my office, make some calls, and start getting some direct testimony drafted.”
“At this time of night?”
“Yeah. Right now,” he said, gathering his coat. “Look. I’ll call you, okay?”
“Okay. Be careful, Sam,” she said to the closed door.
Ann Fulks’s secretary patched his phone call through promptly at eight a.m. “Ann, this is Sam Johnstone. We need to talk.”
“I’m not going to do any deals, counselor,” Ann said, sipping her coffee. “That ship sailed before opening arguments.”
“My expert says the unidentified print on the murder weapon matches one found in the house,” Sam said. Hearing nothing at the other end, he continued. “You guys had a false negative. You got the wrong guy.”
“You got your expert; we’ve got ours,” Ann countered. “The difference is, ours was disclosed. I don’t know jack-shit about any expert of yours.”
“I’m telling you now. Ann, you got the wrong guy. I just need you to do one thing for me.”
“Fat chance. But just out of curiosity, what do you need?”
“Run the prints against someone for me.”
“Why would I run prints for you?”
“Because it is the right thing to do. You’re an officer of the court.”
“I don’t think so.”
“Ann, I’m telling you, I think you’ve got the wrong guy.”
“And I think you are grasping at straws.”
“Please, Ann, you—”
“Thanks for calling, Mr. Johnstone. I’ve got a case to prepare. You might be interested: I’m working on my argument to convince the jury to impose the death penalty.”
“I’m not sure that we should be talking, Mr. Johnstone,” Punch said. “After all, we’re on different sides. Did you talk to Ann?”
“I did, but she’s not interested,” Sam said. “I’m thinking maybe you are different.”
“Why?”
“I think you want to see justice done.”
“I’m looking forward to it, counselor,” Punch said. “To that end, I might attend your client’s execution. If it comes to that, I mean.” He was in his office looking out the window at a particularly attractive redhead walking to her car. “Besides,” Punch continued, “if the match was with Howard, you wouldn’t be calling now. Jury already knows about him, and we’ve got his print. So, the match has to be with that print on the shot glass.”
“That’s good detective work.”
“And so, my smartass lawyer friend, there must not be a match in the system. Because if there was, we’da already found it.”
“Unless there was a mistake. There was one already, when your folks failed to match the prints on the glass and the weapon. Could be someone failed to match a print to someone in the system. It’s called a false negative—remember?”
“Two mistakes on one set of prints?” Punch said. “Come on, counselor, what’re the odds?”
“Astronomical, I admit. But do you want to take that chance? Easier to run the prints and be done with it. Ease your conscience.”
Punch was quiet, thinking. “You got someone you want me to run against?”
“Yeah.”
“Who?”
“Becky Olsen. She should be in the system. Tommy says she got busted in New Orleans years ago.”
Punch again was quiet—this time for even longer. “I keep wondering why I should help you build a defense.”
“I think you have a conscience.”
“You mentioned that. If she’s got a record, why didn’t she pop up before?”
“My guy will testify to the possibility of another mistake.”
“Let me think about it,” Punch said. “If Ann finds out about this, she’ll cut my balls off. Will you send me what you got?”
“I have to; State has asked for discovery. It’s in the judge’s pre-trial order.”
“Under the order, you have to send it to Ann. Send it to me, too. That way, I’ll be sure to get it—but keep it between us, okay? And you know, of course, that if she isn’t in the system, then you’re gonna need a warrant, and to get that I’d have to go through Ann and then through Howard or Daniels, right?”
“You have my word.”
“I’m not agreeing to anything, but I’ll think about it.”
“Ann, you’ve had your face in that computer all night,” her mother said disapprovingly. “Keep that up and you’re gonna go blind.”
“I know, Mom.” It was true enough. She’d been looking at apartments in the Denver area. A place in Cherry Creek looked about right, in part because there was an assisted living facility nearby. Once this trial was over, she’d start looking with a purpose, but for now it was a daydream.
“I worry about you, dear.”
“Why’s that, Mom?”
“Girl your age should have a boyfriend.”
“Mom, I’ve told you before, I’m just not…I’m just not that into men.”
“Goodness gracious. I never heard such a thing. Pretty girl like you, spending time alone.”
“I’m not alone, Mom. I’m here with you.”
“You know what I mean, Annie.”
“I do, Mom,” she replied, then changed the subject. “How about we go get some ice cream?”
“Okay, dear. If you want to haul an old lady around, I guess that’s okay. Maybe we’ll see a nice man you can meet while we’re out.”
“Maybe. Get your coat. It’s still a little chilly this time of year.”
49
Sam was immensely hung over. His head was aching, he was dehydrated, and the three hydrocodone had done nothing to alleviate how he felt. As the courtroom began to fill with spectators, he stared at the nearly empty pages before him. He’d gotten drunker than he wanted or needed to be last night, and his preparation for today was lacking. Maybe it was the pressure of the trial—lots of lawyers overdid it during trial. Maybe it was the futility of it all—just knowing that whatever he said, it wouldn’t be enough, because the judge had already made up his mind.
Or maybe he was just a crazy, drunk vet.
The spectators were buzzing among themsel
ves. While they didn’t know exactly what would happen today, most understood that today’s events would be significant. Most were hoping to hear Tommy testify. Others, assuming he’d maintain his right to silence, awaited the closing arguments.
When everyone was ready, Mary Perry came out and informed them that the judge would arrive shortly, and slowly the din died down. Finally, when the judge appeared, the crowd respectfully stood, silent, waiting.
“Good morning, ladies and gentlemen. Be seated. We are back on the record in the matter of State v. Olsen. When last we were here, the State had rested its case-in-chief. Are there matters preliminary before we recall the jury?”
Sam stood. “Your Honor, before the jury is returned, I’d like to make the motion the court anticipated yesterday.”
“Go ahead, Mr. Johnstone, and make it quick.”
“Your Honor, may it please the court,” Sam began, then nodded toward Ann. “Counsel.”
“Counsel,” she replied.
Sam took one last swig of water. “My client moves pursuant to Rule 29 of the Wyoming Rules of Criminal Procedure for judgment of acquittal. Under Wyoming law, Your Honor, judgment of acquittal is proper where the evidence is such that a reasonable juror must have a reasonable doubt as to the existence of any of the elements of the crime.
“In order to prove my client guilty of the crime of murder in the first degree, the State was required to show that on or about October 31, in Custer County, Wyoming, the defendant, purposely and with premeditated malice, killed the decedent, C. Emily Smith—”
“Mr. Johnstone, let’s cut to the chase,” Judge Daniels interposed. “For which elements, in your opinion, has the State failed to meet its burden of proof?”
Sam considered putting an objection on the record but decided against it. Daniels’s one-sided handling of the case would come through on a reading alone. “Your Honor, the defendant asserts the State has failed to demonstrate that my client killed the decedent, or that my client acted both purposefully and with premeditated malice. In fact, we would argue that the best evidence indicates that there must be reasonable doubt: there is one set of unidentified fingerprints on the scene, one set on the murder weapon, and the semen of an unknown male on her sheets. We know there was at least one other man present at or about the time of death.”
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