Open and Shut

by David Rosenfelt

  “I think not. And remember, there was no shock or excitement connected with this. You were paying attention, but nobody had a knife, no one was bleeding to death in front of you, and you weren't afraid for your lives. Do you think that would have made your job easier, or harder?”

  A pause for effect. “I'd guess a lot harder.”

  Many of the jurors are nodding along with me.

  “Tough, huh? And just think, you were all …”

  Again I beat a drumroll on the jury railing.

  “… eyewitnesses.”

  I don't go on much longer, mainly because I don't want to screw up a good thing. Also, Wallace hasn't gotten deeply into the specifics of the evidence to be presented, so I don't have to go into how I will refute it. If I will refute it.

  When I walk back to the defense table and sit down, Willie looks positively giddy. I'm afraid he's going to give me a high five and a chest bump, but he manages to stifle the impulse. I'm going to have to talk to him about looking impassive. My guess, however, is that Lee Strasberg couldn't teach Willie to look impassive.

  Hatchet decides that it's too late in the day to start calling witnesses, so he adjourns. As we are filling our briefcases, with the jury already dismissed for the day, Wallace comes up to me, a slight smile on his face.

  “Upper right,” he says.

  “Excuse me?”

  He points to the board with the six pictures on it. “The guy who was in the courtroom is the photo in the upper right hand corner.”

  The truth is, I have no idea which is the correct picture. I look to Kevin, who has heard Wallace and who obviously knows which one his cousin is. Kevin nods. Wallace is correct.

  I smile. “Lucky for me you're not on the jury.”

  He returns the smile. “You got that right.”

  MY WAY OF WORKINGWHILE A TRIAL IS in progress is to have nightly meetings with the rest of the defense team, so that we can prepare for the next day's court session. I sometimes have these sessions at my house, but in deference to the Nicole/Laurie situation, we're meeting at the office.

  I have to assume that I am still in danger; the people that broke into our house and who attacked me in the office may well strike again, perhaps with more deadly results. I probably should get a bodyguard, but the stubborn side of me is resisting it.

  The ironic thing about the threats is that I'm not sure what they are warning me against. It might well be the Miller case, except for the fact that it is illogical to think a lawyer would just give up a case in mid-trial, especially since he would just be replaced by another lawyer.

  Besides, if I were someone looking to get Willie reconvicted, I would want this to move along as fast as possible. The more delay, the more attention that is brought to the trial, the more chance to find exculpatory evidence.

  The other possibility, of course, is the photograph. I haven't exactly been relentless in hunting this down; all we have done is ask Markham and Brownfield if they are in the picture. If that is enough to trigger this violent reaction, the secret behind the picture must truly be incendiary. Then why is the picture so bland?

  I'm still not positive that there's a connection between the picture and the Miller case; but I feel in my gut that there is. If I'm right, it means I have to step up my investigation into the picture before it's too late and Willie is back on death row. And if I do that, I'll likely be in more danger and more in need of a bodyguard. And round and round, “Like the circles that you find, in the windmills of your mind.”

  The meeting is short and to the point. Kevin and Laurie give me their impressions of the opening arguments (mostly positive). Kevin correctly believes that we have an uphill struggle ahead of us, and that we should be shooting for a hung jury. Therefore, with Marjorie's help he has isolated two jurors who are most likely to be on our side. One, a twenty-four-year-old African-American woman, is a college teaching assistant. The other, a thirty-four-year-old Hispanic, is an account executive at a direct mail advertising agency. Kevin feels that whenever possible I should speak directly to them, and I agree that, within limits, I'll do it.

  Laurie tells me that she has located Betty Anthony, the widow of Mike Anthony, the newspaperman who we believe is the fourth person in the photograph. I had requested that she not make contact with Betty, since I want to do that myself. All I have to do is find the time.

  The next morning, Wallace calls his first witness, Detective Steven Prentice. The prosecution always builds their case from the bottom up, establishing all the facts in a way that is incontrovertible. Prentice was a young patrolman at the time of the murder, and he was the first one to respond to the 911 call that Edward made.

  “Can you describe the scene when you first arrived?” asks Wallace.

  Prentice nods. “Ms. McGregor's body was lying facedown in the alley behind the bar. There was a significant amount of blood surrounding her.”

  Wallace introduces some horrific pictures of Denise and the murder scene to buttress what Prentice had said. “And what was the first thing that you did?”

  “I cordoned off the area. There were people around, curiosity seekers, and I wanted to make sure that they did not tamper with anything before the detectives arrived.”

  “Did you see a murder weapon anywhere?”

  Prentice shakes his head. “No.”

  “Was there anyone present that you considered a suspect?”

  “No, but there was an eyewitness there. She was pretty shaken up. I put her in a room upstairs from the bar to wait for the detectives, so that she could give them a statement.”

  “How long did it take for the first detective to arrive?” Wallace asks.

  “About ten minutes.”

  “And who was that?”

  “Detective Pete Stanton.”

  Wallace has him explain that once Pete showed up, his main function was over. Prentice obviously did his job professionally and by the book, and there is a limited amount I'll be able to get from him on cross-examination. I start by showing him police photographs taken of the rest of the alley on the night of the murder.

  “Detective Prentice, are you married?”

  “Yes, I am.”

  “Would you be nervous if your wife told you she was going to hang out in this particular alley tonight at around one A.M.?”

  “I would advise her not to,” he says.

  “Why is that? Do you consider it dangerous?”

  He tries to evade the question. “There are a lot of places that are not very safe at night.”

  “Thank you for that. Is this one of those places?”

  “Yes, I would say so.”

  “Was there a homeless problem in the area at the time?”

  “I believe there was, yes.”

  “In your experience, is one of the reasons for the proliferation of the homeless mental illness?”

  “Objection. Mental illness is not an area of the officer's expertise.”

  I reply, “I am simply asking the witness to speak to his beliefs based on his experience.”

  “Overruled. You may answer.”

  “I believe mental illness is one of the causes of homeless-ness, yes,” says Prentice. “There are others as well.”

  “Was the back door to the bar locked?”

  “No. The bartender said it was always left open when the bar was open.”

  “So anyone walking through the alley could have entered the bar through that back door?”

  “Yes, I suppose so.”

  “And if they did, would the first inside door they come to be the ladies’ room where Denise McGregor was?”

  “There is a storage closet first and then the ladies’ room.”

  “So there was nothing about Willie Miller's job which gave him a unique access to that room?”

  Wallace objects. “It is beyond the witness's direct knowledge to make conclusions about the defendant's unique access.” Hatchet sustains the objection.

  “But anyone could have entered?”


  “Yes.”

  “Would you say the alley at the time you arrived was clean?”

  “Well, there was a great deal of blood.”

  “I understand, but I mean in addition to the evidence of the murder. Did the alley look as if it had been scrubbed recently?”

  “No, I wouldn't say so.”

  “So the scene was already dirty. Trash, food from the restaurants, animal waste?”

  “Yes.”

  “Detective Prentice, you said the first thing you did was cordon off the scene. Why did you do that?”

  “To prevent people from tromping around on the evidence and contaminating it. To preserve the evidence.”

  “Were you successful at that?”

  “Yes, I believe that I was.”

  “Did any people enter that specific area?”

  “Not after I was there. I made sure everyone stayed clear of the scene, so that the forensics people could do their work.”

  “I'm not an expert on this kind of thing, so perhaps you can tell me … is there a law of contamination that says it can only take place after the police arrive?”

  “Of course not,” he says. “Contamination can take place at any time.”

  “Well, was anybody on the scene before you arrived?”

  “Yes.”

  I feign surprise. “Who?”

  “Well, Edward Markham, his father—”

  I interrupt. “Edward Markham's father was there? Was this some kind of a family outing?”

  “No, he had called his father as well as the police.”

  Under prodding, Prentice is forced to admit that there were also a group of people from the bar that had been on the scene.

  “So there were at least a half-dozen people walking around that alley before you got there?” I ask.

  “Yes,” he concedes.

  “Just hanging out, contaminating away?”

  He won't concede that, but he doesn't have to. I've gotten the idea in the jurors’ minds, and that's all I was going to manage.

  Wallace next calls the on-scene technician who supervised the gathering of the blood and other evidence. She comes off as thoroughly professional and confident that she had done her job well. The most I can get her to admit is that techniques have improved since then, and that DNA was not on her mind when she was doing the collecting. She leaves the stand unscathed.

  The next to escape any damage from my cross-examination is Donnie, the bartender. Wallace leads him through his story, and his recollections remain crystal clear. I make little effort to attack him, since his information is factual, but notterribly harmful to Willie. But I need to make some points, so that the jury will remember that we are a force to be reckoned with.

  “How long did you work with Willie Miller?”

  “About six months.”

  “Was he a reliable employee?”

  “He was okay. As long as he did his job, we didn't have too much to do with each other.”

  “So to your knowledge he was never reprimanded? Never threatened with termination?”

  “No.”

  “Did you serve liquor at this establishment?”

  Donnie laughs. “Of course. It was a bar.”

  “Did Willie Miller have access to this liquor? Was it within easy reach for him?”

  “Well, sure. I mean, it wasn't that big a place.”

  “Did you ever see him drunk before that night?”

  “No.” He quickly qualifies it. “Employees aren't allowed to drink on the job.”

  “That's a rule?” I ask.

  “Yes.”

  “So Mr. Miller followed that rule? He did not drink on the job?”

  “If he did, I don't remember it.”

  “Would he have been reprimanded if he were caught drinking on the job?”

  “Sure.”

  I switch the focus. “When Edward Markham told you what happened, what did you do?”

  “I went out to the back, and I saw the … young woman's body.” Donnie says “young woman” with a wary eye on Laurie. This is a man who has a strong testicle-preservation instinct. “He said he had called the cops, so I just waited with him.”

  “When the police came, did you tell them you thought Willie might have done it? I'm talking about before the eyewitness said what she had seen.”

  “No.”

  “So you had no reason to suspect that he would have committed this murder?”

  “No.”

  I let him go and turn the momentum back to Wallace. He is doing what he is supposed to do: getting the witnesses necessary to build his case on and off quickly. Each represents a building block for the prosecution, and by the time they are finished they expect to have a house that cannot be blown over by the windbag defense attorney, me.

  Next up is Edward Markham, who clearly did not spend his recent trip to Africa on a hunger strike to protest the granting of a new trial to his girlfriend's accused killer. He is at least forty pounds heavier than pictures show him to have been at the time of the murder, and though he is only in his thirties, he's already captured the look of an aging playboy.

  “Had you and Denise McGregor been dating long?” asks Wallace.

  “About three months. We were pretty intense.”

  “Any plans for marriage?”

  “I certainly had some,” says Edward. He grins. “But I hadn't gotten up the nerve to ask her.”

  Wallace brings him to the night of the murder, and Denise McGregor's fateful trip to the rest room.

  “How long was she gone before you started to worry?”

  Edward appears to consider this, as if it is the first time he's been asked this question, and he's trying to comb through his memory. I would bet twenty-two million dollars he and Wallace rehearsed every word of this testimony at least twice.

  “I'd say about ten minutes or so. And even then I wasn't that worried. I mean, you don't think about something like this. But I thought there might be something wrong.”

  “So you got up to check on her?”

  “Yes,” says Edward. “I went to the rest room door, and it was ajar, you know, not fully closed. I didn't know if I should go inside, or maybe find another woman to go in and check up on her. I thought she might be sick or something.”

  “What did you do?”

  “I called into the room a few times, just yelling ‘Denise,’ but there was no answer. So I pushed the door open a little more and looked in.”

  “What did you find?”

  “Well, at first nothing. I looked around, and she wasn't there, so I started to go back to the table. I really didn't know what to think. Then I saw the blood.”

  “Blood?”

  “It sure looked like it, and it was still wet. It was splattered on the floor near the phone. And the phone was hanging off the hook.” Edward is doing a good job, he's been rehearsed well.

  “What did you do next?” asks Wallace.

  “I got real worried … panicky … and I started looking around. I went out into the hall, and I saw that the exit to the alley was right there. So I went out there, and … and … I saw her.”

  Edward acts as if he is trying to keep his emotions intact as he relives what happened. “It was the most horrible moment of my life.”

  Wallace gives him a few seconds to compose himself; I can use the time to get over my nausea.

  “What happened next?”

  “Well, I went to her … I touched her to see if she was breathing, but she wasn't. So I went back into the bar and called 911, and then I called my father. And then I told the bartender, and we just waited for everyone to get there.”

  Wallace turns Edward over to me. I don't want to do too much with him, because I'm going to call him during the defense case. I just want to put some doubts in the jury's mind, and maybe take away this image of Edward as the grieving near-widower.

  I start off on his relationship with Denise.

  “Mr. Markham, what is Denise McGregor's father's first name?”

>   He's surprised by the question. “I … I don't remember.”

  “How about her mother's name?”

  “I don't know … it's been a long time. I don't think her parents lived near here.”

  “Have you seen them since the funeral?”

  “No, I don't believe so.”

  “Did you see them at the funeral?”

  “No, I was very upset, sedated … I've felt guilty ever since about not going, but I was in no condition—”

  “You didn't go to Denise McGregor's funeral?” I'm so shocked, you could knock me over with a legal brief.

  “No, I just told you, I—”

  I cut him off. “Do you know what Denise was working on at the time of her death?”

  “No. I know it was a story.”

  “Yes, Mr. Markham, that's what she wrote. Stories.” My voice is dripping with disdain. “But you don't know which one she was working on?”

  “No.”

  “Do you have a favorite story that she ever wrote?”

  “Not really. She was a terrific writer. All of her work was great, but she didn't talk about it very much.”

  “Tell us about any one of her stories.”

  Edward looks stricken, so Wallace objects. “This is not going anywhere remotely relevant.”

  “Your Honor,” I respond, “Mr. Wallace took the witness through a soap opera about how close he and the victim were, how he was about to propose. I believe he referred to their relationship as intense. If that was relevant, certainly my demonstrating that it is nonsense is equally relevant.”

  “We were close,” insists Edward. “No matter how you try to twist things around.”

  Hatchet admonishes Edward. “The witness will only speak to answer questions posed by the attorneys.”

  Edward is chastened. “Yes, sir. Sorry.”

  “Let's move it along, Mr. Carpenter,” says Hatchet.

  “Yes, Your Honor.” I have a little more fun with this area of questioning, and then move on to the night of the murder.

  “Was there a great deal of blood near her body when you found her?”

  “Yes, it was everywhere.”

  “And when you touched her skin, was it cold?”

  “No, not really. But I could tell it was terrible … that she was dead. She wasn't breathing.”