Open and Shut

by David Rosenfelt

  “It happens.”

  “Apparently so,” I say. “Did this human metal detector touch the knife? Were his own fingerprints found on it?”

  “No. No other prints were found.”

  I seem surprised, although I knew what his answer would be. “So, somebody was browsing through the garbage, saw a knife with blood on it … by the way, would you describe it as very unusual for a steak knife to have blood on it?”

  “Not human blood.”

  “Did this mysterious somebody conduct a DNA test on it while it was still in the garbage?”

  “Objection.”

  “Sustained.”

  “Do you think the average person who spends his evenings going through garbage cans can tell the difference between human blood and steak blood? In the dark?”

  “Objection. The witness couldn't possibly know the extent of other people's knowledge.”

  “Sustained.”

  I've made my point. “But this anonymous person was smart enough not to touch the knife, is that right?”

  “There were no other prints.”

  “So this person wasn't looking to take things from the trash can. He was just making sure that everything was in order. Maybe conducting an inventory?”

  “I don't know what his intentions were.”

  “Does any of this seem unusual to you, Lieutenant?”

  “Unusual, but not impossible.”

  “Did you ever think to question any of it?”

  “I question everything.”

  I've gone as far as I can down this road, so I veer off.

  “Then let me ask you a hypothetical question. Supposing this was a frame-up?”

  “Objection.” It's becoming a steady chorus from Wallace.

  “Overruled.”

  I continue. “Just for argument's sake, let's say it was a frame-up. Let's say that somebody wanted you to arrest Willie Miller. In that context, wouldn't all these ‘unusual’ things make sense?”

  “No.”

  “No?” I'm incredulous. “Is it really no, or is it just that if this turned out to be a frame-up, then it would mean that your entire investigation has been an incompetent joke? That you helped cause Willie Miller to spend seven years of his life in prison for a crime he didn't commit?”

  “Objection.”

  “Sustained. Jury will disregard. Mr. Carpenter, if I hear a speech like that again, you will be held in contempt of court, a crime which you did commit.”

  I apologize and plow on, not wanting to lose momentum. “Isn't it true that you found Willie Miller and said case closed, let's get on to the next one?”

  “No,” he says firmly, “it is not.”

  “Isn't it true you saw all these clues laid out in front of you and followed them just like you were programmed to?”

  Hatchet is in the middle of sustaining Wallace's objection while I'm yelling at Pete, and he tells Pete not to answer. He also admonishes me for being a pain in his ass, just not in so many words.

  “No further questions.”

  Pete is asked a few questions by Wallace to rehabilitate him, and he stares at me the entire time. My friendship with Lieutenant Pete Stanton just took a shot. I'm not happy about making him look bad; but it's what I do for a living.

  I set the evening meeting with Laurie and Kevin at the office for seven o'clock, but only Kevin is there when I arrive. I've come to trust his instincts and judgments. He thinks I did well today with Pete, but recognizes what our problem is. Wallace has a mountain of evidence: the knife, the skin, the blood, the eyewitness, etc. I can attack each one, but if the jury believes any one of them, Willie is finished. Because each one is by itself capable of carrying the day.

  Tomorrow Wallace will have his forensics expert on the stand, and Kevin and I set about planning our cross-examination.

  Laurie comes in uncharacteristically late, but with very interesting news. Utilizing her contacts, she has uncovered the fact that Edward Markham had two arrests for beating up women prior to Denise McGregor's murder.

  At least as disturbing is the fact that, though the records of these assaults have since been expunged, my father should have been aware of them back when he was prosecuting Willie Miller. Yet there is no evidence that he ever followed up on it. Did he think it was unimportant, or was he repaying a favor to his apparent friend Victor Markham, who may have paid him two million dollars? But how could Markham have anticipated a murder trial that wasn't to take place for nearly thirty years after the payment?

  Laurie asks if we can use the arrests at trial, and Kevin correctly points out that we cannot, that Hatchet would never let them in. The law is clear; the previous violations, even if they were proven, have to compare almost identically to the offense that is the subject of the trial. These don't.

  “Too bad,” says Laurie. “The bastard might have done it himself.”

  I do a double take. “I thought you were positive that Willie Miller did it.”

  “I was. And now I'm not.”

  This is a major concession for Laurie, but I'm not about to lord it over her.

  Around ten o'clock, Kevin leaves and Laurie hangs around for a while as I finish my preparation for court tomorrow. As she is getting ready to leave, she walks toward me and says, “You're doing really well, Andy. No one could be doing more.”

  I shake my head. “You know,” I say, “my father said I couldn't win this. I think he was right.”

  “He was goading you, and he was wrong. Good night, Andy.”

  “Good night, Laurie.”

  We just stand there, about a foot away from each other. We both know that we are dangerously close to kissing, but after a few seconds the moment passes. She leaves, and I'm alone with my thoughts.

  When I was married, or at least before our separation, I did not come close to kissing other women. It sounds corny, but I rarely ever thought about other women, so ingrained in me was the sanctity of the marriage bond. That's now been changed, and I don't think it's going to change back any time soon. What's left for me is to figure out what that says about my marriage or myself.

  I'll figure it out after the trial.

  NICOLE HAS REALLYBEEN QUITE UNDERstanding about the trial, and the impact it's having on our time together. She waits up for me to come home at night, and gets up every morning to watch me make breakfast. She talks about us getting away after the trial is concluded; maybe to the luxury hotel in the Virgin Islands where we spent our honeymoon. That was in another lifetime, a time and place that I no longer have any connection to at all. I desperately wish I did.

  I've been able to put the romantic-emotional aspect of my life on hold while I deal with the Miller case, but I know it's back there, in the dark recesses of my mind, waiting to cause me aggravation. I've always thought a main component of love is wanting, needing, to share things, good as well as bad, with the person that you love. I'm not feeling that with Nicole.

  On some level I know that Nicole and I can never recapture what we had, or seemed to have had. I keep hoping that will change, but it doesn't feel like it ever will. I don't believe it is Laurie's presence that is causing this. She is not what is standing between Nicole and me.

  Fortunately, I don't have very much time to agonize over these questions. Our whole team is putting in eighteen-hour days, and adrenaline is keeping us raring to go at the nine A.M. start to each court day. Another reason I'm able to be on time each morning is that I no longer even pass by the newsstand on the way to court; it is closed down and a symbol of my humiliation. Today I even arrive a few minutes early, and I use the time to get ready for the next witness, forensics expert Michael Cassidy.

  As Henry Higgins would say, Cassidy “oozes smugness from every pore, as he oils his way across the floor.” I find him to be thoroughly pompous and dislikable, and I hope the jury has the same reaction. He is basically there to testify about the material found under the fingernails of Denise McGregor, as well as the scratch marks on Willie that those fingernails o
bviously caused. Wallace has a lot of ammunition here, and he doesn't leave a single shell unexploded.

  There is a large poster board with a full-color shot of a dazed and scratched Willie Miller, taken shortly after his arrest. The only way he could look more guilty in the picture would be if he were holding up a sign saying “I did it.”

  Wallace is questioning Cassidy about the photograph, and Cassidy has a wooden pointer, the type teachers used to have in class before they got the Internet wired in.

  Wallace asks, “Where were the scratch marks?”

  Of course, Stevie Wonder could have pointed to the scratch marks on the photograph, but Cassidy does so as if the jury really needs his help to see them.

  “They are here, and here, on the left and right cheeks on the defendant's face.”

  Wallace then takes maybe thirty questions to elicit the information he could have gotten in two. Not only were the blood and skin under the fingernails of Denise McGregor that of Willie Miller, but Cassidy has determined that the scratch marks on Willie's face were made by those same fingernails.

  Wallace turns the witness over to me. If I can't get the jury to doubt Cassidy, it's game, set, and match.

  “Mr. Cassidy, what other foreign material besides Willie Miller's blood and skin did you find under the victim's fingernails?”

  “What do you mean?” he asks.

  “Which part of the question didn't you understand?”

  Wallace objects that I'm being argumentative and badgering. Damn right I am. Hatchet sustains the objection. I restate the question, and Cassidy answers.

  “We didn't find anything else.”

  I feign surprise. “To the best of your knowledge, was Willie Miller naked when he was arrested?”

  “I wasn't there, but I believe he was fully clothed.”

  “Is there any reason to think he was naked when he committed the crime?”

  “Not that I'm aware of.”

  I bore in. “Were there scratches anywhere other than on his face?”

  “No, those were the only scratch marks. But there were needle marks on each arm.”

  The medical examination of Willie had shown needle marks on both arms, but since a blood test revealed no drugs in his system, the prosecution was precluded from bringing it out in direct examination. Wallace smiles slightly, assuming that I ineptly opened the door through which that information reached the jury.

  “Yes, the needle marks, we will certainly hear more about those,” I say. “Now, what was the defendant wearing when he was arrested?”

  “Objection,” says Wallace. “The answer is already in the record. His shirt and jeans, with the victim's bloodstains on them, have been submitted into evidence.”

  Hatchet sustains the objection, and I bow graciously to Wallace. “Thank you. It's so hard to keep track of all this conclusive evidence.”

  I ask Cassidy, “His shirt was cotton, wasn't it?”

  “Yes.”

  “But there were no traces of cotton under her nails?”

  “No.”

  “So she went after his face only?”

  “It was only his face that she actually scratched,” he says.

  “I can't say for sure what she went after, I wasn't there.”

  “No. Neither was I. Can I borrow your pointer? It's a beauty.”

  He would like to hit me over the head with it, but instead he grudgingly hands it to me, and I walk over to the large photograph of Willie in all his scratched glory.

  “By the way, did you find a ruler near the body?”

  “A ruler?”

  “You know what a ruler is, don't you? It's like this pointer, only smaller, flatter, and straighter.”

  Wallace objects and Hatchet admonishes me; business as usual.

  “The thing that puzzles me,” I say, “is that I personally cannot draw a straight line, yet the victim managed to scratch two of them.”

  I point to the scratch marks on each cheek, which are in fact close to perfectly straight and perpendicular to the ground.

  “There are no normal patterns for this. Every case is different.” He's getting more smug as he goes along. It's time to de-smugitize him.

  “No normal pattern? Isn't the existence of any pattern at all by definition abnormal?”

  “I don't know what you mean.”

  “Then let me explain it to you, Doctor,” I snarl. “Here we have a woman who is being beaten and stabbed to death by a drunken man, who must be pretty unstable in his own right. So she's flailing away, desperately trying to defend herself, trying to stop the knife from penetrating her, trying to stop his other hand from hitting her—”

  “Objection!” yells Wallace. “Is there a question somewhere in this speech?”

  “Sustained.”

  I push forward. “Okay, here's a bunch of questions. Why didn't she touch his clothes? Why didn't she touch those hands? Why, in her panic, did she choose to scratch two perfectly straight marks on each side of his face?”

  The smugness is gone. “I can't say for sure, but it's possible—”

  I interrupt. “It's possible that someone held her hands, after she was dead, and scratched Willie Miller's face, when he was too drunk to even know it.”

  Wallace stands again. “Objection, Your Honor. Must we continue to listen to Mr. Carpenter's ramblings about his visits to Fantasyland?”

  I turn and address Wallace directly, which is something Hatchet will come down on me for. “If I'm in Fantasyland, you should visit it. Things seem to make more sense here.”

  After court is over, I find myself alone with Wallace in the men's room. We exchange typical standing-at-the-urinal small talk, and then I ask him a question which has been on my mind.

  “Richard, you were in the office at the time … why did my father prosecute Willie Miller?”

  “Come on, Andy. Don't believe your own speeches. There's a mountain of evidence here.”

  “No,” I say. “I mean, why did he handle the trial himself? He was the DA by then; he hardly ever went into a courtroom.”

  Richard thinks for a moment. “I don't know; I remember wondering about that myself at the time. But he was adamant about it. Maybe because it was a capital case. Maybe with Markham involved, your father wanted to be the one to take whatever political heat would result if the trial went badly.”

  I nod. “Maybe.”

  Wallace zips up, says goodbye, and leaves me to ponder all the other possible maybes.

  Hatchet adjourns for the day and I go back to the office. Nicole has called and left a message reminding me of a promise I had made to go to Philip's estate after the evening meeting at the office. He is throwing a fund-raiser for a local congressional candidate that I wouldn't vote for if he were running against Muammar Qaddafi.

  We convene our evening meeting early, at five o'clock, mainly for the purpose of discussing tomorrow's cross-examination of the eyewitness, Cathy Pearl.

  Laurie is not coming to the meeting; she has gone to see Betty Anthony, to try and do what I couldn't—get her to talk about her deceased husband, Mike.

  Kevin and I go over how I will handle Cathy Pearl's appearance tomorrow, and we believe that we can be reasonably effective. The exciting, nerve-racking, dangerous thing about cross-examination is that there truly is no way to accurately predict how it will go. There is an ebb and flow that develops between all the players in the courtroom that is volatile and can lead in various directions.

  The lawyer conducting the cross is most like a point guard in a basketball game. It's his or her job to set the pace, to try and dictate the way the game will be played. But like in a basketball game, the lawyer cannot determine what defense, what tactics, the other side will employ.

  Most important, unlike in basketball, it's not a four-of-seven series; there's not another game in two days. Cross-examining a witness takes place once, and it's generally winner take all. It can be scarier than the Lincoln Tunnel.

  Kevin has been a little down lately; his
enthusiasm has seemed to wane even as we have had some success challenging witnesses. I ask him about that, and he reveals that his conscience is rearing its ugly head. In short, he thinks Willie Miller is probably guilty, and while he wants us to win, Kevin worries that we might cause the release of a brutal murderer out into society.

  “So,” I ask him, “you think we might be better than the prosecutors?”

  He responds, “I think you might be the best defense attorney I've ever seen.”

  That's a subject I could talk about for hours, but I try to keep the focus on Kevin. He's in some pain over this, and I might be able to help. He believes I could be so good that there could be a wrong verdict reached.

  “What if we didn't represent him?” I ask.

  “Then he'd get someone else.”

  “What,” I ask, “if that someone was better than we are? Or not nearly as good as Wallace? Couldn't a wrong verdict result just as easily?”

  He nods. “Of course.”

  “I'll tell you how I see it. To me a right or wrong verdict isn't a question of accurately judging the defendant's guilt or innocence. To me the verdict is right if both sides are well represented and get their fair day in court.”

  “You might feel differently if you were wrongly convicted,” he says. “Or if someone you loved was murdered, and the guilty man went free.”

  “I might, but I would be thinking about myself, and not about society. Society needs this system. Look, you're a terrific lawyer, and if you had a hundred cases, maybe you'd get a few guilty people off. But what if you didn't take those cases? A good portion of them would get lesser attorneys, and some of the innocent ones might be convicted.”

  He smiles. “But none of them would be on my conscience.”

  “Didn't they tell you to leave your conscience in a locker at law school?”

  We're not going to resolve his doubts tonight; they've been hounding him for too long. But I think, make that hope, that we've taken a step. Kevin is a hell of a lawyer, and an even better person.

  I invite Kevin to go to the fund-raiser at Philip's, but he begs off, since he has to go to the Laundromat and empty the quarters from the machines.