by Nancy Allen
“Objection: unless the witness can tie the results of his exam to the defendant, then his answer is irrelevant and immaterial,” Nixon said.
“Overruled,” Judge Rountree said shortly. “Answer, Dr. Petrus.”
“The hymen was not intact on Kristy Taney.”
“In your opinion, is that finding consistent with sexual activity?”
“It could be.”
Elsie asked about his examination of Charlene, and the doctor testified that the hymen was not intact on Charlene either.
“Additionally,” he added, “the exam revealed inflammation in the vaginal area.”
“In your opinion, would that be consistent with sexual activity?’
“In my opinion, yes.”
“No further questions.”
She covertly checked out the jury’s reaction; she sensed that she was making progress with them. Several jurors were growing markedly sympathetic, providing Elsie with significant eye contact. That was a good sign.
Nixon was battering the doctor with a predictable line of questioning.
“Isn’t it possible, Doctor, that a girl’s hymen can rupture in any number of ways?”
“It is.”
“Riding a horse? A bicycle?”
“That’s true.”
“So you’re telling the jury that it’s entirely possible that these girls have never had sexual intercourse.”
“That’s possible.”
“And even assuming that they have had intercourse, you have no scientific evidence as to who the sex partner might be, isn’t that correct?”
“That’s true.”
“It could be anyone: a boyfriend, or another male living in the household, isn’t that right?”
Elsie jerked into action, objecting that the question called for speculation, but the doctor had already answered the question in the affirmative. The judge told the jury to disregard the answer, but it was cold comfort to Elsie.
Can’t unring a bell, she thought.
Nixon asked the witness, “Why didn’t you take samples and send them to the crime lab for DNA testing?”
Damn, Elsie thought, She should have cleared that up.
“The father had been in custody for weeks. The samples have to be taken closer in time to the act.”
“But if you’d taken samples, they might have revealed the presence of another partner, correct?”
Elsie shut the question down on grounds of speculation again, but Nixon had planted a seed, and the jury got the message. In redirect, she scored a point or two by asking whether children with no bicycles and no access to horses were likely to lose their virginity through those activities. Still, she worried that her damage control was incomplete. When the doctor was dismissed, a couple of jurors exchanged quizzical glances.
Elsie didn’t like that. Not a bit.
Chapter Forty-Three
ON TUESDAY MORNING, before trial commenced for the day, Elsie sucked down a cup of weak coffee in her office. Donita sat opposite her, hugging her black vinyl handbag and regarding her with a resigned expression.
“It’s showtime, Donita,” Elsie said with a counterfeit grin. The women walked to the courtroom side by side.
When court convened, Elsie called Donita Taney to the witness stand. Donita walked in with a hangdog expression, still clutching the black purse. Acts like she’s got a stash in there, Elsie thought impatiently, before she restrained her thoughts with a jerk. She extended a welcoming hand to her witness.
“Donita, come on over here and be sworn,” she said in a voice that radiated goodwill.
Donita took the oath and sat in the witness chair. She settled the purse on her lap, then as an afterthought, set it on the floor beside her. She tucked her hands, palms together, between her knees.
Elsie walked over to the jury box to ask the questions so Donita’s face would be turned toward the jury.
“Donita, direct your attention to January eighteenth of this year: what happened on that date?”
“That was the day you come to the house to pick up them boxes.”
“What house are you referring to?”
“Our house over on High.”
“What were the boxes?”
“I’d packed up Kris’s stuff. To get it out. I didn’t want it around no more. And JoLee’s stuff she left behind.”
“Who is JoLee?”
“JoLee Stokes. She’d been living with us ever since Kris knocked her up.”
“Objection!” Nixon was on his feet. “Irrelevant. Judge, may we approach?”
Rountree shook his head. “No need. Sustained. Jury will disregard the last statement.”
But checking the jury’s reaction with her peripheral vision, Elsie was pleased to see a woman bristle at Donita’s revelation.
She then took the valentine from its bag and handed it to the court reporter, instructing her to mark it as an exhibit.
“Donita, I’m handing you what has been marked as State’s Exhibit Number One. Could you examine it, please?”
Donita opened the card without expression, looked at it, and handed it back to Elsie.
“What is it?”
“It’s a valentine card.”
“Addressed to whom?”
“JoLee.” For the first time, Donita looked directly at the jury box, and as an aside, said to them, “My husband’s common law.”
“Objection!”
“Sustained.”
Elsie’s mouth twitched but she kept a straight face.
“Donita, did you have the opportunity to examine the handwriting on that card?”
Yeah.”
“Is it familiar?”
“Yep.”
“Whose handwriting is it?”
“Objection: is this witness a handwriting expert?”
The judge peered at Elsie through his glasses. “Qualify the witness, Ms. Arnold.”
“How long have you known the defendant, Kris Taney?”
“Been married fifteen years. Knowed him a while before that.”
“During your marriage and acquaintance, did you have occasion to see his handwriting?”
“Sure. Lots of times.”
“Please read the writing on the card.”
Donita did, reading aloud in a voice that conveyed deep sadness. Elsie thought that her problem witness was performing much better than anticipated.
“Do you recognize that handwriting?”
“Oh yeah.”
“Whose is it?”
“Kris. Kris wrote it.”
“Donita, please examine State’s Exhibit Number One again. Is it in the same or similar condition today as it was when you handed it over to the state?”
Donita looked at it with contempt. “Yep. Sure is.”
Elsie smiled a beatific smile. “No further questions.”
Nixon glowered as he rose from the chair. He descended upon Donita with a barrage of questions attacking her veracity, her mothering, her lifestyle. He flatly accused her of forging the valentine and planting it in the box for the state to find. She hunched her shoulders and suffered the questions, setting her jaw like a bulldog and answering in short phrases.
“Is there a new member of your household?”
Elsie quickly objected but was overruled.
Donita hesitated. “No.”
“What about Roy Mayfield?”
Elsie stood this time. “Objection, your honor, irrelevant.”
“I’ll tie it up, Judge.” When the judge nodded, Nixon said, “Donita, tell us about Roy Mayfield.”
“Roy’s a friend.”
“Is he spending his days at your house?”
“He’s there some.”
“Spending the night there, Mrs. Taney?”
�
�No.”
“Oh, come on: he’s your lover, isn’t he, your new romance?”
“Objection,” Elsie interjected.
“Overruled.”
When Donita remained silent, Nixon added, “Want me to repeat the question?” Donita shook her head, and Nixon added, “Need I remind you that you are under oath?”
“Roy’s been a good friend to me. To all of us.”
“What about Al Taney? Is he your good friend, too?”
“He’s Kris’s brother.”
“Haven’t you had sexual relations with Al Taney during your marriage to his brother, Kris?”
Elsie objected loudly, but her objection was overruled again.
Nixon moved closer to the witness stand. “Isn’t it true that you and Al Taney plotted to remove Kris Taney from his home?”
Donita pressed her right hand against the side of her abdomen. “It’s true I’ve wished Kris Taney gone lots of times, I tell you that much. Wished him gone to the devil.”
“Didn’t you and Al and Roy all cook this allegation up to get my client out of the way?”
“No.”
“Didn’t you convince your girls to lie about their father so that you and Roy could live happily ever after?”
“That’s not right.” Donita was clutching her side with both hands, pressing her lips together; she was pale as death.
Nixon said, “You nervous, Mrs. Taney? Is talking about this giving you a pain?”
She shook her head. “It’s my side. My ribs. Kris broke my ribs when he beat me with a axe handle last year, and they didn’t heal up good.”
As a juror gasped, Elsie saw fireworks; a colorful spray of roman candles burst forth in her brain.
Nixon hurled toward the bench. “Objection, your honor! Instruct the jury to disregard!”
Elsie, on her feet, hooted with scorn. “Objection to what, Judge? He asked the question; he’s got to live with the answer.”
While Nixon hotly contested the point, Elsie glimpsed Kris Taney. The defendant, his gaze focused on Donita, looked demonic, his eyes glinting malice. His wife met the look, but then shook her head and stared off into space.
Elsie stole another glance at the jury box. The jurors were noting the defendant’s demeanor. One man nudged his seatmate and nodded in Taney’s direction. Elsie caught the juror’s attention and widened her eyes. The man nodded and looked away.
Now we’re getting somewhere, she thought with satisfaction.
Chapter Forty-Four
AFTER SHE RESTED the state’s case, Elsie felt blissfully confident. The handwriting expert from the police department had corroborated Donita’s testimony regarding the defendant’s handwriting on the valentine, but the expert testimony proved anticlimactic; Donita’s unexpected revelation about the axe handle, and Taney’s reaction to her, carried the day.
Sorry, Madeleine, but I won’t be looking for a new job, after all, she exulted.
During the recess that followed, Josh Nixon announced to the judge that he needed to make a record. Elsie perked up; she had a pretty good guess as to what that request signified.
Kris Taney was not going to testify in his own defense.
Sure enough, while the jury was outside of the courtroom, Nixon put Taney on the stand and ran him through a short examination, to make a record about his decision. The big man dwarfed the wooden witness chair. He was mulish as he acknowledged that, yes, he understood that he had the right to testify; his attorney had advised him that it was in his own best interest to testify; and that it was his own decision, freely made, to stay off the stand in his case.
Elsie watched the exchange, baffled, though it was a common enough occurrence. Defendants often opted to stay off the witness stand and rely on their right to silence. The witness stand was an intimidating place to be.
But in the Taney case, she thought the decision to stand silent was foolhardy. She pushed her chair away from the table and crossed her legs, tapping the pen on the counsel table as she assessed the impact of that decision. How could a defendant in a case like this consider staying off the stand? This was a “he said–she said” type trial, and Taney’s refusal to testify meant that he wouldn’t have a chance to deny the charge, explain away the accusations, point the finger another direction.
She flipped a file open to double-check Taney’s rap sheet. His criminal record showed a number of priors: a misdemeanor marijuana, a couple of DWIs, and two third-degree assault convictions, along with numerous domestic dispute arrests that hadn’t resulted in convictions. If he didn’t testify, his criminal history would not be revealed to the jury; it could only be raised in cross-examination. Still, she was surprised that a misdemeanor record would keep him off the stand in a felony case. Maybe Taney was too stupid to realize he needed to testify. Or maybe his attorney thought the combination of his offenses would offend the jury. Or maybe Nixon was disgusted by his client. Maybe he was ready to let Taney hang himself.
Nixon concluded his record, and the men returned to the defense table. Why is Nixon making my life so easy, all of a sudden? she asked herself, then shrugged inwardly. Whatever the reason, it was fine with her, and she smiled at the defense attorney.
A thought nagged at her, however: if Taney didn’t testify, she couldn’t bring out the nude shots. When Rountree granted Nixon’s motion to block the Polaroids from the prosecution’s case in chief, the judge hinted that Elsie might use them to cross-examine Taney when he took the stand. Now she wouldn’t have the opportunity. She brushed the thought away. We’re looking good, she thought. What could go wrong? The jury didn’t even need to see the photos.
The judge signaled the bailiff bring the jury back. Merle knocked on the door to jury room and told the twelve men and women inside that court was reconvening. They filed back into their seats in the jury box.
“Call your first witness, Mr. Nixon,” the judge ordered.
Nixon stood, casting a sidelong glance at Elsie, as if anticipating a reaction.
“The defense calls Kristy Taney, your honor.”
Elsie gasped audibly. She jumped to her feet, and for one terrible moment she couldn’t articulate a response. “Objection,” she choked.
Without looking in Elsie’s direction, Nixon said smoothly, “We ask leave to treat her as a hostile witness.”
“May we approach the bench?” Elsie asked. The judge nodded, and she stormed to meet Nixon at the bench, her face turning scarlet.
“What is going on?” she demanded.
“You’re about to find out.”
The judge interrupted. “Do you have a legal argument to make, Ms. Arnold?”
In fact, she did not. “I’m working on it.”
Nixon, the cat who swallowed the canary, cut his eyes at her. “Well?”
“Unfair surprise,” said Elsie, speaking very rapidly. “The defense didn’t disclose this witness to me, Mr. Nixon never said he’d be calling her.”
Nixon snorted and shook his head. “Since when do we have to disclose a witness list to you? And why on earth would we have to apprise you of your own witness? Judge—”
“Objection overruled. Defendant will proceed.”
The bailiff called for Kristy in the courthouse hallway, and she walked into the courtroom hesitantly, looking confused and reluctant to return. Nixon grinned broadly at her and indicated the witness chair with his right hand.
“Please come and take a seat, Kristy.”
She looked at the judge, who smiled and nodded, adding, “You’re still under oath, Miss Taney.”
Kristy shot a look at Elsie, who she responded with a weak smile.
As Kristy settled into the chair, Nixon approached her in a manner that seemed positively chummy to Elsie.
“Kristy,” he said, “I want to show you something. I warn you that it’s shocking to see, but you
need to look and tell me what it is.”
Nixon had the court reporter mark one of the copies of the photo of Charlene, and handed it to the girl.
“What is that?” he asked her.
“It’s a picture of Charlene. A naked picture.”
“By Charlene, you are referring to your sister, isn’t that right?”
Kristy said yes.
With a herculean effort, Elsie kept her face impassive, waiting for the next move. The jurors shifted in their seats, intent on the witness.
“Did your father take that picture?”
“Nope,” she answered, matter-of-fact.
“How do you know?”
“Daddy don’t never let us be in a dirty picture.”
Kris Taney beamed and nodded, the proud father.
“Who do you suppose took that picture, then?” Nixon asked.
“Objection,” Elsie said, her voice like a rifleshot. “Calls for speculation.”
“Sustained.”
“If she knows, Judge,” Nixon argued. “I’m not asking her to guess. I just want her to say it if she knows.”
“All right, then. Watch how you frame the question, sir.”
Smiling sadly, Nixon leaned against the jury box, close to Kristy, and asked in a confiding tone, “Kristy, look at Defendant’s Exhibit Number One—who took the picture?”
Kristy looked at it, made a face. Wrinkling her nose, she said, “Uncle Al, I expect.”
Elsie’s heart sank to her stomach. With her mouth suddenly dry, she said, “Objection. Witness is speculating.”
“Because it’s with a instant camera, see?” Kristy said, holding the exhibit up toward Elsie. “That’s how Al takes them pictures. Roy takes our pictures with his phone.”
As the courtroom erupted, the jurors turned to one another and to Elsie, looking at her with confusion and disbelief. Her mind formed a single thought: Reasonable doubt.
Chapter Forty-Five
THE COURTROOM WAS bedlam after Kristy’s revelation. Recovering, Elsie jumped to her feet, shouting objections on every ground she could think of—nonresponsive, irrelevant, hearsay—while Taney slapped his knee and tipped backward in his chair, grinning to beat the band. The buzzing from the jurors in the jury box and the spectators in the gallery rose to such a level that Judge Rountree finally had to bang the gavel three times before there was silence.