On the morning of the day when Marc would get his first shot at the prosecution’s case, his cross examination of Jake Waschke, he awoke at six, a half hour before his alarm was set to go off. He rolled onto his side, pulled the blanket to his chin and tried to go back to sleep. He laid like this for several more minutes, his eyes wide open and his mind already going over his upcoming exam. Finally, realizing sleep would not return, Marc tossed the blankets aside and headed for the bathroom.
Two hours and a pot of caffeine later, as he was putting the finishing touches to the knot of his tie, he began to feel a slight tightening of his chest and trembling in his fingers. Marc stood in front of his bathroom mirror, held his hands out in front of his face and watched the fingers lightly shaking as his breath began to quicken. He took a half dozen deep breaths, clenched and unclenched his fists several times then toweled off the small beads of perspiration from his brow. “Relax,” he said to the man in the mirror. “You’ve done this many times. You’ll be all right once you get started. You know that.”
“Yeah,” he answered himself still staring at the image looking back from the glass. “But never this important. Never with an innocent man facing such a horrible fate.
“Just be careful with this cop,” he continued. “He’s nobody’s fool and if he gets a chance he’ll bury you with a mistake. Just stick to the script. Don’t go wandering around. You’ll do fine. Besides, it’s not your ass on the line.
“Good point,” he concluded as he reached for the light switch and headed for the door.
SIXTY-SIX
“Good morning, Lt. Waschke,” Marc began from his seat next to Carl. “I have a few questions for you but, before I start, I noticed during your examination by Mr. Slocum that you were very cooperative with him. I would appreciate it if you would be as cooperative with me. Will you do that, Lieutenant?” Marc asked, pleasantly smiling at Jake. This question is basically a rookie lawyer’s tactic, but it works. And it’s effective. Show the jury that you’re really a pretty reasonable fellow with a job to do. At the same time elicit a promise of cooperation from a potentially dangerous, adverse witness. How can he possibly answer this question with anything but a yes? No, I won’t be cooperative with you? Of course the witness can’t say that, even if it is true.
Like jury selection, every trial lawyer has a theory about cross examination. A few, only the very best, are confident enough with their own experience and ability to go fishing in front of a jury. To risk probing into unknown areas looking for things they are not fully prepared to deal with. Marc was not among those elite few. He always kept in mind what a wise old professor, a judge with many years of experience, once told him in law school. Make your point, say what you have to say then shut up and sit down.
“Certainly,” Jake answered.
“Thank you, Lieutenant,” Marc said.
“Now then, Lt. Waschke, you’ve been a police officer for twenty three years, as I recall, is that correct?”
“Yes, almost twenty four.”
“You’ve been assigned to homicide for over ten years now?”
“That’s correct.”
“And during those almost twenty four years as a policeman have you ever been involved in a case of this significance?”
“Certainly. They’re all significant,” Jake answered, taking the opportunity that Marc gave him with the loosely worded question.
“Have you ever investigated a so-called serial killer case before?” Marc asked, ignoring Waschke’s response.
“No. Just this one.”
“Ever been involved in a case where the press scrutiny was this intense?” Marc asked waving his right arm toward the press section of the courtroom.
“No,” Jake mildly replied. “I can’t say that I have.”
“Ever been involved with one that the Mayor gave weekly press briefings about?”
“Not that I can recall, no.”
“Ever been involved with a case where this many detectives devoted their full and exclusive attention to making an arrest?”
“No, I don’t believe so.”
“So, Lieutenant, I’ll ask you again, have you ever been involved in a case with this much significance?”
“No, I guess not.”
“This much media and political pressure?”
“Well,” Jake began, squirming slightly, almost imperceptibly for the first time. “no, I guess not but...”
“Thank you Lieutenant,” Marc said cutting off the forthcoming explanation.
“Did you attend the weekly press conferences held by the Mayor?”
“Pretty much all of them, yeah.”
“Did you have to answer questions by the press yourself?”
“Yes, a few times.”
Marc continued his questioning about the public, political and media scrutiny of the investigation for a few more minutes. It was a fairly safe area to probe. One that Waschke could hardly deny but it served a couple of purposes.
First, it made the point with the jury that the police were under a lot of pressure to solve this case. The media had been screaming headlines for months, terrifying the citizens and causing the Mayor’s office no end of grief. All of this would, of course, eventually be heaped on the shoulders of the man on the witness stand. By itself, hardly enough to cast doubt on Carl’s arrest. Especially since it could be easily refuted by Slocum on redirect examination by going through the lengthy list of people who had been investigated, questioned and released. Possibly, Marc hoped, it would be a small building block on the way toward creating a reasonable doubt.
Second and more importantly, it was a fairly safe area for Marc to start his case. An area of questioning, a factor in the investigation, that Waschke could hardly credibly deny. And it gave Marc a chance to get things moving and calm himself down.
“When was the first time you met Martin Hobbs?” Marc asked abruptly, changing subjects.
“It was the morning after the last murder,” Jake answered, the muscles in his neck tightening as a warning bell went off in his head. He had anticipated the question. Had prepared himself and Hobbs for it, all the while hoping the subject wouldn’t come up.
“He called the police?”
“Yes, that’s right.”
“Asked to speak to you, personally?”
“Um, I don’t recall,” Jake said after considering the question for a moment. “He may have. Other people had during the investigation.”
“Thank you, Lieutenant,” Marc said, cutting him off before he could get going without Marc to guide him.
“The night of the Powderhorn Park attack, did the police canvas the neighborhood? Go door-to-door to try to find someone who may have seen anything?”
“Yeah, sure. We checked everybody within a mile.”
“Did you find any other witness?”
“Well, we had another one, a woman named Mildred…”
“Was she able to identify anyone?”
“No, she wasn’t.”
“Anyone else?”
“No.”
“Anyone living along Chicago Avenue between Lake and 35th?”
“No.”
“Chicago’s a pretty busy street, isn’t it Lieutenant?”
“I guess.”
“And isn’t it true that Chicago and Lake is one of the busiest intersections in Minneapolis?”
“I suppose, yeah.”
“And in the entire city of Minneapolis, you were unable to find anyone else who claims to have seen the accused running down the street that night. Do you find that a little strange?”
“Objection, argumentative,” Steve Gondeck said from his chair.
“Sustained,” Prentiss ruled. “Move along counselor.”
Marc had been getting a little carried away with his line of questioning and was actually thankful for the interruption. He needed to get back on track and, besides, he had made his point. Believing that Waschke and Hobbs had concocted Hobbs’ identification, he had scored the point he wa
nted to make. Waschke, in open court, under oath and in front of the jury had testified he had not met Martin Hobbs before. Now, all he had to do was come up with proof of a connection between them. And he had pointed out to the jury that on a busy street in a large city only one person claims to have seen Carl.
“The night the accused, Carl Fornich, was arrested, “ Marc began the next question intentionally referring to Carl as the accused and not the defendant, a subtle reminder to the jury, and used his name to make sure the jury would see Carl as a human and not just the defendant, “you had his apartment staked out for several hours, is that correct?”
“Yes, as I recall.”
“Mr. Fornich arrived home around eight o’clock, is that correct?”
“About that time, yes.”
“And you and your officers moved in to make the arrest immediately, is that correct?”
“Yes.”
“Carl didn’t try to run, did he?”
“No.”
“Didn’t struggle at all, did he?”
“No, he didn’t.”
“In fact, he offered no resistance whatsoever, did he?”
“Objection, irrelevant,” Gondeck said as he rose from his seat.
“Sustained,” Prentiss replied. “The jury will disregard.”
“Now, Lieutenant,” Marc continued, “After the arrest, you entered Mr. Fornich’s apartment to search for evidence, is that correct?”
“We had a search warrant,” Jake answered somewhat defensively.
“I’m sure you did, Lieutenant. But, that wasn’t my question,” Marc said holding his hands up as if to reassure the witness of the innocent nature of the question.
“Yes,” Waschke said. “We went in to search.”
“You, personally, Lieutenant. Did you search in the living room?”
“No, I didn’t.”
“The bathroom?”
“No.”
“The kitchen?”
“No.”
“Isn’t it true you were the first one in the apartment?”
“Um, yeah. I believe I was.”
“So, Lieutenant, you went into the apartment, walked into the bedroom and began searching the closet, is that correct?”
“Well, um, yes, I guess so,” Jake answered, fidgeting slightly.
“And found the knife?”
“After a minute or so, yes I found the knife,” Jake answered.
“Was anyone else searching through the closet with you?”
“There was another officer in the bedroom,” Jake answered.
“He was searching through the bedroom, was he not?”
“Well, yeah, he was.”
“Did anyone else see you find the knife in the closet?” Marc asked, very slowly, very deliberately.
“No. I was the only one searching the closet,” Jake answered as slowly and deliberately as Marc had asked to show the jury he didn’t care for Marc’s attempt to impugn his integrity.
At that moment, for the briefest instant and unnoticed and unseen by anyone else in the packed judicial theatre, the two men’s eyes met and locked together. For the first time since the arrest, the unstated passed between them, unheard by anyone else. As resounding and clear as if the lawyer had arisen from his seat and loudly proclaimed: ‘I know what you did’. And Waschke heard it just as clearly but it was the lawyer who blinked first and decided to simply let the moment pass.
Marc, realizing he had no proof that Waschke had planted the knife, decided he was on dangerous ground with the jury. To accuse a policeman with Jake’s record, a record that had been spelled out clearly to the jury by Slocum during direct exam, of planting evidence is a risky business. A jury could easily take offense with such a tactic in a city where the police are, in general, respected. Besides, he had made his point. Time to shut up and move along.
“Lieutenant, does the name Thomas Hardee mean anything to you?” Marc asked knowing even if he received a negative response he could easily refresh Jake’s memory.
“Yes, it does,” Jake answered, nodding his head, relieved that this lawyer was done with the knife questions.
“How about James Lindgren?”
“Yes.”
“And Bryan Sorenson?”
“Yes.”
“Isn’t it true, Lieutenant, that all three of these men were questioned about the death of Constance Ann Gavin?”
“Yes, they were.”
“Isn’t it also true, Lieutenant, they were all investigated about her death because at one time or another all three of these men had sexual relations with her?”
“Yes, it’s true,” Jake answered as a slight stirring occurred in the courtroom. “They all had alibis,” he quickly added,
“Your Honor,” Marc said to Prentiss, “nonresponsive and I ask that the witness’ response be stricken and the jury instructed to disregard.”
“The witness’ answer shall be stricken and the jury will disregard the answer,” Prentiss said half-heartedly knowing full well the jury couldn’t disregard the last part of Waschke’s answer.
“Did your investigation turn up any other men who may have been involved with Ms. Gavin?”
“No. “
“No other names?”
“Right. No other names.”
“But you did hear of the possibility of other men, didn’t you Lieutenant?”
“Yeah,” Jake answered, shifting slightly in his chair. “We heard some rumors.”
Marc was tempted to continue along this line but he forced himself to stop. He had obtained the admission he wanted, that there were other men besides Carl sexually involved with this victim. Marc strained at this self-imposed leash, sorely tempted to go down this path but realized he would probably do his client more harm than good. Besides, if there were any more names of men known to the police, they would have checked them and Marc would have the names. And even if the three had alibis, which Marc knew ahead of time, he could still use it in closing to try to cast doubt on the physical evidence presented. The DNA match.
At this point Prentiss interrupted him asking Marc if this was a good time to break for lunch and called the recess. Marc found himself staring at the clock, amazed that the morning had gone by already.
Marc spent a few minutes in the adjoining conference room with Carl. His client had asked to talk to him as the courtroom was emptying for the lunch break. They went into the small room and Marc took a seat at the table while Carl paced around, obviously unhappy.
“Why didn’t you go after that lyin’ sonofabitch more about the knife?” Carl asked after taking the seat opposite Marc. “You know he planted the thing.”
“Oh, shit,” Marc said lightly slapping his palm against his forehead. “I forgot to ask him that. By the way, Lieutenant,” he continued in mock seriousness, “isn’t it true you planted the knife in the closet?
“Why, yes I did. Did I forget to mention that?” Marc said, lowering his voice pretending to be Waschke. “C’mon Carl, get serious. This isn’t TV. He’s not gonna break down on the witness stand and admit it. We gotta get some proof.”
“All right. I gotcha,” Carl said smiling.
“It’s a long trial. A lot of witnesses still to come. We take them one at a time. With each one we try to score a point or two to support our theory of the case. I got what I wanted out of this cop. He admitted he didn’t know Hobbs before this. He admitted no one else saw him find the knife and he admitted there were other men screwing the Gavin woman. We’re building our case to use at closing argument. That’s when I tie it all together and try to convince the jury that there’s reasonable doubt. Convince them that the evidence isn’t as good as it seems to be.”
“Okay. I see what you mean. What do you think? You think the jury will believe he planted it?”
“Would you? We’ll see. But, without that tie between Waschke and Hobbs, well,” Marc continued as he rose to leave. “I just don’t know. I’ll see you in a while.”
SIXTY-SEVEN
“How much longer do you think Waschke will be on the stand?” Maddy asked between bites of her deli sandwich.
“Probably finish today. I don’t have that much more to get from him. I’m sure Slocum will have some redirect. Maybe a few questions on re-cross. Why?” Marc asked.
“Just curious. They’re probably going over his redirect now, don’t ya’ think?”
“I’m sure. After today, you need to get back on finding Waschke’s mother. We need to know why he’s doing this. Try to find her through Daniel. Or, maybe one of the kids.”
“I’m going to the social security office. I’ve got her number and I’ll get some unsuspecting man to track her with that. Don’t worry, you’ll see. We’ll find her, but I’m not sure you’re gonna get anything there.”
The afternoon session was late getting started because Prentiss had other judicial duties to take care of concerning other cases. Phone calls to return, a pair of opposing attorneys to meet with. Finally, shortly after two, Prentiss came out on the bench.
“Lieutenant Waschke, after you arrested my client, Carl Fornich, the police conducted a thorough search of his apartment, is that correct?” Marc began his continuation of the cross examination of Waschke.
“Yes, that’s correct,” Waschke replied feeling much more relaxed after his lunchtime meeting with Slocum and Gondeck.
(2012) The Key to Justice Page 34