Disturbed Ground

by NORTON, CARLA

  But the next witness was different.

  Plenty of behind-the-scenes wrangling preceded the testimony of longtime criminal Raul Hernandez. The defense argued that their witness, who happened to be a convict, ought to be afforded the same courtesies as others. But certain considerations mitigated against absolute parity. Hernandez was a violent felon and known escape risk; the judge had understandable misgivings about allowing him to sit, unshackled, just a few feet away. Finally, Judge Virga ruled that the prisoner would wear a leg brace. Hernandez would be brought in and seated during a break. Since the brace couldn't be seen beneath his trousers, the jury would not be unduly influenced.

  Wearing the penal system's de rigueur orange jumpsuit, Hernandez shuffled in and sat in the witness box. With his big, bullet-shaped head, droopy mustache, and blunt features, he looked inherently menacing. A watchful armed deputy stayed close by.

  With the jury again seated, Peter Vlautin carefully established the criminal's record, his heroin addiction, and the fact that he was now serving twelve years for armed robbery. Then he turned to the man's relationship with Brenda Trujillo.

  It had to be done. Though Trujillo's testimony may have seemed lost in the prosecution's massive case, only Trujillo claimed to have seen Dorothea emptying capsules into a drink. Only she had claimed that Dorothea had killed people. Trujillo's credibility had to be destroyed, and Hernandez was The Terminator.

  Hernandez explained that he and Trujillo had grown up together in the same low-income projects. As children, they'd played together. As adults, they'd drunk beer and shot heroin. In his quiet, calm voice, Hernandez described junkies relaxing with their drugs at the end of a long day.

  Trujillo lied compulsively, Hernandez told the jury. In particular, he recalled Trujillo laughing and boasting about some story she'd cooked up about Dorothea Puente forcibly drugging her so that her urine test was "dirty" and she had to go back to prison.

  "I told her that was wrong," Hernandez stated. "She said she just wanted to stay out of prison, and that was the best excuse she could think of."

  He was here today, he said, to set the record straight. Trujillo lied so much that she offended even drug-addicted felons.

  Vlautin turned the witness over to the prosecution, and all eyes turned toward O'Mara. For months, the jury had watched him question his own witnesses. How would he cross-examine?

  First, O'Mara asked a few questions, laid a few traps. Then, at the first discrepancy, he flew at the witness, shouting out questions between snide remarks.

  "He's badgering the witness," Vlautin objected.

  The judge sustained.

  But O'Mara's in-your-face assault continued. "You don't like being here, do you Mr. Hernandez?" O'Mara sneered.

  More combative questions, more objections, and soon the judge was trying to calm the hostility between the attorneys, like a parent caught between squabbling children.

  The jurors tittered and exchanged looks.

  Meanwhile, the witness struggled to explain, "As far as dates, sir, like I said before, I can't remember the dates. Honestly, I can't."

  Finally, O'Mara muttered that he had no more questions.

  Vlautin was immediately on his feet. Seeing his opening, he asked Hernandez why he'd mentioned being uncomfortable, and that opened the floodgates. Hernandez's rock-hard features crumbled. "My wife is expecting a baby. And right now, my life is in danger." The big man's voice wavered and turned to sobs.

  Everyone stared in amazement.

  "If any of this [testimony] gets twisted just a little bit," he whimpered, "my life is in danger. I'm in for twelve years. And there wouldn't be nothing for me to be up here lying about."

  Hernandez looked suddenly vulnerable and small. If his buddies back in prison mistook him for a snitch, he'd be in for a world of hurt

  "You said your situation has changed," Vlautin prompted gently. "What did you mean?"

  Regaining his composure, the witness replied, "I'm a born-again Christian. That's another thing, I can't lie. I have nothin' to gain from this! Nothin'!"

  Now it appeared that the criminal was the victim, O'Mara the bully. Scanning the jurors' faces, one wondered whether O'Mara had made a strategic blunder.

  Over the next few days, the defense continued their onslaught against Brenda Trujillo. And they weren't just taking potshots, they were engaged in full-blown character assassination. They called former boyfriends, cell mates, junkies, even a special agent with the Department of Health and Human Services, who, among other things, pointed out that Trujillo had once made the outlandish claim that Puente had used Visine—Visine, of all things!—to drug people.

  There was little O'Mara could say. There was no point bickering about the Visine issue now. Being more circumspect in his cross-examinations, often forgoing questions altogether, O'Mara just hoped that the jury remembered that Trujillo had gone to the police about bodies buried in the yard months before Puente's arrest. About that, at least, she had told the absolute truth.

  The defense bulldozed forward, employing the oldest of strategies: blame the victims. They set out to prove that it was ill health, not Dorothea Puente, that had caused these deaths. And in this case, attacking the health and lifestyles of the victims was child's play.

  The next several witnesses portrayed Bert Montoya as a down-and-out drunk. A former boardinghouse operator named Lloyd Lambert recalled that when Montoya had been a tenant at his place in the early seventies, Bert had consumed alcohol "anytime he could get a bottle." Puente's neighbor, Alice Mansuetti, testified that she frequently saw Bert sitting in the shade, drinking from a bottle in a paper bag. And a fellow who had worked at Puente's house said that one day Bert was so "snockered" he could hardly walk, so he'd helped him back to the house.

  Some of the prosecution's witnesses had also described Bert gulping down beers. Coupled with previous medical testimony, this fit in nicely with the defense's scenario that Bert had suffered a fatal diabetic coma.

  To illustrate this scene, they called Mark Anthony, Don Anthony's brother. More law-abiding and better-looking than his weasely brother, Mark Anthony described a day in the summer of 1988 when he'd given his brother a lift to 1428 F Street. As he was about to drive away, he said, his brother had come back to the car and asked if he'd give him a hand because, "one of the boarders was unconscious over at the bar across the street." Anthony described rushing over to find Bert passed out on the floor. "We shook him and called out his name, tried to bring him into consciousness."

  "Were you able to arouse him?" Vlautin asked.

  "No."

  "Were there signs of breathing?"

  "Not heavy," Anthony said. "He was blowing bubbles out of his mouth."

  The men had tried to lift Bert off the floor, he said. Finding him too heavy, the Anthony brothers and another tenant, Pat Kelley, had finally hoisted him under the arms, letting his feet drag as they hauled him across the street, through the gate, and into his room. Then they'd laid Bert on his bed and loosened his clothing.

  Mark Anthony soon had to leave for work, he said, and as he was leaving, "Dorothea showed up. Seemed like she got out of a taxi on Fifteenth Street. My brother tried to introduce me to her, but she seemed pretty concerned about what was happening to Bert. It seemed like she was already informed. She was asking questions—where he was and everything."

  That was it, plain and ugly. Bert Montoya had collapsed one morning in Joe's Corner Bar. Had he been poisoned? Or had his blood-sugar level zoomed out of control, sending his metabolism into a terminal tailspin?

  After a brief cross-examination, Judge Virga called the noon recess, giving the jurors time to ruminate on the awful image of Bert Montoya lying unconscious and blowing bubbles.

  As June waned, the defense continued to slowly undermine O'Mara's case. The prosecutor had called more witnesses and had taken more time, but they were intent on weakening the foundation of his case. Grain by grain, they were draining the sand from beneath his pillars of reasonin
g. And now, with a surprise witness, Ruth Munroe's death was cast in a much different light.

  Dean Fesler, former husband to Munroe's daughter, Rosemary, described Munroe as "a chronic complainer" who popped pills like candy. The court had already heard that Munroe had once worked in a pharmacy. With Fesler on the stand, they also heard that she'd hoarded manufacturers' samples of both prescription and over-the-counter drugs, stashing them in a large cardboard box. "Each time she had aches or pains," Fesler said, "she'd reach into her box and take something."

  Fesler described Munroe keeping "between eight and twelve bottles of pills" on the nightstand beside her bed. "She was always getting a glass of water and taking one of these pills," he said.

  When Clymo asked Fesler what he knew about Ruth Munroe's death, he said, "My information was that she died of pills," underscoring the impression that—whether accidentally or intentionally—Munroe had self-administered the lethal dose of codeine and Tylenol.

  The defense drew multiple benefits with another witness, Carol Durning Westbrook. She described James Gallop as looking like "death warmed over," and Brenda Trujillo as a lying, ungrateful bitch who responded to Dorothea's help by giving only pain and disappointment. And Dorothea was again portrayed as Super-Landlady, cooking and cleaning for her tenants, even lending them money.

  Plenty of time was lavished on Puente's role as the operator of a boardinghouse of last resort for the truly down-and-out. Boarders such as Ben Fink, Vera Martin, Betty Palmer, and Dorothy Miller were portrayed as so foulmouthed, offensive, unmanageable, and even deranged, that other landlords had turned them out on the street.

  Kindhearted Dorothea Puente had stooped to accept even the lowliest clientele. How could she be held responsible for their alcoholic, pill-popping habits?

  Additionally, Puente was exonerated as a hardworking woman who, despite some illicit pilferage, never showed much profit.

  Running a boardinghouse was a tough business, as two former operators could attest. There were plenty of bills to pay, yet those paying rent were about as reliable as the weather. For most, a bottle was more important than a bed, regardless of debts outstanding. So, to make sure tenants paid, plenty of landlords collected the mail, deducting room and board from Social Security checks, then handing over the rest. Just like Dorothea Puente.

  One operator said he even had to put a lock on the mailbox. This same man testified about a young, apparently healthy tenant who'd died suddenly. "He was an alcoholic. He got some pills"—the man didn't know where—"and drank too much. He swallowed his tongue and choked to death."

  Sudden, unexpected death. Not murder.

  Witness by witness, they were sowing the seeds of doubt, underscoring the possibility that these people had passed on without being pushed.

  And the jurors—despite months of fatiguing testimony—seemed to absorb it all, jotting notes and revealing little.

  The defense turned to diffusing the money issue by calling Carl Curtis. With his meaty face, close-cropped hair, and nice suit, it wasn't hard to believe that Curtis had spent twenty years as a special agent with the FBI, covering white-collar crimes, and currently ran his own private investigations business.

  Clymo reviewed the man's ample experience, then offered him as an expert in fraud investigations.

  Curtis testified that the defense had handed over all of their information, everything they'd received under "discovery," then asked him to independently arrive at "a conclusion about whether Mrs. Puente committed murder for profit." The message to the jury: Curtis was objective, his conclusions untainted by coercion or bias.

  Using pie charts and comparison studies, Curtis undertook a detailed explanation of why Dorothea Puente's chronic larceny never brought in much revenue. Most of the money was eaten up in simply maintaining her business (which was, in his estimation, a "long-term care facility"). Food, laundry, utilities, rent—it all added up. At minimum, Curtis said, Puente's cost would be $13.20 per day per "patient." And even if Puente had filched every dime from checks totaling some $77,739 (based on the handwriting expert's figures), she just couldn't have made much profit over a three-year period. Curtis figured her breakeven point, given an average of five patients, at $55,536.

  Further, since Puente had purloined funds from people both living and dead, Curtis concluded, "There is nothing that would suggest there was any reason to cause the demise of anybody.”'

  The press took note.

  In fact, Curtis asserted, there was more money traceable to those still living then to those deceased.

  The defense stuck fast to their contention that Puente stole, but did not murder.

  But John O'Mara wasn't greatly impressed by this expert, or by his figures. He derided the comparison between a long-term care facility and Puente's boardinghouse, which he snidely characterized as "three hots and a cot," or "a mom-and-pop operation without the pop." In a three-day brawl, O'Mara thundered through the numbers, questioning the investigator's "universe" of funds, and forcing Curtis to back down on several points.

  Naturally, the defense had saved the big gun for last. They called Dr. Randall Baselt, a man with such extensive credentials that it took Kevin Clymo nearly an hour to admiringly list them all before offering the toxicologist as an expert witness. He was a writer of multivolume texts, founder of the Journal of Analytical Toxicology, esteemed member of myriad professional organizations, an expert among experts. And he looked every bit the part: the angular academic, wearing a serious, furrowed brow behind his spectacles.

  Clymo was as pumped for this as a point guard in the NBA playoffs. Over and over, he passed the ball to his witness, who then took his shot.

  "Given all the material you've reviewed for this case, Doctor," Clymo asked, "have you been able to arrive at any conclusions?"

  "I've concluded that I cannot make a determination of the significance of the presence of flurazepam and its metabolites at these levels."

  Clymo paced and waved, ready to clinch the game. "Do you have an opinion as to whether or not Dalmane was taken within twenty-four hours of death?"

  "I have not been able to draw that conclusion. Whether or not tissue parallels drug levels in blood or plasma, we don't really know. I wouldn't be prepared to make that assumption. And if you did," he stated ominously, "you'd be in very dangerous territory."

  Jurors exchanged looks and jotted notes. O'Mara furiously scribbled on a legal pad. Clymo gestured and queried, joking casually with the jury as his witness impassively deflated the conclusions of all the toxicologists who had testified before him. Dr. Anthony, Mr. Phillips, Mr. Beede, Dr. Peat—all were given a respectful nod before having their "unreasonable" opinions lanced like irksome blisters.

  Next, Dr. Baselt compared the dehydration of human tissue to evaporation working on a glass of salt water. In the end, the doctor said, "the drugs are like salt. They don't evaporate."

  O'Mara had expected this particular shtick. But it got worse.

  The toxicologist tossed up three obstacles that, he said, prevented drawing any conclusions from the toxicology results. First, there was no blood to test, and blood, as every juror knew by now, was the "gold standard" of toxicology. Second, the toxicology tests were based on decomposed, putrefied tissue, for which there was no standard whatsoever. And third, the drug levels ultimately detected were extremely low.

  Amazingly, the defense somehow managed to turn the pride of the DOJ toxicology lab—that finely tuned marvel, the $375,000 tandem mass spectrometer—into a handicap. Why, its sensitivity levels were too low, the doctor suggested, so low that it actually took science into uncharted territory. James Beede's tests hadn't come close to the DOJ results; Dr. Peat's lab also failed to approach them. So, if the DOJ readings were so infinitesimal, who could possibly say what they meant?

  It seemed to Dr. Baselt that these low readings could indicate some residue lingering in the body from past exposures. After all, he reasoned, Dalmane is fat soluble, so might be retained in "fairly fatty t
issue" like the brain and liver. "It may be," Dr. Baselt concluded, "that every time you test anyone who has taken Dalmane in the past week, it would show up" on the DOJ's hypersensitive equipment.

  How could John O'Mara hope to combat this pedigreed Ph.D. from hell? He loaded his arms full of scientific tomes and headed to his office for a long night of preparation.

  The next morning, O'Mara was ready to take on this intellectual ace. He began slowly, courteously, citing first one scientific study, then another, discussing half-lives, fat solubility, and dosing regimens. But soon the debate heated, O'Mara's tone sharpened, and they clashed over fine points of interpretation.

  It became a match of minds. And as technical terms were smacked from one end of court to the other— "pharmacokinetics," "dynamic equilibrium," "receptor occupancy," "electrophilic attraction"—the jurors watched, their heads pivoting like spectators at Wimbledon.

  O'Mara even managed to score a couple of points. Though Dr. Baselt had given the opinion that the seven individuals exhumed from the yard had taken Dalmane within three days of their deaths (clearing Dorothea Puente of blame), he now conceded that he wouldn't exclude the possibility that the drug had been ingested within twenty-four hours. And O'Mara got the doctor to admit that even though he believed that Dalmane was retained in tissues, such as brain and liver, at levels many times higher than in the bloodstream, he could cite only anecdotal evidence to support this; there were no published studies.

  Yet, as charged as the air had become, the jurors were drifting. It was an uncommonly hot day, the scientific jargon was hard to follow, and now this esoteric debate was straining the concentration of even the best among them. After all, what did it mean when experts disagreed? Didn't they just cancel each other out? Some jurors began to fidget. The XREM1ST dozed.

  Finally, on the afternoon of June 24, the defense was wrapping up. A last forensic toxicologist took a few parting shots at the prosecution. A few stipulations were read into the record. Then the defense rested.

  Save for a single certified document, O'Mara offered no rebuttal.