by Tal Bauer
The guilty always squirmed.
A defense attorney’s sole job was to create a theory that could carve doubt in jurors’ minds. A theory that could be built in increments, in grunted admissions or slices of weakness culled from witnesses, eviscerations bled out on cross-examination. A theory built from pinched eyes and frowns, and a slowly-growing belief that maybe the defendant didn’t actually do the crime. The theory could be right or wrong, based in fact or fantasy, or anything else. It only had to work. It only had to plant that seed of doubt.
So far, watching the jury, Renner had lost every point he’d gained that morning. The jurors gazed at Kryukov with hard eyes, eyes that looked ready to kill. This was the first death penalty trial at the federal level in years, but these jurors were ready for it. Hungry for it. If they found Kryukov guilty, they would execute him.
Renner’s theory wasn’t working.
Dr. Jacqueline Sparks, Medical Examiner, took the stand next, admitting a mountain of evidence to go along with her testimony. Renner glowered through her swearing-in, and then sat on the edge of his seat, ready to spring at the first hint of an objectionable statement.
Renner was against her entire testimony, and had argued vigorously in sidebar, out of hearing of the jurors. “The defense does not dispute the facts of death, Your Honor. Not the manner of death, or the means to carry out the murders. I will remind you, the actual murderer is part of the government’s case against my client, who did not pull the trigger and kill any of these individuals.”
“No, your client just planned their murders. Orchestrated the entire operation.”
“Allegedly.” Renner sent Ballard a frosty glare. “Your Honor, this entire testimony is prejudicial to my client and serves no purpose other than to upset the jurors.”
“Testimony from medical examiners is always considered key evidence in any trial. We must establish the facts of the crime, including how these individuals died. Barring this testimony would be a grave disservice to the jurors. They would have an unbalanced view of the facts.”
Tom noticed Ballard never uttered the words “Your Honor”. Not once.
“The defense does not dispute the facts of death, Your Honor. We request you bar this testimony.”
Which way to go? Both Ballard and Renner had valid points. Ballard still refused to look him in the eye. Renner implored him with his gaze. Any testimony from the medical examiner would certainly hurt Kryukov and inflame the jury, play on their already-strummed heartstrings.
He’d given Renner a win with the discovery motions, though, and had given the defense significant latitude in crafting their strategy. Enough latitude that Renner should be able to recover from this testimony, if he’d worked diligently. If there was anything at all to craft.
“I’m allowing this testimony.” Tom tried to catch Ballard’s gaze, but Ballard still looked just beyond his shoulder. He didn’t react to Tom’s ruling. “Dr. Sparks may take the stand.”
Renner cursed under his breath. Ballard nodded once. Both melted back to their tables, Renner whispering in Kryukov’s ear for a long minute as Sparks took the stand.
Nauseating crime scene photos followed, wave after wave of sunbaked blood on marble steps, bullet trajectories mapped out with neon evidence straws, shattered bullet fragments embedded in the Capitol. Autopsy records, and photos of the victims laid out on steel examination tables. Agent Payne and other federal law enforcement officers watching in the gallery looked down at the floor, not watching the giant images projected on the flat-screen of their friends, their bodies and murders on display for the world.
Cause of death for each victim was a lethal shot from a 7.62-millimeter round, the projectile fired by a Dragunov sniper rifle. Patrick Ross died from a shot to the neck, which shredded his carotid artery and trachea. Steven Harvey was killed with a shot to the head, slicing through his occipital lobe. Chad Robertson was killed with a single shot to the chest, the giant bullet bouncing around in the chest cavity and shredding his lungs, aortic arch, and half his heart.
Documents supplied by the Russians and reviewed by Dr. Sparks, showed the Russian presidential security agent died of two shots through his back, puncturing both lungs.
The Russians also supplied careful medical documentation about President Vasiliev’s injuries. A shot to his upper right shoulder, nicking an artery and shattering his shoulder blade, his joint. The x-rays showed an explosion of bones, a garbage heap of debris. He’d be lucky to regain partial functionality of his right arm.
Dr. Sparks spent nearly two hours walking through each autopsy, each cause of death, each gruesome photo gallery. Some jurors cried. Others looked away, fury etched onto their faces. It was well past noon when Dr. Sparks finished, and Tom called the lunch recess.
He and Mike slipped back to his chambers, not speaking until the door closed behind them. Tom shook his head, his shoulders slumping. “I can only imagine the headlines after that testimony.”
“Are you okay?” Mike reached for him, his fingers sliding up Tom’s robe and rubbing over his wrists.
Tom had more murder cases under his belt than most judges. As a prosecutor, he’d been tough on murderers, pushing just like Ballard had, making it hurt, bringing to life the suffering of the victim for the jury and for the defendant. He’d counted it a personal victory if he’d gotten the defendant to weep during his presentation. As a judge, he’d been stiff with his penalties for the handful of murderers found guilty in his courtroom.
But it was different, watching the autopsy presentation of men he’d personally watched die. In the courtroom, facts were supposed to be facts, distant, noble things that had no taint of emotion. No wash of haunted memory. In the past, he could look at crime scene photos and autopsy records all day long and not feel the touch of pain, a curl of horror and loss at the death and the tragedy. But he’d seen Patrick Ross die. Had watched Steven Harvey slump to the steps. Remembered Chad Robertson’s blood racing down the Capitol. He’d watched these men breathe their last breaths, give their life for their duties, for the country, and for the Russian president.
He couldn’t pretend to be unmoved by that, not here, not with Mike. He tangled their fingers together. “I’m better now.” He squeezed.
Mike pulled him close, exhaling against his hair as they wrapped their arms around each other. They stood silently, pressing their bodies as close as they could, letting the silence wreath them. If Tom closed his eyes, he could almost imagine it was peaceful in the world.
Knocking broke them apart, and Mike pulled away, headed for the door. Peggy smiled and said hello to them both as she passed Mike a large brown bag.
Tom breathed in deeply. Food, and lots of it, by the smell.
“I ordered lunch for you during the first recess.” Mike seemed sheepish as he opened the bag, unpacking enough Chinese food for a small army on Tom’s conference table. “I wanted to take care of you. Make sure you ate.”
What would he do if Mike wasn’t in his life? Probably pace the lunch break away, locked in his chambers, and eventually try to force down a granola bar. How isolated he’d been before Mike, personally and professionally. Lunch with law clerks during a trial of this magnitude was out of the question, but other than them, he’d been all alone.
“Thank you.” He shucked his robe and sat down right next to Mike, who was piling a paper plate with food for him. Mike filled his own plate and sat, and Tom reached for his hand. “You take great care of me.”
Mike blushed and beamed, and held Tom’s hand while they ate.
Renner picked up immediately after lunch, like a football coach who’d regrouped at half time and seen the face of God. Ballard was going to pay for forcing Dr. Sparks’s testimony.
“Dr. Sparks, you are obviously an extremely competent and thorough medical examiner. Your testimony was detailed and flawless.” He waited, allowing Dr. Sparks a tiny nod of thanks. “I myself told the prosecution that your work was impeccable, and that we did not dispute any of the f
acts of this case.”
Dr. Sparks’s lips thinned. She said nothing.
“Knowing that, why do you think you’re here?”
“Objection!” Ballard was on his feet. “Calls for speculation.”
“I’ll rephrase.” Renner smiled his slick attorney’s smile. “Dr. Sparks, if the defense does not dispute the facts of these individuals’ tragic deaths, then what purpose does your testimony serve?”
“Objection! The same objection! This is ridiculous.”
Tom fixed Ballard with a glare. “Outbursts from either party are not welcome in this court. Counselor, move on to a different line of questioning.” Renner had made his point. The jury was squirming.
“Dr. Sparks, do you know anything about whether Vadim Kryukov is responsible for planning these murders?”
“No.”
“Do you have any information about who may be responsible for planning these murders, other than what you’ve read in the papers?”
“No.”
“You know no facts about whether my client is guilty or innocent of the crime he is being accused of?”
“No.”
“So, since we do not dispute one iota of your testimony and you have no information to share about my client’s involvement in these crimes, your testimony, then, served only to play on juror sympathy?”
Dr. Sparks wisely did not answer. Ballard was on his feet in an instant, crying out, “Objection! This question is argumentative and abusive! The defense is badgering the witness.”
“Withdrawn.” Renner smiled again. “No further questions, Your Honor.”
“Strike the last question from the record. Jurors, please treat that last exchange as if it never happened.” Tom watched the jurors carefully. Some made notes, other scratched lines out on their pad. All of them glanced from Renner to Ballard, their eyes narrowing.
Special Agent Lucas Barnes took the stand next. He walked the court through the FBI’s investigation, through Bulat Desheriyev’s sniper nest, the location he fired the fateful shots from. He spoke about Desheriyev’s sniper rifle, a Dragunov, a Russian-made classic in sniper circles. Hardy and reliable, it was less powerful than the American Barrett, but still extremely lethal.
Barnes then moved to the search of Desheriyev’s bolt-hole in suburban DC, the hideout he had built up for several months, hoping to escape to, and fade into obscurity in, after the crime. Who would suspect the young immigrant who bought fruit every Tuesday and Saturday, and who smiled at dog walkers and little old ladies?
At Desheriyev’s place, they discovered the cocaine baggie, most of the cocaine gone—used—drug paraphernalia, and Desheriyev’s cell phone. Kryukov’s fingerprint was on the cocaine baggie, and a text from Kryukov’s personal cell phone was on Desheriyev’s, confirming the Russian president’s location at the Capitol on the fateful Saturday. The text was verified through phone records, and forensics were able to recover the deleted text from Kryukov’s phone.
Barnes was a skilled witness. He’d been on the stand in his career more times than Tom could count. He himself had used Barnes multiple times in high-profile FBI and counterterrorism cases. He faced the jury, his testimony as if he was having a conversation with them. Tom watched more than one juror smile at Barnes.
After a day of hard-hitting, emotionally-draining testimony, Barnes’s calm, collected competence was like a salve to their wounded hearts and minds. Even Tom found himself leaning into Barnes’s testimony.
Ballard let Barnes testify in long, narrative explanations. Barnes was in control, telling the story of the evidence with little prodding and guidance from Ballard.
“Agent Barnes,” Ballard said. “How did the FBI verify Bulat Desheriyev’s statements after he began cooperating with the prosecution?”
“We walked Mr. Desheriyev through his confession, searching for physical evidence to corroborate each of his claims. We analyzed his cell phone and discovered the text message. Through checking the cellular records and subpoenaing the carrier, we established that the number was Vadim Kryukov’s, which we confirmed when we arrested the defendant. We found the materials provided in the dead drop to Mr. Desheriyev, including the cocaine baggie, and had it tested for fingerprints. We found Kryukov’s fingerprint. The evidence clearly backed up Mr. Desheriyev’s statement and confession.”
“Was there any discrepancy between any physical evidence and Bulat Desheriyev’s statements?”
“None.”
“Did the FBI investigate the possibility that there might have been conspirators beyond Vadim Kryukov?”
“We found no evidence to indicate that there was any other conspirator beyond Vadim Kryukov. In order to verify that, we asked Mr. Kryukov to cooperate with the investigation. We offered him a similar deal to Mr. Desheriyev, if he was truthful and cooperative with the investigation. He refused.”
And then it was Renner’s turn.
Cross-examination was a battle, and with an opponent as skilled and likable as Barnes, Renner had his work cut out for him. Renner had to seize control, wrest it back from Barnes, but not look dominant in front of the jury. Not appear like a bully. He had to make himself seem more competent than Barnes, and sincere, too. Likable. Enough to plant a sliver of doubt in Barnes’s testimony, make the jurors hesitate. Start the dominos of doubt falling, slowly.
Or, he could go the other way, and try and rip Barnes a new asshole.
Tom watched and waited.
Renner put himself squarely in front of the jury, forcing Barnes to look right at him. “Agent Barnes, did Vadim Kryukov and Mr. Desheriyev have any face-to-face contact during this conspiracy that Mr. Kryukov allegedly planned?”
“Not to our knowledge.”
“Was this conspiracy put together mostly through phone calls and texts?”
“Yes.”
“Would it be fair to say that both men appeared to be very careful with their movements. Where they went, when, and who they were seen with?”
“It would be fair to say that.”
“Mr. Desheriyev’s handler used multiple cell phones, switching numbers, trying to prevent being captured by electronic surveillance, it seems. Is this a common tactic among terrorists?”
“It is. Both terrorists and drug dealers.”
Tom’s gaze slid to Kryukov. He’d admitted he was a drug dealer, and the evidence supported that assumption. As did it support his actions as a terrorist mastermind.
“Does the text message seem odd, then? If they were so careful, and switched cell phones for every message, why did my client suddenly text detailed plans of the operation from his own cell phone to Desheriyev?”
“I cannot comment on the motivations of the defendant.”
“Does it seem out of character for the sophistication of the rest of the operation?”
Barnes hesitated. “It might.”
“How does the FBI know that text was sent by Vadim Kryukov on Thursday morning?”
“It came from his cell phone. Cellular records confirm it originated from his cell phone, and triangulation of both his cell signal and confirmation by the phone’s onboard GPS place the cell phone at his residence on Thursday morning. There were also no other fingerprints on his cell phone. Only the defendant’s. Only he could have sent it.”
“Tell me, Agent Barnes. Do you let anyone else handle your phone? Look at emails? Pictures? Memes?” Renner smiled. “Maybe let your wife make a call?”
“No.” Barnes didn’t smile back. “It’s my Bureau phone. No one touches it but me. And I am not married.”
“My mistake.” Renner smoothed his tie, pivoting. “But, it’s fair to say that other people do sometimes share their phone, or let other people handle it.”
“I suppose.”
“In all your investigations, Agent Barnes, have you ever seen an example where a phone only had one set of fingerprints?”
Barnes shifted. “It is rare, but it does occur.”
“In any of those instances, those cases, was it t
hen ultimately concluded that the cell phone had been wiped of prints before being handled again, and that was the reason for the single set of prints?”
Silence. Barnes went rigid, his whole body tensing. He drew himself up, as if gathering himself, gathering the mantle of his federal power. “That has occurred, though very, very rarely. Once or twice.”
“Once or twice.” Renner smiled again. His point had been made.
“This case, Agent Barnes, seems to rely on the sudden ineptitude of these terrorists. Making an amateur slip that would capture their cell phone data. Leaving a careless fingerprint. Lucky for you that men who were so careful in planning every stage of their conspiracy would let a single text and a single baggie of cocaine be their downfall.”
Barnes waited for Ballard’s objection. “Objection! Defense is arguing with the witness and putting on a show. This isn’t theater.”
“Sustained.” Tom arched his eyebrows at Renner. He was pushing hard.
“If the men never met face-to-face, Agent Barnes, then how did a cocaine baggie with my client’s fingerprint end up at Desheriyev’s house?”
“As we understand it, the baggie was left at a drop location, along with maps of the Capitol and of DC. It seemed to be a bonus payment to Mr. Desheriyev. At least, that is how he took it.”
“Were Vadim Kryukov’s fingerprints on any other material in the drop?”
“No.”
“The only proof of Vadim Kryukov’s involvement, then, is his fingerprint on this one bag?”
Barnes hesitated. “The only proof of his involvement in the drop, yes. But there is other evidence tying him to the case.”
“So no one watched him put the baggie in the drop?”
“No.”
“Is Vadim Kryukov a known cocaine dealer?”
“He is.”
“To a group of Russians, a select group of individuals, mostly tied to Russian organized crime rings and nightclubs, correct?”
“Yes.”