Judgement Calls

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Judgement Calls Page 17

by Alafair Burke


  without admitting her own troubles.

  "But I believe that when she explains to you why she initially withheld

  some information from police, you will understand. You will also

  understand, and you'll determine from the rest of the evidence and from

  your own common sense, that Kendra Martin did not deserve what Frank

  Derringer did to her. She never consented to be tortured and left to

  die near Multnomah Falls.

  "You will hear evidence that Frank Derringer plotted this crime in

  advance and then took extraordinary steps to avoid detection." I gave

  them a detailed preview of the evidence that Derringer had shaved his

  pubic hair during the days before the attack and then painted his car

  and replaced its interior the next day.

  "You'll also hear from Detective Mike Calabrese. He'll tell you that

  he found Kendra Martin's purse in a trash can about a mile away from

  where the defendant and his accomplice dumped Kendra to die. An expert

  in fingerprint technology with years of training in this type of

  evidence will testify that a fingerprint left on the strap of the purse

  belongs to Frank Derringer."

  I paused and looked across at the face of each juror to make sure that

  the jury realized the impact of the fingerprint evidence.

  "After you've heard from all these witnesses and experts, I'll have a

  chance to talk to you once again. At that time, I think you'll find

  that the State's evidence is going to measure up to the strong case

  I've outlined for you here. And based on that evidence, I'm going to

  ask you to return verdicts of guilty on all counts. I'm confident that

  once you hear the horrendous facts of this case, and the overwhelming

  evidence establishing Frank Derringer's culpability, returning that

  verdict will be the easiest part of this entire trial for you."

  Legal strategists say that jurors make up their minds about a case by

  the end of opening statements. At the end of mine, I felt like I had

  them. I took my seat at the state's counsel table, closest to the jury

  box.

  When Lesh nodded to Lopez to indicate she should proceed, she rose from

  her chair, put her hands on Derringer's shoulders, and said, "Members

  of the jury, Frank Derringer would like nothing more than for you to

  hear the truth about what happened in this case right now, because he

  is an innocent man who wants to go home. But, your honor, as his

  attorney, I have decided to withhold my opening statement until the

  State has put on its case."

  Lisa apparently had even less confidence in her case than I thought. I

  wondered if she had reserved opening to delay locking in her defense

  until she knew for certain what we had.

  But Lisa had gone a little further than that, insisting that Derringer

  was innocent. Most attorneys go out of their way not to use that word;

  all they really want to hear is "not guilty," and in a courtroom "not

  guilty" is a far cry from innocence. If I wanted to be a stickler, I

  could argue that she made an opening statement by referring to the

  merits of the case. But what did I care? Better for me to put on a

  one sided show.

  I'd be putting on my witnesses earlier than I thought. So far, so

  good.

  My first witnesses were Brittany Holmes and Parker Gibson, the high

  school students who found Kendra in the park and called the paramedics.

  With their preppy good looks, they could have been a couple of

  teenagers you see sailing and splashing water on each other wearing

  hundred-dollar khakis in those mail-order catalogs. But they were

  polite and articulate, so they were good witnesses.

  The kids described their terror when they realized that they had

  tripped not over a log but over the bloodied and unconscious body of a

  young girl. What came across unmistakably was that when they saw

  Kendra, they saw a girl just like one of their friends or little

  sisters. They showed no judgment.

  The EMT's testimony went just as well. Whether it was seen from the

  fresh outlook of a shocked teenager or through the lens of a skilled

  professional experienced in dealing with violence, this crime was a

  serious one. The people who were there to witness her condition

  firsthand all agreed that Kendra had been treated horrifically.

  Mike Calabrese was up next, to explain how he and Chuck supervised the

  crime scene. He summarized the basic mechanics: marking off a

  perimeter, keeping a log of everyone who entered and exited, collecting

  and maintaining anything that looked like it might be physical

  evidence. That kind of stuff impresses juries.

  Around the time they finished processing the crime scene, they got word

  from the hospital that the suspects had sodomized Kendra with some type

  of stick. "We didn't find anything in the immediate crime scene that

  could've been the weapon, and we couldn't search the entire park for a

  stick. But my partner, Chuck Forbes, noticed that the park put garbage

  cans along the side of the road. We decided to look in the cans along

  the road on the way out of the park on the long shot that the suspects

  threw the weapon in one of them."

  "Did you locate anything in any of the garbage cans that might have

  been used to sodomize Kendra Martin?"

  "No, ma'am, we did not." Mike's rough edges were barely detectable

  when he testified, I noticed.

  "Did you find anything that you deemed to be relevant to your

  investigation?" I asked.

  "We did," he answered.

  "And what was that?"

  Calabrese turned his head toward the jury box and answered.

  "Approximately a mile from the crime scene, I found a black leather

  purse on top of the garbage in one of the containers."

  I cut in. "At this point in your investigation, Detective, were you

  aware that the suspects had taken Kendra Martin's purse from her?"

  "No, ma'am, I was not."

  "OK. So what did you do when you found the purse?" I asked.

  "I wasn't sure whether it was related to our case or not, but it was

  suspicious in any event. I've been trained that discarded property is

  considered abandoned under the Constitution, so I'm permitted to search

  it without a warrant. I removed the purse from the garbage and opened

  it."

  As long as he actually gets it right, I like it when an officer tells

  the jury the basis for conducting a search. It's not actually the

  jury's job to decide whether evidence was obtained lawfully. That's

  for the judge to determine. But you never know when you're going to

  get some wise-ass wanna-be ACLU'er on the jury who decides to convince

  the rest of them that some constitutional violation has occurred. "OK.

  And did you use your bare hands to remove the purse from the garbage

  and open it?"

  "No, ma'am. I was wearing police-issue latex gloves during my search."

  He looked at the jury. "It wasn't much fun poring through that stuff

  even with the gloves." Some of the jurors laughed quietly, and he

  continued speaking to me. "Once I saw the purse, I removed the gloves

  I had been wearing and replaced them with a new pair. I was wearing
>
  those when I picked up the purse and opened it."

  "And what did you find in the purse when you opened it?"

  "Things that looked to me just on first appearance like they might

  belong to the victim, given her age. She had some gum in there, a tube

  of lip gloss, a change purse with a Hello Kitty sticker on it. Turned

  out to be empty. There was no official identification in the purse.

  The victim's just a kid, so there wasn't going to be a driver's license

  or the standard type of ID. I did find one of those wallet inserts

  that have the see-through plastic pockets to put pictures and credit

  cards in. It had a few pictures in there that looked like school

  photographs of some little kids. Some of the kids had written messages

  on the back of their pictures. They were addressed to

  Kendra. I figured at the time that must've been the victim's name, but

  I subsequently confirmed that information with other detectives."

  "Once you determined that the purse belonged to Kendra Martin and was

  involved in your investigation, what did you do?"

  "My intention was to preserve the purse as I found it, so a crime

  technician could process it for fingerprints or anything else of

  evidentiary value. I took a plastic evidence bag from my car and,

  still wearing my gloves, I placed the purse in the bag, sealed it, and

  marked it with the date and my initials."

  "And, detective, why did you mark the bag like that?"

  "Whenever we seize physical evidence, we seal it in an evidence bag to

  protect it from tampering, then mark the bag with our initials and the

  date and time. The bag isn't opened until it gets to the crime lab.

  It's a way for us to make sure that what the crime lab gets is what we

  actually seized in the field."

  In the same tedious question-and-answer format, we made our way through

  Mike's link in the chain of custody. He brought the bag with the purse

  inside of it back to the precinct and put it in the evidence locker.

  Luckily, he was the person who had "lab run" duty the next day, so I

  didn't have to bring in an extra witness to vouch for the walk from the

  Justice Center to the crime lab. Mike delivered it to Heidi Chung

  personally.

  I spent the rest of the morning continuing to work step by mechanical

  step through my trial outline. I was running the show in the

  courtroom, since Lisa appeared to be doing little in the way of

  cross-examination. Of Brittany Holmes, Parker

  Gibson, and the EMTs, she asked one question: "Do you have any personal

  knowledge to suggest that my client was one of the people who assaulted

  Kendra Martin?" Of course, they all said no. She didn't ask Calabrese

  a single question.

  My guess was that she was saving the heavy stuff for Kendra.

  Eight.

  Ray Johnson and Jack Walker were waiting on a bench outside of Lesh's

  courtroom when I got down to the fifth floor after the lunch break. I

  started having my witnesses meet me outside the courtroom soon after I

  became a DDA. That way, when the judges invariably start late, I can

  make use of the time by preparing my witnesses in the hallway. An

  added bonus of the practice is that it keeps the dirtbag informants in

  my drug cases out of my office and away from my stuff.

  I assumed that the man sitting alone on a separate bench farther down

  the hall was Dr. Preston Malone, the emergency room resident who

  treated Kendra at the hospital. Anyone who's had a shower and hasn't

  ingested illegal narcotics within a couple of days stands out on a

  bench in the courthouse. Unless, of course, you can tell the guy's a

  cop, either from the uniform or the other sure signs beer gut, bad

  tie,

  big gun, those kinds of things. In Preston Malone's case, the medical

  journal he was reading gave him away.

  When Ray and Jack spotted me, they both opened their mouths to speak,

  but I rushed past them with one finger up to let them know I'd be right

  back. I wanted to touch base with Dr. Malone first. Typical of most

  physicians, he hadn't found time in his schedule to prepare his

  testimony with me. And, although I had Kendra's medical records for

  the grand jury, Dr. Malone hadn't appeared personally to testify. In

  other words, I had no idea what I was getting.

  When he realized I was approaching him, he stood and offered his hand.

  From a distance, the guy looked really good. But standing close to him

  now, I could see that his profession was taking its toll. He hadn't

  shaved, his eyes were bloodshot, and his hair was a mess. Tell you the

  truth, I'm not sure that his eyes were completely focused. Coming out

  of ER like that? Scary.

  He apologized for not being able to meet with me before trial.

  "With the schedules we get at the hospital, it's pretty much impossible

  to keep an outside appointment. I have to admit, I was happy to get a

  subpoena. Thought maybe I could catch a nap while I was waiting. But

  when I was walking out, the attending physician gave me this medical

  journal and asked me to summarize the articles for him when I got

  back."

  "You have to go back when you're done here? You'll probably be here

  until the end of the day."

  He smiled. "Not the way a hospital defines the end of a day. I went

  in yesterday at six in the morning. I'll get home around ten

  tonight."

  I vowed inwardly never to complain again about my workload.

  I ran through the trial outline in my head. "Actually, I could put you

  on first so you don't have to wait around here."

  "Um, thanks, but if it's the same to you, I'll wait as long as

  possible. I'm almost done with this journal, then I'm gonna crash

  right here on this luxurious wooden bench."

  "I guess with your residency, you don't really need a suite at the Four

  Seasons to sleep," I said.

  "No, but the thought is pure ecstasy."

  I could tell he was about to nod off at the idea, so I got my trial

  prep in quickly. Malone's job would be to describe Kendra's demeanor

  and injuries. I hoped the nap would refresh him before his

  testimony.

  I left him there, lying on the wood bench, and walked back to where

  Walker and Johnson waited.

  "Pretty good kid, isn't he?" Walker said, nodding his head toward

  Preston Malone.

  "Seems like a hard worker. You guys ready?"

  "Let's roll, girl." I could tell Johnson was getting into witness

  mode.

  After Lesh took the bench and brought the jurors back in, I rose and

  said, "The State calls Detective Raymond Johnson."

  When he stood to walk to the witness seat, I noticed Claudia Gates, the

  heavyset middle-aged black woman on the jury, sit a little straighter

  in her chair and let her eyes follow Ray to the front of the

  courtroom.

  For her sake, after I asked Ray to state his name, age, profession, and

  some other general background information, I added, "Are you married,

  Detective Johnson?" I'm not above playing to a juror's weaknesses.

  Whether he knew why I was asking or whether he just has a natural

  charm, Ray Johnson gave the perfect ans
wer: "Not yet, Ms. Kincaid. So

  far, the only woman in my life's my momma, but I'm still trying."

  I thought I actually heard Claudia Gates's blood rush, but it was more

  likely the courtroom's crappy radiator.

  I know. I'm a hypocrite. As much as I hate it that a good portion of

  my half of the species loses all rational thought when a good-looking

  man's in the room, I happily accept these boy-crazed women as jurors

  when my cops are hot.

  Ray covered some of the same ground as the initial witnesses,

  describing the mood of the crime scene and Ken-dra's appearance when

  MCT first arrived. Then we talked about what happened after he and

  Jack separated from Chuck and Mike.

  "When you saw Kendra Martin at the hospital, did you reevaluate your

  assessment of her injuries?"

  "In some respects." He explained that Kendra's appearance

  substantially improved once the hospital staff cleaned the blood from

  her, but she was still in obvious pain, evidenced by severe bruising on

  her face and body, a large laceration across her nose and left cheek,

  and noticeable discoloration around her neck.

  "After you initially spoke with Kendra Martin, did you have an idea in

  your mind about what had happened to her that night?"

  "Yes, based on what she told me and my partner, Jack Walker."

  "After the initial interview, did you speak to Kendra again about what

  happened to her that night?" I asked.

  "Yes. After some additional investigation, Detective Walker and I

 

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