Judgement Calls

by Alafair Burke

  working."

  "And what do you mean by 'working," Officer Fenninger?" "Prostituting

  herself. Exchanging sex for money." "So what did you do about your

  suspicions?" Lisa asked. "I first saw her when I was headed west on

  Burnside, so when I got to Fifth, I took a right turn, headed north to

  Couch, turned right again, then headed south on Fourth so I could watch

  her from my patrol vehicle." "What did you observe?"

  "I saw the girl wave to a few cars that drove by on Burnside. A couple

  of cars stopped, and she talked to them through the passenger window.

  All the cars that she had any interaction with were driven by what

  appeared to be men who were alone."

  "Did you draw any conclusions from that?" "Yes. Given the time of

  day, the fact that it was Christmas, the neighborhood, and the activity

  that I observed, I believed that the girl was loitering to solicit

  prostitution." Fenninger testified that he arrested Kendra for the

  ordinance offense and then searched her and her purse, in what's called

  a "search incident to an arrest."

  Lisa held up a plastic bag with Kendra's purse in it, which I had

  marked as evidence during my case. After looking at his police report

  to refresh his memory, Fenninger confirmed that it appeared to be the

  same type of purse Kendra had been carrying last Christmas. He found

  heroin residue in the purse and added a charge for drug possession.

  Instead of booking Kendra as a prisoner, he wrote the charges on a

  ticket and took her to juvenile hall to have her processed as a

  runaway. It was a nice thing for him to have done for her.

  Lisa asked him whether he seized the purse as evidence. Fenninger said

  he should have, but that Kendra started crying, saying it was a

  Christmas gift from her mother. So he shook the residue into a baggie

  instead and let her keep her purse. Jesus, no wonder the juvie DA had

  dumped the case. Even the arresting officer seemed to think it was

  chippy.

  I didn't have much for Fenninger on cross. "Officer, do you know who

  assaulted Kendra Martin last February, two months after the arrest

  you've testified about? .. . Do you know anything about where Frank

  Derringer was when Kendra was attacked? ... In fact, have you ever

  even seen the defendant before today?" No, no, and no. I thought the

  jury would see that Lopez had no legitimate reason for calling

  Fenninger.

  Next was Kerry Richardson, the so-called loss prevention officer at

  Dress You Up, who was called to testify about Andrea Martin's trespass

  arrest at the mall. The testimony was completely irrelevant and

  inadmissible, but I didn't mind letting Lopez waste time with evidence

  that wasn't going to hurt me. Andrea hadn't been an important part of

  my case anyway. She only testified about the extent and duration of

  Kendra's injuries, facts that were established by other evidence too.

  Richardson testified that he was sure he saw Andrea conceal something

  inside of a shopping bag back in November before she left the store. He

  told the store manager, Geral-dine Maher, and the two of them

  confronted Andrea in the mall. However, they didn't find any stolen

  goods on Andrea,

  and Richardson hadn't actually seen Andrea steal anything. So instead

  of trying to prosecute Andrea for shoplifting, he had asked Maher to

  issue a trespass warning, telling Andrea she'd be arrested if she came

  back into the store. When he saw her again in January, he called the

  police.

  My cross was quick.

  "Was Ms. Martin convicted for shoplifting merchandise in November from

  Dress You Up?" No. "Was Ms. Martin even arrested for shoplifting

  merchandise in November from Dress You Up?" No. "Do you have any

  information to provide to the jury regarding whether Frank Derringer

  raped and attempted to murder Andrea Martin's daughter, Kendra, last

  February?" No.

  I couldn't help but give a look to the jury after I finished my cross

  of Richardson, just to make sure they got the point. I'd never seen

  such a desperate defense.

  My confidence began to feel misplaced when Lopez rose for redirect. "A

  point of clarification, Mr. Richardson. You testified that you

  couldn't actually see what Ms. Martin stole in November, but that you

  were left with the impression that she was concealing something, is

  that correct?"

  "Yes. Like I said, she was carrying a large shopping bag and it looked

  like her hand passed over it and she stuffed something in there, but I

  couldn't actually see what it would have been."

  Lopez used the old trick of looking at Richardson curiously, like she'd

  just realized something for the first time. "Interesting. You say

  that it looked like she 'stuffed' something in the bag, not that she

  merely 'dropped' something. Why is that?"

  Richardson thought a moment. "Well, just the way her arms moved. It

  was like she was struggling with the bag."

  "As if the object she were placing in the bag were relatively large?"

  she asked.

  This was getting ridiculous, so I piped up. "Objection, your honor.

  Leading and vague."

  "Sustained."

  This shows why I rarely object at trial. Once the leading question has

  been asked, the damage has been done if there's a rapport between the

  questioning attorney and the witness. Even though my objection was

  sustained, Lopez followed up by asking Richardson, "What size would you

  estimate the object to be that you thought you saw Ms. Martin conceal

  in the bag?"

  Richardson's response was predictable. "Relatively large. Bigger than

  a pair of earrings or something. Maybe a shirt or something bulkier

  like that."

  Lopez then moved to the table at the front of the courtroom where the

  physical evidence that had been introduced lay. She picked up the

  plastic bag containing Kendra's purse. "I'm showing you a purse that

  has been marked as State's Evidence Three, which prior witnesses have

  identified as Kendra Martin's purse, a gift from her mother Andrea. Is

  it possible that you saw Andrea Martin hide this purse in her bag last

  November in Dress You Up?"

  "Sure, it's possible."

  After Richardson left the stand, Lopez called Geraldine Maher, the

  store manager who barred Andrea from Dress You Up. I had expected

  Lopez to continue her questioning about the supposed theft incident,

  although I couldn't see why it would matter if Andrea stole the purse

  she gave Kendra from Dress You Up. But Lopez had something else in

  mind.

  "Ms. Maher, as the manager of Dress You Up, are you generally

  knowledgeable about the merchandise that you stock in the store?"

  "Of course. We're a fairly small store, so I take pride in knowing our

  inventory well." Never put it past a retailer to take advantage of any

  opportunity to get in a free plug.

  Lopez picked up the purse again. "I'm showing you a purse that's been

  marked State's Evidence Three. Has Dress You Up ever stocked a purse

  like this one?"

  "Yes. We've carried that purse. I believe it's an Esprit."
<
br />   Lopez pretended to check the small cloth label sewed on the side of the

  purse. "Correct indeed, Ms. Maher. You do know your inventory." The

  Home Shopping Network banter was killing me. What was going on here?

  Lopez continued. "Could this purse have been on your shelves last

  November, when Kerry Richardson thought he saw Andrea Martin steal

  something from the store?"

  "Yes. We would have gotten that in around June. I think we may still

  have a couple in the store. It's a relatively popular style."

  "So you had this style in stock last October, is that correct?"

  "That's right. June of last year until at least the after-Christmas

  sales, and we may have one or two left still on clearance."

  "Ms. Maher, do you recall contacting Staffpower Temporary Agency to

  count Dress You Up's inventory last October?"

  "Yes, I do. We do inventory twice a year, in April and October. I've

  been using Staffpower for a few years now."

  At that point, Lopez handed me a piece of paper I'd never seen before

  and then approached Geraldine Maher with a copy of the same document.

  Defense attorneys are not required to show their documentary evidence

  prior to trial. As I scanned the paper to make sense of it, panic set

  in. But there was nothing I could do, and I was left watching Lopez go

  to work.

  "Ms. Maher, I'm showing you a document I've marked Defense Exhibit

  One. What is it?"

  Maher responded, seemingly as oblivious as I was about where this was

  going. "It's a letter from Staffpower notifying me of the individuals

  they hired to conduct our inventory last October, with the amounts to

  be paid to each of them for their work. We pay the lump total to

  Staffpower to distribute and do wage withholding, but this acts as a

  sort of itemization of the amount."

  Lopez continued. "Please read for the jury the sixth name on the

  list."

  There it was. Even Geraldine Maher was surprised. "Oh, it's Frank

  Derringer, or at least according to this."

  "And do you have any reason to doubt the accuracy of that list?"

  "No, I do not. If it says that a Frank Derringer worked on our

  inventory, then I suppose he did."

  "And, to be clear, an inventory requires the person doing the counting

  to handle the merchandise, is that right?"

  "Yes, generally. They'd need to move stock around to count it

  properly."

  That was enough for Lisa. "No further questions."

  Lopez had just managed to defuse my most compelling piece of evidence,

  Derringer's fingerprint on Kendra's purse. Renshaw had already

  testified that Derringer had worked various jobs, including

  inventories, through temp agencies. And now Geraldine Maher's

  testimony gave a plausible explanation for how Derringer's fingerprint

  ended up on

  Kendra's purse, if the jury believed that Andrea either bought or stole

  the purse from Dress You Up.

  Judge Lesh denied my request for a recess, so I tried my best to

  control the damage. "You testified, Ms. Maher, that the handbag

  marked as State's Exhibit Three is a popular style of handbag, is that

  right?"

  "That's correct."

  "Where would I go if I wanted to buy a handbag just like that one?" I

  asked.

  "Oh, any number of stores. Like I said, we've got a few left, but so

  would most of the major department stores and other women's boutiques

  that carry that brand of purse. It wouldn't be hard to find one."

  "So Dress You Up is the not the exclusive seller of that purse in the

  Portland area, is that right?" I asked.

  "Far from it." Good.

  "Can you tell from looking at State's Exhibit Three whether it

  originated in your store or in any one of the many other retailers who

  stock it?"

  "No, I cannot."

  "And you never actually saw Andrea Martin steal anything from your

  store, let alone this purse, did you?"

  "No, I did not."

  "So the purse marked as State's Exhibit Three could have come from any

  number of stores other than Dress You Up?" She agreed. There wasn't

  much more I could do for now.

  During the break, I called MCT from my office. Ray Johnson picked up.

  It took me awhile to explain the connection that Lopez was trying to

  draw between Derringer and Kendra's purse.

  Ray wanted to make sure he got it right. "So one of Derringer's temp

  jobs was doing inventory at Dress You Up?"

  "Right."

  "And Lopez was able to show at least a possibility that Kendra's purse

  came from there?" he asked.

  "Right," I said. "A possibility. We know that the store carried the

  purse and that Andrea gave it to Kendra. Lopez was able to show that

  Andrea was in the store a month before Christmas, and there's at least

  a possibility that she stole something the size of a purse when she was

  there."

  "So what you need," he said, "is something showing that the purse came

  from another shop."

  "That's the idea," I said.

  He clicked his tongue while he thought. "Alright. Walker and I are

  still tied up on this Zimmerman letter, so I'll check with Forbes and

  Calabrese. Someone will do it, though, and we'll let you know what we

  find out."

  When I got off the phone, I noticed Tim O'Donnell waiting for me in my

  doorway. He looked annoyed that I hadn't noticed him during my phone

  call.

  "Hey, Kincaid, how's that trial going?"

  I didn't see any point in lying. "Pretty crappy, actually. My best

  evidence was this guy's print on the vic's purse. Turns out he had a

  temp job doing inventory, so he's claiming an alternative explanation

  for the evidence."

  "Bummer," he said. "Anything new about the Zimmerman connection?"

  I couldn't tell whether O'Donnell actually gave a rip about my case or

  if he was faking it to find out if there was anything he needed to know

  for his investigation into the anonymous letter.

  "I've got until tomorrow morning to file papers to exclude any evidence

  relating to the Zimmerman case."

  O'Donnell looked concerned. "Have you talked to the boss about making

  that motion?"

  "No," I said. It hadn't dawned on me to consult the District Attorney

  himself about my trial. In our large office, it was rare that we had

  any direct contact with the boss, let alone on individual cases.

  "Well," he said, "this is something Duncan would want to know about.

  He's feeling the heat on this Zimmerman thing. The last thing he needs

  is for one of his deputies out there trying to prevent a court from

  hearing evidence supposedly exonerating Landry and Taylor."

  "But, Tim," I said, "Lopez isn't trying to exonerate Landry and Taylor.

  She's trying to get Derringer off by confusing the jury and trashing

  MCT. That evidence has nothing to do with my case."

  "Sam, I'm trying to help you out. How about joining the rest of us in

  the real world? I don't get it. You're so fucking smart, but you're

  acting like some rube on misdemeanor row who can't see the politics

  here."

  I knew the politics, but I hadn't connected them t
o my case. Duncan

  Griffith ran for DA as an opponent of the death penalty who'd make sure

  that the law was at least enforced even handedly against the truly

  reprehensible. In short, he got it both ways. The libs liked him

  because he talked the talk against the death penalty, but no one came

  after him on it, because he said he'd enforce the law.

  O'Donnell had more advice. "Jesse Taylor is the first scheduled

  execution this state has seen in decades. And we put him on death row,

  Sam. This is the center of the storm.

  If he turns out to be innocent, Duncan's got well, he's got a major

  problem. The only way he's going to make it through is if he's one of

  the good guys making sure we know who killed Zimmerman. If one of his

  deputies looks like she's part of a cover-up, he's toast. If you don't

  go to him with this, I will. The Zimmerman case was mine, and this

  shit that's going down now is a hell of a lot more important than some

  loser like Derringer."

  "Yeah? Well, that loser basically tortured a thirteen-year-old girl

  and then left her to die. I don't see much of a difference between him

  and Jesse Taylor."

  He looked frustrated, but at least his response seemed earnest. "Sam,

  I wasn't saying Derringer was a good guy. Hell, maybe I was too quick

  to write it off as an Assault Three. But be pragmatic. The boss's