Presumption Of Death

by Perri O'shaughnessy

  “No, ma’am. We only wanted to question-”

  “Was I obligated in some way to allow you inside the home?”

  “Not legally, ma’am, no.”

  “And did Mr. Whitefeather in any way attempt to resist or flee?”

  “No, ma’am.”

  “And was he in any way uncooperative?”

  “No, ma’am. You were the one who was uncooperative. You advised him not to say anything.” Nina heard a ripple of laughter behind her.

  “How did you get Mr. van Wagoner’s home address?”

  “We have it on file.”

  “Now, you said that you got a call from the Las Flores Clinic that Mr. Whitefeather had been hiding there?”

  “Yes, ma’am.”

  “You assumed he was fleeing police?”

  “It was my working theory.”

  “How do you know he was hiding?”

  “Well, there were plenty of places to get medical treatment closer than fifty miles away.”

  “Is the Las Flores Clinic a private clinic?”

  “No, ma’am, it’s part of the San Benito County system.”

  “Did Mr. Whitefeather use an assumed name?”

  “No. He used his real name.”

  “Did he use a fake emergency name and number?”

  “No, since it led us to him.”

  “Did he have genuine injuries?”

  “It appeared he did.”

  “Is there any indication he stayed unnecessarily long at the clinic?”

  “Not that I know of.”

  “And as soon as he was discharged, he returned to the county?”

  “Yes, ma’am.”

  “Is that the usual behavior of a fleeing felon?”

  “Objection,” Jaime said. “Calls for a conclusion. Calls for an opinion. Speculation.”

  “He can speculate all he wants about why the defendant was on the mountain and why he chose this clinic, but he can’t speculate about the behavior of a fleeing felon?” Nina said.

  “I get the point,” Judge Salas said. “Objection overruled. Let’s move it along.”

  “Your answer?” Nina said to Deputy Grace.

  “No, it’s not what I would expect from a fleeing felon.” Grace was still relaxed. He had told the truth without any fuss, and Nina respected that.

  “Thank you, Deputy.”

  “No redirect,” Jaime said, and Deputy Grace stepped down.

  They took a short recess. Paul was fuming. “On file,” he said. “I guard my home address like El Al guards its ticket counter. No way could they get my address.”

  “So that’s why we don’t have many visitors,” Nina said.

  “Why didn’t you follow up some more on how he got my address?”

  “Because it has nothing to do with this hearing, and it would add a confusing bit to the transcript, and because you can call him and ask him.”

  “They’re keeping a file on me, Nina.”

  “They’re keeping a file on everybody,” Nina said. “I’m going back in and get ready for Crockett.”

  32

  “G OOD AFTERNOON, DETECTIVE CROCKETT.”

  “Good afternoon.” Jaime had already taken Davy Crockett through the story of Wish’s arrest and interview at the station. Methodically, he had then obtained an outline of the series of arson fires that had occurred, the Cat Lady’s statement about two men, Wish’s burns, and had even attempted to bring in Wish’s juvenile record for setting a fire. Nina had objected, of course, but Judge Salas had absorbed it even as he sustained her objection.

  Now it was her turn. The object of all this was to show that Wish’s actions and statements were consistent with innocence, and that Coyote had also been on the mountain.

  “Now, Mr. Whitefeather told you at the interview that Danny was only trying to stop the fires?”

  “That’s about all he said, yes. You advised him to remain silent but he did say that, in addition to admitting he was on the ridge that Tuesday night.”

  “All right. Now. There was a reward for information leading to the arrest and conviction of the arsonist in the previous two fires, am I correct?”

  “I believe so. It was put up jointly by two corporations that suffered property damages due to the arsons.”

  “And the amount of this award was?”

  “A hundred thousand dollars, I believe.” Judge Salas stroked his chin.

  “You had received numerous tips from the public about who the arsonist could be?”

  “Yes.”

  “Ruth Frost asked for that reward, did she not, after she signed her statement?”

  “Doesn’t mean she wasn’t telling the truth.”

  “Right. So there was great public interest in this reward? It had been well-publicized?”

  “Yes.”

  “Would a photograph of a man, accompanied by a sworn statement that the photograph was taken at the time and place of an arson fire, be evidence that the man was an arsonist?” The question was clumsy, but Crockett understood and Jaime made no objection.

  “Possibly. It might be a firefighter, or an innocent bystander.”

  “Right. But your office would follow up to determine if this person was an innocent party or not if presented with such a photograph?”

  “Sure we would.”

  “Now, you have testified that the murder weapon was found to be a camera.”

  “Dr. Rittenhauer will go into that further in her testimony, I believe.”

  “But that’s your understanding?”

  “Yes.”

  “And you have identified the camera as belonging to the defendant?”

  “Yes.”

  “Speaking as a highly trained and experienced arson investigator, why do you think the defendant brought the camera up the mountain with him? You think he did that, right?”

  “He was up there and so was his camera. There are several possible reasons for bringing it up there. The first one I would think of is, he wanted a souvenir. It was an ego trip. Can I make a comment about why the fires might have been set?”

  “Go right ahead.” She had been hoping Crockett would go into his lecture mode. Let Salas hear about all the many reasons others might have set the fires.

  “Juveniles set most of the fires, probably fifty percent of the fires in this country. They love the colors, the excitement, the destruction.

  “Adults don’t get that same kick. Maybe they want to do something grandiose, something that will make them famous. We call that a vanity motive.

  “Then there are the revenge arsons. Love stories gone bad. Feuding relatives. These people aren’t worrying about being caught. They’re too busy being drama kings and queens.

  “Of course, there are always the insurance fires. The list goes on. Lately, we’ve seen an increase in arson that is used to commit homicide or to cover up a homicide.

  “Now, we don’t know exactly why these fires were set. But in any of these scenarios except the last, the arsonist might have wanted a photo to remember it by.”

  “Isn’t it true that the last scenario is actually what you believe at this time was the motivation for the third fire? To cover up a homicide?”

  “We can’t be sure-”

  “You’ve testified that Mr. Cervantes’s death was no accident, that the camera was the murder weapon. Mr. Whitefeather is charged with premeditated murder in one of the counts of the complaint. Which of the scenarios you have mentioned is the most likely scenario explaining the third fire, based on your experience and training?”

  “For the third fire, it seems that at least one purpose was to commit a murder,” Crockett said, because he had to, or else the premeditated murder count would have to be dismissed.

  “And, as you’ve just said, it is actually not at all likely that a suspect would bring a camera to record that?”

  “You never know.”

  “But it’s unlikely?”

  Crockett pursed his lips and said reluctantly, “Pretty unlikely
. They might take a souvenir, but usually some physical item, not a photo.”

  “So the first reason for bringing the camera up the ridge, an ego trip, doesn’t work in this case. What other reason might there be to bring a camera up a hill, assuming that a hundred-thousand-dollar reward has been offered?”

  “Presumably to try to get the reward by documenting the arsonist.”

  “Ah,” Nina said.

  “Pretty stupid way to go about it, though. And it doesn’t make sense in light of the other facts.”

  “Why don’t you remind us of those facts again.”

  With exaggerated patience, Crockett said, “Fact: The defendant went up the ridge with Mr. Cervantes. Fact: Mr. Cervantes was linked with the previous arson. Fact: There is no evidence anyone else was on the mountain that night.”

  “Let’s look again at that third fact.” Judge Salas looked at the clock on the wall, stifled a yawn.

  Nina took the photos recovered from Wish’s memory card from an envelope on her table. The memory card looked like a tiny disk and held digital memories of photos, taking the place of the roll of film of yore. She showed them to Jaime as a courtesy. He already had his set, and nodded, not particularly perturbed.

  “You’ve seen these photos, haven’t you, Detective Crockett?”

  Crockett looked through each of them and said, “Yes, your investigator gave me the same set.”

  “He explained that these were developed from the memory card taken from the camera of Mr. Whitefeather?”

  “He didn’t know where that memory card came from.”

  “He told you I found it in clothing worn by Mr. Whitefeather during the fire, didn’t he?”

  “Maybe you ought to testify, Counsel. I know nothing about where these photographs come from.”

  “You have attempted to match the memory card to the camera, haven’t you?”

  “Haven’t had time due to the prelim taking place so quickly.” It’s all your fault, his eyes said. He wasn’t happy about being rushed into the prelim, and now she was paying a price.

  “What do the photos show?”

  “Some people running around in some woods.”

  “Recognize any of the people?”

  Jaime got up and said, “Your Honor, this has gone far enough. This witness has testified that he can’t authenticate or identify the photographs. I object on grounds of lack of relevance and competence. The pictures could have been taken anytime, anyplace. Let’s not waste any more time.”

  Nina said, “Offer of proof, Your Honor. Mr. Whitefeather will testify that he took these photographs during the Robles Ridge fire. He will identify the two other men pictured.”

  “I look forward to that, I really do,” Jaime said. “It’ll be the first time in my legal career that a defendant has taken the stand in a prelim involving such serious felonies. I can’t wait. But, until he does, I object to questioning this witness further on this subject.”

  Salas took his time. Finally he said, “This witness isn’t competent to testify about these photographs. You haven’t laid any groundwork. You have to assume too many facts not in evidence. I will sustain this objection.”

  Salas was right, but she had had to try. The photos had at least reared their ugly heads. She took the set of photos back to the table and took a breath. Onward.

  “All right. Back to your contention that there is no evidence of any third party being present during the third fire. My investigator, Mr. van Wagoner, also came to your office and signed a statement regarding a child-endangerment case in the Arroyo Seco area about a week after the third fire, is that correct?”

  “Ye-es.” Crockett, puzzled, looked to Jaime for help, and Jaime shrugged his shoulders.

  “The suspect in that case was a man named Robert Johnson, also known as Coyote?”

  “Yes.”

  Two could play at the hearsay game. Nina could make Crockett testify about Paul’s statement and keep Paul off the stand.

  “You recorded the interview and later provided a copy of the statement to Mr. Sandoval here?”

  “Yes.”

  “And in the interview with you did Mr. van Wagoner tell you about anything he saw at Robert Johnson’s, uh, home?”

  Crockett looked surprised. “A couple of conchos. Silver medallions. He also reported kerosene and weapons on the premises. We took all these items into custody pursuant to a search warrant executed that same day.”

  Turning to the judge, Nina said, “Your Honor, I have previously requested that Mr. Sandoval bring to court today the conchos under discussion and I would now request to have them given to the witness for examination.”

  Jaime said, “I have them right here.” Two small chased silver medallions lay in the evidence bag Jaime passed to Nina.

  “Let’s see,” Judge Salas said. She gave it to the clerk and the clerk passed it to the judge. He turned the bag to and fro and held it up to the light, then passed it back.

  Now Crockett had the bag, and pulled on a pair of latex gloves and emptied the conchos onto the witness stand.

  “Seen those before, Detective?”

  “Yes, I have marked the bag. These are the conchos Mr. van Wagoner reported.”

  “Have you attempted to match the conchos to any other conchos in police custody?”

  “Yes. Our evidence technician did find a match. The conchos matched conchos on the belt worn on the body of Mr. Cervantes.”

  “Was Mr. Cervantes’s belt missing any conchos?”

  “Two. I can save some time here and state that our evidence tech examined the conchos and belt with a microscope and reported that the conchos were from the belt of the decedent. There were marks showing they had been torn off. It says here that he found one print of an index finger on one concho matching records on file for Robert Johnson.”

  “Yes. I have that report. And what conclusion did you draw from this?”

  “No real conclusion. The belt had been in the possession of both men, or Johnson found the conchos after a bar fight in Cachagua. They may have known each other.” Crockett was reading the technician’s report as he spoke. A deep frown came over his forehead. He had had a lot of work to do, and little time, and he had missed something. He was realizing that now.

  Time to ram it home. Nina found herself turning and looking at Paul as she said, “Your evidence technician found traces of soot on the two conchos from Mr. Johnson’s home, isn’t that correct, Detective?” Paul winked. Nina tried not to smile.

  “Appears he did.” Crockett was still reading. “It does mention that.”

  “Soot? The product of a fire?”

  “A wood fire.”

  “So now we have conchos torn off from Mr. Cervantes’s belt, with Mr. Johnson’s prints on them, which have been in or near a fire. That’s what we have, am I right?”

  Salas was tapping his lip again, interested at last.

  “That’s what we appear to have,” Crockett answered.

  “What inference do you, based on your experience and training, draw from these facts, Detective?”

  “You might infer that he got these conchos during or after the fire.”

  “Come on, Detective, how could he have gotten them after the fire? The belt was in police custody, wasn’t it?”

  Crockett gave in. “Could have gotten them during a fire.”

  “Could have torn them off Mr. Cervantes’s belt during a struggle during a fire?”

  “Objection, calls for speculation.” Jaime had finally woken up.

  “Overruled.”

  “That would be consistent with the report from our evidence tech.”

  Nina paused. Paul was nodding, Salas was tapping, Jaime was scratching his head. She felt focused and in control.

  She moved closer to Crockett and said, “That links Mr. Johnson to the time and place of the third fire, doesn’t it?”

  “It’s interesting. It’s very interesting. It could.”

  “Now, let’s back up to our previous discussion
, about ego trips in arsonists. Detective Crockett, in your experience, do murderers ever take souvenirs from their victims?”

  “Yes.”

  “Why do you think Mr. Johnson might tear off a couple of conchos from Mr. Cervantes’s belt during the fire?”

  “During a struggle. Or trying to save him, maybe. Or-”

  “Or for a souvenir?”

  “Maybe.”

  “But he was there?”

  “I can’t say for sure.”

  “You can’t say for sure? Did you find any evidence of kerosene when you searched Mr. Johnson’s place?”

  “Yes. Three empty gallon cans with kerosene residue.”

  “You’re a well-experienced arson investigator, Mr. Crockett. Please give us the benefit of your expertise. What if anything would you conclude from the facts we’ve just gone through, that Mr. Johnson was in possession of several empty kerosene cans, that kerosene was used in the Robles Ridge fire, that Mr. Johnson was an associate of a victim of that fire, that Mr. Johnson had in his possession items matching those worn by the victim, with his fingerprints on them, and with soot on them from a fire? What do you make of those facts?”

  “Objection,” Jaime said. “Not a proper hypothetical. Lack of foundation. Misstates the facts set forth in the testimony.”

  Nina argued, “He’s an expert, and I have a right to ask for his opinion.”

  “I’ll draw the appropriate conclusions of fact and law in this proceeding,” Salas said. “The facts are as stated. It is my function to interpret them.”

  “Detective Crockett is here to assist you in that regard, Your Honor,” Nina insisted. She didn’t want to, but she would have to get in Salas’s face.

  “Overruled.”

  “I ask that the court reconsider in light of the established body of law on the subject of expert testimony-I ask that the ruling on the objection at least be deferred and I be allowed to brief this point.”

  “Overruled.”

  “I’ll file a writ.”

  “To one of my Superior Court colleagues. Good luck.”

  “I’ll object to use of one of your colleagues too,” Nina said. “I’ll take it right out of this county to a real appellate court.”

  “I don’t like your attitude, Counsel. I think you disrespect this Court.” Salas was blinking hard, angry and trying not to show it.