Presumption Of Death

by Perri O'shaughnessy

  “What kind of condition was this belt in?”

  “In the back, good condition. There were six conchos still attached in back. In the front, the belt was burned but was still in one piece. There were four conchos, and two more were missing. CVPD did not locate those in the vicinity.”

  Salas, Nina, and Jaime all scribbled a note.

  “What else could you determine from the exterior of the body?”

  “The hair in front had burned away. However, in back there remained hair on the scalp that was long and black. No scars, tattoos, moles in back. In front, impossible to determine. You have the autopsy photos, correct?”

  “Yes, thank you, they are in evidence by stipulation. What did you do after this initial evaluation?”

  “We attempted to take fingerprints, without success. We also took photos for identification. I then began a detailed examination of the body. Charring from direct contact with flames was extensive in front. We are talking about fourth-degree burns, which are incinerating injuries extending deeper than the skin. In general, however, the skin was burned away in front, with muscle exposed and ruptured. Unburned skin had a seared and leathery consistency. There was a partial skeletonization of the face due to soft tissue being burned away. Portions of the outer table of the skull had fallen away in the right frontal region.”

  “And the clothing had been destroyed in front?”

  “The camouflage jacket was made of cotton, which transmits more thermal energy than polyester, and provided almost no protection. The undershorts were of polyester, which protected the genitalia to some extent.”

  “Which is how you knew immediately it was a male.” Paul was grimacing.

  “Yes. Our dental consultant came in at that point and prepared a dental chart and took X rays of the remaining teeth to attempt to identify the body. When he was finished, I began examining the skull area. I observed some heat fractures on the skull.”

  “What else, if anything, did you observe with regard to the skull?” Jaime said.

  “I observed a severe linear skull fracture in the parietal area, obviously an impact injury. The fracture was several inches long and the skull had been slightly deformed by the impact of the object. I took photographs and called Detective Crockett to see if any objects near the body had been collected that might have been impact objects. Detective Crockett brought over a Canon camera with the remains of a long strap, a surprisingly heavy camera. I tried fitting it in various ways and found that the base fit the injury. At first I was puzzled because even though it was heavy I wondered how hitting the skull with a camera in your hand could cause such a severe injury. Then I tried swinging the camera by a portion of the strap. This added considerable impact velocity.”

  “And what, if anything, did you conclude regarding-”

  “Before I could come to any conclusions I completed the autopsy, including weighing and examining the internal organs. I was interested in the possibility of carbon-monoxide poisoning, what is sometimes referred to as smoke-inhalation injury, but the skin in back didn’t exhibit the cherry-red coloration I would expect and the subsequent lab tests confirmed there was very little CO in the blood. I also checked very carefully for soot around the nostril and in the trachea. There were only traces.”

  Dr. Rittenhauer sat back. Her face said, There you have it.

  Jaime said, “Those were your major findings?”

  “Yes. I can go into much more detail if you have particular questions.”

  “I think we have enough of a factual basis. I would now like to ask you some of the conclusions you may have come to pursuant to the autopsy.”

  “Very well.”

  “Could you identify the body?”

  “Not as a result of the autopsy. I was informed that a report had been made of a missing person and for the first two days was working on the assumption that the victim might be Mr. Whitefeather. Apparently the shoes were a match to Doc Martens Mr. Whitefeather was known to wear. However, the next day, I believe it was, the uncle of the victim came in. He was able to make the identification based on the remains of the camouflage jacket, the concho belt, the long hair, the general build and height, the color of skin in back, and other factors.”

  “And that identification was?”

  “That the victim’s name was Daniel Cervantes.”

  “All right. Could you determine whether the victim was alive at the time of the fire?”

  “That’s difficult. It’s hard to tell if burning occurred before or after. There was no inflammatory reaction, which might tend toward an assumption that the burns took place after death. I would expect soot and perhaps some evidence of internal burns to be found around the breathing passages if the person was breathing at the time of the burn and for the CO level to be higher. I therefore concluded that the burns occurred postmortem.”

  “What, in your opinion, was the immediate cause of death?”

  “A skull fracture caused by blunt-force trauma.”

  “Nothing further. Thank you, Doctor.”

  The Court took its afternoon recess. “You had a call from Megan Ballard,” Sandy told Nina from the office. “She says it’s very urgent. She wants a consultation.”

  “What about?”

  “She won’t go into it.”

  “I’ll give her a call after court. Call her back and let her know.”

  “Okay. I checked the hospital. Britta Cowan is conscious.”

  Nina put her hand over the receiver. “Paul, Britta’s awake. Can you try to go and see her?”

  “You don’t need me this afternoon?”

  “I’ll bring you up to date tonight at dinner.”

  “Okay. I’ll go over there right now.”

  “Sandy, call David Cowan and see if Britta has said anything to him about who struck her.”

  “Will do.”

  “Anything else happening?”

  “A couple of German tourists got into a fight at the Hog’s Breath. They knocked over a couple of tables. The cops came.”

  “Stay with it.”

  “I’ll be here.”

  Nina returned to court without Paul, already missing his comforting presence.

  “Your witness,” Judge Salas said. Dr. Rittenhauer had already taken her seat.

  “Doctor, isn’t it true that no fingerprints were found on the camera?” Crockett had told her that in the beginning, so Nina felt she could make a point here.

  “Not immediately,” Dr. Rittenhauer answered. “However, I just heard from Detective Crockett this morning. There was in fact one fingerprint found. Fortunately, the camera was found partly under the body, where a portion of the lens was protected from the flames.”

  Nina turned to Jaime, who stood up and said, “I just heard about it myself. I had no intent of surprising Counsel with this new information. As we all know, one of the problems inherent in holding the prelim so quickly is-” While he went on excusing himself Nina was performing a lightning-fast calculation. She saw clearly that Jaime had let her walk into this trap. He could have told her right up to five seconds ago. No problem for him-if she hadn’t raised it on the cross-exam, he’d have slipped it in on the redirect. Therefore it was harmful to her case.

  Therefore, the print was Wish’s.

  “I will withdraw the question at this time, as the district attorney has apparently not shared new discovery with me,” she said.

  But Salas wanted to know about the print. He said, “If you refuse to waive time, these things happen. Not everything can be finalized in ten days.” To Jaime he said, “You only received this information this afternoon? You have not withheld this information?”

  “Absolutely not, Your Honor.”

  “I am here as an examining magistrate to make a determination, and I wish to know this information. Counsel, any objection?”

  “Most definitely, Your Honor. There is no question pending. It is a breach of the discovery rules-”

  “There is good cause for the breach. The prosecut
or didn’t know about it either. Are we searching for the truth here, or not?”

  Nina didn’t have time to explain how she was not necessarily there to search for the truth, she was there to defend Wish. “Objection overruled,” Salas said. Huh?

  “I withdraw the question,” she said again stubbornly.

  Salas gave her a look and said to Dr. Rittenhauer, “Has this fingerprint been identified by a certified fingerprint technician?”

  “Yes-”

  Nina said, “Objection. Hearsay. Dr. Rittenhauer is not a law-enforcement officer with five years of experience and therefore cannot testify as to hearsay.”

  “Overruled. What identification has been made?”

  “The print on the camera matches that of the defendant, Willis Whitefeather.” Wish gestured to Nina and she sat down, burning with rage.

  “It’s my camera, so of course it’ll have my prints,” he whispered. “But listen-”

  “Just a second,” Nina said, and rose again, and said, “To your knowledge, has Mr. Whitefeather ever denied he brought the camera up the mountain?” Jaime would hammer on the fact that there was no other person’s print on the camera. That was the problem.

  “No,” said Dr. Rittenhauer. She was so admirable, so impartial and calm, so machinelike, she could be so helpful if Nina could just figure out a way to use her-Wish was pulling her jacket sleeve.

  “One moment,” she said to the judge, and he looked pointedly at the clock, then nodded his head. “What?” she whispered to Wish.

  “What she said about the boots, it isn’t right.”

  “What’s wrong?”

  “Something. I forget. It’s all happening so fast.”

  “Well, let me know if you think of it.” She said to the witness, “Thank you. Nothing further at this time.” If she needed Rittenhauer, she could call her in rebuttal later.

  “The witness is excused.”

  “The prosecution rests,” Jaime said. The air seemed to go out of him and Nina thought, He’s as tired as I am.

  “It’s four o’clock,” Judge Salas said. “I am going to adjourn until tomorrow-that is, if you still intend to put your client on the stand?”

  Nina nodded. “As our first witness.”

  “Court is adjourned until 10:00 A.M. tomorrow.” He rapped once, hard, with his gavel.

  “All rise,” the bailiff said as Salas went on to the next case.

  Wish was still shaking his head. Nina said, “Are you ready for tomorrow?”

  “After all the time you spent getting me ready, I feel pretty good about it.”

  “You remember the sequence? How you’ll tell the story, then authenticate the photos I showed you?”

  “I remember.”

  “We’ll show them their third party,” Nina said. “It might be enough.”

  “I can’t wait to get out of here. Then somebody’s going to pay. It’s not enough to get free, Nina. I have to find him. It’s horrible what he did to Danny. I’m going to have bad dreams tonight.”

  “Hi, Megan.”

  From her voice, Megan had lost her happy face. “Thank you so much for calling. I would like to make an appointment to see you as soon as possible.”

  “I’m in the middle of a-”

  “I know that. But this will interest you. Perhaps even help you with your current case. The problem is, you have to assure me the consultation will stay strictly confidential even if you decide not to represent us.”

  “What’s it about, Megan?”

  “About the fires. Please, we really need your help. Debbie and Tory and Jolene and I. We are worried about the children.”

  “Megan, I’m beat,” Nina said. “I’m washing dishes after a good supper and I need to talk to my son and then go to bed. I’m worried too. I suggest you call Detective Crockett and try to get some help out there.”

  “That won’t work.”

  Nina said, “I’m sorry. If you were my client, I might try to meet you tonight. But you’re not and for the sake of the client I have, I need to get some sleep tonight.”

  “We’ll come to you.”

  “Tomorrow,” Nina said. “At the lunch break. Twelve noon at the law library at the courthouse. I’ll find us a conference room.”

  “All right.”

  “Meantime, I’m saying it again. If you have new information involving a threat to the children, please call the police.”

  “We’re guarding them,” Megan said. “That’s all I can say right now.”

  “Good night, then.”

  Paul came in. “News from the hospital?” he asked, referring to Britta, who still hadn’t made any statement.

  “No. Something else. It’s handled. What time is it?”

  “Nine.”

  “What’s Bob up to?”

  “Passed out on the couch. Jet lag.”

  “Let’s get him into bed and go to bed too.”

  “Sounds like a plan.” He had moved in on her and begun kissing her. She led Bob into the study and said good night, then went into the bedroom. Paul had just taken his pants off.

  “Am I mistaken, or are those polyester boxers you’re wearing?”

  “Silk is so flammable,” Paul said. So Nina pulled off her jeans.

  “What happened to the little cotton things?” he said. “Are you wearing polyester too? ‘ ’Ave you seen Polyester Pam,’ ” he sang, and reached for her underpants.

  “In a minute.” She managed to wiggle free and headed for the bathroom, and heard Paul exclaim ere she dove out of sight, “Well, I’ll be darned. They do protect the genitalia.”

  34

  “C ALL WILLIS WHITEFEATHER.” WISH WAS ESCORTED to the stand.

  Nina’s turn to speak first had come. She had a five-page outline of questions to guide Wish gently through his story. The object was to let Salas see and believe him. Of course, if Wish was bound over for trial, Jaime would have months to go over every stutter in the transcript, the better to hang Wish with at trial. Inconsistent statements would naturally occur in the two proceedings, and Wish would look like a liar.

  But Salas couldn’t be left with a print on a camera and a picture of Danny’s charred skull. They couldn’t win the prelim without exposing the interior of Wish’s own skull. Nina inhaled, exhaled, picked up her outline.

  They started at ten-fifteen. By eleven-thirty they had gotten through the whole story of Wish’s move to the Monterey Peninsula, his studies, his work for Paul, his interest in criminal cases, his history with Danny, his visit from Danny at Aunt Helen’s house, and the subsequent events on Robles Ridge. The court reporter ran her machine, which turned each word to stone. Nina kept Wish on a short rein, never letting him say more than a couple of sentences.

  Jaime sat back and enjoyed the show. He made not a single objection. The more Wish said, the longer the rope. The transcript could be gone over, at leisure, for months between prelim and trial, and every detail of Wish’s background checked. Any exaggeration of his accomplishments, any denigration of his failures, could be thrown back at him to attack his credibility.

  But Nina needed Wish to tell the judge about himself, based on a gut-level judgment: that Salas would find points of commonality with Wish that might develop into sympathy and understanding. Salas didn’t like her much, but for all his possible bias she felt that his intentions with regard to his responsibility were serious.

  The judge paid attention and took notes. She had surprised him by making the hearing real, not just a pro forma exercise. Part of her calculation had involved the fact that he was new on the bench and still capable of being surprised. He also was not as detached as he would become; he still took some things personally, she had noticed. If she could involve him in Wish’s story, show him someone telling the truth-

  And now he was involved, listening intently. Wish was explaining why he had driven all the way to San Juan Bautista for medical treatment.

  “All I could think about was getting away. I decided not to go home because he mi
ght follow me there, so I headed the other way, toward Salinas. Then I thought he was behind me and I got on 101 and kept driving, but I think I was getting faint or delirious or something. I had been feeling very blurry, but now I started feeling a lot of pain all over. I realized I had to go to a hospital. I was at the turnoff for San Juan Bautista so I went there and stopped at the gas station to ask where the hospital was.”

  “And you subsequently checked in at the Las Flores Clinic?”

  “They admitted me overnight and kept me there the next day. They were worried about infection on my leg and thought I had a concussion. Turned out I did have a concussion.”

  Nina showed him photos marked in evidence showing Wish’s injuries, which Paul had taken just before his shower on the night of his arrest, and he authenticated these. Now Salas had in-your-face evidence that Wish also had an impact injury.

  It’s coming together, she thought with gathering excitement, and she brought out the photographs taken by Wish’s Canon. She passed a set out to Jaime, then handed a marked set to the clerk. Up they went to the judge.

  “Now, Mr. Whitefeather. You testified that in the course of the fire you took photographs at the moment you believed you saw the arsonist running down the trail?”

  “Yes.” Wish sat forward in the witness stand, fanning out the photos. “Then I popped out the memory card and stuck it in my pocket, and then I popped in another memory card before I started running and dropped the camera.”

  “Are these the twelve photos you took numbered in the sequence in which you took them?” Don’t dither, she prayed, don’t say I think so or that’s what Paul said. She had given Wish the set as soon as she had prints and Wish had told her he could identify the shots.