B006JIBKIS EBOK

by Griffin, H. Terrell

  Elizabeth and I plodded along for most of the day, and by late afternoon, after exhausting all my peremptory challenges, we had a jury of twelve, and two alternates seated. They did not look all that promising to me, but it was the best I was going to get out of that pool.

  The judge seemed relieved that we were through, but he couldn’t leave the bench without chastising the lawyers. He warned the jurors about reading or listening to or watching any news about the trial and dismissed them until 9:30 the next morning. Then he turned to the lawyers. “Counsel,” he rumbled, “You’ve taken way too much time to pick this jury. I expect you to move this case along a lot faster from now on. Do you understand me?”

  Elizabeth and I both murmured a “Yes, your Honor,” and he left the bench. I was standing there wondering how the hell he thought he could hurry up a first degree murder trial without committing reversible error, when I sensed Elizabeth standing next to me. “Still don’t want to plead?” she asked.

  “Not a chance, Counselor,” I said.

  “I don’t know, Matt. That looks like a hanging jury to me.”

  She was right, and all I could say was, “We’ll see.”

  Chapter 27

  WEDNESDAY

  Wednesday morning. Fatigue was etching my mind with a blunt stylus. I had to get a better grip on myself. This was the first day of testimony, and I had already begun to think about some way out of this trial. There wasn’t any, of course, but the trial lawyer’s mind always seeks solace in the knowledge that a settlement or plea is possible, and the trial would end immediately Not in this case. I was here for the long run, however long that took. And Logan had put himself in my hands, simply because he was broke. Ah, well, I thought, maybe some part of him actually thinks I can do this.

  All the players were on the stage; the jury in its box, the judge on the bench, the lawyers ready for action. Opening statement. This is not supposed to be argument, but lawyers have a way of weaving some of their closing argument into what is supposed to be simply an outline of the proof they plan to present during the trial. Elizabeth was a past master at this, and I let her run. She smiled when appropriate, and would occasionally glance sternly at Logan and me, as if signaling to the jury that she could not understand murder nor those who represented murderers. She made some statements that I thought would be hard for her to prove, but that would work to my advantage. She spoke for thirty minutes and told a tale of murder and circumstances that gave the jury a framework upon which to hang Logan.

  I rose, shuffled some papers on my table, looked at the jury, looked at Logan, cleared my throat. “Ladies and Gentlemen,” I said, “Logan Hamilton did not commit this terrible crime, and the state cannot prove he did. Keep in mind that Ms. Ferguson must prove beyond and to the exclusion of any reasonable doubt that Logan killed his friend. She cannot do that. Hold her to the proof she just told you about. Make her show you why all the evidence she presents points only to Logan, and not to some one else.

  “The constitution of the United States says that Logan does not have to testify in his own defense. If he were to take that witness stand, Ms. Ferguson could open up his life like a can of peas. No secret would be safe. Fine. Bring it on. Logan will testify. Thank you.”

  I kept it very short, not wanting to tip my hand to the jury. I did not want the members thinking about what I was going to prove while listening to the prosecution’s case. In a courtroom where formalities are important, I wanted to make Logan human. Calling him by his first name was part of that process. I also intended to show the jury that Logan not only had no reason to kill Vivian, but that she was his friend; our friend, part of an island community that took care of each other.

  The first witness was Dave Beemer, the Longboat Key cop who had taken the call from Logan. He testified to that fact, to his arrival at Logan’s condo, and to his call to Chief Lester. Short and sweet.

  On cross, I asked, “Am I correct in understanding that Logan is the one who called the police that morning?”

  “Yes, sir. He called the 911 dispatcher.”

  “What was Logan’s demeanor when you arrived?”

  “Confused.”

  “What do you mean?”

  “He couldn’t understand how the victim got onto his balcony.”

  “The victim being his friend Vivian?” I asked, sincerity pouring out of my mouth.

  “Yes.”

  “Did he say anything to you that led you to believe he killed Vivian?”

  “No. Just the opposite. He was crying. He was obviously very broken up.”

  “No further questions,” I said, sitting down.

  Elizabeth got to her feet. “Could the reason he was crying be that he was remorseful that he had killed this lady?”

  Now, that was an objectionable question. It called for a conclusion among other things, but I had talked to Dave Beemer, and I knew his feelings about the charges against Logan. I kept my seat.

  “No ma’am,” he said. “Logan had lost a friend, and it liked to have killed him.”

  Score one for the home team, I thought. We won the first round. Lots more to come, though, and I didn’t expect all of them to go as smoothly.

  Bill Lester came to the stand. He was dressed formally for the occasion, in a blue uniform. Two stars garnished each collar point. Elizabeth established who he was, what his job was, and how he came to be notified of the death of Vivian Pickens.

  “Did you know the victim?” Elizabeth asked.

  “Yes.”

  “What was her name?”

  “I thought it was Connie Sanborne.”

  “It wasn’t?”

  “No, I later ran the fingerprints, and found out she was Vivian Pickens.”

  “Did you make the call to Manatee County on the morning of the murder?”

  “Yes.”

  “Did the county send someone out?”

  “Yes. Detective Michael Banion got to the scene within a few minutes of my call.”

  “The scene being the defendant’s Condo?”

  “Yes.”

  “Did anyone else show up?”

  “Yes. Matt Royal.”

  “The same Matt Royal sitting there beside Mr. Hamilton?”

  “Yes.”

  “Do you know how he came to be there?”

  “I suggested to Mr. Hamilton that he might want to call a lawyer.”

  “And he called Mr. Royal?”

  “Yes.”

  “Nothing further, your honor,” Elizabeth said, and returned to her table.

  “No questions,” I said, standing. I could see no benefit in having the chief testify that I was the one who put him onto the right name of the murdered lady, or to have him admit to being a friend of both mine and Logan’s.

  Then, as if changing my mind, “Well, excuse me your honor. I think I might have a question of two for the chief after all. May I proceed?” When the prosecutor is focused on her facts, and quite succinctly laying out her case, totally in control, it never hurts for the defense lawyer to bumble a bit. He hopes that it makes him look human. I don’t know about that, but a little bumble never hurt anything.

  “Chief,” I said, “When you found out that Connie Sanborne was in reality Vivian Pickens, did you find out anything else about her?”

  “Objection, your honor. Relevance. Hearsay.” Elizabeth was on her feet. I knew she would not like the jury to hear about Vivian’s record.

  “If I might lay a predicate, your honor,” I said.

  “Go ahead, Mr. Royal, but be careful. I haven’t ruled on the objection yet.”

  “Yessir. Chief, did you learn certain information about Ms. Pickens?”

  “Yes.”

  “Was this the kind of information that you as a police officer rely on daily in pursuing your profession?”

  “Yes.”

  “Did you get the information from another police agency?”

  “Yes.”

  “Was it information that the other agency compiled in the pursuit of
its professional obligations?”

  “Yes.”

  “Is this information that is routinely shared among law enforcement agencies?”

  “Yes.”

  “Your honor,” I said, “I think this clearly falls into the business records exception to the hearsay rule.”

  “I agree,” said the judge. “Now, I want to hear the relevance of this testimony. Deputy, please take the jury out.”

  After the jury left, I turned to the bench. “Your honor, the whole thrust of the prosecution’s case is that a very nice lady was killed on Longboat Key by her lover, my client. I knew the lady, and I will attest to the fact that she was very nice, but, your honor, she had some large skeletons in her closet that included jail time, prostitution, drug abuse, and an outstanding warrant for her arrest. I think the jury needs to hear this, not to stain the memory of a decent woman, but to understand that my client is not the only one who had the means, opportunity, and most of all, the motive to murder her.”

  “What say you, Ms. Ferguson?” asked the judge, turning to Elizabeth.

  “Your honor, we’re not here to try the reputation of the victim. It wouldn’t matter if she was a prostitute or a drug dealer, or whatever Mr. Royal wants to make her out to be. She was a human being, and she was murdered.”

  The judge pondered this for a moment, and said, “I agree with you Ms. Ferguson that the victims reputation has no bearing on her death, but it may have a bearing on why she was murdered, and who did it. Overruled. Bring the jury back.”

  Big win. I was chipping away little by little from the foundation of facts Elizabeth was building. “What did you find out, Chief?”

  “Vivian Pickens had a warrant out for her arrest. Should I go on and explain why?”

  “Proceed,” said the judge.

  Bill then told the story of her past, including the crimes, arrests, convictions and disappearance.

  “Thank you, Chief. I have no further questions,” I announced.

  “Nothing further,” said Elizabeth.

  “The witness is excused,” said the judge.

  The next witness up was Banion. He had dressed for his starring role in a tan polyester suit, white shirt with a red stripe, and a red white and blue striped tie. He looked a little like a barber pole. He strode through the gate into the pit, confident, arrogant and mean. His face was as red as usual, and he gave Logan a look of contempt as he walked by on his way to the witness stand.

  After he was sworn, Elizabeth said, “State your name please.”

  “Michael Banion.”

  “By whom are you employed?”

  “The Manatee County Sheriff’s Office.”

  “In what capacity?”

  “Homicide detective.”

  “How long have you been in law enforcement?”

  “Thirty years.”

  “How many murders have you investigated in that time?”

  Uh, oh. I came to my feet. “Objection, your Honor. Assuming facts not in evidence.” I didn’t want the jury getting used to the M word.

  “What facts, Mr. Royal,” the judge asked.

  “Your Honor, we don’t know if Mr. Banion has been investigating suicides, accidental deaths or what. Ms. Ferguson just assumed they’re all murders.”

  “Overruled.”

  I sat down. That’s about all you can do in that situation.

  Elizabeth continued, “Before we were interrupted, I was asking you how many deaths, if you will, you have investigated in your career.”

  “Three hundred or so.”

  “Did you investigate the death of Vivian Pickens?”

  “Yes.”

  “How did that come about?”

  “The Manatee Sheriff’s office always investigates homicides that occur on the Manatee end of Longboat Key. We do this in cooperation with the Longboat Police.”

  “How were you notified of the death of Ms. Pickens?”

  “I live in West Manatee, and I was about to leave for work when dispatch called and told me there was a homicide on Longboat Key. I went right to the scene.”

  “What time did you arrive?”

  “May I look at my investigative notes?”

  “Of course,” said Elizabeth. I didn’t object. I had already seen the notes in the discovery material the state had provided me.

  “I arrived at the scene at 6:55 A.M.,” Banion said.

  “What day was this?”

  “April 16, of this year.”

  “You mentioned the scene. Where was that exactly?”

  “9640 Gulf of Mexico Drive, Apt. 401, Longboat Key, Florida.”

  “Was anyone else there when you arrived?”

  “Yes. The Longboat Key Chief of Police Bill Lester, Police Lt. Dave Beemer, and the defendant Logan Hamilton.”

  “Did you find a body on the premises?”

  That was a leading question, but one thing trial lawyers learn is that you don’t object to every objectionable question. If the answer is one that the prosecutor can get by asking the question a different way, why object. It pisses off the jury, and you gain nothing. I kept my seat.

  “Yes, the body of a female was on the balcony overlooking the Gulf,” said Banion. I guessed that that answer was rehearsed. They wanted the jury to know that Logan lived on Gulf front property, which was some of the most expensive real estate in Florida.

  “What was the cause of death?”

  “Objection, Your Honor. This gentleman has not been qualified as an expert to give an opinion on cause of death, and I doubt that Ms. Ferguson can qualify him as such.” I was standing, trying to look outraged for the jury.

  “Withdraw the question,” said Elizabeth. “We’ll wait for the medical examiner to testify.” She was good. I couldn’t let Banion testify as to cause of death, but the prosecutor had set me up so that now the jury was anticipating the M.E.’s testimony. The jury was probably figuring that an experienced cop would know a thing or two about cause of death, and that I was trying to hide something for them.

  Elizabeth said to Banion, “I think you’re qualified to say whether she was dead or not. Was she?” Some of the jurors chuckled.

  “She was dead,” said Banion, with a smile.

  “Did you collect evidence at the scene?”

  “The crime scene technicians did, under my supervision.”

  “What did you find?”

  “The only thing of significance was some hair from Mr. Hamilton’s comb.”

  “Why was the hair important?”

  I was on my feet again. “Objection. The witness is not qualified to testify to that.”

  “Well,” said the judge, “We don’t know why he thinks it’s important, do we?”

  “May we approach, Your Honor?” I asked.

  “Come on,” the judge said, motioning us forward.

  Elizabeth and I huddled at the judge’s bench, while the court reporter got her machine so that she could hear our whispered conversations and get it all on the record. “Judge,” I said, “The witness is going to testify about DNA, and Lord knows what else. He isn’t qualified to do that, and we need to wait until someone who is can take the stand.”

  “I wasn’t going to ask him about the results of testing, Judge,” said Elizabeth.

  “Where are you going with this Ms. Ferguson?” he asked.

  “Chain of custody, Your Honor,” she replied. “I’m simply asking the witness to tell me what he did with the hair sample.”

  “She asked him about the importance of the hair sample, not what he did with it,” I said.

  “Okay,” said the judge, “Don’t ask him about the importance of the hair. Establish your chain of custody, and let’s get this show on the road.”

  I went back to my chair, and Elizabeth turned to the witness, who had heard the entire conversation at the bench. “What did you do with the hair, Detective Banion?”

  “I took it to the Florida Department of Law Enforcement Crime Lab in Tampa for DNA testing.” He planted the DNA que
stion in the minds of the jury. Now they would be primed to hear the rest of this, because everybody knew DNA was solid evidence. I thought Elizabeth was pulling a fast one on me and the Judge, but it wouldn’t do me a lot of good to object now. It’s impossible to put that cat back in the bag. But Elizabeth surprised me again.

  “Detective Banion,” she said, her voice cold, the words flung like cubes of ice into the face of the witness, “I didn’t ask you why you took the sample to Tampa. I asked you what you did with it. Please answer my questions, and do not elaborate.”

  “Sorry Counselor,” Banion said.

  “To your knowledge did the lab conduct DNA testing?”

  “Yes.”

  “I have no further questions of Detective Banion,” said Elizabeth.

  “The judge turned to the jury. “Ladies and Gentlemen, we’ll take our lunch break now. We’ll reconvene at 1:30.”

  Banion was back on the stand, swelled with his own importance, glowing in his flashy haberdashery. I stood quietly for a moment, giving him time to wonder at my first question.

  “Were you still drunk when you arrived at the crime scene?” I asked.

  “Objection, your Honor.” Elizabeth was on her feet, eyes flashing. I had struck a nerve.

  “What are your grounds, Counselor?” asked the judge.

  “This is absurd. Detective Banion is a respected law enforcement officer,” said Judy, glowering at me.

  “Those are not legal grounds. Objection overruled.”

  I looked at Banion, waiting. “Absolutely not,” he said. His face was red with anger, the little capillaries of the drunk standing out like major thoroughfares on a road map.

  “But you were hungover,” I said.

  “Your Honor,” said Elizabeth, coming to her feet.

  “Let him answer the question,” the judge said.

  “No, sir,” said Banion.

  “Where were you on the evening of April 15, the night before you arrived at the crime scene?” I asked.