“Detective, are you familiar with the Blue Book for automobile prices?” Yes. I pulled out the photocopy of the relevant page from the Blue Book and asked Chuck to refer to it. “Based on that, Detective, what is your estimate of the maximum fair market value of Frank Derringer’s vehicle, prior to the work he had completed at the Collision Clinic?”
“Twelve hundred dollars.”
“And what is your estimate of the fair market value after he paid eight hundred dollars for the work at the Collision Clinic?”
“Fourteen hundred dollars.”
Lisa was predictably gentle on cross. Yes, Chuck admitted, some people spend money to improve houses and cars, even if they might not get the money returned. And, yes, he conceded, it may have been worth eight hundred dollars to Mr. Derringer to have a new feel to his car. When Lisa finished her questioning, reserving the right to recall the witness later, I didn’t see any need to redirect. Instead, I caught Chuck’s eye as he left the witness stand. I was right. Testifying in a solid case with an easy cross had taken his mind off the Zimmerman debacle.
The trial was trucking along smoothly. I began to suspect that my paranoia about Lisa’s strategy was exactly that—paranoia. Perhaps she had simply concluded there was no reason to knock herself out trying to save Derringer. She didn’t even try to attack the accuracy of the fingerprint evidence when the criminologist, Heidi Chung, called a match based only on six points. Her only questions concerned the timing of the latent print found on Kendra’s purse. Chung conceded the point that must always be given up on fingerprint evidence: Although she could state with confidence that the defendant had left his fingerprint on the victim’s purse, there was no way to determine when the print had been left behind.
On redirect, Chung explained to the jury that it was never possible to determine from physical evidence alone when a fingerprint was left behind. All the physical evidence could do was confirm that the suspect had touched that item at some point prior to the print’s discovery.
Through the end of my case-in-chief, the only witness Lisa cross-examined in any detail was Dave Renshaw, Derringer’s probation officer. She didn’t get far.
The sole purpose of Renshaw’s testimony was to show that when Renshaw saw Derringer’s private parts a few weeks before Kendra was assaulted, they were still covered with hair like most other people’s privates. Lisa tried to rattle Renshaw’s testimony by pointing out that he didn’t actually examine Derringer physically and was not looking specifically at that physical feature. In the end, though, there was no way to get around the obvious: A shorn scrotum stands out.
The only other line of questioning she had for Renshaw concerned Derringer’s probation record. Renshaw admitted on cross that Derringer had kept all their appointments, stayed in regular contact with him, and maintained regular employment. Lopez even went through a list of the various temp jobs Derringer had worked since he got parole: day labor, grill cooking, stockrooms, inventories.
I could’ve objected on the basis that Lisa’s questions called for inadmissible character evidence. She was, after all, trying to establish that Derringer had been keeping his nose clean, which had nothing to do with the issues in the trial. But any objection would invite a bullshit attempt to justify the evidence in front of the jury. Lisa would probably argue something to the effect that the evidence contradicted the State’s theory that Derringer planned the abduction ahead of time or was associating with a possible accomplice. I figured any minimal benefit she got out of the questioning was a reasonable price to pay to avoid giving her an opportunity to make a speech for the jury.
As it turned out, Renshaw was a pro who could diffuse Lisa’s points on cross without my assistance on redirect. After Lisa had established that Derringer had reported all address changes, met all appointments, spoken regularly with Renshaw, and worked full-time on parole, she asked one question too many: “Isn’t it true, Mr. Renshaw, that Mr. Derringer complied fully with the conditions of his parole?”
“Sure, counselor. I guess you could say he was a model parolee—except for the fact that he kidnapped, raped, sodomized, and tried to murder a thirteen-year-old girl.”
I think I saw Lesh smile as Lisa leapt to her feet to object. Her objection was sustained, but the exchange kept Lisa quiet for the rest of my case-in-chief.
10
I had spent the week presenting my case to the jury, witness by witness. Building a prison for Frank Derringer with evidence, each piece stacking upon the last like bricks. Now I was ready to sit back and watch Lisa Lopez struggle to save face. I wanted it. I wanted it bad. I tried not to look smug and amused, which I was, when she stood on Thursday afternoon for her mid-trial opening.
“Ladies and gentlemen of the jury, my point is a simple one.” She put her hands on Derringer’s shoulders. “This man, Frank Derringer, is innocent.” A simple statement, but it caught the jury’s attention.
Lopez walked to the front of the jury box and continued. “Ms. Kincaid has done a fine job of presenting evidence the way she wants you to hear it. But what I want you to hear, and what you will conclude to be true, is that Frank Derringer finds himself on trial for a crime he didn’t commit because a troubled and confused young girl who has led a very sad life mistakenly identified him as she was coming out of a heroin-induced haze.”
Although Lopez conceded that Kendra “may have been subjected to horrendous acts,” she went on to remind the jurors of the presumption of Derringer’s innocence and the oath they had taken to evaluate the evidence dispassionately. But she wasn’t just arguing that there would be a reasonable doubt about Derringer’s guilt. She was using the word innocent repeatedly. The defense’s position wasn’t just that Derringer was not guilty in the legal sense because the State couldn’t make its case, but that he was factually innocent. Jurors feel better about acquitting someone they believe is innocent, but Lisa’s strategy was risky. It’s harder to prove innocence than to establish reasonable doubt.
Lisa’s quiet, contemplative tone became more urgent as she talked to the jurors about Derringer’s alibi. Then she shifted her theme. “By the end of this trial, you will realize that Kendra Martin is a victim, but my client is as well. In fact, I believe that we will prove to you that both Mr. Derringer and Miss Martin are victims of the same wrongdoing.”
I tried to maintain my typical trial composure, looking as bored as possible while the defense presents its case. But for the life of me, I couldn’t figure out where Lisa was going with her statement.
“The wrongdoing that has brought Kendra Martin, Frank Derringer, and all of us together began about four years ago. Four years ago, Portland police officers found the body of another troubled young girl named Jamie Zimmerman in the Columbia Gorge. Jamie wasn’t as lucky as Kendra. She was murdered—strangled—after being raped and beaten. Like Miss Martin, Jamie was a drug addict who supported her habit through occasional prostitution. Like Ms. Martin, she was raped and sodomized. Police found Jamie’s badly decomposed body less than a mile from where Kendra Martin was located. Ms. Kincaid mentioned that whoever committed this crime took Kendra’s purse. Well, guess what, ladies and gentlemen? Whoever killed Jamie Zimmerman took her purse too, and it was never recovered.
“Those are enough similarities that you’re probably thinking to yourself right now that the two crimes might be connected. You’d certainly think our police would at least look into it, especially when you learn that the same detectives who testified in this case investigated Jamie Zimmerman’s murder.”
I was seething. How the hell did Lopez think she was going to get away with blindsiding me this way? I didn’t know every detail of the Jamie Zimmerman investigation, but I knew enough to recognize that Lopez was trying to take advantage of that case’s recent revival in the media to confuse the jury. I also knew that she had never bothered to mention to me that her defense had anything to do with the Zimmerman case.
There was nothing I could do, though, without playing into Lisa’s hand.
Any outburst from me would only add dramatic emphasis to her opening statement. So I sat there quietly while Lisa told the jurors about Margaret Landry and Jesse Taylor and their protestations of innocence, the recent letter to the Oregonian confessing to Jamie Zimmerman’s murder, and a supposed conspiracy among Portland police to conceal the truth.
“Because a jury didn’t hear the truth about that case three years ago, innocent people were convicted. I don’t want you to make the same mistake. I don’t want you to convict an innocent person. So I’m going to make sure you get all the evidence. You’re going to hear not only how the police messed up the Zimmerman case, but also how those same detectives have bungled this investigation. They don’t want to admit that they missed a killer four years ago, and they don’t want to admit that they’ve got the wrong person again now.
“Let me make something clear to you. I’m not required to prove who killed Jamie Zimmerman. That’s supposed to be up to the police and the district attorney. But I think it’s important that you at least know about that case, because it sure looks a lot like this one, and it’s sure starting to look like whoever did it is still out there.
“In the end, the evidence in this case may present more questions than answers. We may never know who killed Jamie Zimmerman, but I have a feeling you’re going to suspect that it’s not Margaret Landry or Jesse Taylor. I also have a feeling that you’re going to suspect that whoever killed Jamie Zimmerman assaulted Kendra Martin. But one answer you will have for certain: Kendra Martin identified the wrong man, and Frank Derringer is innocent.”
So my paranoia had been warranted. Lopez had a trick up her sleeve after all. But what Landry and Taylor had to do with Derringer’s defense was beyond me.
Judge Lesh apparently agreed. When Lisa finished her statement, he turned to the jury and calmly excused them to their waiting room for a break. Then he sat back, crossed his arms, looked at me, and said, “Before I flip my lid up here, let me confirm, Ms. Kincaid, that Ms. Lopez never informed you that she would be introducing anything having to do with the murder of Jamie Zimmerman. Is that right?”
“That’s correct, your honor. I’m forwarding to the court a copy of the witness list I received from the defense before trial. I received no notice from Ms. Lopez that she would be springing the possibility of a serial rapist at trial, and she obviously reserved her opening statement so she could drop this bombshell as late in the day as possible.”
Lesh looked at the witness list and shook his head. “Alright. That’s pretty much what I figured. Ms. Lopez, give me a good reason why I shouldn’t declare a mistrial right now and then send a letter down to the Bar suggesting that they look into this little stunt you’ve pulled here.”
Oh, petty vengeance can feel so good. If I could’ve stuck my tongue out at her without anyone noticing, I would have. In fact, this was good enough to warrant a big wet raspberry, but I settled for my best poker face.
Lisa feigned ignorance as she rose from her seat. For someone like me—who roots for Sylvester to eat that damn baby-talking yellow bird—it was hard to take. “I apologize if I’ve done something inappropriate, Judge Lesh, but I believe I have complied with my obligations toward the State. I’m not required to do the State’s work, your honor. All I have to do is disclose my witnesses, which I did, and I’m entitled to reserve my opening.”
Lesh wasn’t buying it. “You mean to tell me that the people on this list are going to raise the specter of a serial rapist who attacked the victim in this case and also killed Jamie Zimmerman three years ago?”
“No, your honor. Those witnesses serve a legitimate purpose—”
Lesh cut her off. “You mean the legitimate purpose of throwing the prosecutor off track?”
Lisa was on the edge. She was getting defensive. “Your honor, if Ms. Kincaid was thrown off track, that’s not my fault. I do intend to question those witnesses. They don’t know about the Jamie Zimmerman case, but the State’s witnesses do. And Oregon’s discovery rules are clear: I can call any witness named by the State without having to declare my intention to do so ahead of time. It just so happens that the same investigative team in this case handled the Zimmerman investigation.”
I cut in. “I find Ms. Lopez’s choice of words interesting. It seems to me that if these two cases didn’t ‘just so happen’ to involve the same detectives, we might be hearing about some other old case that the MCT handled. This entire tactic seems manufactured to spring something at trial and catch the State off guard.”
“I’m inclined to agree,” Lesh said. “Ms. Lopez, you may be in technical compliance with the discovery statute, but you have certainly violated its spirit. It would’ve been nice of you to tell Ms. Kincaid what was going on here.”
Lisa worked her jaw and looked for words. “With all due respect to your honor and to Ms. Kincaid, my job isn’t to be nice. My job is to defend my client. I sincerely believe that Mr. Derringer is innocent. If I had trusted Ms. Kincaid to believe my sincerity, I would have gone to her in the hopes that she would dismiss this case and reopen the Zimmerman investigation. But from the minute she walked over to the Justice Center to handle the arraignment on this case personally, your honor, Ms. Kincaid has made it clear that she wants to hammer my client. So I weighed my options and decided on this one.”
I started to defend myself, but Lesh didn’t see a need for it. “Ms. Lopez, I’m letting you know right now that both you and Ms. Kincaid have appeared before me several times since I’ve been a judge, and up until today I’ve never had reason to question either of your ethics. Your attempt to impugn Ms. Kincaid’s integrity has failed with me. I hope you understand that. Now, here’s what we’re going to do. I have deep suspicions about your intent, Ms. Lopez, in holding your cards so close to your chest. But it looks like you have stayed within the letter of the law. So for now you’re not in lawyer jail. Consider yourself lucky.”
When a slight smile registered at the edges of Lisa’s mouth, Lesh leaned forward. “Not so fast, Ms. Lopez. Your strategy will have its consequences. You can’t have it both ways. You’re going to have to make your case with the State’s witnesses and the ones disclosed on this sorry witness list. I won’t let you parade a couple of convicted murderers in front of this jury, and I won’t let you bring in anything you can’t get through those witnesses. With that in mind, I suspect that much of what you said in your opening statement is hearsay. At the end of the trial, I will instruct the jurors that they should disregard anything you said in opening that wasn’t actually proven through evidence during the case. With that said, it’s time we brought these jurors back in, so we can get on with this trial.”
I rose to address him. “Your honor, the State requests a continuance. I need time to research this defense. I’d like two weeks to investigate any possible connection between this case and the Zimmerman murder. I assure the Court and Ms. Lopez that if we determine a connection, we’ll proceed as necessary from there.”
I could tell from the way that he tilted his head and smiled that he sympathized, but he wasn’t going to give me any time. “I understand that you’ve been put in a jam, but you don’t really think you’re going to find a connection between these cases. What you want is time to disprove a connection so you can nip this defense in the bud. Trust me, I understand that desire.
“But Ms. Lopez is right. The defense is not obligated to disclose its theory ahead of time, only its witnesses and any alibi defense. Basically, she’s allowed to drop these little bombshells. I suspect it’s one of the things that make being a defense attorney entertaining. If she really wanted to screw you over, she could’ve waived opening altogether and hid her cards until testimony.”
He told me he’d give me some leeway during rebuttal to recall witnesses, but it was little consolation.
As an alternative, I moved to exclude any evidence relating to Zimmerman’s murder, at least until I had a chance to file a written motion to exclude Lopez’s defense. In my urgency to point out that Li
sa had been a complete bitch in failing to disclose the defense’s theory, I had almost forgotten to question whether the evidence supporting Lopez’s theory was even admissible. Any connection between this case and the Zimmerman murder was tenuous at best, so I had a good argument that, even if the Zimmerman case was minimally relevant, any relevance was substantially outweighed by its potential to distract and confuse the jury.
I think Lesh skipped that part of the analysis as well and now saw the opportunity to get this mess out of his courtroom. The problem was, we were venturing into a risky area of the law. Trial courts routinely get reversed on appeal if they completely prohibit a defendant from presenting his theory. On the other hand, as long as the trial judge lets the defendant present his theory, the court has tremendous latitude in excluding evidence that might support it. The fact that I understood the nebulous distinction between the defendant’s theory and the evidence used to support it made me think I’d become a complete asshole.
Luckily, Lesh understood the relevant distinction too, so I wouldn’t have to try to explain it.
“I can tell you right now, Ms. Kincaid, that I’m not about to keep the defense from arguing that someone else might have committed this crime. But, I’m no Judge Ito either, and you’re correct to point out that the defense doesn’t necessarily get to put on whatever evidence it wants. So, here’s what we’re doing. Ms. Lopez, either you agree to a continuance or you call the witnesses you named on your discovery list before you start calling cops to the stand to talk about the Zimmerman case.”
Lisa objected. Big surprise. “Your honor, it’s highly unusual for the Court to dictate the order in which evidence is presented.”
“Well, it’s also highly unusual for an attorney to pull the kind of stunt you’ve pulled this morning. Think of this as another repercussion of your strategy.” He had noted Lisa’s objection but then forced her to make her choice.
Judgment Calls Page 17