“Clearly he’s had time to contest the report’s findings,” Harris interrupted.
Koch held up a hand to indicate Harris should wait his turn while Marc continued.
“A significant part of my defense was based on the fact that the police found no evidence that my client was ever in the janitor’s closet or on the roof. Now I’m being told that was not true and I believe it was deliberately withheld from me.”
Before Harris could protest Marc’s accusation Koch again held up her hand to stop.
“That’s a pretty serious claim, Mr. Kadella. If you can prove it, let’s hear it. Otherwise, be thankful we’re not in front of the jury or you’d be writing that check.”
Koch then turned to Harris and said, “I’m not pleased about this but I believe you’re right. This evidence was inevitable and the jury should hear it.”
“Your Honor, this could easily be reversible error,” Marc protested.
“Then your client will get me reversed on appeal,” Koch told him.
Koch looked at the clock on the wall and continued, “I’ll read this over,” she said referring to the documents submitted by Harris. “We’ll start at 10:00. Thank you.”
The morning session was taken up with the testimony of three men. They were all Hennepin County Sheriff’s deputies who knew Howie from his original trial; the one that got him sent to prison for the murder of Lucille Benson. Two were retired and one was still a deputy sheriff.
The three of them all had the same basic story to tell. They worked in the jail after Howie was convicted and heard his threats.
“Who were the people that Mr. Traynor threatened if you can recall?” was a question Harris put to each of them.
All three men answered almost exactly the same, having previously rehearsed their testimony. They all listed ten to twelve names including most of those he was charged with murdering. They also testified to remembering this because everyone in the jail, including the other inmates, were terrified of Howie Traynor.
Marc objected to them claiming what the inmates believed and was sustained. It was essentially a futile gesture. The witnesses could testify about what they felt about Howie. Each said the same thing. Howie Traynor was just about the scariest inmate they ever dealt with.
“What did you personally think of those threats? Did you believe him?”
“Absolutely,” or a variation of this was given by each of the men n turn.
Harris also elicited an admission that convicted inmates often made threats toward the people who they believe are responsible for their incarceration.
“Sure,” each agreed. Most of these threats are made in anger and after a while, the inmate cools down and nothing ever comes of it. Howie Traynor’s threats were different. His were not made in anger. In fact, he was icy cool at the time and by the look in his eyes, he meant it.
Marc objected to their mind reading ability and was again futilely sustained. His cross-examination was basically obtaining admissions that Howie’s metamorphosis in prison could have changed him. Knowing what was coming from the prosecution’s psychiatrist expert left Marc feeling his cross-exam was a little weak.
“Previously, you heard testimony that the defendant’s DNA was found on the roof of the building next door to his apartment,” Koch said addressing the jury after lunch. “At that time, I ordered you to disregard it. You are about to hear from witnesses who will give testimony contrary to that order.” The judge then turned to the prosecutor’s table and said, “You may call your next witness, Mr. Harris.”
The first witness was an officer of the MPD, Carrie Sinclair. She testified that she was the one who found the cigarette butts on the roof. She admitted that she found them three days after Howie Traynor’s arrest. In order to maintain the chain of custody, she identified the evidence bag they were in and her initials on the bag.
Following Officer Sinclair was the CSU tech who checked them out of evidence and delivered them to the lab at the Bureau of Criminal Apprehension in St. Paul. It was there that they were to be tested for DNA. They were delivered to the BCA the day after they were found on the roof of the building next to Howie’s apartment.
Finally, the lab technician with the BCA took the stand. His name was Burt Orland. Orland was on the stand for over an hour and by the time he finished almost everyone in the courtroom was totally confused. His explanation about why the testimony took so long was barely plausible and his testimony about how DNA was tested almost incomprehensible. At the end, the only thing the jury or anyone else could grasp was his claim that the DNA was a 99.6% match to Howie Traynor.
Mark limited his cross-exam to making Orland admit there was no way of knowing how or when the cigarettes came to be on the roof. Marc also obtained an admission that they could easily have been planted by someone else. It was possible that, because Howie’s car was impounded, someone could have removed the three butts from the car’s ashtray and placed them on the roof. The obvious inference being it was the police who did it since they had custody of the car. It was enough to at least argue reasonable doubt.
The final witness for the prosecution was the psychiatrist, Dr. George Christie. It was not a coincidence that he took the stand as the last witness for their case and the last witness on a Friday afternoon.
During the trial, Father John was in attendance seated directly behind the defense as much as possible. Both Marc and Howie made an effort to speak with him as often as they could to let the jury know the priest was there on behalf of the defendant. Of course, this was done deliberately to make a good impression on the jurors. Christie would try to convince the jury that Howie’s conversion to Jesus and model citizen was a ruse.
Harris started off with a long dissertation of the doctor’s credentials. By the time this was done, even Marc was impressed, especially by the number of books the doctor had published on the subject of sociopathology. Slocum had brought in the best hired gun to be found.
Marc and the lawyers and staff in his office went through every book, treatise and article Christie had published on the subject. In addition, Jeff Modell the office paralegal and resident computer geek searched online for anything they might have missed.
What they hoped to find was some written statement from the doctor admitting sociopaths could change. The best they could find was a couple of references to serious drug therapy used to control this behavior. Even those references were qualified and of little use.
Essentially, what the doctor told the jury was that Howie was pulling a scam and that his sociopathic personality was not a learned behavior but was part of his DNA, as much as his height or eye color.
Marc’s cross-examination was about as good as one could be to show the doctor’s bias. He tried to paint him, with some success, as a hired gun who testified exactly the way the prosecution wanted. He also admitted he only testified for the prosecution.
“Isn’t it true, Doctor, you only testify for the state because your one hundred-thousand-dollar fee is too steep for all but the wealthiest defendants?”
At the sound of the amount Christie was paid, every juror sat up straight and looked wide-eyed at Harris. A hundred thousand dollars is still a lot of money to most people.
“I wouldn’t know,” Christie answered.
“Isn’t it true you did not spend one minute with the defendant?”
“It wasn’t necessary…”
“Nonresponsive, your Honor,” Marc said.
“Answer the question,” Koch ordered.
“Yes, that’s true.”
“You got all of your information and formed your one hundred-thousand-dollar opinion…”
“Objection,” Harris jumped up. “Mischaracterization and argumentative.”
“I’ll sustain the objection on the grounds of it being argumentative,” Koch said. “I’m not quite sure what mischaracterization means. Rephrase, Mr. Kadella.”
“You obtained all of your information and formed your opinion about Howie Traynor from rea
ding things that other people wrote, isn’t that true?”
“Yes,” Christie admitted.
Marc silently thought about if he should continue. He obtained about all he could from the shrink. Marc also knew he had his own expert to call who would refute what Christie said and she had spent several hours actually meeting with Howie.
“I have nothing further, your Honor,” Marc finally said.
“Re-direct, Mr. Harris?” Koch asked.
Harris stood up to address the court. He decided Christie had handled Marc very well and wasn’t going to push it.
“No, your Honor.”
“Do you have any more witnesses?” she asked knowing they did not.
“No, your Honor. The state rests.” Then Harris sat down.
“Mr. Kadella?”
“The defense moves the court to dismiss all charges for failure to bring a case against the defendant.”
This request is normally a mere formality. The defense must request dismissal to reserve the issue for appeal. If the defense fails to do so, it cannot be argued on appeal. It is rarely granted and Marc knew it would not be in this case.
“Denied,” Koch replied. “We’re adjourned until Monday.”
Koch again admonished the jury not to discuss the case with anyone and avoid all news reports. This was probably a futile gesture.
Connie Mickelson poured a shot of her bourbon into three glasses and passed them across her desk. Marc and his friend and officemate, Barry Cline took them, clinked their glasses together and downed the fiery liquid in one gulp.
“Harris played it pretty well,” Barry said. “He ended his case on the last day with three guards telling the jury Howie threatened these victims and scared everyone he met shitless, then was able to remind the jury Howie was on the roof next door and must have used the plank bridge to get there. Finally, he wraps it up with an expert who has credentials as long as my leg who tells them Howie’s conversion is bullshit.”
“That’s about it,” Marc admitted as he handed his empty glass to Connie.
“And all of this on a Friday afternoon so the jury has all weekend to let it sink in,” Barry added.
“I have something in mind,” Marc said. “This thing isn’t over.”
FIFTY-EIGHT
“Good morning, Mr. Kadella,” the deputy said while opening the security door for Marc. “Your client and the priest are already in the conference room waiting for you,” he added while the two men walked down the back hallway toward Koch’s courtroom.
“Thanks, Clarence,” Marc replied.
“Good luck today,” Clarence said. In a whisper, he added, “Just so you know, I got fifty bucks on you winning the case.”
“Really?” Marc said and stopped at the courtroom door. “You think we’re doing that good?”
“Well, um, no actually,” the deputy said. “But I got five to one odds so what the hell…”
“Oh, great,” Marc said feigning disappointment. “That makes me feel better.”
Marc lightly knocked on the conference room door at the side of the courtroom. Without waiting for a reply, he turned the doorknob and entered.
He found his client and the priest kneeling on the floor, their hands folded on the small tabletop while Father John quietly prayed. Marc respectfully waited in a corner while they finished. When they did, the priest offered to leave but Marc stopped him and told him to stay. The three of them took chairs at the table.
“We’ll start our case with our psychiatrist,” Marc reminded them. He told this to Howie on Saturday but decided to go over it again for Father John. “I want to put her on first to refute what their guy said Friday afternoon.”
“Will it work?” Father John asked.
“Who knows?” Mark shrugged. “The jury will believe what it wants to. We just need to create enough reasonable doubt for an acquittal or convince one of them to get a hung jury. Their shrink was a paid, hired gun spewing mostly bullsh…, um,”
“Bullshit,” Father John said for him.
“Yeah,” Marc smiled. “After she’s done, I’ll call you to the stand,” Marc continued looking at the priest. “Until then, I don’t want you in the courtroom. We’ve been over your testimony enough times that you’ll do fine. Any questions?”
Father John and Howie both shook their heads in response.
“Okay, let’s go.”
“Is the defense ready?” Judge Koch asked Marc.
A criminal defendant is under no obligation to put on a case at all. If the defense lawyer believes the prosecution has not made its case or met its burden of proof, the defense may rest without calling a single witness. There are also other times when the defense simply has no case to present to a jury.
“Yes, your Honor,” Marc said after standing, respectfully, to address the court.
“You may call your first witness.”
“The defense calls Dr. Lorraine Butler,” Marc solemnly intoned.
The deputy guarding the exit doors opened one and a petite woman with stylishly cut, light brown hair, entered. Marc slightly smiled at the sight of her. Normally she dressed for work much more casually, though still professionally, than she was today. This was only the third time in her career she would testify at a trial and the psychiatrist was determined to make a good impression.
Dr. Butler was sworn in, took the stand and looked to Marc to begin his questioning. The two of them spent four hours the day before preparing her testimony.
She appeared a little nervous which Marc had actually convinced her to do. It would send a clear message to the jury that, unlike the prosecution’s expert, she was not a professional witness. Marc tossed her some easy questions and she admitted to being a little anxious. The doctor looked directly at the jury and with a sheepish grin confessed this was only her third time as a witness. Of course, all of this was carefully rehearsed, designed to win over the jury. Gauging by the friendly looks she was getting from the jurors, it appeared to be working.
Marc took her through a detailed listing of her credentials which were nowhere near as impressive as Dr. Christie’s. Marc believed this could be an advantage. Hopefully the jury would simply like her better than the prosecution’s hired gun and give her more credibility.
Marc led her through her testimony about her practice to be sure the jury understood this was not an academic. Relaxing after a short while, she comfortably explained to the jury what type of psychiatrist she was. Essentially she was one that dealt with real people with real problems every day. Unlike Christie who appeared somewhat imperious and a bit condescending, Dr. Butler came across as a real, down-to-earth, Midwestern person. Someone you would go to if you needed counseling and treatment.
“Were you able to read the report prepared by Dr. George Christie, the state’s expert, regarding Howard Traynor?”
“Yes, I did,” she answered.
“What, if any, opinion do you have about his report and diagnosis?”
“Dr. Christie is an intelligent, highly educated, respected academic. However,” Butler said pleasantly looking toward the jury, “he hasn’t seen a patient for thirty years. For him to make a blanket statement and claim anyone showing congenital sociopathic symptoms cannot be treated and cured is simply not factual.”
“Have you formed an opinion about Howie Traynor and his condition today?”
“Yes, I have,” she replied.
“Please tell the jury what that opinion is,” Marc said.
“Based upon my time spent with Mr. Traynor and my years of dealing with all types of neuroses, I believe Mr. Traynor has overcome his sociopathic personality traits. His conduct and apparent conversion to Catholicism are genuine.”
Marc thanked her and passed her to Tommy Harris for cross-examination. During their preparation, Barry Cline conducted a mock cross-exam of Butler. Based on what Marc had seen of Harris and what Barry also knew of him, they both believed Barry’s preparation was more than adequate. Harris did not disappoint them.
&n
bsp; Tommy Harris jumped right in asking her a series of ‘yes’ and ‘no’ questions designed to compare her credentials with those of Dr. Christie. He restated every one of the items on the curriculum vitae of Christie and Butler played along. She admitted Christie’s academic and publishing credentials were impressive. Marc prepared her for this and she pleasantly made no effort to argue with Harris or inflate her own achievements. By the time he was done, Harris was coming across almost as condescending as his expert.
At the end, feeling pretty good about himself, Harris opened his mouth and put both feet in. He was simply unwilling to leave well enough alone.
“What makes you think you can sit there and tell this jury why they should disbelieve someone as accomplished as Dr, Christie and believe you?”
It was a question any third-year law school student would know better than to ask, the open-ended question that you don’t know how the witness will answer. Marc stifled a laugh when he saw the look on Paul Ramsey’s face.
“Because I’ve been dealing with real people in the real world for over twenty years. Dr. Christie has been sitting in an Ivory Tower in academia dealing with theory all that time. It’s the old saying, ‘Those that can, do; those that can’t, teach,” Butler said hitting Harris right between the eyes.
To his credit, Tommy Harris knew he was in a hole and it was time to stop digging. He ended his questioning and Koch ordered a short recess.
Father John Brinkley was called to the stand. The salt and pepper haired, mid-fifties, handsome priest made the exact impression Marc expected. Even atheists and non-Catholics would give the man high marks for appearance.
The good Father was on the stand for the remainder of the morning. Marc took him through his personal history with Howie, having met him while Father John was providing religious guidance to inmates and then mentoring Howie through the conversion process. For the defense, his main contribution was to reinforce Dr. Butler’s assertion that Howie’s conversion was legitimate. Marc also scored points with the testimony about Howie’s work at the church.
Certain Justice Page 37