I turned onto McLin Lane and then onto Eisenhower Way and slowed to a walk as I approached Orista Court and Esther’s house. The breeze had shifted and the tock-tock of pickle balls striking the paddles wielded by the players at the nearby Big Cypress Village Recreational Center tickled my ears. I stripped as I entered the bathroom, showered, and dressed in clean clothes. I didn’t want to saturate Esther’s furniture with smelly sweat.
The first attachment was the report on the bail issue. I printed it and began to read. The report was shorter than I’d expected, concise and to the point. On the first page, Meredith conceded that Esther had lived an upstanding life, taught a couple of generations of Atlanta’s children, and had never been in trouble. On the second page, she began the litany of evidence that she argued would ensure a conviction.
She mentioned the book that Esther had supposedly authored, but there was no evidence that it existed. Meredith brought up the proposition that Esther might be delusional and that her murderous anger at the victim was fueled by the fantasy that she had written the book and Ms. Lathom had stolen the manuscript from her. If her fantasy persisted, she might very well be a danger to the community, particularly to those working for the victim’s publisher.
The defendant had threatened to kill the victim for stealing her work, telling Ruth Bergstrom two days before the murder that she “would kill the bitch,” referring to Lathom.
I read the first two pages of the report and stopped to mull over what was there and trying to figure out how to rebut it. Meredith didn’t know about the laptop Esther had stashed with her neighbor or that it was in my possession, and I wasn’t required to tell her about it. If she specifically asked for it in a discovery motion, I’d argue that most of what was there was not relevant to the murder and what might be relevant was protected by the work product privilege. The computer and its contents were part of my work product and thus privileged, that is not discoverable, unless I planned to offer it into evidence. I would argue that using the contents of the computer in rebuttal to show that the state’s witness was lying was permissible. It was also part of the exception to the agreement I’d made with the prosecutor, that there might be evidence I couldn’t—and wouldn’t—turn over to her.
I could prove that Esther had written the book and probably that Ruth Bergstrom had provided it to Lathom, and that Lathom had sent it to her publisher claiming it to be her own work. That proof alone would be enough to eviscerate Meredith’s argument about Esther having delusions, but I would hire a psychologist to examine Esther and be ready to testify that she was not delusional. The trial lawyer can never be too careful, but on the other hand, you didn’t want to inundate the jury with evidence you didn’t need. I’d have the shrink on standby in case I needed him.
I wanted to get Esther out of jail, but if I disclosed what I knew, it might not be enough to get the charges dropped, and yet, I would have laid out my trial plan. That could be a disaster because it would give the cops and the prosecutors months to find any evidence that could be used to completely disembowel my case. I wouldn’t want to risk it, but I’d have to talk to Esther about it.
I turned to the third page, and the last bit of evidence Meredith presented hit me in the face like a sledgehammer. I brought up what I hoped was the police report. It was. And it appeared to be complete. I perused it quickly, looking for anything of importance. I’d seen a lot of similar documents and they were always full of police jargon and boilerplate used to fill in the answers to standard preprinted questions. What jumped out at me was the answer to a question that had been bugging me since I had gotten into this case. Why had the sheriff’s department jumped so quickly to charge Esther with murder when all they had was the statement from Ruth Bergstrom that Esther had threatened to kill Olivia Lathom? And why had the state attorney moved forward with a case that seemed to rest upon such a thin reed of evidence?
Meredith must have read the police documents and appended them to her report. I had the answer to my question about the reason for the charges and it upended my whole game plan. It may have also sealed Esther’s conviction.
CHAPTER 32
I CALLED J.D. “We’ve got a big problem.”
“What?”
“The police found Esther’s gun and ballistics tied it to the gun used to kill Olivia.”
“No way. There’s got to be a mistake.”
“It was in the crime lab’s report. Meredith attached it to the police report she emailed to me this morning.”
“Aunt Esther didn’t do this.”
“I know, but this might be a tough one to get around.”
“Tell me about the gun,” she said.
“It’s a twenty-two-caliber Smith and Wesson model 67 revolver. An older model. It was found on a shelf in Esther’s bedroom closet.”
“I bet that’s the one my dad gave her years ago. He wanted her to have it for protection, but the gun scared her more than the thought of some criminal assaulting her. My dad insisted that she take a gun safety course and when she finished that, he took her to a police firing range to teach her how to shoot. She quit after the first session. I doubt she ever fired the gun again.”
“Ballistics confirms that the slug that killed Olivia was fired from this gun. The gun had been fired recently and the cartridge was still in the cylinder along with five unfired rounds. The fired cartridge had Esther’s fingerprints on it. So did the gun.”
“It was her gun, so I’m not surprised that her prints were on it or on the cartridge. She would have loaded it so you could expect the cartridges to have her prints on them. Did they run prints on the other five bullets? The ones that hadn’t been fired?”
“Hold on. Let me look at the report.”
“While you’re at it, see if the report has anything about how long the prints would have been on the cartridges.”
The report did not mention the age of the prints that were on all the shell casings. I conveyed that to J.D. “I think the ballistics people have developed techniques that can now pull prints off the cartridges no matter how long they’ve been there.”
“Yeah,” J.D. said. “It’s called Cartridge Electrostatic Recovery Analysis. It’s scientific gobbledygook to me, but it works and the results have been admitted into evidence by the courts.”
“The prints can be explained no matter how long they’ve been on the gun or the cartridges. But if somebody else used the gun to kill Olivia, what happened to his prints?”
“Good question. I’ll have to think about that. Wouldn’t the prosecutor have to prove a connection between the fingerprints and the murder? I mean, it was her gun and you’d expect her prints to be on it.”
“Not necessarily,” I said. “Meredith could simply prove that the gun was the murder weapon, that Esther owned it, had access to it, and only her prints were found on it. The jury would be allowed to draw the inference that, under the circumstances, Esther was the murderer.”
“Gotta go. I’m at work, and I’ve got a customer waiting to check out. I’m going to try to meet with one of the book club women after work today. Call me after you meet with Aunt Esther.”
I headed back to Bushnell, cogitating about my strategy in light of the new evidence. I’d called Meredith Evans and asked if the crime lab had taken any photographs of the pistol with the fingerprints outlined. They had, and she agreed to call the lab director and ask her to supply me with a copy of the photos. I stopped by and picked them up on the way to the jail. The only fingerprints on the pistol were wrapped around the grip in the same way they would have been if the pistol were held in the firing position.
When we were seated in the attorney conference room, I told Esther about the gun being found in her house with no fingerprints except hers and that the ballistics expert was confident that her gun was the murder weapon. “I know you didn’t kill Olivia,” I said, “so there’s got to be an explanation.”
“I honestly don’t know, Matt. Unless somebody stole the gun and used it to kill Ol
ivia.”
“Did anybody know you had the gun?”
“Probably everybody. I had it out cleaning it one day, oiling it, that sort of thing and left it on the kitchen counter. Some of the book club people came over that afternoon for one of our critique meetings. We have these little groups within the book club that get together every week or so just to talk about what each other is writing. It’s always a lot of fun and we rotate the meeting so that everyone in the group gets to host one. The girls saw the pistol and for a few days called me Annie Oakley. Then they forgot about it.”
“Esther, the fact that you owned that gun and only your fingerprints are on it is probably going to sink any chance we have of getting bail. If I could show the possibility that someone stole the gun, we’d still have to make sense out of the fact that your fingerprints were the only ones on the pistol. And we’d need a lot more evidence than we have that one of the book club women, or somebody they might have told about the gun in your closet, stole it and killed Olivia.”
“Do you want to throw in the towel?”
“Maybe on the bail hearing. We might get the prosecutor to agree to an early trial date in return for us withdrawing the bail motion.”
“Then let’s see if we can get an agreement to set the trial as early as possible. If we can’t, so be it. I can handle this place for a couple more months. The only thing I really miss is the opportunity to teach my kids how to read.”
“I didn’t know you were still teaching,” I said.
“I don’t think of it as teaching like I did for so many years in Atlanta. I volunteer at the elementary school in Wildwood two mornings a week. I help with the younger kids who don’t get much of what you might call intellectual stimulation at home. Some of those kids are as bright as a newly minted penny. They pick up on the reading very quickly, but some of them struggle. I like to think I’m making a little bit of difference in some of their lives.”
“Do you do this at a set time every week?”
“Yep. Every Tuesday and Thursday morning from ten until eleven.”
“Do any of your friends know about this?”
“Sure. All of them, I guess. I never made a secret of it.”
“How long are you out of the house on those mornings?”
“Not long. The school is just up the street off Highway 44 A. It only takes me ten or fifteen minutes to get there, and I spend an hour with the kids and come home.”
“I bet you don’t lock your doors when you leave the house.”
“Heavens, no. We don’t have much crime in The Villages, you know.”
“Did the ladies in the group who found out about your gun know where you kept it?”
She was quiet for a moment or two and said, “I’m not sure, but I might have told them that I keep it in on a shelf in the closet in my bedroom. I was dusting in there the morning of the meeting and I saw the gun and thought I ought to clean it since I hadn’t touched it in years. J.D.’s dad tried to teach me to use it, but the damn thing scared me. The fact that I decided to clean it was a spur-of-the-moment thing. I probably explained that to the girls as the reason it was laying on my kitchen counter.”
“Did you keep it loaded?”
“Sure. I can’t imagine that a gun would be much use if it weren’t loaded.”
“But you were afraid of it.”
“I kept the safety on,” she said, with a smile. “Probably doesn’t make much sense, but there you have it.”
“So a number of people would have known that you’re gone on those mornings that you teach and that you don’t lock your door. Anyone could just have just walked in and taken the gun.”
“I suppose, but so could anybody who found out about the gun second- or thirdhand. It wouldn’t have to be one of my friends. But wouldn’t the person who pulled the trigger have left fingerprints on the pistol?”
“They would have, but there were no other prints on the gun. If somebody had wiped it clean after using it, how would your prints have gotten on it?”
She thought about that for a beat and her face lit up. If this had been a comic book scene, a small glowing light bulb would have appeared above her head. “Matt,” she said. “Kelly Gilbert came to visit me late on Thursday morning right after I got back from school. That was the day they found Olivia’s body. Kelly brought over some cookies she’d baked and wanted to talk about Olivia’s death. By then probably everybody in The Villages had heard about it. She said that she was upset and was thinking about getting a gun for self-protection. She asked if she could see mine. I got it out of the closet and showed her how to hold it in a shooting stance. I told her I was afraid of the thing, and except for the emotional attachment I had to it because it had been a gift from my late brother-in-law, I would have gotten rid of it a long time ago.”
“Do you remember holding the gun in any other way than by the grip during your little demonstration?”
“No. J.D.’s dad insisted I take a gun safety course, and one thing I learned is to never hold a pistol except by the grip and never point it at anybody, loaded or unloaded.”
“Did Kelly ever touch the gun?”
“No. I offered it to her, but she said she didn’t know anything about guns and would wait to take some lessons.”
“That would explain how your fingerprints ended up on the gun and the shooter’s did not.”
“Yes, but Kelly wouldn’t do anything like that. She’s a very sweet woman. I don’t think she’s capable of murder or even the kind of deceit it would take to get my prints on the gun. It would have been an innocent mistake on her part if that’s what happened. I don’t want to get her in any kind of trouble.”
“My job is not to prove you innocent, but to show there is reasonable doubt as to whether you are guilty as charged. I wouldn’t have to prove that Kelly was involved in any way, just that she was in your house and watched you handle the gun.”
“Explain this all to me, Matt.”
“You were at the school on Tuesday morning. Gone from home for an hour and a half or so. Your front door was not locked. Somebody comes in, takes your gun, and leaves. You don’t notice that it’s gone, because you don’t usually pay attention to it. The somebody who took the gun uses it on Wednesday night to kill Olivia, wipes the gun clean of fingerprints, returns it to the closet while you’re at school on Thursday morning. When you get back home, Kelly shows up with cookies and arranges for you to put your fingerprints back on the pistol. When the police search your home the next day, they find the gun that had been recently fired and your fingerprints are on the cartridges and the grip. That will be awfully good evidence that you were the shooter.”
“What do you suggest?”
“The state can’t take your deposition because of your Fifth Amendment right not to be compelled to incriminate yourself. I think we should keep this new information to ourselves for now. The prosecutor will no doubt make a big issue in her case about your gun being the murder weapon and the fact that only your fingerprints were found on it. Then we come along in our case and explain to the jury why the murder weapon only had your prints on it. That will take a lot of wind out of the state’s sails.”
“How are you going to prove that?”
“If Kelly Gilbert had nothing to do with the murder, she’ll be happy to testify that on the day they found Olivia’s body, she came over to your house and asked you to show her the gun. If she won’t testify to that, I’ll figure out why and be ready to impeach her.”
“Impeach her?”
“Cross-examine her and show that she’s lying. And either way, I’ll put you on the stand.”
“Wouldn’t that information help in the bail hearing?”
“It would, but we’d be disclosing part of our trial strategy that I’d prefer to leave until the trial so that we can surprise the state. Look, I don’t want you to have to sit in jail, but I also don’t want to let this little nugget of information about the gun get to the prosecutor. Meredith might have already talked
to Kelly and figured it out, but she won’t know if we figured it out. If Kelly had nothing to hide and admits to asking you to handle the gun, it won’t make any difference. But, if for some reason, Kelly didn’t disclose that to the prosecution, we’ll have a surprise waiting for the state when we go to trial.
“We may not win any points on this issue at trial, but if I use this one in my bail memo to the judge, it definitely won’t be of much use to us at trial. The state will have had time to figure out a way to counter our evidence, like getting Kelly to lie about it.”
“Do you think Ms. Evans would do something like that?”
“No. But I can’t take the chance that she’s not the ethical person I think she is.”
“So, what happens if you don’t use what we know in your bail hearing?”
“If I don’t show it to the judge, he’s never going to grant bail. The gun and the fingerprints, without anything to dispute the prosecution’s position, will sink any chance we might have had at getting bail.”
“What do you suggest, Matt?”
“We don’t have a trial date. Maybe I can approach Ms. Evans with a deal. I’ll withdraw the motion for bail if she’ll agree to a trial date in, say, thirty days. That’ll mean you’ll be stuck here for the duration.”
“What if she won’t agree to the quicker trial?”
“Then I think we still need to withdraw our bail motion. I don’t like the idea of making an argument I can’t possibly win. It makes me look like an amateur and tends to make the judge testy for wasting his time.”
“If we go to a hearing on the bail motion and lose, can we appeal it?”
“Yes. But that’ll just delay the trial even further, probably by months, and I don’t think the appellate court would overturn Judge Gallagher, given what the prosecutor will argue. Unless we divulge our strategy on the fingerprints and the computer, we’re going to lose. And we could lose even if we put it all in our response to the state’s memorandum.”
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