by Adam Mitzner
23
Marty Popofsky showed up fifteen minutes early for our four o’clock meeting. When the meeting was originally scheduled, I apologized for asking Popofsky to work on New Year’s Day but explained that we needed to see him before the January 2 court conference, and it made sense to give him as much time before then to do the work he needed to do. He didn’t seem to care at all.
“Happy New Year,” I said.
“You, too,” Popofsky said. “I made sure not to overdo it last night so I’d be good and ready for today.”
The very idea of Marty Popofsky overdoing it on New Year’s Eve made me chuckle.
Popofsky methodically removed his coat, and then his scarf, rolling it in a ball and tucking it into the sleeve, the way they teach you to do in kindergarten. After that, he tucked his Mets cap into his coat pocket.
When he was finally ready, I led him into the apartment, where, like seemingly every man, everywhere, he lit up when Nina came into view.
“So what do you have for us?” I asked, if only to snap Popofsky back to reality.
“Something quite interesting, actually.” He put his beat-up briefcase down on the table and started to rummage through it. “Now, if I could only find the report . . . Okay. I got it here.”
The report we’d sent him had been fastened together by a black binder clip, but now the pages were loose and folded in every which way. He began to rearrange them again, smoothing over some of the more crinkled pages with his hands. Most pages were covered in yellow highlighter.
“I’ve read through the report,” Popofsky finally said. “Several times, in fact. And I’ve done some preliminary work, but don’t hold me to what I’m going to tell you because other factors might come into play. First thing is that I don’t have much quibble with the estimated time of death being around midnight. As I understand it, that’s not a critical issue for your client because he’s home from about eight p.m. until the morning, right?”
It didn’t escape my notice that Popofsky referred to L.D. as “your client.” As a technical matter, that was correct—Popofsky’s retention was by Sorensen and Harrington, and not by L.D., which was done purposefully so that his conclusions would be within the attorney-client privilege until such time as we decided to waive it. At the same time, I couldn’t rule out that his choice of language wasn’t just him being precise but was a way of distancing himself from Legally Dead.
“Yeah, that’s right,” I said.
“So there’s not too much help I can give you on that front,” he continued. “I also took a shot at trying to figure out the approximate height and weight of the murderer. You can do that through an analysis of the blood spatter. To a point, anyway. It’s never exact, but juries eat that stuff up because it’s like what they see on television.”
“So were you able to do that?” I asked, undoubtedly sounding exasperated at Popofsky’s roundabout way of getting to the point.
“Not to a certainty, because you’re not certain of the murder weapon. The way you do the calculation is that you look at the blood spatter and you can determine the velocity with which it hit the wall. It’s funny because most people think it’s based on the speed the blood hits the wall, but that’s actually not the way you do it. It’s the splash that’s important. So I’m not looking at the blood that flew off Roxanne’s body and then stuck. I’m looking at that blood’s splash onto another part of the wall.”
He had the expression that experts sometimes get when they think the minutiae of their findings is fascinating in every way. Jurors, however, like lawyers, and like everyone else for that matter, want to know the conclusion first. Expert testimony is a lot like journalism in that way—you should never bury the lead.
“Marty . . . can you give us the bottom line, please?” I asked.
“That’s what I’m trying to tell you.” Now he sounded exasperated, as if any idiot would have figured this out already based on his discussion of blood spatter. “I can tell you the speed with which the blood hit, but all that tells you is the force with which the victim was struck. To extrapolate that back to figure out how large a person would have to be to create that type of force, you got to know what she was hit with. And what she was hit with is inconclusive.” He paused and looked around, as if this simple point needed a visual aid. “Okay, let me try it this way. I could tell you that if the injuries were caused simply by someone’s fist, your murderer would have to be enormous. So that tells you the killer either has a place in The Guinness Book of World Records, or a weapon of some sort was used. But what kind of weapon? Now, that’s critical. Because a five-foot-tall woman might be able to create the same impact with a golf club as a six-foot-tall man would generate with a baseball bat. And that, in a nutshell, is the problem.”
“Assume a baseball bat,” I said. “How big is the guy?”
“Five ten to six two. Reasonably strong, too.”
“So you’re telling us that you’ve excluded women and short men. And that’s it?”
He chuckled. “I can’t even say that, I’m afraid. A strong woman, although she’d have to be very strong . . . an athletic woman, sure, she could have done it, too.”
“Okay. I hope you don’t mind my saying this, Marty, but we already knew all that.”
“Yeah, I know,” Popofsky said, seemingly oblivious to my frustration with him. “But you know the way there were Caucasian pubic hairs found on Roxanne’s bed?”
He actually paused to get our acknowledgment. As if we might have forgotten that minor detail.
“Please tell us you know who they belong to,” I said, if for no other reason than to avoid another dissertation on the science behind Popofsky’s findings.
“I already told you, I can’t do a DNA analysis without the follicles, which these samples don’t have. If you get me a hair to compare against those found in the bed, I can offer an opinion as to whether they match. But it’ll still be a qualified opinion. Without the follicle, you can never say with certainty that it’s a dead-on match. The way it’ll be is that I’ll tell you that the victim’s hairs and the hair we’re comparing it to have certain matching characteristics. There are twelve comparison points in all. So if one or two of the characteristics match, that likely means they’re not from the same source. If five or six of them match, it’s a maybe, and if ten or more match, I’ll be able to say it’s likely, but I couldn’t rule out that there might be some others that match, too. A twelve-point match is pretty conclusive, but there’s also a lot of judgment that goes into determining what’s a match and what isn’t. What I think is a ten-point match our friend Harry Davis may turn around and say is a six-point match. You see what I’m saying?”
I truly felt like shaking him.
“Forgive me, Marty, but did you find out who the hair belongs to or not?”
“No, no, no. Like I said, I can’t tell you who they came from.” He paused, and then a smile came to his lips. “But I think I can tell you whose hairs they aren’t.”
Popofsky said nothing else, milking the suspense. Everyone likes being the center of attention.
“I’m not following you,” I said. “Who don’t they belong to?”
“They’re not Roxanne’s,” he said triumphantly.
“How do you know that?” Nina said.
“It’s on page seven of the autopsy. Hang on . . .”
He shuffled a few of his rumpled pages until he came upon one that had, in addition to extensive yellow highlights, a paper clip stuck to the side. “Right here,” he said, pointing to the highlighted portion.
I’d already read the section when we reviewed the discovery on Christmas Eve, but I must have missed something. I started through it again, slowly. All I saw, however, was a sea of medical jargon that meant as little to me as it did the first time.
When I looked back up, it must have been clear to Popofsky that I didn’t fully understand, because he said, “What that all means, in layman’s terms, is that she waxed her pubic region.” I knew
what that meant, of course, but Popofsky must have thought it was possible I was confused because he then offered: “Roxanne didn’t have any pubic hair at the time of her death.”
• • •
Like my joke to Nina when we searched Roxanne’s house, although our SODDI guy hadn’t left a bloody wristwatch with his fingerprints all over it, the pubic hairs were a close second. But that didn’t mean it was all good news. For one thing, we still had to match the pubic hair to the proverbial haystack of male genitalia out there.
Nina didn’t see that as much of a problem, however.
“We’ve got evidence that she was having sex with another guy,” she said, “and that the guy was in her bed right before she was murdered. So what difference does it make if we can’t identify the guy by name?”
“I doubt L.D. is going to conclude that Roxanne’s sleeping with another guy is really a good thing for him,” I said.
“The fact that she was cheating on him is the least of his worries right about now, don’t you think?” was Nina’s response.
Which led to the second issue.
“I assume you’ve considered the potential downside of proving another lover?” I said. “That we’re giving them strong evidence of a jealousy motive.”
Nina chuckled. “You’re really a glass-is-half-filled kind of guy, now, aren’t you,” she said.
• • •
Nina shared my bed that evening for the second night. There wasn’t much discussion about it. After dinner, we watched television for a little while, and then she announced that she was going to bed, and I followed her into my bedroom.
“You’re going to have to bring some clothing over here,” I said.
“No worries.” She smiled. “I don’t like wearing pajamas anyway.”
Intellectually, I realized that there was no reason for me not to be with Nina; in fact, many people would have said I should have rejoined the living much sooner. But each moment with her felt like I was letting go of Sarah a little more, as if my brain had limited memory and I was overwriting my recollections of making love with Sarah with these new experiences.
I lasted longer this evening than the two times we’d gone the previous night, the jitters gone, I suppose. And for parts of it, I could almost rein in my thoughts, focusing on how beautiful Nina looked below me, her eyes tightly shut, a wide, unabashed smile across her face.
After we were finished, our bodies glistening in sweat and the musty scent of what we’d just done permeating the room, Nina nestled her head on my chest. “Thank you,” she said. “That was . . . I don’t know what word to use. Magical?”
In the moments before I dozed off, as I went back over in my mind exactly how Nina looked at her highest peak, the irony of my life struck me with full force. I had stopped one descent and replaced it with another, for there was no denying that I was falling hard for Nina.
24
Judge Pielmeier never took the bench until everyone was present and she had finished whatever else she needed to do. On January 2, that meant ten forty-five a.m., for a conference originally scheduled for ten.
The judge’s law clerk knocked three times on her desktop. “All rise!” she cried out. “Please come to order. The Supreme Court of the state of New York, for the county of New York, the Honorable Linda A. Pielmeier presiding, is now in session. All present before this court appear and you shall be heard.”
Some judges seem embarrassed by the pomp of their office, choosing to have court meetings in their chambers, or immediately telling counsel to sit when they enter the courtroom. Judge Pielmeier was at the other extreme. I got the sense she wouldn’t have minded if a marching band played some type of judicial equivalent to “Hail to the Chief” whenever she entered.
“I apologize for the delay,” Judge Pielmeier said, looking past the lawyers to the gallery, and without providing any explanation for her tardiness. “I’m going to ask the corrections people to bring the defendant in, unless there’s something we need to discuss prior to that.”
Assistant District Attorney Kaplan and I stood in unison to tell her that there was not.
Judge Pielmeier nodded, a signal for the clerk to open the court’s side door. Just like before, L.D. was accompanied by two guards and was wearing the same orange jumpsuit, complete with the wrist and ankle accessories. When they approached counsel table, the guards once again unlocked only the handcuffs, leaving L.D. restrained about the ankles. Then they took their position about six feet behind us.
“What’s this about?” L.D. whispered to me as he entered.
“We’ve made a few discovery motions,” I told him. “Stuff we need to get on the record.”
L.D. nodded. It wasn’t clear to me whether he knew that the record mattered only in the event he was convicted, in which case it was what the appellate court reviewed.
“We’re now on the record,” Judge Pielmeier said, ending my conversation with L.D. “We’re here on several discovery motions filed by the defense . . . . I’ve read the papers, so you can assume I’m familiar with the facts. Mr. Sorensen, it’s a defense motion, so why don’t you go first?”
“Thank you, Your Honor,” I said. “My partner, Nina Harrington, will make the argument for the defense.”
Nina had written our briefs, and so we’d agreed that she’d make the argument. The first point she’d address was what we wanted most, the prosecution’s witness list. With it, we had a road map for the prosecution’s case. Without it, we’d be trying the case in the dark.
We knew, however, it would be an uphill battle. Witness protection was something of a paranoia for Judge Pielmeier, a vestige of her Chen-Tao experience, where she actually lost a witness midtrial. As a result, she was probably the worst judge we could have pulled on this issue.
“A criminal trial should not be an ambush,” Nina began, a prevetted line that we thought would be a good sound bite for the press. “We have absolutely no idea of the identity of the witnesses the people intend to rely on at trial. We cite in our briefs the case law setting forth the right of defense counsel to get a witness list sufficiently in advance of trial.”
Kaplan rose without Judge Pielmeier prompting her to respond. I couldn’t help but think I would have earned a judicial rebuke had I done the same thing.
“Your Honor, we have serious concerns about the safety of our witnesses if we provide the defendant with a witness list. This case involves a brutal murder.”
“Thanks for that reminder, Ms. Kaplan,” Judge Pielmeier said with her tongue in her cheek. “I’d almost forgotten what the people are claiming happened here.” The gallery laughed, and Judge Pielmeier let them without interruption. When quiet returned, she continued, “But you need to remember that although we can all agree this was a brutal murder, the issue for us is whether this defendant committed that brutality. I’m not locking you up just because this was a brutal murder, now am I, Ms. Kaplan?”
The gallery laughed again. For once I was enjoying Judge Pielmeier’s sense of humor, seeing that this was a rare occasion when the defense wasn’t the brunt of it. But it didn’t take long for her to put Nina back on the hot seat.
“Now, Ms. Harrington, I know life would be a whole lot easier for the defense if the defense knew ahead of time who was going to testify for the prosecution, but I need to balance that against the possibility of witnesses being intimidated or coerced, or something worse. What do you have for me that says I should give you what you want on this one?”
Although it sounded like she was asking for a bribe, I understood that the judge wanted Nina to cite some legal precedent to support our contention. I also knew we didn’t have anything. At least nothing directly on point.
“The defendant’s rights should outweigh the prosecution’s unfounded fears,” Nina said. “The appellate court stated in the Hutchinson case—”
“Oh, that’s not right, Ms. Harrington. Not right at all,” Judge Pielmeier interrupted. She did it with a smile, indicating that she was looking
forward to showing Nina how wrong she was. “Now, I could go through the reasons why you’re wrong, not the least of which is that Hutchinson was a white-collar prosecution—and before you start with me on this, I’m not saying white-collar defendants get more rights than blue-collar ones, even though from what I’ve seen of your client’s professional wardrobe, he’s a no-collar worker, or should I say, a no-shirt worker.” She laughed at her own joke, getting the expected support from the gallery. “But there’s a great difference between letting an accountant know who is going to testify against him about fraudulent tax returns, which was the issue in Hutchinson, and allowing a self-professed”—she looked down at her notes—“ ‘meanest dude there is’ to know the identity of the people who stand between his freedom and a lifetime of incarceration. So if that’s the best you got, I’m denying the request for a witness list.”
Although not completely unexpected, that one hurt. Having a witness list would have gone a long way. Without it, we’d have to prepare for every conceivable witness.
“What else you got for me, Ms. Harrington?”
Dwelling on failure served little purpose, and so like a pitcher who had just given up the go-ahead homer, Nina turned to face the next batter. Unfortunately for her, it was still Judge Pielmeier.
“We’d also like a ruling that Mr. Patterson can wear nonprison clothing at trial,” Nina said. “And for the corrections officers to be seated in the gallery, also wearing civilian clothing, so as not to call attention to themselves as guards.”
This was truly a no-brainer. Nothing was more prejudicial to a defendant than a prison jumpsuit and uniformed officers holding guns sitting behind him. Kaplan could have easily conceded the point, but true to form, she made us work for it.
“The people take no position on the issue of the defendant’s wardrobe, Your Honor,” Kaplan said, “but decisions regarding the safety of the court and courtroom personnel are extremely serious. We believe that the defense should make an application to the prison officials with regard to that request.”