A Case of Redemption

by Adam Mitzner

  “Based on the force of the blows, the murderer was of considerable strength. Also, from the angle of the blood spatter, I concluded that the attacker was between five foot ten and six feet three inches tall.”

  Popofsky scribbled on a notepad “Assumes weapon = bat,” and I nodded that I understood. It would have to wait for cross, however.

  “Your Honor, could you please instruct the defendant to stand?” Kaplan asked, a little bit of showboating that prosecutors just love to do.

  I didn’t wait for the judicial order. Instead, I whispered for L.D. to rise. He knew enough on his own to look defiant.

  “In your expert opinion, Dr. Davis, is the defendant of sufficient size to have caused the injuries Roxanne suffered?”

  “Definitely.”

  After Dr. Davis established everything that Kaplan needed, she turned her focus to a preemptive strike against what she knew would be our line of attack—the pubic hairs.

  “Dr. Davis, the jury has heard testimony concerning pubic hairs that were found in Roxanne’s bed. Did you study those hairs?”

  “I did.”

  “Did you do a DNA analysis?”

  “No.”

  “Why not?”

  “The hair samples that we had did not contain the hair root. Without the root, you cannot perform a DNA analysis, like you often see in the movies. Instead, all that can be done is an examination of certain characteristics about the hair.”

  “Did you study the hairs for those characteristics, Doctor?”

  “Yes, of course. Based on that study, we concluded that the hairs came from a Caucasian and were from the pubic region.”

  “Is Roxanne a Caucasian, Doctor?”

  “She is.”

  “Is it therefore possible that the hairs on Roxanne’s bed were hers?”

  “Yes.”

  “Thank you, Doctor,” Kaplan said, resuming her seat. “No further questions, Your Honor.”

  • • •

  I began my cross focusing on Davis’s conclusions about the size of the murderer. Popofsky concurred in the estimate Davis had given, so I wasn’t going to challenge Davis’s conclusions, but I wanted to start to lay the groundwork so the jury could see that L.D. wasn’t the only right-handed person on earth between five foot ten and six foot three.

  “Your range, Dr. Davis, five-ten to six-three, that covers an awful lot of men, doesn’t it?”

  “Yes,” he said matter-of-factly.

  “In fact, you fit that description, do you not, sir?”

  “I do.”

  “And me, too, correct?” I said.

  “Yes.”

  Davis was as good a witness on cross as Boyle had been bad. The first rule of cross-examination is to keep your answers as short as possible while still answering the question. The standard joke was that if a cross-examiner asked if you knew the time a certain event occurred, the best answer was to say only “Yes” and wait for the next question before saying, “Two o’clock.”

  “You can’t even rule out that the murderer is a woman, can you?”

  “It would have to be a very strong woman, but statistically, it’s possible.”

  Davis said this without concern, with almost an “anything is possible” air. I needed to get to an area where I could do some damage to his authority, and so I turned to the pubic hairs.

  “Dr. Davis, you testified on direct examination that three hairs were found in Roxanne’s bed. Do you recall that testimony?”

  “I do.”

  “And you said that you could not conclusively link that hair to any specific person.”

  “That’s right.”

  “But you could exclude certain people as the source, right?”

  “Yes.”

  “Whom could you exclude?”

  “As I said before, non-Caucasians could be excluded.”

  “African Americans, in other words.”

  “Yes. And people of Mongoloid descent.” He turned to the jury. “That’s the scientific term used to identify people who trace their ancestry back to Asia and the Pacific Rim.”

  “And L.D. is African-American, is he not?”

  I took advantage of Davis’s initial hesitancy on such a simple question by adding, “L.D., stand up so Dr. Davis can get a better look at you. He must have been so focused on your height and weight when he testified on direct that he failed to notice your skin color.”

  This earned me my first gallery chuckle and a gavel strike from Judge Pielmeier.

  “Calm down,” she said, making it clear that playing to the crowd was exclusively her province.

  “Yes, he is African-American,” Davis said in a bored tone.

  “So, one thing we know without any shadow of a doubt is that they weren’t L.D.’s pubic hairs in Roxanne’s bed. Right?”

  “That is correct.”

  I had the first half—Davis was conceding that they weren’t L.D.’s pubic hairs. Now I needed to push him hard on the second half—getting him to admit they weren’t Roxanne’s either.

  “Was there anything—anything at all—that led you to conclude that it was possible that the hairs did not belong to Roxanne?”

  Davis’s gaze went beyond my shoulder, so that he was looking straight at Kaplan. They must have been hoping that we’d missed it. Now the jig was up.

  As much as thirty seconds of silence followed, which in court time feels like an eternity. He finally said, “At the time of her death, Roxanne did not have any hair in her pubic region.”

  So they did know.

  The giggles from the gallery that followed Davis’s revelation were loud enough for Judge Pielmeier to use her gavel again.

  I felt like a boxer whose opponent had merely been stunned. I went in for the kill but tried to do so carefully, so that Davis couldn’t land a knockout punch while my guard was down.

  I scrolled through the next series of questions in my head, thinking through Davis’s likely answers as well. I didn’t see any immediate danger, and so I forged ahead.

  “Dr. Davis, did you examine Roxanne as part of the autopsy?”

  “I did.”

  “And in that examination you saw that she did not have any pubic hair?”

  “That’s correct.”

  “And that led you to conclude, did it not, that the pubic hair in her bed was from someone else?”

  “No,” he said.

  No? How could that be? Roxanne doesn’t have any pubic hair, and yet Davis was nonetheless claiming that she left her pubic hair in the bed?

  My curiosity got the better of me. “Really? Why not?”

  “It’s possible that she had recently removed her pubic hair,” Davis said matter-of-factly. “So the hairs in the bed could easily have been hers from before she had her pubic hair removed.”

  There’s a story lawyers tell each other about the dangers of asking one question too many in a cross-examination. Supposedly it happened to Abraham Lincoln during his lawyer days. A witness testified that he was certain that Lincoln’s client had bitten off the ear of the victim. On cross, Lincoln got the witness to admit he didn’t see the biting. Then Lincoln asked the one question too many—“If you didn’t see my client bite off the ear, how can you testify with such certainty that he did?” And the witness said, “I didn’t see him bite it, but I saw him spit it out.”

  I’d fallen into that same trap, allowing Davis to plant the idea that it still might be Roxanne’s hair after all. That meant I had some backing and filling to do.

  “If I understand what you’re telling us, Dr. Davis, the only way the pubic hair found in the bed could belong to Roxanne is if she left it in her bed, and then before the sheets were changed or washed or the hairs were otherwise brushed away, she removed all of her pubic hair. Do I have that right?”

  “Yes.”

  “If, contrary to your conclusion about the recent removal of Roxanne’s pubic hair, if, in fact, she had her pubic hair waxed long before the murder, then would you agree with me that another m
an was in her bed shortly before she was killed?”

  “If I understood your question, the answer is no because it could also be a woman.”

  That was probably the closest I was going to get to an admission out of Davis, and it was more than a little convoluted. I briefly considered plowing the ground again to get a better sound bite to repeat to the jury during closing, but thought better of it, fearing that it might give Davis time to take back the little progress I’d made.

  “How long could pubic hairs stay on her bed like that?”

  Davis chuckled. “I’m sorry, Counselor, but my expertise in the field of forensic medicine does not give me insight into routine housekeeping matters.”

  The gallery laughed with him, which caused Judge Pielmeier to get in on the act. “You’re going to need to call an expert maid if you want someone to testify about clean sheets, Mr. Sorensen,” she said.

  I had no choice but to wait for the gallery’s laughter to subside. When it did, I decided to try a different tack.

  “Let me ask you this, Dr. Davis: Did you do anything, anything at all, to determine whether the pubic hairs found in Roxanne’s bed belonged to someone other than Roxanne?”

  “There was nothing to do.”

  “Why—strike that. Did anything prevent you from comparing the hairs to someone else’s hairs?”

  “That assumes we knew who to compare them to,” he said.

  I smiled, and when I did, I saw Davis realize he’d stepped in it. “Thank you, Doctor. I take that to mean that, if you did know whose hair it might be, you would have conducted a test to ascertain, one way or the other, whether that person might be the real murderer.”

  “Objection!” Kaplan shouted, clearly upset. “Dr. Davis is a medical examiner. He does not direct the investigation.”

  “Once again, Mr. Sorensen, you are beyond the scope of this witness’s expertise,” Judge Pielmeier said. “The objection is sustained.”

  It didn’t matter. I looked over at the jury. Half of them were now nodding.

  44

  The prosecution put up a host of single-issue witnesses over the next two days. Thursday began with Roxanne’s housekeeper. She testified that there had been a baseball bat hanging over the mantel in Roxanne’s bedroom since shortly after the first game of the World Series, and she was sure it had been there the last time she had been in Roxanne’s home, which was the morning of the murder.

  On cross, I tried to get her to admit that she had changed the sheets right before Roxanne’s death. That her English was less than perfect only made it that much more difficult.

  “When did you last change the sheets in Roxanne’s home?” I asked.

  “It was a long time ago, I don’t remember,” she answered.

  “You regularly changed the sheets in her home, did you not?”

  “Sí. I mean, yes.”

  “Did you do it a few times a week?”

  “One time a week, usually. Unless she asks me to do it another time.”

  “The regular change of sheets, did you do that on a specific day? For example, did you usually change the sheets on a Monday, or a Tuesday, or a Wednesday?”

  She shook her head, and I assumed she would say that she did not know, but instead, the words “Usually Tuesday” came out.

  We now had the timeline. On Tuesday, Roxanne’s sheets were changed, and she slept in her bed that evening. The following morning she left for South Carolina. Four days later, on the Sunday after Thanksgiving, Roxanne returned to her bed, and sometime during that evening she was murdered. If Matt Brooks—or someone else, for that matter—had been in that bed and left his pubic hair behind, he would have done so on either the Tuesday before Thanksgiving or the night Roxanne was murdered.

  The autopsy report had not found any semen inside Roxanne, but that didn’t mean she hadn’t had sex the night she was killed. A condom wouldn’t prevent the wearer from leaving some pubic hairs, however.

  We knew from the subpoena to the Old Westerbrook’s spa that Roxanne hadn’t made an appointment there to have a Brazilian, but that didn’t mean very much because there were plenty of other places in the area that might have done it, or, as L.D. had suggested, Roxanne could have brought someone in to do it in private. For a while I held out hope that Roxanne’s waxer would show up on TMZ or Inside Edition, revealing when she stripped Roxanne of her pubic hair, but she never did. Like Nina said about Roxanne’s neighbor’s housekeeper, some people don’t want to be involved in a murder case.

  The truth was that it really didn’t matter when she’d waxed. She still could have had it done in New York on Wednesday, before she went to Stocks, or even sometime Sunday after she returned, and the prosecution could therefore still claim that it was her hairs in the bed.

  In other words, the pubic hair was a dead end. We couldn’t prove that those weren’t her hairs, but the prosecution couldn’t prove that they were hers either, certainly not beyond all doubt.

  The rest of Thursday was consumed with the mind-numbing science that is a big part of the government’s proof, but barely anyone can understand. Carpet fiber analysis, the art of retrieving blood spatter, chain of custody. Very little, if any of it, was disputed by us, and the jury didn’t seem to care at all. In fact, the only time I saw any emotion from them the entire afternoon was when Judge Pielmeier announced that we were done for the day.

  On Friday, Kaplan closed the loop on the baseball bat. First came a young police officer who testified that he was first on the scene and did not see the baseball bat hanging over Roxanne’s bedroom mantel. He was followed by an older cop, who explained the lengths the NYPD went to in their search for the murder weapon. Nearby garbage cans, sewers, the subway tracks.

  After him, Kaplan called a representative of Major League Baseball, who told the jury that Roxanne received a baseball bat for singing the national anthem at the first game of the World Series. He even slipped in that Roxanne told him she was going to put the bat in her bedroom, a half second before I made my objection.

  When he stepped down, Judge Pielmeier asked Kaplan to call her next witness, at which time, in a clear, confident voice, Kaplan said, “Your Honor, at this time, the people of the state of New York rest their case in chief.”

  The prosecution had proven everything it needed—the old troika of means, motive, and opportunity. And by dragging out her case until Friday, Kaplan also got the collateral benefit of denying the defense the opportunity to put on any witnesses until Monday. That was more than enough time for the jury’s position to harden. Perhaps irrevocably.

  “Very well,” Judge Pielmeier said. She turned to the jury. “I’m now going to dismiss you all for the weekend. I will see you back here on Monday morning, and until then, remember to follow the rules I’ve established: Don’t talk to anyone about the case. Stay away from the media. Keep an open mind.”

  After the prosecution rests, the defense always makes a motion for a directed verdict, because failure to do so precludes certain arguments from being raised on appeal. As a result, no matter how convincing the prosecution’s case, the defense lawyer stands up and tells the judge that the prosecution has not met its burden of proving guilt beyond a reasonable doubt—no thinking jury could ever vote to convict on the evidence presented.

  So after the jury left, I made the best show of it that I could.

  “Your Honor, the prosecution has failed to establish any of the elements that could give rise to a reasonable jury voting to convict. All they have established is that Roxanne was murdered. They have not provided this jury with any evidence linking the defendant to the crime—”

  “Mr. Sorensen,” Judge Pielmeier interrupted, “let me save you some time so we can all get a jump on the weekend.” The gallery provided her with the sought-after laugh. “I know you need to make this motion to preserve your record. You’ve made it. Now I’m going to deny it.”

  She struck her gavel.

  “Court is adjourned until Monday morning at nine thirty.”


  • • •

  That evening, over a pepperoni pizza, Nina and I discussed what our case would look like. There was actually very little mystery involved. The only evidence we had was the guest registry at the Old Westerbrook and Carolyn Anton’s testimony that she saw Roxanne coming out of cottage eighteen. With that, we could put Matt Brooks in South Carolina over Thanksgiving weekend and Roxanne in his room.

  The question on the table, however, was whether that was enough for an acquittal. My vote was no.

  “I think we have to put Matt Brooks on the stand,” I said.

  She grimaced. We’d served a trial subpoena on Brooks the previous week, and at that time agreed to disagree about whether we’d actually use it. Now, however, we had to make a decision.

  “It’s going to be Roxanne’s mother all over again,” Nina said. “Brooks isn’t going to admit to the affair.”

  “He’ll have to admit to being in Stocks over Thanksgiving.”

  “The registry already proves that. Brooks will say it was business.”

  “What’s he going to say when we ask him why he refused to give us a pubic hair sample?”

  “Judge Pielmeier never lets that in. And even if she does, he says that he didn’t refuse, it was a decision of the court.”

  She was right about that, but it didn’t mean I thought she was right about whether we should call Brooks to the stand.

  “There’s a reason Brooks didn’t testify for the prosecution,” I said.

  “So that’s why we’re calling Brooks to the stand? Because Kaplan didn’t?”

  “No,” I said, although I stopped to think if that wasn’t part of the reason. “I’ve been saying this from the beginning: I just don’t think we can win a reasonable doubt acquittal. Our guy has the only motive the jury’s heard and then there’s that goddamn song. And what are we saying in response? That there might be another lover? There might? I bet you that the jurors aren’t even convinced of that after Harry Davis testified, and that was our best piece of evidence. Now they think that Roxanne just had a lousy housekeeper.”

  Nina must have known that this discussion wasn’t going anywhere because she didn’t respond. At least not verbally. The mournful shaking of her head told me everything, however—she thought we’d be making a huge mistake if we went after Matt Brooks as our SODDI guy.