“That’s correct.”
“And, as you said, no signs of a struggle in that apartment.”
“No.”
I paused, letting the exchange soak into the jurors’ collective mind, then said, “In your interview of the witnesses, not one of them saw anyone go into, or come out of, the victim’s apartment, isn’t that right?”
“That’s right.”
“My client is kind of a large guy, isn’t he?”
“I suppose.”
“Hard to miss in a crowd.”
“Maybe.”
“Harder to miss in an apartment complex, wouldn’t you say?”
“There are ways for someone to get out without being seen, they—”
“Objection,” I said. “Non-responsive. Move to strike.”
“Sustained,” Hughes said.
“My question,” I said, “is that a large man like Eric Richess would be hard to miss in an apartment complex in the early evening hours, isn’t that right?”
“It all depends. If people are inside, if someone climbs out the back window and goes down the—”
“Objection,” I said again.
Radavich got up and said, “He’s opened the door, Your Honor. He’s asking the witness to speculate about the size of his client, and whether he could be seen at the apartment complex. Mr. Buchanan asked for an opinion, and the witness is offering it.”
Hughes said, “I’m going to issue the same ruling. The witness can answer yes or no to the question. If you want to ask him clarifying questions on re-direct, Mr. Radavich, you can do that.”
Two objections, two wins. The judge admonishing the witness. I decided that was a good place to leave that part of the questioning, and went to my counsel table and picked up a copy of the autopsy report.
“You are aware, are you not, of the autopsy report on Carl Richess?”
“Of course.”
“You’ve got a copy there?”
He flipped to a page in his notebook. “Yes.”
“Referring you to page two of the report, under the heading ‘Gunshot Residue Kit Results.’ Do you see that?”
“Yes.”
“Please read to the jury the paragraph below that.”
Zebker looked at the page. “ ‘The chemical elements barium, antimony, and lead are elements of virtually all primer mixes. Trace amounts of antimony were found on the anterior of decedent’s right hand.’ ”
“That is referring to gunshot residue, correct?”
“Yes.”
“Which the report says was found on the back of Carl Richess’s hand.”
“Yes.”
“Consistent with suicide, correct?”
“No.”
I should have stopped right there. I should have known something was coming. But the denial was so stark, so fast, I thought he could only be blowing smoke.
“You’re saying that gunshot residue on the victim’s hand is not consistent with suicide by gun?”
“Not when it’s planted, like this was.”
91
WHEN YOU GET gobsmacked in trial, you have to keep your face from showing it. I call this the Phil Ivey. One of the world’s best poker players, you can never tell what he’s thinking behind those cool eyes.
You use the Ivey to keep the jury from knowing the other side’s drawn blood.
I was bleeding.
And I was mad.
“Your Honor, if we could have a sidebar,” I said.
“Approach,” the judge said. “With the reporter.”
When we were all nicely gathered at the bench—Radavich, the court reporter, the judge, and Ty Buchanan—I made sure my back was to the jury so they couldn’t see my face. I was afraid it might look less like Ivey and more like Sasquatch on a bad hair day.
“I wasn’t given any notice of this,” I said. “There is no basis for saying the residue was planted. I move for a mistrial.”
“It’s news to me,” Radavich said.
“You expect me to believe you didn’t know about this?” I said.
“Gentlemen,” Judge Hughes said, “let’s address the bench, shall we?”
“He sandbagged, Your Honor,” I said. “There is nothing in the autopsy report or anywhere else that suggests planted evidence like this.”
“What about that, Mr. Radavich?”
“I don’t know anything about it,” Radavich said. “Mr. Buchanan asked a question and my witness answered it. I didn’t ask him about the residue. Mr. Buchanan did.”
It seemed to me Radavich could hardly contain his glee.
“I am moving for a mistrial,” I said.
The judge looked at the clock. “Let’s send the jury out for an early lunch, and keep the witness here. We’ll have a little hearing and figure out what we’ve got.”
92
AFTER THE JURY cleared, the judge said, “All right, we are on the record. Detective Zebker is still on the stand. I’m going to let Mr. Buchanan take the witness on voir dire. Go ahead, Mr. Buchanan.”
Good. The judge was allowing me to interrupt Radavich’s direct examination to ask questions relating only to my motion for a mistrial. Outside the hearing of the jury, of course.
I faced Zebker. “Sir, where, in any written report, is there anything about a theory of planted evidence?”
“There isn’t,” Zebker said.
“Then what’s the basis of your opinion?”
“I spoke with deputy medical examiner Lyle Schneuder last night. I wanted to go over the autopsy report with him one more time. He said that something had been bothering him, the pattern of the residue on the back of the victim’s hand. It wasn’t spotty, it was streaked. He had an aha moment, he said.”
“An ‘aha moment’? What exactly is an ‘aha moment’?”
“You know, ‘Aha.’ He realized something.”
“And you didn’t share this ‘aha moment’ with the prosecutor?”
“Not yet. I didn’t have the chance.”
“Your Honor,” I said, “this is obviously a move that was planned out by the prosecution.”
The judge looked at me. “You have no proof of that, Mr. Buchanan.”
“I’m having an aha moment,” I said. “Which is why I am moving for a mistrial. I think somebody is lying. I’d like Mr. Radavich to take the stand.”
“Excuse me?” the prosecutor said.
“I want you to swear under oath that you didn’t know about this.”
“Your Honor,” Radavich said, “this is ridiculous.”
“What have you got to hide?” I said.
“I object to that,” Radavich said.
“All right, all right,” the judge said. “That’s enough. Everybody cool off. Be back here at two o’clock sharp. I’ll make my ruling then.”
93
“WHY ARE YOU trying so hard to irritate the DA?” Sister Mary asked me outside the courthouse.
“If your opponent is temperamental,” I said, “seek to irritate him. Pretend to be weak, so he may grow arrogant.”
“Who’s that, Clarence Darrow?”
“Sun Tzu. The Art of War. And give your enemy no rest. Attack where he’s unprepared, and appear where you are not expected.”
“Sounds like super-hero talk.”
“I am T Man. When you have to go to trial, call me.”
“As long as you don’t wear tights,” she said.
“I’ll wear a cape over them, so don’t worry.”
“I think you need some ice cream,” Sister Mary said.
“That’s your answer for everything,” I said. There was an ice cream place on Broadway, walking distance, a block past the Times Building. We were crossing First when I said, “Maybe you need a little Sun Tzu for Sister Hildegarde.”
Sister Mary didn’t respond.
“It’s all politics,” I said. “The Catholic Church has always been political, ever since Constantine made it official.”
“Can we just have ice cream?” she said.
&n
bsp; “If your opponent is persistent, offer him ice cream. Is that it?”
“Something like that.”
“Are you going to stay a nun?”
She stopped and turned on me. “Why are you asking me that? Why do you have to meddle in things? Why do you have to be so you?”
“I’m all I’ve got,” I said.
She spun around like she was mad and kept walking. People on the sidewalk got out of her way, like the Red Sea parting for Moses.
Fortunately, ice cream solves everything and we were able to discuss the case. I determined not to make a big deal out of Sister Hildegarde.
For a while, at least.
94
BACK IN COURT, Judge Hughes denied my motion for a mistrial and then had the jury brought back in.
“Ladies and gentlemen,” he told them, “before the break Detective Zebker made reference to an opinion, a reference to evidence being planted. You are to disregard this statement. It may play no role in your deliberations on this matter.”
Whenever a judge does this, it’s like telling the jury not to think of a pink elephant. Try that sometime.
“You may continue your direct examination, Mr. Radavich.”
“Just one more question,” Radavich said. “Detective Zebker, did you find a suicide note?”
“No,” he said.
“Thank you.” Radavich returned to his chair.
“Cross-examine, Mr. Buchanan,” Judge Hughes said.
I asked my question as I was standing up. “Detective Zebker, you had me arrested, didn’t you?”
Radavich was, of course, on his feet, shouting an objection. Hughes looked like he wanted to be in Philadelphia.
“This goes to bias and credibility,” I said.
“Continue,” Hughes said.
“Isn’t that right?” I said. “You had me arrested?”
“No.”
“I was arrested and booked into your jail, wasn’t I?”
“Not by me.”
“Don’t you recall threatening me with arrest?”
“I recall you were interfering with an investigation.”
“Did you arrest me for it?”
“No.”
“Then I wasn’t doing anything wrong, was I?”
“Yes.”
“But you didn’t arrest me, right?”
“No.”
“But you told me you would.”
“If you continued interfering.”
“Did I get in your way physically?”
“No.”
“Did I tell any witness not to talk to you?”
“I don’t know.”
“Ah, you don’t know. How much don’t you know?”
Zebker blinked. “I don’t know what that question means.”
“Let me help you out,” I said. “You claim I interfered with your investigation, yet you can point to nothing I did. The best you can come up with is I don’t know.”
“Objection,” Radavich said.
“Sustained,” said Hughes. “Just ask questions, Mr. Buchanan.”
“Detective Zebker, have you ever been disciplined by the department for misconduct?”
Radavich exploded, mostly in show for the jury, I’m sure. We trundled up to the bench again. Radavich argued that the question was improper. Which led me to believe there was something in Zebker’s past, but that it wasn’t necessarily admissible.
Because if there was nothing Zebker could have just said no.
Hughes ruled for Radavich on this one, but I was pleased.
To the jury, he said, “The last question from Mr. Buchanan was objected to, and that objecting has been sustained. You are not to give it any credence whatsoever.”
Yes, dear jury, do not think of that pink elephant anymore, I thank you.
95
“JUST A COUPLE more questions, Detective. You recall searching the victim’s apartment?”
“Yes.”
“And did you conduct an inventory of items you removed?”
“Of course.”
I got it from my briefcase and looked at it for a moment. Then I put on my surprise face and said, “There does not appear to be a computer listed here.”
Zebker frowned and flipped to the list in his notebook. “Correct.”
“That’s because there was no computer in the apartment, isn’t that right?”
“That’s right.”
“In your experience, Detective, would it be difficult to send e-mail without a computer?”
“You could do it from a PDA.”
“Is there a PDA listed here?”
“No.”
“And none was recovered, correct?”
“Correct.”
I went back to the counsel table and handed the report to Sister Mary.
“Detective,” I said. “You testified on direct that you did not find a suicide note. Are you aware that, according to Di Maio’s book on gunshot evidence, notes are left in only twenty-five percent of suicides?”
“I don’t know one way or the other.”
“Isn’t it a fact that from the very beginning your investigation focused only on Eric Richess?”
“We arrested him, yes.”
“Have you investigated any other leads?”
“Not after the arrest, no.”
“How about before the arrest?”
“We arrested the right person.”
I said, “I move to strike that answer as non-responsive, Your Honor.”
“Stricken,” Hughes said.
“I’ll ask the question again. Did you investigate any other suspect before you arrested Eric Richess?”
“No.”
“So this could be suicide, or the real killer could still be out there, right?”
Radavich objected, the judge sustained it, I paused for dramatic effect, and said, “No more questions.”
And we were done for the day.
96
SISTER MARY AND I took the Red Line from downtown back to North Hollywood, discussing the case. By the time we got on the Orange Line for the ride back to Woodland Hills, I was starving. I suggested honest Mexican food at a place I knew on Sherman Way.
“Just don’t get any sauce on your habit,” I said.
“If you weren’t an officer of the court,” she said, “I’d elbow you in the gut.”
“That’s never stopped you before,” I said.
We were almost to my car, parked on the back side of the lot, farthest from the street.
It looked, somehow, smaller.
And then I saw why.
All four of my tires were dead flat.
Because they were slashed.
“Nice,” I said.
I looked around for the rarest of birds, the on-the-spot parking security guy. He (or she) was nowhere to be seen.
I circled the car, just looking, steaming. And saw on the hood a message.
A little scratchitti in the paint, probably done with a key.
It read, Back off.
97
“PROBLEM?” THE PARKING security guy in his cute little security car had finally seen my wave and driven over. He was about sixty and hadn’t missed many meals.
“Slight,” I said, and pointed to my car.
“Flat?” Security said.
“Four.”
“Four? Oh yeah. Uh-huh. Four flat tires.”
Man, this guy was good. “How do you suppose that happened?” I said.
“Somebody must’ve done it on purpose.”
“You think?”
“Uh-huh.”
“You have security cameras, right?”
“We got ’em over at the pickup. But your car’s over here.”
I slapped my sides. “Surely you have security cameras pointed at the parking lot.”
He made a concerned face and whispered, “Budget.”
“Then how long have you been on duty today?” I said.
“Since two. When did you get here?”
“Seve
n-thirty.”
“Well let’s see, that would be Clarissa who would’ve been on then, but she didn’t say anything to me, so I don’t guess she saw anything.”
“I don’t guess so,” I said.
“Um…”
“Yes?”
“You know,” he said, “you park here at your own risk. We got signs.”
“Of course,” I said. “And what risk is there when we’ve got a fleet of security vehicles keeping watch?”
“Sir, I’m very sorry. We can report this to the police.”
“Report it. I’ve got to get four new tires before everything closes.”
98
IT TOOK TWO and a half hours. There’s a tire store on Canoga not far from the lot, and a tow took me and Sister Mary there. The store was closed.
So we left the car outside the razor-wired fence, near the shed marked Friendly Fred’s Tires and Treads, and called Father Bob. He said he’d come down in the Taurus to get us.
As we waited, Sister Mary said, “Any idea who might have done this?”
“Somebody who’s taken the trouble to follow me,” I said.
“Or us.”
“Sure, maybe it was an angry Protestant.”
“Not.”
“It’s some bad, theatrical way to throw a little fear into me.”
“Which leads again to the question, who?”
“Who is mad at me? The person who really killed Carl. Maybe somebody who works with the person who really killed Carl. Maybe somebody who was a close friend or lover of the person who killed Carl.”
“Maybe it doesn’t have anything to do with Carl or the murder trial.”
“In which case, who is mad enough to follow me around till they had this opportunity?”
“You messed up that group called Triunfo,” Sister Mary said. “Maybe it’s a residue of one of your early cases. You also got that developer, Sam DeCosse, ticked off at you. Everywhere you go you seem to do that.”
“Maybe it was Sister Hildegarde. Maybe she wants me to back out of the community.”
“Now you’re just being silly.”
“Don’t tell anyone, okay? If it gets out that I’m silly, that’s the end of my rep as a trial lawyer.”
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