by Sydney Bauer
“Ah . . . ,” said Gus, holding up a finger. “I am not finished.”
David shook his head before dipping his hand as if to say: “Go right ahead.”
“Researchers were unable to make any correct match of a participant’s hand with the imprints left on a dummy’s neck. The study found that the matching of hands to finger marks is difficult and inconclusive.”
“But,” countered David, lifting up a finger, “in four cases they matched the imprint with several hands, meaning they were able to eliminate certain hands simply because of their size.”
Gus shook his head. “So you are not trying to find a print?”
“No!” said David.
“Then why not say this before?” said Gus in earnest. “Tell me what you want.”
Gus was a good man. Forthright and fair. And while he lived and died by the boundaries of logic and science, he was also open to new possibilities especially, David suspected, if it meant reminding Roger Katz of an ME’s professional responsibility as an independent analyst with no legal bias or predisposed opinions.
Gus had too much class to voice his own opinion of the demanding ADA, but David was aware of the Kat’s repeated attempts to get Gus to sway his way, and his tendency to blame Gus and his fellow examiners for setbacks or losses at trial. And so while David knew Gus would not bend the rules on his behalf, he believed he may agree to lean on the side of restraint when it came to providing information the ADA should be seeking individually. In other words he was hoping that what he was about to propose would remain in this laboratory. Giving David his own ace in the hole, guaranteed to trump whatever Katz had up his sleeve, hands down.
David began by showing Gus the shot of Jessica Nagoshi and describing the impromptu experiment he undertook in his own living room late the night before. He highlighted the finger marks on the front of Jessica’s neck, which led the ME to conclude the girl was strangled from behind, before showing him the second image of the murdered girl from the back.
“I do not understand,” said Gus. “What point is it you wish to make? My information is correct, the girl was attacked from behind. If strangled from the front the thumb impressions would be at the front of the neck, like so,” Gus held out his hands to form a circle as if grasping David’s neck front on.
“I don’t disagree,” said David. “But if strangled from behind you would get the opposite—finger impressions on the front and thumb impressions on the back.”
“Yes. Fingers front just as the image shows, and the other one, from behind, it . . .” But then Gus saw it.
“The thumbs,” said Gus with an intake of breath. “They are not there. They should be at the back of the neck, here.” He pointed at the second shot.
“That’s what I thought,” said David, hoping to lead the ME where he needed him to go.
“But they are at the side,” Gus went on. “Here,” he pointed again. “They do not reach far enough around to . . .”
“My client’s hands are the same size as mine, Gus,” said David, now standing in front of the ME, holding up his hands for Gus to see. “They are large, thick, broad. But the hands that did this,” he said gesturing at the images, “they are . . .”
“Small, slender, slim,” said Gus.
“And so . . .” David began, needing to hear it again, needing to know that this was the ME’s official medical assessment, the same assessment he would be willing to back up in court, for each and every member of their “imperfect” jury to hear. “. . . just to clarify, it is your learned professional opinion that . . .”
“That the hands that killed your victim are below average size,” finished Gus, still staring at the two shots before him. “A man with larger hands would have extended his thumbs to the top of the spinal column at the base of the back of the neck. I am sorry, David,” he said, lowering his eyes. “I should have found this sooner.”
“No, Gus,” said David, unable to suppress the beginnings of a smile. “It’s not your fault.”
“Of course there are discrepancies,” Svenson went on. “This is not an exact science. It is conjecture based on what we observe. But not everything is a mystery, David. In most cases the truth is there for us, plain and clear, as long as we are willing to see.”
Roger Katz was in his element. Ten down and two to go. It could not have gone better. The jury so far was a prosecutor’s dream—six women and four men, the majority public school educated, blue-collar workers with kids ranging from ages two to twenty. Two of the ten were black, one Hispanic and even better, praise God, one of Japanese descent!
It was as it should be, he pondered as he sat high and mighty at his desk on the right-hand side of the courtroom, waiting for Stein to return from their late luncheon adjournment. He had, as fortune would have it, realized at a very early age that opportunity was there for the taking; it was a perfectly straight road from here to there as long as you weren’t stupid enough to get diverted along the way. But that is what happened, time and time again, as millions upon millions of supposedly intelligent moralistic morons slowed their own path by meandering off course to assist those less fortunate. Morons like Cavanaugh and his pro bono princess girlfriend, and their poorly groomed boss who, even now, was stooped in a huddle with Katz’s prized kill.
He smiled. His right eye still smarted from Cavanaugh’s pathetic muscle flexing blow some weeks ago—an attack to which he did not retaliate because he was focused enough to realize that any physical retribution would be below him. As AG Sweeney had so aptly put it in a private conversation later that evening, “You are a smart man, Roger, who will not be drawn into the brutish Neanderthal games of desperate attorneys like Cavanaugh. Your victory will be won in the courtroom, not the boxing ring. And that, my friend, will be the greatest victory of all.”
And so, as Stein entered the room, the clerk calling for order, Katz turned his head to smile at Sara “Beyoncé” Davis. The look she returned was nothing short of abusive but he found even that amusing, or more to the point, stimulating, which, considering his mood, was just icing on the cake.
“Juror number fifty-two,” said Stein, cutting to the chase, Katz now on his feet ready to move another one of his little toy soldiers into his growing battalion of twelve.
“Thank you, Your Honor,” he said with a flourish, knowing that the best was yet to come.
Later that afternoon, Roger Katz made his first mistake, or rather two mistakes in a row. He used his last peremptory strike to veto a thirty-year-old electrical engineer and MIT grad named Michael Davenport. Tall, slim, with slick fair hair and fashionable glasses, Davenport looked like a walking, talking prototype for the defense—handsome, college educated, a state water polo champion with a furniture magnate father. In fact, he looked so perfect that Katz had obviously made the decision to strike him before he even took the stand, producing Davenport’s questionnaire and telling Stein he wanted to use his third and final challenge to remove this juror on the grounds that he had a cousin who had once attended Deane. The fact that the cousin was now forty-five and would have graduated when Matheson and his friends were still in diapers was obviously not a consideration. However, Katz did manage to convince the judge that his objections were valid, and within seconds Mr. Davenport was walking out the back door and on his way back to his $150K a year career. And Phyllis Vecchio could not help but smile.
“What a buffoon!” She grinned. “Katz had this guy pegged for a strike from the get-go, but he is so bloody sure of himself that he failed to see it.”
“See what?” asked Arthur.
“The obvious dummy,” said Phyll, rolling her eyes in mock frustration. “Davenport works for Apex Electronics. In fact, he got a promotion a few months ago and is now head of their Electrical Engineering and Computer Science Division. Apex are on the verge of signing a major new client, to supply them with state of the art computer parts and technology for a new generation of notebooks and PCs.”
“Nagoshi Inc.!” guessed Arthur.
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“In one,” said Phyll. “In fact, according to my research, this deal will make Nagoshi their second biggest contractor.”
Sara smiled. “How the hell do you know this stuff, Phyll?”
“It’s what I do, kid.” Phyll rubbed her long acrylic fingernails on her hot pink blouse in a gesture of self-praise. “It’s what I do.”
Seconds later the judge called a young man named Josh Bergin. Bergin was twenty-one and listed his profession as “professional student.” He was a somewhat scruffy but good-looking kid, with long light brown hair and an earring in his right lobe. He was tall, with a three-day growth and piercing pale blue eyes, and could well have passed as a member of some Seattle based grunge band from the ’90s.
“Welcome, Mr. Bergin,” said Katz. “Thank you for your time here today. I see you list your occupation as ‘professional student.’ Well, I am sure you are a young man with an insatiable quest for knowledge, so tell us, where do you do most of your studying?”
The question, aimed at discovering which so-called educational institution would welcome such a young man as Bergin, was dripping with the insinuation that Bergin spent more time trolling live music venues than hitting the books, and Sara guessed Bergin sensed this too.
“The Hark,” he said. “And Starbucks, when I need a double espresso as a pre-finals pick-me-up.”
Bergin smiled, the courtroom shared a chuckle, and Sara, who realized the young man’s answer had gone completely over the ADA’s head, looked at Phyll before breaking into a wide grin herself.
“And you are studying . . . ?”
“At the moment I am doing an extra course in positive psychology. It is aimed at teaching people how to be happy.”
This was an oversimplification and Sara knew it. She had read about this course, it was actually one of the most sought after degrees in the country. It looked at the benefits of positive thinking and the power of optimism in the workplace.
“Working for you, is it, Mr. Bergin?”
“I’m doing okay.” The young man smiled, and Sara could not help but smile with him.
“Tell me, Mr. Bergin . . .” Katz glanced at his Rolex before moving on. “Do you have a problem with the concept of another student being capable of murder?”
“No.”
“Have you read about this case, heard the news reports?”
“Some.”
“Do you think, that despite what you may have read or heard, that you could still make an unbiased assessment of the case based on the information presented at trial?”
“Sure,” said Bergin, flicking the hair from his brow.
“Thank you, Mr. Bergin. I have no problem with this juror, Your Honor,” said Katz, before turning his back on Bergin and swaggering back to his desk.
“Ms. Davis?” said Stein.
“One moment, Your Honor.” Sara turned to Phyll. “The Hark,” she said in a whisper. “Bergin is studying law—at Harvard no less!”
She was right. “The Hark” was the colloquial name for Harkness Common, the prestigious law school’s café cum socializing and study area where students would hang out, hook up or find a quiet corner to read.
“I read about the positive psychology class in the Tribune,” she went on. “It’s now the most popular course at Harvard. Law students can take it as an extra subject. Apparently employers see it as a plus—the power of positive thought and all that.”
“Right,” said Phyll. “And Bergin may live in a rented apartment in Somerville, but his parents own a three-story brown-stone on Beacon Hill.”
“And I suppose that paint-stained shirt is designer too?” asked Arthur.
“It’s Ralph Lauren’s ‘Rugby’ line,” said Phyll. “Ralph swapped his polo player for a skull and crossbones insignia and voila! A whole new market.”
Sara squeezed Phyll’s arm in gratitude before turning back to Stein. “We have no objection to this juror, Your Honor,” she said. And with that, Josh Bergin was promptly confirmed as juror number twelve.
Moments later, Stein called for an end to the day’s proceedings, reaffirming that the four alternates would be selected and sworn in tomorrow—Friday—after which they, and the official twelve, would be asked to return to court first thing Monday for trial instructions and opening statements.
As the room began to clear, Sara took James’ hand and looked at his now healing face to say the one thing she had been desperately wanting to say for months. With David on his way back from the ME’s office, and Bergin secured as their one glimmer of hope among a team of Commonwealth clones, she felt a welcome surge of optimism that all was not lost after all.
“This has been a good day, James,” she said, squeezing his hand, which, she was pleased to see, had finally stopped shaking. “The bruising patterns,” she began, having filled James in on David’s discovery during luncheon recess. “And now juror number twelve.”
“He is one in a dozen, Sara,” said an obviously still terrified James, glancing at the security guards approaching from behind, and clasping her hand even tighter as if begging her not to let go.
“One. Yes,” said Sara, now feeling an all-encompassing need to hold him tight and protect him from the world, as she had her own little brother for so many years.
“I don’t like those odds, Sara,” said James. “In fact, they scare the hell out of me.”
“I know,” she said, pulling him in close. “But you are a student of the law, James, and as such have to remember one all-important thing. This isn’t about odds, it’s about reasonable doubt. And as that is the case, James, one is all we need.”
72
“Thanks, Mick,” said Sara, grabbing a fresh apple, carrot and wheatgrass juice from Myrtle’s cheery proprietor.
“My pleasure,” said Mick, handing David a more conservative orange and pineapple. “When this is all over I’m holding a little shindig here for you all—a victory celebration after hours. No alcohol, of course, given my license doesn’t allow it, at least none that isn’t approved by the law abiding Lieutenant Mannix.” He grinned.
“Thanks for the encouragement, Mick,” said a grateful David.
“Pleasure,” said Mick. “And the juice is on the house.”
They left Myrtle’s and headed outside, planning to drink their juices slowly as they walked home to shower and change and head to the office for a long weekend of pre-trial preparation. David was just about to run through his ideas for his opening statement, a speech he would base on James’ good character, when Sara’s cell rang, prompting her to hand David her juice and retrieve her phone from her sweatshirt pocket.
“Hello,” she said, and David waited as she walked silently beside him, obviously listening intently to the early morning caller on the other end of the line.
“The important thing is that they are off the ground by the end of the week,” she said. “We figure Katz’s witnesses will take at least four days and if that’s the case we . . .”
“Friday, that’s right. But the flight from Australia is close to a day and we want to avoid them being jetlagged.
“But surely, if it’s a respected law firm they will understand if Flinn has to delay his start. It would only be a matter of days after all. What about Buntine?
“He would have to get to Perth then, or Darwin. Does Qantas even fly out of Darwin for the US?
“Okay, I understand the problems. But what are you suggesting, Diane?
“Yes. If it comes down to it, but it would be much better for us—for James—if they were here in person.
“Okay. It’s cutting it fine but . . . Diane, do you think it would be better if we spoke to these boys direct, or at the very least to Flinn, who is contactable at this point.
“Yes, I know you know these boys. But keep us posted.”
And then Sara hung up before turning to David to say: “We have a problem.”
Two hours later they were back in the office and Sara was repeating their “problem” to Arthur and Nora.
“As we know, James had two best friends in Sydney—Lawson Flinn and Sterling Buntine. According to Diane they were inseparable at school—same classes, same sporting teams, same leisure activities and so forth.
“Lawson is in his second to final year of law at Adelaide University. He moved there from Sydney to be close to his fi ancé who is the daughter of the premier of South Australia. According to Diane he has just accepted a summer internship at some seriously impressive law firm and starts this week, making it hard for him to get away.”
Arthur shook his head and Sara stole a glance at David. This was unsettling news and they knew it, and unfortunately it only got worse.
“Buntine has been a little harder to track down. He was a boarder at high school, his family being wealthy landowners from the Northern Territory.”
“Now that is the real Outback,” said Nora.
“Exactly,” said Sara, “which also means that, according to Diane, he has been extremely difficult to find. Apparently he has been jackarooing in the Kimberleys.”
“But that’s mid-north Western Australia,” said Arthur. “Literally the middle of nowhere. How are we supposed to locate this boy? And more to the point, why didn’t Diane Matheson flag these problems sooner.”
David and Sara had asked themselves the very same question.
“She’s stressed, Arthur,” said Sara. “In all fairness to her she has lined up, organized and paid for the passage of three of James’ school and sports teachers, including the principal of his highly regarded senior school. They arrive on Tuesday in more than enough time to give testimony.”
Arthur nodded, before saying what David knew he was about to say. “But the friends are the key. You stressed this yourselves.”
For some reason they felt like two admonished schoolchil dren. The trial started in less than forty-eight hours and two of their key character witnesses had gone AWOL.
“Minding” Diane Matheson had been Sara’s job, but David knew he should have been riding his client’s mother too. It was too big a detail to miss, and a slip they could live to regret.