by Jeanne Winer
Even the fifty-minute crime scene video, which was about forty-seven minutes too long—here we are approaching the Watkins’s house, and now we’re walking up the steps to the porch, we’re crossing the porch, we’re studying the front door, we’re finally opening the door, now we’re entering the house, we’re panning the foyer, we’re entering the living room, we’re panning the walls, we’re approaching the body, we’re focusing on the feet, the legs, the torso, the arms, the neck, the head, we’re examining the wound from a trillion different angles, and now we’re panning the blood on the floor, the blood on the walls, the blood on the television, and because there’s still some tape left, we’re going to enter every other room in the house searching high and low (including under the bed) for any more signs of blood—seemed for the first time grimly fascinating. Every juror watched it with the kind of rapt attention usually reserved for an academy award-winning thriller.
During the following days, I’d occasionally look over to see how my client was doing. Almost invariably she’d vanished, disappeared deep inside herself to that place where nothing could touch her. After a couple of days, I allowed Donald to sit in the front row behind the defense table. By then, I assumed most of the jurors had figured out he was part of the defense team. Who knew, maybe they’d feel sorry for us. But the truth was, since Emily was so checked-out, I was feeling lonely and beleaguered and needed the company.
This was the painful part of criminal defense, the grunt work of sitting through the prosecution’s case, springing up after each witness finished testifying, taking a few potshots, and then sinking down again. When the coroner told the jury that the cause of death was internal bleeding as a result of a stab wound to the abdomen, I stood up and asked him, “How do you know that the cause of death wasn’t really Mr. Watkins’s stubborn refusal to call for help?”
“Well,” he scratched his head, trying to look thoughtful, “unless there’s some evidence of that, I have to assume Mr. Watkins wasn’t capable of calling for help.”
I shrugged, trying to look just as thoughtful. “Well, in fact there is some evidence of that. In her statement to the police, Emily said her husband wandered around the apartment for over an hour. During that entire time, he never bothered calling anyone.”
The coroner pursed his lips. “Well, even if he was stumbling around, he would have been in terrible pain. Why didn’t she call for help?”
Of course I was supposed to ignore the question; I was the interrogator, not the witness. But I looked at the jury and said, “Because she was hiding in the bathroom and was too terrified to come out.”
“Objection,” Jeff called. “Ms. Stein is testifying instead of asking questions. And for the record, her client never stated she was in the bathroom because she was terrified.”
“Oh for God’s sake,” I muttered. “Why else would she spend the night in there?”
Jeff was on his feet, looking self-righteously indignant. “Objection! I’d ask the court to admonish Ms. Stein to refrain from testifying and from making any further gratuitous comments.”
I raised my hand to ward off the judge’s ruling. “I’m sorry, Judge. It just slipped out.”
“Oh right,” Jeff said.
“That’s enough,” Judge Thomas interrupted. “You’re both even now. For the record, I will sustain the objections. And please, no more gratuitous comments from either side.”
As the week wore on, I actually began to find Donald’s presence comforting. I’d realized by then he knew the case as well as I did. At the end of each cross-examination, I began checking with him before letting the witness go. The few suggestions he made turned out to be good and his observations were surprisingly insightful. By Friday, his grim deadpan comments were beginning to seem witty and amusing. Two soldiers in a muddy trench cracking jokes while our shell-shocked comrade stared straight ahead waiting for the next attack.
That afternoon, while the autopsy photos were being shown to the jury, Donald leaned over and whispered, “They ain’t seen nothing yet. Wait till they hear she was a cold-blooded dame who whacked him for the cash.” I had to bite my lip to keep from smiling.
“Very funny,” Emily murmured.
“Sorry,” Donald said.
“Actually,” Emily continued, “it is very funny, in a macabre sort of way.” She tried to smile. “You two are doing a wonderful job. I’ll never forget it.”
“It looks bad right now,” I admitted, “it often does, but by the middle of next week, it’ll start to get better.”
“Yeah,” Donald said. “Wait till it’s our turn.”
***
Rule 101 of trial by combat: start out strong and formidable, dance around and catch your breath in the middle, then end with a fury of kicks and punches. On Monday of the second week, Jeff began his final assault by calling a retired deputy sheriff named Dan Ferguson to the stand. Mr. Ferguson had been Hal’s partner in the Weld County Sheriff’s Department and had witnessed a young wannabe gangster with a .22 shoot Hal in the knee, thus ending Hal’s career in law enforcement. He was being called for three main reasons: to explain Hal’s disability, to create sympathy for Hal the true victim, and to opine that any able-bodied person (i.e. Emily) could have easily outrun Hal if she’d needed to.
For over an hour, Jeff and Dan had a heart-to-heart talk about Hal and what a great guy he was. They covered all of the important topics in an easy, free flowing exchange that seemed more like a candid conversation between friends than a witness being questioned under oath. It was an effective way to humanize the victim and by the end of their chat, a number of jurors were nodding in sympathy. Jeff was on a roll now. I needed to break his momentum immediately or I might never catch up.
The moment Jeff sat down, I began marching to the podium. “Mr. Ferguson,” I said on my way over, “my name is Rachel Stein and I represent Emily Watkins.”
“Yes,” the witness said, “I know her.”
“You’re not a neutral witness, though, are you?”
He shook his head. “No, ma’am, I’m not. Hal was my friend, not Emily.” He had a pleasant creased face like an old cowboy, and silver-colored hair that he’d probably worn much shorter when he was still working.
“Thank you for your honesty,” I said. “In fact, you weren’t even willing to speak with my investigator, were you?”
“No, ma’am.” He was smart. He wouldn’t volunteer anything extra, even if it meant not explaining something.
“Mr. Ferguson, you worked in law enforcement for twenty-five years?”
“Yes, ma’am.”
“Ever arrest anyone for domestic violence?”
He nodded. “Yes, ma’am.”
“Isn’t it true that most domestic violence cases involve alcohol?”
“Yes, ma’am.” Interesting, I thought. He’s not going to fight me.
“You arrest a defendant for domestic violence, nine times out of ten, he’s been drinking?”
“Yes, ma’am.”
“Mr. Ferguson, after the deceased was shot and had to retire, he began to drink, didn’t he?”
Jeff stood up. “Objection, Your Honor. This is beyond the scope of my direct examination.”
“Well that’s true, Your Honor,” I said. “I can subpoena the witness for the end of the week.” I pointed to Donald who stood up holding a subpoena in his hand. “But since Mr. Ferguson lives north of Greeley, I assume he’d prefer not to come back and that he’d rather answer my questions now.”
“She’s right. I’d rather not come back,” the witness said.
Judge Thomas looked at Jeff. “Well, Mr. Taylor?”
Jeff frowned. He hated to appear unreasonable in front of the jury. If I hadn’t made my little speech, he’d have forced me to wait until later. “All right. No sense making him come back.”
I repeated my last question and the witness agreed that Hal had, indeed, begun to drink.
“And he began to drink so much that you and all of his friends became concerne
d, correct?”
“Yes, ma’am.”
“Drank so much that you and all of his friends suggested he go into treatment?”
The witness sighed. “Yes, ma’am. It really killed him to retire so young.”
“But he wouldn’t go into treatment, would he?”
“No, ma’am.”
I stared at him, daring him to disagree. “Even though he was becoming an alcoholic?”
The witness hesitated, but then nodded. “Yes, ma’am.”
“And when Hal drank, he’d often become violent, wouldn’t he?”
Jeff stood up, but before he could object, the witness said, “No, ma’am. Not that I ever saw.”
I looked over at Jeff, waited pointedly for him to sit down and then turned back to the witness. I wanted to drag this out long enough to erase all of the warm fuzzy feelings the jurors had been left with at the end of Jeff’s direct examination. “Mr. Ferguson, you knew, didn’t you, that Hal had been arrested for domestic violence, for hitting his wife, Emily?”
“Yes, ma’am, but the case was dismissed.”
“But wasn’t that because Emily changed her mind about prosecuting him?”
“I have no idea, ma’am.”
“And in that case, Hal was accused of punching his wife in the face, wasn’t he?”
“I don’t know the specifics, ma’am.” He raked some fingers through his thick silver hair. Lorne Greene in Bonanza.
“But you knew it was a domestic violence case?”
“Yes, ma’am.”
I took a chance. “And you knew that Hal had been drinking when he was accused of punching his wife?”
“Yes, ma’am.”
I paused to check my notes. The next topic was drunk driving. “In the twenty-five years you worked in law enforcement, did you ever arrest someone for drunk driving?”
“Yes, ma’am.”
“If someone has a blood alcohol of more than point oh-five, it’s illegal, is it not, for them to be driving?”
“Yes, ma’am.”
“That’s called driving while ability impaired.”
“Correct.”
“And if someone’s blood alcohol is twice that, in other words over point one, then they’re considered to be driving under the influence and a danger to every motorist on the road. Is that correct?”
“Yes, ma’am.”
By this point in the cross, we were the only two people in the world. No one else mattered. It would be that way for Jeff when he was cross-examining Emily. “And any motorist caught driving with a blood alcohol of more than point oh-five would be arrested and thrown into jail. True?”
“True,” he agreed.
“In this case, on the night Hal Watkins was stabbed, he’d been drinking, wasn’t he?”
“I think I heard that, ma’am.”
“Didn’t the prosecutor tell you that?”
“Yes, ma’am.” An honest cop.
“And in fact, when they tested it, Hal’s blood alcohol was over point one?”
“That’s what I heard.” A very honest cop.
I kept on going. “Which means he was legally drunk, doesn’t it, and that if he’d been caught driving that night, he would have been considered a danger to everyone on the road and would have been arrested and thrown into jail?”
“I suppose so, ma’am, but he wasn’t driving. He wasn’t doing anything as far as I know.”
Ah, I thought, the witness is finally getting annoyed. Now, what would it take to make him angry? Let’s find out. “You’ve testified on direct that your friend Hal walked with a slight limp and couldn’t run anymore?”
“Yes, ma’am.”
“But he could still kick with his good leg, couldn’t he?”
“I suppose so, ma’am.”
The moment he answered one question, I asked the next. “Hal worked out with weights, correct?”
“Yes, ma’am.”
“He was quite strong, wasn’t he?”
“Yes, ma’am.”
“Much stronger than my client?” I wouldn’t have asked the question if he’d been a smart aleck, but this cowboy was a straight shooter.
“Yes, ma’am.”
“So even if he limped and couldn’t run anymore, he could still punch someone?”
“Yes, ma’am.”
“He could still slap someone?”
“Objection, Your Honor,” Jeff said.
“On what grounds, Mr. Taylor?” the judge asked.
Jeff had to think about it. “Ms. Stein is asking the witness to speculate. There’s no foundation for the question.”
“Overruled. The witness may answer the question.”
“Thank you,” I said. I turned to the witness. “So Hal was capable of slapping someone if he wanted to?” I was leaning forward, my hands resting on the lectern.
“Yes, ma’am.”
“And shoving someone?”
“Yes, ma’am.”
“Of slamming a door into someone?”
“He wouldn’t do that, ma’am.”
This was almost fun. “Well, if a neighbor saw Hal slam a car door on Emily’s foot, you wouldn’t say that was impossible, would you?”
“I’d say it wasn’t impossible, but I can’t imagine Hal doing such a thing.”
I pretended to think for a moment. “How about breaking someone’s jaw? Was he physically capable of that?”
For a moment, Jeff looked as if he was going to object again, but then decided not to.
“I don’t know, ma’am. Again, I can’t imagine him doing such a thing.”
“You knew, didn’t you, about a month and a half before Hal’s death, that his wife Emily suffered a broken jaw?”
“She told me she’d been in a car accident.”
I nodded. “I see. And you believed her?”
He nodded back. “Yes, ma’am, I did. I had no reason whatsoever to think she was lying.”
“Hal was much bigger than his wife, wasn’t he?”
The witness sighed. “Yes, ma’am.”
“And he drank too much alcohol, didn’t he?”
“I think I already acknowledged that.”
“And would you also acknowledge that your friend Hal had been abusing his wife for years?”
Jeff jumped to his feet. “Objection! There’s absolutely no foundation. Ms. Stein has no basis for asking that kind of question.”
“Do you?” Judge Thomas asked. His face was carefully neutral.
Not really, I thought, but what I said was, “Your Honor, I believe I do. May we approach the bench?”
The judge nodded. Jeff and I hurried over to the judge’s bench and stood as close as we could. The judge leaned forward and whispered, “Well, Ms. Stein?”
“My client told me that Mr. Ferguson has also seen her with a black eye.”
“That’s it?” Jeff asked indignantly.
“Shh,” the judge cautioned. “That’s not exactly the same as knowing the deceased had been abusing his wife for years.”
Like a stubborn six-year-old, I held my ground. “It was enough to ask the question,” I said.
Judge Thomas shook his head. “You can ask about the black eye, but that’s all.”
After we returned to our places, I took a quick drink of water.
“Mr. Ferguson, when you visited Hal and Emily’s house a few years ago, didn’t you see Emily with a black eye?”
He could have easily denied it and I would have been stuck with his answer. But instead he said, “I think it was about four years ago.”
I was beginning to admire him. At that point, I might have sat down, but I didn’t think I had anything to lose by asking whether Emily had explained this injury as well. What could he say that would hurt me?
“Did you ask her about it?” I crossed my fingers. Again, he could have said no, or that he didn’t remember.
“She said she’d walked into the bathroom door in the middle of the night.”
Bingo.
“
And you believed her?” I asked incredulously.
“Yes, ma’am, I had no reason—”
“Oh please, Mr. Ferguson. If you’d arrested someone for domestic violence and his victim told you she’d run into a door, would you have believed her?”
“Objection!” Jeff yelled.
“I’ll withdraw the question,” I said. “Thank you for your candor, Mr. Ferguson. No further questions.”
“Not bad,” Donald whispered when I returned to the defense table.
“Thanks,” I said.
“He was the only one of Hal’s friends that I really liked,” Emily murmured.
“I can see why,” I said.
Jeff stood up and asked for a ten-minute recess in order to find his next witness. As soon as the jury was excused, he grabbed his trial notebook and left the room with Detective Moorehouse behind him.
I leaned over toward Donald. “They’re trying to decide whether to still put Hal’s mother on the stand. Jeff knows we won’t call her if he doesn’t.”
Donald nodded. He was wearing the new blue and red tie I’d bought him over the weekend. “What are you betting on?”
“That he’ll call her.”
I was right, but the Louise Watkins who took the stand and answered all of Jeff’s questions was not the elegant ice queen Donald and I had visited in March. In the two months since we’d seen her, she’d either taken a few acting lessons or Jeff had prepped her well. The witness who was testifying now might have been Louise’s much nicer sister, a sad slightly befuddled woman, not the kind of person you’d want to press very hard on cross-examination. As soon as she was sworn in, she asked if she could have a drink of water. Her hands even shook a little as she sipped from her glass. Jeff kept it short and sweet: her son was a good peaceful loving man; he wasn’t happy with his wife but took his marriage vows seriously; he treated Emily with respect and never harmed her in any way; he was the best son in the world and she missed him every day. Jeff thanked her and sat down.