Compelling Evidence

by Steve Martini

  “A claim check,” she corrects me. “I doubt it.”

  I work my pen over a legal pad as she talks, listing the items she needs to finish.

  “Sharon’s W-2 form for the last year. For the tax return,” she explains.

  I grimace. “I’ll have to get that from her father.” Sharon is a tender wound with Coop. The thought of opening it, even for a minor matter of business, is not a pleasant one.

  “Now to the claim check,” she says. ‘The police inventory from the accident shows Sharon’s personal effects. It’s nothing much, but it lists this claim check from a hardware store, a place called Simms. Doesn’t say what it’s for, but whatever’s there is an asset of the estate. The claim check seems to be missing. You might check with her dad or just call the store. No big thing. If we can’t find it, we’ll just abandon the item and show it as lost on the schedules.” Peggie reads the number of the claim check to me and I make a note. I will call the hardware store. On this I can avoid dealing with Cooper.

  “Is that it?”

  “As far as I can tell. Do you do these often?” she asks.

  “Never before”—I hesitate for a second—“or again.”

  “I can tell.” She laughs.

  “That bad?” I say.

  “No worse than the usual. Some lawyers give me probates so old they’ve gone through two generations of executors,” she says.

  “The lawyer’s motto,” I tell her. “When in doubt, procrastinate. It’s what makes malpractice so lucrative.”

  “You said it, I didn’t.”

  “I’ll call you when I have the other items.” Then I hang up.

  Next on the stack is a message from Skarpellos. I call and get Florence. Tony’s out to lunch, seems he’s meeting with Cheetam. He wants to talk to me. According to Florence, it’s important. She builds me into his schedule for later that day, following Talia’s afternoon session. I hang up.

  I feel as if suddenly I’m welded to the Greek, part of his mercantile empire. Like a bag lady at a one-cent sale, Susan Hawley has accepted Skarpellos’s offer, a free defense for her silence in “boinkgate.” I am now left to juggle Hawley’s defense as I watch Talia slide slowly into the abyss that has become her preliminary hearing.

  Like envoys at the United Nations we sit four abreast at the defense table, Cheetam next to Talia. I’m to her right. Today Harry’s joined us. I’ve told him about the blunder over the bullet fragment, how Cooper handed our leader his own head on a platter. Cheetam thinks that Harry’s presence here is a show of force, a turning out of the troops for his case in chief, the first day for the defense. He has glad-handed and back-slapped Harry all the way into the courtroom. But I know Harry better. Having missed the big one, he nurtures hopes of seeing Gilbert Cheetam get his ass waxed one more time. There is a certain quiet malevolence in the nature of Harry Hinds.

  In the early afternoon, Nelson’s putting the final touches on his case. He calls a witness from the state department of justice, a woman from the records section. There is little fanfare here, and no surprises. She testifies to the registration of a handgun in the name of Benjamin G. Potter. This is the small handgun purchased by Ben for Talia, the one that Talia and Tod have yet to find. As with everything else owned by Ben, this was a pricey little piece, a $400 semiautomatic Desert Industries twenty-five-caliber ACP. Nelson ties this neatly to Coop’s testimony, the fact that the twenty-five-caliber ACP is the smallest steel-jacketed round manufactured in this country.

  O’Shaunasy is taking notes.

  Having delivered this final blow, Nelson rests the case for the state.

  O’Shaunasy inquires whether Cheetam is ready to proceed. He is.

  Cheetam is up and at it. He calls his ace expert.

  Dr. Bernard Blumberg is a medical hack known to every personal injury lawyer west of the Rockies. A psychiatrist by training, Blumberg, for a fee, will testify on every aspect of medical science from open-heart surgery to the removal of bunions. He is notorious for being available on a moment’s notice—the expert of choice when others have failed to shade their findings sufficiently to satisfy the lawyers and clients who hire them.

  It is what has happened here. Cheetam has exhausted the pool of local experts, men who in good conscience could not dispute the substance of George Cooper’s pathology report. Several have offered to put a favorable spin on some of the findings. But this was not good enough for Cheetam. Skarpellos has put him in touch with Blumberg.

  I spent two hours arguing in vain with Cheetam that it was a mistake of monumental proportions. He told me if I couldn’t handle it to stay home.

  Blumberg is an impish little man with wire-rimmed glasses and a booming voice. He fits the popular image of science, but with the feisty nature that has allowed him to weather the blows of a career of rigorous cross-examination. He has spent twenty years fighting a fundamental lack of credentials and qualifications.

  Today he is sharing his expertise on the subject of forensic pathology. He takes the stand, is sworn, and Cheetam moves in.

  “Doctor Blumberg, are you familiar with the phenomenon called lividity?”

  “I am.”

  “I call your attention to the medical examiner’s report. Have you read this report?”

  “I have.”

  “In particular have you examined page thirty-seven of that report—the so-called blood-spatter evidence found in the service elevator near Mr. Potter’s office?”

  Blumberg nods knowingly. He is particularly good at this. He has been known to make a complete ass of himself on me stand, and still nod knowingly—with great authority.

  “Have you read that part of the report, doctor?”

  “I have.”

  “And have you come to any conclusions regarding the findings stated there, specifically I refer to the conclusion that the drop of blood in question was that of the decedent, Benjamin Potter?”

  “I have. It is my professional opinion that the finding of the medical examiner as to this evidence is incorrect—it is in error,” he says.

  Cheetam looks to the bench for effect. O’Shaunasy is not taking notes.

  “And on what do you base this opinion?”

  “On the clotting patterns of blood.”

  “Yes, doctor.” Cheetam is moving in front of the witness box now, alternately bending low and pacing, using body English to draw the witness out, to get him to deliver the canned opinion that the two of them have hatched.

  I notice that Harry has begun to doodle on a legal pad as he sits next to me, a small round circle that he inscribes over and over with his pen, until it is burned into the page.

  “Please explain to the court, doctor.”

  “Blood clotting occurs as a result of a complex of chemical actions involving plasma, protein fibrinogen, platelets, and other factors. Clotting begins soon after death, causing a separation of the fibrin and the red blood cells from the remaining liquid, the serum,” he says. “Once clotting has occurred, blood will no longer flow freely from a wound.”

  “How soon after death would clotting occur so that the blood would no longer flow freely from the body?”

  “Fifteen minutes.”

  “That soon?”

  “Yes.”

  Harry’s doodle has now grown a thin straight line, two inches long, down toward the bottom of the page.

  “What is the significance of this factor in the present case, doctor?”

  “According to the pathology report the time of death was seven-oh-five P.M. Accepting the theory of the police that the decedent was killed elsewhere and that his body was moved to the office shortly before the reported gunshot in the office at eight-twenty-five, I must conclude that the blood in the victim would have already clotted and would not have flowed freely in order to drop in the elevator as stated in the report.”

  Cheetam is oblivious to the fact that his own expert is now accepting as gospel the time of death fixed by Coop. This is, in fact, wholly inconsistent with the defens
e that Ben shot himself, for under this theory, he died nearly an hour and a half before the sound of the shotgun blast in the office. Little details.

  “Thank you, doctor. Your witness.”

  Nelson cracks a slight grin and rises from behind the counsel table.

  “Doctor Blumberg, are you board certified as a pathologist?”

  Blumberg mumbles. Along with authoritative and knowing nods, he is recognized for his excellent mumbling, particularly on cross.

  “I couldn’t hear the witness.” The court reporter has chimed in. She is stalled at her stenograph machine by the witness, who has swallowed his answer.

  O’Shaunasy leans over the bench. “I didn’t catch it either.”

  “No.” Blumberg is looking at the court reporter through Coke-bottle lenses, a magnified evil eye.

  “Have you ever practiced in the field of forensic pathology?” Nelson is enjoying this.

  “I have testified in the field many times.”

  “I’m sure you have, doctor, but mat doesn’t answer my question. Have you ever practiced in the field of …”

  “No.”

  “I see. Tell us, doctor, are you board certified in any field?”

  “I am.” This is stated with some pride. The witness straightens in the chair and puffs his chest a little.

  “And would you tell the court what field that is.” Nelson’s found the soft underbelly.

  “Psychiatry. I am licensed as a medical doctor,” he says. His ticket as a physician has been the basis for Blumberg to put his nose under every scientific tent known to mankind.

  Harry’s doodle now has two lines coming off of the longer single line, drawn out and down at a forty-five-degree angle, to form a large inverted “Y.”

  “I see, so you’re a medical doctor, board certified as to specialty in the field of psychiatry, here to testify on the fine points of forensic pathology and specifically serology, the science of blood clotting?”

  To this Blumberg says nothing, but merely nods, this time not so much confident as nervous.

  “The court reporter can’t register a head bob, Doctor Blumberg. You’ll have to answer the question audibly.” The judge is on him.

  “Yes,” he says. His looks-could-kill expression is reserved for O’Shaunasy

  “Let me ask you, doctor. Have you ever published any scholarly articles on the subject of bloodstain evidence in criminalistics?”

  “No.” Blumberg is becoming imperious now, refusing to look Nelson in the eye.

  “Let’s take it out to the more general field. Have you ever published any scholarly articles in the field of forensic sciences?”

  “Not that I can recall.”

  “Not that you can recall? Well, doctor, I have a copy of your curriculum vitae here, and I’ve combed it pretty well and I can’t find a single article published by you in that field. Now I would assume that if you had published anything in the field of forensic sciences you would have included it in your resume, wouldn’t you?”

  Cheetam’s doing nothing to stop this pummeling. There is little he can do but rise and stipulate that his expert has no expertise.

  Harry’s doodle has now grown two arms, the little stick figure of a man.

  Blumberg is twitching nervously on the stand. A slight tic spasms intermittently through his right cheek, like the tremor of some larger imminent quake deep beneath the surface.

  “Well, you would have included it, wouldn’t you?”

  “Yes.”

  “So it’s safe to say that you haven’t published any articles, scholarly or otherwise, in the field of forensic sciences?”

  “Yes, yes. But as I have stated, I have testified on numerous occasions on the subject.”

  “Yes, I’m aware, doctor, of your regular appearances in court. In fact, doctor, isn’t it safe to say that you are what some would call a professional expert witness, that that’s what you do for a living?”

  “I testify regularly, if that’s what you mean.”

  “That’s not quite what I mean. I mean you no longer practice medicine, whether in psychiatry or any other field. When was the last time you saw a private patient for a fee, doctor?”

  “Your Honor, I object to this.” Cheetam’s on his feet. “If counsel wants a stipulation as to the limits of this witness’s expertise then perhaps we should have a sidebar or retire to chambers.” It’s a feeble attempt to dodge Nelson’s bullet.

  “Counsel, you put this witness on the stand.” Looking over her glasses at Cheetam, O’Shaunasy’s showing no mercy.

  “Well, can’t we move on at least? Counsel’s made his point. He’s just badgering the witness now.”

  “I think you’ve made your point, Mr. Nelson. Can you move along?”

  “Yes, Your Honor.”

  Nelson retreats to the counsel table and flips through several stacks of papers, finally finding what he wants. He looks up at Blumberg, who by now is starting to show fine drops of perspiration on his forehead.

  “Doctor, do you often testify in criminal cases?”

  “I have testified in them before.”

  “But is that your regular venue? Isn’t it true that you usually appear in civil cases?”

  Sensing a more friendly line of inquiry, a concession on the part of Nelson that perhaps the witness is a little out of his field, Blumberg concedes the point with a smile and a warm nod. He’s patting his forehead with a handkerchief now, sensing that the worst may be over.

  I look over and there is now a small line about where the knees would be on Harry’s stick figure, and another, heavier line, like a broad beam going up the page, a little taller than the figure, and then again a heavy line over its head.

  “Doctor, do you recall testifying in the case of Panicker v. Smith, a case involving wrongful death, the hit-and-run of a little boy, two years ago?”

  “I don’t … I don’t know. I can’t remember every case I’ve ever testified in.”

  “I can imagine.” There is more than a little sarcasm in Nelson’s voice.

  “I have a transcript here, doctor. A transcript of your testimony in that case I’d like to show it to you and ask whether that transcript might refresh your recollection.”

  Blumberg is moving around now in his chair like a man forced to sit in his own stool.

  O’Shaunasy has picked up her pencil.

  Nelson shows the document to him. Blumberg won’t touch it, like it’s some corrosive acid. Nelson has to prop it on the railing of the witness box as the witness lowers his head and aims his spectacles to examine the cover page.

  “I see I’m listed there as a witness,” he says. “That means I must have testified.”

  “It would appear so, doctor. Do you recall the case now?”

  “Faintly,” he says.

  “Right. In part, the issue in that case involved the time of death, when the little boy died. You appeared for the defense, the insurance company representing the alleged driver. Does that help you at all?”

  Cheetam’s on his feet. “Objection, Your Honor, we haven’t had an opportunity to see this transcript.”

  Nelson retreats to the counsel table and pulls another copy from the pile of papers and drops it unceremoniously on the table in front of Cheetam, who begins to scour it for significance.

  “During your testimony you were questioned as to the clotting properties of blood. Do you recall that testimony, doctor?”

  There’s a shrug of the shoulders. “Not precisely.”

  The drops of perspiration have now turned into a river, flowing south around the eyes, along the sideburns, and down Blumberg’s collar.

  “In that case the driver claimed mat he was home with his wife at the time that the little boy was killed. You were asked about the time of death and you based your opinion on lividity, the fact that blood had clotted in the body, and the length of time it took for such clotting. Now do you recall your testimony, doctor?”

  “No, I’m sorry, I don’t.”

&nbs
p; “Well, let me help you, doctor.” Nelson opens the transcript to a page marked by a large paper clip. “And I quote:

  “ ‘COUNSEL: Doctor Blumberg, how long would it take for blood to clot in the capillaries of the body following death?

  “ ‘DR. BLUMBERG: An hour to an hour and a half.’

  “Do you remember now, doctor?”

  There is only strained silence from the witness box.

  “And yet today you sit here and you tell us that in the present case, it would not be possible for the victim to have bled in the elevator because blood clots in the body within fifteen minutes after death. Which is it, doctor–an hour and a half or fifteen minutes? Or does it depend on which side is paying you?”

  “Objection, Your Honor” Cheetam is on his feet, wailing in protest.

  “Withdraw the last question, Your Honor. I move to have the transcript in Panicker v. Smith marked for identification, Your Honor.”

  “Any objection, Mr. Cheetam?”

  Cheetam drops into his seat, silent at the table, and shakes his head. “Expert—shit.” It is whispered under his breath to no one in particular.

  “What was that, counsel?”

  “No objection, Your Honor”

  I look over. Harry’s doodle is now complete, the noose about its neck, the body hanging through the trap door under the gallows—the hanging man. I notice that Talia has seen it. She is now looking at me, forlorn.

  It is the problem with expert opinion, especially when stated by those with the intellectual flexibility of a Blumberg. Their babble is so voluminous they forget what it is they have said. One would believe that the forces of nature at play in each trial are somehow subject to differing, more supple rules than those that govern the affairs of mere mortals.

  Tony is seeing me alone today. There is no beaming smile, no beefy grin. Today he is all business, sitting at the stone desk next to the hollow elephant’s foot overflowing with papers, the refuse of a day’s labor.

  “I hear things are not going well with Talia,” he says.

  “An understatement,” I tell him.

  Skarpellos has been noticeably absent from the preliminary hearing. But then his only real concern in Talia’s plight is commercial, acquiring Ben’s interest in the firm as painlessly as possible.