by Webb Hubbell
Sam was getting tired of McSherry beefing up Woody’s status, so he objected, saying that all this was nice, but getting away from the matter at hand.
Marshall agreed, to a point. “I’m inclined to give counsel a little latitude given the fact he’s not questioned any other defendant.”
A light rap on the knuckles. It was time to move to the day in question. I moved closer to the witness stand and asked, in a conversational tone, “Trooper, why were you there the day Senator Robinson died?”
The trooper explained that since he had been a part of Russell’s detail when he was governor, he had been assigned to guard him whenever he was back in the state.
“No, I understand that you were protecting the senator. I’m asking why you were there. Why was he there? What was going on?”
A rumble came from the gallery.
McSherry looked puzzled and struggled for an answer. “I think he was about to hold a press conference to announce something about the Townsend Arts Center.”
Woody looked up.
“Do you know what he was going to announce?”
McSherry looked blank and didn’t answer.
Sam shot to his feet. “Your Honor, counsel is asking this witness for hearsay that’s irrelevant to boot.”
Before Marshall could admonish me, I said, “I just find it interesting that we have all this hoopla going on and this big press conference, and I can’t find a soul who knows what it was about. Not the Arts Center, not the senator’s office, not a press release—no one can tell me what Senator Robinson was going to announce. It’s a mystery.”
Marshall banged his gavel throughout my short discourse. “Enough speeches, counsel.”
McSherry shrugged at me. “Can’t help you there, I guess.”
“All right. Let’s move on. Trooper, you were the person standing closest to the senator and my client. Can you tell me what they were arguing about?”
McSherry was better prepared for this question. “No, sir. I could tell they were having a disagreement, but I didn’t hear what they were saying.”
“So nothing you heard or saw alarmed you at first.”
He responded no, and stated again that he had seen them argue before, and that it wasn’t until the gun came out of Woody’s pocket that he became alarmed. He also said that when he and Woody were wrestling with the gun, Woody kept saying, “Give it to me” and “I need it.” The fact that Woody struggled for the gun cut both ways. If you believed that Woody wanted to kill more people, it worked against him. If you believed that Woody wanted to kill himself after accidentally shooting Russell, it worked in Woody’s favor.
Walking back to the defense table, I realized there was another question I hadn’t asked because I didn’t know the answer. I decided to violate the cardinal rule again.
“Trooper, when Senator Robinson was governor, was he guarded at all times?”
McSherry sat up a little straighter and said with pride, “Yes, sir. We protect any sitting governor wherever he is, twenty-four-seven.”
I asked a series of questions: Was he guarded when he was out of town? Asleep? On vacation?
Then I came to the key question: “Was there anywhere Governor Robinson went where he just wanted to be alone, with no protection?”
McSherry paused for a moment. “Well … oh—you mean his duck club?”
I asked him enough questions to establish the basics of “his duck club” and then asked, “Did you provide security when he was at the duck club?”
“Technically, yes. We drove him there and were always on call, but he didn’t want anyone but his guests on his property. When he was through hunting, we’d come pick him up, but it was his personal retreat. He said he had plenty of guns at the club, and he and his friends could protect themselves. He let us patrol the perimeter to look for poachers, but he was on his own inside the property line. He was very insistent.”
“Did he go there often?”
“Almost every day he could during duck season, and on occasion he’d go for a long weekend.”
“Your Honor,” Sam cut in, “we’re straying quite a bit now.”
Marshall was about to agree, but I said, “I’m through with this line of questioning.”
It was a little after four o’clock, but I couldn’t stop yet. If I stopped now and Sam decided to rest his case, I’d risk losing before we’d gotten started. Marshall wasn’t the type to let court recess early for my convenience. I looked at Maggie and Micki, who both understood my dilemma. I needed to buy some time. What the hell. Everyone watching thought I was a sleazy lawyer who’d do anything to get his client off—I might as well prove them right.
I turned back to McSherry. Picking up the gun marked Exhibit 13, I asked, “Trooper, you say this is the gun you wrestled away from my client. It holds six bullets?”
He agreed.
“And, after you wrestled the gun from my client, it only had five bullets in it?”
He acknowledged that I was right again.
“Trooper, where’s the sixth bullet?”
McSherry didn’t answer immediately. Sam stood, but also said nothing.
“Perhaps you didn’t understand my question. Was the gun fired?”
“Yes, sir, it was.”
“Then where is the bullet?”
Looking at Sam, the trooper frowned and spoke haltingly. “Um … in the senator’s head, I guess.”
“You guess, but you don’t know, do you?” Before he could answer, I started firing questions. “Did you find a slug anywhere? Did you do a ballistics test on the gun? Why don’t you have the bullet?”
McSherry was literally speechless. I wanted to take him apart, but my instinct told me to back off. Last night, I had noticed that the bullet wasn’t on the exhibit list. Nor had Sam produced a ballistics test or a report from the medical examiner on the cause of death. These reports are routine in any murder case. I figured that, in their hurry, Sam’s deputies had accidentally left the coroner or medical examiner off the witness list and forgotten about the bullet and lab work. Now, Sam would have to admit the mistake and produce them tomorrow, but I would gain the precious time I needed.
Oddly, Sam remained silent. With no other plan in mind, I decided to continue, rethinking my approach slightly.
“Trooper, I apologize. I know it wasn’t your responsibility to secure the crime scene or to search for clues or bullets. You performed a heroic act, and I’m sure you were in shock. But the truth is—you don’t know where the bullet is, do you?”
He shook his head no.
“I’m sorry—is that a no?”
“Yes, sir. That is … no, I don’t.”
“And the truth is, you don’t know whether a bullet exited the senator’s head, whether the bullet is still lodged there, or whether a medical examiner removed it. Is that right?”
He agreed again. “I didn’t find a bullet. I didn’t run any tests, but I did take the gun away from the defendant. It had been recently fired, the barrel was warm to the touch, and only five bullets were left in the chamber when I examined it.”
“You’re not a doctor, correct?”
“No, sir, I’m not.”
“You’re not a medical examiner?”
“True.”
“You didn’t examine the senator’s head?”
He gave me an uneasy grin. “God, no.”
I had what I wanted, but I’d pay for it. “Pass the witness.”
Sam looked thoughtful and said he had a few questions.
“Trooper, you saw the defendant put the gun identified as Exhibit 13 up to Senator Robinson’s head and pull the trigger, didn’t you?”
Surprisingly, the trooper didn’t agree. “Well, to the head, yes, but I didn’t actually see him pull the trigger.”
“But the gun went off, and he died almost immediately, right?”
I could have objected for leading but didn’t.
McSherry said, “Yes, sir, the senator was definitely dead.” He sighed with
relief, as if to say, ‘I finally got it right.’
“Any more questions, gentlemen?” Marshall asked in a frosty tone.
Looking worried, Sam asked if counsel could approach the bench. Marshall put his hand over the microphone so our conversation couldn’t be overheard.
“Your Honor, we believe we’ve established probable cause right now, but Jack’s questioning leads me to believe that he might argue we haven’t proved that the bullet from the gun was the cause of death. To go forward with such proof will take additional time and is, frankly, absurd.”
Having bought the day I needed, I said helpfully that I had no problem waiting a day for the medical examiner’s testimony.
Sam didn’t look happy. “A day is not the issue.”
Marshall realized there was something going on that required more than a bench conference. He dismissed the witness and brusquely ordered us back to his chambers.
Marshall had barely closed the door when he snapped, “Okay, Sam. What’s the problem?”
Looking at his deputies, Sam took a deep breath. “Your Honor, as you know, I opened my mouth yesterday and announced I was ready to have the preliminary hearing today. I believe we have produced sufficient evidence to establish probable cause to bind Mr. Cole over for trial on all charges. But from Jack’s questioning of Trooper McSherry, it’s clear the defense is unwilling to stipulate to the obvious fact that Exhibit 13 is the murder weapon or even the cause of death. Normally, I’d enter into evidence the bullet and a ballistics test, and put a medical examiner on the stand to testify that the bullet from Mr. Cole’s gun caused his death. However, last night, I learned that the bullet hasn’t been found in the rotunda, assuming it exited the senator’s head. Unfortunately, we don’t have a report from the medical examiner. It turns out that an autopsy was not performed on Senator Robinson.”
“I’ll be damned,” I whispered under my breath.
Marshall dropped his pen and rumbled. “You can’t be serious.”
I noticed Micki literally sitting on her hands, her right leg jiggling up and down. Sam’s deputies were doing their best to be invisible.
After what must have seemed an eternity to Sam, Marshall said, “Well, what do you propose?”
“I’m reluctant to close my case at this point, unless the court advises, prior to my resting, that I’ve met the burden of proof.”
Marshall remained silent.
“If, for purposes of this preliminary hearing only, Jack would stipulate that the bullet fired from Exhibit 13 killed the senator, we could avoid the third alternative.”
“The third alternative?” Marshall asked.
Sam looked apologetic. “I continue to put on eyewitness accounts of what happened that day, while I ask this court to give me an order to exhume the body of the senator. I’ll have to notify the family and give them an opportunity to be heard. I’m sure nobody wants to be the one to tell Lucy Robinson we need to dig her husband up. Investigators and crime scene specialists are still scouring the rotunda for the bullet as we speak. We’re searching the funeral home that handled the body and have requested their records, but unless something has been found in the last hour or so, I’m out of options. I can’t afford to rest my case without the benefit of the court’s ruling or Jack’s stipulation, because I don’t want an appellate court to find that a dismissal is appropriate and double jeopardy applies. But I’d really like to avoid an exhumation.”
Marshall kept his judicial demeanor. “Before I comment on your suggestions, I’d like to have as much information as possible. Normally, you wouldn’t have to tell me or defense counsel what happened, but it might help me to decide what to do next. It also might help the defense as well.”
Sam cleared his throat. “From what I can understand, there was a mad scramble for the exits after the shooting. The crime scene was badly compromised, but the investigative team arrived and did their best to preserve the evidence. No bullet was found, and the investigators figured that the bullet was lodged in the senator’s brain. Hundreds of photographs were taken, and the senator’s body was taken to the hospital where he was officially pronounced dead. His body was then sent to the morgue for an autopsy. That evening, after most everyone had gone home for the day, Lucy showed up with her lawyer. She demanded that her husband be released to the funeral home, and whoever was on duty was so intimidated he allowed the release of the body. The next day, when the pathologist couldn’t find the body, he assumed the police or some higher-up had intervened. We all know that Russell was buried Monday, and on Tuesday evening, I was told we didn’t have a report from the medical examiner, a ballistics report, or the bullet.”
I could easily imagine Lucy intimidating someone on the graveyard shift of the morgue. Why had she been in such a hurry?
Marshall sent the clerk out to tell the gallery that court was adjourned for the day. Maggie offered to go out as well and tell our crew not to wait. I asked that Woody remain in the holding area so I could consult with him later. I knew Helen would be upset, but I trusted Beth and Jeff to take care of her.
Marshall waited patiently. The silence was uncomfortable, to say the least. He took off his robe and loosened his tie, but he sure didn’t look relaxed.
I whispered to Micki, “I’ll do the talking.” I knew what she wanted me to say, but I wanted to hear what Marshall had to say first.
When everyone was back and seated, Marshall said, “Sam, I appreciate your candor and your willingness to accept responsibility for the mess we’re in. I have no doubt that whoever is responsible appreciates your taking the blame as well.” He glared at Sam’s deputy who had blustered earlier about Micki’s use of the word “allegedly.”
“I wish this matter had been brought to my attention this morning when I asked if there were any problems, but as my grandmother used to say, ‘If wishes were fishes, we’d all be kings.’”
I smiled to myself—more grandmother wisdom.
“I’m reluctant to advise either side where the evidence stands right now relative to probable cause. The appellate court in this state frowns upon an advisory opinion, and until we hear from any witnesses the defense may call, such a request is premature. No matter how much I’d like to ease your office’s conscience, I’ll not give you any indication, one way or the other, as to whether you’ve met your burden.”
Fortunately for Sam, Marshall wasn’t through. “Jack and Micki, I also can’t tell you what to do. You’re not responsible for what happened or for the prosecutor’s mistakes; nor do you have any obligation to make his life easier. You can tell me right now that you won’t stipulate, and I suspect Sam will make a motion for a continuance. I’ll hear that motion sometime in the distant future as my calendar permits.” Marshall looked at me pointedly. He was telling me that Sam would have all the time he needed to dig up the body and do the autopsy before he ruled.
“The other thing I’d like both of you to consider is this: No matter how private these discussions are, at some point, the fact that an autopsy doesn’t exist, and that the senator’s body must be dug up, is going to get out. I can’t sign an exhumation order without a hearing or without giving the family an opportunity to be heard. If you think this hearing is a media circus, can you imagine what an exhumation will be like? It’s your turn, Jack.”
I knew what Micki would say. She’d say dig up the body; maybe they’d screw up the autopsy as well. It was the right position to take in most cases. But this wasn’t most cases, and I had to trust my instinct.
“I want to be sure what the prosecution is suggesting. Woody would stipulate that a bullet from Exhibit 13 entered the senator and caused his death. The stipulation would be for the purposes of the preliminary hearing only. At any other proceeding, including a trial, this stipulation would not bind the defendant, and the prosecution would have to meet its burden of proving the cause of death, even if it means an eventual exhumation. That’s it—nothing else.”
Sam said, “That is correct.”
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�We’ll have to work out specific language, but I’m willing to take the basics to my client.” I could see that Sam didn’t like leaving it up to Woody. I shrugged. “I don’t think anyone here wants to go through all this again. If I were to stipulate to something as critical as the cause of death, even for a preliminary hearing, without consulting my client, even Les Butterman could get the verdict or plea deal overturned. Besides, you know Woody Cole. He might surprise you.”
Micki wasn’t happy—she wanted to tell the prosecution to stick it.
Sam wasn’t happy—he’d have to wait until tomorrow to know whether he’d need to exhume the body or not.
Marshall wasn’t happy—he didn’t like uncertainty.
But they all knew I was right: I had to consult my client.
“I’ll see Woody as soon as we’re through here. I’ll try to give you his response tonight. If he wants to sleep on it, we’ll meet with him in the morning. Either way, you’ll know as soon as the decision is made. One more thing …” I looked at Sam. “I take it that if we agree to stipulate, you’ll rest your case in the morning. Your Honor, I don’t know if this needs to be in the form of a written motion. If it does, we’ll file it first thing in the morning under seal. Either way, as soon as the prosecution rests, I’d like to make a proffer of proof in the court’s chambers, away from the eyes and ears of the media.”
Sam’s annoying deputy muttered, “What the hell?”
Both Sam and Marshall gave him a look that would have shamed a better man.
Marshall asked, “What do you mean by proffer? Do you mean an oral presentation of what you intend to prove? If so, why not just put on the proof?”
I took a deep breath, knowing I’d reached the Rubicon. Once I crossed it, there was no going back. “On occasion, the US government has evidence that it believes should be sealed for national-security reasons. I’m not saying national security is involved here, but I do believe I have certain evidence that casts light on my client’s actions—evidence the court and even the prosecutor may want to consider not making public, at least at this time. I propose to make a proffer so the court and the prosecution can give it full consideration before I present it in open court.”