by David Ellis
“You told me back at your house that you have a pretty good idea who killed Alexa,” Cromartie says. “Can you help me out with that? Who killed her, Jason?”
I don’t answer at first. Several seconds pass. I shake my head and wave a hand. “His name is Jim.”
“Last name?” Cromartie asks.
“Just Jim,” I say.
“Well . . . what can you tell me about Jim?”
The way Cromartie says Jim, it’s like he’s dealing with a little kid who is obviously lying.
“He . . . he has red hair,” I say. “He’s big, muscular. He wears glasses. He has a paunch, like, a gut.”
“Why do you think Jim would kill Alexa?”
“To get to me,” I say. “To get to me.”
“Why would Jim want to get to you, Jason?”
“I’m . . . I’m not sure. I just know that he’s angry with me. I’m still trying to figure out why.”
“Did this . . . Jim tell you that he was going to hurt Alexa? Or you?”
I shake my head. “Not in so many words. I wish he had. If he had, maybe I could have done something.”
“I don’t understand what that means,” Cromartie says.
It wasn’t a question, so I didn’t answer it. A nice motto of mine, stolen from my mentor, and a nice tool for dominating a conversation. But probably not so nice when your audience is a jury trying to decide if you’re a cold-blooded murderer.
After a lengthy delay, Cromartie opens his hand, visible to the camera. “That’s it? A guy whose last name you don’t know, who might want to hurt you, but you don’t know why?”
“I wish I knew more,” I say. “I’d love to tell you more, but I haven’t figured it out yet.”
Roger Ogren stops the tape. “Detective Cromartie,” he says, “since this interview with the defendant on the early morning of July thirty-first, has the defendant come back to tell you who ‘Jim’ is?”
“No, sir, he hasn’t.”
“Since this interview, which took place over four months ago, has the defendant come back to tell you why this ‘Jim’ person wanted to hurt him?”
“No, sir.”
“During these four-plus months, has the defendant told you anything at all about this supposed murderer named . . . ‘Jim’?”
“He hasn’t. Not a peep.”
Roger Ogren looks over his notes at the lectern one last time. Shauna takes a deep breath.
I lean into Shauna’s personal space. “You ready for him?”
“Is he ready for me?” she whispers back. False bravado, or I haven’t known this woman half my life.
“Thank you, Detective,” says Ogren. “No more questions for this witness.”
40.
Shauna
Judge Bialek calls a recess before I cross-examine Ray Cromartie. I have my notes in front of me, drawing some arrows to move around some questions, but it’s dangerous to get too wedded to notes. Once you write them down in detail, you tend to stay with them and stop listening to the witness. It becomes less of a fight and more of a conversation. You just have to let go and trust your preparation. You have to take off the training wheels and pedal that big bike down a dark, scary trail.
Jason is taking a bathroom break with an armed escort, so it’s just Bradley John and me in the conference room adjacent to the courtroom. I don’t like to stray too far during breaks. Elevators can break down, restaurants can take too long to bring the food. I can handle the stress of a trial, I’m used to it, but I could live my whole life and never get used to the stress of being late. So Jason’s brother, Pete, who is in town for the trial, has brought us sandwiches from a deli.
I pick at a turkey and Swiss on wheat while I meditate. After a moment I push my notes away and breathe out. “I can’t look at this anymore. I just need to do it.”
Bradley is chewing on a pickle and staring at a transcript from the interrogation. “I don’t know why Jason ever agreed to that interview,” he says. “He knows better than anybody not to do that.”
“Sometimes you can’t take your own advice,” I offer.
“Yeah, but—I mean, it’s one thing if you try to talk your way out of things. The perps I used to interrogate would do that all the time. They’d be full of stories. ‘Here’s what happened, see, it went like this, see,’ and I’d let them just drone on and on and tangle themselves in knots. But Jason didn’t argue a case for himself. He basically just let Cromartie beat him up.”
I scrap the sandwich and go for the good stuff, the salt-and-vinegar potato chips. “You’re forgetting that Jason was still under the spell of OxyContin,” I say. “You saw him scratching his arms in there and smacking his lips. Classic withdrawal symptoms.”
“I know, I know. But all he had to do was take Five. Just assert his right to remain silent and shut the whole thing down. That’s what I told him to do. I told him, before we went in—”
“I know you did, Bradley. I know you did.” I pat his arm. This interrogation has bothered Bradley as much as anything in this case, because it was the one thing that happened on his watch. He gave Jason sound counsel—to not make a statement—but he was overruled. Surprise! Jason didn’t listen to advice. Truly, he wouldn’t listen on his best day, and on top of everything else, there was the painkiller problem. It’s hard to know Jason’s frame of mind in that police station. I wish I knew. I wish I knew whether Jason knew what he was doing or screwed this whole thing up by talking to Cromartie.
“He looks guilty,” Bradley says. “On that tape, he looks guilty.”
“I know he does.” Jason knows it, too.
I crinkle up the empty bag of chips and toss it toward the trash can. The bag unfolds midair and glides to the carpet, wide right. Golf was always my game.
“And the house key?” Bradley says. “I mean, if Jason didn’t say a word to the cops, they’d still be trying to piece together the sequence of events. But Jason told them he came home and found her there dead, and now we’re stuck explaining how she got into a locked house without a damn house key and no sign of forced entry. I mean, am I missing something? Do we have an answer for that stupid house key?”
“I don’t know of any answer,” I concede, feeling sweat dripping down my armpits.
“No. So that’s all I mean. Jason did himself no favors.” He shakes his head. “It was my job to stop him and I didn’t, Shauna.”
“Let’s not relitigate the past,” I say. Bradley has beaten himself up over this countless times. I thought I was done listening to it. It’s the trial, I guess, the public unveiling of the interrogation for the jury, that has brought down a fresh rainfall of remorse on our associate.
“We have our case and we’re going to make it,” I say. “It may not be the greatest, but it’s all we have, and we have to believe it with every fiber of our beings.”
“Right. That’s right.” Bradley gives a presumptive nod and snaps back into trial mode. “You’re right. Jason didn’t kill Alexa, right?” He gives me a playful push. For some reason, he likes to push me.
I busy myself with my notes, fitting them together sequentially and lining up the edges like a schoolgirl would.
“They can’t prove that he did,” I say, more to the point.
41.
Jason
“Good afternoon, Detective Cromartie. I’m Shauna Tasker. I represent Jason Kolarich.”
“Counsel.” Cromartie coughs into his fist and eyeballs Shauna.
“Detective, you are familiar with the concept of gunshot residue, or GSR?”
“I am,” he says. “But it doesn’t—”
“It was a simple question, Detective. Are you or aren’t you?”
Cromartie frowns. He also pauses, wondering if either Roger Ogren or Judge Bialek will rise to his defense. But they won’t. Judge Bialek usually likes to give witnesses a little freedom to elaborate on answers—especially because if they have something meaningful to say, they’ll end up saying it, anyway, when the other side gets to ask ques
tions—but Cromartie was going too far with a simple question.
“I am familiar with it,” he says, tucking in his lips, his attention enhanced now. He’ll be more careful next time, a little more reticent to stray too far. Good for Shauna. Cromartie is probably an old-schooler; how he was going to react to questioning by a woman was anyone’s guess. We’re not guessing now.
“Gunshot residue, or GSR, is residue of the combustion components of a firearm after it discharges a bullet, correct?”
“Correct.”
“Basically, when a gun fires, the primer and powder combust and create an explosion.”
“That’s right.”
“And GSR is the residue from that combustion. Residue, dust, particles might be found on the arm or wrist or hand of an individual after they’ve fired a gun. Is that correct?”
“Emphasis on the word might,” Cromartie says. “It might leave residue. It might not.”
“Well, the reason you perform a GSR test is to determine whether an individual has fired a gun recently, correct? That’s why you do the test?”
“Yes, it’s a crude test, but that’s the idea.”
Shauna properly ignores that remark. “On the night of Ms. Himmel’s death, you had Jason’s hands swabbed for GSR at his house, isn’t that true?”
“Yes, I believe we swabbed his hands at some point after we arrived. What Mr. Kolarich did before we arrived is un—”
“You answered my question, Detective. And the results of the GSR test you performed on Jason were negative, correct? No gunshot residue was detected.”
Cromartie, realizing he’s again getting no help from Roger Ogren, stops fighting. “That’s correct.”
“Very good.” Shauna, who hasn’t looked down at her notes once, now reviews them, flips a page. More for a segue than anything else. I’m going to revise my assessment of Cromartie as a witness. He’s fighting unnecessarily with Shauna. All the counterpoints he wanted to make—the GSR test isn’t perfect; I might have washed up, even taken a shower before calling the police to remove any residue from my hands—he will make in redirect with Roger Ogren. To fight with Shauna here has diminished him and highlighted the strength of our position. I would expect more from a veteran cop, and more from Ogren, who probably figured he didn’t need to tell Cromartie these basics, Testifying 101.
“We heard excerpts of your interrogation of my client following the death of Ms. Himmel, didn’t we?”
“We did.”
“This interview took place at four in the morning, correct?”
“Yes.”
“My client hadn’t had any sleep prior to the questioning, correct?”
“Any sleep? No, neither of us had slept.”
“And he was dealing with the loss of a woman with whom he’d shared a romantic history, isn’t that true?”
I like how Shauna phrased that. When she was mock-crossing Cromartie in our office, with me playing Cromartie, I kept nailing her when she said the loss of his girlfriend. Saying it the way she did now—a woman with whom he’d shared a romantic history—sounded innocuous enough but was meaningfully different.
“Dealing with the loss? If killing someone means you’re dealing with the loss, then yeah, I guess he was, y’know, dealing with the loss. It’s kind of like killing your parents and then asking for mercy from the judge because you’re an orphan.”
That line gets some snickers from the gallery, one person laughing outright. The answer jars Shauna to attention. She could object and move to strike the statement, but she doesn’t.
“You don’t know my client killed Alexa Himmel, do you, Detective?”
“It’s what I believe.”
“But you don’t know that for a fact, do you?” She approaches the witness.
“For a fact? I know the evidence strongly—”
“It’s up to these good men and women of the jury to make that decision, isn’t it, Detective?”
He gives an exaggerated sweep of his head. “Of course it is.”
“You don’t get to play accuser and juror, do you, Detective?”
He raises a hand, almost smiling. “Luckily, I do not.”
“The evidence will decide this case, not you. Is that okay with you, Detective?”
“Objection,” Roger Ogren says. “Argumentative.”
“Sustained.” The judge looks over her glasses at Shauna. “We get the point, Ms. Tasker. Let’s move on.”
Shauna, thankfully, doesn’t miss a beat. “My client was sleep-deprived, and a woman with whom he’d been romantically involved for several months had just been found dead in his house. Isn’t that all true, Detective?”
Cromartie starts to answer but pauses, his eyes on the ceiling. “I don’t know about sleep-deprived. It was late, yes. All of us were probably tired.”
“And on top of that,” says Shauna, “my client was under the cloud of a painkiller addiction at the time of the interview, wasn’t he?”
“Oh, objection.” Roger Ogren springs to his feet. “Sidebar, Judge?”
The judge waves him forward. She steps off the bench over to the corner of the courtroom, away from the jury box. The court reporter picks up her stenography machine and joins the attorneys and judge.
I can’t hear them any more than the jury can, but I have a pretty good idea how this conversation is going to go. Shauna and I argued the point, with me playing Roger Ogren, several times over the past week.
Shauna is going to argue that the prosecution plans to use my OxyContin addiction against me, and thus my addiction is fair game. Roger is going to say that there’s no actual proof of my addiction, certainly not at the time of the interrogation, unless I take the stand and testify to it. And Shauna will reply that I received treatment while in custody for my addiction, and she will call the counselors to the stand if necessary to lay the foundation, but she can’t believe Ogren will make her go to that trouble.
I think we’ll win the point, but just to be sure, we had Shauna ask the question first, so the jury would hear it either way.
Shauna makes eye contact with me as she leaves the conference, betraying no emotion but telling me it worked out for us. “Let me restate the question,” she says, reclaiming her spot in the center of the courtroom. “Detective, isn’t it true that at the time my client was speaking with you, he was under the influence of an addiction to a painkiller called OxyContin?”
Cromartie, of course, has had a long time to consider his answer. “I asked the defendant at the beginning of the interview if he was under the influence of any drugs at that time and if he was able to speak with a clear mind, and he said he was able to speak with a clear mind.”
A standard pre-interrogation question, to prevent exactly the type of cross-examination that Shauna is conducting now.
“You didn’t answer my question, Detective.”
“I think I did, Counselor.”
“Then let me ask it again, and the judge can decide. Detective, isn’t it true that at the time my client was speaking with you, he was under the cloud of an addiction to a painkiller called OxyContin?”
That’s three times she’s gotten to say it. And Ogren doesn’t object, because she’s not asking whether I admitted to being addicted at the interrogation—I didn’t—but whether it was true, regardless.
“I don’t know if he was or he wasn’t,” Cromartie says. “I asked him and he said no. That’s all I knew at the time.”
“I’m talking about what you know now, Detective. Are you telling this jury that, as you sit here today, you don’t believe that my client was suffering from an OxyContin addiction at the time you questioned my client? Is that really your testimony?”
“I didn’t say that. We’ve come to believe that the defendant did have that addiction, yes. It’s nice to hear you admit it. I didn’t realize you would.”
Nice jab. The addiction is the third rail in this trial. It plays a significant role in the prosecution’s narrative, a major piece of Roger Ogren’s sto
ry that ends with my killing Alexa. Given our choice, Shauna and I would have liked to deny the whole thing. But the problem is that I’ve been treated in jail for the problem, so I can’t really deny it. So instead, we’re embracing it, trying to make the most of it. Shauna will argue to the jury that I was impaired when I submitted to the interview with the police. It can explain some of the—ahem—ambiguities in my statements.
But it cuts the other way, too. It gives the jury a vision of me that is not flattering—out of control, desperate, irrational, quite possibly dangerous, capable of doing things that, ordinarily, would be beyond a well-heeled attorney. Picture those old meth commercials—This wasn’t supposed to be your life!—or the old egg-frying-in-a-pan, This is your brain on drugs ads.
Addiction freaks people out. It scares them.
And it makes it far, far more plausible to the jury that I killed Alexa Himmel.
FIVE MONTHS BEFORE TRIAL
July
42.
Jason
Monday, July 1
My town house has shrunk in on me over the last thirty-six hours, since I paid the visit to James Drinker and found out I was chasing a ghost. I’ve kept Alexa away, ignored phone calls from Joel Lightner, secluded myself in my house to think.
Who is this guy? Who is this man who waltzed into my office in disguise, giving an alias, and telling me about dead women?
I think through every permutation and always come back to the same thing: I have history with this man. I prosecuted him. I prosecuted someone he cares about. Or I defended him, or someone he loves, with a result he didn’t like, and now he wants to blame the lawyer.
I’ve tried to create a list of every case where I appeared as counsel, but it’s impossible to get it anywhere close to complete. When you’re a prosecutor in a major system like ours, you start with small stuff, traffic and misdemeanor and drug courts. Then you do a stint in juvenile courts, where the records are sealed. Then you’re third-chairing bigger cases, and then after several years, you start handling your own major crimes.