Play Dead

by David Rosenfelt

SIX DAYS TO get ready for a hearing is not a lot of time, but in this case it’s manageable. It’s not as if we were preparing for an entire trial, and we don’t have to anticipate and refute what the prosecution is going to say. We simply have to make our own points and demonstrate why, if those points had been available to be made in the first trial, Richard might well have been acquitted.

  But there’s still a lot to do, and Kevin and I have been in intense preparation for the past three days. Most of that time we’ve been at my house, which I’ve selfishly insisted on because that’s where Laurie is. Kevin has no objections, because it’s comfortable and because Laurie is cooking our meals. In fact, she has been helpful in every way, even sitting in on our strategy sessions and making suggestions.

  Neither Cindy Spodek nor Keith Franklin has called, but I haven’t really had time to worry about it. The hearing is more important than anything either of them could have to say; if it doesn’t go well, then everything else is meaningless.

  Half our time has been spent on witness preparation. Dr. King has come in, and we’ve gone over exactly what it is he will testify to. He is an experienced, knowledgeable witness, and I have no doubt that he will be very persuasive.

  Our other main witness is more of a challenge, and a good deal of that challenge will be to get his testimony admitted at all. We are going to call Reggie to the stand, and let him testify to the fact that he is really Richard’s dog, and thus survived that night on the boat. The prosecutor will fight like crazy to limit the testimony to human witnesses, and that will be a major battle that we must be ready for.

  Today is a Friday that has felt nothing like a Friday. That’s because there is no weekend coming up; tomorrow and Sunday are going to be full workdays.

  Kevin leaves at seven o’clock, with a promise to be back at nine tomorrow morning. Laurie and I are going out to dinner, and we’re almost out the door when the phone rings.

  Laurie answers and, after listening for a few moments, hands me the phone.

  “Hello?” I say, since I’m never at a loss for snappy ways to begin conversations.

  The voice is Cindy Spodek’s. “Andy, I don’t have much information, but what I’ve got is not good.”

  “Let’s hear it.”

  “Well, I went to our expert on electronic surveillance, and he told me that the tap is either CIA or DIA.”

  “What is DIA?”

  “Defense Intelligence Agency. It’s run out of the Pentagon. But about six hours later the guy comes back to me and says he was wrong, that it’s just a run-of-the-mill tap, could be used by anybody.”

  “You don’t believe him?” I ask.

  “No, I don’t. That device wasn’t like any I had ever seen. And he hadn’t taken it; I still had it. I just don’t believe he did any research that changed his mind. I think he was instructed by someone to change his mind.”

  “Okay… thanks.”

  “I’m not finished,” she says. “I asked around about the Evans case. I wasn’t aware of any Bureau involvement, and the two people above me that I asked didn’t seem to know anything about it.”

  “You didn’t believe them, either?”

  “Actually, I did. But later in the day one of them called me into his office and grilled me on why I was asking. I told him that you were a friend, and I was curious. He told me that it wasn’t a door I should be opening, that I should not be involved in any way.”

  This is stunning news; it seems that the entire United States government is conspiring to keep Richard Evans in jail. “This doesn’t fit with the facts of the case as presented at trial,” I say. “It was supposed to look like a very personal crime—a distraught man kills his fiancée and himself.”

  “I don’t know where or how deep this goes, Andy. But I do know it hits a nerve. The mother lode of nerves.”

  “Thanks, Cindy. I’m sorry I involved you in this.”

  “No problem. Just be careful, Andy. You may be dealing with people even more powerful than Marcus.”

  “Now, that is a scary thought.”

  We hang up and drive to dinner, though for a moment I’m nervous about starting my car. Laurie and I generally try not to discuss business during dinner, but the phone call from Cindy has pretty much blown that out of the water.

  Laurie obviously has no more idea than I do about what is going on or why the whole world seems to have lined up against me. Nevertheless, it’s important for me to come up with a theory, if only to give me something to test, to measure ideas against.

  The flip side of that, however, is that once I come up with a theory, I have to guard against being married to it. I can’t look at new information only through a biased prism; I have to let it take me in any direction, not guided by my preconceptions.

  The only theory we can come up with is that Richard was the victim of a plot to get him out of the way, for something having to do with his work. I don’t believe that the intent of the plot was to frame Richard for Stacy’s murder; I believe that Richard was supposed to die as a “suicide” victim. The approaching storm was unexpected, and had it not appeared, the Coast Guard would not have boarded the boat in time to resuscitate him.

  I can only assume that something was being smuggled into the country, and Richard’s presence was considered a threat to the operation. If the CIA or DIA is involved in the case, then I doubt it was drugs; it was more likely something violent or military in nature. Probably a national security matter rather than a strictly criminal one. Try as I might, I cannot understand how this could still be an issue five years later, but based on the reaction to the reopening of Richard’s case, it must be.

  The other thing I want Laurie’s opinion on is whether to turn the hearing into a media event. Up until now, my handling of Richard’s case has received modest coverage, nothing intense, and I’ve had no reason to change that. My involvement, and the fact that Reggie is so central to the case, can attract a great deal of attention, and I must decide if I want to go in that direction.

  “There’s no jury pool out there, Andy,” Laurie says. It’s a good point; the judge is going to make the final decision, so there are no potential jurors to influence.

  The judge assigned to the case is Nicholas Gordon. The original case was tried in Somerset County, so that’s where the hearing is as well. I don’t know Judge Gordon, or any other judges from that county, since that is not where I usually practice.

  “Do you know Judge Gordon?” I ask.

  She shakes her head. “No, but I don’t know too many judges who like excessive publicity. Or wise-ass lawyers.”

  It’s another good point, even if she’s not making it particularly gently. My normal trial tactics tend toward the flamboyant, and while they often work well with a jury, they tend to piss off judges. Pissing off the decision maker, which the judge will be in this case, is not a particularly logical thing to do.

  “This hearing isn’t going to be much fun,” I say.

  She smiles. “I’m not so sure about that. Watching you question Reggie is going to be a blast.”

  IT TURNS OUT that I am not Andy the all- powerful.

  I had decided to keep the publicity level down, so as to dampen coverage and not annoy the judge. Unfortunately, it didn’t work; the press is out in force in front of the courthouse when Kevin and I get there. The reporters on the court beat must have gotten a tip from the bailiff or someone else inside the system about what was going on, and the word spread.

  Laurie will arrive later with Karen Evans and our star witness, Reggie. I’ll be calling her when I have a better sense of when they will be needed; there’s no sense having Reggie pacing, barking, and maybe even pissing in the witness room as he nervously awaits his appearance.

  We’re going to start the day in the judge’s chambers. The prosecutor, Janine Coletti, has filed a motion to prevent Reggie from “testifying.” We’ve certainly expected that and, hopefully, are prepared to defend our position successfully.

  I’m not familiar wit
h Coletti, but I’ve checked her out, and the prevailing opinion seems to be that she is tough and smart. Those are traits that I don’t like to find in prosecutors; give me a mushy, dumb one any day of the week. The only slight positive is that she is not the original prosecutor and therefore might have less of a vested interest in protecting the original outcome.

  Kevin and I meet Coletti and her team in the reception area outside the judge’s chambers. We exchange pleasantries, but there is no discussion about the case. That will come soon enough.

  We are led into Judge Gordon’s chambers after only a five-minute wait. He looks to be in his mid-forties, though his hair is sprinkled with gray. Actually, I think gray hair may be a requirement to take a seat on the bench; prospective judges probably have to walk through some maturity screener that rejects pure black or brown hair as frivolous.

  A court stenographer is also present, and Judge Gordon explains that this session will be on the record. He wanted to hold this particular argument in chambers because of “the large media contingent on hand,” and he makes little effort to conceal the fact that he blames me for the turnout. It is particularly frustrating because this time it’s not true.

  “The question before us is whether to allow the golden retriever known as Reggie to appear in court,” says the judge before turning to me. “What is the purpose behind the request?”

  “We want to demonstrate that he is in fact Mr. Evans’s dog and that he did not die along with Ms. Harriman, as the prosecution claimed at trial.”

  “And how do you propose to do that?” he asks.

  “Through testimony by his veterinarian and by the actions of the dog as he relates to Mr. Evans. We believe it is vital to establish ownership beyond a doubt.”

  The judge turns to the prosecutors. “Ms. Coletti?”

  “Your Honor, as stated in our brief, the state feels that such a maneuver is completely out of bounds and likely to turn the proceedings into a circus. There is no precedent for a dog to take on the role of witness, and such testimony would be inherently unreliable.”

  I shake my head. “Your Honor, the reliability of canine testimony, as demonstrated through actions, has been amply demonstrated in many court proceedings, including those of Your Honor himself.”

  Judge Gordon looks surprised. “Would you care to explain that?”

  I nod. “Certainly. In New Jersey v. Grantham you ruled that a search that uncovered drugs was reasonable, when the only fact presented to justify the search was the action of a DEA German shepherd who detected the drugs by his sense of smell.”

  “That dog was not a witness in court,” the judge says.

  “That’s true. But you affirmed his reliability by allowing the search. He was, in effect, presented through hearsay testimony. If you’d like, we could conduct our own test outside of court, with you present or through videotape. Then the reference to Grantham would be exactly on point.”

  Coletti shakes her head in disagreement. “Your Honor, that dog was trained in drug detection. It is an entirely different situation.”

  “No, it is exactly the same,” I say. “We will demonstrate Reggie’s training in court, training that could only have been done by Mr. Evans. And untrained dogs have testified as well, through hearsay. Even in the O. J. Simpson trial, endless testimony referenced the barking of a dog, and it was used to pinpoint the time of the murders.”

  “Obviously we disagree, Your Honor,” says Coletti. “But we object just as strongly on the ground of relevance. Mr. Evans was not convicted of murdering his dog, and whether or not the dog is alive is of no consequence. He was convicted for murdering his fiancée, and her death has been confirmed by DNA.”

  “Mr. Carpenter?”

  “Ms. Coletti was not the prosecutor at trial, so perhaps she is unaware that Mr. Steinberg, who did prosecute, referenced the deceased dog thirty-one times. He did so in his opening and closing arguments and through witness testimony. He used it to argue the facts of the case and to demonstrate Mr. Evans’s ‘extreme callousness.’ The jury certainly considered it; he instructed them to. And this new evidence will prove that he should not have been able to reference it, and they certainly should not have considered it.”

  The judge continues questioning us for another fifteen minutes. My assessment is that he does not want to allow Reggie into the courtroom but is unable to come up with an adequate legal justification to prevent it.

  “Your Honor,” I say, “we think the evidence to be introduced by the dog will be compelling. But Richard Evans has not seen the dog in five years, and maybe we’ll be wrong. Maybe it will blow up in our faces. But either way, what harm can come of it?”

  “What do you mean?” he asks.

  “There’s no jury here to protect from being misled. You are the judge and jury, the sole arbiter. You can see it and assign whatever importance to it that you wish. If you think it has no value, you will ignore it. If you consider it valuable for either side, you’ll assign it the appropriate weight. It will be significant or harmless, or somewhere in between, and only you will decide which.”

  The judge then asks how we would proceed, and I tell him that Karen Evans would bring Reggie in, that her presence as someone he knows would put him at ease. Then Richard would put him through some training paces, tricks that he had taught him, as a way to demonstrate familiarity.

  The fact that the judge asks about process is a good sign; if he were going to disallow Reggie, then the process would not be important. Coletti seems to sense this as well, and she renews many of her objections to the testimony. I refute them, but we’re going over the same ground.

  “I’m going to allow it,” the judge says, and then makes an unusual ruling. All other witnesses, for both sides, will testify before Reggie. His appearance will represent the finale. “See you in court,” he says.

  We take this as our cue to leave the chambers, and I immediately head for a phone to call Laurie. I tell her what time to have Karen and Reggie here, and that I will call her back if that changes.

  “You’re taking a chance,” Laurie reminds me. “Reggie could go into court and bite your client, and your case, on the ass.”

  “You’re right,” I say. “You’d better ask Tara to speak to him.”

  She laughs. “Will do. See you later… good luck.”

  I take my place in the courtroom, and Richard Evans is brought in. I can see the nervousness etched in his face; he’s experienced the wonder of hope this past couple of weeks, and he knows that it could all come crashing down today.

  “You ready?” he asks.

  I nod. “Ready.”

  He’s searching my face for a clue to his chances, doesn’t find anything particularly reassuring, so he finally nods. “Okay. Me, too.”

  WHEN THE JUDGE enters the courtroom and the bailiff calls the case, I get my own butterflies. This hearing represents not only a huge hurdle but also an unfamiliar one for a defense attorney like me. Usually we only need “reasonable doubt” on our side; the prosecution has to have a slam dunk, a unanimous verdict, to win. A hung jury is generally considered a defense victory.

  Here the opposite is true. Richard is presumed guilty, and we must decisively prevail to give him another chance. In this case a tie doesn’t go to the runner, and it doesn’t go to the defense. We have to win decisively, and the judge must be persuaded that we would probably win in a new trial.

  The first witness I call is probably the most important human witness I’ll call all day. It’s Dr. Gerald King, here to testify on the toxicology and medical reports. I start to take him through his credentials, which are as impressive as they come. Halfway through them, Coletti belatedly offers to stipulate to him as an expert witness.

  “Your Honor, I would like you to hear his entire curriculum vitae,” I say.

  “It’s not necessary,” Judge Gordon says. “I’m very familiar with the doctor.”

  That’s plenty good enough for me, and I don’t push the issue. Instead, I take Dr. Ki
ng through his description of how the bruise could not have been on the left side of Richard’s head if he had fallen out of bed, and could only have been caused by a rounded, blunt instrument, not by the floor.

  Dr. King has brought pictures and charts with him, some of which are identical to those used in the first trial and some which he has created from scratch. His presentation is reasonably compelling, and once I’m satisfied he’s made his point, I move on to the toxicology.

  It only takes a few questions before I lead Dr. King into dropping the bomb that the sleeping pills had to be injected or taken in a liquid form, because of the presence of campene. I could lead him even further, but I want to save some ammunition for when the prosecution puts on its rebuttal witness.

  Coletti gets up to cross-examine, and she focuses on the bruise first. “Dr. King, you say that if Mr. Evans had fallen from the bed, the bruise would have been on the right side and not the left. Is that correct?”

  “Yes.”

  “And you also conclude that the floor could not have caused the bruise. Is that correct?”

  “Yes.”

  “Before the pills knocked Mr. Evans out, would they have made him groggy?”

  “Certainly.”

  “Could he perhaps have staggered around the room, walked into a cabinet or something else, and then fallen to the floor? Could he have sustained the bruise that way?”

  “That was not the prosecution version at trial.”

  “And there were, and are, experts and evidence to support that version. But if they were wrong, and you are right, could it have happened as I describe?”

  He’s trapped; Coletti is very good. “It’s possible.”

  “Thank you,” she says. “Now, to this mysterious campene. Are there other ways for campene to enter one’s system? Is it contained in shellfish, for instance?”

  “Yes.”

  “Could he have ingested it that way?”

  I can almost see Dr. King salivate at this; maybe Coletti is not so good. “If he did, he would have been dead when the Coast Guard got there.”