Play Dead

by David Rosenfelt

  “Why is that?” she asks.

  Here comes a great moment, and I envy Dr. King that he gets to say it. He waits a beat; his timing is perfect. “Mr. Evans is severely allergic to shellfish; it’s in his medical records.”

  Coletti flinches; she had clearly not known this. She recovers quickly and gets Dr. King to agree that the campene could have been a preservative in another drug that Richard might have taken. Dr. King points out that there were no other drugs in his system, but has to admit that some drugs leave the body faster than others.

  All in all, he has been a very good witness. He won’t carry the day, but he’s moved the day along nicely.

  Next up is Dr. Ruff, Reggie’s veterinarian. She shows the X-rays of the plate in his leg, as well as the missing teeth and the cut marks. Coletti establishes on cross that none of these issues could possibly be unique to Reggie, that the pulling of teeth and the repairing of broken legs in this manner are quite commonplace.

  Dr. Ruff is a less accomplished witness than Dr. King, and she’s too willing to concede facts to Coletti. The truth is that the combination of health issues would represent a mind-boggling coincidence if the dog is not Reggie, but Dr. Ruff doesn’t come off as that certain.

  Next up is Lieutenant Michele Siegle of the Asbury Park Police. I use her to recount the testimony of the witnesses who saw the boat at various times that night. This establishes the locations as far from the shore.

  “So it’s your opinion that Mr. Evans’s dog could not successfully have swum to shore if he had been thrown from the boat?”

  “That’s correct, and it’s not just my opinion. There was expert testimony to that effect during the trial.”

  I introduce the expert testimony from the original trial transcript as a defense exhibit and turn the witness over to Coletti. She gives only a cursory cross-examination, designed to elicit the fact that the murder case was ironclad with or without the dog’s involvement.

  Since Reggie’s “testimony” will be kept completely separate, Judge Gordon invites Coletti to bring forward any rebuttal witnesses now. She calls Dr. Nicholas Turner, a toxicologist of some renown who was not the prosecution expert during the trial.

  She takes him through a point-by-point rebuttal of Dr. King’s review of the blood work. He claims that Amenipam in liquid form is very hard to find, and that the empty bottle of pills showed traces of Amenipam, lending credibility to the theory that Richard overdosed on conventional pills.

  He also talks about how quickly liquid Amenipam works, and that the Coast Guard would have had to appear very quickly after any injection, or Richard would have died.

  Finally, Coletti takes him through Dr. King’s testimony about the presence of campene. “Is campene used only to preserve Amenipam?” she asks.

  He smiles a condescending smile. “Certainly not. It’s used very commonly with all kinds of drugs. I’ve actually never heard it used with Amenipam, though it’s possible that it would be.”

  I start my cross-examination by asking Dr. Turner if he has ever done any acting.

  He seems taken aback by the question. “What do you mean by acting?”

  “I mean playing a role… pretending. I don’t mean professionally; have you ever been in a school play or anything?”

  “In high school… once or twice,” he says.

  Coletti objects, asking where this could be going. Judge Gordon tells me to get to the point.

  I nod. “Okay. Dr. Turner, I’d like you to act something out for me. Imagine you’re sitting at a table, and you’ve decided to swallow a whole bottle full of pills. Show me how you would do it.”

  “How I would swallow the pills?” he asks.

  “Yes. Do it like you’re acting it out, or playing charades.”

  Coletti objects again, but Judge Gordon lets it proceed. Dr. Turner pours some imaginary pills from the imaginary bottle into his hand, then puts them as far back in his mouth as he can. Then he takes a drink from an imaginary glass and swallows the imaginary pills.

  “Very nicely done,” I say. “For the court reporter’s sake, let the record show that you pretended to take pills out of a bottle, put them in your mouth, pretended to take a drink from a glass, and swallowed them. Is that accurate?”

  He nods. “Yes.”

  “You weren’t undecided about how to do it, were you? That was the obvious way?”

  “It was the obvious way,” he agrees.

  “Except there was no glass,” I say, taking some papers from Kevin. “Your Honor, here is an inventory of the boat that night. All the glasses were clean and put away in the cabinet. There were none on the table or on the sink. There were none anywhere except the cabinet.”

  “Maybe he cleaned it,” Dr. Turner says, making the classic mistake of answering a question that wasn’t asked.

  I nod. “Right. He was willing to have someone find his own dead body, but a dirty glass would have just been too embarrassing.”

  “Perhaps he took the pills over the sink, cupping water in his hand.” Dr. Turner is feeling trapped, even though he has no reason to be. He’s a scientist, not a cop, and he shouldn’t feel that he has to defend the investigation. But that’s how he feels, and I’m going to take advantage of it.

  “A whole bottle of pills?” I ask, not bothering to mask my incredulity.

  “It’s possible.”

  “There were no traces of Amenipam found in the sink. Do you find that desperate suicidal people who’ve just committed a violent murder are usually that neat?”

  I move on to the pill bottle itself, which we have asked to be brought to court. I show it to Dr. Turner and ask him to read the label and tell me what pharmacy it came from.

  “There is no label,” he says. “It’s been torn off… There are traces of the back of the paper.”

  “According to the police reports, the detached label was not found on the boat, and seventy-one pharmacies nearest to Mr. Evans’s house were canvassed. None had provided the prescription. Can you explain that?”

  He shrugs. “He didn’t want anyone to know where he got it.”

  “Is it illegal for a pharmacy to dispense Amenipam?”

  “Not with a prescription.”

  “Is it hard to get a prescription for it?”

  “Depends on the doctor, and what the patient tells him.”

  I nod. “How about ‘I’m not sleeping well’? Might that do the trick?”

  “Depends on the doctor,” he repeats.

  “In your experience, is it likely that a suicidal murderer would care if people knew where he got his prescription?”

  Coletti objects, and Judge Gordon sustains. I let him off the stand, having made enough points to satisfy myself.

  In fact, all the morning witnesses have gone as well as we could have hoped, but the gallery and press in attendance have barely been paying attention. It is as if they have been watching the undercard before a heavyweight championship fight.

  Our lunch hour is spent in an anteroom finalizing our plans. Karen will be bringing Reggie into the courtroom, and she will have a key role in our success or failure. She admits to being nervous but swears there is no chance she will screw things up.

  I’m fairly confident, based on Reggie’s pizza box trick at my house, but I’m still nervous myself. Lawyers don’t call witnesses unless they know exactly what they will say, and I am violating that principal today. Reggie will speak through his actions, and I am far from certain what he will “say,” especially in the new surroundings of the courtroom, with so many people watching him.

  “Just try to keep him as calm as you can,” Laurie says to Karen. “Keep petting him, and talk to him in a soothing voice.”

  Karen nods. “I will. We’ll be fine. Right, Reg?” She pats him on the back as she talks, but he remains noncommittal about his testimony.

  Karen and Richard will be the two humans with the most responsibility in this afternoon’s session. My role will be mostly to watch and hope, a situation guaran
teed to leave me frustrated. But we all know on whom everything is riding.

  Reggie is going to be the main event.

  “THE DEFENSE CALLS Reggie Evans,” I say, and everyone turns toward the rear of the courtroom.

  The door opens, and Karen walks in with Reggie alongside her on a leash. She looks serious but relaxed, and he seems a little scared. I can tell this because his tail is down behind him, a sure sign that he is not comfortable. As Laurie instructed, Karen reaches down and pets him gently on the side of his head, and the net effect is to keep him amazingly calm.

  Reggie handles pressure a hell of a lot better than I would.

  Everybody in the gallery strains to get a look at them as they walk down the long aisle toward the front of the room. It reminds me of the footage I’ve seen of the Ali-Foreman fight in Zaire, as Ali and his entourage worked their way down to the ring.

  Karen brings Reggie all the way to the witness stand. He has not seen Richard yet, because he’s facing the other direction. This is how we planned it. I even had Richard wear aftershave to mask his scent. It’s unlikely Reggie would have smelled him from this distance, with this many people, but I didn’t want to take any chances. This had to be fully choreographed.

  “Your Honor,” I say, “with the court’s permission, Mr. Evans will take over.”

  “Go ahead,” Judge Gordon says, and Karen turns toward Richard, who is about twenty feet away from her. In the process, Reggie turns as well.

  Reggie is looking in Richard’s general direction, without reacting, for about five seconds, but it feels like five hours. The thud that can be heard in the courtroom is my heart hitting the floor, as my plan appears not to be working.

  Suddenly, Reggie seems to focus in on Richard, and it is as if he had been jolted by electricity. He explodes toward Richard, and the leash comes out of Karen’s hand. “Oh, my God, I’m sorry!” she lies, since letting him get away is exactly what I’ve instructed her to do. But her apparent distress is so real that even I almost believe it.

  Reggie flies through the air and lands on Richard, knocking him backward over his chair. The three bailiffs don’t have a clue what to do, and no apparent desire to try to restrain Reggie. I doubt that their handcuffs would fit on his paws, anyway. For now they are just content to watch.

  Even Judge Gordon seems mesmerized by the spectacle, though he recovers fairly quickly. He starts to slam his gavel down, yelling for order, though none is forthcoming.

  Richard, a look of pure joy on his face, finally makes it to his feet. “Sit, Reggie,” he says, and Reggie immediately assumes a sitting position, as if waiting for the next command. The only sign to connect him to the chaos he has just caused is the fact that he is panting from the exertion.

  It is a demonstration stunning in its simplicity; just by those two words Richard said all there was to say. No reasonable person could have witnessed what just took place and continue to have any doubt that Reggie is Richard’s dog.

  It turns out that Coletti is not a reasonable person. “Your Honor, may we approach the bench?” she asks.

  Judge Gordon grants her request, and Coletti and I walk up for a private conference. “Your Honor, the defense should be admonished for that performance. It runs completely counter to what was agreed upon. The dog was supposed to be kept on the leash, under control.”

  I laugh. “Under control? It would have taken a marine battalion to keep him under control. He was seeing his owner for the first time in five years.”

  “That ownership is still to be determined,” Coletti says.

  “Were you in the courtroom just now?” Judge Gordon asks her. “Did you see what I saw?”

  “I saw a demonstration that might well have been staged,” she says.

  I shake my head in exaggerated amazement. “Staged? He’s a dog; he’s not DeNiro.”

  “Ms. Colletti,” Judge Gordon says, “if the state wants to continue this, then the defendant can put the dog through whatever tricks they have planned. But I am telling you, as far as the court is concerned, this is the defendant’s dog.”

  Coletti can tell that she has pushed this as far as possible. “We can end it here.”

  We both go back to our respective tables. Reggie is once again standing near the witness stand, held on the leash by Karen.

  “No further questions,” I say. “The witness is excused.”

  Karen and Reggie leave the courtroom, and both Coletti and I announce that we have no more witnesses. Coletti stands to give her closing argument.

  “Your Honor, five years ago a lengthy investigation focused on the murder of Stacy Harriman. Hundreds of hours of work went into it by experienced, dedicated professional law enforcement officers.

  “They determined that there was probable cause that Mr. Evans committed the crime. Their work was reviewed by the county attorney, who agreed with their conclusions and filed murder charges against Mr. Evans.

  “A four-week trial then took place, during which Mr. Evans was ably defended. He entered that trial with the presumption of innocence and retained the right to challenge his accusers. At the conclusion of that trial, a jury of his peers deliberated for eight hours before unanimously voting to convict him.

  “What has changed since then? We have now learned that Mr. Evans had infinitesimal traces of campene in his system. This might be significant, if we could be sure how it got there.

  “And we know that a golden retriever seems to be the dog that Mr. Evans used to own. This also might be significant if Mr. Evans had been convicted of murdering that golden retriever, or even of dognapping. But no such charges were ever filed.

  “Your Honor, the defense has not even come close to meeting its burden. To grant a new trial on this flimsy evidence would be to discredit the original trial, and there is certainly no reason to do that.”

  Coletti sits down, and as she does, I stand up immediately. She has presented a reasonably convincing argument, and I don’t want it to stand unchallenged for a moment longer than necessary.

  “Your Honor, I was not involved in Mr. Evans’s original trial, but I have carefully read the transcript. Most of what I read was presented by the prosecution, since the great majority of the witnesses called were theirs.

  “The prosecution contended back then that Mr. Evans sustained his facial bruise from falling out of bed. When Dr. King came in here and said that it could not have happened that way, they backpedaled and said it could have happened as he was staggering around the room.

  “The prosecution contended back then that Mr. Evans swallowed a bottle of pills. Yet we find out today that they cannot find any pharmacy that prescribed the pills, and that Mr. Evans would have had to eat them dry, without using water. Such a technique would have been masochistic, in addition to being suicidal.

  “The prosecution contended back then that Mr. Evans’s dog was on board the boat; they presented eyewitnesses that were quite clear about it. They told the jury that he killed that dog by throwing him overboard, and then described the act as evidence of his depravity.

  “Now we know with certainty that they were wrong. We know that Reggie is very much alive and that rumors of his death were, shall we say, exaggerated. There is nothing anywhere in all the hundreds of hours of investigative work, or anything presented at trial, that can come close to explaining what you saw in court here today. Reggie’s very existence means that someone else was on the boat that night, and it is very likely that the same someone else was the murderer. Certainly, there is nothing in the record that says otherwise.

  “Reggie is alive, and because of that, the prosecution’s theories are dead in the water.

  “Also revealing is what the prosecution didn’t say in that trial back then. They offered no evidence of motive, and no claim that Mr. Evans had ever showed violent or suicidal tendencies.

  “Now, I am aware that they were not obligated to present motive, but juries usually want to hear it. But back then it wasn’t necessary, because the evidence as pre
sented seemed so clear. Well, now it’s not so clear, and the absence of motive and previous tendencies becomes far more significant.

  “Your Honor, we are not talking about reasonable doubt here. We are talking about overwhelming doubt. If we knew then what we know now, only the most overzealous of prosecutors would have brought the case to trial. And there’s not a jury in America that would have voted to convict.

  “Richard Evans has spent five years of his life in prison for a crime he did not commit. The love of his life was murdered, and he was not allowed the space and freedom to grieve. He himself was nearly killed, and no one looked for, much less found, the actual guilty party.

  “The truth, as always, will ultimately win out. It sometimes comes in strange shapes and sizes, and this time it came walking in on four paws. But it is the truth, and by recognizing it, you can start the process of giving Richard Evans his life back.”

  I’VE NEVER BEEN much of a fan of self- discipline.

  It generally collides head on with my enjoyment drive and rarely survives the collision. It makes no sense to try to force myself to do something I don’t want to do, since if there were a good reason to do it, I would want to do it in the first place.

  But we are now entering a phase where self-discipline must rear its ugly head. It is going to take anywhere from a week to a couple of months for Judge Gordon to announce his decision about a possible new trial for Richard. We must work hard toward preparing for that trial, while knowing that if it’s not granted, our efforts will be totally wasted.

  The thing I can most liken it to is betting a parley, which is a bet that requires winning two games to be a winner. If one of those games has already been played but I don’t know the result, I would root for my team in the second game, knowing that it might be a waste of time because, if I lost the first game, the second one doesn’t matter.

  I’m going to have to work to develop a compelling case for Richard, but if we didn’t win the hearing, then it won’t matter.

  At times like this I am particularly glad I have Kevin as my partner. He will keep me moving forward, both because he is a more dedicated attorney than I and because he is a more optimistic one.