If You Only Knew

by M. William Phelps

  Please.

  “No, I didn’t,” Kather said. It sounded dramatic. Like this piece of information was a bombshell.

  “Nothing on his lips?” the APA asked.

  “Nope.”

  “Or his nose?”

  “No.”

  The APA showed Donald Kather a photograph. It was of Don Rogers’s lip—postmortem. Then he implored Kather to explain to jurors if he had seen those same abrasions on Don Rogers’s lip on that last day he saw Don for lunch, August 11.

  “No,” Kather said, “they were not evident to me.”

  Again, this exchange was meant to shock. Meant to hammer home a point that Don Rogers had sustained these injuries while being murdered.

  The next thing Donald Kather brought to the courtroom was that Don Rogers was not an extravagant guy, buying himself toys and spending money irresponsibly. He was frugal, in fact. His only luxurious expenditure, if it could even be called such, was going out to eat every day for lunch and having a nice dinner ocassionally.

  Wearing a white sweater, sitting still and indifferent, a lack of concern on her face, Billie Jean listened intently, whispering to her attorneys when she felt something needed to be said.

  Kather said he had known Billie Jean for almost twenty years. He had gone to Don and Billie Jean’s first wedding in Vegas, but not their second ceremony.

  Ending his direct questioning rather abruptly, without asking Kather to go into any lengthy discussions about Billie Jean and the relationship she had with Don, the APA said, “And the last time you saw [Don] was when he left at four P.M.?”

  “Correct.”

  “Did you expect to see him Monday?”

  “Certainly did.”

  “Were you surprised, sir?” Skrzynski asked.

  “Yes.”

  “I have no further questions.”

  Kather offered nothing to the prosecution other than the notion that Don Rogers’s face might not have had those small, minuscule abrasions, apparently seen only with a magnifying glass, when he ate lunch with him on the Friday afternoon of his death.

  Some wondered why he had been called to give any testimony.

  * * *

  Piszczatowski started his cross-examination with the daily lunch Don Rogers and Donald Kather shared. The defense attorney called Don Rogers a “creature of habit,” and Kather agreed with that assessment.

  Since Don Rogers was such a creature of habit, as Piszczatowski had put it, Billie Jean’s lawyer wanted to know what Don Rogers had to drink every day at lunch.

  “Two beers,” Kather said. That was it.

  Interestingly enough, it was rare for Don Rogers to order lunch, Kather told Piszczatowski. He generally just drank those two beers and never ate much. But it wasn’t because Don wanted to enjoy the buzz a few beers coupled with an empty stomach produced. “I’m certain the reason was if he had breakfast, he didn’t order lunch. . . .”

  The other piece of Don’s character his business partner was able to relate to jurors was Rogers being such a “private person.” He rarely talked about personal matters with anyone. It was to the point where Don Kather once asked him if he had gone and married Billie Jean for a second time and Rogers told him, “It’s none of your business.”

  Don Rogers “pretty much” went into the office every day and “watched TV.” He stayed away from the day-to-day operations or running the business, Kather explained. He gave input from time to time, but it was Kather who ran the show there. And Don Rogers was cool with that.

  Piszczatowski trekked from family to business and then into the last day Kather had seen Don Rogers. He asked him if he recalled noticing that Don had a black eye on that day, August 11.

  “No,” Kather said.

  What about the day before? Piszczatowski wondered.

  “No. I don’t recall having seen him that whole week with any abrasions or anything on his face.”

  They went through each day of the week.

  Kather said no to each.

  Next, Piszczatowski asked Kather if he had noticed any changes in Don over the course of the weeks, months, “the last year, three years, say, two years” leading up to his death.

  “I would say that Don had lost weight over the last five, eight years. When I knew him, he was much beefier and stronger. He became more frail. But at seventy-four. . . I think it’s natural attrition or something. . . .” In terms of health, Kather added, it was only Don’s weight he noticed. Not much else.

  And then one final question by Piszczatowski gave Kather a reason to explain how Don Rogers had smoked unfiltered Camel cigarettes, which, along with his heavy drinking, probably contributed to what was very poor health.

  After Piszczatowski was done with Donald Kather, jurors were left with an undeniable image of the deceased: an unhealthy guy in his seventies, drinking every day at lunch, not eating, smoking and losing weight.

  In other words, Don Rogers had been a good candidate for a heart attack.

  CHAPTER 65

  THE SECRETARY FOR DON’S business answered questions next. Toni Brosseau spoke of a simple man who never swore around the office and never mentioned anything of a sexual nature. He pretty much kept to himself. Toni also said she was “shocked” to learn from Billie Jean that Don’s niece, whom she referred to as “Nicole,” was a man. She learned this in November, when Billie Jean showed up at the office to collect some of her late husband’s things.

  When asked about her boss’s health issues, Toni spoke of Don Rogers’s “rectal bleeding.” She said it was Billie Jean who told her about it. After suggesting Don should go see a doctor about the condition, Billie Jean told Toni it was difficult to get him to go and she had basically given up on the prospect.

  Quite surprising, after those few questions and answers, the APA said he was done, leaving many in the room to wonder once again why the witness had even been called. Toni had offered nothing to further the PO’s case against Billie Jean. If anything, she said the Rogers couple had a fairly normal marriage, as far as she could tell.

  * * *

  Piszczatowski kept his cross simple. He set it up with questions so that Toni talked about Don being a private person. Yet, in speaking of what she did for Don throughout the workday, she also explained that she had “balanced” his checkbook. This led Piszczatowski to ask a fair question regarding Don ever complaining to her about the amount of money he had paid on his Visa bills. Piszczatowski knew it was going to be the PO’s contention that part of the reason why Billie Jean wanted to rid herself of Don Rogers was the enormous debt she had amassed and how pissed off Don was because of it.

  “Mr. Rogers kept his personal business to himself,” Toni said.

  “So he never really complained to you?”

  “Not really.”

  They talked about Don’s habits at work and she admitted that she’d found empty vodka bottles in the Dumpster and realized he was drinking. Seeing Don every day, however, she didn’t notice a man who was deteriorating over the years from poor health and excessive drinking. But when she met Don’s brother at his funeral, a guy older than Don, Toni then suddenly realized how bad Don Rogers looked and how far his health had spiraled downward.

  “His brother is older, and his brother looked like Mr. Rogers did, you know, fifteen years ago.”

  From there they discussed how Don looked during the week before his death. Toni did not notice any marks or bruises on his face, she explained. And she would have, because he often gave her tasks to do that required him walking to her desk and handing her paperwork. This brought him up close to her.

  “If he would have had any real injury to his face, I would have noticed it,” she testified.

  As they talked about Don’s funeral and the arrangements, it sounded as though Billie Jean had engaged her late husband’s secretary to help her out, ordering flowers, delaying things so his family could make it into town, calling the funeral home. The way Toni described her relationship with the widow during this period was
akin to a wife and her husband’s secretary working hard together to bury a man they both loved. There was no animosity from Billie Jean, Toni noticed. There was no anger from Billie Jean projected toward her dead husband. On top of that, after Don’s death, Toni said she had taken on “more responsibility” at the machine shop and because of that Don Kather gave her a raise. Billie Jean was told about it, because she now had taken over for Don.

  And guess what? She “was very nice about it.”

  * * *

  At 2:47 P.M., the state called Dr. Ljubisa Juvan Dragovic, the chief medical examiner. This was an important witness for the APA—maybe the most important of the trial. Dragovic would either seal the deal on an acquittal by not explaining why the ME’s office changed its mind on the death certificate, or he would bring jurors back into the state’s fold and convince them Don Rogers had, in fact, been murdered.

  After listing the doctor’s credentials, the APA asked the ME if he could explain his actual position within the office.

  “I work in the capacity of chief medical examiner, chief forensic pathologist for the County of Oakland.”

  Dragovic was the top dog; what he said was gospel, the final word on death, countywide. He had been “qualified” as an expert witness in hundreds of trial cases, he told the court. He was an associate professor at a local university. He had published scores of articles on pathology over the years. The guy’s credibility, on paper, was rock solid.

  As he testified, Dragovic said he had not gotten involved in Don Rogers’s death on the day his body had been brought in. That was Ortiz-Reyes, a pathologist he oversaw. Dragovic had not deeply immersed himself in Don’s case until the TPD had called to ask him to take another look because of some new information.

  And “after reviewing it,” he explained, “together with Dr. [Ortiz-Reyes], I decided that we had to proceed to reevaluate everything in conjunction with the activities that the Troy Police Department was carrying out.”

  The APA asked him to explain why the TPD had thought the case needed further examination and what had convinced Dragovic there might have been something going on besides natural death. This was the question of the trial, thus far. A lot rode on what the doctor would say.

  He spoke of “suspicion that the death . . . was not an accidental death or natural death. That it was a—that it was foul play involved and they had some suspects and that they were progressing along the line, investigating all that information, and I encouraged them to continue doing that and I evaluated our end of things.”

  He was then asked what he found after evaluating the files.

  “Significant discrepancies” was part of his answer. Most of what he found, Dragovic explained, he uncovered within the “Polaroid photographs” from the death scene and pathologist’s initial examination. Once he realized that Don’s body had been cremated, he knew that they could not have him exhumed, which they certainly would have done after a call from law enforcement, like that one he received from Troy.

  Regarding his office giving a permit, or permission, for the body to be cremated, the way Dragovic framed the situation it made perfect sense: requests of all types came across his desk every day, he had to look at them, decide what to sign off on, what to talk to his staff about, and how to proceed, deciding if anything needed further examination or evaluation. With Don’s case, it was simple. At the time, his pathologist had given a cause and manner of death. So, as his boss, he signed off on the cremation permit. This sort of thing was a normal course of any business day. There was nothing that led anyone to believe—at that time, “based on the information that existed”—that they should not okay the permit. The case had gone through the proper channels, via the system the county had in place, and was approved, the doctor told jurors. Most of this was done, he further stated, “by our clerical staff.” It was only brought to the ME’s specific attention or to his staff if there was a question. Many requests are done with an “automatic approval.”

  A rubber stamp.

  Happened every day.

  “So you would not have personally reviewed this case request for cremation?”

  “No.”

  The system had approved Don’s cremation, essentially—not an actual medical examiner. “Unless,” he said, “there was a problem or issue that is brought to my attention, but not routinely. I saw that”—the issues summoned by the TPD—“only when I started looking into the file.”

  Those Polaroid photos.

  Dragovic then talked about how after he began to look intensely into Don’s death and studied the toxicology reports, the photos taken by the pathologist, the remainder of the file, that “it looked a little bit odd and a little bit different, and looking at everything together, things did not add up.”

  The more information he digested, the more he felt he needed to look deeper into it all.

  The way the doctor painted the series of events leading up to what became a murder investigation indicated that he was doing his job the way in which he had been trained, the way in which he had done it in hundreds of cases before this. However, as he followed procedure and policy, “things began to make less and less sense,” and so he raised a hand and “encouraged” everyone on his staff, including himself, “to dig more into this matter so that we can come to the bottom of it.”

  Jurors were clearly not bored or impatient with this testimony. The ME was putting the case into a broader sense of facts as they unfolded in real time within the ME’s office. He was explaining, not in a defensive manner, but professionally, how everyone involved came to the conclusion that Don Rogers was murdered.

  Had the tables turned for the PO? Had the APA finally won a round?

  Piszczatowski, who vigorously scribbled notes and spoke with his co-counsel as Dragovic spoke (that is, when he was not objecting), did not seem at all worried or concerned about the ME’s testimony—probably because Piszczatowski knew that at some point over the next day or so, he was going to get a crack at him.

  CHAPTER 66

  SKRZYNSKI AND DR. DRAGOVIC discussed the particulars of the early heart attack claim, the acute alcohol intoxication diagnosis and a final judgment that included asphyxiation by smothering. It took the remainder of the afternoon for the APA to get through it all. In the end, Dragovic had been a superb witness for the APA. He spoke of how important the crime scene photographs had been in his determination after he had immersed himself in the case and had “all” of the information in front of him.

  “Position of the body” came up again, and it was something Billie Jean and her attorneys needed to knock down. They could ignore the significance of this seemingly irrelevant fact, but it would not prove sensible to do so.

  “Comfortably resting,” Dragovic noted, while staring at the photos of Don. This stood out to him, he told the APA. Don seemed to be “placed there on the hard tile floor.” It didn’t appear he had fallen. Or had passed out drunk. This was important, along with how Don’s legs had been crossed at the ankles, Danny Chahine’s accusations, the abrasions, along with several other minor factors, Dragovic said with authority, that “were more conflicting than matching.”

  It’s funny how when an expert looks at a crime scene under a new light, or changes the focus of his observations, predictable appearances can have different meanings. That was what the good doctor meant here: it all added up for him, once he had answered a few unanswered questions about Don’s death.

  The aha moment, in other words, came late.

  But it certainly came.

  They discussed the position of Don’s body for several more moments, before moving on to the crime scene and what truly made Dragovic take notice.

  “Well, the scene was very neat,” he told jurors, “for a person that is heavily intoxicated.” He mentioned those crossed legs yet again. “That appearance to me was unreal and still is. This is unreal.”

  The chair had been tipped over, the doctor suggested, “in such a way that is—it just does not make any sense of thi
s body falling out of this chair. . . .”

  One could argue that his “opinion” was mere speculation, mere conjecture and not at all a fact in this case. The doctor was qualified, certainly, to make this judgment, but in the end, who could know how a chair fell when a drunk passed out and landed on the floor? Moreover, had anyone done any tests? Had a crime scene reconstruction lab conducted any tests? Or was this all based on Dragovic’s personal and professional opinion and experience?

  They talked about this chair for perhaps too long, which only drew more attention to it. Then the APA asked about manner and cause of death—the differences—and how science played into his final opinion.

  “People don’t die in a vacuum,” Dragovic explained, which sounded rather strange just left out there hanging. “People die under circumstances, and those circumstances define the manner of death—the manner of death being how death comes upon a person. . . .”

  Dragovic called his relationship with law enforcement a “two-way street,” one in which he and the police often used to connect on cases.

  It was “a process,” he said after being asked.

  Piszczatowski leaned over and whispered something to his co-counsel. The man nodded his head in agreement. Billie Jean looked on, clearly aggravated—and why shouldn’t she be?—by the doctor’s testimony.

  The APA asked the doctor to break down, step-by-step, the fall Don allegedly took. Then:

  The alcohol levels in Don’s system.

  The alcohol numbers of a person that consumed” a lot.

  How “alcoholics” had higher numbers than social drinkers.

  “Hypothesized” X-ray photos of Don and what they “might” have said.

  How the fact that Don did not show any signs of major injury to the back of his skull likely meant he had not fallen.

  “Pinpoint bleeds on the eyelids” and what they mean: asphyxiation—but not all the time.

  Pinpoint bleeds were not present in every smothering case the doctor said he had seen. Plus, pinpoint bleeds are generally “the hallmark of manual, ligature strangulation. . . .”