Killer Ambition

by Marcia Clark

  “Yes.”

  “Have you nevertheless found in your case studies that defendants who wielded such a knife have cut themselves during the homicidal attack?”

  “Many times, yes. In the heat of struggle, hands do slip and victims can move about, all of which can, and frequently does, cause the perpetrator to get wounded in some manner.”

  Dr. Vendi and Steven Diamond—a nice one-two punch to show how Ian could have cut himself during the murders and therefore left his own blood on the trunk of Brian’s car.

  “Nothing further.”

  This time I saw Terry put her hand on Wagmeister’s arm and stand. Terry took Steve through all the expected points: no, he couldn’t say it was this brand of knife to the exclusion of any other—it was an educated conclusion based on the database; yes, the handle guard sometimes did operate to keep the knife wielder from getting cut.

  “And you cannot say with absolute certainty that the wounds on both Hayley and Brian were caused by one and the same knife?”

  “Well…based on all the evidence—”

  “Stop, Mr. Diamond. You were called as a knife expert, right?”

  “Yes.”

  “Then please answer the question within your field of expertise. Based on the wounds and what you know of knives, can you say with absolute certainty that both victims were killed with the exact same knife? Yes or no?”

  Steven cleared his throat. “No.”

  “Then it is possible that two different knives of the same brand could have been used?”

  “Well…yes.”

  “Thank you,” Terry said, and sat down.

  We probably won that round on points, but Terry’d managed to kick up some dust clouds.

  Next up was Barbara Meyerson, our very pregnant cell phone records custodian, who waddled in, ungainly and vulnerable, carrying a thick file folder. The minute I saw her, I knew there’d be little, if any, cross. It’d be suicidal to get belligerent with a mother-to-be, and besides, there was no point. The records were what they were.

  But that didn’t mean she didn’t have dramatic points to make for our side, and I intended to squeeze the max out of them. I started with the phone calls between Ian Powers and Jack Averly, to prove their connection.

  “Do the cell records of Ian Powers and Jack Averly show contact before the murders?”

  “Yes.” Barbara shuffled through her paperwork. “Prior to the murders, there were sporadic calls, maybe twice a month, for a period of a few years. None of them were lengthy, and all of the calls placed by Ian Powers came from a cell phone that had a blocked number. It would show up in the records as ‘unknown caller.’”

  “And did you find any calls between them on the day of the murders?”

  “Yes. I have a call placed from Ian Powers’s unlisted number to Jack Averly’s cell that evening.”

  “Just the one?”

  “Yes. But the following day there were four calls between Ian Powers’s unlisted cell phone number and Jack Averly’s cell phone, and another few calls over the next three days.”

  “Would you say that there were more frequent calls between them after the murders than in previous months?”

  “Def—”

  “Objection,” Terry said loudly. “The records will speak for themselves.”

  “True, they will. Sustained,” the judge said.

  I gritted my teeth. Barbara was qualified to summarize what was in the records. But it wasn’t a point worth fighting for. I moved on.

  “Did you obtain the locations of the cell sites these phones accessed for the calls in issue?”

  “Yes. The call placed from the defendant’s phone to Averly on the day of the murders came from the Bel Air area to a location in West Hollywood. The following day, Jack Averly’s cell phone was making and receiving calls in New York, and Ian Powers’s calls were being made and received in various locations in Los Angeles.”

  I put a printout of the texts between Hayley’s and Brian’s cell phones on the monitor.

  I pointed to the monitor: still waiting for drop. stay in car. “That first text was sent from Brian to Hayley?”

  “Yes.”

  “Where was the phone when that text was sent?”

  “The cell site location accessed was near Ventura, in the Santa Monica Mountains.”

  “Would that cell site be the one accessed if the phone was on Boney Mountain?”

  “Yes.”

  “Was there a text from Hayley to Brian after that?”

  “Yes. Three minutes later, her phone sent a text to his.” She pointed to that text on the monitor: what’s going on? “That text accessed the same cell site location as Brian’s text.”

  “So that text also could have been sent from Boney Mountain?”

  “Yes.”

  “Did Hayley’s phone send more texts to Brian’s phone after that?”

  “Yes. Over the next fourteen minutes, she sent four texts.”

  “Were any of them answered?”

  “Only the last one.”

  I took her through each of the texts Hayley had sent after that: u should be done by now! Where r u? No answer. what’s going on??? No answer. r u ok? No answer. where r u??? what’s happening??

  Those texts—their rising panic—again gave the sad yet eerie sense of hearing from Hayley herself beyond the grave. “Was there finally an answer from Brian’s phone?”

  “Yes. Four minutes after Hayley’s last text, Brian’s phone responded.” She again pointed to the monitor: I’m ok. All clear. Meet me on trail.

  “Then a total of two texts were sent from Brian’s phone to Hayley’s, correct?”

  “Yes.”

  “How much time elapsed between Brian’s first text to Hayley and his second, which would be his last one?”

  “Twenty-one minutes.”

  “Ms. Meyerson, if you would please consult your cell phone records for Jack Averly now.” She pulled out her paperwork, scanned it, then looked up at me. “Can you tell us whether any calls—as opposed to texts—were placed from Brian’s cell phone to Jack Averly’s cell phone that evening from Boney Mountain?”

  “Yes. Within the same minute that last text was sent from Brian’s cell to Hayley’s, a call was placed from Brian’s cell phone to Jack Averly’s cell phone.”

  “How long was that call?”

  “Very short. Less than thirty seconds.”

  I paused and checked through my list of questions, giving the jury a chance to catch the significance of that testimony. “Now, Ms. Meyerson, those records don’t tell you who was actually using those phones, do they?”

  “No. All we know is which phone was used and where it was when the call was made.”

  “But according to your records, Brian’s killer could have used Brian’s phone to send that last text to Hayley, and then the killer could have used Brian’s phone to call Jack Averly—”

  As I’d expected, that one brought Terry to her feet. “Objection! Improper hypothetical, calls for speculation!”

  Judge Osterman shot me a disapproving look. “Sustained. That’s not for this witness to say. Ladies and gentlemen, disregard the question and don’t speculate about what the answer might have been. Anything further, Ms. Knight?”

  “No, thank you, Your Honor.”

  As I sat down, I whispered to Declan, “Think the jury got it?”

  “If they were listening,” he whispered.

  Terry did the cross. She didn’t even bother to move to the lectern.

  “Ms. Meyerson, your records don’t tell you who the killer was, do they?”

  “No.”

  “Thank you very much. And congratulations. Is it your first?”

  The records custodian beamed. “Why, yes, thank you.”

  “I know it’s an exciting time.”

  I knew Terry had no children. Probably never even had a gerbil. And her move had cut right to the chase—very effectively minimizing the emotional impact of the texts. As I helped the witness off
the stand, I noticed a few of the jurors were nodding appreciatively. Terry was gaining fans. Which made this the worst time to have to call my next witness: skinhead führer Dominic Rostoni.

  He rolled in, scanning the courtroom from wall to wall as though he’d just landed on Mars. But he looked better than I’d expected: he wore his usual jeans and flip-flops, but his shirt had sleeves, and his shoulder-length white-blonde hair was neatly combed. He looked almost human, albeit not the kind of human you’d want to marry your sister. Or marry anyone at all if procreation was part of the package.

  I took him through his testimony with as little fanfare as possible. Not just because I wanted to finish with him, but also because there was no need to embellish. The photographs of Brian’s body in the shallow grave did that for me. All Dominic really had to do was point and say, “That’s what I saw.”

  And that’s what he did. On direct. Cross was another matter.

  Again, Terry took the reins. “You’re the leader of a white supremacist group, aren’t you?”

  “That I am.”

  “And your group isn’t fond of liberals, is it?”

  Dominic wrinkled his brow, wondering where this was going. I could’ve objected, but I didn’t want the jury to think I was protecting a skinhead, so I sat back.

  “Not their biggest fans, no.”

  “In fact, your group hates the Hollywood elite, doesn’t it? You think they’re all minority- and fag-loving liberals, don’t you?”

  Dominic shrugged. “They are, aren’t they?”

  This drew a few titters from the audience and some lip-twitching from the jurors. It was the first comic relief in the trial and everyone appreciated it, regardless of who’d provided it and how.

  “And yours isn’t the only group who hates the Hollywood liberals, is it?”

  “S’pose not.”

  “Thank you. Nothing further.”

  “People?” the judge asked. “Redirect?”

  I was about to let it go, but then I decided to try and make a point.

  “Do you even know who this defendant is, Mr. Rostoni?”

  “Sure. He’s a big-time manager. Partner of that director, Antono…something.”

  Ouch. Since when did this cretin know anything about Hollywood business? My bad. I’d violated the old saw: never ask a question to which you don’t know the answer. Keeping a neutral expression, I tried again. “Is that something you found out after this case made the news?”

  “Nah. I knew about them ’cuz that director guy used a coupla my bikes in a film.”

  “So you had no problem doing business with him, liberal or not?”

  “His money’s still green.”

  I’d lucked out.

  “Thank you, Mr. Rostoni. Nothing further.”

  “Defense?” The judge asked. “Any re-cross?”

  “Briefly,” Terry said, rising slowly.

  “Then I take it that some of your employees or ‘club’ members have been to Mr. Powers’s studio?”

  “Probably. Delivering bikes and whatnot.”

  “Ever deliver to Mr. Antonovich’s home?”

  Dominic sniffed and thought a minute. “Not that I know of.”

  “It’s possible though, isn’t it?”

  “Yeah. I guess.”

  “Thank you, Mr. Rostoni.”

  And there it was, Terry’s point: people who had it in for Antonovich and Powers had access and opportunity to hurt them, know things about them—and, of course, set them up. Likely? No. But the beginnings of a basis for “reasonable” doubt? Absolutely.

  The judge looked at me. “People? Anything in light of that?”

  “No, thank you, Your Honor.”

  “We’ll take our afternoon recess,” Judge Osterman said. He turned to the jury. “Folks, you’d be wise to use this time to stretch your legs and get ready for our last session of the day. See you back here in fifteen minutes.”

  67

  I pulled out my checklist for Dorian’s questioning after the jury had filed out.

  “Which DVDs do you want me to load?” Declan asked.

  I told him, and started to review my notes. Bailey leaned in to whisper to me. “You probably want to think about giving him a witness. Just to let him feel like a real boy.”

  I nodded. “But not Dorian—”

  “God no. Just wanted to mention it so you could keep it in mind for later.”

  “You’re right.” I hadn’t wanted to throw him into this snake pit with Terry, but I could let him handle some witnesses whose testimony wouldn’t draw a lot of fire. I jotted down a few names that immediately came to mind.

  Dorian was a strong witness, but she was a tough one. She wouldn’t be pushed one centimeter farther than she intended to go and she never stretched beyond the most restrictive explanation of the physical evidence. If she didn’t see it, she wouldn’t say it, and she had no hesitation pushing back in ways that made the unfortunate lawyer regret the day he was born. No one was immune, as many an unwary prosecutor who’d been dressed down by her in front of a jury had learned the hard way. The judge came out and called for the jury, and Bailey went to bring her in.

  “People?” the judge said. “Your next witness?”

  “The People call Dorian Struck.”

  Dorian strode up to the witness stand. I’d coordinated the photographs and videos to illustrate her testimony with a very bare bones “what did you see, what did you collect” series of questions. We moved through the evidence collection quickly, the only embellishment being her description in stultifyingly boring detail of the careful measures she’d taken to protect each piece of evidence from degradation or contamination. The soil and plant debris on the victims and on Brian’s and Averly’s cars, the fingerprints on the cars, the blood on the trunk of Brian’s car, and the hairs in Averly’s car. I ended her direct examination with the only analysis she’d performed.

  “Did you do a microscopic examination of the hair you recovered from the driver’s and the passenger’s seats in Jack Averly’s car?”

  “Yes.”

  “Now, a microscopic examination cannot tell you for sure that a hair found at a crime scene matches one person to the exclusion of all others, correct?”

  “Correct. It’s not DNA. We speak in terms of consistency, not matches.”

  “Bearing that in mind, did you compare that hair from Averly’s car to any party involved in this case?”

  “I compared the hair to every party in this case who might have contributed that specimen. That includes the victims, their friends and relatives, Mr. Powers, and Mr. Averly.”

  “As a result of the comparisons you conducted, what did you conclude?”

  “First, I found that many of the hairs in the Mustang were consistent with the hair of Jack Averly.”

  “No surprise since that’s his car, right?”

  “Surprising or not, that’s what I found.”

  I noticed that a couple of the jurors’ lips twitched at that response.

  “Were there any hairs in that car that were not consistent with Jack Averly’s?”

  “Yes. There were several on both the driver’s and the passenger’s seats that were not consistent with Mr. Averly’s hair samples. I found many of those hairs to be consistent with the hair samples I myself took from the defendant, Ian Powers.” She went on to describe where in the car Powers’s hairs were found.

  With another criminalist, I would’ve covered the gaps I knew Terry would go for. But knowing Dorian as I did, I left them alone. She could take care of herself and it’d come off better on cross. “Nothing further.” I passed the witness to the defense.

  Terry moved to the lectern. I sat back to watch the show.

  “You found hairs that didn’t match either Jack Averly or Ian Powers, correct?”

  “Yes.”

  “And it’s common to find stray hairs or fibers that can’t be identified as having come from any known party, right?”

  Clever. That question e
nsured that Dorian would give Terry a helpful answer and make Terry look smart.

  “Correct. It’s Locard’s exchange principle: ‘Every contact leaves a trace.’ Meaning that every person takes some trace and leaves some trace of himself—or herself—at any location visited. So the unidentified hair could be from someone at the car wash, or a hitchhiker, or a neighbor.”

  “Or those unidentified hairs could have come from the person who framed Ian Powers?”

  With any other witness I would have objected. But Dorian’s answer would be better than any objection I could make. And this frame-up nonsense was the whole defense theory. I didn’t want the jury to think it worried me.

  Dorian raised an eyebrow. A big warning sign if you knew her. “I have no evidence to show that anyone was framed, Counsel. There were hairs in that car that were not consistent with either Jack Averly’s or your client’s hair. That’s all I can say.”

  Terry’s unfazed expression told me she’d anticipated that answer. She was just continuing to plant the conspiracy seeds. Now she paused and looked down at her notes, as though taking a moment to gather her thoughts. I knew she was simply making sure she had the jury’s attention.

  “You can’t say when any of those hairs got into Averly’s car, can you?”

  “Which hairs, Counsel?”

  “Any of the hairs you collected.”

  “No.”

  “And you can’t say how any of those hairs got into Averly’s car, can you?”

  Dorian frowned. “Well, I can say that as many hairs as I found, it was likely they got there because your client sat in the car.”

  “Fair enough. But what I meant was, for all you know, the hairs that look like Ian’s might have gotten there when Averly gave Ian a ride home one day, right?”

  “True.”

  “And that day might’ve been two years ago, isn’t that true?”

  “Yes.”

  “Now, you said you found no evidence of forced entry into Averly’s car, correct?”

  “That’s correct.”

  “But someone could have broken in without leaving evidence that force was used, right?”

  “Yes, it’s possible.”