Compelling Evidence m-1

by Steve Martini

  Nelson looks at me. “Your witness.”

  For a lawyer, in trial there is nothing more difficult than dealing with a lie by your client to the authorities. I cannot put Talia on the stand to refute this. To do so would be to suborn perjury. I am left to nibble around the edges at the inferences and conclusions drawn by the cops based on this erroneous information.

  “Officer Canard …”

  “Detective,” he says, a little shot for dominance in the eyes of the jury.

  I’m rising, moving toward him in the box.

  “Excuse me. Detective Canard. How many homicide cases have you investigated in your career?”

  “I don’t know, exactly.”

  “A hundred?”

  “More,” he says.

  “Two hundred?”

  “I don’t know.” Canard is wary, not sure of where I am going with this.

  “A good number, I assume, enough cases that you would be considered experienced, a veteran homicide investigator?”

  “Yes,” he says, satisfied that such abstractions are safe ground.

  “So it’s safe to say that you’ve dealt with a good number of cases involving grieving family members, survivors of victims?”

  “Yes.”

  “How many do you think, a hundred such survivors?”

  “I don’t know.” We’re back to numbers and Canard is taking a dive.

  “A guess?” I say.

  “Objection.” Nelson keeps his seat. “The witness has answered the question.”

  “Sustained.”

  “You’ve been heading up homicide’s special section for twelve years, is that correct?”

  “Yes.”

  “I assume that in that twelve-year period you would have had numerous occasions when it would have been necessary for you to bring bad tidings to survivors of crime victims, to tell a wife or child that a husband or father had been killed? Is that true?”

  “The worst part of the job,” he says.

  “I assume that some of these survivors might go into a state of shock on hearing this news?”

  “I suppose,” he says.

  “Do you know, detective, the physical symptoms of shock? For example, do you know whether a family member who is stunned to a state of shock by such horrible news, whether that family member would cry? Whether there would be instant tears at the moment they hear the news?”

  “Objection, Your Honor. The witness is not a physician.”

  “Sustained.”

  I have what I want. I’ve planted the seed with the jury. I shift gears-from speculation to experience.

  “Detective Canard, in all the homicide cases in your long career, is it your experience, is it your testimony, that in delivering news of some tragedy, the death of a close family member, that the survivor always and invariably, without exceptions, breaks down in tears upon hearing this news?”

  One of the axioms of cross-examination-draw the question in absolutes, push it to the brink of the absurd, and over.

  “Not always,” he says.

  “So there have been some people in your experience as a homicide investigator who when told of the death of a loved one, actually did not immediately begin to cry?”

  “That’s true,” he says. Anything else would bring laughter from the jury.

  “And have you always and invariably concluded from this that the survivor who does not instantaneously break down in tears somehow is implicated in the death of the victim? Do you always assume that the person who doesn’t cry is a murderer?”

  “Objection, Your Honor. The defense is misconstruing the testimony of the witness.”

  “I think not, Your Honor. If the absence of instantaneous tears on the part of Talia Potter was not being offered to this jury for the sole and express purpose of implying her guilt in murder, I would like the district attorney to tell us for what purpose it was offered.”

  Nelson is motioning with his hands, making faces, buying time to think.

  “To show the defendant’s state of mind,” he says.

  “Exactly,” I say, “to imply by any means, fair or foul, that she had a guilty state of mind.”

  “It’s a fair question. The witness will answer it,” says Acosta.

  Canard can’t remember the question.

  “I’ll restate it,” I tell him. “Do you always assume that the person who doesn’t cry is a murderer?”

  “No,” he says.

  I look over at Nelson. I can tell he is beginning to wonder if he has not picked up the dirty end of this thing he has tried to bludgeon us with.

  “So then in fact there is no theorem of police science, no reliable formula of law enforcement, that allows you to take a cup and measure the production of a person’s tear ducts in order to determine whether they are responsible for the death of their loved one?”

  “Your Honor, I must object.” Nelson’s busy trying to break my rhythm.

  Canard is a bundle of resentment sitting in the box.

  Before the judge can rule on Nelson’s objection, Canard responds.

  “No,” his teeth clenched.

  Acosta lets the objection go by, no grounds being stated.

  “So it is entirely possible, based on your experience as a seasoned homicide investigator, that the reason my client Talia Potter did not immediately break down in tears upon hearing the news of her husband’s death had absolutely nothing to do with any theory that she might be implicated in his death? Isn’t that correct?”

  “I suppose,” he says.

  “That it could well have been due to other factors, the shock that this news inflicted on her system, the variations in individual emotional makeup, all those things that, not being a physician, you wouldn’t know about?”

  I look at Nelson, who’s trying to put a face on it, nonchalant, sprawled in his chair, playing with his pencil.

  “I don’t know,” says Canard. “I suppose.”

  “Fine,” I say. I allow a breather, a little punctuation to let the jury know I’m moving on to other subjects, that I consider this campaign finished.

  Now I turn on the charm, easing back, signaling Canard that maybe the worst is over.

  I ease into the next phase and get a quick admission. Canard’s tired of being beaten on. He concedes that it could take considerably longer than two hours to travel between Capitol City and Vacaville and back again if any portion of the trip was during the rush hour. In doing so he gives up any plausible argument that this would have been possible given the time of death in this case, about seven in the evening. Nelson scratches another point from his score card.

  I ask Canard whether in the inventory of the personal effects found on the victim the police found his keys-to his car, the office, and his house. He confirms that these were on the body when it was discovered in the office.

  “Detective Canard, you testified earlier that during the course of your investigation you examined the defendant’s gasoline credit card statement as a means of verifying her alibi, her trip to Vacaville?”

  “That’s correct.”

  “You also testified that the distance between Capitol City and the property which the defendant toured in Vacaville was approximately fifty miles, making for a rough hundred-mile round-trip. Is that correct?”

  “Yes.”

  “Do you know what kind of vehicle the defendant was driving on the day in question, the day her husband died?”

  “I believe it was a Mercedes, the small two-door sports coup. Five hundred SL,” he says.

  “During the course of your investigation did you happen to check the capacity of the fuel tank on that vehicle?”

  “No,” he says.

  “Would it surprise you to learn that the model will hold twenty-one point one gallons of fuel, that it gets seventeen miles to the gallon on the highway, that it has a range of over three hundred fifty miles, that it could have traveled between Capitol City and Vacaville more than seven times without refueling?”

  “If you s
ay so,” he says.

  “But you didn’t check these facts?”

  “No,” he says.

  “So why are you surprised that you didn’t find gasoline credit card slips for the trip in question?”

  “I didn’t say I was surprised, only that we looked.”

  “I see,” I tell him, “checking out a real long shot, were you?”

  He doesn’t answer this. I don’t expect him to. Some of the jurors are smiling in the box.

  Like a trip to the dentist, this is not for Canard to enjoy.

  I ask him how many days elapsed before they dusted the lockbox for Talia’s prints. He doesn’t know, but concedes it was several.

  I ask him if he has any idea how many real estate agents might have fingered that box in the intervening period. Again he has no idea.

  “Did you bother to ask the defendant whether she stopped to eat during this trip, either coming or going?”

  “No,” he says.

  “I see. It was easier to come here and tell this jury that you tried to verify the defendant’s alibi but could not, is that it, Detective Canard?”

  “No,” he says. “We did an up-front job. We tried to verify it and couldn’t.”

  “But you never asked the defendant whether she stopped to eat, maybe paid cash for a meal, or maybe she wasn’t hungry, maybe she wanted to wait until she got home to have a late dinner with her husband? You never asked her, did you? You were too busy assuming that because she didn’t cry on command she was guilty of murder.”

  “No,” he says.

  “Objection, Your Honor. Counsel’s badgering the witness.”

  Canard’s stopped trying to ward off the blows, to cover up, now he just wants out. The myopia of their investigation is starting to show, the price a prosecutor pays when under pressure to nail someone in a notorious case. It is my first turn playing spin doctor, beating on the theme of the state’s unseeing obsession with Talia as the only possible perpetrator. And from the expressions I can see on the jurors’ faces, some of them are listening to the music.

  CHAPTER 30

  Day three of the state’s case and I glimpse a wicked scene. Eli Walker, the dean of yellow journalism, and Jimmy Lama are conversing in the corridor outside the courtroom. Lama is puffing on a cigarette and leaning against the wall, one hand in his pocket. What is more, Walker actually appears sober. This is not strange, I think. Walker and Lama running together, the corrupted reporter and bad cop, each in his own way an outcast of his respective cult.

  Lama has not said a word or approached me since his tirade on the steps outside. His deadline has passed, his ultimatum so much bluster. I have made a diligent effort to find Hawley, more to blunt any criticism the court might level at me than to humor Lama, but the lady knows how to lose herself. My guess is she has picked up sticks and moved to another city, perhaps another state.

  Harry arrives with Talia. Lately he has been chaperoning her from the office to court while I run diversion by coming in from another door. It seems that the news moguls ask fewer questions, get less pushy when Talia and I are not together.

  After the first week they backed away from Harry. Knees and elbows, Harry has his way with the press. Some of the cameramen are beginning to feel as if they’ve been up against the boards with Magic Johnson.

  We bull our way into the courtroom, leaving the furor outside the door.

  Today, Nelson puts Willie Hampton up. The young janitor is all spiffy, black shirt and white tie, pleated pants, enough material for a hot air balloon, and Italian basket-weave loafers, black sides and white tops, like spats. He looks ready to join Michael Jackson on stage.

  This time Hampton is more polished. There is no stumbling, no overt signals from Nelson as to what is expected. It seems Hampton has memorized his script well.

  He tells the jury that he found the body and calmly retreated to the reception station, where he called police. The picture he paints is one of composed professionalism, what every building manager dreams of in a four-dollar-and-thirty-cent-an-hour janitor.

  Without leading, Nelson extracts from him the only critical element, that Hampton heard the report of the shotgun in Ben’s office at precisely eight-twenty-five P.M., a full hour and twenty minutes after the time of death the medical examiner will determine.

  With that Hampton has had his fifteen minutes of fame. Nelson turns him over to me, and I waive off. The cardinal rule of cross-examination. Don’t get up and talk unless there’s a reason. Hampton has done us no harm. No crime, no foul. I let him go, and he seems relieved.

  Nelson calls Mordecai Johnson, the evidence technician, to talk about the blood in the elevator and the single strand of hair that looks like Talia’s, caught in the locking mechanism of the shotgun.

  “This blood in the elevator,” says Nelson, “from this you can tell that the body was moving or being moved?”

  “Yes,” he says. “More likely the body was being moved. The victim would appear to have already been dead.”

  “You can tell all this from a single drop of blood?”

  “Yes. From the slight quantity of blood available for dripping, we believe that the heart had already stopped. This blood does not appear to have come from an active bleeding site.”

  Johnson asks if he can use a chart, and the bailiff pulls a piece of butcher paper off an easel that has been propped near the witness box. Pointer in hand, Johnson does a little play-by-play for the jury.

  The chart is a picture of a mammoth black spot against a stark white background, a magnified drop of blood in black and white, a hideous Rorschach. Around the edges on one side of the spot are needlelike comets radiating from the drop. Johnson explains to the jury that the edge characteristics of the drop, the little comets, will indicate the direction of travel whenever free-falling blood hits a smooth horizontal surface. From his examination of the blood in the service elevator, Johnson can conclude that Ben was already dead, and that he was being carried out from the elevator as the drop fell. A few friendly questions from Nelson, and Johnson puts down the pointer and returns to the box.

  They’ve changed their tune on the sample of hair since the preliminary hearing. Nelson has been busy trying to shore up this critical piece of evidence, one of the few items linking Talia directly to the crime scene. What he doesn’t know is that we are no longer singing from the same sheet of music on this one either.

  “Officer Johnson, can you tell the jury how you discovered this strand of hair?”

  “During the laboratory examination of the shotgun found at the scene, we performed a routine examination for fibers and hair on the weapon.”

  “And what did you find?”

  “A single strand of human hair lodged in the breech of the shotgun.”

  “Did you have an opportunity to perform any kind of a comparison of that hair with samples taken from the defendant, Talia Potter?”

  “Yes, we took several exemplars of hair from the defendant and performed microscopic comparisons.”

  “And what were the results of those comparisons?”

  “The strand of hair found lodged in the shotgun matched in all respects the microscopic characteristics of the exemplars taken from the defendant, Talia Potter.”

  There are dismal looks in the jury box with this news, several of the jurors glancing at Talia with certain disappointment. Robert Rath, my alpha factor, is sitting in the back row, dispassionate, studying the witness.

  “Officer Johnson, can you explain to the jury exactly how this strand of hair was lodged in the shotgun?”

  Harry and I have been waiting for this one. Nelson is working to get around our theory that there is nothing unusual about a strand of hair from the defendant being found on an item which was normally stored in her home.

  Johnson starts off on a lecture about firearms. I object on grounds that the witness has not been qualified as an expert in this area. Nelson meets this with a litany of courses taken and credentials earned by the detective, including a
stint at Quantico, at the FBI Academy, where Johnson weathered a course in ballistics and firearms. This is good enough for Acosta.

  “If we might continue, then,” says Nelson.

  Like a broken record Johnson picks up where he left off. “Most breech-opening long guns, including the shotgun found at the scene, have what is called a boxlock, the mechanism that seals the breech when the weapon is ready for firing. There is a small metal strap on the barrel end of the breech that fits tightly into a groove in the stock end of the weapon. When the two pieces are locked in position, the shotgun is ready to be fired. The strand of hair was found in the groove, held by this strap of metal, protruding down into the breech itself.”

  Nelson has a microscopic photograph of this, taken with a macro lens before they lifted the hair from the gun. He has Johnson identify this, and it is marked for later introduction.

  “In your professional opinion, Officer Johnson, given your experience and training in firearms, is it possible that this strand of hair could have casually found its way into that mechanism, say, when the gun was on a rack, or in a gun case in the victim’s home?”

  “No.” Johnson is adamant, instantaneous on this. “For that strand to have become lodged in the firearm as it was, the breech of the weapon would have to be opened, the hair somehow lodged in it, and the breech closed again.”

  “As if the gun were being loaded and fired, is that correct?”

  “That’s correct.”

  The jury is giving Talia harder looks. Rath is still impassive on the top row.

  Nelson considers for a moment, exploring every possible avenue of escape.

  “Officer Johnson, assuming for purposes of discussion that such a strand of hair had become innocently lodged in this weapon sometime prior to the day that Mr. Potter was killed, is it not likely that when the weapon was opened in order to load it before it was fired in Mr. Potter’s office, the strand of hair would have fallen out and therefore not been found on the weapon when you examined the firearm later?”