The Best Defense

by A. W. Gray

  Sharon would say this for Vernon Tupelow, the M.E. kept his cool. He employed the standard Professional Witness’s ten seconds of hesitation—in order to give the prosecution time to object—before answering.

  “In that proximity, yes,” Tupelow said. “Actually, it was positioned closer to the headboard.”

  Trigg seemed momentarily confused. The tip of the pointer was touching the foot of the bed. After five more beats of PPP, Trigg indicated an area closer to the top of the chart. “Is that better?” he asked.

  “More like it.” Tupelow brushed the sleeve of his clean white lab coat.

  “I see. But the pools of blood you mentioned earlier, Doctor”—Trigg moved the pointer to the entry hall, the corridor running just inside the door and alongside the bathroom—“where your lab techs took their swatches. Those were here, weren’t they?”

  “Yes.”

  Trigg’s chin lifted a fraction, a gesture which said clearly, aha! “But if the blood was here and the body was”-he jabbed the pointer at the bed once again—“here, how can you be certain the blood was the victim’s?”

  “We’ve run certain tests,” Tupelow said, “which would indicate certain things to us. There are other tests for which we don’t have the results as yet, having to do with mixtures.”

  Trigg assumed a suspicious tone. “Mixtures?”

  “Yes. As in blood from two different people.”

  “Oh?” Trigg was incredulous. “Have you established that at the time of death, there was more than one person in the room?”

  “We’re only surmising, of course. Assuming the victim didn’t inflict fourteen stab wounds on his own person and then shoot himself.” Tupelow blinked in boredom.

  Sharon cringed, and considered resigning from the Dream Team on the spot. If it hadn’t have been for Darla, in fact, she would have. She pictured Russell Black watching this horror show back in Dallas, itching to hurl a paperweight at his TV set. Preston Trigg strolled over to the defense table, poured a glass of water and had a sip, and winked at Sharon before returning to the witness. She looked away, wondering how it would look to the viewing audience if she tackled her co-counsel and then tied him to his chair.

  “So to summarize, Doctor,” Trigg said, “the body was in the bed, wasn’t it?”

  “That’s where it was when I came on the scene.”

  “And the blood was in the foyer?” Trigg rammed his hands into his back pockets and scowled at the camera.

  Milton Breyer seized his cue and leaped to his feet. “Objection. Asked and answered.”

  Judge Rudin proved once again that he could mug for the camera with the best of ‘em. He seemed deep in thought before saying, “Sustained.”

  Trigg favored the jurist with an amused smirk. “Interesting,” he said. Then, to the camera, he said, “Interesting,” whirled to face the bench and said, “No further questions,” and then marched to the table and sat down.

  What’s so freakinginteresting? Sharon thought. After stumbling around half the morning, Trigg had given up just when he was at long last making a point. This was the most ridiculous courtroom exhibition she’d ever witnessed. That anyone had ever witnessed, and the fact that Preston Trigg, Milton Breyer, and Judge Rudin all looked pleased with themselves made the whole thing even more unbelievable. Through two solid hours of questioning, Trigg had elicited exactly zero from Vernon Tupelow. No new information, nothing to indicate that the M.E. was somehow in cahoots with the prosecution to frame the defendant, not one single thing beneficial to his client. Zilch. Nada. Sharon leaned back and glanced at Kathleen Fratemo. She had a puzzled look, and her cheeks showed tinges of red. Trigg’s confused her and Milt’s embarrassed her, Sharon thought.

  Judge Rudin looked at the prosecution table. “Redirect, Mr. Breyer?”

  Sharon thought, Oh, yeah, Milt, do it. Unless Breyer had more questions, Tupelow’s appearance on the stand was over and the prosecution would have successfully dodged the bullet courtesy of Preston Trigg. Sharon grabbed her legal pad and went over a couple of notes she’d made. Breyer’s ego simply had to get the best of him. No way could he let an opportunity to strut in front of the camera pass him by. If Kathleen Fraterno tried to stop him, Breyer was apt to shove her aside. Come on, Milt, Sharon thought, get up there and…

  Breyer leaned over to confer with Stan Green, then whispered something in Kathleen Fraterno’s ear. She firmly shook her head. Breyer stood and said grandly, “Just a couple of things, Your Honor.” Fraterno picked up a pencil and broke it in two.

  Sharon experienced a surge of adrenaline.

  “In summary, Mr. Tupelow,” Breyer said, “did you determine the cause of death?”

  Tupelow looked thoughtful. He’s trying to remember if he packed his bathing suit, Sharon thought, and would like to spend his remaining time Out West seated under a beach umbrella. Tupelow finally said, “That would be difficult if not impossible. The knife wounds would have eventually been fatal. So would the bullet wound. Either injury would have killed the victim.”

  “The bullet fragments found in the room,” Breyer said, “did come from a .38-caliber weapon, didn’t they?”

  Sharon could have objected—and had a panicked moment when she feared that Preston Trigg would jump up and do so—because it was the lab techs and not the medical examiner who had collected the shell frags, but Breyer had asked just the question she’d been hoping for. She held her breath as Tupelow said with little certainty, “That they did.”

  “Thank you,” Breyer said, then assumed a knowing look and said, “Thank you,” a little more forcefully, and finally turned to the bench and said, “No further questions,” and sat down.

  Typical Milton Breyer, Sharon thought gleefully, he’s once more jabbed his rapier forcefully at empty air. She picked up her notes; pointless as Breyer’s redirect had been, the defense now had a chance to correct its own blundering. Which was the direction in which this entire hearing had gone, a blunder here, a blunder there. Judge Rudin looked a bit confused, then asked the defense, “Anything else?”

  Preston Trigg turned to Sharon with a questioning look. No way, buster, she thought, your time in the spotlight is over but good. She whispered, “Let me,” and was on her feet before Trigg could stop her. “Yes, Your Honor, we have a few things,” Sharon said loudly. She addressed the witness. “Mr. Tupelow, you testified that you had the results of at least some of the blood tests, didn’t you?”

  There was the slightest wavering of Tupelow’s gaze, and Sharon wondered if the M.E. knew where she was headed. Too late if he does, Sharon thought, the cat is already out of the bag. Tupelow said, “Yeah. Not all of the results, but some.”

  Sharon reexamined her notes. “Comparing the samples with samples from the victim?”

  “Yes.”

  “And what were the results of the tests that you do have, sir?”

  Tupelow’s tone was a bit resigned. “At least some of the blood in the foyer came from the victim.”

  “Well, wouldn’t that indicate,” Sharon asked, “that David Spencer was stabbed in the foyer?” Tupelow shrugged. “It would to me.”

  Sharon quickened her pace, more excited now.

  “The crime-scene photos you testified to, didn’t those photos show blood and brain matter spattered on the sheets and pillowcases behind the victim’s head?”

  “There was blood on the bed, yes. Blood all over the room.”

  “But specifically on the bed, Doctor. Wouldn’t that indicate to you that the victim was stabbed in the foyer, then carried over and laid in the bed, where he was shot?”

  “I hadn’t really speculated on that,” Tupelow said.

  Sharon’s wide-eyed look said incredulously, Well, why haven’t you? She asked, “Well, barring that scenario, Doctor, wouldn’t the killer have to shoot the victim in the bed, drag him to the foyer and then stab him numerous times
, and then haul him back to the bed? A lot of work for our murderer, what?”

  Fratemo came to her feet, apparently having had it up to here with waiting for Milton Breyer to do something sensible. “Objection, Your Honor,” she said. “The witness has already stated that he hasn’t speculated.”

  Sharon glanced at Kathleen with respect. She hadn’t expected Fratemo to take the reins so quickly, and adjusted her thinking along more cautious lines.

  “All right,” Sharon said before the judge could rule on the objection, “I’ll withdraw the question. But whichever happened first, the shooting or the stabbing, the victim would have to be moved, wouldn’t he?”

  Tupelow’s mouth twitched. “It would appear so. Unless he moved himself.”

  Sharon raised her eyebrows and tilted her head.

  “After he was shot, Doctor? Or after he was stabbed numerous times?”

  Tupelow folded his arms and adjusted his position in the chair.

  Sharon took a long and pointed look at Darla Cowan, seated with her hands folded and, at the moment, appearing much smaller than she was. She returned her attention to the witness. “Dr. Tupelow, how much did David Spencer weigh?”

  Tupelow looked at the prosecution for help, then, receiving none, spread his hands. “I’d have to examine my report.”

  “I’ve already done that, Doctor,” Sharon said. “Would it surprise you to learn that your autopsy report listed the victim’s weight at one hundred and eighty-seven pounds?”

  Tupelow sagged a bit. “I don’t guess it would.”

  “I see.” Sharon looked at her notes. “Miss Cowan’s last trip to the doctor, she weighed—”

  “Objection!” Fratemo stood with flared nostrils. “Is counsel for the defense testifying here? If the court please…”

  “Sustained.” Rudin lifted a warning finger. “No more of that.”

  “Yes, Your Honor,” Sharon said, but took a final long look at Darla. She then examined her notes, said for effect, “No further…” Then, as Tupelow made as if to rise and depart the witness stand, Sharon said, “Oh. One more thing, Doctor.”

  Tupelow relaxed and offered a stoic blink.

  “Under the assumption,” Sharon said, “that the stabbing in the foyer occurred first, Doctor, and, as you testified, the knife wounds would have been fatal on their own, can you think of any reason why the killer would then shoot the victim in the head?”

  “Objection.” Fratemo was on her feet again. “Your Honor, this witness can’t possibly know—”

  “Is it reasonable,” Sharon cut in, “to think that the killer possibly wanted those .38 caliber shells to be found near the victim?”

  There were five seconds of pin-drop silence. Fratemo assumed an indignant posture. “Your … Honor …”

  Rudin looked back and forth from Fratemo to Sharon like a spectator at a tennis match.

  Sharon broke the silence with a grin. “Withdrawn. I’m out of line, Your Honor. I apologize to the court.” She turned her smile on the witness. “Nothing else, Doctor. Thank you.” She sat, put her arm around Darla, and gave the actress an affectionate hug.

  Tupelow left the stand, looking slightly relieved, as Breyer rummaged through a pile of paper. Fratemo having done her best to save his ass, old Milt was going on the attack once more. Sharon fought to stay alert. So out-and-out ridiculous was this hearing that it was difficult to sift out what was relevant to the case from the fluff for the benefit of the viewing audience. Darla looked totally confused as Breyer said loudly, “Call Steven Moretta, Your Honor.”

  At last, Sharon thought. She opened her briefcase and dug out her motion to suppress the weapon along with the stack of Xeroxes she’d made at the library. Preston Trigg glanced sideways at the stapled sheaf of paper and showed a questioning look. “It’s called research, Pres,” Sharon whispered. Visible in the corner of her eye, Kathleen Fratemo bent sideways and, from under her chair, removed a box which she set in front of her at the prosecution table. The box, of course, held the pistol. Here we go, Sharon thought. Fratemo looked inside the box, nodded to Breyer, then closed the lid.

  Agent Moretta had overhauled his image since he’d served the search warrant at the beach house. He’d traded his Men-in-Black costume for a dove gray business suit, and exhibited a mild but earnest expression as he raised his hand for swearing in. He ascended to the stand and, at Breyer’s prompting, told the nation that his full name was Steven Thomas Moretta, that he’d been with the FBI for fifteen years, and that his current assignment was to the L.A. branch’s sub-office in Malibu. Moretta answered the questions in a businesslike tenor, with no visible emotion, and acted as if the TV camera wasn’t even there. He knows it’s there, Sharon thought, since the FBI courts the lime­ light regularly, but he’s an old hand at playing to juries and viewing audiences. Compared to this guy, Milt Breyer and the judge were like a junior high acting class in competition against Laurence Olivier.

  “And in this capacity, Agent,” Breyer went on, “did you have occasion to travel to…” Breyer retreated to the table and looked at his notes, then returned to the podium. “147 Rocky View Drive in Malibu? That would be this past Tuesday, two evenings ago.” Sharon blinked. Now that Darla’s address had gone out over the networks, the beach house could expect gawkers from here to hell and gone.

  “I did,” Moretta said. “For what purpose?”

  “Execution of a search warrant.”

  First mention of the warrant was all that Sharon had been waiting for. She drew a breath and stood. “Approach?”

  Rudin nodded, lifted his hands, and gave a come­hither gesture to both sides. Fratemo went up along with Milton Breyer, while Harold Cuellar remained at the prosecution table. Preston Trigg started to rise.

  Sharon restrained him with a hand on his shoulder and shook her head. Trigg slumped dejectedly. Sharon gave Darla a smile, then carried her motion and briefs toward the bench. In the ten strides or so before she reached the conference, she had some planning to do.

  Accomplishing her purpose was going to require some ham-and-egging on Sharon’s part—a role for which she felt eminently more qualified than Milton Breyer—because suppression of the murder weapon simply wasn’t going to be enough to bolster Darla’s cause. Breyer had already popped off to the media—resulting in a front-page story in the morning L.A. Times—that the FBI had found the murder weapon hidden under Darla’s kitchen sink, thus injecting a dose of poison into the jury pool, and it was up to Sharon Hays to administer an antidote. In addition to arguing suppression, she had to somehow bring out in front of the camera that Darla had never seen the gun before. She reached the bench, edged her way in between Breyer and Kathleen Fratemo, and said softly to the judge, “We’re going to object to any testimony regarding the search warrant, Your Honor, or any reference to evidence found at Miss Cowan’s residence.” She plopped her motion and brief up in front of Rudin, and passed the state’s copy to Kathleen Fraterno. Fraterno looked over the papers in her hand, and her look said she’d been expecting them.

  Rudin’s gape of surprise—in the direction of the camera, of course—was a bit much to swallow, because Sharon had discussed the suppression question at length in yesterday’s bench conference. But gape Rudin did, allowing a full five seconds for the viewing audience to understand that they were seeing a major development in the case. Then the judge leaned back, held the motion at eye level while he scanned the issues, then said in a stage whisper, “An interesting development here.”

  Interesting, eh? Sharon thought. She wondered if the judge had taken his cue from Preston Trigg. She said evenly, “We have a twofold argument, Judge. One, the search came under a federal warrant, and while we acknowledge that federal discovery is a thousand yards broader than at the state level, it’s our position that the feds conducted a scam. That they had no real intent to charge Miss Cowan with a federal crime, that they conducted the sea
rch as disguised agents of the state of Texas, and that therefore the search warrant falls under state discovery rules.” She was conscious of Agent Moretta’s gaze on her from the witness stand. The FBI man showed a hint of amusement. Sharon licked her lips and went on.

  “And further,” she said, “even if the FBI investigation was a valid attempt to implicate Miss Cowan in a federal offense of some kind, we’re going to argue that the warrant is invalid even under federal discovery. The warrant on its face is totally groundless, Judge. Agent Moretta, the witness here, has signed an affidavit of probable cause, attesting to facts of which he can’t possibly be personally aware. And even if he’d had personal knowledge, the facts themselves do not constitute probable cause to search the defendant’s residence. We’ll stipulate that Miss Cowan flew interstate on the night of the murder, but so what? There is nothing in the affidavit which hints of possible evidence to be found at her home, or anything which hints of a purpose for the search.” She offered a smile. “Under the same theory Agent Moretta offers in his affidavit, the FBI could ransack my home, Your Honor, or yours. We’re looking at unreasonable search and seizure, pure and simple.”

  Rudin had been thumbing madly through the motion and brief as Sharon spoke. He now looked up. “Even if you’re right, Miss Hays, I don’t think I could rule on a federal question. That would require a trip into federal district court, wouldn’t it?”

  The judge had just brought up the first proper legal issue that Sharon had heard in this entire procedure. She nodded toward the papers in Rudin’s hand. “I researched that point, Your Honor. DeBruzzo v. New York, a federal warrant for a phone tap with the tapes used in a state bookmaking prosecution. The court can rule on a federal question at the state level. If the court’s ruling goes against them, Mr. Breyer and Miss Fratemo have an avenue of appeal directly into federal district court, but…” Sharon closed her mouth; aware of her tendency to let her enthusiasm get the best of her. She gestured toward her motion. “It’s in there, Judge. The high court’s decision speaks for itself.” She was conscious of a rustling noise on her right, and looked in that direction.