Evola is a boyish forty-one years old and goes about six-six. He is handsome as a movie star, his blond hair tinged at the temples with just enough gray to keep him from looking like a child. Back when he had been the prosecuting attorney of the county, I had beaten him badly on a major case, derailing his vast political ambitions.
Judging from the camera in the back of the room, I guessed he was figuring if he played his cards right, maybe this trial would raise his profile enough to get him back in the political game. Our current congressman was rumored to be suffering from end-stage colon cancer, and the job seemed likely to be opening up soon. A good performance here in front of the TV camera . . . who knows, maybe Washington might yet beckon. So the hearing began with a gratuitous civics lesson by the judge designed to impress the many journalists present—and presumably the voters of our district—with Evola’s presidential qualities.
“A probable cause hearing,” Evola said grandly, addressing himself toward the television camera in the back of the room, “is a sort of proving ground, in which the state presents the evidence against a person charged with a crime and attempts to prove that there is indeed probable cause to try the accused on those charges.”
He went on at some length about the impartiality of this court, then pointed to the bronze statue he kept on his bench—the blindfolded goddess with her scales of justice held high—discoursing at length about what it represented and what a marvelous system we Americans had that forced the state to bring out its evidence in the cold, clear, unflinching light of public view. It sounded very pretty and it was all total hooey, every single syllable of it aimed at that live TV feed. Everybody in the room knew that any prosecuting attorney worth ten cents can make probable cause on a ham sandwich. I tried to keep my groans below the level of audibility.
Finally, Evola shut up and let Stash Olesky, our prosecuting attorney, get to work. Stash, like Evola, is blond. But there the resemblance ends. Where Evola exudes a bland, vapid charm, Stash, with his broad cheekbones and almost Asiatic eyes, looks like a Polish aristocrat, preparing to make a doomed charge against some invading army. There’s a note of both courage and sadness in him, as though it pains him slightly as he lops you to pieces with his saber.
Stash’s first move was to put Chantall Denkerberg on the stand. She walked to the stand calmly, wearing the same blue wool suit—half a step away from a nun’s habit—that she had worn when she arrived at the crime scene. Or maybe all her suits looked exactly the same. Her shoulders were squared, jaw firm; she looked ready to do spiritual battle for the cause of right, truth, and justice. I suspected she would be an effective witness, and I was right.
Stash led her through a general explanation of her findings, eventually arriving at the meat of the case.
“Detective, at what point did you begin to form an opinion about the case?”
“Well, you’re always making a mental list of suspects. But what I do is try to evaluate the totality of the evidence and just start matching things up. Basically when I walked into the room to interview Mr. Dane in his home on the morning of the murder, there were a couple of things that seemed peculiar about the crime scene. And what I hoped my interview would do was clarify or explain those peculiarities.
“Specifically, at that time, I had two concerns. My first concern had to do with the broken window I had observed on the second floor of Mr. Dane’s house. I had been advised by Mr. Sloan, Mr. Dane’s attorney, that he understood an assailant had jumped out that window. There was glass scattered in the yard beneath the window indicating it had been struck from the inside and broken outward. That was consistent with someone escaping the house there. Naturally I examined the ground underneath the window with a great deal of care. It was moist soil from the rain the previous day, with only patchy grass thanks to the fact, I guess, that there’s not a lot of sunlight there. At any rate, given the condition of the soil, I would have expected to find footprints under the window. I didn’t find any. I mean not so much as a dent in the soil. So that raised a serious concern in my mind.
“Second, I examined the body of the deceased. Normally when a person is attacked, they will defend themselves. The result of this is that the person sustains injuries on their hands and arms as they attempt to ward off the initial blows. Diana Dane’s body showed no evidence of that sort of injury, which indicated either that she was asleep when she was attacked or that she knew her attacker and was therefore unprepared for the assault.
“So, these two things concerned me a great deal as I went into my interview with Mr. Dane. I was hoping his story would explain these two facts to my satisfaction.”
Stash Olesky nodded. “And did it?”
Chantall Denkerberg glanced briefly at Miles Dane. “No, it did not.”
“Why not?”
“There are two areas that you evaluate when you’re an investigator. One area is the factual circumstances of the case. That’s the old Jack Webb just-the-facts-ma’am side of the case. The other thing you evaluate is the demeanor and actions of the witnesses and parties involved in a crime. And as a trained and experienced investigator it’s my job to take both of those things into consideration. In my view, Mr. Dane came up short on both counts.”
Stash Olesky interrupted. “Let’s stick with the Jack Webb issues first.”
Detective Denkerberg nodded. “Given the facts I had gleaned up to that point, his story just flat-out didn’t make sense. In a nutshell, this is what he said: He told me that he was working in his office; he said he heard a noise that concerned him; he was a little vague and evasive in describing the noise, but he said it made him nervous. That’s a direct quote. ‘It made me nervous.’ So he went upstairs to see what it was. I have to mention at this point, by the way, that his office contains a huge weapons collection. Guns, knives, coshes, swords, you name it, all of them hanging on the wall.
“Now I don’t know about you, but if I’m sitting in a room full of weapons and I hear a spooky noise inside my house, I’m going to grab something. A stick, a gun, a butter knife, something. But Mr. Dane said he didn’t do that. He just went up the stairs unarmed. Okay, fair enough. So, according to his story, when Mr. Dane reached the top of the stairs, he saw a man in the hallway. The man fled into a bedroom at the end of the hall. Mr. Dane heard breaking glass, he gave chase, he arrived in the bedroom, the window was broken, he looked out, he saw the man fleeing across the lawn toward Riverside Boulevard.
“I should note here that my investigation of the top floor of Mr. Dane’s home demonstrated clearly that if somebody had exited from the second floor without going down the stairs, then he would have had to jump out a window. There were no dumbwaiters, no back stairs, no doors, no fire escape.” Chantall Denkerberg shrugged. “Had to be the window. But if somebody jumped, where were the footprints? It didn’t add up.
“That was probably the most important thing. But also the crime itself. Why would a burglar beat somebody to death? There was a missing weapon on the wall of Mr. Dane’s office. A martial arts type object called a bokken. A wooden training sword used by Japanese swordsmen. Mr. Dane suggested a scenario in which a burglar might have snuck it off the wall while Mr. Dane was using the bathroom that was attached to his office, crept upstairs, then at some point surprised Mrs. Dane . . . or she surprised him. Whichever case it was, the intruder got scared—this is still Mr. Dane’s hypothesis—and in order to silence Diana Dane, he beat her to death.
“Again, this just seemed implausible on several levels. Why? Let me run through the reasons.
“First, there are all these expensive weapons on the wall. Fancy shotguns, nice old cowboy pistols, samurai swords, bowie knives. If, indeed, a burglar were going to steal something—well, the bokken seemed to me to be an unlikely weapon to grab. This is a weapon which Mr. Dane himself described as ‘basically a black stick’—again, I’m quoting him. It was neither the most valuable nor the most dangerous weapon on the wall. It wasn’t even especially eye-catching.
&nb
sp; “Second, the victim, Diana Dane, was beaten horribly. Both experience and common sense tell me that a felon who’s committing violence in order to escape detection isn’t going to stay around and beat somebody beyond the point of death. What’s the point? You want to escape? Give them a good smack and then scoot.
“Third, the lack of defensive wounds made the ‘surprised burglar’ scenario seem unlikely. He could only be surprised by somebody who was conscious. A conscious person, attacked by a stranger with a stick, will invariably hold their hands up to ward off the blows. That’s an extremely predictable feature of human nature.” Detective Denkerberg shook her head. “Nope. Mr. Dane’s whole story seemed nonsensical to me. It didn’t match the facts.”
“Okay,” the prosecuting attorney said, “you mentioned the Jack Webb side of the case. What about the human side? Did something bother you there?”
“It sure did. Look, this is a probable cause hearing, not a trial, so this is probably something I can say here that I might not be able to say in front of a jury. When an innocent person finds their spouse beaten to death, they call 911.” She looked at Miles with naked disgust. “That man right there? He called his lawyer.”
“You’re saying,” Stash said, “that based on your many years of experience as an investigator, that’s not the normal behavior of an innocent person.”
“Any fool knows it’s not.” Her eyes flashed. “And once I got there, all I got from Mr. Dane and from his lawyer, Mr. Sloan, was a bunch of evasiveness and ducking and weaving. Again, this is something that’s only suitable for a probable cause hearing, I guess, but Mr. Sloan kept interrupting the interview on one silly pretext or other. Pretending he was choking, things that wouldn’t fool a four-year-old child.” I flushed. “It was obvious he used the opportunity to coach Mr. Dane.”
I stood up. “Objection. Coaching has a narrow legal definition. If I did interrupt the interview—and I’m not saying I did—but if I did, it would have been to apprise Mr. Dane of his rights, as per my duty as an attorney. Not to coach him.”
“Sustained,” Judge Evola said after a pregnant pause. “Choose another word, Detective.”
“Call it what you want. It was obvious Mr. Sloan was not happy with how the interview was going. He could see as well as I could what a pathetic story his client was telling. I wasn’t in the room with him, so I can’t testify as to exactly what he told his client. All I’m saying was that the conduct of Mr. Sloan and Mr. Dane, taken as a whole again, and in the context of my experience as a trained investigator, blah blah blah, all the legal verbiage you need to qualify why I’m making this judgment—what I’m saying is, I smelled a rat.”
“I object, Your Honor,” I said. “This is not testimony as to probable cause, it’s an attempt to tar my client with—”
“Stow it, Mr. Sloan, before you get rolling on one of your fourteen-minute objections. I get the drift of your objection, and I’m ruling against it. You know as well as I do that this is not a trial. Hearsay and hunches and so on are perfectly admissible in this venue.”
Stash moved on quickly. “Did you arrest Mr. Dane at that time, Detective?”
“Certainly not. I don’t arrest on hunches. I waited until we got hard evidence.”
“Tell us about that.”
“Well, first, I got the initial autopsy findings from the medical examiner. Dr. Rey’s report confirmed the results of my initial examination of the body. There were no defensive wounds.”
“And that was enough for an arrest?”
“No it was not. At that point I still didn’t have any sort of motive.”
“Did you come to find any sort of motive?”
“Yes, I obtained Mr. Dane’s financial records. At that time I found that Mr. Dane was in very poor financial shape, with a large amount of debt and dwindling income. He held a fifty-thousand-dollar life insurance policy on his wife. In addition his wife apparently had a small trust fund that Mr. Dane appears to have stood to benefit from on her death. In my view these provided a financial motive.”
Stash Olesky nodded, then reached into a large canvas gym bag and came out with a long black object with the slight but unmistakable curve of a Japanese sword. “Did this play into your decision to arrest Mr. Dane?”
“Yes it did. I’ll identify that object, by the way, as a stick made of ebony wood, carved in the shape of a sword. As I mentioned earlier, martial artists apparently refer to such an item as a bokken. On our first examination of the property we were unable to locate the murder weapon. So we expanded the scope of our search last week, examining a location near the victim’s home—specifically a boat owned by a neighbor of Mr. Dane’s, which was docked a few hundred feet upriver from Mr. Dane’s house. With permission of the owner, I opened a locker on that boat and found the bokken. The bokken was covered with a substance resembling blood.
“I secured the item, placed it in a paper bag, and using customary chain-of-custody procedures I personally transported it to the state crime lab. The state crime lab ran tests on the bokken. The results of those tests were as follows. First, the bokken was indeed covered with blood, and that blood was a DNA match with the blood taken from Diana Dane at her autopsy. Second, several hairs were found on the bokken. Again, DNA tests on the follicles of one of those hairs showed a match to Diana Dane. Third, several latent fingerprints were revealed by cyanoacrylate fuming. According to the state crime lab fingerprint specialist, those fingerprints were a match with those of Mr. Dane.”
Stash Olesky took out another paper bag, set it on his table.
“Last line of questioning, Detective. During your conversation with Mr. Dane in his home on the morning of his wife’s murder, what was he wearing?”
“A robe. A white robe. With white pajamas underneath.”
“And did you see any visible evidence of blood on those clothes?”
“Not a speck.”
“Did you ask him if he had touched his wife after he found her?”
“He indicated he had not.”
“Did he say whether or not he had changed clothes between the time he discovered her and the time you arrived?”
“He indicated he had not.”
“Can you tell us if you found anything besides the bokken in the location where you found what you believe to be the murder weapon.”
“Yes I can. I found a pair of black wool trousers, a pair of black silk socks, a black Turnbull & Asser shirt, and a pair of black boots. They were covered with a substance that appeared to be dried blood. I might add that it’s generally known that Mr. Dane wears black clothes almost exclusively.”
Stash Olesky opened his paper bag, dumped the contents out on the witness stand. “Are these the clothes you found?”
“Yes, they are.”
“So what happened then?”
“I sent the clothes to the state crime lab. DNA tests showed that they were indeed covered with blood and that the blood was Diana Dane’s. At that point in time, I believed that I had probable cause to arrest Mr. Dane. I obtained a warrant and after a bit of a . . . fracas . . . I placed him under arrest.”
Stash Olesky nodded. “Thank you, Detective. I believe that’s all I have for you.”
Judge Evola looked down at me. “Mr. Sloan?”
“Briefly, Detective. These fingerprints, you mentioned that they were latent prints, correct?”
“Yes.”
“There are two types of fingerprints, are there not?” “I’m not sure I follow.”
“A latent fingerprint is left by the grease and amino acids on your fingers. An impression print, on the other hand, is one left in some soft or liquid substance. Blood for instance.”
“That’s correct.”
“Were there any fingerprint impressions on the bokken? Bloody fingerprints, specifically.”
Brief pause. “No. Only latents.”
“Thank you. Let’s turn to these bloody clothes. Any reason to think they might belong to Mr. Dane?”
“Yes.”
“Other than the fact that Mr. Dane’s favorite color is black?”
I waited, but Denkerberg just looked at me with an amused expression on her face. “Pray, Detective, let us in on that reason. Our breath is bated.”
Chantall Denkerberg picked up the pair of black cowboy boots and turned the lip down. “It’s this label. You want me to read it?”
“Sure, why not?”
“ ‘Handmade by Royce Daniels, bootmaker of Harlingen, Texas, for Mr. Miles Dane.’ ”
In theory a defense attorney’s goal in a preliminary hearing is to get his client kicked free for lack of probable cause. But realistically that almost never happens. As a result my real goal at the hearing was to force Stash to reveal as much of his case as possible. The old saw about never asking a question to which you don’t know the answer doesn’t apply to probable cause hearings. From a strictly technical standpoint, I had gained something of value. But the courtroom is about perception as much as it is about legal technique. So when you walk into a setup like that—valuable as it may be tactically—you feel a little silly. Stash Olesky was no Mark Evola, but he was not insensitive to the camera in the back of the room either: He’d set me up and tagged me with a nice combination right there on national TV just to let me know he could do it.
“Mr. Sloan?” It was Judge Evola. “Any more questions?”
I grinned. “I believe I’ve asked more than enough.” There was some laughter from the courtroom. Judge Evola scowled theatrically, and the laughter died.
“Mr. Olesky, call your next witness.”
To my surprise Stash Olesky stood, and said, “The state has no further witnesses.”
It was an intensely ballsy move. Stash tends to be a belt-and-suspenders guy. I’d expected to see a nice little parade of witnesses—the ME, some state crime lab people, a couple more cops . . . But that was it: One witness, and he sat down.
Truth was, he probably had all he needed. With the right judge on the right day with the stars in the right configuration, I probably could have gotten the case dismissed. Problem was, I was the wrong lawyer with the wrong judge. No way in a million years Judge Mark Evola would give me this one. No trial meant no Court TV. No Court TV meant no chance at getting elected to Congress. It was an easy call.
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