“He’s lived here all his life,” the judge said. “What’s he need familiarization for?”
I smiled. “The way a cop looks at a community is different from what the average numb civilian sees, sir.”
Hobart nodded. He shuffled some of the paperwork. “I see his name on several of these documents and depositions.”
“Yes.”
“Turning into quite the bull dog, isn’t he?”
“He’s a motivated young man, that’s for sure.”
“Look,” Hobart said, “I just wanted to say this. The Grand Jury needs to indict these three boneheads, although we don’t know what charges the DA is going to settle for yet. But the success of that jury is going to depend a great deal on the testimony of one Robert Torrez. That boy has zero experience in front of a Grand Jury, he seems taciturn as hell, and I don’t know what sort of temper he has. No doubt Schroeder will handle him with kid gloves, but coach him a little, will you? Hell, you’ve been around since the Ice Age. You know it isn’t what the DA asks that matters during the proceedings…it’s what the jurors ask. So prepare this kid, all right?”
“I’ll do my best, Your Honor.”
“It’s too easy for them to think that the young man is just out to settle accounts.”
Chapter Twenty-eight
District Attorney Daniel Schroeder loved Grand Juries. He loved being in the spotlight. It was just him, the jurors, the stenographer, and whichever witness Schroeder decided to call. No judge, no audience, no press. The three targets—Schroeder was going after all of them—had gotten the life-changing letter that informed them that they were the targets of a Grand Jury investigation. The letter explained in no uncertain terms that the Grand Jury was not charged with determining guilt or innocence—that was the turf of the petit jury trial if an indictment was issued.
It had been my experience that most folks didn’t understand that…and Stuart Torkelson was one of them. During the weeks before the proceedings, he pestered me a dozen times on behalf of his brother. “What are they doing? What’s Schroeder doing? Should I talk with him?” And on and on. I would patiently explain to him that the Grand Jury’s only duty was to determine if enough evidence existed for a trial. That was all. And no—he couldn’t sit in and listen, much less participate as a character witness.
The proceedings were closed—secret. The theory was that if a no bill was returned—not enough evidence for a trial—the various potentially damaging testimonies would not be bandied about the community, ruining a person’s reputation. I had never known that to work, though. The community grapevine is powerfully invasive.
And all of that is if the target of the Grand Jury kept his or her mouth shut. But by motor-mouthing at the wrong time to the wrong people, the target has the latitude to do as much damage as he wishes to family and reputation. Lawyers would tell their clients not to appear before the jury, who had an absolute talent for asking unexpected or embarrassing questions to which the answers might be incriminating.
“But I have to tell that jury what really happened,” the client might blurt, forgetting that his version of what really happened was already recorded in black and white in depositions with the police. Like a kid with his grubby paw caught in the cookie jar, some clients really believed that all they had to say was, “Yeah, I was lying then, but honest…I’m telling the truth now!”
Clifton Bailey demanded that he be given a chance to appear before the Grand Jury. His lawyer, Susan Eskildsen, tried to talk him out of it. Posadas Register publisher and editor Leo Bailey, who knew exactly how Grand Juries worked, tried to talk his brother out of it. I tried. Even Sheriff Salcido tried. His ex-wife might have tried. Mr. Bailey was absolutely convinced that his golden, impassioned tongue would educate that jury, would sway the jury, would make them see the light. It would be as easy as selling hardware.
What Mr. Bailey really didn’t seem to understand was that seventeen-year-old Darlene Spencer was dead, killed by a forty-four bullet in the brain fired by his gun. He was going to have a hard time mining pity from the jurors.
Dan Schroeder, who was going after a whole battery of counts, especially wanted an indictment on charges of reckless abuse of a child resulting in death, and contributing to the delinquency of a child. With that in mind, he didn’t want to risk Deputy Robert Torrez testifying first. He had a hundred examples of how I might behave in court—and none for Torrez.
The small courtroom in the county building was air-conditioned to arctic standards that late July day, which was good considering that the outside temperature touched 102 degrees by ten a.m. Schroeder had spent a small fortune on photographic blowups. I’d known prosecutors who’d blown what I thought were easy cases by simply doing a lazy preparation—missing simple things, like explaining the crime scene crystal clearly for the jurors.
This time, the whole scenario was there in fourteen-by-twenty color prints—windmill, cattle drinker, a pathetically small, covered body. Supported by an easel built out of two-by-four lumber was the eight-foot sail removed from Herb Torrance’s windmill.
I shifted in the old wooden witness chair, trying to find a soft spot. The clock ticked to 11:05—it had taken Schroeder more than an hour to seat, orient, and instruct the jury, seven women and five men. I knew all of them. Each had a notebook and pencil, and watched Schroeder expectantly. The DA pulled off his wire-rimmed glasses, rubbed his eyes, and then resettled.
“Would you state your name for the jury, please.”
“William K. Gastner.”
“And your occupation?”
“Undersheriff of Posadas County.”
“Undersheriff. That means you’re second in command over there?”
“Yes.”
He plodded through my background, education, and experience. “Sheriff,” and he made a show of organizing his legal pad, “tell us about the night of June fourth, nineteen eighty-six.”
“The Sheriff’s Department, with the assistance of the New Mexico State Police, investigated a fatal motor vehicle crash at the intersection of Grande Avenue and the Interstate exchange in Posadas.”
Schroeder lifted a large, beautifully rendered diagram of the intersection in question and touched the bright dot from his laser pointer to the point where the exit ramp left the interstate. “Would you explain what happened?”
I did, and as I narrated, he moved the little dot down the ramp, squiggled it some to indicate the rollover, and pegged it against the interstate’s center support.
“And passengers in the vehicle were?”
I listed the names and ages, and saw a couple of the jurors grimace.
“Were any of the occupants ejected?”
“Yes. Orlando Torrez was.”
“All killed instantly?”
“Probably. There is some evidence that Orlando Torrez might have died some moments before the crash.”
He looked at the jurors. “We’ll be talking with Dr. Perrone about that,” he said. He led me through the incident, one skid mark at a time, and worked his way back to the collision with the sideswiped Cadillac.
“Was it your professional opinion that the Suburban was traveling at a high rate of speed?”
“Yes.”
“The driver of the Cadillac says in his deposition that his cruise control was set at eighty miles an hour. Yet he says the Suburban blew right by him. Is that your understanding?”
“Yes.”
He paused to consider his next question carefully. He had left out the testimony of the Holmeses, whose carefully crafted deposition could offer only shaky testimony about the possible activities inside the Suburban when it charged past them.
“Mr. Gastner, were you able to determine where the youngsters had been before the crash?”
“Most likely the general area of Bender’s Canyon, east of County Road 14.” Even as I spoke, Schroeder lifted
another large map and put it in place. Again the excited little laser dot flashed out.
“Were you able to ascertain what they might have been doing there?”
“Partying, I suppose. Or thinking about it.” OBJECTION! If this were a petit jury trial, with both defense and prosecutors, the objections would be flying thick and fast. But a Grand Jury doesn’t waste its time trying to establish “beyond a reasonable doubt.” Schroeder was merely trying to eventually illustrate for jurors that there was cause—enough evidence, however slim—to go to a full trial.
The DA looked puzzled, and placed yet a third map on the easel, this one showing the entire western side of the county. “Did anyone tell you that the teens had been partying in Bender’s Canyon?”
“No. We were told that they might have been in Lordsburg at a 4-H event. We determined that was not the case.”
“Just something they told their parents, maybe?”
“That could be.”
“What led you there, then? To the canyon? What led you to believe that they had been in that location?”
“The day after the crash, I responded to what I thought was an unrelated vandalism complaint by an area rancher, Herb Torrance.” I looked at the jury. “Life goes on. We had other complaints besides that late night crash.” Schroeder’s laser dot swung up to the cluster of dots representing Herb’s property. “Someone had shot one of his stock tanks and windmills full of holes,” I said. “Deputy Robert Torrez and I were able to recover several slugs fired into the tank.”
“At that point, you had no obvious suspect for the vandalism?”
“No.”
“Did Mr. Torrance put a value on the damage?”
“Certainly more than a thousand dollars.”
“How did you then make the connection between the two incidents? Between the crash in the village on the one hand, and the tank vandalism on the other end of county?”
“In the course of investigating the area, Deputy Robert Torrez found a thirty-caliber carbine, abandoned in a brushy area southwest of the drinker and windmill.”
“A rifle? A gun? Just lying there on the ground?”
“An M-1 carbine. World War II vintage.”
“This was a firearm that you recognized?”
“No. I didn’t recognize it at first, but Deputy Robert Torrez did.” I watched the District Attorney heft the carbine, still in its evidence bag.
“Do you recognize this?”
“Yes. That’s the carbine that Deputy Torrez found.”
He looked at it skeptically. “Good heavens. Of all the guns in the world, how did the deputy chance to recognize that one?” As he waited for my answer, he presented the wrapped carbine to the jury.
“He told me that he’d looked at that particular carbine closely when it was for sale in Payton’s Gun Shop in Posadas. He didn’t buy it. During his examination of the gun, he noticed a couple of irregularities—just little things, but that detracted from the historical value. Willis Browning did purchase the carbine, and out of habit kept it in a case in the Suburban. He even qualified with it during a Sheriff’s Department shoot.”
“So this wasn’t recovered at the scene of the crash?”
“No. The case that Mr. Browning carried the carbine in was present, but not the carbine itself.”
“So at the time of the crash, this firearm—you’re referring to it as a carbine—was not in the Suburban, but was laying in the bushes out in Bender’s Canyon.”
“I can’t say that for sure. It was found out there the next day. I can’t testify where it spent the night.”
Schroeder looked pained and referred once again to his legal pad. “Now, you said that Deputy Torrez found this rifle while surveying around the general area of the water tank. And he was doing that survey because of the obvious vandalism to the tank and windmill.”
“Yes.”
Schroeder nodded and walked one of the color prints over to the jury, a portrait of the leaking tank. A black arrow had been drawn to each bullet hole.
“How many times was the tank struck, Sheriff?”
“Thirty-one.”
He repeated that, and let the number sink in for a moment, then slid a photo of the windmill into place on the display easel. He leaned back against the jury box railing so he could regard both the photo and the huge windmill sail displayed on its custom stand. Black adhesive arrows feathered out from the sails, each one pointing at a bullet hole.
“And how many strikes to the windmill itself?”
“Fourteen.”
“Fourteen. Was all of the damage consistent with a single firearm?”
“No. At least two guns were used.”
“Were you able to match any of this damage to a particular gun?”
“Deputy Torrez was able to collect sixteen spent casings from the area, where they had most likely been ejected when fired. Those had characteristic marks that the FBI laboratory identified as consistent with being fired from that particular carbine, the one we found on site. No bullets matched back to the carbine were recovered from the tank.”
“So…this gun, and perhaps others, played a tap dance all over that tank and windmill.”
I didn’t respond, since it wasn’t a question.
“During the survey of the area, did you or the deputy find anything else out of the ordinary?”
He made it sound like such an uneventful, sunny summer’s day, but I understood the jolt he wanted the jurors to feel.
“A moment or two later, Deputy Torrez discovered the body of a young woman whom both of us recognized as Darlene Spencer.”
He took his time finding the photograph he wanted. It was not one of the photos that Avelino Garcia had taken later, when a drape provided some protection for the girl’s privacy. I saw several of the jurors wince.
He turned to one of the maps, leaving the photo of the dead girl on the easel. “At this point, two things.” He shook his head, obviously moved by the contents of the photograph of the dead girl. He placed both hands on the rail and glared at the jurors.
“Understand that there will be times, like this, when we will be displaying photos that are highly disturbing. That just can’t be helped. I’m deeply sorry, because these are distasteful images that you’ll carry in your memories for a long time.” He held up two fingers. “But number two, ladies and gentlemen, remember the Grand Jury instructions that I discussed earlier with you. This is a secret proceeding.” He took the time to make eye contact with each juror in turn.
“You will not discuss what you see or hear in this proceeding with anyone outside of this room. Not with husband or wife, not with your children, not with a close friend, certainly not with the press.” Several heads nodded, and more than a tear or two was dabbed.
At this point, DA Dan Schroeder interrupted his line of questioning and took the time to poll each juror. “Mrs. Albertson, do understand these instructions I have just given?” And he went down the list, until all twelve had responded verbally for the record. He nodded with satisfaction at his efforts to chop off the rumor vine at its base.
“Good. Now, Sheriff Gastner, I draw your attention to the map on the easel. Does this fairly represent the location of the young woman’s body when you and your deputy found her?” A little stick figure had been drawn on the rendering, and I nodded.
“Very close, yes.”
“The body was located how far from the windmill and tank?”
“We measured one hundred ninety-two feet from the southwest corner of the windmill’s base to the body.”
He paused, deep in thought. “Now, Undersheriff Gastner, you have been in law enforcement for a long time. Upon discovery of the body, what opinion did you form as to her injuries?”
“The only injury we could see was what appeared to be a single wound in the left eye. Bullet wounds are often char
acteristic, depending on a whole textbook of circumstances, but this one was irregular, almost jagged in nature.”
“No other wounds that you saw?”
“No.”
He placed an enlarged photo of Darlene’s left eye, then looked at the jury. “Again, ladies and gentlemen, you will hear detailed testimony from the medical examiner’s office after a little while. But Sheriff Gastner, let me ask you. In your experience, have you ever seen gunshot wounds to the skull?”
“Yes.”
“The wounds from large-caliber rifles—hunting guns, perhaps. Aren’t they likely to be through and through?”
“Likely, but it depends on a host of circumstances.”
“If such a large caliber gun was held close to the skull and fired, would the wound be through and through, most likely?”
“Most likely.”
“This was not, however.”
“By no means.”
He nodded and stood regarding the grizzly photos. “Upon first seeing her, did you assume, from the condition of the body, that Darlene Spencer had been assaulted in some fashion?”
“No, I did not.”
“Yet, as the photo clearly shows, the victim’s clothing was in disarray, the lower portion of her body exposed. That didn’t cause you to reach any preliminary conclusions?”
“No.”
“And why is that?”
“There were no other signs of assault, Mr. Schroeder. No defense wounds, no bruises, nothing under the nails, nothing of that sort. No other clothing was disturbed.”
Again, he regarded the photo for a long moment. “None of the upper clothing was disturbed?”
“No, it was not.”
“So what did you think?”
“I thought that the medical examiner should be called to the scene ASAP.”
“And was he?”
“Of course.”
“Did Deputy Torrez offer any conclusions of his own?”
“He did not.”
“Did there come a time when both of you formed conclusions about what might have happened?”
“Medical Examiner Perrone performed a thorough examination of the body in situ, and then conducted an autopsy later. He determined that a bullet had struck Miss Spencer, penetrating the left orbit, lacerating the optic nerve and its pathway, and lacerating two major arteries deeper in the brain.”
Easy Errors Page 24