A Criminal Defense

by William L. Myers Jr.

  “I wanted the prosecution to commit itself at trial. I wanted them to stake their credibility on it.”

  “But the jury’s sequestered,” I say. “They’re not going to know about your humanitarian efforts.”

  David laughs. “Come on, Mick, you can’t be serious. Do you really believe that the jurors aren’t going to get wind of the story? That they won’t spy the headlines at the newsstands between here and their hotel? That they won’t channel surf in their rooms, looking for what the six or ten or eleven o’clock news is saying about the trial? That their family members won’t text them a heads-up? Really?”

  David is right, of course. One would have to be insanely naive to think that the news of HWI’s humanitarian program won’t make its way to the jury.

  “And once the judge tells the jury to disregard the prosecution’s evidence regarding my supposed plan to flee before trial, the jury will think the prosecution has been caught trying to pull one over on them. It will taint Devlin Walker’s entire case.” David smiles, and I see behind his blue eyes the same coal-black intelligence that flares inside Marcie’s.

  “I told you the judge was thinking of a limiting instruction or a mistrial.”

  “No mistrial,” David says instantly. “I won’t go through this again.” Then he smiles, sits back, and switches gears with ease. “Thank you for taking care of Marcie,” he says. “For explaining everything to her, letting her explain things to you. I know I’ve told you this before, but my wife has proven to be a tremendous asset.”

  31

  THURSDAY, NOVEMBER 15

  Nine a.m. and we’re all back in the judge’s chambers. His Honor has decided to postpone his decision between granting a mistrial and giving the jury a limiting instruction to disregard the evidence regarding David’s cash-gathering flights. The judge did this at my request. On the one hand, like David, I do not want a mistrial; this odyssey has to end quickly for my plan to come to fruition. On the other hand, I’m afraid that a jury instruction will give David and Marcie too much confidence. I need them afraid.

  For his part, Devlin has fought mightily against either a mistrial or a limiting instruction. Now, with the judge’s decision to put the issue on hold, Devlin is fit to be tied. He’s clutching the armrests of his chair so hard his knuckles are white.

  “All right, then,” the judge says. “I’ll see everyone in court at 9:30. And from here on out, I want things to run fast—and smoothly.”

  Thirty minutes later, the trial resumes and Devlin calls Matthew Stone, the lead investigator for the Crime Scene Unit. Stone is the polar opposite of John Tredesco. He’s pushing forty but looks ten years younger. He has large eyes, short-but-stylish blond hair, and an open face. Self-deprecating and quick to smile, Stone is someone most people find instantly likable. I know from experience that he’s also a completely honest cop.

  After some preliminary questions about Stone’s background, Devlin gets down to business.

  Stone explains what was done to secure the premises and preserve the integrity of the crime scene. Then, with the court’s permission, he steps down from the witness stand, positions himself next to the big screen, and addresses the jury.

  I have stipulated to the admissibility of diagrams of the house, so Devlin has Stone pull them up on the screen. The first diagram depicts the first floor—the kitchen and living room and the short hallway between them containing the door to the powder room and the doorway to the basement behind the curtain of glass beads. The second diagram shows the basement, including the steps.

  Then comes the emotional evidence. At Devlin’s request, Stone pulls up the first picture, showing Jennifer’s body lying on the steps. It is an overhead picture, taken from the top of the steps. As they did during Devlin’s opening, some of the jurors look away. They take a few seconds to steel themselves, then look directly at the photo as Matthew Stone tells them what they’re seeing.

  Stone describes what the photo depicts, then pulls up another shot, a close-up taken just inches below Jennifer’s battered head. Dried blood is caked all over her matted hair. The jurors stare at the image, some of their faces turning gray.

  Devlin has Stone describe the hair and bloodstains on the fifth and sixth stairs, which are consistent with having been stricken by the back of Jennifer’s head when she fell. Then he pulls up a photograph of Jennifer’s knees, and Stone describes the fresh scrape injuries.

  “Did you form any conclusions as to how she sustained the injuries to her knees, given that she fell backward down the stairs?”

  Stone nods and pulls up a photograph of the basement floor. “When we began to study the basement, I saw what I thought may have been blood traces on the concrete floor. The floor also smelled of household cleanser. So we sprayed luminol to see if there was more latent blood on the floor than could be seen with the naked eye. Sure enough, there was a trail of blood along the floor, starting at the bottom of the stairs and continuing for about five feet. The injuries to the victim’s knees were consistent with her having crawled along the rough cement of the floor.”

  Devlin pauses to let the testimony sink in with the jurors. Then he asks Stone to tie it all together. “Please explain to the jury what this physical evidence led you to conclude about the nature of the crime and how it was committed.”

  Stone inhales, then looks at the jurors. “The victim was pushed through the beaded curtain. She fell backward. The back of her head struck the fifth step with great force, and it struck the sixth step as well. The steps were old wooden steps with rough, splintered edges, and we found remnants of hair, skin, and bone on each of these two steps. The victim lay there for some indeterminate minutes, then managed to get off the steps and crawl along the basement floor, trailing blood the whole way.”

  Here, Devlin stops Stone. “But the victim was found on the steps, her head lying on the concrete floor at the bottom of the steps, feet toward the top. Having left the stairs, why would she have gone back?”

  “She didn’t. Someone dragged her back to the stairs and positioned her head down, on her back. And, there, she bled out and died.”

  Devlin pauses to give the jury time to chew on the image of this lovely young woman, desperately crawling on hands and knees trying to get away from her assailant, who pursues her and finishes the job he started when he pushed her down the stairs. I turn slightly to the left, just enough to glimpse Jennifer’s mother weeping.

  Devlin starts up again, switches gears. “Did you find any evidence of a break-in? Jimmied locks on the doors, broken windowpanes?”

  “There was nothing like that.”

  “What did that tell you?”

  “That the perpetrator either had his own key, or he was let into the house by the victim. If the latter was the case, there’s a strong chance she knew him.” Stone’s final words cause several of the jurors to look at David.

  Devlin asks a series of questions establishing David’s presence in the house. Stone testifies that David’s fingerprints were found throughout the house, as were strands of his hair. Stone also describes the items of David’s clothing found in the master bedroom closet: a suit, some shirts, shoes, boxers—all in David’s sizes—along with some ties and a belt.

  Devlin concludes his questioning, and Judge Henry orders a fifteen-minute break for everyone to stretch their legs.

  As soon as the jury returns, I start in on Matthew Stone. “You began by telling the jury that part of crime-scene processing is to secure and control the area—did I hear that right?”

  “Yes.”

  “And this idea of securing the crime scene is a fundamental principle of crime-scene processing, isn’t that true? A golden rule, so to speak?”

  “I think that’s fair to say.”

  “And a key part of securing the crime scene is restricting access?”

  “Yes.”

  “The integrity of the crime scene must be maintained, and that means you don’t allow people to come in and drop hairs and prints and di
rt all over your crime scene, right?”

  “Absolutely.”

  “But it didn’t quite work out that way for you in this case, did it?”

  My question takes Stone aback.

  “I don’t know what you’re talking about.”

  “Your crime scene was invaded and contaminated by someone who had no business being there.” Stone doesn’t answer, just stares at me. He has no idea where I’m going with this. I press forward, saying, “You hadn’t even been at that crime scene for an hour when someone came in—not wearing booties, not wearing gloves, not wearing a plastic cap on his hair—and traipsed all over that house. Isn’t that so?”

  Stone gets it now and turns to Devlin.

  I follow his eyes and say, “Yes, it was Mr. Walker himself.” I’d learned about Devlin’s intrusion onto the crime scene from Tommy, who found out about it from an acquaintance on Stone’s CSU team.

  Devlin shoots to his feet, objects, and demands a sidebar. Judge Henry overrules the objection and refuses the sidebar but tells me to get to the point.

  “How long was he there before you knew he was there?” I ask Stone.

  “I don’t know.”

  “Because he didn’t sign in?” I don’t wait for Stone to answer. “He just waved his DA credentials, and your officers let him in, isn’t that right?”

  “I spoke to my team about that afterward. I do remember that now.”

  “Their letting him in and his presence in the house upset you at the time?”

  Stone exhales loudly. “I wasn’t happy.”

  “When your men dusted the house for prints, did you find Mr. Walker’s prints?”

  “Well, yes. As we just discussed, he came to the house.”

  “Did you find hair samples belonging to an African American?”

  Stone’s eyes bore into me now. “Yes. Along with your client’s prints.”

  “Did Mr. Walker go into the basement after he entered the house?”

  “I believe so, at some point.”

  “Is it possible Mr. Walker tracked some of the victim’s blood across the basement floor?”

  Devlin’s on his feet again. “Objection! This is ridiculous!”

  The idea that Devlin tracked Jennifer’s blood all over the basement floor is, indeed, absurd. I’ve gone too far, and the judge sustains the objection and tells me to move on to another subject. I don’t mind that I’m being shut down at this point. This entire line of questioning isn’t for the jury anyway—it’s for Walker himself. He’ll know why soon enough.

  I ask whether, in addition to David’s and Devlin’s prints, the CSU team found other prints. Stone says yes, a number of prints. “Then there’s no question that Mr. Hanson and Mr. Walker were not the only men to have been in that house prior to Ms. Yamura’s death?”

  “No.”

  I pause and switch tracks. “Earlier, you’d said there was no evidence of a break-in, and you based that on the lack of broken windows or jimmied locks. You said that indicated to you that the perpetrator either had his own key or was let in by Ms. Yamura. But there’s a third option, isn’t there?”

  Stone takes the question seriously and considers it. Before he can answer, I say, “The doors, or at least one of them, could simply have been unlocked.”

  “Uh . . .”

  “If a door was unlocked, anyone—a neighbor, burglar, thief—could have walked into the house without the need to jimmy locks or break windows, right?”

  “Well, yes.”

  “And isn’t that the first thing a burglar does when he’s trying to get into someone’s house to rob it? Check to see if a door is unlocked so he won’t have to pry his way in?”

  “I suppose.”

  “And had the door been unlocked, so that the burglar gained entry without a sound, he could have suddenly happened upon Ms. Yamura and attacked her once she saw him, before she had a chance to scream, right?”

  “That’s possible,” Stone concedes, “though, in my experience, most burglars don’t commit violent crimes, especially murder. Even under duress.”

  “Unless they’re two-time losers, and one more strike will get them life,” I say.

  Devlin objects and the court sustains him, but my point has been made.

  “So, now that we’re talking about a home invasion, let’s discuss all the things that your crime-scene investigation found to be missing. Would you pull up one of the photographs showing Ms. Yamura’s wallet?” The witness does so. “That’s it? Lying open on the kitchen counter?”

  “Yes.”

  “Had it been emptied of all the cash?”

  “There was no money in it.”

  “Please pull up one of your pictures of Ms. Yamura’s bureau, in her bedroom.” Again, the witness complies. “The drawers have all been opened?”

  “Yes.”

  “You found them that way when you arrived?”

  “Yes.”

  “But her clothing was inside, including her underwear?”

  “Uh, yes.” Stone sounds confused.

  “So the perpetrator wasn’t a pervert looking for women’s undergarments?”

  “Ah, no.”

  “As to what he was looking for, is that a jewelry box sitting on top of the bureau?”

  “Yes.”

  “Also with all its drawers opened?”

  “Yes.”

  “Any jewelry inside?”

  “No.”

  “Did you find Ms. Yamura’s laptop computer?”

  “There was no laptop.”

  “How hard did you look?”

  At this question, Matthew Stone glances at Devlin. “We did a thorough search.”

  “Because the prosecutor, who wasn’t supposed to be there, told you to scour the house for the laptop?”

  “He didn’t say laptop. He just said to look for any computers. We would have done that anyway,” Matthew adds indignantly.

  “Was he upset when you told him you couldn’t find the laptop?”

  “Objection.” Devlin is on his feet. “This is nothing more than grandstanding, Your Honor.”

  “Sustained. Mr. McFarland, this case is not about Mr. Walker. I instruct you to stop with this line of questioning.”

  “Yes, Your Honor.” I glance at Devlin. He’s pissed at me, but there’s something more in his eyes than mere annoyance. I’m hitting a nerve, as I knew I would.

  “And in addition to Ms. Yamura’s expensive laptop, her cash and jewelry, is it true that you also didn’t find her iPhone?”

  “No, we didn’t. We learned of the calls to your office from subpoenaing the records from her carrier, Verizon.”

  I stare at Matthew Stone. He’s looking back at me guilelessly. He’s just made a huge mistake, but he doesn’t know it. The jury was not supposed to hear that calls were made to my office from Yamura’s phone. I know Stone well enough to know that he would never intentionally mention evidence excluded by the court. He’s too straight a shooter. This was a mistake on Devlin’s part. He’d told Tredesco not to mention the calls. Probably had to tell the detective ten times. But he forgot to tell Stone.

  But now the jury has learned about the calls, and they don’t know the background. I glance at the panel, and I know what they’re thinking: Calls from the victim’s phone to the defendant’s lawyer? What calls? Why haven’t we heard about them? The jurors appear to be confused. All of them—except for their foreman, Mr. Peter Drummond. I look at him and see that he is looking at me, having inferred the message that Devlin wanted to send all along. That David, in a panic over having killed Jennifer Yamura, used her cell phone to call me, his law-school classmate and chum. In the foreman’s mind, David and I have now been in this thing together from the beginning.

  All these thoughts go through my own mind in a split second. When I recover, I see Judge Henry looking down at me from the bench, expecting that I’ll object, ask the court to strike the testimony about the phone calls. But all that would do is highlight the point, so I keep quiet.
>
  I smile at Matthew Stone and plow ahead. “So. Stolen cash, stolen jewelry, stolen computer, stolen phone. And maybe the victim left the door unlocked? Does that pretty much summarize what we’ve just gone over?”

  The witness shrugs. “I guess. In part.”

  “Nothing surprising to you as a police officer, given that the invasion at Ms. Yamura’s home happened in the midst of a crime spree in her neighborhood.”

  Stone admits that he’d heard of the break-ins near Jennifer’s house but says he hadn’t been briefed on the details.

  I tell the court I have no more questions for the witness, and Judge Henry turns to Devlin. But Devlin doesn’t even bother to redirect. He doesn’t need to. The damage has been done. The image of Jennifer—wounded, bleeding, and desperate, crawling along her basement floor trying in vain to escape the murderer—is seared into the jurors’ minds. I’m also certain that no one has forgotten about the phone calls placed from Jennifer’s cell phone to David Hanson’s attorney—to me.

  Judge Henry calls the lunch break, and I watch the jurors file out of the box and out of the courtroom. For the most part, they keep their eyes on the floor. Except for the foreman, Drummond, who looks directly at the defense table as he exits the box. He holds my eyes for a long time.

  After the jury is gone, David is taken away and the courtroom empties. Piper smiles wanly at me, then follows the others out the door. The only ones left other than my team and me are Devlin, Christina Wesley, and John Tredesco, who hovers by the back door. The detective sees me looking at him and slowly stretches his thin, bloodless lips into a predatory smile. I keep my face blank of emotion, then turn away, catching Devlin Walker staring at me. Though not as blatant about it as Tredesco, he’s smiling, too.

  Back at the firm for lunch, I spend a few minutes at my desk, then go directly into the conference room. Marcie sits before an untouched salad. I fix myself a sandwich, pick up a bottle of Fiji water, take a seat across the table from her. Marcie stares at me, her eyes flat.