“So,” she says, “tell me about these phone calls.”
I take a swig of water and explain the calls in detail. Jennifer’s first call to the office, placed through Angie, during which she asked me to represent her and we set up a meeting. “The second call went directly to my phone because Angie was at lunch. Yamura sounded panicked and asked to move up our meeting.”
“Why was she panicked?” Marcie asks.
“I don’t know. I never got the chance to ask her.”
“Do you think someone was with her when she called that second time?”
“She didn’t say so.”
“When did she want to meet?”
I pause. “The first time she called, I scheduled a meeting for four o’clock the next day, Friday. She called the second time because she wanted to meet earlier, Friday morning. I checked my calendar. It was clear, so I said okay.”
“And that was all you two talked about?”
“She hung up. I got the impression she didn’t want to discuss any details over the phone.”
Marcie studies me, much like our jury foreman had. Then she turns and leaves without looking back.
I sit by myself for a couple of minutes, take a few bites of my sandwich, and finish the water. Then I pick up my notes, stop in Vaughn’s office, and tell him I’m heading back to court. When I get to the tenth floor of the courthouse, I spot Piper sitting on a long bench by the window. She smiles when she sees me but doesn’t get up, waits for me to reach the bench and sit beside her.
“You never came back to the office for lunch,” I say.
“I’m too nervous to eat,” she says. “It’s been so long. I’d forgotten how tense your trials are.”
“Someone’s freedom is on the line,” I say. “Their whole life, really.”
Piper and I sit quietly for a while. Then I pat her gently on her leg, lean over, and kiss her on the forehead. “Once more into the fray.”
Devlin’s first witness of the afternoon is Ari Weintraub, the deputy chief medical examiner. As he did with Matthew Stone, Devlin has the medical examiner pull up photographs of Jennifer’s body. Unlike the CSU officer, Ari doesn’t leave the stand. He uses a laser pointer to direct the jurors’ attention to specific parts of the photographs. He begins the meat of his testimony with a detailed discussion of the autopsy. Reading off the postmortem reports, he begins with the personal data: thirty-one-year-old female, Asian, single; address 1792 Addison Street, Philadelphia, Pennsylvania. “She was pronounced dead at the scene and taken to the medical examiner’s office. The following day, I performed the postmortem examination myself,” Ari says, and begins by describing the clothing he removed from Jennifer’s body. Continuing to his external examination, Weintraub describes Jennifer’s body as “measuring sixty-two inches and weighing one hundred and five pounds.” He continues in this clinical vein as he describes the reporter’s hair color and length, the color and clarity of her eyes, and other routine details.
Then Ari gets to the head wounds, and the picture show begins. The first photo he chooses is a middle-distance shot of the back of Jennifer’s head, to give the jurors an idea of what they’re looking at. He pauses for a moment, then switches to a much closer shot, showing a tangle of matted black hair and dried blood littered with bloodied particles of gray and white. Again, reading from his report, Weintraub states, “There were two overlapping wounds to the parietal area of the skull, right of center. The first wound was the big one. It consisted of a visibly depressed, comminuted fracture measuring five-point-two centimeters by four-point-four centimeters, with extrusion of bone. The wound extended through the skull bone and dura and into the subdural space. The second was a one-centimeter fracture just below the first wound.”
“Would you explain to the jury what it was about these wounds that caused the massive blood loss?”
“Yes. The first blow severed the right occipital artery. That’s a branch of the external carotid artery, responsible for supplying blood to a good portion of the posterior scalp, along with some muscles in the neck and back.”
“And what does the force of that first blow tell you about what caused the wounds?” Devlin asks.
“The first wound, the large one, is consistent with the victim’s head-strike to the steps after she’d been pushed.”
I object. “There’s no direct evidence the victim was pushed, as opposed to having fallen.”
Devlin smiles. “Dr. Weintraub, please address Mr. McFarland’s remark.”
Ari pulls up an autopsy photograph of Yamura’s upper torso. The photograph depicts two large brownish marks just below each shoulder and above each breast. “What you’re seeing here are two large bruises. They would not, could not, have been caused by the fall, as she landed on her back. They must have been caused before she fell, and they are consistent with someone using the palms of their hands to push the victim, hard. Very hard.”
Devlin pauses to let this sink in. “Would it have been possible, with the victim’s blood loss, for her to have retained sufficient consciousness to get herself off the steps and crawl along the floor?”
“She likely would have been unconscious for some period of time after the first blow. But given her youth and fitness, it is entirely possible that she regained some level of consciousness, appreciated her predicament, and sought to save herself.”
The jurors take this in and exchange glances among themselves.
Weintraub takes the jury through the scenario of Jennifer, spilling blood from the back of her head, crawling across the basement floor, scraping her knees as she moved. Then Devlin asks if it was possible that Jennifer herself crawled back onto the steps in an attempt to get upstairs but didn’t make it and fell down again.
“Highly unlikely,” Ari says, “given that she ended up head down, on her back. If she’d tried to crawl up the stairs and lost consciousness while doing so, she would simply have stopped moving and ended up lying facedown with her head at the top and her feet at the bottom.”
“Dr. Weintraub, would the blood loss from the fall have killed the victim had she not been placed back onto the step, head down?”
Ari takes a minute to think about this. “Eventually, perhaps. As I said, the first wound severed the occipital artery. But what’s certain is that her death was guaranteed when she was placed back onto the steps, head down, and allowed to bleed out.”
Devlin pauses, pours himself a glass of water, drinks. Then, as if he’d just thought about it, he asks, “Given that the victim was sufficiently conscious to crawl off the steps and to appreciate what was happening to her, could she have had the presence of mind to have been pleading for her life at this point?”
I object immediately.
The judge correctly sustains my objection, and Devlin continues. But Jennifer’s mother is sobbing again, and the jurors are looking at her. The jurors are also looking at David, and they’re not hiding how they feel about him. I know now for certain that we’ve lost the jury. The image of the bloodied young woman, crawling across the floor in a desperate attempt to flee, probably begging for her life while David drags her back to the steps and positions her there to die is simply too much.
“And finally, Doctor, would you tell the jury your opinion as to the time of death?”
“Yes, certainly. Based upon the victim’s weight and the temperature of the liver taken at the scene, and the advanced degree of rigor mortis, the ambient air temperatures in the house are consistent with a time of death between noon and two o’clock on the day the victim was found.”
“So, then,” Devlin asks, “if the defendant left his office at 11:50 and it took him fifteen minutes to walk to 1792 Addison Street, his arrival time of 12:05 would be within the time of death?”
“Yes.”
Devlin asks a few more questions, then thanks the witness and turns him over to me.
I rise, walk around the defense table, and move to within a few feet of the jury. I turn to face the witness so that the jury is
now on my left. In a quiet voice, I begin. “So, Doctor, we’re all agreed—both the prosecution and the defense—as to how this young woman died. She died of massive blood loss from the artery severed as a result of blunt-force trauma to the back of her head.”
“That’s what I testified to, yes.”
“But this trial isn’t about how the victim died—we all agree on that—it’s about who killed her, true?”
“It’s about both.”
“And the only thing the physical evidence tells us about the killer,” I say, ignoring his answer, “is that, if your theory is right, the person had to be strong enough to carry or drag the victim from the basement floor back to the stairs.”
“I would agree that the perpetrator was strong enough to do that.”
“But that could be virtually any man in the city, couldn’t it?”
“I don’t know about that.”
“Virtually all of the men and at least some of the women, right?”
“Well . . .”
“Mr. Hanson would certainly be strong enough, right?”
“I’d expect.”
“But so would a former high school basketball star, like Mr. Walker.”
“Objection!” Devlin’s on his feet. “Again, Your Honor, this is beyond inappropriate. It’s offensive to the dignity of the court.”
The judge calls counsel to the bench for a sidebar and launches into me as soon as we get there.
“Mr. McFarland, this really is quite enough,” the judge says.
“This is a murder trial,” I answer. “I’m entitled to some leeway.”
“Leeway?” Devlin spits the word.
“Go down this road one more time,” Bill Henry says, “and I’ll sanction you in the presence of the jury. Do you understand me?”
I say I do, and Devlin and I move back to our places.
“Thank you, Your Honor,” I say, the old trial lawyer’s trick to make the jury think the judge came out on my side.
“What are you thanking me for?” the judge says, not letting me get away with my ruse. “Your behavior was out of line, and I told you so.”
Now would be a perfect time to stop, sit, and bury my head in my legal pad. But I have to press on. There’s one final point that Devlin snuck in on direct that I must address, a point I anticipated from my reading of the autopsy findings. Devlin didn’t ask it directly, and I suspect it’s because he left it for my cross—a little bomb to go off all over me. A bomb that I, too, want to detonate. “Dr. Weintraub, you were asked a question about whether the victim could have been pleading as she crawled along the basement floor. You didn’t find any physical evidence as to that. And, in fact, the head wounds and blood loss would have left the victim in an impaired state of consciousness. So impaired that she really didn’t understand what was happening to her, isn’t that right?”
“No, I think that’s wrong,” the medical examiner says, pulling up a close-up photograph of Jennifer’s face. “These dried salt deposits track down from the victim’s eye ducts.”
I stare at Ari as though I don’t understand.
“She was crying, Mr. McFarland. The victim was crying.”
32
THURSDAY, NOVEMBER 15, CONTINUED
Jennifer Yamura’s mother’s quiet sobs intensify into all-out weeping. Her husband and son lean in from both sides to comfort her, but it does no good. There is no other sound in the courtroom until the judge directs me to continue.
I run through a few more questions, vanilla stuff, then pass the witness. Turning to take my seat next to David, I catch Marcie glaring at me. The other person whose face I’m drawn to is Piper. She has the dazed look of someone who’s just been kicked by a horse.
As was the case with Matthew Stone, Devlin doesn’t bother to redirect. I expect, at this point, that Devlin will rest. I would were I in his place.
Instead, he stands and announces, “As our last witness, the Commonwealth will present Brian Yamura.” And just that fast, the courtroom is electrified.
The victim’s twin brother.
I feel David stiffen next to me as he picks up a pen and draws a big question mark on the legal pad between us. I quietly tell him I don’t know what Brian Yamura is going to say. He’s on the prosecution’s witness list, but there was never a chance we were going to get a statement from him.
Everyone in the courtroom follows Jennifer’s brother in his slow procession through the gate, past the jury box, and onto the stand. He’s a good-looking young man, thirty-one, like his sister. Thin and athletic and insanely wealthy, he walks poised, shoulders back and head up.
Devlin asks a few background questions, then gets right down to why Brian has been called as a witness.
“Were you close with your sister?”
“We were twins,” Brian says. “We knew each other before we were born.”
“Of course,” Devlin nods. “And you remained close throughout your lives?”
“We were best friends. Jen was more of a people person than I am. I was the tech nerd, so I turned to her for advice about how to handle personal situations. She was always helping me out with my girlfriends. Lord knows,” he adds, shaking his head, “I needed it.”
“And on the other side of the coin,” Devlin asks, “did you help your sister with her relationships?”
“Like I said, Jen was good with people. And she had a good head on her shoulders. She never needed my help with men, as a rule.”
“Were there any exceptions to that rule?”
Brian Yamura inhales. “Just one. Her relationship with . . . him.” Brian turns toward David, and the jurors’ eyes follow him. “She’d told me that she’d met someone very special. An important man. Someone powerful and rich. But there was a problem. The man was married.” Here, Brian closes his eyes, lowers his head. “I told her she was crazy to get involved with a married man, especially some rich, older guy,” he says, opening his eyes and looking at the jury. “I told her guys like that only want to use younger women like toys. She told me not to worry, she could take care of herself. She said that this guy wasn’t like those others. He really cared about her.”
Devlin pauses to let the first chapter of the story sink in. “So what happened as time went on?”
“For a long time, nothing. I mean, nothing bad. Jen and I would call each other, and she always sounded happy, told me it was going great with him.”
“And then?”
Jennifer’s brother pauses again, looks at Devlin, then past him to the seats in the back of the courtroom. This puzzles me, so I turn to see who Brian is looking for. I spot him instantly: John Tredesco. And now I know what’s going on—and what’s coming. Brian is acting out a story fed to him by Tredesco. I can easily envision how it unfolded. Tredesco probably approached the young man in the hallway, expressed his condolences, told Jennifer’s brother how badly Tredesco and the whole prosecution team wants to see David Hanson convicted. Unfortunately, though, the prosecution has no evidence of a motive. “Like if Hanson had wanted to break up with your sister, but she loved him and didn’t want to.” In my mind, I can hear Tredesco spoon-feeding the story to the angry, devastated brother. Peppering it with the threat that, absent a motive, the jury will be forced to find David Hanson not guilty, even if they believe he did it.
Tredesco catches me staring at him and nods.
I turn back toward the front of the courtroom, where Devlin is asking Brian Yamura to tell the jury what his sister told him toward the end.
“The last couple times we spoke, Jen told me the defendant was showing a side of himself he hadn’t shown before. Like he was Jekyll and Hyde. He tried to kick her out of the house on a moment’s notice.”
I could object to all this as hearsay. But I want this damning testimony in. It will scare David and Marcie and move me closer to my endgame.
“Jennifer was afraid,” Brian continues. “She told me so, and I could hear it in her voice. But the thing was, she loved him. And she said she believed h
e really loved her, too, deep down. But he had a wife he felt he couldn’t get away from. So Jen was going to do something about it.”
“Do what?”
“She was going to tell his wife. About them.”
“When was this, exactly?”
Brian inhales, looks up at the ceiling, then back at the jurors. “The night before the police found her. It was 6:00 p.m. my time, so it had to be nine here on the East Coast. I called to see how she was doing. We talked for a long time. That’s when she told me she was going to come clean with his wife. She said she’d warn the defendant first. Give him a chance to get ready for whatever his wife might do. Then she was going to call their house and lay the cards on the table.”
And just like that, Devlin has motive. A cheating husband’s lover threatens to disclose the affair to his wife. He freaks out, pushes her down the stairs.
I can already hear Devlin Walker replay it in his closing argument. I can see the jurors leaning forward in their seats as Devlin’s oratory sweeps them into the final, terrible moments of Jennifer Yamura’s life. Except that Devlin will never get that chance; I have to make sure of it.
Devlin thanks Brian Yamura for his testimony, and the judge turns the witness over to me. Instead of walking to center court, seizing control of a hostile witness, I remain seated. My message to the jury: I will question the victim’s brother, but I will not bully him.
“Mr. Yamura, let me begin by expressing my heartfelt sorrow for your loss.” I’ve never begun a cross like this, and my words are not a ploy. My heart is truly breaking for Brian Yamura, his mother, his father. Jennifer Yamura didn’t deserve to be killed, and her family doesn’t deserve to suffer as they are. “You shared with all of us that you and your sister were close and spoke often. I assume Jennifer told you about the trouble she was in with Mr. Walker and the crooked cops?”
Brian Yamura stares at me, and I can tell I’ve hit home. Behind me, Devlin is undoubtedly squirming in his seat, because I’m opening a part of the narrative that he chose not to share with Brian Yamura—or the jury.
A Criminal Defense Page 30