Tolletson objected at this point, which didn’t bother me. My point was made. Judge Wegland sustained the objection.
“Mr. Crowley, can you search that sharp memory of yours and tell us if you remember that Howie Patino was carrying anything with him on that flight?”
“I seem to remember a carry-on bag.”
“Seem to?”
Crowley snapped, “I do remember.”
“Was he carrying anything else?”
“Um . . . I think he might have been.”
“Was he by any chance carrying a stuffed bear?”
“Yes. That was it. He had a stuffed bear.”
“You remember now. Is that it?”
“Yes.”
“It was, in fact, a little teddy bear, was it not?”
“Yes, I believe it was.”
“One last question, Mr. Crowley. Do people generally take stuffed teddy bears to people they are going to harm?”
“Objection!” Tolletson said, but once more I didn’t care. I had the witness right where I wanted him. Even as the judge was sustaining the objection, I said, “No more questions.”
I knew I’d done well and felt pretty good.
Then Tolletson called his first expert.
Criminal trials increasingly depend on the testimony of expert witnesses. You’ve got the forensic experts working for law enforcement, uncovering grand stories from such minutiae as clothing fibers and fingernail scrapings. Then there are the microbiologists, who can go even smaller, and the population geneticists, who can apply all this to the entire population of the world. Every conceivable medical niche is filled by innumerable people with advanced degrees who love nothing more than telling jurors how much they know.
These people generally work for law enforcement and the prosecution. Unless the defendant has money or wealthy relatives, all he generally ends up with is one court-appointed doctor who gets ripped on cross-examination.
I had Hendrick Brown, who was about as good as I could get for the resources at my disposal.
Benton Tolletson began the forensic part of his case with Chet Riordan, the chief medical examiner of Hinton County, the man who liked Rye Krisp with his cadavers.
He had an avuncular appearance, which no doubt served him well in front of juries. His down-home style of answering was straight Andy Griffith. That was a counterpoint to the details of his testimony, which involved multiple stab wounds and a whole lot of blood.
After ten minutes of testimony, Benton Tolletson showed Riordan a color 8 x 10 glossy of Rae Patino’s body. After Riordan identified it, Tolletson asked if he could show it to the jury.
I objected, and the judge asked us to approach.
“That picture is highly prejudicial,” I said. “We will stipulate to the cause of death and the number of wounds. But showing that picture to the jury will just get them all worked up. Against my client.”
“Murder is not pretty, Your Honor,” said Tolletson.
“Neither is this attempt to sway the jury.”
Wegland held up her hand and looked closely at the photo. “No, it’s not pretty, Mr. Denney, but it is evidence. Your motion is denied.”
“I object vigorously to this.”
“Noted,” the judge snapped. “Now go back to your chair.”
So Tolletson got to show the jury the photograph. As the wide-eyed jurors passed it from hand to hand, I could almost feel a sense of frontier justice rising in them. It’s impossible to see a picture like that and keep a sense of objectivity. One juror, a woman in the second row, glared at me.
I tried to keep a poker face attempting to prevent the jury from seeing my inner agony at this ruling. I’d had years of practice at this but still wasn’t very good. My jaw muscles start to twitch. But with a few deep breaths and some strategic placements of my hands on my face, I managed to keep cool.
That is, until the bombshell.
Every trial has at least one surprise for a lawyer, no matter how well prepared he is. If he’s lucky, it will be a minor thing, easily handled with a little clear thinking. If he’s not lucky, it will explode in his face and threaten to blow his case right out of the water.
That’s what happened as I sat there, trying to calm my quavering jaw muscles as Benton Tolletson continued with his direct examination. I was only half listening as I jotted some notes for the imminent cross-examination.
“Was there anything else unusual about the body of Rae Patino?” Tolletson asked.
Riordan calmly answered, “Yes.”
That stopped me. I looked at the witness.
“And what was that?” said Tolletson.
“The victim was approximately three months pregnant.”
The shock waves were immediate. It was like one of those TV moments, when the crowd gasps together in collective horror. I gasped myself. All thought left me. It was only out of instinct that I shouted, “Objection!”
At that very same moment, Howie Patino stood up and screamed.
He screamed as loudly as any person I had ever heard, and it didn’t help that he was only a foot or so from my left ear.
The bailiff, a portly deputy sheriff, ran over to Howie and wrapped his arms around him to restrain any further movement. Howie struggled for only a second before going almost completely limp.
Out in the gallery, people were scuffling, talking, and exchanging looks.
I practically raced Tolletson to the bench.
“I was not provided this material on discovery!” I said through clenched teeth. “This is the first I’ve heard about any pregnancy.”
“You certainly were informed,” Tolletson said.
Almost crying with indignation, I said, “I went over every inch of Riordan’s report, and that was not in there.”
“It was the subject of a supplementary report,” Tolletson said.
“Do you have that?” Judge Wegland asked me.
“No, I do not,” I insisted.
“He does, Your Honor,” said Tolletson. “Ms. Plotzske can tell you she delivered it herself.”
Sylvia Plotzske had handed me several items of discovery over the past few weeks, but surely I would have noticed a supplementary medical report on the victim of this murder.
Wouldn’t I? Or had my drinking affected my short-term memory that much?
“Mr. Denney,” said Judge Wegland, “Mr. Tolletson and Ms. Plotzske are well known to me, and if they’re sure they delivered you this item, then I’m sure they did. Frankly, I think the more realistic possibility is that you misplaced it.”
“But I—”
“Your objection is overruled.”
I could sense, rather than see, the smile on Benton Tolletson’s face. He was enjoying this. I’m sure that if he ever mowed down Viet Cong with an M-16, he enjoyed that too. This was a slaughter.
I made it back to my counsel table in a daze. Tolletson asked Riordan a few more questions. The judge called on me to cross-examine.
For a long moment, my head was blank. I heard the judge’s voice call on me again. It was like a distant echo.
Then I heard Trip whispering in my ear. “Ask about the blood,” he said.
“The what?”
“Ask him why he never tested the blood.”
I remembered. Trip and I had discussed this point during preparation, but I had forgotten about it. Not a good thing for a trial lawyer.
I stood up. “Dr. Riordan.”
“Yes, sir.”
“How many stab wounds did the victim receive?”
“Twenty-five.”
“You counted them yourself?”
“Part of the job.”
“I see. That’s a lot of stab wounds, isn’t it?”
“It sure is.”
“Were there any slash wounds?”
“There were, yes.”
“How many and where?”
Riordan reached for the papers in front of him. “May I refer to my report?”
“Please.”
Af
ter a moment’s reading, Riordan said, “Three deep lacerations. One to the jugular, another to left cheek area, and a third to the left shoulder.”
“Is it safe to say that the laceration to the jugular would have resulted in a massive loss of blood?”
“Yes.”
“In fact, Dr. Riordan, isn’t it true that a wound of this type would have blood spurting forth?”
“That would be consistent with such a wound.”
“And so, isn’t it also safe to assume that a killer inflicting twenty-five stab wounds, including a laceration to the jugular, would be covered with the victim’s blood? Isn’t that true, Dr. Riordan?”
For a moment, Riordan hesitated. “In the usual case, yes.”
“And is there anything unusual about this case?”
“There may be. I don’t know.”
“You don’t know? You’re the medical examiner, aren’t you?”
“Objection,” Tolletson said. “Argumentative.”
“Sustained.”
I didn’t skip a beat. “Dr. Riordan, did you test the blood on Mr. Patino’s clothing?”
“No, sir. I wasn’t asked.”
“And you didn’t think it was important enough to conduct a test?”
“The facts as given to me didn’t lead me to believe that it was necessary.”
“So there is no way of knowing, is there, how much of the blood on Mr. Patino was his own or the victim’s, is there?”
Riordan paused, and said, “Not without a test.”
That was enough. A smart cross-examiner has to know when to stop. At one time I had been a smart cross-examiner. So I stopped. I was hoping that I planted some questions in the minds of the jurors, at least enough to dilute the shock of the pregnancy testimony.
How much of a dilution it would be, I hadn’t a clue.
After court adjourned for the day, Howie said he wanted to talk to me. The deputy took us to a small conference room in the courthouse and said I could have ten minutes.
Howie was an amazing sight as I entered the room. He sat almost serenely in a chair, his manacled hands folded quietly in his lap. His eyes were red-rimmed but soft. It was a look almost of . . . peace. Surreal is the word that occurred to me.
“Howie,” I said, “I want you to know I didn’t have any idea—”
Howie stopped me with an upraised hand. “I want you to know it doesn’t matter, Jake,” he said.
“What doesn’t matter?”
“The trial.”
“Why doesn’t it matter?”
“Because it’s God’s will,” he answered. “I know that now.”
“Look, Howie—”
“He wants me to go to jail.”
“Howie—”
“That’s the way it has to be, Jake. To make up for killing Rae and the baby.”
“I don’t think—”
“You’re trying, Jake, and I appreciate that. You’re my only friend in the whole world. But God wants me to go to jail forever. That’s where I can repent. He’ll take care of me there.”
“Will you stop it!” I fairly shouted. Yes, the trial was going badly. That was no secret. But in the short walk between the courtroom and the conference room, I had decided I wasn’t ready to throw that towel in. After all, I hadn’t presented my evidence yet.
“Get off this kick right now,” I demanded.
“It’s God’s will, Jake. I killed a baby. I know it wasn’t my baby, Jake. I know that. Rae and I didn’t . . . I mean she and I . . . not for a couple of years.” His head fell toward his chest. “But a baby, Jake. I killed a baby.”
“What if you didn’t?”
“It’s God’s will.”
“Will you shut up!” I blurted out of frustration as much as anything else. This trial, this client, were nightmares. “Forget God! It’s just you and me and that courtroom in there.”
With an incredulous look, Howie said, “How can you say that, Jake? How can you forget God? You take that back.”
“We’ve got to face reality, Howie.”
“Take it back, Jake!” He was still a little boy being picked on by a bully.
“Fine! If it will make you happy, I take it back. Okay? But you can’t give up on me, not now.”
Howie smiled. It seemed to hold more peace that any smile I’d ever seen. “It’s in God’s hands, Jake. You just watch and see.”That was the end of our conversation. Watch and see, he said. Okay, I would. I’d watch and see just what God was going to do with his hands.
CHAPTER THIRTY-TWO
TOLLETSON FINISHED AFTER three days of testimony. His presentation had been crisp, clean, and deadly. Grudgingly, I had to admire his work, though in much the same way as a condemned man admires the way the executioner swings his ax.
Now it was my turn. My case would rise or fall with the jury’s understanding of Howie’s mental state. I had to prove that he did not have the mental state necessary for murder, namely, malice aforethought. That meant the jury had to get to know Howie.
That’s why my first witness was Janet Patino. I knew the jury would listen carefully to her. She was his mother, and she was credible.
In a calm voice, broken only occasionally by a short sob, she told the jury about Howie’s childhood, about his struggles in school, and how he was always “just a little slower” than the other kids. Tolletson let her testify without objection up to the point where Janet met Rae for the first time.
“He called you and told you he wanted you to meet her. Is that right?” I asked.
“Yes,” Mrs. Patino answered, “and we decided to have them over for dinner.”
“When was that?”
“I don’t remember exactly, but it was in the summer.”
“And did they come over for dinner?”
“Yes, they did.”
“What was your impression of Rae when you first met her?”
“Objection,” Tolletson said. “Relevance. The witness’s impression doesn’t go to anything at issue here.”
“It does, Your Honor,” I said.
“I don’t see it, Mr. Denney,” Judge Wegland said. “The character of the victim is not relevant. Nor is the state of mind of the witness. What other issue does it go to?”
“It just gives a fuller picture to the jury, Your Honor.”
“I’m bound by the rules of evidence, Mr. Denney. Only relevant evidence is admissible. The objection is sustained.”
So the jury was not going to know anything about what kind of person Rae Patino was unless Howie took the stand and testified about it. And that was a gamble I wasn’t prepared to take. Yet.
Tolletson asked only a few questions of Janet Patino. He was all charm and deference with her.
“Mrs. Patino, you love your son, don’t you?”
“Oh, yes.”
“You’d like to see him walk out of this courtroom a free man, wouldn’t you?”
“Of course I would.” She wiped away a small tear from her left eye.
“But you also would want him to be held accountable for any wrongdoing on his part, wouldn’t you?”
A brilliant question. There was no way she could answer it so that it wouldn’t be helpful to Tolletson. If she said no, the jury would discount her testimony as biased. If she said yes, Howie would stand condemned by the words of his own mother. So it was, from a trial lawyer’s standpoint, a great move. But I hated Tolletson for asking it.
The tears started flowing freely down Janet Patino’s cheeks. She trembled visibly. Her mental strain was obvious as she attempted to formulate an answer. At one point she looked at Howie as only a mother in torment could.
Tolletson said, “That’s all right, Mrs. Patino. I withdraw the question. That’s all I have.”
As Janet Patino stepped off the witness stand, I tried to read the jurors’ faces. Most of them were looking down, as if they couldn’t stand to look at poor Janet because they knew what anguish she was suffering—the agony of a mother with a guilty son.
; Next up was Dr. Hendrick Brown.
As he took the oath from the clerk, I could sense the tension in the courtroom. Everyone seemed to know this was a crucial moment. The defense expert was about to take his shot. From both Brown and myself, it would have to be the performance of a lifetime.
I spent a good fifteen minutes having Dr. Brown go over his education and credentials. I wanted a solid, credible foundation for his testimony. Another reason for the bona fides was that he didn’t look the part of the traditional psychiatrist. He did not dress sharply or speak with an Ivy League accent. If seen on the street, most people would not even think of him as a professional. He seemed more like somebody’s neighbor, one who liked to work in his rose garden. That impression was magnified by what he wore to court—a sweater over his shirt and tie. So I made sure the jury knew of his extensive education, writings, and work with patients.
Then I turned to his examination of Howie at the Hinton County Jail. “Can you describe for us, please, the procedure you used to examine my client?”
“Certainly,” said Dr. Brown as he expertly turned toward the jury box. “I injected Mr. Patino with sodium pentathol, which is commonly called truth serum. It’s a medical device that is often used to help patients recall traumatic events. In this case, I thought it necessary to break through the mental wall Mr. Patino had -understandably erected concerning the death of his wife. After the injection, Mr. Patino went into a mild, trancelike state, and I proceeded to ask him questions.”
“And did he answer those questions?”
“Yes, he did.”
“Was a transcript made of those questions and answers?”
“Yes.”
I fetched a copy of the transcript from my briefcase, but before I could hand it to Brown, Tolletson spoke. “At this point, Your Honor, I’m going to object on Kelly-Frye grounds.”
Tolletson was referring to two cases governing the admissibility of certain scientific evidence. I had expected that and was ready. “Your Honor, I don’t think we’ll have to dismiss the jury for a hearing. If we may approach?”
Wegland waved us up. For once, Tolletson seemed caught off guard. It was like fresh air blowing through a stuffy basement.
“This is not a Kelly-Frye issue,” I said. “We’re not talking about a new scientific method here at all. Sodium pentathol has been used for decades.”
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