“I wouldn’t say ‘made up my mind,’ but yes, she was our chief suspect.”
“Have you ever heard the term ‘filler’ when used in connection with a police lineup?”
“Sure.”
“Will you explain to the court what a ‘filler’ is?”
“A filler is a person whose physical characteristics match the verbal description given by the eyewitness. In a photo lineup it is typical to display photographs of six or more fillers in addition to that of the suspect.”
“How many fillers did you use in the photo lineup in which Mrs. Van Wagner claimed to have identified my client?”
“We used a total of ten.”
Hallie then asked Yanowski to explain the two common types of lineups: simultaneous and sequential. In a simultaneous lineup, as the name implies, an eyewitness is shown all of the photographs at the same time. In a sequential lineup, the photographs are displayed one by one.
Yanowski had used the first type, which was good for us.
Hallie’s last questions to Yanowski were also predicated on some ideas I’d given her.
“Detective, going back to your search of Mr. Gallagher’s residence, is it fair to assume that you collected all medications, prescription or otherwise, that could be found on the premises?”
“Of course. We know how to do our job,” Yanowski puffed.
“How many such medications did you find?”
“Quite a few. Upward of twenty different prescription bottles, most of which had expired.”
“And none of which could be identified as Lucitrol?”
“That is correct.”
“Did you test the contents to be certain, or simply rely on the labeling?”
Yanowski was caught short. “We, uh . . . didn’t do any testing.”
“Were there any medications in unmarked containers?”
“A few,” Yanowski admitted.
“Did you test the contents of those containers to rule out the possibility that they contained Lucitrol?”
“No, because it wasn’t necessary.” Yanowski said, finally catching on to where this was headed. “He wasn’t under the care of a psychiatrist.”
“That you know of,” Hallie said.
“What’s that supposed to mean?” Yanowski demanded.
Hallie reminded him that she was the one asking the questions. “But since you’re curious, Detective, let me explain the purpose of my questions. During your exhaustive investigation into Mr. Gallagher’s death, did it ever cross your mind that the deceased may have taken steps to hide a mental-health problem so that it could not be discovered by others—such as by seeing a psychiatrist in secret?”
Yanowski allowed he had not.
“Or that he may have obtained a prescription for the drug from a nonpsychiatrist provider?”
“Can that happen?” Judge Cudahay interposed.
Hallie was ready with an answer. “Yes, Your Honor, it can.” She returned to counsel table, removed a document from her briefcase, and crossed the room to tender it to the court. “If the court wishes, it can take judicial notice of a recent study by the Pritzker School of Medicine, finding that the number of office visits where individuals are prescribed antidepressants with no accompanying psychiatric diagnosis ranges from twenty to fifty percent. Lucitrol is a much stronger medication, but it can be prescribed by any doctor.”
Hallie then proceeded to her last set of questions. “Detective Yanowski, were you aware that, according to its financial statements, Atria’s sales of Lucitrol last year accounted for more than three billion in net revenue for the company?”
Yanowski wasn’t.
“Or that a standard one-hundred-milligram prescription costs on average seventy-five dollars per month?”
“I didn’t do a price check, if that’s what you’re asking,” Yanowski replied testily.
“Does that suggest to you that quite a large number of individuals have, or are currently taking the medication?”
“I guess it does.”
“Some percentage of which live in the Chicago area?”
“I suppose so,” Yanowski answered.
Hallie didn’t need to point out that any one of them might have been responsible for feeding the drug to Gallagher.
“One last question, Detective,” Hallie said. “Given your last several answers, are you in any position to say that the Lucitrol ingested by the deceased could only have come from my client?”
Yanowski was forced to admit he could not.
Hallie announced that she had no further questions and Yanowski was excused.
Frost’s instincts weren’t all bad, since he saved what should have been his best witness for last: a Ms. Lucille Sparks, Gallagher’s twenty-eight-year-old fiancée, who Hallie told me later walked into court wearing a rock the size of a hen’s egg. I didn’t need to know much else about her looks because, in addition to working part-time as a coat-checker at the Union League Club, Sparks (her stage name) had a much-coveted spot on the Chicago “Luvabulls,” a troupe of cheerleaders who strutted and tossed their Charlie’s Angels manes to the music of Britney Spears and Lady Gaga during Bulls game breaks at the United Center. According to the Luvabulls’ press kit, they were chosen each year in a contest focused on talent and athletic ability, though everyone in the city knew the real requirement was looking hot enough to sizzle a steak in a push-up bra, hot pants, and high-heeled boots. Hallie hated them with a passion, and even more so after various sports leagues banned appearances by Chief Illiniwek—the one-time mascot of her beloved Fighting Illini—for perpetuating negative stereotypes of Native Americans. “What about negative stereotypes of women?” she demanded to know. I wisely agreed with her whenever the subject came up.
I figured Hallie was going to warm to Sparks like ice circulating in Lake Michigan.
On direct, Sparks was appropriately histrionic. She and Gallagher had been “like a hundred percent in love.” Their hot and heavy affair began the year before his death, when Gallagher had “come on to” Sparks while dropping off his trench coat on his way to a lunchtime meeting of the International Press Club. A few nights later, he wined and dined her at an Italian restaurant on Taylor Street, in Sparks’s reenactment as tender a courtship scene as the one in which Tramp wooed Lady over a spaghetti dinner at Tony’s. “I knew, like, right away, he was the one.” Sparks was a little miffed that Gallagher didn’t break up with Jane right away, but as Gallagher explained to her, the two had been lovers for a long time. “She was, you know, kinda getting up there and he didn’t want her to feel bad about losing out to a younger girl like me. I mean, it would have been so unfair to just, like, dump her.” The relationship had proceeded in this fashion until Gallagher gave Sparks the ring—bought, she pointed out with pride, at a pre-Labor Day sale at Kay’s—at which point Sparks felt secure enough about Gallagher’s affections to demand that Jane be given her marching orders. According to Sparks, the big break-up was to occur on the night “her Rory” was taken from her.
Hallie rose and objected that no foundation had been laid for such a statement, and the objection was sustained.
“How do you know that the victim, uh, intended to terminate his relationship with the defendant that evening?” Frost prompted, trying to get the crucial piece of information into the record.
“Because he told me so. While we were in bed that morning at my place. Right after we finished hooking up. Rory was always so horny in the morning,” she confided. Judge Cudahay coughed, and Sparks apparently remembered where she was. “Sorry about that. I didn’t mean no offense. Well, anyhow, like I was saying, he reached over and patted me on the you-know-what and said, ‘Lucy, I think it’s time you got everything you deserve.’”
“And what did you take that to mean?”
Hallie shot up again like an arrow. “Objection. The witness’s interpretation of the deceased’s statement is hearsay.”
Judge Cudahay agreed. “Sustained.”
This wasn’t wor
king out the way Frost intended. He tried once again to regain his footing. “Was that all your fiancé said?”
“Well, no,” Sparks said meditatively. “We talked about our schedules for the day, you know, what we were planning and all, and when Rory would be able to come round again. It wasn’t going to be until Saturday because I had work and a game that night and he was supposed to be meeting with her.” I guessed she was pointing at Jane.
“Go on,” Frost urged. “Did he say what the meeting was about?”
“Just that he was looking forward to it. Something about her not being able to stop it.”
An ambiguous piece of testimony if ever there was one.
“Were those his precise words?”
“Maybe. I don’t remember exactly. I mean, it was early and I wasn’t really awake yet.”
“Is there anything else you can tell us about the meeting between your fiancé and the defendant?” Frost asked, beginning to sound desperate.
“Why? I mean, it was so obvious. He was going to break up with her. Like, what else could he have been planning?”
Hallie asked that the witness’s last comments be stricken from the record as speculative and nonresponsive, and it was so ordered.
Frustrated, Frost was reduced to near-hysteria. “On the day he died, did your fiancé indicate to you specifically, by his words or in any other verbal manner, his intention to break off a relationship with the defendant that evening or at any other time?”
Hallie was up again. “Objection. Leading.”
I might have added incomprehensible.
Judge Cudahay sustained the objection, whereupon a defeated Frost ceded the floor to Hallie.
“Miss Sparks, you testified that you were with Mr. Gallagher the morning of August twenty-sixth. Was that the last time you saw him?”
“Yes,” Sparks sniffled, resuming her distraught manner.
“Did you share breakfast together?”
“Yeah. I mean, Rory ate some eggs I scrambled for him. I made us some coffee, too.”
“Were the two of you together when you made the eggs and coffee?”
“I think . . . I think he must have been in the shower while I was cooking because he complained that the eggs were cold when he sat down.”
“Did you eat some of the eggs, too?”
“No. I’m a vegan.”
“And after breakfast, the two of you parted?”
“Yeah. He kissed me at the door to my building. I didn’t know then it would be for the last time.” She sniffled again.
“Did you communicate with the deceased at any time later in the day?”
“No, he said he was going to be busy. Rory didn’t like it when I interrupted him at work.”
“So no phone calls or texts during the day?”
“No.”
“What about later in the evening, after work or when you weren’t performing? Did you make any attempt to reach him then?”
Sparks must have just shaken her head, because Hallie had to remind her to speak so the court reporter could get it down.
“I didn’t do anything like that.”
“So let me get this straight,” Hallie said, going in for the kill. “You expected that Mr. Gallagher would be meeting with my client that night, is that right?”
Sparks agreed.
“To discuss something of some importance to them both, correct?”
“Yes.”
“But you made no effort to contact him afterward?”
“I guess that’s right.”
“Or to find out how the meeting went?”
Sparks once again agreed.
“So as you sit here today, you have no idea what your fiancé said to Ms. Barrett that night or she to him, isn’t that right?”
“I suppose so,” Sparks let out in a near whisper.
“Or even what the upshot of their meeting was.”
“But I know—” Sparks began to protest.
“Yes,” Hallie cut her off. “We’ve all heard what you think you know. No further questions.”
Hallie called only one witness. Me.
Putting Jane on the stand was too risky, and since Hallie didn’t yet have a theory of the case, much less any evidence to back one up, her best chance of securing bond was to cast doubt on the State’s one eyewitness, who, being conveniently absent, was unavailable for cross-examination. Hallie and I had decided in advance not to attack Mrs. Van Wagner’s statement directly. After all, neither of us was in a position to know what the old woman saw, and beating up on public pensioners, even in the State of Illinois, might be considered bad form. Instead, my job was to trot out enough of the psychiatric research on eyewitness identifications to raise a specter of doubt about the identity of the woman who had been seen entering Gallagher’s home that night.
Hallie touched my sleeve to let me know it was time and said, “The defense calls Dante Marco Angelotti, MD.”
Bracing myself for what was to come, I rose, took my cane from my lap, and shook it out. Normally, when I had to walk any distance I used a rigid cane with a sturdy metal tip, but it was noisy and about as easy to store as a fishing rod, so I sometimes opted for “cane lite,” a folding model with a nylon marshmallow that could be glided along the floor like a ball bearing. The elastic cord running through it brought back some uncomfortable memories, but it was better suited for locations where I didn’t want to be seen waving a stick around like a drunken samurai. I held the cane out vertically and pushed it ahead of me in a little figure-eight motion until it met the steps leading to the witness box, pulled it up a few inches so it would graze the top of the risers, and climbed up. I performed a reverse maneuver at the top, planting the cane on the floor next to the chair and sliding my hand down its length to ascertain the seat height. All of this took several minutes to accomplish in a room otherwise quiet enough to pick out the scuttle of a cockroach.
The first order of business was my credentials. While lay witnesses are sometimes permitted to share their conclusions, more often a witness who offers an opinion—a so-called expert—must be shown to have some scientific, technical, or other specialized knowledge to back it up. In lawyer speak, this is referred to as “qualifying” the expert and is decided as a preliminary matter by the court. An expert witness doesn’t have to have a PhD—depending on the type of case, expert status could be awarded to a bricklayer—and the standard for deciding the issue is simply whether the testimony would be “helpful” to the judge or jury trying the case. Consequently, it didn’t matter that I hadn’t personally studied eyewitness identifications, so long as my background gave some assurance I wasn’t pulling my opinion out of thin air. Courts are also wary of hired guns spouting “junk science,” so my testimony had to be grounded in research that was considered valid by a significant swathe of the scientific community.
“I take it you’re not here to offer your own view of what the witness saw that night,” Judge Cudahay said in amusement when Hallie had finished running down my résumé.
“I think we can agree that my qualifications in that area would be suspect,” I quipped back to muffled chuckles.
“All right then,” he told Hallie. “You can proceed. But keep him honest. I know a con job when I see it,” he said to more laughter.
Hallie began with a series of questions that allowed me to explain that nationwide, eyewitness identifications played a part in as many as seventy-five percent of convictions later overturned because of DNA evidence. “What this tells us is that even the most well-intentioned witness can identify the wrong person,” I explained. “These cases have caused behavioral scientists and criminal-justice professionals to take a closer look”—I stopped and smiled impishly—“at the techniques for obtaining eyewitness identifications, in particular the common practice of asking witnesses to pick out a suspect from a live or photographic lineup.”
“When you say, ‘closer look’ what do you mean exactly?” Hallie asked, continuing the play-acting.
“I was referring to studies performed either in controlled laboratory settings or in the field that investigate which lineup procedures result in the fewest mistaken identifications. Generally speaking, researchers have focused on two areas: who administers the lineup and how it is performed—that is, simultaneously or sequentially.”
“With regard to the first area, what have these studies found?”
“Well, as you might expect, when the investigating officer himself conducts the lineup, as Detective Yanowski did here, there’s a significant risk that he will provide subtle verbal and nonverbal clues that lead the witness to identify the suspect the police already have in their sights. For example, when the witness is lingering over a particular photo, a statement along the lines of ‘take your time and make sure you look at all the photos’ can lead the witness away from a filler and toward the administrator’s desired choice.”
“Are you saying that the police do this on purpose?”
“It doesn’t have to be on purpose. It can be, and probably most often is, completely inadvertent. But it has led researchers to conclude that the best practice—and I’m not joking when I use this term—is a double-blind procedure in which neither the lineup administrator nor the witness knows the suspect’s identity. The studies I’ve cited also conclude that the rate of mistaken identifications goes down significantly when the lineup is conducted sequentially rather than simultaneously.”
“Have these studies offered a reason why?”
“Again, it gets back to human nature. In a simultaneous lineup, witnesses tend to use ‘relative judgment’—that is, they compare lineup photos to each other, increasing the risk that they will choose whoever looks the most like the person they remember. Sequential lineups require witnesses to use what’s called ‘absolute judgment,’ comparing each individual they see to their actual recollection of the suspect. In laboratory studies, using a double-blind, sequential technique results in identifications twice as reliable as those obtained from the lineup procedure Detective Yanowski used here.”
“Are there any other factors that cause you concern about the lineup procedures used by Detective Yanowski?”
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