He looked up from the report and seemed to be mulling over what I’d just said. But I could already tell from his body language that he was going to help us.
“Mr. Montgomery had been having excruciating migraines for several months,” he said. “About four weeks before he died an MRI confirmed that he had a brain aneurysm.”
Dr. Davis abruptly stopped. A look of regret covered his face. “I scheduled surgery. Twice. But Mr. Montgomery put it off both times. Claimed he had business matters he couldn’t postpone even though he knew failing to have the surgery could kill him.
What he had just said got me so excited I had to force myself to remain seated. I wanted to snatch the phone from his desk and call Neddy.
He turned to look out of the window to his right, probably wondering if he should have tried harder to get Max into surgery.
So your theory that Mr. Montgomery died from a ruptured aneurysm isn’t just possible, Ms. Henderson,” Dr. Davis said, turning back to face me. It’s quite probable.”
CHAPTER 59
The first thing you learn as a practicing attorney is that more often than not, the success of a particular defense strategy often has very little to do with the actual facts of the case and a whole lot to do with luck. Tina wasn’t just lucky, she’d hit the Super Lotto Plus.
The next day, Julie didn’t even blink when Neddy called Dr. Raymond Riddick to the stand.
It was routine in any case that involves medical evidence for the attorneys on both sides to include a medical expert among their list of witnesses, even if they have no intention of ever calling the expert to testify. Our chosen medical expert was Dr. Riddick, a former emergency room physician who had testified in dozens of cases involving stab wounds. Now here’s where the luck comes in. Dr. Riddick was also a board certified neurologist, which meant he knew a great deal about brain aneurysms.
“Dr. Riddick, what is your practice area?”
“I’m a neurologist, which means I specialize in the diagnosis and treatment of nervous system disorders, including diseases of the brain, spinal cord, nerves, and muscles.” Dr. Riddick resembled Tom Hanks with a slightly larger nose.
“Can you tell the jury how long you’ve—”
Julie was on her feet, waving a copy of the doctor’s curriculum vitae we had produced. “The prosecution will stipulate that Dr. Riddick is qualified to testify as an expert and that he’s board-certified in neurology, even though I have no idea why that’s relevant.”
Judge Graciano did not like Julie’s added commentary and the judge’s scolding glare told Julie and everybody else in the courtroom that it was inappropriate.
“Your Honor,” Neddy said, “I have a right to cover the witness’s educational background for the jury. After all, he is testifying as an expert.”
“You’re right, counselor,” the judge said. “But let’s see if we can speed things up a little.”
Neddy ran through the rest of Dr. Riddick’s medical background, which included a couple of degrees from Harvard and a residency at Johns Hopkins. He currently worked in the trauma center at Cedar-Sinai in Los Angeles.
“Dr. Riddick, I’d like to show you Exhibit 12, the autopsy report. Have you seen this document before?”
“Yes, I have.”
“Please turn to page three and read the third line down for me.”
“Cause of death: multiple stab wounds.”
“Now can you read farther down the page, the fourth paragraph, where the report refers to intracranial bleeding. Please explain what that means.”
Dr. Riddick took a few seconds to review the report. “It means that the coroner found bleeding in the cranium. From the amount of blood noted here, I’d say it was pretty excessive.”
“Is it normal to find that much blood in the cranium following a stabbing in a lower part of the body?”
“No. There’s no connection between the two.”
“Then what could cause the bleeding found in Mr. Montgomery’s head?”
Dr. Riddick turned to face the jury. He testified often and had a confident, authoritative communication style. “Probably two of the most common sources would be trauma to the head or a ruptured aneurysm.”
Julie leaned over and whispered something to Sandy. I saw nothing but confusion on her face.
“Is there anything in the report that indicates Mr. Montgomery suffered trauma to his head?”
Dr. Riddick scanned the autopsy report again. “No. There was a slight bruise on the right side of his head. But there’s nothing in here that would indicate that Mr. Montgomery suffered the kind of head trauma that would cause this much bleeding.”
“Dr. Riddick, can you please explain to the jury, in layman’s terms, exactly what an aneurysm is?”
“Objection, irrelevant,” Julie shouted.
“Counselor,” the judge said to Neddy, “I would have to agree. Can you tell me where you’re going with this?”
“Your Honor, I need just a little leeway here. You’ll see shortly that Dr. Riddick’s testimony is quite relevant.”
The judge grimaced. “Okay, but just don’t take all day getting there.”
Neddy returned to her witness. “Dr. Riddick, you were about to tell the jury what an aneurysm is.”
“Sure. There are two kinds of arteries in the human body—blood vessels and veins,” he said. “The human brain contains a dense network of arteries that are normally sturdy enough to last a lifetime. But if there’s a weak spot in an artery and blood presses against it, it begins to bulge. This bulge, if it occurs in an artery in the brain, is called a subarachnoid hemorrhage or brain aneurysm. It if ruptures, it’s usually fatal.”
“Would someone even be aware that they had an aneurysm?” Neddy asked.
Dr. Riddick turned to face the jury again. “No. About five percent of the general population have aneurysms, but most don’t know it because they’re asymptomatic. As long as the wall of the artery remains intact, an aneurysm is a silent tragedy waiting to happen. Often, there are no symptoms.”
“What causes an aneurysm?”
“Several factors could be the source—high blood pressure, a head injury, a brain infection. Most aneurysms, however, result from a developmental abnormality. Those who suffer from them are genetically predisposed.”
Neddy walked back over to the defense table and prepared to move in for the kill. “Based on your review of the information in the autopsy report, in your expert medical opinion, is it possible that Max Montgomery suffered a ruptured aneurysm the night he was stabbed?”
Julie shot up out of her chair. “Objection! Calls for speculation! Irrelevant!” Her fists were tightly clinched and she was yelling at the top of her lungs. “This is complete speculation, Your Honor!”
Loud murmurings whipped back and forth across the courtroom. Everybody in the room, including Judge Graciano, seemed riveted by Dr. Riddick’s testimony.
“Counsel, please approach the bench!” the judge said, almost as rattled as Julie.
As the three of them huddled near the bench, I knew Julie was arguing that this line of questioning was totally speculative. But Neddy could counter that by asserting that a medical expert has the right to give his personal opinion regarding the cause of death and that the defense had evidence to support Dr. Riddick’s theory.
When I saw Julie’s shoulders sink, I knew that Judge Graciano was going to allow Dr. Riddick’s testimony.
Neddy walked back up to the witness box and faced the doctor. “Dr. Riddick, I’ll ask the question again. Based on your review of the autopsy report, in your medical opinion, is it possible that Max Montgomery suffered a ruptured aneurysm?”
“Yes, it is.”
Julie was gripping the edge of the table, poised for her next objection.
“And what is that conclusion based on?” Neddy asked.
“The excessive amount of blood in the intracranial region as stated here on page three of the autopsy report.” He pointed at the document.
&n
bsp; “And if Mr. Montgomery did suffer a ruptured aneurysm, in your medical opinion, could it have happened after he was already dead from the stab wounds?”
“No, because—”
“Objection!” Julie almost fell to the ground trying to get out of her chair. “There is no valid basis for this speculative testimony!”
Once again, murmuring from the captivated audience filled the courtroom. The judge seemed increasingly concerned about the line of questioning as well.
Neddy had a confident look on her face. “Your Honor, Dr. Riddick is a Harvard-trained medical expert who’s testifying as to his personal medical opinion. Ms. Killabrew will have an opportunity to cross-examine him.”
Judge Graciano rubbed her forehead. “I agree,” she said, though it sounded like she didn’t. “Overruled.”
Every pair of eyes in the room focused on Dr. Riddick.
“Now, Dr. Riddick,” Neddy continued, “you were about to explain why you don’t believe the aneurysm could have ruptured after Mr. Montgomery was already dead.”
He turned to face the jury again. “You need a buildup of blood pressing against the wall of an artery to cause an aneurysm to rupture. If Mr. Montgomery had been killed by the stab wounds, his heart would’ve stopped pumping. That would’ve immediately stopped the build up of blood in the brain, relieving the pressure on the aneurysm, preventing it from rupturing.”
“So what you’re telling us, Dr. Riddick, is that assuming Mr. Montgomery had an aneurysm and that the aneurysm ruptured, it wouldn’t have ruptured if he had already suffered a fatal stab wound.”
“Yes. That’s exactly right.”
Julie was out of her chair again, but the judge waved her back down before she could even open her mouth.
A couple of reporters eased out of their seats and dashed for the door, no doubt wanting to be the first on the air to report this new theory of Max’s cause of death. Neddy had done an excellent job of setting up Dr. Davis’s testimony. When we called him to testify about Max’s personal medical history, even the judge would be convinced that it was the aneurysm, not the stab wounds, that killed him.
Neddy borrowed a page from Julie’s playbook and pretended to look through a folder on the defense table. She wasn’t searching for anything in particular. What she was doing was giving the jury time to mull over Dr. Riddick’s dramatic testimony.
“One last question, Dr. Riddick,” she said, turning back to face him. “In your expert medical opinion, would it be correct to say that whoever stabbed Max Montgomery in that bathtub was very likely attacking a dead man?”
“Yes,” he said, nodding his head up and down. “That would be quite correct.”
CHAPTER 60
During the afternoon recess, Neddy slapped a motion to amend our witness list on the corner of the prosecution table. When Julie read it, her face turned bright red.
“What’s this?” she said politely, though her flaming cheeks belied her calm demeanor. She was probably still smarting from her lousy cross-examination of Dr. Riddick. Every angle she’d used to attack his testimony had failed.
“It’s exactly what the caption says it is,” Neddy replied.
I was standing near the defense table. Most of the spectators were out in the hallway and Tina and David were next door in the meeting room.
The document quivered in Julie’s hand. “So is this tit for tat? I amend my witness list, so you amend yours?”
“No, I don’t play those kind of games.” Neddy smiled. “I amended my witness list because I have a valid witness to call whose existence I didn’t know about earlier. As it states in the motion, Dr. Davis was Max Montgomery’s personal physician. His testimony is key to our defense. We only discovered a couple days ago that he had relevant information.”
“Then maybe you should’ve advised me of that a couple of days ago,” she sulked.
“And maybe you should’ve shown me the same courtesy before you paraded Garrett Bryson in here.”
Julie smiled arrogantly. “We’ll, I’m opposing the motion,” she said.
“Tell me something I don’t know.”
Just then, the judge climbed onto the bench and asked the bailiff to hold off on bringing the jury back in. I ran next door to get David and Tina.
“I understand there’s a motion we need to discuss before bringing the jury back in,” the judge began.
“Yes,” Julie said, before Neddy could speak. “I’d like to oppose the defense’s motion to introduce a new witness. This constitutes unfair surprise as well as cumulative testimony.”
“Counselor, do you have an offer of proof as to the doctor’s testimony?” Judge Graciano asked, as she skimmed the motion.
“Dr. Davis will testify regarding Mr. Montgomery’s personal medical history, which directly relates to our theory that he suffered an aneurysm.”
“Why wasn’t this witness identified earlier?” she asked.
“Because we learned this information less than forty-eight hours ago, after discovering that the coroner had listed the wrong cause of death on the autopsy report. Then we had to track down Mr. Montgomery’s personal physician.”
“Introducing a witness this late in the trial could be extremely prejudicial,” the judge said. “Is this your last witness?”
“Yes, Your Honor.” Neddy was trying hard to keep her cool. It sounded as if the judge was about to tell her she couldn’t call Dr. Davis. We had gained a lot of ground with Dr. Riddick’s testimony. But we needed Dr. Davis to seal things for us.
Julie went mute. Like most smart lawyers, she knew how to keep her mouth shut when things appeared to be going her way. I was surprised that she didn’t try to argue that Dr. Davis’s testimony would violate the doctor-patient privilege. Both Neddy and Julie looked as if they had stopped breathing. I hoped that the judge made a decision before one of them passed out.
“I’m granting your motion,” the judge said suddenly. She waved her hand toward the court reporter. “Let’s put this on the record. I want defense counsel’s reasoning for coming forward so late in the trial clearly spelled out in the record.”
“Your Honor—” Julie began, alarmed at the judge’s decision.
“Save it. I’ve made my decision.”
Julie trudged on anyway. “Your Honor, I’d like to request that we break for a couple of days to allow the prosecution to prepare for the cross-examination of this witness.”
We didn’t want a break in the case. One juror was already dozing off a good part of the day. We needed Dr. Davis’s testimony to closely follow Dr. Riddick’s. That would clearly hammer home that it was highly likely that Max Montgomery was already dead when he was attacked in his hotel suite.
“Your Honor,” Neddy said, as respectfully as possible, “we’re fine with giving the prosecution a break to prepare for Dr. Davis’s cross, but we’d like to request that you do so after the defense completes its direct examination of Dr. Davis. The doctor has a very busy practice. He’s made plans to testify tomorrow morning and has cleared his surgery calendar. I’ve already provided Mr. Montgomery’s medical records to Ms. Killabrew. The defense strongly urges the court not to unduly prejudice the defendant by disrupting the flow of the trial. The jury’s already suffering from cabin fever.”
The judge was quiet for a while, then raked her fingers through her hair. “You’re right, counselor. The jury’s anxious to get this trial over with and so am I.” She glanced at her watch. “It’s close to four now. Let’s break for the day. After Dr. Davis testifies tomorrow morning, if the prosecution needs time to prepare for its cross, I’ll give the prosecution half a day. But we need to move this trial along.”
CHAPTER 61
By my estimation, next to Dr. Riddick, Dr. Davis would be the most important witness to take the stand during the entire trial. And when the bailiff called his name the following morning, the entire courtroom seemed to be on pins and needles.
Dr. Davis strolled down the center aisle like a movie star walking th
e red carpet. He had traded his white coat for a navy blue gabardine suit straight off the pages of GQ. He had not been happy when Detective Smith served him with a subpoena, but I’d managed to calm him down after explaining how critical his testimony was to Tina’s defense and by promising that he would not have to hang around the courthouse waiting to be called to the stand.
Neddy quickly covered Dr. Davis’s educational background, which was quite impressive. Princeton undergrad, UCLA Medical School. He was board certified in both neurology and plastic surgery. Now everything made sense. I’d later learned that Dr. Davis’s office had two separate entrances—one for his neurology patients, and one for his plastic surgery candidates. Tummy tucks and breast enhancements were his specialties. Neddy wisely glossed over that aspect of his practice.
“Was Mr. Montgomery a patient of yours?” she asked.
“Yes, he was. I treated him for the last few months.”
Julie slowly rose from her chair. Someone must have fussed at her for losing it during Dr. Riddick’s testimony because she was the complete picture of composure. “I object, Your Honor. Dr. Davis cannot disclose information about Mr. Montgomery’s medical condition. Doing so would violate the doctor-patient privilege.”
I surmised that Julie had purposely avoided raising that objection earlier with the judge, keeping her last trump card close to the breast in hopes of derailing our aneurysm theory.
“Your Honor, Ms. Killabrew could’ve raised this issue at the time the court heard our motion. Since she failed to do so, she’s waived that right. In any event, if Ms. Killabrew had done her research she would know that since Mr. Montgomery is deceased, his wife can waive the doctor-patient privilege, and she chooses to do so. I refer the court to California Evidence Code Section 993.”
Judge Graciano was clearly annoyed with Julie. The judge had already made it clear that she intended to allow Dr. Davis’s testimony. “Overruled,” she said.
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