Chapter 69
The following morning, the prosecution called Dr. Antoine Toure, a forensic pathologist. Dr. Toure was a tall, black man who walked like he was on stilts. He awkwardly adjusted his body in the cramped witness box, and neurotically dabbed sweat from his forehead with a white handkerchief. His three-piece suit, large maroon bowtie, and wire-rimmed glasses lent a professorial aura.
Paine began his direct examination by outlining Dr. Toure's education and experience. He encouraged the doctor to explain every tedious detail of his 35-year career, starting with his undergraduate degree. Finally, 40 minutes later, Paine got to the point. "Dr. Toure, what is your current duty position?"
"I serve as the Chief Medical Examiner at the Armed Forces Institute of Pathology," Toure explained in a crisp, clipped accent of a West African schooled in England.
"What are your duties as the Chief Medical Examiner?"
"I investigate sudden, unexpected, or unnatural deaths, and determine the cause and manner of said deaths?"
"Do you perform autopsies?"
"Yes. Routinely."
"How many autopsies have you conducted?"
"As the Chief Medical Examiner, or in total?"
"Both," Paine replied, with a smile.
Toure squinted and stared at the ceiling as if he was counting in his head. A moment later, he nodded at Paine. "Over 1,500 as the Chief Examiner," Toure said. "In total, I have conducted over 7,500 autopsies."
I studied the jury. They were all taking notes.
"Your Honor," Paine said, "the government asks this Court to recognize Dr. Toure as an expert in the field of forensic pathology."
"He is so recognized."
Paine moved on. "Dr. Toure, did you review the autopsy report in this case?"
"I did."
"What exactly did you review?"
"I carefully reviewed the examiner's report, the photographs, and the lab results."
"In the photos, did you observe anything unusual on the victim's body?"
"Yes. Both the upper and lower torso were covered with hematomas of varying sizes."
"What is a hematoma?"
"A hematoma is when blood collects outside of the blood vessels, and pools inside the skin. It's like bruising, but it can be life-threatening. You can see it clearly in the photographs."
"What causes a hematoma?"
"Trauma." Toure cleared his throat and continued, "Trauma is the primary cause of hematomas."
"What causes trauma?"
"Trauma can be caused by various things. Such as a car accident, a fall, a gunshot wound, or blunt force injuries."
"Doctor, what was the likely cause of the hematomas in this case?" Paine asked in a melodramatic tone.
"In my opinion, blunt force trauma. This man was struck dozens of times. This was not a natural death."
"Dozens of times?" Paine squinted like he was shocked by Toure's answer. "Why do you say dozens of times?" Paine emphasized the word "dozens."
Dr. Toure faced the jury and removed his glasses. "During my review of the file," he said, "I noted multiple areas on the body that were consistent with blunt force trauma. In the photographs, you will see many purplish-blue circles that are surrounded by lighter colored bruising. To me, each circle indicates a specific injury site."
"What type of trauma could have caused these injuries?"
"Possibly a club, a bat, a fist, a knee, or some other blunt object."
"Were you able to determine how many individual injuries were on the body?"
"I counted 16 separate hematomas that were well defined," Toure said. "There were several bruise clusters that were morphed together. These were likely caused by repeated trauma to the same area. "
"So, hypothetically, if someone struck this victim dozens of times with fists and knees, would you expect to see these types of injuries?"
"Absolutely."
"Doctor, have you formed an expert opinion as to the likely cause of Mr. Nassar's death?"
"Yes."
"What is that opinion?"
"This man was killed by repeated massive blunt force trauma to the body."
"Could you please put that in layman's terms?"
Toure sat up, turned to the jury, and intoned his opinion. "The man was beaten - to death."
"Thank you. Those are all my questions." Paine slowly plucked his notebook from the lectern and slinked back to the prosecution's table.
Judge Gianelli said to me, "Cross, Captain O'Donnell?"
I stood and walked to the podium. Now, it was my turn. "Doctor, you never physically examined the victim's body, did you?"
"I was asked to review photos, and to render a decision based on the autopsy report I received."
"So, you never personally examined the corpse?"
"No." Toure shook his head. "I did not personally examine the corpse."
"But you are certain as to the cause of death?"
"Absolutely," Toure snapped back. "The autopsy I reviewed listed blunt force trauma as the cause of death, and I concur that Mr. Nassar was beaten to death."
"With fists?"
"Pardon?"
"Did someone beat him with their fists, or was it a bat or a hammer or a golf club?"
"Oh, certainly not the last two," Toure replied.
"Why do you say that?"
"There are no gouges or deep lacerations. Something with an edge like a golf club - a nine iron, for instance - would have left canyons in the skin. A hammer could have cut the skin deeper as well." The doctor pistoned his arm back and forth as if wielding a Stanley claw hammer.
"What if the victim had fallen?" I asked.
"Objection," Paine said. "Calls for speculation."
"Overruled. Dr. Toure is an expert in forensic pathology. The very nature of his training requires highly-informed speculation. Please continue Captain O'Donnell."
"Doctor, what if the victim had fallen?"
"Perhaps," Toure said. "But it would've had to have been a long fall with multiple points of impact."
"Like down a flight of stairs?"
"Yes. That is possible but highly unlikely."
"Because?"
"First, there is no indication of broken bones," Toure said, "and I have been assured there are no long staircases at the site of the death. It is my professional opinion that the deceased died from repeated physical abuse, not a fall."
I shuffled through some documents, trying to buy time. Toure was polished, too polished. So, I switched tactics. "Doctor, were you present when the autopsied man died?"
Toure laughed. "No, of course not."
"Were you in Afghanistan when he died?"
"No, sir."
"Have you ever been to Afghanistan?"
Toure's eyes narrowed. "No."
"You did not conduct the autopsy in this case, did you?"
"I think we've established that fact, more than once," Toure said, glancing at the judge.
"You did not witness anyone beat Mr. Nassar, did you?"
"Of course not. I have never laid eyes on the man."
"You don't know who, if anyone, beat Nassar?"
"Correct."
"You don't know if one person beat him?"
"Correct."
"You don't know if 30 people beat him?"
"As I said, I was not there."
"So, 30 different people may have beaten him?"
"That's correct." A drop of sweat dripped from Toure's brow.
"You do not know for certain how he was beaten?"
"I cannot determine that from the autopsy report."
"You have no first-hand knowledge of when he died?
"Correct."
"You have no first-hand knowledge of where he died?"
"Correct."
"The man in the autopsy photos could have been killed anywhere?"
"I presume."
"Doctor, how do you know that the man in the photos is Hamza Nassar?"
Toure scoffed. "That's what it says on the rep
ort, doesn't it?"
"I am not asking what it says on the report. I am asking if you are 100 percent certain that the man in the photos is Hamza Nassar?"
"I assume the prison keeps accurate records," Toure replied.
"Let's not assume anything, Doctor," I said. "You are not 100 percent certain that the man in the photos is Hamza Nassar, are you?"
"No."
"Doctor, if I died, there are ways you could positively identify me as Max O'Donnell?"
"Well, yes."
"One way to identify me is through my dental records?"
"Yes."
"In this case, nobody used dental records to identify this body?"
"Not to my knowledge."
"You could use DNA to identify a body?"
"Yes."
I could see Paine out of the corner of my eye, frantically scribbling notes. I pressed on. "You could also use fingerprints, tattoos, scars, or birthmarks to identify a body?"
Toure nodded. "Yes."
"In this case, nobody used DNA, fingerprints, tattoos, scars, or birthmarks to identify this body?"
"I don't believe so."
"You could also use family members to identify a body?"
"Yes," he replied.
"That was not done in this case?"
"No," Toure said. "Not that I am aware of."
"Are you willing to bet your life that the body in the report is Hamza Nassar?"
"Objection," Paine said.
"Rephrase the question," Gianelli responded.
I nodded at the judge. "Doctor Toure, can you testify with a medical degree of certainty that the body in question is Hamza Nassar?"
"I don't know Nassar," Toure replied. "So, I cannot say for certain."
"Is it possible that the dead man in the photos is not Nassar?"
"Anything is possible. I cannot confirm the identity, just the likely cause of death."
"Is it possible that the man was killed at a different location? By someone other than Sergeant Jefferson?"
"Objection," Paine shouted as he threw his pen across the table. "This is preposterous."
"Overruled, and watch your tone." The doctor wiped the sweat from his brow. "Dr. Toure, please answer the question," Gianelli said.
"I cannot say where this man died or who was involved with his death," Toure said. "All I can say is that his death was likely the result of blunt force trauma."
I turned to Judge Gianelli. "Your Honor, I have no further questions."
Chapter 70
Colonel Paine started with his two strongest witnesses - Cullen and Toure - and now he was building. From Tuesday afternoon on, for over two days, a parade of bad character witnesses took the stand and trashed Jefferson. I attempted to interview all these witnesses before trial. Every single one refused to speak with me. We did the same dance when Jefferson and I reviewed the final witness list.
Me, asking: "Who's this?"
Jefferson, blank expression: "A guy from my unit," "A dude at the grocery store," "A buddy of mine," "Someone I knew in high school." He never amplified or expanded his remarks. His confidence in his own likeability seemed unshakable, and way off base. I was flying by the seat of my pants as I cross-examined each witness.
Witness after witness spoke of the quiet terror Jefferson instilled in people, his willingness to intimidate, his occasional lack of judgment and self-control. They testified to his destroying a high school locker with a football helmet, his profanity-laced tirades at peewee football referees, his road rage. Another witness recalled how Jefferson had shot-putted a paper boy's bicycle across the street because the morning news consistently landed in the bushes - instead of on the front stoop.
I parried the charges and accusations as best I could. Still, Jefferson's complete lack of self-awareness (or his total lack of memory) made any aggressive defense almost impossible. By far, the prosecution's most ridiculous witness was Maria Gutierrez. Paine affixed his most concerned face.
"Mrs. Gutierrez, how long have you known the defendant?"
Maria's thick accent made comprehension a little challenging, but I knew the jury was getting the drift. "Mr. Jefferson (it came out 'Yefferson'), nasty man."
I stood. "Objection."
"Sustained."
Paine continued, "Ma'am, how many years have you known Sergeant Jefferson?"
"Muchos años," she said. "Many years."
"How do you know him?"
"He beat my son, José."
Again, on my feet. "Objection. This is absolutely irrelevant."
I turned to Jefferson as Gianelli contemplated my objection. "What's her story?"
He shrugged. "Don't know."
As usual, Jefferson was holding out on me, and it was hurting his case. I squeezed Jefferson's forearm and whispered. "Listen, asshole, you told me this lady was a family friend. Now, she says you beat her son. What the fuck is going on here?"
"She's more of an old acquaintance. Me and her son had some dust-ups in the past, but that was 15 years ago when we were in middle school. Ya know, kid stuff."
"When was the last time you fought with her son, no bullshit?"
"In middle school. In high school, we hung out together. We played ball together. I swear to God."
"You don't have to swear to God. Just stop holding back information."
He nodded. "Yes, sir."
I stood and addressed the judge, but I wanted the jury to hear, "Your Honor, this testimony is irrelevant. Mrs. Gutierrez is referring to an incident that happened 15 years ago. Sergeant Jefferson and her son, José, got into a fight in middle school. They were both suspended. Eventually, they became friends. They played high school football together." I repeated for emphasis. "It was 15 years ago."
Gianelli turned to Paine. "How is this relevant?"
"It goes to Sergeant Jefferson's propensity to commit violent crimes. It's Jefferson's modus operandi to beat and abuse innocent victims."
"Well, we're talking about 12-year-old boys," Gianelli said, shaking his head. "They probably hadn't hit puberty yet. This is not relevant."
"But, Your Honor," Paine protested.
Gianelli held up his hand, instructing Paine to stop. He then turned to the jury. "You are to disregard the testimony of Mrs. Gutierrez as it relates to Sergeant Jefferson allegedly assaulting her son. That information is irrelevant. It shall be completely disregarded by you. Do you understand?" The members of the jury nodded. "Now, does Mrs. Gutierrez have anything relevant to add?" Paine returned to the prosecution table and whispered with Major Weiss for what seemed like five minutes. "Colonel Paine, do you have any more questions of Mrs. Gutierrez?" Gianelli asked, the frustration in his voice evident.
"I have one follow-up."
"Go ahead."
"Mrs. Gutierrez, in your opinion," Paine said, "is Tyler Jefferson, a violent or peaceful person?"
"Objection."
"Overruled," Gianelli said, "but she's limited to her personal opinion. Feel free to attack the foundation for her opinion on cross-examination." Gianelli turned to the witness. "Ma'am, please answer the question."
Mrs. Gutierrez nodded. "Tyler is a violent man. Very dangerous."
"No further questions," Paine said and took his seat.
"Captain O'Donnell," Gianelli said, "you may cross-examine the witness."
I considered questioning Mrs. Gutierrez about her son's supposed friendship with Jefferson. I went with my gut and got her off the witness stand as quickly as possible. "Your Honor, I have no questions."
Chapter 71
Gianelli was the featured speaker at an American Bar Association conference in San Francisco on Friday. We were done after Thursday's session with the understanding that we would reconvene on Monday morning. If the weather had been decent, I might have played golf, even though I feared running into Paine and being tempted to cave in his head with a sand wedge. The temperature dropped, and the wind howled. No way I was going out. Every night, Reggie dropped by my room to see if I wanted to "gra
b dinner and drinks." I told him I had a lot of work to do and ordered take-out.
On Monday, we were delayed for reasons no one ever bothered to explain. At noon, when court finally got underway, the prosecution called Brian Rickard as their first witness, with Major Hanna Weiss asking the questions. Rickard had worked at Sangar at the same time as Jefferson. He left the Army after his deployment and enrolled at the University of Texas.
Brian Rickard was a pretty boy, tall and lean, with light brown eyes. At Sangar, the Meatheads teased him when they learned he had been a high school cheerleader. Jefferson was the soldier who harassed him the most. Now, it was Rickard's turn for payback.
After Brian Rickard took the witness stand, Major Weiss got straight to the point. "Mr. Rickard, while you were deployed to Sangar Prison, did you ever witness Sergeant Jefferson strike a prisoner named Hamza Nassar?"
"Yes, I did," Rickard said, "on more than one occasion."
"Tell us what happened."
"On the first occasion, I was working the isolation cells. That's where we kept Nassar. My shift had ended, and Sergeant Jefferson was my replacement. After I briefed him on the status of the prisoners, I left for the evening."
"Then what happened?"
"I was turning in my gear, and I realized I left my canteen in isolation. So, I walked back over there."
"And?"
"Well, Jefferson wasn't at the desk where he was supposed to be."
"Did you find that odd?"
"Yeah," Rickard said. "Guards are supposed to stay at the desk. We're not allowed to go into the cells alone. For safety reasons."
"Interesting," Weiss said. "Where was Sergeant Jefferson?"
"I found him inside Nassar's cell. He was working him over like a speed bag."
Jefferson shifted nervously. Then, he leaned toward me and started mumbling gibberish. "Write it down," I said to him. Jefferson scribbled "Fucking Liar" on a scrap of paper and handed it to me. It was hard enough to focus without having to filter out Jefferson's babbling. I crumpled the note and caught up with Weiss.
"Where were you standing when Jefferson struck Nassar?" she asked Rickard.
"Outside Nassar's cell. Looking through the small window."
"What did you do next?"
"I pretended like I didn't see anything. I just took my canteen and left."
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