Kirchner looked to McDaniels. “Any redirect?”
Talon could see McDaniels considering the points Talon had made:
The markings on damaged bullets were less reliable than on perfect bullets.
Casings can’t really be linked to a specific handgun absent additional information.
Experts can disagree.
There wasn’t anything to rehabilitate there.
“No, Your Honor,” McDaniels answered. “Thank you.”
The judge excused Langston, his irritation at Talon poorly concealed as he stomped his way out of the courtroom. When he’d left and the door closed behind him, Kirchner looked again to McDaniels. “Any further witnesses, counsel?”
But Quinlan popped to his feet. “No, Your Honor,” he answered. “The State rests.”
Chapter 39
Judge Kirchner wasn’t about to make Talon put her case on immediately upon the State resting theirs. Professional courtesy was to adjourn for the day and start fresh in the morning with the defense case. As was typical for a murder case with over thirty prosecution witnesses, it had taken the State weeks to put on their case-in-chief. One more night wouldn’t make a difference. Not for the State anyway. But maybe for the defense.
After Langston’s testimony, Talon and St. Julian had conferred one more time back at her office. St. Julian would be there at ten to nine. Talon would bring her second script, the one St. Julian had all but drafted.
“Ask me these questions, in this order,” had been her directive. And while Talon wasn’t usually one for taking directives, she knew when to make exceptions.
The next conference was with Michael. There wasn’t much strategy for that. It was just a check-in. “How are you holding up?” “Do you have any questions?” Things like that. There was only one strategic decision to make.
“Is he going to testify?” Curt asked after Talon sent Michael home for the night, to spend time with his wife and kids. She left off the ‘while you still can’, but it was implied.
“No,” Talon shook her head. “I can’t put him on the stand.”
They were alone in her office. The workday hadn’t quite ended but people were trickling onto the street and into the roadways for the commute home.
“Why not?” Curt asked. “He’s articulate and likeable. And the jury’s going to want to hear him say he didn’t do it.”
Talon put her feet up on her desk. It had been a long day, a long trial. “Well, that’s the problem, isn’t it? I don’t know if he’ll say that.”
Curt frowned. “He should still say it, even if it’s not true.”
“Yeah, I’m not supposed to suborn perjury, remember?”
“It’s not perjury if you don’t know whether it’s true,” Curt replied. “You taught me that.”
“Sure,” Talon agreed. “But telling someone to testify to anything qualified by ‘even if it isn’t true’ is a little too close for me. Anyway, it doesn’t matter. He told me he won’t testify. His brother won’t testify. All I have is Anastasia St. Julian.”
“That’s nothing to sneeze at.” Greg Olson had appeared in the doorway. “I told you she was good. The jury will think so too.”
Talon dropped her feet to the floor again. “I don’t doubt it. I just hope the jury doesn’t vote based on how long each side’s case was. Theirs was four weeks. Mine will be forty minutes.”
Olson waved the idea away. “Nah, she’ll take longer than that. A few hours at least, depending on cross.”
“Followed by a meek, ‘The defense rests,’” she answered. She shook her head. “I wish we had more to put on, but…”
“But it’s not your job to put on evidence,” Olson opined. “It’s theirs. You don’t have to disprove the allegation; they have to prove it—beyond a reasonable doubt.”
“I know how it works,” Talon joked. “I’m just not sure the jury will stick to the script. It was a murder, for God’s sake. Somebody’s dead. And my guy isn’t going to take the stand and say he didn’t do it.”
“Most defendants don’t,” Olson observed.
“Most defendants are convicted,” Talon replied. “Right?” She was still new to this criminal stuff, after all.
Olson shrugged and smiled. “Right,” he conceded.
“Did you make a half-time motion?” he asked.
“Do those ever work in criminal cases?” Talon asked.
“What’s a half-time motion?” Curt added.
Olson answered Curt’s question first. “It’s a motion you make after the State rests. You argue they didn’t prove the case and the Court should dismiss it right then.”
“Do those get granted?” Curt repeated Talon’s question.
Olson thought for a moment. “No,” he laughed. “Not usually. It’s more for the show of it. Personally, I’m not a big fan. To make it sound credible, you have to point out all the stuff the State forgot to prove. But if you do that, they can always re-open their case.”
“I thought there was something magical about resting your case,” Curt said.
“Maybe in a shoplifting case,” Olson answered. “But no judge is going to dismiss a murder case because the prosecution forgot some small detail. It’d have to be huge.”
“They forgot to say my guy identified the murder weapon as his gun,” Talon offered up.
Olson raised his eyebrows. “That’s pretty big.”
“That’s why I didn’t make the motion,” she replied.
“Because you might win?” Curt asked, incredulously. “That’s crazy.”
“That’s brilliant,” Olson disagreed. “They don’t know they missed that, do they?”
Talon smiled. “Nope. That’s the downside of four weeks of witnesses. You can’t keep track. Neither can the jury or the judge for that matter. But I caught it. And I’ll be sure to point it out in closing argument. But not sooner.”
“But the judge might dismiss the case,” Curt protested. “Isn’t that worth it?”
Talon and Olson both shook their heads. “No, Curt,” Talon said. “Greg’s right. Defendants are guilty, prosecutors are whiny, and judges are elected. Even if Kirchner agreed it was a fatal flaw, she’d let them fix it, and then I’d lose it for closing. No, I’m going to let them think they did such a great job that I didn’t even bother making a half-time motion. When I point it out in closing, it’ll be way too late to recall Sergeant Mark Brennan, Tacoma P.D.”
Chapter 40
Talon sent Curt home so she could get some rest. Her direct examination of St. Julian was already scripted, so she didn’t need to prepare, but she didn’t need any unnecessary adrenaline rushes from protected flirting either. Not yet. An expert ballistic witness was about precision, not emotion. Now, closing argument? That might be a different story…
She shook the thought out of her head.
“Are you okay?” Michael asked her. They were seated in the courtroom, ready for battle. St. Julian was waiting in the hallway. Quinlan and McDaniels were in place next to them, also at the ready.
Talon smiled. “I’m perfect.” She lowered her voice. “Last chance. You’re sure you don’t want to testify?”
Michael didn’t smile. But he nodded. “I’m sure.”
“I know,” Talon answered. “But I had to ask one more time.”
The judge came out then and took the bench.
“Is the defense ready?” she asked once everyone was seated again.
Talon stood. “Yes, Your Honor.”
Kirchner looked to her bailiff. “Fetch the jury.” He did and a few moments later, Talon announced, “The defense calls Anastasia St. Julian.”
Curt was in the courtroom again—he was as emotionally invested as anyone. Well, almost anyone. Alicia Jameson might disagree. He stood up as Talon announced their witness and retrieved her from her seat on the benches in the hallway. St. Julian had exchanged her blue jeans and flannel from their first meeting for a muted gray pantsuit. She carried a binder of papers under her left arm so she could raise her right h
and and swear to tell the truth, the whole truth, and nothing but the truth.
This time Talon got to go first. She took a comfortable spot at the bar, and began their predetermined dialogue.
“Please state your name for the record,” she said. “And spell your last name for the court reporter.
“Anastasia St. Julian,” she answered. Talon had told her about the ‘don’t disrespect me by looking away’ thing with Halcomb, so St. Julian made sure to give her answers back to Talon, with an occasional glance to the jury to confirm she knew they were important too. “S-T, new word, J-U-L-I-A-N. My friends call me Ann.”
Talon knew it was just background, not an invitation. “Ms. St. Julian, could you please state your education, training, and experience in the field of ballistics examination?”
So she did. Starting with her B.A. in mechanical engineering and ending with her retirement from supervising the Washington State Patrol Crime Laboratory. Where Arnold Langston worked.
“Have you had an opportunity to examine the evidence in this case?” Talon asked.
“Yes.”
“Did you examine it yourself or just read the reports of others?”
“I examined it myself.”
“Did you also review the reports of Arnold Langston of the Crime Lab?” Talon continued along their script.
“Yes, I did,” St. Julian answered.
“And did you have the opportunity to listen to his testimony yesterday?”
Again, “I certainly did.”
“What do you think?” Talon asked.
“I think he’s wrong.”
Nice, Talon thought. But they weren’t done.
“What was he wrong about?”
“His opinion isn’t supported by the evidence.”
Again, good, but in need of more explanation. “Could you explain, please?”
St. Julian nodded. This time she did look to the jury. After all, she was asking them to trust her over him. “He isn’t wrong about what he observed, but what he observed isn’t sufficient to support his conclusions.”
That sounded kind. He’s not dumb, just stupid.
“Mr. Langston made it sound like the matching of striations on the sides of fired projectiles is purely objective. Like on television when a computer program superimposes the patterns and then a large green sign pops up, flashing ‘Positive Match!’ But it’s not like that in real life. Especially not when you’re dealing with a deformed projectile.” She turned back to Talon. “May I use the easel?”
“Why, of course,” Talon answered. What a wonderful, not at all pre-planned idea. Every courtroom in the courthouse had a portable easel and a large pad of butcher paper for witnesses to draw diagrams when necessary. It was typically used for drawing things like car crashes and the like. But a picture was worth a thousand words, whether it was car crashes or deformed projectiles.
She positioned the easel so the jurors could see while she drew on it. She started with a normal projectile.
“This,” she explained as she drew a profile of it, square at the bottom, pointed at the top, “is a fired, non-deformed bullet. I’m just going to call it a bullet. We don’t have to say projectile. We all know what we’re talking about.”
Informative and folksy. Perfect. The jurors were paying attention.
“This can happen any time the bullet doesn’t hit anything hard enough to smash the metal. It might pass through a series of soft materials, flesh, fabric, wood, until it loses enough velocity to come to rest without deforming. In the lab, we fire into water or a special jelly that stops the bullet without deforming it.”
Then she drew a series of unevenly spaced lines down the side of the bullet.
“These are the scratches the bullet received when it travels down the barrel of the gun. Now if we get a second non-deformed bullet from the same gun…”
She drew another bullet next to the first and added the same pattern of uneven lines on it.
“…you can see how we can identify it as being fired from the same weapon. These lines are identical and are almost certainly unique to a particular firearm. But…”
Underneath the first pair of bullets, she drew two more: one normal-looking, the other smashed down like a mushroom.
“…if you compare a non-deformed bullet with a deformed bullet, well, that’s something different altogether.”
She replicated the scratch pattern on the first, normal bullet. Then she started drawing lines on the mushroom bullet.
“When the metal of the bullet is deformed, so is the pattern of scratches. It twists and turns and expands. Lines that were parallel on the non-deformed bullet may get pressed together into a single line, or may end up pushed far apart from each other. It’s like taking an impression from silly putty, then stretching it. They won’t line up when they’re super-imposed. There’s no ‘Perfect Match’ to flash on something like this.”
“So does an analyst make a match?” Talon asked.
St. Julian looked at her drawings and shrugged. “Honestly, it’s a guess. At this point we move from science—precise measurement and repeatability—to art—interpretation and conjecture. Do these lines look like they could have been the same if we stretch the silly putty back into its original position? But, of course, you can’t stretch a bullet back into its regular position. And the more damaged a bullet is, the more difficult it can be to make this kind of judgment. But no matter what, that’s what it is: a judgment. A guess.”
“Thank you,” Talon said. It was a signal for St. Julian to re-take the witness stand while Talon fetched Exhibits 5, 13, and 37 from the bailiff.
“You said you had the opportunity to examine these items of evidence?” Talon asked as she handed them to St. Julian.
“I did,” St. Julian confirmed.
“Did you also test-fire bullet from Exhibit Thirty-Seven?”
“Yes.”
“Did you compare them to the fired bullet that is Exhibit Thirteen?”
“Yes.”
“And what was your conclusion?” Talon asked.
“The bullet is too damaged to determine whether or not it was fired from this particular handgun.”
“You mean, you couldn’t tell?” Talon followed up.
“No,” St. Julian clarified. “I mean it is scientifically impossible to determine whether it was fired from the handgun. It is too deformed to be able to make that determination. It’s not that I couldn’t do it. It’s that no one could make that determination.”
“Arnold Langston did,” Talon pointed out.
“Arnold Langston is wrong,” St. Julian replied. “You can’t rule the weapon out. It has five lands and grooves with a right twist, and even in its deformed state, those gross characteristics are decipherable. But the fine difference in striation patterns is too compromised in the deformed bullet to be able to match it to any individual handgun.”
So far, so good. But there was more. It was necessary for the jury to hear St. Julian say Langston was wrong, but it wasn’t sufficient. They needed a reason to believe it.
“Why would Mr. Langston say they matched when you say a match can’t be made?” Talon asked.
“It’s not Mr. Langston’s fault,” St. Julian offered, not directly in response to the question, but directly in line with the script.
“Why not?” Talon provided the next line.
“Mr. Langston works for the Washington State Patrol Crime Laboratory,” she answered. “It’s a law enforcement agency, not a purely scientific lab. They don’t take the precautions a more objective lab would take.”
“What do you mean?”
“At a purely scientific lab, all testing should be independent,” St. Julian explained, “and it should be conducted with no knowledge of why the testing is being requested. Also, there should always be a control. For example, in this case, the fired bullet in Exhibit Thirteen should have been submitted with another, random deformed bullet that was definitely not fired from that handgun. That way, if the analys
t found that both were fired from the same gun, we could know the analyst was going too far in his conclusions. As it is, Mr. Langston was provided a bullet and asked to confirm what detectives already suspected. That’s called confirmation bias. Law enforcement doesn’t submit bullets and a gun to the lab just for fun. They only do it if they already suspect there’s a connection. The analyst knows that and therefore may see confirmation where there really is none. That’s why a known control sample is so important, but it wasn’t done here.”
“Interesting,” Talon said. “Anything else?”
“Yes,” St. Julian answered, not surprisingly. “They submitted both the casings and the bullet to the same analyst. So again, the analyst not only knows the detectives want a match between the bullet and the gun, they also want a match between the casings and the gun. So first the analyst stretches to connect the bullet to the gun, then uses the casings to confirm his already biased conclusion about the bullet. Because, you see, the analyst knows where all the items are from.”
“Wait,” Talon faux-interjected. “Are you saying the detectives told Mr. Langston where each item of evidence was collected and what their theory was as to how they were all connected?”
“Exactly,” St. Julian said. “They could have just said: ‘Here. This is a gun, and this is a bullet, and these are casings. Tell us if they’re related.’ But they don’t. The lab request they send has the case number, the crime, the suspect’s name, the victim’s name—”
“It lists all that?” Talon asked. “Even the crime? So Mr. Langston knew it was for a murder case?”
“He knew it was for a twenty-five-year-old murder case,” St. Julian expanded. “The case number starts with the year of the incident. Just from the lab report, Mr. Langston knew he was being asked to link those items together to solve a cold case homicide, which is pretty much the holy grail of forensic science.”
“He had a chance to be the hero,” Talon posited.
“To solve an unsolvable crime,” St. Julian added. “To bring closure to the victim’s family and praise upon himself and his colleagues in law enforcement.”
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