I turn back to the jury. “If you men and women were the police, that young woman would be your one and only suspect. And Mr. Watanabe, or someone like him, would stand before another jury and make the case that the young woman in Light Indian Pink, indisputably, committed the crime of defiling Mr. Watanabe’s suit jacket. But as we all know, she’s not the culprit. And to convict her based on this lukewarm evidence would be to convict her despite reasonable doubt, which juries are expressly forbidden by law to do.
“The same goes for my client, Joey Gianforte. The police do not know who killed Shannon Douglas, yet they were desperate to solve this crime. They chose Joey Gianforte, not out of malice, but out of convenience. The physical evidence that Mr. Watanabe seems so excited about is not evidence that Joey killed Shannon Douglas; it is evidence that he was in the wrong town at the wrong time. And being in the wrong town at the wrong time does not a murderer make.
“Despite the length of time Mr. Watanabe took to talk to you, he neglected to tell you an awful lot. He neglected to tell you that the lover Shannon Douglas was supposed to meet the next day was her law school professor, Jim Catus. He neglected to tell you that this professor arrived a day early to surprise Shannon. He neglected to tell you that this professor kept his visit to Honolulu a secret from police for several weeks following Shannon’s death. He neglected to tell you that this professor admits to observing Shannon take another lover the night before their scheduled tryst. He neglected to tell you that this professor hopes to use as his alibi a two-bit prostitute from Waikiki.
“Mr. Watanabe also neglected to inform you that the local man Palani Kanno, the lover Shannon took that night, left his post at the Waikiki Winds hotel for fifteen minutes after starting work, leaving this man, who admittedly struck Shannon and caused her to bleed, more than enough time to drive his moped back to the spot where he left her and to finish the job.
“Mr. Watanabe also neglected to tell you that Shannon tested positive for marijuana upon autopsy, and that the local man, Palani Kanno, admitted buying marijuana from a fellow doorman, named J. J. Fitzpatrick, at the Waikiki Winds. He neglected to tell you that J. J. Fitzpatrick then abandoned his post for the remainder of the night, heading for heaven knows where. Perhaps to Waikiki Beach to find the half-naked, drunk girl who enjoys sex with strangers, and to share with her some of the vile weed he sold to Kanno.
“Mr. Watanabe neglected to tell you about many people who had both motive and opportunity to kill Shannon Douglas. He neglected to tell you about them because he knows that one of them very well could be Shannon’s killer. He neglected to tell you about them because if he did, he could pack his briefcase and turn in his badge. His career as a prosecuting attorney would be over, because he would have done exactly what it is the defendant’s job to do. He would’ve shown you enough reasonable doubt to choke a horse.
“Ladies and gentlemen, the murder of Shannon Douglas is a terrible tragedy. A tragedy which has been compounded by the arrest and prosecution of an innocent man. It is my sincere hope that once you acquit Joey Gianforte of this terrible crime, the police will reopen their investigation, as they should have done months ago. That they will find Shannon’s killer and finally bring to him the justice he deserves.
“As a criminal defense attorney, I don’t often have the pleasure of standing beside an innocent man. But, ladies and gentleman of the jury, I do today.”
I think.
CHAPTER 35
I was bitten by a spider. But I didn’t develop any supernatural powers whatsoever. I can’t sling webs or climb walls. I have neither superstrength nor superspeed. Not a lick of spidey sense. Just a big, red fucking welt the size of a golf ball that itches like hell.
Life up North Shore isn’t all it’s cracked up to be. Waialua is considered country, and despite all my efforts, I am still a city boy at heart. So when I first moved to Waialua and came across ants, spiders, and centipedes, I panicked, packed my bags, and spent the next four nights in an upscale Waikiki hotel.
After Flan explained to me the relative harmlessness of the creatures found in my new home and helped me take measures to rid myself of them, I reluctantly moved back in. But that first night, I came face-to-face with a gecko. And he wasn’t selling car insurance.
The next day, I found myself at a North Shore animal shelter in search of a kitten. I told the woman at the shelter I wanted a companion, not some muscle for my war on geckos. She led me to a nine-year-old, gray long-haired Maine coon. I told her I was adamant about getting a kitten. I didn’t want a used cat, someone else’s sloppy seconds. But she told me she was unable to find this cat a home, and that he was on his last day. If I didn’t take him, they would have to put him to sleep. Not the kind of sleep you wake up from feeling refreshed. A permanent sleep. The big sleep.
So I took him, and I named him Grey Skies, Skies for short.
I know what people say about guys with cats, so I decided to toughen him up. I bought him a black collar with metal spikes. The collar only made him look as if he belonged to one of the Village People, so I took it off. Skies couldn’t care less either way.
Skies is the most laid-back creature I have ever seen. He doesn’t chase anything. Not insects, not lizards, not even his tail. I half-expect to come home one day to find him and the gecko sharing a malt.
Nikki loves him, which is a good thing because he sleeps with us in my bed. I made up the second bedroom just for him, complete with a $200 cat bed. But he thinks it’s beneath him, and he won’t sleep in any bed other than mine.
Skies is my new alarm clock, too. He woke me this morning and I got an early jump on the day. I drove my Jeep from Waialua to Honolulu and got to court before 8:00 a.m. Sitting on each table in the otherwise empty Lawyers’ Room was a copy of the morning’s Honolulu Advertiser. The headline read GIANFORTE MURDER TRIAL UNDER WAY. Without reading the article I took each copy of the paper and tossed them into the trash. I no longer get any satisfaction from seeing my name in print.
This morning we will have the opportunity to voir dire the prosecution’s expert witness, who intends to testify about lip-print identification and the latent print left by Joey at the lifeguard station at the crime scene. My personal stakes in this case have risen, and keeping the forensic scientist from testifying about the lip print left at the lifeguard station is all the more important.
The case is called and I immediately renew my objection regarding the trial court’s failure to conduct a full hearing before admitting lip-print-identification testimony on the grounds that it is novel scientific evidence. In renewing my objection, I also renew the judge’s ire. Narita warns me to stay focused on the matter at hand and threatens me again with contempt of court.
I take my seat at the counsel table, and Dapper Don Watanabe calls his witness to the stand. Alison Kelly is a fiery Irish redhead with emerald green eyes that look as if they can cut glass.
“Redheads are my favorite,” Jake whispers in my ear.
The jury is not in the courtroom for this, the voir dire of the witness whom the prosecution wishes to qualify as an expert. If she qualifies, she will be permitted to testify during the prosecution’s case-in-chief as to the lip print found in the lifeguard station at the beach. The print is evidence of Joey being a few feet from where the body was discovered, quite possibly the single, most damning piece of evidence against him.
Joey is not in the courtroom either. He is suffering from stomach problems, no doubt a result of the stress caused by this trial. He asked that we not delay the day’s proceedings, but that the voir dire of Alison Kelly be conducted without his being present.
Dapper Don is at the podium, adorned today in Brooks Brothers. He quickly and effortlessly takes Alison Kelly through her education, publications, and past employment. Then he moves on to the meat of the matter.
“Ms. Kelly, would you please tell us the name of your present employer, and your position with that employer?”
“I am employed as a forensic scien
tist with the Honolulu Police Department.”
“Do you specialize in any particular area of forensic science?”
“I do. My specialty is latent-print examination.”
“Please, Ms. Kelly, briefly describe for us what latent-print examination entails.”
“Police investigators gather latent prints, such as fingerprints or other impression evidence from a crime scene or other piece of physical evidence, and then gather a sample from a suspect. I am given both of these. I perform a side-by-side comparison, searching for as many points of similarity as possible between the two. If there are enough points of similarity found, then we have a positive identification that the suspect is the individual who left the prints at the crime scene or on the physical evidence.”
“She’s really beautiful, isn’t she?” Jake whispers in my ear. “How old do you figure she is? Late forties?”
“Aside from fingerprints,” Dapper Don says, “what other types of impression evidence do you examine as a positive means for identification?”
“Well, there are lip prints.”
“Stop right there,” he says. But she had already stopped. This back-and-forth has no doubt been rehearsed ad nauseam. “Is there a scientific name for the study of lip prints?”
“Yes, there is. It is called cheiloscopy.”
“Is cheiloscopy a generally accepted form of identification in the scientific community?”
“Yes, it is.”
Jake is back at my ear. “She kind of looks like that doctor on Star Trek, don’t you think?”
“Bones?” I ask him.
“No,” he whispers back, a little too loudly. “The female doctor on Next Generation.”
“Have there been articles written about the subject?” asks Dapper Don.
“There have been several articles.” Alison Kelly lists the names of the articles and where they can be found. I came up with a similar list last night on the Internet, and I check them off as she calls them out.
“To your knowledge, has there been any dissent within the scientific community with respect to the methodology of studying lip prints, or whether lip prints could be used for purposes of positive identification?”
“No,” she answers, “there has not.”
I attempt to rattle her cage by briskly moving for my briefcase, as if I have volumes of dissent waiting for me inside. I, in fact, have nothing, not a single sheet of useful rebuttal. But my action has the intended effect on her.
“There could be some dissent on the subject,” she back-pedals, “but I am not aware of any.”
Dapper Don gives her a look that says, That wasn’t in the script. Then he tries to reel her back in. “What is the basis for identification of impression evidence?”
“That everything is unique if looked at in sufficient detail, and if two things are sufficiently similar, they must have come from the same source.”
“And does that apply to lip prints?”
“Absolutely,” she says. “In fact, lip-print comparison is very similar to fingerprint comparison.”
“Yet lip-print comparison is seldom used. Why is that, Ms. Kelly?”
“Because unlike fingerprints, it is very unusual to find lip prints at a crime scene, or on a piece of physical evidence such as a weapon.”
Jake pushes a yellow legal pad toward me. It reads, Do you think she’d go out with me?
I feel like I’m in the sixth grade. I write, I’ll ask her during cross-examination.
“How long have you been employed in the area of forensic science?” asks Dapper Don.
“Eighteen years,” she says.
“How many latent-print examinations have you completed in your career?”
“Roughly, one hundred thousand.”
“Have you ever testified as an expert witness before?”
“Yes, I have. On over fifty occasions.”
Alison Kelly testifies about the classification of lip prints, their division into five main types: diamond grooves, long vertical grooves, short vertical grooves, rectangular grooves, and branching grooves. It’s all uninteresting, yet Jake hangs on her every word like some eighth grader with a crush on his pretty, young pre-algebra teacher. To simplify the pattern, Kelly explains, she divides the lips into four quadrants, then studies each quadrant individually to look for similarities between the control print and the print found at the crime scene.
My ears perk up like a cat’s when she is asked about our specific case. She testifies that she found thirteen similarities between Joey’s sample print and the print found on the Plexiglas at the lifeguard station. Talk about your unlucky number thirteen. Thirteen similarities were more than enough for Alison Kelly to positively identify Joseph Gianforte Jr. as the individual who left the lip print at the lifeguard station on Waikiki Beach.
Dapper Don thanks her and tenders the witness. I stand and carry my notes to the podium. “Good morning, Ms. Kelly,” I say.
She nods politely and offers a smile. She was properly prepared and will use as few words as possible during my cross-examination.
“You stated during direct examination that you have testified as an expert witness on over fifty occasions, is that correct?”
“Yes.”
“On how many of those fifty occasions did you testify concerning lip-print identification?”
“None.”
“Well, in your eighteen years as a forensic scientist, how many opportunities have you had to examine lip prints for use in identification of an individual?”
“For an actual case?”
“Yes, Ms. Kelly, for an actual case.”
She shifts uncomfortably in her chair. “Twice.”
“Two times in eighteen years?”
“Yes.”
“And what types of cases were those?”
“One in which a woman was struck by a hit-and-run driver. Her lip print was discovered on the hood of the suspect’s vehicle.”
“And the second?”
“A burglar, who was apparently thirsty, took a sip of water from a glass in the home he was burglarizing.”
“Were you called to testify in either of those cases?”
“No, I was not.”
“Why weren’t you called to testify?” I ask.
“Objection,” says Dapper Don. “Ms. Kelly cannot speculate as to why she wasn’t called to testify in a particular case.”
“I’ll rephrase, Your Honor,” I say. “Do you know why you weren’t called to testify in either of those two cases?”
“Yes, I do.”
“Please, tell us why you weren’t called to testify in those two cases, Ms. Kelly.”
“Because neither of the cases went to trial. Both of the defendants pled guilty.”
“So in both of those cases, lip-print identification was merely used as a scare tactic to assure guilty pleas, and not as substantive evidence of guilt, isn’t that right, Ms. Kelly?”
“Objection!”
“Sustained.”
“Would you agree, Ms. Kelly, that lip-print identification is novel scientific evidence?”
“It is seldom used, so I suppose you can say so.”
“Are you aware of any published studies in peer-reviewed journals that provide empirical proof of the study of lip-print comparisons showing their individuality, which you contend has been generally accepted within the scientific community?”
“No, none that I am aware of.”
“Any published studies that describe the methodology to be used in lip-print comparisons?”
“No, none that I am aware of.”
“Any published studies that describe the characteristics of lip prints which are to be used in comparing known standards and crime-scene prints?”
“No, none that I am aware of.”
“I am not aware of any either, Ms. Kelly,” I say. “Because there are none.”
“Objection!”
“Sustained. Mr. Corvelli, you will refrain from testifying.”
&n
bsp; “I apologize, Your Honor. I have no further use of this witness.”
I return to the defense table, confident that I accomplished what I set out to accomplish. If Narita follows the law, then Alison Kelly will not be permitted to testify about lip-print identification. At the least, we will be granted a full hearing on the admissibility of lip-print identification.
But the look on Narita’s face tells me he has no intention of following the law. The judge straightens his spectacles and sits up as high as his miniature frame will allow him. “This Court finds that Alison Kelly qualifies as an expert in the field of forensic science, specifically with respect to latent-print examination. Ms. Kelly’s testimony regarding lip-print identification is admissible. This decision is based on her testimony that lip-print identification is generally accepted within the scientific community. That the technique has been around for over half a century, that articles have been written on the subject, and that she is unaware of any dissent within the scientific community on the methodology or whether lip prints could form the basis for positive identification.
“The Court acknowledges Mr. Corvelli’s objection, and that lip-print identification involves a unique comparison that has not been used very often in the history of the court system. Nevertheless, this Court, in its discretion, finds the evidence to be admissible, and it will be up to the jury to determine the amount of weight to assign this evidence.
“Tomorrow morning, at nine o’clock, Mr. Watanabe, you will call your first witness to the stand.”
“I look forward to it, Your Honor.”
That makes one of us. Narita’s decision is a major blow to the defense, one from which we may not recover. I gravely fear that by pressing his lips up against the Plexiglas of that abandoned lifeguard station, Joey inadvertently gave his freedom the proverbial kiss of death.
CHAPTER 36
I don’t like shopping. I buy whatever I can on the Internet to avoid going to the mall. I don’t like crowds. I don’t like salespeople looming over my shoulder, asking me if they can help. I’m a big boy now, and I can find my own size, thank you very much. I refuse to try anything on at the store, and I refuse to come back for an exchange. I pick items out and purchase them as quickly as possible with little thought to price. I bring the items home and put them away, taking them out only when I’m ready to wear them. If something doesn’t fit, I return it to my closet and let it remain there for six months. Then I throw it out.
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