MD01 - Special Circumstances

by Sheldon Siegel

  —NEWSCENTER 4 LEGAL ANALYST MORGAN HENDERSON. MONDAY, MARCH 23.

  At three o'clock the same afternoon, Skipper stands and says in a clear voice, "The people call Dr. Roderick Beckert."

  Beckert nods to the judge as he walks confidently to the front of the courtroom. The college-professor tweed jacket that was hanging on the coatrack in his office has been replaced with a charcoal-gray business suit and a burgundy tie. He's the living embodiment of the voice of authority.

  Skipper stands at the lectern. He doesn't want to crowd Beckert. "Would you please state your name and occupation for the record?"

  "Dr. Roderick Beckert." The hint of a smile. He closes his eyes and slowly reopens them. "I am the chief medical examiner for the city and county of San Francisco." He nods, as if to reassure himself that he is, in fact, who he says he is. "I've held the position for twenty-seven years."

  Skipper begins to run Beckert through his credentials. I stop him almost immediately and stipulate to his expertise. There's no point in giving Skipper twenty minutes of free time to wave Beckert's diplomas in front of the jury.

  "Dr. Beckert," Skipper says, "did you perform autopsies on the bodies of Robert Holmes and Diana Kennedy on January first of this year?"

  "Yes."

  "And would you be kind enough to describe the results of those autopsies?"

  He smiles politely and turns slightly toward the jury. "Of course, Mr. Gates." He says Bob and Diana died of gunshot wounds, his to the head, hers to the chest. Time of death between one and four A.M. He explains that Diana was two months pregnant and that the unborn fetus also died. His tone is conversational, yet forceful. I let him drone on for a few minutes about body temperature, lividity and discoloration before I interrupt him and stipulate that we'll agree to his determination on the range he has established for the time of death. The jury already believes him. It's not to our advantage to let him build empathy.

  On cue, McNulty trots out a poster-size version of one of the photos Beckert showed me in his office. We tried to keep it out. "Doctor," Skipper says, "what is this a picture of?"

  "It's the left side of the head of the victim, Robert Holmes."

  "Doctor, would you please describe the gunshot wound that killed Mr. Holmes?"

  "Of course. Entry through the right parietal, just above the right temple. It severed the cerebral cortex and pierced the mesencephalon, or midbrain, before exiting through the left parietal lobe and the left parietal bone of the skull, just above the left ear." In other words, Beckert explains that the gun was placed against Bob's right temple and shot laterally through his head, causing instantaneous death as the bullet passed through the midbrain structure.

  The courtroom is completely silent.

  "Doctor, would you mind pointing out to the jury the exit wound that you just described?"

  "Of course." Beckert climbs down off the witness stand and walks to the easel holding the picture. He takes out his pen and points at the area just behind Bob's left ear.

  "Dr. Beckert," Skipper continues, "was there another wound to the head?"

  "Yes, Mr. Gates." Beckert points toward the area above Bob's left ear, just above the edge of the exit wound. "Right here, on the parietal bone, there's a small hematoma, or concussive injury."

  "Objection," I say. "I'm afraid we can't tell what Dr. Beckert is pointing at."

  Judge Chen says, "I'm afraid that I can't either. Doctor, I'm going to have to ask you to mark the wound more precisely."

  "Of course, Your Honor." He pulls a felt-tip marker from his pocket and he draws a circle on the picture. "Right here, Your Honor."

  Judge Chen nods. "Thank you, Dr. Beckert."

  Skipper studies the picture. "Doctor," he says, "would you mind describing the concussive wound in greater detail?"

  "Yes. Mr. Holmes suffered a blow to the head, which caused a hematoma, or bump, to the parietal bone of his skull. Based upon the swelling and the freshness of the wound, I believe he was knocked unconscious shortly before he died. It's similar to a blow suffered by a football player in a helmet-to-helmet collision."

  "Is it possible he was killed by the concussive blow?"

  "It's unlikely. There was trauma to the skull, but not enough to kill a healthy male."

  "Why would somebody go to all the trouble of knocking him out before they shot him?"

  "Objection. Speculative. Dr. Beckert is a pathologist, not a clairvoyant."

  "Sustained."

  "I'll rephrase. Doctor, do you have a theory as to why someone would have knocked Mr. Holmes unconscious and then shot him moments later?"

  "Objection. Still speculative."

  "Sustained."

  "Doctor, does it appear to you that the killer was attempting to make this look like a suicide?"

  "Objection."

  "Sustained." Judge Chen glares as Skipper. "That's enough, Mr. Gates."

  "No further questions, Your Honor."

  I don't wait. "Dr. Beckert, can you show me this alleged concussive wound one more time?"

  He walks to the easel and points toward the circle he drew a moment ago. "Right here."

  "And you're one hundred percent sure that mark you just showed me was caused by someone taking a heavy object and hitting Mr. Holmes?"

  "Yes. One hundred percent sure."

  "And it is not possible the wound was caused by the bullet that obliterated much of his head?"

  "In my best medical judgment, no."

  "Doctor, did you find any evidence of the object that you claim was used to strike Mr. Holmes?"

  "I'm not sure I understand."

  "Well, Doctor, if Mr. Holmes was hit with a piece of wood or a piece of metal, you may have found fragments of wood or metal or perhaps paint in the wound. Did you find any such evidence?"

  "No," he says.

  "Why not?"

  "Excuse me?"

  "How is it possible that somebody hit Mr. Holmes hard enough to knock him unconscious, yet you found no evidence of the object?"

  "Objection. Speculative."

  "Overruled."

  Beckert shakes his head. "He must have been hit with an object that didn't leave any traces."

  "I see." I pause. "Doctor, you will recall that the body was found on the floor."

  "That's correct."

  "Is it possible the concussive wound was caused by Mr. Holmes hitting his head on his desk as he slumped to the floor?"

  He furrows his brow. "No, Mr. Daley."

  "Why not?" I'm taking a bit of a chance here.

  "Mr. Holmes died instantly. The hematoma was fairly well developed. If he'd hit his head on his desk after he'd been shot, there would have been no bump on his head." He explains that bumps are formed by blood rushing to the injured area. When you die, your heart stops beating and your body is therefore incapable of pumping enough blood to create a bump. "Mr. Daley," he says, "you can hit a cadaver as many times as you'd like, but you can't generate a bump on its head. As a result, I concluded that Mr. Holmes was very much alive when he was struck on the head."

  I'm sorry I asked. I pick up a copy of his autopsy report from the evidence cart. "Doctor, do you recognize this report?"

  "Yes. It's my autopsy report on Mr. Holmes."

  "Right." I hand it to him. "You dictate these reports as you conduct your autopsy, right?"

  "Yes."

  "Doctor, could you please turn to page fourteen."

  He puts on his glasses. He flips through the report. "I've found it, Mr. Daley."

  "Doctor, would you please confirm that page fourteen describes the concussive wound."

  He studies it quickly. "Yes, it does, Mr. Daley."

  "And would you be kind enough to read the portion of the report that I highlighted?"

  "Of course. ‘Approximately three centimeters from the top of the exit wound, there appears to be a small concussive wound on the parietal bone of the skull. The wound appears relatively fresh.'"

  "And those were your exact words, Doctor?"r />
  He looks serious. "Yes, Mr. Daley. Those were my exact words as I dictated them."

  "At the time you dictated your notes, were you looking at Mr. Holmes's head?"

  Skipper stands, then sits down. He probably could object, but he can't figure out a reason.

  "Of course I was looking at his head," Beckert replies with a hint of irritation in his voice.

  "Well, Doctor, when you were looking at Mr. Holmes's head, you described what ‘appears’ to be a ‘small concussive wound’ that is ‘relatively’ fresh. Yet, a moment ago, you testified that you were one hundred percent sure that it was, in fact, a concussive wound and it was most certainly fresh. How did your tentative observation turn into such an absolute conclusion?"

  He pouts. "Mr. Daley," he says, "I've been a medical examiner for thirty-three years. You read my preliminary observations. I examined the wound more closely during my more detailed autopsy procedures. The size and depth of the concussive wound led me to conclude, unequivocally, that Mr. Holmes was struck on the head."

  I glance at the jury. "How much time elapsed between the day you performed the autopsy and the day you issued your final report?"

  "About a week."

  "And how many times did you look at the body again during that week?"

  "I didn't."

  "You didn't? Yet, during the course of a week, your view on the concussive wound seems to have changed."

  "After reviewing the evidence, I became certain that there was, in fact, a concussive wound."

  "And it certainly helps the prosecution's case if there's such a wound, right?"

  Skipper and McNulty both stand. "Objection," Skipper shouts. "Move to strike."

  "Sustained."

  I turn back to Beckert. "Could you please read the portion of your report that I've highlighted on page nineteen?"

  " ‘Chemical residue was found on victim's right hand.’ "

  "What sort of chemical residue?"

  He stops. "Gunpowder," he says slowly.

  Judge Chen's eyes open wide.

  I try to look perplexed. "Gunpowder? There was gunpowder residue on his right hand?"

  "Yes."

  "How did it get there?"

  Skipper pops up. "Objection, Your Honor. Speculative."

  "Sustained."

  "I'll rephrase." I turn back to Beckert. "Isn't it true that when a gun is fired, it emits chemicals, including gunpowder, traces of which can be found on the hands of the party who fired the gun?"

  "Objection. Dr. Beckert isn't an expert on firearms or chemical substances."

  "Your Honor," I implore, "Dr. Beckert wrote the seminal textbook on forensic science. Surely he's capable of answering such a basic question."

  "Overruled."

  Beckert pushes his glasses to the top of his head. "Yes, Mr. Daley. When someone fires a gun, it is possible to find traces of gunpowder and other chemicals on his hand."

  "Gunpowder traces are one of the first things the police test for on the hands of a person charged with a shooting, right?"

  "Yes."

  "So, Doctor," I say, "the gunpowder traces on the right hand of Mr. Holmes suggest that it is possible that Mr. Holmes fired the gun that killed him."

  "Objection. Speculative."

  "Overruled."

  "Yes," he says grudgingly. "It's possible. However…"

  "In fact, Doctor, the gunpowder traces on the right hand of Mr. Holmes almost certainly indicate he did, in fact, fire the gun."

  "Objection, Your Honor. Speculative."

  "Sustained."

  "No further questions, Your Honor."

  Skipper leaps up for redirect. "Doctor, in your best medical judgment, was Mr. Holmes unconscious when he was killed?"

  "Yes."

  "And how do you account for the gunpowder traces on his right hand?"

  "Objection. Speculative."

  "Overruled."

  He nods as if he expected the question. "I believe Mr. Holmes was knocked unconscious by a blow to the side of his head. I believe someone placed the gun in his right hand and caused Mr. Holmes to pull the trigger. It was a clumsy attempt to fake a suicide."

  "Thank you, Doctor. No further questions."

  I jump up for one more crack at him. I search for my best tone of incredulity. "So, Doctor, it's your testimony that you think somebody sneaked up behind Bob Holmes, whacked him on the head, and while he was unconscious, put a revolver in his hand and caused him to use the same hand to shoot himself. Is that about it?"

  He nods. "Yes, Mr. Daley," he says in an even tone. "That's about it."

  "You realize that nobody in their right mind would believe such a preposterous scenario."

  Skipper's up. "Objection," he screams.

  "Sustained," Judge Chen snaps. "Mr. Daley, I don't want to see any more grandstanding in my courtroom. Do you understand?"

  I try to sound contrite. "Yes, Your Honor. No further questions."

  35

  BUILDING BLOCKS

  "Prosecutors build their cases one block at a time."

  —CNN's Burden of Proof. Tuesday, March 24.

  It's the next morning. "Please state your name and occupation for the record," Skipper says.

  "Edward O'Malley. Ballistics technician, SFPD."

  Ed O'Malley is a forty-seven-year-old civilian scientist who is the department's ballistics guru. He works in a hermetically sealed area in the basement of the Hall. The police refer to guys like Ed as white coats. He can determine with statistical precision whether a bullet was discharged from a particular weapon. His demeanor is studious. His tiny, rimless glasses perch on a large nose above a tidy gray mustache. His role in this play will be relatively short.

  Skipper runs him through his resume, then picks up the plastic-wrapped revolver from the evidence cart and holds it up as if it's the Super Bowl trophy. "Mr. O'Malley," he says, "do you recognize this revolver?"

  "Yes." He pauses. "That's the murder weapon."

  I'm up right away. "Objection. There's no foundation for Mr. O'Malley's characterization of this revolver as the ‘murder’ weapon."

  "Sustained." Judge Chen sighs. We're starting early today. "The jury will disregard the characterization of the weapon." She turns to Skipper. "Try it again, Mr. Gates."

  Skipper leads O'Malley through a detailed description of the revolver. He concludes that it was the weapon that fired the fatal shots. Skipper sits down.

  There isn't an iota of doubt in my mind that the bullets were fired from this gun. Of course, this doesn't stop me from trying to plant a few seeds of doubt in the mind of the phone company supervisor. "Mr. O'Malley," I say as I stand up, "how long have you been a ballistics expert with the department?"

  "Fourteen years."

  "Ever been suspended?"

  Skipper leaps up. "Objection, Your Honor. Relevance."

  "Your Honor," I say, "Mr. Gates called this witness as an expert. His record is highly relevant."

  "Overruled."

  O'Malley glances at the clock. "I was suspended for a week eleven years ago."

  "No further questions." The jury doesn't have to know he was suspended when he pled no contest to a DUI charge. One could make a credible argument that it was wholly unrelated to his credentials as a ballistics expert. Skipper doesn't seem to know about it. If he did, he might try to rehabilitate O'Malley on redirect. On the other hand, he might not. The jury may not like the idea that his ballistics expert was picked up for drunk driving. O'Malley glares at Mort, who has brought his integrity into question for the second time. Mort found out about O'Malley's suspension when he was defending a case about five years ago. His client walked in that case. I hope we get the same result.

  "My name is Sergeant Kathleen Jacobsen. I'm an evidence technician with the SFPD. I've been with the force for twenty-two years."

  Skipper stands at the lectern. "Do you have a particular area of expertise?"

  "Yes. Fingerprints and other chemical and physical evidence."

&nbs
p; Kathleen Jacobsen is a tall, gray-haired woman in her late fifties with a professional demeanor and a commanding aura. One of the first lesbians to work her way up the ranks, she's become a nationally known figure on evidentiary matters. Skipper begins to walk her ever so slowly through her impressive resume: undergrad at USC, master's from UC Berkeley. I stipulate to her expertise. She confirms she was the lead evidence technician in the investigation.

  Skipper strolls to the evidence cart, picks up the revolver and parades it in front of the jury. "Are you familiar with this weapon?" he asks.

  "Yes. It fired the shots that killed the victims, Mr. Holmes and Ms. Kennedy." Her authoritative tone is a prosecutor's dream.

  Skipper is pleased. She's delivered her lines on cue. "Did you find any fingerprints on this weapon?"

  "Yes. The defendant's." Her delivery is precise.

  They go through the same exercise for the computer keyboard. She confirms that Joel's fingerprints were found on it, too. Skipper signals to McNulty, who turns on a projector. The suicide E-mail appears on the screen. "Sergeant, could you please describe the message displayed on the screen?"

  "It's an E-mail message generated from Mr. Holmes's computer at one-twenty on the morning of December thirty-first."

  Skipper asks her to read the message out loud. When she finishes, he says, "Does that appear to be a suicide message to you, Sergeant?"

  "Objection. Sergeant Jacobsen is an expert on evidence, not suicide."

  "Overruled."

  "I believe it was intended to look like a suicide message. However, it was obvious the message was a fake. We found the defendant's fingerprints on the computer keyboard. We believe the defendant typed the message."

  "And why would he do that?"

  "Objection. Speculative."

  "Sustained."

  "Wouldn't he have done so to make it appear that Mr. Holmes had committed suicide?"

  "Objection. Leading."

  "Sustained."

  "No further questions, Your Honor." He's made his point. McNulty turns off the projector.

  I approach her cautiously. "Sergeant, who was the registered owner of this gun?"

  "The victim, Robert Holmes."

  "So Mr. Holmes had a loaded gun in his office on the night he died."

  Jacobsen agrees. "It would seem that Mr. Holmes had a loaded gun in his office that night."