MD01 - Special Circumstances

by Sheldon Siegel

  "Sergeant," I say, "did you find any fingerprints on the weapon besides Mr. Friedman's?"

  "Yes. We found smudged fingerprints belonging to the victim, Robert Holmes."

  "On what part of the weapon did you find his fingerprints?"

  "On the handle."

  "And could you please show us where you found the fingerprints of Mr. Friedman?"

  "I'd have to review my report." I introduce her report into evidence. I hand it to her and she studies it. She explains she found Joel's right thumb and right middle finger, ring finger and pinky on the handle. His right index finger was on the cylinder.

  I hand her the plastic-wrapped revolver. "Sergeant," I say, "isn't it a fact that you didn't find any of Mr. Friedman's fingerprints on the trigger?"

  She looks at Skipper. Then she looks back at me. "We found smudged fingerprints on the trigger, Mr. Daley."

  "I understand. But, isn't it true that you could not positively identify any of Mr. Friedman's fingerprints on the trigger?"

  "That's correct."

  That helps. "And isn't it possible that the fingerprints of Mr. Friedman's that were found on this weapon were generated while Mr. Friedman was unloading the weapon, just the way he described it to Officer Chinn?"

  Skipper stands up, but doesn't say anything. If he objects, he undercuts her testimony. She's supposed to be his expert. She looks hopelessly at Skipper. "It's possible," she says quietly.

  I pause to let her answer sink in. "And isn't it true that while you may have fingerprint evidence that Mr. Friedman touched this revolver, you have no hard evidence that he actually fired it?"

  "Objection, Your Honor." Skipper's trying to stop the bleeding. "Argumentative."

  "Overruled."

  She looks right at me. "That's true. I can say to an absolute certainty that Mr. Friedman held this revolver. I can't say to an absolute certainty that he pulled the trigger."

  I take the computer keyboard from the evidence cart and ask her to identify it. "Would you please tell us which keys had Mr. Friedman's fingerprints?" I ask.

  "All of the alphabetic keys."

  I take a half step back. "All of them?"

  "Yes."

  "What about the numeric keys and the function keys?"

  "We found his fingerprints on all of the numeric keys and three of the function keys."

  I signal to Rosie. She turns on an overhead projector. The suicide E-mail flashes up on the screen. "Sergeant," I say, "you and Mr. Gates contend this message was actually typed by Mr. Friedman."

  "That's correct. The defendant's fingerprints were found on the keyboard."

  "I understand." I pause. "Did you find the fingerprints of Mr. Holmes on this keyboard?"

  She looks at McNulty. He shrugs. "No, we didn't."

  "Isn't it odd you didn't find Mr. Holmes's fingerprints on his own keyboard?"

  "Objection, Your Honor. Speculative."

  "Sustained."

  "I'll rephrase. Sergeant, based on your experience as a fingerprint expert, wouldn't you expect to find Mr. Holmes's fingerprints on his own computer keyboard?"

  She frowns. "Probably, although we think he may not have been a secretor." She pauses. "In other words, Mr. Holmes didn't sweat profusely enough to give off a lot of fingerprints."

  Sure. "But you've said you didn't find any at all."

  "Objection. Asked and answered."

  "Sustained."

  I've made my point. "You've said you found Mr. Friedman's fingerprints on all of the alphabetic keys. Did you stop to determine whether the E-mail used all of the letters of the alphabet?"

  "No."

  "May I ask why not?"

  She looks straight ahead for a moment. "We were looking for his fingerprints. We didn't attempt to analyze the contents of the E-mail message."

  "Would it surprise you to find out that the E-mail didn't use all of the letters of the alphabet?"

  She looks at Skipper. "It wouldn't surprise me."

  "In fact, Sergeant, if you read the E-mail carefully, you'll find that it does not contain the letters J, K, Q, X or Z, or any punctuation marks other than periods, and no numbers at all. Yet you found Mr. Friedman's fingerprints on all of the alphabetic keys."

  "Yes, we did."

  "How do you account for that?"

  "Perhaps he typed the message several times, or made corrections or erased."

  I move closer. "The fact is, you don't know. The fact is, you can't explain it. Isn't that right?"

  "Objection. Argumentative."

  "Overruled."

  "Yes, Mr. Daley. We can't explain why his fingerprints were found on all the alphabetic keys."

  Now we'll see if Skipper's awake over there. "Isn't it possible, Sergeant, that the reason his fingerprints were found on all the alphabetic keys is that somebody switched his keyboard with that of Mr. Holmes?"

  "Objection, Your Honor. Speculative."

  Judge Chen looks at me. "Unless you're prepared to bring evidence concerning this allegation, the objection is sustained."

  "Withdrawn." We'll get back to this subject when it's our turn. "No further questions."

  Judge Chen looks at Skipper. "Redirect?"

  "Yes, Your Honor." Skipper picks up the wrapped revolver and hands it to Jacobsen. "Sergeant," he says, "could you please show us once again where you found Mr. Friedman's fingerprints?"

  She picks up the revolver and points to various spots where fingerprints were found.

  "Would you please grip the gun in the manner that would have generated these fingerprints?"

  "Objection, Your Honor. There's no foundation for this."

  "Your Honor," Skipper says, "Mr. Daley asked Sergeant Jacobsen to describe the locations of the defendant's fingerprints. I'm just amplifying her answer."

  "Overruled."

  Shit.

  She picks up the revolver in her right hand. She grips it in her palm with her right thumb, middle finger, ring finger and pinky. Her right index finger rests on the cylinder.

  "Sergeant," Skipper says, "without moving your thumb or other fingers, would you please move your index finger down to the trigger?"

  She holds up the gun so that the jury can see it. She easily moves her index finger from the cylinder to the trigger.

  "What would you conclude from this demonstration?" Skipper asks.

  "Objection. Speculative."

  "Overruled."

  Jacobsen nods knowingly at the jury. "I would conclude that the defendant could have created the fingerprints I've described while pulling the trigger of this weapon."

  "No further questions."

  I'm back in her face. "It's still your testimony that you could not find identifiable fingerprints of Mr. Friedman on the trigger, right?"

  "Yes. The fingerprints on the trigger were smudged and unidentifiable."

  "So, you can't prove he pulled the trigger."

  "Objection. Asked and answered."

  "Sustained."

  "No further questions."

  "The people call Richard Cinelli." The bartender walks forcefully through the courtroom and is sworn in. He takes his seat on the witness stand. He pulls the microphone toward him. He's used to talking to people. Before he's said a word, he's already connected with the jury. Skipper walks him through the preliminaries. He was at work on the night of the thirtieth. He confirms that Joel and Diana came in about nine-forty-five. It was crowded. They ordered drinks and dinner.

  "Around ten o'clock, Mr. Friedman and Ms. Kennedy had a disagreement," Cinelli says.

  "Would it be more accurate to call it an argument?" Skipper asks.

  Cinelli shrugs. "I'd call it a disagreement."

  "But it could have been described as an argument."

  "Perhaps it might have been an argument," he says without raising his voice. "She threw a glass of water in his face and she left."

  "Was she upset?"

  He raises his eyebrows. "Obviously."

  "Did you hear anything they said?"r />
  "Not much. I'm a bartender. I get paid to be discreet."

  "But you did hear something, right?"

  "Yes. Mr. Friedman told Ms. Kennedy that he'd get her for something. Those were his exact words. I'll get you for this.'"

  "So he threatened her, right?"

  "Objection, Your Honor. Speculative."

  "Sustained."

  "No further questions, Your Honor."

  I walk toward Cinelli. "Do you know what they were arguing about?"

  "No."

  "And you know that they were attorneys, right?"

  "Yes."

  "And you knew they were working on a big deal together?"

  "Objection. Foundation."

  "Overruled."

  "That's what I understand."

  "Is it possible Mr. Friedman and Ms. Kennedy may have been arguing about work?"

  Skipper stands. "Objection. Speculative."

  "Overruled. The witness will answer." Give her credit. She's treating us equally.

  "Yes, Mr. Daley. That's entirely possible."

  "No further questions."

  "My name is Homer Kim. I'm a custodian at the Bank of America Building." Homer Kim sits nervously in the witness chair late in the afternoon. He's uncomfortable in a new, ill-fitting suit.

  "Mr. Kim," Skipper says, "you were at work at the Bank of America Building on the night of December thirtieth of last year, right?"

  "Yes." His pronunciation is pretty good, but his tone is tentative.

  Skipper gets Kim to explain that he walked by the office of Robert Holmes at approximately twelve-thirty in the morning. "Was there someone in the office with Mr. Holmes?" Skipper asks.

  "Yes. Mr. Friedman." He points at Joel. It's a wooden gesture that's been rehearsed. "Mr. Holmes and Mr. Friedman were having an argument."

  "Was it a loud argument?"

  "Yes. Very loud. Mr. Friedman was very angry at Mr. Holmes. Very angry." His eyes dart.

  "Did you hear Mr. Friedman say anything to Mr. Holmes?"

  "Objection. Hearsay."

  Skipper explains he isn't trying to prove the truth of what was said.

  "Overruled."

  Kim gulps water from a paper cup. "Mr. Friedman said to Mr. Holmes, I'll get you for this.’ " He gestures with his right index finger for emphasis.

  Skipper looks solemn. "Did it sound like Mr. Friedman was threatening Mr. Holmes?"

  "Objection. Calls for Mr. Kim to make a determination of Mr. Friedman's state of mind."

  "Sustained."

  "No further questions."

  I'm in his face in an instant. "Mr. Kim, how long have you observed Mr. Friedman?"

  He looks perplexed. "A couple years."

  "And have you ever heard him raise his voice?"

  He looks at Skipper, who shakes his head. "No," he answers.

  "Mr. Kim, do you know what they were arguing about?"

  He hesitates slightly. "No." He sounds tentative again.

  "Is it possible they may have been arguing about work?"

  "Objection. Speculative."

  "Overruled."

  "I don't know," Kim says. He glances at Skipper for help. Skipper closes his eyes.

  "It's possible, right?"

  Out of the corner of my eye, I see Skipper nod.

  "Yes, it's possible."

  "Mr. Kim, you've had some problems over the years with your finances, haven't you?"

  Skipper's up immediately. "Objection. Mr. Kim's financial situation is irrelevant."

  "Your Honor," I say, "Mr. Kim's financial situation is very relevant to this discussion."

  Judge Chen looks troubled. "I'll give you a little leeway, Mr. Daley."

  "Mr. Kim," I continue, "isn't it true you've had some significant debts over the last few years?"

  He looks desperately at Skipper, then says, "Yes." He's starting to turn red.

  "And isn't it true that you filed for personal bankruptcy last year?"

  "Yes."

  "And isn't it true that you've lost some substantial amounts of money gambling?"

  His shoulders slump. He hesitates. "I don't recall."

  "You're under oath, Mr. Kim. I'd be happy to introduce the bankruptcy court filings into evidence." I turn to the judge. "Your Honor, would you please instruct the witness to answer."

  "Mr. Kim," she says, "I'm going to have to ask you to answer Mr. Daley's question."

  He shrugs. "Yes. I have lost some money gambling."

  "Mr. Kim, isn't it a fact that you received a check in the amount of twenty thousand dollars shortly before you agreed to testify in this case?"

  He shakes his head forcefully. "No."

  I walk back to the defense table. Rosie hands me a note. "Isn't it true, Mr. Kim, that twenty thousand dollars was deposited into your account at Bank of America on February twentieth of this year?"

  "No."

  "Mr. Kim," I say, "you're under oath. We can subpoena your bank records."

  He looks at Skipper. "Yes. I received a bonus."

  "And would you mind telling us who promised you the bonus?"

  He looks around the room wildly. "Mr. Arthur Patton."

  "Mr. Patton? The managing partner of the Simpson and Gates firm?"

  "Yes."

  "And why did Mr. Patton promise you twenty thousand dollars?"

  "He wanted to be sure I was available to testify at this trial. He said he wanted to bring Mr. Holmes's killer to justice." Suddenly, his hesitant English is more fluent.

  "Mr. Kim, let me ask you again. There was no argument between Mr. Holmes and Mr. Friedman, was there? You were paid to say there was, but there really wasn't."

  "No. I mean, yes. There really was an argument. Mr. Friedman was very very angry."

  "No further questions, Your Honor."

  36

  MY FORMER PARTNERS

  "It is unfortunate we must testify in the murder trial of one of our colleagues."

  —Arthur Patton. NewsCenter 4. Wednesday, March 25.

  At six-thirty the following morning, I'm watching the early news on Channel 4. Every day at this time, Morgan Henderson, a self-absorbed former federal prosecutor who now works for a big downtown firm, reports on the trial and gives a preview of today's attractions. "Today should be very interesting," he drones. "District Attorney Gates is going to call several of his former partners to testify against Mr. Friedman. Things should liven up quite a bit." I'm surprised he isn't giving odds.

  "My name is Charles Stern. I have been a partner at Simpson and Gates for twenty-seven years." Chuckles looks stiff as he takes the stand at ten-fifteen.

  Skipper's primed. He gets to put on his guys now. No more idiot cops who can't get a legitimate confession. No more arrogant medical examiners and uppity lesbian evidence technicians who won't give him exactly the answers he wants to hear. The Skipper Network is on the air.

  He slowly walks Chuckles through his resume. Chuckles gives clipped answers directly to Skipper. He never turns his eyes even slightly toward the jury. He confirms he was at the office the night of the incident. He says he was preparing for a partners’ meeting the next morning. He doesn't go into detail on the ceremonial reading of the Estimate.

  "Mr. Stern," Skipper says, "did you attend a meeting with the firm's associates that evening?"

  "Yes." The crow's-feet around his narrow eyes become more pronounced. "We had convened a meeting to discuss certain issues involving associate compensation and the partnership track."

  To me, the "royal we" doesn't fit Chuckles very well. The jury may have other ideas, however.

  "Was the defendant there?"

  He glances at Joel. "Yes."

  "And could you tell us what happened?"

  "We announced that we were extending the track to partnership by one year. The vote on Mr. Friedman was going to be postponed. Mr. Friedman became very angry. He was upset that my partner, Mr. Holmes, had not told him about our decision. He expressed his displeasure and stormed out."

 
; "Did you see the defendant later that night?"

  "Yes. He came to my office. He said he was going to read Mr. Holmes the riot act."

  "Did his tone sound threatening?"

  "Objection. State of mind."

  "Sustained."

  "Did the defendant appear very upset to you?"

  "Objection. State of mind."

  "Overruled."

  Chuckles fingers his reading glasses. "Yes. He appeared very upset to me."

  "Upset enough to kill two people?"

  "Objection, Your Honor," I shout.

  "Sustained," she says loudly. She glares at Skipper. "The jury will disregard the last question."

  Skipper looks contrite and turns back to Chuckles. "Mr. Stern, you and the defendant found the bodies of Mr. Holmes and Ms. Kennedy the following morning, did you not?"

  "Yes." Stern describes how he and Joel found the bodies. He says that he called 911 and went back to the partners’ meeting.

  Skipper picks up the revolver from the evidence cart. "Mr. Stern, do you recognize this gun?"

  "Yes. It belonged to Bob. We found it on the floor."

  Skipper bobs his head melodramatically. "Did you touch this revolver at any time that morning?"

  "No."

  "Did you see the defendant touch this revolver at any time?"

  "No."

  Joel leans over and whispers, "He's lying."

  "Did you see the defendant unload the gun?" Skipper asks.

  "No."

  "Mr. Stern, is it possible that the defendant unloaded the gun while you weren't watching?"

  "It's highly unlikely. We went to the partners’ meeting together. We returned to Bob's office together. We were both there until the first officer arrived. If he unloaded the gun, I didn't see it."

  "No further questions, Your Honor."

  I'm up right away. "Mr. Stern," I say, "you said you were with Mr. Friedman the entire time before the police arrived."

  "Yes."

  "Mr. Stern, Officer Chinn testified that you met him in the lobby."

  He shifts in his chair. "That's true," he says slowly.

  "And Mr. Friedman wasn't with you when you met Office Chinn, was he?"

  He takes a drink of water and clears his throat. "No."

  "So you weren't with Mr. Friedman the entire time before the police arrived, were you?"

  He looks at the clock. "I guess not."

  "And it's possible Mr. Friedman may have unloaded the weapon while you were meeting with Officer Chinn, isn't it?"