Jeff went through his stack of blowups and found the most gruesome picture of Dillon Chase’s face that he had. It was covered in blood, the head was misshapen, and from this angle, once you knew where to look, it was clear that the nose was gone. He put it on the easel, tapped it, and put one large finger under his chin as if he were considering a question. He stood there for almost a full 30 seconds before he said, “Nothing further, Your Honor.”
I stood. I went over to the easel and put the picture back in Jeff's pile, putting it blank side to the jury. Then I went over to the pile of exhibits and pulled out the baggie with the syringe and set it back on the banister in front of Smoke. “Mr. Smoke, we've established that you weren’t using heroin that night, right?”
“Right.”
“And Ms. Saint doesn't use heroin, does she?”
“She does not.”
“Yet we know this was found in the suite that night. A syringe full of heroin. And you didn't bring it in, right?”
“I did not.”
“And Lizzy didn't bring it in?”
“She did not.”
“So that leaves Dillon Chase, Blake Purcell, or Aaron Whitsel, right?”
“I don't know.”
“The three men you invited up?”
“I don't know.”
“That’s dangerous, isn’t it? Carrying heroin?”
“I don’t know.”
“Now Purcell and Whitsel were gone when you came back, right?”
“Right.”
“It was just Lizzy and Hank and Chase, right?”
“If Chase were alive, yes.”
“So if Chase was a danger to Lizzy, the only one who could have protected her was Hank, right?”
Jeff stood. “Objection. Foundation, Your Honor.”
“Sustained.”
“No further questions, Your Honor.”
Judge Gallon looked at Hanson who shook his head. “Mr. Smoke, you may step down.” Judge Gallon looked at the clock. “Members of the jury, you are excused for the day. As I'm sure you noticed when you came in, there are a number of reporters and media at the courthouse today. Let me remind you that you're not speak about this case to them or to each other. The prosecution is about done with its case and then the defense will be entitled to put on theirs and you must wait to conduct your deliberations until after you have heard all of the evidence. Do you understand?”
The jurors nodded.
“Very well, you're excused. The court will reconvene at nine o'clock tomorrow.”
Judge Gallon swung the gavel.
We stood as the jury left the room. I became acutely aware as the jury filed by that I am a fairly big guy and that Hank was towering over me. He made me seem small.
Like he could pick me up and break me over his knee.
The jurors weren't looking at us as they left.
32
It was Cyn’s turn to pick the sandwiches that night so we were munching on cheesesteaks from West of Philly back at the office. I tore a piece of melted cheese off that was stretching between my mouth and the bun, wiped my face with a napkin, and said, “Do you think the jury got it?”
“Got what?” said Danny.
“That's not encouraging,” I said.
Lindsey held a finger up as she finished chewing then said, “They got that Lizzy was probably too drunk to remember what happened. They got that Jared Smoke is a prick and had a connection with someone who brought some heroin. And they got that Hank killed the shit out of Chase in the most brutal possible way.”
“Do you think they got why?” I asked.
“Why what?” said Lindsey.
“Why Smoke wanted Lizzy to take heroin.”
Lindsey and Danny looked surprised.
“Smoke wanted Lindsey to take heroin?” said Danny.
“Really?” said Lindsey.
I nodded. So did Cyn.
“Well, I didn't get that so I'd be surprised if the jury did,” Lindsey said. “Why?”
“To control her,” Cyn said. We all looked at her as she wiped the last bit of Philly steak juice from the edges of her mouth then folded her napkin and put it down squarely on the table. “Smoke’s albums weren't doing as well as Hank’s, who was still lurking around the edges of the tour. Doesn’t take much paranoia to think Lizzy, or the label, might want a change.”
“How the hell does heroin help?” said Danny.
“If Lizzy needs heroin and he controls the supply, Smoke controls her.”
Danny looked back and forth between us. “I was supposed with gotten that?”
“Bringing Chase to the room? Sending Purcell and Whitsel for beers? Leaving Chase alone with Lizzy so he wasn’t involved?”
Danny looked at me blankly.
I sighed. “The judge kept the evidence about Smoke’s history with the Red Sails out of evidence. If she’d let it in, I would've been able to show that when the lead singer of Red Sails died, Smoke was in the band and Dillon Chase was visiting them. It's too similar to be a coincidence.”
Lindsey shook her head. “But the judge kept it out so I don’t think the connection to Smoke is clear to the jury at all. Does it really matter though? Hank still has to be justified in killing Chase. The brutality is still a tough sell.”
“If it’s clear that there was no one except Hank to protect Lizzy, I think it would go a long way towards excusing the violence.”
Lindsey thought. “Then I don't think we got there today.”
I chewed before I said, “I think you’re probably right. All right, I'll have to try and connect the dots with Whitsel. The prosecution's calling him tomorrow and then I'm pretty sure they’ll rest. Then we’ll put on Dushane and the toxicologist and that should be it.”
“You're certain you're not going to put Hank on the stand?” said Cyn.
“There's no way I can, Cyn. That just lets Hanson go through every one of those photos again. And Hank’s not exactly apologetic about what he did.”
Lindsey shook her head. “He’s practically gleeful.”
Cyn nodded. “I agree. Just making sure.”
My phone buzzed. It was the office line forwarding to my cell. I didn’t recognize the number. As soon as I picked up, a voice said, “Mr. Shepherd?”
“Yes.”
“This is Aaron Whitsel.”
“Hi, Aaron.” I mouthed “Whitsel” to the others, who froze. “What can I do for you?”
“The prosecutor is calling me to testify tomorrow.”
“That’s what I understand.”
“I can’t.”
“I see. Why not?”
“I just can’t. You need to make a deal.”
“I can’t right now, Aaron. There’s no deal on the table.”
“Listen, if your client will take a deal, I’ll call the prosecutor and tell him that Braggi didn’t break my arm, that it was an accident.”
“Aaron, listen to me carefully. I’m not making any deals with you or with the prosecutor. I want you to get on the stand tomorrow and tell the truth, no matter what that truth is, do you understand me?”
Silence at the other end.
“You need to end this,” Whitsel said.
“I would if I could. But I can't.”
“It's too much. It's too much.”
I didn't care a whole lot about drug dealer’s feelings. “Just tell the truth, Aaron. That's your way out.”
Whitsel laughed. “It's my way out all right,” he said and hung up.
Cyn was staring at me.
“What?” I said.
“That was good. Telling him to tell the truth.”
I shrugged. “That's what a lawyer does.”
“Not all of them.”
“All of them aren’t from Carrefour.” I crumpled my wrapper. “Let’s get to work.”
We did.
I had trouble sleeping that night. Usually, during a trial, I could stay awake just long enough to eat something before I dozed off and, before I knew it, the alarm
was waking me back up again. That night, though, I couldn’t get the day’s testimony out of my head.
Lizzy Saint was beautiful and she was talented and she had narrowly missed becoming a heroin addict or worse. Despite her success and her talent, or I guess because of it, she had people in her life who were trying to take advantage of her, trying to profit from her, who were all too happy to give it to her so that they could start her down that path and control her.
That hadn’t happened though because Hank had been in her life. A man who had been attentive and looked out for her and protected her and stood ready to beat back any vultures who threatened her.
I shifted on the couch and made it all the way through Scott Van Pelt’s show to see Neil Everett and Stan Verrett kick off the late SportsCenter before I fell asleep.
“Mr. Hanson,” said Judge Gallon the next morning. “You may call your next witness.”
Jeff stood. “Your Honor, at this time, the prosecution rests.”
I stood. “Your Honor, may we approach?”
She waved us forward and we went up to the bench. “Your Honor, we understood that the state was going to call Aaron Whitsel.”
Jeff shrugged. “We were Your Honor, but he went across the line into Michigan and we haven't been able to bring him in.”
“In that case, Your Honor, we move for a directed verdict on the attempted murder charge against Hank Braggi related to Mr. Whitsel.”
Jeff shook his head. “The state believes it has put on sufficient other evidence of the attempt on Mr. Whitsel and his injury for the case to go to the jury.”
Judge Gallon considered for a moment. “The court finds that there is enough evidence for that charge to survive directed verdict. Motion denied.”
“We were planning on his testimony as part of our defense, Your Honor,” I said.
“Did you subpoena Mr. Whitsel?”
“The prosecution had, Your Honor.”
Jeff shrugged again. “And now we’ve decided not to call him.”
Lindsey stepped forward. “Your Honor, given the circumstances, while we are taking testimony, we ask that you issue a warrant and service under the Uniform Testimony Act for Mr. Whitsel's arrest so that he can be brought in to testify if he's found.”
“Any objection, Mr. Hanson?”
Jeff shook his head. “If they can find him, we’re happy to have him, Your Honor.”
Judge Gallon looked at Lindsey. “Give the motion to the bailiff and we’ll get things moving.”
Lindsey and I exchanged a nod.
“Anything else?”
“No, Your Honor.”
“Then let's get started.”
As we went back to the table, Lindsey whispered instructions to Danny on where to find the paperwork and told him to get Olivia Brickson on finding Whitsel. He nodded and left.
Judge Gallon was kind enough to wait until we were done before she said, “Mr. Shepherd, you may call your first witness.”
“Thank you, Your Honor. The defense calls Sheriff Warren Dushane.”
Jeff stood immediately. “Your Honor, may we approach?”
Judge Gallon waved impatiently and I saw jurors roll their eyes and shift in their seats as we went back up to the bench. “What is it, Mr. Hanson?”
“Your Honor, Warren Dushane is a Michigan sheriff. Although he is law enforcement in Carrefour, his jurisdiction is Carrefour, Michigan. This crime occurred in Ohio, so it's my understanding that Sheriff Dushane was not involved in the investigation here.”
“Mr. Shepherd?”
“Your Honor, Sheriff Dushane is part of the multistate drug task force that works in Michigan, Ohio, Indiana, Illinois, and Wisconsin. In that capacity, he fights heroin trafficking throughout the Great Lakes in general and all of Carrefour in particular and he has knowledge of how that trafficking is affecting our individual community.”
Judge Gallon scowled. “Did he investigate the crime here?”
“He did not.”
“Did he interview any of the witnesses in his role as a drug enforcement officer?”
“No.”
“Will he be able to identify the heroin found at the scene here? Trace where it came from?”
“No, Your Honor.”
“So it's all general testimony? About heroin?”
“Yes, Your Honor. That's what this case is about.”
“No, it's not Mr. Shepherd. It’s about whether Hank Braggi committed murder. Unless you can show that Sheriff Dushane has specific knowledge of the events at issue in this case, he will be barred from testifying. Does he have any such knowledge?”
I paused, trying to think of a way to bend his knowledge into specifics, but I didn't have any. “No, Your Honor.”
“Then Mr. Hanson's objection is sustained.”
“May I make a proffer to preserve his testimony for appeal?”
“Go right ahead.”
I bent down and talked quietly to the court reporter, listing the things that Sheriff Dushane would've testified to if he'd been allowed so that I could appeal it if we lost. This took some time and as I did it, I could see the jury getting antsy. They didn't know what we were saying but they saw me talking, a lot, and they didn't look too happy about it.
I finished and then said, “Thank you, Your Honor.”
Judge Gallon nodded and as we walked back to our tables, she said, “Members of the jury we often have to work out details related to the trial as we go. You're not to assume anything for my rulings one way or another. In this case, Sheriff Dushane will not be testifying and you should not make any assumptions based on that ruling. Mr. Shepherd, you may call your next witness.”
“Thank you, Your Honor. The defense calls Dr. Matthew Beckman.”
Lindsey went and got Dr. Beckman out of the hallway and a moment later he walked in. Matthew Beckman was a stick of a man with black glasses, longish black hair combed over to the side, but in a sloppy and messy sort of way, and he wore a suit that was just the slightest bit too short at the wrists and the ankles. He stooped a little as he walked and didn't make much eye contact as he made his way quickly up to the stand. Matthew Beckman was a brilliant toxicologist but became nervous when he was with more than three people.
I smiled and said, “Could you state your name for the record please?””
“Matthew Beckman”
“What do you do for a living, Dr. Beckman?”
“I’m a toxicologist.”
“What is that?”
“I study chemicals and their presence or effect on the body.”
“And are you a doctor?”
“I am.”
I ran Dr. Beckman through his credentials and that seemed to get him used to speaking a little more.
“Dr. Beckman, at my request, did you analyze some chemicals in this case?”
“I did.”
I picked up the plastic baggie with powder in it. “Was it the powder in this bag, State’s Exhibit 50?”
Dr. Beckman squinted and lifted his glasses. “Yes.”
“And what did you do, Doctor?”
“I subjected the contents to testing to determine what they were.”
“And what did you find?”
“I found that the bag contained heroin. And some other compounds.”
“Let's start with the heroin.”
“Okay.”
“Are there varying levels of purity in street heroin?”
“Yes, there are. Purity can range anywhere from three to ninety-nine percent. That’s the thing that makes it so dangerous—a person never really knows the strength of the dose they're taking.”
“And were you able to determine the purity of the heroin in this bag?”
“I was.”
“And what did you find?”
“I found that it was fifty percent pure.”
“What does that mean?”
“It means that half of the substance was heroin and half was something else.”
“And were you able to
determine what that something else was?”
“Yes.”
“What was it?”
“I found that the other fifty percent of the substance was a drug called fentanyl.”
“And what is fentanyl.”
“It's another narcotic pain medication.”
“What's the significance of the presence of fentanyl, Doctor?”
“Fentanyl is a narcotic that’s commonly used to cut heroin. The problem is that fentanyl can be as much as one hundred times more potent than morphine.”
“Does that mean fentanyl is dangerous then?”
“Very. Many of the deaths we see from heroin overdoses are because of the presence of fentanyl. We’ve seen one batch take out as many as half a dozen people in one night in one city.”
I swallowed and cleared my throat, then I said, “Do people know that there's fentanyl in their heroin?”
Dr. Beckman shook his head. “No. Not unless they're the ones who actually cut it but those people are usually up the chain of distribution. The end-user almost never knows.”
“Did you find anything else in the bag, Doctor?”
“Nothing of consequence.”
“Doctor, you mentioned that part of your job as a toxicologist is to determine the effects of drugs and chemicals on the human body, right?”
“It is.”
“Do you have an opinion regarding what the effect of this particular batch of heroin and fentanyl would have on the human body?”
“I do.”
“And what is that opinion, doctor.”
“My opinion is that the combination of this purity of the heroin combined with this mix of fentanyl made this a lethal dosage.”
“Meaning that the person who took it would overdose?”
“Yes.”
“And die?”
“Yes.”
“Now Doctor, in court, experts aren’t allowed to offer opinions on things that are simply possible. Do you have an opinion, to a reasonable degree of medical probability, that this heroin would have caused a fatal overdose?”
“I do.”
“And what is that opinion?”
“That to a reasonable degree of medical probability, this dose of heroin and fentanyl would likely kill whoever took it.”
Lethal Defense Page 27