“And how can you say that, Doctor?”
“Because of its chemical composition, Mr. Shepherd. This purity of heroin combined with this amount of fentanyl is lethal.”
I stepped forward. “How can you actually know that, Doctor?”
Dr. Beckman set down the bag, folded his hands and said, gently, “Because I've seen it before.”
“Thank you, Doctor. That's all I have, Your Honor.” I turned quicker than I needed to, picked up a bottle of water, and took a drink as I sat down.
Jeff Hanson stood. “Dr. Beckman, you're being paid to testify today, aren't you?”
“I am.”
“$750 an hour, right?”
“That's correct.”
“And you've spent what, ten hours on the case?
“Not counting today.”
“And what are you being paid today?”
“$2500 per half-day of trial.”
“How many cases like this a year do you review?”
“Five or six.”
“And is it usually for defense attorneys?”
“No. Usually, it's in civil cases, not criminal cases.”
“Now Doctor, you said that the drugs in this batch of heroin would likely cause an overdose, true?”
“I did.”
“You said that to a reasonable degree of medical probability, true?”
“True.”
“So that means it's possible that the drugs would not have caused an overdose, right?”
“I testified that it probably would have.”
“I understand, Doctor, but that means it's possible that it would not have caused an overdose, right?”
“I suppose anything is possible, Mr. Hanson, but in this case it's not likely.”
“Now Doctor, it's also possible that the person who took this could have an overdose but that the overdose would not have been fatal, right?
“Again, that is possible, but it's not likely.”
“So it's possible that the person who took this dosage would not have overdosed, true?”
“Possible but not likely.”
“And it's possible that a person who did overdose would not have died, right?”
“Again, possible but not likely.”
“Thank you. Your Honor, that's all I have.”
“Redirect, Mr. Shepherd?”
I stood. “Dr. Beckman, is it possible for anyone taking heroin to know that it contains a lethal dose?”
“I'm afraid the person doesn't know until it's too late.”
“The same thing is true of a person giving heroin to another person too, right? He can’t know if it will kill the person he’s giving it to?”
“That is also true.”
“And here the likelihood is that this dosage would have killed the user?”
“It is the overwhelming likelihood.”
“That's all Your Honor. Thank you.”
Jeff shook his head that he had no more questions.
Judge Gallon looked at the clock. “All right, we're going to break for lunch. Please be back at 1:15.”
As the jury filed out, Hank, Lindsey, Cyn, and I leaned close together. “We don’t have anyone else unless we can track down Aaron tonight. I’m going to ask the judge if she’ll give us the rest of the day.”
“Will she do it?” said Cyn.
“I think so. We’ll see. Your Honor, a word?” Judge Gallon had stood. She sat back down and waved us forward.
“Your Honor, with the ruling on Officer Dushane, I’m out of witnesses for today.”
She raised an eyebrow. “You want to close this afternoon?”
“No. If you will permit it, I’d like to adjourn for the day and see if we can find one more witness for tomorrow.”
“Whitsel?”
I nodded.
She looked at Hanson. “Any problem with that, Mr. Hanson?”
“I wouldn’t want to clog the Court’s docket, Your Honor.”
“I can manage my docket, Mr. Hanson.”
“He was on the State’s list as well, Your Honor,” I said. “I’d think they’d want to hear from him.”
She thought.
“It is a capital murder case, Your Honor.”
“I’m very aware of what type of case this is, Mr. Shepherd.” She turned her focus on me. “Are you calling anyone else?”
“I don’t think so.”
“Your client?” said Jeff. His eyes were disinterestedly hooded.
“Still deciding.”
“Fine,” said Judge Gallon. “We’ll adjourn for the day. You have until tomorrow morning. If you find him, you can put Whitsel on in the morning and we’ll have closing and jury instructions in the afternoon.”
“If they don’t put Braggi on?” said Jeff.
“In the unlikely event that they put Braggi on, he’ll follow Whitsel. Anything else?”
We collectively shook our heads.
“Fine. See you tomorrow, counselors.”
We went back to our table, gathered our things, and made arrangements to meet back at the office. I told them I’d pick up the sandwiches and be there shortly. Cade collected Hank and the two walked out with Cyn.
Lindsey made a point of hanging back. “You alright?”
“Sure. Why?”
“Just checking.”
“I’m fine.”
She stared at me. “Okay.”
Then we left.
33
Danny was waiting for us when we got back to the office. “You call Olivia?” I said.
He nodded. “Got the order from the Judge’s bailiff and I’ll walk it through the Michigan court this afternoon. If Olivia can find him, Sheriff Dushane said he’d arrange for the arrest and transport him to court tomorrow.” He cocked his head. “How is Olivia going to find him?”
“I don’t plan on asking her that. Do you?”
“I guess not.” He waved the papers and pointed to the sandwich. “I better take that to go.”
I handed it to him. “Thanks.”
“See you this afternoon. I’ll tune up the jury instructions when I get back.”
As he left, Hank, Cyn, Lindsey, and I sat down. Since it was still daytime, Hank was allowed to be out of his house and with us. He had two giant roast beef and hot pepper sandwiches and was working on demolishing the first. “You just can’t beat flame-broiled.”
I nodded.
“So what’s the battle plan tomorrow? Do I get to finally explain what happened?”
“I’m not putting you on the stand, Hank,” I said.
Hank paused, his eyes dangerous. “What?”
“You’re not testifying.”
“Why not?”
“No one puts their client on if they can help it. I’m certainly not doing it with you.”
He put his sandwich down. “So we’re in a fight and you’re not going to let me fight?”
“I’m fighting. And I’m not going to let you lose it.”
“What do you mean?”
“If I put you on, Jeff gets to go through every one of those photos again. Every single one. He’s going to put them up there for the jury and he’s going to ask you how you broke Chase’s skull the first time, and how you broke it the third time, and how you broke it the twelfth time and why fifteen breaks weren’t enough. He’s going to ask if you bit off his nose or kicked it off his face—there’s no good answer to that question by the way. He’s going to show you the picture of the blood smear on the wall and ask if it is from Chase’s nose or his ear or his mouth. He’s going to show you the picture of his arm bent backwards and ask if you twisted it that way or broke it over your knee. He’s going to ask if you’re strong enough to lift a man and throw him the way Smoke says he saw you do it.”
Hank stared.
“And that’s just the physical scene. He’s going to ask if you enjoyed writing with Lizzy and if you were even the tiniest bit sad to stop. He’s going to ask if you love her voice, if you think she’s an amazing singer and if she’s the bes
t you’ve ever heard and then he’s going to ask for your honest opinion about Jared Smoke and his talents and his writing ability and whether he’s helping Lizzy or holding her back. He’s going to ask why you were monitoring what Lizzy was doing with her boyfriend that night and why you even followed them up to their own room in the first place and ask if you make a habit of lurking around like that.”
“And at some point, probably for his finale, he’s going to ask you if you regret killing Dillon Chase and, more importantly, if you enjoyed it and you’re not going to be able to hide your reaction to either. So no, Hank, I’m not going to put you on the stand.”
Hank didn’t blink. He just gave me that blue-eyed stare, smiled, and said, “You don’t have to get so personal about it.” Then he picked up his sandwich and went back to eating.
“Do you think our defense is enough?” said Lindsey.
“I think if we can get Whitsel on it will be. Once we establish he’s a dealer, I think they’re going to see the predatory trap Hank broke up.”
“What if they don’t find him?” said Cyn.
“Then it will be close.”
“The toxicologist was helpful today.”
I nodded. “I thought so too. I think he established the threat. The question is whether it justified the force.”
My phone buzzed. I looked down and saw that it was Jeff Hanson. I scowled. It wasn't unusual for attorneys to talk during a case. There are logistical issues that come up all the time in a trial that you need to work out with the other side. Still, this case had been fairly straightforward procedurally so Jeff and I really hadn't spoken a whole lot.
I answered. “Hi, Jeff. What's up?”
“Do you have a moment?”
“Sure.” I got up and stepped out of the room, mouthing “Hanson” to Lindsey and Cyn.
“We're going to drop the attempted murder charge for the attack on Whitsel.”
“Oh?”
“Yes. We think there's still enough there but since he hasn't testified, we'd rather streamline the case and will drop it.”
“Okay. What about the rest of the charges?”
“We’re still looking for first-degree murder for the killing of Chase. But if we drop the attempted murder on Whitsel, we no longer have aggravating circumstances so it won't be a capital case anymore.”
“Got it.”
“We'll still be looking for life imprisonment.”
“Understood. Have your people found Whitsel?”
“No, but in fairness, once he took off, we stopped looking for him. We just don't have that kind of manpower.”
“All right, Jeff. Thanks for letting me know.”
“I owed you the call, Nate. I didn't want you setting up your whole closing around the death penalty.”
“Thanks for the courtesy, Jeff.”
“Sure, Nate. See you tomorrow.” I hung up.
Son of a bitch.
I went back into the room and all three of them looked up at me. “He's dropping the attempted murder charge on Whitsel.”
Lindsey's face brightened. “That means he's dropping the capital murder charge. That's great! We’ve beaten the death penalty!”
Cyn's face could always be impassive, but now it went absolutely stony. Hank's face darkened and then actually became red.
“What?” said Lindsey.
“He's dropping the death penalty so that he can increase his chance of getting a conviction on the first-degree murder charge.”
“What's the penalty for that?” said Hank.
“Life in prison.”
“No death penalty?”
“No death penalty. I think he knows that the jury is offended by the way Chase was killed but, if we’re right about the heroin, probably thinks Chase deserved it. And if the jury thinks Chase deserved it, he probably thinks that a jury wouldn’t sentence Hank to death no matter how over the top the killing was. But I’m sure he believes that he can convince them that a man who could do that to Chase is too dangerous to be running around free so they’ll be happy to lock him up for life. It's an easier sell.”
“I have to testify,” said Hank.
“No, Hank, you don't.”
“I can't go to prison. Not for all that time.”
“If I put you on, you will.”
“Hank,” said Lindsey. “We got rid of the death penalty. Be glad we saved your life.”
“My life?!” Hank’s face reddened. “You think sitting in a 10 x 10 brick room for years and years is a life?” He waved the sandwich. “You think grilling chickens or eating sweet corn in the sun is the same as shuffling down to the cafeteria for soggy cornbread and cold beans until I’m so old I shit myself? Of course, we’re forgetting that I’ll be able to pop out of the cell a couple of times a day to watch yard fights and shower sodomy. Life!” he spat. “I’d rather face the death penalty.”
“Mr. Braggi,” snapped Cyn. “Why don’t you and I go outside and cool off a little bit?”
“I'm plenty cool.”
“No, you're not.” Cyn stood and extended a hand. To my surprise, Hank deflated, put her hand in the crook of his massive arm, and walked outside. As they left, I heard her speak in another language, I assumed Norwegian, and his willingness to listen to her suddenly made more sense.
“What the hell was that about?” said Lindsey as they left. “He should be doing cartwheels that he’s not going to get a lethal injection.”
“I don't think he sees it that way.” I thought. “It was a good move on Jeff's part. Now he can straight up play the safety and danger angle. Hank doesn't deserve to be executed, but he doesn't deserve to be wandering around free of supervision either.”
Lindsey smiled. “Well, you're just going to have to justify what he did.”
I smiled. “Is that all?
“That's it.”
“Great. Easy.”
That afternoon was the final push. I polished my examination of Aaron Whitsel, fine-tuned the direct exam of Warren Dushane in case Judge Gallon changed her mind about letting him testify, and looked at Danny's draft of the jury instructions, which I refined and emailed back to him. I thought about who Jeff might call in rebuttal, but I didn't think there was anything that we’d raised in our case that he needed to address so far, not really.
Once that was done, I worked on my closing argument, punching up the themes, incorporating testimony from the trial, and putting together slides and references to exhibits.
In the end, the case was simple. Hank had brutally killed a man who was injecting heroin into an unconscious woman. The jury would either find it acceptable or not. I had to convince them that it was the right thing to do.
Hank and Cyn came back a couple of hours later. Hank seemed to have calmed down and Cyn said he agreed that the best strategy was for him not to testify. Hank nodded, shook my hand, and said he trusted me. I thanked him and walked downstairs with him as Cade pulled up in his truck to take him home. As he opened the door, Hank turned back, looked at me, and said, “Do you like pig?”
I blinked. “I’m a fan of ribs. Not so much chops.”
“No, I mean a whole pig. Cooked all night over a fire.”
“Who doesn’t like that?”
The mischievous delight was back in his blue eyes. “When we’ve won this, we’re gonna have the biggest pig roast you've ever seen.”
I smiled. “Sounds good, Hank.”
“I mean it.”
“I know.”
Hank climbed into the truck and Cade drove them away.
I went back to working on my closing argument.
The sun went down and I kept working. Danny came back to the office. No word yet on Whitsel but he’d gotten the order that would let Sheriff Dushane take him into custody. He finished the jury instructions and went home. Lindsey stayed but her work was really done for now and she was a good enough lawyer to know that having people milling around is more distracting than helpful and so went home. Cyn was the last one to stick her head in
before she left. Her blue suit looked as unwrinkled as it had that morning and it seemed that not one red hair was out of place.
“Do you agree?” I said.
“With the analysis or with the strategy?”
“Both.”
“Yes. To both.”
“How did you calm Hank down?”
“I reminded him that his way of looking at things doesn't apply here.”
“He does seem to prefer handling things directly.” I smiled. “Of course, that’s why we’re here.”
Cyn didn’t smile. “I also told him to trust you. That you understand why he did what he did and that you’re the best one to explain it to the jury.”
I stared at her then but I didn’t see any extra meaning in the calm green stare I got back. “We’ll see, won’t we?”
“We will. You almost done?”
“Just a few more slides here on the PowerPoint. Soon.”
“Rest is as important as prep at this point.”
“I know.”
Cyn smiled then and left. As the lights of her car left the parking lot below, my phone buzzed. Olivia.
“Tell me you found him, I said when I answered.”
“I found him.”
“Great work, Olivia! Did you call Dushane? Are you going to be able to get him down to the court to testify?”
“Yes, I called Dushane. No, I won’t be able to get him down to court to testify.”
My stomach sank. “Too far away?”
“No, it's not distance. Aaron Whitsel is dead.”
34
“How?” I said.
“A totally random and unfortunate single-car accident,” said Olivia.
“So it wasn't?”
“Of course not.”
“Where did you find him?”
“State Route 127, between Jackson and Lansing. Near as we can tell, he was driving northbound, went off the road, jumped a ditch, and smashed into a tree.”
“It was clear last night, wasn't it?”
“It was this afternoon. And yes. Not a cloud in the sky.”
I thought. “He called me you know. Said he couldn’t testify. Wanted me to take the plea deal.”
“Not a surprise,” said Olivia. “Drug cartels are willing to take the odd arrests and trials here and there, but testifying on a case with national attention? Not good for business.”
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