Accused

by Mark Gimenez

  "And this photo."

  The screen now displayed a photo of Rebecca from that night. She was covered in blood.

  "That is the defendant as she was found that night wearing a short white nightgown and an undergarment. Blood is on her nightgown and her hands and arms and legs and face. Her hair was matted with blood."

  "Is this the woman you saw that night?"

  "Yes, it is."

  "And is that woman in this courtroom?"

  "Yes, she is. She's the defendant."

  "Rebecca Fenney?"

  "Yes, sir."

  The D.A. gave the jury time to fully absorb the image. They did. Scott had instructed Rebecca to keep her head up and to look straight ahead without expression. She did.

  The D.A. led Detective Wilson through a dozen more crime scene photos then asked, "Detective, did you ask the defendant what happened that night?"

  "Yes, sir, I did. She said she woke up with a chill, went to shut the doors but stepped out onto the deck, realized she was wet, returned inside and turned the lights on, whereupon she saw the victim lying in blood on the bed with the knife in him."

  "Did the defendant say who killed the victim?"

  "No, sir, she did not."

  "Did you ask her if she killed him?"

  "Yes, sir, I did. She denied killing him."

  "Did you subsequently investigate this homicide?"

  "Yes, sir, I did."

  "And did you find any evidence that a third party, that is, a person other than the defendant or the victim, had entered that bedroom that night?"

  "No, sir."

  "And the only prints on the murder weapon were the defendant's?"

  "Yes, sir."

  "What did that evidence lead you to do?"

  "Arrest the defendant and refer the case to your office with a recommendation that the defendant be charged with the murder of Trey Rawlins."

  "Thank you, Detective."

  The judge called for a short recess. The D.A. came over to the defense table.

  "Who are these people? Those jurors didn't even blink an eye at the photos." He shook his head in apparent disbelief. "I need to retire."

  Karen Douglas sat propped up in her hospital bed nursing her new baby boy and watching the murder trial on the TV and listening to Renée Ramirez's narration. She had her laptop up and running.

  After the recess. Bobby cross-examined Detective Wilson.

  "Detective, when did you arrest Ms. Fenney?"

  "Friday morning, about eight."

  "At the time of her arrest, did you have the results of the fingerprint evidence on the murder weapon?"

  "No."

  "Then what evidence did you have establishing probable cause to arrest her for the murder of Trey Rawlins?"

  "She was present at the scene and she was covered in his blood."

  "How did you know it was his blood?"

  "No one else was bleeding."

  "So that's all the evidence you had?"

  "That was enough. Besides, we got the prints back Monday, it became a mute point."

  "Moot."

  "That's what I said. It became a mute point—"

  "Your Honor." The Assistant D.A. was on his feet. "The U.S. Supreme Court ruled that an illegal arrest does not invalidate a subsequent conviction."

  "We're aware of that ruling," Bobby said, "but there has been no conviction. And don't interrupt my cross-examination unless you have an objection." Bobby turned back to the detective. "So, you arrived at the crime scene, saw Ms. Fenney covered in blood, and decided right then and there that she had committed the crime?"

  "Pretty much."

  "Detective, after you arrested Ms. Fenney, did you take her to the police station?"

  "Yes."

  "And did you interrogate her there?"

  "Yes. Until she called her lawyer, and he instructed us to stop."

  "Because the Constitution requires that you cease interrogation when counsel so instructs pursuant to an accused person's right to remain silent?"

  "Yes."

  "I mean, you can't waterboard an American citizen, can you?"

  "Unfortunately."

  The detective smiled, but no one got the joke.

  "Detective, when you investigate a homicide, is it your practice to develop a list of potential suspects?"

  "Yes, it is."

  "And did you develop such a list in this case?"

  "Yes, I did."

  "Who was on your list?"

  "Rebecca Fenney."

  "Anyone else?"

  "No."

  "Why not?"

  "It was obvious that the defendant had stabbed the victim."

  "And why was that obvious?"

  "No one else had made entry into the room and only her prints were on the knife."

  "The French doors leading to the back deck were open, correct?"

  "Yes."

  "And the back deck was accessible via stairs down to the beach, correct?"

  "Yes."

  "And no blood was recovered from those doors?"

  "No."

  "Which means that those doors were not opened by Ms. Fenney after she woke covered in the victim's blood?"

  "Correct. She stated that they slept with those doors open."

  "And you believe that to be the fact that night?"

  "Yes."

  "So while they slept a third-party could have entered the house through those open doors?"

  "Yes."

  Bobby picked up the murder weapon off the evidence table. "And if I wore latex gloves and picked up this knife I would not leave my fingerprints on the knife, correct?"

  "Yes."

  "But I would also not obliterate any fingerprints already on the knife, correct?"

  "Yes."

  "So Ms. Fenney could have put her prints on this knife some time before the murder but someone else could have worn latex gloves, grabbed the knife from the kitchen, and stabbed Mr. Rawlins?"

  The detective snorted. "Could have? Sure. Anything could have happened."

  "But your investigation of this homicide began and ended with Ms. Fenney?"

  "Yes."

  "And why is that?"

  "Because I deal in reality. The fact that someone could have done all that doesn't mean someone did."

  "Fair enough. But is it also fair to state that you never even considered the possibility that anyone other than Ms. Fenney might have killed Mr. Rawlins?"

  "Yes, that's a fair statement."

  "Now, Detective, when investigating a homicide, after having a suspect or a list of suspects, do you attempt to determine the suspect's motive in committing the murder?"

  "Yes."

  "What did you determine was Rebecca Fenney's motive to kill Trey Rawlins?"

  "I could not determine her motive."

  "Well, do you think she killed him for money?"

  "No."

  "Do you think she killed him in a fit of rage?"

  "No."

  "Was there any evidence of a struggle?"

  "No."

  "Do you think she killed him because of a love triangle?"

  "Maybe."

  "But you have no evidence to tie Ms. Fenney into a love triangle?"

  "No."

  "So that night, Ms. Fenney and Mr. Rawlins drank alcohol, ate dinner, used cocaine, and had sex, correct?"

  "Yes."

  "Is murder usually the next step?"

  "I don't understand the question."

  "Alcohol, dinner, cocaine, sex … do those activities usually precede a murder?"

  "I wouldn't know."

  "Have you ever had such a case?"

  "No."

  "But despite all that, you still think she killed him?"

  "Yes, I do."

  "Even though she called nine-one-one?"

  "Yes."

  "Even though she could have wiped her prints off the murder weapon before calling the cops?"

  "Yes."

  "She killed him then invited the po
lice into her house—does that make sense to you?"

  "Murder never makes sense to me."

  "Wouldn't one way to try to make sense of a murder be to investigate the victim's life?"

  "I suppose."

  "I mean, since you couldn't determine any motive for Rebecca Fenney to kill Trey Rawlins, wouldn't you want to know what was happening in his life to see who might have had a motive to kill him?"

  "She happened in his life."

  "Did you investigate Trey Rawlins' life?"

  "No."

  "Why not?"

  "I knew who killed him."

  "So you were not interested in learning other facts about the victim?"

  "It wasn't necessary."

  "Detective, when you arrested Rebecca Fenney, were you aware that on the day Mr. Rawlins was killed a man wanted for murder in Mexico was working at a house less than one hundred yards from the Rawlins residence?"

  "No."

  "Were you aware that Mr. Rawlins owed five hundred thousand dollars to his drug dealer, a man tied to a Mexican drug cartel known for brutal killings?"

  "No."

  "Were you aware that Mr. Rawlins owed a fifteen-million-dollar gambling debt to the mob in Las Vegas?"

  "No."

  "Were you aware that Mr. Rawlins was having an affair with the seventeen-year-old daughter of another pro golfer and only one week earlier that golfer had threatened to kill Mr. Rawlins if he didn't stay away from her and that Mr. Rawlins had in fact not stayed away from her?"

  "No. But none of that would have mattered. Because only the defendant's fingerprints were on the knife."

  "But the DPS lab technician testified that she could have put her prints on that knife a year ago, that another person wearing latex gloves could have held that knife and stabbed the victim, that the fact that her prints are on the knife does not mean that only she could have stabbed the victim with that knife."

  "Then why were her prints aligned in a stabbing grip?"

  "She could have—"

  "Coulda, woulda, shoulda—the fact of the matter is that she stabbed the victim with that knife."

  "So the prosecution's entire case is predicated on Ms. Fenney's fingerprints being on the murder weapon in a stabbing grip, is that correct, Detective?"

  He appeared perturbed, but not as perturbed as the black and Latino jurors; they knew all about cops who assume guilt without investigation. The defense was making progress.

  "Of course our case is predicated on her prints because her prints prove she held the murder weapon in a manner used to stab the victim and she was covered in his blood—that's about all we need, I think."

  "I think the jury will decide that, Detective. So you ignored all other evidence that might indicate someone else killed Trey Rawlins?"

  "I didn't have any other evidence."

  "Because you didn't look."

  "Because she did it."

  "You really believe that Rebecca Fenney killed Trey Rawlins then went to sleep in his blood?"

  "Yes."

  "Why? Why would she do that?"

  The detective gave an honest answer. "I don't know."

  "Detective, is it true that you have hired a literary agent?"

  "Uh … yes."

  "To shop the book you're planning to write about this case?"

  "Yes."

  "But your desire to profit from this case did not affect your professional judgment or actions when investigating this case?"

  "No."

  "Did your agent say whether a book deal is more or less likely if Ms. Fenney is acquitted or convicted?"

  "No."

  "So you want the jury to convict Ms. Fenney only because you believe she is in fact guilty?"

  "Yes."

  "And not because of your desire to sell a book and make money?"

  "No."

  "Okay. If you say so."

  FORTY-FOUR

  There's an old saying among trial lawyers: You can't pick your fact witnesses, but you can pick your expert witnesses.

  Fact witnesses testify to facts—what they personally saw or heard. They identify the perpetrator or the murder weapon or the getaway car or what they saw at the crime scene. A prosecutor can't substitute better fact witnesses. They might be too young or too old or too nearsighted or too much of a jerk for the jury to appreciate, but he's stuck with what he's got. The DA was stuck with Ronda Jensen, Officer Art Crandall, and Detective Chuck Wilson as the state's fact witnesses.

  But he wasn't stuck with his expert witnesses. Because expert witnesses offer their opinions. If a prosecutor doesn't like the first expert's opinion, he can find another one who will give a better opinion—an opinion that will support the prosecution's version of the case.

  "Hard" experts testify as to "hard science": fingerprints, DNA, toxicology, cause of death, manner of death. The criminologist, the lab technician, and the medical examiner were the state's hard experts.

  "Soft" experts testify as to the "soft sciences," primarily psychology and psychiatry. They testify as to the defendant's mental state. The D.A. picked a psychiatrist, Dr. Richard Holbrooke, as the state's soft expert witness. He had white hair and wore black reading glasses even when he wasn't reading. He wore a crisp shirt under a tailored sports coat. He was not nervous because he was a professional witness. He would testify for the prosecution or the defense, whichever side paid him more. That day he was a prosecution witness because the State of Texas had more money than Rebecca Fenney.

  A bad fact witness can lose the case for a prosecutor, but a good expert witness can win the case. Consequently, there's another old saying among trial lawyers: Bad science convicts more innocent people than bad witnesses.

  Scott stood and tried to make the best of a bad witness. "Objection. Once again, Your Honor, defense objects to the testimony of Dr. Holbrooke as being junk science that will in no way assist the trier of fact—this jury of intelligent, thoughtful jurors—in their search for the truth, but is in fact merely an attempt to inject a Dr. Phil moment into this trial."

  The D.A. had a slight smile on his face. The judge did not.

  "And once again, Mr. Fenney," she said, speaking to the cameras, "your objection is overruled. Whether Dr. Holbrooke's testimony is relevant and admissible is my decision and I have made my decision."

  She seemed pleased with her speech. Scott sat. Bobby leaned in and whispered, "What jurors are you talking about?"

  The D.A. began his direct examination. "Dr. Holbrooke, have you reviewed the toxicology report on Rebecca Fenney?"

  "Yes, I have."

  "And did she have alcohol and cocaine in her system the night of Trey Rawlins' murder?"

  "Yes, she did."

  "How much?"

  "Point-two-two alcohol and four hundred nanograms per milliliter of cocaine."

  "In layman's terms."

  "A lot."

  Bobby's laptop pinged. He read Karen's message then said, "Objection. If he's an expert, he can do better than 'a lot.' "

  "Overruled."

  "A whole lot, then," the doctor said.

  "Doctor, in his opening statement, Mr. Fenney posed a question for the jury and Mr. Herrin just posed the same question to Detective Wilson: How could a normal person such as Rebecca Fenney have killed Trey Rawlins then slept in his blood? That is indeed a perplexing question. Do you have an expert opinion that might help the jury answer that question?"

  "Yes, I do. With that much alcohol and cocaine in her system, she could have stabbed him then passed out in his blood."

  "I see. Is it likely that she remembered much from that night?"

  "No. That night is probably a complete black hole."

  "She could have stabbed Mr. Rawlins and not remember?"

  "Yes. She quite likely remembers very little from that night."

  "Thank you, Doctor. Pass the witness."

  Bobby stood. "Dr. Holbrooke, you're a professional witness, correct?"

  "I'm a psychiatrist who testifies in court."<
br />
  "You get paid for testifying, correct?"

  "Just as you get paid for representing your client."

  "Who's your client—the State of Texas or the truth?"

  "I am here to offer my professional opinion."

  "For a fee. What percentage of your income is derived from testifying in court?"

  "I'm not sure."

  "Best guess."

  "I can't guess."

  "Okay, how much did you earn last year from treating psychiatric patients?"

  "Nothing."

  "Ah, now we're getting somewhere. Do you have any other sources of income, other than testifying in court?"

  "No."

  "So one hundred percent of your income is earned by testifying?"

  "Yes."

  "See, that wasn't so hard. How many times have you testified in a criminal trial?"

  "I'm not sure."

  "More or less than a hundred times?"

  "More."

  "And were you paid for each time?"

  "Yes."

  "How much is the State of Texas paying you for your testimony today?"

  "Including my review of the case files?"

  "Your entire bill."

  "Ten thousand dollars."

  The D.A. stood and said, "State calls Rosie Gonzales."

  Rosie was thirty-two, single, and a Mexican national with a green card. She spoke English; she took classes at the community college. She wanted to be a registered nurse. Since immigrating from Matamoras two years before, she had been a maid.

  "Ms. Gonzales, did you clean Trey Rawlins' house?" the D.A. asked.

  "Yes, I did that."

  "How long?"

  "Maybe, four hours."

  "No. When did you first start cleaning his house?"

  "Oh. One year ago."

  "And how often did you clean the house?"

  "Two days each week—Mondays and Thursdays."

  "And did you clean the house on Thursday, June the fourth of this year?"

  "Yes, I did that."

  "What time did you arrive that day?"

  "Maybe, eight."

  "In the morning?"

  "Yes."

  "And what time did you leave?"

  "Noon."

  "Was anyone else in the house while you were there that day?"

  "Mr. Rawlins, but he left at nine. And Ms. Fenney, she left at ten."

  "And did you see them again that day?"

  "No, I did not see them."

  "And what did you do that day?"

  "Wash the clothes, vacuum, windows, dishes …"