The Fifth Witness: A Novel

by Michael Connelly

  “Yes, maybe an inch and a half to account for the heels.”

  “Okay, so knowing the victim’s height and knowing that the fatal wound came in flush on the top of his head, what does that tell us about the angle of attack?”

  “I am not sure what you mean by angle of attack.”

  “Are you sure about that, Doctor? I am talking about the angle the hammer was at in relation to the impact area.”

  “But this would be impossible to know because we don’t know the posture of the victim or whether he was ducking from the blow or what the exact situation was when he was struck.”

  Gutierrez ended his answer with a nod, as though proud of the way he had handled the challenge.

  “But Doctor, didn’t you testify during direct examination from Ms. Freeman that it appeared to you, at least, that Mr. Bondurant was struck from behind in a surprise attack?”

  “I did.”

  “Doesn’t that contradict what you just said about ducking from the blow? Which is it, Doctor?”

  Feeling cornered, Gutierrez reacted in the way most cornered men do. With arrogance.

  “My testimony is that we do not know exactly what happened in that garage or what posture the victim was in or what the orientation of his skull was when he was struck with the fatal blow. To be minutely guessing and second-guessing at this point is a fool’s errand.”

  “You are saying it is foolish to attempt to understand what happened in the garage?”

  “No! I am not saying that at all. You are taking the words and twisting them.”

  Freeman had to do something. She stood and objected and said I was badgering the witness. I wasn’t and the judge said as much, but the little interruption was enough for Gutierrez to collect himself and resume his calm and superior demeanor. I decided to wrap things up. I had largely been using Dr. Guts as a setup man for my own expert, who would testify during the defense phase. I believed I was almost there.

  “Doctor, would you agree that if we could determine the victim’s posture and the orientation of his skull at the time of that first, fatal blow, then we would have insight as to the angle at which the murder weapon was held?”

  Gutierrez considered the question for longer than it had taken me to ask it, then reluctantly nodded.

  “Yes, it would give us some insight. But it is imposs—”

  “Thank you, Doctor. My next question is if we knew all of these things—the posture, the orientation, the angle of the weapon—wouldn’t we then be able to make some assumptions about the height of the attacker?”

  “It doesn’t make sense. We can’t know these things.”

  He held both his hands up in frustration and turned to look at the judge for help. He got none.

  “Doctor, you are not answering the question. Let me ask you again. If we did indeed know all of these factors, could we then make assumptions about the attacker’s height?”

  He dropped his hands in an I give up gesture.

  “Of course, of course. But we do not know these factors.”

  “ ‘We,’ Doctor? Don’t you mean you don’t know these factors because you didn’t look for them?”

  “No, I—”

  “Don’t you mean you didn’t want to know these factors because they would reveal that it was physically impossible for the defendant, at five foot three, to have ever committed—”

  “Objection!”

  “—this crime against a man ten inches taller than her?”

  Luckily they no longer used gavels in California courtrooms. Perry would have smashed his through the bench.

  “Sustained! Sustained! Sustained!”

  I picked up my pad and flipped over all the folded back pages in a show of frustration and finality.

  “I have nothing further for—”

  “Mr. Haller,” the judge barked, “I have warned you repeatedly about acting out in front of the jury. Consider this your last warning. Next time, there will be consequences.”

  “Noted, Your Honor. Thank you.”

  “The jury will disregard the last exchange between counsel and the witness. It is stricken from the record.”

  I sat down, not daring to glance at the jury box. But that was okay, I felt the vibe. Their eyes were on me. They were riding with me.

  Not all of them, but enough.

  Thirty-eight

  I spent the lunch hour schooling Lisa Trammel on what to expect during the afternoon session of court. Herb Dahl was not present, having been dispatched on a phony errand so I could be alone with my client. As best I could, I tried to explain to her the risks we would be taking as the prosecution’s case wound down and the defense took center stage. She was scared, but she trusted me and that’s about all you can ask from a client. The truth? No. But trust? Yes.

  Once court reconvened Freeman called Dr. Henrietta Stanley to the witness stand. She identified herself as a supervising biologist for the Los Angeles Regional Crime Laboratory at Cal State L.A. My guess was that she would be the last witness for the prosecution and her testimony would have two parts of major significance. She would confirm that DNA testing of the blood found on the recovered hammer matched Mitchell Bondurant’s DNA perfectly and that the blood found on Lisa Trammel’s gardening shoe also matched the victim’s.

  The scientific testimony would bring the case full circle, with blood being the link. My only intention was to rob the prosecution of the moment.

  “Dr. Stanley,” Freeman began. “You either conducted or supervised all DNA analysis that came from the investigation of Mitchell Bondurant’s death, did you not?”

  “I supervised and reconfirmed one analysis conducted by an outside vendor. The other analysis I handled myself. But I must add that I have two assistants in the lab who help me and they do a good portion of the work under my supervision.”

  “At one point in the investigation you were asked to have a small amount of blood that had been found on a hammer analyzed for a DNA comparison to the victim, were you not?”

  “We used an outside vendor on that analysis because time was of the essence. I supervised that process and later confirmed the findings.”

  “Your Honor?”

  I was standing at the defense table. The judge looked annoyed with me for interrupting Freeman’s examination.

  “What is it, Mr. Haller?”

  “To save the court’s time and the jury from going through a long-drawn-out explanation of DNA analysis and matching, the defense stipulates.”

  “Stipulates to what, Mr. Haller?”

  “That the blood on the hammer came from Mitchell Bondurant.”

  The judge didn’t miss a beat. The chance to jump the trial forward an hour or more was welcomed—with caution.

  “Very well, Mr. Haller, but you will not get the opportunity to challenge this during the defense phase. You know that, right?”

  “I know it, Judge. There will be no need to challenge it.”

  “And your client does not object to this tactic?”

  I turned my body slightly toward Lisa Trammel and gestured to her.

  “She is perfectly aware of this tactic and agrees. She is also willing to go on record, if you wish to ask her directly.”

  “I don’t think that is necessary. How does the state feel about this?”

  Freeman looked suspicious, like she was looking for the trap.

  “Judge,” she said, “I want it clear that the defendant is acknowledging that the blood found on the hammer was indeed Mitchell Bondurant’s blood. And I want a waiver on ineffective counsel.”

  “I don’t think a waiver is necessary,” Perry said. “But I will get the stipulation directly from the defendant.”

  He then asked Lisa questions that confirmed she was on board with the stipulation.

  Once Freeman said she was satisfied Perry turned his chair and rolled to the end of the bench so he could address the jury.

  “Ladies and gentlemen, the witness was going to take you through an explanation of the scien
ce of DNA typing and matching, leading you to testimony in regard to lab tests matching blood found on the hammer that is in evidence to that of our victim, Mitchell Bondurant. By stipulating, the defense is saying they agree with those findings and will not object to them. So what you take from this is that the blood found on the handle of the hammer found in the bushes near the bank did indeed come from the victim, Mitchell Bondurant. This is now stipulated as a proven fact and I will have that in writing for you when you begin your deliberations.”

  He nodded once and then rolled back into place where he told Freeman to proceed. Knocked out of rhythm by my unexpected move, she asked the judge for a few moments while she got her bearings and found the place from which to restart her examination. Finally, she looked up at her witness.

  “Okay, Dr. Stanley, the blood from the hammer was not the only sample of blood from this case that you were asked to have analyzed, correct?”

  “That is correct. We were also given a separate sample of blood discovered on a shoe found on the defendant’s premises. In the garage, I believe. We typed—”

  “Your Honor,” I said as I rose from my seat again, “once more the defense wishes to stipulate.”

  This time the move brought complete silence to the courtroom. Nobody was whispering in the gallery, the bailiff wasn’t using his hand to muffle his voice on his telephone, the court reporter’s fingers were held steady over the keys. Complete silence.

  The judge had been sitting with the fingers of both hands knitted together beneath his chin. He held his pose for a long moment before using both hands to signal Freeman and me forward to the bench.

  “Come on up here, Counsel.”

  Freeman and I stood side by side in front of the bench. The judge whispered.

  “Mr. Haller, your reputation preceded you when you came into my courtroom on this case. I was told by more than one source that you were a damn fine lawyer and a tireless advocate. I need to ask, however, if you know what you’re doing here. You want to stipulate to the prosecution’s contention that the victim’s blood was found on your client’s own shoe? Are you sure about that, Mr. Haller?”

  I nodded as if to concede that he had made a good point in questioning my trial strategy.

  “Judge, we did the analysis ourselves and it came back as a match. The science doesn’t lie and the defense is not interested in trying to mislead the court or the jury. If a trial is a search for truth then let the truth come out. The defense stipulates. We will prove later that the blood was planted on the shoe. That is where the real truth lies, not with whether or not it was his blood. We acknowledge that it was and we’re ready to move on.”

  “Your Honor, may I be heard?” Freeman said.

  “Go ahead, Ms. Freeman.”

  “The state objects to the stipulation.”

  She had finally caught on. The judge looked aghast.

  “I don’t understand, Ms. Freeman. You get what you want. The victim’s blood on the defendant’s shoes.”

  “Your Honor, Dr. Stanley is my last witness. Counsel is seeking to undercut the state’s case by robbing me of the ability to present evidence in the way I wish to present it. This witness’s testimony is devastating to the defense. He just wants to stipulate to lessen its impact on the jury. But a stipulation must be agreed to by both parties. I made a mistake taking the stipulation on the hammer, but not this time. Not on the shoes. The state objects to this.”

  The judge was undaunted. He saw a savings of at least a half day of court time and he wasn’t going to let it go.

  “Counsel, understand that the court can overrule your objection in the cause of judicial economy. I’d rather not do that.”

  He was telling her not to go against him on this. To accept the stipulation.

  “I’m sorry, Your Honor, but the state still objects.”

  “Overruled. You can step back.”

  And so it went. As with the hammer, the judge relayed the stipulation to the jury and promised they would receive a document outlining the evidence and facts agreed to by the start of deliberations. I had successfully silenced the crescendo of the prosecution’s case. Instead of going out with the crashing of cymbals, drums and evidence that screamed SHE DID IT! SHE DID IT! SHE DID IT!, the prosecution went out with a whimper. Freeman was seething. She knew how important the payoff was to the gradual buildup. You don’t listen to Boléro for ten minutes and turn it off with the final two minutes to go.

  Not only did the truncating of her case hurt, but I had effectively turned her last and most important witness into the first witness for the defense. By stipulating, I had made it seem as if the DNA returns were the initial building blocks of my case. And there was nothing Freeman could do. She had put the whole case out and had nothing left. After excusing Stanley from the witness stand, she sat at the prosecution table, turning through her notes, probably thinking about whether she should put Kurlen or Longstreth back on the stand to finish the case with a detective’s roundup of all the evidence. But there were risks to that. She had rehearsed their testimony before. But not this time.

  “Ms. Freeman?” the judge finally asked. “Do you have another witness?”

  Freeman looked over at the jury box. She had to believe she had the verdict. So what if the evidence wasn’t delivered according to the plan she had choreographed? The evidence was still there and in the record. The vic’s blood on the hammer and on the defendant’s shoes. It was more than enough. She had the verdict in her pocket.

  She slowly rose, still looking at the jurors. Then she turned and addressed the judge.

  “Your Honor, the People rest.”

  It was a solemn moment and again the courtroom turned still and silent, this time for almost a whole minute.

  “Very well,” the judge finally said. “I don’t think any of us thought we would be at this place so soon. Mr. Haller, are you ready to proceed with the presentation of the defense’s case?”

  I stood.

  “Your Honor, the defense is ready to proceed.”

  The judge nodded. He still seemed a bit shell-shocked by the defense’s decision to acknowledge and accept as evidence the victim’s blood on the defendant’s shoes.

  “Then we’ll take our afternoon break a little early,” he said. “And when we come back, the defense phase will begin.”

  PART FOUR

  The Fifth Witness

  Thirty-nine

  If the defense tactics during the latter stages of the prosecution’s case were surprising, the first step out of the corner during the defense phase did nothing to lessen some observers’ doubts as to the competence of counsel. Once everyone was back in place following the afternoon break, I went to the lectern and threw another What the hell? move into the trial.

  “The defense calls the defendant, Lisa Trammel.”

  The judge asked for quiet as my client stood and made her way to the stand. That she was called at all was shocking and caused a roll of whispers and chatter in the courtroom. As a general rule, defense attorneys don’t like to put a client on the witness stand. In a risk-to-reward ratio this tactic ranks quite low. You can never be sure what your client will say because you can never fully believe anything she has told you. And to be caught in a single lie while under oath and on the stand in front of the twelve people determining your guilt or innocence is devastating.

  But this time and this case were different. Lisa Trammel had never wavered in her claim to innocence. She had never once waffled in her response to the evidence against her. And she had never once been remotely interested in any sort of deal. Given this, and the developments regarding the Herb Dahl–Louis Opparizio connection, I was viewing her differently than I had at the start of the trial. She had insisted on having a chance to tell the jury she was innocent and it occurred to me the night before that she should be given the opportunity the very moment it became available. She would be the first witness.

  The defendant took the oath with a slight smile on her face. It may have
seemed out of place to some. After she was seated and her name was in the record, I jumped right on it.

  “Lisa, I just saw you smiling a little bit when you were taking the oath to tell the truth. Why were you smiling?”

  “Oh, you know, nervousness. And relief.”

  “Relief?”

  “Yes, relief. I finally get the chance to tell my side. To tell the truth.”

  It started out well. From there I quickly took her through the standard list of basic questions about who she was, what she did for a living and the state of her marriage, as well as touching on the state of her home ownership.

  “Did you know the victim of this terrible crime, Mitchell Bondurant?”

  “Know him, no. Know of him, yes.”

  “What do you mean by that?”

  “Well, over the past year or so, when I started to get in trouble with the mortgage, I had seen him. I went to the bank a couple times to plead my case to him. They never let me talk to him, but I saw him back there in his office. The wall of his office was completely made of glass, which was a joke. Like you could see him but not talk to him.”

  I checked the jury. I didn’t see any outright head nods, but I thought the answer and the image my client had conjured were perfect. The banker hiding behind a wall of glass while the downtrodden and disadvantaged are kept away.

  “Did you ever see him anywhere else?”

  “On the morning of the murder. I saw him at the coffee shop I stop at. He was two people behind me in line. That’s why I was confused when I was talking to the detectives. They were asking about Mr. Bondurant and I had just seen him that morning. I didn’t know he was dead. I didn’t realize they were investigating me for a murder I didn’t know had even been committed.”

  So far, so good. She was playing it as we had discussed and rehearsed, right down to always referring to the victim with complete respect if not sympathy.

  “Did you talk to Mr. Bondurant that morning?”

  “No, I didn’t. I was afraid he might think I was stalking him or something and take me to court. Also, I had been warned by you to avoid any encounter or confrontation with people from the bank. So I quickly got my coffee and left.”