Madriani - 02 - Prime Witness

by Steve Martini

  We spent an anniversary there three years ago. Now Nikki is holed up there with Sarah and a pile of kindergarten workbooks, in a room with a brass bed, playing tutor to my daughter, at the Vineyard House. The building is a mammoth white pseudo-Victorian, dating from the nineteenth century, overgrown with wisteria and other clinging vines. It is said to be haunted by the ghost of a former owner, a man who suffered from dementia and was chained in the basement by his wife. This is a fate I fear for myself if I do not put a quick end to this trial. Such is Nikki’s growing sense of ire.

  “I don’t know about that place,” says Claude.

  “They’ll be fine,” I say. “They’re comfortable, and safe.”

  “It’s too public for me,” he says. “A private house or an apartment would have been better.

  “I’ve arranged periodic security,” he tells me. “El Dorado County Sheriff will keep a car patrolling in the area.” In the next breath he tells me that this is probably unnecessary.

  Nikki is there, registered under an assumed name. We have paid cash for the room and I will be traveling to and from this place daily more than an hour’s ride each way during the trial, so she will not be alone at night.

  Claude tells me that this is probably all overkill, needless precautions.

  I look at him as if to say “why the hell are we doing it then?”

  “Still, a good investment in some peace of mind,” he says.

  Then without missing a beat he slides something across the seat in my direction. This has come from under the flap of his coat near the seat belt, like he’s waiting for just the right moment to reveal it.

  “I thought maybe you could use this,” he says. There’s a disturbed look, a little chagrin on his face as he pushes this toward me.

  As he removes his hand, I’m looking down at the lustrous blued-steel of a small revolver, wrapped in its tight leather holster.

  “In the glove box,” he says, “is a permit, so you can carry it concealed. Emil issued it last night.”

  So much for peace of mind.

  It’s a truism that in the trial of any case, something will always go wrong, though usually it does not occur on the eve of opening argument as it has here. This maxim has now struck my own case, dead center and below the proverbial waterline.

  The commercial photo lab hired by Kay Sellig to upgrade the quality of our photos to be put before the jury has misplaced a critical piece of evidence, a short length of cord used in one of the murders. Sellig has me on the phone, giving me this news.

  “How in the hell?” I say.

  “They are looking for it,” she says, “turning the place upside-down.” She’s trying to calm me down. She tells me that they are confident they will find it.

  “When?” I say.

  “That’s the big question,” she tells me.

  “We have crystal clear colored photos of all of the pieces,” she says. Apparently the lab lost the missing piece of plastic sheathing after their processing was finished.

  I wonder aloud whether they could have thrown this out without thinking.

  Sellig cannot be sure, but tells me she doesn’t think this is the case. “They knew what it was for,” she says. “That it was important.”

  “That didn’t stop them from losing it.”

  She is silent on the other end of the line. Sellig had advised against allowing the evidence out of our possession, but I pushed for better enlargements as this was the centerpiece of our case. I am now paying the price for not heeding her warning.

  She tells me that she’s about to leave for the lab, to talk to the owner, to help them look.

  “If we can’t find it,” she says, “maybe the court would allow us to use the photos instead, as the best evidence,” she says.

  This is not likely, I tell her. “The defense has an absolute right to have the cord examined by its own experts. I wouldn’t count on it,” I say.

  Tomorrow morning I start my case-in-chief, opening argument. We have spent the last two days selecting our jury, or rather the judge has. Ingel, true to his promise not to cut any slack, pressed us to the wall, finally insisting on doing the voir dire himself, posing questions we submitted in writing, at least the ones he thought appropriate. Judges in criminal cases are permitted to do this under an initiative adopted by voters a few years ago, though unlike Ingel, most still allow the lawyers to ask critical questions.

  Chambers stomped up and down the courtroom railing about this, his exclusion from the jury selection process. He got nowhere, except perhaps the listing of another ground for appeal. That Ingel completed this task in two days was no mean feat, probably a record. In a capital case the jury must be “death qualified”—questions must be posed to assure that if convicted as charged, the panel would have no qualms about imposing the death penalty.

  The haste with which this process was completed has turned it into a dry exercise. Neither Goya nor I have any real feel for this group, our panel of twelve jurors and six alternates. I suspect that Chambers is equally blind, but no more so than one of the prospective jurors.

  When the man with the white cane appeared in the box, I objected, told Ingel that a major portion of our case was demonstrative in nature, photos of evidence that required visual acuity on the part of the trier of fact. He hammered me down, citing a code section that does not permit the exclusion of a juror because of impaired sight. I was ultimately forced to burn a peremptory challenge to remove the man from the panel. With this Ingel smiled, as if to say now I could deal with the wrath of the sight-impaired lobby.

  He knew as well as I that no reader could describe our photographic evidence to the juror without making the fundamental judgment for the juror, the question whether the pictures portrayed what they purported to or not.

  I hold my breath and ask Sellig the critical legal question about the missing evidence, the piece of cord.

  “Do you know which piece it is?” I say. “The missing length of sheathing from the cord?”

  The sections of clothesline cord, sixteen in all, used on the victims, seventeen if you count the coiled length discovered in the Russian’s van, are the critical links in our chain of evidence. Taken together, piece-by-piece they form a continuum connecting the four college victims with the coiled length of cord found in the vehicle. The question is at what point this chain is now broken. This will tell me how many of the counts of murder may be in jeopardy if we cannot find the missing length.

  Sellig is scrambling through her notes on the other end of the line, breathing heavily into the phone as she looks for the information. She has coded these pieces by number and letter, marking them for identification. It takes her several seconds to locate what she’s looking for, the legend for this code.

  “It looks like. Yes,” she says. “It was two-D.”

  This means nothing to me.

  She explains that four pieces of cord were used on each victim, two to tie off the ankles, and two more to bind the wrists. Each of these pieces has been lettered in sequence, A through D.

  “The number assigned represents the order of the victims,” she says. “This is from the second victim, the last section of cord used on that victim.”

  “Julie Park,” I say.

  “Yes.”

  This means the evidentiary link is broken between Park and the third victim. Unless we can find the missing piece of cord, I could be compelled to dismiss the charges involving the murders of Julie Park and the first victim, her boyfriend Jonathan Snider. Without the cord there is nothing linking them to Iganovich other than a similar MO in the commission of the crimes. Chambers, who is keying on the Scofield murders and the similar fact pattern there, would chew me up in such an argument.

  I lean back in my chair, suck a lot of air, and look up at the tiny perforated holes in the ceiling. I wonder how I would ever garner the courage to break this news to Kim Park, and pray that it will not be necessary.

  “Keep me posted,” I tell Sellig. “Call me as soon as y
ou talk to the people at the lab.” I hang up.

  Lenore is waiting patiently to talk to me, sitting in one of the chairs across from my desk; she has tuned in to a portion of my phone conversation.

  “They lost part of the rope?” she says.

  I nod. “We could be forced to dump the counts relating to Julie Park and the Snider kid,” I say.

  “Damn it.” Goya gives me a pained expression. Then she quickly picks up the broken pieces of this equation and puts a face on it, I think for my benefit.

  “I guess it could be worse,” she says. “They could have lost the last piece.” She means the slender length of cord linking all the others to the coiled rope in the van. With this our entire case would have evaporated.

  “We’re not out of the woods,” I say. “Our case may only be marginally better than none at all.”

  “What do you mean?”

  “I mean Chambers is already keying on the Scofield cases. If we’re forced to dismiss the Park and Snider counts, we have only one set of murders to the jury.”

  A look comes over her face as if she sees where I’m going. There is nothing left to distinguish the second set of student killings from the Scofield crimes. In both cases the killer used consecutive sections of cord to tie down the couples, though the cord between cases doesn’t match up. The metal stakes used in the second murders are a match, as are the stakes used on the Scofields. But as between these two crimes, again, the stakes are different.

  “It makes it look as if the killer changed his tools with each set of murders,” she says.

  “We can forget our expert on criminal profiling,” I tell her. “Without Park and Snider we no longer have pattern crimes, just an isolated set of gruesome killings. And if Chambers can put his man in Canada at the time of the Scofield murders . . .” I let the thought trail off, the conclusion obvious. It is the trouble with a theory built entirely around circumstantial evidence: remove one of the critical pins holding it together and your case can fall apart.

  Chapter Thirty-one

  This morning, early before court, Lenore prepped with Lloyd Tolar, our first meeting with him face-to-face. The guy is harder to get ahold of than the pope, but apparently a little more lascivious.

  She tells me he is tall, gray-haired and distinguished, the kind of witness juries fall in love with. They went over his evidence, a cordial conversation of Y incisions to the human body, from crotch to breast bone and, between the liver and spleen, he asked her out to lunch.

  “Randy old goat,” she says.

  Trying to get ahold of Tolar I should have known. From what she tells me, I could have sent him Lenore’s picture clipped to her business card and saved myself a dozen phone calls.

  “He says it won’t be necessary to put on the profile experts when he is finished laying out his evidence, so devastating will be his testimony,” she says.

  It is easy to see where the young intern caught his arrogance, the kid in Tolar’s office the day I went looking for him. It is a required course in medical school. But we don’t argue with the good doctor. Lenore says he has enough gall that he speaks with the authority of a god, and possesses a resume to match.

  Today I am forced to confront our missing evidence, the length of cord lost by our photo people.

  I look over. The counsel table for the defense is crowded. Chambers and Iganovich form a sandwich with the interpreter squeezed between them. On the other side of the Russian is Bob Haselid, a last-minute addition to the defense team.

  Haselid is a young lawyer, a growing reputation as a comer in the bar. He will serve as Keenan Counsel, responsible for the penalty phase of the defense, to save the Russian’s life if we convict and the jury finds special circumstances.

  Before we begin I have asked for a few minutes with Ingel and Adrian in private. The bailiff wags a finger at me, then buttonholes Chambers. He leads us both back behind the bench to huddle with the judge.

  When we arrive Ingel is busy picking fuzz off his robes, the sticky side of some Scotch tape threaded between his fingers. The life of the busy judge.

  He looks at me. “What is it,” he says, “some last-minute ground rules?”

  “A problem,” I tell him.

  He lays the black garment aside, on the edge of his desk.

  “Some of our evidence has been misplaced,” I say.

  I get a look, as if meanness is not far below the surface this morning.

  “I’m told it’s only temporary, that they will find it.” My effort to take a little of the edge off these tidings.

  “What evidence?” Ingel’s gaze is icy.

  “A piece of the cord, from the first two murders, the outer plastic sheathing,” I say. In the next breath, before he can say more, I tell him that we have detailed photos, offer this bait to see if maybe he will bite.

  “Photographs of evidence are not evidence,” he says, “not in my court.” Unfortunately for me, Ingel, unlike the Coconut, has employed his copy of the Evidence Code for something more than a dense coaster for his coffee cup.

  I get a quick tongue-lashing from him, admonitions that he warned me during discussions on settlement not to be looking for judicial dispensations. He questions me, in not too subtle ways, as to which of the charges are affected. He is no doubt probing to determine the effect of this mishap on the murder of Sharon Collins. Ingel does not want to tell Armando Acosta that he was forced by circumstance to dump charges in the murder of the Coconut’s niece. When he sees Chambers beginning to take note of this line of questioning, Ingel drops it quickly.

  “How did it happen?” he says.

  “The commercial photo lab,” I say. “They came in with their equipment to do some pictures. Apparently they misplaced the evidence in processing the film.”

  “Threw it out?” says Ingel.

  “They tell me no,” I say, “that that is unlikely, your honor.”

  “The buck,” he says, “for every fuck-up in your case stops with you, counselor.” He makes it sound like I’m giving excuses.

  “They’re confident they’ll find it,” I say.

  “Good for them,” says Ingel. “In the meantime what are we supposed to do?”

  Chambers smells advantage here, some unexpected boon. In a death case, chivalry is a stranger to the courtroom and defense attorneys, the good ones, give no quarter. He edges in close to the Prussian’s desk.

  “We’ll oppose any motion for continuance,” he says. “The defense is ready to proceed.” He reminds the judge that the defendant has not waived time.

  There is more than a week left before the sixty-day period will run requiring a dismissal for failure to prosecute. But Ingel makes clear that he is not entertaining any motions to continue.

  “We’ve picked our jury,” he says. “I’m not about to let them sit around and chew on the facts of this case while the prosecutor looks for missing evidence.”

  The less charitable might accuse the Prussian of hearing Hawaiian strings, but in point of fact he is right. There is nothing more dangerous than a restless jury once empaneled. Left to their own devices there is no end of mischief they might get into, speculation about the case they are about to hear, suppositions on the evidence.

  Most of the jurors have read news accounts of these murders, seen the white-sheeted bodies, the cleaned-up aftermath of these crimes on their television screens.

  “We are ready to go,” says Ingel, “and go we will, on this trial this morning.”

  “I’m not asking for a continuance,” I say, “just some latitude.”

  Ingel looks at me like he doesn’t know the word.

  My tactic in coming here is not deep. The continuum of cord is the common thread of evidence running through my case. It was presented to the grand jury and is highlighted in that transcript, which by now Chambers has read and dissected. That a piece of this is now missing is not something likely to elude Adrian.

  When he sees it he will make an immediate motion to dismiss the first two counts o
f murder, Julie Park and Jonathan Snider. Knowing the Prussian and his attitude toward me, I don’t want him to make a snap judgment from the bench on this. So I raise it here in private, off the record, a rehearsal to help temper his judgment. I ask Ingel for some leeway, to hold off on any motion to dismiss until we have time to find the cord, to give me a little license in presenting my case until then.

  He is noncommittal.

  He reminds me of my opportunity to settle the case, the proffered plea bargain on six counts of murder. If he could, Ingel would order me to don sackcloth while he shovels ash on my head. For a moment, I think maybe he would like to reopen negotiations, but suspects that Adrian, now sensing blood on the water, is not so keen. Instead he says nothing.

  “How critical is this evidence?” he says. He wants a damage assessment on my case, here in front of Adrian, how the missing piece of cord fits in.

  I give him the facts, but stop short of summing them up, that two counts of murder are now hanging perilously on a slender thread.

  The sense of relief in his face when he discovers that the count on Sharon Collins is still intact is nearly palpable. He will not have to carry bad news to Acosta, at least not yet.

  Adrian sees his opening. “I move for dismissal,” he says, “on Park and Snider, the first two counts, your honor.”

  Ingel holds him off, palm outstretched.

  “Is this the only evidence linking the defendant to these crimes?” he asks. “The missing piece of cord?”

  I tell him it is not. “The fact that we can link evidence in the defendant’s van to the murders of the second two college students, this together with the fact that all four killings involved a similar MO,” I say, “provides a nexus to the defendant.”

  “With a reach like that you should be the heavyweight champ,” says Chambers. He means that I am stretching my case. He is right, but it is all that I have left for the moment.

  “The pieces of cord in all four murders are of the same manufacture, as are the metal stakes,” I tell Ingel, this latter to add a little gloss.