Until the Final Verdict

by Christine McGuire

  By dusk the next day, the media and public swarmed over the County Government Center like yellow jackets at a Fourth of July picnic. Trucks, RVs, and tents jostled for space in the parking lot with television broadcast vans, which pointed their antennae at invisible geostationary satellites that collected, then scattered their pictures and commentary instantaneously across the state.

  By nightfall, the acrid odor of cooking meat and charcoal lighter permeated the cool spring air, and mingled with the gasoline-oil fumes from portable generators that struggled to power dozens of news anchors’ dressing rooms, scores of light banks, and hundreds of coffeepots. An impromptu band blasted out country and western music below a makeshift bandstand until the Sheriff’s Department shut them down at 2:00 A.M.

  Shortly after, lines started to form on the courthouse steps.

  CHAPTER

  * * *

  39

  DISTRICT ATTORNEY NEAL MC CASKILL sat by himself, yellow legal pads and a stack of transcripts, briefs, and police reports on the prosecution table. He didn’t look up when Bailiff Patti O’Connor helped Kathryn Mackay limp to the defense table.

  Mackay had no makeup on and had trimmed her hair very short, concessions to the austere Blaine Street facilities. She wore a steel-gray Gianni pants suit with a white silk open-necked blouse and charcoal-gray low-heel shoes.

  “Kathryn, what happened, why are you limping?” Roger Griffith stood while she seated herself.

  She tapped her knee with a fingertip. “There’s a plastic brace on my knee to prevent me from running—asif I’d try. But I have to wear pants instead of a skirt so the jury can’t see it.”

  “I was afraid you’d been attacked again.”

  “Don’t worry about me. Adetention officer escorts me to meals, to the shower—anyplace outside Q. I’m as safe as possible under the circumstances.”

  “I hope so.”

  In his late forties, Griffith stood more than six feet tall, but his stooped posture made him look shorter. With mousy brown hair and an aquiline nose, he was rather ordinary-looking, but his intense blue eyes darted about, continually scrutinizing and evaluating every aspect of his surroundings. In his charcoal business suit, gray shirt, black necktie, and black wingtips, he looked more like a corporate attorney than a criminal defense lawyer.

  O’Connor admitted the media and spectators at 8:45. At exactly 9:00 A.M., Monday, March 25, Judge Reginald Keefe acknowledged the District Attorney and the defense counsel, and convened court.

  “The defendant has brought a PC 995 motion attacking the sufficiency of evidence in support of a charge of murder with special circumstances, and seeking to reinstate the defendant to bail.”

  He turned to the defense table. “It’s your motion, Mr. Griffith. Let’s hear what you have to say.”

  “The defense has a witness to call, Judge.”

  McCaskill objected. “Defense counsel knows if any evidence supports an indictment, the Court can’t dismiss it, and the prosecution has already satisfied the Court as to the sufficiency of the evidence that supports the charge.”

  Keefe turned to the defense table. “I’m inclined to agree, Counselor.”

  Griffith shook his head. “The Court isn’t precluded from receiving information outside the record, Judge, and the defendant has a right to call its own witness.”

  “What witness?”

  “Doctor Morgan Nelson.”

  McCaskill’s face turned red. “I demand an offer of proof that Nelson might impeach his own scientific findings, reports, conclusions, his statements to investigators, or that his testimony today might negate an element of the crime charged.”

  “What about that, Mr. Griffith?”

  “Nelson’s findings and conclusions were selectively presented to the Grand Jury that led to the special-circumstance charge. Had his conclusions been fully disclosed, they would have negated a required element of the special circumstances.”

  Keefe sighed and flipped his hand. “Oh, all right, call your witness, but keep it brief.”

  “The defense calls Doctor Morgan Nelson.”

  Nelson raised his right hand, swore to tell the truth, and settled comfortably into the chair.

  “Please state your name, Doctor, and spell your last name for the court reporter,” Griffith said.

  “Morgan Nelson—N-E-L-S-O-N.”

  “What is your occupation?”

  “De facto Santa Rita County Coroner.”

  “Describe your education, training, and experience that qualify you to be coroner.”

  Keefe held his hand up in a stop signal. “Save it for trial, the Court is aware of Doctor Nelson’s expertise.The prosecution will stipulate for purposes of this hearing that Doctor Nelson is a medical expert, isn’t that right, Mr. McCaskill?”

  “Yes.”

  “Move on, Mr. Griffith.”

  “On January sixteenth, did you autopsy the body of Robert Simmons?”

  “I did.”

  “Did you subsequently prepare a report as to the cause of death of Doctor Simmons, and did you later discuss that report with Mr. McCaskill?”

  “Yes.”

  “What did your report state caused Doctor Simmons’ death?”

  “A digitalis overdose.”

  “Is digitalis a prescription medicine?”

  “It is.”

  “But administered in massive doses, it can be fatal?”

  “Yes.”

  “Is that true of other prescription medicines?”

  “Yes, and most nonprescription medicines as well, such as aspirin.”

  “What about items that are neither prescribed nor over-the-counter medications.”

  “Such as?”

  “Chocolate.”

  “In massive enough quantities, just about anything can be fatal, including chocolate. And salt. Even water.”

  “Then they’re poisons?”

  “Not in my opinion.”

  “Would it be accurate to say that if I died because I ate too much chocolate given to me by my wife, I died from the intentional administration of a poison, and my wife’s a murderer?”

  “That would be quite a stretch.”

  “You’re aware that Mr. McCaskill has charged that my client killed Robert Simmons with poison, and if the jury finds this to be true, they can kill her by lethal injection?”

  “Yes.”

  “Assuming the allegation of murder to be true for purposes of your testimony here today, is it your opinion that when Ms. Mackay administered digitalis to Robert Simmons, she administered a poison?”

  “Definitely not.”

  “Thank you.” Griffith walked back to the defense table. “No further questions.”

  McCaskill approached the witness stand and handed Nelson a blue brochure. “You’ve heard of the American Association of Poison Control Centers?”

  “Of course.”

  “Please read the part that’s highlighted in yellow, under the heading, ‘What Is a Poison.’ ”

  Nelson slipped on a pair of reading glasses. “ ‘A poison is any substance someone eats, breathes, gets in the eyes, or on the skin that can cause sickness or death if it gets into or on the body.’ ”

  “Now read the single, orange-highlighted word beside the first bullet, under the caption, ‘Most Dangerous Poisons.’ ”

  “ ‘Medicines.’ ”

  “Would you agree, based on that document, that the American Association of Poison Control Centers considers digitalis a deadly poison, and would not consider it ‘quite a stretch ’ to find that one who intentionally overdosed another with digitalis committed murder by poison?”

  “You’d have to ask them.”

  “I don’t think that’ll be necessary, Doctor, your answer is quite adequate.” McCaskill retrieved the pamphlet and handed it to the court clerk to be marked as People’s Exhibit 1.

  “No further questions.”

  Keefe turned to the defense table. “Unless you have further questions for this witness, M
r. Griffith, I’m prepared to rule on your motion.”

  “Your Honor, I would like to be heard first.”

  “All right, but be brief.”

  Griffith touched Mackay on the shoulder, then stood and walked to the podium facing the bench.

  “Murder by poisoning supports a specialcircumstance murder indictment only if it is reasonably supported by the evidence. Mr. McCaskill distorted Doctor Nelson’s findings and conclusions, and chose not to elicit his opinion about whether or not digitalis is a poison because had he done so, he would have received the answer Doctor Nelson gave today—that digitalis is not a poison.

  “Mr. McCaskill presented selective and incomplete information to the Court in support of his amended indictment charging special circumstances. This Court must question whether the prosecution’s outrageous interpretation of ‘murder by poison’meets both the legal requirements and the spirit of California’s death-penalty law.

  “The People don’t want my client to die, Your Honor, only Mr. McCaskill wants that. And he wants the State to do his killing for him. Don’t let him get away with it.”

  Keefe contemplated. “The Court notes that the standards employed in deciding a 995 motion are highly favorable to the People—every legitimate inference that may be drawn from the evidence must be drawn in favor of the indictment, which cannot be set aside if there is rational ground for assuming an offense has been committed, and that the accused is guilty of committing it. Defense motion is denied. Step back.”

  Griffith returned to the defense table, but refused to sit. “In that case, Your Honor, I have another motion to make before jury selection begins,” Griffith continued.

  “The defense hasn’t served me with a second motion,” McCaskill protested.

  “Mr. Griffith, you have a reputation with my colleagues for springing motions on the Court and prosecution. I won’t tolerate that behavior in my court,” Keefe admonished.

  “I can present my motion without taking up too much of the Court’s time.”

  Keefe motioned O’Connor to return to her station. “Oh, very well, proceed.”

  “Pursuant to PC 1424 and CCP 170.5, the defense moves to recuse the District Attorney and disqualify Your Honor from presiding over this trial, on the basis—”

  “Objection!” McCaskill rose, shaking his head indisgust. “For starters, a motion to recuse me must be served on my office and the Attorney General ten days in advance of a hearing. The defense has failed to meet the statute’s notice requirements.”

  Keefe glared. “I warned you that I wouldn’t tolerate any shenanigans, Mr. Griffith. How do you explain your failure to serve the DA and the Attorney General?”

  “The need for this motion wasn’t fully apparent until the Court’s adverse ruling on my 995 motion.”

  A murmur arose from the spectator section of the courtroom, and Keefe slammed his gavel on the bench. “Silence! Approach the bench, Griffith! You, too, McCaskill!”

  Griffith didn’t move. “I request that my client be at sidebar.”

  “Not a chance.”

  “My client is a licensed attorney and an integral part of her own defense.”

  “Forget it. Get up here, and be quick about it.”

  Griffith patted Mackay’s shoulder and approached the bench.

  Keefe whispered so that the spectators and media couldn’t hear. “What the hell do you think you’re doing, Griffith?”

  “Making sure my client gets a fair trial.”

  “What makes you think she won’t?”

  “I’ll make that clear when I argue my motion.”

  Keefe paused for several seconds. “I’ll close the hearing—then hear your motion.”

  “I object to excluding the media and public from a hearing on our motion,” Griffith told him.

  “Then I’m going to limit you to argument on recusing Mr. McCaskill.”

  “Judge . . .”

  “That’s my ruling, Mr. Griffith. Now, step back.”

  Griffith returned to the podium. “Mr. McCaskill is so incapable of acting impartially, and has a conflict of interest of such magnitude, that it renders it not just unlikely but impossible for my client to receive a fair trial. In fact, this trial would not have been pursued except for the malicious and discriminatory design of the prosecutor.”

  Keefe held his hand up, palm out. “Explain that.”

  “It’s simple.” Griffith pointed at McCaskill. “He wants Kathryn Mackay’s job.”

  “That’s ridiculous,” McCaskill objected.

  Keefe flashed him a dirty look. “You’ll have an opportunity to respond.”

  “When District Attorney Benton was murdered,” Griffith continued, “Neal McCaskill coveted the appointment to replace him. The Board of Supervisors appointed Kathryn Mackay, instead. She kept Mr. McCaskill as her Chief Deputy until his outrageous and insubordinate behavior left her no choice but to fire him.”

  “Judge!”

  Keefe pointed at the prosecutor. “Sit down.”

  “He vowed to get Kathryn Mackay’s job, whatever it took,” Griffith continued. “McCaskill lost to my client by a landslide in the next election. Then, knowing he’d never beat her fair and square, when presented with the opportunity, he indicted her for the murder of Robert Simmons.

  “But, McCaskill couldn’t do this all by himself, he needed an accomplice to stack the deck against Ms. Mackay. An accomplice who Ms. Mackay suspected had committed a murder himself, an accomplice who has admitted to carrying on an illicit, extramarital affair with the murder victim—an accomplice none other than Judge Reginald Keefe.”

  “Approach the damn bench, Griffith!”

  Spittle ran from the corners of Keefe’s mouth and his face glowed red. “Goddammit, Griffith, one more word of this bullshit in my court, and you’ll be in jail on a contempt charge faster than you can ask what the fuck happened.”

  Griffith returned Keefe’s stare. “I have DA Chief of Investigators James Fields under subpoena. He’ll testify that you admitted during a polygraph examination that you had sex with Judge Tucker the day she was murdered.”

  “You son of a bitch, I passed the damn poly.”

  “True, and polygraph results are inadmissible in court. But your admission to Inspector Fields isn’t.”

  “I didn’t murder Jemima.”

  “Doesn’t matter. By the time Fields finishes testifying, your career will be history whether you murdered her or not.”

  “You know I have to deny your motion.”

  “I’ve got to consider grounds for appeal if it comes to that.”

  “Finish your motion. Now, step back, please.”

  Rather than return to the podium, Griffith walked around the defense table, resumed his seat, and rested his hand on Mackay’s.

  “To summarize, Your Honor, the defense contends that Mr. McCaskill used and abused the power and authority of his office for the purpose of bringing an unjustified, discriminatory, and biased prosecution against my client. For those reasons, the defense moves to recuse the District Attorney from this case.”

  “This Court cannot assume, on the basis of mere allegations by the defense, that the District Attorney is biased against the defendant because they previously worked together, or because Mr. McCaskill exercised his right as an American to run for public office.”

  Keefe removed his glasses, leaned on his elbows, and interlaced his fingers. “On the other hand, the Court acknowledges the serious nature of the issues raised in Mr. Griffith’s motion, and will remain diligent to overcome any doubt that might attach to these proceedings, concerning the defendant’s right to a fair and impartial trial. Defense motion to recuse the District Attorney is denied.”

  Griffith shot back. “I request a continuance until tomorrow morning to allow the defense time to decide whether to file a writ with the appellate court to stay this Court’s ruling.”

  Kathryn leaned toward Griffith. “You need to start selecting a jury. We both knew I was in deep sh
it when Keefe assigned the case to himself. If we tried to bump him, even if we succeeded, who knows who he would have assigned in his place, better the devil we know than the devil we don’t. Besides, no appellate court’ll overturn Keefe’s ruling.”

  “I just spent two hours dragging the DA throughthe mud. It’ll be wasted unless every potential juror in the jury pool watches it on the six-o’clock news or reads about it in tomorrow morning’s newspaper.”

  “Very well,” Keefe ruled. “Jury selection will commence at nine o’clock tomorrow morning.”

  CHAPTER

  * * *

  40

  “LADIES AND GENTLEMEN, before today’s session we swore you in and had you fill out a questionnaire. This questionnaire asked some tough questions—called ‘voir dire’—to ensure you will objectively and fairly determine the defendant’s guilt under the law, in accordance with the evidence, and that you will fairly choose between the only two penalties available under the law if you find the defendant guilty of murder by poisoning: life without the possibility of parole . . . or death.”

  The jurors, half male and half female, shifted nervously. Twelve regular jurors sat in the box, the six alternates in straight-backed wooden chairs in front of and below the jury box.

  Judge Keefe made eye contact with each person.“In your questionnaire you swore you hadn’t formed an opinion about the death penalty that would impair your ability to be impartial. This applies equally to whether you might be personally predisposed to vote for or against the death penalty.

  “I understand that since filling out your questionnaire and being selected to sit on the jury, two of you may have changed your minds. Would you please raise your hands.”

  An elderly man with white hair, wearing thick bifocals and a business suit, and a woman in her early twenties, wearing a long flowered dress and Birkenstocks, raised their hands.

  “Juror Number Seven, what is your name?”

  “Harold Macdonald.”