Until the Final Verdict

by Christine McGuire

  “After swearing to be fair and impartial, why do you now believe you cannot be, Mr. Macdonald?”

  He cleared his throat. “Last night I was thinking about my brother, who was murdered about thirty years ago. The man who killed him was convicted and sentenced to life in prison, but got out after only twenty years.”

  “How does that mean you can’t be fair in this case?”

  “Life without the possibility of parole doesn’t mean what it says. Besides, the Bible says, ‘an eye for an eye’—in my opinion, that’s what convicted murderers deserve.”

  Keefe pursed his lips and contemplated. “Are you saying it would be impossible—not just difficult, but impossible —for you to judge this case impartially, based on the evidence and the law?”

  “Well . . .”

  “That if I instructed you on the law, you would defy my instructions?”

  “Well . . .”

  “You would intentionally dishonor your solemn oath?”

  “I could probably be fair.”

  “Thank you, Mr. Macdonald, I knew you could.”

  Griffith stood. “I move to dismiss Juror Seven for cause.”

  “I’m satisfied Mr. Macdonald can be fair. There’s no cause for dismissal.”

  Griffith objected. “A juror whose views would prevent or substantially impair the performance of his duties . . .”

  Keefe flipped his hand. “I know the law.”

  “Judge . . .”

  “I’ve made my ruling. I’m not going to let you stack the deck by excluding honest and impartial jurors, Mr. Griffith. Now sit down.”

  When Griffith sat, Kathryn whispered, “I thought we neutralized Keefe with your threat to call Fields.”

  “I thought so, too. He’s more biased against you now than before I brought the motion.”

  “This isn’t good. Macdonald sounds like he wants to be the one who sticks the needle in my arm. Use a peremptory challenge.”

  Griffith shook his head. “Can’t, we’re all out of peremptories.”

  Keefe turned to the jury box. “Juror Number Three, what is your name?”

  “Bobbie Alderson.”

  “What’s your problem?”

  “I thought about it again last night. I guess I really don’t believe in the death penalty.”

  “What does that mean?”

  Alderson locked eyes with Keefe. “It means that since filling out my questionnaire, and looking at the defendant sitting there, there’s no way I could vote for death.”

  “It would be impossible for you to judge this case impartially, based on the evidence?”

  “That’s not what I’m saying.”

  “If I instructed you about the law, you would refuse to obey me?”

  “I might, with the death penalty at stake.”

  “The Court dismisses Juror Three for cause. Bailiff, seat an alternate in Ms. Alderson’s place.”

  Once the alternate assumed the seat in the jury box, Keefe leaned forward, interlaced his fingers, and sat silently until every juror’s eyes were on him.

  “Ladies and gentlemen, you just witnessed the worst kind of dishonesty imaginable—a juror who solemnly swore to be fair, then, when faced with reality, reneged.”

  Keefe scowled. “If it were up to me, lying on a juror questionnaire would be punishable by jail. If there are other liars among you who swore on your questionnaires to be fair and impartial, but now intend to break that vow, speak up.”

  No one moved.

  “Very well, then.”

  Keefe leaned back in his chair and smiled toward the jury box. “None of you is so predisposed for or against the death penalty to be precluded fromweighing the possibility of that punishment. If that’s right, raise your hands.”

  Every juror’s hand went up.

  Kathryn leaned close to Griffith. “Sounds like they’re voting about where to go for pizza. We should’ve taken him on when he decided to voir dire the jury himself.”

  “Awrit to the appellate court’s a waste of time. It’s his prerogative under the law.”

  “He should have voir dired each juror individually.”

  “Even if he did, and some gave equivocal answers to death-penalty questions, his determination about their state of mind is binding. By now they’re too intimidated to give any answer except what he wants, anyway.”

  Keefe looked at the defense table. “The Court is satisfied with this jury. Court is adjourned until onethirty this afternoon, when we will hear opening statements.”

  Kathryn looked at her lawyer. “The bastard empaneled a hanging jury.”

  CHAPTER

  * * *

  41

  KEEFE WAITED until Kathryn and Griffith were seated at the defense table, then admitted the spectators and seated the jury.

  He turned to the prosecution table. “Proceed with your opening statement.”

  “The prosecution waives opening statement.”

  “That’s highly unusual, Mr. McCaskill.”

  “The evidence will speak for itself, Your Honor.”

  “Very well.” Keefe turned to the defense table. “Mr. Griffith?”

  Caught off guard, Roger Griffith walked slowly to the podium.

  “Kathryn Mackay did not murder Robert Simmons,” he whispered so softly that the jurors strained to hear.

  He paused. “So, you’re asking yourselves, ‘If she didn’t kill him, why is she on trial?’ ”

  In a loud, confident voice, he answered himself: “Kathryn Mackay is on trial because this man”—he turned and pointed at McCaskill—“wants her job very badly, and to make sure he gets it for keeps, he’s willing to kill her for it—and he wants you to do his dirty work for him by sentencing her to death.

  “Don’t let him get away with it.

  “In eleven states,” Griffith continued, “they considered it humane to electrocute people, until people learned that prison guards stood by with fire extinguishers in case the condemned person’s burning flesh set the room ablaze.

  “These days, we’re led to believe it’s humane to kill people by lethal injection. Don’t believe it. All executions are gruesome.

  “If Kathryn is convicted, Judge Keefe will set her execution date, and she’ll be driven to San Quentin, where she’ll be isolated from all human beings except the guards who will bring her food three times a day.

  “Twenty-four hours before Kathryn’s execution, guards will strip-search her, probe her body cavities, scan her with a metal detector, and give her clean clothes, move her to a death-watch cell a few feet down the hall, and the warden will ask what she wants to eat for her last meal.”

  The courtroom was silent except for an occasional cough, shuffling feet, and the whir of camera motors.

  “Five minutes before Kathryn is executed, guards without name tags, and wearing face masks so no one knows who they are, will escort her to a preparation room beside the death chamber, where they will start two intravenous sterile saline IVs. As soonas the saline’s flowing, they’ll cover Kathryn with a sheet and roll her into the death chamber.

  “Kathryn will be fully conscious. The warden will ask Kathryn if she has any last words.

  “The saline lines will be shut off and sodium thiopental injected into Kathryn’s veins, rendering her unconscious. Next, pancuronium bromide will be shot into Kathryn’s arms to disable the nerves that control her body’s voluntary muscles—her face, hands, legs, and lungs, causing her to stop breathing, but she won’t be dead because her heart is an involuntary muscle that isn’t affected by pancuronium bromide.

  “Let’s hope they’re right about the sodium thiopental rendering her unconscious because if they’re wrong—and medical evidence suggests they are —she’ll know her lungs have stopped working and there’s nothing she can do about it.

  “Finally, potassium chloride will be injected into Kathryn’s veins to interrupt electrical impulses from the brain to the heart. She’ll suffer fatal cardiac arrest.

  “When it’s
all over, society will be safe—protected from Kathryn Mackay—all five feet two, one hundred ten pounds of her, because she’ll be gone.”

  He paused for several seconds. “Forever.

  “After the prison doctor declares Kathryn dead, they’ll wheel her body into a holding room, where her twelve-year-old daughter, Emma, can claim it.

  “That’s a hell of a harsh punishment for an innocent woman. And mark my words, by the end of this trial you will know in your hearts, and you will know in your minds, and you will know in your conscience that Kathryn Mackay is innocent.”

  CHAPTER

  * * *

  42

  “PLEASE STATE YOUR NAME, and spell your last name for the court reporter.”

  “Mary Elizabeth Skinner, S-K-I-N-N-E-R.” The first prosecution witness against Kathryn Mackay was in her midforties, tall and thin, pretty, with long glossy black hair tucked into a tight bun, bright blue eyes, and wore the sedate blue business suit that, for her, was almost a uniform. As usual, she wore very little makeup. Accustomed to asking rather than answering questions in Superior Court, she was visibly nervous.

  “What is your occupation?” McCaskill asked.

  “I’m Santa Rita County Chief Deputy District Attorney for Operations.”

  “How long have you been so employed?”

  “About two and a half years. I was a staff attorney for twelve years before that.”

  “Then, you knew Kathryn Mackay before she became District Attorney?”

  “Yes, she and I started in the DA’s office at about the same time.”

  “How would you characterize your relationship with the defendant?”

  “We were friends.”

  “Close friends?”

  “As close as either of us had.”

  “Did the defendant aspire to be more than just an assistant DA for the rest of her career?”

  “Objection.” Griffith stood and leaned on the table with his palms. “The witness can’t testify as to my client’s thoughts.”

  “Sustained. Rephrase your question, Mr. McCaskill,” Keefe directed.

  “You and the defendant confided in each other?”

  “Yes.”

  “Did she tell you she wanted to be the District Attorney someday?”

  “Oh, yes.”

  “Did she say she was afraid she might never be DA because her boss, District Attorney Harold Benton, was so young?”

  Skinner looked at the wall above the jurors’ heads. “Yes.”

  “What about after the defendant became DA and made you her Chief Deputy?”

  “We remained close friends, but worked more closely together than before, of course.”

  “So, you and the defendant still discussed personal matters, and she also consulted with you professionally?”

  “Yes.”

  McCaskill stroked his chin, pretending to contemplate his next question. “Would it be fair to say that you knew the defendant better than anyone in the DA’s office?”

  “Objection,” Griffith said. “The witness can’t testify about how well someone else knew my client.”

  “I withdraw the question.” McCaskill smiled at the jury, certain he had established exactly what Griffith said he shouldn’t.

  Then he changed directions. “Please tell the jury what happened two years ago on September first.”

  Skinner swallowed. “That was the Monday morning District Attorney Benton died of an apparent heart attack while he was having coffee with Doctor Robert Simmons.”

  “It was District Attorney Benton’s sudden death that resulted in the defendant’s appointment to District Attorney?”

  “Yes.”

  “What was District Attorney Benton’s relationship with Doctor Simmons?”

  “They were friends. I saw them together frequently in the DA’s office. They went to lunch together regularly, too.”

  “What did you mean a moment ago when you said District Attorney Benton died of an ‘apparent’ heart attack?”

  “It appeared to be a heart attack at first, but bloodtoxicology tests later determined that he died from a massive digitalis overdose.”

  “Really! Did he accidentally overdose himself, or deliberately commit suicide?”

  “There was no evidence of either.”

  “No, of course not. Was anyone ever charged with his murder?”

  “Yes. Kathryn eventually concluded that Doctor Simmons intentionally administered a fatal overdose of digitalis to District Attorney Benton.”

  “You mean the defendant, in her official capacity as District Attorney, concluded that Doctor Simmons murdered District Attorney Benton?”

  “Yes.”

  “Did anyone see Doctor Simmons murder District Attorney Benton?”

  “There were no eyewitnesses, if that’s what you mean.”

  “That’s what I meant. Did Doctor Simmons confess to murdering District Attorney Benton?”

  “No.”

  “Then we don’t know for sure who murdered District Attorney Benton by administering a massive digitalis overdose, do we?”

  Griffith objected. “Calls for speculation by the witness.”

  “Overruled,” Keefe shot back. “You may answer, Ms. Skinner.”

  “No, we don’t know for sure who murdered him.”

  “It’s possible, is it not, that anyone with access to the DA’s inner offices, with whom District Attorney Benton knew well enough to share early-morningcoffee, such as a high-level trusted assistant DA, could have administered a massive digitalis overdose?”

  Griffith rose. “Your Honor, I object! The question calls for the witness to speculate on a matter about which she has no knowledge.”

  “Overruled, Mr. Griffith. I’m going to allow the prosecution to pursue this line of questioning.”

  He turned to the witness stand. “You may answer the question, Ms. Skinner.”

  “Yes, that’s possible.”

  “Like the defendant, for example.”

  Skinner closed her eyes. “I suppose.”

  “And we’ll never know if Doctor Simmons murdered his friend Hal Benton by slipping him a fatal overdose of digitalis, because Doctor Simmons has also been murdered by someone who slipped him a massive digitalis overdose, right?”

  “Objection.”

  “Overruled. Answer the question, Ms. Skinner.”

  “That’s right,” Skinner responded.

  “Okay. A few questions back, you said the defendant ‘eventually’ charged Doctor Simmons with the murder. How long after the murder of District Attorney Benton were charges filed?”

  “About a month.”

  “That long!”

  Kathryn leaned toward Griffith and placed her lips close to his ear so no one would overhear. “McCaskill hasn’t charged a murder in less than six months in his whole career.”

  Griffith patted her hand, but didn’t reply.

  “Between the time District Attorney Benton wasmurdered and when the defendant filed charges against Doctor Simmons, do you have personal knowledge of whether or not the defendant became involved in a romantic relationship with Doctor Simmons?”

  Skinner drew in a deep breath and shifted in the chair. “Yes, they were having an affair. Kathryn told me she was seeing him, and that they went to Victoria, British Columbia, together for a weekend.”

  “Do you know how long after District Attorney Benton was murdered that the defendant went away with Doctor Simmons?”

  “It was the next weekend.”

  “Four days after her boss was murdered!”

  “Yes.”

  “How can you be so sure today it was that soon?”

  “I remember thinking that it was unusual for Kathryn to be so—spontaneous.”

  “Did you ever ask the defendant about her strange behavior?”

  “No, I figured if she wanted to talk to me about it, she would.”

  “And, did she?”

  “No.”

  “All right. Now, Ms. Skinner,
let’s fast-forward from the day District Attorney Benton was murdered to just before charges were filed against Doctor Simmons by the defendant. To your knowledge, were she and Doctor Simmons still—let me put this as delicately as possible—romantically involved at that time?”

  “No, she told me she had stopped seeing him acouple of weeks after their trip to Victoria because she was conducting a criminal investigation of one of his clinics.”

  “I see. She didn’t tell you that Doctor Simmons had broken off the relationship?”

  “No, she said she had broken it off because she didn’t want it to appear there was a conflict of interest while the investigation was under way.”

  “But she didn’t think it looked funny that she had become sexually involved with the man whom only two weeks later she accused of killing her boss?”

  “Your Honor, I object, argumentative!” Griffith shouted.

  “Sustained.” Keefe checked the clock. “It’s almost time for the lunch break. I assume you have more questions for this witness, Mr. McCaskill?”

  “Oh, indeed I do, Your Honor.”

  “Then we’ll recess and reconvene at one-thirty this afternoon.”

  Griffith turned to his client. “Should I order sandwiches?”

  “I’m not hungry.”

  “You need to eat.”

  “McCaskill just accused me of killing Benton and Simmons. And my own Chief Deputy, not to mention my so-called friend, helped him do it.”

  “You expected kindergarten kickball rules? How many times have you or one of your prosecutors done the same thing to one of my clients?”

  “Whose side are you on?”

  “Yours. This is just round one. We get our chance in round two.”

  CHAPTER

  * * *

  43

  “MS. SKINNER, ” McCaskill said, “before we broke for lunch you testified that the defendant told you she stopped seeing Doctor Simmons because she was conducting a criminal investigation of one of his clinics, is that right?”

  “Yes.”

  “Please describe the nature of that investigation.”