Thirteen_The serial killer isn’t on trial. He’s on the jury

by Steve Cavanagh

  In a criminal trial, forensic evidence is God.

  But I’m a defense attorney. I got the devil on my side. And he doesn’t play fair.

  I did my best to look confident as I strode toward the witness stand. I could feel the eyes of the jurors on me. From the corner of my eye, I saw Alec Wynn fold his arms. He was done. Didn’t matter what I asked, he’d made up his mind.

  “Officer Kinney, before you gave your testimony, you took an oath to tell the truth. Would you please pick up the Bible that’s sitting next to you for a moment,” I said.

  I heard the squeak and bark from Pryor’s chair as he pushed it back across the tiled floor. I imagined him folding his arms with that smug grin on his face. He knew the only line of attack on Kinney was his credibility. If I proved him to be a liar, I had a shot. Pryor would’ve prepared him for this.

  Stick to the science – the results don’t lie.

  He took the bible in his right hand, and glanced over my shoulder at Pryor. Yep, Kinney had been prepped for this line of attack. He was ready. I knew he would be. I’d planned for it. I didn’t ask him if he was being dishonest, I didn’t remind him of his oath, or accuse him of lying. Instead, I prayed Kinney would tell the truth.

  “Officer, please put the bible down,” I said.

  Kinney’s eyebrows knotted together. Pryor’s chair growled again, and I knew he was sitting up, pulling his chair close to the table so he could take notes. Pryor hadn’t planned for this.

  I picked up the bible, held it in front of my chest with both hands and turned toward the jury. They needed to see this.

  “Officer, a number witnesses today have taken the oath on this bible. You held this bible when you gave your oath. Now I have it. Tell me, Officer, if you were to test this bible right now you’d probably find fingerprints and DNA from all of today’s witnesses, correct?”

  “Correct. There would be some fingerprints, maybe partials from the earlier witnesses if our prints hadn’t wiped them out. We would get DNA from all of them. And you, Mr. Flynn,” said Kinney.

  “I agree. And DNA from the clerk, yesterday’s witnesses, and anyone who’d touched this bible recently. There would be multiple DNA samples obtained from this book, correct?”

  “Yes.”

  Kinney got an inkling of where I was headed. He was beginning to clam up, keeping his answers short and snappy.

  “If you tested this bible and found only my DNA, then that would be unusual, wouldn’t it?” I asked.

  A handful of the jurors suddenly looked very interested. Rita Veste, the child psychologist, Betsy Muller the weekend karate instructor, Bradley Summers the sweet old-timer, and Terry Andrews the chef, they all concentrated closely on me and Kinney. They were listening. Alec Wynn kept his arms folded. He remained convinced by forensics. I had a handful of questions that might change his mind.

  Kinney thought hard about his answer. Eventually he said, “Perhaps.”

  I went on full attack. There was no holding back, now.

  “One of the reasons you may not find any other DNA on the bible, apart from mine, would be if someone cleaned the cover, isn’t that right?”

  “Yes.”

  I put the bible back down on the witness stand and focused on Kinney. It was time to fight.

  “Officer, a dollar bill that’s been in circulation in the United States for some years is likely to have hundreds, if not thousands of individual fingerprints and DNA profiles on it. Bank tellers, store clerks, ordinary citizens, basically anyone in the area who handles cash. Would you agree?”

  “It’s certainly possible, yes,” he said.

  “Come on, it’s more probable than possible, isn’t it?”

  “Probably, then,” he said, with just an ounce of irritation seeping into each syllable.

  “The dollar bill in Carl Tozer’s mouth had his DNA on it, the defendant’s DNA and another profile, correct?”

  “Yes.”

  “That third profile matched a man called Richard Pena who was executed in another State before this bill was even printed, correct?”

  He’d been waiting for this.

  “I’m satisfied that profile was an anomaly. It wasn’t as strong a profile as the defendant’s, and could have come from a close blood relative of Mr. Pena’s. I checked our lab records, and as far as I can see Pena’s DNA never left the state. It’s never been in our lab so there’s no possible means of contamination. The DNA must be a close blood relative.”

  “That’s possible. Did you know Richard Pena was convicted of multiple murder, and each of his victims was found with a one-dollar bill tucked into the strap of her bra, with his DNA on one of the bills?”

  I heard the jury murmuring, and slowly that noise spread out amongst the crowd. For now, I only wanted to plant that seed. I’d grow the tree later.

  “No, I was not aware of that,” said Kinney.

  “Getting back to this case. We still don’t know why there was no other DNA trace evidence on the bill found in Carl Tozer’s mouth. We know Mr. Pena didn’t handle it, we know it’s been in circulation for years. The truth is someone scrubbed the DNA from the bill before the defendant touched it. That’s the only explanation, isn’t it?”

  “I don’t accept that.”

  “And the reason it was scrubbed was so that the defendant’s DNA would be clear and recoverable from that dollar. In other words, someone placed it there because they wanted to frame Mr. Solomon for murder.”

  Kinney shook his head.

  “That doesn’t explain how the defendant’s fingerprint got on the bill,” said Kinney, smugly.

  “I can help you with that. It’s possible someone got him to touch the bill without him realizing the significance of that action. Then took it back from him and put it in Carl Tozer’s mouth.”

  Kinney shook his head, scoffed at the idea. “That’s never going to happen.”

  I turned to the jury, said, “Officer, please check your inside jacket pocket on the left side.”

  He blew a puff of air from his nose in surprise. Checked his pocket. Took a one-dollar bill from it and held it up with a look of total horror on his face.

  “I didn’t have a dollar in my jacket pocket this morning,” he said.

  “Of course you didn’t, I put it there. Now your DNA is on it.” I took a napkin from my pocket, reached out and plucked the bill from his hand with the napkin.

  “It’s easier than you thought, isn’t it?” I said.

  I walked back to my seat with Pryor’s voice ringing in my ears. He was complaining to Harry, who sustained Pryor’s objection.

  Didn’t matter. The jury had seen it. Some of them would be thinking about it and questioning the significance of the DNA evidence. If enough of them weren’t sure, then we had a shot.

  CHAPTER FIFTY-FIVE

  Flynn took his seat and Todd Kinney stepped down from the witness stand. The judge called for a lunch break and Kane sure needed one. He thought his face would crack if he had to hold it in check for much longer. He filed out of the courtroom along with his fellow jurors. His jaw ached from clenching his teeth and he could taste blood in his mouth. Not much, just a sense of it. He’d swiped at his lips, and saw a faint trace of red. In his rage, he must have bitten the inside of his mouth. Of course, he hadn’t felt it.

  Kane wasn’t given to hate in his most passionate moments. When he wielded a knife, or felt a throat closing beneath his fingers, the fear and the panic in his victim’s faces only gave him pleasure. Hate was not a facet of his work.

  It was all for pleasure.

  Listening to Flynn, Kane began to feel that old familiar emotion. He’d hated many things: the lies that the media spread, the idea that people could better themselves, and most of all those who got lucky and were able to change their lives. Kane hadn’t been so lucky. Neither had his mother. Hate was a part of it. Revenge, maybe. Mostly, he felt pity. Pity for the poor souls who thought money, or family, or opportunity, or even love could change anything. It wa
s all a lie. To Kane, this was the great American lie.

  Kane knew the truth. There was no dream. There was no change. There was only pain. He’d never felt its sting, but he knew it all the same. He’d seen it in too many faces.

  The jurors sat around the long table in the jury room and the court officer came in with bags filled with sandwiches and drinks. Kane popped the tab on a Coke, watched one of the court officers counting out change and putting it with a receipt. He’d gone out and bought the jurors their lunch with cash from the court clerk’s office. Kane had seen it done before. The officer swore, and said, “I’ll be damned if I’m paying for the tip.” The officer made a note on the receipt, folded a one-dollar bill and change and wrapped it in the receipt.

  Kane’s mind drifted back to a scene over a year ago. Laying down on the cold pavement, wearing filthy rags and a hat that he’d found in a dumpster. His homeless routine. It was effective because few New Yorkers took notice of the homeless. Walking past a person with dirt on their face, and no food, and no money, was part of everyday life in New York. Some spared their change. Some didn’t. And it was the perfect way to watch a mark. Unlike the surveillance of the courthouse mail system, this stint as a nameless, homeless man had only taken a few days. And it was in a better neighborhood. Kane took up a spot on the corner of West 88th Street. Five hundred yards from Robert Solomon’s home. On the third day, Solomon had walked past, wearing his iPod and headphones. Kane had tugged at his leg as he walked past.

  “Spare a dollar, buddy?” said Kane.

  Robert Solomon dove deep into his pocket, peeled off two one-dollar bills and handed them to Kane. Before he accepted them, he memorized the position of Solomon’s fingers on the bills. The top bill would produce a nice juicy print on George Washington’s face. Kane had raised his empty coffee cup, and the bills fell right in. He would clean the bills later with antibacterial spray, but careful to retain Solomon’s print.

  So simple. So easy. As Solomon walked away, Kane had put the lid back on his cup, stood and left.

  That was the beginning of this particular job.

  Kane took a bite of his sandwich, and watched the rest of the jury do the same. He checked his watch.

  It would be soon, he was sure of it. He couldn’t have accomplished all of this without help. It paid to have a friend, another dark one whom he’d allowed to drift to his cause. And he’d proved his worth.

  Kane could not have come so far without his man on the inside.

  CHAPTER FIFTY-SIX

  “They’re going to find me guilty, aren’t they?” said Bobby.

  “We’re not beaten yet, Bobby. We still have a few surprises left,” I said.

  “You’re innocent, Bobby. The jury will see that,” said Holten.

  Bobby sat in the consultation room with his food untouched in front of him. Holten had gone out and brought back some sandwiches. I couldn’t eat either. Kinney had been a blow to Bobby’s case. He wouldn’t survive another one. Pryor had two witnesses left. The video tech who’d examined the motion-sensor security camera at Bobby’s house, and the reporter Paul Benettio. Thanks to Harper, I had a good point against the video tech. The reporter didn’t say much that worried me. He said Bobby and Ariella weren’t getting along.

  They were married. That doesn’t mean he killed her.

  I’d spoken to the agent that Harper had brought with her. The guy in the gray suit. He was a digital communications specialist working for the FBI and he was as sharp as that suit. Young, but damn qualified. Harper had introduced him as Angel Torres. He talked me through his findings from the visit to Bobby’s house today. It wasn’t a wrecking ball for the prosecution case, but it damn sure helped.

  “And did the cop at the crime scene see you guys working?” I asked.

  “No,” said Harper. “He was a Knicks fan. So I kept him talking in the living room. He didn’t much care what we did. He only cares about point-score average. Torres flashed his federal ID and the cop relaxed.”

  “It didn’t take long, anyway. We were in and out in five minutes,” said Torres.

  “Good,” I said.

  Holten, Torres and Harper stood as they ate their sandwiches. Instead I popped some more painkillers and chugged them down with a soda.

  Delaney came into the consultation room. She’d brought a bunch of files.

  “How’s it going with the jury?” said Delaney.

  Bobby stared at me, waiting for a more positive answer.

  “The DNA hurt us, but we knew it would. Maybe I was able to lessen the blow. We’ll have to wait and see. Hang in there, Bobby. We’re not done yet,” I said.

  “Have you told Eddie about the jurors, yet?” said Delaney.

  “I was just about to,” said Harper. “After Torres and I left Bobby’s house, we went back to the federal building. I went through the stack of newspaper articles the agents had retrieved from the local papers’ archives. I found two stories. The first is a little more interesting. Seems as though this lady was gunned down during an armed robbery. She was on the jury in Pena’s trial.”

  She showed me the article on her phone.

  The lady was in her early sixties, Roseanne Waughbasch. She worked in a second-hand store in Chapel Hill, North Carolina. Some hero had opened both barrels of a shotgun into her face. Nothing much was taken from the store, but the armed robbers took the contents of the cash register and the donation jar. The store owner believed they’d gotten away with close to a hundred dollars. The article focused on the loss of life, and the violence, over what? A hundred bucks and change.

  “Can you tell what’s wrong? Look at the picture,” said Harper.

  There was a photo of the street with the store closed. Crime scene tape across the door.

  And I knew exactly what was wrong. Right next to the second-hand store was a seven-eleven. The neighbor on the other side was a liquor store. Beyond that, a small-town, local bank.

  “This wasn’t a robbery. It was a hit,” I said.

  “That’s what I thought. Second-hand stores don’t carry a lot of cash. They got nothing worth stealing and not much worth buying. If I was going to rob a store in that street I’d go for the seven-eleven. The liquor store owner is likely to be armed, the bank would have heavy security but the seven-eleven would have very little. Maybe a baseball bat. No one who works as a clerk in a seven-eleven is likely to be a hero, either. Who would take that risk for that little money? And they carry plenty of cash. Much more than a second-hand store.”

  “What was the other story?” I said.

  “I didn’t bring the article with me. It was an ad in the Wilmington Standard. After Pete Timson was convicted of the Derek Haas murder, one of the jurors went missing. He didn’t have family, but he had a job. He never showed up for work after the trial and his employer got worried about him. He contacted the police and even posted an ad. No one ever saw that guy after he walked out of the jury room.”

  The aching in my ribs started to subside. It was replaced by a hollow feeling in my chest, and a burning sensation in my throat. Delaney’s theory about Dollar Bill had been right all along. Only we’d just seen the half of it. I slumped down a little on my chair, closed my eyes and rubbed at the lump on the back of my head. I needed a jolt of pain.

  For the first time during this trial I felt afraid. Dollar Bill was far more sophisticated than we’d ever imagined.

  “We’ve been looking in the wrong place,” I said. “Everyone he put up for his crimes got convicted. Every single one. A trial can always go the other way. Even with forensics. How did he make sure he got his conviction? Planting the evidence wasn’t enough for this guy. Dollar Bill wasn’t watching these trials from the safety of the crowd. He was on the jury. It’s like Harry said – we’ve got a rogue juror.”

  “What?” said Harper and Delaney, simultaneously.

  Bobby and Holten exchanged open-mouthed looks.

  “He somehow worked his way onto the jury. The juror in the Derek Haas murder �
�� I think he didn’t show up to work after the trial because he was already dead. Probably had been for a long time. At least since the week before the trial. He took his place. He ran Brenda Kowolski over in the street and, somehow, he strangled Manuel Ortega and shot the elderly juror in Pena’s case. He got rid of them because they weren’t going to vote his way.”

  “He kills the juror before jury selection and steals their identity. It’s the only way it would work. That’s why the juror disappeared after the trial,” said Delaney, coldly. The realization spreading like a cold wind across her face.

  “How did he know who was in the jury pool?” said Harper.

  “He could’ve hacked the court server? Or the lawyer’s offices? Or the DA’s or gotten into the mail room somehow?” said Holten.

  “This is crazy,” said Harper.

  “No, this is Bill,” said Delaney “I already told you both. This one is highly intelligent. Maybe the smartest we’ve ever faced. We need to get the list of jurors from every one of those cases. We can check their IDs on the DMV, passport control, every damn database we’ve got. He would only be able to alter his appearance so much. We start with the juror who went missing after the Haas trial. We’re going to get this guy. I’ll testify, Eddie. I’ll do everything necessary,” said Delaney.

  We talked strategy. This time we would watch the jury. But there was risk.

  “Bobby, if this goes well we should be able to get a mistrial. That’s what we’re aiming for here. It means everything gets put on hold. Delaney can watch the jurors, track them until we can figure out which one is the killer. We must stop this trial. I can’t let this get into the hands of the jury. Not if the killer is sitting there. But you have to know that I might not succeed. We have a theory. We don’t have proof. If the judge refuses to grant a mistrial then there’s the chance that Pryor could turn this around on us.”