Eddie Flynn 02-The Plea

by Steve Cavanagh

  No backing out now. This was it. What happened here would save or condemn David. It would save or condemn Christine. It would shape the course of my life. The prosecution had half a dozen witnesses – all of them ready to give evidence that put David Child up for a slam-dunk conviction. It’s much easier to tear a witness apart when they’re lying. Far as I could tell, with the possible exception of two witness, each of the remaining prosecution witnesses was telling the truth – and that truth added up to David’s guilt. I had to swing the truth away from each of them so I could create my own truth and let Knox see the bigger picture.

  Trouble was, at that time I didn’t know the bigger picture. I couldn’t yet see the truth of this whole thing.

  I told myself that it would come. Give it time.

  Dr Henry Porter was the first big job. The GSR expert. I saw him sitting four rows behind Zader. A man in his fifties, smartly dressed in gray dress pants, white shirt, and blue blazer. All set off with a pale yellow tie. For some reason, like most of his fellow contemporary firearms experts, he sported a graying mustache. I wondered if they handed out the mustache with their forensic expert certification.

  He saw me staring and, with forefinger and thumb, adjusted his glasses, then turned his attention to Zader.

  The DA stood, ready to give his opening to Judge Knox, who was arranging his own case file in readiness for the evidence.

  I wondered then if Zader or Porter had any inclination of what I had in store for them. I hoped not. The DA checked the gallery, making sure his first witness was ready. They exchanged a thumbs-up. I gave myself evens that in an hour Zader would be sitting with his thumb up his ass, wondering where it all went wrong. There was an equal chance that I might be sitting wondering how I’d messed up so bad. It was too close to call.

  Judge Knox signaled to Zader that he was ready. The DA took his time. Sipped from a glass of water. A quick scan of the gallery to make sure all was silent, all eyes were on him – that his audience was ready.

  The TV cameras started rolling. This case would be on a live feed on damn near every news channel in the country. Zader’s last words echoed in my mind.

  Public and messy.

  Damn, I wished I’d shaved.

  CHAPTER FORTY-THREE

  ‘Your Honor, Michael Zader, District Attorney for the people. Second chair is Ms Lopez. Mr Flynn and Mr Sinton appear for the defendant.’

  He moved around the prosecution table, taking center stage in the well of the court. I imagined he’d already worked out which spot in the courtroom would give the cameras their best angle.

  ‘I’ll keep my opening brief, Your Honor,’ said Zader, buttoning his jacket.

  He knew Judge Knox didn’t care for long-winded opening statements. He liked to get straight to the evidence. The fact that Zader had signposted this meant that Judge Knox would give him a little time for the cameras, without interruption. One of the first things you learn as an attorney is how important it is to find out the preferences of every judge. Some like long speeches, some like strict legal argument with little reference to the facts, and some like it all to be over and done with in the least complicated and quickest way possible – regardless of the fairness of the proceedings. Judge Knox fell into the latter category. The DA had done his homework.

  ‘We shall present a number of witnesses to the court that prove the defendant was the only other person present in his apartment with the victim, Clara Reece, when she was shot and killed. We have camera footage that clearly shows the defendant and the victim entering his apartment. Minutes later, Mr Gershbaum, a neighbor of the defendant, heard the first shots, went to the balcony to investigate, and witnessed a shot coming through the window of the defendant’s apartment. A shot that was fired from within the apartment. The security footage then shows the defendant leaving the apartment. Richard Forest, the security guard whom Mr Gershbaum called, will say that he attended with other guards from the building and discovered the body of Clara Reece in the defendant’s empty apartment. The evidence will show that in those important and frantic minutes between Mr Gershbaum’s call to security and the discovery of the body in the defendant’s apartment, security camera footage clearly shows the defendant as the only person who leaves that apartment. It is simple – two people enter an empty apartment and only one leaves alive. We know nobody else was in there, and nobody else came in. David Child leaves his home, and within minutes his girlfriend’s dead body is found. In short, he is the only person who could’ve killed her.’

  He paused, nodded to himself as the judge caught up with his notes.

  ‘The medical examiner’s report speaks to the manner of the victim’s murder. This, Your Honor, is the most shocking part of this case.’

  Another pause, building the tension in the courtroom. This guy was very good.

  ‘The victim, Clara Reece, was shot twelve times in the back of the head with a small, highly concealable pistol – a Ruger. Twelve times. She was plainly dead after the first head shot, but her killer, the defendant, emptied almost an entire magazine into the back of her skull, ejected the empty magazine, reloaded, cocked the weapon, and fired another seven shots into her head.

  ‘The overkill involved in this murder clearly marks it out as a crime committed in a blind rage. This is not the work of a hired killer. It is an intensely violent, vengeful murder – one that we say was plainly carried out by a scorned and deeply troubled lover. By the victim’s lover – the defendant, David Child.

  ‘Ultimately, the violence with which he perpetrated this heinous crime, combined with a stroke of bad luck, inevitably led to the discovery of the defendant as the murderer. Within minutes of the defendant leaving his apartment building, he was involved in a road traffic collision with another vehicle, not half a mile away from his apartment. The driver of that other vehicle was a Mr John Woodrow. Mr Woodrow was several times over the legal limit for alcohol, and he accepts causing the RTC, a head-on collision with the defendant’s sports car.

  ‘When Mr Woodrow approached the defendant’s car in the aftermath of the accident, he noticed a gun in the vehicle, in plain sight. He called for police assistance, and Officer Phil Jones attended the scene. It was Officer Jones who found a Ruger pistol in the defendant’s vehicle.

  ‘This weapon was independently tested by Dr Porter, our forensic gunshot residue expert. When the defendant was swabbed for gunshot residue, it was discovered and confirmed by Dr Porter’s independent scientific analysis that the defendant was literally covered in GSR. In the interview with the investigating officer, Detective Morgan, the defendant denied ever owning a gun, touching a gun, firing a gun, or even being in the same room when a gun was discharged. Given the scientific evidence, it’s clear that the defendant was lying.’

  To emphasize the obvious disparity with the incontrovertible forensic evidence, Zader raised his hands, closed his eyes, and made a face as if to say, ‘I know, this guy’s lying his ass off.’

  ‘So, to recap, not only is there probable cause, but the accused is the only man who could’ve committed this crime. Secondly, given the forensic evidence, the accused lied to the police. That’s right, we’re saying he lied, because, quite frankly – forensics can’t lie.

  ‘That is a brief overview of the prosecution evidence,’ he said.

  He looked at the cameras, something he’s not supposed to do. I guessed he couldn’t help it.

  ‘Mr Flynn, do you have a short opening?’

  My opinion of Judge Knox softened. He knew Zader was playing for the cameras, and he wanted to at least let me have a chance at a quick comeback.

  ‘No, thank you, Your Honor. Let’s get this started.’

  ‘Very good. Your first witness, Mr Zader?’

  ‘We’re calling Dr Henry Porter to the—’

  ‘Hang on. Isn’t he an expert witness? If he is, you don’t have to call him in a prelim. I can just read his report.’

  ‘In this case, Your Honor, we feel it would be of benefit to
everyone to hear from Dr Porter. He can outline his findings for the court, and I’m sure he’ll be able to answer any questions Mr Flynn may have.’

  For the cameras, again. The judge knew Zader was calling Porter so that the media could get ahold of this watertight evidence right away. A ten-minute shot of Judge Knox reading the report wouldn’t make for good TV.

  ‘If you must, then call him,’ said the judge.

  The witness was already on his feet and making his way toward the witness stand, his report under his right arm. As he passed me, I detected the smell of gun oil and cheap aftershave. He looked confident, unafraid. At this early stage of the proceedings, there’s simply not enough time for the defense to get their own expert to counter the prosecution witnesses’ findings. That’s what expert witnesses fear most – another expert with better credentials saying that they’re wrong. Without that, they have very little to fear. And Porter had a solid record as a witness – he’d never been successfully challenged before in any case.

  I told myself there was a first time for everything.

  Porter took the oath and sat down.

  ‘Dr Porter, can you briefly outline the nature of your expertise?’ said Zader.

  ‘Of course. I’m a trained ballistics and forensic firearm residue retrieval expert. I’ve previously been employed by the state’s own forensic laboratory, and I’ve been involved in thousands of evidential test situations. I’ve given evidence in two hundred and three trials.’

  He looked relaxed, at home. After all, being a professional witness was his job. And Porter was good, very good. I’d no doubt he’d mentioned the exact number of his court appearances so that he would immediately appear to be clear, precise, and experienced. At the same time, I had little doubt that he’d mentioned the number of cases he’d done to try to intimidate me; in all of those cases, he’d appeared as a prosecution witness, and every single one of them had resulted in a conviction.

  ‘Dr Porter, what is gunshot residue?’ said Zader.

  ‘When a shooter pulls the trigger on a loaded firearm, the firing pin is forced against the primer, which ignites the propellant within the cartridge, which then creates a huge amount of gas very quickly. This gas then fires the round from the barrel at roughly a thousand feet per second. The explosion within the primer and propellant releases gasses and fragments of material into the atmosphere, some of which are fused together. These fragments are combinations of minute particles from the pin, the propellant, the primer, and the bullet. All of this material then quickly settles in the environment in which it is created. So the residue of the gunshot will normally settle on the skin and clothing of the shooter.’

  ‘Doctor, did you carry out tests on samples taken from the defendant’s skin and clothing?’

  ‘I did. NYPD officers collected samples from the defendant’s hands, sweater, and face. I then tested these samples to see if they contained the common material that is found in gunshot residue.’

  ‘And what did you find?’

  ‘I found highly concentrated deposits of barium and antimony on all sample areas. Some of this material was fused together, mostly the barium. This combination of material is scientifically proven and commonly accepted to be gunshot residue.’

  ‘When you say, “highly concentrated deposits,” what does that mean?’ said Zader.

  ‘Well, if a shooter discharges a weapon once, I will be able to find material on his skin and or clothing that would be gunshot residue. If more than one shot is fired, there will be more than one explosion, so the volume and density of material found increases.’

  ‘In this instance, Dr Porter, what was your conclusion in relation to the high concentration of gunshot residue found on the defendant?’

  ‘Given the wide distribution and concentrated amounts of gunshot residue, I can conclude, with a considerable degree of certainty, that Mr Child was in very close proximity to a firearm that was discharged multiple times and he’d been exposed to this material within the last few hours before samples were taken.’

  ‘Your Honor, if you could just give me a moment to check my notes?’ said Zader.

  ‘Of course,’ said Knox.

  He returned to his legal pad, flicked through a couple of pages. Really he was just pausing for effect, letting that last answer seep into the mind of the judge – and the viewers at home.

  He straightened up, returned his attention to the witness.

  ‘Thank you, Your Honor. Now, Dr Porter, I have a note that the defendant, Child, told police that he had never fired a gun and he’d never even been in a room when a gun was fired. Given your findings, would you say that’s possible?’

  ‘No.’

  ‘It’s just that we’ve all heard of cases where trace evidence, like gunshot residue, can transfer from place to place, person to person. Is that possible in this case?’

  ‘It’s possible that GSR can be transferred. Particles of GSR can be transferred from a person’s clothes or skin to other areas. That is not what happened in this case. The sheer quantity of residue I found, in all samples, from the defendant’s hands, clothes, and face, rule out transference.’

  ‘And why is that?’

  ‘Because the defendant would’ve had to take a shower in gunshot residue. In my experience, it’s not possible for the sheer quantity and high concentration of GSR found on the defendant to have gotten there through secondary transfer. It couldn’t happen. The hard evidence in this case proves that he was in close proximity to a firearm that discharged multiple times.’

  Again, Zader paused, letting the answers soak into the cameras. He wouldn’t ask any further questions. Zader had slammed home his points and cut off the most likely avenue of attack. I whispered to David, ‘Switch on your cell phone; keep it on silent.’ As he did this, under the table so the judge wouldn’t see, I scribbled a note and handed it to David.

  He looked at me expectantly.

  ‘Don’t do it yet. Wait for my signal,’ I said.

  ‘Your witness,’ said Zader, almost as a challenge: Do your worst. I can take it.

  Porter didn’t look in the least bit concerned. As far as he knew, this was a routine test, a routine case, with routine results. He had enough experience to know all the usual defense attorney angles – all the old arguments. Normally the standard line of attack on this type of evidence was to attack the chain. Porter worked in a lab. He didn’t collect the evidence and he didn’t know which samples were genuine and which were not, which samples had been contaminated and which were accurately preserved. When the defense couldn’t argue with science, they argued that science was irrelevant as the expert was testing contaminated material.

  Porter folded his arms. He’d heard it all before, many times over. He was ready for anything.

  But not for this.

  CHAPTER FORTY-FOUR

  ‘Don’t go fishing with this guy,’ said Sinton. ‘He’s dangerous – wait until we get our expert. Save it for the trial.’

  For the first time, I saw Sinton nervous. Sweat on his upper lip, his pen trembling in his hand. All he wanted was to get the hell out of there and take David with him. The firm couldn’t kill him in the courthouse. If they wanted to take him out, they needed him away from the secure building and on the street, vulnerable.

  I ignored Gerry, stood, empty-handed, and took in Judge Knox. He looked pissed off. He was waiting for a long, boring argument between me and the witness that would lead nowhere.

  But I had a firm destination in mind.

  ‘Dr Porter, you began your evidence by stating that you’ve testified in just over two hundred cases, yes?’

  ‘Two hundred and four, counting this one.’

  ‘I’m grateful for the reminder. Out of those two hundred and four appearances, how many appearances were as an expert witness for the defense?’

  Any other so-called independent expert would’ve probably squirmed a little. Porter didn’t. He just casually let it drop.

  ‘None,’ he said.
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  ‘None?’

  ‘Correct.’

  ‘Sorry, maybe I don’t understand. It’s just that you stated, in your testimony, that you are an independent expert,’ I said.

  ‘I am. I can be retained by defense counsel or the prosecution. My duty is to provide my honest opinion to the court; it doesn’t matter which side signs the check for my fees.’

  He’d opened the door just a crack. Just enough to let me in.

  ‘So, in arriving at your honest, expert opinion, you have to ignore the name on the check and to base your opinion entirely on the evidence that you’ve found, correct?’

  ‘Correct.’

  ‘So, just by way of example, if you were asked by the prosecution to state an opinion that wasn’t based on fact, or your own evidential findings, what would you do?’

  ‘I doubt any prosecutor would ask a professional witness to do that, but just for the record, I would not make any formal statement of opinion without evidence to back it up.’

  ‘So your opinion flows from the facts and the evidence only?’

  ‘Of course.’

  ‘So you can’t base an opinion on speculation when the known facts tell you otherwise, right?’

  ‘Right,’ he said, sighing.

  I could hear Zader whispering to his DAs, telling them I was getting nowhere fast.

  I picked up Porter’s report, flicked to the back, which provided a breakdown of the particles and materials found in the samples taken from David’s face, hands, and clothes. This was the raw scientific data upon which Porter based his evidence.

  ‘Doctor, in your test results, you found a lot of different particles?’

  ‘Yes. As the explosion happens, the minute material released into the atmosphere by the gunshot will mix with other particles before it settles on the skin, so it sometimes picks up other debris, like dust particles.’

  ‘And the three main indicators of gunshot residue are particles of lead, barium, and antimony?’

  ‘Correct.’