Eddie Flynn 02-The Plea

by Steve Cavanagh

  ‘The barium and antimony particles tend to emanate from the ignition of the primer and propellant?’

  ‘Generally, yes.’

  ‘Lead particles tend to come from the bullet or full metal jacket itself?’

  ‘Yes.’

  ‘You found no traces of lead in your results?’

  ‘That’s not unheard of. Some manufacturers’ rounds are simply tougher and more resistant than others. The high concentrations of barium and antimony are scientifically well-recognized signatures of GSR.’

  ‘Apart from the high concentrations of barium and antimony, your results show a dense collection of nylon?’

  ‘Yes. It’s possible that the shooter was wearing gloves made from this material. The hot GSR material settling on gloves could be enough to burn through the nylon onto the skin,’ said Porter, his voice quieting as he reached the end of that statement. He didn’t feel solid on this, and I’d already guessed that when compiling his report, he’d been pushed by the prosecutor to explain why he’d found so much nylon and rubber in his samples. It gives the DA an easy argument when the defense points out that no fingerprints were found on the gun; Zader could simply fall back on Porter’s thoughts that the shooter may have worn gloves.

  I paused, feigned confusion, and looked at the judge. David handed me the Lizard’s gloves, which I’d stowed under the defense table. I put down Porter’s report and held them up.

  ‘I’m a little confused. These aren’t nylon gloves, but surely if the shooter had been wearing gloves, like these, which cover the whole hand, you wouldn’t have found so much GSR material on the sample taken from the hands?’ I said.

  ‘I take your point, but the material could’ve been released back into the air and then settled on the hands when the gloves were removed.’

  ‘Are you a liar, Dr Porter?’

  Judge Knox’s head lifted from his notes in order to make his concerned look register with the defense counsel. The look told me I was on thin ice and I had better be able to back this up.

  ‘I’m under oath, Mr Flynn,’ was Porter’s reply.

  ‘I know you are; it’s just that in your direct testimony you specifically ruled out the possibility of the material traveling onto the defendant’s clothes and hands by secondary transfer, correct?’

  He nodded at the judge, letting him know that everything was fine.

  ‘Well, I suppose strictly speaking, material falling onto the defendant’s hands when he takes off his gloves would be secondary transfer, but some might say it’s still primary, as the material is simply being moved around the original source.’

  ‘The lead detective in this investigation is Detective Morgan; are you calling him a liar, Dr Porter?’

  ‘Of course not.’

  ‘It’s just that Detective Morgan has viewed a series of private security cameras and street cameras that follow David Child, from the moment he leaves his apartment to the moment he is involved in the RTC. Detective Morgan does not mention in his statement anything about David Child dumping a pair of gloves. No gloves are found in his car, in his apartment, or on his person, and it’s obvious he didn’t dump them because it would’ve been seen on camera. So, if you’re saying that the shooter may have worn gloves, where did they go?’

  ‘I can’t answer that.’

  I held up Porter’s report.

  ‘In your test results, along with barium, antimony, and nylon, you also found fused rubber, leather, and plastic, correct?’

  ‘Yes.’

  ‘In fact, there was a high concentration of nylon, rubber, leather, and plastic in all samples from the defendant’s skin and clothes, correct?’

  ‘That is fair. Yes.’

  ‘Have you ever encountered similar results?’

  ‘No, I can’t say that I have, but each environment in which a weapon is discharged is different. One cannot always predict the material one will find.’

  ‘Given that you base your findings on the evidence, and considering that no gloves were found by police, where do you suppose all those nylon, rubber, leather, and plastic deposits came from?’

  ‘I’m afraid I can’t speculate.’

  ‘That’s because you have no evidence of where the defendant might have come into contact with this material?’

  He paused, considering this. His thin fingers ran over his chin. He was suspicious of the question.

  ‘That’s correct. I don’t have any evidence that could lead me to discern exactly where this material came from.’

  Porter had every right to be suspicious. Right then, his entire testimony rested on a knife edge.

  CHAPTER FORTY-FIVE

  ‘Dr Porter, please take a look at these photographs.’ I handed him stills from the traffic camera that shot the collision between David’s Bugatti and the Ford pickup.

  ‘Can you confirm if you’ve ever seen these photographs before?’

  He looked at the judge and said, ‘Your Honor, I have never seen these photographs before.’

  ‘It is agreed between the prosecution and the defense that this is Mr Child’s car, the Bugatti. You see it, in these photographs?’ I asked.

  ‘Yes.’

  ‘You’ll see there is extensive damage to the front of this vehicle, from a heavy head-on collision, correct?’

  ‘I’m not a motor vehicle expert, but I agree.’

  ‘So, having seen these photographs, do you wish to withdraw your earlier testimony?’

  ‘I’m sorry, what? I don’t understand,’ said Porter. The DA knew I was winding up for a sucker punch, but he didn’t know where it was going to land. I could hear Zader whispering to Lopez – she didn’t know where I was going with this either. It wouldn’t have mattered if they’d figured it out. The main thing was that right then, Porter didn’t see it coming.

  ‘You are aware, Doctor, that an expert witness has a duty to offer unbiased, expert opinion.’

  ‘I’m aware of my obligations, but I don’t understand what part of my testimony you are asking me to withdraw.’

  ‘Your testimony that David Child tested positive for gunshot residue and therefore either shot a gun multiple times or was likely to be in the immediate vicinity of a gun that was discharged multiple times. I will allow you one last opportunity to withdraw that testimony, Doctor.’

  ‘No, I see no reason to withdraw that statement.’

  I paused, nodded. Looked at the judge.

  ‘Look at photograph three, Dr Porter.’

  He flicked through the set of photographs until he found it. A close-up of the wrecked Bugatti. He’d examined it only moments before, but gave it a further glance and then waited for the question.

  ‘A moment ago you could not explain the nylon, plastic, leather, and rubber particle deposits found on Mr Child’s hands, arms, clothes, and face. Can you now?’

  Another look at the photograph.

  ‘No.’

  I sighed, as if I was having to drag this admission from Porter, when in fact, I wasn’t giving him enough to answer the question.

  ‘Dr Porter, we’ve already established the heavy impact to the vehicle – photograph three is a close-up of that vehicle. As you can see from the interior, no less than three …’

  He slid down in his chair a little. Closed his eyes. I’d backed him into a corner. Chiseled his testimony on a stone tablet. If he wavered from it, one inch, his tower of evidence crashed, and he knew it. Yet he had no choice.

  He’d seen it.

  The revelation had come to me when the Lizard talked about laying out the parts of his disassembled weapon in an exploded view. It occurred to me that GSR is the material left behind from an explosion, and I knew for sure that David had been in an explosion that day. A small one, but larger than an explosion from a bullet being fired.

  ‘The air bags,’ said Porter.

  Behind me, I heard Zader whispering excitedly. I turned and saw an ADA leave the courtroom, powering up his cell phone as he walked. He was young, in his twenties, we
aring a gray suit, brown leather shoes, a dark beard set below brown hair. I turned my attention back to Porter.

  ‘Yes, the air bags. When the air bags are triggered in a crash, they explode from the dash and inflate in microseconds, do they not?’ I asked.

  ‘Yes,’ said Porter.

  ‘That explosive force is caused via a small primer, which would leave traces of barium and antimony. Isn’t that right?’

  ‘I’m not sure of the exact composition …’

  I was already walking toward him. In my hand I held a copy of the French forensic paper on similarities between GSR and trace material found in a vehicle following air bag deployment.

  ‘Doctor, this is a scientific paper published last year that details the forensic analysis of air bag deployment residue and its similarities to GSR. Please turn to page four and you can read the results for yourself.’

  The clerk took a copy of the paper for the judge. I left one copy on Zader’s table. He didn’t pick it up, just stared at me.

  As he read, Porter chewed his lip. I gave him a full three minutes to read the entire article. My stomach did a small leap when I saw Judge Knox reading along, too. He was interested. I had to keep it that way.

  ‘Yes, I see that the forensic results detail the standard characteristics of the particle residue from air bag deployment. But it doesn’t mean my results don’t reveal the presence of GSR.’

  Porter was clinging to his opinion, fighting back. Exactly what I’d expected an expert who’d been successful in his previous two hundred and three appearances in court to do.

  ‘Are you sure?’ I said.

  ‘I’m confident in my results.’

  ‘In the explosion that punches through the steering wheel cover and the dash to release the air bags, it’s entirely probable that small particles of the nylon airbag itself, together with the rubber, leather, and plastic from the dash, would also be fused in the heat, released, and would deposit on the skin, just as the study found?’

  ‘Perhaps?’

  ‘Perhaps? It’s very likely to happen. Isn’t that correct?’

  ‘Yes,’ he said softly.

  ‘This forensic paper on air bag deployment residue states that a very similar material was found in nearly every analysis done. Do you accept that?’

  ‘I have to.’

  ‘You accept that the characteristic air bag deposit material, identified in this paper, is almost identical to the material found in your analysis of the samples taken from the defendant?’

  Before I’d finished the question, Porter had already begun to shake his head; he wasn’t going down without a fight.

  ‘It’s almost identical, and some of the deposits such as the nylon and rubber may have come from the air bag explosion, but that doesn’t change a thing. The barium and antimony found on the defendant are characteristic materials of gunshot residue. My opinion remains that I found GSR in those samples.’

  He looked around the courtroom, almost relieved. Taking a sip of water and swirling it around his mouth before he swallowed, he had the appearance of a prize fighter who’d just taken his opponent’s best shot and come back swinging. He didn’t know it yet, but he was already on his way down for a ten count.

  ‘Dr Porter, we had earlier established that the holy trinity of GSR material are lead, barium, and antimony, do you remember?’

  ‘I do.’

  ‘You said that some manufacturers’ rounds are tougher than others, so they may not leave traces of lead in GSR. Is that still your opinion?’

  ‘It is.’

  ‘You tested samples taken from the defendant, but you also tested samples taken from the gun?’

  His eyes closed slowly. He was way ahead of me. He nodded blindly.

  ‘That’s a yes?’ I asked.

  ‘Yes,’ he said softly, keeping his eyes shut so that he wouldn’t see the freight train when it hit him.

  ‘Doctor, your analysis of the weapon recovered from the defendant’s car found traces of barium, antimony, and lead.’

  His eyes opened and he said, ‘Yes.’

  ‘No nylon?’

  ‘No.’

  ‘No rubber?’

  ‘No.’

  ‘No leather?’

  ‘No.’

  ‘The results from your tests of the gun material, and the material found on the defendant, are very different?’

  ‘Yes, there are differences.’

  ‘To be fair to you, Dr Porter, the district attorney’s office didn’t inform you that immediately prior to his arrest the defendant had been in an automobile accident in which the air bags deployed, is that right?’

  He knew I was throwing him a bone and he grabbed it with both hands.

  ‘That’s right, Mr Flynn. I cannot conduct accurate comparison tests if I do not have the vital environmental facts to feed into my analysis.’

  ‘So, had the prosecutor given you this vital information, would your opinion have been different?’

  Even before Porter threw Zader under the bus, I could feel the DA’s eyes on the back of my skull; the contempt was palpable.

  ‘My opinion would’ve been very different,’ said Porter.

  ‘It’s not possible for a gun discharging lead residue to leave that residue only on the gun and not even a trace of it on the hands or clothes of the shooter, correct?’

  I couldn’t help but look at the DA, watched as he willed Dr Porter to come up with something, some great scientific trump card, a Hail Mary to rescue his testimony. The expert said nothing for a time. He looked at Zader almost apologetically. I swear I saw Porter shrug.

  ‘Given what I know now, I would say it’s highly unlikely.’

  ‘From your results, and what you know now about air bags and the common significant differences between your sample results, it’s likely that the material found on the gun is GSR and the material found on the defendant is from the air bag?’

  He was drowning, and I was tying cement bags to his legs. Scratching his head, he remained silent for a time.

  I spoke slowly, softly even. ‘Doctor, may I remind you of your earlier answer? You told this court that your opinion flows from the facts and the evidence before you. Please bear that in mind. Now, I’ll ask you again, from the facts and the evidence you are now aware of, the material you found on the defendant was likely to be residue from the air bag explosion and not gunshot residue?’

  ‘Yes, now that I have the full facts, I would agree with that statement,’ said Porter.

  ‘Doctor, earlier your sworn testimony was that the defendant had fired a gun on multiple occasions. Now you cannot be certain that he even fired a single shot. Isn’t that right?’

  Silence. Not even the faintest sliver of breath in the air. All waited for that answer.

  Through gritted teeth Porter said, ‘No. I cannot now be certain.’

  I spun one-eighty and said to Child, ‘Send it.’

  Under the defense table, David’s hands worked at his smartphone. The only sound came from my heels on the floor. Then Zader’s chair screeched on the tiles as he stood and said, ‘No redirect.’

  ‘Any further witnesses today, Mr Zader?’ said Judge Knox.

  ‘Allow me one minute, Your Honor,’ said Zader, taking his seat and flipping pages on his file. He was stalling.

  David held out his phone to let me see the screen. For a kid on a first-degree murder charge, he looked mightily pleased with himself. I took the cell phone from him and approached the prosecution. The judge had his head down, looking over his notes. I said nothing. Just held out the phone so Zader could see.

  It was from David’s Reeler account. A new post had been Reeled through all other social media channels. The number of views at the bottom of the screen moved in real time – and accelerated in its thousands. By the time Zader read the post, it had twenty-one thousand views. The post was simple and personal from David to his followers:

  I’M INNOCENT. THE DA’S EXPERT WITNESS JUST GOT DESTROYED. THE PROSECUTION’
S CASE IS COLLAPSING.

  IT’S EMBARRASSING FOR THE DA.

  IT’S PUBLIC AND MESSY.

  CHAPTER FORTY-SIX

  The ADA that Zader sent out on an errand returned to the courtroom. He gave his boss the thumbs-up on his way down the central aisle.

  Some steel returned to Zader’s face. His jaw set, his eyes lit from behind, no doubt by some kind of move he was planning with the returning ADA.

  He couldn’t resist the urge to gloat.

  ‘Twenty years on a plea?’ he said.

  ‘Drop the charges; let him walk.’

  ‘I hoped you might say that. You did a good job on Porter. Pity it was all for nothing,’ said Zader. In his next breath, he addressed the court.

  ‘Your Honor, a matter has arisen, and we would like to see you in private, in your office.’

  ‘Mr Zader, I’ve already missed my golf day and I’m running late for a dinner tonight, so you’d better make this fast,’ said Knox, relaxing into his chair.

  Zader and the ADA who’d returned to court with the document stood behind the right-hand chair at Knox’s desk. Sinton and I stood on the left. No prospect of Zader making an ass of himself by sitting down. He knew his judges.

  Zader took the page from his ADA and handed it to the judge. His tone was solemn and respectful as he addressed Judge Knox. ‘Your Honor, I have to make you aware of our intention to file a motion requesting your recusal from this case. We have evidence of judicial bias, and you cannot continue with this hearing.’

  A flash of anger rippled over Knox’s lips, drawing them into a snarl before fixing his mouth shut, biting down the urge to tear a piece off of Zader. As he read, his eyes broke wide and blood flooded his cheeks, the skin shading into a color that could only be described as sunset pissed.

  ‘How did you come by this information?’ said Judge Knox, turning the page over and setting it facedown on his desk.

  After looking at his ADA, Zader held out his hands innocently.

  ‘It’s for your own good, Your Honor. You should step aside and let another judge hear this prelim. No one is saying that you were aware of this information before the case started. In fact, we just discovered this ourselves. It may be that we’ve saved you some embarrassment if you withdraw now, voluntarily.’