A Case of Redemption (32 page)

So I looked up at Judge Pielmeier and said, “Your Honor, I have no more questions.” And then, before returning to counsel table, I said to Roxanne's mother, “Mrs. Wells, please accept my sincerest condolences for your loss.”

•   •   •

“It's a good thing they don't serve liquor here,” I said, referring to the court cafeteria. I'd just brought over my tray, which carried a turkey club, a bag of chips, and a diet cola. Nina's lunch looked to be the same thing, without the chips.

“You don't drink when things are tough anymore, remember?” Nina said. “Besides, it really wasn't as bad as you think. The jury knows she was testifying as a mother, not as a witness. What else is she going to say?”

“Okay, but next time you need to tell me that I'm about to make a big mistake,” I said with a serious voice.

“Okay, next time,” Nina said.

“My guess is that she calls Harry Davis to the stand next,” I said.

“That's where you need to be sharp, Dan. Let this one go, and rip him to shreds.”

W
hen Kaplan called Dr. Harry Davis to the stand, Marty Popofsky took his place next to me at the counsel table, and L.D. and Nina slid over one. And my heart started to beat a bit faster. It felt like before I crossed Vickie Tiernan in the Darrius Macy trial—this was a make-or-break moment for our case. Perhaps not
the
make-or-break moment, not if L.D. and maybe Matt Brooks testified, but after Davis had his say, we'd have a pretty good idea if we were winning or losing.

Either Kaplan worked with Davis to create his appearance, or he'd testified enough to know how to play the part. He was right on the money—dark suit, white shirt, red tie, and rimless glasses. Even his thinning gray hair looked professorial, cropped very tight, as if his head had been dusted with snow.

It only got worse for us when Dr. Davis took the oath. He said his name in a voice so deep he reminded me of the guy who narrates movie trailers.

“Are you currently employed, sir?” Kaplan asked.

“Yes. I am the chief medical examiner for the city of New York.”

“Tell the jury about your educational background, Dr. Davis.”

“I'm a product of the New York City public schools,” he said, earning me an I-told-you-so jab in the ribs from Popofsky. “After that, CUNY Queens and Harvard Medical School.”

“Thank you, Dr. Davis. Very impressive. Can we talk for a few minutes about the findings of the Roxanne Wells murder?”

“Certainly.”

“What can you tell us about the time and cause of death?”

“The victim's time of death was between eleven in the evening and three in the morning. The cause of death was a blow to the head, most likely with a heavy object. About the size and weight of a baseball bat.”

“Can you tell whether the person who murdered Roxanne was right- or left-handed?”

“Yes, the blood spatter and angle of the wounds indicates a right-handed assailant.”

“Please tell the members of the jury whether you reached any conclusion concerning the likely height and weight of the person who murdered Roxanne.”

“Based on the force of the blows, the murderer was of considerable strength. Also, from the angle of the blood spatter, I concluded that the attacker was between five foot ten and six feet three inches tall.”

Popofsky scribbled on a notepad “Assumes weapon = bat,” and I nodded that I understood. It would have to wait for cross, however.

“Your Honor, could you please instruct the defendant to stand?” Kaplan asked, a little bit of showboating that prosecutors just love to do.

I didn't wait for the judicial order. Instead, I whispered for L.D. to rise. He knew enough on his own to look defiant.

“In your expert opinion, Dr. Davis, is the defendant of sufficient size to have caused the injuries Roxanne suffered?”

“Definitely.”

After Dr. Davis established everything that Kaplan needed, she turned her focus to a preemptive strike against what she knew would be our line of attack—the pubic hairs.

“Dr. Davis, the jury has heard testimony concerning pubic hairs that were found in Roxanne's bed. Did you study those hairs?”

“I did.”

“Did you do a DNA analysis?”

“No.”

“Why not?”

“The hair samples that we had did not contain the hair root. Without the root, you cannot perform a DNA analysis, like you often see in the movies. Instead, all that can be done is an examination of certain characteristics about the hair.”

“Did you study the hairs for those characteristics, Doctor?”

“Yes, of course. Based on that study, we concluded that the hairs came from a Caucasian and were from the pubic region.”

“Is Roxanne a Caucasian, Doctor?”

“She is.”

“Is it therefore possible that the hairs on Roxanne's bed were hers?”

“Yes.”

“Thank you, Doctor,” Kaplan said, resuming her seat. “No further questions, Your Honor.”

•   •   •

I began my cross focusing on Davis's conclusions about the size of the murderer. Popofsky concurred in the estimate Davis had given, so I wasn't going to challenge Davis's conclusions, but I wanted to start to lay the groundwork so the jury could see that L.D. wasn't the only right-handed person on earth between five foot ten and six foot three.

“Your range, Dr. Davis, five-ten to six-three, that covers an awful lot of men, doesn't it?”

“Yes,” he said matter-of-factly.

“In fact, you fit that description, do you not, sir?”

“I do.”

“And me, too, correct?” I said.

“Yes.”

Davis was as good a witness on cross as Boyle had been bad. The first rule of cross-examination is to keep your answers as short as possible while still answering the question. The standard joke was that if a cross-examiner asked if you knew the time a certain event occurred, the best answer was to say only “Yes” and wait for the next question before saying, “Two o'clock.”

“You can't even rule out that the murderer is a woman, can you?”

“It would have to be a very strong woman, but statistically, it's possible.”

Davis said this without concern, with almost an “anything is possible” air. I needed to get to an area where I could do some damage to his authority, and so I turned to the pubic hairs.

“Dr. Davis, you testified on direct examination that three hairs were found in Roxanne's bed. Do you recall that testimony?”

“I do.”

“And you said that you could not conclusively link that hair to any specific person.”

“That's right.”

“But you could exclude certain people as the source, right?”

“Yes.”

“Whom could you exclude?”

“As I said before, non-Caucasians could be excluded.”

“African Americans, in other words.”

“Yes. And people of Mongoloid descent.” He turned to the jury. “That's the scientific term used to identify people who trace their ancestry back to Asia and the Pacific Rim.”

“And L.D. is African-American, is he not?”

I took advantage of Davis's initial hesitancy on such a simple question by adding, “L.D., stand up so Dr. Davis can get a better look at you. He must have been so focused on your height and weight when he testified on direct that he failed to notice your skin color.”

This earned me my first gallery chuckle and a gavel strike from Judge Pielmeier.

“Calm down,” she said, making it clear that playing to the crowd was exclusively her province.

“Yes, he is African-American,” Davis said in a bored tone.

“So, one thing we know without any shadow of a doubt is that they weren't L.D.'s pubic hairs in Roxanne's bed. Right?”

“That is correct.”

I had the first half—Davis was conceding that they weren't L.D.'s pubic hairs. Now I needed to push him hard on the second half—getting him to admit they weren't Roxanne's either.

“Was there anything—anything at all—that led you to conclude that it was possible that the hairs did not belong to Roxanne?”

Davis's gaze went beyond my shoulder, so that he was looking straight at Kaplan. They must have been hoping that we'd missed it. Now the jig was up.

As much as thirty seconds of silence followed, which in court time feels like an eternity. He finally said, “At the time of her death, Roxanne did not have any hair in her pubic region.”

So they
did
know.

The giggles from the gallery that followed Davis's revelation were loud enough for Judge Pielmeier to use her gavel again.

I felt like a boxer whose opponent had merely been stunned. I went in for the kill but tried to do so carefully, so that Davis couldn't land a knockout punch while my guard was down.

I scrolled through the next series of questions in my head, thinking through Davis's likely answers as well. I didn't see any immediate danger, and so I forged ahead.

“Dr. Davis, did you examine Roxanne as part of the autopsy?”

“I did.”

“And in that examination you saw that she did not have any pubic hair?”

“That's correct.”

“And that led you to conclude, did it not, that the pubic hair in her bed was from someone else?”

“No,” he said.

No?
How could that be? Roxanne doesn't have any pubic hair, and yet Davis was nonetheless claiming that she left her pubic hair in the bed?

My curiosity got the better of me. “Really? Why not?”

“It's possible that she had recently removed her pubic hair,” Davis
said matter-of-factly. “So the hairs in the bed could easily have been hers from before she had her pubic hair removed.”

There's a story lawyers tell each other about the dangers of asking one question too many in a cross-examination. Supposedly it happened to Abraham Lincoln during his lawyer days. A witness testified that he was certain that Lincoln's client had bitten off the ear of the victim. On cross, Lincoln got the witness to admit he didn't see the biting. Then Lincoln asked the one question too many—“If you didn't see my client bite off the ear, how can you testify with such certainty that he did?” And the witness said, “I didn't see him bite it, but I saw him spit it out.”

I'd fallen into that same trap, allowing Davis to plant the idea that it still might be Roxanne's hair after all. That meant I had some backing and filling to do.

“If I understand what you're telling us, Dr. Davis, the only way the pubic hair found in the bed could belong to Roxanne is if she left it in her bed, and then before the sheets were changed or washed or the hairs were otherwise brushed away, she removed all of her pubic hair. Do I have that right?”

“Yes.”

“If, contrary to your conclusion about the recent removal of Roxanne's pubic hair, if, in fact, she had her pubic hair waxed long before the murder, then would you agree with me that another man was in her bed shortly before she was killed?”

“If I understood your question, the answer is no because it could also be a woman.”

That was probably the closest I was going to get to an admission out of Davis, and it was more than a little convoluted. I briefly considered plowing the ground again to get a better sound bite to repeat to the jury during closing, but thought better of it, fearing that it might give Davis time to take back the little progress I'd made.

“How long could pubic hairs stay on her bed like that?”

Davis chuckled. “I'm sorry, Counselor, but my expertise in the
field of forensic medicine does not give me insight into routine housekeeping matters.”

The gallery laughed with him, which caused Judge Pielmeier to get in on the act. “You're going to need to call an expert maid if you want someone to testify about clean sheets, Mr. Sorensen,” she said.

I had no choice but to wait for the gallery's laughter to subside. When it did, I decided to try a different tack.

“Let me ask you this, Dr. Davis: Did you do anything, anything at all, to determine whether the pubic hairs found in Roxanne's bed belonged to someone other than Roxanne?”

“There was nothing to do.”

“Why—strike that. Did anything prevent you from comparing the hairs to someone else's hairs?”

“That assumes we knew who to compare them to,” he said.

I smiled, and when I did, I saw Davis realize he'd stepped in it. “Thank you, Doctor. I take that to mean that, if you
did
know whose hair it might be, you would have conducted a test to ascertain, one way or the other, whether that person might be the real murderer.”

“Objection!” Kaplan shouted, clearly upset. “Dr. Davis is a medical examiner. He does not direct the investigation.”

“Once again, Mr. Sorensen, you are beyond the scope of this witness's expertise,” Judge Pielmeier said. “The objection is sustained.”

It didn't matter. I looked over at the jury. Half of them were now nodding.

T
he prosecution put up a host of single-issue witnesses over the next two days. Thursday began with Roxanne's housekeeper. She testified that there had been a baseball bat hanging over the mantel in Roxanne's bedroom since shortly after the first game of the World Series, and she was sure it had been there the last time she had been in Roxanne's home, which was the morning of the murder.

On cross, I tried to get her to admit that she had changed the sheets right before Roxanne's death. That her English was less than perfect only made it that much more difficult.

“When did you last change the sheets in Roxanne's home?” I asked.

“It was a long time ago, I don't remember,” she answered.

“You regularly changed the sheets in her home, did you not?”

“
Sí
. I mean, yes.”