A Family Business (32 page)

Hunter’s domain, being a corner room, was laid out differently from most courtrooms. Instead of being centered along the far wall, the judge’s bench stretched diagonally across the corner opposite the entrance. Opposing attorneys were assigned separate tables on the bench side of the barrier—the bar—that separated the court proper from the spectator section. Looking down from his raised perch, Hunter saw Diamond on his right, looking disheveled, and David, clad in prison blues. On the judge’s left, separated from the defense table by only a few feet, was the prosecution’s table. Giss, as if anxious to get into punching range, took the chair closest to Diamond.

In one important respect—the length of the proceeding—the Ventura preliminary hearing was definitely
not
going to be a repeat of the Pasadena performance. Testimony took only one week, compared to thirteen weeks in Pasadena. The main reason for this was there would not be nearly as many prosecution witnesses. Also, in Pasadena there had been three defendants involved and a multitude of charges. In Ventura, David was the only defendant and there was only one charge. Giss called only those witnesses who could help him convince Hunter that David should be tried for Tim Waters’s murder. Plus, in Pasadena, there had been the bail reduction hearing which was held concurrently with the preliminary hearing. In Ventura, David’s request for bail—his Smerling-imposed sentence had just expired—was denied outright.

The Ventura hearing also would be made shorter because of a decision by Giss soon after he accepted the case. Early on he had announced that he did not intend to call any of the inmate witnesses who had testified for Walt Lewis. In one way, this seemed to put the prosecutor at a disadvantage. Instead of eight witnesses who could testify to David’s boasting about his involvement with Tim’s death, there would be only two: Dan Galambos and Dave Edwards.

But there had been several developments in the three-year span between the two hearings that made inmate-informant testimony an incredibly risky proposition. Since the Pasadena hearing, such testimony had been roundly criticized for its inaccuracy and unreliability. Ironically, the inmate most responsible for bringing informant testimony into ill-repute—a thief named Leslie White—had been a star witness for Diamond during the Pasadena hearing. Summoned by the defense lawyer as an expert on jailhouse informants, White had contended even then that inmates could not be believed, that they frequently collaborated against another prisoner, using a number of devious methods to gather enough facts to make their stories sound credible. To prove he knew what he was talking about, White later demonstrated for sheriff’s deputies how, via an accessible jail telephone, he could call law enforcement agencies and, by posing as a brother law enforcement officer, relatively easily secure confidential information about another inmates’s case. With that information in hand, he said, it was easy to manipulate the details to damage a targeted inmate. If it were done right, he added, the trumped-up case could lead to the target-inmate being convicted of a crime he did not commit.

Knowing that Diamond would be waiting to pounce on Steve Warren, David Gerhardt, and the others, Giss decided he would rather go without their testimony than risk getting bogged down in a long fight about the veracity of their information. He would, instead, rely heavily on the word of a handful of David’s former employees; friends and family members of Tim Waters; the man who confirmed that Tim had been killed by oleander poisoning; and detectives Diaz and Hopkins. None of them let him down.

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To a large degree Giss’s witnesses repeated what they had already testified to at the Pasadena hearing. But it was not so much
what
they said as
how
they said it that made an impression.

Without the testimony of Gerhardt
et al
, Giss relied heavily on Galambos and Edwards to show David’s intent to harm Tim Waters, so it was important that they appear credible. First up was Galambos.

Clad in jeans and an open-necked sport shirt with the sleeves rolled up to better display his massive arms, Galambos sauntered arrogantly to the front of the courtroom and plopped into the witness chair, not so much taking it as commandeering it. At six-foot-three and 220 pounds, with upper arms as big around as the trunk of a Joshua tree, he easily was the most intimidating physical figure in the courtroom, almost twice the size of defense attorney Diamond. David, who had pumped no little amount of iron in his time, looked puny next to his onetime friend.

Leaning forward, cupping his chin in a fist that seemed the size of Giss’s head, Galambos stared fixedly at the chief prosecutor. In response to most of the questions, Galambos answered tersely: “Yes”…“No”…“That’s what I was told”…“No, I didn’t”…“Yes, I did”…“That’s right.”

When he was infrequently called upon to give longer answers, he furrowed his brow in concentration and his heavy eyebrows pouched outward, making his forehead look like it was layered with Play-Doh. By reputation, he was mean and tough, and there was nothing in his demeanor during his brief appearance in Courtroom 20 to contradict that assessment.

A little later in the hearing, with Galambos absent from the room, Diamond expounded at length on the muscleman’s personality faults. In an attempt to denigrate the weightlifter, he characterized him as a violent, volatile man, and an insufferable one to boot. Giss interrupted the defense attorney in mid-sentence. “I’ll
stipulate
,” the prosecutor said loudly, emphasizing the commonly used legal term meaning he would agree without argument, “that Galambos is obnoxious.”

Everyone in the courtroom burst into laughter. But no one laughed when Galambos was physically present, certainly not when he described, in short, abrupt sentences, how he helped beat up three men without thinking twice about it.

As he told how David had paid him to carry out the attacks and urged him to be as violent as he wanted, David glared at him from his chair behind the defense table. Galambos glared back. Clearly, there was no bond of affection between the two; each had taken his shots at the other, Galambos from the witness stand, David in interviews with Diaz and Hopkins.

Whatever David said about Galambos, however, did not change the fact that Galambos had admitted beating Hast, Nimz, and Waters, even though by doing so he was confessing to breaking the law himself. Nor did it change the fact that David had admitted hiring Galambos to do it. No matter how much David and Diamond tried to denounce Galambos before Judge Hunter, it remained a fact that Galambos and David agreed on one thing: Galambos had assaulted three people because David had paid him to do it. The reality was that one of those people later may have been murdered, and that David allegedly had bragged to his stooge about his involvement in the death. That could not help but influence the court, no matter how badly Diamond tried to trash the witness’s reputation.

While Galambos had been an intimidating presence in the courtroom, Dave Edwards, despite his bulk, did not appear threatening at all.

Dressed neatly in a shirt and tie, his hair cut short and well-groomed, Edwards appeared shy rather than belligerent, as his reputation seemed to indicate. When asked to describe his relationship with David, Edwards appeared reluctant to admit how he once had worked closely with an accused killer. Even when he described in detail how he, Galambos, and Andre Augustine had jumped on Hast and Nimz, it seemed as if he were talking about a movie he had seen, rather than a scene from his own not-too-distant past. When he finished his story about David allegedly telling him that he had poisoned Tim Waters, he adjusted his horn-rimmed glasses and turned to Diamond, waiting for the cross-examination.

Edwards was such a credible witness, however, that the best the defense attorney could do was try to get him to admit that when he first told police about that conversation, Edwards had said David told him that
someone
, as opposed to David himself, had slipped a potion into Tim’s drink.

Edwards considered the question for several seconds, then conceded that what Diamond had suggested may have been at least partially true. “It may have been both,” he said, meaning he may have said “someone” at one point and “David” at another.

However, when Rogan questioned him on re-direct, Edwards was very specific about his recollection of hearing David use the word “I” when suggesting that Tim had been poisoned.

Although Edwards and Galambos formed the foundation of the prosecution’s case, they had both told their stories before, and what they said in Judge Hunter’s courtroom was no different from what they had said in Judge Person’s. But there was one witness called by Giss who the defense had not yet heard: Dr. Frederic Rieders. And he turned out to be quite a star for the prosecution.

An avuncular man in late middle age, Rieders proved to be very sure of himself, very articulate, and a very savvy witness.

After detailing his background for the record, Rieders related how he came to be regarded as an oleander expert, then launched into a description of the tests he had performed on the Waters samples sent to him by Dr. Lovell.

As soon as he saw the results, he said, he was almost positive that oleandrin was present. But just to be sure, he ran the same series of tests again. The results were identical.

“By then,” he testified, “I was reasonably certain of the presence of oleandrin in significant amounts.” Making a symbol of a gun by lifting his right hand to his head with the forefinger extended, he added: “Without another more obvious cause, such as a bullet hole in the head, I would say that this was the cause of death.”

Giss wanted to make sure that Rieders’s findings were sufficiently emphasized. Was he certain—within the bounds of expert opinion, of course—that Waters was killed with oleander?

Rieders shrugged; experts dislike being pushed into “certainty” boxes.

“Once you rule out the other possible causes, you have to look at what you’re left with,” he said; meaning that, in his opinion, if nothing else killed Tim Waters, than the oleandrin must have.

Diamond, however, was not convinced. When Giss turned the toxicologist over for cross-examination a few minutes later, Diamond tried to establish that the oleandrin found in Waters’s specimens may have been the
result
of what killed him rather than the
cause
.

Flipping through Dr. Holloway’s autopsy report, Diamond opened a series of questions relating to Holloway’s notation about Waters’s enlarged liver.

Could his liver have produced a substance that reacted like oleandrin? Diamond asked.

Rieders shook his head. “I seriously doubt it,” he answered.

Well, then, Diamond pressed, just what substances
are
produced by an enlarged liver?

Rieders answered rather sharply. An enlarged liver produces the same substances as a normal liver, he said, only in increased amounts. “The size of the liver doesn’t make it produce substances it wouldn’t produce otherwise.”

Unfazed, Diamond pressed on. Could the medication that Waters was taking for high blood pressure have killed him and made it look as though he had died from oleander poisoning?

“No,” replied Rieders. The oleander plant produces other materials besides oleandrin, but the different substances react differently during testing. In the Waters case, everything pointed toward oleandrin, not any other substance. “It extracted, migrated, and reacted all in the same way,” he said.

Diamond inserted disbelief into his voice. Did Rieders mean that of all the possible substances that could have showed up in Waters’s specimens, oleandrin was the only one? Did the toxicologist run tests eliminating everything else?

Rieders looked sad, as though he were trying to explain how a litmus test worked to a dull chemistry student. “There are eight million substances registered by the American Chemical Society, and we can’t test for every one of them,” he explained. “But I wasn’t working in a vacuum. I had a history of the case before I began my tests. You don’t give a scientist a substance and ask him to tell you what it is. That’s what you do to a student, not a scientist. A scientist gathers all the facts he can beforehand. A scientist puts together a puzzle; he never works in a vacuum. The purpose of my tests was to rule in or rule out oleandrin.”

In the Waters case, Rieders added, he had adopted what is called the “null hypothesis approach.” Using that method, none of his tests ruled
out
the presence of oleandrin, and neither did they rule
in
any other substance. However, since scientists by nature are careful people, Rieders hedged his statements. “I do not
deny
the possibility that it could have been anything else.” He added, with only the lightest hint of a smile: “I do not bet my life on science.”

But Rieders’s caveat was too weak to give Diamond anything to hang a hope on; the toxicologist was being as positive as he could, considering that science is not always exact.

Turning from substance to method, Diamond wanted to know if Rieders’s tests had been designed specifically to examine for oleandrin.

Again Rieders shook his head. “My method of testing was not unique to oleandrin,” he said, explaining that he relied primarily on three tests to show his results: Thin-layer chromatography, fluorescence spectrophotometry, and radio immunoassay, essentially the same tests he had used to pinpoint oleandrin in a situation in which he knew in advance what he was looking for, a case involving members of the Haitian community in Miami.