Dante's Poison (12 page)

The sob story did not impress Judge Cudahay. “Counsel, what is the purpose of calling this witness?” he demanded of Frost.

“I, uh . . . was hoping to establish that the victim was, ahem, dead and properly identified.”

“I'm sure the defense would be willing to stipulate to that fact, isn't that right, Ms. Sanchez?”

Hallie rose quickly beside me. “We most certainly would, Your Honor.”

“Then I'm sure we won't be needing any more of Mr. Urquhart's testimony today, will we, Mr. Frost?”

“Well, if the court isn't interested . . .” Frost sputtered. Cudahay must have glared at him because Frost's next words were “I mean, sure.”

“The witness is excused, then.”

Hallie sat back down, and though she didn't say anything—outwardly gloating over opposing counsel's missteps was a no-no—I could tell she thought we were off to a good start.

Frost then read into the record the sworn statement of Gallagher's cardiologist, Dr. Catherine Climpson, who recounted that she had administered a stress test and an EKG on Gallagher the year before, after the deceased had been referred to her complaining of shortness of breath. The results were both abnormal and alarming. Climpson had advised an immediate change in diet and lifestyle to little avail. When Gallagher next visited her six months later, he was showing all the signs of advanced coronary artery disease, but except for a course of statins, was following none of her health recommendations. In accordance with her professional responsibilities, Climpson had kept the results of her examinations confidential but could not, of course, say with whom Gallagher may have shared them.

Frost's next witness was the medical examiner, Dr. James Lubbock. The examination was painful, proceeding in fits and starts and filled with leading questions, but except for a single hearsay objection—when Frost tried to elicit the reason for the exhumation request—Hallie was quiet, probably having surmised that she'd earn more points with the judge by letting Frost crater on his own. It ended with Lubbock's opinion that Gallagher had died of cardiac arrest, in all likelihood brought on by his ingestion of the prescription antipsychotic Lucitrol.

It was then Hallie's turn to cross-examine. She got up and walked over to the witness box. When judges permitted it, Hallie liked to get as close to a potentially hostile witness as possible.

“Dr. Lubbock, I understand that no autopsy was performed on Mr. Gallagher's body immediately after his death. Is that common?”

Lubbock answered, “Due to staffing shortages, our current policy is not to perform an autopsy on persons known to have suffered from heart or lung disease, or to have abused drugs or alcohol.”

“And did Mr. Gallagher fit one or both of those criteria?”

“The former, certainly.”

“What about the latter?”

“I'm not sure I'm in a position to say,” Lubbock tried.

“Come now, doctor. Surely you examined his liver?”

Though clearly loath to admit it, Lubbock conceded that the deceased's liver showed signs of early-stage cirrhosis.

“Going back to your current policy on autopsies, are there any exceptions?”

“Yes, if the family specifically requests it.”

“But no such request was made here?”

“Apparently not.”

“So his corpse was not examined by your office until almost two weeks after his death.”

“That is correct,” Lubbock answered.

“After the body had been embalmed by an undertaker.”

Lubbock was again forced to agree.

“And been buried in the ground for nearly eight days.”

“Yes.”

“At that point, am I correct in assuming that substantial decomposition had taken place?”

“Yes, although the rate of decomposition was slowed somewhat by the embalming procedure.”

“Am I also correct in assuming that embalming can interfere with toxicology samples?”

“Yes, that's true.”

“And that decomposition would also affect the quality of the samples taken?”

“That is also correct.”

“For example, content that may have been present in the decedent's stomach?”

“Yes, decomposition usually begins in the stomach and intestinal passages.”

“Were you able, then, to draw any inferences about when the decedent took the drug you say killed him?”

Lubbock paused here as though he wished he didn't have to answer. “Not from the stomach contents. But given the amount present in blood and liver samples, we believe it was ingested in the thirty-six-hour period prior to his death.”

“Thirty-six hours,” Hallie repeated for emphasis. “So you cannot say whether he took the drug just before he suffered a heart attack?”

“No.”

“Or earlier on the same day.”

“No.”

“Or even a full day before he died.”

“That's right,” Lubbock conceded in a pained voice.

Having inflicted this damage, Hallie wisely didn't challenge Lubbock's claim that Lucitrol was the immediate cause of Gallagher's heart attack. “No further questions,” she said, returning to her seat. I scribbled “nice job!” on the legal pad in front of her. Hallie wrote something on the pad too and passed it to Jane, who added a comment and silently passed it back. Naturally, I felt irked to be left out of the conversation.

Frost's next witnesses were patrons of Gene & Georgetti's, who could attest to overhearing Jane and Gallagher arguing heatedly on the evening of August 26, mere hours before he died. First, a Mr. and Mrs. John Dwyer, suburbanites from Gurnee, who had dined at the restaurant on their way to an 8:00 p.m. performance of
Les Misérables
at the Oriental Theater and were just finishing up their $24.95 Filet Florentine when the fracas began. Neither one of the couple could say what it had been about, though Mrs. Dwyer was certain she had overheard the defendant hissing, “You won't get away with it!” and the name “Lucy” repeated several times. The disturbance was sufficient to cause Mr. Dwyer severe indigestion, which had all but destroyed his enjoyment of the meal. “If you ask me, I deserve a refund.”

Next, Walter Lasorda (no relation to Tommy), the bartender, who had watched in amusement as Jane stood and dumped the remains of a carafe of house red over Gallagher's head before strolling over to the valet station and requesting her car. “She looked damned pleased with herself,” Lasorda chuckled. “And I was enjoying it too. Gallagher never tipped any more than a dime.” Last, the waiter, Vincent Iglesias, who had rushed over to provide a towel to Gallagher, who seemed nonplussed and was still munching contentedly on his fried calamari appetizer notwithstanding the Chianti Classico now trickling down onto the floor beside him. “Hormones,” Gallagher had remarked to Iglesias as the latter was mopping up the mess and laying out fresh table linen.

Since she hadn't yet interviewed these witnesses, Hallie did almost no cross-examination—on cross, she'd explained to me many times, you almost never ask a question for which you don't already know the answer—simply eliciting the facts that Gallagher and Jane had been together at the table the whole time, that Gallagher had himself left the restaurant around 8:30 p.m., and that after being bused from the table, the glass Gallagher had been drinking from had joined hundreds of other indistinguishable containers in the restaurant's industrial-grade dishwashers.

Frost proceeded to read into the record the statement of Beverly Van Wagner, age sixty-seven, a retired Chicago public-school teacher and widow, who a little before 9:00 p.m. that same evening had taken time out from
Storage Wars
to walk Snoopy, her Bichon Havanese, just in time to observe a tall, redheaded woman entering Gallagher's townhome on the fourteen hundred block of South Federal. Despite the woman's attempt to hide behind sunglasses and a scarf, Van Wagner claimed to have gotten a good look at her because Snoopy had chosen that precise moment to stop and sniff at a lamppost on the adjoining parkway and thereafter decided the time was ripe to empty his bowels. Being of an advanced age and constipated from stealing a chocolate bar earlier in the day, Snoopy had required a long time to complete his business, thereby giving Mrs. Van Wagner plenty of time to observe Gallagher's clandestine visitor. The woman removed a set of keys from her overcoat and, glancing around once or twice—“like she was afraid of being noticed”—let herself in. After reading of Gallagher's death in the newspaper and volunteering her information to the authorities, Van Wagner had been asked to participate in a lineup at the police station and had easily picked out Jane from among the photographs she was shown. According to Frost, Van Wagner was unable to appear in court that morning because of an urgent, last-minute call to babysit her grandchildren in Fort Myers, a thousand miles away. I didn't believe it for a minute.

Next, we heard from the police detective, Garrett Yanowski, who took the courtroom through his search of Jane's office and the discovery of the Lucitrol samples and disc-wiping software, as well as his inspection of Gallagher's townhome. On Yanowski's cross Hallie violated her own rule, hoping to get more information out of him than could be gleaned from the bare-bones police report.

“Detective, when you were searching the deceased's home, was there any indication that my client was present there on the night in question?”

“What do you mean by ‘indication'?” Yanowski asked, playing dumb.

“Well, for example, I assume you dusted the location for fingerprints. Did you find any belonging to Ms. Barrett?”

“A few. Mostly in and around the bedroom.” There were scattered titters across the courtroom.

“Quiet,” Judge Cudahay growled.

“I take it you cannot tell us when those fingerprints were left.”

“That's right.”

“Were there any fingerprints belonging to Ms. Barrett in or around the deceased's computer station?”

Yanowski allowed as there were none. “Though she may have been wearing gloves.”

Hallie asked that the last response be stricken from the record as nonresponsive, and Judge Cudahay so instructed the court reporter.

Hallie next proceeded to the questions we had worked on together. “Detective, will you describe for us the procedure that the police used during Mrs. Van Wagner's purported identification of my client?”

“Sure. What would you like to know?” Yanowski asked, going out of his way to make this difficult.

“Well, let's start with who conducted the lineup. Was it you personally?”

“Certainly. I was the principal investigating officer.”

“Precisely,” Hallie commented for emphasis. “And at that point had you already made up your mind to arrest my client?”

“I wouldn't say ‘made up my mind,' but yes, she was our chief suspect.”

“Have you ever heard the term ‘filler' when used in connection with a police lineup?”

“Sure.”

“Will you explain to the court what a ‘filler' is?”

“A filler is a person whose physical characteristics match the verbal description given by the eyewitness. In a photo lineup it is typical to display photographs of six or more fillers in addition to that of the suspect.”

“How many fillers did you use in the photo lineup in which Mrs. Van Wagner claimed to have identified my client?”

“We used a total of ten.”

Hallie then asked Yanowski to explain the two common types of lineups: simultaneous and sequential. In a simultaneous lineup, as the name implies, an eyewitness is shown all of the photographs at the same time. In a sequential lineup, the photographs are displayed one by one.

Yanowski had used the first type, which was good for us.

Hallie's last questions to Yanowski were also predicated on some ideas I'd given her.

“Detective, going back to your search of Mr. Gallagher's residence, is it fair to assume that you collected all medications, prescription or otherwise, that could be found on the premises?”

“Of course. We know how to do our job,” Yanowski puffed.

“How many such medications did you find?”

“Quite a few. Upward of twenty different prescription bottles, most of which had expired.”

“And none of which could be identified as Lucitrol?”

“That is correct.”

“Did you test the contents to be certain, or simply rely on the labeling?”

Yanowski was caught short. “We, uh . . . didn't do any testing.”

“Were there any medications in unmarked containers?”

“A few,” Yanowski admitted.

“Did you test the contents of those containers to rule out the possibility that they contained Lucitrol?”

“No, because it wasn't necessary.” Yanowski said, finally catching on to where this was headed. “He wasn't under the care of a psychiatrist.”

“That you know of,” Hallie said.

“What's that supposed to mean?” Yanowski demanded.

Hallie reminded him that she was the one asking the questions. “But since you're curious, Detective, let me explain the purpose of my questions. During your exhaustive investigation into Mr. Gallagher's death, did it ever cross your mind that the deceased may have taken steps to hide a mental-health problem so that it could not be discovered by others—such as by seeing a psychiatrist in secret?”

Yanowski allowed he had not.

“Or that he may have obtained a prescription for the drug from a nonpsychiatrist provider?”

“Can that happen?” Judge Cudahay interposed.

Hallie was ready with an answer. “Yes, Your Honor, it can.” She returned to counsel table, removed a document from her briefcase, and crossed the room to tender it to the court. “If the court wishes, it can take judicial notice of a recent study by the Pritzker School of Medicine, finding that the number of office visits where individuals are prescribed antidepressants with no accompanying psychiatric diagnosis ranges from twenty to fifty percent. Lucitrol is a much stronger medication, but it can be prescribed by any doctor.”