Disturbed Ground (51 page)

Gently, gently, he began defusing the prosecution's argument.

"Your reason, not your passion, will convince you," Clymo stated, that O'Mara's version of the truth was "at times slanted, at times fudged, at times manipulated. If you believe everything the prosecutor has said, you will convict her. But if you test it against the truth," he intoned, lacing his big fingers together like a preacher, "you will see where it's slanted. And after you go through that process, it is our expectation that you will reject what was told you last week."

Clymo had initiated his first tactic: attack the prosecution.

"You were bombarded by one of the strongest emotional pleas that I've ever heard from a prosecutor. Every nerve ending was assaulted! The name of Christianity was invoked! Mother Teresa's name was used to inflame you! Does this situation call for that kind of sarcasm?"

Clymo first suggested that O'Mara had committed blasphemy and insulted their intelligence. Next, acknowledging that some of them had military counterintelligence training, Clymo asked, "Do you recall the classes you had in interrogation techniques? Do you remember all the stuff that we learned as a country after the Korean War? If you want to control somebody's thinking, if you want to implant an attitude, you put them in a situation where you have absolute control of them, in the sense that they can't get away from your diatribe."

Clymo was actually comparing the prosecutor's marathon argument to mind control techniques.

"You hammer it incessantly," he continued, "you tire them, you wear them down, you fatigue them, and you slant the facts. Gradually, slowly, during the fatiguing process, you slant the facts. But," he warned, "don't let that happen to you. Recognize the process."

Having disparaged the prosecution's style, Clymo now went after substance.

He thought it was ridiculous to suggest that the woman identified as "Betty" might actually have been Leona Carpenter. "Why in the world would Dorothea Puente tell anybody that this woman's name was Betty? That doesn't make a whole lot of sense," he said, shaking his head.

"Carol Durning Westbrook told you that Dorothea Montalvo Puente fed this woman. That she would go out on the couch, lift her, feed her soup, even when she didn't want to eat, when all she wanted was her pain pills. She would bathe her, wipe her behind like a baby. Dorothea Montalvo Puente did that. Now, that's not some story that she told Detective Cabrera and is therefore to be discredited and disbelieved. That's from a witness that the prosecution told you was one of the few you could believe."

In soft, reasonable tones, he went on, "There was nobody taking care of Betty except Dorothea Montalvo Puente. Does that make her Mother Teresa? No. Is Dorothea Montalvo Puenta a crazed serial killer, preying upon the helpless, looting people beyond the grave? She's neither. She's neither saint nor demon. She's like all of us, a little bit good, a little bit bad," he said, spreading his upraised palms, as if balancing her two sides. "Half this case has been devoted to proving to you that she's a thief. So be it. She is. That doesn't make her a killer."

Clymo suggested that Dorothea had been a good friend to all of these people. She'd known Leona Carpenter, for instance, for twenty-seven years. And her friend Betty Palmer knew she was "going downhill," so she'd simply agreed that if Dorothea would take care of her, the landlady could receive "her trust" of Social Security checks.

Then, perhaps drawing on his study of psychology at Stanford, Clymo held before the jurors a well-known black-and-white image, a perception test. "Some people look at this and see a chalice. Others see two faces that are facing each other," he said, walking the image past the jury box. "What it fairly graphically represents is that there are frequently two ways of viewing things. I would suggest to you that if you have it in your mind what it is you are going to see, you will see it. Each view eliminates the other."

It was an ingenious move, illustrative of the task before them, subtly persuasive.

To make his next point, Clymo popped in the videotape of newsclips from November 11, 1988, that the jurors had seen months before. The courtroom grew still while sounds and images from that fateful day filled the room.

"And topping our news tonight, a gruesome mystery..."

"... uncovered the remains of a dead body ..."

"This is the house of Dorothea Puente
..."

Clymo ridiculed the prosecution for failing to present substantially more than the suspicions voiced that very first day. "Did you hear on the video, from day one, in essence what you heard in the prosecutor's final argument? Bodies buried! Suspected poisoning! Dorothea Montalvo Puente has a prior! Checks were cashed! People missing! From day one, that was the view of the case.

"What has really been proved to you in the six, seven months, whatever it's been, that we've taken evidence on this case?
Not much. You know, from day one they've been trying to prove that Dorothea Montalvo Puente poisoned people. Has that been
proved
to you?" he asked skeptically. "Has that been proved to you beyond a reasonable doubt and to a moral certainty?"

He let the question hang for a moment.

Clymo next turned to the subject of flight, claiming that the defense had never denied that Puente had fled. "What significance does it have, that's the question before you," he said. "Hell, she didn't have to run away. They
escorted
her through the crowd!"

(Indeed, Detective Cabrera had handed him this one.)

"Does that prove she's conscious of having committed murder? Or does that just mean that, yes, she knows she's been ripping off the government for a long time, that she's been snagging Social Security checks after people die because, as we've heard, it doesn't take a rocket scientist to figure out that Social Security is pretty easy to rip off."

Clymo conceded that, on the face of it, seven bodies buried in the yard was very powerful evidence. "But of
what?"
he asked.

"Of a
graveyard!
It doesn't say anything about how people died!"

With that, he began flourishing medical charts regarding the questionable health of each of the individuals Puente was alleged to have murdered. He recounted the dire medical problems they faced. And over and over, for each of these counts, Clymo reminded the jurors, "What do we know as to cause of death? Nothing. Nothing! It's
undetermined.
"

Clymo's fundamental tactic was to raise questions, raise doubts. It wasn't his job to supply answers, but to raise those little worries and concerns that add up to something short of "beyond a moral certainty."

"You've heard a lot about the smell of death. How could there be a smell of death if nine people were killed premeditatedly? It takes two, three days before a body starts to smell. If these were premeditated, deliberated murders, why was there always the smell of death? Why were bodies around long enough to start the decomposition process? How do you explain that?"

And why would someone go to the trouble to wrap the bodies so meticulously, he asked, reminding them of the quilts, the sheets, some of them stitched like a shroud. "Why not get them out into the hole as quickly as you could and get them covered? Once they're in the hole, they've disappeared."

In softer tones, he suggested, "Bizarre as it may seem, didn't the body wrappings represent some crude form of trying to provide at least a measure of dignity to these people, to provide some barrier between them and the dirt?"

At one point, Clymo listed all the former tenants who had testified at the trial. Clearly, they weren't dead. Why hadn't Puente killed them, too, if she were such a crazed killer?

Subtly yet unmistakably, Clymo was making progress, raising doubts.

He saved his best argument for the end of the day, when he popped in the videotaped interview of former tenant Julius "Pat" Kelley. Clymo turned to the jurors, and asked, "If Dorothea Puente hadn't been arrested in November 1988, what would have happened if Julius Kelley had remained at the house, if Julius Kelley had died there of lung cancer? I just ask you to think about that as you watch the video."

The image of a shrunken and feeble man filled the screen, the digital date, 4/20/90, stamped in a bottom corner. The jurors remembered seeing this video months before, but perhaps Puente's former tenant now seemed frailer than ever. They heard George Williamson and Kevin Clymo question the old man in turn, and they heard him respond in a barely intelligible rasp. On the tape, Kelley said he'd repeatedly asked Dorothea for Dalmane to help him sleep. At first she'd refused, but finally gave him a couple of pills.

Kelley recounted life at 1426 F Street, but what he said was less important than how sick he looked. Though only sixty-three, the man looked as fragile as ancient parchment.

After half an hour of Kelley's sickly image, Clymo stopped the tape and again addressed the jury. "Just consider," he said thoughtfully, "if the cancer ran its course, as we know it did, and Julius Kelley was found buried in the yard, don't you think he would be
count ten?"

The jurors sat up straighter in response to Clymo's logic. A sick old guy with a regular check dies, and Dorothea makes a space for him in her own private cemetery.

Clymo continued in this vein, "When the toxicological testing was done, wouldn't they also find Dalmane in his system?  He asked for it to help him sleep, but he didn't have a prescription for it."

If Kelley had died at the boardinghouse, if he'd indeed become count ten, "Dr Anthony would have been in court testifying to the autopsy results, testifying to the toxicological findings, and you would have heard that Julius Kelley had Dalmane in his tissue, in his liver and his brain, and he had no prescription for it.”

"How often," he asked rhetorically, "had that scenario played out?"

Clymo invited the jury to remember some of the earliest testimony about Bert. "Remember Bill Johnson? With the big beard? Remember how emotional he got talking about Bert? Bert was his buddy, he checked up on Bert." Clymo smiled. "One thing that Bill Johnson knew about Bert Montoya was that he had this peculiarity, he was
nocturnal.
He would walk around at night, and he would do his talking to his spirits at night. He didn't sleep. When everyone else would sleep, he would be up all night.”

Johnson had indeed said this.

"Isn't it just as reasonable to conclude that that's why Dorothea Puente sent him over to Dr. Doody with a note:
He doesn't sleep, give him some Dalmane
?"

Could this be true? Had Dorothea Puente only handed out a couple of pills now and then to help her tenants sleep?

At the start of the day, no one thought Kevin Clymo had a chance
to save his client. But with the gravely ill visage of Julius "Pat" Kelley, he'd done the impossible: He'd raised the nagging concern, the active worry, that Dorothea Puente might actually be innocent.

The next morning, characterizing the prosecution as desperate for a cause of death, Clymo launched a scathing attack on the "incredibly exceptional" handling of the tissue homogenates
,
and on James Beede. He pointed out discrepancies in the results found by the three labs that had tested the samples. And he claimed that, having failed to find a cause of death, the prosecution had shopped from lab to lab until they'd received the findings they were hoping for.

Further, he suggested that James Beede was responsible for the Dalmane that registered in the DOJ's high-tech analyses. "We're not talking false reading," Clymo said ominously. "We're talking contamination.
Proven, known contamination.
Somehow, cocaine ends up in Ben Fink's tissue sample. Bill Phillips [of the DOJ] proved for me that the samples that were prepared by James Beede were contaminated.” He paused. "What do you do with it? I don't know. You consider it.”

Pacing, Clymo continued,
"I cannot prove to you that all of these samples got contaminated with Dalmane, but I know that it has been proved to you that they possibly could have been. And bingo," he said sarcastically, "we got a cause of death."

He pitted Dr. Baselt against Dr. Anthony, stating that his expert had broader experience and greater credibility. But, even granting that Dr. Anthony was an expert in his field, Clymo asked, "How many times did you hear him tell you, when you are talking about decomposed tissue, everything goes out the window?"