Final Analysis (34 page)

In addition, there was also the “distribution” and “multiplicity” of the stab wounds coupled with “the relative position of the two combatants.” Blood from Felix’s chest and upper thighs had flowed to his knees, but not his shins, supporting his claim that Susan was under Felix during the attack. Furthermore, Cooper pointed out that the county’s medical examiner would have found evidence of blood flowing down the back of Felix’s head and neck if he had been struck first on the head by Susan that night. He called the State’s theory that she had initiated the attack with an incapacitating blow to the head “a bogus suggestion,” noting that Felix’s head wound lacked bruising.

The pathologist agreed with Susan’s assertion that Felix’s body was moved after his death, evidenced by blood smudges found on the floor near the corpse. This comment drew objections from the prosecutor, who took issue with the scope of Dr. Cooper’s testimony. Sequeira argued that while Cooper was qualified to render medical findings, he was not an expert in criminal investigations and should not be espousing theories as to how the crime played out. Judge Brady agreed with Sequeira and sustained the objection.

In the minutes before court ended that Thursday, Dr. Cooper made a stunning admission: He did not write a report of his findings, nor did he have any notes to turn over to the prosecutor. Essentially, he had come to court without any of the supporting materials he had used to render his expert opinion in the first-degree murder case.

“Once one knows the truth of the case, one does not need to remain neutral,” he told Sequeira. “One goes with the truth.”

Sequeira’s frustrations, which he had previously directed only at Susan, came out, as his patience with Dr. Cooper disappeared. The
prosecutor retorted, “You don’t think it’s not good professional practice to write a report so people can review what your findings are in a murder case?”

Dr. Cooper challenged Sequeira to “subpoena” him, claiming he had not prepared a written report for fear that it would be used as a tool to prevent him from testifying. He also noted he had not been asked by the prosecutor to prepare one.

“I don’t consider it appropriate for you to know all of the details of what I’m going to testify to,” Cooper added.

The discussion was clearly becoming a problem. Sensing a number of issues with Dr. Cooper’s testimony, Judge Brady intervened, halting the cross-examination and clearing the jury and the witness from the courtroom. She informed Susan that protocol required expert witnesses to provide the other side with supporting documents used to render a decision in a case. Susan told Brady that she hadn’t made copies of her written correspondence and claimed there were no notes. When Brady appeared skeptical, Susan launched into a frenzied attack, repeatedly cutting the judge off mid-sentence and accused her of being “wrong.” Ultimately, Judge Brady sided with Sequeira on the matter and ordered Dr. Cooper to produce his report based on the evidence the next morning.

The following morning, Dr. Cooper failed to produce the discoverable materials he had used to prepare his testimony. Brady demanded an explanation. Initially Dr. Cooper claimed to have left them on the plane—after telling members of the court that he had driven up from Texas to testify on Susan’s behalf. He then suggested that a burglary may have occurred in his motel room. From the witness stand, he said that at one point during his stay, he returned to find the door to his room stuck shut, leading him to suspect a thief. Perhaps the documents were among the items taken, he put forward.

Judge Brady was incredulous. “I must admit I am very troubled by the turn of events this morning. Don’t you have copies in your office?”

Dr. Cooper’s answer was vague, and after some back and forth, he suggested the materials could be at his home in Austin.

“Are you married?” the judge inquired.

“Yes.”

“Then have your wife FedEx them to court,” Brady suggested.

“Um. My wife is out of town,” the expert replied.

“Do you have pets?”

“Yes, dogs.”

“Who is feeding the dogs?” the judge asked.

“Um…I don’t know.”

“I don’t believe you and order you to have the letters faxed to the court by Monday.”

It was then that Paul Sequeira lost his temper. The prosecutor, who for weeks had tried to keep his composure, rose to his feet and launched a formal complaint, saying that through all of Susan’s continued attacks and outbursts, he had done his best to remain in control. “But this latest shenanigan is unacceptable,” he remarked. “How is this happening? This is outrageous! The witness is going back and forth on the existence of these letters. Not only that, but he’s testifying way outside the area of his expertise. He’s creating verbal crime scene reenactments for the jury.”

While Sequeira was criticizing Susan and her witness, Susan attacked Brady’s ruling regarding the papers. In Susan’s opinion, she should not have to provide the prosecutor with the disputed papers if he did not explicitly ask for them beforehand. In addition, she also disputed the judge’s assertion that the laws of reciprocal discovery covered the materials, arguing, incorrectly, that discovery “is a relatively new concept and still being developed.” Susan claimed that Dr. Cooper’s testimony “was completely independent, unbiased, and neutral, and she attacked the prosecutor, calling him a ‘cry baby.’

“He doesn’t like Dr. Cooper’s testimony, so he does a little dance in front of the media and says I’m in violation of discovery,” Susan quarreled.

“I want you to listen to me, Mrs. Polk,” Judge Brady intervened. “If you make any more insults, I will sanction you.”

Despite the threat, it was not immediately clear what the judge had in mind. The situation embodied the paradox that the judge faced throughout the trial: Susan was already in custody, so what other punishment could Brady hand down? It was a difficult situation for Brady, but it was becoming increasingly clear that Susan needed to be reigned in. Susan’s respect for the court had been far from exemplary, but now her witnesses
were giving testimony that seemed dangerously close to perjury, conduct that could produce serious consequences for Susan.

M
onday morning, Judge Brady made an announcement. Out of the presence of jurors, she informed the court that Susan’s expert witness had “skipped out” on the trial. “He is indicating not only is he not going to return, but he will be unavailable by telephone for this week and he will be traveling,” Brady said, referring to a three-page e-mail she received from Cooper over the weekend.

“In all my years that I’ve been doing this, I have never heard of anything like this before,” she added. “I’ve never had an expert witness take on the role of an advocate and then indicate he has chosen not to come back—that is just not an option.”

Like Judge Brady, Sequeira also expressed his shock after reading the letter that day. “I’ve never seen an expert run off like a scared rabbit before he is cross-examined.”

Cooper cited “the hostile behavior of the prosecuting attorney” as a key reason for his decision to withdraw from the case. “It was regrettable that I was unable to fulfill my designated role in the case during the week I had set aside for it,” he wrote in the letter that was made public later that afternoon. Dr. Cooper told Judge Brady that it was a “pleasure” to appear in her courtroom and assured her that his grievances were not “in any way intended to reflect unfavorably upon the Court…. I hold Mr. Sequeira completely responsible for last week’s debacle. Perhaps he has forgotten that justice isn’t always about winning.”

Cooper charged the prosecutor with crafting a “dramatic smokescreen about some discovery issues that have no bearing on the physical evidence and certainly have nothing whatsoever to do with the fact that an innocent woman is being held on false charges.” He also expressed “outrage” at the county medical examiner, Brian Peterson, accusing him of “irresponsible, unprofessional, and to my way of thinking, immoral conduct.

“Allow me to review the facts as I see them: Susan Polk is on trial for murder because Dr. Brian Peterson…saw fit to present a distortion
of the autopsy evidence to the Coroner, to the District Attorney’s office, to the Grand Jury, and ultimately to the trier of fact in a murder trial.” Dr. Cooper wrote. “Not only has Mrs. Polk been indicted on false pretenses, but she has also suffered from protracted false imprisonment and estrangement from her sons as a result of Dr. Peterson’s false representations.

“I see this man to be nothing more than a public menace,” Cooper said of Peterson.

Meanwhile, Judge Brady informed jurors that morning that a “scheduling issue” had arisen, and the court would hear from Dr. Cooper at a later date. Court officials had reached the runaway pathologist by phone and, after advising him of his obligation to come back to court to finish his cross-examination, set a date of May 16 for his return.

In the meantime, Susan called her first hostile defense witness, Gabe’s foster mother, Marjorie Briner. She believed that Briner and her husband, Dan, had “brainwashed” Gabe into testifying against her. Now, she was anxious to paint the middle-school teacher as a member of a money-hungry conspiracy out to rob the Polk estate.

“I have not gained a single cent from your estate,” Briner insisted during a testy exchange. She also balked at Susan’s claim that she had turned Susan’s children against her by labeling Susan as “crazy and delusional.”

“From the very beginning, Dan and I tried to stay as neutral as possible,” Briner replied. “I tried never to use those words. Because those were words that made you very upset.”

Polk and Briner repeatedly interrupted one another, prompting the court reporter to insist they halt the cross-talk so she could transcribe all of their remarks.

“Mrs. Briner, have you ever heard of Pinocchio?” Susan asked.

Briner insisted that she had “nothing to gain” by testifying against her.

“Nothing?” Susan was incredulous. “Didn’t I put you on notice that I was going to sue you for fraud?”

Smiling, Briner acknowledged that fraud was among the threats Susan had made over the months.

“And wouldn’t a guilty verdict get you off the hook?”

During the heated examination, Susan accused Briner of perjury, in response to the schoolteacher’s claim that Susan had been verbally abusive during phone calls and in letters she sent from jail. Furious, Susan commanded Briner to sift through two mountainous stacks of letters that sat before her on the wood railing and point out an instance of “verbal abuse.”

“We haven’t even come close to the area of inquiry I’ve allowed,” Judge Brady admonished. “Move on, this is not relevant.”

“I object,” Susan shot back. “Perjury is always relevant.”

Week three of Susan’s presentation also included testimony from a former colleague of the slain therapist and a former patient who had participated in his group therapy sessions with Susan thirty years earlier. While their brief time on the stand bolstered Susan’s portrayal of Felix as a controlling husband, her monotonous questioning diluted the effectiveness of their testimony.

Psychotherapist Karen Saeger, a former colleague of Dr. Polk’s at the California Graduate School of Professional Psychology, testified to “two Felixes.” “One was tightly coiled like he could spring at you; the other was charming and charismatic,” she said. Saeger claimed that Polk had a “widespread reputation” at the college for his “taboo” relationship with his patient/wife.

Afterward, Kathy Lucia told jurors of Susan’s dependence on Felix during their group therapy sessions at his Berkeley office in the early 1970s. “He was trying to control you, I felt,” Lucia said in response to Susan’s questions.

Unlike her mother or Eli, Saeger and Lucia were two seemingly objective witnesses, who supported Susan’s claims concerning inappropriate treatment that she had suffered in Felix’s hands—especially during her young, vulnerable years. Indeed, it was on this issue that Susan should have pressed harder. At times, it appeared that she failed to realize the chord of sympathy that she could have struck with the jury had she focused on Felix’s emotional manipulation of her at a young age. Regardless of his alleged abuse, he had clearly violated professional and ethical standards in his treatment of Susan, and this behavior left his character open to question. Unfortunately, Susan found it difficult to exploit this
weakness, as her evidence about Felix’s behavior often became muddled in her confused accusations of abuse and conspiracy.

By Thursday, the jury had still heard very little testimony relevant to the murder charge when Susan recalled her son Eli to the stand to refute Marjorie Briner’s testimony.

“Is she a liar?” Eli responded to his mother’s inquiry. “That’s just an understatement of her character. She is disgusting, what she’s done.”

Week four got underway with Susan’s list of witnesses interrupted once again by testimony from her “runaway” forensic pathologist, John Cooper. Dr. Cooper returned to court on May 16, and delivered portions of his case file to Judge Brady. After a review of the documents, Brady turned over in excess of fifty pages of documents to the prosecution, holding back portions she ruled to be Susan’s “work product.” Among the materials was a letter Susan sent to Dr. Cooper from jail that detailed her version of the events of October 13, 2002, and was accompanied by a rough sketch. Excerpts of that letter were read aloud in court and released to the public later that day.

Sequeira’s cross-examination of Dr. Cooper focused on the witness’s prior courtroom conduct and his contradictory conclusions regarding the County’s autopsy report. The nondescript carpet muffled the clicking of his cowboy boots as he strode to the witness box that Monday as courtroom spectators poked fun at the Hawaiian shirt beneath his dark suit and tie.

Dr. Cooper was again defiant as he faced off with the prosecutor that morning, repeating his conviction that the murder charges against Susan Polk were “false.” He told jurors that an “injustice” was being carried out in Contra Costa County and he could no longer remain a neutral witness.

“You haven’t sat here and heard all the evidence,” Sequeira rebuked. “You don’t know if she’s being held on false charges.”