Grant of Immunity (22 page)

S
ean met
Fitz at a public defender hangout, Casa José, a Mexican restaurant one block from the courthouse on Van Nuys Boulevard. The two of them sat at a table, eating chips and salsa. Sean filled their chilled mugs from a frosty pitcher of Budweiser.

“Reynolds would be pissed off if she knew we were meeting,” Fitz said.

“Screw her,” Sean replied.

“My feelings exactly,” Fitz said, smiling. “After I finished my testimony today, she told me to get lost. She wanted to spend the evening coaching Babbage, and she thought I’d cramp her style. There’s something weird between them. For her, Babbage can do no wrong. When I tried to reason with her, she came unglued.”

“The word among the PDs is that she has a thing for cops,” Sean said. “There’s a rumor, she’s slept with every detective in Van Nuys.”

“I can believe it,” Fitz said. “Makes me glad I’m assigned downtown.” Fitz grinned, then turned serious. “What did you think of my testimony?”

“Very professional,” Sean said. “I was looking at the jury, but I really couldn’t tell what they were thinking. Reynolds, though, is another story. She’s out of control.”

“She’s a pistol, all right. But it doesn’t look like Fields is going to take much shit from her.”

“That’s one advantage of having an Orange County judge,” Sean said. “Her threats mean nothing to him. When this trial is over, he’s out of here. He won’t care whether the LA deputy district attorneys like him or hate him.”

The waiter, a tall, skinny kid Sean recognized as Mike, the owner’s son, placed dishes heaped with steaming chicken fajitas, rice, beans, and tortillas on the table between them. “Careful, they’re hot,” he said.

Sean put a tortilla on his plate, piled on chicken, rice, and beans, and then folded the tortilla gingerly, before taking a bite. Fitz did the same.

Sean looked at Fitz. “I’m sorry I didn’t tell you about my switching sides and joining the defense team.”

“It’s okay,” Fitz said. His eyes were bright. “How are you doing on viewing the evidence? I was a little worried about the photo today.”

“I can handle it.” Sean replied. “It was difficult at first, but …,” Sean’s voice broke and he didn’t finish. He took a long gulp of beer.

Fitz nodded and looked at him sympathetically, and Sean felt guilty. All of his life, Fitz had been there for him, believing in him and being available whenever Sean needed him. And now when it had mattered most, he’d let Fitz down by not talking to him before making the decision.

The two men ate in silence for a time. “What exactly does Jordan have you doing?” Fitz asked.

“Not much, mostly going over testimony and running errands.” Jordan had given Sean strict orders to say nothing about Hart’s case. Sean was to meet with Fitz to determine exactly where Fitz stood. And if possible, to find out if there were any upcoming prosecution surprises—all without giving Reynolds any information about the defense.

Fitz drained what was left in his mug. “Tomorrow, “ he said, “the pathologist, Crowlich, is going to testify.”

Sean blinked. It was as if Fitz had read his mind. “Is he any good?”

“The best,” Fitz said. He turned and looked around the restaurant, then lowered his voice and said, “Reynolds has something planned.”

“With Crowlich?” Sean asked.

“No. A clincher witness. Or as she says, the deadbolt lock to Hart’s lifelong cell.”

Sean thought he misheard. “What?”

“She won’t tell me who it is. Says she doesn’t trust me not to tip you off.” Fitz grinned knowingly. “She’s no fool, and neither am I. But I think I know who it is. She’s—” Fitz looked up.

Mike had come up to their table. “You guys want anything else?”

Fitz shook his head. Mike put the check in front them and walked away.

Fitz said, “She’s been talking to the Biotech Markers people—crime lab guys. Says they’ve got some kind of match, but it’s preliminary and they need to explain.”

Sean’s spirits sank.
If Hart’s DNA comparison is positive, then I’m the fool
.

A
manda Jordan was sitting
at her desk in her office—jacket off, surrounded by law books and police reports—when Sean arrived. “Where’s our client?” Sean asked.

“I told him to go home and get some sleep. He’s meeting us tomorrow morning in the courthouse cafeteria. What did Fitzgerald have to say?” Before Sean could answer, Jordan asked, “Who’s our next witness?”

“The coroner. But—”

“Thought so,” Jordan interrupted. “It’s going to be an important day.” Jordan picked up a document that Sean recognized as the coroner’s report. “Something in here caught my attention. It might be the key to a dismissal by the court.”

Sean reached for the report and began to scan it. “What is it?” As distasteful as it was for him, he’d read it again and again, and had not uncovered anything inconsistent with Babbage’s testimony.

“Let’s see how the testimony plays out. It could be nothing, so I’d rather not tell you just yet. If things go the way I think they will, I’ll need your reaction, and I’d like it not to be tempered with previous knowledge.”

Sean nodded, wondering what Jordan could have discovered. Maybe it was related to Reynolds’s secret witness. “Does it have anything to do with Biotech Markers?”

“Not at all.”

“Because,” Sean said, “Fitz said Reynolds has a surprise witness.”

“What?”

“Fitz thinks it has to do with the comparison of Babbage’s and Hart’s DNA.”

Jordan stood, walked over to the floor-to-ceiling window at the side of her desk and stared out into the night sky. “It could be one of Reynolds’s ploys. She knows how close you and Fitz are.”

“Fitz overheard her talking to Biotech Markers lab people. Something about a match. Something they need to talk to her about.”

“Reynolds can’t withhold favorable evidence from us—that’s clear Brady error and automatic reversal on appeal,” Jordan said.

“I think she’s going to wait until the last minute to spring incriminating results on us. Maybe we can get Fields to suppress it,” Sean said.

Jordan walked back to her desk and sat, considering.

Sean became aware of the tick of Jordan’s grandfather clock.
God
, he thought,
Reynolds is ruthless—willing to do anything to get a conviction
. “Doesn’t she have to give us the results as soon as she learns of them?”

“That’s what she’s been ordered to do.”

“Why don’t we just subpoena the lab results?”

“That’s what she wants us to do. If they’re positive for Hart, she’ll nail us.”

“But don’t we have to assume that Reynolds knows the results, and if they’re positive for Hart, she’ll use them?”

Jordan shook her head. “I’ve been opposing her for years. And I’m convinced of one thing: When it comes to Reynolds, we can’t assume anything, except she’ll do whatever she needs to win her case, ethical or not. We’ve got to make this decision independent of her. The stakes are too great to gamble.”

“I say we should subpoena the results. If they’re negative for our client, it proves once and for all that Babbage lied.”

“I don’t agree,” Jordan said.

“But Babbage also said that he saw Hart getting a blowjob, and my mom spitting afterwards.”

“That doesn’t necessarily mean Hart ejaculated,” Jordan commented.

“But doesn’t that suggest he did?” Sean said. “That’s significant, isn’t it?”

Jordan shook her head. “There could be any number of reasons why she would spit—she could have gagged and regurgitated. All it means is that it will be a question of fact for the jury to determine—did she spit, and if so, why? If not, did Babbage lie?”

Sean grimaced and shook his head. “Okay, I get it. Without DNA results, we are still left with Babbage’s claims being just that—unconfirmed accusations. But if DNA tests show the ejaculate in my mom’s mouth came from Hart, Babbage is corroborated and the court can and will probably use Babbage’s testimony to convict Hart.”

“Exactly,” Amanda said.

“But Hart swore to me that he did not ejaculate, and I believe him. So, if the DNA results are positive for Babbage and negative for Hart, Babbage looks like the murderer, doesn’t he?” Sean asked.

“Two problems with that analysis,” Jordan said. “First, it proves nothing, because Babbage admitted to having oral sex.”

“Maybe,” Sean said. “But it sure makes Babbage look guilty, and doubly reduces his credibility. What’s the second problem?” Sean asked.

“As you know, Reynolds, as the prosecution, has the burden to prove her entire case beyond a reasonable doubt before she can rest, and before we have any obligation to present our defense. And once she rests, Penal Code Section eleven-eighteen-point-one allows us to ask the judge to dismiss the entire case on the grounds that the prosecution failed to meet their burden. If we were to win that motion, the case would be dismissed and never go to the jury.”

“Right,” Sean said.

“But if Reynolds rests without offering the DNA test results, we won’t be able to mention the DNA results when we make our motion asking the court to dismiss the entire case. So, at a time when we need the results the most, the time when we make our motion to dismiss, we can’t use them.”

“Unless,” Sean said, thinking out loud, “Reynolds stipulates that we can call the expert during her case. Or stipulates that our results are valid.” He took a breath. “But Reynolds won’t stipulate to anything,”

“Exactly. That’s our second and greatest problem,” Jordan said.

D
espite his outward
bravado to Fitz, Sean was anxious about the pathologist’s testimony. Sean had nightmares after seeing the murder book photos and reading the crime report, and now he worried that the awful things he was about to see and hear would further destroy the memories he had of his mother.

He watched as Dr. Ethan Crowlich, MD, deputy medical examiner and pathologist, a white-haired, professorial-looking man, was sworn. The physician wore a wool gabardine three-piece suit that was somewhat out of style. In his hand he held a manila file as he stood facing the courtroom clerk and took the oath.

“Doctor Crowlich,” Doris Reynolds began, “I’d like you to remember back to an autopsy that you performed nineteen years ago.”

Having taken his seat, Crowlich removed his rimless glasses and looked through a file folder he’d brought to the witness box. He put on his glasses and looked at Reynolds. “Actually, I have no present recollection of that autopsy. I did bring the report, however. If you’ll allow me, I can refresh my recollection by looking it over.”

“Please do.”

Sean took a breath and held it.

Crowlich removed his glasses and studied the report—then he looked up and put on his glasses again. “According to the report, our investigator, Paul Krause, was the first person from the Medical Examiner’s Office to arrive on the scene. It was about eleven. He was led to the site where the body had been found. He made preliminary measurements on the body and gathered forensic evidence.

“The body had not been moved or touched but had been photographed by the police. As was his routine, after visual inspection and note taking, Krause put a thermometer into the decedent’s liver and determined from its temperature that she had been dead for more than eight hours.

“Using cotton swabs, he took fluid samples from her mouth and vagina, as well as a series of blood samples from surfaces on the body. He observed what looked to him to be a semen-like substance in the victim’s mouth. There appeared to be no such semen-like substance on or in the vicinity of the victim’s vagina. I performed an autopsy on the decedent the following morning.”

“Who was present during the autopsy?” Reynolds asked.

“Just Detective Fitzgerald and myself. And a photographer, of course.”

“Please describe your observations, Doctor.”

“The body appeared to be that of a healthy, well-nourished female Caucasian, approximately twenty-two years of age, sixty-seven inches in height, approximately one-twenty-five pounds. In the facial region, I observed contusions on the decedent’s left cheek.”

“Could you tell what caused this?”

“It appeared to be some sort of blunt force trauma, consistent with the use of a hard object. Probably a fist.”

“Could you estimate the age of the trauma?”

“From its color, I would estimate that it occurred very close to the time of death.”

“What do you mean ‘close to’? Within minutes? Hours?”

“I can’t be exact,” Crowlich said. “The best I can say is that it occurred sometime within two hours of death.”

Sean could feel his face burning and hoped it didn’t show. To distract himself, he looked over to Hart. It was obvious that the descriptions were having a profound effect on him, also. Pale, he looked not at Crowlich, but at a spot somewhere above the pathologist’s head. As a deputy DA, Sean thought, Hart must have heard this type of testimony many times. But now, Crowlich was describing not just some case, but the event Hart had told Sean he’d agonized over for almost twenty years. Was he re-experiencing the ordeal of that night?

Jordan had cautioned Hart not to show emotion during this testimony. “Do anything to distract yourself,” Jordan had said. “Stare at Crowlich and think about law school. If all else fails, take copious notes on your legal pad. Whatever you do,
don’t
look at the jury. But then, from your trial attorney and judge experience, you know that jurors don’t like people staring at them. Even though lawyers do it all the time as they present their case, to get the jurors’ reactions to a question, or to communicate with them using body language.”

Reynolds continued to ask questions. “What else did you observe, Doctor?”

“The rest of the face appeared unharmed, indicating a single blow. I observed a series of small one-half- to one-inch cuts, starting slightly below the neck and covering the decedent’s shoulders and breasts.”

“Could you tell what caused these cuts?”

“Some sort of sharp instrument. Probably a knife.”

“Did you measure the depth of these wounds?”

“Yes. Most were less than one inch deep and were not life threatening. Three of the wounds were quite deep, three to eight inches.”

Reynolds picked up a large cardboard chart. On it was a front-view, generic diagram—an outline of a person, showing the head, torso, legs, and feet.

After it was accepted as People’s Exhibit 1, Fitzgerald helped Reynolds mount the large chart on a board close to the witness box. Reynolds walked over to the mounted chart. Within the body outline were various markings. “Doctor Crowlich, referring to this chart, People’s One, have you seen this before?”

“Yes, I have.”

“Could you tell the court and jury what it is?”

“Yes. This chart is a blowup of a diagram I prepared when I performed the autopsy.”

“Will you explain it please?”

Crowlich took a pointer from the side of the witness box. “This is the approximate location of the blunt force trauma to the victim’s cheek.” Crowlich pointed to an X on the diagram. “Here are the one-half- to one-inch cuts consistent with the use of a knife.” He pointed to a series of marks over the shoulder and neck area of the diagram.

“Doctor, do you have an opinion as to the type of knife used?”

Crowlich considered. “Judging from the largest and deepest wound, I would say the instrument was some sort of very large knife with a hand guard. The blade width estimated to be approximately one inch at its hilt, possibly seven or eight inches in length.”

“How are you able to determine the presence of a hand guard?”

“The guard prevents the perpetrator’s hand slipping from the handle to the blade of the knife. When the instrument was at its full depth, the hand guard made an impression on the victim’s body. This also explains the lack of any foreign blood at the wound.”

“Returning to your diagram, were the shallow wounds life threatening, Doctor?”

“I would not say so, no,” the doctor said.

“Would they be painful?” asked Reynolds.

“Yes.” Crowlich replied.

Sean felt his stomach turn and for a moment, he thought he might vomit. He was afraid he might have to get up and leave.

“What about these four wounds, Doctor?” Reynolds pointed to four Xs in the left breast area.

“Those are quite serious.” He motioned with the pointer to the second from the right. “Particularly this one.”

“That particular one is an injury directly on the nipple, is it not, Doctor?”

Crowlich nodded. “It appears to be.”

“What about these wounds, Doctor?” Reynolds pointed to a cluster of Xs at the lower abdomen.

“Those appeared to be postmortem,” Crowlich replied.

“How could you tell?”

“Investigator Krause’s report indicated no blood surrounding the wounds in that area, meaning the heart was not beating to pump blood to the injury.”

“Anything else that you observed that was significant, Doctor?”

“The rest of the body was unremarkable, except for bruises on the wrists and abrasions at the waist, outer thighs, ankles, and feet.”

“Any other observations?”

“Only that I noted the presence of semen in the victim’s mouth.”

“Anywhere else?”

“No.”

“Doctor, based upon your observations, do you have an opinion as to the cause of death?”

“Yes. The victim died as a result of this wound.” Crowlich pointed to the X that was over the left nipple. “Here the instrument was plunged full depth, piercing the heart. Altogether, there were a total of four fatal stab wounds.”

“In your opinion, was this a painful death, Doctor?”

“Excruciating. The series of shallow wounds inflicted a great deal of pain prior to the delivery of the fatal wounds.”

Sean felt rage overwhelm his nausea.
What kind of man could do these things to my mom?
he thought. He looked at Hart, who appeared to be struggling to retain composure, his face drained of color. No, Sean thought,
Hart could never do such a thing
. He looked at the jury. They were grim. One of the women was ashen; another was on the verge of tears.

“Do you have an opinion as to whether there had been a sexual assault prior to death?” Reynolds asked Crowlich.

“I cannot say for sure. However, the presence of the contusions on the cheek, coupled with the presence of semen in the decedent’s mouth are consistent with forced sexual activity.”

“Thank you, Doctor. I have no further questions at this time, Judge.”

“Ms. Jordan, you may cross-examine,” said Judge Fields.

As Jordan stood, Sean wondered what it was in the coroner’s report that Jordan thought could lead to dismissal.

“Were there any cuts or injuries to the palms of the decedent’s hands, Doctor?” Jordan asked.

“No, there were not.”

“Is that significant?”

“It was … interesting in light of the other wounds.”

“Why is that?”

“Normally one would expect wounds to the palms of the hands. Such wounds are common with stabbing victims. They indicate that the victim was alert and aware during the attack.”

“How so?”

“Stab victims typically try to protect themselves with their hands. The absence of stab wounds on the palms of the hands suggests that the victim was either unconscious or that her hands were restrained. The contusions on the wrists suggest there may have been an accomplice holding her wrists while the stab wounds were inflicted.”

“Yes,” Jordan said, nodding. “Thank you, Doctor. I have no further questions at this time, Your Honor,” Jordan said.

The judge looked at Reynolds, who shook her head. “I have nothing further to ask,” she said.

“Very well,” Fields said. “Doctor Crowlich, you are excused. We’ll take our luncheon break at this time. Court’s in recess.”

Well done, Amanda
, Sean thought. He now understood what Jordan had noticed in the autopsy report.