If You Only Knew (25 page)

CHAPTER 62

PISZCZATOWSKI BEGAN WITH A
question about the doctor's “initial external examination” of Don's corpse, pointing out for jurors how the ME “never performed an autopsy” on Don.

Ortiz-Reyes agreed, of course.

It was important for the lawyer to get that out there, clear and concise as possible.

No autopsy.

From there, Piszczatowski went over the exact series of events as Ortiz-Reyes had just described for the APA: body on Saturday, staff meeting on Monday, toxicology report changing opinions. The defense attorney highlighted how those opinions were changed again “without conducting an autopsy” when the TPD called.

“Yes,” the doctor said.

They discussed the level of alcohol in Don's system. Then Piszczatowski read a statute written for the state of Michigan that explained when an autopsy should be conducted, but Ortiz-Reyes corrected him by saying the statute didn't specify “autopsy.”

It specified “investigation.”

There was a difference.

The statute also required, Piszczatowski explained, ignoring his own mistake, that the medical examiner is warranted by the state to issue a permit before a body can be cremated.

“Yes,” Ortiz-Reyes said.

Piszczatowski then offered as an exhibit to the court the permit for cremation in Don's case, which the ME's office had given Billie Jean. But just then, as the lawyers started to argue this point, the judge allowed the jury to be cut loose for the day (it was late, anyway), so the attorneys could, in Judge Potts's words, “tidy up a few things.”

Which they did in a matter of a few minutes.

Piszczatowski was now clear on how he could continue down the road of that supposed permit.

Yet, the day—and testimony for first week of the trial—was over.

CHAPTER 63

AFTER THE WEEKEND BREAK,
on December 3, 2001, Dr. Ortiz-Reyes was back in the witness seat answering questions from Billie Jean's sharp, prepared lawyer once again.

Piszczatowski started off the new week on the alcohol levels and the testimony balanced uneasily on that fence of boredom. One can only beat a drum so long before the tune starts to get old and overstated. There was a fine line. Piszczatowski was close to crossing it.

Piszczatowski kept referring to the work of the ME's office as an “autopsy.”

Ortiz-Reyes kept correcting him, saying they never conducted an autopsy. It was an “examination.”

A point the defense was able to bring out was that Ortiz-Reyes and the ME's team signed off on Don's body for cremation on August 16, 2000, four days
after
his body had been brought in and several days
after
it had been released. To Piszczatowski, this was significant. It meant there had been plenty of time for the office to make its determinations about how Don had died and it allowed Don's body to be, essentially, destroyed.

Why?

Because they didn't think they'd ever need to look at it again.

For the next hour, Piszczatowski produced reports and toxicology tests and asked the doctor about his and the ME's office's findings—which routinely came back to the same cause of death: heart attack and/or acute alcohol poisoning. Then he began to pepper the doctor with simple questions that pointed to the idea that the ME's office had ample opportunity to conduct an actual autopsy, but Ortiz-Reyes, on that Saturday, chose not to do so.

All that the doctor could answer was “yes, yes, yes,” over and over.

They talked about the lighting inside the morgue on that Saturday.

It was adequate.

They talked about how Ortiz-Reyes could “touch” the body.

Yes, he was that close to it during his examination.

They talked about the fact that Ortiz-Reyes could get “as close to the body” as he wanted.

Again, his answer was yes.

They talked about how Ortiz-Reyes could have done whatever he had wanted to Don's body at that time, including a full autopsy, and that it was his decision alone.

Of course, he could have, Ortiz-Reyes said.

They spoke of how Ortiz-Reyes had made notes about Don's eyes, specifically his “cornea” and how they weren't remarkable in any way.

Ortiz-Reyes said yes again. Unremarkable eyes, totally.

They talked about the fact that Ortiz-Reyes investigated the inside of Don's mouth.

He found nothing.

They talked about Don's neck being “unremarkable.”

Nothing there, either.

They talked about how Don's chest was—you guessed it—“unremarkable.”

The point here for the defense was that Dr. Ortiz-Reyes had conducted a pretty damn thorough examination of this man on that Saturday and did not find anything whatsoever to indicate foul play.

“And would it be fair to say that the body . . . of Donald Rogers showed
no
evidence of bruising at that time?”

“I didn't say that,” Ortiz-Reyes balked. “There were old bruises around the left eye socket.”

“O-o-o-kay,”
Piszczatowski said, drawing the word out, kind of hinting to the fact that the doctor did not mention any abrasions on Don's nose. Those came later.

Piszczatowski could have questioned Ortiz-Reyes all day and perhaps had gotten him to admit that the office believed nothing out of the norm when this old man came in and it was believed he had died of a heart attack. The message for Piszczatowski was quite simple in that regard: reasonable doubt, reasonable doubt, reasonable doubt.

As Piszczatowski wound down his superb cross-examination, he had Ortiz-Reyes point out by the answers he gave that the office came to its “asphyxiation” determination slowly, over a period of time. And came to this conclusion only
after
the detectives pointed out what had been noted by a witness and then they relooked at the photos of Don's face and—
aha!
—saw that there were abrasions on his face to match what the witness had said.

Ortiz-Reyes even implied that it wasn't until they got a magnifying glass out and studied the photos that they saw the abrasions, adding how, yes, they can sometimes be that small. But the size doesn't change what the evidence suggested.

By the time they got to the end, Ortiz-Reyes was using the phrase “it is our opinion” a lot of the time when he answered. It was the opinion of the ME that this and that took place, based on all of the information the office had received during the entire investigation.

In his defense, Ortiz-Reyes held his ground fairly well, explaining that they always defer to several sources when making a determination of death by homicide. It's not something the office takes lightly or comes to easily, maybe like a heart attack. Just because some cop comes up with a theory, it doesn't mean the ME is going to back him, in other words. Ortiz-Reyes mentioned how it wasn't only the abrasions that swayed them, nor was it the new information by the TPD. It was, in fact, the totality of it all, plus what the ME himself found within the toxicology and the study of available documentation and photographs.

Accept it or not, that was how it happened.

Before long, they got on the subject of alcoholics and how people that drink a lot routinely fall down and bruise themselves. Piszczatowski made a point that maybe that was where Don's abrasions and bruises had originated.

“Alcoholics tend to fall all the time,” Ortiz-Reyes agreed. “That's the reason they have old bruises, new bruises, black eyes. You can see all kinds of injuries in an alcoholic. . . .”

“And there's no absolutes—is that correct?”

“No.”

“So you can't say they would or they wouldn't, but you're just saying that it's
more
likely?”

“Yes.”

“And is it also whether someone gets injured, if you will, when they fall, does it depend, for example,
where
they fall?”

“Yes.”

The gist for Piszczatowski, which he then explained by bringing into the conversation some photographs, was that there was nothing within the photos of Don's home or Don's body that would or could indicate how “he fell or how he came to rest on the ground.”

Ortiz-Reyes agreed there wasn't.

Piszczatowski asked if there was anything indicative in Ortiz-Reyes's opinion that the “manner and cause of death in this case, on those photos alone, was a homicide, as opposed to an accidental death or natural?”

“No.”

Piszczatowski was on a roll. He then got Ortiz-Reyes to say that Don had no bruises to the back of his head, which one might expect after someone was pressing a pillow against his face, or from a man who took a fall on the floor.

They talked defensive wounds next. Don had none.

Then Piszczatowski pressed Ortiz-Reyes to admit that he had no idea whether Don was alive or dead before he came “to rest on the ground” inside the kitchen.

That was an important piece of this puzzle.

The three words Piszczatowski kept going back to as he wrapped things up were “acute alcohol intoxication.” He said these words, over and over, to thrust into the jury's collective consciousness that Don was wasted and had enormous amounts of alcohol in his system, and he could have died any number of ways. The
least likely
way in all of this was asphyxiation by smothering with a pillow. If Don had been murdered in that manner, where was the evidence? Billie Jean's attorney suggested this, time and again.

“The information that the police gave you,” Piszczatowski asked, “caused you to doubt—is that correct?”

“Yes.”

“And so you
changed
your opinion. Is that correct?”

“That's correct.”

“And could you agree that reasonable people, reasonable experts, reasonable doctors, could differ as to the cause of death in this case?”

Ortiz-Reyes gave a somewhat awkward answer, noting, “Anybody has the right of giving an opinion. It depends on what is their mood or what they think. You know, everybody can say whatever they want. . . .”

Piszczatowski got Ortiz-Reyes to admit he had “no scientific discovery” in this case that was inconsistent with the initial conclusion of death by acute alcohol intoxication or from heart attack.

Thus, as Ortiz-Reyes repeated many times, after all the information was in, it was his and the chief ME's “opinion” that Don had been murdered.

“And the evidence that the police gave you that changed your mind,” Piszczatowski concluded, “was the statement of an individual that they had talked to, that said the death occurred by asphyxiation—is
that
correct?”

“Yes. That's correct.”

Piszczatowski had nothing further.

CHAPTER 64

APA SKRZYNSKI BROUGHT IN
Don Rogers's business partner, Donald Kather, after forty minutes of redirect and recross with Dr. Ortiz-Reyes had become very monotonous and nonproductive. The state was losing this case. The PO needed a strong witness, someone to elaborate for jurors the sort of personalized evidence showing why Billie Jean had a reason to place a pillow over her husband's head and smother him. The APA was two steps back from where he wanted to be at this point. Ortiz-Reyes had not really put into the record a cause of death for Don Rogers. One could speculate, sure, that Don had been smothered, but there was no actual forensic evidence besides an “opinion” of some photographs and an ME's office that kept changing its mind based on what law enforcement was telling them. And if there was no proof of one spouse having killed a spouse, well, how could a woman be found guilty of murdering her husband?

Donald Kather told jurors he and Don Rogers had known each other for close to four decades. They ran a machine shop in Troy that focused on car assembly tools. They had five employees, and about four thousand square feet of space. It wasn't much, but at one time it made money. Plenty of it. The past five years, however, Donald Kather explained, “We haven't been generating any profits.”

This didn't mean they were broke. It meant the business was breaking even, keeping five families working and the doors open.

Donald then talked about the last time he saw his old buddy, Don Rogers. It was that Friday, August 11. They had gone to lunch together, as they normally did almost every day. And with that, and the fact that Kather saw Don Rogers every workday, came the next question, making it clear where the APA wanted to go with Don Kather's testimony.

“So, any other day of the week, had you noticed
any
kind of bruising or abrasions?”

Piszczatowski rolled his eyes. Billie Jean did the same.

“No, I didn't,” Kather said. It sounded dramatic. Like this piece of information was a bombshell.

“Nothing on his lips?” the APA asked.

“Nope.”

“Or his nose?”

“No.”

The APA showed Donald Kather a photograph. It was of Don Rogers's lip—postmortem. Then he implored Kather to explain to jurors if he had seen those same abrasions on Don Rogers's lip on that last day he saw Don for lunch, August 11.

“No,” Kather said, “they were not evident to me.”

Again, this exchange was meant to shock. Meant to hammer home a point that Don Rogers had sustained these injuries while being murdered.

The next thing Donald Kather brought to the courtroom was that Don Rogers was not an extravagant guy, buying himself toys and spending money irresponsibly. He was frugal, in fact. His only luxurious expenditure, if it could even be called such, was going out to eat every day for lunch and having a nice dinner ocassionally.

Wearing a white sweater, sitting still and indifferent, a lack of concern on her face, Billie Jean listened intently, whispering to her attorneys when she felt something needed to be said.

Kather said he had known Billie Jean for almost twenty years. He had gone to Don and Billie Jean's first wedding in Vegas, but not their second ceremony.

Ending his direct questioning rather abruptly, without asking Kather to go into any lengthy discussions about Billie Jean and the relationship she had with Don, the APA said, “And the last time you saw [Don] was when he left at four
P.M.
?”

“Correct.”

“Did you expect to see him Monday?”

“Certainly did.”

“Were you surprised, sir?” Skrzynski asked.

“Yes.”

“I have no further questions.”

Kather offered nothing to the prosecution other than the notion that Don Rogers's face might not have had those small, minuscule abrasions, apparently seen only with a magnifying glass, when he ate lunch with him on the Friday afternoon of his death.

Some wondered why he had been called to give any testimony.

* * *

Piszczatowski started his cross-examination with the daily lunch Don Rogers and Donald Kather shared. The defense attorney called Don Rogers a “creature of habit,” and Kather agreed with that assessment.

Since Don Rogers was such a creature of habit, as Piszczatowski had put it, Billie Jean's lawyer wanted to know what Don Rogers had to drink every day at lunch.

“Two beers,” Kather said. That was it.

Interestingly enough, it was rare for Don Rogers to order lunch, Kather told Piszczatowski. He generally just drank those two beers and never ate much. But it wasn't because Don wanted to enjoy the buzz a few beers coupled with an empty stomach produced. “I'm certain the reason was if he had breakfast, he didn't order lunch. . . .”

The other piece of Don's character his business partner was able to relate to jurors was Rogers being such a “private person.” He rarely talked about personal matters with anyone. It was to the point where Don Kather once asked him if he had gone and married Billie Jean for a second time and Rogers told him, “It's none of your business.”

Don Rogers “pretty much” went into the office every day and “watched TV.” He stayed away from the day-to-day operations or running the business, Kather explained. He gave input from time to time, but it was Kather who ran the show there. And Don Rogers was cool with that.

Piszczatowski trekked from family to business and then into the last day Kather had seen Don Rogers. He asked him if he recalled noticing that Don had a black eye on that day, August 11.

“No,” Kather said.

What about the day before? Piszczatowski wondered.

“No. I don't recall having seen him that whole week with any abrasions or anything on his face.”

They went through each day of the week.

Kather said no to each.

Next, Piszczatowski asked Kather if he had noticed any changes in Don over the course of the weeks, months, “the last year, three years, say, two years” leading up to his death.

“I would say that Don had lost weight over the last five, eight years. When I knew him, he was much beefier and stronger. He became more frail. But at seventy-four. . . I think it's natural attrition or something. . . .” In terms of health, Kather added, it was only Don's weight he noticed. Not much else.

And then one final question by Piszczatowski gave Kather a reason to explain how Don Rogers had smoked unfiltered Camel cigarettes, which, along with his heavy drinking, probably contributed to what was very poor health.

After Piszczatowski was done with Donald Kather, jurors were left with an undeniable image of the deceased: an unhealthy guy in his seventies, drinking every day at lunch, not eating, smoking and losing weight.

In other words, Don Rogers had been a good candidate for a heart attack.