Play Dead (11 page)

I
T TURNS OUT
that I am not Andy the all- powerful.

I had decided to keep the publicity level down, so as to dampen coverage and not annoy the judge. Unfortunately, it didn’t work; the press is out in force in front of the courthouse when Kevin and I get there. The reporters on the court beat must have gotten a tip from the bailiff or someone else inside the system about what was going on, and the word spread.

Laurie will arrive later with Karen Evans and our star witness, Reggie. I’ll be calling her when I have a better sense of when they will be needed; there’s no sense having Reggie pacing, barking, and maybe even pissing in the witness room as he nervously awaits his appearance.

We’re going to start the day in the judge’s chambers. The prosecutor, Janine Coletti, has filed a motion to prevent Reggie from “testifying.” We’ve certainly expected that and, hopefully, are prepared to defend our position successfully.

I’m not familiar with Coletti, but I’ve checked her out, and the prevailing opinion seems to be that she is tough and smart. Those are traits that I don’t like to find in prosecutors; give me a mushy, dumb one any day of the week. The only slight positive is that she is not the original prosecutor and therefore might have less of a vested interest in protecting the original outcome.

Kevin and I meet Coletti and her team in the reception area outside the judge’s chambers. We exchange pleasantries, but there is no discussion about the case. That will come soon enough.

We are led into Judge Gordon’s chambers after only a five-minute wait. He looks to be in his mid-forties, though his hair is sprinkled with gray. Actually, I think gray hair may be a requirement to take a seat on the bench; prospective judges probably have to walk through some maturity screener that rejects pure black or brown hair as frivolous.

A court stenographer is also present, and Judge Gordon explains that this session will be on the record. He wanted to hold this particular argument in chambers because of “the large media contingent on hand,” and he makes little effort to conceal the fact that he blames me for the turnout. It is particularly frustrating because this time it’s not true.

“The question before us is whether to allow the golden retriever known as Reggie to appear in court,” says the judge before turning to me. “What is the purpose behind the request?”

“We want to demonstrate that he is in fact Mr. Evans’s dog and that he did not die along with Ms. Harriman, as the prosecution claimed at trial.”

“And how do you propose to do that?” he asks.

“Through testimony by his veterinarian and by the actions of the dog as he relates to Mr. Evans. We believe it is vital to establish ownership beyond a doubt.”

The judge turns to the prosecutors. “Ms. Coletti?”

“Your Honor, as stated in our brief, the state feels that such a maneuver is completely out of bounds and likely to turn the proceedings into a circus. There is no precedent for a dog to take on the role of witness, and such testimony would be inherently unreliable.”

I shake my head. “Your Honor, the reliability of canine testimony, as demonstrated through actions, has been amply demonstrated in many court proceedings, including those of Your Honor himself.”

Judge Gordon looks surprised. “Would you care to explain that?”

I nod. “Certainly. In
New Jersey v. Grantham
you ruled that a search that uncovered drugs was reasonable, when the only fact presented to justify the search was the action of a DEA German shepherd who detected the drugs by his sense of smell.”

“That dog was not a witness in court,” the judge says.

“That’s true. But you affirmed his reliability by allowing the search. He was, in effect, presented through hearsay testimony. If you’d like, we could conduct our own test outside of court, with you present or through videotape. Then the reference to
Grantham
would be exactly on point.”

Coletti shakes her head in disagreement. “Your Honor, that dog was trained in drug detection. It is an entirely different situation.”

“No, it is exactly the same,” I say. “We will demonstrate Reggie’s training in court, training that could only have been done by Mr. Evans. And untrained dogs have testified as well, through hearsay. Even in the O. J. Simpson trial, endless testimony referenced the barking of a dog, and it was used to pinpoint the time of the murders.”

“Obviously we disagree, Your Honor,” says Coletti. “But we object just as strongly on the ground of relevance. Mr. Evans was not convicted of murdering his dog, and whether or not the dog is alive is of no consequence. He was convicted for murdering his fiancée, and her death has been confirmed by DNA.”

“Mr. Carpenter?”

“Ms. Coletti was not the prosecutor at trial, so perhaps she is unaware that Mr. Steinberg, who did prosecute, referenced the deceased dog thirty-one times. He did so in his opening and closing arguments and through witness testimony. He used it to argue the facts of the case and to demonstrate Mr. Evans’s ‘extreme callousness.’ The jury certainly considered it; he instructed them to. And this new evidence will prove that he should not have been able to reference it, and they certainly should not have considered it.”

The judge continues questioning us for another fifteen minutes. My assessment is that he does not want to allow Reggie into the courtroom but is unable to come up with an adequate legal justification to prevent it.

“Your Honor,” I say, “we think the evidence to be introduced by the dog will be compelling. But Richard Evans has not seen the dog in five years, and maybe we’ll be wrong. Maybe it will blow up in our faces. But either way, what harm can come of it?”

“What do you mean?” he asks.

“There’s no jury here to protect from being misled. You are the judge and jury, the sole arbiter. You can see it and assign whatever importance to it that you wish. If you think it has no value, you will ignore it. If you consider it valuable for either side, you’ll assign it the appropriate weight. It will be significant or harmless, or somewhere in between, and only you will decide which.”

The judge then asks how we would proceed, and I tell him that Karen Evans would bring Reggie in, that her presence as someone he knows would put him at ease. Then Richard would put him through some training paces, tricks that he had taught him, as a way to demonstrate familiarity.

The fact that the judge asks about process is a good sign; if he were going to disallow Reggie, then the process would not be important. Coletti seems to sense this as well, and she renews many of her objections to the testimony. I refute them, but we’re going over the same ground.

“I’m going to allow it,” the judge says, and then makes an unusual ruling. All other witnesses, for both sides, will testify before Reggie. His appearance will represent the finale. “See you in court,” he says.

We take this as our cue to leave the chambers, and I immediately head for a phone to call Laurie. I tell her what time to have Karen and Reggie here, and that I will call her back if that changes.

“You’re taking a chance,” Laurie reminds me. “Reggie could go into court and bite your client, and your case, on the ass.”

“You’re right,” I say. “You’d better ask Tara to speak to him.”

She laughs. “Will do. See you later… good luck.”

I take my place in the courtroom, and Richard Evans is brought in. I can see the nervousness etched in his face; he’s experienced the wonder of hope this past couple of weeks, and he knows that it could all come crashing down today.

“You ready?” he asks.

I nod. “Ready.”

He’s searching my face for a clue to his chances, doesn’t find anything particularly reassuring, so he finally nods. “Okay. Me, too.”

W
HEN THE JUDGE
enters the courtroom and the bailiff calls the case, I get my own butterflies. This hearing represents not only a huge hurdle but also an unfamiliar one for a defense attorney like me. Usually we only need “reasonable doubt” on our side; the prosecution has to have a slam dunk, a unanimous verdict, to win. A hung jury is generally considered a defense victory.

Here the opposite is true. Richard is presumed guilty, and we must decisively prevail to give him another chance. In this case a tie doesn’t go to the runner, and it doesn’t go to the defense. We have to win decisively, and the judge must be persuaded that we would probably win in a new trial.

The first witness I call is probably the most important human witness I’ll call all day. It’s Dr. Gerald King, here to testify on the toxicology and medical reports. I start to take him through his credentials, which are as impressive as they come. Halfway through them, Coletti belatedly offers to stipulate to him as an expert witness.

“Your Honor, I would like you to hear his entire curriculum vitae,” I say.

“It’s not necessary,” Judge Gordon says. “I’m very familiar with the doctor.”

That’s plenty good enough for me, and I don’t push the issue. Instead, I take Dr. King through his description of how the bruise could not have been on the left side of Richard’s head if he had fallen out of bed, and could only have been caused by a rounded, blunt instrument, not by the floor.

Dr. King has brought pictures and charts with him, some of which are identical to those used in the first trial and some which he has created from scratch. His presentation is reasonably compelling, and once I’m satisfied he’s made his point, I move on to the toxicology.

It only takes a few questions before I lead Dr. King into dropping the bomb that the sleeping pills had to be injected or taken in a liquid form, because of the presence of campene. I could lead him even further, but I want to save some ammunition for when the prosecution puts on its rebuttal witness.

Coletti gets up to cross-examine, and she focuses on the bruise first. “Dr. King, you say that if Mr. Evans had fallen from the bed, the bruise would have been on the right side and not the left. Is that correct?”

“Yes.”

“And you also conclude that the floor could not have caused the bruise. Is that correct?”

“Yes.”

“Before the pills knocked Mr. Evans out, would they have made him groggy?”

“Certainly.”

“Could he perhaps have staggered around the room, walked into a cabinet or something else, and then fallen to the floor? Could he have sustained the bruise that way?”

“That was not the prosecution version at trial.”

“And there were, and are, experts and evidence to support that version. But if they were wrong, and you are right, could it have happened as I describe?”

He’s trapped; Coletti is very good. “It’s possible.”

“Thank you,” she says. “Now, to this mysterious campene. Are there other ways for campene to enter one’s system? Is it contained in shellfish, for instance?”

“Yes.”

“Could he have ingested it that way?”

I can almost see Dr. King salivate at this; maybe Coletti is not so good. “If he did, he would have been dead when the Coast Guard got there.”

“Why is that?” she asks.

Here comes a great moment, and I envy Dr. King that he gets to say it. He waits a beat; his timing is perfect. “Mr. Evans is severely allergic to shellfish; it’s in his medical records.”

Coletti flinches; she had clearly not known this. She recovers quickly and gets Dr. King to agree that the campene could have been a preservative in another drug that Richard might have taken. Dr. King points out that there were no other drugs in his system, but has to admit that some drugs leave the body faster than others.

All in all, he has been a very good witness. He won’t carry the day, but he’s moved the day along nicely.

Next up is Dr. Ruff, Reggie’s veterinarian. She shows the X-rays of the plate in his leg, as well as the missing teeth and the cut marks. Coletti establishes on cross that none of these issues could possibly be unique to Reggie, that the pulling of teeth and the repairing of broken legs in this manner are quite commonplace.

Dr. Ruff is a less accomplished witness than Dr. King, and she’s too willing to concede facts to Coletti. The truth is that the combination of health issues would represent a mind-boggling coincidence if the dog is not Reggie, but Dr. Ruff doesn’t come off as that certain.

Next up is Lieutenant Michele Siegle of the Asbury Park Police. I use her to recount the testimony of the witnesses who saw the boat at various times that night. This establishes the locations as far from the shore.

“So it’s your opinion that Mr. Evans’s dog could not successfully have swum to shore if he had been thrown from the boat?”

“That’s correct, and it’s not just my opinion. There was expert testimony to that effect during the trial.”

I introduce the expert testimony from the original trial transcript as a defense exhibit and turn the witness over to Coletti. She gives only a cursory cross-examination, designed to elicit the fact that the murder case was ironclad with or without the dog’s involvement.

Since Reggie’s “testimony” will be kept completely separate, Judge Gordon invites Coletti to bring forward any rebuttal witnesses now. She calls Dr. Nicholas Turner, a toxicologist of some renown who was not the prosecution expert during the trial.

She takes him through a point-by-point rebuttal of Dr. King’s review of the blood work. He claims that Amenipam in liquid form is very hard to find, and that the empty bottle of pills showed traces of Amenipam, lending credibility to the theory that Richard overdosed on conventional pills.

He also talks about how quickly liquid Amenipam works, and that the Coast Guard would have had to appear very quickly after any injection, or Richard would have died.

Finally, Coletti takes him through Dr. King’s testimony about the presence of campene. “Is campene used only to preserve Amenipam?” she asks.

He smiles a condescending smile. “Certainly not. It’s used very commonly with all kinds of drugs. I’ve actually never heard it used with Amenipam, though it’s possible that it would be.”

I start my cross-examination by asking Dr. Turner if he has ever done any acting.

He seems taken aback by the question. “What do you mean by acting?”

“I mean playing a role… pretending. I don’t mean professionally; have you ever been in a school play or anything?”

“In high school… once or twice,” he says.

Coletti objects, asking where this could be going. Judge Gordon tells me to get to the point.

I nod. “Okay. Dr. Turner, I’d like you to act something out for me. Imagine you’re sitting at a table, and you’ve decided to swallow a whole bottle full of pills. Show me how you would do it.”

“How I would swallow the pills?” he asks.

“Yes. Do it like you’re acting it out, or playing charades.”

Coletti objects again, but Judge Gordon lets it proceed. Dr. Turner pours some imaginary pills from the imaginary bottle into his hand, then puts them as far back in his mouth as he can. Then he takes a drink from an imaginary glass and swallows the imaginary pills.

“Very nicely done,” I say. “For the court reporter’s sake, let the record show that you pretended to take pills out of a bottle, put them in your mouth, pretended to take a drink from a glass, and swallowed them. Is that accurate?”

He nods. “Yes.”

“You weren’t undecided about how to do it, were you? That was the obvious way?”

“It was the obvious way,” he agrees.

“Except there was no glass,” I say, taking some papers from Kevin. “Your Honor, here is an inventory of the boat that night. All the glasses were clean and put away in the cabinet. There were none on the table or on the sink. There were none anywhere except the cabinet.”

“Maybe he cleaned it,” Dr. Turner says, making the classic mistake of answering a question that wasn’t asked.

I nod. “Right. He was willing to have someone find his own dead body, but a dirty glass would have just been too embarrassing.”

“Perhaps he took the pills over the sink, cupping water in his hand.” Dr. Turner is feeling trapped, even though he has no reason to be. He’s a scientist, not a cop, and he shouldn’t feel that he has to defend the investigation. But that’s how he feels, and I’m going to take advantage of it.

“A whole bottle of pills?” I ask, not bothering to mask my incredulity.

“It’s possible.”

“There were no traces of Amenipam found in the sink. Do you find that desperate suicidal people who’ve just committed a violent murder are usually that neat?”

I move on to the pill bottle itself, which we have asked to be brought to court. I show it to Dr. Turner and ask him to read the label and tell me what pharmacy it came from.

“There is no label,” he says. “It’s been torn off… There are traces of the back of the paper.”

“According to the police reports, the detached label was not found on the boat, and seventy-one pharmacies nearest to Mr. Evans’s house were canvassed. None had provided the prescription. Can you explain that?”

He shrugs. “He didn’t want anyone to know where he got it.”

“Is it illegal for a pharmacy to dispense Amenipam?”

“Not with a prescription.”

“Is it hard to get a prescription for it?”

“Depends on the doctor, and what the patient tells him.”

I nod. “How about ‘I’m not sleeping well’? Might that do the trick?”

“Depends on the doctor,” he repeats.

“In your experience, is it likely that a suicidal murderer would care if people knew where he got his prescription?”

Coletti objects, and Judge Gordon sustains. I let him off the stand, having made enough points to satisfy myself.

In fact, all the morning witnesses have gone as well as we could have hoped, but the gallery and press in attendance have barely been paying attention. It is as if they have been watching the undercard before a heavyweight championship fight.

Our lunch hour is spent in an anteroom finalizing our plans. Karen will be bringing Reggie into the courtroom, and she will have a key role in our success or failure. She admits to being nervous but swears there is no chance she will screw things up.

I’m fairly confident, based on Reggie’s pizza box trick at my house, but I’m still nervous myself. Lawyers don’t call witnesses unless they know exactly what they will say, and I am violating that principal today. Reggie will speak through his actions, and I am far from certain what he will “say,” especially in the new surroundings of the courtroom, with so many people watching him.

“Just try to keep him as calm as you can,” Laurie says to Karen. “Keep petting him, and talk to him in a soothing voice.”

Karen nods. “I will. We’ll be fine. Right, Reg?” She pats him on the back as she talks, but he remains noncommittal about his testimony.

Karen and Richard will be the two humans with the most responsibility in this afternoon’s session. My role will be mostly to watch and hope, a situation guaranteed to leave me frustrated. But we all know on whom everything is riding.

Reggie is going to be the main event.