Play Dead (23 page)

I
HATE COURTROOM
surprises—unless I’m the one springing them.

The kind I hate most are witness list surprises, and that’s what I’m greeted with when I arrive in court for the morning session. Hawpe has come up with a new witness, and the first thing on the docket is a hearing in Judge Gordon’s office to decide whether he should be allowed to testify.

Hawpe informs Judge Gordon and me that a witness, Craig Langel, has just come forward with the revelation that he saw a golden retriever, apparently quite wet, on the night of the murder. The location was about a quarter mile from where Stacy’s body washed ashore three weeks later.

Langel reported it to the animal shelter, who sent out someone to search for the stray dog and capture him but could not find him. Hawpe has just checked the back records of the shelter and located the call and dispatching of the shelter worker, to confirm that it was the same date. It was.

I argue that Langel should not be allowed to testify, because he was not on the list Hawpe provided, but it’s a halfhearted argument with no chance of success. Hawpe represents to the court that he did not know about Langel until yesterday afternoon, and he hadn’t confirmed it with the animal control department until early this morning.

Judge Gordon rules that Langel will be allowed to testify, and I enter a formal objection. He overrules me, and we head into court.

Hawpe’s first witness is Gerald Daniels, head of the Somerset County crime lab. Five years ago Daniels was the technician who handled the forensics on this case, and his promotion since then probably gives him additional credibility.

Not that he needs it. He gives a straightforward, professional analysis of the evidence. He describes the evidence collection on the boat, most notably the bloodstains on the floor and railing, and the positive DNA match to Stacy, based on hair samples from her brush in Richard’s house.

There isn’t any doubt that Daniels is qualified to render these conclusions, and no reason to think he would be deceptive. It is not particularly harmful to me, since I have not contended that Stacy was not on that boat or that she was not murdered.

My cross-examination is therefore short and narrowly focused. “Mr. Daniels, I would like to explore the scope of your investigation. So I’m going to ask you some questions, and I’d like you to answer based on what you can say with a reasonable degree of scientific certainty. If you cannot speak with that certainty, please say so.”

“Yes, sir.”

“Thank you. Now, where on Stacy Harriman’s body did the blood on the boat come from?”

“I cannot determine that with any degree of scientific certainty,” he says.

“Who caused her wounds?”

“I can’t determine that, either.”

“Was Richard Evans conscious when Stacy Harriman was killed?”

“I don’t know.”

“Were the bloodstains placed where they were deliberately?” I ask.

“Questions like that are beyond the scope of my work.”

“Now I’d like to present a hypothetical. With Richard Evans unconscious, someone who had been hiding on the boat, or who had boarded it after it set sail, murdered Stacy Harriman and threw her body overboard. Is there anything in your work which could disprove that?”

“No, but…”

“Thank you.”

I made some rhetorical points with Daniels, but nothing that will stick. I still have not given the jury any reason to believe that someone other than Stacy and Richard was on that boat. Making the point that it is merely possible is just not going to do it.

Hawpe next calls Dr. Susan Coakley, professor of veterinary medicine at Cornell University. Dr. Coakley might be called a physical therapist for animals, and teaches the practice of physical rehabilitation through exercise. A lot of that is “water therapy” whereby the dogs swim under controlled conditions in a university pool constructed for that purpose.

Her basic testimony is that she believes it to be possible that a young, healthy golden retriever could have made the swim from the boat to shore that night. She does not claim to know it for a certainty but is quite adamant in considering it quite conceivable.

She reminds me of a few professors I had in law school. They considered their opinions to be incontrovertible fact and wore their arrogance proudly on their sleeves. I never got a chance to knock them down a peg, which is why I’m so looking forward to this cross-examination.

In truth, I need to go after her very hard, since if she cannot be shaken, then our “Reggie turned up alive” advantage no longer carries much weight.

“Dr. Coakley, when did you conduct your physical examination of Reggie?” Unless she’s the lowlife that broke into my house and kidnapped Reggie, I know that the answer to this question is “never.”

“I did not conduct an examination.”

“Pardon me?” I ask, betraying my surprise. Oh, the shock of it all.

“I did not conduct an examination on this particular dog.”

“Were you prevented from doing so?”

“No, it wasn’t necessary for what I was called upon to do.”

“I see. So you merely went over his medical records, X-rays, that kind of thing?”

“No, I did not have access to them,” she says.

“You were denied that access?”

“No, the records were not necessary for my work.”

“So the health of a dog is not relevant in determining if that dog could swim four miles in the ocean in a major storm?”

“I was operating under the assumption that he was healthy.”

“So if he were not healthy, that might change your opinion?” I ask.

“It might, depending on what was wrong with him.”

“If I told you he had a badly broken leg that was repaired by inserting a metal plate and that he was taking a drug called Rimadyl for the resulting arthritic pain, would that be significant to you?” I’m shading the truth a little here. Reggie is on that medication now; he was not on it then.

But Hawpe does not object, and Dr. Coakley answers, “I would have to examine the records.”

“You mean the records that weren’t necessary for your work?”

Hawpe objects that I’m being argumentative, and Judge Gordon sustains.

I move on. “Do you have any personal knowledge of a dog swimming four miles in the ocean during a substantial storm?”

“No, I don’t,” she says, trying to control her annoyance. “But I believe it is within their capability, depending on the circumstances.”

“What is the furthest you have personally seen a dog swim in the ocean in the midst of this kind of storm?”

“I have never seen it personally, but it would not be necessary for me to do so.”

“Could a dog do it while carrying a radar antenna on his back?” I ask.

“I don’t know what you mean.”

“Well, it was nighttime, and even though there may be lights in the specially constructed swimming pool that you use for your therapy, there aren’t any in the Atlantic Ocean. How would Reggie have known where to swim?”

I think I see a quick flash of panic in Dr. Coakley’s eyes. She should just deflect the question as not something covered in her work, but she doesn’t. “Perhaps there was enough moonlight.”

“Dr. Coakley, I don’t know how much time you spend outside, but have you ever seen a major summer storm? Are you aware that there are a lot of clouds involved?”

Judge Gordon admonishes me for being argumentative even before Hawpe has a chance to object. I let Dr. Coakley off the stand, a little less arrogant than when she took it.

The day’s last witness is Craig Langel, the man who reported seeing a stray dog matching Reggie’s description very late on the night of the murder.

In the hands of Hawpe on direct examination, he comes across as a decent citizen who is telling the truth about what he saw that night. Perhaps trying to make up for the Dr. Coakley debacle, Hawpe nurtures the witness, taking almost an hour to bring out what he could have gotten in ten minutes.

The jury has to be bored and wanting to adjourn for the day, so I don’t want to prolong matters. “Mr. Langel, you’ve testified that you saw a dog, possibly a golden retriever, running stray near the harbor that night?”

“That’s correct.”

“He appeared very wet?”

“Yes, sir.”

“Is it unusual for a stray dog to get wet in the middle of a rainstorm?”

“I wouldn’t think so, sir.”

“Thank you. No further questions.”

K
EVIN CALLS WITH
the news that they got plenty of latent fingerprints at the cabin.

Our expert, George Feder, will eliminate those that turn out to match Richard or Karen, and hopefully that will leave many of Stacy’s prints. I’ll then give one of those to Pete, who will run it through the system. Unfortunately, not nearly everyone in the country has their fingerprints in the national database, so there’s a pretty good chance we won’t get a match.

Even so, I’m putting a lot of stock in this process, because tomorrow Hawpe is going to conclude his case, and I haven’t made a serious dent in it. This looks like a classic domestic murder-suicide, and when the jury starts to deliberate, that’s what they’re going to see.

I can talk all I want about campene and a golden retriever who survived, but it won’t cut to what the jury will see as the core truth. They will see that Richard and Stacy were out there alone, she wound up dead in the water, and he wound up unconscious from an overdose.

It’s unfortunately an easy call, no matter what the wise-ass defense attorney says.

Kevin says that Karen has something else to tell me, and he puts her on the phone so that she can do so directly. “Andy, I think someone has been in the cabin.”

“When?”

“I don’t know, sometime since I was there last.”

Karen has told me that she has not been to the cabin since the murder, so that doesn’t narrow it down much. But she’s also said that no one had a key.

“Was there any sign of forced entry?” I ask. “A broken lock or window?”

“No,” she says, “but I’m sure there were things missing. Mostly some of Stacy’s stuff.”

This is potentially very interesting. If Stacy represented a danger to someone, it could have been because of something in her possession. After her death, they may well have gone looking for it in the cabin, a natural hiding place.

Unfortunately, although it’s interesting, all I can do is put it in the bag with the other information I don’t know what to do with. At this point the bag is bursting at the seams.

Kevin comes over for an evening strategy session. We prepare for Hawpe’s final witnesses, but they are not of great consequence. All he’ll be doing is smoothing out the rough spots; he’s already made his point.

Instead we focus on our own case. We’ll once again establish that Reggie is Richard’s dog, and that he survived that night. We’ll also bring in Dr. King, who will present his version of the events of that night, as well as his contention that Richard did not take the Amenipam orally.

But the more I think about it, the more I feel we should focus on Stacy’s faked identity. Even not knowing who she really is, the deception increases our chances of raising reasonable doubt. If we match her fingerprint, then everything changes, for better or worse, depending on that identity.

Kevin agrees with my assessment, though we both realize we’re in an uncomfortable position. Much of our preparation depends on that fingerprint, and all we can do is wait.

Feder meets us in the morning before court begins, with a copy of what he is sure is Stacy’s print. There were many just like it in the cabin, and a particular concentration of them on the pots and pans. He has also come up with a couple of other prints that do not match Richard or Karen, and he’s brought them as well.

To save us time, Feder agrees to bring the prints to Pete Stanton, since they have worked together many times in the past. Kevin and I head into court, where Hawpe proceeds to do us a favor by making his final four witnesses last all day. We will not have to start our case until tomorrow, and the delay works to our advantage.

Kevin brings a criminologist named Jeffrey Blalock to our evening meeting. He was formerly a detective in Bergen County, specializing in identity theft and computer crime. With the explosion of illegal activity in those areas, he left the force to set up a private consulting practice, and is now recognized as a leading expert in the field.

Blalock will be the witness through whom we’ll make our claim that Stacy’s background is fake, and he has spent the past couple of days going over the information Sam has gotten, as well as the documents Kevin brought back from Minnesota.

I usually like to spend far more time prepping witnesses as crucial as Blalock, but things are moving too fast to allow that. As I start to talk with him, I harbor a secret fear that he’s going to say we’re crazy, that Stacy Harriman is in reality Stacy Harriman.

He doesn’t. “Stacy Harriman never existed. She was created out of whole cloth.”

“How would this woman manage to do something like that?” I ask.

He smiles. “She wouldn’t. This is WITSEC.”

“They deny it.”

“Under oath?” he asks.

“No, but to a court.”

“Let me put it this way…,” he says, and then points to my desk. “What is that?”

“My desk,” I say.

“If I tell you that’s not your desk, are you going to believe me?”

“Of course not.”

He nods. “Right, because you know better.” He holds up the folder of documents relating to Stacy. “These are as clear to me as that desk is to you. This is WITSEC, no matter what they told that judge.”

As much as I’m surprised that their attorney, Alice Massengale, would lie in court, what Blalock is saying instinctively feels right. Of course, there is always the possibility that Massengale herself was not told the truth and was representing to the court what she thought was accurate information.

I call Cindy Spodek at her Boston office. I don’t want to involve her in the case any more than I have, because it seems to have caused her a problem with her FBI bosses. But this WITSEC confusion is bugging me, and I’m hoping Cindy’s experience can help debug me.

I explain to her the situation and what transpired in court, and she listens without interrupting. When I finish, she says, “It sounds like WITSEC, Andy. I don’t know how else these things could have been fabricated so completely.”

“But their lawyer denied it in court, even though she didn’t have to answer at all. She could have appealed the court’s order to death.”

“Who was the attorney?”

“Alice Massengale.”

“It was Alice?” she asks, her surprise evident. “Then you’ve got a problem.”

“Why? You know her?”

“I do. I worked with her a few times when I was based down there. There is no way she would knowingly lie in court. Absolutely no way.”

For all Cindy’s certainty, she is making an educated guess about Massengale’s veracity. I’m inclined to go along with it because Cindy is a very good judge of people, and because it seems more likely that a good attorney would not intentionally and directly lie to a judge.

I head home and call Laurie before going to bed—or, more accurately,
from
bed. As always, she wants to be brought up to date on the case, and I do so. It actually helps me to verbalize it to her; it seems to clear my mind.

She also doesn’t believe that Massengale would lie to the judge, both because it seems unlikely on its face and because she trusts Cindy’s judgment. Nevertheless, for now I’m going to operate on the assumption that Stacy was in WITSEC; I just wish I could get it in front of the jury.

Laurie gives me a brief pep talk in honor of our starting the defense case tomorrow. She knows I’m not content with what we’ve got, and she wants to make sure that my concern doesn’t impede my effectiveness. It won’t, but I appreciate her effort.

Just before we’re getting off the phone, I say, “How was your day?”

She laughs a short laugh and says, “It was fine, Andy. My day was fine.”

“What was that laugh for? You don’t think I care how your day was?”

“Andy, go to sleep. My day was fine, but you’re in the middle of a trial. It’s your days that are important right now.”

After we hang up, I use up my yearly fifteen minutes of introspection to examine my feelings about Laurie’s day. I love her deeply, and if something extraordinary happened today, or if she needed me for something, I would be very interested and unquestionably there for her.

But the truth is, if she had an ordinary day as chief of police in Findlay, Wisconsin, then I pretty much don’t give a shit about it.

I’m not sure what that says about me, but it can’t be good. Next year at introspection time, I’ll try and figure it out.