Presumed Innocent (44 page)

"You said you have testified on many prior occasions."

"Hundreds," says Painless. Each answer has a kind of screw-you brittleness. He means to be a smart guy and tough, the better of any cross-examiner.

"Doctor, has your competence ever been called into question, to your knowledge?"

Painless adjusts himself on the stand. The assault has begun.

"No, sir," he says.

"Doctor, is it not true that many deputy prosecuting attorneys over the years have complained about your competence as a forensic pathologist?"

"Not to me."

"No, not to you. But to the chief of police, resulting in at least one memorandum being placed in your personnel file?"

"I don't know about that."

Sandy shows the document first to Nico, then to Kumagai on the stand.

"No, I never seen that," he says at once.

"Do you not have to be notified under police regulations of any addition to your personnel file?"

"Could be, but you ask what I remember. I don't remember that."

"Thank you, Doctor." Sandy removes the document from Kumagai's hands. As Stern is strolling back to our table, he asks, "Do you have any nicknames?"

Kumagai stills. Perhaps he is wishing that he had acknowledged the letter.

"Friend call me Ted."

"Aside from that?"

"Don't use nicknames."

"No, sir, not that you use. But by which you are known?"

"I don't understand question."

"Has anybody ever referred to you as Painless?"

"To me?"

"To anyone, to your knowledge?"

Again Painless takes a moment to shift around in his seat.

"Could be," he says finally.

"You do not enjoy that nickname, do you?"

"Don't think about it."

"You acquired that nickname some years ago from the former chief deputy prosecuting attorney Mr. Sennett, in an unflattering context, did you not?"

"If you say."

"Mr. Sennett told you to your face, did he not, that you had bungled an autopsy and that the only person who found working with you painless was the corpse, because it was dead?"

The laughter thunders in the courtroom. Even Larren is chuckling up on the bench. I shift in my seat. Whatever Stern has better be good, because for the first time he has abandoned his innate decorousness. His cross so far verges on the cruel.

"I don't remember that," says Painless coldly when the room has come back to order again. Over the years he has grown adroit in his knowledge of the rules of evidence. Every cop and P.A. in Kindle County knows that story. Stan Sennett would be happy to tell it from the stand. But the judge is not likely to allow such a diversion, called collateral impeachment. Painless has drawn his shoulders around him. He looks out at Stern, waiting for more. He has apparently taken some pleasure in what he regards as his own small triumph.

"Now, Mr. Della Guardia and Mr. Molto are two persons from the P.A.'s office with whom you have worked with less — let us say disagreement, is that right?"

"Sure. They my good friends." On this point, Painless has apparently been well schooled. He will acknowledge his contacts with Tommy and Delay, in order to minimize their importance.

"Did you discuss this investigation with either one of them while it was in progress?"

"I talk to Mr. Molto sometime."

"How often did you speak to him?"

"We stay in touch. We talk now and then."

"Did you talk to him more than five times in the first few weeks of April?"

"Sure," he says, "if you say." Painless is taking no chances. He knows that subpoenas are out. He can't be sure whose MUDs we have obtained.

"And you talked in detail about this investigation?"

"Mr. Molto's a friend. He ask what I'm doin, I tell him. We talk about public information. Nothin from the gran jury." Painless resumes his satisfied smile. These answers, of course, have been the subject of prior discussion with the prosecutors.

"Did you tell Mr. Molto the results of the forensic chemist's analysis prior to conveying them to Mr. Sabich? I am talking specifically about the specimen which showed the spermicidal jelly."

"I understand," says Painless curtly. He looks directly over at Tommy. Molto has his hand over part of his face, and with Kumagai's glance, he straightens up and takes it away.

"I think so," says Kumagai.

He has not quite finished his response when Larren interrupts.

"Just a second," says the judge. "Just
one
second. The record will reflect that Prosecuting Attorney Molto has just made a gesture which I recognize to be a signal to the witness in connection with his last answer. There will be further proceedings with regard to Mr. Molto at a later time. Proceed, Mr. Stern."

Tommy is crimson as he struggles to his feet.

"Your Honor, I am terribly sorry. I don't know what you are talking about."

Neither do I, and I was watching Molto. But Larren is inflamed.

"This jury is not blind, Mr. Molto. And neither am I. Proceed," he says to Stern, but his anger is too great to store away and he immediately wheels his chair around in Molto's direction and gestures with the gavel. "I warned you. I told you before. I am very upset with your conduct during this trial, Mr. Molto. There will be proceedings."

"Judge," says Tommy despairingly.

"Resume your seat, sir. Mr. Stern, proceed."

Stern comes over to the table. I explain what I saw. He, too, observed nothing. But Stern does not let the incident pass. In a mincing tone he asks, "It is fair to say, Dr. Kumagai, that you and Mr. Molto have always had good communication, is it not?"

The question evokes a few snickers, especially from the reporters' section. Kumagai blinks with disdain and fails to answer.

"Dr. Kumagai," asks Stern, "it is your ambition, is it not, sir, to become coroner of Kindle County?"

"I like to be coroner," says Painless with disarmingly little hesitation. "Dr. Russell doin a good job now. Couple years he retire, maybe I put in for the job."

"And the P.A.'s recommendation would help you obtain that position, would it not?"

"Who knows?" Painless smiles. "Can't hurt."

Grudgingly, I must admire Delay. Kumagai is his witness and he has obviously counseled him to play it straight about whatever was going on during the election campaign. Nico quite clearly wants to have some prosecutorial candor to troop before the jury to make up for some of Molto's gaffes. And his judgment strikes me as correct. If it were not for the incident with the judge a moment ago, it would all sit pretty well.

"By April, had you and Mr. Molto ever discussed the possibility of you becoming coroner, Dr. Kumagai?"

"I say. Mr. Molto and me friends. I talk about what I wanna do, he talk about what he wanna do. Talk all the time. April. May. June."

"And in April you also spoke about this investigation a number of times before you received the forensic chemist's report?"

"I'd say so."

"Now, that report, sir, concerned the semen specimen which you had taken from Ms. Polhemus during the autopsy, is that right?"

"Right."

"And it is that specimen which has been identified as being of Mr. Sabich's blood type and as containing chemicals consistent with the use by Ms. Polhemus of a birth-control device — a diaphragm. Am I correct?"

"You are correct."

"And the presence in that specimen of this birth-control chemical, the spermicide, is critical to your opinion, is it not?"

"All facts important, Mr. Stern."

"But that fact is particularly important, because you, sir, want us to believe that this tragic incident merely had the appearance of a rape, do you not?"

"Don't want you to believe nothin. I give you my opinion."

"But it is your opinion — to get down to brass tacks, as they say — that Mr. Sabich tried to make this look like a rape, correct?"

"If you say so."

"Well, is that not what you are trying to suggest? You and Mr. Molto, and Mr. Della Guardia? Let us be plain with these people." Sandy points to the jury. "Your opinion is that this was a staged rape. And that the way it was done suggests some knowledge of investigative techniques and of Ms. Polhemus's regular duties in the P.A.'s office, correct?"

"That's what I say on direct."

"And all of that points at Mr. Sabich, does it not?"

"If you say so," Painless says eventually, with a smile. You can see his reluctance to believe that Stern is inept enough to implicate his own client. But Sandy keeps forcing the issue, saying more than Kumagai would risk on his own, and Painless takes his characteristic pleasure in someone else's misfortune.

"And all of those deductions depend in the end on the presence of spermicidal jelly in the specimen you sent to the forensic chemist, do they not?"

"More or less."

"Much more than less, is it not?"

"I would say."

"So this specimen, and the presence of the spermicide, is critical to your expert opinion?" says Stern, arriving at the point where he was a moment ago. This time Painless concedes. He shrugs his shoulders and says all right.

"Now, does your expert opinion, Dr. Kumagai, take any account of the fact that no spermicidal jelly was found in Ms. Polhemus's apartment? Are you familiar with that testimony that was given here by Detective Greer?"

"My opinion on scientific evidence. I don't read the transcript."

"But are you familiar with that testimony?"

"I heard about it."

"And are you not concerned, as an expert, that your opinion depends on the presence of a substance not found in the victim's belongings?"

"Am I concerned?"

"That is my question."

"Not concerned. I got an opinion on scientific evidence."

Stern gives Painless the long look.

"Spermicide came from somewhere, Mr. Stern. I don't know where lady hides this stuff. It's in the specimen. Test says what it says."

"Just so," says Sandy Stern.

"You stipulated," says Kumagai.

"That the spermicide was in the specimen you sent. Yes, sir, we did agree to that." Sandy walks around the courtroom. I still cannot guess what it is that Kumagai missed. Until Painless mentioned the stipulation I was ready to bet that the spermicide was misidentified.

"Now, sir," says Stern, "your initial impressions at the time of the autopsy took no account of the presence of a spermicide, did they?"

"Can't remember now."

"Well, think back, please. Was it not your original theory that the person who had last had intercourse with Ms. Polhemus was sterile?"

"Don't recall."

"Really? You told Detective Lipranzer that Ms. Polhemus's attacker seemed to have a condition in which he produced dead spermatozoa, did you not? Detective Lipranzer has already testified once before the jury, I am sure it would be no problem for him to return. Please reflect, Dr. Kumagai, is that not what you said?"

"Maybe. Very preliminary."

"All right, it was your very preliminary opinion. But it was your opinion then?"

"I guess."

"Now, do you recall the physical findings that led you to that opinion?"

"No, sir."

"As a matter of fact, Doctor, I am sure it is difficult for you to recall, unaided, any autopsy within days of when it took place, is that right?"

"Sometime."

"How many autopsies do you do in a week, Dr. Kumagai?"

"One, two. Sometime ten. Depends."

"Do you remember how many you performed in the thirty days surrounding Carolyn Polhemus's death?"

"No, sir."

"Would you be surprised to know that it was eighteen?"

"Sound right."

"And with that number, it is obvious, is it not, that the specifics of any one examination may slip your mind?"

"True."

"But when you spoke to Lipranzer the details were fresher. Were they not?"

"Probably."

"And you told him then that you believed the attacker was sterile?"

"I say, I somewhat remember that."

"Well, let us review for a moment those findings you presently recall that might have led to that preliminary opinion."

Sandy runs through it quickly. The rigor mortis, blood coagulation, and digestive enzymes established the time of death. The primary deposit of male fluids in the rear of the vagina, away from the vulva, indicated that Carolyn had spent little time on her feet after sex, meaning that intercourse had occurred near the time of her attack. And there was an absence in the fallopian tubes of any live spermatozoa, which one would expect to find ten to twelve hours after intercourse, assuming no contraception had been used.

"And to explain those phenomena, particularly the dead spermatozoa, you theorized that the attacker was sterile. It did not occur to you at first, Doctor, that a spermicide had been used, did it?"

"Apparently not."

"As you look back, you must think you were a fool to have missed something so obvious as the use of a contraceptive spermicide?"

"Make mistakes," allows Painless with a flip of his hand.

"You do?" asks Stern. He eyes the state's expert. "How often?"

Kumagai does not answer that. He recognizes his miscue.

"Mr. Stern, I find no birth-control device. No diaphragm. Apparently, I assume no birth control used."

"But certainly, Dr. Kumagai, an expert of your stature could not have been so easily misled?"

Kumagai smiles. He knows he is being taunted.

"Any single fact important," he says. "Kind of thing that murderer knows."

"But you yourself were not trying to mislead Detective Lipranzer when you gave him your initial impression, were you?"

"Oh no." Painless shakes his head vigorously. He has been prepared for that suggestion.

"You must have been convinced, Doctor, at that time, that birth control had not been used — so convinced that you considered the use of a spermicide to be out of the question?"

"Look, Mr. Stern. I got an opinion. Chemist has results. Opinion changes. Lipranzer know opinion's preliminary."

"Let us consider some alternatives. For example, Dr. Kumagai, you would be convinced that birth control would not be used by a woman who knew she could not bear children, correct?"