The Judge (39 page)

"Assuming that this might be so," I say, "is it possible that vehicles with the same color and representing the same dye lot might be found in that motor pool?" Stinegold is not as happy with this. "It is possible,

" he says.

"Would you be surprised if I told you that records from the county motor pool reveal that nine vehicles were purchased by the county from the same manufacturer, each one the same vintage as the defendant's county-assigned car, and that seven of these were produced at the same assembly plant, with the same color carpet?" m: in ;i: m He gives me no answer.

"Did you know that?" I ask. "No," he says.

I have been busy with a special master, a former prosecutor, a lawyer assigned by the court to receive evidence from our own experts in this regard. We have been busy running these vehicles down and collecting carpet fibers.

This opens the door a crack, and I turn to horses. "So did you find it?" I ask him.

"Find what?" he says.

"The horse whose hair this is?" He laughs. "No." "Did you look?"

"No."

"Why not?"

"We didn't see the point," he says. "We had the hair in the defendant's house and his car. Besides, as I stated, it would not be possible to trace the hair to a specific horse."

"Did you check any of the other people who ride at that particular stable to see if there was similar hair at their houses or in their cars?"

"No."

"Why not?" The lawyer's bag of bones, all the things the prosecution didn't do.

"Again, we didn't see the point."

"Wouldn't it have been instructive to know how many horses at that stable might have provided a match to the hair found on that blanket?"

"Not really."

"Mr. Stinegold, isn't it a fact that, except for color, and some exotic breeds that have unique textural characteristics, that one horse hair is likely to look very much like another?"

"Color would be a differentiating element," he says. The one he grasps for here.

"Do you know what color the horse was who dropped the hair found on the blanket?"

"Brown," he says. "What you would commonly call chestnut." "A common color among horses, isn't it?"

"Objection. The witness is not an expert on horses," says Kline. "No. Just what comes out of them," I say.

"What's that supposed to mean?" says Kline. There's some sniggering in the jury box.

"Hair," I say. "What were you thinking?" Kline is left to look at a laughing jury.

"I object, Your Honor. There's nothing humorous about this." Radovich tells me to get on with it.

"Come on, Mr. Stinegold, isn't it common knowledge that chestnut is not a rare color among horses?"

"Objection," says Kline.

"Overruled. The witness can answer the question," says Radovich.

"It's not rare," says Stinegold.

"In fact, if we went out today and visited stables in this county, isn't it likely that chestnut would be the predominant color found in them?"

"It's possible," says Stinegold. It is more than that, but I accept the concession.

"And if we collected hair from all of those chestnut horses and gave it to you to examine under your microscope, would you be able to tell us which of those horses was responsible for the hair found on that blanket?" He smiles. The point is made. "Probably not."

"Because chestnut horse hair is not that unique, is it?" "No."

"The other elements you testified to, the texture, surface structure, and thickness from one chestnut horse, is very much like another, isn't that right?"

"That is probably true," he says.

"So the hair on that blanket could have come from almost any chest nut horse?"

"They would be similar," he says.

"Sufficiently similar that you would have a difficult time telling one from another?"

"Perhaps," he says.

"So that the jury understands," I tell him, "there's no way that you can specifically identify the horse hair found in the defendant's house or his vehicle with the hair found on that blanket other than to say that they look alike, is there?"

"No."

"Mr. Stinegold, are you familiar with the concept of transference as it applies to the science of trace evidence?"

"I am," he says.

"Can you explain that concept to the jury?" He looks at me first as if I'm digging my own grave, as if this is not helpful to our case. Then he turns to the jury.

"Transference is the theory that microscopic evidence from one moving object will, all things being equal, transfer either all or part of itself to another object with which it comes in contact." "Sort of like bees pollinating a plant?" I ask.

"That's a fair analogy," he says.

"So that if I rub up against you, we would expect that fibers from my clothes would be left on your clothes and fibers from yours would be left on mine?"

"Allowing for differences in fabrics," he says. "Some might not leave any trace fibers."

"Of course. But assuming they did, you would expect to find transferred fibers, some cross pollination?" He thinks about this, but is already nodding his head.

"Yes."

"And you believe that this is how the hair in question came to find its way into the defendant's vehicle?"

"Yes."

"And into the victim's apartment?" "Correct."

"And onto the blanket used to wrap the victim's body?" "That's right."

"And did you find anything else on that blanket?"

"A few other fibers, bits of wood, microscopic refuse from the trash bin where the body was found," he says.

"But in your view the only significant substances detected are the carpet fibers and the horse hair?"

"In my opinion, yes."

"Was there a lot of hair on that blanket?" I ask him. "A fair amount," he says.

"Your Honor, I would like the witness to demonstrate the transference of hair onto the blanket," I say.

Kline has a problem with this. I have cut several small pieces of nylon carpet, and he objects that they may not match the carpet in Acosta's car.

"They are close enough for demonstrative purposes," I argue. "We're not going to ask the witness to compare samplers of hair and fibers." I say.

"With that understanding," says Radovich.

I hand a piece of the carpet Co Stinegold. I've gathered some horse hair for this purpose in a small envelope, and I hand this to the witness.

"The hair is black in color," I tell the court. "They should be easily distinguishable from the others on the blanket." Stinegold looks at them and agrees with this. He spreads some of the hair on the carpet, wiping it along the cut bristles with his hand.

I have the clerk retrieve the blanket from the evidence cart and hand it to him. It is mauve in color. Stinegold places it in a puffed-up ball on the railing in front of him, part of it draping over the edge and down onto the floor.

He takes one corner of the blanket and wipes it briskly with the car pet, as you would a brush. Then he lays the carpet facedown on the railing and examines the blanket.

"There," he says. Stinegold holds the blanket out for me to see, a victorious look in his eyes. It is covered with black horse hair in the area that he has rubbed.

"If you have some tape I can show you how we retrieved the samples," he says.

"That's not necessary," I tell him. I pick up the blanket and the piece of carpet from the railing.

Kline is sitting with a self-satisfied smile at his table.

I walk several steps away from the stand, the blanket in one hand, the carpet swatch in the other, before I turn and face the witness in the stand. I have already looked, so I know it is there, before I hold this up for Stinegold to see on the stand the small swatch of carpet.

"And what is that?" I ask him.

Stinegold sits looking at the carpet, wincing from the stand. There, on the small swatch of carpet, are a dozen balled-up pills, fibers from the mauve blanket caught on the sharp bristles of the carpet.

"Mr. Stinegold, in your examination of my client's vehicle did you find any trace of fibers from that blanket, either in the trunk or the passenger compartment?" It is a question to which I already know the answer, contained in Stinegold's report.

It is not as if they are surprised by this. They have known from the inception that it is a problem with their case. But the manner in which it is presented makes it look as if Stinegold has been hiding it from the jury. All the ways to make a bad impression. "Mr. Stinegold. Did you find ... ?"

"No." It is the final thing that he offers to the jury. That and a plaintive look that is worth a thousand words.

HAPTEB

HEY HAVE DISCOVERED oscar nichols.

"How the hell?" says Acosta. We are in the lockup of the county jail, Harry, Acosta, and I. The judge sits on the other side of the thick glass, speaking through the microphone implanted in the shield between us.

We are at this moment sitting shell-shocked, and contemplating the havoc that this one witness could wreak on our case.

"How did they find him?" Acosta is looking weary, the effects of stress with each new witness, every new revelation, the peaks of our case, and the valleys that are certain to come.

"He came forward," I tell him. "Of his own volition." This seems to unnerve Acosta more than the fact itself, that a man he believed to be a friend would do this.

Word of this has come in the form of a motion from prosecutors to call Nichols in their case. Affidavits attached to the motion reveal that Nichols called Kline's office three days ago and disclosed that he had information, supposed admissions made to him by the defendant.

It appears that regardless of the damage we have dealt to Kline's evidence--the undermining of hair and fibers, and his avoidance of the metal scrapings--Nichols has been troubled from the inception by a single gnawing notion: that his old friend may be guilty of murder.

It is the timing that is most troubling. Kline has done something now, we are not sure what, to smoke him out.

"It figures," says Harry. "Nichols sitting alone in chambers each day, wondering if somehow it would come out. The admission?" he says.

"I admitted nothing," says Acosta.

"You made death threats," says Harry.

"Bitter words that meant nothing," says Armando.

"Well, now I guess we'll get a chance to see what the jury thinks." Harry has the final word.

For Nichols it must have been a long, anxious wait. A sitting judge sweating bullets, wondering if death threats uttered to him in confidence would somehow find their way into the record. It is the kind of thing that could undo a judicial career, a lot of questions by the Commission on Judicial Qualifications if he was found to be withholding evidence.

"Why would he do it? Why would he tell them?" says Acosta. "Covering his ass," says Harry.

"But why now?" says the judge. "Why this particular time, when things were going so well?" He looks to Harry, then me. The thought has crossed our minds.

"Maybe he knows something we don't," I say.

Some dark evidence. The thought suddenly settles on Acosta. This is how they would pry Nichols loose, something so damning in its implications that even a friend of long standing could not ignore it.

"What could it be?" he says.

"No doubt we'll find out," I tell him.

"Yeah. When they dump it on our heads like a ton of shit," says Harry. To Acosta sitting behind the glass, it would appear that the final rat has now left the ship.

This has been a continuing theme for the past two weeks. First, his bailiff, who had been with Acosta for ten years, told him that he was under strict orders to report any telephone contacts with the judge and advised him not to call again.

Then, last week, Acosta called his clerk to ask a favor, something he wanted from his office. She would not take his call and did not return it.

Kline has been putting pressure on these people through the judges to cut him off. Isolation as a weapon.

The sense that he is now alone seems to have settled on Acosta like the angel of death, his only remaining partisan besides ourselves being Lili. According to him, they are closer now than at any time in their marriage.

"We got one thing," says Harry. "Nichols's name isn't on their witness list."

"True," I tell him. "But it's likely that Radovich will carve an exception. Kline is arguing that there is no way the cops could have discovered Acosta's threats unless Nichols came forward."

"He is undoubtedly right." Acosta seems to come out of some dark reverie on the other side of the glass. "There is only one explanation for this: Oscar came forward because he thinks I am guilty." This has just dawned on him.

"Yeah, well." Harry is looking at him. Nichols may not be alone in this thought.

"His intuitions we can keep out," I tell him. "Right now I'm worried about what he'll say on the stand. And, if possible, how to keep him off of it." The test as to whether Nichols can testify is one of good faith. If the police could not have uncovered the damning threats made by Acosta to Nichols, there is no way they could have disclosed the information to us in discovery or put Nichols on their witness list.

While we were under no duty to disclose this information ourselves, it is another matter now to deceive Radovich, to tell him that we are surprised by the disclosure.

He would probably not believe us in any event.

There is a certain equity in Kline's argument that Radovich would be certain to pick up on. If Acosta has not been sufficiently truthful with his own lawyers to alert them to this, death threats that he made, a ticking bomb in the middle of their case, who better to suffer the slings and arrows than the defendant himself.

"Kline will play on it, that Nichols's conscience got the better of him, " says Harry. "This, and the fact that he is a sitting judge, will put the flourish on his credibility," he says. We mull over the options, few as they are.

Harry suggests that perhaps we could stipulate. A last-ditch effort.

What he means is a settled statement, something sanitized and agreed to between the parties that would summarize Nichols's testimony without letting him on the stand.

"We could file off the rough edges," he says. "The jury might not pay much attention."

"Why would Kline go for it?" says Acosta. He may be in a funk, but he has not lost touch with reality.

"We argue surprise," says Harry. "That it's an eleventh-hour witness. Try to get Radovich to pressure him. It is, after all, a possible grounds for appeal." The defendant's ultimate trump card. "Something we can try to bargain with." We talk about it, Harry and I. While it may not succeed, it is the best among a poor batch of alternatives. While we are talking, arguing the fine points of how to approach this, Acosta seems mired in his own dark thoughts. He sits behind the glass, hands coupled, fingers steepled under his chin. Suddenly, in mid-sentence, he cuts us off.