Try Fear (22 page)

“Did you question him again?”

“I Mirandized him and he refused to answer questions. He asked for a lawyer.”

“Would that be Mr. Buchanan?”

“Yes.”

Radavich had Zebker detail more of the crime scene investigation, including the collection of the forensics evidence. All
according to Hoyle, as they say.

“I have no further questions at this time,” Radavich said.

“Cross-examine,” the judge said.

C
ROSS-EXAMINATION IS THE
most abused aspect of trial work.

Most lawyers badly mishandle it. They go on fishing expeditions, like drunken businessmen angling for marlin on the weekend.
Or, worse, try to act like James Woods in
Shark
to get witnesses to say things they otherwise wouldn’t, through the sheer ferocity of their questioning.

That dramatic stuff hardly ever happens. You have to know exactly what you’re trying to do, and it’s not usually to break
down the witness. Very rarely do you even attempt to do that.

Especially when it’s an experienced cop on the stand.

Eager-beaver trial lawyers may attempt to show up a witness in front of the jury, but that is almost always a bad move. Unless
the witness is clearly lying, or is otherwise vulnerable, what you should do is try to elicit testimony that’s favorable to
your cause. And if you get it, save it for closing argument.

In other words, shut up.

When lawyers try to win their case right then and there, by hammering a witness, they usually end up slamming themselves on
the foot.

Only when the witness gives you a wide door should you try to drive a tank through it. And then, when you do, go for the kill.

Zebker was not the kind of witness who was going to give me any openings. He was professional, and had testified a whole bunch
of times. So I gave him the friendly treatment.

“Good morning, Detective,” I said from the lectern.

“Good morning.”

Just a couple guys meeting over coffee.

“In your direct testimony you made a great deal of the fact that you found no signs of struggle, correct?”

“I don’t know that I made a great deal out of it, I just mentioned it.”

“But you did draw a conclusion from it, that you thought the victim must have known the killer, is that right?”

“Yes.”

“Do you think the victim knew himself?”

“I don’t understand the question.”

“There would be no signs of struggle if the victim killed himself, correct?”

“We have ruled out suicide.”

“That’s not what I asked you, Detective. The question is, if someone commits suicide, there would not be a sign of struggle
either, isn’t that right?”

“That’s correct.”

“And, as you said, no signs of a struggle in that apartment.”

“No.”

I paused, letting the exchange soak into the jurors’ collective mind, then said, “In your interview of the witnesses, not
one of them saw anyone go into, or come out of, the victim’s apartment, isn’t that right?”

“That’s right.”

“My client is kind of a large guy, isn’t he?”

“I suppose.”

“Hard to miss in a crowd.”

“Maybe.”

“Harder to miss in an apartment complex, wouldn’t you say?”

“There are ways for someone to get out without being seen, they—”

“Objection,” I said. “Non-responsive. Move to strike.”

“Sustained,” Hughes said.

“My question,” I said, “is that a large man like Eric Richess would be hard to miss in an apartment complex in the early evening
hours, isn’t that right?”

“It all depends. If people are inside, if someone climbs out the back window and goes down the—”

“Objection,” I said again.

Radavich got up and said, “He’s opened the door, Your Honor. He’s asking the witness to speculate about the size of his client,
and whether he could be seen at the apartment complex. Mr. Buchanan asked for an opinion, and the witness is offering it.”

Hughes said, “I’m going to issue the same ruling. The witness can answer yes or no to the question. If you want to ask him
clarifying questions on re-direct, Mr. Radavich, you can do that.”

Two objections, two wins. The judge admonishing the witness. I decided that was a good place to leave that part of the questioning,
and went to my counsel table and picked up a copy of the autopsy report.

“You are aware, are you not, of the autopsy report on Carl Richess?”

“Of course.”

“You’ve got a copy there?”

He flipped to a page in his notebook. “Yes.”

“Referring you to page two of the report, under the heading ‘Gunshot Residue Kit Results.’ Do you see that?”

“Yes.”

“Please read to the jury the paragraph below that.”

Zebker looked at the page. “ ‘The chemical elements barium, antimony, and lead are elements of virtually all primer mixes.
Trace amounts of antimony were found on the anterior of decedent’s right hand.’ ”

“That is referring to gunshot residue, correct?”

“Yes.”

“Which the report says was found on the back of Carl Richess’s hand.”

“Yes.”

“Consistent with suicide, correct?”

“No.”

I should have stopped right there. I should have known something was coming. But the denial was so stark, so fast, I thought
he could only be blowing smoke.

“You’re saying that gunshot residue on the victim’s hand is not consistent with suicide by gun?”

“Not when it’s planted, like this was.”

W
HEN YOU GET
gobsmacked in trial, you have to keep your face from showing it. I call this the Phil Ivey. One of the world’s best poker
players, you can never tell what he’s thinking behind those cool eyes.

You use the Ivey to keep the jury from knowing the other side’s drawn blood.

I was bleeding.

And I was mad.

“Your Honor, if we could have a sidebar,” I said.

“Approach,” the judge said. “With the reporter.”

When we were all nicely gathered at the bench—Radavich, the court reporter, the judge, and Ty Buchanan—I made sure my back
was to the jury so they couldn’t see my face. I was afraid it might look less like Ivey and more like Sasquatch on a bad hair
day.

“I wasn’t given any notice of this,” I said. “There is no basis for saying the residue was planted. I move for a mistrial.”

“It’s news to me,” Radavich said.

“You expect me to believe you didn’t know about this?” I said.

“Gentlemen,” Judge Hughes said, “let’s address the bench, shall we?”

“He sandbagged, Your Honor,” I said. “There is nothing in the autopsy report or anywhere else that suggests planted evidence
like this.”

“What about that, Mr. Radavich?”

“I don’t know anything about it,” Radavich said. “Mr. Buchanan asked a question and my witness answered it. I didn’t ask him
about the residue. Mr. Buchanan did.”

It seemed to me Radavich could hardly contain his glee.

“I am moving for a mistrial,” I said.

The judge looked at the clock. “Let’s send the jury out for an early lunch, and keep the witness here. We’ll have a little
hearing and figure out what we’ve got.”

A
FTER THE JURY
cleared, the judge said, “All right, we are on the record. Detective Zebker is still on the stand. I’m going to let Mr. Buchanan
take the witness on voir dire. Go ahead, Mr. Buchanan.”

Good. The judge was allowing me to interrupt Radavich’s direct examination to ask questions relating only to my motion for
a mistrial. Outside the hearing of the jury, of course.

I faced Zebker. “Sir, where, in any written report, is there anything about a theory of planted evidence?”

“There isn’t,” Zebker said.

“Then what’s the basis of your opinion?”

“I spoke with deputy medical examiner Lyle Schneuder last night. I wanted to go over the autopsy report with him one more
time. He said that something had been bothering him, the pattern of the residue on the back of the victim’s hand. It wasn’t
spotty, it was streaked. He had an aha moment, he said.”

“An ‘aha moment’? What exactly is an ‘aha moment’?”

“You know, ‘Aha.’ He realized something.”

“And you didn’t share this ‘aha moment’ with the prosecutor?”

“Not yet. I didn’t have the chance.”

“Your Honor,” I said, “this is obviously a move that was planned out by the prosecution.”

The judge looked at me. “You have no proof of that, Mr. Buchanan.”

“I’m having an aha moment,” I said. “Which is why I am moving for a mistrial. I think somebody is lying. I’d like Mr. Radavich
to take the stand.”

“Excuse me?” the prosecutor said.

“I want you to swear under oath that you didn’t know about this.”

“Your Honor,” Radavich said, “this is ridiculous.”

“What have you got to hide?” I said.

“I object to that,” Radavich said.

“All right, all right,” the judge said. “That’s enough. Everybody cool off. Be back here at two o’clock sharp. I’ll make my
ruling then.”

“W
HY ARE YOU
trying so hard to irritate the DA?” Sister Mary asked me outside the courthouse.

“If your opponent is temperamental,” I said, “seek to irritate him. Pretend to be weak, so he may grow arrogant.”

“Who’s that, Clarence Darrow?”

“Sun Tzu.
The Art of War
. And give your enemy no rest. Attack where he’s unprepared, and appear where you are not expected.”

“Sounds like super-hero talk.”

“I am T Man. When you have to go to trial, call me.”

“As long as you don’t wear tights,” she said.

“I’ll wear a cape over them, so don’t worry.”

“I think you need some ice cream,” Sister Mary said.

“That’s your answer for everything,” I said. There was an ice cream place on Broadway, walking distance, a block past the
Times Building. We were crossing First when I said, “Maybe you need a little Sun Tzu for Sister Hildegarde.”

Sister Mary didn’t respond.

“It’s all politics,” I said. “The Catholic Church has always been political, ever since Constantine made it official.”

“Can we just have ice cream?” she said.

“If your opponent is persistent, offer him ice cream. Is that it?”

“Something like that.”

“Are you going to stay a nun?”

She stopped and turned on me. “Why are you asking me that? Why do you have to meddle in things? Why do you have to be so
you
?”

“I’m all I’ve got,” I said.

She spun around like she was mad and kept walking. People on the sidewalk got out of her way, like the Red Sea parting for
Moses.

Fortunately, ice cream solves everything and we were able to discuss the case. I determined not to make a big deal out of
Sister Hildegarde.

For a while, at least.

B
ACK IN COURT
, Judge Hughes denied my motion for a mistrial and then had the jury brought back in.

“Ladies and gentlemen,” he told them, “before the break Detective Zebker made reference to an opinion, a reference to evidence
being planted. You are to disregard this statement. It may play no role in your deliberations on this matter.”

Whenever a judge does this, it’s like telling the jury not to think of a pink elephant. Try that sometime.

“You may continue your direct examination, Mr. Radavich.”

“Just one more question,” Radavich said. “Detective Zebker, did you find a suicide note?”

“No,” he said.

“Thank you.” Radavich returned to his chair.

“Cross-examine, Mr. Buchanan,” Judge Hughes said.

I asked my question as I was standing up. “Detective Zebker, you had me arrested, didn’t you?”

Radavich was, of course, on his feet, shouting an objection. Hughes looked like he wanted to be in Philadelphia.

“This goes to bias and credibility,” I said.

“Continue,” Hughes said.

“Isn’t that right?” I said. “You had me arrested?”

“No.”

“I was arrested and booked into your jail, wasn’t I?”

“Not by me.”

“Don’t you recall threatening me with arrest?”

“I recall you were interfering with an investigation.”

“Did you arrest me for it?”

“No.”

“Then I wasn’t doing anything wrong, was I?”

“Yes.”

“But you didn’t arrest me, right?”

“No.”

“But you told me you would.”

“If you continued interfering.”

“Did I get in your way physically?”

“No.”

“Did I tell any witness not to talk to you?”

“I don’t know.”

“Ah, you don’t know. How much don’t you know?”

Zebker blinked. “I don’t know what that question means.”

“Let me help you out,” I said. “You claim I interfered with your investigation, yet you can point to nothing I did. The best
you can come up with is
I don’t know.”

“Objection,” Radavich said.

“Sustained,” said Hughes. “Just ask questions, Mr. Buchanan.”

“Detective Zebker, have you ever been disciplined by the department for misconduct?”

Radavich exploded, mostly in show for the jury, I’m sure. We trundled up to the bench again. Radavich argued that the question
was improper. Which led me to believe there was something in Zebker’s past, but that it wasn’t necessarily admissible.

Because if there was nothing Zebker could have just said no.

Hughes ruled for Radavich on this one, but I was pleased.

To the jury, he said, “The last question from Mr. Buchanan was objected to, and that objecting has been sustained. You are
not to give it any credence whatsoever.”

Yes, dear jury, do not think of that pink elephant anymore, I thank you.

“J
UST A COUPLE
more questions, Detective. You recall searching the victim’s apartment?”

“Yes.”

“And did you conduct an inventory of items you removed?”

“Of course.”

I got it from my briefcase and looked at it for a moment. Then I put on my surprise face and said, “There does not appear
to be a computer listed here.”