Compelling Evidence m-1 Read online

  “It’s possible,” says the witness.

  “Thank you.” Cheetam sits down.

  I can’t believe it. Cheetam’s running on the theory that Ben committed suicide. He hasn’t read the pathology report, the fact that Potter’s hands tested negative for gunshot residue.

  I can just hear Nelson on close: “And how does the defendant explain the lack of any fingerprints on the shotgun?”

  The next witness is Willie Hampton, a young black man, the janitor who heard the shotgun blast and discovered Ben’s body in the office.

  Nelson has some difficulty getting Hampton to repeat accurately the details he provided to police the night Ben was killed.

  “Mr. Hampton, can you tell this court approximately what time it was when you heard the shot in Mr. Potter’s office?”

  “I was doin’ the bathroom, the men’s room, down the hall,” he says. “Ah say it were maybe …” There’s a long pause as Hampton tries to conjure up the details in his mind. Nelson, sensing trouble, stops him.

  “Maybe this will help. Do you remember talking to a police officer who questioned you later that evening?”

  “Ah do. Ah do remember,” he says.

  “And do you remember telling that officer that you heard the shot in Mr. Potter’s office about eight-twenty-five P.M.?”

  “Objection, Your Honor. The question is leading.” Cheetam’s on his feet.

  “Sustained.”

  “Ah remember,” says Hampton. “I heared that shot about eight-twenty-five. It were about twenty-five minutes after eight o’clock. I remember cuz I was doin’ the bathroom and I always do the bathrooms about that time.”

  “That’s all with this witness.” Nelson has what he wants. He will stiffen it with evidence that the police dispatcher received the phone call from Hampton before eight-thirty.

  Cheetam passes on any cross-examination of the witness, and we break for lunch.

  In the cafeteria, over a salad with lettuce browning at the edges, I’m pounding on Cheetam, telling him to drop the suicide scenario. Talia’s listening intently, swirling the tip of a plastic spoon in a small container of yogurt. She is playing with it more than eating.

  “What’s wrong with it?” he says. “The state’s gotta show that the victim died as a result of criminal agency. If we can move in the direction that it was a suicide, there’s no criminal agency.”

  “There’s only one problem; it doesn’t square with the evidence,” I tell him. This, it seems, is lost on Cheetam. I walk him through the GSR tests and the lack of Potter’s prints on the gun.

  All the while Talia is watching the two of us bicker. A look of foreboding is in her eyes, as if to say, “If my lawyers cannot agree, what hope is there for me?”

  “Potter was wearing a suit coat when he died,” Cheetam says. “What if he used the bottom of the coat to grip the gun, sort of wrapped the barrel in the coat? This would explain both the absence of prints on the gun and the lack of residue on his hands.”

  It is lame in the extreme, insufficient to overcome the wealth of suspicion that has begun to settle on Talia.

  “And how did he carry the gun to the office and avoid prints?” I ask.

  “Maybe a gun case,” he says, “or a blanket.”

  “Then why wasn’t the case or the blanket found in the office? And how do you explain the fact that the cartridge in the shotgun didn’t carry Ben’s prints, if he loaded it himself?”

  “I don’t know, maybe he used gloves.” He looks at me, pushing his plate away. “I need a cup of coffee,” he says, and leaves Talia and me sitting at the table alone.

  In recent days Talia has taken on the look of a trapped animal, small and frightened.

  “There’s no way out of this, is there?” she says. “I’m going to have to stand trial in Ben’s death, aren’t I?”

  “It doesn’t look good,” I concede.

  She looks out the window for a moment, giving herself time to absorb this news. Then she turns her gaze to me. “Will you stay with me?” she says. “Will you continue to represent me?”

  At this moment she is completely vulnerable. I consider the mountain of incrimination rising up before her and my mind fills with images of the death house. Only now it is not Brian Danley twisting and writhing under the straps, but Talia.

  “I will,” I say. “I will stay with you as long as I can help, as long as you want me.”

  She says nothing, but slides a hand along the table and takes mine. She squeezes. We are finding, I think, at long last a point of equilibrium for us, somewhere between animus and lust.

  In the afternoon Nelson calls George Cooper to the stand. Cheetam refuses to stipulate to Coop’s expertise as a pathologist. One open-ended question from Nelson, and Coop begins to narrate his curriculum vitae into the record. O’Shaunasy is fuming on the bench. Ten minutes pass and finally she cuts him off.

  “The man is qualified to testify as an expert on issues of medical pathology. Do you have any specific objection?” She looks over her glasses at Cheetam.

  “No, Your Honor.”

  “Thank God for little favors,” she says.

  Coop looks at me obliquely from the witness box and smiles, a little Mona Lisa. This is the same look he uses when we play poker. Coop has one of those stealthy expressions that can mean anything from an inside straight to a pair of deuces.

  Nelson wastes no time leading his witness into the well-charted waters of lividity. I suspect that Coop has kept his own counsel concerning our early conversation on the point. It is ancient history now, as the details were well covered in his report which came with discovery.

  Coop talks about gravity and the flow of blood, the indisputable fact that the body was moved after death.

  Cheetam leans toward me. “Was this in the report?”

  I nod.

  There is a sober expression on his face as he sees his suicide theory turning to dust.

  “Dr. Cooper, can you tell us the cause of death?”

  “Death was caused by a single bullet or bullet fragment that lodged in one of the victim’s basal ganglion. This produced,” says Coop, “almost instantaneous death.”

  There follows, for the benefit of the court, a brief explanation using anatomical drawings, to show the location of the bullet fragment.

  “This is a major nerve center at the brain stem,” says Coop. “This is where nerve cells connect to the cerebrum and from there down the spinal column to the rest of the body. If this nerve center is destroyed or disrupted, vital life functions stop.”

  “And that’s what occurred here?”

  “Yes.”

  “You say a bullet caused this trauma to the victim’s basal ganglion. Do you mean a shotgun pellet?”

  “No. I mean a bullet, probably small-caliber, fired into the victim’s head, probably at close range.”

  There’s a stir in the courtroom. Reporters in the front two rows are taking copious notes.

  Nelson pauses for a bit of dramatic effect, as if he is hearing this revelation for the first time.

  “Doctor, can you tell us the time of death?”

  Coop consults his notes, a copy of the pathology report.

  “Between seven P.M. and seven-ten P.M.,” he says. “We fixed it at seven-oh-five P.M.”

  “How can you be that precise?”

  “A number of procedures,” he says. “The secret is to find the body soon after death. The various degrees of rigor mortis will tell you something. Lividity itself will give you some clues. If the skin blanches when pressed, turns white, the blood has yet to coagulate. This would mean that death occurred within less than half an hour of the examination. If the blood can’t be pressed out of the capillaries, the skin will stay the same dark tone when pressed. The victim has been dead longer. In this case I was able to take the temperature of the liver. This is an organ well insulated by the body. It’s not subject to rapid temperature variations of the outside atmosphere. In this case, I would consider it a precise
means of determining the time of death.”

  “I see. Then is it your testimony, doctor, that Benjamin Potter was shot in the head by a small-caliber firearm sometime between seven P.M. and seven-ten P.M., and that it was this wound that resulted in death?”

  “Yes.”

  “Then is it safe to say that the shotgun blast heard in Mr. Potter’s office was not the cause of death?”

  “That’s correct,” says Coop.

  There’s more stirring from the audience. Two of the reporters leave, probably to telecast live news shots from their vans parked in front of the courthouse.

  Nelson now heads into the imponderables, the caliber of the small round and the distance from which it was fired. Coop explains that the answers to these questions are less certain since the bullet was but a fragment, and any tattooing that might have been left on the skin from a point-blank shot was obliterated by the massive shotgun wound. It is Coop’s opinion, stated to the court, that the bullet that caused death was itself fragmented by the shotgun pellets as they entered the brain.

  “The shotgun blast,” he says, “in all medical respects, was an unnecessary redundancy.”

  “Unless,” suggests Nelson, “someone was trying to make a murder look like a suicide?”

  Precisely,” says Coop.

  He is now Cheetam’s witness.

  “Dr. Cooper, you say mat this mystery bullet fired into the head of Mr. Potter was the cause of death. Were you able to find an entry wound for this bullet?”

  “No, as I said …”

  “You’ve answered the question, doctor. So we have no entry wound that you can find for this bullet. How large was the bullet in question, what caliber, can you tell us?”

  Coop’s eyes are turning to little slits.

  “Not with certainty. It was a fragment.”

  “Oh, a fragment. How big was this bullet fragment, doctor?”

  Coop consults his report. “Ten point six eight grains,” he says.

  “And when you conducted the post mortem, did you find shotgun pellets lodged in the victim’s head?”

  “Yes.” Sensing Cheetam’s juggernaut, Coop’s gone to short answers.

  “How many of these pellets did you find?”

  “In the victim, or in the office ceiling?”

  “Let’s start with the victim.”

  Coop looks at his notes again. “There were sixty-seven removed from the cranial cavity during the post mortem.”

  “And in the ceiling?”

  “Four hundred and ninety-two.”

  “Do you know the size of this shot found in the victim and in the ceiling?”

  “Mostly number nine.”

  “Do you know what these pellets were made of?”

  “They were composed of lead with a thin coating of copper.”

  “Do you know, doctor, how many pellets there are in a normal load of number-nine shot?”

  “About five hundred and eighty-five …”

  “Objection, Your Honor.” Nelson has caught Cheetam wandering. “If Mr. Cheetam wants to call a ballistics expert, he’s free to do so. Dr. Cooper is here to testify as to the medical pathology in this case.”

  “Sustained.”

  “Still,” says Cheetam, “the doctor knows his shot. He’s right on with the number.”

  “Objection. Now counsel’s testifying.”

  “Mr. Cheetam, direct your comments to the witness and kindly frame them in the form of a question.”

  “Sorry, Your Honor.”

  “Dr. Cooper, the shotgun pellets you found in the victim and in the ceiling of Mr. Potter’s office, were these all number-nine shot?”

  “No. They varied in size.”

  “They varied?” Cheetam’s eyebrows arch for effect, and he turns toward the jury box, forgetting for a moment that it’s empty.

  “Some were one shot-size larger and some were one shot-size smaller, but most of them were number-nine shot.” Coop’s voice is flat, as if he’s saying “So what?”

  Cheetam pauses for a moment. He wants to ask Coop whether such variations in shot size are common. But Nelson will have the court kick his butt. He moves on.

  “Now this supposed bullet fragment, you said earlier that it was ten point six eight grains. Is that correct?”

  “Yes.”

  “How large were the shotgun pellets found in the victim?”

  Again Coop looks at his notes. “They averaged about point seven five grains of weight.”

  “So this other thing, this thing you identified as a bullet fragment, was a little bigger?”

  “No, it was a lot bigger,” says Coop. “Approximately fifteen times bigger.”

  “I see.” Cheetam’s smiling, not to appear set back by an unhelpful answer.

  “Doctor, have you ever heard of the phenomenon called ‘fusing’ as it’s applied to shotgun ballistics?”

  “Objection, Your Honor.” Nelson’s at him again.

  Cheetam’s having a difficult time trying to get where he wants to go.

  “Let me reframe the question, Your Honor.”

  “Please.” O’Shaunasy’s looking over her glasses at him again.

  “In the course of your medical practice I assume you’ve done hundreds, perhaps thousands, of autopsies.”

  Coop nods.

  “And I assume that some of these, perhaps a considerable number, would have involved shotgun wounds.”

  “A number,” says Coop.

  “In the course of these autopsies involving shotgun wounds, have you ever encountered a situation in which two or more, perhaps sometimes even several, shotgun pellets fuse together to form a larger mass of lead?”

  Cheetam turns to engage Nelson’s eyes, an imperious grin having finally arrived on his face.

  “I’m familiar with the phenomenon. I’ve seen it,” says Coop.

  The grin broadens on Cheetam’s face.

  “Well, isn’t it possible that this object which you have identified as a bullet fragment, isn’t it possible, doctor, that this amorphous piece of lead is in fact just a number of shotgun pellets which have become fused together by the heat of the shotgun blast as they traveled down the gun barrel?”

  Cheetam turns his back toward Coop. He’s now facing Nelson, straight on, with his arms folded, waiting for the expected shrug of the shoulders and the concession of “It’s possible.”

  “No,” says Cooper. “These were not fused pellets.”

  Cheetam whips around and takes a dead bead on the witness.

  “How can you be so certain, doctor? Are you a ballistics expert now?”

  Coop is slow to answer, methodical and deliberate.

  “No,” he says. “I’m not a ballistics expert. But I’ve taken enough steel jackets from bullets out of bodies to recognize one when I see it.” Then, as if to pound the point home, he adds, “The fragment removed from the basal ganglion of Benjamin Potter was not lead. It was a portion of a steel jacket, used only in the manufacture of pistol and rifle bullets.”

  “Oh.” Cheetam stands in front of the witness box, his mouth half open-like the emperor without clothes. He has violated the cardinal rule of every trial lawyer: Never ask a question unless you already know the answer.

  “In this case it was thin and small,” says Coop, describing the fragment of jacket. “The wound that it inflicted was insufficient for a high-caliber rifle. Therefore, I arrived at the obvious conclusion that it was part of a bullet from a small-caliber handgun. Probably a twenty-five caliber …”

  “That’s all for this witness, Your Honor.” Cheetam’s trying to shut him up.

  “Because that’s the smallest caliber that uses a steel-jacketed round,” says Coop.

  “Move to strike the last answer as not responsive to any question before the witness, Your Honor.” Cheetam is shaken, standing at the counsel table now, looking for refuge.

  “Very well, counsel, but I should remind you that since you’ve opened this matter up, Mr. Nelson is free to explore it on
redirect.”

  O’Shaunasy’s put him in a box.

  With nowhere to retreat, Cheetam withdraws his motion to strike, allowing all of Coop’s answer to remain.

  Nelson passes on redirect. George Cooper has done all the damage necessary for one day.

  Cheetam sits fidgeting nervously with a pencil, as Nelson calls his next witness. It is Matthew Hazeltine, Ben’s partner. It was left to Hazeltine to craft wills and living trusts for the firm’s wealthy clients. Probate and estate planning are his specialties. He comes to this role well suited in appearance, a miserly-looking man with a craggy face and round wire-rimmed spectacles. If social reserve were a religion, Matthew Hazeltine would be its high priest. I can count on the fingers of one hand the times that I had spoken to him while with the firm. With Sharon Cooper’s probate file still hanging fire, I have wished on successive occasions that I’d made a greater effort to cultivate him.

  He testifies to the existence of the prenuptial agreement, a document that he says the victim asked him to prepare before Potter and the defendant were married. He now produces a copy of this contract, which Nelson has marked for identification.

  “Have you ever drafted a document similar to this agreement for other clients?” asks Nelson.

  “On a few occasions.”

  “What is the purpose of such an agreement?”

  Hazeltine considers for a moment before speaking. “Usually it’s intended to protect the rights of heirs, children by a former marriage.”

  “But the victim had no children in this case. Isn’t that true?”

  “That’s correct.”

  “And the defendant possessed no children?”

  “Right.”

  “So what purpose would such a document serve?”

  Hazeltine squirms a little in the chair. His is a gentleman’s venture, the drafting of wills and other papers of property where delicate questions of motive are, more often than not, left unstated.

  “Mr. Potter was a very cautious man. He believed in keeping his personal affairs in order. He was not one to take chances.”

  Hazeltine smiles at Nelson as if to say, “Enough on the issue.”

  “Mr. Hazeltine, have you ever heard of something called the Rooney clause?”