He was completely unprepared, however, for the things Dan told him during that first session at county jail. According to Dan, he’d had nothing to do with Carol’s murder. He was innocent. Lorn had listened to the detailed, heart-wrenching story of a man whose circumstances made him easily the most likely suspect.
Lorn watched Dan closely as he spoke, looking for telltale signs that he was lying—twitching lips, blinking eyes, shaky voice. There was nothing. He also listened carefully to details of the story. If Dan was guilty, then how come the car’s registration tag was found and photographed outside on the driveway. How did it get there if Dan was in the house shooting Carol? If Dan was guilty, then why hadn’t the police found the hollowed-out book during their initial search? And how could Dan have shot himself in the waist not knowing whether he would leave a trail of blood when he hid the guns and, for that matter, not knowing whether he would survive?
There was another note of truth in Dan’s story. According to Dan, Carol walked into the house and said, “What are you doing here?” Immediately after she said that, two shots were fired causing Dan to run into the house. Lorn decided that was not a statement someone would make up. When a woman surprised burglars in her house she did not typically stop to ask them the reason for their visit. Under normal circumstances she would turn and run. Unless, of course, Carol, knew her killer. Lorn decided to explore the possibility that Carol was killed by someone she knew other than her husband.
After three hours of listening to Dan talk and looking over police reports, Lorn would have bet his life that Dan was telling the truth. When Dan stopped talking, Lorn paused for nearly a minute. He had represented many criminals in the past, but never had he worked for a man charged with something he had no part in.
“Far as I can tell,” Lorn said slowly, leaning back in his chair and sizing up the task before him. “You’re the first innocent man I’ve ever represented.”
Dan smiled and let out a sigh of relief. “Then you believe me?”
Lorn nodded, realizing this case would require the biggest sales job of his life. “I believe you. But getting a jury to believe you will be another thing altogether.”
Chapter 32
Deputy District Attorney Tricia Lynn of Pasadena’s Superior Court was assigned the duty of prosecuting the case against Dan Montecalvo. Now, in the final days of March, the preliminary hearing was about to begin.
Lynn had gone over the evidence dozens of times but she was still haunted by a nagging doubt. In all her years, she had never tried a first-degree murder case solely on circumstantial evidence. Lynn ran through her notes one last time. Life insurance. Hollowed-out book. Gambling debts. Talk of divorce. Late nights on the town. Carousing. Drinking. Strange behavior since the murder. And the damaging information from Pacific Bell that Dan had previously offered to kill a woman for her life insurance money.
The circumstantial evidence was overwhelming. Lynn closed her notebook confidently. There might not be enough evidence to convince a jury of Dan’s guilt, but there was enough to warrant a trial.
The morning before the preliminary hearing Brian Arnspiger was racking his brains, trying to imagine some area he might have overlooked. For all his painstaking work on the case, he was still frustrated that he had uncovered no physical evidence.
He reached into his desk and pulled out a stack of the index cards he’d kept beside his bed during the investigation. Each card contained an idea he had already pursued. “Fingerprints on cash box?” “Blood on phones?” “Blood on hands?” “Gambling since Carol’s death?”
Suddenly his eyes fell on the final card in the stack. “Second GSR test?” That was it. Gunshot residue tests always included two parts. The first part of the test—the swab test—had been negative. Brian had submitted the second test for analysis but had never received the results.
He picked up the phone. “Phil Teramoto, please.”
Two minutes passed and a frustrated Brian considered hanging up and calling again. Finally someone answered.
“Teramoto here.”
“Phil, its Arnspiger, Burbank P.D. I need a favor.”
By that afternoon, the gunshot residue test labeled “Daniel J. Montecalvo, April 1988” was located in the Burbank Police Department evidence room. Because of an oversight, the test had never been sent in for analysis following Brian’s January request. That evening Brian made sure the test was taken to the Los Angeles County Sheriff’s Department crime laboratory. The preliminary hearing was minutes away from beginning and Teramoto had told Brian the test took forty-eight hours to complete. Brian knew results might come too late.
The preliminary hearing began on March 27 and took less than two days to complete. Throughout the presentation of evidence, Dan Montecalvo sat calmly in the defendant’s seat dressed in an inexpensive gray suit jacket and pants. His black hair had been trimmed and was conservatively short, slicked to one side of his head. He did not look like a man charged with murder, rather he looked like someone about to attend a Sunday church service.
If Brian Arnspiger had been there he would have noticed that the look of resignation Dan had worn during his arrest had disappeared. In its place was a confidence that his attorney, Lorn Aiken, had instilled in him. Never had anyone believed in him as completely as Aiken did. For the first time since the early days of April 1988, Dan did not seem worried about going to prison for Carol’s murder.
Beside Dan sat Lorn Aiken, his walking cane leaning against the defendant’s table. Aiken wore a pin-striped suit but his six-foot three-inch frame and his unruly black curly hair and matching beard made him look wild and dangerous. He looked more like a pirate than a defense attorney.
Tricia Lynn appeared cool, organized, and businesslike. By that afternoon she had presented the evidence against the defendant. Finally, she called Dan to the stand and asked him to hold an unloaded .25 caliber handgun and point it at the scar on his back. The stunt was intended to prove that it was possible for Dan to have shot himself.
But during cross-examination Lorn Aiken demonstrated that there are many places on the body where someone might physically be able to shoot themselves. But some people would never be mentally capable of such a task. When Aiken was through with him, Dan appeared incapable of shooting himself in his big toe, much less an area close to several vital organs.
Lorn Aiken had been watching Tricia Lynn closely and what he saw told him his sales pitch that morning had worked. Two hours before the preliminary hearing he had met with her in her office and explained some things not mentioned in the compilation of circumstantial evidence. He had asked her of the whereabouts of the footprints collected from Dan and Carol’s kitchen floor the night of the murder. They had been labeled as evidence, then sometime during the past two years they had disappeared. Why? He had told her about the footprint in Suzan Brown’s backyard which was never investigated. Why?
There was a slit in the sliding screen door at the rear of the Montecalvo home, just the right size for someone to slide two fingers in and unlock the door. Yet the prosecution contended there were no signs of burglary in the house. Why? And how had the registration tag wound up on Dan’s driveway if he was inside killing Carol? Lorn Aiken had questioned the evidence for more than an hour, while Lynn listened thoughtfully.
“Are you finished, Mr. Aiken?” she asked politely when he had finally stopped talking.
“Look.” Lorn was going for the hard sell. “The man’s innocent. He might be a lousy guy, a lousy husband, and a lousy gambler. But he’s not a killer.”
Long after he’d left, Tricia Lynn had sat at her desk troubled by the ring of truth in Lorn Aiken’s words.
The defense was midway through its presentation when Dan Montecalvo was called to the witness stand. In tears, he recounted the last hours of Carol’s life.
“I could never kill Carol,” he said, tears streaming down his ruddy cheeks. “She saved my life. She was everything I had.” He paused, wiping his
face and trying to catch his breath. “Don’t you understand? I worshipped the ground she walked on.”
Lynn watched him, thinking again of the reasons Aiken believed Dan to be innocent. She stared at the man on the witness stand and suddenly, she knew what she had to do.
At 1:30 P.M. the next day Phil Teramoto finished typing the results of the gunshot residue disc test. He wasn’t sure what they would mean for the case, but he knew Arnspiger needed them immediately. He activated his fax machine.
“Arnspiger, Teramoto here,” he said, holding the telephone in one hand and the results in the other. “Check your fax machine. The results are in.”
“Thanks.” Brian was halfway out the door of his office before he hung up the phone. He grabbed the document from the machine and searched it for the information he wanted.
Subsequent analysis of Scanning Electron Microscope—Gun Shot Residue kit No. 12760 revealed two spherical particles of lead from the right hand disc. Lead spheres are commonly found in gunshot residue.
Brian felt a surge of elation. The lead spirals were the closest thing he’d had to physical evidence so far. Even if it was only two particles. The test showed that there had indeed been lead on Dan’s right hand—one indication that he had fired a gun that night. He ran back to his office and picked up the telephone. A woman answered on the second ring.
“Tricia Lynn, please.”
“Speaking.”
“Detective Arnspiger here. I have some evidence you need to see on the Montecalvo case.”
Tricia sighed. “It’s too late, Detective.”
“What’s too late?” Brian could feel a stirring of panic starting in the pit of his stomach.
She paused a moment before continuing. “I recommended the case be dropped for lack of evidence.”
Chapter 33
In the hours after Tricia Lynn’s recommendation to drop the case, a frustrated Brian Arnspiger sat at his desk fuming. His office bore the proof that he did not give up easily. A bulletin board on one wall was covered with mug shots of criminals Brian had built cases against. Underneath each picture Brian had scribbled the results of his labor: “fifteen to life,” “twenty to life,” etc. Alongside the pictures was a photocopy of a cartoon that read, “Every day I’m forced to add another name to the list of people who can just kiss my ass.”
There was also a wooden plaque given to him during his years on patrol that read, “Yea, though you walk through the valley of the shadow of death you will fear no evil, for you are the meanest bastard in the whole valley.” Across from that wall was one covered with pictures of his wife and kids. Near their pictures was one of the American flag with these words, “Try Burning This One.”
Brian stared at these things, thinking of everything that was important to him, and finally he came to a decision. He picked up the telephone and made a call that he knew represented his last hope. It was to Assistant Head Deputy District Attorney Ben Bernard.
For more than two years Bernard’s administrative duties had kept him out of the courtroom, but he was more familiar with the case than anyone at the district attorney’s office. He had reviewed the case several times. Bernard knew better than anyone the hours that Burbank police—especially Brian—had put into the case. An hour after Brian’s call, Bernard was back on the phone with him.
“Relax, I talked with Meine and Foster,” Bernard said, referring to his boss and his boss’s superior. “We’re meeting tomorrow. Ten in the morning. My office.”
“What for?” Brian had been devastated by Tricia’s decision and was afraid to get his hopes up again. “To discuss Tricia’s recommendation. Don’t be late.”
Brian was twenty minutes early for the meeting. When everyone had arrived at Bernard’s office, the group moved to a conference room and began the discussion.
“I understand we have a difference in opinion about the case of People v. Dan Montecalvo,” Donald S. Meine said, looking at the dockets in his hand. Meine was the senior member from the district attorney’s office and he would make the final decision on whether to dismiss the charges. He looked about the small wood-paneled room at the grim faces of Bernard and Brian Arnspiger. He knew they felt strongly about taking the case to trial. On the other side sat Tricia Lynn and Bernard’s boss—Joseph Foster.
“Tricia, why don’t you tell us why you feel the charges should be dismissed,” he said.
Tricia nodded. “Mr. Meine, I have examined the evidence and do not believe it is enough to take the case to trial.” She spoke slowly and articulately, almost as if she were in court giving an opening statement. “There is no physical evidence against the man. It would be a waste of taxpayer money and court time to try him for first degree murder when there is no possible way to win a conviction.”
Brian knew she was right about the physical evidence. Because there were so few lead spirals on Dan’s hands, he could easily have picked them up by touching his own wound. They were helpful but they were not conclusive as physical evidence.
Her speech finished, Tricia leaned back in her chair. Beside her, Foster nodded his approval. “I have to agree,” he said. “The case is completely unwinnable.”
Across the room, Brian sat quietly fuming.
“I see,” Meine said, gently stroking his chin. “How ’bout you, Bernard? What convinces you there’s a case?”
Bernard crossed his legs casually and smiled. At fifty-one, he was a subtly handsome man of medium height and build. He was partly bald and had the kindly face of a family doctor. In fact, with the exception of his cooly intelligent brown eyes, everything about Ben Bernard suggested he was incapable of the cunning ways he had demonstrated in many courtrooms. Bernard knew how people perceived him and he had long since taken to using that perception to his advantage. It took most jurors less than five minutes to feel as if they were personal friends with the prosecutor. Often they’d nod in agreement with him, returning his warm smile. He was smiling that way now as he responded to Meine’s question.
“It’s an interesting thing, Mr. Meine.” He chose his words carefully, responding much the same way he would have if Meine had asked him about his summer vacation. “Actually, I couldn’t agree more with Ms. Lynn.” Bernard smiled in her direction.
Tricia had seen that smile years before, always before Bernard won a conviction.
“In fact, I was very concerned about this case. Last thing I want is a trial that wastes time and money.” He was still smiling. “Three times, maybe four, Detective Arnspiger brought this case to our office and I sent him back for more evidence. Isn’t that right, Detective?”
Brian took the cue. “Right. Four times.”
Meine nodded. The story was making sense to him.
“Anyway, the last time he brought the thing to me he had more than 8,600 pages of evidence against the defendant.” Bernard paused and let the figure sink in. “To tell you the truth, I think I was a bit more demanding than I needed to be. We probably could have tried the case the second or third time Detective Arnspiger brought it to us. But I wanted to be absolutely sure—in my own mind—that there was enough evidence to win a conviction.”
Meine made a few notes and then looked toward Bernard. “You believe there’s enough for a conviction?”
“Oh, absolutely, sir. Some of the best evidence came in just a few weeks ago from the victim’s employer, Pacific Bell. That evidence alone was enough to convince me.”
Meine hesitated for a moment. “Mr. Foster, what do you have to say about that?”
“I’m sorry, sir, but I still have to agree with Ms. Lynn.” Foster was not happy with the way the meeting was going. “There is nothing concrete to connect that man with the murder of his wife. Nothing at all.”
“The reason there isn’t anything concrete to connect him with the murder is that he’s innocent,” Tricia broke in. “I’ve talked with the man’s defense attorney, Lorn Aiken. He is completely convinced Montecalvo is innocent. After reexamining
the lack of evidence I have to agree.”
Meine looked back at Bernard. “Would you like to add anything, Bernard?”
“Well, I guess I’d have to disagree. Largely because the case has already survived a nine ninety-five motion.” Bernard played his trump card, watching as Meine’s interest peaked. A 995 is a motion filed by the defense asking a judge to dismiss a case for lack of evidence.
“Who filed a nine ninety-five?” Meine asked.
“Defense attorney Lorn Aiken,” Bernard answered. “Filed it with Judge Jack Tso, I believe. It was denied.”
Meine said nothing but made several more notes.
“I guess I figure,” Bernard continued, “if it’s survived a nine ninety-five we might as well take it in front of a jury and let them decide if he’s guilty.”
Bernard had no doubt in his mind that those last words had done the trick. He watched as Meine scribbled for another few seconds.
“Well, I appreciate your different positions, but I have to say I agree with Bernard. If a judge thought there was enough evidence to go on with the thing, we need to give it our best shot. Let a jury decide.”
Tricia pursed her lips in frustration. “Fine. I’ll start preparing the case.” She started to leave.
“Just a minute.” Bernard sounded incredulous—his words stopped Tricia in the doorway. “Five minutes ago you told everyone in this room you thought Dan Montecalvo was innocent. Now you’re going to prepare the case against him?” He turned toward Meine. “Mr. Meine, I believe that raises an ethical problem.”
Meine nodded, looking concerned. “Good point.” He turned to Tricia. “Ms. Lynn, you’re off the case. Bernard, you’ll have to get someone else on it right away.”
Bernard thought for a moment and then shrugged. “I’ll take the case. One of the other deputies can help me out.”
Final Vows Page 23
