Until Proven Guilty

by Rachel Sinclair

  Chapter 28

  Five minutes later, Kevin was ready with his first witness. I guess he wanted to get the entire chemist controversy out of the way, for he decided to go ahead and call Dr. Smith. Dr. Smith was the chemist who worked in the crime lab for the Kansas City Police Department. He was the person who was tasked with testing the substance that was given to him that was seized from my mother’s medicine cabinet. I was anxious to go ahead and tear this guy apart, but I realized that he was probably the innocent party in all of it. He was given a substance that was heroin. However, he was not at the other end – he was not the person who was tasked with ensuring that the sample taken from my mom’s medicine cabinet was the same sample that was given to him. Nevertheless, I figured that he might know something.

  However, before that chemist took the stand, Kevin apparently changed his mind. He shook his head. “A rookie mistake. I’m sorry Your Honor I need to call a different witness. I need to call Officer Conrad.”

  Officer Conrad was the first responder to my mother’s home. Well, he was a first officer on the scene. The paramedic was the first person who was at the house, after my mother called 911. Officer Conrad was the first officer.

  He was sworn in, and Kevin asked him a series of questions. I was anxious to cross-examine him, because I knew from the report that he’d indicated that there was no real reason why he would’ve asked my mother to take a urinalysis. He did not indicate that she seemed like she was high at all. I thought that that was very odd that he automatically assumed that my mother was high, considering that she had no physical manifestations of having taken drugs.

  “Could you please state your name for the record,” Kevin asked him.

  The officer leaned closer into the microphone. “My name is Officer Leon Conrad,” he said.

  “And, Officer Conrad, were you the first responder to the home of Ms. Ward, the defendant?”

  “Yes. I was. I was the first officer on the scene. However, the paramedics had arrived at the house before I got there.”

  “But you arrived on the scene, at the request of the paramedic on the scene?” he asked him.

  “Yes. That is correct. The paramedic, Truman Wilson, who was the true first responder, contacted dispatch, and Officer Black and I arrived at the scene.”

  “And when you arrived at the scene, what did you find?” Kevin asked him.

  “The paramedics were still at the scene, having tried and failed to revive Dr. Dunham. My job was to speak with Ms. Ward, as the paramedic had indicated the possibility that Dr. Dunham might have passed away of a drug overdose. I knew that the exigent circumstances of the scenario would dictate that it was imperative that I administer a urinalysis of Ms. Ward.”

  “So you administered a urinalysis to Ms. Ward at the scene, correct?”

  “Yes. That is correct.”

  “And what was the result of your urinalysis?”

  “The preliminary results of the urinalysis were that Ms. Ward had opioids in her system.”

  “What did you do once you discovered that she had opioids in her system?”

  “I asked permission from Ms. Ward to search the premises, and she gave me this permission. Because her urinalysis was positive for opioids, this gave me probable cause to search her premises.”

  “And what was a result of your search?” Kevin asked the officer.

  “In her medicine cabinet, I examined the pills that were in her prescription pill bottles. In one of the pill bottles, in the bottle that contained what was supposed to be the drug Nifedipine, I observed a substance that was consistent with high-grade heroin. I therefore seized this drug from her medicine cabinet so that I could have it tested in the crime lab.”

  “To your knowledge, did the drug that you seized from Ms. Ward’s medicine cabinet test positive for an illicit substance?”

  The officer leaned closer to his microphone. “Yes it did.”

  “What substance did it test as?”

  “Diamorphine Hydrochloride, commonly known as high-grade heroin.”

  “I have nothing more for this witness.” At that, Kevin sat down, and I stood up.

  I nodded my head. “Officer Black, you stated on direct that the exigent circumstances of this particular scenario would dictate that you administer a urinalysis of Ms. Ward, my client. Is that right?”

  “Yes,” he said, leaning closer to the microphone.

  “And what exigent circumstances existed that compelled you to give my client a urinalysis?”

  He took a deep breath. “The paramedic on the scene, Truman Wilson, had indicated his suspicion that Dr. Dunham had passed away from a drug overdose.”

  I paced the floor and then stood right in front of him, crossing my arms in front of me. “Truman Wilson told you that he suspected a drug overdose.” I decided to go ahead and solicit hearsay, as I knew that the paramedic was going to be called by Kevin next. “What led to his suspicions? Did he tell you?”

  “He told me that the death was suspicious, as the deceased had no known medical conditions.”

  “And how did the paramedic know about the deceased’s medical conditions or lack thereof?” I asked.

  “He explained to me that, once he got there and tried and failed to resuscitate Dr. Dunham, he contacted Dr. Dunham’s wife, Sherry Dunham, and Dr. Dunham’s primary care physician, Dr. Littman, to ask about any medical conditions that Dr. Dunham might have suffered. He said that both told him that Dr. Dunham was not suffering from any known medical conditions. That led Mr. Wilson to contact the police department, as he suspected that Dr. Dunham might have passed away from a drug overdose.”

  I nodded my head. “But you didn’t see any proof of this overdose, did you?” I asked the officer.

  “What do you consider to be proof?” he asked me.

  “Any drug paraphernalia, any drugs, residue, anything that would tell you, definitively, that drugs were involved in this man’s death. Did you see anything like that around Dr. Dunham when you arrived on the scene?”

  He shook his head. “No. I did not.”

  “And when you spoke with my client, did she tell you that she suspected that Dr. Dunham might have died of a drug overdose?” I asked.

  “No.”

  “What did my client tell you about Dr. Dunham’s condition before he died?”

  “She told me that she had no idea how he died. She said that he came over to her house the night before, having been told to leave by his wife, and asked if he could sleep on her couch. She said that he could, and then woke up the next day to find that he had passed away.”

  “I see. She said nothing about suspecting that Dr. Dunham was high, then?” I asked.

  “No. She said nothing about that.”

  “And when you spoke with Sherry Dunham, did she say anything about suspecting that Dr. Dunham might have taken drugs the night before?” I waited for Kevin to object to the hearsay, but he did not, so I looked at the officer for an answer.

  The officer must have also been waiting for a hearsay objection, for he didn’t answer right away. He looked over at Kevin, who eventually just shook his head. Sherry Dunham was on his witness list, so he probably was going to go ahead and call her anyhow, which would negate the hearsay objection, as I would have the opportunity to cross her.

  “No, sir,” the officer eventually said. “She did not say anything about Dr. Dunham having taken drugs the night before his death.”

  “And Dr. Littman, did he indicate that he suspected that Dr. Dunham was taking drugs?”

  “Objection, hearsay,” Kevin finally said.

  “Dr. Littman is on my witness list,” I said, “and I plan to call him.”

  The judge nodded his head. “So, he is. I’ll allow it.”

  I looked over at the officer. “Please answer the question.”

  He looked over at the judge and then moved closer to the microphone. “He did not suspect that Dr. Dunham was taking drugs.”

  I nodded my head. “In fact, there was no
clear-cut sign that Dr. Dunham had died of an overdose at the time that you demanded that my client take a urinalysis, isn’t that right?”

  “Mr. Wilson told me that he suspected that Dr. Dunham had died of a drug overdose,” he said.

  “I know, you’ve established that. But do you agree that there were no clear-cut signs that Dr. Dunham had died of a drug overdose when you demanded a urinalysis from my client?”

  His eyes looked over at Kevin, then looked at the judge. “No, I guess there wasn’t.”

  “In fact, there was no probable cause to ask my client for something as intrusive as a urinanalysis, isn’t that right?”

  “Well, I asked if she would take one, and she told me that she would,” he said. “I got her consent to a UA.”

  “Yes, but there wasn’t probable cause to ask for one, was there? There wasn’t even reasonable suspicion, was there?”

  “No, sir.”

  “And, in fact, you didn’t arrest her that night, did you?”

  “No, sir.”

  “And you didn’t arrest her because there was no probable cause to arrest her, was there? Even if her urinanalysis showed the presence of opioids in her system, it’s not against the law to be high, isn’t that right?”

  He took a deep breath. “It is against the law to possess illegal drugs,” he said.

  “You aren’t answering my question. My question is, is it against the law to be under the influence of drugs?”

  “It’s against the law to drive while under the influence,” he said. He obviously was going to deflect by answering every question but the one that I asked.

  “Again, not my question. My question is, if somebody is sitting at home under the influence of drugs, and there are no actual drugs in the house, and no drug paraphernalia, would there be probable cause to arrest that person?” I asked.

  He hesitated, evidently trying to figure out how to deflect my question some more. “No,” he finally said. “There would be no reason to arrest somebody if they do not possess an illegal substance and they are not on the road.”

  I paced back and forth. “So, you admit that there wasn’t probable cause to arrest my client that day, was there?”

  “No,” he said. “There was not.”

  “Because her dirty UA, without more, would not be a reason to arrest her, isn’t that right?”

  “Yes. That is right.”

  “So, it follows that there was not a reason to have seized the drugs that were in her medicine cabinet, isn’t that right?”

  “It was exigent circumstances,” he said. “I had reason to believe that Dr. Dunham died of a drug overdose, and if I did not seize those drugs at once, they were in danger of being disposed of.”

  I sighed and hung my head. “But there wasn’t any kind of concrete evidence that Dr. Dunham died of a drug overdose. By your own admission, there wasn’t any kind of concrete evidence. So, isn’t it true that you did not have probable cause to test my client for drugs, let alone search her property and seize anything from her premises?”

  He swallowed hard. “No,” he finally said. “There was not. But she consented to both.”

  “I understand that. She consented to both because she literally had nothing to hide. But there was no reason to ask her in the first place, was there?”

  “I had a hunch,” he said.

  “But a hunch isn’t a legally permissible ground for a search and seizure, is it?”

  “No, I guess it isn’t.”

  “I have nothing further for this witness.”

  The judge nodded at Officer Conrad. “You may step down.”

  I felt satisfied that I had drawn blood from that officer, but the fact remained that the UA and the seizure of the drugs were still going to be in evidence, no matter what that officer admitted to about the lack of evidence when he was on the scene.

  One thing was for sure, however. If I lost this trial, I would have excellent grounds for appeal. No way the UA and the drug seizure should have still be a part of this case.

  The first paramedic on the scene, Lincoln Wilson, was next. He admitted that he had no real reason to suspect that Dr. Dunham had died of a drug overdose, either. He talked about how he called Dr. Dunham’s doctor and wife and confirmed that Dr. Dunham was not suffering from any health problems and that he wasn’t suspected of having a drug addiction, either.

  Since that testimony was essentially duplicative of Officer Conrad’s testimony, I didn’t hammer too hard on the paramedic.

  The next person, however, was somebody that I was very interested in.

  Dr. Thomas Smith, the chemist in the Kansas City Police Department Crime Lab, was about to take the stand.

  Chapter 29

  Dr. Smith was a renowned chemist who had been working for the Kansas City Crime Lab for the past 20 years. He was distinguished and had earned a PhD in chemistry from the University of Chicago. I had deposed him earlier, so I knew what he was going to say, and I knew that it was going to be damning, to say the very least.

  He was a tall man, long and lean, with ascetic features – a long, pointed nose, a thin face with a powerful jawline, and green eyes that were slightly too close together. He walked with a slight stoop of his shoulders and it looked like he hadn’t combed his wild curly hair in several days. He dressed in a brown tweed jacket with patches on the elbows and dark blue pants that didn’t match his jacket in the least. His pants were high-water and he wore no socks.

  He took the stand, raised his hand and took the oath, stated his name, and Kevin got to work.

  “Now, Dr. Smith, could you please tell the court what your role is with the Kansas City Police Department?”

  “I’m the lead forensic chemist.”

  “So, what are your duties as the lead forensic chemist?” Kevin asked.

  “I test samples that are brought to me after a seizure.”

  “And what are your credentials that would qualify you to become a forensic chemist?” Kevin asked.

  “I received my BA in chemistry at the University of Missouri, where I also received my master’s. I received my PhD at the University of Chicago. I was hired by the Kansas City Police Department to work in the crime lab 20 years ago, and I have been the lead forensic chemist for the KCPD for the past 15 years.”

  “And did you test the sample that was brought to you that was seized from the defendant’s home in this case?”

  “Yes, I did.”

  “And what was the drug that was brought into you labeled?”

  “Nifedipine, which is a common blood pressure medicine.”

  “And when you tested it, what was actually in this medicine container?”

  “Diamorphine hydrochloride, commonly known as high-grade heroin.”

  “Could you tell the court how you came to the conclusion that the drug that you tested was high-grade heroin?” Kevin asked.

  “I first put the chemical through a presumptive test, which means that I looked at it under a microscope to analyze the structure of the material that was brought to me. I then put it through an ultraviolet spectroscopy, which exposed the substance to a UV light, which allowed me to measure how the material absorbed the light. I then subjected the substance to confirmatory testing, which is a two-step process. I first separated the compound using gas chromatography, and I then used a mass spectrometer to identify each component by comparing the chemical signature against reference materials.”

  “And could you tell the court a bit more about this gas chromatography procedure?” Kevin asked.

  “This is a procedure where substances are separated into individual components by dissolving the material into a liquid solvent. The liquid is then put into a superheated oven and pushed through a capillary tube using helium.”

  I was interested in this, but more interested in the protocol.

  “So, you examined the drug that was brought into you, which was ostensibly a prescription blood pressure medicine known as Nifedipine, and it turned out to be high-grade heroin,
correct?” Kevin asked.

  “Correct.”

  “I have nothing further for this witness.”

  I sighed and stood up. “Dr. Smith, isn’t it true that the standard protocols for lab testing are strictly followed in every case?”

  “Yes, that is true.”

  “And the standard protocol is that the sample is individually labeled and sealed at the scene into a tamper-resistant seal placed on the container?”

  He looked at the judge furtively. “Yes, that is correct.”

  “And that the package, once it is individually labeled and sealed, is supposed to be forwarded by a certified service?”

  “Yes. That is part of the protocol as well.”

  “And that the sample is assigned a unique laboratory case number, and that the individual who signs the drug into the lab, the forensic technician, matches this unique case number with the sample that you are assigned to test, correct?”

  “Yes, that is correct.”

  “And this submission is logged into your database by the technician, isn’t that right?”

  “That is correct.”

  “But this protocol isn’t fool-proof, is it?” I asked him.

  “In what way?”

  “I mean, if, say, the officer who collected the sample switched the Nifedipine with high-grade heroin before he bagged it and tagged it, this would not necessarily be something that you would have knowledge of, would it?”

  “No, that is true. If an officer wanted to surreptitiously replace one substance with another substance, that would not be something that I would be able to detect.”

  “And is this something that has been known to happen – the officer who gathered the evidence tampers with this evidence before labeling it and placing the substance into a tamper-proof container?”

  “Yes, that has been known to happen,” he said.

  “So, your lab has no protections from that kind of thing, isn’t that right? There’s no way to protect against tampering if the seizing officer decides to tamper with the substance before labeling it and placing it in a container?”