He furrowed his brow. “No, I wasn’t aware of that. I did a complete medical history of Dr. Dunham when he came to me. He never indicated that he had an allergy to heroin or to any other drug for that matter.”
That was fine. I figured he probably didn’t know. I just wanted to ask the question to get it into evidence. “And were you aware that Tracy Dunham once used the alias of Tracy Wheeler when he had a previous medical incident?”
“No, I wasn’t aware that Dr. Dunham had an alias.”
I nodded my head. “I have nothing further for this witness.”
I looked over at Kevin, who was looking at me suspiciously. I didn’t blame him – I never brought the issue of anaphylactic shock up to him, because I didn’t know that it was a possibility. Thank God I figured it out before I got to my closing argument, though.
Next up was Dr. Warren, the Medical Examiner. I was going to reinforce the anaphylactic shock angle by asking her if that was a possibility. I needed her to establish that anaphylactic shock was often missed in an autopsy.
She came to the stand, a tall redhead in high-heels and a dark wrap-around dress. I always found her attractive, but she was all business and never gave me, or any man, the time of day. Nobody was better at her job, however.
Dr. Warren approached the witness stand, sat down, was reminded that she was still under oath, and I approached her.
“Dr. Warren, when you testified for the state, you stated that you found that the toxicology test you did on Dr. Dunham showed that he had high-grade heroin in his bloodstream at the time that he died, correct?”
“Yes, that was my testimony.”
“You also said that, other than the heroin in his system, your autopsy was unremarkable.”
“Correct.”
“And that was why you concluded that Dr. Dunham died of a heroin overdose, correct?”
“Correct.”
“Now, if Dr. Dunham had actually died of anaphylactic shock, brought on by a severe allergy to heroin, that would not be something that you would have been able to detect in your autopsy, correct?”
She nodded her head. “That would be correct. Death by anaphylactic shock can often be undetectable in a post-mortem examination. If I would have been aware that this was an issue, however, I would have looked for evidence of anaphylactic shock more closely, but I was never made aware that the deceased had any severe allergies. And, often, even if a medical examiner is looking for evidence of anaphylactic shock, it is still missed.”
“And why is this?”
“Because an individual dies so suddenly when they are in the throes of anaphylactic shock, and because the person dies of shock, as opposed to asphyxiation. Death in this manner is sometimes detected, but, more often than not, there are no macroscopic findings of anaphylactic shock even if that was ultimately the cause of death. Unfortunately.”
“So, then, if the deceased, Dr. Dunham, did die because he had a severe allergic reaction to the heroin that he consumed, that wouldn’t have necessarily been something that you would have concluded, then?”
“Correct.”
“I have nothing further.”
Kevin didn’t have any questions for her, and she was excused.
I sat down. I looked over at my mother. I took a deep breath. Gut check time. If I was going to call my mother, I was going to have to do it now. Otherwise, I was going to rest, and there would be no chance for my mother to tell her story.
“Counselor, call your next witness,” Judge Watkins said to me.
I looked at my mother, realized that calling her was going to open a can of worms that I didn’t want to deal with, and stood up. “The defense rests,” I said.
At that, my mother tugged desperately on my sleeve. “Damien, I want to tell my story. I want to tell what happened that night.”
Judge Watkins looked at my mother, then at me. “The defense rests?” he asked.
“Yes,” I said, projecting confidence in my voice. “The defense rests.”
He nodded. “Very well. We’ll take a 15 minute recess, then we’ll get to closing arguments.” He banged the gavel and the jury filed out for their recess.
After the jury was out of the courtroom, along with the judge, Mom let me have it. “Damien, what the hell are you doing? We went through my testimony, again and again and again. You’ve been beating me over the head about what I’m going to say on the stand, and you don’t even call me? What’s going on?”
“Mom, I thought about it. I made a snap decision. I thought about how the prosecutor would have tore you apart on cross-examination. I just think that it’s best that the jury forget about what I promised them in my opening statement, and if I put you on the stand, there would be no way for that to happen. The jury would have been reminded of exactly what I hoped to show, because the prosecution was going to ask you questions that were designed to remind them of just that. Not only that, Mom, I was going to have to have you admit that you really were high on heroin that night, albeit you didn’t know that it was heroin, and that you actually did have heroin in that blood pressure medication bottle. I didn’t want that coming in, so, Mom, I decided that it was best that I just don’t call you. And that’s all.”
“But Damien, I don’t think that you showed that I didn’t do this. I could have told the jury in my own words that I didn’t do this. Now, they’re not going to hear that from me.”
“Yes, Mom, that’s true, but they’re also not going to hear from you that you were taking drugs that night and that you possessed heroin that night, too. Let’s just let the testimony of Robert and Sharita be what the jury remembers.” I sighed. “Mom, again, if you would have been honest with me from the beginning, everything would have been different. But, you lied, so you might have to live with the consequences. This is the reason why I always need my clients to tell me the truth right up front. So that things like this don’t happen.”
I looked over at Harper, and she nodded her head. “You did the right thing,” she said to me. “I would have made the same call.”
I smiled. Harper and I often did think alike, and I knew that she was going to agree with me.
Now, it was just a matter of closing argument.
No pressure.
Chapter 35
Kevin gave his closing argument, which was essentially duplicative of his opening statement. He hit the same high points that he hit before, except that he made reference to the testimony that he solicited from Officer Conrad, et. al.
“You heard the testimony of Officer Conrad. He gave the defendant a urinalysis, which showed that she was high on opioids at the time that Dr. Dunham died. You heard the testimony of Dr. Thomas Smith, who testified that the drugs that were seized from the defendant’s medicine cabinet were pure heroin. The same kind of heroin found in Dr. Dunham’s blood at the time of his death.”
He smiled his million watt smile at the jury. “Let that sink in for a moment. The same kind of heroin that was found in Dr. Dunham’s body at the time of his death was found in the defendant’s medicine cabinet. The same kind. Now, you can maybe think that Dr. Dunham came over to the defendant’s home and supplied her with the drugs, and he took them himself, but then why would those drugs be found in the defendant’s medicine cabinet? That makes no sense, ladies and gentlemen. No sense at all. The evidence clearly shows that the defendant gave Dr. Dunham drugs when he came to her home.
Dr. Dunham’s wife testified that Dr. Dunham left her house the night of July 13, and he was sober and fine. This is another piece of the puzzle and shows that he did not get the drugs any place else except for at the defendant’s home. The defendant had the drugs in her medicine cabinet, she did the drugs with Dr. Dunham, and Dr. Dunham died. It’s as simple as that.
And all that nonsense about Robert Dunham paying Sharita Vance to deliver heroin to his brother…” He waved his hand at the jury dismissively. “What a crazy story that is. There’s no evidence that any of that happened. They both denied it, and Robert Dunham said that he knew
nobody who would be able to supply him heroin for the nefarious deed. Let alone finding somebody who would be able to put heroin into a pill form and make it look like Oxycontin. And Sally Wallace testified that Dr. Dunham was working hard on an alternative method of treating pain, but so what? The defendant wasn’t able to definitively link Dr. Dunham’s work with his murder. She didn’t link those two at all.”
He prattled on for about fifteen more minutes, and then it was my turn.
I looked at my mother, feeling angry again that she lied to me for so long. If she went down, it was her fault, and hers alone. I had the chance to press Robert Dunham about the anaphylactic shock thing, and I couldn’t. I inadvertently lied in my opening statement about what I was going to prove. And I couldn’t put Mom on the stand because I knew that it was just going to open up a can of worms.
My back was against the wall, but it was go-time. I really had no choice but to give it my all.
However, I had to admit that my arguments and facts were much weaker than I thought they were in the beginning.
I decided just to hammer away at Sharita and Robert and hope for the best. No point in going anywhere else in my closing argument.
“Ladies and gentlemen of the jury,” I said, “I want you to focus on two things and two things only. One, Dr. Dunham was a threat to the pharmaceutical industry in general and to Robert Dunham in particular. He was about to explode huge with his alternative pain management technique, and his technique was a threat to the opioid industry. The second thing that I want you to focus on is that Robert Dunham hated his brother and, as a majority shareholder in a pharmaceutical company that had a portfolio of drugs that were 80% opioids, he was personally threatened by Dr. Dunham’s pain management technique.
On the first point, you heard the testimony of Sally Wallace. You heard her testify about Dr. Dunham’s pain management technique. You heard her talk about how Time magazine was going to feature Dr. Dunham as a cover story. Time magazine. A cover story. That’s huge. Dr. Dunham was also in talks with the television show The Doctors. In other words, he was about to become a very big deal. But he died before he could really show his technique to the doctors around the country who were interested in learning it.
On the second point, you heard the testimony of Sharita Vance and Robert Dunham. Just to remind you, Sharita Vance was paid $50,000 to deliver some pills that were ostensibly Oxycontin to Dr. Dunham. $50,0000. She admitted that that was the arrangement, and so did Robert Dunham. Neither of them denied it. You heard testimony that Robert essentially blamed Dr. Dunham for the breakup his marriage and the estrangement from his kids, because Dr. Dunham had an affair with Robert Dunham’s wife, Naomi. You heard evidence that Dr. Dunham was in the process of suing Robert Dunham because Robert Dunham caused Dr. Dunham to be cut out of Earl Dunham’s will, because Robert Dunham was whispering in Earl Dunham’s Alzheimer’s-riddled brain that Dr. Dunham was plotting to killing him. The two brothers didn’t like one another, and that’s an understatement.
I submit to the jury that this is what happened. Robert Dunham wanted his brother out of the way. Dr. Dunham, with his pioneering pain management technique, was going to cost Robert Dunham a lot of money in lost opioid sales. If Dr. Dunham’s technique blew up as huge as it seemed that it was going to, then it had the potential to become the standard of care for doctors around the country. That, in turn, would mean that opioid sales would decline precipitously in this country. Robert Dunham’s company, Osiris, depended upon opioid sales. It was 80% of what Osiris sells. 80%. And Osiris was in merger talks with a much larger company, Sisto, and Sisto was concerned that Osiris had such a non-diversified portfolio, a portfolio that was threatened by Dr. Dunham’s pain management technique.
So, Robert Dunham killed his brother. His brother knew that Sharita Vance had an arrangement to where she supplied Dr. Dunham with Oxycontin on a weekly basis. All that Robert Dunham had to do was replace the Oxycontin with pure heroin, have Ms. Vance deliver them for the usual $500, and there you go. Dr. Dunham consumes the pure heroin, thinking that it’s Oxycontin, and dies because he is not used to taking heroin. Robert Dunham had the motive to kill his brother, several motives, in fact. He had the means - he’s majority shareholder of a pharmaceutical company. A drug company. And he had the opportunity - he paid Ms. Vance $50,000 to deliver the lethal dose of heroin.
You may also recall that Robert Dunham was caught in a lie. Specifically, he claimed not to know that his brother was working on an alternative pain management technique, but, yet, he indicated in a letter that he signed that this wasn’t the case. In this letter, he wrote the following: ‘While I understand your concern that my brother, Dr. Dunham, is working on a procedure that will greatly lessen the value of Osiris, Inc., in that Dr. Dunham is working on a pain management technique that has the potential to reduce the usage of opioids in this country, I can assure you that this will not be a problem in the future.’
Let those words sink in for a moment. I can assure you that this will not be a problem in the future. Why was he assuring Sisto of this, and what did he mean that Dr. Dunham was not going to be a problem in the future? He preposterously claimed that he didn’t write those words, yet he signed the letter. He signed the letter. That’s all you need to know. He owned those words when he signed the letter. And he indicated that Dr. Dunham was not going to be a problem in the future.
Also, there was the potential that Dr. Dunham died of anaphylactic shock, because he was allergic to heroin. Admittedly, his primary care physician had no knowledge of it, and the autopsy didn’t show it, but Dr. Warren, the Medical Examiner, explained that anaphylactic shock was not something that an autopsy could pick up.”
I wanted to tie the anaphylactic shock with his brother, and explain that he would know that his brother was allergic to heroin, but I couldn’t. I couldn’t because Mom lied to me for too long.
“Ladies and gentlemen of the jury, the state didn’t prove its case against my client. It just didn’t. The evidence against her was all circumstantial. So, my client possessed heroin and dropped a dirty UA that showed that she had opioids in her system. What does that really prove? Dr. Dunham could have just as easily given the defendant the drug as the other way around. Dr. Dunham could have picked up those drugs from literally anybody. And there is plenty of evidence that he got those drugs from his brother.
There is just too much doubt in this case for conviction. And remember, the state has the burden of proof in this case, and they must prove their case beyond a reasonable doubt. Beyond a reasonable doubt. Which means that if you have doubt that my client supplied the fatal dose of heroin to Dr. Dunham, you must acquit.
Thank you very much.”
At that, I sat down. The judge gave his instructions on the elements on what the state had to prove and the jury was dismissed.
All we could do was wait.
Chapter 36
Harper and I arrived back at my home after we hung out for several hours, waiting for the jury to return, only to be told that they would not have a verdict that evening, and they were going home.
Mom promptly freaked out when the jury foreman announced that they couldn’t reach a verdict that night, and I had to talk her off the ledge.
“Damien, what do they mean, they can’t reach a verdict? They’re going to find me guilty, aren’t they?”
I felt like telling her that if the jury returned a guilty verdict, she had nobody to blame but herself, but that was just rubbing salt in the wound. “Mom, calm down. Juries typically take a long time to reach a verdict, especially in a murder case where there’s lots of evidence. Like this one.”
“But Damien, I didn’t do it. I didn’t do it. Dammit, Damien, you should have put me on the stand. I would have told them what happened.”
“And your testimony would have directly contradicted my opening statement. You think they were going to believe a word you said on the stand?”
“That don’t matter, you should have put me o
n.”
And so it went.
I was happy to be back at my house, but everything seemed strangely quiet. Gretchen was sitting in the living room, reading a book, and she looked up at me. “Amelia and Nate are in their rooms,” she said. “I haven’t fed them yet.”
It was only 6 PM, dinnertime, when I got home, so I didn’t mind that Gretchen hadn’t yet gotten the kids dinner. “Thanks for watching them,” I said, giving her her usual per diem. “Hopefully this will be my last big case for awhile, and I can slow down and be with the kids more often.”
She smiled as she took the money. “Thanks, just let me know what you need.”
I nodded and turned to Harper, who came home with me. I didn’t know, but it seemed that she was still out of sorts and needing some kind of support. My support. We had grown close over the past few months, and she had expressed to me how much she valued our friendship. I felt the same.
“Well, I guess I better get the kids out of their rooms and get some chow in here. I think I’ll call GrubHub and see if they can bring something over.”
“Sounds good,” Harper said. “I better call Rina and Abby and let them know that I’ll be home later.” Rina and Abby were 14, so Harper often left them home alone when she had to.
I went to Amelia’s room, where she was sitting on the bed with headphones on, reading a book. She took off the headphones when I came in. “Hey, Dad,” she said.
“Hey, kid,” I said. “Dinner in a half hour.”
“Cool.”
“Your brother’s in his room, then?”
She shrugged. “I guess. Last I checked, he was in the bathroom. For a long time. I don’t want to even think about what he’s doing in there. Gross.”
In the bathroom for a long time. Well, I guess he was at that age.
I went downstairs and found Harper sitting on the couch. She was reading the GrubHub “menu,” apparently trying to decide what to order and where to order from.
Until Proven Guilty Page 24
