by Adam Mitzner
“It means that the person who left blood at the crime scene is a blood relative of Wayne Fiske, but not Wayne Fiske.”
“Does Wayne Fiske have any other biological children aside from Owen Fiske?”
“Not to our knowledge.”
“Brothers or sisters?”
“Again, we have no knowledge of that.”
“Parents who are living?”
“No.”
“What conclusions, if any, did you draw from those facts?”
“That his son, Owen Fiske, left the blood at the crime scene.”
“Is there anything else you’d like to add, Lieutenant?” Salvesen asked.
“No.”
“That’s my examination, Judge,” Salvesen said, seemingly pleased to be done working. “We ask the court to take judicial notice of Lieutenant Velasquez’s prior testimony regarding motive, which applies now to Owen Fiske.”
“Understood,” Judge Martin said. “No need to replow that field. Ms. Kaplan, the witness is yours.”
Lisa Kaplan stepped up to the lectern. She was familiar to Gabriel from her days as an ADA. He liked it better when they had been on the same team and knew he was in for a grilling every bit as intense as Miller had done the last time.
“Good morning, Lieutenant. Let’s start with the people you considered suspects in the murder of Mr. Sommers. Before you arrested Wayne Fiske, how many serious suspects were in the mix?”
“‘Serious suspect’ is not a term I use—”
“I don’t want to spar with you, Lieutenant. We’re just talking normal usage of words here. How many people did you think might have killed James Sommers?”
“In any murder case, the spouse is the first suspect.”
“Let me stop you there, Lieutenant. You’re talking about Ms. Jessica Sommers, the widow of James Sommers—who is not to be confused with Mrs. Haley Sommers, his ex-wife.”
“That’s right. Jessica Sommers.”
“Jessica Sommers did not have an alibi, right?”
“That is correct. She told us she was at home, alone, when the crime was committed.”
“Did you know then that Ms. Sommers was the beneficiary of a five-hundred-thousand-dollar life insurance policy on her husband?”
“We discovered that in the course of our investigation, yes.”
“I assume that you also discovered in the course of your investigation that the life insurance proceeds that Jessica Sommers recently received were desperately needed to pay for her son’s lifesaving cancer treatment.”
“We knew that Owen Fiske was undergoing a medical procedure, yes. We also knew it was expensive, and beyond Jessica Sommers’s and Wayne Fiske’s means, absent the insurance proceeds.”
“And even aside from the obvious motive to save her son, isn’t it also the case that the reason the wife is always the first suspect is that there’s always a possible motive between spouses, even if it isn’t known to anyone outside of the marriage?”
“Yes.”
“And here you didn’t even have to speculate as to that motive. She was essentially choosing between the life of her seventeen-year-old son or that of her husband of barely a year.”
It was about as improper a question as Gabriel could imagine. He shot a look in Salvesen’s direction, but the prosecutor’s head was down. With Kaplan on her A game, it would have been nice if Salvesen rose to the challenge too . . .
“Is that a question or an invitation for me to speculate about Ms. Sommers’s mental state?”
Kaplan smiled. The defense-lawyer equivalent of telling Gabriel, Well played.
“Who else was a suspect, Lieutenant?”
“We also considered Wayne Fiske—”
“I’m sorry to interrupt, but I just thought of a question I forgot to ask about Jessica Sommers. Apologies for jumping around on you, but before we discuss all the reasons why Wayne Fiske was considered a suspect by the NYPD, I wanted to ask whether Jessica Sommers cooperated with your investigation into the murder of her husband?”
“At first she did, but then she declined to provide a DNA sample upon request.”
“Just so we’re all on the same page . . . Jessica Sommers: No alibi. She had a motive because she needed the life insurance money to save her son, and she was not cooperating. Got it. Now, tell us about Wayne Fiske. In fact, let’s move this along. We know you thought he was such a good suspect that you actually arrested him, right?”
Gabriel had to hand it to Lisa Kaplan. She knew how to cross-examine a witness. Ask only questions that you knew would elicit the response you wanted, keep the witness off balance, and do as much testifying yourself as the judge would allow.
And he had to give credit where credit was due. Wayne Fiske and Jessica Sommers had hired a pit bull to represent their son so that she could blame them for James Sommers’s murder.
“Yes.”
“And that was because his fingerprints were at the crime scene, he had no alibi, he had motive in the form of the insurance proceeds, and you believed that the blood at the scene was going to be a match for him.”
“Yes. And as it has been already stated, it turned out he was not a match for the blood, but a biological family member definitely was.”
If Gabriel’s counterpunch landed, Kaplan didn’t show it. Like a boxer, she smiled and prepared for her next combination.
“So to recap. Wayne Fiske. No alibi. Strong motive. Not cooperating. Fingerprints at the scene.”
Even though there was no question pending, Gabriel said, “All is equally true of his son, except we also believe we have his blood.”
“We’ll get to Owen Fiske in a minute, Lieutenant. But I’m still not done going through all the other suspects with motive, who lack an alibi, and who refused to provide DNA. In fact, this is a good time to talk about Haley Sommers, who is James Sommers’s ex-wife. You mentioned that James and Jessica Sommers had an anniversary party. Something really strange happened at that party, isn’t that right?”
“Haley Sommers crashed the party. She interrupted the toasts that were being made.”
“You’re underselling it, Lieutenant,” Kaplan said.
Salvesen could have objected to the characterization but remained firmly in his seat. That was just as well. Gabriel could handle it.
“I’m not selling, counselor. She crashed the party. She interrupted the toasts. If you want more detail, all you have to do is ask.”
“Counselors,” Judge Martin said. “Let’s remember everybody’s job here, shall we? Ms. Kaplan, you ask questions. Lieutenant Velasquez, you answer questions. I tell everyone what they should or shouldn’t do. Proceed, Ms. Kaplan.”
“Thank you, Your Honor,” Kaplan said, quickly regaining control of the examination. “My apologies, Lieutenant. You’re exactly right. I should have been more specific. Let me ask you this: How would you characterize Haley Sommers’s relationship with her ex-husband?”
Another open-ended question chosen by Kaplan because there was no good way to answer it. No matter what Gabriel said, Kaplan would say it was worse than that.
“There was evidence that she was still angry with her ex-husband,” he said, deciding that less was more.
“What brought you to the conclusion that Haley Sommers was—in your words—angry at her ex-husband? Was it the restraining order that James Sommers took out that required Haley Sommers to stay away from him and his family? Or was it the fact that she repeatedly violated that order? Or was it because Haley Sommers threatened to murder James Sommers a week before he was, in fact, murdered?”
Once again, Salvesen should have objected. Compound questions were always impermissible because they required multiple responses. Kaplan had just asked four different questions, but the ADA looked on with a bored expression, not making a peep.
“All of the above,” Gabriel said.
“So you knew that Haley Sommers violated the protective order by calling Mr. Sommers and his wife and threatening them with bodily harm?”
“I am aware that she made such threats.”
“Isn’t it the case that just a few days before the murder, on the day of James and Jessica’s first wedding anniversary, in fact, Haley Sommers called James Sommers and left a voice mail in which she said, and here I am quoting: ‘James, you miserable fuck. I hope you and that skank bitch of a wife of yours both die. But don’t worry, after you’re dead, I’ll be sure to dance on your graves.’”
“Yes. I heard that voice mail. I can’t be sure you said it verbatim, but I have no reason to doubt it if you make that representation.”
“Oh, I make that representation, Lieutenant. That’s what she said. Can we agree that was only the latest of many threatening statements Haley Sommers had made toward James Sommers prior to his death?”
“Yes.”
“And I suspect that a man with your experience on the NYPD takes that type of threatening language very seriously.”
“Yes.”
“Okay. So, with respect to Haley Sommers, she checks off a lot of boxes, right?”
Gabriel knew exactly what Kaplan meant but said the opposite. “I don’t think about suspects as checking off boxes.”
“The terminology hardly matters. Let’s just talk facts. Haley Sommers had motive, right?”
“Yes.”
“She refused to provide DNA too, right?”
“That is correct.”
“In your experience, Lieutenant, do innocent people usually refuse to provide DNA?”
This, of all things, caused Salvesen to come to his feet. “Objection.”
Judge Martin shrugged. “Overruled. Lieutenant, you can answer.”
“Not usually, no,” Gabriel said.
“What about an alibi? When you first spoke to Haley Sommers, what did she tell you regarding her whereabouts at the time of this crime?”
Clever question. In fact, for Kaplan it was better than that. It was a twofer. The answer would prove that Haley Sommers had no alibi and that she had lied to the police.
“She initially provided an alibi that she was with a friend during the time in question.”
“As a police lieutenant with more than two decades on the job, did you believe that alibi?”
“I was skeptical.”
“Did you later learn that Ms. Haley Sommers had lied to you? That, in point of fact, she wasn’t with a friend when this murder occurred, but at the scene of the crime?”
“We can verify that Ms. Sommers was in a restaurant next door to Mr. Sommers’s place of business during the window in which he died inside that place of business.”
Gabriel watched Kaplan replay the last question and answer in her head. Apparently, she had gotten enough, because she went on to a different subject.
“So we have three suspects so far,” Kaplan said. “Each with motive. Each refusing to provide DNA. Each with no alibi. Anyone else? Maybe a business partner who was afraid of going to jail if Mr. Sommers cooperated against him. Does that ring a bell, Lieutenant?”
“Reid Warwick was working with James Sommers to sell stolen art. Mr. Sommers had been caught in an FBI sting. So, anticipating your next question, Ms. Kaplan, that told us that Mr. Warwick also had a motive. But he did ultimately provide a DNA sample, and it wasn’t a match for the blood at the crime scene. And he did end up giving us an alibi, which checked out. Reid Warwick is no longer a suspect in this crime.”
It was possible that Kaplan hadn’t known about Warwick’s alibi until Gabriel testified about it. Nonetheless, the attorney acted as if nothing could have mattered less.
“Good to know Mr. Warwick is only an art thief, and the NYPD has chosen to believe what this criminal told you about his whereabouts at the time of Mr. Sommers’s murder.”
Gabriel would have countered the assertion, but Kaplan quickly segued. “Am I correct that you never considered Owen Fiske a suspect until a few days ago?”
“He was not among the first people we questioned, that’s right.”
“In fact, you never questioned him at all. Isn’t that correct?”
“Yes. It is.”
“Why was that?”
Another why question.
“We had other initial suspects. Their motives, on first consideration, seemed stronger . . . until we had the forensic evidence regarding the possible DNA match.”
“You’ve just said the million-dollar word, Lieutenant. Actually, three letters and one word: DNA match. That’s why we’re here, after all. So let’s talk about that. You found some blood at the scene, right?”
“Yes.”
“And your investigation led you to a private genetics company that indicated the blood matched, at least in part, a fellow named Howard Fiske, who lives all the way in Oregon. Do I have that right?”
“You do.”
“Good. Is Howard Fiske a suspect too?”
“No. He is not.”
“I’m glad to hear that. We have quite enough of them already, don’t you think?”
Gabriel looked over at Salvesen. The guy really sucked at his job.
“I’m sorry, was that a serious question?” Gabriel asked, still staring at Salvesen.
“No. I guess it wasn’t,” Kaplan said with a smile. “So this private company—which one was it, by the way?”
“FamilyTreeDNA.”
“So FamilyTreeDNA tells you that the person who left the blood in Mr. Sommers’s workplace is related to this Howard Fiske. Do I have that right?”
“Yes. The DNA left at the crime scene was a match for a blood relation to Howard Fiske.”
“I’m going to ask for a clarification, Lieutenant. This is important because I know you want to be precise in your testimony. You keep saying that DNA was left at the crime scene. But that’s not really accurate, is it?”
Gabriel knew where this was going and made a split-second decision to get out in front of it.
“Blood was found at the crime scene that did not come from the victim, Mr. Sommers. But if you’re asking whether we can prove that this blood was left at the exact time that Mr. Sommers died, the answer is we cannot.”
“That is my point precisely, Lieutenant,” Kaplan said. “There was blood found at James Sommers’s workplace. And his workplace ended up being a crime scene. But you cannot prove that the blood found there was left during the crime, isn’t that right?”
Gabriel decided it was time to push back. “Yes and no. You are correct that there is no way to prove when blood was left with the precision you seem to be seeking. So even Mr. Sommers’s blood, of which there was quite a bit found at the crime scene, can’t be proven to have spilled during the murder, precisely. However, we can make that deduction because the blood was relatively fresh when we arrived at the scene, which was one of the ways the medical examiner determined the time of death. That same analysis is reached by virtue of the fact that the nature of the crime resulted in Mr. Sommers losing a lot of blood. So, I don’t mean to nitpick, but since you made a point of wanting me to be precise, I am trying to be precise. DNA doesn’t reveal all. It’s one piece of a larger puzzle. So while it is true that DNA testing does not tell us the precise moment when the blood is spilled, other investigative modes do give rise to the conclusion that all the blood left at the scene was left during the commission of the murder.”
“Or maybe it was old blood and Mr. Sommers just never noticed the blood left the day before. Maybe Mr. Sommers was a messy guy.”
Before Gabriel could respond, Kaplan went in a different direction. “Lieutenant, you are aware that Owen Fiske is a very sick boy, correct?”
“I’m not a doctor. I know he’s in the hospital. His mother told me that he has leukemia.”
“You’re not suggesting that your lack of medical training makes you ignorant of whether a boy in the hospital for leukemia is very ill, are you?”
“Let me stop you there, Ms. Kaplan,” Judge Martin said. “Is either side going to call any medical personnel on this issue?” She was looking at Salvesen.
/> “We could if you wanted, Judge,” he said without coming to his feet.
“I do want. Right now, in fact. Let’s recess for an hour, at which time I expect there to be a doctor in the house.”
26
An hour later, Dr. Cammerman took the stand. He looked as if he’d come straight from the hospital, to the point he was still wearing a white lab coat.
Wayne had never thought about Cammerman’s credentials. Dr. Goldman had told them about the treatment, and that was all Wayne had ever considered. But at the start of his testimony, Cammerman testified that he had graduated from Yale University and Harvard Medical School. He ticked off some prestigious-sounding fellowships and a litany of positions with hospitals before arriving at his current job at Memorial Sloan Kettering.
“Dr. Cammerman, please explain a little bit about AML, the disease afflicting Owen Fiske,” Salvesen asked.
Judge Martin cut in before Cammerman could answer. “Mr. Salvesen, I know that Owen Fiske has leukemia, and I know that it is a serious disease. We can move this along a little faster. All I really need to know is the risk to him if he provided a DNA sample.”
“Let’s get right to that, then,” Salvesen said. “Dr. Cammerman, are you familiar with the taking of DNA samples?”
“I’m not an expert in the area, but I know it’s typically done by drawing blood or a cheek swab.”
“And with a healthy person, is there any risk in such a procedure?”
“Again, with the caveat that I’m not an expert in this area, I suspect that there is not. Or it is minimal.”
“Now, I get that Owen Fiske is not a healthy person, but let me ask you the question that Judge Martin said she wanted answered: If the police follow the hospital’s precautionary procedures, will Owen Fiske’s recovery be compromised by his giving a DNA sample?”
“That is unlikely. He has a CVC already in place.” Dr. Cammerman looked up to Judge Martin to explain. “That’s a catheter for the withdrawal of blood.”
“In fact, the doctors and nurses at the hospital often take Mr. Fiske’s blood, do they not?” Salvesen said.
“They do.”
“In other words, what the police want to do through the execution of this warrant is already being done to Owen Fiske on a fairly regular basis. Isn’t that right?”
