[Marc Kadella 04.0] Certain Justice

by Dennis Carstens

  It was after 11:30 by the time Marc started. His job, which of course he did not tell the jury, was to poke holes in the prosecution’s case and create reasonable doubt. Because of this, he used his opening statement to make a couple of significant points.

  The first was to get the jury to like him and to make them start thinking that, “if this amiable, well-dressed, nice-looking man was on the defendant’s side then perhaps Howie Traynor isn’t the blood-thirsty monster the prosecution claimed.”

  Marc spoke slowly, clearly and even casually to them, walking up and down the jury box, making eye contact with each and smiling when appropriate.

  The second part of his opening statement was to remind them of the law and the legal responsibility of the prosecution. Even though everyone with a TV in America has heard of the burden of proof, presumption of innocence and the legal term beyond a reasonable doubt, Marc made sure each juror heard and understood them again and promised to abide by their oath.

  Before he began, he made the decision not to try to refute what Harris had told them. He would do that as the trial went along. Plus, there was no reason to reveal his strategy yet. He would keep that to himself and not warn Harris what he was up to.

  In reality, Marc didn’t have much of a case to present. The only real defense Howie had was an alibi and the small amount of physical evidence. The cops and Tony Carvelli had him under surveillance at the time of most of the murders. Harris’ claim that they knew how Howie evaded this surveillance was mostly speculation backed up by virtually no physical evidence.

  The first witness for the prosecution would be the lead investigator, Detective Owen Jefferson. He was called forward, sworn in and took the witness stand. Jefferson would spend the remainder of that day and most of the next two giving testimony.

  Harris began by slowly tossing easy, open-ended questions to him. They spent the first fifteen to twenty minutes giving the jury a detailed account of Jefferson’s record as a police officer. By the time Harris finished with this, even Marc was impressed. It was about this time that Marc noticed something that made him smile. Jefferson had removed the tiny gold stud he normally wore in his left ear. Marc made the decision not to bring this up on cross-exam. It would be objectionable and could easily look petty, almost childish.

  For a first-degree murder conviction there are several particular elements that must be proven for each charge. The first, of course, the death of the victim must be proven. Jefferson was not a qualified medical examiner but as an experienced homicide detective he could testify that each victim was, in fact, dead. He could also tell the jury that he had read the autopsy and what it contained as to the cause of death. The M.E. would come later, to expertly verify that fact and testify as to what the cause of death was.

  The prosecution must also prove that whoever killed each victim did so with the express intent to kill him or her. Jefferson would testify about what he personally saw when he looked over each body. He would testify about the type of wound he observed, the blood covered abdomen and in most cases, the hands nailed down. The M.E. would later testify that the wounds and the slit throats could only be done with intent to kill. It is an opinion and not a fact but as an experienced M.E. he can give his opinion and the jury can take it or leave it. First degree murder requires that the act was committed with malice aforethought. Essentially this means that whoever did it planned it ahead of time. This does not require significant planning over any specific period of time. It does not require a confession. The jury can infer from the physical evidence of the wounds and how the bodies were posed that murder was what the perpetrator had in mind and planned it ahead of time.

  The death must have occurred in Hennepin County. Since the victims were all found there and there was no evidence to believe the act took place elsewhere, the jury is free to believe this was where each happened.

  Fourth, the defendant did not commit the homicide in the heat of passion. He must not have done it because he was provoked by the victim to such an extent that an ordinary person would have acted the same way. If this happened, if the defendant was provoked by the victim, then the defendant is guilty of first-degree manslaughter and not murder.

  This is a claim to be made by the defense, the act was done in the heat of passion, is what is legally known as an affirmative defense. What this means is that it is up to the defense to prove that the defendant was provoked by the victim. Obviously this did not happen to any of the Crown of Thornes victims.

  Finally, and this is the most crucial element and at the heart of this case, it must be proven that the defendant did it. Marc’s job was to poke enough holes in the prosecution’s case to create reasonable doubt about Howie Traynor’s guilt, the SODDI, “some other dude did it” defense. The defense is under no obligation to prove who that is. They need only provide the jury with reasonable doubt that the defendant did it.

  There were also several other charges included in the indictment. Howie was also charged with second-degree murder for each victim as well. Second-degree requires all of the elements of first degree except premeditation. If the jury believes the defendant did not plan to kill, they can fall back on second-degree.

  There were also several burglary charges involving the deaths of Rhea Watson and Judge Ross Peterson. Whoever murdered them broke into their homes with intent to commit a crime. And there was a single kidnapping charge in the death of Elliot Sanders, the foreman from Howie’s original trial.

  Most of these charges were added just to illustrate what a bad person Howie Traynor truly was, to inflame the jury to conclude he was, if not an animal, at least a bit subhuman, and someone of whom society needed to rid itself. This can also blow back on the prosecution. If they can’t prove the lesser charges, did they really prove the big ones?

  FIFTY

  Through Jefferson’s testimony, Harris explained each of the murders included in the indictment. They proceeded in chronological order and began with Rhea Watson first.

  Jefferson began by testifying about a report from Beltrami County of an appeals court judge having been murdered. Marc objected to this testimony as irrelevant since Howie was not charged with this crime and highly prejudicial. This issue had been argued prior to the trial and Koch had ruled it admissible as to similarity of crime. Marc believed the judge was wrong and objected on the trial record in front of the jury to preserve the issue for appeal. Koch quickly overruled Marc’s objection and Jefferson continued.

  “After you arrived at the home of Rhea Watson, what did you do next?” Harris asked.

  On direct-examination, this is the type of question that is supposed to be used. An open-ended question that does not suggest what the answer is. This kind of question allows the witness to tell the jury what he or she saw or did. Preparing a witness by literally practicing his testimony is not only allowed but any reasonably competent lawyer had better do this. Putting words in his mouth and telling him what to say is grossly unethical and not allowed. But practicing a witness’ testimony to get it down smoothly is absolutely necessary.

  “I spoke with the officer who was the first responder, Sergeant Norman Anderson. He told me what he found in the house and who the victim was.”

  “How did he know who the victim was?”

  “We both knew her. She was a former prosecutor in the county attorney’s office,” Jefferson said.

  “What did you do next?”

  “I spoke to the two women from Watson’s law firm, her new employer, who had called the police.”

  Jefferson went on to tell the jury what they had to say. This was technically hearsay, but since it was basically harmless and had nothing to do with who might have done it, Marc did not object. Objecting too much can give the jury the impression you are trying to hide something from them. Besides, Marc knew the women would be called to testify themselves.

  The next part of Jefferson’s testimony would bring gruesome shock to the jury. Jefferson told them how he went into the house and downstairs to the
basement to examine the body. When Harris reached this point, he obtained permission to approach his witness. It was granted and Harris handed Jefferson an 8 x 10 full-color print of a photo.

  “Detective Harris, I have handed you a photo marked State’s Exhibit A, is this an accurate photo of what you found in the basement?”

  “Yes,” he answered holding the print, “that’s her.”

  A wide screen, high definition TV had been set up in front of the jury. When Jefferson verified the photo of Rhea Watson, Paul Ramsey hit a key on his laptop and the same picture appeared on the screen. It was a shot of the posed, naked, blood-covered body of Rhea Watson. She was wearing the barbed wire crown and her hands were nailed into the cinder block wall she was up against.

  For the five victims Howie was charged with murdering, the police, crime scene techs and medical examiners had taken hundreds of pictures. Harris had presented at least a dozen of each victim that he wanted to present to the jury. Marc, Harris and Paul Ramsey spent the better part of an entire day arguing in Judge Koch’s chambers about the photos. Most of them were quite inflammatory and Harris obviously wanted them all admitted to shock the jury. The angrier they became with the horror of what the victims went through, the more likely the jury would want someone to pay for it.

  Judge Koch decided to limit the number of photos to be admitted to between two and four each. She would allow one shot of how the body was found, an autopsy photo and one showing the crushed fingers and toes of those who had been tortured.

  With the grizzly photo of Watson’s tortured, bloody corpse on the TV screen Jefferson continued his testimony. He described for the jury the action the police took and that he went back to his desk to review the report from Beltrami County.

  The judge allowed Jefferson to testify that the case up north was very similar to Rhea Watson’s. Koch allowed details to be given to the jury that were the exact match, the crushed fingers and toes, the wound across the throat, the barbed-wire crown and crucifixion type pose of both bodies.

  “What else, if anything, was found that was the same on both victims?”

  “There appeared to be two burn marks on each that were caused by a Taser.”

  “The same Taser?”

  “Objection,” Marc said as he stood up.

  “Did you personally conduct any tests to identify the burns on the bodies?” Judge Koch asked Jefferson.

  “No, your Honor, I did not.”

  “Sustained. Move along, Mr. Harris.”

  It took Harris and Jefferson almost two hours to complete his testimony about Rhea Watson. Before Harris started on the next victim, Ross Peterson, Judge Koch ordered a break.

  When court resumed, Harris followed the same basic script to guide Jefferson through the discovery of Judge Peterson. The most noticeable difference between the photos of Watson and Peterson was the lack of blood on Peterson. Harris had Jefferson explain this from the autopsy report that gave Peterson’s cause of death as a heart attack.

  “Do you know what caused Judge Peterson to have the heart attack that killed him?” Harris asked.

  “Objection,” Marc said. “Lack of foundation for this witness to make such a claim.” Jefferson was not qualified to testify that the Taser shock caused Peterson’s pacemaker to malfunction and cause the heart attack. The M.E. would have to do that and Marc could challenge him on it.

  “Sustained,” Koch ruled. “Move along, Mr. Harris.”

  Jefferson also explained to the jury that the police were beginning to find links between Peterson, Rhea Watson and Howard Traynor. Harris was a bit of a plodder but he was also quite thorough. It was almost 5:30 by the time they finished. The first day of testimony ended when Jefferson and Harris completed their discussion of Ross Peterson.

  The next morning, Judge Koch was on the bench at precisely nine o’clock. Within two minutes the jury was seated and Jefferson was called back to the stand.

  “We left off yesterday afternoon when you finished your testimony about Judge Peterson,” Harris began the second day of testimony.

  Jefferson and Harris repeated their process of leading the jury through each victim. This morning they started with Elliot Sanders, the man found in Mueller Park in South Minneapolis.

  “After the murder of Judge Peterson,” Jefferson said, “we concentrated our investigation on finding common links between the victims. We were looking for people who were tried by Rhea Watson in front of Judge Peterson. We found quite a few of them in our system. When we included those who also had Judge Smith, the murder victim in Bemidji, as a judge handling their appeal, the list narrowed down to eight names.”

  “Was the defendant one of them?”

  “Yes, he was. There were two others that were noticeable as well,” Jefferson continued.

  “Who were they?”

  Jefferson looked at the notebook he held on his lap and read their names. “Eugene Parlow and Aaron Forsberg.”

  “Why did those two catch your attention?”

  “Those two men, along with the defendant and a fourth man, Angelo Suarez, had recently been released from prison. Their convictions were overturned and they were released early. Each of them was convicted with the use of flawed DNA testing. Except for Suarez, we put these men under surveillance as well as the defendant.”

  “Why not Suarez?”

  “Angelo Suarez was shot and killed when he attempted to attack a woman in St. Paul.”

  This caused a noticeable buzz to go through the courtroom. Judge Koch rapped her gavel three times and with an icy glare silenced the crowd.

  “Was Angelo Suarez connected to the victims?”

  “No, he was tried in Ramsey County. We could find no connection between Suarez and the victims.”

  “You said there were eight names, what about the other five?”

  “We were able to eliminate each one,” Jefferson answered and then went on to explain how they were checked out and why none of them were considered suspects.

  For the next half hour Jefferson, with a few easy questions to keep him on track, explained the scene where Elliot Sanders was found. He told the jury how he was found, the condition of the body and what Jefferson himself did.

  Some of this was objectionable. Jefferson did not personally find the body, but it was pointless for Marc to object to it. The two women who found him were going to testify anyway and Jefferson’s testimony would be corroborated by them. Plus it did not really matter how the body was found and who found it.

  The detective went into detail telling the jury about how he and his partner, Marcie Sterling, identified the victim through missing person reports and his daughter. He then went on to explain how he found the connection between Sanders and Howard Traynor.

  “And Detective, what was that connection?”

  “Elliot Sanders was the foreman of the jury that convicted Howard Traynor of the murder of Lucille Benson,” Jefferson solemnly said. “This was the crime he was convicted of with a flawed DNA test result. The one he was recently released from prison for.”

  Again there was a buzz in the gallery and Marc saw a noticeable stir from the jurors.

  “Was there anything else you noticed?” Harris asked.

  “Yes, it was obvious he had not been killed in Mueller Park. A subsequent search of his home found no evidence he had been killed there either.”

  “Why is this important?”

  “He must have been taken against his will somewhere…”

  “Objection,” Marc stood up. “This is completely speculative your Honor. They have no evidence he was taken against his will anywhere.”

  “Do you have any such evidence that you will be presenting?”

  “No,” Harris quietly, reluctantly admitted.

  “Then the objection is sustained. Move along, Mr. Harris.”

  Marc sat down and quietly rejoiced at his small victory. Howie was charged with kidnapping Elliot Sanders. That charge was just eliminated.

  Throughout all of this,
Howie Traynor had done a very good job of maintaining his demeanor. Marc had prepared him for this, as all defense lawyers do, but it isn’t always easy. Of course, the media would report that Howie looked as if he was bored and totally uninterested in the proceedings. They had to report something and typically, they were wrong.

  Following the morning break, Jefferson testified about Cara Meyers. This was a bit tricky since Meyers had no prior connection to Howie. Harris made sure his witness admitted this and told the jury that Meyers was Eugene Parlow’s former lawyer.

  When he reached the part where the single strand of hair was found, just as he started to testify about it, Marc requested a bench conference.

  “Your Honor,” Marc quietly began when the lawyers assembled. “They are about to get into DNA testing. Detective Jefferson did not…”

  Koch held up a hand to stop him, looked at Harris and said, “Not a word about any test results. Am I clear?”

  “Yes, your Honor,” Harris said trying to look wounded. “We had no intention of it.”

  “Good, then we won’t have a problem.”

  When Jefferson resumed he testified that he, along with his partner, personally delivered the single strand of hair found on Cara Meyers to the BCA in St. Paul.

  “In your opinion, as a veteran investigator, why do you believe Cara Meyers was murdered?” Harris asked.

  Marc was on his feet in an instant. “Objection! Speculation, your Honor. There is no basis in fact for any answer to this question.”

  Judge Koch thought it over for a moment then said, “Overruled. He is a professional, experienced police homicide investigator. I’ll allow a bit of it.”

  “To throw us off the investigation,” Jefferson quickly said.

  Not wanting to press his luck Harris decided to move on.

  By now it was close enough to lunch time to take a break before the prosecution moved on to the last victim charged in the indictment, Jimmy Oliver. Knowing the testimony would be a little long, Harris suggested to Judge Koch that now would be a good time to break.