“Detective—”
“Simmons, trust me. I’m the guy. And do me a favor. Keep this under wraps, okay? Send your report directly to me.” Punch gave Simmons his contact information and extracted a promise that any and all information would be given directly to him. “I’ll buy you a beer next time I’m down in Cheyenne.”
“Sure,” Simmons said, and hung up.
Punch poured another cup of coffee and looked at his watch. Another hour, and trial would start.
38
“Ladies and gentlemen of the jury,” Ann began, “your job begins right now.” Her voice held a slight tremor, and Sam was glad to see he wasn’t the only one who was nervous. “As lead counsel for the State of Wyoming, my job during this opening statement is to give you a preview of the evidence that you will see. I’m not allowed to argue the evidence, and I’m not going to do that. What I am going to do is give you a brief overview of what the evidence will be, and what it will show. I believe that when you see the evidence you will be convinced beyond a reasonable doubt that the crime of felony murder was committed, and that Tommy Olsen”—she dramatically pointed in Tommy’s direction—“was the man who committed it.”
Standing behind the podium in a navy-blue pantsuit, she looked polished and professional, Sam thought, although her hair was perhaps a bit severe for his taste. “You will hear from neighbors that Emily Smith and Tommy Olsen had an affair. You will hear from the police officers who found Emily’s body. They will tell you of the horrific nature of her injuries. You will hear from the medical examiner, who will tell you when, where, and how Emily died. You will hear from Detective Kenneth Polson, who will outline every step he took in investigating this horrific crime. You will know by the end of the trial why he eliminated others from suspicion. And when all the evidence is in, we will ask you to render a verdict of guilty.”
Sam watched the jurors carefully during Ann’s statement. He was stunned by its brevity, and as a result was not quite ready to begin his own. Although he had rehearsed it many times, and although he had addressed large audiences as well as juries over the course of a lifetime, his stomach fluttered as he rose to address the jury.
“Ladies and gentlemen, I want to begin by thanking you for your service in this matter. Lord knows jury duty is a difficult and thankless task. This is a matter of no less than life or death. You hold Tommy’s future in your hands. I don’t believe I am exaggerating when I say it is likely that nothing you will ever do will match the level of responsibility that you will be asked to exercise over the course of the next few days.” Sam paused to let the enormity of the task sink in. Juror 465 was watching Sam with a look of disbelief.
“Beginning in a couple of minutes, the attorneys for the State will parade a number of witnesses before you and show you a bunch of exhibits in an effort to convince you that my client killed Ms. Smith. I ask only that you listen to each witness and examine each piece of evidence with this in mind: what does this mean, and how does it prove Tommy Olsen guilty of murder?”
Sam walked from behind the podium and stood behind Tommy. He wanted the jurors to have to look at him, to see he was a living, breathing human being. “I ask this because a lot of what the State will present will not tend to indicate that my client, and no one else, committed the crime. A lot of it will be perfunctory and a lot of it will be window dressing to show you that they did their job. Ladies and gentlemen, I contend that the State has not done its job for the very simple reason that the State has arrested and charged the wrong man.”
Sam looked at each juror, focusing on the spot between the eyes of each man or woman and holding his stare. Then he placed a hand on each of Tommy’s shoulders. “My client did not commit this crime. Now, I seriously doubt I will be able to prove that,” he said. “However, as the judge has already instructed you, I do not have to prove that my client did not commit the crime. Rather—”
“Mr. Johnstone, counsel, please approach the bench!” Daniels barked.
Ann and Sam dutifully approached the bench. The reporter was donning a headset, and when she had it on, the judge turned off his microphone and leaned over his bench so that only Ann and Sam could hear before angrily addressing Sam. “What in the hell are you doing?”
“Your Honor?”
“You are arguing the law! I will not have it!”
“Your Honor, I’m simply making the point that my client doesn’t have to prove anything—I’m echoing your earlier instruction!”
“Mr. Johnstone, I’m going to tell you one time to stop arguing the law. Do you understand?”
“Yes, Your Honor.” Sam looked at Ann, who was staring at the floor. Daniels’s interference was improper. As an officer of the court, Ann could technically intervene, and Sam hoped she would do so.
“Return to your places,” Daniels instructed when nothing was said.
Sam could feel the jurors’ eyes upon him as he returned to the podium. From a legal standpoint, the jury had no idea what was going on, of course, but they would know Sam had just been admonished for something. And while it was true that Daniels had earlier instructed the jury to disregard conferences and his interruptions of counsel, Sam knew that it was not favorable for his client to have the judge interrupting him during his opening argument. The only thing to do, of course, was to try and continue as if nothing had happened. Looking through his notes very briefly, Sam attempted to pick up where he left off.
“The State of Wyoming has the burden of proving each and every element of the crimes charged,” Sam began, noting that the fat juror was no longer meeting his glance. “Tommy Olsen asks only that you listen to each witness, and examine each piece of evidence, with that burden in mind.”
Noting that a couple of the jurors were preoccupied with examining their nails, shuffling the pages of their notebooks, or simply staring off into space, Sam decided to cut it short. “We believe,” he said, “that at the conclusion of this trial, after having examined each piece of evidence and having heard and observed each witness, you will have no choice but to find my client not guilty of felony murder. Ladies and gentlemen, thank you for your time.”
With a curt nod to the jurors, Sam sat down next to Tommy and stared hard at Daniels.
39
“Your Honor, the State calls Officer Ronald Baker,” Ann said.
All eyes turned toward Baker as a deputy led him into the courtroom. He’d testified before, so he knew the drill, but never at a trial of this magnitude. His voice was shaky as he swore his oath.
“Officer Baker,” Ann began. “Please state your full name for the record.”
“Ronald Eugene Baker.”
“And Mr. Baker, are you employed?”
“I am.”
“What do you do?”
“I am a patrol officer with the Custer Police Department.”
“And how long have you held that position?”
“Just over a year.”
“And what other employment have you held since graduation from high school?”
“I went to college for a while, then worked as a ranch hand on the Swenson place south of town. Then attended the Law Enforcement Academy.”
“So, you are a certified peace officer in the State of Wyoming?”
“Yes, ma’am.”
“And in your capacity as a police officer, what are your duties?”
“Run patrol of my sector, file reports, assist other officers as required.”
“And were you on duty on the afternoon of November 2nd of last year?”
“I was.”
“And did anything unusual happen during your shift that evening?”
“Yes.”
“And that was?”
“At approximately 1400 hours—that’s two p.m.—dispatch contacted me and asked me to do a welfare check on a woman named Emily Smith. I proceeded to the location given, met with her secretary, I think, and after doing some initial looking around determined to enter the decedent’s, er, Ms. Smith’s home to see
if she was okay.”
“Was she?”
“No.”
“What was her condition?”
“Dead.”
“How did you know?”
“You can tell.”
“Was her home in Custer’s city limits?”
“Yes.”
“And what time did you discover her body?”
“I made a note. It was 1417, er, 2:17 p.m. exactly.”
“What did you do next?”
“I told her coworker, who was waiting on the stoop, to leave the scene.”
“And what did you do next?”
Baker looked around the courtroom sheepishly. “I puked.” Some in the audience tittered, drawing a severe look from Daniels. Ann, feeling bad for the officer, quickly followed up.
“And what did you do then?”
“I called it in.”
“And then?”
“I began to secure the scene, and as more officers showed up, I gradually handed off to them.”
“And who eventually took charge of the investigation, if you know?”
“Detective Polson, ma’am.”
“And after Detective Polson took over the scene, what were your duties?”
“Whatever he wanted. Mostly security. Later, we did some door-to-door stuff—asking questions, seeing if anyone saw or heard anything. Stuff like that.”
“Did anyone?”
“Did they what?”
“See or hear anything?”
“No one I talked to.”
“How about anyone else—if you know?”
“I think Jensen—that’s Corporal Jensen—said the landlord saw Tommy around.”
“Objection, Your Honor,” Sam said. “Hearsay.”
“Sustained,” Daniels growled.
“But no one you spoke with saw or heard anything?”
“No.”
“No more questions,” Ann said. “Counsel, your witness.”
“Mr. Johnstone, any cross-examination?”
“Briefly, Your Honor.”
“That would be appreciated by all, I am sure,” Daniels said. Sam glanced at the jurors, who were looking at Daniels. After a few seconds, each pair of eyes turned toward Sam, and he didn’t like what he was seeing.
“Officer Baker, how many dead bodies have you seen?”
“Not very many.”
“Dozens?”
“No, not that many.”
“Ten or more?”
“No.”
“Five?”
“No.”
“Officer Baker, was this the first dead body you encountered as a police officer?”
“Yes.”
“And you’re sure about the time?”
“Positive.”
“How long were you on the scene before you found her?”
“Maybe five minutes?”
“Could it have been longer? Could it have been less?”
“Well, maybe, but not by much. I got there, looked around, broke the window on the front door, went in, and found her. Then I noted the time.”
“I thought you sent the co-worker off?”
“Oh, yeah. I did that, too.”
“And you were to interview neighbors—is that right?”
“Yes.”
“And how many did you interview?”
“Well, maybe half a dozen or so.”
“And none of them saw or heard anything that night?”
“Well, nothing that seemed relevant.” The hair on Sam’s neck was standing straight up. The old adage was “never ask a question to which you don’t know the answer,” but here, Sam had no real choice.
“Officer Baker, are you saying that some people saw or heard things that night, but that you didn’t deem it relevant?”
“Well, yeah.”
Sam grabbed some papers from a manila folder on the defense table. “Let’s look at your report, shall we?”
“Your Honor, may we approach?” Ann wanted a bench conference. In Judge Daniels’s courtroom, as in many others, when an attorney had an especially complex or contentious objection, it would be heard at the judge’s bench with the microphones off, so only counsel and the judge could hear. When all parties were arranged at the bench, Ann said earnestly, “Judge, this is outside the scope of direct. Counsel is fishing.”
“Your Honor,” Sam began. “This is perfectly legitimate cross-examination. Counsel put on the record the investigative steps taken by Officer Baker. All I am doing is crossing Officer Baker with his own words and the report filed by the police following the incident.”
Daniels stared hard at Sam for a moment. He had to allow it, under the law. “I’ll allow the questioning to continue—up to a point, counsel. But keep it short.”
After Ann and Sam had returned to their places, the judge announced, “Objection overruled.”
“Officer Baker,” Sam continued. “Please take a look at what I am handing you and let me know when you are prepared to answer a few questions about it.”
“I’m ready.”
“What are those papers you are looking at?”
“This is a copy of the report I filed after the incident.”
“And you prepared that report—true?”
“Yes.”
“When?”
“Well, I worked on it for a couple of days, but it looks like I completed and filed it November 6.”
“And when you filed it, everything was still fresh in your mind?”
“Yes.”
“And when you file these reports, they are supposed to contain truthful information—isn’t that right?”
“Of course.”
“So, of course, everything in there is true—is that correct?”
“Correct.”
“So, what is supposed to go into the report?”
“Objection,” Ann said. “This client is not an expert.”
“Your Honor—” Sam began.
“Overruled. Answer to the best of your ability,” Daniels said, adding, “Mr. Johnstone, I am running low on patience.” Again, Sam was shocked. This was entirely improper on Daniels’s part. Again, he looked at the jurors, who were now staring at him curiously.
“The report is supposed to contain everything that we did in connection with the investigation.”
“Everything?”
“Well, yeah. I guess. I mean, everything that’s relevant.”
“Who decides what’s relevant?”
“Well, the guy writing the report.”
“So, if something happens in connection with the investigation, you put it in the report unless you find it not relevant—is that right?”
“Uh, yeah. I think so.”
“Okay, so looking at this report, there is no mention of your door-to-door investigation, is there?”
“Yes, there is,” Baker said, pointing to a page. “Right here, I noted the individuals I spoke with, and what time, and where they lived.”
“But you didn’t say in your report what any of them said, did you?”
“Well, no. Because I didn’t think it was relevant.”
“Officer Baker, what did Mrs. Snodgrass tell you?”
“Who?”
“Mrs. Snodgrass. 806 Custer Avenue. What did she tell you?”
“I can’t recall.”
“You don’t know?”
“Well, I can’t remember, sitting here now.”
“And what about Mr. Jorgensen. He lives at—”
“Counsel, please approach,” Daniels interrupted. When the parties were in place, he looked hard at Sam. “What are you doing?”
“I’m cross-examining a witness, Your Honor.”
“This is going to take forever at this rate,” Daniels hissed. “I won’t have it.”
“Your Honor, I have every right—”
“Mr. Johnstone, I’m going to order you to move along. Ask your questions, but in such a manner that we can get this witness done before the evening break.”
Sam again met
Daniels’s glare. This was clearly improper. He snuck a glance at the jurors, who were clearly intrigued, and clearly of the opinion that Sam must be doing something wrong. “Your Honor, I object to your continually interrupting my cross-examination of this witness.”
“I’ll not have this kind of impertinence, counsel. Return to your places.”
“Judge—”
“Return to your places!” Daniels hissed.
“Officer Baker, let me ask it this way,” Sam said, after everyone was back in place. “You said earlier that some residents gave you information during your door-to-door, right?”
“Right.”
“And not all of that information made it into your report, right?”
“Right.”
“So, what information were you given, and by whom, that didn’t make it into your report?”
“Objection, Your Honor,” Ann said. “Hearsay.”
“Sustained.”
“Your Honor! I have no other way to elicit this information,” Sam said. “It was withheld! I had no knowledge of it because it wasn’t disclosed.”
“The witnesses’ names were in the report, Judge. He could have deposed them prior to trial,” Ann said.
“But I didn’t know they’d said anything not included in the report,” Sam argued.
“The objection is sustained, Mr. Johnstone. Move along.”
Sam looked at the jurors, all of whom were looking impatiently back at him. Daniels had turned them against him. “No more questions, Your Honor,” he said, smiling at the jurors as he sat down, and getting a smirk from Juror 465 in return.
40
“Ms. Fulks, call your next witness,” Daniels said, when trial resumed the next day.
“Dr. Ronald B. Laws.” Ann turned and faced the rear of the courtroom, awaiting the doctor’s arrival. As was customary, Dr. Laws had been sequestered prior to testifying. The doctor approached the stand, was sworn to an oath by the judge, and took his seat on the witness stand.
“Would you state your name, please, and spell your last name for the record,” Ann requested.
“Ronald B. Laws, M.D. That’s L-A-W-S.”
“And where do you live, Dr. Laws?”
“You want an address?”
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