Misjudged

by James Chandler

  “Mr. Johnstone,” Daniels began. “Is it the defendant’s desire to cross-examine or not?”

  “May I have a moment, Your Honor?” Sam asked, looking through the affidavit of probable cause that was filed in connection with Tommy’s battery charge.

  “No.”

  Sam was not surprised, but in any event, he’d made his decision. “Just a couple of questions, Mr. Vargas,” he began. “You were doing laundry in your room for most of the night on the evening prior to the incident, weren’t you?”

  “Well, yeah. I always do. The jail would have us live like pigs, and I ain’t no pig,” he said, smiling.

  “And in fact, Mr. Olsen had asked you to stop doing laundry, hadn’t he?”

  “Oh, yeah. But he ain’t my boss.”

  “And sometime during the evening, when Mr. Olsen had asked you to stop, you told him to kiss your ass, didn’t you?”

  Some of the jurors were smiling. Seeing that, Vargas beamed with pride. “Oh, yeah. I told him he could kiss my brown ass, but I wasn’t gonna stop.”

  “So, when Tommy came into your cell, you knew why he was there, didn’t you?”

  “Yeah, ’cause he’s a dickhead,” Vargas replied, pleased with himself.

  “Move to strike,” Sam said.

  “Granted. Defendant’s response will be stricken, and the jury will disregard that last answer,” Daniels ruled.

  “And you spoke with the jailers about what happened, didn’t you?”

  “Yeah. Told ’em he came in for no reason and started beatin’ on me.”

  “But there was a reason, wasn’t there?”

  “Ain’t no reason to be beatin’ on someone.”

  “But you knew why Tommy had come into your cell; you knew what he was mad about, didn’t you?”

  “Yeah.”

  “But you didn’t tell the cops that, did you?”

  “I can’t remember.”

  “You told them you didn’t know why he came into your cell, didn’t you?” Sam asked, moving from the podium and shuffling through papers on the defendant’s table, appearing to look for something.

  “Well, maybe.”

  “Maybe?” Sam said, then, appearing to be reading from the paper he had earlier retrieved, he continued, “You told them you had ‘no idea’ why he came into your cell, didn’t you?”

  “Yeah.”

  “And that was not true, was it? Because you knew exactly why Tommy had come into your cell, didn’t you?”

  “Hey, I was hurt!”

  “But you didn’t tell the cops the truth, did you?”

  “No. I was scared and—”

  “And yet you now want us to believe that Tommy said you were ‘gonna get yours just like that bitch’ when you’ve already shown that you have lied in connection with the events surrounding the battery?”

  “Objection, Your Honor,” Ann said. “Counsel is badgering the witness; the question is argumentative.”

  “Sustained,” Daniels said.

  “I wasn’t under oath then.” Vargas folded his arms and sat back in the witness chair.

  “Mr. Vargas! Please do not speak except in response to a question!” Daniels was clearly perturbed. The jurors were observing Vargas closely.

  The point having been made, Sam determined to let it rest. “No more questions, Your Honor.”

  “Good.” Daniels looked to Ann. “Does the State have any redirect?”

  “No, Your Honor,” Ann replied.

  “Call your next witness, Ms. Fulks.”

  “Your Honor, the State would rest.”

  “Thank you,” Daniels said. “Ladies and gentlemen of the jury, this looks like a good time to break for the day. Let me remind you not to talk about the case with anyone. We’ll reconvene tomorrow morning at eight-thirty.”

  All in the courtroom stood while the jury filed out under Daniels’s steady gaze. “Please be seated,” he ordered. “The jury having been excused, let’s take a look at where we are. Mr. Johnstone, I’m assuming the defendant will want to be heard on a motion?”

  “Yes, Your Honor. Mr. Olsen—”

  “I’m not going to hear it now. We’ll hear the motion tomorrow.”

  “Your Honor!” Sam protested.

  “Counsel, I’ve made my decision. Please be seated. The court will hear your motion tomorrow morning.” Daniels thumbed through documents on his desk. “Mr. Johnstone, has your client decided whether he will testify?”

  “Not yet, Your Honor.”

  “Well, he needs to make a decision. One way or another, I need to do the requisite advisal. I’d like to go ahead and get that on the record immediately following my decision on your motion.”

  Sam was hot. The fact that the judge was anticipating having to advise Tommy regarding his right to testify meant that he was anticipating denying Sam’s motion for a directed verdict of acquittal. And while that was not unexpected—a judge granting that motion was exceedingly rare—his openly saying so was not only very unusual, it was prejudicial to the defense even if the jury wasn’t present. Sam was half-tempted to tell the judge to forego the motion, but to do so could constitute malpractice. He now faced the prospect of spending valuable time preparing for argument on a motion that Daniels had already decided.

  “Is there anything further to come before the court?” Daniels asked. Without waiting for an answer, he shot a glare Sam’s way and continued, “If not, we’ll be in recess.”

  46

  “Yo, Frac,” Fricke said. He was sitting in a chair in Daniels’s chambers, watching Frac dust. “You remember last week I said I’d give you four-to-one on conviction?”

  “Yeah, I remember.”

  “I’m thinking six-to-one now. You in?”

  “Nope.”

  “Nope? Why not?”

  “You said you are betting Tommy will be guilty, right?”

  “Of course!”

  “I don’t think he did it.”

  “You numbskull. What you think don’t matter. It’s what the jury thinks that matters.”

  “I think the jury will . . . what do you call it when they let him go?”

  “You mean acquit?”

  “Yup. I think the jury will acquit him.” Frac shook dust into the trash.

  “What the hell do you know? Tell you what: I’ll go ten-to-one. If you’re right, you’ll make ten bucks for every dollar you bet.”

  “So, if I give you five dollars?”

  “Then if your boy walks, I’ll pay you fifty.”

  “Deal.”

  “Gimme your money.”

  “I don’t got no money right now.”

  “Hey! No backing out! We gotta deal.”

  “Mom has my money.”

  “Okay, well, you get me five bucks and I’ll hold it,” Fricke assured him. “If Tommy walks—and he won’t—I’ll give you fifty.”

  “Okay.”

  “Man, you are gonna be one sore loser!”

  “So, what do you think?” Ann said. She was in Shepherd’s office with Punch.

  “I’m thinking we did the best we could with what we’ve got,” Punch replied. “I’m worried about the loose ends. Juries focus on loose ends.”

  “I agree,” Mike said.

  “Well, we got it all in,” Ann said.

  “What do you think Sam’s got?” Punch asked.

  “He doesn’t have anything,” Ann said. “What could he have? We’ve got his client’s prints, his client’s blood, his client’s DNA, the weapon with his prints on it at his house, Hadley’s testimony, Vargas’s testimony. Hell, he admitted to you that he was there; he’s clearly the last to have seen her alive.”

  “What about the other prints?” Punch asked. “And Howard? And the other DNA?” He looked at Mike Shepherd, who was focused on a piece of convenience store cake he was trying to unwrap.

  “That just means she was a skank,” Ann said, watching both men recoil at her use of the term. “Sam’s going to try. He made a big deal out of those prints and th
e unidentified DNA while crossing our guys. At closing, he’ll throw Howard, those prints, and the DNA out for the jury to see, but without something else—an ID, a motive, or something—the jury will see it for what it is: a smokescreen.”

  “Do you think Tommy will testify?” Punch asked.

  “No,” Shepherd said as Ann answered, “Yes.” They looked at each other. “Always a bad idea for the defendant to testify,” Shepherd said.

  “It is,” Ann agreed, “but Tommy Olsen is an arrogant man, a Marine, and a career criminal. He’s spent his life thinking he’s tougher and smarter than everyone else.”

  “Sam won’t allow it.” Shepherd dropped the wrapper in the trash. “I wouldn’t.”

  “Not sure he has that kind of client control,” Ann said. “That’s two sick puppies right there, probably sharing war stories and feeding off each other’s illness. And Sam knows that testifying might be his client’s only shot. We nailed this one, boys. Now, if you would, please give me a little space here. I need to get my cross-examination of Tommy outlined.”

  After the two men left her office, Ann swung her chair around and hit a few keys. The Department of Justice’s website had a listing of Assistant United States Attorney jobs she wanted to review. A death penalty conviction would look good on her resume and would be her ticket out.

  “We need to talk about whether you will testify,” Sam said to Tommy. They were in the jail on Saturday morning. Tommy looked tired and edgy.

  “Ain’t nothing to talk about,” Tommy said. “I’m testifying.”

  “I need to give you the pros and cons, just to make sure you understand.”

  “You say whatever you want, Sam. But I’m going to get on the stand and tell the jury the truth: I did not kill that woman.”

  “Tommy, the evidence the State put on—”

  “Is all circumstantial.”

  “Certainly, but most convictions are obtained through circumstantial evidence. The prosecution rarely has an eyewitness, especially in murder cases.”

  “Sam, I’m gonna ask you a question, and before I do, I want you to know I expect you to answer the question as a human being, not a goddamned lawyer—got it?”

  “Yes.” Sam stood and walked to the door, knowing full well what the next question would be.

  “If you were a juror, wouldn’t you want to hear me say I didn’t do it?”

  “I would, Tommy,” Sam said. “But that’s not the test. The test is whether the State has proven your guilt beyond a reasonable doubt. You have an absolute right to remain silent, to make the State prove your guilt without you saying a word.”

  “I know that. You’ve explained that. But Sam, you know as well as I do that if I don’t testify, them jurors will think I have something to hide.”

  “The judge will instruct them not to think that way.”

  “You’re thinking like a lawyer, Sam.”

  Sam smiled at Tommy. True enough. “Tommy, testifying is dangerous. Ann is a good prosecutor. By testifying, you could say something—”

  “Like what? I didn’t do it, Sam.”

  “I know that. I believe you. But Ann could get you to say something that might trip you up, something that might hurt us.”

  “Us?”

  “You.”

  “Goddamned right, me,” Tommy said. “It’s my ass on the line.”

  “I know that.”

  “Sam, let me ask you something. That Juror 465—do you think for a minute that if I don’t testify, she’s gonna vote to acquit?”

  “Well, I’m not sure. But she’s an alternate, so we don’t have to worry about her, thank God.”

  “But if she was?”

  Sam thought about his response for a moment, then decided to forego saying anything. “Okay, Tommy, if you’re going to testify, let’s get you ready.”

  Punch was sitting in a small diner on Custer Avenue, waiting for Ed, the proprietor—known locally as “sweaty Eddie”—to serve up his bacon and eggs, when his cell phone rang.

  “Always on the clock, eh, Detective?” Ed laughed.

  “No kidding,” Punch said, quickly shoveling in a mouthful of hash browns before answering. “Polthen.”

  “Is this Detective Polson? Sounds like you’re in a hole or something.”

  “Jutht a minute.” Punch took a swallow of tepid water. “Who is this?”

  “This is Simmons, DNA technician from the crime lab.”

  “You got something?” Punch asked, struggling to keep from hyperventilating.

  “You sittin’ down?”

  “Yes.”

  “That fingerprint? DNA matches that from the semen.”

  “Jesus Christ! You sure?” Punch signaled for Ed. “Put it in a box,” he mouthed, indicating his breakfast.

  “Well, as sure as I can be. You’re the only one who knows where the print came from. The DNA from the print has the same DNA as the semen. So, assuming you didn’t mix something up, they’re both from the same guy. I don’t know whose it is, but I can say with scientific certainty—”

  “I understand. Holy shit!” Punch took a swig of his coffee.

  “You sound surprised. You must have had an idea.”

  “I did,” Punch said, peeling bills off his money clip. “I just didn’t want to believe it. Hey, Simmons?”

  “I know, I know. Keep this between us, right?”

  “Right.”

  Five minutes later, Punch was in Ann’s office. He’d given her the news. “This is more of the same—no more or less exculpatory than the prints,” Ann said.

  “You can’t be serious! If I’d have had this information—” Punch began.

  “Well, maybe you should have, Detective!” Ann slapped her hand on her desk. “This was your investigation, after all. Maybe you should have gotten this information sooner.”

  “I got it as soon as I could.”

  “We don’t even have confirmation, do we?”

  “What do you mean?”

  “I mean right now, all we have is a print you say was gathered from Howard.” Ann sat back in her chair.

  “I got it myself!”

  “But we’ve got no chain of custody—nothing we could take to court if we were inclined to do so.” She stood and moved to look out her window at the sunshine. The trees still hadn’t leafed out. Probably warm and sunny in Denver by now.

  “No, but I took it and had DNA drawn from it—”

  “Without clearing it with me, I might add.”

  “I am the investigating officer! I had the DNA taken from the print and matched to the DNA taken from the semen sample.”

  “So, we have a DNA match between the print of an unknown donor—”

  “Ann—”

  “Let me finish, Punch. We have a DNA match between the print of an unknown donor and a stain on her sheets, right?”

  “We know the fingerprint on the vase was Howard’s. Pleasance said it right on the stand. And now we know Howard was not only in her house, but literally in her bed—sometime around the time of her death.”

  “Sometime,” she said. “Assuming she even did laundry.”

  “Ann, we know Howard left a print on the vase and his, uh, semen on her sheets. I just can’t say when either event happened.”

  “That’s right. You can’t.” Ann returned to her desk and sat down. “And the jury already knows about Howard’s print, and they know of the presence of an unknown man’s semen.”

  “But they don’t know the connection between the two, Ann!”

  “And neither do we, to a scientific certainty, do we? Because you collected the sample, and you ordered it examined, and you did all this without following protocol!”

  Punch sat back. “Do we have enough for a warrant?” he asked. “Because he’s not in CODIS. Apparently, he’s never given a DNA sample. But if we get a warrant, I could verify it.”

  “For what?” Ann said, typing into her computer. “All I know is that I just found out about a possible match and advised the investig
ating officer to move quickly to verify information he might have that might be exculpatory.”

  Punch watched her typing. After a few minutes, he got up and left, slamming her door behind him.

  47

  Daniels was in his chambers smoking a cigar when he got word that Detective Polson wanted to speak with him.

  “Regarding what?” he asked Mary.

  “I don’t know, Judge. He wouldn’t say.”

  “Well, show him in. But don’t go far. He won’t be here long.”

  Mary escorted the detective to the judge’s chamber. “Thank you, Ms. Perry,” Daniels said. “Sit down, Detective. How can I help you?”

  “I have some information for you, sir,” Punch replied.

  “Information about what, exactly?” Daniels asked, lighting his cigar.

  “The Olsen matter,” Punch replied, watching the judge closely. Daniels slowly stopped the effort to light the cigar, placing both the lighter and cigar in an ashtray on the end table next to his recliner. He folded his hands across his midriff, sighed deeply, and looked steadily at Punch.

  “Go on,” Daniels said. “But be careful. Surely you know that a conversation between us at this juncture is potentially improper.”

  “I understand that, sir.”

  “And yet, you’re here.”

  “I am.”

  “Does the chief know that you’re here?”

  “No.”

  “Does he know the subject matter you’re here to discuss?”

  “No.”

  “Does Rebecca Nice know?”

  “That I’m here? No. The subject matter? I’m not sure. I doubt it.”

  “Does anyone else know?”

  “That I’m here? Just your secretary,” Punch said. “The subject matter, well, that’s part of the problem.”

  “Do you want something?”

  “No.”

  “Do you want me to do something?”

  “Yes.”