by David Staats
“Well, the other thing is,” said the doctor, trying to recover, “even if the decedent had been shot, we have no way of knowing if death had occurred before the decapitation.”
“I see,” said Dure. “How deep was the bullet buried in the brain?”
“It was, if I recall correctly, about five inches,” said the doctor.”
“And it’s your medical opinion that a person could survive that?”
“Well, not long, but maybe long enough that the decapitation was in fact the efficient cause of death.”
“Just a few minutes ago you testified that it caused near-instantaneous death.”
“Well, there’s a certain range of variation and uncertainty in these things.”
“Doctor, did you examine the skin around the bullet entry for powder burns?”
“I did, and found none.”
“Indicating that the head was some distance away from the muzzle of the weapon that fired the bullet?”
“I’m not a firearms expert. I’ll just say that no powder residue was found on the caput.”
“No further questions,” said Dure.
13.
“Mr. Dure!” called Torvald Bornstein, as Dure was approaching the entrance to the Justice Center the next morning. Dure stopped and returned the contumacious blogger’s greeting.
“Can you fill me in on what happened yesterday?” asked Bornstein, puffing a bit from the exertion of walking hurriedly.
“Are you still going to blog this case?” asked Dure.
Bornstein smiled sheepishly. His head swayed in indecision. “I’ve paid enough for the privilege,” he said. “I could go in and take notes by hand and then post them from outside the courtroom during breaks. I’m still deciding what to do. But from the comments and traffic on my site, there is interest in this case.”
Seeming to take pity on the man, Dure gave him a rather detailed commentary. Bornstein took out a little notebook and scribbled rapidly. “You have any hope you’re going to get an acquittal?” he asked.
The question elicited from Dure a sardonic grimace; but he answered with an air of patience. “From yesterday’s testimony and evidence, I am pretty sure I now know how the murder was done. If I am right, then I also have a pretty good idea of who did it. But don’t print that. I don’t want to scare somebody off. I’ll be attempting to confirm my hypothesis today.”
“Oh, come on, come on. You gotta tell me more than that.”
“Come into court and watch,” said Dure.
“Yeahh . . . I’m not so sure . . . ” said Bornstein.
Dure joined the flow of persons entering the Complex.
* * *
As soon as the judge had taken his seat, Preston announced, “The Commonwealth calls Everett Loveless as its next witness.”
Interrupting, Dure said, “If I may, Your Honor, the defense would like to finish its cross examination of Lt. Wisdom, now that we have the photographs the prosecution promised.”
“Yes, I recall,” said the judge. “Lt. Wisdom to the stand.”
Preston frowned and sat down.
“May I approach the witness?” said Dure, holding a photograph in his hand.
“You may,” said the judge.
“Lt. Wisdom, this is a photograph which the police took of the interior of the refrigeration unit where the head was found, is it not?”
“Yes.”
“And directing your attention to the bottom of the inside of the unit, would you agree with me that there is no accumulation of blood or other fluid there?”
“Yes, that’s right. There was no blood.”
“Which would indicate that the head had been placed there some considerable time after it had been severed?”
“It could indicate that.”
“Thank you, Lieutenant,” said Dure. He walked to the defense table and put down the photograph, then went to the clerk’s bench and took up the baggie with the bullet in it. He glanced at the judge to see whether he needed to ask permission again to approach the witness, but the judge nodded, and Dure proceeded to the witness stand.
“Lt. Wisdom, I show you this bullet which has been removed from the head which your department recovered. You have examined and are familiar with this?”
“I have examined it, yes.”
“Would you agree that this is probably a .22 caliber bullet?”
“It certainly could be. But as you will note, the bullet is deformed. Could be a .25 caliber.”
“Did you weigh the bullet?”
“We did.”
“And what was the weight?”
“Thirty-nine grains.”
“And the standard weight for the most common .22 Long Rifle ammunition is 40 grains?”
“That’s right.”
“And nearly all .25 caliber ammunition carries a bullet significantly heavier than 40 grains?”
“Generally, yes.”
“Thank you, Lieutenant. No further questions.”
Now Preston called Everett Loveless to the stand. “This will be the prosecution’s last witness,” said Preston to the judge.
Loveless testified that he had lived next door to the Houlihans for the past 15 years. He was familiar with the Houlihan family.
“Do you recognize Mr. Houlihan here in the courtroom?”
“Of course.”
“Would you point him out for the jury?”
Loveless pointed with his entire arm and forefinger extended at Houlihan.
Then Preston took Loveless through a series of questions in which Loveless, reluctantly, told of observing violent arguments between Houlihan and his wife. According to what Preston was able to drag out of Loveless, these had occurred, at least to his observation, at long intervals over the whole course of the time that they had been neighbors. About two years ago he had overheard an especially loud, violent argument coming from the Houlihan’s back yard. He had heard a sharp smack that sounded like it could have been a slap, but he could not say, assuming it was a slap, who had slapped whom. Since then, he had not heard any arguments, but he had noticed that Mr. Houlihan had become less outgoing, and seemed beaten down. Even his posture had suffered.
As to the weekend of the murder, he had not noticed anything unusual. He had seen Houlihan drive away on Friday afternoon, but was uncertain what time that had been. He had been out in his front yard. The next thing he knew about what was going on next door was Monday when police cars started arriving. He had been as shocked as anyone else in the neighborhood. On that note, Preston relinquished the witness to Dure.
Dure stood. “Your Honor, if I may. I would like to call a witness to lay a foundation before I begin my cross-examination of this witness.”
“I object,” said Preston. “The defense can call its witnesses during its own case. This is the prosecution’s case.”
“Your Honor,” said Dure. “The laying of the foundation will not take long – no more than five minutes. Without it, I cannot do a proper cross . . . and the defense does not intend to call Mr. Loveless as a witness in the defense case.”
“If it will only take five minutes,” said the judge, “I’ll allow it. Go ahead.”
“I call Manolete Gonzalez,” said Dure.
Loveless vacated the witness chair and a barrel-chested Hispanic man of about 40 came forward. Mr. Gonzalez testified that he was the crew chief for the crew that mowed the lawn of the Sweets, across the street from Mr. Loveless’s residence. He stated that the company he worked for had a contract with the Sweets for weekly mowing, and that unless weather conditions interfered, they mowed the lawn on Fridays, usually about mid-day, it being the third house on his Friday route. According to company records and his memory, they had mowed that lawn starting around 12:30 on Friday the 5th of June, and that it usually took about an hour. Then Dure asked:
“What kind of mower did you use?”
“It was a TurfChomper 66-inch 31-horsepower, Front Mount, Zero Turn Mower,” said Gonzalez.
“Do you
wear hearing protection while using that mower?”
“Oh, yes sir. Those mowers are very loud.”
“The manual that comes with those mowers requires hearing protection, does it not?”
“Yes, sir, it does.”
“And, at my request, did you check the manual for a decibel rating on that mower?”
“Yes, sir. It is between 95 and 100 decibels according to the manual.”
“And you brought the manual with you?”
“Yes sir, I have it right here.”
“Thank you. I don’t need to look at it, but maybe the prosecution will want to.”
“And while you are operating the mower, is any other noise-producing equipment being used?”
“Objection,” called out Preston. “This whole line of questions is irrelevant.”
Dure started to respond to the objection, but the judge held up his hand to Dure to be quiet. Then the judge said, “I think, since the witness has testified that this was occurring during the time which the prosecution maintains that the crime was committed, I will allow it.”
“While I am running the big mower,” said Gonzalez, “another man is using a trimmer or a blower.”
“And how loud, in decibels are these?”
“They are very loud. As you said, I look in the manuals and they up to 110 decibels.”
“Thank you, Mr. Gonzalez. No further questions.”
“Do you wish to cross-examine?” asked the judge of Preston.
“No, Your Honor, I do not wish to further waste the Court’s time.”
Mr. Gonzales left the witness stand, and Mr. Loveless returned to it. Dure begin his cross-examination. “Mr. Loveless, continuing to direct your attention to the weekend of the murder, on Friday, June 5, you did not notice anything unusual in the Houlihan’s yard?”
“No-o.” Loveless made the word almost two syllables, drawing it out into a wary question.
“You did not notice any strange vehicles in the neighborhood?”
“No.”
“You did not notice any strange persons in the neighborhood?”
“No.”
“You did not notice any unusual activity in or around the Houlihan’s yard?”
“No.”
Dure asked exactly the same set of four questions with respect to Saturday, June 6. He got a ‘no’ to each question. Then he asked exactly the same set of questions for Sunday, June 7, and got a ‘no’ to each of those questions as well. Then he asked the same set of four questions again about Monday, June 8 up until the time that the first police car arrived on the scene. He got a ‘no’ in response to each question.
Then he shifted gears. “It’s true, isn’t it, that in your neighborhood there is a lot of road kill?” he asked.
Loveless appeared startled for a moment. “I don’t know about ‘a lot,’” he said.
“You’ve seen flattened squirrels on the roads around your house?”
“Yes.”
“’Possums?”
“Yes.”
“The occasional raccoon?”
“Yes.”
“Deer?”
“Yes.”
Preston got to his feet. “I object, Your Honor. May we approach the bench?”
“Come forward,” said the judge.
The two attorneys advanced to the side of the bench that was away from the jury, and the court reporter nimbly lifted and carried his transcribing machine to join them.
“I let Mr. Dure go for a little bit,” said Preston, “in part because I couldn’t believe my ears. But his questions are not only absurd, they have nothing whatever to do with the case. He’s wasting the time of the Court and the jury.”
The judge turned to Dure and lifted his eyebrows by way of asking for Dure’s response.
“This is a murder case, Your Honor – ” said Dure.
Preston interrupted. “Exactly, Your Honor. It has nothing to do with vehicular manslaughter of local fauna.”
“Let him talk,” said the judge.
“It is well established,” continued Dure, “that defense counsel in cross-examination should be allowed the widest latitude. The defendant’s life is at stake and I am entitled to cross-examine in the way I see fit to best defend my client.”
“Can you tell the Court in what way this line of questioning is relevant,” said the judge.
“What I can say is that I have reasonable grounds to believe that it will lead to relevant evidence,” said Dure.
“If you were a younger lawyer,” said the judge, “I meant to say, a less experienced lawyer, I would be tempted to sustain the objection, if only to protect your client. But you are an experienced defense attorney and I will give you substantial latitude. I hope you don’t hang yourself with it – or your client. Objection overruled.”
The lawyers and the court reporter returned to their places, and the judge scooted his wheeled judge’s chair back to his place behind the middle of the bench.
“How about groundhogs?” said Dure. “Have you seen groundhogs run over in the road around your house?”
This question seemed to startle the witness. Warily he said, “Yes.”
“Now, on account of all this roadkill, isn’t it a fact that buzzards are also common in your neighborhood?”
“You mean vultures,” said Loveless.
“I said ‘buzzards.’ Isn’t it a fact that buzzards are common in your neighborhood?”
“Vultures are common,” said Loveless. “‘Buzzards’ is a vague term used by the ignorant.” He tried to suppress a smirk of superiority.
“You are informed about birds, I take it?” said Dure.
Loveless gave a shrug of modesty. “I know something about them.”
“In fact, you have been what is commonly know as a ‘bird-watcher’?”
A slightly less emphatic shrug. “Yes,” said Loveless.
“In fact, you used to roam about your neighborhood with field glasses, isn’t that right?”
A note of hostility crept into Loveless’s voice. He sat up a little straighter and compressed his lips. “Yes,” he said.
“But you stopped doing that when a woman accused you of being a peeping Tom?” said Dure.
“Objection!” said Preston.
“Approach the bench, gentlemen,” said the judge, wearily.
“Your Honor,” said Preston, when they had all assembled, “not only have we not seen any relevant testimony, now Mr. Dure is attempting to expose this witness to ridicule. It is unethical and the questions are irrelevant. I object.”
“And I object to Mr. Preston’s uncivil and improper tactic of continually interrupting the flow of cross-examination. As Your Honor knows, the exposure of biased or dishonest testimony is an art, and it depends on the flow of questions and the atmosphere created by the cross-examiner. That is why the law frowns on repeated interruptions of cross-examination. This line of questioning is proceeding exactly as I anticipated it would, and we will soon get some traction, if Mr. Preston will stop his improper objections.”
The judge sighed. “Since this is a murder case, I am going to allow the defense latitude – reluctantly. You will keep in mind, Mr. Dure, that you can alienate the jury as well as the Court if all of this leads to nothing.”
Nobody said anything further, and the little conclave broke up.
“Let me rephrase the question,” said Dure. “Didn’t some misguided woman object to your walking around the neighborhood with field glasses in your hands?”
“Something of that nature, yes.”
“In fact, you never had interest in what might have been going on in any of the houses, you were only observing birds, isn’t that right?”
“Yes, that’s right.”
“And after that encounter with that woman, you left off using the neighborhood as a birding ground?”
“That is true.”
“How many years have you been watching birds?”
“Perhaps twenty?” offered Loveless.
Dure put his next question with a friendly manner, as if giving the witness a chance to brag. “How many birds on your life list?”
Loveless seemed surprised by the question and a little suspicious. “I have to agree with Mr. Preston that I don’t see what this has to do with anything, but I think it is about 347.”
“The witness will answer the question,” said the judge sternly, “and leave the objections to the lawyers.”
“Are you the kind of birder,” said Dure, “who can spot a tiny tit sixty feet up in the branches of a tree?”
“Well actually, you would rarely see a tit that high up. They are more commonly found from ten to twenty-five feet up. But, yes, I am pretty good at spotting birds.”
“Tell us then,” said Dure, “why is it that you did not notice the vultures with a six-foot wing span landing and feeding and leaving just thirty feet from your bedroom window all during the weekend of June 5 through 7?”
A brief frisson of shock could be observed in Loveless. He cleared his throat. “What was the question?” he said.
Dure repeated it.
“I didn’t notice any vultures probably because there weren’t any,” said Loveless.
“Suppose I told you that Dr. McCann, the Commonwealth’s medical examiner, had testified that vultures had been feeding on the corpse for at least twenty-four hours before it was discovered?”
“So?” said Loveless. “I didn’t see any.”
“So you’re a birding enthusiast who can spot a tiny tit in a tall tree, but you weren’t able to notice huge vultures landing thirty feet from your bedroom window?”
During the course of Dure’s cross-examination, the atmosphere in the courtroom had been growing tenser. The usual rustling, whispering, coughing, and creaking of benches and chairs in the courtroom had ceased. Even Preston was rapt, literally sitting on the edge of his seat. It was so quiet that one might have heard a spider spinning its web.
“Nope, didn’t see it,” said Loveless.
“All weekend you did not see any vulture landing or taking off next door?”
“Nope.”
“Do you keep the shades drawn in your bedroom during the day?” asked Dure.
“I might have that weekend.”
“But it’s not a habit with you?”
