(2012) The Key to Justice

by Dennis Carstens

  Of course, that is the theory. There is a great deal of gray area here, depending upon the individual judge, as to what will be allowed. Slocum believed he didn’t have far to go with all of the evidence he had at his disposal so he played it straight and stuck to the case.

  He started off by introducing himself and Steve Gondeck and by thanking the jury for taking the time out of their lives to perform this valued civic duty. Using an overhead projector, he placed in front of the jury a list of each of the victim’s names with a small amount of biographical data listed for each. Names, birth dates, marital status, children, date of death for each of them.

  Slocum went over the list one name at a time giving the factual evidence to be presented for each and every one. Trying to bring them to life. Make them the human beings they recently were, in the minds of the jury. An occasional sob or sniffle could be heard from the otherwise silent audience as Slocum went down the list.

  During all of this, Marc began making notes. Not because he didn’t know what was coming but because it was his job to keep Slocum honest. If the prosecution told the jury they were going to present a certain piece of evidence or hear a witness testify about something or other, and then if the prosecution failed to deliver or forgot about it, Marc would beat them over the head with it during his closing argument. It rarely happens, but when it does, it can be decisive.

  After Slocum had finished with the victims he moved on to his witnesses and the evidence. Starting with Jake Waschke he led them through his upcoming case. One witness at a time. One piece of evidence at a time. Explaining what their testimony would be and the evidence to be presented all with a single thread to tie the entire case together. Leading the jury down a single path. A path that led to no other possibility, as presented by Slocum, than right to the lap of the man seated next to his lawyer. The man seated closest in the courtroom to the jurors, Carl Milton Fornich.

  “The burden of proof in the American judicial system is on me, ladies and gentlemen. A burden that I agree with and gladly accept. And that burden of proof is that the state must prove, and the evidence that we present will prove, beyond a reasonable doubt, that the man who committed these terrible, heinous crimes is here today. Beyond a reasonable doubt, not beyond all doubt, but beyond a reasonable doubt, the evidence will show that Carl Milton Fornich is guilty of all counts of the indictments before you today. Thank you ladies and gentlemen.”

  Slocum had spoken for two hours and twenty minutes without looking at a single note. Two hours and twenty minutes that had seemed to be no more than thirty minutes, total. Marc grudingly admitted to himself, Steve Gondeck was right. He did appear damn effective in front of a jury and as far as Marc could tell, hadn’t missed a thing.

  “Do you wish to give an opening statement, Mr. Kadella?” he heard Prentiss ask.

  “Yes, your Honor,” Marc answered after rising.

  “We’ll take a short recess, fifteen minutes, and then you can begin,” Prentiss said.

  Marc began his opening statement pretty much as Slocum had. He introduced himself and Carl, thanked the jurors for their service and began the process of poking holes in the prosecution’s case. The process of creating a reasonable doubt in their minds.

  Since there is no point in denying the evidence to be presented by the State, he acknowledged, in a vague, ambiguous and general way, the evidence that Slocum did have. What he started doing was the process of pulling out the thread that Slocum had weaved through the evidence to Carl. Pointing out to the jury what was missing. Things such as: How could it be that in a county with a population of well over a million people, the State had only one witness? They had, of course, other witnesses. But none of them could identify Carl. And, the one witness who does claim to identify Carl did not see him at the scene, but almost two blocks away on a dark, public street.

  He pointed out the problems with the physical evidence as well. Six victims and almost no physical evidence that could link any of these crimes to his client. He was presenting argument of course. Supposedly impermissible during opening statements but by the time he drew an objection from Slocum and a mild admonishment from Prentiss, he had made his point.

  “Keep an open mind,” he said as he very gently, in a nonthreatening way, stepped up to within three feet of the jury box and stood before them. He paused for several seconds, quietly looked at each one of them as he stood before them with his hands folded in front of him. “Remember your promise. Each of you told me you would wait until all of the evidence had been presented. Until both sides had presented their case and then make your decision based on all of the facts and the law. The law, ladies and gentlemen. As Judge Prentiss will give and explain to you. The State must prove, beyond a reasonable doubt that my client, Carl Fornich, is guilty.

  “Right now, and up until you decide otherwise,” he continued as he slowly moved to his table to stand in front of Carl, “this man is innocent. It doesn’t matter what the police believe or the prosecution believes. You are the one’s that make the final decision. Until then, you must, not can, not should, but must, must presume he is innocent. And they have to prove,” he said pointing at Slocum and Gondeck, “that he is guilty beyond a reasonable doubt. Meaning, if you have a reasonable doubt, then you must, not can, not should, must find the accused, not guilty.

  “Remember your promise to me, ladies and gentlemen, and to yourselves and each other. Thank you, your Honor,” he concluded looking up at Prentiss and returning to his seat.

  Prentiss nodded at Marc, then turned his attention to the jury. He reminded them not to discuss the case with each other and certainly not anyone else throughout the course of the trial. Informed them they would be lunching together, a small victory for Marc, in the company of deputies and then turned back to the lawyers. “Since it’s almost noon, we’ll recess for lunch now. Mr. Slocum, we’ll begin taking testimony promptly at one o’clock. Court’s in recess,” he concluded as he rose to go while the bailiff said “All rise.”

  Marc spent the lunch recess grabbing a quick sandwich at an open-air sidewalk cafe and going over his cross-exam of Jake Waschke. He still didn’t know with certainty that Waschke would be called first, but he figured it was a pretty safe bet. Besides, he had thought while anticipating Slocum’s case, the whole thing would probably come down to Waschke and the witness, Hobbs. And Waschke was certainly the logical choice to kickoff the state’s case and Hobbs to conclude it.

  He took his seat at the defense table at 12:45 and continued going over his notes as the courtroom slowly filled up. A few minutes later, his client was brought in and took the seat next to him. Marc set aside his notes and made some small talk with Carl while they waited for the judge, jury and prosecution team to arrive.

  “You may call your first witness, Mr. Slocum,” Prentiss said after all of the principals had arrived and returned to their respective places.

  “Thank you, your Honor,” Slocum replied as he rose from his chair. “The State calls Lt. Jacob Waschke.”

  Direct examination of a witness is intended to be the witness telling the story and the lawyer remaining in the background. The attorney’s role is to guide the witness through his or her story and remain as unobtrusive as possible. It’s the witness and what he has to say, what he saw or did, that is supposed to be the focal point of the jury’s attention. The attorney should serve as a guide and not the one doing the testifying. Of course, both the witness and the lawyer should know long before the witness takes the stand, exactly what the testimony is going to be. Coaching, at least in theory, is not allowed. But preparation certainly is. You’re not allowed to coach a witness by putting words in his mouth but you better go over the exact story each of your witnesses has to tell, how they’re going to tell it and how they will present themselves to the jury before you get there.

  Jake, as a veteran of many years on the police force, had testified scores of times over the years. Most cops, including Jake, don’t like it too much. But, they also realize it�
��s a necessary part of the job. And, having testified as many times as he had, Waschke knew exactly how to present himself to a jury. As Marc figured he would.

  Jake had spent several hours with Slocum and Gondeck, going over his testimony from start to finish. Being the first witness up, and the one with the most knowledge about the crimes, investigation and evidence that led to the arrest, it would be critical to the State’s case that Jake’s testimony come off without a hitch.

  The good direct examiner, which most veteran prosecutor’s are, will move the story along with soft, open-ended questions. What happened next? What did you do then? What did you see yourself? Keep the witness from straying and pay close attention to be sure he doesn’t miss anything. One missed piece of evidence or an element of the crime overlooked and your whole case can go down the drain.

  “Lt. Waschke,” Slocum began from his seat after Jake had introduced himself to the jury. “How long have you been a police officer?”

  Slocum deliberately started slowly with Jake’s record on the force, years of service and any additional information about Jake’s background and credentials. Building Jake’s credibility in the minds of the jurors. Telling them that this was a witness worth listening to. Besides, the first witness up in any trial is probably the most important. The one that gets to testify while the jury is still fresh and alert. Any trial, but especially a long one, is going to become pretty boring after a while. It isn’t television. A real trial moves at a snail’s pace most of the time and it’s the exceptional person who can maintain any good level of concentration during the whole thing.

  Slocum spent the entire first afternoon with Jake going over the preliminary stages of the investigation and reintroducing the victims to the jury. As each new murder came up, as soon as the victim’s name was mentioned, Slocum would rise from his seat and approach the bench and witness stand carrying two photos of the woman about to be discussed.

  The photos themselves had been the subject of a very thorough and heated debate between Marc and the prosecution at a pretrial hearing. Gondeck had represented the state without Slocum, as he had at all of the pretrial motions and had argued for the introduction of many more and several very inflammatory photos to be shown to the jury. Photos at the crime scene. Gory and blown up shots of bound and naked women lying cold and lifeless.

  Marc, of course, had argued that these shots would be too prejudicial and offer little, if any, evidentiary proof of his client’s guilt. The only point to the photos, he had argued with some success, would be to play on the jury’s emotions and should be totally excluded. Prentiss had ordered a compromise between the two positions. He would allow two photos of each victim. One taken before her murder and one after. And it was Prentiss himself who had gone over the photos and decided which ones would be allowed.

  Slocum had decided to introduce them through Jake’s testimony. Technically he should have used the person who took the photos to testify as to their accuracy. But, he wanted them seen by the jury as soon as possible. Marc could have objected since Jake personally had not taken any of the photos himself and had no personal knowledge about the accuracy of the precrime photos. Marc had decided against it since he knew, one way or another, those photos were coming into evidence and he didn’t want to risk alienating the jury with pointless objections.

  Slocum moved slowly, deliberately around the courtroom with the photos. First showing them to Prentiss, then to Marc for any possible objection which Marc did with each of them. He would rise from his seat, identify the photo by exhibit number and, for the record and to make sure the jury understood why he objected, would point out that the photos themselves offered no proof of any kind as to who committed these murders. Prentiss would politely overrule him and Slocum would walk Jake through a series of questions to get the photos into evidence. Slocum would then carefully tack each photo into place on a large poster board placed on an easel in front of the jury box before moving Jake’s testimony along.

  The whole process was so time consuming that, by the end of the first day, Jake’s testimony had only covered the crimes and investigation of the first two victims, Mary Margaret Briggs and Victoria Landry. It was effective though, Marc had to admit to himself. By the time Slocum tacked those pictures up, there wasn’t a dry eye in the jury box.

  After Slocum had finished with the Landry woman and Jake’s involvement with her investigation, Prentiss interrupted him and called a halt for the day.

  “We can pick up here in the morning, 9:00 a.m.,” Prentiss said. He then took a couple more minutes to remind the jury to stay away from newspapers and TV news and recessed for the day.

  SIXTY-TWO

  The next morning Jake and Slocum picked up the testimony where they had left off the day before. The poster board with the photos was back in place and the two men spent the entire morning session discussing and displaying victims number three and four, Kimberly Mason and Constance Ann Gavin.

  “At what point did you first begin to believe these women were all the victims of the same man?” Slocum asked, an objectionable question that Marc let pass.

  “The second victim,” Jake answered, “Victoria Landry.”

  “Why?”

  “Because of the obvious similarity between the method of the assaults and killings.”

  “What about Ms. Gavin?” Slocum asked.

  “That one was a bit different,” Jake said, looking directly at the jury.

  “How so, Lieutenant?”

  “Well, the first three were all similar in appearance. All tall, very attractive, slender brunettes. All killed, on a Wednesday or Thursday. Constance Gavin was different from them. More average in height and weight. Sandy colored hair. More blonde and more average looking. The others could be described as beautiful, even. She wasn’t. Plus, she was killed on a Sunday evening. Not the same as the three before her or the ones later.”

  “What made you believe she was a victim of the same killer?”

  “The method,” Jake answered. “A single stab wound under the chin through the mouth and into the brain.”

  “Is this unusual?”

  “Well, sir, in all my years on the force I’d never seen it before and I’ve yet to talk to another police officer here or anywhere else who has.”

  “Was there anything else about Ms. Gavin?”

  “Yes. We finally obtained a solid piece of physical evidence. A semen sample was taken from the body.”

  “Was it tested?” Slocum asked as Marc tensed in his chair anticipating the objection he would make.

  “Yes it was,” Jake replied.

  “And whose semen was it?” Slocum asked.

  “Objection,” Marc said as he rose from his chair before Jake could answer. “Lack of foundation.”

  “Approach, gentlemen,” Prentiss said to the two lawyers. The judge flipped a switch on his bench area and the room was filled with a white noise that would block their discussion. “Mr. Kadella?” Prentiss asked looking down at Marc.

  “Your Honor, this witness has no qualifications to testify about this evidence at all.”

  “Mr. Slocum,” the judge whispered.

  “Your Honor, even the defense analysis came back with a positive match. The jury has the right to hear this and hear it now. We’re prepared to bring in all of the qualified experts to verify the testimony you want.”

  “You’d better be, Mr. Slocum, or Mr. Kadella gets a mistrial. Is that clear?”

  “Yes, sir,” Slocum said, smiling slightly at his victory.

  “Your Honor ...” Marc said, beginning his protest but stopped when Prentiss raised a hand.

  “I’m going to let him say it, Marc,” Prentiss said mildly. “You’ll have your shot at cross and I’ll instruct the jury before he answers the question. Return to your seats.”

  “I’m going to overrule the defense’s objection and allow the witness to answer,” Prentiss said after the lawyers had sat back down. “However,” he continued, facing the jury, “I must cauti
on you first. This witness has not been qualified as an expert in this area and his answer is technically hearsay. Mr. Slocum assures me that an expert will be called and qualified to corroborate his answer. The witness may answer the question.”

  “What was the question?” Jake asked knowing full well what it was but not wanting to miss the opportunity to have it repeated for effect.

  Marc remained seated at the table, an impassive look on his face while all of this was said. All the while thinking that Prentiss and Waschke had just made the whole thing worse. “Whose semen was it?” the court reporter said, reading from the record she was making.

  “The defendant’s, Carl Milton Fornich,” Jake answered flatly.

  “Are you sure?” Slocum asked.

  “Don’t press your luck, counselor,” Prentiss said as Marc began to rise from his seat while a murmuring sound passed through the spectators. “Move it along.”

  “Yes, your Honor,” Slocum said softly.

  Jake testified for another half hour as several of the local TV news reporters slipped out of the courtroom to phone in the news about the semen match for the benefit of the noon broadcasts. Shortly after the noon hour and just before Slocum started on the next victim, Prentiss called a halt for lunch.

  After the lunch break the lawyers met with Prentiss in the judge’s chambers. Slocum had asked for the meeting to take one more stab at allowing Jake to testify about Michelle Dahlstrom. Prentiss, having already ruled on the subject, would have none of it. Since Carl was not charged with her death and believing that the Court of Appeal’s would overrule him anyway, Prentiss had ruled that no discussion of Michelle’s death would be allowed. Try as he might to change Prentiss’ mind, Slocum took the defeat good naturedly and they all went back to the courtroom to wait while Prentiss attended to some other business.

  Shortly after two, Prentiss came out on the bench to begin the afternoon session. While Jake was making his way back to the witness stand, Daniel Waschke quietly slipped unnoticed into the room. Daniel took the only empty seat available in the last row behind the defense table among the media members.