The Last Plea Bargain

by Randy Singer

  I was surprised that she got through the entire answer without an objection from Caleb Tate. Maybe he realized that the jury had already pieced it together, and he would just have to deal with it on cross-examination. Good luck, I said to myself.

  “I have no further questions,” I said. “Please answer any questions that Mr. Tate might have.”

  74

  Caleb Tate stood quickly and went to the well of the courtroom, ignoring the podium. “That’s an awful lot of speculation, isn’t it?”

  O’Leary gave him a stern look. “I would call it reasonable inference from the medical data. Your wife, may she rest in peace, is telling me a story, and I’m doing my best to pass that along to the jury.”

  Tate took a step closer. “People addicted to narcotics tend to need more and more of the same drug to get the same effect; isn’t that correct?”

  “Of course.”

  “That’s why some of the highest blood levels on your list came from hospice patients, isn’t that right?”

  “Yes. And as far as I know, your wife was not a hospice patient.”

  Tate froze for a moment, staring at the doctor. “Do you think this is funny?”

  “No, I think this is a horrible tragedy. And I hope you do as well.”

  “I lost my wife. I haven’t been able to sleep since the night I found her dead. I would trade places with her if I could—”

  I jumped up. “Objection. He’s testifying, not asking questions.”

  “She’s right,” Judge Brown snapped. “Stick to questions.”

  Tate chewed this over for a moment. I knew this was a show for the jury and that he already had his next line of attack prepared. “You can’t rule out the possibility of an accidental drug overdose, can you?”

  “Anything’s possible.”

  “You’re aware that the police found pill bottles with OxyContin and codeine in the bottom of my wife’s dresser drawer?”

  “I was aware of that.”

  “And that those bottles had her fingerprints on them and not mine?”

  “I would presume that if you are smart enough to poison your wife, you would also be smart enough to use gloves when you handled the pill bottles. I would also presume that you’d be smart enough to make sure her hand touched those bottles one way or another.”

  O’Leary’s answer made me relax. I was usually tense when my witnesses were cross-examined. I felt helpless watching the other attorney hammer away, knowing there was nothing I could do about it. But O’Leary could handle herself. And Caleb Tate’s ego was way too big for him to do the smart thing—sit down and shut up.

  “Fingernail testing is much less reliable than hair testing, is it not?”

  “There are more possibilities for false positives, yes.”

  “That’s why you didn’t do the fingernail testing in the first place. Right?”

  “That’s correct.”

  “So let me ask you a few questions about the morphine.”

  Tate had recovered some, and his voice was picking up confidence. He had learned about the morphine when we turned over the fingernail tests as part of our Brady materials—any exculpatory or impeachment information favorable to the accused.

  “The morphine didn’t show up in the hair?” he asked.

  “No.”

  “It only showed up in the fingernail testing, which, as we just established, tends to have more false positives.”

  “Because of the length of the fingernails, we were able to test for drug use over a longer period of time. The tests indicate the morphine was taken more than six months prior to her death.”

  “Are you aware that my wife had an affair about two years ago?”

  “I was told that. I don’t know it to be true.”

  “Well, let me assure you that it’s true—”

  I was up again. “He’s testifying, Judge.”

  “Approach,” Judge Brown demanded.

  Caleb Tate and I went to the bench and stood side by side. “Mr. Tate, she’s right. You need to quit testifying. Don’t think I don’t know exactly what you’re trying to do.” Judge Brown then turned to me. “And you can make your objections without pointing out the fact that he’s testifying. Every time you say that, it comes dangerously close to highlighting the possibility that he might take the Fifth Amendment and refuse to testify. You know prosecutors can’t comment on that.”

  I bit my tongue. I was determined not to pick a fight with Judge Brown in this trial, and I reminded myself of that. “Yes, Your Honor,” I said.

  I returned to my seat, and Caleb Tate returned to the well of the courtroom. “Do you know the name of the man my wife had her affair with?”

  “No.”

  “And therefore you don’t know whether he was a recreational drug user or not.”

  “I’m a medical examiner, not a detective.”

  “That’s exactly my point,” Tate fired back. “You don’t know where my wife might have obtained these drugs.”

  “First of all, my understanding is that the affair occurred two years prior to her death. The fingernail tests only measure back just over a year. And second, I don’t know many recreational drug users who get high on liquid morphine.”

  “But isn’t it true that heroin metabolizes into certain compounds when it’s processed by your body and that one of those compounds is morphine?”

  “Yes, that’s true.”

  “So even if the fingernail testing was right and my wife had morphine in her body, that could have been caused by using heroin; isn’t that correct?”

  Dr. O’Leary made a face. “Not really.”

  The response was classic O’Leary. She threw it out there as a challenge. She was hoping Tate would be foolish enough to ask why. And she knew that even if he wasn’t, I would circle back around on redirect.

  But Tate was no rookie. He smiled and put his right hand in his pocket. “Okay, I’ll bite. Why did you say, ‘Not really’?”

  “Because when heroin metabolizes in your body, it produces not only morphine but also a substance called 6-acetylmorphine, which is found in the vitreous humor fluid. That’s the eye fluid of the victim. In Rikki’s case, we found no 6-acetylmorphine.”

  It was a “gotcha” moment for O’Leary, but Caleb Tate didn’t seem fazed by it. He walked slowly back to his counsel table and leafed through some papers until he found what he was looking for. He asked his next question while holding the document.

  “But 6-acetylmorphine has a relatively short half-life, doesn’t it? It breaks down over time until it processes itself out of the body.”

  “I see you’ve done your homework,” Dr. O’Leary said. “Of course it has a half-life, but I would still expect to see some amount of 6-acetylmorphine in Rikki’s eye fluid—depending on the exact date that she injected heroin.”

  “But the half-life for the 6-acetylmorphine is shorter than the half-life for morphine—isn’t that right?”

  “That’s correct.”

  “So it’s possible, if Rikki experimented with heroin with one of her lovers well before her death, that the heroin might have broken down into 6-acetylmorphine, which processed itself out of the body, and morphine, which was still found in Rikki’s fingernails.”

  “Mr. Tate, there are a lot of things that are possible. But I’m here to testify about the medical probabilities. And in my view, it is not probable that your wife just happened to experiment with heroin at the precise point in time that we would later find morphine in her system but not 6-acetylmorphine.”

  It was a good response, but Tate had also made his point. And he was smart enough to know when to quit. “That’s all I have for this witness,” he said.

  The rest of the day was much less eventful. I called the toxicologist who had generated the results for both the hair testing and the fingernail testing. I paraded five other witnesses to the stand to show the chain of custody for the tests. Through one of the officers involved in executing the search warrant, I introduced a numbe
r of exhibits found in Caleb Tate’s home. It wasn’t necessarily riveting testimony, but brick by brick, I was methodically laying the foundation for my case.

  That night I watched a little of the news coverage, which featured O’Leary’s testimony. In the eyes of the press, we had scored some major points on the first day of trial.

  But that was to be expected, and it gave me no solace. I knew the commentators would have a different perspective after Rafael Rivera took the stand on Friday. Besides, the commentators didn’t matter.

  And as for the twelve people who did, it had been impossible to read their expressions.

  75

  We spent Thursday trying to nail down the elusive issue of motive. A financial expert named Nathaniel Barnes took the stand and testified about the financial status of Caleb Tate’s law firm prior to his wife’s death. The firm had lost nearly four hundred thousand dollars and had laid off three young associates. Tate’s personal finances were in no better shape. He had borrowed heavily against his house and maxed out all of his credit cards. He’d sold two expensive automobiles. Rikki had a million-dollar life insurance policy payable to Caleb if she died. Caleb and Rikki had a prenuptial agreement, so he wasn’t worried about alimony. But Rikki didn’t work outside the home. To Caleb Tate, she was worth more dead than alive.

  Tate wasted no time debunking Barnes’s allegations. He established that the policy had been in place for two years and hadn’t been increased during the last six months of Rikki’s life. The life insurance company hadn’t paid out yet and never would if Caleb were convicted of murder.

  The cross-examination ended with an exchange that showed how quick Caleb Tate was on his feet.

  “Are you really suggesting that I would kill my wife and risk a murder conviction just to get out of a financial jam? Haven’t you ever heard of bankruptcy, Mr. Barnes?”

  “I doubt that you would ever seriously consider bankruptcy,” Barnes said. “It has a stigma.”

  “And murder doesn’t?” Tate asked.

  I objected, but the judge let him answer.

  “Yes, of course it does,” Barnes admitted.

  In my heart of hearts, I didn’t really believe that Caleb Tate had killed his wife for money. LA believed Tate was having a fling with his legal assistant, though we had never been able to develop the kind of proof needed for court. We hadn’t been able to drum up one incriminating text message or e-mail. We hadn’t found one eyewitness, just a lot of rumor and disgruntled former coworkers who said Caleb and his assistant “couldn’t keep their hands off each other.” According to the associates he had laid off, “everybody in the office knew they were having an affair.” But judges have a few choice words for that kind of testimony—hearsay, speculative, and inadmissible.

  I wasn’t so sure Tate was even having an affair. For me, it was more a question of the glamour wearing off. Rikki was no longer the ex-Vegas showgirl. She was a Christian. Someone not willing to be Tate’s suggestively dressed eye candy at the cocktail parties. Someone whom Tate could no longer control.

  Barnes was followed by the emergency responders who took the stand and explained what they had seen and heard on the night Rikki Tate died. Caleb Tate’s statements to police officers from that night were admitted into evidence. He’d told them that Rikki had been taking drugs for some time but that he didn’t know the specifics of where she got them or what she was taking. The police had found promethazine in the medicine cabinet and the half-empty bottles of OxyContin and codeine in Rikki Tate’s dresser drawer.

  I ended the day with the testimony of Elizabeth Franks, Rikki’s best friend from Alpharetta Community Church. Elizabeth had befriended Rikki and played a large role in Rikki’s conversion. For the year and a half prior to Rikki’s death, Elizabeth had attended a women’s Bible study with Rikki, and the two became soul mates over coffee. She testified about Rikki’s determination to get her embarrassing pictures removed from the Internet and Caleb Tate’s lack of support. She testified about the problems Rikki had experienced in her marriage and how she had requested prayer for Caleb. But most importantly, Elizabeth testified about how Rikki had changed with her new faith and how much she was enjoying life. She loved the women at the church and had found something worth living for. Nobody could listen to Elizabeth’s testimony and think Rikki was suicidal.

  Caleb Tate came out swinging. Did you know that your good friend Rikki Tate was ingesting large amounts of oxycodone and codeine even after her conversion? No, Elizabeth didn’t know that. Wouldn’t that be something you would expect such a good friend to share? Yes. Did you notice any signs that she was addicted? No. She didn’t act funny or lethargic or out of it? No, not really.

  The subtlety of what Caleb Tate was doing might have been lost on Elizabeth Franks, but it wasn’t lost on me. Addicts can tolerate higher and higher levels of the same drug without it having much effect. He was painting the picture of Rikki as a functioning addict, taking more and more of the narcotics until one night she just accidentally overdid it. I knew we would hear about this testimony again during Tate’s closing.

  “You read about my wife’s lawsuits trying to get her topless pictures removed from various websites?”

  “She told me about them.”

  “But you also saw reports about those lawsuits on TV, right?”

  “Yes.”

  “What do you think that did to the traffic on those websites?”

  Elizabeth hesitated before answering, but there was no way out. “It probably increased it.”

  “Would it surprise you to know that it increased the traffic by 9,000 percent?”

  “I don’t know. Not really.”

  “Did it ever dawn on you and the other women praying for my lost soul that maybe I was just trying to protect my wife by keeping her from filing those lawsuits? That maybe I didn’t want to see her become a sex object for millions of perverts all over this country?”

  Elizabeth appeared surprised by the assertion. “I guess I never looked at it that way.”

  Caleb Tate walked back to his counsel table, but I knew he wasn’t done. I had seen him do this to several witnesses during Antoine Marshall’s trial. It was like the Columbo routine—turning around as if he had just remembered one last question.

  “Oh, one more thing. . . . You testified that I seemed controlling; do you remember that?”

  “Yes.”

  “That Rikki would have to call me to get authorization even to use the credit card for a fifty-dollar purchase?”

  “Yes. I saw that happen several times.”

  “Have you ever lived with a drug addict before, Ms. Franks?”

  “No, sir. I haven’t.”

  “Then you probably didn’t realize that one of the things you do is try to cut off the source of the drugs. And this means controlling that person’s spending very tightly. Did you realize that?”

  Elizabeth shook her head. “No, sir, I didn’t.”

  “I didn’t think so,” Caleb said. “Thank you for your honesty.”

  I had wanted to end the day on a high note, but Caleb Tate was no slouch. It seemed that for every witness I put on the stand he was able to raise enough questions to muddy the waters. And so far, I had only been questioning my best witnesses. This part of the case should have been my high-water mark. Instead, I felt like Tate was landing one body blow after another.

  And I knew he would go for the knockout punch tomorrow.

  76

  On Thursday afternoon, Mace James sat face to face with Rashad Reed, inmate number 34721 in the Milton County Correctional Facility. Like most inmates, Rashad and two others shared a jail cell that was designed for two men, not three. The overcrowded conditions had spawned a rash of federal lawsuits. Rashad was sure he would be a rich man before he left jail. If he left jail.

  Rashad was thin with a goatee and close-cropped hair and tattoos everywhere. He had a gold tooth and a left eye that didn’t seem to open all the way. He reminded Mace of the little brother wh
o constantly tried to hang with the big kids and would get beat up occasionally and sent home but would always come back. Rashad had a kind of nervous energy going, his eyes darting back and forth, leg constantly bouncing.

  He’d been charged with multiple counts of carjacking, and he was looking at a sentence of up to eighty years behind bars if convicted. He had paid a big retainer to Caleb Tate nearly nine months ago, and his trial date was fast approaching. Like certain other Tate clients who had paid big retainers, Rashad had passed a polygraph test.

  Mace had now spent nearly an hour with Rashad, urging him to fire Tate and hire him. He told Rashad the plain, hard truth—that a lie detector wouldn’t be admissible in court. But if Rashad agreed to take this new brain-scan test and the results turned out the way Mace expected, Mace thought he could work Rashad a sweet deal. He might have to serve eighteen months or two years, but he could do it in solitary confinement in a different prison.

  Rashad shook his head. “No way, man. I seen what they did to those other dudes. Man, they’ll find me and slice out my tongue or something. Nobody in here deals anymore.”

  Mace could see the fear in the inmate’s eyes, and it was hard to blame him. In the last few months, cutting a deal had been like signing a death warrant for yourself or your family. But eighty years in jail was a long time.

  “What if I could get you into the witness protection program?” Mace asked. “The Feds never lose anybody. They’d move you to the other side of the country, give you a new ID, a new start on life.” Mace didn’t know if he could really make it happen, but right now, he would promise anything.

  Rashad’s leg bounced faster. He blinked a few times, and Mace could tell the man was interested.

  “You’re looking at eighty years, and you’ll have to serve at least twenty,” Mace reminded him. “You’ll never get a chance like this again.”