without admitting her own troubles.
"But I believe that when she explains to you why she initially withheld
some information from police, you will understand. You will also
understand, and you'll determine from the rest of the evidence and from
your own common sense, that Kendra Martin did not deserve what Frank
Derringer did to her. She never consented to be tortured and left to
die near Multnomah Falls.
"You will hear evidence that Frank Derringer plotted this crime in
advance and then took extraordinary steps to avoid detection." I gave
them a detailed preview of the evidence that Derringer had shaved his
pubic hair during the days before the attack and then painted his car
and replaced its interior the next day.
"You'll also hear from Detective Mike Calabrese. He'll tell you that
he found Kendra Martin's purse in a trash can about a mile away from
where the defendant and his accomplice dumped Kendra to die. An expert
in fingerprint technology with years of training in this type of
evidence will testify that a fingerprint left on the strap of the purse
belongs to Frank Derringer."
I paused and looked across at the face of each juror to make sure that
the jury realized the impact of the fingerprint evidence.
"After you've heard from all these witnesses and experts, I'll have a
chance to talk to you once again. At that time, I think you'll find
that the State's evidence is going to measure up to the strong case
I've outlined for you here. And based on that evidence, I'm going to
ask you to return verdicts of guilty on all counts. I'm confident that
once you hear the horrendous facts of this case, and the overwhelming
evidence establishing Frank Derringer's culpability, returning that
verdict will be the easiest part of this entire trial for you."
Legal strategists say that jurors make up their minds about a case by
the end of opening statements. At the end of mine, I felt like I had
them. I took my seat at the state's counsel table, closest to the jury
box.
When Lesh nodded to Lopez to indicate she should proceed, she rose from
her chair, put her hands on Derringer's shoulders, and said, "Members
of the jury, Frank Derringer would like nothing more than for you to
hear the truth about what happened in this case right now, because he
is an innocent man who wants to go home. But, your honor, as his
attorney, I have decided to withhold my opening statement until the
State has put on its case."
Lisa apparently had even less confidence in her case than I thought. I
wondered if she had reserved opening to delay locking in her defense
until she knew for certain what we had.
But Lisa had gone a little further than that, insisting that Derringer
was innocent. Most attorneys go out of their way not to use that word;
all they really want to hear is "not guilty," and in a courtroom "not
guilty" is a far cry from innocence. If I wanted to be a stickler, I
could argue that she made an opening statement by referring to the
merits of the case. But what did I care? Better for me to put on a
one sided show.
I'd be putting on my witnesses earlier than I thought. So far, so
good.
My first witnesses were Brittany Holmes and Parker Gibson, the high
school students who found Kendra in the park and called the paramedics.
With their preppy good looks, they could have been a couple of
teenagers you see sailing and splashing water on each other wearing
hundred-dollar khakis in those mail-order catalogs. But they were
polite and articulate, so they were good witnesses.
The kids described their terror when they realized that they had
tripped not over a log but over the bloodied and unconscious body of a
young girl. What came across unmistakably was that when they saw
Kendra, they saw a girl just like one of their friends or little
sisters. They showed no judgment.
The EMT's testimony went just as well. Whether it was seen from the
fresh outlook of a shocked teenager or through the lens of a skilled
professional experienced in dealing with violence, this crime was a
serious one. The people who were there to witness her condition
firsthand all agreed that Kendra had been treated horrifically.
Mike Calabrese was up next, to explain how he and Chuck supervised the
crime scene. He summarized the basic mechanics: marking off a
perimeter, keeping a log of everyone who entered and exited, collecting
and maintaining anything that looked like it might be physical
evidence. That kind of stuff impresses juries.
Around the time they finished processing the crime scene, they got word
from the hospital that the suspects had sodomized Kendra with some type
of stick. "We didn't find anything in the immediate crime scene that
could've been the weapon, and we couldn't search the entire park for a
stick. But my partner, Chuck Forbes, noticed that the park put garbage
cans along the side of the road. We decided to look in the cans along
the road on the way out of the park on the long shot that the suspects
threw the weapon in one of them."
"Did you locate anything in any of the garbage cans that might have
been used to sodomize Kendra Martin?"
"No, ma'am, we did not." Mike's rough edges were barely detectable
when he testified, I noticed.
"Did you find anything that you deemed to be relevant to your
investigation?" I asked.
"We did," he answered.
"And what was that?"
Calabrese turned his head toward the jury box and answered.
"Approximately a mile from the crime scene, I found a black leather
purse on top of the garbage in one of the containers."
I cut in. "At this point in your investigation, Detective, were you
aware that the suspects had taken Kendra Martin's purse from her?"
"No, ma'am, I was not."
"OK. So what did you do when you found the purse?" I asked.
"I wasn't sure whether it was related to our case or not, but it was
suspicious in any event. I've been trained that discarded property is
considered abandoned under the Constitution, so I'm permitted to search
it without a warrant. I removed the purse from the garbage and opened
it."
As long as he actually gets it right, I like it when an officer tells
the jury the basis for conducting a search. It's not actually the
jury's job to decide whether evidence was obtained lawfully. That's
for the judge to determine. But you never know when you're going to
get some wise-ass wanna-be ACLU'er on the jury who decides to convince
the rest of them that some constitutional violation has occurred. "OK.
And did you use your bare hands to remove the purse from the garbage
and open it?"
"No, ma'am. I was wearing police-issue latex gloves during my search."
He looked at the jury. "It wasn't much fun poring through that stuff
even with the gloves." Some of the jurors laughed quietly, and he
continued speaking to me. "Once I saw the purse, I removed the gloves
I had been wearing and replaced them with a new pair. I was wearing
>
those when I picked up the purse and opened it."
"And what did you find in the purse when you opened it?"
"Things that looked to me just on first appearance like they might
belong to the victim, given her age. She had some gum in there, a tube
of lip gloss, a change purse with a Hello Kitty sticker on it. Turned
out to be empty. There was no official identification in the purse.
The victim's just a kid, so there wasn't going to be a driver's license
or the standard type of ID. I did find one of those wallet inserts
that have the see-through plastic pockets to put pictures and credit
cards in. It had a few pictures in there that looked like school
photographs of some little kids. Some of the kids had written messages
on the back of their pictures. They were addressed to
Kendra. I figured at the time that must've been the victim's name, but
I subsequently confirmed that information with other detectives."
"Once you determined that the purse belonged to Kendra Martin and was
involved in your investigation, what did you do?"
"My intention was to preserve the purse as I found it, so a crime
technician could process it for fingerprints or anything else of
evidentiary value. I took a plastic evidence bag from my car and,
still wearing my gloves, I placed the purse in the bag, sealed it, and
marked it with the date and my initials."
"And, detective, why did you mark the bag like that?"
"Whenever we seize physical evidence, we seal it in an evidence bag to
protect it from tampering, then mark the bag with our initials and the
date and time. The bag isn't opened until it gets to the crime lab.
It's a way for us to make sure that what the crime lab gets is what we
actually seized in the field."
In the same tedious question-and-answer format, we made our way through
Mike's link in the chain of custody. He brought the bag with the purse
inside of it back to the precinct and put it in the evidence locker.
Luckily, he was the person who had "lab run" duty the next day, so I
didn't have to bring in an extra witness to vouch for the walk from the
Justice Center to the crime lab. Mike delivered it to Heidi Chung
personally.
I spent the rest of the morning continuing to work step by mechanical
step through my trial outline. I was running the show in the
courtroom, since Lisa appeared to be doing little in the way of
cross-examination. Of Brittany Holmes, Parker
Gibson, and the EMTs, she asked one question: "Do you have any personal
knowledge to suggest that my client was one of the people who assaulted
Kendra Martin?" Of course, they all said no. She didn't ask Calabrese
a single question.
My guess was that she was saving the heavy stuff for Kendra.
Eight.
Ray Johnson and Jack Walker were waiting on a bench outside of Lesh's
courtroom when I got down to the fifth floor after the lunch break. I
started having my witnesses meet me outside the courtroom soon after I
became a DDA. That way, when the judges invariably start late, I can
make use of the time by preparing my witnesses in the hallway. An
added bonus of the practice is that it keeps the dirtbag informants in
my drug cases out of my office and away from my stuff.
I assumed that the man sitting alone on a separate bench farther down
the hall was Dr. Preston Malone, the emergency room resident who
treated Kendra at the hospital. Anyone who's had a shower and hasn't
ingested illegal narcotics within a couple of days stands out on a
bench in the courthouse. Unless, of course, you can tell the guy's a
cop, either from the uniform or the other sure signs beer gut, bad
tie,
big gun, those kinds of things. In Preston Malone's case, the medical
journal he was reading gave him away.
When Ray and Jack spotted me, they both opened their mouths to speak,
but I rushed past them with one finger up to let them know I'd be right
back. I wanted to touch base with Dr. Malone first. Typical of most
physicians, he hadn't found time in his schedule to prepare his
testimony with me. And, although I had Kendra's medical records for
the grand jury, Dr. Malone hadn't appeared personally to testify. In
other words, I had no idea what I was getting.
When he realized I was approaching him, he stood and offered his hand.
From a distance, the guy looked really good. But standing close to him
now, I could see that his profession was taking its toll. He hadn't
shaved, his eyes were bloodshot, and his hair was a mess. Tell you the
truth, I'm not sure that his eyes were completely focused. Coming out
of ER like that? Scary.
He apologized for not being able to meet with me before trial.
"With the schedules we get at the hospital, it's pretty much impossible
to keep an outside appointment. I have to admit, I was happy to get a
subpoena. Thought maybe I could catch a nap while I was waiting. But
when I was walking out, the attending physician gave me this medical
journal and asked me to summarize the articles for him when I got
back."
"You have to go back when you're done here? You'll probably be here
until the end of the day."
He smiled. "Not the way a hospital defines the end of a day. I went
in yesterday at six in the morning. I'll get home around ten
tonight."
I vowed inwardly never to complain again about my workload.
I ran through the trial outline in my head. "Actually, I could put you
on first so you don't have to wait around here."
"Um, thanks, but if it's the same to you, I'll wait as long as
possible. I'm almost done with this journal, then I'm gonna crash
right here on this luxurious wooden bench."
"I guess with your residency, you don't really need a suite at the Four
Seasons to sleep," I said.
"No, but the thought is pure ecstasy."
I could tell he was about to nod off at the idea, so I got my trial
prep in quickly. Malone's job would be to describe Kendra's demeanor
and injuries. I hoped the nap would refresh him before his
testimony.
I left him there, lying on the wood bench, and walked back to where
Walker and Johnson waited.
"Pretty good kid, isn't he?" Walker said, nodding his head toward
Preston Malone.
"Seems like a hard worker. You guys ready?"
"Let's roll, girl." I could tell Johnson was getting into witness
mode.
After Lesh took the bench and brought the jurors back in, I rose and
said, "The State calls Detective Raymond Johnson."
When he stood to walk to the witness seat, I noticed Claudia Gates, the
heavyset middle-aged black woman on the jury, sit a little straighter
in her chair and let her eyes follow Ray to the front of the
courtroom.
For her sake, after I asked Ray to state his name, age, profession, and
some other general background information, I added, "Are you married,
Detective Johnson?" I'm not above playing to a juror's weaknesses.
Whether he knew why I was asking or whether he just has a natural
charm, Ray Johnson gave the perfect ans
wer: "Not yet, Ms. Kincaid. So
far, the only woman in my life's my momma, but I'm still trying."
I thought I actually heard Claudia Gates's blood rush, but it was more
likely the courtroom's crappy radiator.
I know. I'm a hypocrite. As much as I hate it that a good portion of
my half of the species loses all rational thought when a good-looking
man's in the room, I happily accept these boy-crazed women as jurors
when my cops are hot.
Ray covered some of the same ground as the initial witnesses,
describing the mood of the crime scene and Ken-dra's appearance when
MCT first arrived. Then we talked about what happened after he and
Jack separated from Chuck and Mike.
"When you saw Kendra Martin at the hospital, did you reevaluate your
assessment of her injuries?"
"In some respects." He explained that Kendra's appearance
substantially improved once the hospital staff cleaned the blood from
her, but she was still in obvious pain, evidenced by severe bruising on
her face and body, a large laceration across her nose and left cheek,
and noticeable discoloration around her neck.
"After you initially spoke with Kendra Martin, did you have an idea in
your mind about what had happened to her that night?"
"Yes, based on what she told me and my partner, Jack Walker."
"After the initial interview, did you speak to Kendra again about what
happened to her that night?" I asked.
"Yes. After some additional investigation, Detective Walker and I
Judgement Calls Page 17
