Judgement Calls
Page 18
spoke to the victim again when she was still in the hospital."
"Were her statements consistent with respect to certain sexual acts
committed against her that night?"
"Yes."
"Was she consistent in describing the physical abuse that occurred that
night?"
"Yes."
I could sense Lisa contemplating whether to object. Ray's answers were
technically hearsay, even though they didn't reveal what it was that
Kendra actually said to him. The answers were enough to reveal that
Kendra had been sexually and physically assaulted. But Lisa stayed in
her seat, and she was right to. If she objected in front of the jury,
they might think she was trying to keep information away from them, and
it was information they were going to hear anyway once Kendra
testified.
I continued the pattern of questioning, establishing that Kendra's
statements were consistent with respect to the most material facts.
"Were there some inconsistencies between the two statements?" Yes.
"Did Kendra have an explanation for these inconsistencies?"
"Yes. She admitted that she had omitted certain truthful information
and had included some untruthful information in her initial statement
to us."
Now, that one was definitely hearsay, since he was repeating something
Kendra had said outside the courtroom and asserting it as truth. But
the information helped the defense, so Lisa wasn't about to object.
Ray then walked through the portions of Kendra's initial statement that
were not true, being careful as we had discussed never to call them
lies. He explained that Kendra initially said she was in Old Town to
go to Powell's Books and did not know how heroin ended up in her
system.
"And Kendra admitted later that those statements were not true?"
"That's correct."
"Now, Detective, do you know what the defendant has been charged
with?"
"Yes, I do. Attempted Aggravated Murder, Kidnapping in the First
Degree, Unlawful Sexual Penetration in the First Degree, Rape in the
First Degree, Sodomy in the First Degree, and Assault in the Third
Degree."
"From an investigative standpoint, did the facts as Kendra Martin
stated them in her initial interview indicate that those charges would
apply in this case?"
"Yes."
"So, in other words, if someone had asked you right after you initially
interviewed Kendra Martin what the suspect might be charged with, those
are the charges you would have anticipated?"
"That's right."
"Would your answer to that question have changed after you learned
Kendra Martin's actual reasons for being in Old Town and how the heroin
ended up in her system?" No.
"Why is that?" I asked. "After all, the victim in the case changed
her statement."
"She did change some details in her statement, but her statements with
respect to what the suspects actually did to her did not change. The
charges would still be the same."
Ray wrapped up his testimony by describing the change in Kendra's
demeanor from the first interview to the second. He was well-suited
for this role. He actually managed to make Kendra's mood swings weigh
in her credibility's favor. As he explained it, Kendra was initially
very agitated. But once they made it clear that they were there to
find out what happened to her and who did it, she was cooperative and
focused. When they interviewed her again and indicated their concerns
about her initial statement, she seemed embarrassed and worried that
her honesty would hurt the case. Once she amended her statement, she
seemed relieved.
After Ray was excused, I called Dr. Malone to the stand. I was
worried that the bailiff might actually have to wake the poor guy up in
the hallway, but apparently not. Moments later, Preston Malone strode
confidently to the witness stand. I guess it's true that residency
trains doctors to perform well regardless of the sleep deprivation.
Dr. Malone took the oath and explained his credentials to the jury.
Pretty impressive. Undergraduate degree in biochemistry from Pomona,
MD from Johns Hopkins. Played the viola in the Portland symphony in
what he generously termed his "spare time." Damn. If I thought he had
room in his schedule, I might've called him for a date.
We walked through Kendra's medical records together, with Dr. Malone
explaining the cryptic notes that detailed the physical trauma that
Kendra experienced. Knowing Kendra like I did, it was hard to listen
to. But it was critical that the jury hear it.
"Dr. Malone, you have described what you have called tears to the wall
of Kendra Martin's anus. After your physical examination of Kendra
Martin, did you form an opinion as to what caused those tears?"
"Yes, I did."
"And what is your opinion?"
"You must understand that the anal wall is extremely sensitive to
pressure. Most people experience detectable trauma simply from a
standard bowel movement, so it's not unusual to detect some
irregularity in what we call the 'anal wink." In fact, I have seen
patients report to the emergency room with voluntarily inflicted
injuries in that particular area that are, as you might imagine,
extremely abnormal."
A couple of the jurors shifted uncomfortably in their seats.
"And how would you describe Kendra Martin's injuries?"
"Severe. Even compared to very young sexual abuse victims, the trauma
was incredible. There were no signs of lubrication, either chemical or
natural. The only thing I can compare it to is an episiotomy, in which
we enlarge the vaginal opening for childbirth. Of course, the patient
is anesthetized for that procedure. Given the degree of injury this
patient sustained, I would have expected her to need at least two
weeks' healing time. It was only because of this particular patient's
emotional resiliency that she was able to go home the following day."
"And were you able to form an opinion about what type of object created
Kendra Marin's internal injuries?"
"Yes. With voluntary pressure, for comparison, it's not unusual to see
perforations in the anal wall, but they tend to be superficial, and the
use of lubrication minimizes the damage. In Kendra's case, the
injuries were abrupt. Someone had subjected her to quick and intense
pressure in specific areas. Moreover, I found several wooden splinters
in her skin. This,
as well as the degree of tearing, led me to conclude that she was
penetrated abruptly and repeatedly with an unfinished wooden stick at
least an inch and a half wide and seven inches long."
I pushed my hair behind my right ear as I looked down at my notes for a
reminder of where I was and what I was trying to get out of this
witness's testimony.
I hadn't discussed these questions with Dr. Malone, but I sensed that
he had a nonobjective investment in the case. I chose my words
cautiously to get the answer I wanted.
"During your medical residency, have you ever seen a patient as
seriously injured as Kendra Martin was from the hands of another
person?"
"No, I have not. Of course, I've had patients die, but it's always
been from either natural causes or from some sort of weapon." Then he
looked at the jury as if he'd been trained to do this. "But, as little
sleep as I sometimes catch during my work in the ER, I had trouble
sleeping after I treated Kendra Martin. Without a gun, without a
knife, someone had physically ruined this child with his bare hands."
Several years from now, after tending to and losing scores of other
patients to the hands of sadists, Dr. Malone might be able to offer
unbiased, affect less testimony in a case like this. But, for now, he
had crossed over from a detached observer into our side of things, and
he wanted Frank Derringer to go away. I felt confident enough to
wander into un ventured territory with him as my witness.
"In your experience as an ER physician, do you develop a sense of a
patient's chances for survival when they come to you for treatment?"
"Sure. The hardest part of being a doctor in the emergency room is
that we often get patients for whom it's too late to do anything. We
lose a lot of people whose chances have passed before they even come to
us."
"And, in your opinion, in light of your review of Kendra Martin's
condition when she arrived for treatment, what would have happened to
her if she had not been found in the Gorge and brought to you at
Emanuel?"
He paused before responding. "I remind myself daily that I'm not God,
that I don't know this world's truths any more than anyone else. But
in my medical opinion, Kendra Martin's lucky those kids happened across
her. Another couple of hours out there would have killed her. She was
crazy high on heroin, but that, in and of itself, would not have killed
her. It did, however, decrease her chances of surviving. She was
losing a lot of blood from her anal injuries. Her blood pressure and
pulse were low, which further reduced the rate of oxygen distribution
through her body. And it was cold outside. I'm confident that if she
were left overnight, she would have died."
I needed to write myself a reminder to keep this guy's name and number
for future testimony.
When we were done talking about Kendra's physical injuries, I directed
his attention to the effects of drug use. He started out by explaining
that, although Kendra may have used heroin frequently enough to develop
a physical addiction, she did not have the track marks that give away
any hard-core addict.
"We've heard testimony earlier, Doctor, that Kendra Martin was
'popping' heroin when she used it voluntarily. Are you familiar with
that term?"
He indicated that he was and explained that popping was the street name
for shooting up with a subcutaneous injection. Relative newcomers to
heroin could inject the dope just beneath the skin and still get a good
high from it. Once they were hooked and needed a bigger high, they'd
need to inject straight into a vein.
He explained that, on the night she was attacked, Kendra was under the
influence of heroin that had been injected directly into a vein. To
prevent her from overdosing, he had injected her with Narcan, a
narcotic antagonist. Within a few minutes of injection, Narcan
completely reversed the narcotic effects of heroin. Used on someone
dependent on the narcotic, an antagonist could trigger extreme symptoms
similar to withdrawal. It helped explain the severe mood swings and
general nastiness that Kendra displayed toward the police that night.
Finally, Lisa had a cross-examination ready. It wasn't unexpected.
Malone had to concede that heroin had adverse effects upon a user's
memory. It was an obvious point, but jurors always listened more
carefully when it came from a doctor. Fortunately, I had plenty of
evidence to back up Ken-dra's ID, so I wrote the day off as a win for
our team.
To reward myself for my great day in trial, I picked up some Pad Thai
at Orchid Garden on my way home. Two hours later, I was lacing up my
New Balances. The peanuts weighed me down for the first mile or so,
but after ten minutes I started to work out my stride and could feel
the endorphins kicking in. Seventeen minutes after I started, I
finally reached my two-mile turnaround point at the Rose Quarter, home
of the Trailblazers. I know a lot of runners who claim to reach a
meditative state when they run. I'm not one of them. I get bored, and
my mind wanders. As I finished my lap around the stadium and began
heading back up Broadway toward my neighborhood, I was laughing to
myself about the joke at work that the DA's office needed a separate
sports celebrity unit. A better name for Portland's NBA team would be
the Jail Blazers.
And it wasn't just the basketball team. After the local ice skating
princess gained infamy for having had her rival slugged in the thigh
with a stick by a very fat bodyguard, she supposedly settled back into
her hometown for a quiet and humble retirement, disturbed only by the
occasional bout of celebrity boxing. The reality is that she partied
like hell and had restraining orders against her ex-husband and the
four ex-boyfriends she'd gone through since him. Apparently all these
people hung out at the same handful of cowboy clubs and trailer-park
bars, and the princess called the police to enforce the restraining
orders every time she happened to run into one of her exes. Throw in
the state's mandatory arrest law for restraining-order violations, and
you've pretty much got yourself a case to be reviewed every Monday
morning, all involving a woman whose name always invites some kind of
media attention.
This line of thought got me through another half a mile or so. I was
passing the Fred Meyer parking lot, about a mile from my house, when I
noticed the car: a brown Toyota Tercel at the back of the lot, close to
Broadway, far beyond where a shopper needed to park at this time of
night. It was too dark to make out the face of the person inside, but
I could see the ember of a cigarette burning near the steering wheel.
It could be anyone. Maybe Fred Meyer made employees park at the back
of the lot. Or maybe the guy was waiting for his wife to get off work.
Or he could be sneaking out of the house to get a few drags of nicotine
in his car. Then there was the possibility that the guy I saw at the
zoo was out to finish me off, having already trashed my house, kicked
my dog, and knocked me out.
I couldn't make out the license plate. I thought about running through
the lot to get a closer look, but I couldn't think of any way for just
my eyes to cross the street while my body stayed a safe distance
away.
So I kept running and tried not to be obvious as I looked up and down
Broadway to make sure I wasn't being followed. When I was a couple
hundred yards past the lot, I saw the car pull out onto Broadway in my
direction. When it stopped for a red light, I ducked into a
&n
bsp; convenience store on the corner and pretended to peruse the tabloid
headlines until I saw the car go through the green light and disappear
into the other traffic down Broadway.
I eventually got up the nerve to run home. Well, not that much nerve.
I took a route that involved running an extra couple of miles and
jumping over my back fence.
After locking myself inside my house and setting the alarm, I went
straight to my handbag to find the license plate number I'd scribbled
down at the zoo. I looked on both sides of all the bills, but I
couldn't find it. I must have spent it.
Given the turnaround of cash in a register, the likelihood of it still
being wherever I'd spent it was next to nil. Orchid Garden was most
recent, so I gave it a try.
The employees were closing the place down for the night. They looked
alarmed when I started banging on the door to get their attention, but
after I flashed my DA badge, a pimply bespectacled girl let me in. I
pled my case to an eighteen-year-old kid who wore a tie with his
striped shirt to denote his authority as the night-shift manager, and
he finally let me fish through their singles.
After all that work it wasn't there.
"I told you so," the tie guy reminded me. "I told you, when we take
your money, it goes in the top of the drawer, so it's the first one
paid out."
Like I needed him to explain that to me. I thanked him anyway and went
home angry at myself. Now I had no idea if the brown Tercel had