Murder One

by Robert Dugoni

  Cerrabone looked to his notes, another calculated moment to let the jurors ruminate on Barclay’s words.

  “Witnesses will testify that Ms. Reid was upset at the outcome, and one of those witnesses, Dr. Felix Oberman, Ms. Reid’s former husband, will testify that she expressed frustration with the federal case and specifically told him, ‘If I had known it was going to be this much trouble, I would have put a bullet in the back of his head and been done with him.’”

  Two of the female jurors sitting in the front row and a male juror in the back row glanced at Reid.

  Cerrabone continued, systematically laying out the evidence he would introduce to prove Barclay’s guilt. Sloane took notes, but only a few; he’d tasked Pendergrass with that responsibility, and the young lawyer scribbled furiously as Cerrabone continued for another twenty minutes.

  Using aerial blowups showing the location of Vasiliev’s home on the easel, Cerrabone re-created the crime scene as Rowe encountered it. He advised that the evidence would show that Reid owned a .38-caliber Smith & Wesson handgun but could not account for the whereabouts of that gun; a ballistics expert would testify that based upon the trajectory of the bullet, it was fired by a person of a certain height range into which Barclay fell. He discussed that Reid was a triathlete and what that meant, and how it fit with the state’s theory of how the crime was committed. He discussed the size-seven shoe prints and what the tracker, Kaylee Wright, would say they revealed. He left the most damaging evidence for last, advising the jury that Barclay had no alibi for the morning of the shooting, that she had told Detective Rowe she was home in bed, asleep.

  Cerrabone changed the blowup on the easel. “In fact, a witness, a young man coming home after a late night with friends who lived in this house, half a mile down the street, will testify to the contrary.” Cerrabone used the aerial photograph to orient the jury to the location of Vasiliev’s home, the public easement, and where Joshua Blume claimed to have seen Barclay. “And what this young man will testify is that he saw the defendant, Barclay Reid, jog up this path in a dark Lycra suit and pull a bike from the bushes. Mr. Blume will testify that although it was dark, there is a nearby street lamp.” Cerrabone identified it on the photograph. “And that he had enough light to identify Ms. Reid beyond any doubt.”

  With that pronouncement, Sloane noticed several other jurors turn their heads and glance at Barclay.

  Cerrabone was as billed—workmanlike. His opening took just over forty-five minutes: efficient, with enough detail to arouse the jurors’ curiosity and suspicions without boring them. He had laid out a highly plausible scenario that included a motive, a weapon, opportunity, and perhaps most important, a seemingly false alibi that would cause the jurors to immediately question what Sloane was about to stand and tell them.

  As defense counsel, Sloane had the choice of making an opening statement immediately following Cerrabone’s or waiting until the state had presented all of its witnesses and rested its case. Sloane didn’t think that was much of a choice. He wasn’t about to let the jurors sit for days and nights considering Cerrabone’s words without giving them something to consider in rebuttal. Cerrabone had called Barclay a crusader, but he had implied she was actually a vigilante, an argument he would surely make in his closing argument—that citizens cannot take the law into their own hands. He would argue that the rule of law did not change simply because Filyp Vasiliev was a drug dealer; that a judicial system for the people, by the people, and of the people meant all the people, including low-life scumbags like Vasiliev.

  Sloane approached the jurors without notes and, like Cerrabone, addressed the court and his opposing counsel. About to begin, his eyes swept across the jurors, but unlike his other trials, he could not feel them, could not assess their thoughts and predilections. They sat alert and attentive, but it felt as if an invisible pane of glass had been erected in front of them. He could see through it, but his words would not penetrate.

  “This is a tragedy,” he started. It was not how he had intended to begin, but those words came to him. “The tragedy is that a mother who has lost her only child to drugs, and who Mr. Cerrabone told you has since devoted her life to not only bringing that drug dealer to justice but to empower every citizen to bring drug dealers to justice, now sits before you accused of murder.”

  Cerrabone could have objected, since the statement was argument, but Sloane had used the prosecutor’s words, and Cerrabone could not be heard to object without losing some credibility with the jurors.

  “The evidence will prove that Filyp Vasiliev was a drug dealer. The investigation to which Mr. Cerrabone made mention resulted in the confiscation of ten kilos of heroin, which the DEA estimated to have a street value of between one and a half and two million dollars, drugs smuggled into this country in the tires of cars Vasiliev sold at his car dealership in Renton.” Sloane paced but did not wander. “Federal agents involved in that investigation will testify that Vasiliev used couriers through a sophisticated and complicated network of employees to dispense these drugs onto the streets, then used his car businesses to launder the proceeds of the sale of those drugs. On this there should also be no dispute.”

  He waited as if to give Cerrabone every opportunity to challenge him, hoping the jurors would take the silence as a tacit admission.

  “Those agents will explain to you, ladies and gentlemen, that the drug business is not unlike the purchase and sale of other commodities—like used cars, for instance. The buyer often purchases the drugs on credit at a wholesale price, sells them at a retail price on the street, pays his supplier, and uses the profit to reinvest in more drugs. They will tell you that when the drugs are confiscated, the seller has a problem. He has no product to sell on the street, no income, and thus no ability to pay the supplier.

  “Yes, Mr. Vasiliev walked out of a federal courtroom, but those federal agents involved in the investigation will tell you Vasiliev was far from out of the woods with the people who supplied him the drugs.”

  At this Cerrabone stood, and rightly so. “Objection, Your Honor. Counsel is getting more into speculation and argument than fact.”

  Underwood, who had sat listening with his hand at his mouth, one finger pointed toward his temple, agreed. “Sustained. I will remind the jury that opening statements, any statements by the attorneys, are not evidence. They are statements of what counsel believes the evidence will show. Mr. Sloane, stick to what the evidence will show, without speculation.”

  Sloane simply nodded. He had crossed the line, but he had done so on purpose. He had goaded Cerrabone to object in order to make his next point, and the judge, in dressing him down, had actually aided his cause.

  “Now, the prosecutor has told you his version of what he believes the facts will prove transpired. He has offered the circumstantial evidence he believes is sufficient beyond a reasonable doubt to convict Barclay Reid. Circumstantial evidence, ladies and gentlemen, is a bit like speculation—it requires you to make a deduction, to conclude from one piece of evidence that something else must have occurred. Circumstantial evidence is not direct evidence. Let me explain the difference. Direct evidence would be a witness who sits in that chair telling you, ‘I saw Barclay Reid shoot Filyp Vasiliev.’ There will be no such witness. The prosecution also will not produce a gun with Barclay Reid’s fingerprints on it. The prosecution wants you to deduce from the circumstantial evidence that Barclay’s gun is missing, that she must have used it to kill Mr. Vasiliev, then thrown it away. But there will be no direct evidence that she did this.

  “Yes, the prosecution has evidence of shoe prints in Mr. Vasiliev’s backyard, a size-seven women’s running shoe. And from this they will ask you to deduce that, because Barclay wears the same size shoe, she must have made the shoe prints. But the prosecution will produce no witness who saw Barclay’s feet in those shoes, let alone in Mr. Vasiliev’s backyard.” This brought a few poorly concealed smiles.

  Sloane shrugged. “The best direct evidence the prosecution has
to offer, ladies and gentlemen, is the testimony of a young man sneaking home at three-thirty in the morning, after a night partying at an underground club, who claims that on a dark and stormy night, as he hid in some bushes, he could make out the face of a person twenty-six and a half feet away.” He shook his head in doubt.

  “The prosecutor called Barclay a ‘crusader.’ That was a term used to describe her efforts to rid the streets of Seattle of drugs. She is a crusader.” He let that statement hang, knowing again that Cerrabone would be hard-pressed to object. “She is not a vigilante. The evidence will not prove that she killed Filyp Vasiliev. What the evidence will reveal is that because of her efforts, Barclay received threats—threats that she reported to the police. The evidence will reveal that she was followed, which she also reported to the police.

  “So, who did kill Mr. Vasiliev?”

  Sloane had heard other attorneys in civil cases argue that the opposing side had the burden of proof and had failed to meet that burden. He had always thought that argument to be a cop out, tantamount to a kid in a playground accused of doing something wrong responding, “Prove it.”

  Instead, he looked at each of the jurors, gave a simple shrug, and said, “But I am confident, after you hear all of the evidence, that you will conclude it was not Barclay Reid.”

  They were under way.

  Underwood instructed Cerrabone to call his first witness, and the prosecutor obliged, calling the county medical examiner Stuart Funk. He retrieved Funk from the hall outside the courtroom. Witnesses could not sit in the proceedings until after testifying.

  Funk entered looking like a slightly off high school science professor in a brownish-orange tweed jacket complete with elbow patches, a pale green shirt, and a brown tie. Tall and gangly, with thick gray hair and glasses, Funk carried a file under his arm, the pages sticking out one end. But he knew his way to the witness chair, having testified more than four hundred times. He did not remain seated for long. After soliciting Funk’s considerable education and work history, as well as the inner workings of the King County medical examiner’s office, Cerrabone sought Underwood’s permission that Funk be permitted to testify from the area between his easel and the jury box.

  Using an antenna pointer, Funk educated the jury on how he was called to Vasiliev’s home, waited until CSI had completed its investigation, then proceeded to process the body, which took a little under thirty minutes. His direct examination had been well orchestrated and rehearsed offstage, Cerrabone smooth at introducing the testimony and the evidence. Funk gave Sloane few reasons to object.

  As Funk testified, Cerrabone used the television to display documents and photographs taken at the crime scene and during the autopsy. Several jurors winced at a photograph showing the back of Vasiliev’s head, a portion of the skull blown away. This was the moment when reality hit, after the initial excitement and anticipation of serving as a juror in a murder trial subsided. The brutality of the wound clarified that this was not a television show and the people before them were not actors. This was real. It was a crime of violence intentionally inflicted and with the single purpose of taking another human being’s life.

  Funk’s testimony continued for nearly two hours before Cerrabone arrived at the single reason he had come to the courtroom that day—to offer his opinion on the cause of death.

  “And did you reach a conclusion of whether the death was accidental, a suicide, natural, or a homicide?” Cerrabone asked, again duty-bound.

  “It was a homicide,” Funk said.

  Sloane had interviewed Funk prior to the trial, with Cerrabone present, and found him to be forthright. There was not much Sloane could do on cross-examination concerning the cause of death, but experience had taught him that jurors expected counsel to ask questions, especially of the first witness. So when Cerrabone passed Funk, Sloane stood and obliged.

  On cross-examination, Sloane wanted to be center stage and asked Funk to return to his seat while Sloane stood directly in front of the jury.

  “Dr. Funk, you have no interest in the crime scene, do you?”

  “No,” Funk said. “Our concern is only the condition of the body.”

  “And based upon your testimony and the photographs, you examined that body in great detail from head to toes to fingertips, correct?”

  “That is our practice, regardless of the cause of death.”

  “And looking at the notes you made during your examination, you noted the presence of multiple wounds on the body, did you not?”

  Funk retrieved his report from the file in his lap and flipped it open. “I did.”

  “Now, to be clear, these were not wounds that, in your opinion, contributed to Mr. Vasiliev’s death, correct?”

  “That’s correct. The cause of death was the single gunshot wound to the back of the head.”

  “But this is not the only gunshot wound on the body?”

  Cerrabone looked like he might stand, then thought better of it and remained seated. An objection could draw more attention to a question, and a good attorney had to pick his spots, for that reason. He also likely had confidence in Funk.

  “No, it is not. There is evidence of a healed gunshot wound just above the right pectoral muscle.”

  “Could you show this bullet wound to the jury on one of the photographs or diagrams Mr. Cerrabone used today?” Sloane walked back to his table, grabbing the stack of photographs, though he already knew the answer. When Funk did not respond, Sloane turned and waited, the jurors watching him. “Dr. Funk?”

  “I don’t think we showed any photographs or diagrams depicting that wound to the jury. It’s not our practice—”

  “I think Mr. Cerrabone already went into great detail with you concerning your practice, Dr. Funk. What I want is a photograph used by Mr. Cerrabone that depicts that wound.”

  “He didn’t use any,” Funk said.

  “So I’m clear, that wound is not depicted on any of your diagrams or any of the photographs Mr. Cerrabone showed the jurors, is it?”

  “No, it is not.”

  “Did you note any other wounds on the body?”

  An intelligent man, Funk knew Sloane’s direction. “Yes, there is a scar just below the rib cage on the left side.”

  “And did you reach a conclusion as to the cause of that scar?”

  “It is a healed knife wound.”

  “And that also has not been depicted on any diagrams or in any photographs displayed for the jurors today, has it?”

  “No.”

  “Any other wounds?”

  “I found evidence of healed lacerations—multiple lacerations on the victim’s forearms—as well as scarring of tissue on the knuckles of the right hand.”

  “Again, do you have any opinions as to what caused the lacerations?”

  “They are also healed knife wounds.”

  “More knife wounds,” Sloane said. “And the injuries to the knuckles on the right hand?”

  “I can’t definitively say.”

  “Do you have a hypothesis based on your training, education, and expertise?”

  Funk adjusted his glasses. “They are consistent with the type of injuries one would associate with blows administered by fists, like a boxer, someone who used his hands to inflict blows.”

  “Was Mr. Vasiliev a boxer, Doctor?”

  “I have no idea.”

  “Did your direct examination introduce any photographs or diagrams to show the jury these injuries?”

  “No.”

  After Sloane sat, Cerrabone spent twenty minutes on redirect, but Sloane asked no further questions. He’d accomplished what he intended. He’d established that Vasiliev was a violent man who had lived a violent life and had nearly been killed before. In the process, he’d implied that the prosecutor had kept that information from the jury. It wasn’t a home run, not by any means, but it was a sharp single, and on cross-examination, that was often as good as it got.

  When they returned from their lunch break, Cerrabone
called his next witness, Officer Darius Adderley, the first responding officer to the crime scene. A good-looking black man, Adderley entered the courtroom in full-dress blue uniform, complete with body armor beneath his shirt and a utility belt strapped about his waist containing a gun, pepper spray, handcuffs, and radio. Keys on a key ring jingled as he made his way to the witness stand and sat.

  After Cerrabone solicited Adderley’s education and training, which included a tour in the Gulf War as an Army Ranger, and which Adderley recounted in a commanding baritone voice, Cerrabone got down to the business at hand. Adderley advised that he had received a 3:03 A.M. call from dispatch the morning of September 7 of a possible prowler at an address in Laurelhurst. He had arrived at the residence ahead of other units and waited for backup.

  Using a diagram of the house, Adderley relayed how he mentally labeled the front of the house side A and proceeded in a clockwise direction, the south side being B, the rear C, and the north D. He explained that side C included a sliding-glass door, through which he and the second officer to arrive first viewed the victim.

  “And what did you do?” Cerrabone asked.

  “I called it in as a person down and held for more resources.”

  “How’d you call it in?”

  “Cell phone.”

  “Why a cell phone?”

  “Media can’t monitor it.”

  That brought a few chuckles from the gallery, and Cerrabone, relaxed in his delivery, acknowledged them with a smile of his own.

  “Did you attempt to enter?”

  Adderley shook his head. “No reason,” he said. He noted that the door was shut, pierced by a single concave hole that caused a spiderweb of cracks, though the door had not shattered and the glass had not crystallized.

  With Rowe’s assistance, Cerrabone had the door wheeled front and center for Adderley to identify. He then used one of the crime-scene diagrams for Adderley to explain the physical location of the body on the sofa, head slumped on the arm, a pool of blood on the hardwood floor.