by Parnell Hall
After standing there several moments to prolong the effect, ADA Wellington nodded and said, “Thank you, doctor. That’s all.”
Richard Rosenberg got up from the defense table. His eyes never left the doctor as he strode out into the center of the courtroom. He chose a position in relation to the jury box and the witness stand so the jurors could see his eyes fastened on the doctor. And he stood there, stone-faced, unblinking, just as long as ADA Wellington had stood at the end of his examination.
Finally, he spoke.
“Twenty-three years, doctor?”
“I beg your pardon?”
“You’ve been a medical examiner for twenty-three years?”
“Yes, I have.”
“How many autopsies have you performed in that time?”
“I don’t know. Hundreds, I’m sure.”
“As many as a thousand?”
“Oh, easily. Most likely two or three.”
“Two or three thousand homicides.”
The doctor raised his finger. “Now, now,” he said. “I didn’t say that. Not all violent deaths are homicides. Or all suspicious deaths, for that matter. Some are accidents. Others turn out to be from natural causes.” He smiled. “That’s one of the main things an autopsy is used to determine.”
Richard didn’t return the smile. “That’s fine, doctor,” he said. “Let’s talk about the percentage of your cases that were homicides. And just how large a percentage was that?”
Dr. Fleckstein frowned. “I really couldn’t say.”
“Is it as much as half?”
“Oh, yes. More than half.”
“Fine, doctor. Since you say you’ve handled over two or three thousand cases, half that would still give us over a thousand to work with. Now, in those cases that turned out to be homicides, can you tell me how many times you were asked to appear in court?”
“Once again, I would—”
“Approximately, doctor. Would that be more than half?”
“I’m really not sure.”
“Well, let’s get at it another way. Have you appeared in court a hundred times?”
“Oh, yes.”
“More than two hundred?”
“I would say so, yes.”
“More than five hundred?”
“I’m not sure.”
“That’s all right, doctor. Two hundred will do. You feel you’ve testified in court two hundred times?”
“I would say so, yes.”
“Uh-huh,” Richard said. “What was the time of death?”
The change of subject was so abrupt that Dr. Fleckstein blinked. “I beg your pardon?”
“What was the time of death, doctor? When did the woman die?”
“She died in the early-morning hours of October thirteenth.”
Richard stood, his face deadpan, his eyes on the doctor.
A beat.
Two.
“No kidding,” Richard said dryly. “Do you know why I asked that question, doctor?”
“Objection. Argumentative.”
“Sustained.”
“The reason I asked that question, doctor, is that on direct examination you didn’t mention the time of death. I am wondering, doctor, on those two hundred occasions that you’ve given medical testimony in court, did you ever once give testimony and not mention the time of death?”
“Objection.”
“Overruled.”
“I can’t recall.”
“You can’t recall, doctor?”
“No, I cannot.”
“You can’t remember one other occasion where you didn’t testify to the time of death?”
“Objection. Already asked and answered.”
“Sustained.”
“Doctor, in response to a direct question by me, you stated that the time of death was the early-morning hours of October thirteenth, is that correct?”
“Yes, it is.”
“Can you be more precise?”
“Not with any degree of certainty. I can make an estimate as to when the decedent probably met her death.”
“Isn’t that what you do in every case?”
“Yes, of course.”
“Then why are you having so much trouble doing it now?
“Objection.”
“Sustained.”
“Doctor, on those two hundred occasions you referred to, when you’ve given testimony in court, don’t you always do so specifically in terms of certain hours? Don’t you say, Death could have occurred between six and eight? Or, death could have occurred between eight-thirty and nine-thirty? Isn’t that the effect of medical testimony, to erect parameters within which death could have occurred?”
“Yes, of course.”
“Then why can’t you do so now?”
“Objection.”
“Sustained.”
“Doctor, in this case I asked you when death could have occurred. You told me the early-morning hours of October thirteenth. Since you yourself saw the body at 2:50 A.M., all your statement does is limit the time between midnight and that time. Which is somewhat less than helpful.”
“Objection.”
“Sustained.”
Richard’s eyes blazed. He raised his arm, pointed at the prosecution table. “Doctor, were you instructed by the district attorney’s office not to divulge the time of death?”
ADA Wellington lunged to his feet, spouting objections until I figured it was side bar time again, but I got lucky. Judge Blank, either figuring this would be a long discussion, or tired of whispering, or both, sent the jury out of the room and had the argument in open court. So I got to hear it.
So did the spectators.
So did the press.
Big victory for Richard.
As things turned out.
“Now, then,” Judge Blank said. “Just what is the objection here?”
ADA Wellington’s face was still red. “That man,” he said, pointing at Richard, “just asked the witness if I instructed him to withhold testimony.”
Judge Blank nodded. “Right. What’s your objection?”
ADA Wellington almost gagged. “It’s an insult. A gratuitous attack on my reputation.”
“I’d appreciate a legal argument, counselor.”
“Damn it, it’s false.”
“Then the witness will say so,” Judge Blank said calmly. “Do you have any legal grounds for your objection?”
“What I told the witness is incompetent, irrelevant, and immaterial.”
“It’s always relevant to establish bias, Your Honor,” Richard said. “What the prosecutor may have told his witness may not be relevant. But if the witness acted on those instructions—if it should turn out the doctor deliberately withheld portions of his testimony at the instructions of the prosecutor—well, that would certainly be an indication of his bias, and I have every right to bring it out.”
“Are you saying such is the case?”
Richard spread his hands, palms up. “I have no idea. Faced with the rather unique situation of a medical examiner failing to disclose the time of death, I have to make some attempt to discover the cause. The first logical question is whether he was instructed to do so. If he was, it’s entirely relevant. If not, he can merely say so. Frankly, I don’t see what’s the big deal.”
“I don’t either,” Judge Blank said. He turned to the prosecutor. “Mr. Wellington, do you have anything further.”
Wellington didn’t.
He said he did, and he acted like he did, and he made several attempts to speak as if he did, but it was clear that he didn’t, and Judge Blank lost no time overruling the objection. The jury was brought in, told of the decision, and the question was read back by the court reporter. “Now, then, doctor, were you instructed by the district attorney’s office not to disclose the time of death?”
Dr. Fleckstein, who had remained on the witness stand, listening to the entire argument, was bristling with indignation. “Certainly not,” he snapped.
“What were yo
u instructed to do?”
“Objection.”
“Sustained.”
“Doctor, you have just testified that you were not instructed to withhold the time of death. Were you instructed, if you were asked for the time of death, to give it in as general terms as possible and, more specifically, to avoid mentioning the actual hours during which death might have taken place?”
Dr. Fleckstein squirmed on the witness stand. He cleared his throat.
“Objection,” Wellington put in.
“Overruled.”
“Well,” Dr. Fleckstein said grudgingly. “It wasn’t like that.”
“Oh? What was it like?”
“Objection.”
“Overruled.”
“What was it like, doctor? You define the situation for us.
“Well,” Dr. Fleckstein said, “it wasn’t like I was to withhold anything or in any way alter my medical findings.”
“Well, I’m certainly glad to hear that, doctor. What were you instructed to do?”
“Only to listen to questions carefully and answer only what I was being asked.”
“Really,” Richard said, grinning. “Was that on direct examination?”
“That’s right.”
Richard’s grin grew wider. “What about cross-examination? What were you instructed to do then?”
“Objection to the words instructed to do.”
“Overruled. The witness may qualify his answer if he wishes.”
“I wasn’t instructed to do anything. Naturally, I discussed my testimony with the assistant district attorney. That is standard procedure for any witness who is going to testify in court. So there’s nothing sinister about it, no matter how much you want to make of it.”
“I don’t want to make anything of it,” Richard said, “but I’d certainly like to know what it is. I don’t believe you answered my question, doctor.”
“I certainly did.”
“I asked you what you had been instructed to do, the prosecutor objected to the word, then you decided you hadn’t been instructed to do anything. Even though I believe before he made the objection, you responded to a question as to what you had been instructed to do on direct examination. But be that as it may, I don’t really wish to get involved in a discussion of semantics, doctor. So, if you please, what did the prosecutor say with regard to your testimony on cross-examination?”
“Objection.”
“Overruled.”
“What did he say, doctor.”
Dr. Fleckstein hesitated. He looked around, then blurted, “Don’t help him.”
A murmur ran through the courtroom.
Richard smiled, “Don’t help him, doctor? That’s what you were told?”
“That’s right.”
“And who told you that, doctor? Who was it who said, Don’t help him?”
“Objection, Your Honor. Incompetent, irrelevant, and immaterial.”
“Overruled.”
“Who told you that, doctor.”
“Mr. Wellington.”
Richard’s smile was enormous. “The prosecuting attorney, Assistant District Attorney Wellington, who just objected to that question on the grounds that it was incompetent, irrelevant, and immaterial?”
Laughter rocked the courtroom. This time ADA Wellington’s objection was sustained. But the damage had been done. As far as the press was concerned, Richard had won the day.
And he wasn’t through.
“And what did you take that to mean, doctor—the words, Don’t help him?”
“Objection. Calls for a conclusion.”
“Sustained.”
“Doctor, when you testified just now, in your own mind, did you come to a conclusion as to how you were going to answer on cross-examination, based on the conversation you had had with the prosecuting attorney in which he had said the words, Don’t help him?”
Dr. Fleckstein took a breath. “As a witness for the prosecution, I am aware that I’ve been called to the stand to advance the theories of the prosecution. It is my duty to present the facts accurately and fairly. It is not my duty to volunteer information that might be favorable to the defense.”
Richard’s eyes widened. “Are you saying you would deliberately withhold such information?”
“Absolutely not,” Dr. Fleckstein snapped. “I just got through saying I would try to be as fair and impartial as possible. I was pointing out that while I would not volunteer information, I would certainly give you anything you asked.”
“I’m glad to hear it. What are the hours during which death might have occurred?”
Dr. Fleckstein sucked in breath, exhaled. “If you want to put it that way, death might have occurred anytime between midnight and 2:50 A.M.”
Richard shook his head. “Oh, dear,” he said. He chuckled ironically. “And after such a fine speech about being fair and impartial.”
“Objection.”
“Sustained. Mr. Rosenberg, please avoid such side comments.”
“Sorry, Your Honor. Dr. Fleckstein, I think we’re into semantics again. Are you basing your answer on my use of the word might.”
“I’m telling you what’s conceivable.”
“I’m sure you are, doctor,” Richard said. “Let’s get at it another way. What is the main method used for determining time of death?”
“There are several methods.”
“Yes, but isn’t body temperature the generally accepted method?”
“It’s one of the main methods.”
“Let’s not quibble. It is a main method, is it not?”
“Yes. I just said so.”
“Would you please explain to the jury the method of using body temperature to determine time of death?”
“Certainly.” Dr. Fleckstein seemed relieved to be able to escape the cross-examination and discourse on a subject. He turned to the jury. “As you know, during life, the normal body temperature is ninety-eight point six degrees Fahrenheit. When a person dies, the body cools. The rate of cooling is a constant. So, by taking the body temperature, we are able to determine when a person met their death.”
“That constant is approximately one and one-half degrees Fahrenheit per hour, is it not, doctor?”
“That’s right.”
“And, in this case, did you take the body temperature of the decedent, Barbara Carbinder?”
“Yes, I did.”
“And what time did you take the temperature?”
“Approximately 3:00 A.M.”
“What was the body temperature at that time?”
“Ninety-four point nine.”
“Ninety-four point nine, doctor? Well, let’s do that math. Let’s see. Ninety-eight point six minus ninety-four point nine is three-point-seven degrees. At one-point-five degrees per hour, three degrees would be two hours, and point-seven would be approximately one-half. So, the body temperature would indicate that death occurred two and one-half hours before you took it. If you took the body temperature at 3:00 A.M., that would put the time of death at approximately half-past twelve.”
“Which you cannot do,” Dr. Fleckstein said petulantly, shaking his head. “Which is why laymen shouldn’t try to play with these figures. Do the math and say, Well, she died at twelve-thirty. It simply isn’t so. All taking the body temperature does is allow you to set up the parameters during which the woman probably died.”
“Exactly,” Richard said, snapping his fingers. “Which is the question I asked you to begin with. You said between midnight and 2:50 A.M. Now, granted, you said that prompted by the prosecutor’s advice, Don’t help him. But still, I suddenly find those figures quite interesting. Midnight is just half an hour before twelve-thirty, the mathematical midpoint for the time of death indicated by the body temperature. However, between twelve-thirty and two-fifty A.M. there are two hours and twenty minutes. Quite an imbalance, wouldn’t you say? Midnight is the earliest time the decedent is most likely to have met her death. Wouldn’t one o’clock be the latest time she would be
likely to have done so?”
“You’re twisting my words,” Dr. Fleckstein said. “Now you’re saying most likely. Before, you were saying possible.”
Richard smiled. “And you, taking Mr. Wellington’s Don’t help him to heart were taking my words as literally as possible in order to divulge no information?”
“Objection.”
“Sustained.”
“I am asking you now, doctor, based on your medical findings, based on your autopsy, based on the body temperature which you took, is it or is it not a fact that the most likely time the decedent met her death was between the hours of midnight and 1:00 A.M.?”
Dr. Fleckstein took a breath. “That’s right.”
“Thank you, doctor. No further questions.”
ADA Wellington was immediately on his feet, asking the doctor a million questions in order to demonstrate that there had been no impropriety on his part in the instructions that he had given the doctor regarding his testimony.
But it didn’t matter.
As far as the press was concerned, Richard Rosenberg had kicked his ass.
33
WELLINGTON FIRED BACK WITH CONNIE MAYNARD.
First he called two doormen from her building. Both of them testified that over the past six months Anson Carbinder had been an increasingly frequent visitor.
Then he called Robert Tessler.
“State your name.”
“Robert Tessler.”
“What is your occupation?”
“I’m a private detective.”
“Are you acquainted with a young woman by the name of Connie Maynard?”
“Yes, I am.”
“How do you happen to know her?”
“I was hired to place her under surveillance.”
“Who hired you to do that?”
“Barbara Carbinder.”
“Objection!” Richard shouted, but the damage had been done. The court was in an uproar and some of the reporters were actually on their way to the exits.
It was no surprise that Anson Carbinder had had an affair with Connie Maynard—everyone had known that since the beginning of the trial—but it certainly was news that Barbara Carbinder had hired a private eye to spy on them. “Now, then,” Judge Blank said after the jury had been led out and order had been restored. “What is your objection, Mr. Rosenberg?”
