Next came the fiber expert, a woman named Dr. Karen Mead, who testified that there was fiber from Pete’s clothes in the car. On cross-examination, Mac asked,“Dr. Mead, were there fibers present in the vehicle that did not match any clothes samples from either Angela Hightower or Pete Thomason?”
“Of course. Unless a vehicle has been very carefully vacuumed, there would be stray fibers from any number of sources.”
“Did you identify and retain the ‘stray fibers,’ as you call them, from the yellow Porsche?”
“Yes. They are lumped together in a container labeled ‘extraneous residue.’”
“How many different types of extraneous residue did you find in the vehicle?”
“I can’t tell you exactly because we didn’t count. Our instructions were to search for specific fibers, but I can tell you there was as much extraneous residue as there were fibers linked to the victim and the defendant.”
“So if you added other specific fibers to your search list, they might be in the extraneous residue container.”
“Correct.”
Harold Kolb, the fingerprint evaluator, was a former FBI analyst with a shaved head and bushy gray mustache. Kolb obviously loved his work. To him, the lines on a fingerprint were as intriguing as the brush strokes on a Winslow Homer seascape. Joe had trouble restraining the witness’s enthusiasm.
When it was Mac’s turn, he tried to focus Kolb’s testimony on a couple of points.
“Mr. Kolb, did you dust the entire vehicle?”
“Yes. I used a number-fourteen, synthetic extra fine-brush and a special powder developed last year by a German laboratory.”
“But there were no fingerprints on the steering wheel. Is that correct?”
“Right.”
“Could you tell if the steering wheel had been wiped clean?”
“Only by deduction. The steering wheel is normally a fertile site for fingerprints, but in this case there was nothing on it.”
“And there were other prints beside those of Pete Thomason and Angela Hightower in the vehicle.”
“A plethora.”
“A what?” Mac asked, looking up from his notes.
“I’m sorry. A lot. A lot of variety. There was an unusual swirled left index finger unlike anything I have ever seen and a right thumb with a pronounced scar that must have really hurt at some time in the past and a—”
“Mr. Kolb, if I may stop you. Did you submit any of these other prints to the FBI national fingerprint database?”
“No.”
“But a search might reveal if someone else who had been in the car had a criminal record, wouldn’t it?”
“Possibly.”
Mac nodded, checking off a question on his pad. “That’s all.”
It was close to five o’clock when Mr. Kolb left the witness stand.
“The court will be in recess until tomorrow morning at nine o’clock,” the judge said. “Let me remind the jury not to discuss this case among yourselves until all the evidence is presented and you receive your instructions from the court. You can talk about the weather, your children and grandchildren, or what you plan to do with the twenty-five dollars a day the county is paying you to serve as jurors, but do not talk about the case.”
After the jury followed the bailiffs out of the courtroom, the judge addressed the lawyers. “Gentlemen, we have a matter to discuss before tomorrow morning. The clerk’s office received a motion to quash a subpoena served by Mr. McClain on a psychiatrist, Dr. Louis Newburn. The motion was filed by Dr. Newburn’s attorney in Atlanta. My secretary was unable to reach the lawyer, and I wanted to know your positions on this matter.”
Joe spoke, “I intend to call Dr. Newburn on behalf of the State during both the initial and sentencing phases of the trial. I don’t know why he would want to avoid appearing in the case.”
“Mr. Moreland can explain our position, Your Honor,” Mac said.
David had been anticipating this moment all afternoon, trying to rehearse and visualize it in his mind. He stood and nervously cleared his throat.
“Go ahead,” the judge said.
“Your Honor, I served a subpoena duces tecum requiring Dr. Newburn to appear and bring a list of all the patients he has treated in his psychiatric practice for the past three years.”
“That’s confidential and irrelevant,” Joe quickly responded. “The State joins in the motion to quash the subpoena filed by Dr. Newburn’s attorney.”
The judge’s eyes narrowed. “I would tend to agree, Mr. Moreland, unless you can convince me otherwise.”
“The defense believes the doctor has a conflict of interest which could bias his testimony in favor of the State and against Mr. Thomason.”
“Explain.”
“Our investigation indicates that Dr. Newburn may be the personal psychiatrist for members of the Hightower family. On at least two occasions within the past two weeks, Spencer Hightower, the younger brother of Alexander Hightower, was observed going into the building where Dr. Newburn’s office is located in Atlanta.”
“Dr. Newburn’s office is part of a medical complex containing more than a hundred doctors.” Joe said. “Did anyone see Mr. Hightower’s brother go into the doctor’s office?”
“No, our investigator couldn’t verify the precise office Spencer Hightower visited.”
The judge held up his hand. He didn’t want a free-for-all in front of the bench. “What does the complete patient list for three years have to do with one or two possible patients? You’re using a cannon to do the job of a rifle, counsel.”
“Dr. Newburn is subject to the rule of sequestration,” David said, referring to the prohibition of communication between the witnesses once the trial began. “He does not, and should not, know the purpose behind our request for records. A complete list is necessary for two reasons. First, it will increase the likelihood that we receive an accurate list of patients if the doctor is unaware of the names of the people we are seeking to identify.”
“That’s an insult!” Joe sputtered. “He has absolutely no basis for insinuating that Dr. Newburn, a board-certified psychiatrist, would falsify his records to conceal the identity of a patient.”
“If I may finish?” David said. Mac smiled at the sign of the young lawyer’s poise. “We are willing to inspect the list of patients under Your Honor’s supervision with instructions not to reveal the names unless you determine it is relevant to the case. Second, there is the possibility that other individuals with a connection to the State’s case may be Dr. Newburn’s patients.”
“Your Honor, this is harassment and a fishing expedition that should not be sanctioned by the court.”
“I understand,” the judge said. “Anything else, Mr. Moreland?”
“No, Your Honor.”
“Mr. Whetstone?”
“No, sir.”
“Mr. Whetstone, I am inclined to agree with your position in this matter and at most allow the defendant to obtain information about any doctor-patient relationship between the psychiatrist and members of the Hightower family. However, the State is asking for the death penalty, and I am going to make sure the defense has the opportunity to conduct a thorough cross-examination of every witness called by the prosecution. Since Dr. Newburn may play a significant role in supporting the State’s case, I am going to deny the motion to quash. Mr. Whetstone, please notify Dr. Newburn and his personal attorney of my ruling, keeping in mind the rule of sequestration.”
“Of course, Your Honor.”
“That’s all.”
“Good job, David,” Mac said as they walked back to the office. “How did it feel to face Goliath?”
“Not too bad. Once the rock left my sling, I enjoyed watching it fly.”
31
O true apothecary! Thy drugs are quick.
ROMEO AND JULIET, ACT 5, SCENE 3
Once the jury settled in the next morning, Joe called George Doolittle III to the witness stand and asked the forensic chemist to take the jury
for a stroll through the drugstore coursing through Pete’s veins on the night of the murder. Then he moved to his real purpose for calling the witness.
“Did you also perform tests on a blood sample taken from Angela Hightower?”
“Yes.”
“What were the results?”
“Negative for the drugs we found in the defendant’s blood. No amphetamines, barbiturates, cannabinoids, or opiates. There was a trace of alcohol.”
“Which means?”
“She had a glass of wine or beer within three hours of her death.”
Joe paused before asking his next question. “Did you conduct additional tests?”
“Yes.”
“Why?”
“Because of the circumstances surrounding the victim’s death, we tested her system for the presence of flunitrazepam, a drug originally marketed by Hoffman-La Roche Pharmaceuticals under the trade name Rohypnol.”
“Please tell the jury about Rohypnol.”
“The drug was developed to sedate patients before surgery and to treat severe cases of insomnia. It is similar to Valium but about ten times stronger. It is legal in about eighty countries and illegal in more than sixty, including the United States and Canada.”
“Why was it banned in the United States?”
“In the mid-1990s, Rohypnol’s potential for abuse was publicized when it was linked to several sexual assaults, primarily on college campuses. It dissolves easily in a hot or cold drink and is colorless, odorless, and tasteless. Within twenty to thirty minutes, the victim suffers from impaired judgment, drowsiness, dizziness, disorientation, and memory loss. It takes several hours for the drug to leave the system, and the victim frequently has no memory of the events which take place while under the influence. It has several street names: roofie, mind eraser, forget pill, party poppers.”
Finished with the pharmacology lesson, Joe put down his legal pad and walked to a spot near the jury box. The chemist turned so that he was looking directly at the jury before Joe asked his next question.
“What were the results of your testing for Rohypnol with the blood sample from Angela Hightower?”
“Positive for Rohypnol at a clinically significant level, which means for a period of time before her death she would have suffered from the side effects I described.”
“Disorientation?”
“Yes.”
“Impaired judgment?”
“Yes.”
“Dizziness?”
“Yes.”
Joe held his hand out toward Pete. “Inability to protect herself?”
Doolittle followed Joe’s direction and looked directly at Pete before answering. “Yes. She was helpless.”
Joe dropped his hand. “Your witness, Mr. McClain.”
Mac stepped forward to question the man whose marriage to Gene Nelson’s sister triggered Mac’s involvement in the case of State v. Thomason.
“Mr. Doolittle, did you test Peter Thomason’s blood for Rohypnol?”
“No. It is not part of any recognized protocol for blood taken from a male.”
“But it would have the same effect on a male as it does on a female: dizziness, disorientation, memory loss.”
“Yes, if present in high enough concentration.”
“Are there any other drugs that produce a similar effect as Rohypnol?”
Doolittle stroked his chin. “Yes. A very high dose of Valium could be comparable, and there are drugs used by anesthesiologists that render a person completely unconscious for prolonged periods of time during surgery.”
“Did you test Mr. Thomason’s blood for any of these additional drugs?”
“Yes. A Valium screen was performed, and it was negative.”
“Are there any other drugs which mimic Rohypnol?”
The chemist shook his head. “None that I can recall.”
“Have you ever heard of gamma-hydroxybutrate?”
“Yes, I forgot about that one. It’s not very common,” the chemist said. “It’s known by the initials GHB.”
“Do you know how it operates?”
“It has the same effect as Rohypnol.”
“Did you test Peter Thomason’s blood for the presence of GHB?”
“No.”
Mac expected Joe to call Dr. Newburn as his next witness, but instead the prosecutor asked the bailiff to send Sergeant Tom Laird into the courtroom. Mac leaned over to David. “Get ready.”
The polygraph examiner came prepared with some impressive statistics about the accuracy of lie-detector testing. He described in detail the testing process and explained the triple-check system of charting respiration and movement, changes in responses in the skin, and relative blood pressure and pulse rate. Finally, he testified about the purpose of control and relevant questions.
“Sergeant Laird, please tell the jury the questions asked the accused, his responses, and your findings.”
“There were four relevant questions. I went over these several times with the defendant before administering the test to make sure he understood and was comfortable with the wording.”
Pete leaned over to Mac. “That’s a lie. I wasn’t comfortable. It was an interrogation.”
Mac nodded. “We know. David is going to bring that out on cross-examination.” Joe asked, “Did he object or change anything?”
“No.”
“Go ahead.”
Sergeant Laird looked down at a sheet of paper he’d brought to the witness stand. “I’ll read the questions exactly as they were worded at the time of the examination:
“Did you give Angela Hightower Rohypnol on August second? Did you physically harm Angela Hightower on August second? Did you strangle Angela Hightower on August second? Did you kill Angela Hightower on August second?”
Joe nodded. “And what were his answers to these questions?”
“He answered, ‘No’ to each.”
“Sergeant Laird, please tell the jury your opinion about the truthfulness of his responses.”
The witness answered slowly. “The defendant was deceptive on every question.”
“Can you evaluate the level of the defendant’s deception?”
“Yes. Deception is shown by deviation in two out of the three scales. In this case there was deception indicated on all three scales on every question.”
“Exactly how many times were the relevant questions asked during the testing?”
Laird answered in a tone that left no doubt that he considered Pete a bona fide liar. “Three times with identical results. Deception, deception, deception.”
“Based on your experience and the results of other polygraphs, how would you compare the charts produced in this test with other tests?”
Mac could have stopped the witness from answering but didn’t object because he wanted to talk as much as possible about “other tests,” especially the one performed by Larry Davenport.
“In the test administered to the defendant there was a high level of deception.”
David whispered to Mac, “Deception by whom?”
“Thank you, Sergeant Laird.” Joe concluded.
It was David’s cue to come onstage. Confident of his preparation but nervous about his delivery, he stood with a legal pad in his hand and walked toward the witness stand.
“Is it true that the pretest interview is an important part of the test?”
“Not really. All it does is make clear the questions that will be asked.”
“But can’t the way the pretest interview is conducted affect the results of the test?”
“No. The validity of the test is based on data outside the ability of the subject to control.”
David was learning his first lesson in questioning an expert witness— not only could their conclusions vary, but they didn’t always agree about the basics.
“So, you don’t believe an antagonistic atmosphere during the pretest interview would affect the test?”
“It’s not what I believe,” Sergeant Laird said. “It’s w
hat I know. Weren’t you listening when I explained the operation of the equipment used in conducting the test?”
“I’m asking the questions,” David said, his face flushing.
“Of course. I just thought I already covered this for the jury.”
“Could two examiners look at the same charts and reach different conclusions?”
“Not likely.”
David stepped back to the defense table and retrieved the charts from the test administered by Larry Davenport and had them marked as defense exhibits.
Joe joined him at the court reporter’s seat, quickly read the results of the other polygraph test, then turned to the judge. “Your Honor, may we approach the bench?”
The judge nodded.
In a low but intense voice, Joe said, “Mr. Moreland is trying to introduce the results of a nonstipulated polygraph. I realize he may not have much experience in trying cases—”
“That’s not true,” David interrupted. “I mean, the part about trying to introduce the results of the test. I want to show that one examiner can look at another examiner’s charts and render an opinion about the test. I’ll not mention that this is a test performed on Pete Thomason.”
“Judge, this is too close to the edge.”
Judge Danielson glared at David. “Counsel, I’ll let you ask generic questions, but do not in any way intimate that these charts are for a test administered to the defendant. If you cross the line, I’ll hold you in contempt of court. It that clear?”
His knees a little wobbly, David answered, “Yes, sir.”
“Very well. Proceed.”
David took the exhibits from the court reporter and handed them to Sergeant Laird. “Can you review these charts and tell whether the individual taking the test was truthful or deceptive?”
The examiner looked over the readings for a minute. “No. Unlike the results from the test administered to the defendant, these test results appear inconclusive, and I would question the competency of the examiner. There is insufficient distinction between the control questions and the relevant questions.”
The Trial Page 26
