Judgment Calls

by Alafair Burke

  Chuck and Dad showed up around the time I was freeing Vinnie from the kitchen pantry. Knowing Vinnie, he’d made a valiant effort, but it doesn’t take much to kick a French bulldog into the nearest closet. He put up a brave front when I picked him up, but I could feel him shaking.

  Dad kept on eye on me, while Chuck pulled rank to make the patrol officers page out a technician to search for prints. PPB doesn’t dust every home burg, so I was getting special treatment. Must have been the nasty knock to the head.

  When he was done with immediate business, Chuck came into the kitchen where my dad was fixing me a drink and monitoring the ice pack on my head. “You doing OK?”

  “Yeah, I guess.”

  “How’s the mutt?” he said, smiling as he flipped one of Vinnie’s ears over.

  “Seems to be getting over it. Dad’s going to take him to the vet for me tomorrow just to make sure he’s alright.”

  One of the young patrol officers walked in and gave the kitchen a cursory lookover. “Man, they really did a number, didn’t they?”

  I looked around and took in just how bad the place looked. And then I took it out on the patrol officer. “Better call off the crime scene team. McGruff the Crime Dog here has got the whole thing figured out. Yep, they really did a number on the place. I hadn’t picked up on that, Mr. Sensitivity. Jesus Christ, get yourself a copy of Policing for Idiots before you go out on any more calls.” I put my hands against the kitchen table, pushed my chair back, and stormed over to the sink to look out the window.

  Dad came to my side and patted my shoulder while I fought back tears and tried to regain my composure. When I’d gotten myself under control again, Chuck suggested that I look around when I was ready to see if anything was missing. As I started to leave the kitchen, the patrol officer said, “Just make sure you don’t touch anything, ma’am.”

  I didn’t turn around, but I heard Chuck say, “You got a death wish or something, Williams? Use your fucking head.”

  The only valuables I own are some jewelry I inherited from my mother, and I’d be surprised if anyone ever found those. If every old house has some irregularity that invites fantastic stories, mine is an old wall safe that someone had built into the baseboard of my bedroom. The day I was entrusted with my mother’s jewelry, I locked it inside that safe and moved my solid maple headboard directly in front of it.

  The bed was right where I’d left it. In fact, nothing seemed to be missing, making me wonder why someone had bothered.

  We were throwing around theories in the kitchen, with me desperately searching for one that didn’t involve any further mortal danger. First I floated the typical teenage thrill burg. Wanna-bes get a high off being in another person’s house, going through their stuff, and trashing the place. But they probably wouldn’t have slugged me in the noggin.

  My next front-runner was a small-time junkie thief who broke in and then went nuts and trashed the place when he realized I didn’t own the kinds of things that smalltime junkie thieves steal, like CDs, DVDs, and other small items that are easily resalable to those who live in the modern world.

  That theory just might have stuck, at least for the night, if I hadn’t decided I needed a beer.

  I opened the fridge to find my twelve-inch chopping knife prominently displayed on the top shelf. It secured a note that said, Next time we slice up you and your dog. It’s that easy.

  So much for a theory that didn’t scare the shit out of me.

  7

  Like any other crime victim, I could do nothing about the intrusion into my home and assault upon my person except wake up in a messy house with a pounding headache.

  PPB had assured me that they’d do what they could to find prints, but I knew there wouldn’t be any. And I assured PPB that I’d go over my files to identify anyone who might want to scare me, but I felt in my gut that it had something to do with Derringer. Unfortunately, Derringer currently enjoyed the greatest protections a defendant can enjoy. Lopez had served me and the police department with written notice that he was invoking his rights to counsel and to silence, which meant that, while his trial was pending, the police couldn’t question him about anything, even suspected new crimes.

  The truth is that prosecutors are rarely threatened. Some speculate that it’s because they are feared, but the real reason prosecutors are generally safe from the scum they prosecute is that they’re replaceable. You take out your prosecutor and nothing changes. The same witnesses bring the same evidence to the same jurors, only with a different mouthpiece coordinating the show.

  Unfortunately, an occasional defendant is too stupid to see that reality, and I suspected Derringer was one of them. Now I had to go into trial with yet another reason to feel sick whenever I looked at him.

  * * *

  The first day of trial was mercifully quick. Judge Lesh had reviewed all the written motions in advance and was ready to rule on them without holding an evidentiary hearing. Even though the appearance took only a few hours, I still found Derringer’s presence disconcerting. I’d almost hoped he’d throw me a look to confirm my suspicion that he was behind the ransacking. His seeming indifference only served to foster the combination of rage and fear that I’d been nursing since the previous night. I tried to use it to fuel my concentration on the pending motions.

  I was nervous about Lopez’s motion to exclude the false alibi Derrick Derringer had volunteered for his brother the last time around. It was my position that this was relevant in determining whether Derrick was telling the truth now.

  Lisa argued that the evidence was too prejudicial to provide to the jury. Or, as she put it, “Your honor, Ms. Kincaid knows full well that, under the Rules of Evidence, my client’s prior conviction is inadmissible. By framing this evidence as impeachment of Derrick Derringer, she’s trying to find a way to get my client’s prior conviction through the back door.”

  Lesh went off the record. “Ms. Lopez, you’re doing a good job for your client, but if I were you I would avoid using the term ‘back door’ when referring to his prior conviction, which I see is for attempted sodomy.”

  David Lesh was one of those people who could say the most inappropriate things and yet somehow never offend anyone. A legendary story holds that when Lesh was still a prosecutor, one of the female judges and her law clerks saw him leaving the building wearing shorts. The judge jokingly commented that the DAs were letting their dress standards lapse a bit. Lesh’s response? “I don’t mind telling you, judge, that these legs are under a court order from the National Organization for Women. I cover these beauties, and those fanatical broads at NOW will have me arrested.” The clerks held their breath, sure that their judge was about to unleash. Instead, the story goes, she laughed and said, “Well, in that case, counselor, you should at least get out in the sun periodically. You could blind someone with those things.” My guess was that Lesh had so much going for him on the stuff that mattered that people were almost reassured by his irreverence.

  Proving once again that he was a complete professional where it counted, Lesh went back on the record and made what I believed to be the right ruling. The jury should be allowed to consider Derrick’s previous lie for the limited purpose of judging his credibility as an alibi witness in this trial. The problem was that if the jury knew the whole story, including the nature of Derringer’s previous conviction, the unfair prejudice to the defendant would be overwhelming. So Lesh carved out a fair compromise.

  “Here’s what we’re going to do, folks. First of all, the State can’t get into any of this until after the defendant’s brother has taken the stand and offered testimony to exonerate the defendant. Until he does that, Ms. Kincaid, the evidence you want to use is irrelevant.

  “Even after the evidence becomes relevant, I am concerned about the potential for unfair prejudice. Ms. Kincaid, the only facts you really need to get to the jury are that Derringer—Derrick Derringer, I mean—provided an alibi for the defendant in the past and that the defendant, contrary to t
he proffered alibi evidence, eventually admitted that he was, in fact, at the scene. I assume you can find a way to put those facts into evidence without revealing the underlying charge to the jury or whether the defendant was ever actually convicted.”

  I nodded in agreement, but then said yes aloud so the court reporter could transcribe my answer.

  “Alright, then, that’s the plan. And, Ms. Kincaid, I cannot emphasize this enough. The facts that I just mentioned are all I want to hear from your witnesses on this matter: Brother supplied alibi for defendant, but then defendant later admitted he was there.” He counted off the points on his fingers. “If I hear one other word—one mention of sodomy, or kidnapping, or a teenage girl victim, or the fact that a jury found the defendant guilty of something—I will declare a mistrial. And I may even declare a mistrial with prejudice. So I warn you to proceed with caution and make sure your witnesses understand the rules we’re playing by. Do we understand each other?”

  I assured him that we did, and he moved to the rest of Lisa’s motions.

  Lisa had filed a motion to suppress the evidence regarding Derringer’s pubic hair. She tried to argue that the plethismographic examination and the jail booking process constituted unlawful searches in violation of Derringer’s Fourth Amendment rights. But once she agreed that both processes were part of the normal corrections process and not intended to produce evidence of a crime, Lesh quickly denied the motions.

  In the alternative, Lisa asked the court to prohibit Derringer’s parole officer from testifying that he had seen Derringer without his pants at the plethismographic examination. She argued that the evidence was overly prejudicial because it revealed the fact that Derringer was on parole for a sex offense.

  In the end, Lesh decided to permit Renshaw to testify that he was Derringer’s parole officer and had occasion to see him without his clothes. The jury would not hear about the setting or circumstances. I didn’t like it, because I thought the jurors might come up with their own oddball explanations as to why a parole officer would see a client naked. But I decided there was no other way to get Renshaw’s observations in without letting the jury know about the prior sex offense, which surely would lead to a reversal on appeal.

  “Alright,” Lesh said. “Now, before I call a jury panel up here, let’s see if my rulings on these motions change anything about whether we need to have a trial. I assume from the fact that we’re here that the two of you have had plea negotiations on this case by now.”

  Lisa and I sat silently.

  “Nothing?” the judge asked. He told the court reporter to go off the record. “What the hell are you two doing? Now, before I say what I’m about to say, Mr. Derringer, I want you to understand that my comments have nothing to do with my opinion about your guilt. I haven’t heard the evidence, so I don’t have an opinion at this point. And, in any event, that’s going to be a decision for the jury, not me. But I’ve been involved in a lot of trials, both as a lawyer and a judge. And I’ve read the papers filed in this case, and I have some idea of what’s coming around the corner.”

  He turned his attention back to me and Lisa. “I’ll be frank with both of you. From what I’ve read in the motions and the warrants, Ms. Kincaid, you’ve charged the hell out of this case. Frankly, I’m surprised you chose to present this to the grand jury as an attempted murder.”

  Lisa was never one to pass up an opportunity to ingratiate herself with the court. She jumped in to thank Lesh for telling me what she’d been saying all along.

  He stopped her cold. “Not so fast, there, Ms. Lopez. I’ve got even more for you. You may not have noticed, but your client’s alibi rests on the word of his convicted felon brother who by all appearances has lied for the defendant before. Your client also is on parole for an offense that is strikingly similar to the one for which he now stands trial. I hope you have advised him that he is gambling in a very big way. I can tell you right now, if he loses, he won’t be looking at a year in the pen this time. He’s looking at a very long sentence, with a parole board that will remember that he burned them the last time.”

  Having reminded both of us of our weaknesses, Judge Lesh wanted to hear our offers. I offered to dismiss the attempted murder and other charges if Derringer would plead to the kidnapping and sodomy, with a ten-year minimum sentence. I offered to reduce that to seven if he’d flip on Suspect Number Two. Lisa wouldn’t hear it. She wanted Assault Three with eighteen months—no cooperation. Lesh gave up when it became clear we’d never agree, and the clerk called up a jury panel.

  * * *

  Picking a jury can be the most difficult part of a trial. Most people can be convinced of just about anything, and one dud can sway enough of these sheep to yield very bad results.

  One of my first trials in Oregon was a slam-dunk controlled buy. An undercover used marked money for the drug buy; then the surveillance officers who watched the deal followed the suspect, keeping track of him by his distinctive two-tone spectator loafers. When the defendant was popped in the men’s room of a nearby restaurant, the marked drug money was in his pocket. The dummy blew any theoretical chance at an acquittal when he showed up on the second day of the trial wearing the same two-tone spectator loafers that every police witness mentioned the previous day when describing the suspect.

  After three days of deliberations, the jury hung, 7 to 5, in favor of guilt. The judge was so incredulous that he broke from the usual procedure and permitted the lawyers to question the jurors before they were dismissed. Turns out that one particularly headstrong guy convinced four of the others that the defendant must be innocent, because no one would be stupid enough to wear those shoes to court under the circumstances. The four sheep found it difficult to defend the decision, saying repeatedly, “We just don’t think he did it.” When I asked the leader about the marked drug money, all he could say was, “Now, that was a problem for him. I’ll admit that.” The seven sane jurors looked like their heads were going to explode after spending three days trying to argue with that kind of logic.

  My case against Derringer was strong, but I needed to weed out any jurors who might cut him loose on the most serious charges, thinking that the victim deserved what she got. In the end, Lisa bumped two retired women who looked at Derringer like they were already afraid of him. I bumped two men with previous assault arrests and two who said they were surprised that a person could be charged with raping a prostitute. The worse of the two said it sounded more like theft, then suppressed a chuckle. I was glad he said it, not only because I knew to bump him but also because I saw one woman flinch in revulsion. Lisa apparently didn’t see it, because she left her on the panel. A definite keeper for me.

  By the end of the day, we had picked our jury.

  * * *

  Deciding that personal safety required me to navigate even further into the twenty-first century, I bit the bullet and had a top-of-the-line home security system installed that night. I could tell by the way the installation guy eyed my trashed house that he didn’t think I’d be needing it. I didn’t bother explaining.

  Just knowing that the system was there helped. I fell asleep the minute I hit the bed and didn’t wake until the alarm clock advised me it was time to go to work. At least I’d be rested for the second day of trial.

  I walked into Lesh’s courtroom prepared for my opening statement. On the way in, I checked to make sure that my witnesses were there: Mike, the EMTs, and the kids who found Kendra were subpoenaed for the morning. I figured there was no way we’d get through opening statements and all those witnesses before lunch.

  I had decided not to ask Kendra to attend the entire trial. Her mother could not miss enough work to accompany her, and I thought that the sight of Kendra sitting without a parent would feed the impression that she was something other than a victimized child.

  Fortunately, Derringer wasn’t going to be getting an upper hand in the sympathy arena by packing the halls with loving supporters. The only people in the spectator seats were a few cu
rious court-watchers and Dan Manning, a young reporter for the Oregonian who was always trying to branch out beyond his normal neighborhood beat by picking up crime stories that otherwise wouldn’t get covered.

  I liked Dan. He tried to give potential future sources—people like me—good press as long as he could do it and still give the straight story. He stopped me as I was walking in. “Do you have a few seconds for a quote? I’m thinking about using this trial as a centerpiece for a larger special-interest article about the dangers faced by teen prostitutes. You know, hoping to ride the coattails of the renewed interest about the Jamie Zimmerman murder, now that Taylor’s back in the news.”

  I prefaced my answer by explaining that the Rules of Professional Responsibility prohibit prosecutors from going very far in their statements to the media. I was relieved when he nodded; he knew the drill. For a prosecutor, media interviews are like navigating a minefield. Stay too safe within the lines, and your typical nitwit reporter looking for a story will make it sound like you don’t believe in your case. Go too far, and you’re looking at sanctions from the court and the bar.

  I told Dan I’d be happy to talk to him if he would assure me that he wasn’t going to print Kendra’s name. He agreed, reminding me that the Oregonian was one of the few papers that had not abandoned its policy of withholding information about the victims of sexual offenses after the William Kennedy Smith rape allegation triggered sensationalist paper-selling headlines.

  I gave Dan a few canned quotes about the trial and also plugged DVD as an aggressive, proactive unit working to prevent girls from entering the world of prostitution and to arrest and prosecute the adults who lure them into it.

  When it was time for opening statements, I delivered mine from memory, without notes.

  “Good morning. In case you don’t remember, my name is Samantha Kincaid, and I’m a deputy district attorney for Multnomah County. I represent the State of Oregon.