“I want to start this morning by thanking you for your candor when we spoke yesterday during the jury selection process. It is because of your honesty during that process that the twelve of you have been chosen to hear this case. And I am thanking you ahead of time, because I think you will find the next week or so to be a difficult one. It will be difficult because the process changes now. We don’t get to talk to each other like normal people, the way we did yesterday. You are now jurors, and the rules of our trial system require a formality unlike any other setting in our society. You are entrusted with a profoundly important decision, but the rules require you to sit here passively, listening, without asking questions or even talking to one another about the case until all the evidence is closed and you begin your deliberations. I do not envy your task, but I promise to do my best to anticipate the issues you might find most important and to focus on them.
“But I think you will find this week to be difficult for reasons other than those faced by any person fulfilling a citizen’s responsibilities as a juror. You face an especially daunting task because this particular trial will force you to focus on the sadistic acts of the man sitting over here, Frank Derringer.”
I had their attention now. A few of them shifted in their chairs to move forward.
“You are going to hear facts about what Frank Derringer did to a thirteen-year-old girl named Kendra Martin—the kind of facts that most people go a lifetime without ever having to contemplate. This man”—I pointed to Derringer—“pulled Kendra Martin from the street, dragged her into a car driven by an accomplice, and drove her to an isolated parking lot with every intention of beating and raping her. And as he brutalized her face and body with his fists and forced her legs apart to take him, something happened that made Frank Derringer’s already horrific violence escalate and turned this crime into something I wish I didn’t have to tell you about.
“At the pivotal moment when Kendra Martin thought the defendant was going to force himself inside of her, the defendant found himself flaccid, unable to fulfill his intentions. So Frank Derringer found a different way to take out his rage against the scared thirteen-year-old girl who was pinned beneath him in the backseat of his car. He took a stick and rammed it repeatedly between Kendra Martin’s buttocks. From the degree of tearing, doctors estimate that the stick was at least an inch and a half in diameter. They know it was made out of wood, because they found splinters inside Kendra Martin’s anus. And when Kendra lay bleeding from the defendant’s torture, Frank Derringer still didn’t stop.
“The defendant told his accomplice to do what he couldn’t do himself and then watched while this second man raped and then sodomized Kendra Martin, now barely conscious. And when the whole thing was over, these two men drove Kendra to the Columbia Gorge and dumped her like a bag of garbage to die.
“You’re going to learn that Kendra Martin hasn’t lived the kind of life that most thirteen-year-old girls get to live. She’s going to get on the witness stand and tell you very personal facts about her home life and her background. And she’ll tell you that she’s not proud to admit that when the defendant kidnaped, raped, and sodomized her and then left her to die, she was a runaway girl engaging in prostitution to support a growing heroin addiction. She’ll also tell you that she initially tried to tell the police what Frank Derringer did to her without admitting her own troubles.
“But I believe that when she explains to you why she initially withheld some information from police, you will understand. You will also understand, and you’ll determine from the rest of the evidence and from your own common sense, that Kendra Martin did not deserve what Frank Derringer did to her. She never consented to be tortured and left to die near Multnomah Falls.
“You will hear evidence that Frank Derringer plotted this crime in advance and then took extraordinary steps to avoid detection.” I gave them a detailed preview of the evidence that Derringer had shaved his pubic hair during the days before the attack and then painted his car and replaced its interior the next day.
“You’ll also hear from Detective Mike Calabrese. He’ll tell you that he found Kendra Martin’s purse in a trash can about a mile away from where the defendant and his accomplice dumped Kendra to die. An expert in fingerprint technology with years of training in this type of evidence will testify that a fingerprint left on the strap of the purse belongs to Frank Derringer.”
I paused and looked across at the face of each juror to make sure that the jury realized the impact of the fingerprint evidence.
“After you’ve heard from all these witnesses and experts, I’ll have a chance to talk to you once again. At that time, I think you’ll find that the State’s evidence is going to measure up to the strong case I’ve outlined for you here. And based on that evidence, I’m going to ask you to return verdicts of guilty on all counts. I’m confident that once you hear the horrendous facts of this case, and the overwhelming evidence establishing Frank Derringer’s culpability, returning that verdict will be the easiest part of this entire trial for you.”
Legal strategists say that jurors make up their minds about a case by the end of opening statements. At the end of mine, I felt like I had them. I took my seat at the state’s counsel table, closest to the jury box.
When Lesh nodded to Lopez to indicate she should proceed, she rose from her chair, put her hands on Derringer’s shoulders, and said, “Members of the jury, Frank Derringer would like nothing more than for you to hear the truth about what happened in this case right now, because he is an innocent man who wants to go home. But, your honor, as his attorney, I have decided to withhold my opening statement until the State has put on its case.”
Lisa apparently had even less confidence in her case than I thought. I wondered if she had reserved opening to delay locking in her defense until she knew for certain what we had.
But Lisa had gone a little further than that, insisting that Derringer was innocent. Most attorneys go out of their way not to use that word; all they really want to hear is “not guilty,” and in a courtroom “not guilty” is a far cry from innocence. If I wanted to be a stickler, I could argue that she made an opening statement by referring to the merits of the case. But what did I care? Better for me to put on a one-sided show.
I’d be putting on my witnesses earlier than I thought. So far, so good.
* * *
My first witnesses were Brittany Holmes and Parker Gibson, the high school students who found Kendra in the park and called the paramedics. With their preppy good looks, they could have been a couple of teenagers you see sailing and splashing water on each other wearing hundred-dollar khakis in those mail-order catalogs. But they were polite and articulate, so they were good witnesses.
The kids described their terror when they realized that they had tripped not over a log but over the bloodied and unconscious body of a young girl. What came across unmistakably was that when they saw Kendra, they saw a girl just like one of their friends or little sisters. They showed no judgment.
The EMT’s testimony went just as well. Whether it was seen from the fresh outlook of a shocked teenager or through the lens of a skilled professional experienced in dealing with violence, this crime was a serious one. The people who were there to witness her condition firsthand all agreed that Kendra had been treated horrifically.
Mike Calabrese was up next, to explain how he and Chuck supervised the crime scene. He summarized the basic mechanics: marking off a perimeter, keeping a log of everyone who entered and exited, collecting and maintaining anything that looked like it might be physical evidence. That kind of stuff impresses juries.
Around the time they finished processing the crime scene, they got word from the hospital that the suspects had sodomized Kendra with some type of stick. “We didn’t find anything in the immediate crime scene that could’ve been the weapon, and we couldn’t search the entire park for a stick. But my partner, Chuck Forbes, noticed that the park put garbage cans along the side of the road. We decided to lo
ok in the cans along the road on the way out of the park on the long shot that the suspects threw the weapon in one of them.”
“Did you locate anything in any of the garbage cans that might have been used to sodomize Kendra Martin?”
“No, ma’am, we did not.” Mike’s rough edges were barely detectable when he testified, I noticed.
“Did you find anything that you deemed to be relevant to your investigation?” I asked.
“We did,” he answered.
“And what was that?”
Calabrese turned his head toward the jury box and answered. “Approximately a mile from the crime scene, I found a black leather purse on top of the garbage in one of the containers.”
I cut in. “At this point in your investigation, Detective, were you aware that the suspects had taken Kendra Martin’s purse from her?”
“No, ma’am, I was not.”
“OK. So what did you do when you found the purse?” I asked.
“I wasn’t sure whether it was related to our case or not, but it was suspicious in any event. I’ve been trained that discarded property is considered abandoned under the Constitution, so I’m permitted to search it without a warrant. I removed the purse from the garbage and opened it.”
As long as he actually gets it right, I like it when an officer tells the jury the basis for conducting a search. It’s not actually the jury’s job to decide whether evidence was obtained lawfully. That’s for the judge to determine. But you never know when you’re going to get some wise-ass wanna-be ACLU’er on the jury who decides to convince the rest of them that some constitutional violation has occurred. “OK. And did you use your bare hands to remove the purse from the garbage and open it?”
“No, ma’am. I was wearing police-issue latex gloves during my search.” He looked at the jury. “It wasn’t much fun poring through that stuff even with the gloves.” Some of the jurors laughed quietly, and he continued speaking to me. “Once I saw the purse, I removed the gloves I had been wearing and replaced them with a new pair. I was wearing those when I picked up the purse and opened it.”
“And what did you find in the purse when you opened it?”
“Things that looked to me just on first appearance like they might belong to the victim, given her age. She had some gum in there, a tube of lip gloss, a change purse with a Hello Kitty sticker on it. Turned out to be empty. There was no official identification in the purse. The victim’s just a kid, so there wasn’t going to be a driver’s license or the standard type of ID. I did find one of those wallet inserts that have the see-through plastic pockets to put pictures and credit cards in. It had a few pictures in there that looked like school photographs of some little kids. Some of the kids had written messages on the back of their pictures. They were addressed to Kendra. I figured at the time that must’ve been the victim’s name, but I subsequently confirmed that information with other detectives.”
“Once you determined that the purse belonged to Kendra Martin and was involved in your investigation, what did you do?”
“My intention was to preserve the purse as I found it, so a crime technician could process it for fingerprints or anything else of evidentiary value. I took a plastic evidence bag from my car and, still wearing my gloves, I placed the purse in the bag, sealed it, and marked it with the date and my initials.”
“And, detective, why did you mark the bag like that?”
“Whenever we seize physical evidence, we seal it in an evidence bag to protect it from tampering, then mark the bag with our initials and the date and time. The bag isn’t opened until it gets to the crime lab. It’s a way for us to make sure that what the crime lab gets is what we actually seized in the field.”
In the same tedious question-and-answer format, we made our way through Mike’s link in the chain of custody. He brought the bag with the purse inside of it back to the precinct and put it in the evidence locker. Luckily, he was the person who had “lab run” duty the next day, so I didn’t have to bring in an extra witness to vouch for the walk from the Justice Center to the crime lab. Mike delivered it to Heidi Chung personally.
I spent the rest of the morning continuing to work step by mechanical step through my trial outline. I was running the show in the courtroom, since Lisa appeared to be doing little in the way of cross-examination. Of Brittany Holmes, Parker Gibson, and the EMTs, she asked one question: “Do you have any personal knowledge to suggest that my client was one of the people who assaulted Kendra Martin?” Of course, they all said no. She didn’t ask Calabrese a single question.
My guess was that she was saving the heavy stuff for Kendra.
8
Ray Johnson and Jack Walker were waiting on a bench outside of Lesh’s courtroom when I got down to the fifth floor after the lunch break. I started having my witnesses meet me outside the courtroom soon after I became a DDA. That way, when the judges invariably start late, I can make use of the time by preparing my witnesses in the hallway. An added bonus of the practice is that it keeps the dirtbag informants in my drug cases out of my office and away from my stuff.
I assumed that the man sitting alone on a separate bench farther down the hall was Dr. Preston Malone, the emergency room resident who treated Kendra at the hospital. Anyone who’s had a shower and hasn’t ingested illegal narcotics within a couple of days stands out on a bench in the courthouse. Unless, of course, you can tell the guy’s a cop, either from the uniform or the other sure signs—beer gut, bad tie, big gun, those kinds of things. In Preston Malone’s case, the medical journal he was reading gave him away.
When Ray and Jack spotted me, they both opened their mouths to speak, but I rushed past them with one finger up to let them know I’d be right back. I wanted to touch base with Dr. Malone first. Typical of most physicians, he hadn’t found time in his schedule to prepare his testimony with me. And, although I had Kendra’s medical records for the grand jury, Dr. Malone hadn’t appeared personally to testify. In other words, I had no idea what I was getting.
When he realized I was approaching him, he stood and offered his hand. From a distance, the guy looked really good. But standing close to him now, I could see that his profession was taking its toll. He hadn’t shaved, his eyes were bloodshot, and his hair was a mess. Tell you the truth, I’m not sure that his eyes were completely focused. Coming out of ER like that? Scary.
He apologized for not being able to meet with me before trial.
“With the schedules we get at the hospital, it’s pretty much impossible to keep an outside appointment. I have to admit, I was happy to get a subpoena. Thought maybe I could catch a nap while I was waiting. But when I was walking out, the attending physician gave me this medical journal and asked me to summarize the articles for him when I got back.”
“You have to go back when you’re done here? You’ll probably be here until the end of the day.”
He smiled. “Not the way a hospital defines the end of a day. I went in yesterday at six in the morning. I’ll get home around ten tonight.”
I vowed inwardly never to complain again about my workload.
I ran through the trial outline in my head. “Actually, I could put you on first so you don’t have to wait around here.”
“Um, thanks, but if it’s the same to you, I’ll wait as long as possible. I’m almost done with this journal, then I’m gonna crash right here on this luxurious wooden bench.”
“I guess with your residency, you don’t really need a suite at the Four Seasons to sleep,” I said.
“No, but the thought is pure ecstasy.”
I could tell he was about to nod off at the idea, so I got my trial prep in quickly. Malone’s job would be to describe Kendra’s demeanor and injuries. I hoped the nap would refresh him before his testimony.
I left him there, lying on the wood bench, and walked back to where Walker and Johnson waited.
“Pretty good kid, isn’t he?” Walker said, nodding his head toward Preston Malone.
“Seems like a har
d worker. You guys ready?”
“Let’s roll, girl.” I could tell Johnson was getting into witness mode.
* * *
After Lesh took the bench and brought the jurors back in, I rose and said, “The State calls Detective Raymond Johnson.”
When he stood to walk to the witness seat, I noticed Claudia Gates, the heavyset middle-aged black woman on the jury, sit a little straighter in her chair and let her eyes follow Ray to the front of the courtroom.
For her sake, after I asked Ray to state his name, age, profession, and some other general background information, I added, “Are you married, Detective Johnson?” I’m not above playing to a juror’s weaknesses.
Whether he knew why I was asking or whether he just has a natural charm, Ray Johnson gave the perfect answer: “Not yet, Ms. Kincaid. So far, the only woman in my life’s my momma, but I’m still trying.”
I thought I actually heard Claudia Gates’s blood rush, but it was more likely the courtroom’s crappy radiator.
I know. I’m a hypocrite. As much as I hate it that a good portion of my half of the species loses all rational thought when a good-looking man’s in the room, I happily accept these boy-crazed women as jurors when my cops are hot.
Ray covered some of the same ground as the initial witnesses, describing the mood of the crime scene and Kendra’s appearance when MCT first arrived. Then we talked about what happened after he and Jack separated from Chuck and Mike.
“When you saw Kendra Martin at the hospital, did you reevaluate your assessment of her injuries?”
“In some respects.” He explained that Kendra’s appearance substantially improved once the hospital staff cleaned the blood from her, but she was still in obvious pain, evidenced by severe bruising on her face and body, a large laceration across her nose and left cheek, and noticeable discoloration around her neck.
“After you initially spoke with Kendra Martin, did you have an idea in your mind about what had happened to her that night?”
Judgment Calls Page 14
