Judgment Calls

by Alafair Burke

  “Yes, based on what she told me and my partner, Jack Walker.”

  “After the initial interview, did you speak to Kendra again about what happened to her that night?” I asked.

  “Yes. After some additional investigation, Detective Walker and I spoke to the victim again when she was still in the hospital.”

  “Were her statements consistent with respect to certain sexual acts committed against her that night?”

  “Yes.”

  “Was she consistent in describing the physical abuse that occurred that night?”

  “Yes.”

  I could sense Lisa contemplating whether to object. Ray’s answers were technically hearsay, even though they didn’t reveal what it was that Kendra actually said to him. The answers were enough to reveal that Kendra had been sexually and physically assaulted. But Lisa stayed in her seat, and she was right to. If she objected in front of the jury, they might think she was trying to keep information away from them, and it was information they were going to hear anyway once Kendra testified.

  I continued the pattern of questioning, establishing that Kendra’s statements were consistent with respect to the most material facts.

  “Were there some inconsistencies between the two statements?”

  “Yes.”

  “Did Kendra have an explanation for these inconsistencies?”

  “Yes. She admitted that she had omitted certain truthful information and had included some untruthful information in her initial statement to us.”

  Now, that one was definitely hearsay, since he was repeating something Kendra had said outside the courtroom and asserting it as truth. But the information helped the defense, so Lisa wasn’t about to object.

  Ray then walked through the portions of Kendra’s initial statement that were not true, being careful as we had discussed never to call them lies. He explained that Kendra initially said she was in Old Town to go to Powell’s Books and did not know how heroin ended up in her system.

  “And Kendra admitted later that those statements were not true?”

  “That’s correct.”

  “Now, Detective, do you know what the defendant has been charged with?”

  “Yes, I do. Attempted Aggravated Murder, Kidnapping in the First Degree, Unlawful Sexual Penetration in the First Degree, Rape in the First Degree, Sodomy in the First Degree, and Assault in the Third Degree.”

  “From an investigative standpoint, did the facts as Kendra Martin stated them in her initial interview indicate that those charges would apply in this case?”

  “Yes.”

  “So, in other words, if someone had asked you right after you initially interviewed Kendra Martin what the suspect might be charged with, those are the charges you would have anticipated?”

  “That’s right.”

  “Would your answer to that question have changed after you learned Kendra Martin’s actual reasons for being in Old Town and how the heroin ended up in her system?”

  “No.”

  “Why is that?” I asked. “After all, the victim in the case changed her statement.”

  “She did change some details in her statement, but her statements with respect to what the suspects actually did to her did not change. The charges would still be the same.”

  Ray wrapped up his testimony by describing the change in Kendra’s demeanor from the first interview to the second. He was well-suited for this role. He actually managed to make Kendra’s mood swings weigh in her credibility’s favor. As he explained it, Kendra was initially very agitated. But once they made it clear that they were there to find out what happened to her and who did it, she was cooperative and focused. When they interviewed her again and indicated their concerns about her initial statement, she seemed embarrassed and worried that her honesty would hurt the case. Once she amended her statement, she seemed relieved.

  After Ray was excused, I called Dr. Malone to the stand. I was worried that the bailiff might actually have to wake the poor guy up in the hallway, but apparently not. Moments later, Preston Malone strode confidently to the witness stand. I guess it’s true that residency trains doctors to perform well regardless of the sleep deprivation.

  Dr. Malone took the oath and explained his credentials to the jury. Pretty impressive. Undergraduate degree in biochemistry from Pomona, MD from Johns Hopkins. Played the viola in the Portland symphony in what he generously termed his “spare time.” Damn. If I thought he had room in his schedule, I might’ve called him for a date.

  We walked through Kendra’s medical records together, with Dr. Malone explaining the cryptic notes that detailed the physical trauma that Kendra experienced. Knowing Kendra like I did, it was hard to listen to. But it was critical that the jury hear it.

  “Dr. Malone, you have described what you have called tears to the wall of Kendra Martin’s anus. After your physical examination of Kendra Martin, did you form an opinion as to what caused those tears?”

  “Yes, I did.”

  “And what is your opinion?”

  “You must understand that the anal wall is extremely sensitive to pressure. Most people experience detectable trauma simply from a standard bowel movement, so it’s not unusual to detect some irregularity in what we call the ‘anal wink.’ In fact, I have seen patients report to the emergency room with voluntarily inflicted injuries in that particular area that are, as you might imagine, extremely abnormal.”

  A couple of the jurors shifted uncomfortably in their seats.

  “And how would you describe Kendra Martin’s injuries?”

  “Severe. Even compared to very young sexual abuse victims, the trauma was incredible. There were no signs of lubrication, either chemical or natural. The only thing I can compare it to is an episiotomy, in which we enlarge the vaginal opening for childbirth. Of course, the patient is anesthetized for that procedure. Given the degree of injury this patient sustained, I would have expected her to need at least two weeks’ healing time. It was only because of this particular patient’s emotional resiliency that she was able to go home the following day.”

  “And were you able to form an opinion about what type of object created Kendra Marin’s internal injuries?”

  “Yes. With voluntary pressure, for comparison, it’s not unusual to see perforations in the anal wall, but they tend to be superficial, and the use of lubrication minimizes the damage. In Kendra’s case, the injuries were abrupt. Someone had subjected her to quick and intense pressure in specific areas. Moreover, I found several wooden splinters in her skin. This, as well as the degree of tearing, led me to conclude that she was penetrated abruptly and repeatedly with an unfinished wooden stick at least an inch and a half wide and seven inches long.”

  I pushed my hair behind my right ear as I looked down at my notes for a reminder of where I was and what I was trying to get out of this witness’s testimony.

  I hadn’t discussed these questions with Dr. Malone, but I sensed that he had a nonobjective investment in the case. I chose my words cautiously to get the answer I wanted.

  “During your medical residency, have you ever seen a patient as seriously injured as Kendra Martin was from the hands of another person?”

  “No, I have not. Of course, I’ve had patients die, but it’s always been from either natural causes or from some sort of weapon.” Then he looked at the jury as if he’d been trained to do this. “But, as little sleep as I sometimes catch during my work in the ER, I had trouble sleeping after I treated Kendra Martin. Without a gun, without a knife, someone had physically ruined this child with his bare hands.”

  Several years from now, after tending to and losing scores of other patients to the hands of sadists, Dr. Malone might be able to offer unbiased, affectless testimony in a case like this. But, for now, he had crossed over from a detached observer into our side of things, and he wanted Frank Derringer to go away. I felt confident enough to wander into unventured territory with him as my witness.

  “In your experience as an ER physician, do y
ou develop a sense of a patient’s chances for survival when they come to you for treatment?”

  “Sure. The hardest part of being a doctor in the emergency room is that we often get patients for whom it’s too late to do anything. We lose a lot of people whose chances have passed before they even come to us.”

  “And, in your opinion, in light of your review of Kendra Martin’s condition when she arrived for treatment, what would have happened to her if she had not been found in the Gorge and brought to you at Emanuel?”

  He paused before responding. “I remind myself daily that I’m not God, that I don’t know this world’s truths any more than anyone else. But in my medical opinion, Kendra Martin’s lucky those kids happened across her. Another couple of hours out there would have killed her. She was crazy high on heroin, but that, in and of itself, would not have killed her. It did, however, decrease her chances of surviving. She was losing a lot of blood from her anal injuries. Her blood pressure and pulse were low, which further reduced the rate of oxygen distribution through her body. And it was cold outside. I’m confident that if she were left overnight, she would have died.”

  I needed to write myself a reminder to keep this guy’s name and number for future testimony.

  When we were done talking about Kendra’s physical injuries, I directed his attention to the effects of drug use. He started out by explaining that, although Kendra may have used heroin frequently enough to develop a physical addiction, she did not have the track marks that give away any hard-core addict.

  “We’ve heard testimony earlier, Doctor, that Kendra Martin was ‘popping’ heroin when she used it voluntarily. Are you familiar with that term?”

  He indicated that he was and explained that popping was the street name for shooting up with a subcutaneous injection. Relative newcomers to heroin could inject the dope just beneath the skin and still get a good high from it. Once they were hooked and needed a bigger high, they’d need to inject straight into a vein.

  He explained that, on the night she was attacked, Kendra was under the influence of heroin that had been injected directly into a vein. To prevent her from overdosing, he had injected her with Narcan, a narcotic antagonist. Within a few minutes of injection, Narcan completely reversed the narcotic effects of heroin. Used on someone dependent on the narcotic, an antagonist could trigger extreme symptoms similar to withdrawal. It helped explain the severe mood swings and general nastiness that Kendra displayed toward the police that night.

  Finally, Lisa had a cross-examination ready. It wasn’t unexpected. Malone had to concede that heroin had adverse effects upon a user’s memory. It was an obvious point, but jurors always listened more carefully when it came from a doctor. Fortunately, I had plenty of evidence to back up Kendra’s ID, so I wrote the day off as a win for our team.

  * * *

  To reward myself for my great day in trial, I picked up some Pad Thai at Orchid Garden on my way home. Two hours later, I was lacing up my New Balances. The peanuts weighed me down for the first mile or so, but after ten minutes I started to work out my stride and could feel the endorphins kicking in. Seventeen minutes after I started, I finally reached my two-mile turnaround point at the Rose Quarter, home of the Trailblazers. I know a lot of runners who claim to reach a meditative state when they run. I’m not one of them. I get bored, and my mind wanders. As I finished my lap around the stadium and began heading back up Broadway toward my neighborhood, I was laughing to myself about the joke at work that the DA’s office needed a separate sports celebrity unit. A better name for Portland’s NBA team would be the Jail Blazers.

  And it wasn’t just the basketball team. After the local ice skating princess gained infamy for having had her rival slugged in the thigh with a stick by a very fat bodyguard, she supposedly settled back into her hometown for a quiet and humble retirement, disturbed only by the occasional bout of celebrity boxing. The reality is that she partied like hell and had restraining orders against her ex-husband and the four ex-boyfriends she’d gone through since him. Apparently all these people hung out at the same handful of cowboy clubs and trailer-park bars, and the princess called the police to enforce the restraining orders every time she happened to run into one of her exes. Throw in the state’s mandatory arrest law for restraining-order violations, and you’ve pretty much got yourself a case to be reviewed every Monday morning, all involving a woman whose name always invites some kind of media attention.

  This line of thought got me through another half a mile or so. I was passing the Fred Meyer parking lot, about a mile from my house, when I noticed the car: a brown Toyota Tercel at the back of the lot, close to Broadway, far beyond where a shopper needed to park at this time of night. It was too dark to make out the face of the person inside, but I could see the ember of a cigarette burning near the steering wheel.

  It could be anyone. Maybe Fred Meyer made employees park at the back of the lot. Or maybe the guy was waiting for his wife to get off work. Or he could be sneaking out of the house to get a few drags of nicotine in his car. Then there was the possibility that the guy I saw at the zoo was out to finish me off, having already trashed my house, kicked my dog, and knocked me out.

  I couldn’t make out the license plate. I thought about running through the lot to get a closer look, but I couldn’t think of any way for just my eyes to cross the street while my body stayed a safe distance away.

  So I kept running and tried not to be obvious as I looked up and down Broadway to make sure I wasn’t being followed. When I was a couple hundred yards past the lot, I saw the car pull out onto Broadway in my direction. When it stopped for a red light, I ducked into a convenience store on the corner and pretended to peruse the tabloid headlines until I saw the car go through the green light and disappear into the other traffic down Broadway.

  I eventually got up the nerve to run home. Well, not that much nerve. I took a route that involved running an extra couple of miles and jumping over my back fence.

  After locking myself inside my house and setting the alarm, I went straight to my handbag to find the license plate number I’d scribbled down at the zoo. I looked on both sides of all the bills, but I couldn’t find it. I must have spent it.

  Given the turnaround of cash in a register, the likelihood of it still being wherever I’d spent it was next to nil. Orchid Garden was most recent, so I gave it a try.

  * * *

  The employees were closing the place down for the night. They looked alarmed when I started banging on the door to get their attention, but after I flashed my DA badge, a pimply bespectacled girl let me in. I pled my case to an eighteen-year-old kid who wore a tie with his striped shirt to denote his authority as the night-shift manager, and he finally let me fish through their singles.

  After all that work it wasn’t there.

  “I told you so,” the tie guy reminded me. “I told you, when we take your money, it goes in the top of the drawer, so it’s the first one paid out.”

  Like I needed him to explain that to me. I thanked him anyway and went home angry at myself. Now I had no idea if the brown Tercel had anything to do with any of this.

  I managed to fall asleep, but my pager woke me up shortly after the wee hours had kicked in. I recognized the number as Garcia’s cell, so I returned the call. He could tell from my voice that he’d woken me and apologized.

  “I wasn’t sure whether to call you, but I’m down here at juvie with Haley Jameson. She got popped for loitering to solicit.”

  Portland’s loitering-to-solicit ordinance was enacted just last year after the city ran into problems proving prostitution cases under the state statute. In practice, the only way to prove an agreement to exchange sex for money was to conduct sting missions using undercover officers posing as either prostitutes or johns. It was an expensive and time-consuming process, and the sting missions had gotten out of hand. To avoid the stings, the regulars all started insisting on free samples before they’d negotiate the date: “Let me touch your cock so I know
you’re not a cop.” What real john’s going to turn that down? For obvious reasons, though, the bureau prohibited officers from engaging in sexual contact with suspects.

  The beginning of the end for sting missions was when an officer decided to get clever, put a nine-inch rubber replica in his pants, and whipped it out on an unwitting prostitution suspect. Actually logged it into evidence after the bust. PPB didn’t like it, so they started hiring non-police informants to conduct the stings. When the weekly scandal rag disclosed that Portland’s finest were paying losers to get hand jobs, the entire vice unit almost got shut down. The result, fortunately, was the adoption of a loitering-to-solicit ordinance. Everyone wins: Police get to stop the street-level prostitution that no one wants in their neighborhoods without having to conduct stings, and the johns and prostitutes take a lesser punishment from a city ordinance instead of a state statute.

  As Tommy described it, Haley’s loitering pop was pretty typical. Time of day, red-light neighborhood, flagging down cars with men in them. It was usually enough.

  “She saying anything?” I asked.

  “Nope. She’s making it real clear that it’s nothing new and she knows the only thing that’s going to happen to her is mandatory counseling that she’ll never attend and assignment to a foster home that she’ll immediately run away from.”

  “I don’t see a lot we can do then, Tommy.”

  “Agreed. I only called you because she brought up your name. As tough as she’s playing, I think she’d like to get out of it if she could do it without any work on her part. She told me Kendra said the female DA on her case was alright, and that if we had told her that day in February that you were a friend of Kendra, she might not have been such a bitch.”

  “Did she say when she talked to Kendra?” I asked.

  “Not exactly, but it sounded recent.” I knew I shouldn’t have believed Kendra when she said she hadn’t been staying in touch with Haley. “Anyway, since she brought up your name and is apparently hanging with your vic again, I thought I should call you. You want me to cut her loose?”