by Paul Levine
“Did you read the statement Mr. Lassiter voluntarily gave the police the morning of the murder?”
“He said that he and the victim had what amounted to a spat and that she raked him across the face with her fingernails.”
“Would that be consistent with the finding of my client’s DNA under the victim’s fingernails?”
“Yes, of course.”
“Dr. Kornish, was any of my client’s DNA found on the victim’s neck?”
“No, Ma’am.”
“Or anywhere on the victim’s body?”
“No, Ma’am.”
“Sometimes, when a person is strangled, you find crescent marks on the victim’s neck, correct?”
“Yes. Usually with manual strangulation, but sometimes with a ligature, too.”
“Were there any such crescent marks on Pamela Baylins’ neck?”
“No.”
“Were there bruises?”
“Yes. Some from the belt, some that may have been made by the assailant’s fingers.”
“Were Mr. Lassiter’s fingernails scraped for DNA material?”
“Yes.”
“Any of the victim’s DNA found?”
“No.”
“Earlier you said it was possible Ms. Baylins was unconscious when attacked. I assume it also follows it’s possible she was conscious.”
“Yes, of course.”
“Okay, let’s assume that Ms. Baylins, though impaired, was conscious at the time she was strangled.”
“If you wish.”
“If a person is being strangled, won’t she attempt to fight off the ligature?”
“I’m not sure I understand the question.”
“Oh, I think you do.”
“Objection!” Emilia sang out. “Argumentative.”
“Sustained. Next question, counselor.”
Willow approached the clerk’s table and picked up my belt. She wrapped it around her neck and tightened it slightly. “Your Honor, I’d like Dr. Kornish to step down for a moment.”
The judge waved her approval.
“Please stand behind me and place your hands on either end of the belt, Doctor.”
The M.E. did as he was told.
“Now, tighten the belt a bit.” He looked a little uncomfortable, but maybe deep inside, he’d like to tighten the belt just a bit more than necessary. “If someone was trying to strangle me with this belt, would I swing backwards trying to scratch my assailant’s face?”
Willow made a show out of flailing her arms backward, coming nowhere close to the doctor’s cheeks.
“Well, I don’t know,” Dr. Kornish said. “Probably not.”
“Wouldn’t Pamela in fact attempt to fight off the hands that are literally squeezing the life out of her?”
Willow reached for her neck and grabbed one of the doctor’s hands with both of hers. Then like an angry cat, she scratched. “Ouch!” the doctor yelped, letting go.
She’d gone deep, drawing blood.
Ah, what a good lawyer will do for her client!
“Isn’t that exactly what Pamela would have done?” Willow said.
“Possibly. She might have.”
“Did my client have any scratches on his hands or arms?”
“No.”
The M.E. sucked at a bloody knuckle.
“Better get a Band Aid for that.” Willow sat down, saying, “No further questions.”
22
The Timeline Crimeline
“We win or lose on the timeline,” Willow Marsh said.
“I know that,” I said.
“If the jury believes you were on the beach between 3 a.m. and 5 a.m. and Pamela was killed during that time, we win. Anything else, we lose.”
We stood in the Justice Building parking lot, 50 yards from the Miami River. A freighter steamed east, heading for open water. I imagined some beachy Caribbean island in its future, but not in mine.
“Did you tell me the truth, about when you left the hotel for your beach stroll?”
“Of course I did. As best I can figure, I left the suite between a little before 2 a.m. You’ve got the hotel video showing me leaving by the poolside doors at 1:57 a.m. What more do you need?”
“And you didn’t come back in?”
“Not until the cops brought me back after sunrise. You know as well as I do there’s no video of me till then. That’s a good fact, right?”
“Before we get to that, I’ve got some tougher questions for you.”
“Jeez, Willow, what’s this about? Why the third degree?”
She drew a document from her briefcase and spread it on the hood of her Jaguar. Across the street, a wood stork peg-legged up the river bank and wandered into the middle of North River Drive.
Willow held the document with both hands to keep it from blowing away:
TIMELINE
PROTECTED WORK PRODUCT AND ATTORNEY CLIENT MATERIAL
4:15 p.m. Jake/Pamela check into Fontainebleau Hotel.
6:05 p.m. Room service delivers magnum of Champagne and appetizers and order is placed for breakfast the next morning.
7:40 p.m. Video of Jake/Pamela leaving front doors of hotel, getting in taxi
7:58 p.m. Arrive at Prime 112 for dinner.
8:21 p.m. Bartender runs tab, two tequilas for Jake, two Cosmos for Pamela.
8:25 p.m. Jake/Pamela seated, order another round of drinks.
8:42 p.m. Jake orders bottle of Cabernet and appetizers.
8:57 p.m. Accountant Barry Samchick calls Jake re trust account discrepancies.
9:00 to 9:20 p.m. (Approximate) Server, Diners, Maître de all observe argument at table.
9:21 p.m. Pamela calls Mitch Crowder, who will testify – subject to hearsay objections – that she said she was afraid Jake might kill her.
9:37 p.m. Without ordering entrees, Jake pays check. Server reports more arguing over “bank accounts.”
9:42 p.m. Taxi driver transports Jake/Pamela back to hotel, gives statement saying the couple argued the entire way. Remembers Pamela saying, “Don’t blame me for your thievery.”
10:04 p.m. Video camera records Jake/Pamela entering hotel. Lip-reading expert signs affidavit to the effect that Pamela said “Screw you, Jake” on steps.
10:12 p.m. Guest key card used when Jake/Pamela enter their suite.
11 p.m. to 1 a.m. Guest in adjoining room reports loud arguing from Jake/Pamela suite.
12:05 a.m. Suite receives ten-second call on house phone in lobby.
Time Uncertain: Eleven 11/2 ounce bottles of various liquors are consumed from the wet bar plus four bottles of beer.
1:57 a.m. Video camera captures Jake leaving poolside doors on way to beach. Gait is uneven, apparently intoxicated.
2:27 a.m. Jake’s laptop is accessed and opened to Barry Samchick’s email.
2:39 a.m. Pamela writes email on her laptop to bank president and security chief, accusing Jake of financial misconduct and asserting her fear of him.
3:00 a.m. 5:00 a.m. Medical Examiner’s approximate calculation of time of Pamela’s death.
6:12 a.m. Beach Patrol awakens Jake on Beach.
I skimmed the document. I’d seen it before but Willow had kept adding to it. Whenever a new piece of evidence was locked down – by either the state or the defense – Willow amended the timeline to approximate the order of proof.
A quick look and everything seemed fine. Except two things were new. “What’s this 10-second call from the lobby just after midnight?”
“Do you remember it?”
I searched my memory. “Yeah, I answered the phone. Pam was screaming so loud, I couldn’t hear anyone on the other end. After I shouted ‘hello’ a couple times, they hung up. That’s gotta be the 10 second call.”
Willow shrugged. It could mean something or nothing. Someone could have wanted to know if we were in the room. Or it could have been a wrong number.
“What the hell is this at 2:27 a.m.?” I asked. “I wasn’t using my laptop. I was conked out
on the beach.”
“We just got your laptop back from the state. Their expert determined that someone was looking at Samchick’s emails to you from earlier that evening. I had my people check it out, and they confirm it.”
“Well, isn’t it obvious? My laptop was in the suite. Pam was in the suite. I was on the beach. I’d told her what Samchick told me on the phone and said he was emailing the details later. She wanted to see what he had found, try to assess what Samchick could pin on her.”
“So Pam accessed your laptop?”
“Like I said, it’s obvious.”
“Your laptop is not password protected?”
“Of course it is. I have tons of attorney-client material on there.”
“Then you must have given the password to Pamela.”
The wood stork had found a half-full bag of Fritos on the pavement and was enjoying a snack. I was not enjoying anything.
I shook my head. “Pam didn’t have the password. No one did but me.”
“So you can see what the state will argue.”
“That I came back to the hotel after a short breath of air on the beach. That I read the emails from Samchick and realized Pam could put me away for misappropriating client funds. That I calmly and rationally decided – hence premeditation and first degree – to strangle Pamela to shut her up. Then I left again, trying to establish an alibi by sleeping on the beach.”
“That’s pretty much it.”
“So where’s the video of my coming back into the hotel to commit murder. Then going back out again? Last time I was seen, I was staggering out at 1:57 a.m. to take my constitutional on the beach.”
“The state will say you wandered around the side of the hotel to the 24-hour loading dock. They had several fish and bakery deliveries that night with doors opening and closing. Plus, no video cameras. The unions won’t permit it.”
“Pretty damn smart for a drunken half-assed lawyer.”
“Or just lucky. No key card was used to enter the room after you left. The state will say you knocked on the door…”
“Or rang the bell. The suite has a doorbell.”
“And Pam let you in.”
“She wouldn’t have. Not after the row we had.”
“Okay, if you have another idea…”
In the river, a rustbucket freighter sounded its horn. In the parking lot, the wood stork gathered itself, flapped its wings, and awkwardly took to the air.
“Try this on for size, Willow. Our suite had two floors. I don’t know how many rooms.”
“So…?”
“Either someone was already there when we got back from the restaurant. Or Pam let someone into the suite after I left.”
“Who? Why?”
“Someone good with computers. I’d told her Samchick was emailing me. She just had to see what, if anything, he had on her. So she asks a guy to hack my computer.”
“And he kills her? That makes no sense.”
“But at least it places someone in the suite after I left.”
“And this guy is…?”
“The witness you’re cross examining today.”
23
The Peeper
Mitch Crowder’s job on direct exam was to tote a pail of water without spilling it. Nothing fancy. No surprises. Just get across one salient point. Pamela called him from the restaurant the night of her murder, expressing the fear that I might kill her.
The state had only two problems. The statement was hearsay, and Crowder was a tarnished witness. If Emilia did her job, she could squeeze the testimony through the eye of the needle called a “hearsay exception.” If Willow did her job, Crowder would look like a rejected suitor and stalker maniac with as much motive to kill Pamela as yours truly, the saintly defendant. So going into today’s testimony, I was hoping for a draw, which in the criminal system, is a win for the defendant.
Crowder wore a friendly brown sport coat and an open collared shirt that did little to hide his bulk but nicely disguised the serpent tattoo running up his right arm. After he was sworn and gave his name, Emilia did what a smart prosecutor always does. She hung a lantern on her witness’s weakness before the defense had a chance to do it on cross.
“Let’s get right to it, Mr. Crowder, you have had some problems with the law in your distant past, correct?”
Distant past. Nice touch, Emilia.
“I was a hell raiser, sure.”
“Did you at one time work as a bouncer in a South Beach club?”
“Paranoia. Worked part-time when I was 20. Maybe 21.”
“Ever get into any physical altercations with drunk or boisterous patrons?”
“Comes with the territory.”
“So that’s a yes?”
“Yes, ma’am.”
The jurors were seeing Crowder on his best behavior. He’d never swung a baseball bat at their heads the way he did at me.
“Have you ever been convicted of a felony, Mr. Crowder?”
Ah, there we were. The question, that if answered properly, foreclosed the defense from any inquiry into the witness’s past indiscretions with the law.
“Assault and battery.”
Whoops. The proper answer would have been a simple yes. And Crowder wasn’t finished.
“But it wasn’t my fault,” he added.
Emilia forced a tight, little smile. All she wanted was that “yes” with no side dishes. That would have closed the door. Emilia must have prepped Crowder, but it’s funny how witnesses sometimes get all flustered once the spotlight is shining on them. Often, they say too much. Naming the crime and adding the semi-denial opened the barn door, and soon, it would be Willow’s job to chase the horses out.
Emilia cut to the heart of the matter. “On Saturday, June 8, did you have a phone conversation with the decedent, Pamela Baylins?”
“She called me, yes.”
“When did that call take place?”
“Between 9 and 9:30. At night. She was at Prime 112, a fancy restaurant on South Beach.”
Next to me, Willow tensed, drumming a pencil on the table.
“What was Pamela’s state of mind when she spoke to you?”
“Objection!” Willow leapt to her feet like a cheetah about to pounce on a gazelle. “Calls for speculation.”
“Sustained,” the judge ruled.
“I’ll re-phrase. What was the tone of Pamela’s voice?”
“Loud. But then, it was noisy in the restaurant.”
“Did she sound frightened?”
“Objection, leading.” Willow was still standing. The visual cue told the jurors that this entire line of questioning was a minefield.
“Sustained.”
“How did Pamela sound?”
“Frightened.” Even muscle-bound Crowder could take a hint.
“Objection and motion to strike. There’s no predicate that the witness is familiar with the decedent’s various tones of voice.”
“I’m going to allow that question,” the judge said. “Fear. Happiness. Excitement. Those sorts of things are within common perception.”
“So Pamela sounded frightened?” Emilia taking a victory lap with that one.
“Yeah, she sounded damn scared.”
“And what did she say to you in this loud, frightened voice?”
Bingo. The payoff.
“Objection, Your Honor. Classic hearsay.”
“Excited utterance exception,” Emilia fired back.
Judge Cohen-Wang chewed that over a moment. It was a close call. Some judges are “let-it-all-in” and some are “keep-a-lot-out” on evidentiary issues. Our judge was middle of the road, and I didn’t know how she would rule.
The statute only gives partial guidance, creating an exception to the hearsay rule when the speaker is “under stress of excitement” in reaction to a “startling event.” So, testimony that the deceased shouted “Charlie shot me!” would come into evidence. But the statement “Charlie said he loved me” would not.
“The court
finds the statement to be within the definition of the excited utterance exception,” Judge Cohen-Wang said. “Objection overruled. Mr. Crowder, you may answer the question.”
Damn. I knew what was coming and could only hope Willow, who now sat down, would battle back hard on cross.
“Pam was having dinner with Lassiter and she’d gotten away from the table to make the call. She said she was really scared. Said Lassiter was threatening her. Her exact words, best I remember them, were, ‘Mitch, I’m freaking out. I caught Jake dipping into client funds, and I think he might kill me.’”
Emilia paused a moment to let that sink in. Then, just in case it wasn’t one hundred per cent clear, she repeated, “‘I think he might kill me.’ Did you understand the ‘he’ to be Mr. Lassiter, the defendant?”
Technically, a leading question. Technically, objectionable. But there were half a dozen other ways to get the same information into evidence. So Willow kept her bottom glued to the chair.
“That’s who Pam was afraid of, yeah.” He pointed at me. “Lassiter. Guy sitting right there.”
Emilia had gotten what she wanted, but she wasn’t finished yet. She still threw a combination left hook/right jab at the bell.
“You’re a big man, Mr. Crowder, a weight lifter, correct?”
“I pump some iron, sure.”
“And the defendant is a big man, too?”
“Yeah. He goes about 245 or 250, I’d say.”
“Does he appear to be in good shape?”
“Maybe about 20 pounds heavier than when he played for the Dolphins, but I wouldn’t want him mad at me, if that’s what you mean.”
A three-bagger. I’m big, I used to hit people for a living, and even massive, ripped Mitch Crowder is afraid of me.
“And Pamela. What was her size?”
“Tall, but thin. About five-nine, maybe 125 pounds.”
“About half the weight of the defendant,” Emilia said, in case the jurors were weak at math.
“About that.”
“Your witness,” Emilia said, smiling at Willow the way a barracuda smiles at a mullet.
***
Willow stayed seated a long moment. She was ready but wanted the big lug to squirm just a bit before she launched into her cross-examination. When she got to her feet, she gave Crowder what might be called a tolerant smile. You see principals give that look to trouble-prone students.
