MD02 - Incriminating Evidence

by Sheldon Siegel

  Judge Vanden Heuvel is pleased when Payne sits down. With a little luck, her part in this case will be over by the end of the day. With a lot of luck, she’ll be able to get out the door and onto the freeway before the traffic gets heavy. “Thank you for your concise presentation,” she says to Payne. She turns to me. “Mr. Daley, it’s your turn.”

  Skipper leans over and whispers, “Keep it short.”

  “Your Honor,” I begin, “the evidence will show that the prosecution’s case rests on highly suspect circumstantial evidence. Mr. Gates was, in fact, in the hotel room at the Fairmont that night. As we will demonstrate, the prosecution simply cannot prove that Mr. Gates committed any of the acts of which he is accused.”

  Vanden Heuvel raises her eyebrows. The reporters stir.

  “Your Honor,” I continue, “this case is a setup. The prosecution knows it.” I assure her that we will punch so many holes in Payne’s case that by the end of the day, she’ll have no choice but to dismiss the charges. She isn’t buying a word of this, of course. I try to cast doubt on every piece of evidence. I litter my remarks with generous use of the words “contrived,” “shaky” and “unsubstantiated.” Judge Vanden Heuvel takes it all in. Five minutes later, I sit down.

  Judge Vanden Heuvel asks Payne to call her first witness.

  “The people call Inspector Elaine McBride,” she says.

  Solid choice. They’re leading with their strength. McBride strides to the front of the courtroom. Her bearing is professional, her expression stern. She acknowledges the judge. Her gray pantsuit is freshly pressed, her white blouse starched. She’s sworn in and takes her seat in the witness box. She adjusts the microphone with the confidence of a woman who has testified at hundreds of trials. She states her name for the record and nods to Payne, as if to say “Let’s get this show on the road.”

  Payne approaches her. “Inspector McBride,” she begins, “how long have you been with the SFPD?”

  She tugs at the microphone. “Eighteen years.”

  “And how long have you been a homicide inspector?”

  “Eight months. I was the head of the sex crimes unit for six years before I was promoted to homicide inspector.” Payne begins to walk her through her résumé. I stop her after a moment and stipulate to her credentials. We aren’t going to win any points by trying to attack her experience.

  “And you are the homicide inspector assigned to investigate the death of the victim in this case, Johnny Garcia?”

  “That’s correct.” She confirms that she was the first homicide inspector to arrive at the Fairmont. She describes the scene. Garcia’s body. The handcuffs. The duct tape. The champagne bottle and glasses. “The police officers had secured the area,” she says. “The paramedics had arrived. A team from the coroner’s office was on the way.”

  Payne turns and looks at Skipper. “And did you have an opportunity to interview the defendant?” She’s using one of McNulty’s favorite tricks. She’ll never refer to Skipper by name. Neither will McBride.

  “Yes. The defendant admitted that he had been present in the hotel room the entire night.”

  The first score goes to the prosecution. She’s placed Skipper at the scene.

  “And did the defendant offer any explanation for what happened?”

  “No. He said he fell asleep in front of the television.”

  “Did he hear anything?”

  “No.”

  “See anybody come in?”

  “No.”

  “Hear anybody knock on the door?”

  Enough. “Objection, Your Honor. We get the idea.”

  “Sustained. Move along, Ms. Payne.”

  “Just so we’re clear on this, Inspector, when you arrived there was a dead body in the bed and the defendant admitted he had been there the entire night.”

  “Objection. Asked and answered.” I’m trying to break up her rhythm.

  “Sustained.”

  Payne takes this in stride. “Inspector, did the defendant offer any explanation for how the body got there?”

  “No. He had no explanation, plausible or otherwise.”

  I think I see the hint of a smile on Payne’s impassive face. “Let’s talk about something else for a moment,” she says. She takes out an enlarged photo of Johnny Garcia handcuffed to the bedposts. She points to the handcuffs. “Inspector,” she says, “did the defendant have any explanation for how the victim became handcuffed?”

  “Objection. Asked and answered. The witness has already testified that Mr. Gates did not offer an explanation with respect to this issue.”

  “Sustained.”

  Payne pouts. She leads McBride through an explanation of how Skipper’s fingerprints were found on the handcuffs. McBride cannot account for the handcuff key found in the toilet. Payne takes her through a description of the duct tape found on Garcia’s eyes, nose and mouth. She has her describe the search of Skipper’s house. Finally, she takes her through an item-by-item inventory of the photos and Hustler magazines they found in Skipper’s study. I object sporadically and inconsequentially. McBride is on the stand for more than an hour.

  At eleven-fifteen, Skipper jots a note that says “Can you stop this?”

  I shake my head. I can slow her down, but I can’t stop her.

  Finally, Payne decides she’s extracted everything that she can from McBride. “No further questions for this witness,” she says. She got what she needed, and then some.

  I stand, button my jacket and approach McBride. I look at the picture of Johnny Garcia’s body. “Inspector,” I say, “you have testified that Mr. Gates’s fingerprints were found on the handcuffs and the duct tape.”

  “That’s correct.” The voice of authority.

  “Did Mr. Gates offer an explanation as to how his fingerprints found their way onto the handcuffs and the duct tape?”

  “Mr. Gates indicated that he had tried to remove the handcuffs and did, in fact, remove the duct tape.”

  Just what I wanted. “I see. Isn’t it therefore logical to conclude that Mr. Gates got his fingerprints on the duct tape when he removed it from the victim’s face? And isn’t it also logical to conclude that he got his fingerprints on the handcuffs when he attempted to remove them?”

  “Objection. Leading.”

  Right objection, wrong grounds. On cross-exam, you can lead the witness. In fact, you’re supposed to do it. She should have objected because it was a speculative question. That’s a no-no.

  Vanden Heuvel makes the right call. “Overruled. The witness will answer.” She glances at Payne. “Next time, Ms. Payne, when Mr. Daley asks a speculative question, you might try objecting on those grounds.”

  A small victory. Payne’s fair skin reddens.

  McBride says, “Anything is possible, Mr. Daley. And it still doesn’t explain the key that was found in the toilet.”

  It’s a fair point. “But you didn’t find any fingerprints on that key, did you, Inspector?”

  “No. It was too small to show any prints.”

  Time for one more quick trip through the looking glass. “Inspector, is it possible that the person who brought Mr. Garcia’s body into Mr. Gates’s room may have pressed the handcuffs against Mr. Gates’s fingers while he was asleep?”

  McBride looks at Payne, who gets the message. “Objection. Speculative.”

  “Sustained.”

  “Isn’t it possible, Inspector, that somebody who wanted to set up Mr. Gates may have drugged him and brought Johnny Garcia’s body into the room? And isn’t it possible that the same person may have caused Mr. Gates’s fingerprints to have been placed on the handcuffs?”

  Before Payne can object, McBride says, “That’s preposterous, Your Honor. Mr. Daley is trying to concoct a scenario where anybody in the world could have framed Mr. Gates that night.”

  That’s exactly what I’m trying to do. “Your Honor,” I say, “would you please ask the witness to answer the question?”

  “Objection,” Payne shouts. “Specu
lative.”

  Murmurs in the gallery. Vanden Heuvel pounds her gavel. She points it toward the reporters in the jury box. “The objection is sustained. There will be order in my courtroom.” She turns back to me. “Any further questions for this witness, Mr. Daley?”

  “No, Your Honor.”

  Judge Vanden Heuvel slams her gavel and recesses court for lunch.

  “Jesus Christ, Mike, you should have taken McBride apart.” Ed Molinari is offering some helpful suggestions on my courtroom technique in the consultation room behind Judge Vanden Heuvel’s courtroom. At the same time, he slides into one of the heavy wood chairs and unwraps a pastrami sandwich.

  Skipper ignores the bag with his lunch and paces. He’s been nervous all morning. “Dammit, Mike,” he says, “you’ve got to be more aggressive. You should have taken McBride by the balls and squeezed.”

  Such a delicate way with words. “What did you think I was going to prove today? McBride was up there to place you at the scene and to confirm that your fingerprints were on the handcuffs. Those are the facts. You were at the scene. Your fingerprints were on the handcuffs. We’ll go to war about how your fingerprints got there at the trial. For the moment, all they need to show is that you were there and that you had contact with the body. And it doesn’t help that they found the photos and magazines in your study.”

  He looks right through me and doesn’t respond. Then he takes the white bag that contains his sandwich and soda and hurls it across the room into the trash can.

  The afternoon session doesn’t improve when Rod Beckert takes the stand. Payne hands him a copy of his autopsy report, which he holds as though it is the Super Bowl trophy. I stipulate to his expertise in pathology as soon as he takes his seat in the witness box. There’s no sense in giving him twenty minutes to read his résumé into the record. He testifies that Johnny Garcia died of asphyxiation sometime between one and four A.M.

  “Was it a painful death?” Payne asks.

  I could object because it is a speculative question. I would look like an idiot if I did.

  Beckert strokes his beard. “Initially, it would have been quite painful,” he says. “After a few moments, the victim would have lost consciousness. At that time, it is very difficult to determine what, if anything, the victim is feeling.”

  “Dr. Beckert,” Payne says, “are you absolutely sure Johnny Garcia died of suffocation?”

  “Yes.”

  She turns away and heads toward her chair. She’s about to sit down, when she turns back to him. “Doctor,” she says, “did you find traces of any drugs in the victim’s bloodstream?”

  He acts as if he didn’t expect the question. He flips through his report. He pushes his glasses down to the tip of his nose. “Yes, Ms. Payne,” he says. “We found traces of heroin.”

  “A substantial amount?” She’s trying to undercut the argument I’m about to make that he may have OD’d.

  “Not enough to kill a young, healthy male.”

  “Did you find any other drugs?”

  “Yes. We found traces of gamma hydroxy butyrate in his bloodstream, commonly known on the street as GHB.”

  “What happens when you take GHB, Doctor?”

  “It induces unconsciousness,” he replies. “It’s frequently seen in date-rape cases.”

  “So, Doctor, in addition to being bound and gagged, the victim was high on heroin and was rendered unconscious by a date-rape drug.”

  “That’s true.”

  “But it is your conclusion that he died of asphyxiation.”

  “That is my conclusion, Ms. Payne.”

  “No further questions.”

  Beckert is still clutching his report when I approach him. “Dr. Beckert,” I begin, “I would like to direct you to page thirteen, which indicates that you found heroin in the victim’s bloodstream.”

  “That’s true, Mr. Daley.”

  “And, in fact, there was a substantial amount of heroin in his bloodstream, wasn’t there?”

  “No, Mr. Daley. I said there were traces of heroin in his bloodstream. I also said that there wasn’t enough to kill a young, healthy male.”

  “And you understand, of course, that the exact amount of heroin in a person’s bloodstream would determine whether a person has overdosed.”

  “Yes.”

  Here goes. “Isn’t it possible that Johnny Garcia died of an overdose?”

  “No, Mr. Daley, it isn’t possible. There simply wasn’t enough heroin in his system to cause an overdose. The victim died of asphyxiation.” He nods as if to say “That’s all there is to it.”

  We joust over the level of heroin in Garcia’s bloodstream. He doesn’t give an inch, although I do get him to acknowledge that other highly qualified pathologists may disagree with his conclusions. We go through a similar exercise over the level of GHB in Garcia’s system. Beckert acknowledges that GHB can kill you if you take enough of it but insists that Garcia ingested only a trace of that substance, too. I decide to try one more end run. “Doctor, isn’t it possible that the combination of the heroin and the GHB created a reaction that caused Johnny Garcia’s death?”

  “No, Mr. Daley. It didn’t happen that way. He simply didn’t have enough heroin or GHB in his system to cause the reaction that you suggested.”

  It’s the best I can do for now. “No further questions, Your Honor.”

  Payne trots out Sandra Wilson to confirm that all of the evidence was gathered in accordance with proper police procedure. I elect not to cross-examine her.

  Payne finishes up with Roosevelt Johnson, who describes the contents of the storage locker in persuasive detail. Photos of handcuffed, nude women. Hustler magazines. The reporters in the jury box seem to be enjoying themselves. I catch the police beat reporter from the Chronicle winking at his counterpart at the Oakland Tribune. I can already picture the headlines in tomorrow’s paper.

  At a quarter to three, Payne asks Roosevelt whether he believed there was any connection between the pictures and the items found in the storage locker and Johnny Garcia’s case. The judge overrules my objection.

  “Yes,” Roosevelt says. “I believe Mr. Gates needs help. I believe he likes to engage in alternative forms of sexual stimulation. I believe he likes to tie up and drug his victims. Then he has sex with them.”

  “Is that what happened in this case?”

  “Objection. Speculative.”

  “Sustained.”

  “I’ll rephrase. Do you have a theory about what happened in this case, Inspector?”

  “One of the sexual encounters got out of hand. Unfortunately, Johnny Garcia was in the wrong place at the wrong time. He paid for his mistake with his life.”

  Payne says she has no further questions. My cross-examination lasts for only a few minutes. I can demonstrate that Roosevelt’s conclusions are speculative. However, there’s no way I can discredit his testimony.

  Payne and I make our perfunctory closing arguments. She says it is a simple case of an evil man who lured in a teenager for sex and then killed him. I argue it’s all a setup.

  Judge Vanden Heuvel doesn’t hesitate. “I have concluded that there is sufficient evidence to bind the defendant over for trial.”

  Skipper doesn’t move.

  Vanden Heuvel consults with her bailiff. “May we assume,” she says to me, “that Mr. Gates will waive time?”

  “No, Your Honor,” I say.

  Vanden Heuvel gives me a puzzled look. “Are you sure about this, Mr. Daley?”

  “Yes, Your Honor.”

  “May we assume that you’ll be asking for a change of venue?”

  “No, Your Honor,” I say. “Mr. Gates would like to have his case heard in San Francisco. As DA, he has come to respect the fairness and judgment of San Francisco juries.”

  I swear my nose is getting longer as I say these words.

  Vanden Heuvel studies her calendar. I’d bet almost anything she figured this case was heading out of town. Now we’ve gone and gummed up the works.
She confers with her bailiff. Finally, she says, “Judge Joanne O’Donnell Kelly is supposed to finish a jury trial two weeks from Friday. Her calendar should be free on Monday, October eleventh. I am setting a trial in her courtroom on that date.”

  “That’s two weeks from Monday,” I say.

  “That’s right, Mr. Daley. You asked for an early trial date, and now you’re going to get it.”

  I glance at Skipper. The judge says, “Is there a problem, Mr. Daley?”

  “One moment, Your Honor.” Two and a half weeks to prepare for a murder trial is a very short period of time. Judge Kelly is a veteran of at least thirty years on the bench. She was one of the first women appointed to the San Francisco superior court. She’s another former prosecutor who speaks her mind and spends most of her time trying to negotiate plea bargains. She prides herself in keeping a clear docket. She isn’t the most thoughtful jurist on the San Francisco bench, but things move along very quickly in her courtroom. I ask the judge for a moment and I confer with Skipper. “Are you sure about this?” I ask.

  “It’s perfect,” he says without hesitation. “Go for it.”

  I turn back to the judge and say, “We’ll be ready, Your Honor.”

  “You don’t look great,” Rosie observes after we’ve returned to the office. I feel much worse than I look.

  “On top of everything else,” I say, “Ann read me the riot act.”

  “You were expecting some other reaction from her?”

  “It’s a god-awful case,” I say.

  She shrugs. “You’ve known that from the start. The evidence is stacked against us. It’s a case we can’t win for a client we can’t stand.”

  “That pretty well covers it.”

  “And how is this different from most of our cases?”

  “It isn’t.” I reflect for a moment and add, “You know, Rosie, there is something very odd about Skipper’s demeanor.”

  “How’s that?”

  “Most of the evidence cuts against him, but he isn’t acting like a guilty man. Not a bit. He hasn’t changed his story. He’s adamant about a plea bargain.”

  “I’ve noticed the same thing,” she says. “Guilty people waver. They keep adjusting their story to make it a little better each time. He isn’t doing that. He’s indignant—even angry at times. That’s more likely to be a sign of someone who’s been wrongly accused.”