Alibi

by Sydney Bauer

  “Yes.”

  “So if we cannot prove the offender is of a large, athletic build, is there anything that suggests he might be otherwise—perhaps even the opposite—small, lean, slender?”

  “Yes,” said Gus.

  And there it was.

  The courtroom gasped—sucking in an almighty intake of air that seemed to time itself with a long, simultaneous moan from the heating. The press lifted their heads from their pads to look at one another in astonishment, and the jury, almost to a number, sat transfixed, their eyes on James, their entire predisposition of guilt flying swiftly out the window.

  “Order!” cried Stein.

  “Objection!” yelled Katz, but by the look on his face David guessed that he was not too sure what to object to.

  “Sit down, Mr. Katz,” said Stein. “I want to hear this. Please go on, Doctor.”

  Svenson paused until the rumblings abated, before lifting his head and moving on.

  “I make the conclusion the offender is small from the nature of bruising on the neck.”

  “Objection!” Katz was up again. “Your Honor, the witness gave no testimony of this nature when asked specifically about said bruising earlier today. He . . .”

  “Yes,” interrupted Stein. “But if I recall, Mr. Katz, you asked only about the perpetrator’s strength, not his size. The witness will continue and I would ask you to refrain from objecting until you have a valid argument, Mr. Katz.”

  And so the Kat sat, his recent look of invincibility replaced by a churlish scowl.

  “Go on please, Doctor,” said David. “You were telling us about the neck and the bruising and . . .”

  “Yes. The bruising pattern tell us the victim attacked from behind,” said Gus, holding up his hands in that circular gesture once again. “With the neck clasped with fingers at front, thumbs around the back. But in the victim’s case,” said Gus, raising his right arm to point to one of the large photographs before him, “the bruising stop at the side—there.”

  “So the thumbs did not reach around the circumference of the neck?”

  “No.”

  “Only to its sides, just under the ears, as the bruising shows here,” said David, now pointing to the blown up image as well.

  “Yes.

  “Because they were too small.”

  “Yes.”

  “And short.”

  “Yes.”

  “And slender.”

  “Yes.”

  David did not miss a beat.

  “Mr. Matheson!” he called to his client, the fresh look of hope on his young face now undeniable. “Would you hold up your hands for the court please, angling them toward the jury so that . . .” David thought again. “Your Honor, if it would please the court, I would like to ask that my client be given permission to approach the jury and show them his hands.”

  “Objection!”

  “No, Mr. Katz,” snapped Stein. “You are the one who favors close-ups,” he said, gesturing at the macabre images before him. “I will allow it. You may approach the jury, Mr. Matheson.”

  And so James rose to his feet—his right hand giving the slightest of twitches. And as he stood, he straightened his back and moved around the defense table to walk slowly, carefully, toward the twelve men and women who would decide his future.

  The room was still, the heating now silent, the only sound in the room was the click of James’ heels on the hard floor.

  David watched the jury and was relieved to see that not one—not a single one of them—recoiled from the approaching stranger. In fact, if anything they leaned in, toward him, as if wanting to see proof that this good-looking young kid did not kill the girl he professed to have loved.

  And so, as James held up his hands—his long, strong, olive-skinned hands—the jury stared and nodded in amazement, Josh Bergin at one point appearing as if he was about to lift his own young hand in a high five of victory with the defendant. And James nodded, as if in thanks to each of them, for their willingness to see and trust and believe.

  79

  That night David caught up with Joe at Bristow’s—a snug, stained-glass-windowed Downtown Crossing bar that David had been frequenting since college. They chose a corner booth, away from the younger crowd that hovered around the fireplace at the front end of the bar, drinking their beer and sharing a huge platter of French fries and onion rings to go with their ribs and burgers.

  “You kicked ass today, David,” said Joe, lifting his glass. “You should have seen the look on the Kat’s face when Stein said your client could approach the jury.” Joe and Frank had sneaked into the back of the courtroom after lunch. “I thought he was going to puke.”

  But David said nothing, a little uncomfortable with the praise. “What’s up?” asked Joe, obviously reading the concern on his friend’s face. “I know the Kat gained a little on his redirect, but that thing with the hands, David, that was pure genius.”

  Joe was right. Katz had opted to re-cross Svenson hoping to regain some ground—which he did, by getting the ME to admit that his assumption that the killer’s hands were “small” was just that—an assumption made on the evidence available. Svenson did stress, however, that given the bruising pattern, it was “highly unlikely” the victim was attacked by a large-handed man, after which the Kat cut his losses and sat down.

  “It’s not that,” said David.

  “Is it Jones, because Sara told me she spoke to him late this afternoon and he was doing okay.”

  “He is. He spent the afternoon hanging out with Mr. Lim, took him out to lunch, despite the weather.”

  “So you told Lim what Nagoshi said?”

  “Yeah, I called him early this morning. I told him John Nagoshi would be coming to see him personally, to apologize and make things right. The guy speaks reasonable English but I still got the feeling he had trouble taking it all in. But Sawyer has taken him under his wing so . . .”

  “The kid’s all right,” said Joe.

  David nodded. “We were wrong about him, Joe.”

  “It happens.”

  They took another sip of their beers and gazed over at the young people at the front of the bar, drinking, laughing, their voices getting louder with every bitter pint.

  “So what is it then?” asked Joe at last.

  “What’s what?”

  “What’s bothering you? If it’s not Jones then . . . ?”

  “It’s nothing. Just something about one of tomorrow’s witnesses, and a discussion I had with Sara a while back,” said David.

  “Isn’t the Kat calling Barbara Rousseau tomorrow?”

  “Yeah. Which is bad enough, but at least we know what she is going to say.”

  Mannix said nothing, allowing David to take his time.

  “It’s that Professor Nancy Wakeford, you know the fetal expert Katz is calling to establish viability.”

  “You have a strong legal argument against that one, David.”

  “I know, and we’ve prepared our cross well. In fact, I thought it might be better if Sara questioned Wakeford. You know, the female angle and all.”

  “So you two have been talking about this issue?” asked Joe. “The whole idea of when a kid stops being a clump of cells and starts to become a human being.”

  “Something like that.”

  Joe nodded. “This isn’t what this case is about, David, at least not for you and Sara. This is about saving your client, not about what either of you may believe personally.”

  “And if it was you? Could you get up there and argue that some unborn kid was basically nonexistent in the eyes of the law?”

  “I’m a homicide detective with four kids, David—I’m not the one to ask.

  “If it helps,” added Joe after a time, “there is another way you could look at it.”

  “How so?” asked David.

  “Well, it seems to me that the child is not invalid if it saves his father’s life.”

  And David nodded, wondering how Joe always managed to say
the right thing at the right time, no matter how dire the circumstances.

  “This job sucks,” David responded at last, lifting his beer to his lips and draining the rest of his glass in one gulp.

  “Yeah well, it could be worse,” said Joe, doing the same before reaching into his pocket and throwing a fifty on the table. “Instead of sharing this fine drink with me, you could be at home giving yourself a facial and manicuring your toenails like your fancy fucking opponent.”

  “It’s called a pedicure,” smiled David. “And I was gonna get to that as soon as I get out of here.”

  And Joe smiled in return. “I won’t keep you then.”

  80

  The weather was closing in. David looked to the windows. The high, narrow openings on the far right-hand side of the room were now covered in snow, the result being an eerie white light that beamed directly on the jury below.

  The morning session for the third day of trial had been delayed an hour to allow for all the jury to be present. There was talk of putting them up in a nearby hotel if the snow got much worse, which was looking more and more likely by the minute.

  David was uneasy. They knew this day would be tough—the accomplished Professor Nancy Wakeford followed by the beautiful Barbara Rousseau. While they knew their argument for fetal viability was backed by reams of documented precedent—information that proved Massachusetts law did not generally acknowledge a fetus as a “life” until the unborn child had reached the critical benchmark of twenty-three weeks—they feared Katz would use the professor’s expertise to tear at the jury’s heartstrings by detailing the formation of Jessica’s thirteen-week-old pregnancy—and it did not take long for them to be proven right.

  “Ladies and gentlemen of the jury,” said Stein after entering, flipping his robe, and taking his seat at the podium. “I want to thank you for all of your kind efforts to be here. I know it took me over half an hour to walk ten paces this morning so . . .”

  And the jury laughed—appearing happy to start the day on a lighter note.

  “Having said that, I know you are all anxious to get moving so . . . Mr. Katz,” said Stein, turning his attention to the ADA. “Are you ready to call your next witness?”

  “Yes, Your Honor,” answered the Kat, looking as suave as ever in a dark charcoal suit and a crisp white shirt. “The Commonwealth would like to call Professor Nancy Wakeford, but before the professor so kindly graces this court, I wonder if I might ask the clerk’s assistance in reassembling those very helpful easels, so that this witness might refer to some highly specialized images as part of her expert testimony.”

  David looked at Sara, both knowing their worst fears had been realized.

  “It’s all right,” she whispered to him as the Kat supervised the assembly of his props like a stage manager commanding his “hands.” “I’ve got this covered.”

  And he nodded, hoping to all hell that she was right.

  The Kat began once again by asking about the professor’s credentials—a long, drawn-out process, which, in the very least, David suspected, was boring the jury senseless.

  Wakeford—an attractive woman in her early forties with neat red hair and wire-rimmed glasses—spoke of her graduating with high distinction from Yale’s highly respected School of Medicine where she specialized in obstetrics, gynecology and reproductive sciences. From there she had completed further courses in fetal medicine and developed a special interest in pregnancies involving children with prenatal disabilities. At one point she even pointed to her semi-regular appearances on Oprah, which, David noticed, had the previously lethargic jury sitting at attention once again.

  “Professor,” Katz went on, “you have seen Dr. Svenson’s autopsy notes in regards to this case, have you not?”

  “Yes, Mr. Katz. In fact, I have studied them in detail.”

  “Right. And you agree Jessica Nagoshi’s unborn child was approximately thirteen weeks of age?”

  “Yes, if not perhaps a fraction older. The fetus in question was almost four inches long, which suggests a fourteen-week-old fetus—but close enough or thereabouts.”

  “I see,” said Katz before looking up to Stein. “Your Honor, at this point I would like to ask the court’s permission for the witness to leave the stand and use this pointer,” he said, holding up the long narrow stick in his right hand, “as a guide so that the jury might learn more about the child’s development at the time of its murder.”

  “Objection!” yelled Sara, getting to her feet. David had told her to take control of this witness from the outset, and the jury seemed pleased to see this new, attractive player throw her hat into the ring.

  “First of all, Judge,” she began. “The fetus should be referred to as a fetus and only as a fetus. A thirteen-week-old fetus is a long way from becoming a child by pure medical definition, as I am sure Professor Wakeford would agree.

  “Secondly, the ADA’s reference to ‘murder’ is both inappropriate and extremely presumptuous. Mr. Katz promised this court some months ago that he would convince it of this fetus’ viability, but unless I missed something in the last sixty seconds, I am afraid his argument is yet to be established.”

  The jury smiled. They liked this new girl. She was quick and smart and fast.

  “She’s right, Mr. Katz,” said Stein. “On both counts. The fetus shall be referred to as a fetus for the remainder of this trial and you, Mr. Katz, will refrain from any dramatic hyperbole in your examinations.”

  “Yes, Judge,” said an obviously displeased Katz. “But I am afraid you are yet to address my request regarding . . .”

  “I was getting to that, Mr. Katz,” interrupted Stein. “The witness may leave the partition, but the moment I sense this is turning into a three-ring circus, I will shut you down. Do you understand, Mr. Katz?”

  “Yes, Your Honor,” he said, before handing the pointer to his witness and ushering her on to the floor.

  The next hour was nothing short of disastrous, as Wakeford described the thirteen-week-old fetus in detail, from the tip of its tiny head to the soft toenails now forming on its miniature but visible feet. The witness spoke of its weight—about an ounce, its head—now the third of the size of its body, its functioning kidney and urinary tract, and developing respiratory and digestive systems.

  “The baby’s face is looking more and more human,” she went on. “The eyes have moved closer together and the ears are near their normal position on the side of the head. At this stage the baby’s heart is pumping about twenty-five quarts of blood each day. The liver is making bile and is supervising the activity of a fully working spleen. At thirteen weeks the fetus is also able to absorb sugar and pass urine.”

  “Amazing,” said Katz, shaking his head. “And is this . . .” he said, feigning interest in one of the blowups, “is that hair I see on this fetus’ head?”

  “Yes.” Wakeford smiled. “And if this picture was magnified further,” she said, directing her pointer to the image, “you would also see fingerprints and the beginnings of eyebrows.”

  “And what about its behavior, Professor? Is the child . . . I’m sorry, the fetus, doing anything significant that it had not been doing, say, a week or even days previously?”

  “Yes,” said a satisfied Wakeford once again. “In fact, thirteen weeks is a wonderful benchmark. At this stage the fetus is acquiring reflexes. It will respond to touching the palms by closing its fingers, or curling its toes if you tickled its feet.”

  “Go on, Professor,” said Katz, milking the woman’s testimony for all it was worth.

  “At thirteen weeks the fetus also begins to suck its thumb, as can be seen here,” she said, moving to another shot and pointing her stick in delight. “And it smiles for the very first time,” she said, her eyes drifting toward the jury in delight. “And more importantly, at least for the parents concerned, thirteen weeks is the watershed for miscarriage or lack thereof.”

  “I don’t understand,” said Katz, scratching his head, David and Sara both
knowing that he knew damn well what his witness was referring to.

  “At thirteen weeks, Mr. Katz, the mother’s chances of miscarriage falls to an extremely low 0.9 percent.”

  “I see,” smiled Katz, like an expectant father himself. “So what you are saying is that the fetus in question, Jessica Nagoshi’s unborn son, was well on the way to becoming a potentially happy, extremely healthy, little boy.”

  David heard his client let out a sigh beside him.

  “Most certainly,” said Wakeford before converting her own smile to a fresh expression of sorrow. “I have dealt with many high-risk pregnancies, Mr. Katz, but this fetus was as healthy as can be.”

  “Until someone killed his mother,” said Katz.

  “Yes.”

  “And shut down all those wonderful developing systems.”

  “Yes.”

  “And sent the unsuspecting fetus into cardiac arrest.”

  “I am afraid so, Mr. Katz,” she said, shaking her head, before stealing a glimpse at the defendant. “I am afraid so indeed.”

  “Just one more question, Professor. You mentioned earlier that there was a possibility this fetus was closer to fourteen weeks, is that correct?”

  “Yes.”

  “And is there anything significant about development at fourteen weeks that could be relevant to this case?”

  “Yes, Mr. Katz. You see at fourteen weeks, the fetus begins to hear . . . and feel.”

  “Incredible,” said Katz, now making his way across to the jury. “Can you give us an example of this feeling sensation from inside the womb?”

  “Well, if a mother was to prod her belly, the fetus would be able to feel it, and respond by moving about. Some mothers even report ‘quickening’ or flutters of movement as their unborn child shifts about inside them.”

  “I see,” said Katz, now standing straight in front of the twelve. “So if they can feel the prodding, would it be the case they can feel other sensations as well?”

  “Yes,” said Wakeford, her eyes now downcast. “At fourteen weeks they start to feel pain.”

  “So you are saying it is possible this fetus felt the process—the pain—of its own demise?” said Katz, now looking each of the jury in the eye.