“That’s accurate.”
“In your analysis, what did he do with the gun?” Spencer couldn’t object to this line of questioning even though it was speculation. He had put Tony on the stand in part to explain how the murder occurred. He would be annihilated in each juror’s mind if he now objected that his own witness was speculating on that exact issue.
“He probably tucked it in his pants or a pocket. It’s not a particularly large weapon.”
“Before the three individuals saw him from their windows?”
“Sure.”
“And is it accurate that there is no other physical evidence linking the defendant to this crime-no DNA evidence, no fingerprints, no hair fibers-other than the fact that he was present on that street and was seen kneeling over the victim after he was shot?”
Tony Severino took a deep breath. He didn’t want to answer the question. “Do you mean other than the fact that he was the only person in the area when Carl Robertson was murdered?”
Jack didn’t waste time arguing with him. He went directly to the judge.
“Your honor, I asked a question that calls for a yes or no answer. Would you instruct the witness to answer the question?”
“Answer the question, Mr. Severino.”
“No. There was no physical evidence other than the fact that the defendant was identified leaning over the body moments after Carl Robertson was shot.”
“Thank you, Detective. In your analysis of the crime scene, did you assume that the murderer was close to the deceased at the time of the murder?”
“Yes.”
“How close?”
“Within a few feet.”
“How did you determine that?”
“The witnesses came to the window immediately and he was already kneeling over the deceased. He had to be very close. There was no time to come from somewhere else.”
So far it was plausible to think that Benny could have shot Carl, taken his money, and stashed the gun before any of the three eyewitnesses reached their windows and looked out and saw him. Anything else would have been implausible in that short a time. Jack looked at the jury just to make sure they were still awake. They were listening intently; they wanted to see where this was going. Only Jack knew that he now had Tony Severino on that dead-end street.
“The bullet that you showed the jury and that counsel introduced into evidence as exhibit number 6, I believe, was taken from the deceased’s skull-is that right?”
“That’s right.”
“Now, that bullet before it is fired is in a shell casing, right?”
“Right.”
“And when it is fired from that Glock nine-millimeter the shell is ejected, right?”
“Yes.”
“And it lands in the immediate area where the gun is fired?”
“Usually, yes.”
“I’m not sure I understand that answer. It pops right out, doesn’t it?”
“Yes, but it could roll away if the surface was uneven or something.”
“Was the surface of Seventy-eighth Street and East End Avenue uneven?”
“Not that I noticed, no.”
“You searched the immediate area for that shell casing, didn’t you?”
“Yes.”
“But you didn’t find a shell casing, did you?”
“No.”
“Did that lead you to any conclusions?”
“Yeah. He must have picked it up.”
“Who’s ‘he’?”
“The defendant.”
“Let me see if I understand this. A shot rings out. Three people hear it and go to their windows immediately and they see a man kneeling over the deceased. From their observations, he doesn’t have a gun, he doesn’t take anything off the deceased, and he’s not searching on the ground for an empty shell casing. It is your theory that before all three of those people got to their windows and looked out, he had found the money, taken it and stashed it somewhere on his person, concealed his gun somewhere in his clothing, searched and found his empty shell casing, and also concealed it in his clothing. Is that accurate?”
“That’s pretty much it.”
“Pretty much it, or is that it? We want to be precise here, Detective. This is a murder trial.”
Spencer Taylor finally caught wind of the fact that his witness was floundering.
“Objection, your honor. He’s badgering the witness.”
“Overruled. Answer the question, Detective.”
The objection had given Tony Severino time to think. He tried to squirm out of the trap Jack had set for him.
“There is a possibility that he didn’t look for the shell casing and we just couldn’t find it.”
It was too important a point for Jack to let go unchallenged.
“How many police officers did you have there that night?”
“I don’t know exactly. A lot.”
“A lot?”
“Yes.”
“How many of them searched the area with you?”
“I don’t know for sure. Several.”
“Is several the same as a lot?”
“I don’t know. I don’t know. I’d say a lot of officers were looking for that shell.”
“You testified just a few moments ago that it was your conclusion that the defendant searched for the shell, picked it up, and put it in his pocket, correct?”
“That’s correct.”
“Then you said there was a possibility that the defendant didn’t look for the shell casing and you and your officers couldn’t find it, right?”
“Yes.”
“Are you changing your opinion here today in court, Detective Severino?”
The jurors were on the edge of their seats waiting for the answer. Even the judge was leaning over watching the witness intently.
“No. I’m not changing my opinion.”
“And your opinion was that the defendant took the time to look for the casing, found it and put it in his pocket?”
“Yes.”
“Because you and a lot of other police officers combed the area and no shell casing was there, right?”
“That’s right.”
“No further questions, your honor.”
“Redirect, Mr. Taylor?”
“Yes, your honor.”
Spencer Taylor knew his witness had been beaten up pretty badly. He didn’t want to make things worse on redirect by going back over the same ground, but he did have one point to make.
“Detective Severino, what did both Mr. Cook and Mr. Frazier tell you the defendant did when he saw them?”
Both Cook and Frazier had already testified to these facts in court, so Jack couldn’t object on the basis of hearsay.
“He fled.”
“He fled from the scene of the crime?”
“Yes.”
“No further questions.”
It was lunchtime when Tony Severino slithered from the stand and the judge recessed the proceedings. Jack stayed in the courtroom to go through Dr. Wong’s exhibits in detail. He knew the coroner was probably coming up next, and he wanted to be ready. Luis stayed with him.
“You were right, Jack,” Luis said. “This is your courtroom. You owned that man today. I don’t know why I ever doubted you.”
“Don’t get your hopes up too high, Luis. We still have a long way to go. Trials can turn on a dime-it’s the nature of the beast.”
Jack had subpoenaed all the prosecution’s witnesses before the trial started as a precaution. It was a habit he’d gotten into a long time ago as a civil defense attorney. He’d sent along a letter telling them that if they called and left a number where they could be reached during the day, they wouldn’t have to appear in court the first morning that testimony began and hang around potentially for days until they were called. Everyone always rang-the incentive was too great not to. The number Jack had given was Dorothy’s, Henry’s aunt.
Jack phoned Dorothy-who among other things was doing an excellent job as his temporar
y secretary-and asked her to get in touch with Nick Walsh and tell him to be at the courthouse at nine o’clock the next morning. If Spencer rested at the end of the day and Henry wasn’t back with witnesses, he needed a warm body to put on the stand. Maybe Nick Walsh would give him something he didn’t expect. Frankie O’Connor had told him that Nick was a legend in the police department. Joe Fogarty had said he was one of the best homicide detectives the department ever had. He was Tony Severino’s partner. Yet Tony never mentioned his name during his entire testimony. Why?
Leland Pendergast had been the coroner of the City of New York for twenty years. He knew every politician in the state and walked and talked with an air about him that suggested power and influence. His favorite attire were expensive, custom-made suits that padded his shoulders and tapered his waist-efforts on his part to hide most of the fat on his beefy, six-foot frame. He couldn’t hide his face, though, and those thick jowls.
Leland Pendergast strode confidently into the courtroom on the afternoon of the fourth day of Benny Avrile’s murder trial and took the stand. Spencer led him through his extensive and very impressive qualifications before honing in on the substance of his testimony. Not surprisingly, Spencer spent very little time on how the murder had occurred and the cause of death. Their little tragic opera was all about photographs, twenty in all-extremely graphic pictures of the bloody corpse. Each image was six feet tall and three feet wide, and Leland Pendergast stood in front of each one with a pointer-like a teacher leading a classroom discussion-explaining its significance to the jury.
Jack objected to each photograph, initially on the grounds of prejudice and eventually on the grounds that the evidence was cumulative and prejudicial.
“Judge, how many photographs does the jury need to see to understand that Carl Robertson was shot in the forehead? The prosecution is just trying to inflame the jury,” Jack argued at sidebar. But his objections were overruled.
The jurors were horrified. Some of the women were moved to tears. At the end of his testimony, Leland Pendergast finally gave the only opinion that mattered. The cause of Carl Robertson’s death was a single bullet wound to the head. It took him two and a half hours to get there.
Sitting in the front row behind Jack and his son and watching the juror’s reactions to the pictures, Luis understood what Jack meant about a trial turning on a dime. The pictures weren’t the only bad turn. Benny, who had been silent and stoic throughout the trial as Jack had directed him, was visibly moved by the pictures. Try as he might, he couldn’t help himself. Tears rolled down his cheeks. The jurors saw the tears and wondered if they were tears of guilt.
Jack saw the tears too. There was nothing he could do about them. He had to concentrate on taking a pound of flesh from Leland Pendergast. As he rose to begin the cross, something in his mind clicked about a piece of evidence whose significance he had not understood until that very moment.
Before taking his place at the podium he walked over to the easel facing the jury, removed the last of the grisly pictures, and placed it facing backward on the far wall with the other exhibits so it would not be a distraction during his cross-examination. Mr. Pendergast was going to have to get through cross on his words alone.
“Were you at the scene of the crime?”
“No.”
“Was somebody from your office there?”
“Yes.”
“Who was that?”
“Dan Jenkins.”
“And is Dan Jenkins a licensed pathologist like yourself?”
“Yes.”
“And has he testified in court before?”
“Yes.”
“In murder trials?”
“Yes.”
“Has he ever been disqualified for any reason?”
“Not that I am aware of.”
“Who did the actual autopsy?”
“Dan Jenkins-with my supervision, of course.”
“We’ll get to that. The autopsy report that you’ve been talking about, state’s exhibit number 10-did Dan Jenkins sign that?”
“Yes. And so did I.”
“Is it your practice to sign every autopsy report?”
“Yes. I am responsible for every opinion that comes out of my office.”
“And that signature of yours on this autopsy report, is that a stamp?”
“Yes, it is.”
“Is the stamp for convenience so you don’t actually have to sign all the autopsies that are done by your staff?”
“Yes.”
“How many autopsies does your office do a year?”
“Thousands. This is New York City. We are very busy.”
“So you don’t read and approve every autopsy report before it comes out of your office, do you, Mr. Pendergast?” This was where Jack expected the big lie. He wasn’t disappointed.
“I try to. I’m sure some slip by.”
“You said Dan Jenkins did the autopsy with your supervision, correct?”
“Yes.”
“How long has Mr. Jenkins been with your office?”
“Around ten years.”
“Does he need supervision to do an autopsy?”
“Absolutely not. What I mean by that statement is that I supervise the work of all my people.”
“You weren’t present when Dan Jenkins did the autopsy of Carl Robertson, were you?”
“I may have walked in and out of the room a few times.”
“Do you specifically recall if you did or not?”
“No, I don’t.”
“So you don’t have any firsthand knowledge of the findings in this autopsy report that you have been testifying about all afternoon, is that correct?”
Leland didn’t answer right away. Instead, he made one of the most amateur and devastating moves a witness who is trying to appear impartial can make. He looked over to Spencer Taylor for help. Spencer looked down at his notes.
“Is that correct?” Jack prompted.
“Yes, but as an expert witness I can testify about the findings of others, especially my staff.”
Jack had taken enough wind out of Leland’s sails. It was time to get down to specifics. He was debating whether he should even use Dr. Wong’s exhibits at this point. There had to be a reason Dan Jenkins was not on that stand. Maybe he would save the exhibits for when he called Jenkins himself.
“In your opinion, Dr. Pendergast, was the assailant close to the deceased when he shot him?”
“Yes.”
“How close?”
“Not point-blank but very close.”
Jack wanted to ask him how he’d arrived at that conclusion but he refrained from doing so because Leland had given the exact answer he’d wanted. “I’ve reviewed this autopsy report and I noticed that there was-I’m not sure how you put it-a protrusion at the rear of the cranium, is that accurate?”
“Yes, it is.”
“Is that where the bullet struck the back of the cranium?”
“Yes, that’s correct.”
“Now, did you or Mr. Jenkins measure the angle from the entry wound to this protrusion in the back of the cranium?”
“Yes, we did.”
“And why would you do that?”
“To determine the trajectory of the bullet. It’s not always totally accurate, because sometimes the trajectory is thrown off by other obstacles in the body.”
“How about in this case? Do you think the trajectory was accurate?”
“Yes, I do.”
“And what was the trajectory of the bullet?”
“It was almost a straight line from the forehead to the rear of the head. There was a slight upward angle.”
“Are you aware of how tall the defendant is?”
“Yes, I am.” Leland smiled when he gave the answer as if he suspected Jack would be surprised by his positive response. That told Jack that they knew where he was going and were ready for him. He kept going anyway.
“How tall is he?”
“Five feet eight.”
“And Carl Robertson, how tall was he?”
“Six feet four.”
“At close range, if a five-foot-eight man shot a six-foot-four man, wouldn’t the trajectory be straight up with the bullet hitting the top of the cranium rather than the rear?”
Leland smiled again. He’d obviously been waiting for the question. “Not necessarily, and certainly not if the taller man was looking down at the shorter man. Say they were having a conversation like ‘Give me your money’ or something like that. Then the trajectory would be at a straight angle, just like we found.”
That last opinion did in all of Dr. Wong’s wonderful graphs and charts. Jack had considered Leland Pendergast’s explanation as a possibility; he had just hoped that the state had been overconfident and not done its homework. Now he was out on a limb with no place to go, and Leland Pendergast was all puffed up and confident again.
Jack decided he had no choice but to try the new theory that had just come to him. “Doctor, is it accurate that a bullet loses its velocity the more distance it travels?”
“That’s hard to say with any definiteness. Velocity depends on a lot of things-the type of gun and the type of ammunition being the two most important factors. I don’t know as I sit here what the speed per foot was of the ammunition fired from the Glock that was used. That’s not my area of expertise. However, the longer the distance, the more resistance the bullet encounters in the atmosphere, and eventually it starts to lose a little steam-so I would agree with your proposition in general, but I don’t think you can gauge the loss of velocity with any accuracy. If the target is in the range of the gun as it obviously was in this case, the job gets done, no matter what the distance.”
It was a confusing answer, and Leland probably meant it to be so. Jack ignored the explanation completely.
“Is that a yes, Doctor?”
“Yes, I’d agree with your proposition in general.”
“Would a gun fired, say, at point-blank range or very close be more likely to pass through the skull?”
“Not really. The skull is very durable. That’s where we get the term ‘hardheaded.’” There was a laugh from a few members of the gallery. Some of the jurors smiled as well. The judge wisely let it go. “I don’t believe that a Luger Parabellum, the bullet that was used, fired from a Glock nine-millimeter would penetrate the skull no matter what distance it was fired from. Just look at how beat up this bullet was.”
The Law of Second Chances jt-2 Page 33
