by Parnell Hall
“I see. But in verifying those findings, you are relying on what people told you regarding when the decedent ate his last meal?”
“That is correct.”
“And if those people were mistaken, then you could be mistaken?”
Dr. Kessington frowned.
“Can’t you answer that, Doctor?”
“Yes, I can. I wish to phrase my answer so as to be absolutely fair. The figure I gave you-three hours from the time the decedent ate the veal till the time he died-that is a constant. That would not change, regardless of the accuracy of what anyone told me. As to the exact time of the day the victim died, that of course would be affected.”
“I see. Now you say he died three hours after he ate his last meal. You also say he died between the hours of eleven and twelve. The median time would be eleven-thirty. Three hours prior to that would be eight-thirty. Working backward, from your personal medical findings, and not based on anything anyone told you, is it your personal opinion that the decedent ate his last meal at eight-thirty on the night that he died?”
Dr. Kessington nodded. “That is correct.”
“Fine, Doctor. Then let me ask you this hypothetical question. From District Attorney Harry Dirkson’s opening statement, there is reason to believe that we will hear testimony that the decedent ate a long and leisurely meal. If it should turn out that the decedent was not actually served his veal until nine o’clock, would that change your findings any? You say three hours is a constant. Would you then say, the decedent probably died at midnight, midnight is the median time, he could have died between eleven-thirty and twelve-thirty?”
Dr. Kessington shook his head. “No, I would not.”
“Why not, Doctor?”
“As I said, digestion is merely a secondary factor in verifying the time of death. The primary method, body temperature, is the more precise method, and the one on which I would rely. It indicated death between eleven and twelve, and that is the finding I would rely on. If the stomach contents indicated the time of death to be around midnight, I would take that as a confirmation rather than a contradiction of that finding.”
Fitzpatrick nodded. “Very well put, Doctor. And you say the body temperature indicated that the time of death was between eleven and twelve o’clock?”
“Yes. As I’ve stated several times.”
“It could have occurred at midnight, Doctor?”
“It could. But that is an outside limit. The optimum time would be around eleven-thirty. Eleven and twelve are outside limits.”
“But death could have occurred at twelve o’clock?”
“It could.”
“Could it have occurred at twelve-oh-one?”
For the first time, Doctor Kessington appeared annoyed. “Now you’re splitting hairs, Counselor.”
“Maybe I am, but I’d still like the question answered. Are you telling me death could have occurred at twelve o’clock, but could not have occurred at twelve-oh-one?”
“No, I’m not,” Dr. Kessington said irritably. “I’m a reasonable man attempting to make a rational answer. My expert findings indicate death occurred between eleven and twelve. If you want to stretch that by one minute, obviously there is no argument I can make against it that will not sound ridiculous.”
“I appreciate your dilemma, but I would still like a yes or no answer. Could death have occurred at twelve-oh-one?”
Dr. Kessington took a breath. He glared at Fitzpatrick. “It is stretching the bounds of likelihood,” he said. “But the answer is yes.”
Fitzpatrick nodded. “Thank you, Doctor. So,” he said breezily, “if I understand you correctly, you are now testifying that your expert medical findings indicate the decedent met his death sometime on June twenty-eighth or sometime on June twenty-ninth. Thank you. That’s all.”
Dirkson roared an objection, and Judge Wallingsford admonished Fitzpatrick for the comment.
As Fitzpatrick sat down, Steve Winslow leaned across Kelly Wilder and nodded approvingly. “Not bad.”
30
Fitzpatrick spent the lunch hour on the phone to his office, catching up on his law practice.
Steve Winslow, who had no law practice to catch up on, had lunch with Mark Taylor and Tracy Garvin at a small deli near the courthouse. They ordered at the counter, carried their food to a small table in the back.
Mark Taylor sat down, took a huge bite of pastrami sandwich and washed it down with coffee. “So,” he said. “Tell me about the time element.”
“What about it?” Steve said.
“You always make a big deal of the time element. Last case it was bullshit. What about this time? Does it mean anything?”
“Yes and no.”
“What does that mean?”
Steve shrugged. “For the most part, it’s just bullshit. Give the jury a show. Mess the facts up, create reasonable doubt. Besides, it’s standard practice to pick on the doctor. Why? Because the jurors like that. Doctors make big bucks. Doctors don’t make house calls. Doctors are professional men who are apt to come off pompous and arrogant, and jurors love to see ’em taken down a peg.” Stave shrugged again. “It ain’t fair, but that’s just the way it is.
“But in this case, it actually does mean something. The doctor puts the time of death at eleven-thirty. We happen to know eleven-thirty was the time Kelly Wilder left the apartment. That’s pretty damning. You don’t stick around after you kill someone. You kill ’em, and you leave. She shot him at eleven-thirty and got the hell out of there.”
Taylor grimaced. “Christ, Steve,” he said with a mouthful of pastrami. “You’re torturing me.”
“Yeah, well at least I’m not spoiling your appetite,” Steve said dryly. “I’m sorry, Mark, but that’s the fact. She left at eleven-thirty. We know it, the prosecution doesn’t.
“But think what that means. If the time element gets screwed up, if the waiter from that restaurant gets on the stand, says he didn’t serve the veal until after nine-well, we got the doctor saying he died three hours after that. Which would be midnight. And in that case, when he was shot Kelly Wilder was long gone.”
“Right,” Taylor said irritably. “You know it and I know it. But how the hell are we gonna prove it? Call the detectives to the stand? For one thing, we can’t even find ’em. For another thing, if you did, you’d put me on the hook for withholding evidence.”
“I know that, Mark.”
“I know you do, but so what? I know you. You’ll do anything for your client and the hell with anybody else. If you manage to prove David Castleton was killed at midnight, it’s gonna be ‘Sorry, Mark, I know it’s gonna cost you your license, but I gotta put your detectives on the stand.’”
“No, it isn’t.”
“Oh yeah? Tell me why not.”
“For one thing, there’s no way we can prove he was killed at midnight. We can raise the inference, I can create reasonable doubt, and it could be the time he ate his last meal will bear me out. But that’s all it is, reasonable doubt. You get what I saying? It doesn’t matter if I prove he could have been killed at midnight. The only thing that would make any difference would be if I could prove he couldn’t have been killed at eleven-thirty. And there’s no way I can do that.”
“So the time element thing is basically bullshit?”
“Basically, yes.”
“That’s a relief. That’s what I figured, but when I heard Fitzpatrick pushin’ so hard for midnight I wasn’t sure. Tell me something.”
“What?”
“Did you tell Fitzpatrick to push for midnight?”
Steve shook his head. “No. I just told him to take the guy on the time element. I didn’t tell him how to do it. That cross-examination was all Fitzpatrick. I must say, for a guy who isn’t in court that much, he’s pretty damn good.”
Taylor shook his head. “That’s not what I mean.”
“What do you mean?”
“You know what I mean. Does Fitzpatrick know Kelly Wilder’s got a cold alibi fo
r eleven-thirty on? By two witnesses who can place her at the scene of the crime at the time of the murder, but who haven’t surfaced yet?”
Steve frowned. “You think he’d be on the case if he did?”
“Not a prayer.”
“There’s your answer.”
“I’d hate to be in your shoes when he finds out.”
Steve took a breath. “Mark, it’s a mess, I know it’s a mess. I don’t ever want to go through this again either. You don’t have to rub it in.”
“Could I change the subject?” Tracy said.
“Love you for it,” Steve said. “Jump right in.”
“The sidebar. And your objection. What was that all about?”
“Yeah,” Taylor said. “That made absolutely no sense. The jury was looking around like ‘what’s going on?’ and the judge says, ‘Rephrase the question,’ and Dirkson does, and I can’t tell if your objection’s been sustained or overruled or what the hell it was to begin with.”
Steve grinned. “Yeah, that was kind of weird. I objected to him referring to the decedent as David Castleton on the grounds they hadn’t proved identity yet.”
Taylor frowned. “What?”
“Why did you do that?” Tracy asked.
“To force them to identify the body.”
“But there’s no question about it,” Taylor said.
“Exactly,” Steve said. “But I still want them to go through the motions.”
“Why?”
“Because I’m groping in the dark and I need all the shots I can get. So I’m going to be very technical about procedure. Proper procedure is, Dirkson must show the corpus delicti before he can introduce any evidence connecting Kelly Wilder to the crime. Part of the corpus delicti is proving the identity of the corpse.”
“So what?” Taylor asked. “It is David Castleton, isn’t it?”
“Of course it is. But I’m not going to take the word of a cleaning lady for it. I want to make Dirkson put someone on the stand to identify the body.”
“Why?”
“So I get a shot at him. The way I see it, it will be either Milton or Stanley Castleton. They’re both bound to be witnesses later on. Whichever it is, I’ll get two cracks at him on the cross-examination. It can only help.”
“Yeah,” Tracy said. “But if Dirkson only calls them to identify the body, isn’t that all you can cross-examine them on?”
“Yeah, but it’s always relevant to show bias. And I can bring out a lot of stuff to show these guys have every reason to be biased against Kelly Wilder on account of her brother. I can drag in the embezzlement bit.”
“I thought Dirkson was gonna drag it in anyway.” Taylor said.
“Yeah, but you want to bet I can make it sound different than he can?”
“No takers.”
“I still say what’s the point?” Tracy said.
Steve sighed and ran his hand over his head. “The point is, sooner or later Dirkson’s gonna rest his case. When he does, we got a big problem. For one thing, we already shot our opening argument. That was a judgment call, and I still think it was worth it, but it’s done. Which means we open our case cold. I can’t stand up and tell the jury what we expect to prove. I gotta call witnesses and build our case from them. Well, that being the case, I wanna lay as big a foundation as I can before Dirkson rests and we take over. In other words, I want the jury to hear as much corroboration as possible before they hear Kelly Wilder’s story.”
“You gonna put her on the stand?” Tracy said.
Steve grimaced. “That’s the problem. At this point, frankly, I just don’t know.”
31
When court reconvened Dirkson stood up and said, “Call Stanley Castleton.”
Steve Winslow watched with some interest as Stanley Castleton made his way to the stand. He was tall and thin, but his slumped shoulders and lowered head greatly diminished his height. Steve wondered if it was due to the loss of his son or if it was his standard posture.
As Stanley Castleton came forward and took the stand his movements were tentative and hesitant. Steve figured Mark Taylor’s description had been right on the money-weak and ineffectual.
When Stanley Castleton had been sworn in, Dirkson rose and crossed to him.
Naturally Dirkson made a big show of being solicitous and sympathetic. “Mr. Castleton,” Dirkson said, “I know how hard this is for you and I’ll try to be as brief as possible. Please tell me, what is your relationship to David Castleton?”
Stanley Castleton blinked twice. His lip trembled, and when he spoke, his voice quivered. “He is my son.”
Dirkson nodded. “Thank you, Mr. Castleton. Now, I ask you, on June twenty-ninth were you asked to go to the morgue to identify a body?”
“Yes, I was.”
“And did you identify it?”
“Yes, I did.”
“Whose body was it?”
This time his whole face seemed to quiver. Tears brimmed in his eyes. He opened his mouth to speak, choked back a sob. He exhaled, took a breath, then croaked, “It was my son. David.”
Stanley Castleton dissolved into sobs.
Dirkson paused a moment before saying softly, “Thank you. That’s all.”
Judge Wallingsford said, “Does the defense wish to cross-examine?”
Fitzpatrick looked a question at Steve.
Steve looked over at Stanley Castleton weeping on the witness stand. There was no way he could cross-examine him without alienating the jury. Hell, some things worked and some didn’t. Steve took a breath. He shook his head. “No questions, Your Honor.”
“The witness is excused,” Judge Wallingsford said.
Stanley Castleton might not have heard him. He just sat there, sobbing. Dirkson had to come forward, put his hand on his shoulder, lead him from the witness stand.
Steve Winslow gritted his teeth. It was a hell of a moment, guaranteed to prejudice the jury against the defendant. But there wasn’t a damn thing he could do about it.
When Stanley Castleton had finally been escorted from the courtroom, Dirkson recalled Detective Oswald from the Crime Scene Unit, who testified to finding a gun next to the decedent. The gun was produced, identified and marked for identification as People’s Exhibit 3.
He also testified to finding a folded piece of paper in the decedent’s pants pocket. The paper was produced, identified and introduced into evidence. Oswald then read what was written on it into the record. The paper proved to be a note, written in ink, of an address and apartment number. Oswald was able to testify that he had personally gone to that address and could verify that it had turned out to be the apartment of the defendant, Kelly Clay Wilder.
That caused some raised eyebrows in the courtroom. Dirkson hadn’t even mentioned the note in his opening statement. Obviously this was a case where the prosecution had more evidence against the defendant than it could ever possibly need.
Finally Oswald testified to developing and photographing latent fingerprints in the decedent’s apartment, and photos and fingerprint lifts were received into evidence.
Steve Winslow took him on cross-examination, which created a stir of interest among the jurors. Up till now they seen only Fitzpatrick. And Fitzpatrick looked like a lawyer. But what was this young man with long hair and sloppy clothes up to?
Naturally, the jurors expected Steve to cross-examine Oswald on the gun and the note.
He did neither.
“Officer Oswald,” Steve said. “You testified to taking photographs in the decedent’s apartment, did you not?”
“Yes, I did.”
“Now, in addition to taking the photographs, you were a witness to what you photographed, were you not?”
“Yes, of course.”
“You examined the apartment for evidence, did you not?”
“Yes, I did.”
“Was there a computer in the apartment?”
“Yes, there was.”
“Does it show in the photographs you took?”
/> Detective Oswald frowned. “I’m not sure.”
Steve picked up the stack of photographs from the court reporter’s desk and handed them to the witness. “Well, take a look and see.”
Detective Oswald thumbed through the photographs. “Yes, here it is,” he said. He held up the photograph and pointed. “You can see it here, in the upper left-hand corner.”
“Which photograph is that?”
Oswald turned it over and looked at the back. “That is People’s Exhibit Five-N.”
“I see,” Steve said. “And does the computer show in any of the other photographs?”
Oswald riffled through them. “No, it does not.”
“I see,” Steve said. He took the photographs back from the witness. “And since you weren’t sure if the computer was in the photographs at all, and since it only appears in one of them and only in the background, and since these are photographs of the objects from which you obtained latent fingerprints, am I correct in assuming you got no fingerprints from the computer?”
“That is correct.”
“Is that unusual?”
Oswald shook his head. “Not at all. A computer keyboard is like a typewriter. The keys are struck many times. There’s no hope of getting a clear latent print. Only indecipherable smudges.”
“Which is what you got in this case?”
“That is correct.”
“Then let me ask you this. Is there any chance those indecipherable smudges might contain enough whorls and arches, no matter how fragmented, to be able to attempt a comparison with the prints of any known person?”
“I would say no.”
“But that is just your opinion?”
“It is an expert opinion.”
Steve smiled. “Yes, it is. But the manner in which you just expressed it was, ‘I would say no.’ You didn’t say no. You told me that’s what you would say. Which is not exactly the same thing, and which indicates a certain degree of doubt.”
