No, Daddy, Don't!

by Irene Pence

  The lawyers continued talking, then an hour later, Paul’s cell phone rang.

  “Mr. Johnson, this is Gigi Ray with the ME’s office. I was told to call you.”

  Johnson gave Brauchle a knowing glance. He placed his cigar in the ashtray and picked up a pen. “Yes, Gigi. Just wanted to check with you about a few things before the trial starts. What did that crime scene look like when you first got there?”

  “Well, one of the officers told me it was a real-‘cluster-fuck. ’ It didn’t seem like anyone knew who was in charge.

  “I thought there was going to be some kind of problem with the search warrant because the officers kept discussing it. Some were saying that they didn’t know if one was needed in the first place. Is that what they’re trying to say, that there’s a problem with the warrant?”

  “That’s what we’re saying,” Johnson told her, his pen flying as he scribbled notes of everything Gigi was telling him.

  Johnson heard Gigi take a deep breath. She said, “Now wait a minute. You are the DA, aren’t you?”

  “No, I’m not. I’m the defense attorney.”

  There was a long pause before Gigi replied.

  “I was told you were the DA.”

  “Well, ma’am, I can promise you I didn’t characterize myself that way. I’m the defense attorney and I haven’t told anybody anything different.”

  “I think this conversation has to end,” Gigi declared. “I need to call the DA and let him know that you want me at the evidentiary hearing.”

  “I can understand that. Guess I’ll see you in court tomorrow.”

  Gigi sat on her couch, totally bewildered. She needed to call Scarlett Long immediately. The calm from her peaceful weekend had evaporated and now her stomach was churning. Scarlett was so dependable. How could this have happened? Well, it didn’t matter; Gigi had major fires to put out and some big players to call.

  First, she called Scarlett at work to verify her message. When Scarlett heard about the phone call, she felt miserable for having misinformed Gigi. Second, Gigi called her boss, Bill Lené, and explained the problem.

  Since none of the prosecuting attorneys had ever called her and she hadn’t heard the names of anyone from the DA’s office who were working on the case, being told to call Paul Johnson hadn’t seemed suspicious to her at all. She called a court investigator and he contacted chief prosecutor Howard Blackmon.

  Blackmon phoned Gigi and was very upset that she had given such information to Paul Johnson, the head of the enemy camp. She could hear the disapproval in his voice as he expressed fear that the evidence could be in jeopardy. Blackmon told her to show up for the next day’s hearing because Johnson could simply get a subpoena and force her to be there, but he wanted Gigi to meet with him first, thirty minutes before the hearing.

  Paul Johnson was at home, basking in the afterglow of his phone call with Gigi Ray. The ME’s death investigator had given him invaluable information. With her testimony he could prove that the evidence from the loft had been collected without a search warrant. He could possibly get all evidence found in the loft thrown out of court. It was the shot in the arm that his case needed.

  He strolled into his den, dropped down on a black leather recliner, and flipped on the television. After a few minutes of news, there was an announcement that they would be airing videotape of an exclusive interview with John Battaglia at the Lew Sterrett Justice Center. Johnson sat up straight and frowned. This wasn’t good news.

  Soon John Battaglia’s straggly-bearded face filled the screen. The piece had obviously been taped three or more months ago, before voir dire had begun. John’s dark gray hair hung in long corkscrews that shot in every direction and matched his long sideburns and four-inch-long gray beard; he looked like a gnome. Paul knew that razors were banned in jail, but they did have stainless steel mirrors. Didn’t John know how he looked?

  The Channel 8 newswoman interviewed Battaglia. When she asked him about the murders, John told her he thought that he was putting his girls to bed. He was doing something good for them. He explained that the doctors had diagnosed him as bipolar, and claimed that if he had been treated earlier, none of this would have happened. John frequently laughed and grinned at the camera. He said, “All I needed was a pill. Isn’t that something?”

  Johnson clicked off his set. He had been working on Battaglia’s case for almost a year—some days for just an hour, at other times for the entire day. John Battaglia and his father had not taken one bit of his advice. In addition, two of John’s brothers were cooperating with the DA.

  On that busy Monday morning before trial, Gigi Ray fought her way down the wide corridor at the courthouse to meet with Howard Blackmon. Lawyers were easily spotted in the courthouse. Their dark suits and soft leather briefcases set them apart from the swarms of casually dressed people who were there to pay fines or support a loved one at a trial.

  Once Gigi was in Blackmon’s office, she insisted that her photos of the dead children, combined with the mother’s testimony of the phone call, would be enough to convict John Battaglia. But by the time Gigi left to attend the hearing, Blackmon was still not convinced.

  Judge Warder’s Criminal District Court filled quickly that April 22 morning in anticipation of Battaglia’s trial. The court held sixty-five people in churchlike pews. The gray carpet and cloth-covered walls lent a soft, insulated tone that contrasted sharply with the violence of the case that would be heard. People began jamming together, sliding closer to make room for latecomers.

  Paul Johnson opened the evidentiary hearing by calling Gigi Ray to the stand. Out of her normal work garb, she looked more feminine in a blue jumper and coral blouse. After she was sworn in, Johnson wanted the court to hear a full recounting of their previous evening’s phone conversation. By asking, “Do you remember telling me that... ,” he was able to force Gigi to reiterate everything she had related on the phone, including the fact that one officer had called the scene a “cluster-fuck.”

  Reading from Ray’s investigative report, Paul Johnson asked, “Did Detective Fite give you permission to remove the bodies before the warrant arrived?”

  “He said there wasn’t any need to wait for the warrant.”

  “Okay, the girls’ bodies were removed prior to the search warrant. Can you tell me how PES had pictures of their bodies if no one went inside the loft prior to the arrival of the search warrant?”

  “All those people were in there with me,” Gigi answered.

  Johnson’s six-foot-six frame was imposing and as effective now as in his basketball days. In only a few steps, he was at the witness stand, towering over Gigi. It was an intimidating move, but Gigi remained calm. Johnson gave her a stack of seventy-seven crime scene photos to sort through, and he stood beside her while she thumbed through each one.

  “Did you take that photo?” Johnson asked, pointing to a picture of the Glock smeared with hair and tissue residue.

  “I don’t know. Could have. I did take a photo of that gun, but the police did too. I take slides at my scenes. If this picture was made from a slide, it could possibly be mine.”

  Johnson now realized that he hadn’t requested that pictures be made from her slides. “Do you have a complete set of the photos you took?” Johnson asked.

  “The original set of slides is back at the ME’s office.”

  Paul Johnson asked the judge’s permission to allow Ray to call her office and ask someone to bring over her slides.

  Prosecutor Howard Blackmon stood up. “Your Honor,” he began, “the Medical Examiner is separate from PES. Her jurisdiction is the bodies and one was in plain view right from the front door.”

  Paul Johnson answered that he knew Ray could go in and photograph the bodies and the evidence, but because she did that before a search warrant arrived, he wanted to see if the police were doing it at the same time.

  Gigi was asked to stand in the back of the room while they waited for the slides to arrive.

  In the meantim
e, Johnson called Dallas police officer Elton Fite of the Child Abuse Section to the stand, and he was sworn in. The trim officer was dressed in a sports coat and slacks—exactly what he wore as a plainclothes detective, and probably less intimidating to children than a police uniform would be. He had been called to the lofts at 9:30 on the night of the murders.

  Paul Johnson began questioning him about the crime scene, and Fite admitted that patrolmen, PES, and ME were in the building.

  “But no one entered the room until the evidentiary search warrant arrived,” he said with authority.

  Paul’s eyes grew large.

  “You didn’t go inside that loft?” he asked in amazement.

  “No.”

  “Did you give authority for the ME to take the bodies ?”

  He hesitated for a moment. “I talked to Mary Jean Pearle,” he said. His mentioning the victims’ mother placed him away from the crime scene, as Mary Jean had been downstairs. “No,” he continued, “I don’t recall telling the ME she could take the bodies.”

  “But you yourself didn’t go into that crime scene?” Johnson asked for clarification.

  “No. I just looked in from the door,” Fite said.

  Courtroom spectators exchanged questioning glances at the discrepancy with Ray’s testimony.

  Gigi Ray did not want to return to the witness stand, but now she was sitting there, dreading Johnson’s next question. After he viewed the slides and asked the court to make photographs from them, he turned to Gigi.

  “Okay,” he said. “You heard what Detective Fite said. Was he telling the truth?”

  Gigi was frozen, wishing she could magically disappear. She didn’t want to paint a law enforcement peer in a bad light, but even more, she didn’t want to perjure herself. She looked up at Judge Warder, feeling like a ten-year-old wanting her mother to tell her what to do. A sympathetic smile crossed the judge’s face, then she gave Gigi a subtle nod that said, “You have to answer.”

  Gigi swallowed hard and said, “I guess he could have been mistaken.” She looked down at her hands, and her face reddened with discomfort.

  During the morning break, Paul Johnson and Gigi Ray just happened to reach the vestibule of the courtroom at the same time. Their eyes locked, and Paul stuck out his hand.

  “I would like to applaud you on your honesty,” he said, shaking her hand. “I’d have laid money that you would have covered for Fite.”

  When the evidentiary hearing continued after the break, Paul Johnson called James R. Vineyard to the stand. Vineyard had been a Dallas police officer for twenty-five years and worked as a detective with the crime scene response unit. When Paul Johnson questioned the experienced officer, he readily admitted to having been inside the loft without a search warrant.

  “What did you do when you first got there?” Johnson asked.

  “Shortly after I arrived, I helped the others mark evidence and then took photographs. I’ve investigated hundreds of crime scenes like this. I thought that in good faith we were doing the right thing.”

  His next statement lent credibility to Gigi Ray’s testimony. Vineyard asserted that he and Fite were inside the loft discussing whether or not to get a search warrant. Around 10:30, they decided that one was necessary and left to find a judge.

  Chief prosecutor Howard Blackmon was on his feet, defending the officer. “This was an emergency situation. They had to check on the children. Besides, anything in plain view doesn’t need a warrant.”

  Standing taller and raising his voice louder, Paul Johnson said, “The kids were obviously not in imminent danger. Besides, it was a chaotic scene. Nobody knew what they were doing. They were not maintaining the law. They had no right to collect evidence.

  “I move to suppress all evidence collected at the scene,” Johnson said. “This was an illegal search. All evidence would include the bodies, the guns, and the bullets.”

  The prosecution held its collective breath for Judge Warder’s ruling.

  She began thoughtfully, “I believe that the police had reason to act immediately. And all evidence in plain view is admissible—bodies, guns, everything. The evidence can be admitted under the emergency doctrine.”

  Paul stood, his face flushed, as he listened to the judge. She stated that, as there had been no itemization of seized evidence, Paul could not specify which bits of evidence had been moved or taken.

  For the record, Paul objected that evidence was collected without a warrant and the judge nodded, noting his objection.

  Johnson objected a second time. “The warrant wasn’t specific as to what they were looking for. It was just a fishing expedition.”

  The judge noted the defense attorney’s second objection.

  “Your Honor,” Johnson said, “my objections are for each piece of evidence that will be presented.” Johnson appeared to be laying the groundwork for an appeal.

  Officer James Vineyard was recalled to the stand. The crime scene investigator admitted to having searched Battaglia’s truck around 2:20 A.M.

  “Did you have a search warrant to do that?” Johnson asked.

  “I didn’t think a warrant was necessary. We were looking for weapons that were tied to the crime.”

  The three prosecutors looked at one another. They had not completely resolved the issue of the search warrant for the loft—and now they had the truck to worry about. The prosecutors busily flipped through reference books, then found the precedent they were looking for.

  After listening to Blackmon, Judge Warder agreed with the prosecution’s assertion that there was a motor vehicle exemption. “Evidence may be moved because it could become lost due to the movability of the truck,” she said.

  Johnson also objected to that finding. His objections were stacking up for the appellate court.

  When the prosecution had its turn, it moved to admit John Battaglia’s previous violations into evidence, including beating Mary Jean on Christmas Day and violating his protective order on April 17, 2001. Blackmon stated that Battaglia’s motive for the murders was his impending arrest.

  Paul Johnson had an advantage when he stood. Everyone had to look up to him. He objected to the admissions because the victim (Mary Jean) in those cases was a different person than the victims in this trial. In addition, he stated that this information on Battaglia’s background might prejudice the jury.

  Judge Warder disagreed. “I think these actions are highly relevant because they show a relationship.”

  Howard Blackmon stood in front of John Battaglia to read his indictment and begin the trial. Battaglia was told to stand.

  “John David Battaglia, on or about the second day of May, 2001, did unlawfully, intentionally, and knowingly cause the death of Mary Faith Battaglia by shooting [her] with a firearm, a deadly weapon, and during the same criminal transaction said defendant did intentionally and knowingly cause the death of Liberty Battaglia. . . .”

  Battaglia listened to the indictment and appeared about to yawn. When asked, he entered a plea of “not guilty.”

  The jury of seven men and five women entered the courtroom. The serious, unsmiling group ranged in age from their late twenties to their early sixties.

  Chief prosecutor Howard Blackmon stood before them to give his opening statement.

  He began by relating that Mary Jean’s relationship with the defendant was marred by abuse culminating in the ultimate act of revenge.

  He recounted the telephone call during which Mary Jean had been forced to listen to her girls being murdered. Blackmon mentioned the message that Mary Jean had heard the next morning. “John Battaglia told his girls how very brave they were, and how evil their mother was.”

  Blackmon led jurors along the path Battaglia had taken that night. He graphically itemized the shots that killed the children, then described John’s night on the town: the girl, the drinks, the tattoos.

  He concluded by saying, “Officer Dane Thornton was the first officer to stop. He was the first to see the horror of that scene. Now
you will see what he saw.”

  The defense offered no opening statement.

  The big, solid frame of Officer Dane P. Thornton entered the courtroom through double doors at the far end opposite the judge’s bench. His head tan and shaved, he stood erect and walked with purpose. The veteran officer frowned throughout his entire testimony. There was just no way to appear pleasant and tell what he had witnessed. It had cost him three nights’ sleep when it happened, and now he had to relive it. He described Mary Jean flagging him down, the arrival of Officers Murray and Rojas, their decision to kick down the door, and then their grisly discovery. He also detailed the massive manhunt for Battaglia that had lasted almost six hours.

  Three days previously, on the Friday before trial started, an evidentiary hearing had been held. At that time, Paul Johnson had kept Officer Thornton on the stand for over an hour, pelting him with questions about that night. He had criticized him for initiating an illegal search and seizure merely on the word of Mary Jean, a hysterical mother. But during the hearing, Thornton had stood up to Johnson and had apparently won his respect—for after Thornton’s trial testimony today, Johnson had no questions for the officer.

  The prosecution called its next witness, Mary Jean Pearle.

  FORTY-THREE

  Mary Jean Pearle hadn’t slept a wink the night before the trial. Even with all the incriminating evidence against John Battaglia, she felt a consuming dread that something would go wrong and he wouldn’t be found guilty. Even if he were found guilty, he might not get the death penalty. She had promised her girls justice. Everything was resting on her testimony today.

  Dressed in a conservative black-and-white-print dress covered with a black jacket, Mary Jean looked tired when she entered the courtroom.