O’Leary retrieved the pewter-colored buckle from the evidence table and handed it to her, identifying it by its designated evidence number. “The medical examiner testified that she uncovered this buckle in the grave with Sarah’s remains. Can you explain how it could have got there if you’d won the buckle that day?”
“Because I gave Sarah the buckle.”
“Why did you do that?”
“Like I said, I knew that Sarah let me win. So before I left I gave the buckle to her.”
“And that’s the last time you saw it?”
She nodded. She’d never contemplated that the brief moment she’d looked back through the window of the truck cab and seen Sarah standing in the rain, wearing Tracy’s black Stetson, would be the last time she would ever see her sister. Tracy had thought about that moment often over the years, the fleeting nature of life and the unpredictability of the future even from one moment to the next. She regretted that she had been angry with Sarah that afternoon for letting her win. She’d allowed her personal pride to get the better of her, not knowing that Sarah’s intentions had been altruistic, not wanting Tracy to depart on one of the biggest nights of her life feeling bad for coming in second.
Tracy fought against it, but a tear escaped the corner of her eye. She pulled a tissue from the box on a side table and dabbed at it. Some seated in the gallery had also begun to wipe away tears and blow their noses.
Dan gave Tracy a moment to regain her composure, acting as if he was searching his notes. Back at the podium, he asked, “Detective Crosswhite, would you tell the court what your sister was wearing the last time you saw her on August 21, 1993?”
Clark rose unexpectedly and came out from behind counsel table. “Your Honor, the State objects that the question by its very nature calls for the witness to speculate and therefore would be unreliable.”
Dan met Clark before the bench. “The objection is premature, Your Honor. The State can certainly object to any particular question asked and cross-examine Detective Crosswhite concerning her recollection. That is not a valid reason to bar her testimony altogether.”
Clark sounded almost exasperated. “With all due respect to Your Honor’s ability to weed out such evidence, the State is concerned about an appellate record that includes speculation and supposition.”
“And the State is free to voice those objections to preserve the appellate record,” Dan said.
“I agree, Mr. O’Leary,” Judge Meyers said, “but we all know this case has already been played out in the media far more than I would prefer, and I appreciate the State’s concern about the record.”
Clark jumped in. “Your Honor, the State would request an opportunity to voir dire the witness to see if there is any basis, independent of what evidence has been offered during this hearing, that this witness can recall after more than twenty years the specifics of what her sister was wearing on a particular day in August, 1993.”
Meyers rocked in his chair, eyes narrowed with intrigue. Tracy was not surprised when he said, “I’ll allow the State to voir dire the witness.”
In her experience, when a judge knew it was likely that the outcome of a hearing would be headed to the Court of Appeals, he erred on being conservative in his rulings in order to limit the grounds for the appeal. By allowing Clark to examine Tracy’s recollection, he was eliminating Clark’s objection as a possible basis for the State to argue to the Court of Appeals that Meyers’s ruling had been wrong. He thus minimized the possibility of having the matter remanded back into his lap.
Dan returned to his seat beside House, who leaned over and whispered something. Whatever House said, Dan did not respond.
Clark smoothed his tie, this one adorned with trout, as he approached the podium. “Ms. Crosswhite, do you recall what you were wearing August 21, 1993?”
“I can make an educated guess.”
“A guess?” Clark glanced at Meyers.
“I was superstitious. I always wore a red bandanna, turquoise bolo tie, and my black Stetson during competitions. I also wore a long suede coat.”
“I see. Was your sister superstitious?”
“Sarah was too good to be superstitious.”
“So we can make no such guesses about what she might have worn that day, can we?”
“Only that she preferred to look better than everyone else.”
Smiles creased several of the faces in the gallery.
“But she didn’t have a particular shirt she wore to each competition?”
Tracy said, “She wore Scully. It’s a particular brand. She liked the embroidering.”
“How many Scully shirts did she own?”
“I’d guess ten or so.”
“Ten,” Clark said. “And no particular boots or hat?”
“She had several pairs of boots and I recall half a dozen hats.”
Clark turned toward the jury box. Realizing it was empty and that he was without a jury to play to, he positioned himself near the railing separating the gallery. “So you have no basis to testify with any certainty as to what your sister wore on August 21, 1993, other than a guess after twenty years, or what you may have heard during this hearing, correct?”
“No. That’s not correct.”
Clark looked taken aback. Meyers’s chair squeaked as he rocked, looking on intently. The gallery had gone silent. Clark stepped toward the witness chair, no doubt debating what was every lawyer’s dilemma on cross-examination—whether or not to ask the next question and possibly open a Pandora’s box without any idea of what was inside, or to move on to a different subject. The problem for Clark, Tracy knew from her experience as a trial witness in homicide cases, was that he had opened the subject matter, and that meant that, if he didn’t ask the question, Dan would. Clark’s banter slowed, cautious. “You certainly don’t remember what she was wearing.”
“No. Not with certainty, I don’t.”
“And we’ve established she didn’t have any superstitious articles of clothing she wore.”
“She did not.”
“So what other possible means . . .” Clark suddenly stopped.
Tracy did not wait for Clark to decide if he was going to finish his question. “A photograph,” she said.
Clark flinched. “But surely not of that day.”
“Yes, of that day,” Tracy said evenly. “They took a Polaroid of the three top finishers. Sarah finished second.”
Clark cleared his throat. “And you just happen to have kept this photograph for twenty years?”
“Of course I kept it. It’s the last photograph ever taken of Sarah.”
Because Tracy had removed the photograph from her rugged cart the morning she had met with Calloway to look inside her blue Ford, the photograph had never been inventoried and had never become a part of the police file.
Clark looked to Meyers. “Your Honor, the State would request a meeting of counsel in chambers.”
“Denied. Are you finished with your voir dire?”
“Your Honor, the State objects. No such photograph was ever produced in this case. This is the first we have heard anything of it.”
“Mr. O’Leary?” Meyers asked.
Dan stood. “As far as I know, Your Honor, the State is correct. The photograph certainly did not belong to the defense, and the defense had no means to produce it even if such a request had been made. However, the State clearly had access to it through Detective Crosswhite.”
“The objection is overruled,” Meyers said. “Mr. O’Leary, you may continue your examination.”
Dan re-approached the lectern. “Detective Crosswhite, do you have that photograph with you today?”
Tracy reached into her briefcase and pulled out the framed photograph. The commotion from the gallery was enough for Judge Meyers to rap his gavel. After having the photograph marked and introduced into evidence, Dan asked Tracy to describe what Sarah was wearing in it and Tracy complied. Then Dan asked, “Can you describe the earrings and necklace your sister is wearing in that photograph?�
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“The earrings are jade, teardrop shaped. The necklace is a silver strand.”
“Do you recognize these?” O’Leary handed her the jade earrings Rosa had recovered from Sarah’s grave.
“Yes. They’re the same earrings Sarah is wearing in the photograph.”
Dan retrieved the miniature, Colt-shaped pistol earrings introduced at House’s original trial. The gallery stirred. “And these,” he said, identifying them by their exhibit number. “Do you recognize these earrings?”
“Yes, those were also Sarah’s.”
“Was she wearing them the day she was abducted?”
Clark bolted from his seat. “Objection, Your Honor. The witness has testified she does not recall with certainty what her sister wore that day. The only thing this witness can testify to is whether they match the earrings in the photograph.”
“I’ll withdraw the question,” Dan said. “Detective Crosswhite, are these earrings the earrings your sister is wearing in the photograph?”
“No,” Tracy said. “They’re not.”
Dan replaced the earrings on the evidence table and sat. The murmuring had reached a sufficient volume for Meyers to rap his gavel. “I’ll remind those seated in the gallery to maintain the decorum I discussed at the opening of these proceedings.”
Clark stood and approached the witness stand with a seeming sense of urgency, his voice defiant. “You testified that your sister was fashion conscious, isn’t that correct?”
“Yes, she was.”
“You said she wore any number of different ensembles to these competitions, multiple shirts and pants and hats, correct?”
“Yes.”
“Did she take additional clothes with her to these competitions and change her mind about what she was going to wear?”
“Sometimes more than once,” Tracy said. “It was an annoying habit.”
“Including changing her mind about what jewelry to wear,” Clark said.
“I can think of occasions she did that, especially if the tournament was more than one day long.”
“Thank you.” Looking partially relieved, Clark quickly sat.
Dan stood. “Briefly, Your Honor.” He crossed to the lectern. “Detective Crosswhite, the times you recall your sister changing her jewelry, do you recall a single instance in which she ever changed to the jewelry presented at Edmund House’s initial trial? The pistol-shaped earrings identified as State exhibits Thirty-Four A and Thirty-Four B?”
“I never saw her do that, no.”
Dan gestured toward Clark. “The State’s question intimates that could have been a possibility; could it have been a possibility?”
Clark objected. “Again, the question asks this witness to speculate. She can testify as to what is in the photograph.”
“The question does call for speculation, Mr. O’Leary,” Meyers said.
“If the court will indulge me, Your Honor, I believe Detective Crosswhite will explain why it does not.”
“I’ll give you some leeway but make it quick.”
“Could it have been a possiblity that your sister wore these pistol-shaped earrings?” Dan asked.
“No.”
“How can you be so emphatic given your testimony that your sister had a propensity to change her mind?”
“My father gave Sarah the pistol earrings and the necklace after she won the Washington State Cowboy Action Shooting Championship when she was seventeen. The year, 1992, is engraved on the back of each earring. Sarah wore them once. They gave her horrible ear infections. She couldn’t wear anything but twenty-four-carat-gold or sterling-silver posts. My father thought they were sterling silver, but they clearly weren’t. Sarah didn’t want to upset him, so she never told him. She also never wore them again to my knowledge.”
“Where did she keep them?”
“In a jewelry box on her dresser in her bedroom.”
Meyers had stopped rocking. The gallery too had stilled. Out the windows the ethereal dark fingers reached further down from the sky and the snowfall had grown heavier.
“Thank you,” Dan said and quietly returned to his seat.
Clark sat with his index finger pressed to his lips as Tracy left the stand. Her heels clicked the marble floor as she made her way across the well to the gallery. As she did, a sudden gust of wind rattled the windows, spooking those in the gallery who were sitting nearby them. One woman gasped and flinched. Otherwise, no one moved. Even Maria Vanpelt, resplendent in a royal-blue St. John pantsuit, sat still, looking pensive.
Only one person looked as if he’d enjoyed the morning’s events. Edmund House rocked onto the back legs of his chair, smiling like a man who had just had his fill at a fine restaurant and had savored every last bite.
CHAPTER 47
At the start of the afternoon session, Judge Meyers retook the bench looking resigned. “It appears the weathermen got it partially correct,” he said. “The third storm is approaching, though they expect it to hit sooner than anticipated, as early as late this afternoon. I am going to push counsel to finish the hearing today, if at all possible.”
Dan immediately stood and announced that Harrison Scott would be the defense’s last witness.
“Let’s get to it, then,” Meyers said.
Tall and lean, Scott took the witness chair in a steel-gray suit. In quick order Dan went through Scott’s educational background as well as his credentials. Scott had been head of the Washington State Crime Labs in Seattle and Vancouver, Washington, before he had gone into private practice to start Independent Forensics Laboratories.
“What type of work does IFL specialize in?” O’Leary asked.
Scott pushed sandy-blond hair off his forehead. Except for the patches of gray at his temples, he looked too young for his impressive resume. He looked like he should be riding waves off the beaches of Southern California. “We do all disciplines of forensic work, from DNA analysis to processing latent fingerprints, firearm and tool-mark analysis, crime scene analysis, and micro-analysis of things such as hairs and fibers, glass, paint.”
“Would you explain to the court what I asked your laboratory to do in this particular case?”
“You sought a DNA analysis on three blood samples and thirteen hair samples.”
“Did I tell you where those samples were obtained?”
“The DNA samples you provided had been kept by the Washington State Patrol Crime Lab as part of a police investigation into the disappearance of a young woman named Sarah Crosswhite.”
“Would you provide the court with a brief overview of DNA testing?”
“The court is familiar with DNA analysis and testing,” Meyers said, scribbling notes and not raising his head. “Move along.”
“Did you perform DNA testing on the blood and hair samples I provided to you?”
“We did,” Scott said, and he provided an overview of the tests performed.
“Were those tests available back in 1993?”
“No, they were not.”
“Starting with the blood, were you able to obtain a DNA profile from the samples provided?”
“Because of the age of the samples and the manner in which they had been stored, as well as possible cross-contamination, it was not possible to obtain a full DNA profile.”
“Were you able to obtain a partial DNA profile on any blood sample?”
“Just one.”
“And could you make any definitive conclusions about that sample based on that partial profile?”
“Only that it belonged to a male.”
“You could not identify a specific individual?”
“No.”
Dan nodded and checked his notes. Scott’s findings confirmed House’s assertion that the blood was his and lent some credibility to his contention that he’d cut himself working in the furniture shop and had gone to his truck to get his cigarettes before going inside to clean his scratches and scrapes. Dan continued. “Would you describe the testing performed on the hair samples?”<
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“We examined each sample microscopically. Of the thirteen strands of hair we examined, seven strands had roots which allowed us to run DNA profiles.”
“And did you obtain a DNA profile on any of those seven strands?”
“We obtained DNA profiles from five strands.”
“Did you run those profiles through the state and national databases that store DNA profiles?”
“Yes we did.”
“And did those DNA profiles from the hairs match any DNA profiles stored in the state and national databases?”
“Yes, we obtained what we call ‘positive hits’ on three of the five samples.”
“What does a positive hit mean?”
“It means that the DNA profile we obtained from three of the hair samples matched a DNA profile that is on file in the state and national databases.”
“Thank you, Mr. Scott. Now, let’s go back a moment. Did I provide you with any other item to test for DNA?”
“Yes, you provided me with a strand of blond hair and asked that it be independently analyzed.”
“Did I tell you where I obtained that independent strand of blond hair?”
“No, you did not.”
“Did you obtain a DNA profile from the independent strand of blond hair?”
“We did, and we ran that DNA profile through the state and national DNA databases and obtained a positive hit.”
“Dr. Scott, would you identify the person in the state database whose DNA matched the DNA you obtained from the independent strand of blonde hair that I gave to you?”
“The DNA profile matched the DNA profile in the state database for a law enforcement officer, Detective Tracy Crosswhite.”
Tracy felt the gaze of the gallery shift to her.
“Okay. You testified you also matched the DNA profile on three strands of hair in the police file to an individual’s DNA profile in the state database. Would you identify that individual?”
“The DNA obtained from the three strands of hair also matched the DNA in the state database for Tracy Crosswhite.”
The gallery stirred.
“Oh my God,” someone muttered.
Meyers rapped his gavel once, restoring silence.
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