The D.A. smiles but doesn’t reply. We follow him out of the reception area and down the wide corridor outside, away from the bank of elevators. He stops at a set of double doors just a little way away and works a key from his pocket in a shiny lock that looks as if it’s just been fitted in the door.
“One of the conference rooms,” he says. “They put me in here until Dan, Mr. Edelstein, clears his office.”
Inside is a large conference table that Tannery has turned into a desk-cum-storage-area. On one end is his office computer, and a large desk blotter and telephone that he has commandeered from a side table against the wall. On the other is a stack of cardboard boxes filled with mementos, files and books, stuff from his old cubicle downstairs. The conference chairs have been bunched up around the middle of the long table. Harry and I sit on this side while Tannery goes around, stepping over the telephone cord, to the far side. There’s another stack of boxes, three in all, against the wall. He fishes in one of these and comes up with a black-covered three-ring binder. I recognize this as one of state’s trial binders from the case. He sits at the table opposite us and opens it and studies the contents for a moment, then raises his eyes.
“We talked about reduction of the charges some time ago.”
“Manslaughter,” says Harry. “One count, voluntary man.”
“That’s right.”
I nod but don’t say anything.
“It would have been a good resolution of the case; at least I felt at the time that it might have been a fair disposition,” says Tannery.
“Our client is a hard sell,” says Harry.
“Yes. My boss is that way, too. He wasn’t happy, but he allowed me to inquire. Since then, however, things may have changed.”
I can feel the breath go out of Harry.
“In what way?” I ask.
“Information that we are now investigating. Which may come to nothing, but if it pans out there will be no further offer of settlement. In fact, we may have severly undercharged the case in light of this information.”
“What kind of information?”
“We’re not at liberty to disclose right now,” he says. “Not until we’ve had an opportunity to check it out more thoroughly. But if it’s accurate, there’s a side to this case that none of us may have been aware of.”
“What are you talking about? If you have evidence, you’ve got to disclose,” says Harry. “There’s court policy, standing order in this county. If you have relevant information, any evidence, you have to turn it over.”
“It may not be relevant,” says Tannery. “In which case you would accuse us of sending you off on some wild-goose chase to waste your time in the midst of trial. That’s why we intend to check it out first. If there’s anything to it, we’ll get it to you immediately.”
“I see,” says Harry. “Right before we open our case in chief.” Harry is afraid Tannery will blindside us just before we put on our first witness, leaving us no time to prepare.
“I’m telling you now so that this does not come as a complete surprise later.”
“Telling us what?” I ask him.
“That you should be prepared for the possibility of a new element in the case.”
“Is this further incriminating evidence?” I ask him. We are now playing lawyers’ dozen.
“Could be. Goes more to the theory of the case,” says Tannery.
“It’s not documents?” Harry’s thinking the same thing I am. The cops have found the papers Crone claims Kalista Jordan took from his office.
“You’re thinking something specific?” Tannery is now fishing.
“Is it documents?”
“No.”
I could try to get an order from the judge to compel Tannery to turn over whatever he has. It would take me a day, maybe two. By then the cops would no doubt have checked it out. If it’s damaging, they will drop it on us, and the motion or the order would be moot. If whatever Tannery has doesn’t pan out, the entire matter is irrelevant. Tannery would simply have made our blood pressure rise for a couple of days.
Harry will want to go back to the jail and rack Crone, to find out what it is he hasn’t told us this time.
“When did you discover this information?” I ask him.
“Friday.”
“This last Friday?”
“That’s right.”
“Little late in the game, isn’t it?”
“We had no way of discovering this. Witness came to us. Out of the blue,” he says.
“A new witness? Someone not on your witness list?”
He nods.
“We’ll probably object to your putting whoever it is on.”
“We’ll have to thrash that out in court,” he says.
“How credible is this witness?”
He makes a face, shopkeeper assessing the value of goods, looking at the binder propped up against his chest so that I can’t see it. “One of the things we have to check out,” he says. “But we do know that the witness was in a position to know some of the details that have been given to us. It should not take long to obtain confirmation. I feel bad about this,” says Tannery.
“You should,” says Harry.
“No, I mean it. You guys have been straight shooters,” he says. “I really did want to do a deal. Thought we could. I did believe that it was an impulsive act. That your guy got in over his head, lost his temper. Workplace rage,” he says. “It does happen. I mean even with the mutilation. We don’t usually make an offer in such a case. You know the public sentiment,” he says.
“That was all done after she was dead,” says Harry.
“Soon after,” says Tannery. “We know that. All part of a single act.”
“So what are you saying?” I ask.
“What I’m saying is that if this information proves out, it could still be a crime involving a good deal of rage. But perhaps with a different motive.”
Harry and I are looking at each other, totally lost.
“What? The motive is less socially acceptable?” asks Harry.
“I think I’ve said all I can for the moment.”
Tannery is still studying the binder in front of him. I am wondering if he’s run into some stone wall, so that he is trying to reinvent his case, coming up with a new theory as to why Crone was angry with Kalista Jordan.
“We are not prepared to wait for long,” I tell him. “I am compelled to tell the court about our conversation here today.”
“I understand,” says Tannery. “We’ve already taken steps to do that.” He opens the binder in front of him, pulls out a single sheet of paper, letter sized, and hands it to me. “You’ll be getting a copy of this in the mail for your files.”
It is a letter to the trial judge advising that the state has exercised due diligence in discovering new evidence, that they have notified the defense of the nature, but not the details, of this information until the D.A. can assess its accuracy and relevance. Tannery has headed me off. It would be difficult to complain to the court when a disclosure has been made, even if it is only a partial one. His letter removes a lot of the wind from our sails were we to file a motion arguing that we’ve been sandbagged. Tannery is covering all his bases.
chapter
three
through years of practice in Capital City I had come to observe the disparate forms of evidence in criminal cases, everything from scholarly court lectures by experts to furtive undercover videos of politicians lapping up bribes while making crude jokes about “servicing the people.”
As entertaining as some of these might be, they could never match the chilling content of a schooled medical examiner reciting the details of a sudden and violent death.
Max Schwimmer’s speech still retains hints of an Austrian accent, a remnant of his childhood. “Of course” comes out “af coss.”
He is the county’s chief medical examiner, and today Tannery has him on the stand outlining the case of murder against my client.
At the hea
rt of the case is the infamous cable tie, a thin piece of white nylon. This one was nearly forty inches long, though one end had been cut. It is ratcheted on one side by tiny teeth molded into a nylon strip. When slipped into the yoke at the other end making a loop and pulled through, these teeth make a sound like a zipper as the tie is tightened. The tie locks in place and can be moved in only one direction, to tighten it. When pulled fast, it can hold tremendous tension. Cable ties may be purchased in any hardware store and are used by everyone from electricians to bundle mazes of wire, to cops who sometimes use them as temporary handcuffs to collar rioters. In this case, a cable tie was used to strangle Kalista Jordan.
“Doctor, can you state with certainty the cause of death?”
“Asphyxia. Technically, it was mechanical asphyxia.”
“You’re not saying that some machine did this?” Tannery is holding up one of the photos of the victim, her head looking like a purple blister about to burst.
“Mechanical asphyxia is a technical term. She was strangled, by the application of a ligature, in this case a nylon cable tie that was fastened and pulled tight around her throat.”
“I believe you stated earlier that the victim was rendered unconscious at some point prior to death. Do you know how long after the ligature was applied before the victim would have become unconscious?”
Schwimmer thinks for a moment. “Perhaps a minute, maybe two, after the ligature was tightened. Up here. Up high,” he says. The pathologist motions with both hands, front and back around his throat. “All movement by the victim would cease within three or four minutes.”
“So she might still be moving even though she was unconscious?”
“Some involuntary reflexes,” says the doctor.
“Would she feel pain during this period?”
“Oh, yes.”
“And how long before death took place?”
“The heart would stop beating within another five minutes.”
“So if my calculations are correct, from the time the ligature was applied to the point of death might have been anywhere from nine to eleven minutes?”
“That’s right.”
“So there is nothing quick, instantaneous or particularly humane about this kind of death?”
“Absolutely not.”
“Would you call it a lingering death in that it is slow?”
“Yah. Several minutes.”
“Would you call it a painful death?” asks Tannery.
“Objection. The witness has already testified that the victim was unconscious at the time of death.”
“Your Honor, I’m talking about the period before she became completely unconscious.”
“Overruled. The witness can answer the question.” Judge Harvey Coats is himself a former prosecutor. He was elected to the bench six years ago, knocking off an incumbent appointed by the governor, who failed to heed the warnings of local law enforcement that his man did not have their blessing.
“I would say that strangulation is a painful way to die,” says Schwimmer. “I would not choose it if I had a choice.”
“Would you call it an agonizing death, Doctor?”
“Objection.”
“I think you’ve made your point,” says Coats. “Move on.”
If Tannery wanted to drive this sword in deeper he would now take out his watch, turn to the jury, stare at them, and time it. Two minutes of silence would seem like a year. Nine to eleven minutes, assuming some tepid judge would allow it, would be an eternity. I have had it done to me, and I have done it to others. Fortunately for us, Tannery doesn’t think of this.
Instead he takes a different course.
“Can you describe for the jury the physical effects suffered by the victim as the cable tie was applied and tightened around her throat?”
“The tie is very strong. The one in question used here has a tensile strength of two hundred and fifty pounds.”
“What does that mean?”
“You could apply that much tension to the tie before it would fail, stretch or break. And it was thin. It produced a severe cutting edge when tightened. In this case it cut partially into the victim’s jugular vein.”
“Can you be sure that the victim died of asphyxiation? Is it possible that she could have bled to death?”
What the significance of this is I am not sure, but Schwimmer quickly puts it to rest.
“Asphyxiation. Due to ligature strangulation,” he says.
“Wouldn’t she tend to bleed to death if the jugular were cut?”
“If it were severed cleanly, completely, perhaps. But in this case the cable tie merely cut a deep ligature furrow that abraded a small portion of the surface of the vein. The orientation of this furrow was horizontal with just a little upward deviation at the posterior of the neck. There was some bleeding, including soft-tissue hemorrhage and abrasion, just below the ligature furrow. This groove, the ligature furrow, crosses the anterior midline of the neck, the front just below the laryngeal prominence. Here,” he says, “around the Adam’s apple. And fracture of the hyoid bone.”
“In layman’s terms?” says Tannery.
“The voice box was crushed. The breathing passage collapsed. There is no doubt. She died of asphyxia.”
“In nine to eleven minutes?” asks Tannery.
“Approximately.”
“Can you describe for the jury the physiological changes, what the victim would feel or experience as a result of asphyxiation by strangulation?”
“Yes. The pressure in the head would build as a result of constricted blood vessels, and the inability of the brain to obtain oxygen. There would be panic, a good deal of fear. The back of the tongue would be lifted and pulled into the posterior of the throat. This would block the airway. In a few seconds, the tongue would begin to swell. The head would turn a reddish purple. The lips would ultimately become cyanotic. . . .”
“What does that mean?”
“They would take on a pale blue to black color. Death would result from a lack of oxygen in the tissues of the brain.”
“How can you be sure this particular case was not suicide or an accident?” asks Tannery.
Schwimmer actually smiles at this. He looks at the D.A. as if perhaps Tannery is joking. “You mean apart from the fact that the body was dismembered after death?” asks Schwimmer.
“Yes. Apart from that. I’m talking about a possible hanging, suicide or accident as the cause of death, leaving aside what happened to the body afterward.”
Tannery is covering his bases, on the long shot that we try to defend on the theory that she killed herself, and Crone merely panicked for fear that he would be blamed, and disposed of the body.
Schwimmer considers for a moment. “Well the ligature marks. The bruising on the neck was not consistent with hanging if that’s what you mean. When a person hangs herself, assuming she could use this thing—this nylon cable tie to do this, you would get a V pattern of bruising on the neck.”
“A V?”
“Yes. The result of gravity on the body, pulling it downward, and sagging of the ligature. Here you have a straight line, a ligature mark—in fact, in places it is so deep as to be an incision. It takes a straight line, almost level all the way around the neck. This is consistent with asphyxia by strangulation from behind.”
“And how do you know it was from behind, Doctor?”
“Because when the body was recovered, the ligature was still tightened around the neck, embedded in the outer flesh. The yoke, where the cable tie is joined together in a continuous loop, was at the midline here.” He reaches around to the back of his neck. “It was notched just slightly above the first cervical vertebra at the posterior midline of the neck.”
“And what did you conclude from this?”
“That the victim died as a result of a criminal agency,” says Schwimmer.
“So the jury can understand, Doctor?”
“She was killed by someone else. ”
“You’re saying this was
a homicide? A murder? The intentional killing of another person?”
“That’s correct.”
Tannery turns away from the witness for a moment as if to regroup for the next assault.
“Doctor, would you say that the physical evidence as you observed it, the way the ligature was applied, indicated that some thought and preparation had been given to this act?”
“Objection. Counsel is leading.”
“Sustained. Rephrase the question,” says Coats.
Tannery does so and gets the answer he wants, that some thought and preparation went into the act. Schwimmer has brought some cable ties with him for purposes of demonstration. Tannery has him take several from a bag. One he gives to the judge, who studies it briefly and lays it on the bench. Another is delivered to our counsel table by the bailiff. Two others, with the court’s approval, start filtering through the jury box.
“These are identical to the cable tie used to kill the victim, Kalista Jordan,” says Schwimmer. “I believe they are made by the same manufacturer. They are designed as heavy-duty cable ties, thirty-four-point-eight inches long, three-eighths of an inch wide, made of white industrial nylon. They have a tensile strength of two hundred and fifty pounds.”
One of the male jurors has actually snapped the open end of one of the ties into the yoke and is pulling on the closed loop as if to test its strength. It doesn’t budge.
“In order to apply the tie to the victim in the manner in which I believe was done in this case, it would be necessary first to make a loop by inserting the open end into the yoke.”
Schwimmer demonstrates. The tie is now a large white nylon loop in his hand like a buckled belt, only much thinner, with the tip sticking through the yoke like a tail a couple of inches at one end.
“Why would that be necessary?” asks Tannery.
“If the loop were not started in this fashion, and if the victim were to struggle, it would be very difficult if not impossible for the killer to insert the end into the small opening of the yoke. Like threading a needle,” he says. “Very difficult to do if someone is jostling you, resisting. No, I believe it is clear that the cable tie was prepared in this fashion prior to the attack.”
The Jury Page 4
