“And this would indicate some thought and preparation by the killer?” Tannery is getting at the elements of premeditation and deliberation.
“Yes. Also there is evidence that the killer used a tensioning tool for leverage,” says Schwimmer.
“A tensioning tool?”
The coroner reaches into the bag again and comes up with a device that looks like a pistol with a long trigger. He holds it up for the jury and the judge to see, and we all examine this, though we have seen it before.
“This is specifically designed for tightening cable ties. The open end fits in here.” He feeds the open end of the tie into what would be the barrel of the gun until it hits bottom, then works the trigger. The tool grips the tie, and with each pull of the trigger more than two hundred pounds of pressure can be applied to the tie. The physics of leverage.
“Do you think the killer attached a tool like this to the tie used to kill Kalista Jordan . . .?”
“Yes.”
“Let me finish the question, Doctor. Do you think the killer used a tool like this, and that he or she did this in preparation for the murder?”
“I do,” says Schwimmer. “We found small impressions on the nylon tie used to kill the victim. These marks are consistent with a tool of this type, which is commonly used and sold with the cable ties.
“Also,” says Schwimmer, “such a tool would give the killer great leverage. The assailant would not have to pull the thin nylon with the hands.”
“Is that important?”
“Yes. Given the pressure applied, the nylon could easily have cut the hands.”
Tannery takes all this in, nodding as he paces a few feet away from the jury box.
Now he moves toward the witness. “Doctor, can you demonstrate how you believe the killer in this case applied the cable tie around the neck of Kalista Jordan?”
“Sure. I can do that.” Schwimmer gets up from the witness chair and comes out of the box into the well just beyond the clerk’s desk. There before the judge and jury, with Tannery playing victim, the coroner approaches from behind. Deftly he slips the looped cable tie over the D.A.’s head and swiftly pulls on the gun-handled tool to tighten it just short of full tension. There is the sound of an audible zip as the nylon teeth slip through the tiny locking yoke.
“Once it is snug,” says Schwimmer, “the killer would work the trigger on the tensioning device to tighten it. Two or three pulls would do it.”
“Thank you. I think that’s enough, Doctor.” Tannery tries to remove the tie by lifting it over his head, but it has been closed too far. It is clear to me, perhaps not to the jury, that the witness and Tannery have rehearsed this. The clerk has to lend Schwimmer a pair of good-sized scissors in order to cut the loop and remove it from around Tannery’s neck. The witness steps back up into the witness box and takes a seat.
The D.A. is left feeling with one hand around his throat, a not so subtle gesture for the benefit of the jury. “All things considered, and assuming the element of surprise,” he says, “this would be a very effective weapon, would it not, Doctor?”
“Oh, yes. And silent. It makes very little noise.”
“Once it’s locked in place and tightened, it can’t be removed except by cutting the nylon tie. Is that right?” As if Tannery had not just proved the point.
“Yes. That is correct.”
Tannery heads back toward his counsel table, begs the court’s indulgence and looks over a few notes, flipping pages as if to find his place, then comes back toward the box.
“Let me ask you, Doctor. You had an opportunity to observe the ligature that was used in this case before it was removed from Kalista Jordan’s throat. Is that correct?”
“Yes.”
“Did you remove that ligature yourself?”
“I did.”
“And where did you do this?”
“In the examination room at the coroner’s office. As part of the preautopsy examination. We also took photographs at that time.”
“And as part of that examination, were you able to determine anything else regarding possible identification of the perpetrator of this crime?”
“I was able to make certain determinations.”
“For example?”
“Based on the placement of the ligature around the victim’s throat, it is my opinion that the killer was left-handed.”
As he says this, Crone, who has been copiously taking notes at the table next to me, suddenly stops and lays his pen down. Unfortunately, he isn’t quick enough. Several of the jurors are looking at the ballpoint pen resting on the table, angled like an arrow toward his left hand, which just laid it down.
“Can you tell the jury how you came to this conclusion?”
“Ordinarily with a garrote, or a piece of rope, it might be difficult to tell,” says Schwimmer, “although the dominant hand usually leaves some telltale bruising where the hands cross over. The ligature is twisted as the assailant applies pressure. But in this case it is fairly easy, and certain. The reason,” he says, “is the design of the cable tie itself.”
He picks up a fresh one from the bag as if to emphasize.
“The assailant would insert the end of the tie into the yoke, making a loop.” Schwimmer does this with the tie.
“From the tool marks on the nylon tail it is clear that the assailant used a tensioning tool to gain leverage. This would give him a solid grip on the thin nylon. In doing this, in using the tool to pull the loop closed, it is natural that the killer would use the dominant hand to pull the handle of the tool, and the weak hand to position the loop in place at the posterior of the victim’s neck. That means that when the act was completed, when the cable tie was fully tightened, the tail of the tie passing through the yoke would pass from right to left behind the victim’s neck as it exited the yoke. The tail would be in the direction of the killer’s dominant hand. In this case, the left hand. This was, in fact, what I observed before removing the cable tie from around the victim’s neck.”
“Thank you, Doctor.” Tannery has some close-up photographs of this, which the witness quickly identifies. These are marked for identification and placed into evidence without objection. He then identifies the cable tie used to kill Kalista Jordan sealed in its plastic evidence bag, still coiled in its deadly loop even though cut. This, too, is lettered for identification and moved into evidence.
“Just as a point of information, Doctor, do you have any scientific basis or knowledge as to what proportion of the general population is left-handed?” asks Tannery.
“About ten percent,” says Schwimmer.
“A distinct minority,” says Tannery.
“Correct.”
I can feel Crone as he bristles at this.
“Were you able to determine anything else from your observations during or before the autopsy?”
“Yes. It was apparent that the killer was taller than the victim. I would estimate, approximately six feet in height.”
“And how did you determine this?”
“The ligature, while being applied nearly on a level, was pulled up slightly higher at the back of the neck. As I said, above the first cervical vertebra. That would indicate that as the killer applied pressure, the ligature was being pulled just slightly upward, accounting for a difference in height. I determined the assailant to be approximately six feet tall by taking the height of the victim and the slight angle of the ligature and making some calculations.”
“I see.” Tannery then takes the witness through the process of dismemberment, the fact that Kalista Jordan’s arms and legs were severed neatly at the joints. Three of these were never found when her torso floated up on the beach along the strand.
“Could you tell how long she had been in the water?”
“At least three days.”
“Could sharks or other predators have accounted for the missing limbs?”
“Not unless they had medical training,” says Schwimmer. Several of the jurors laugh at the dark hum
or.
“Objection.”
“Sustained.”
“Could sharks have accounted for this?” Tannery holds up one of the photographs toward the jury.
“No. There were no tooth marks, no broken bones. Whoever dismembered the body after death knew what he or she was doing.”
“Is it likely that this person had medical or surgical training?”
“Objection.”
“I’m asking the witness for his expert opinion,” says Tannery.
“I’ll allow it,” says the judge.
“It’s possible,” says Schwimmer. “The incisions at the joints were made by a very sharp instrument.”
“Like a scalpel?”
“Possibly.”
“Thank you, Doctor. No further questions.”
Coats looks down at me. “Your witness, Mr. Madriani.”
The tactic here is always the same, playing the game of the possible. Securing little wedges of concession from the expert, issues on which he cannot be absolutely certain, and to maneuver for openings that can be exploited.
“Dr. Schwimmer. Am I pronouncing your name correctly?”
He nods and smiles.
“In your autopsy report you stated that the victim suffered several severe lacerations and contusions to the head.”
“That’s true.”
“Were you able to determine what caused these?”
“No.”
“Do you know whether these contusions and lacerations were suffered before death or after the victim was killed?”
“No. It was not possible. The body was in the water too long.”
This was a point covered in his report. Ordinarily, bleeding into the tissues surrounding a contusion or laceration might indicate that it was an injury sustained before death, before the heart stopped beating. In this case, immersion in salt water for two or three days destroyed many of the forensic signs that the state might have followed.
“So it’s possible that these bruises, the contusions and lacerations on Kalista Jordan’s head, were inflicted before death.”
“It’s possible.”
“As I recall from your report, there were three distinct contusions, one on the left side in the parietal area, and two to the back of the head near the right temporal region. Is that correct?”
“I believe so.”
“Would you care to consult your report?”
“No. That’s correct.”
“Were any of these contusions, particularly the two to the back of the head, consistent with blunt-force trauma?”
He thinks for a moment, evaluates the issue, a theologian splitting hairs.
“You understand what I mean by blunt-force trauma, Doctor? The application by force of a blunt instrument used to strike the head of the victim.”
“I understand.” He looks at me sternly as if I’m questioning his credentials.
“It’s possible,” he says. “She could also have fallen, striking her head. Or the injuries could have occurred after she was in the water. Wave action being thrown into rocks. It’s not possible to tell,” he says.
“But it’s possible that these contusions were the result of blunt-force trauma, before the victim died, is it not?”
“Yes.”
“It’s possible, is it not, that they could be the result of the assailant or assailants striking the victim, Kalista Jordan, with a blunt instrument in order to render her unconscious?”
“It’s possible.”
The opening I’m looking for.
“So if one or more of these contusions to the head were the result of blunt-force trauma, isn’t it possible that the victim was not only unconscious at the time of death, but that she may have been unconscious at the time the cable tie was applied over her head, or around her neck, and tightened?”
He thinks about this for a moment, and then finally says: “I don’t know.”
“Isn’t it possible that blows to the head, blows sufficient to cause these contusions, could have rendered the victim unconscious, Doctor?”
The problem for Schwimmer is that he cannot know. A concussion, one sufficient to knock a person unconscious, is virtually impossible to detect, even from tissue slides of the brain following an autopsy. It is difficult to argue with what he cannot know.
He begins to nod in concession. “It’s possible,” he says.
“And if these blows did render the victim unconscious, then there would have been no struggle. No need to slip up behind the victim. No need to prepare the cable tie in advance and no need to attach the tensioning tool before the killer actually used it. Isn’t that true, Doctor?”
“I suppose. If the blows, as you say, rendered her unconscious. We do not know that.”
“But we know that she suffered these contusions.”
“Yes.”
“And we know that they could have been caused, that it’s possible they were caused by blunt-force trauma and that this could have occurred before death?”
“It’s possible.”
I take a long breath. He has opened the door just a crack.
“Let’s assume, for a moment, that the victim was knocked unconscious by blunt-force trauma before the cable tie was applied. Is it not fair, then, to assume that she would be lying down on the ground or the floor, or at least not standing on her own two feet, when the cable tie was applied?”
“I suppose. It’s possible.” He is now slipping behind the curve in the game of possibilities.
“Possible? If she were unconscious, how could she be standing?”
“She couldn’t. She would be in a supine position.”
“Lying down. In fact, collapsed. Isn’t that true?”
“Yes.” Schwimmer can see where I am going, but he can’t avoid it.
“And if this were the case, if she were lying down, then the cable tie could easily have been placed around her neck and the end slipped into the yoke afterward?”
“I suppose.”
“And in that case the assailant would not have worried about which hand was dominant in order to pull the cable tie tight, would he?”
“Oh, I think he would still use his dominant hand.”
“Yes, but if the victim were lying down, we don’t know whether the assailant was standing over her head facing her feet when he pulled the tie closed, do we?”
He sees the problem.
“In that case, the killer would be pulling the cable tie closed with his right hand in order to have the tail of the tie pass from right to left through the yoke. He could be kneeling on her shoulder, reaching across his body and pulling it like he was starting a chain saw. Isn’t that a fact, Doctor?”
“Well, if the relative positions of the parties are changed . . .”
“What’s changed is that the victim is down and unconscious,” I tell him. “And if that’s the case, then your opinion as to the killer’s dominant hand is no longer relevant, is it?”
“No. Assuming those facts.”
It wasn’t hard for the cops to determine that David Crone was left-handed, and to tailor their case accordingly.
“So that we’re clear, if the victim were lying down, since she could have been approached from any angle, is there any way to be certain which hand was used to tighten the cable tie?”
He thinks for a moment, looking for some way out, then concedes the point. “No.”
“Nor is there any way to determine the height of the assailant, is there? If the victim were on the ground.”
“No.”
“So the killer could have been a right-handed midget for all we know.”
I don’t get a response from Schwimmer, at least not a verbal one.
“Not to make light of the victim and what she lost,” I say, “but the fact is that all your testimony about the pain and suffering, the fear and agony brought out by Mr. Tannery in his direct, all that would be similarly in error if the victim had been rendered unconscious by one or more sharp blows to the head. Isn’t that a f
act?”
“Yes. But we don’t know if she was rendered unconscious.”
“We don’t know that she was not, do we?”
“No.”
“All we know is that someone killed her. We don’t know how tall he or she was, or which hand he or she used.” I don’t make a question of this, something he can argue with.
“That’s all, Your Honor.”
chapter
four
she sits on her mom’s lap and looks at me with big brown eyes under a mop of shaggy hair that hasn’t been clipped in months. Penny Boyd doesn’t like having her hair cut, and given her condition, her mother no longer makes her do things she doesn’t like. Penny is nine. She will be lucky if she sees her next birthday.
I first met her with her mom and dad at a PTA function almost a year ago. At the time, Penny seemed fine, just another healthy fourth grader. Her parents, Doris and Frank Boyd, have two other children: twelve-year-old Jennifer, my daughter Sarah’s best friend, and a boy, Donald, who is seven. But Doris and Frank harbor a terrible secret. The family lives under a dark cloud that Penny and her siblings still do not comprehend. I have had to keep the specifics from Sarah and develop codes when talking to other parents when she is around.
A few months before I met them, Penny had a problem. The Boyds were at an amusement park. The kids were watching the orcas do their thing, when a wave overshot the side and splashed the front rows. Children went screaming and giggling up into the stands looking for cover, all except Penny, who lay on the concrete floor in convulsions. She had suffered a seizure of some kind. Doris and Frank raced her to the hospital, where doctors conducted a series of tests and held her for observation. After no further recurrences, the doctors were at a loss. They released her, but told her parents it was possible that Penny had epilepsy. They were wrong.
Over the next few months, Penny began to show disturbing signs of withdrawal. She had always been an outgoing child with strong social skills, and quick to learn. Now she began to regress, to turn inward. She stopped playing with other children and began having difficulties with her studies. Teachers identified her as having what they termed learning disabilities. The family tried a private tutor, but the problem got worse. They took her to the family doctor, a pediatrician who had cared for all three of the Boyd children since birth. He was stumped.
The Jury Page 5
