02 - The Guilty Plea

by Robert Rotenberg

  “I don’t see this as a rubber stamp, Your Honor,” DiPaulo said. “I have some questions for the good doctor.”

  His voice was firm, filled with resolve. Oh, you’re smart, Ted, Raglan thought. Play possum for a few days, and then when you finally start to growl, the jury is all ears.

  “Go ahead.” Norville’s curiosity was now piqued.

  “Dr. Burns, I’d ask you to turn to your list of publications,” DiPaulo said.

  “Gladly.” Burns licked his lips. Relishing the prospect of talking about his favorite topic—himself.

  “You testified that you have more than three hundred published works. By my count you’ve got three hundred and seven. Sound correct?”

  “If you say so. I have my secretary update the list monthly, and honestly, I don’t bother to count.”

  “And you’ve written five books, correct?”

  “Five I’m sure is the right number. All still in print, I’m happy to report.”

  DiPaulo didn’t even acknowledge Burns’s attempt at bantering. He pressed on.

  “I did some calculations. By my estimate you’ve written more than seven thousand pages. Assuming four hundred words per page, you’ve written more than two and a half million words. That sound about right?” Raglan knew that complex numbers were powerful things in court. They had the ring of factual truth about them.

  Burns grinned. He was eating it up.

  Pride before the fall, Raglan thought. She knew her old mentor was going somewhere with this, and it couldn’t be good.

  “Two and a half million words.” Burns smirked. “Never thought of it in those terms. Has a nice ring to it, if I do say so myself.”

  “You’ve written articles about gunshot wounds, poisoning, bludgeoning, accidental and intentional falls, asphyxiation, choking, blunt force trauma, drowning, burning. You’ve practically covered the whole gamut, haven’t you?”

  Burns’s eyes squinted and his cheeks bulged, making his little face look grotesque. “I like to think so.”

  Shit, Raglan thought, seeing where DiPaulo was going with this. “Everything but knife wounds, correct?” DiPaulo was speaking gently now, but his words were as hard as steel.

  “Well, perhaps.” Flustered, Burns reached for his stack of papers and began thumbing through his lengthy list of publications. It was the worst possible thing a witness could do, Raglan thought. Far better to admit it.

  “You can look for as long as you like, Dr. Burns,” DiPaulo said. “I can assure you, there are no articles about knives or stab wounds.”

  “Well, I may not have written a specific article about knife wounds, but I’ve done hundreds of autopsies of stabbing deaths. Testified in court about them many, many times. I consider myself an expert on them.”

  “Perhaps we’ll let the judge make that decision,” DiPaulo said.

  “Well, yes. Certainly.”

  “Two and a half a million words. None about knife wounds. Agreed?”

  “I can’t totally agree. I’m sure that I touched upon the topic, at least peripherally, in many of my publications.”

  “I’m sure you did.” DiPaulo wasn’t the kind gentleman lawyer anymore. “But never in the title, right?”

  “Well—”

  “No further questions of this witness.” The way DiPaulo said the word “witness,” it sounded as if the doctor were a total fraud.

  Raglan stood up. To try to rehabilitate him, she ran Burns through his résumé and let him go on and on about how many times he’d done autopsies involving knife wounds. He’s dying the death of a thousand cuts, she thought, the way DiPaulo had planned it.

  When Raglan was done, Norville looked at both lawyers. “What’s the defense say about the qualifications of Dr. Burns to testify at this trial as an expert witness?” she asked DiPaulo.

  “I have no submissions at all,” he said.

  Very shrewd, Ted, Raglan thought. Norville would have no choice but to qualify Dr. Burns as an expert, and Raglan was stuck with him.

  She looked back at the clock. It was 11:30 Friday morning. The weekend couldn’t come soon enough.

  55

  “Dr. Burns.” Ted DiPaulo bounded to his feet the moment Jennifer Raglan sat down. It was three in the afternoon. She’d had Burns on the stand the rest of the morning and for an hour after lunch, going through his autopsy report and the seven knife wounds.

  DiPaulo made a point of not looking at the jurors, but he could feel they were on the edge of their seats. They knew from his earlier attack on Burns’s qualifications that he was up to something. His plan was to finish his cross-examination at the end of the day and send them home for the weekend with Dr. Burns foremost in their thoughts.

  “There were seven stab wounds, correct?” he asked.

  “Yes, I just testified to that,” Burns said.

  “You’ve numbered them on your autopsy report and on the blowup you’ve placed on the easel?”

  “Standard procedure.”

  “May I please see Exhibit Fifteen E?” DiPaulo asked the registrar. He grabbed Burns’s autopsy report and moved swiftly to the witness stand.

  “The wounds are numbered one to seven, but these numbers don’t indicate any order in which they were inflicted. Do they?” He shoved the report right under Burns’s nose.

  “Correct,” Burns said, hesitant with this answer.

  DiPaulo jumped right in. “Let’s be clear, Dr. Burns.” It was important to keep the pace of this cross-examination fast. That way, when DiPaulo backed Burns into a corner and the doctor’s answers slowed down, it would accentuate his uncertainty. “There’s no scientific or medical way to establish which of these knife wounds came first, second, or last. Right?”

  “That’s right.”

  “And you can’t even be sure if they were all done by the same knife, can you?”

  This question took Burns by surprise. “That’s … true”—he stuttered—“but … I would point out that wounds three, four, five, and seven are all puncture wounds with a single-sided knife, so there’s some consistency there.”

  “Even wound number one. It’s superficial, but it was probably a one-sided blade. Correct?” DiPaulo wanted the jury to know that he understood the evidence as well, if not better, than the Crown’s so-called expert.

  “Yes.” Burns smiled. “I thought to mention that, but I couldn’t be entirely certain.”

  DiPaulo gave him a broad smile. “And since you’re under oath in a first-degree murder trial, you want to be absolutely certain about any conclusions you draw for the ladies and gentlemen of the jury.”

  “Right.” Burns’s little face lit up.

  “Now, time of death—that’s one of those things we see on TV shows as something that can be easily ascertained. But that’s a fiction, isn’t it?” As he spoke, DiPaulo walked back to his counsel table and grabbed a stack of articles. “In fact, Doctor, one of your more than three hundred papers was on this subject.”

  DiPaulo handed a copy over to Raglan, then approached the bench and gave one to the registrar to hand up to the judge. At the witness-box he proffered a copy to Burns.

  The little man held up his hands. “Thank you, sir, but I don’t need to see a copy. I remember what I wrote.”

  “Well, let’s see. Here on page four, Your Honor will see it’s highlighted in yellow: ‘Estimating the time of death is the biggest mug’s game going. In most cases of recent death, the best an honest pathologist can say is that the time of death was some time between the killing and the finding of the body.’”

  “Exactly,” Burns said.

  “So,” DiPaulo said, “in this case we have no estimate of the time of death.”

  “None.” Burns flipped through his copy of the autopsy report. “That’s right.”

  “We don’t know when Terrance Wyler was killed, and we don’t know in which order these seven knife wounds occurred. Agreed?”

  “Well, yes. Agreed.”

  “But you know which knife wound killed T
errance Wyler. It was number two on your chart, wasn’t it?”

  “Yes,” Burns said. “That’s an unusual feature of this case. It wasn’t any of the big stabs that killed him, but this small wound to his neck. Hit the carotid artery. Just nicked it, actually.”

  “And that could have been the last stab, or the first. No way to know. Right?”

  “I can’t see how it would matter.”

  “Doctor, I have a suggestion. Why don’t you let the judge and jury decide what matters in this case?” DiPaulo rarely let himself get angry in court but this was no act. The man was insufferable. He glanced over at Norville. She looked less impressed by the little doctor with the big ego. Guy should be renamed Dr. Toolittle, DiPaulo thought, chuckling to himself.

  “I … I didn’t mean it like that,” Burns said.

  DiPaulo walked away from Burns, went to the easel, and pointed to the neck area on the drawing. “Let’s try again. This stab wound number two, which I’ll call the killing wound. It could have been the first stab. Right?”

  “Well, when you put it that way, it is possible.”

  DiPaulo raised his voice. “Dr. Burns, don’t put words in my mouth. I’m asking for your evidence. It is possible that stab wound number two, the one and only killing wound, happened first. Yes or no.”

  “Yes.” Burns looked unsure of himself.

  “If this stab number two happened first, Mr. Wyler would have died quite quickly. Right?”

  “Yes. He would have bled out.”

  “Four minutes, that’s your estimate in your autopsy report?”

  “Yes.”

  “Enough time for the other six wounds to have been inflicted, after. Correct?”

  “I suppose so.” Burns looked up at DiPaulo, afraid now. “I mean, yes, that would be possible.”

  He’s on the run, DiPaulo thought. Time to move in for the kill. “A stab wound to the neck like this doesn’t require a lot of force, does it?”

  “Not necessarily.”

  “Please answer my question. A stab wound to the neck like this doesn’t require a lot of force. True or false?”

  “That is correct. I mean true.”

  “It’s an extremely vulnerable part of the body. For example, that’s why we require that young hockey players wear neck guards. Isn’t it?”

  DiPaulo glanced over at Jennifer Raglan. Her older two boys had been hockey players, and she’d told him her daughter had started. She’d get it. So would the jury. Twelve Canadian jurors, there had to be a hockey parent among them.

  Raglan kept her head down, making notes. But he was sure he saw her flinch.

  “Yes, that’s why they’re called neck guards,” Burns said. He chuckled at his own little joke, but no one else in court laughed.

  DiPaulo slid two fingers down the side of his own neck, under his ear. “You can feel the pulse here, can’t you?”

  “Yes.” Burns mimicked his actions. DiPaulo knew that back in the jury room, the jurors would do the same thing.

  “Skin’s soft. Easily cut.”

  “Yes. I suppose if an attacker knows where to put the knife.” Burns turned to the jury, smirking at the point he thought he’d made.

  “Let’s stop supposing. The neck is easily cut, even by accident.” DiPaulo said. “Correct?” He didn’t add yes or no. By now the jury would expect a straight answer. If Burns didn’t give one they wouldn’t be impressed.

  “I don’t think I’d call seven stab wounds an accident.”

  “I’m talking about wound number two. The fatal wound—that could have happened first. Could it have happened by accident?”

  “I don’t see how.”

  “Does that mean no? Are you testifying under oath at this first-degree murder trial that wound number two couldn’t have been an accident? Is that your expert evidence?” DiPaulo was breaking a basic rule of cross-examination: never ask a witness more than one question at a time. Good, he thought. Rules are made to be broken.

  Burns laughed. He turned to the judge, who glared back at him, stone-faced. Flustered, he looked out at the audience in the courtroom. “I’ve never heard of this type of ‘accidental’ stabbing. The answer is no, it could not have been an accident.” He’d retreated to sarcasm, trying to make the word “accidental” sound like a childish notion. He looked proud of himself.

  “You’ve never heard of an accident, such as two girls, sisters, cutting up some apples to make a pie with their mother. A knife flies out of the hand of the older one and kills her younger sibling?”

  Burns looked at DiPaulo, trying to paint sympathy on this face. “Sounds like a fantasy to me. I’ve never heard of anything like that.”

  Bingo. I love this job, DiPaulo thought as he returned to his table and picked up a second stack of papers he’d placed facedown there. “But you’ve heard of the Journal of Forensic Medicine, correct, Doctor?” He turned back to his witness, like a shark circling in on its wounded prey.

  “I’ve published there many times.”

  “Dr. Andrew Flacks? Heard of him?” DiPaulo looked over at the jury. It was past four o’clock on a Friday afternoon after an exhausting week of evidence, and they all looked wide-awake.

  Burns chuckled. “Dr. Flacks is one of the world’s top forensic pathologists.”

  “With expertise in knife wounds,” DiPaulo said. “He’s published fifty-seven articles on the subject. That sound about right?”

  “Andrew’s good with knives.”

  “Take a look at this article he wrote last year.” DiPaulo distributed copies to Raglan and the registrar to give to the judge. He took a leisurely detour to give another set to the court reporter before he moved in on Burns. “Please read the highlighted portion out loud for us, Doctor.” DiPaulo faced the jury head-on. He found himself looking at juror number twelve in the far corner. The dirt engineer in training. She was staring at him. “Why don’t you start with the title, Doctor.”

  He could hear Burns fumble with the pages.

  “The title is ‘Accidental Fatalities by Means of Knife Wounds.’ And it is by Andrew—I mean Dr. Flacks. Published over a year ago.”

  The jurors were looking back and forth over DiPaulo’s shoulder at Burns and back to DiPaulo. Except for juror number twelve. She stared at him the whole time. He stayed steadfastly silent.

  More rustling of papers behind him.

  “I get hundreds of medical papers every year and certainly try my best to keep up with the literature,” Burns said. “This does appear to be one of those rare cases you described.”

  “Dr. Burns, please. Read the passage.” DiPaulo was doing everything he could to keep his face neutral. Never, ever gloat in front of a jury.

  The courtroom was a place of noise. The judge, the lawyers, the witnesses, someone was always talking. Even with the jurors, there were footsteps, the moving of chairs, the occasional cough.

  It was stunning when a big courtroom like this, packed with people, became totally silent. And for DiPaulo, oh, so delicious.

  In the audience DiPaulo heard a clattering, metallic sound. The jurors all looked. It was Jason Wyler. One of his two canes had tumbled to the floor. He pushed himself up as his mother reached down for the fallen cane, and he grabbed it from her before he hobbled out. His mother got up, gave a distressed look back, and accompanied him, step by step, to the exit.

  No one said a word until the big oak door, which the officer on duty opened for them, had swung shut.

  Never forget, with all the pomp and ceremony of the trial, that you are dealing with real people in real pain, DiPaulo reminded himself.

  Dr. Burns cleared his throat. “It says, ‘Whilst the younger sister, Tabatha, was cutting into a russet apple, the knife flew from her hand. Contact was made on the left side of the neck of the older sister, Maria, penetrating the skin and the carotid artery. The patient expired within four minutes.’”

  DiPaulo allowed himself the slightest smile. The jurors were nodding at him.

  It’s an unnatu
ral, one-way communication a lawyer has with members of the jury. One party is so talkative. The other is forced to be silent. Only through the eyes, and little head gestures, could they communicate.

  DiPaulo looked from juror to juror. The message they were sending back to him couldn’t be clearer if they’d shouted it out. The doctor’s a conceited fool. Yes, it could have been an accident.

  He turned from the jury box and walked up to Burns. The man’s face was burning red. DiPaulo plucked the report out of the doctor’s hands and ambled back to his table. Quit while you’re ahead. That’s what he’d been teaching lawyers for decades.

  DiPaulo dropped the report. It landed with a satisfying thwack. He looked at the courtroom clock. It was 4:30. He’d opened up a fat crack in the Crown’s case. The jury would have all weekend to think about it. So would Samantha. He’d thrown his client a lifeline and could only hope she’d grab it.

  “Your Honor, I have no more questions for the Crown’s expert witness.” His voice was dripping with sarcasm. And the jury knew what he meant: Dr. Burns was an incompetent ass.

  56

  There’s a certain day-to-day rhythm lawyers fall into when they’re doing a murder trial. Jennifer Raglan had been through this many times and it never changed. Before a case started she’d dread what it would do to her life. But after a week or two she’d begin to embrace it, knowing that when the case was over, for all the disruption it caused, she’d miss the amazing intensity. Stuck in the same courtroom day after long day, using every moment out of court to work, you developed a kind of Stockholm syndrome and learned to love your captors. In this case it wasn’t armed terrorists, but the relentless pressure that kept her contained in the world of the trial.

  As the days wore on, everything was defined by her life in court. Raglan even calculated time differently. Not in terms of hours or minutes, but by witnesses. How many had testified already? How many to go? And trial days. How many days had she been in court? How many lay ahead?

  Maybe it was the routine of it that Raglan found comforting. Her days started at five-thirty in the morning. She’d go down to the kitchen table and spend an hour reviewing the notes she’d made the night before about the witnesses to be called that day. She’d make coffee for herself and Gordon and lunches for the kids—stuffing them with little “I love you, Mommy” notes on different colored craft paper—be in the shower by seven, and out of the house by seven-thirty. A half hour on the streetcar, where she’d read over more of her notes, and in the office by eight. The next two hours would go by in no time: getting everything ready for the long day to come, putting on her robes, strategizing with Greene. Court ended at four-thirty, and then there were witness interviews, transcripts to review, legal research, cross-examinations to prepare, all the while eating a salad and pizza and calling the kids from the office to say goodnight. She tried not to get home later than ten, when she’d lay out the papers on the kitchen table. The next morning she’d start all over again.