MD05 - The Confession

by Sheldon Siegel

  She’s ticked off another item on her list: she’s placed Ramon at the scene–not just once, but twice. She keeps Johnny up on the stand to talk about crime scene procedures and evidence collection, and she introduces a poster-sized diagram of Concepcion’s apartment. I make a few gratuitous objections, but his testimony is factual and I have no grounds to complain. Good lawyers know you have to pick your spots. She has all that she needs less than ten minutes later when she turns to me and says, “Your witness.”

  I button my jacket and head to the lectern. Johnny has established a rapport with everybody in the courtroom and I don’t want to crowd him. It’s unwise to mount a full frontal attack on a likeable witness, but I can’t afford to roll over. “Officer Nevins,” I say, “you mentioned that you spoke to a witness who heard Father Aguirre’s voice inside Ms. Concepcion’s apartment at approximately nine-forty-five that night.”

  “That’s correct.”

  “Did she see him enter Ms. Concepcion’s apartment?”

  “No.”

  Good. “How did she know it was Father Aguirre?”

  “She had met him on a couple of occasions.”

  “Did she know him well?”

  “No, she didn’t.”

  “Yet she was able to positively identify his voice?”

  “Yes, she was.”

  “Do you know the approximate age of the witness?”

  “Sixty-four.”

  I ask if she was in good health.

  Ward decides to try to slow me down. “Objection. Officer Nevins isn’t a doctor.”

  “Sustained.”

  “I’ll rephrase.” I turn back to Johnny and say, “Without making any medical determinations, did it appear to you that the witness was in good health?”

  Ward starts to stand, but reconsiders.

  Nevins says, “As far as I could tell.”

  “Did she have any trouble hearing you when you questioned her?”

  “No.”

  “Did you ask her what she was doing that night?”

  “Watching television.”

  “Was her door open?”

  “No.”

  “So a woman in her mid-sixties who was watching TV was able to positively identify the voice of a man whom she’d met on only a couple of occasions?”

  “That’s correct.”

  “And she was absolutely sure it was Father Aguirre?”

  “Yes.”

  In other circumstances, I might be able to win this case by claiming she was mistaken or that her hearing was bad, but we already know that Ramon was there and I’ll lose credibility if I suggest he wasn’t. I move on to a more important legal point when I ask, “Did she see Father Aguirre stab Ms. Concepcion?”

  “No.”

  “Did any witnesses see him stab Ms. Concepcion?”

  “No.”

  “So, as far as you know, it is possible that someone other than Father Aguirre may have stabbed her, right?”

  I get the expected objection from Ward. “Speculative,” she says.

  Time for semantic games. “Your Honor,” I say, “I’m not asking Officer Nevins to speculate. I’m asking for his personal knowledge based upon his expertise as to whether it’s possible that someone other than Father Aguirre may have stabbed Ms. Concepcion.”

  Judge Tsang sees it my way. “Overruled.”

  Nevins rolls his eyes and says, “I have no personal knowledge that the defendant stabbed the victim, nor did I interview anyone who had personal knowledge that he had done so.”

  We’re on the board. I’ve established that this is a purely circumstantial case. “Officer Nevins,” I say, “you don’t know how Ms. Concepcion died, do you?”

  “It isn’t my job to make that determination.”

  “But as far as you know, she may have taken her own life, right?”

  Ward is up again. “Objection. The question is speculative and calls for the witness to come to a conclusion based on expertise for which no foundation has been established.”

  “I’m not calling upon Officer Nevins to make a medical determination,” I say.

  Judge Tsang doesn’t buy it. “It sounds to me that it is exactly what you’re asking.”

  True. “Not true. I’m simply trying to demonstrate that Officer Nevins has no personal knowledge as to the cause of Ms. Concepcion’s death, and, as such, he cannot rule out a suicide.”

  Judge Tsang exchanges a glance with Nevins, then he turns back to me and says, “I’m going to sustain the objection, Mr. Daley. If you want to ask someone to provide a medical opinion as to the cause of death, I would suggest you talk to the chief medical examiner.”

  That’s precisely what I intend to do.

  Chapter 44

  “It’s In My Report”

  “Dr. Roderick Beckert has handled the autopsy in every major murder investigation since Richard Nixon was in the White House.”

  — Profile of Dr. Roderick Beckert. San Francisco Chronicle.

  There’s been a change in the line-up when we resume, and Bill McNulty has taken Nicole Ward’s place at the podium. Ward had her moment of glory when she opened in front of a packed house, but she’s astutely handed the ball over to her best nuts-and-bolts interrogator. McNasty’s face is contorted into the familiar grimace. What he lacks in charm, he makes up for in preparation and tenacity. His voice fills with reverence when he says to the next witness, “Please state your name and occupation for the record.”

  “Dr. Roderick Beckert.” His tone exudes the confidence of Alex Rodriguez when he’s swinging at a belt-high fast ball over the middle of the plate. “I’ve been the chief medical examiner of the City and County of San Francisco for thirty-seven years.” He settles into the uncomfortable wooden chair and pours himself a glass of water. The camel-hair jacket and the cheap paisley tie have been replaced by a charcoal Wilkes Bashford double-breasted suit and a subdued rep tie. He may be a character in the bowels of the Hall, but he’s all business in court.

  McNulty is clutching a copy of the autopsy report with the same respect that one would use when holding a Bible. He approaches Beckert cautiously and lobs the first softball. “Would you be kind enough to summarize your academic and professional qualifications?”

  Some of the younger reporters might be interested in hearing about Beckert’s advanced degrees from Johns Hopkins and his teaching career at UCSF, but I’ve heard it before and I’m inclined to skip the recitation. “Your Honor,” I say, “we’re prepared to stipulate to Dr. Beckert’s expertise in the field of pathology.”

  Judge Tsang is pleased. “The record will reflect the fact that the defense has stipulated to Dr. Beckert’s qualifications,” he says.

  McNulty takes a moment to find his place in his carefully-scripted notes. He was planning to walk Beckert through his credentials and now he has to fast forward his presentation. He holds up a copy of the report and asks, “Do you recognize this document?”

  Beckert identifies his report and McNulty introduces it into evidence. I don’t challenge its existence, but I’ll take a few potshots at what’s inside.

  McNulty approaches the witness box, hands Beckert his report, and begins slowly. “When did you first see Ms. Concepcion’s body?”

  “It’s in my report.” He leafs through the document and says, “I arrived at her apartment at ten-thirty A.M. on Monday, December first.”

  McNulty lowers his voice and asks if Concepcion was still alive at the time.

  “No, she was not.”

  The courtroom is silent.

  “Dr. Beckert,” McNulty continues, “where was the body when you first saw it?”

  “On the floor of her bathroom.” He glances at Lita and explains that she found her daughter’s body in the bathtub at nine-thirty that morning. “She called the police and the paramedics immediately, but it was too late. The paramedics moved the body from the tub to the floor in their attempts to revive her, but their efforts were unsuccessful.”

  “At what time was
Ms. Concepcion pronounced dead?”

  “Ten-thirty-four A.M.” Beckert correctly notes that an official pronouncement doesn’t necessarily coincide with the time of death. “The victim is pronounced when medical personnel arrive. Ms. Concepcion had passed away quite some time before her body was discovered.”

  Medical examiners never use euphemisms such as “pass away” unless a member of the victim’s immediate family is present.

  “Dr. Beckert,” McNulty continues, “were you able to make a determination as to the time of death?”

  “It was between ten-forty-five on Monday night and one o’clock on Tuesday morning. He goes through a clinical analysis of blood loss, body temperature, lividity and extent of digestion of the food in Concepcion’s stomach in support of his conclusion.

  McNulty gives him an inquisitive look and says, “As I recall, the initial version of your report set forth a different time frame.”

  “It did.” Beckert acknowledges that he first concluded Concepcion could have died as early as nine-thirty. “Based upon credible evidence provided by a witness who was present at the scene, I revised my original analysis.”

  “Would you describe that evidence?”

  “The witness saw the victim walking to her apartment at approximately ten-forty P.M.”

  “Which means she was still alive at that time.”

  Nothing escapes McNulty’s keen eye.

  “That’s correct,” Beckert says. “The name of the witness is Nicholas Hanson.”

  We’ll be hearing from him shortly.

  McNulty is still doing damage control. “It isn’t uncommon for you to change your conclusions from time to time, is it?”

  “No. When new and better facts become available, we add them to the analysis.”

  “Can you be more precise about the time of death?”

  “I’m afraid not. The fact that the body was submerged in water prior to its discovery made an exact determination impossible.”

  “Dr. Beckert,” McNulty says, “you concluded the cause of Ms. Concepcion’s death was blood loss, correct?”

  I can’t make it that easy for him. “Objection,” I say. “Leading.”

  “Sustained.”

  McNulty gives me an impatient sigh and says, “I’ll rephrase the question, Your Honor.”

  I knew he would.

  “Were you able to make a determination of the cause of Ms. Concepcion’s death?”

  “Yes. She experienced significant injuries that led to acute hypotension, which ultimately resulted in a cessation of vital bodily functions. In layman’s terms, she bled to death.”

  “And you have no reason to doubt your conclusion?”

  “Objection,” I say. “Asked and answered.”

  “Sustained.”

  McNulty darts an apologetic look toward Concepcion’s mother and then launches a pre-emptive strike in anticipation of our next argument. “Did you consider the possibility that Ms. Concepcion may have committed suicide?”

  “I did, and I concluded she did not.” He parrots the analysis he gave me at his office. He emphasizes Ramon’s thumbprints on the back of Concepcion’s neck and swears that he found evidence of a trauma on her right shoulder. I object sporadically and for all practical purposes, inconsequentially.

  McNulty returns to the podium. “Dr. Beckert,” he says, “did you find any alcohol in the victim’s bloodstream?”

  “A slight amount. She was well below the threshold for driving under the influence.”

  “What about prescription medications or other substances, illegal or otherwise?”

  It’s a standard ploy: he’s ruling out an accidental overdose.

  “None,” Beckert says. He confirms that Concepcion’s medical records indicated she had been given a prescription for Prozac.

  McNulty picks up his notes and rolls them into a tube that he uses to gesture. “Was there anything else of note about Ms. Concepcion’s physical condition prior to the time she died?”

  “She was pregnant.”

  McNulty reacts as if he’s just revealed a deep, dark secret. “Did you conduct any tests on the baby?”

  He could just as easily have chosen the term “fetus” or “unborn child,” but “baby” has greater emotional impact and I’ll sound like a jackass if I object.

  “Yes, we did,” Beckert says. “The baby was approximately eight weeks in gestation and was approaching a point where viability was possible.”

  McNulty is standing at the podium with his chin resting in his right palm. “Were you able to make any determination as to the health of the baby?” he asks.

  “The baby had no identifiable medical complications.”

  “In other words, Ms. Concepcion was carrying a healthy baby?”

  How many times are they going to use the word, “baby?” “Objection,” I say. “Asked and answered.”

  “Sustained.”

  “Dr. Beckert,” McNulty says, “did you conduct DNA tests to determine the identity of the baby’s father?”

  “Objection,” I say. “We’ve stipulated that Father Aguirre is the father.”

  “Sustained.”

  The fact that we’ve admitted it doesn’t diminish its impact.

  McNulty folds his notes and tucks them into his breast pocket. “No further questions.”

  # # #

  I don’t want Judge Tsang to call a recess and I walk to the lectern before McNulty sits down. I’m not going to win this case during cross-exam, but I have to set a tone that casts doubt on some of Beckert’s conclusions. If I can’t prove it to the judge, maybe I can get Jerry Edwards to pick up the scent.

  “Dr. Beckert,” I say, “you concluded Ms. Concepcion died between ten-forty-five P.M. on Monday, December first, and one A.M. on Tuesday, December second.”

  “Correct.”

  “You had to change your original opinion as to the time of death after you received information from a witness who said Ms. Concepcion was still alive at ten-forty that night, didn’t you?”

  “I received evidence of the later sighting after I had released my original report. As a matter of good practice, I was compelled to amend it.”

  “Is it possible your conclusion as to time of death could change even more as additional information is compiled?”

  “I look at the totality of the evidence and I draw my conclusions based on the best information and science available at the time. If you present credible evidence that I have made a mistake, I will reevaluate my conclusions and reissue my report.”

  “How often does this happen?”

  “Occasionally.”

  “When was the last time you reissued a report?”

  “Objection. Relevance.”

  “Overruled.”

  Beckert looks up at the ceiling to suggest he’s trying to remember something that happened a long time ago, in a galaxy far away. “I believe it was about five years ago.”

  “What did you get wrong?”

  “I concluded that a homicide was a suicide.”

  “What made you change your mind?”

  “The perpetrator confessed.”

  We are unlikely to have a similar result in this case. “Dr. Beckert,” I say, “there is evidence that Ms. Concepcion committed suicide.” I state it as a fact and I’m surprised McNulty doesn’t object, but Beckert doesn’t need a lot of help.

  “Intelligent people can disagree about many things,” Beckert says.

  “Your report indicates Ms. Concepcion bled to death after her wrists were slashed by a kitchen knife that was found adjacent to the bathtub, yet you didn’t take into account the fact that Ms. Concepcion’s fingerprints were on that knife.”

  “So were your client’s.”

  “My client has admitted he handled the knife to cut an apple.”

  “So?”

  You don’t get to ask the questions. “Ms. Concepcion was distraught and taking antidepressants. Based upon your earlier testimony, it appears that she hadn’t taken her P
rozac that night. Reasonable people might put these facts together to conclude she used the knife to slash her own wrists.”

  “That isn’t what happened.”