“Who were these people? We think we know, but we can’t prove it, and so the law must identify them as Jane and John Doe. But we’d like you to remember, folks, that they were human beings. They probably have children, and even grandchildren. They certainly have names. We’re just not legally sure of them.”
He paused to let that register.
“Why did the two defendants murder these other two human beings? We don’t have the answer to that. We can speculate, and I’m sure you’ll speculate too, but the truth is: we don’t know. The People don’t have to prove motive. We only have to prove that a murder took place and that the defendants committed that murder. When it comes time, Judge Florian will tell you that what we call euthanasia, or mercy killing, or assisted suicide, is considered by Colorado law to be murder if it’s premeditated. We’re going to prove to you, ladies and gentlemen, that these murders were premeditated. The evidence will show that the defendants brought the murder weapons from their home to the scene of the crime. That’s certainly premeditation. And these weapons have no purpose other than to kill. They weren’t hunting knives or deer rifles that you might just happen to be carrying up with you in the backcountry. No! They were syringes filled with poison! I don’t think that any of you, if you go hunting or hiking, carry syringes filled with poison.”
Dennis rose to object. “Your Honor, that’s argument. There’s no predicate, and it’s inflammatory. Mr. Bond should know better.”
The judge frowned down at him. “He did say, ‘The evidence will show.’ I don’t think it’s inflammatory. Let the jury decide. You’ll get your turn, Mr. Conway.”
“Thank you, Your Honor.”
Dennis always said “Thank you” when he was overruled. He was not being sarcastic; he believed that jurors liked lawyers to be polite to juridical authority.
When Bond had finished, Dennis rose to face the jury.
“Beatrice Henderson and her husband have lived in this valley all their lives. Until today they’ve never been accused of breaking any law. They should not be in this courtroom except as spectators or, like yourselves, members of a jury in another case. Beatrice Henderson and her husband didn’t commit murder. They didn’t commit euthanasia. They are being railroaded by a prosecutor who needs a conviction and a scapegoat in order to get it. Before this ordeal is over, their innocence will be clear to you beyond any doubt.”
The veins on Ray Bond’s neck swelled as he sprang to his feet, shouting, “Your Honor! That’s unacceptable!”
The judge pounded his gavel until Bond quieted down. “Normally,” he said, in his most stern voice, “I would now call both attorneys to my chambers, where I would instruct you, Mr. Conway, to behave in a decent manner. But instead I am reprimanding you in open court. That accusation against Mr. Bond was inexcusable. Do you hear me, sir?”
“Yes, Your Honor,” Dennis said quietly.
“I order you to apologize.”
Dennis hesitated for as long as he could without incurring further wrath. Then he turned to Ray Bond, whose face had calmed now to a lobsterlike red. Dennis said calmly, “I apologize, Mr. Bond.”
“Do you have anything more to say, sir?” Judge Florian demanded of Dennis.
“Your Honor, I’ve concluded my opening statement.”
“Mr. Henderson?”
“Nothing further, Your Honor,” Scott said. “I’m going to leave most of this to Mr. Conway. We’re eating out of the same lunch pail. If I want to chip in something I’ll wave my hand in the air, like I did when I was a schoolboy.”
The jurors smiled. The tension had been eased.
“Call your first witness,” the judge said to Ray Bond.
Dennis understood that the prosecution’s approach to proof of guilt would be a simple, straightforward one. Bond would progress chronologically toward the shining moment that made all else come together and work: the moment of Bibsy Henderson’s confession. Queenie O’Hare’s testimony about that confession was the key to a guilty verdict.
Harold Clark, the first witness, was a simple man who strained to tell the truth. His presence gave the jury the sense that good people were on the side of the prosecution. Young Sarah Westervelt conducted the direct examination. She moved along with a slow, studentlike precision, but her cheeks were flushed with excitement. When Harold had finished his tale of the dead dog and his visit to the Animal Control Office right there in the Pitkin County Courthouse, Ms. Westervelt looked at Ray Bond, received his nod of approval, and said, “Pass the witness.”
Dennis stood. “Your Honor, at times during this trial, I will be speaking both as attorney for my client, Mrs. Beatrice Henderson, and also for Mr. Scott Henderson, who’s representing himself. This is one of those times.”
There was an old legal adage: If you have nothing to gain by cross- examining, don’t. Most lawyers, however, couldn’t resist. Just a fewquestions, to air their lungs, to make the jury aware of them. Some felt it a sign of weakness if they didn’t do any sniping; it might lend additional credence to the witness. And defendants sometimes grew upset if their knight-errants didn’t level their lances at anyone who dared to get up there in the quest to put them behind bars.
Dennis said cordially, “We have no questions of Mr. Clark, and we thank him for taking the time to appear.”
Ray Bond promptly called Queenie O’Hare to the witness stand in order to continue the chronological thread of his narrative.
Queenie told of her trip to Pearl Pass on the snowmobile and of the way that Bimbo, her little Jack Russell terrier, had discovered the bodies. She was a credible witness: sympathetic, well spoken, intelligent, and sincere. The jurors smiled. They liked Queenie. Many of them had dogs. They loved the story of brave Bimbo skipping through the steep icy glades at 12,500 feet.
After Queenie told of discovering the bodies, and the French-made silver pillbox and its contents, and the Remington rifle, Ray Bond said, “The People will recall this witness later, Your Honor. We ask that she be on call. For the moment, we have no further questions.”
“No questions either at this time,” Dennis said.
The state called Deputy Sheriff Michael Lopez, the sheriff’s photographer and video camera operator.
Dennis had been to many murder trials in which the defense attorney had argued against the display of photographs that showed the full extent of the victim’s wounds and the amount of blood that could jet or flow from a human body. Such a display was “inflammatory, unnecessary, not probative,” the defense attorney always argued. The judge seldom agreed, and most of the photographs were usually shown. After those trials, when Dennis had queried jurors, many said they felt the defense attorney’s reluctance to have the photographs shown indicated that the defendant was responsible for the carnage.
You have to get inside their minds, Dennis believed. They don’t think like lawyers. They’re always wondering why you did this, why you didn’t do that.
Ray Bond said, “The People will offer into evidence this videotape of the crime scene and these six color photographs.” He held high the color photographs of a rotting Jane Doe and John Doe in their hidden unmarked mountain grave.
Dennis said, “Mrs. Henderson has no objection.” With the firmness of his tone and with his body language, he was telling the jury: Look at them all you like. Beatrice Henderson had nothing to do with this horror.
The videotape was shown. The lights went back on, and the photographs were passed round.
Although Bibsy’s eyes had blurred with tears, Dennis felt he had no choice. Placing a hand on her shoulder, he said, “Your Honor, after the jury’s seen them, Mrs. Henderson would like to see the photographs too—if the prosecutor has no objection.”
After lunch came the parade of medical witnesses. Their authoritative presence usually weighed against any defendant. Doctors were godlike and hospitals were temples, even if some of both on occasion killed you. The public tended to assume there were no incompetent or even second-rate doctors. But Dennis always rem
embered the riddle: “What do you call the man who graduates last in his class at medical school?”—and its answer: “Doctor.”
Otto Beckmann, the gray-faced pathologist and medical examiner, came first. He testified as to the cause of death: Versed and Pentothal injections followed by potassium chloride. Dennis asked only a few questions. He decided to sidestep the issue of whether or not the two victims had any incurable diseases that might have led to an assisted suicide. If the prosecution had brought it up, Dennis would have counterpunched. It was no longer necessary The jury might wonder just as Dennis had wondered, just as Josh Gamble and Ray Bond had wondered. The answer had died with the man and woman at Pearl Pass.
Bond called Dr. Richard Shepard from Carbondale. He established Dr. Shepard’s credentials as a man who had practiced general medicine in the valley for twenty years after first having been attached to a prestigious hospital in Denver. He had white hair and a loud voice.
“Do you know the female defendant in this case?” Bond asked his witness.
“Objection,” Dennis said lazily. “We’re not on network television. This isn’t Los Angeles, this is Colorado. We’re all neighbors. Mr. Bond knows Mrs. Henderson’s name. He doesn’t have to keep demeaning and depersonalizing her by continually dubbing her ‘the defendant.’ Worse, ‘the female defendant.’ “
Ray Bond protested, “Your Honor, I have a perfect right to call her ‘the defendant.’ He knows that. And I called her ‘the female defendant’ to make it absolutely clear that I meant her and not the male defendant.”
“You do indeed have that right,” the judge said. “The defense’s objection is overruled.”
“Thank you, Your Honor,” Dennis said pleasantly.
Bond resumed: “Dr. Shepard, do you know a woman named Beatrice Henderson?”
“Yes, I do.”
“Is she in this courtroom?”
“Yes, she is.” Dr. Shepard pointed to Bibsy.
“For the record, the witness has identified the female defendant. And did the female defendant ever work with you, Dr. Shepard, in Valley View Hospital as a registered nurse?”
“Objection,” Dennis said. “He’s leading the witness.”
The judge looked at Dennis with an expression of mild surprise. Leading the witness was the sine qua non of cross-examination, but it was forbidden on direct examination. In this instance no harm had been done: the question was leading but it was innocent, and it would certainly come out, one way or the other, that Bibsy had worked as a registered nurse with Dr. Shepard at Valley View Hospital. But the judge was forced to say, “Objection sustained. Rephrase your question, please, Mr. Bond.”
The muscles in Bond’s jaw worked. “Doctor, when you were working at Valley View Hospital—”
“Objection,” Dennis said. “No predicate.”
Jab, even if you don’t connect. Muhammad Ali had said: Float like a butterfly, sting like a bee.
“What do you mean, sir?” the judge inquired, a bit testily.
“It’s been established by the witness,” Dennis said, “that he practiced medicine in Carbondale. It’s not been established that Dr. Shepard ever worked at Valley View Hospital. So the prosecutor can’t say, at least not yet, ‘When you were working at Valley View Hospital.’ “
“Sustained,” Judge Florian muttered.
“Did you ever work at Valley View Hospital, Doctor?” Ray Bond asked.
“Yes, of course,” Shepard said, sighing. “On and off for ten years, in the seventies and eighties.”
“And when you were at Valley View, did you work with the female defendant?”
“Yes, I did, from time to time.”
“She was a nurse, a registered nurse?”
Dennis raised a finger. “Objection. Leading the witness again.”
“Rephrase, Mr. Bond.”
Bond’s jaw muscles tightened. “Dr. Shepard, in what capacity did you know the defendant?”
“She was a registered nurse. She was also a state-registered midwife.”
“Did she on occasion assist you?”
“She did everything a nurse is supposed to do. She took care of patients. Yes, she assisted me.”
“When particularly, Doctor?”
“Particularly in a couple of years when we had flu epidemics. She was very helpful then. Worked very hard.”
“Did she give flu injections to patients?”
“Objection,” Dennis said. “Leading the witness again.”
Ray Bond ground his teeth. “Your Honor, may we approach the bench?”
The judge nodded, and both adversary lawyers as well as Scott Henderson stepped forward to the judge’s bench, where, in theory, if they kept their voices low, they could not be heard by the jury.
“Judge,” Bond whispered, “this is ridiculous. My questions are completely inoffensive. He’s trying to make me look bad in front of the jury.”
The judge raised a querying eyebrow at Dennis.
“His questions are leading,” Dennis said. “That’s not allowed. You know it, he knows it, and unfortunately for him, I know it too.”
“You remarked before,” Judge Florian said to Dennis, “that this is Colorado. We follow the rules of evidence, of course, but we like to get things done effectively and quickly, and in a friendly manner. Don’t you think you’re being a little picky and obstructive?”
“No sir, I do not,” Dennis said. “The charge of murder is not a casual one. If I let the prosecutor lead his witnesses in minor matters, it will establish a precedent. I can’t allow that.”
The judge’s faced turned from its usual sallow color to slightly pink. “May I remind you that this is my courtroom? I do the allowing here.”
“I’ll rephrase,” Dennis said. “The court can’t allow it. Should not, and must not, allow it. Leading the witness is against the rules of evidence. I intend to hold the prosecutor and the court to the highest standards of ethics and procedure.”
“And so you should,” the judge snapped. “But there’s a proper way. Mr. Henderson will tell you that. You may have done it the other way in New York, but that’s not our way here.”
“The court’s way will have to change,” Dennis said, “when I’m counsel for the defense.”
Judge Florian bared his teeth—then became aware of what he had done. “We’ll take a ten-minute break,” he said.
In a corner of the hallway Dennis wiped a little sweat from his forehead. He said to Mickey Karp, “What do you think?”
“You’re making enemies.”
“Do you think the jury will see that too?”
“The judge can pull the rug out from under you.”
“At his peril.”
“Ray’s going to fight you as hard as he ever fought anybody in his life.”
“I’m counting on it,” Dennis said.
After the break, Dr. Shepard testified that Nurse Beatrice Henderson had given flu shots to hundreds of patients over a period of years, that on other occasions she had administered intravenous injections, and that she was highly skilled at her work.
“Do you know what Versed is, Doctor?”
“It’s a sedative.”
“Do you know what Pentothal is?”
“An anesthetic.”
“And potassium chloride? What is that?”
“A chemical generally used to correct an imbalance of potassium in a patient.”
“In what dosage is it generally administered?”
“Relatively small. Two or three cubic centimeters.”
“Why is it not given in larger doses?”
“In large doses it becomes a deadly poison.”
“Would the defendant, as a skilled nurse, be able to administer those three items—the sedative, the anesthetic, and that poison—to a person? Does she have the necessary skills to give those three injections?”
“She could easily do that,” Dr. Shepard said.
“Pass the witness,” Ray Bond concluded.
Dennis stood but
stayed where he was at the defense table, with Bibsy on one side and Scott and Mickey Karp on the other. Only in the movies and in TV courtroom scenes, for the benefit of camera angles and melodrama, did lawyers move close to the witness chair and invade that sacrosanct territory. In real trials it required permission from the judge, and the permission was given only for a valid reason, such as the examination of a document.
“Dr. Shepard,” Dennis began, “have you personally ever given a patient an injection of potassium chloride?”
“Yes, but not recently.”
“I didn’t ask you when you gave it, Doctor. Please try to answer just what I ask you. Can you do that?”
“Yes, of course.”
“Have you ever administered what you would call a large and deadly dose of potassium chloride to a patient?”
“Of course not,” Dr. Shepard said, frowning.
“Why not?”
“Because I told you, it’s a deadly poison. It kills you.”
“Did you ever see Nurse Beatrice Henderson administer such a lethal dose of potassium chloride to a patient?”
“No.”
“Have you ever seen such a lethal dose of potassium chloride administered to a human being by anyone?”
“No. Definitely not.”
“But you know how it would be done, don’t you?”
“Well, it’s an intravenous injection—goes into a vein—and you just inject it the way you inject any large dose of anything intravenously.”
“But you’ve never seen it done.”
“No.”
“So your knowledge of how it’s done is only theoretical, isn’t it, Doctor?”
“Objection,” Ray Bond snapped. “He’s badgering this witness.”
“Your Honor,” Dennis said, “I’m trying to get at the truth and to find out what the witness means.”
“Objection sustained,” the judge said. “You don’t have to answer the question, Doctor. Rephrase, Mr. Conway.”
“That won’t be necessary, Your Honor. Thank you.” Dennis turned back to the doctor. “Sir, considering that you yourself have never administered a lethal dose of potassium chloride to a patient, and by your own admission you’ve never seen it done by anyone else—you cannot say, beyond doubt, that Beatrice Henderson is now capable of administering such an injection, can you?”
Clifford Irving's Legal Novels - 03 - THE SPRING -- a Legal Thriller Page 18
