She took a moment to thumb through them. “I’ve seen them. Mr. Bannister showed them to me the day before he died. They’re emails that he received from Abby.”
“What was his reaction?”
“He thought she was crazy, but the last one, threatening to kill him, scared him. He’d tried to break off the affair a couple of days before and that seemed to send her over the edge.”
“I have nothing further, Your Honor,” Swann said.
I stood. “Ms. Madison, did you kill Nate Bannister?”
Swann was on his feet. “Objection, Your Honor.”
“Overruled,” the judge said. “You may answer the question, Ms. Madison.”
She looked squarely at me, her face expressionless. “No, sir,” she said in a quiet, unconcerned voice. She was good.
“You don’t have any idea who sent those emails you identified, do you?”
“Abby’s name was on them.”
“Did you know that the police have determined that they didn’t come from Abby’s computer?”
“I heard that.”
“Have you also heard that the police department’s computer experts could not determine from where the emails originated?”
“Yes.”
“So, wouldn’t it follow that you have no idea who sent those emails?”
“I guess so.”
“You could have sent them yourself, couldn’t you?”
Swann was up again. “Objection, Your Honor. Argumentative. There’s no evidence at all that Ms. Madison sent those emails.”
“Your Honor,” I said, “this witness has also testified that she has no idea if my client sent them.” I knew I was beating that dead horse, but sometimes repetition will make things stick in a juror’s mind.
“Overruled,” said the judge. “You may answer, Ms. Madison, but then, Mr. Royal, you need to move on.”
“I didn’t send the emails,” Tori said.
I thought I noted a glimmer of uncertainty in her voice, but I didn’t think the jury would have picked up on it. That is, not until I got a quick smile from the fragrance company executive. That was a good sign. Maybe. Lawyers always play the game called “pick the foreman.” The foreman is chosen by vote by the other jurors, and he or she becomes the leader. The other jurors tend to give more weight to the foreman’s opinions and his view of the evidence. Or at least we lawyers thought that to be the case. Maybe we were all wet, but we played the game anyway.
When the jury is seated, we try to decide whom the others will ultimately pick as their leader. The lawyer then tries to read that person. I’ve probably been right in my foreman pick in less than half the cases I’d tried, and even then, it often didn’t work. I would misread the foreman’s reactions to the evidence, or there’d be no reaction, or any one of a myriad of other things would happen to make my mental machinations about the foreman prove completely useless.
I thought in this case that Judith Whitacre might be the forewoman, but even if not, I thought she would have significant input into the deliberations. The other jurors would respect her education and her position in her company. All in all, I thought her smiles were in my favor.
“How many times did you see Abby Lester at Mr. Bannister’s condo?” I asked.
“Several times. I’m not sure of the exact number.”
“Did you always see her in the evenings?”
“No. I’m pretty sure I never saw her there in the evening. It was usually in the mornings.”
“Early?”
“No. Usually mid-morning.”
“Including the weekends?”
“No. Only during the week. Apparently when her husband was working.”
I was beginning to think Tori wasn’t as smart as I had thought she might be. She was trying a little too hard to make the case that Bannister and Abby were lovers. I decided to change course. “Do you know a man named Robert Shorter?”
“No, sir.”
“Never met him?”
“Not that I remember.”
“Ever heard of him?”
“Not that I remember.”
“If I told you that about two years ago, Robert Shorter was convicted of assaulting Mr. Bannister, would that jog your memory?”
“No, sir.”
“Ms. Madison,” I said, “on the day you saw the naked woman in Mr. Bannister’s bedroom, did you see her later? I mean, did she ever come out of the bedroom?”
“No, sir.”
“You said you only got a glimpse of the naked woman. Yet, you’re sure it was Abby Lester?”
“Positive.”
“You were able to make a positive identification with only a glimpse?”
“It might have been more than a glimpse.”
“She was walking from your right to your left as you watched her, correct?”
“Correct.”
“So you would have been looking at her left side?”
“Correct.”
“Can you describe the woman you saw?”
“Well, I’m looking right at her at that table and that was the woman I saw.”
“But the one in the courtroom is dressed.”
“Yes. But it’s the same woman.”
“Are you absolutely sure? No doubt in your mind that the naked woman you saw in Mr. Bannister’s bedroom is the same woman sitting at the table with me? Abby Lester.”
“I’m sure, Mr. Royal. I’d met her before. I knew what she looked like. The naked woman was absolutely Abby Lester.”
“Did you notice any distinguishing marks on Abby’s body when you saw her?”
“What do you mean?”
“Scars, tattoos, moles, that sort of thing?”
She thought for a moment, and then shook her head. “I don’t think so.”
I got loud for the next question, my words dripping with anger and disbelief. “Are you telling this jury, Ms. Madison, that you did not see the long scar on Abby’s left hip from the hip replacement surgery she had last year?”
Swann stood. “Objection, Your Honor. Argumentative.”
“Sustained,” the judge said. He was right, of course. I had anticipated the objection and the ruling.
“Ms. Madison,” I said, “did you see a scar on the left hip of the woman you saw in Mr. Bannister’s bedroom?”
“Now that I think about it, visualize that scene from months ago, I did notice the scar. It ran longitudinally and was probably six or eight inches long.”
“Nothing further, Your Honor,” I said, “but I have Ms. Madison under subpoena and may call her in my case.”
“Okay,” Judge Thomas said. “Ms. Madison, you are still under subpoena and will need to make yourself available to be recalled.”
Swann slipped me one of those smug smiles I had become used to. He was letting me know that he’d won a big one with the issue of the scar. I sat down, and Abby leaned over and whispered in my ear. “What the hell was that all about? I haven’t had a hip replacement.”
“I hope you don’t have a scar on your left hip either.”
“I don’t.”
“When the jury hears that you don’t have a scar, I think Tori’s testimony will be worthless.”
“How’re we going to prove I don’t have the scar?”
“You might have to show your ass to the jury.”
“I’d rather get the death penalty.”
“Don’t worry. I’ll figure it out. You can probably keep your pants on.”
She nudged me in the ribs with her elbow. Hard.
CHAPTER FORTY-SIX
The judge took the mid-morning break when Tori finished her testimony. I explained to Abby that I had never heard anything about Tori seeing her naked in Bannister’s condo. That had caught me completely off guard and I had to move quickly to defuse the bomb Swann had thrown into the trial. If the jury believed Tori, they would have to believe that Abby was in the condo for a tryst, and they would believe that Abby and Bannister were having an affair and that Bannister broke it of
f. Then the emails would start to fall into place and Abby would be painted as a scarlet woman, to use a long-outdated term. The theory that she had cracked when Bannister dumped her and killed him in a rage would become more plausible.
“Where do we go from here?” Abby asked.
“Swann thinks he scored pretty big with Tori’s testimony. I think he’ll call Wes Lucas next and follow the same line of questioning. If we can cast enough doubt on Tori and Lucas’ veracity, the state’s case falls apart.”
* * *
FDLE agent Wes Lucas was called to the stand. He walked into the courtroom, nodded at Swann standing at the podium, and stepped up into the witness box. “State your name and occupation, sir,” Swann said.
“Wesley Lucas. I’m an agent of the Florida Department of Law Enforcement.”
“You’re a sworn police officer?”
“Yes.”
“Explain to the jury what your organization is all about.”
“We’re a statewide police agency that reports to the state cabinet. We investigate crimes that cross jurisdictions and assist when called in by local police agencies.”
“As part of your official duties, did you have occasion to investigate the murder of Nate Bannister?”
“I did.”
“How did that come about?”
“I was in Sarasota working on another case when the agent in charge of my office in Tampa called and asked me to meet with the Sarasota police chief on a murder that had just occurred. I went to the police department and was informed that a suspect in the case was the wife of the chief of the Longboat Key Police Department. The Sarasota chief did not think they should run the investigation because the Sarasota and Longboat Key departments often work together.”
“What was the date of this meeting?”
“Monday, April 1, of this year, mid-morning. Probably around ten.”
“Did you then undertake the investigation?”
“Yes, sir.”
“What was the first thing you did?”
“I went to the scene of the crime. The victim’s condo.”
“Was the body still there?”
“No. It had already been removed to the morgue.”
“Did you order a search for fingerprints?”
“No. The Sarasota detective, Harry Robson, had already done that. He went to his chief when the first run of the prints showed that Mrs. Lester had been in the condo.”
“Did you determine how long Mr. Bannister had lived in that condo?”
“About two weeks.”
“Did you determine that the condo had been completely painted and cleaned before Mr. Bannister moved in?”
“It had, and all the furniture was brand new.”
“How many sets of fingerprints did the technicians find?”
“Ten.”
“Were you able to identify all of them?”
“No, sir.”
“But you identified some of them?”
“We did.”
“Explain to the jury why Mrs. Lester’s prints made her the focus of your investigation instead of one of the other people you identified?”
“The emails from her to the victim, particularly the one threatening to kill him. Also, we found her prints on a wine glass on a table next to the bed in the master bedroom.”
“What was the significance of the wine glass on the bedside table?”
“It showed that she had been in the bedroom, and probably in the bed.”
I could have objected and moved to strike that answer, but I decided to let it go. The objection would just emphasize the answer, and I thought I could undo the damage on cross-examination.
“Did you take into account the fact that the emails were not sent from the defendant’s computer?”
“I didn’t know that at first, but later I considered it. She could have sent them from anywhere, so it wasn’t a major factor, given all the other evidence.”
“Such as?”
“I talked to Victoria Madison who told me the victim said he was having an affair with Mrs. Lester. She also said she had been in the victim’s condo on at least two occasions when Mrs. Lester was there; once when she heard the shower running, and Mr. Bannister told her Mrs. Lester was taking a shower, and a second time when she saw Mrs. Lester completely naked in Mr. Bannister’s bedroom.”
“Did Ms. Madison tell you that she’d seen a scar on Mrs. Lester’s left hip?”
“Yes, sir.”
The clang of the trap springing shut was sheer music. It was obvious that Swann or Tori had told Lucas about the scar during the break.
“When did she tell you about the scar?” Swann asked.
“At the same time she told me she’d seen Mrs. Lester in the victim’s condo. I first interviewed her the day after I began the investigation.”
“Nothing further, Your Honor,” Swann said.
It was a quick and clean examination of the witness. Swann got all he needed out of Lucas and didn’t push the envelope. I walked to the podium and stood looking at Lucas. He stared right back. “Agent Lucas,” I finally said, “What was the name of the case you were investigating in Sarasota at the time you got the call to meet with the chief of police?”
“I don’t recall. Sorry.”
“Do you recall what the case was about?”
“No, sir.”
“This was only a little over two months ago. You don’t remember anything about it?”
“No. It wasn’t anything important, and I see a lot of cases.”
“But in this instance you actually called your boss in Tampa, Stan Strickland, and asked to be assigned to this case.”
He sat for a moment, his face a blank. I’d caught him off guard, and he was trying to figure out how to answer the question. “Maybe,” he finally said. “I know I talked to Stan that morning, and maybe I’d heard about the murder and called to let him know I was in Sarasota and would be available to get involved.”
“And if Agent Strickland were to testify that you were not in Sarasota on a case? That there was no such case?”
Again, he was quiet for a moment. “You know, I might have been here on personal business. I just don’t remember.”
“What kind of personal business?”
“Sorry. I don’t remember.”
I was chipping away at him. The jury wouldn’t like his fumbling such easy answers. If he would lie about something so innocuous, he’d lie about important things. “Did you think that the Sarasota Police Department was not competent to handle a murder case?”
“I didn’t think that, but if they had a conflict of interest, we’d be the ones called in.”
“You didn’t know about the conflict of interest until you talked to the chief and Detective Robson, did you?”
“Right.”
“Then why would you have talked to your boss before you met with the chief? How would you have known about the conflict?”
“That didn’t happen. I talked to my boss first.”
“Are you sure?”
“Positive.”
“And if Agent Strickland’s phone logs and his memory contradict you, if they show that you called him before your meeting with Detective Robson, would they be wrong?”
“They would have to be wrong. How would I have known about the murder or that Mrs. Lester would be the primary suspect?”
“Good question, Agent Lucas. But you knew about the murder before the Sarasota police did, didn’t you?”
“That’s absurd.” He was getting a bit agitated now. “How would I know such a thing?”
“Another good question. How did you know about the murder before you talked to Detective Robson?”
“I didn’t.”
“And, Abby Lester wasn’t the prime suspect, as you put it, when you got involved in the case, was she?”
“I’d say she was.”
“I think you testified that all you knew at the time you met with Detective Robson and his chief was that Abby’s fingerpri
nts had been found in the condo.”
“That’s correct.”
“Along with prints belonging to at least ten other people.”
“Right.”
“Then how did that make Abby the prime suspect?”
“I guess that came about later.”
“It came about when you decided to focus on Abby and no one else.”
“It came about when I saw those emails.”
“Agent Lucas, you first heard about the scar on Abby’s left hip a few minutes ago, during the break, right?”
“No. I heard about it the day after I started the investigation.”
“Did you talk to either Mr. Swann or Ms. Madison about the scar during the break this morning?”
“We talked about a number of things.”
“Agent Lucas,” I said, my voice rising, “if I don’t get a straight answer out of you, I’m going to call Mr. Swann to the stand, put him under oath, and ask him the same question. Am I clear?”
“Objection,” Swann said. “He’s badgering the witness. And he can’t make me testify.”
“Counsel,” Judge Thomas said, “approach the bench.”
Swann and I and the court reporter gathered before the judge for a whispered conversation. “Mr. Swann, did you discuss the defendant’s scar with Agent Lucas during the break?”
“Yes, sir.”
“You may take your seat, Mr. Swann, and you may continue, Mr. Royal,” the judge said.
I went back to the podium. “Agent Lucas, did you discuss my client’s scar during the break?”
“Yes, sir. We did.”
“I want you to take your time answering this question because you’ve shown a tendency to have a lousy memory and I want you to be very sure of your answer.” Sometimes a little sarcasm is warranted.
“Objection,” Swann said. “That wasn’t a question.”
“Agreed, Your Honor,” I said. “I’ll move on.”
“Please do, Mr. Royal,” the judge said.
“And this was the first time you’d heard about the scar?”
“I’m pretty sure I heard about it when I first interviewed Ms. Madison.”
“Did you attempt to investigate that any further?”
“You mean the scar?”
“Yes. Did you ever tell Mr. Swann about the scar or ask him to come to me to verify whether Abby had such a scar?”
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