“That’s Detective Duncan, Mr. Swann,” J.D. said, interrupting. “I worked hard for that title. Please do me the courtesy of using it.”
I chuckled to myself. That’s my girl, I thought. Swann had better be careful or she’d chew him up and spit him out.
“Okay, Detective Duncan,” Swann said, putting an emphasis on the title. “Let me get this straight. Mr. Royal, the defense lawyer, is your boyfriend?”
“I guess you could call him that.”
“Well, what would you call him?”
“I’ve never thought much about that.”
“Lover, paramour, sweetheart? Any of those?”
J.D. smiled. “All of those, and so much more.”
I debated with myself about trying to stop this line of questioning, but one glance at the jury told me that they didn’t like this kind of intrusion into a witness’s private life. I decided to see how far Swann would take it.
“Are you sleeping with Mr. Royal?” Swann asked.
That did it. What a creep. I was on my feet. “Objection, Your Honor. I will stipulate that Detective Duncan and I are two single, consenting adults who are in love with each other and in a relationship. I think any further questions along this line would only serve to titillate Mr. Swann’s prurient interest.” That brought a few smiles from the jurors. They hadn’t liked this line of questioning.
Swann was livid. “Your Honor, I don’t have any prurient interests. I’m just trying to show the jury that Detective Duncan is biased.” Again, he emphasized the title. Not a good move. He seemed to be mocking J.D.’s position. I saw Judith Whitacre wince slightly. If she didn’t like Swann’s approach to J.D., the other members of the jury wouldn’t either.
“Proceed, Mr. Swann,” the judge said, “but we’ll have no more questions about the relationship between Mr. Royal and Detective Duncan. It’s a fact in this case, and if you can show that it impacted Detective Duncan’s investigation or her testimony, so be it. But you will not ask any more questions about the nature of the relationship. I think it has been adequately explained.”
Swann let out a long breath of exasperation. “Detective Duncan, what is your interest in this case?” Again, the emphasis on the word “Detective.”
“None.”
“Then why are you here testifying?”
“I’m here in response to a subpoena to answer all questions put to me, including any that you may have.”
“And you want this jury to believe that your answers are not colored by your relationship with Mr. Royal?”
“Mr. Swann, I’ve been a law enforcement officer for more than fifteen years—”
Swann interrupted. “Just answer the question.”
“I’m trying to do that.”
“I think it calls for a yes or no answer, Detective.”
I stood. “Objection, Your Honor. The witness has a right to explain her answer.”
“Sustained,” the judge said. “Let her answer, Mr. Swann.”
J.D. said, “As I was saying, I’ve been a law enforcement officer for more than fifteen years, and I take my job very seriously. I would never lie or shade the truth or testify to anything that wasn’t absolutely the truth. I value my reputation too much to do that.”
“What if your testimony would hurt Mr. Royal or his case?”
“Then I would try not to testify, but if I were required to do so, I would tell the truth and know that Mr. Royal would support me in that because he is a man of absolute integrity.”
My girl was hitting them out of the park.
“Move to strike that last part of the answer concerning her opinion of Mr. Royal’s integrity,” Swann said.
I stood. “He asked the question, Your Honor.”
“That he did. Overruled.”
“Nothing further,” said Swann.
“No further questions,” I said. “May the witness be excused?”
“You’re excused, Detective Duncan.”
“Your Honor,” Swann said, “may we be we heard outside the presence of the jury?”
When the jury had left the courtroom, Swann said, “Your Honor, I move to strike Detective Duncan’s entire testimony. It is irrelevant and has no probative value to this case.”
“To the contrary, Your Honor,” I said. “My next witness will bring this all together.”
The judge leaned back in his big executive chair, hands folded beneath his chin, and seemed to ponder his answer. Then, “I’m going to deny the motion without prejudice. Mr. Swann, if Mr. Royal doesn’t bring this to a head with his next witness, I’ll grant your motion to strike the detective’s testimony. Mr. Royal, you keep promising to tie all this together. This is your last chance. Am I clear?”
“Yes, Your Honor.”
“Bring the jury back,” the judge said.
I had been surprised that Swann hadn’t asked J.D. any questions that would have ferreted out my reasons for putting her on the stand to begin with. Now I understood. By not asking the questions, Swann was setting up the motion to strike her testimony. A good ploy. Swann did have his moments, but I was confident that my next witness would bring it all together and begin to demolish the state’s case.
CHAPTER FORTY-NINE
I called Dr. Bert Hawkins. “Hello again, Dr. Hawkins,” I said.
He smiled. “Always good to see you, Mr. Royal.”
“Did you send a blood sample from Nate Bannister to the Biogenesis Lab in Tampa for a DNA analysis?”
“I did.”
“May I ask why you sent it to Biogenesis instead of the Florida Department of Law Enforcement crime lab?”
“The FDLE lab is always backed up. It might have taken months to get the results, and I wanted them as soon as possible.”
“Did you send Biogenesis any other samples from this case?”
“Yes. The police wanted an analysis of DNA found on the sheets in the master bedroom of Mr. Bannister’s condo. There were semen and vaginal fluids on the sheets, and FDLE Agent Lucas wanted to determine who had recently had sex in that bed.”
“Were you able to do that?” I asked.
“The semen belonged to Mr. Bannister. We could find no match in any of the DNA databases for the woman who left the vaginal fluid.”
“Did you do a postmortem on another homicide victim on the same day you performed the one on Mr. Bannister?”
“Yes. On Linda Favereaux, who was killed on Longboat Key the same night that Mr. Bannister was killed in Sarasota. Actually, to be precise, Mr. Bannister was killed late in the evening of March thirty-first, and Mrs. Favereaux in the early morning hours of April first.”
“Did you ask for a DNA analysis on Mrs. Favereaux?”
“Not at first.”
“Why not?”
“We knew who she was, so at first I thought the DNA wouldn’t be needed for identification. There was no other reason to run the tests. In Mr. Bannister’s case, we were trying to determine who had had sex in the bed. However, when I ran Mrs. Favereaux’s fingerprints, they came back as belonging to a woman named Darlene Pelletier.”
“Your Honor,” Swann said, getting to his feet. “Mrs. Favereaux, whoever she was, is not relevant to this case.”
“She is, Your Honor,” I said, “and the next few questions will show that.”
“Overruled. Move on,” Judge Thomas said.
“When did you ask for the DNA analysis?”
“A few days after I did the autopsy on Mrs. Favereaux, I got a call from Detective J.D. Duncan of the Longboat Key Police Department. She asked that I run the DNA. We always keep blood samples taken from the bodies of murder victims, so it wasn’t a problem.”
“Do you know why Detective Duncan asked for the DNA analysis?”
“No, and I didn’t ask. I assumed it had to do with identifying Mrs. Favereaux since the fingerprints proved that she was not the person we thought she was.”
“And you sent that to Biogenesis.”
“Yes.”
I handed the
witness the Biogenesis DNA reports on the blood sample taken from Linda Favereaux and from the bed sheets found in Bannister’s condo. “What are those, Doctor?” I asked.
He identified them.
“What significance are those reports?”
Hawkins studied them for a moment and then looked straight at the jury. “They are identical.”
“Are you suggesting that the female DNA sample taken from the bed in Mr. Bannister’s condo is that of Linda Favereaux?”
“Without a doubt.”
“And that means?”
“It means that Mr. Bannister and Mrs. Favereaux had sex in that bed within a few hours of their deaths.”
CHAPTER FIFTY
Swann rose and walked to the center of the podium. If smoke could actually come out of an angry man’s ears, Swann would have looked like a chimney. He was demonstrably livid. Hawkins had just destroyed one of the prosecution’s key pieces of evidence. Swann’s theory was that there was an unknown woman’s DNA along with Bannister’s DNA on Bannister’s sheets. That meant Bannister and the unknown woman had had sex not long before his murder. Since Abby Lester’s fingerprints were found in Bannister’s condo, specifically on a wine glass on a bedside table in Bannister’s bedroom, and since there was evidence that she and Bannister were having an affair, and that Bannister was ending the relationship, Abby, the spurned woman, would have motive to murder Bannister.
I had stirred that pot back in April when I had argued against Abby being required to provide a DNA sample. Judge Thomas had ruled that there was not enough evidence of her guilt to require her to do so. Our refusal to allow Abby’s DNA to be tested was a big red herring that I’d dangled before Swann, and he’d gobbled it up like a ravenous cat. I knew the answer to the question of whom the female DNA on the sheets belonged to. And I knew it wasn’t Abby.
“Dr. Hawkins,” Swann began, his voice low and tight, holding back the anger, “why is this the first time I’ve heard about Mrs. Favereaux’s DNA being linked to this case?”
“I don’t have any idea, Mr. Swann.”
“You never told me about this, did you?”
“No, but then you never asked.”
“How am I supposed to ask you about something that I knew nothing about?”
Swann was losing his temper. He was making a mighty effort to hold it in, but the anger kept slipping through. The last question was stupid and objectionable, but I held my seat. Swann was hanging himself, and I saw no reason to slow the process.
Hawkins rose to the occasion. He sat quietly for a couple of moments, eying Swann, a quizzical look on his face. “I take it that’s a rhetorical question, Mr. Swann.”
“Answer the question, please.” Swann’s voice was tight, his anger barely restrained.
“I have no idea why you didn’t know enough about your case to ask the appropriate questions, Mr. Swann.”
Swann stood silent for a moment, obviously trying to get past the anger. “Okay, Dr. Hawkins. Are you telling this jury, under oath, that the victim in this case, Mr. Nate Bannister, had sex with this woman Linda Favereaux just before he died?”
“I’m telling the jury that the DNA samples found on the bed sheet on the bed in Mr. Bannister’s bedroom contained semen and vaginal secretions, the kind of fluid that would only be secreted during sexual intercourse, and that the semen belonged to Mr. Bannister and the vaginal secretions belonged to Mrs. Favereaux.”
“So you can’t say whether or not they had sex.”
“Let me put it this way, Counselor. I can say with reasonable certainty that Mr. Bannister had sex in that bed and that Mrs. Favereaux had sex in that bed. I can’t say they had sex with each other, but since there was nobody else’s DNA found on the bed, a reasonable hypothesis would be that they had sex with each other. I wasn’t there, so I can’t swear that they actually did have sex. With each other, that is.”
“No more questions.” Swann stomped off to counsel table.
* * *
Judge Thomas called the morning break. I went to one of the attorney conference rooms that opened off the corridor outside the courtroom. Gus Grantham had brought Robert Shorter to the courthouse from his aunt’s house in Nokomis, just south of Sarasota. I only had one purpose in calling him. I thought the best he could do was muddy up the waters a bit, but that is all part of the strategy. I had some strong evidence coming in later, but if for some reason that didn’t go as I expected, muddy might have to do. One always has to have a plan B and maybe even a plan C. I didn’t have a plan C and my plan B was at best weak.
I used most of the fifteen-minute break talking to Shorter about what I was going to ask him, and how I expected Swann to counter. I cautioned him to restrain his anger. “You make an ass out of yourself on the stand, and this judge will put you in jail. He doesn’t put up with any kind of crap. Are we clear?”
Shorter grinned. “You’re not going to beat me up again, are you?”
I laughed. “Not unless you take a swing at me.”
Shorter smiled. “Not today, but I owe you one.”
“We’re good,” I said. “See you in court.”
“I don’t like the sound of that,” Shorter said as I left the room.
As soon as the court reconvened, I called Shorter to the stand. Swann objected. “This name’s not on the witness list,” he said.
“I’m calling the witness for purposes of impeachment, Your Honor,” I said.
“Of what?” the judge asked.
“Some of Ms. Madison’s testimony.”
“Overruled. You may proceed, Mr. Royal.”
Witness lists are required to be filed some weeks before a trial so that the party on the other side has a chance to talk to or depose the person on the list. However, if a witness is called in to rebut something the other party’s witness said or to impeach that witness, the witness called for that purpose does not have to be on the list. Impeachment is a lawyerly term that means destruction of the other side’s witness, showing that the witness being impeached lied. I was pretty sure Swann would object on the same grounds whenever I called one of the people I had left off the witness list. The jury wouldn’t like that.
I had decided that Swann was so used to trying cases before pliable judges that he didn’t always do his homework or think through the consequences of his actions. As far as I could tell, he had never tried a case outside his home circuit. Because of his seniority in the state attorney’s office, Swann could pretty much pick the cases he wanted to handle. This gave him a great deal of leeway as to which judges he appeared before. He could pick the ones who were beholden to his boss or who were known as hanging judges, the ones who weren’t all that smart and did not want to rock the proverbial boat, or who were wary of the voters and would bend toward the prosecution, no matter how weak the case. Those judges would always exercise the broad discretion the law gave them to rule in favor of Swann.
Judge Wayne Lee Thomas was definitely not one of those judges. He’d spent many years as a trial lawyer before he heeded the entreaties of his colleagues and, as they say, ascended to the bench. He was not a career judge. If for some reason he left the bench tomorrow, he would be flooded with offers from important firms across the state, dangling compensation packages that would dwarf his judicial salary.
His judicial philosophy was simple. Follow the law in a way that ensures justice is done. In the pursuit of that sometimes elusive concept, he held the lawyers who appeared before him to a high standard. He expected them to be knowledgeable of the law and the facts and to be prepared to try their case with as little drama as possible. He was unfailingly courteous, but he did not entertain nonsense from the combatants and he could be stern in suppressing it.
Swann had not factored a strong judge into his trial equation, probably because he’d never experienced one. He was before one now, and he was being knocked off stride. I was making points that I would not have made had I been faced with a better lawyer. Nevertheless, I knew better than to let my
guard down. Swann had tried a lot of cases, and I knew he could be dangerous. I also knew he wasn’t the most ethical lawyer in the state, and he wouldn’t be above an underhanded tactic or two.
Shorter took the stand and was sworn by the clerk. “State your name,” I said.
“Robert Shorter.”
“Do you know a woman named Victoria, or Tori, Madison?”
“Yes, sir.”
“Tell the jury how you know her, please.”
“I went to see Mr. Bannister a few days before his death. We met at his condo downtown and Ms. Madison was there.”
“What was the purpose of the meeting?”
“I offered my services to him as a consultant between him and my condo association in some negotiations about shoddy work when he built our place.”
“Was anyone else at the meeting?”
“No one other than Bannister and the woman. He introduced her to me as Tori, and she gave me her business card. It identified her as Victoria Madison.”
“Did anyone tell you why she was at the meeting?”
“Only that the card said she was the vice president of Bannister’s company. She was all for the deal I proposed. Bannister said he had to think about it, but Tori was adamant in wanting to agree to it right then.”
“Did you have any other dealings with Ms. Madison after that meeting?”
“Yes. A couple of days later, on a Friday, she called me to set up a meeting with Mr. Bannister for that Sunday evening at his condo.”
“That was the evening he was killed, right?”
“Yes.”
“Did you go to the meeting?”
“No. Something came up. I called Tori on Sunday and told her I wouldn’t be able to make the meeting.”
“What was her response?”
“She was mad as hell. Said it was very important that we meet on Sunday evening. She threatened to kill the deal if I didn’t show up.”
“Did you ever talk to Tori Madison or Mr. Bannister again?”
“No. When I heard that Bannister was dead, I called Ms. Madison several times, but she never returned my calls.”
Chasing Justice Page 26
