Rebecca couldn’t help but notice that the judge, in contrast to his generally affable demeanor in the court, seemed impatient and out of sorts, perhaps because of these unexpected delays, or maybe the gallery outburst. He sat frowning in his robes behind a huge cherrywood desk, his eyes on the papers in front of him. Occasionally he turned a page, although she had the strong impression that he wasn’t reading anymore.
Finally, Ms. Shepard cleared her throat—clearly a signal, as Bakhtiari looked over at her and then straightened in his chair. “I’ve made a decision,” he began without any preamble or fanfare. “I’m going to defer my ruling on the defense motion to admit Honor Wilson’s taped statement and also defer declaring a mistrial until the close of the prosecution’s case. I take it, Ms. Hardy, that if I rule in your favor and admit the tape, you will not at that point ask for a mistrial or more time to investigate. Correct?”
This was not unexpected, and yet Rebecca’s head went light and she closed her eyes against an acute sense of vertigo. She drew on all of her willpower to calm herself down.
But still. After an acrimonious discussion that morning with her father, who’d told her she could be accused of incompetence if she didn’t ask for a mistrial, and the much worse session she’d just had with her client, she had decided to go forward without demanding a mistrial if the judge ruled that the jury could hear the tape. “That’s correct, Your Honor,” she said. “If the tape is admitted, the defense is prepared to proceed.”
“All right.” That should have been it. He could have made these rulings out in the courtroom after the recess, but instead had called opposing counsel to his chambers. Now Bakhtiari should dismiss the attorneys back to the courtroom, and they’d get on with the trial proper. Though he’d rendered his decisions, the judge didn’t appear to be finished.
In fact, he wasn’t.
“All of that being said,” he began, “I am not unmindful of the earlier arguments Ms. Hardy made regarding the extraordinary time pressure that Homicide inspectors were under to identify and arrest a suspect in this case. To say nothing of the unusual haste the DA’s office displayed in scheduling this trial. Let me be clear. I am not calling into question the validity of the grand jury’s decision to indict Mr. Treadway. Nevertheless, I have to comment that Officer McDougal’s testimony struck me as discordant somehow, if only because there were evidently, as a matter of simple fact, elements of the victim’s personal life that might appear to have a bearing on her death, and yet they don’t appear in the People’s narrative at all.
“I don’t think it is impossible,” the judge went on, “that if we were still at the grand jury phase, and a more complete investigation had occurred, the prosecution might have declined to indict Mr. Treadway until more work could be done strengthening the People’s case. But as Ms. Hardy pointed out in her motion, not letting the jury hear this statement smacks of injustice, and as a purely personal matter, as a private citizen, I find that I do not completely disagree with her. And we’re not in the business of injustice here. Mr. Braden, let me remind you that your sworn duty as a prosecutor is not to win cases but to pursue justice wherever it may lead you.”
Braden, in a cold fury, spoke with quiet vehemence. “That pursuit—of justice—led the People directly to Mr. Treadway, Your Honor. The fact that someone else may have had personal or business issues with Anlya Paulson, or even hated Anlya Paulson, does not mean Mr. Treadway did not have his own compelling motive. His own reasons to kill her. As the evidence will prove.”
“All right, then,” Bakhtiari said, “I will make my rulings when the People rest, and I’ve given my two cents, for what they’re worth, so let’s get back to the business at hand, shall we? Court will reconvene in fifteen minutes.”
29
GLITSKY SHOWED UP with Jewish deli sandwiches and celery sodas at the cubby where Jeff Elliott worked in the basement of the Chronicle Building at Fifth Street and Mission. With a full, thick gray beard and hair down to his shoulders, Elliott had struggled with multiple sclerosis for many years and now was all but confined to his wheelchair in his tiny and cluttered office. If you wanted to see him in person, you came to him. He wrote a popular column, CityTalk, which appeared on page two every day but Sunday, and he’d invited Abe down to talk because it sounded like the “eloped” criminals story was a good one, and “only in San Francisco,” Abe was saying.
“Apparently not only here, though,” Jeff said. “And that doesn’t mean it’s not worth some column space, but check this out.” He picked up the morning’s paper and handed it across. “This stuff’s happening all over the place. It’s almost an epidemic. You’re looking at a guy in Fresno just yesterday.”
Glitsky scanned the story, and sure enough, there were similarities. In the Fresno case, there was no issue of competence to stand trial. The inmate who’d walked out of the jail had done so after the jury had found him not guilty of burglary charges. Or rather, after the foreperson, confused, had signed a “not guilty” verdict form. Actually, the jury had been unable to reach a verdict. Four had voted not guilty. Eight had voted guilty. But there was no verdict form that said the jury was hung. They had only two forms to sign—one said “guilty,” the other “not guilty.” So the foreperson, thinking that a hung jury was the same as not guilty, had signed the form, effectively freeing the defendant. He had to be released.
The foreperson basically had checked the wrong box.
What made that story newsworthy and ultimately tragic was the fact that the Fresno man was out of jail for only about an hour and a half before he showed up at his sister’s house and, over an entirely unrelated matter, was stabbed to death by his brother-in-law.
Glitsky finished the article, clucked in commiseration, and handed the paper back. “I thought it could only happen here,” he said. “Something in the air.”
“It’s everywhere,” Elliott said. “The ignorant abound. Is that the way it happened here?”
“Not exactly, but close enough.”
“And how many of these people who’ve ‘eloped’ have you got?”
“Five. But that’s only in the last year or so. There could be a lot more.”
“Just to be clear, we’re talking murderers here, are we not? The ones still out?”
“Four murder suspects, arrested but never tried, because guess what?”
“They were found incompetent to stand trial.”
“You’ve been paying attention.”
“At all times.” Elliott straightened up in his wheelchair, folded his hands in his lap. After another minute, he nodded to himself as if making a decision. “Do you have names and mug shots?”
“Not on me, but you can call Villanova at the office, who’s taken point on it. He’s got ’em all.”
“Of course he does.”
“In all humility, you are dealing with professionals,” Glitsky said. From the lunch package, he pulled out a manila envelope and handed it over. “And if you’re thinking what I think you’re thinking, here’s a mug shot of Mr. Salazar, our murderer from Minnesota.”
“Normally, I don’t run a lot of art with my column, but I think in this case the public would like to see a face. The story is pretty unbelievable, so it would be nice to have some show-and-tell to lend it credibility.”
“That was my thought, too.”
“Okay,” Jeff said, “so much for business. If I have to sit here hungry and endure the smell of that pastrami for another second, I’ll have to rip it from your hands.”
“No need.” Glitsky pulled out the sandwiches and sodas. “Don’t tell Treya. Pastrami is definitely not on my no-fat, no-taste diet.”
“No, it’s all right,” Jeff said. “Pastrami is its own entirely separate food group, healthy under all circumstances. Many cultures actually use it as medicine. They’ve done studies.”
“I’ll tell her.”
They both dug in and were eating in companionable silence when Jeff said, “Hey, did you see the game last night? How
about that Posey? Four long flies, can you believe it? Was that awesome or what?”
30
BACK IN THE courtroom, waiting patiently as Rebecca stood up for her cross-examination of the testimony he’d just given for Braden, the crime scene supervisor Sergeant Lennard Faro sat in the witness box projecting an aura of understated confidence. By far the best-dressed man in the room, he cultivated a tasteful soul patch beneath his bottom lip and presented himself more as a fashion model than a cop. Nevertheless, as a policeman, he had been in his position for over a decade and had testified in court hundreds of times, his testimony critical in establishing the chain of evidence.
“Sergeant Faro,” Rebecca began. “Was it difficult to get to the scene of the accident on the night that Anlya Paulson died?” She was consciously sticking with her father’s idea to use alternate words, such as “accident,” even though Braden hadn’t risen to the bait to call attention to it.
Faro wasn’t going to fall for it any more than Waverly had. “The scene of the homicide, you mean? Yes, it was. Traffic was stopped in all directions from downtown to North Beach and east-west as well. I parked nearly a mile away, below Market.”
“Could you estimate how long it took you to get to the scene after you got called to it?”
“At least an hour. Maybe a little longer.”
“And during all that time, Anlya Paulson’s body was lying on the asphalt inside the tunnel, is that correct?”
“Yes.”
“And after you got there, when the crime scene investigators had finished their work, approximately how long did it take to get the coroner’s van inside the tunnel so that her body could be removed?”
“Quite a long time. I know that it was light out when we finally could get the van into the tunnel. Say six-thirty, quarter to seven.”
“So the victim’s body lay there in the street for close to eight hours?”
“Roughly. I’d say that’s about right.”
“And the body was then delivered to Dr. Strout’s morgue, correct?”
“Yes.”
At this, Braden stood up, objecting. “Your Honor, relevance?”
The judge looked a question at Rebecca, who was ready with her reply. “Deterioration of DNA evidence is a function of time, Your Honor, and this line of questioning is foundational for the testimony of the People’s DNA expert.”
Bakhtiari nodded. “All right. I’ll allow it. Objection overruled.”
Of course, Rebecca knew all about DNA. She was aware that her questions were, frankly, spurious. But anything she could do to get the jurors to doubt the DNA evidence in general could only help. She came right back to her question. “So from the time of the accident until the body arrived at the morgue was nine or ten hours, is that right, Sergeant?”
“Yes.”
“And did you accompany the body in the van to the morgue?”
“I did.”
“Was the van heated during this trip?”
Faro’s eyes narrowed, his lips went tight, and for the first time he showed a bit of hesitation. “I don’t really know. I don’t remember it being abnormally warm or cold.”
“But it was a cool morning, was it not?”
“Normal, I’d say, for May. Probably mid-fifties.”
“Would it surprise you to learn, Sergeant, that the temperature at sunrise that morning was forty-four degrees?”
“It may have been. As I say, I don’t remember exactly.”
“Do you remember if the heater was on in the van?”
“Not specifically, no.”
“At forty-four degrees outside, it must have been, wouldn’t you say?”
“Objection! Relevance.”
“Sustained. Move it along, Ms. Hardy.”
This wasn’t very sexy stuff, Rebecca knew, but again, she figured that anything serving to undermine Faro’s authority or credibility was to the good. “All right,” she continued. “After you arrived at the morgue, what happened to the body?”
“They brought it inside.”
“On the gurney, yes?”
“Of course.”
“Did you accompany the body the whole time?”
“Yes.”
“Once you got it inside, did Dr. Strout immediately begin an autopsy?”
Faro shot what seemed to be an apologetic look at the jury. Rebecca was happy for him to show his impatience. “No, he did not,” he replied with some crispness. “He had another autopsy he was performing.”
“What then happened with Anlya Paulson’s body?”
“They wheeled her into the morgue and prepped her for autopsy.”
“And how is that procedure handled?”
Again, Faro glanced at the jury, as though the nature of his testimony would be graphic and distasteful. “Well, first they remove her from the body bag—”
“Excuse me, Sergeant. When was she placed in this body bag?”
“At the scene. In the tunnel.”
“And when her body was placed in it, was this body bag then completely enclosed?”
“Yes. It zips up.”
“All right, then, back at the morgue, they removed her body from this body bag and began preparing her for the autopsy, is that right?”
“Yes.”
“Do they remove her clothing?”
“Yes.”
“Do they save that clothing for forensic analysis?”
“Yes, they do.”
“Do they separate the items of clothing? Underwear, shoes, brassiere, skirt, blouse, et cetera?”
“Yes.”
“And where do they put these separated items?”
“A variety of containers, depending on size and volume.”
“And were you present when the morgue attendants did this preparation?”
“No.”
“No? You did not personally witness the removal of the body’s clothes or its storage?”
“No, I did not. As per procedure, I returned to my office, knowing that I would be called when it was time to come down for the actual autopsy. If you want to ask the attendants what they did, I’m sure they would be happy to tell you. They have prepped hundreds of bodies hundreds of times, and they knew the drill.”
“The drill. That is, the normal procedure?”
“Yes.”
Perhaps it was only to break up her rhythm, but behind her, she heard again the scrape of a chair and Braden’s voice, objecting to further questioning on that line. “If counsel wants to ask what the morgue attendants did, Your Honor, she should be asking them.”
Rebecca spoke right to the judge. “Again, Your Honor, the passage of time is one critical component affecting the reliability of DNA evidence. It’s critical that the jury understands both the elapsed time and the storage conditions of the victim’s clothing from which that evidence was taken.”
Braden said, “That’s ridiculous, Your Honor. When DNA deteriorates, you don’t get a false match. You get no results. Anyway, as Ms. Hardy knows from our previous hearings, this witness isn’t the person to ask about the handling of these exhibits.”
Bakhtiari frowned. “Enough of the speaking objections, you two. The objection to lack of personal knowledge as to this witness and the handling of the body after he left it is sustained. Move on, please. In fact, Ms. Hardy, we’re getting toward lunchtime. Would you like to stop this cross-examination for now and continue after lunch, or try to finish up before?”
Rebecca looked up at the wall clock. It was 11:50. “It shouldn’t be too much longer, Your Honor.” She took a stab at levity, hoping the jury would see what a nice and reasonable person she was. “I’m sure Sergeant Faro would prefer to finish up before lunch as well, and leave his afternoon free.”
In reality, bolstered by Honor Wilson’s deathbed declaration, whether or not it would be ruled admissible, Rebecca was riding her own wave of adrenaline and wanted to keep going while she was so much in the zone. “Sergeant Faro,” she said, coming back to the witness, “you were not
with the attendants when they prepared Ms. Paulson’s body for autopsy, is that right?”
“Yes. That’s right. As I’ve said.”
“Yes, you did. But just to be clear, you did not see them place any of the articles of Ms. Paulson’s clothing into their respective receptacles, did you?”
“No.”
“Did you see that clothing in those receptacles when you delivered it to the laboratory for analysis?”
“Yes, I did. I checked it and signed it in.”
“Did you happen to notice the receptacle that held Ms. Paulson’s underwear?”
“Yes. It was a quart-size Ziploc bag.”
“A plastic bag, in fact. Isn’t that correct?”
“Yes.”
Rebecca took a little break, giving a short stick-with-me half-smile to the jury. None of them might know what she was getting at—although she knew that would become clear when she cross-examined the DNA expert—but all of them were following this questioning with rapt attention.
Coming back to the witness, she asked, “Sergeant Faro, did it concern you to see Ms. Paulson’s underwear in a plastic container?”
“Not at that time, no.”
“And yet isn’t it standard procedure to transport potential DNA evidence in a paper container?”
“Yes, that’s true.”
“That wasn’t done in this case, was it?”
“No.”
“Why not?”
Rebecca had the feeling that this was a line of questioning that the prosecution simply did not expect, and the thought galvanized her anew. “Sergeant?” she prodded. “Why was a paper container not used to transport potential DNA-bearing evidence?”
Faro shot a disgusted glance at Braden. “Probably because I did not specify it to the attendants.”
“You mean when they were prepping the body?”
“Yes.”
“When you were with them, sometime around seven-thirty or eight o’clock in the morning, is that right?”
“Yes.”
“But once they had removed Ms. Paulson’s clothing and placed it in its receptacles, including the plastic bag for her underwear, did you then immediately deliver this evidence to the lab for analysis?”
The Fall Page 20
