by Parnell Hall
“On that ground it’s allowed,” Judge Wylie said. “The objection is overruled.” He turned to the jury. “I should explain, you are to consider the answer to this question, not as establishing fact, but merely as an indication of this witness’s attitude toward the defendant. You are to take his feelings for the defendant into consideration when evaluating his testimony. The court reporter will please read the question.”
The court reporter pawed through his notes, read back, “Were you partners with him in having the defendant arrested and charged with petty theft?”
“Answer the question,” Judge Wylie said.
“Ah, yes, I was.”
“You were instrumental in having Miss Dearborn arrested for a crime?”
Lowery shifted position on the stand. “I wouldn’t say instrumental. I suppose I was a party to it. But Frank Fletcher was the driving force.”
Dirkson, who had been looking irritated, smiled at that.
“Is that so?” Steve said. “But is it not a fact that you went along? That you joined with him in pressing the complaint? That as a result the defendant was arrested and tried for the crime of petty theft. And that at the time of the trial you appeared in court and gave testimony for the prosecution?”
“Yes, that’s true.”
“Then let me ask you this-do you have any animosity toward the defendant over the fact she was found innocent of that charge?”
“None at all.”
“It doesn’t make you angry to be proved wrong?”
“I don’t consider myself proved wrong.”
“Oh? Then you also thought the defendant was innocent?”
“Objection, Your Honor.”
“Overruled. Witness may answer.”
“No, I did not.”
“You didn’t think the defendant was innocent at the time?”
“No, I did not.”
“And you still don’t?”
“No, I do not.”
“Then what do you mean when you say you don’t feel you were proved wrong?”
“The jury brought back a verdict of innocent. That doesn’t mean the defendant was.”
Dirkson turned to the jury, let them see his broad smile.
“Do you disagree with the verdict?” Steve said.
“I certainly do.”
“You feel it was incorrect?”
“Yes, I do.”
“In your opinion the jury made a mistake?”
“Yes, they did.”
“How clear was it in your own mind the defendant was guilty?”
“Perfectly clear.”
“On what do you base that evaluation?”
“On the evidence.”
“The same evidence the jury heard?”
“That’s right.”
“How do you account for the fact the jury brought back a verdict of not guilty?”
“I don’t know. It’s hard to get twelve people to agree.”
“Wasn’t the verdict for acquittal unanimous?”
“I don’t know.”
“You don’t? Didn’t the prosecutor poll the jury after the verdict?”
“I believe he did.”
“Did any of the jurors say guilty?”
“I don’t believe so.”
“You don’t believe so?”
“No, they didn’t.”
“Do you understand the meaning of the word unanimous?”
“Objection.”
“Sustained.”
“Was the vote to acquit the defendant unanimous?”
Marvin Lowery didn’t answer, glared at Steve Winslow.
“I’d like an answer to that, Your Honor.”
“Objection,” Dirkson put in.
“Overruled. Witness will answer.”
“Was the verdict unanimous?”
Lowery took a breath. “Yes, it was.”
“Thank you, Mr. Lowery,” Steve said. “So when you said earlier that you didn’t know if it was unanimous, that wasn’t right, now was it?”
“Yes, it was.”
“Oh? But you’re saying now you did know.”
“I said I didn’t know, and I didn’t. Then you refreshed my recollection by talking about polling the jury. And I realized I did know.”
“You’re saying you just didn’t remember?”
“That’s right.”
“You didn’t say you didn’t remember, you said you didn’t know.”
“If I didn’t remember, I didn’t know.”
“Very good, Mr. Lowery. But the fact is, the verdict was unanimous. And my question to you was, how was it possible the jury acquitted the defendant, when the evidence against her was so clear. Your explanation was that it’s hard to get twelve people to agree. On the one hand, that’s a generalization. And on the other hand, it makes no sense in this case. So I ask you again, if the evidence was so clear that you were certain of the guilt of the defendant, how is it that a jury that heard that same evidence would set her free?”
“They made a mistake. Juries often do. They’re dealing with complicated points of law that are difficult to understand. Of course, they’re going to make mistakes.”
Dirkson was no longer smiling.
But Steve Winslow was. “Thank you, Mr. Lowery,” he said. “As I understand it, you have a certain contempt for the American judicial system?”
“Objection!” Dirkson cried. “The witness never said anything of the kind.”
“He certainly did,” Steve Winslow said.
Judge Wylie banged the gavel. “That will do. We will argue the objection at the sidebar.”
“There’s no need, Your Honor,” Steve said. “I’ll withdraw the question and ask another. Mr. Lowery, whatever you may feel about juries in general, in that particular case you felt the jury was wrong, is that right?”
“Yes, it is.”
“You felt Miss Dearborn was guilty of the crime?”
“Yes, I did.”
“Wasn’t that rather frustrating?”
“Yes, it was.”
“Make you angry?”
“I wouldn’t say angry.”
“Would you say annoyed?”
“I suppose you could say annoyed.”
“You resented the verdict?”
“Yes, I did.”
“Mr. Lowery, you recall at the beginning I asked if you resented the defendant for being found innocent of the crime. Is that right?”
“Yes, it is.”
“What answer did you give me.”
“I told you I didn’t.”
“You didn’t resent her for being found innocent?”
“No, I did not.”
“Was that answer true?”
“Yes, it was.”
“But you say you resented the verdict? The verdict of innocent. So if you didn’t resent the defendant for being found innocent, you must have resented the jury for finding her so. Is that right?”
Lowery blinked twice. Did not answer.
“Objection, Your Honor,” Dirkson said.
“Overruled.”
Lowery took a breath. “No, I did not resent the jury. I resented the situation. The fact that she had been found innocent.”
“What about me?” Steve said.
Lowery looked at him. “I beg your pardon?”
“Did you resent me?”
“Objection?” Dirkson said.
Steve smiled. “Surely the bias of the witness towards the defense is relevant.”
“Overruled.”
“Do you resent me?” Steve said.
Lowery glared at him. “Yes, I resent you,” he blurted.
“There we have it,” Steve said with a smile. “Finally, we come to the root of the problem. And why do you resent me?”
“For what you’re doing now,” Lowery said, angrily. “Mixing things up, twisting what I say.”
“Is that what I did in the petty cash trial?”
“You certainly did.”
“Is that what I’m doi
ng now?”
“Yes, it is.”
“And you resent that?”
“Of course, I do.”
“What exactly is it that I’m doing that you resent?”
“I told you. You’re misquoting me. Misinterpreting everything I say. Mixing everything up so it comes out backwards.” Lowery paused, took a breath. Said angrily, “You’re making me look like a total jackass.”
“Is that so?” Steve said. He smiled broadly at the jury. “Thank you. No further questions.”
32
Next up, Dirkson called Dr. Andrew Stanton, a crisp, efficient looking young man with a no nonsense air about him. He took the stand and recited his qualifications as medical examiner, which included twelve years’ experience in that position, a rather surprising and impressive statistic in one so young.
“Now, then,” Dirkson said, “directing your attention to the evening of Thursday, June tenth, were you called upon to examine a body at that time?”
“Yes, I was.”
“Can you tell us when and where that was?”
“Yes. I was summoned to the office of F. L. Jewelry on West 47th. I arrived there at approximately ten twenty-five.”
“Approximately?”
Stanton smiled. “That was approximately when I arrived. I began my examination at ten twenty-nine.”
Dirkson smiled back. “Thank you, doctor. And what can you tell us about the body you examined?”
“He was a young man, say in his mid-thirties, of medium height and build. He was lying face down in the middle of the floor, with a pool of blood emanating from his chest.”
“You examined the body at that time?”
“Yes, I did.”
“What did you do?”
“First I determined that the man was dead. Of this, there was little doubt. Still, I verified the fact. I then conducted a preliminary examination of the body to determine the apparent cause of death.”
“And what was that?”
“Blood had come from a wound where something had penetrated the chest. From the location of the wound and the extent of the blood, it was likely this object had also penetrated the heart.”
“Could you tell what this object was?”
“It was apparently a bullet, though I did not make that determination then.”
“But you did make it later?”
“Yes. In the lab. When I conducted my autopsy.”
“And what did that object prove to be?”
“A bullet, which had penetrated the chest and lodged in the heart.”
“You recovered the bullet from the heart of the victim?”
“That is correct.”
“Tell me, doctor, did you take any steps so that it would be possible for you to identify this bullet?”
“Yes, I did. I scratched my initials, A. S. for Andrew Stanton, on the base of the bullet.”
Dirkson nodded his approval. “Thank you, doctor.” He strode to the prosecution table, picked up a small plastic bag. “Your Honor, I ask that this be marked for identification as People’s Exhibit One.”
“So ordered.”
When the court reporter had marked the exhibit, Dirkson took it and returned to the witness stand. “Doctor, I hand you a plastic bag marked for identification People’s Exhibit One and ask you what it contains.”
Doctor Stanton took the bag and examined the contents. “This is the bullet that I removed from the body of the decedent.”
“How do you recognize it?”
“As I said, by my initials, A. S., which I scratched on the base.”
Dirkson nodded approvingly. “Thank you, doctor. You say you removed this bullet from the body during your autopsy?”
“That’s right.”
“Did your autopsy determine the cause of death?”
“Yes, of course. The bullet was the cause of death. The man had been shot in the heart.”
“The bullet that you have identified, the one with your initials on it, the one marked for identification People’s Exhibit One?”
“That’s right.”
“That bullet was the cause of death?”
“Yes, it was.”
“Did you find any other cause of death? Any contributing factors?”
“No, I did not.”
“The bullet was, in your opinion, the sole and sufficient cause of death?”
“Absolutely. There is no doubt in my mind.”
“I see. Tell me, doctor. Did you determine the time of death?”
“Yes, I did.”
“And what did you determine that to be?”
“The decedent met his death on Thursday evening, June tenth, between the hours of seven-thirty and eight-thirty P.M.”
“Can you tell us how you made that determination, doctor?”
“Certainly. The decedent met his death approximately two and a half hours before my preliminary examination. You’ll recall I began my examination by ten twenty-nine. I had taken the body temperature by ten thirty-two. The body temperature was ninety-four point nine.” Dr. Stanton smiled. “The rest is simply mathematics. Normal body temperature is, as you know, ninety-eight point six. After death, the body cools. The rate of cooling is approximately one and one half degrees Fahrenheit per hour. The body I examined was ninety-four point nine, which is three point seven degrees cooler than normal. If the body cools one and one half degrees per hour, three degrees would be two hours, and point seven degrees would be approximately a half an hour. So the three point seven degrees of cooling indicated the body had been dead approximately two and a half hours. Since the temperature was taken at ten thirty-two, that put the time of death at approximately eight o’clock. The reasonable parameters when death might have occurred would be seven-thirty to eight-thirty.”
“You say death could have occurred from seven-thirty to eight-thirty?”
“That’s right.”
“When was death most likely to have occurred?”
“In my opinion, right around eight o’clock.”
“Thank you, doctor. That’s all.”
In the back of the courtroom, Tracy Garvin shifted in her seat. Steve Winslow loved to go after doctors. He explained it once that many doctors come across as self-assured and arrogant, and jurors just naturally love to see them torn down. So Steve always did his best to trip them up.
The problem was, he usually concentrated on the time of death. Usually, it was Steve who brought up the rate of cooling, made the doctor do the math. He used the math to contradict something the doctor had previously said.
But Dirkson had walked the doctor through the time of death, and in Tracy’s opinion, he had nailed it pretty well. If Tracy thought so, it was a cinch the jurors thought so too. So she wondered just what Steve was going to do.
It appeared Steve Winslow didn’t know either. He got up, frowned, looked at the doctor, frowned again, and looked around as if trying to think of something to ask. After a moment he walked over to the court reporter’s table, where Dirkson had returned the plastic bag containing the bullet. He picked it up and approached the witness.
“This bullet, doctor?”
“I beg your pardon?”
“You have testified that it was this bullet that was the sole and sufficient cause of death of the decedent, Frank Fletcher?”
“That is correct.”
“Are you certain of that?”
“Yes, I am.”
“No secondary cause of death? No contributing factors?”
Stanton shook his head. “None that was apparent in my autopsy.”
“And I assume your autopsy was quite thorough?”
“Absolutely.”
“Did you test for poisons?”
“Yes, of course.”
“Drugs?”
“Yes, of course.”
“Did you find any?”
“Nothing significant.”
“What do you mean by that?”
“Exactly what I say. I found nothing that would be sign
ificant.”
Steve smiled. “Did you find anything that was insignificant?”
“I got a faint positive for cocaine.”
“A faint positive?”
“That’s right.:”
“Is that like a little bit pregnant?”
“No, it is not. I got a borderline reading that might have been a trace residual effect of recreational cocaine use. But it was too faint to be conclusive. To put it one way, if this were a baseball player undergoing mandatory drug testing, the reading would not have been sufficient to determine he had flunked the test.”
“But the test did indicate a trace of cocaine?”
“Possibly. It could also have been a false positive. The only significance of the test would be to indicate that at a future time, it might be wise to test again.” Stanton smiled. “In the present case, that is not applicable.”
“Be that as it may, doctor, no matter how hard you try to minimalize this finding, the fact is this test revealed a trace residue of cocaine.”
“Which could not in any way have contributed to the cause of death,” Dr. Stanton said. “I want to make that perfectly clear. When I stated I found no contributing causes of death, that was entirely accurate. There are no contributing causes of death, no matter how much you may want to make out of this one particular test.”
“I’m not trying to make anything out of it, doctor, other than to bring out the fact it exists. Now then was there anything else revealed by your autopsy that you failed to tell us about?”
Dr. Stanton’s eyes narrowed. “I did not fail to tell you about it,” he snapped. “I was asked for the cause of death. I’ve given you the cause of death, and everything significant relating to the cause of death. I have not given you every extraneous and unrelated matter that had nothing to do with the cause of death. My autopsy also revealed the man suffered from hemorrhoids. Would you like to take me to task for failing to mention that?”
Judge Wylie banged the gavel. “That will do. Doctor, I can understand the provocation, but please try to avoid sparring with counsel.”
“Sorry, Your Honor.”
“Proceed.”
Steve Winslow held up the plastic bag. “Now then, doctor, getting back to this bullet. The one you told us about. The one that is the sole and sufficient cause of death. The one that this trace residue of cocaine was not a contributing factor to.”
“Objection, Your Honor.”
