One and Done (Sam Johnstone Book 2)

by James Chandler

  “Mom—” Davonte began.

  “Be quiet, son,” Sharon said. Then, looking at both men, she asked, “Would you counsel your son to plead guilty to something he didn’t do?”

  “No,” Sam said.

  “Yes, if he could get life,” Paul said simultaneously.

  Sharon sat quietly, fingering a small gold cross she wore around her neck. She looked at her son, then Sam and Paul, and stood. “Well, I think I know what my Ronald would say, so I think we know where we are. Come on, Davonte. These men have more trial to prepare for.”

  Sam and Paul stood as Sharon and Davonte left. They remained in Sam’s office until they heard the front door close, and then Sam walked to his office. Unknown to him, Paul had followed him down the hall.

  “Damn it, Sam!” Paul exclaimed. “I thought we had a plan.”

  “We did, Paul—right up until I looked in that mother’s eyes.”

  Hours later, Sam was in his office, awaiting Ronnie. It was after eight, and it had been dark for hours. He was getting tired and his eyes felt like sandpaper, but he had called Ronnie in late to go over his testimony in order to avoid having Paul around. He and Paul were still arguing whether to call Ronnie, but he needed to ensure Ronnie was ready. Sam’s stomach hurt; whether it was nerves or the bad food he’d been eating of late he didn’t know. He was quaffing antacids when Ronnie called.

  “Mr. Johnstone? I’m at the front door.”

  “Be right there,” Sam said. “I thought you had a key,” he added after he’d let Ronnie in.

  “My dad made me give it back.”

  “Okay,” Sam replied. “Coffee? Soda? We might even have a beer in the fridge in the break area.”

  “No, I’m good,” Ronnie said. “I just need to kind of get back to my room and study.”

  “All right, we’ll make this quick,” Sam promised. “I just wanted to go over your testimony so you’ve got a good feel for what I’m going to ask, okay?” Seeing Ronnie’s nod, Sam continued. “Now, remember: our defense is that somebody else did it. So everything—”

  “Someone else did do it,” Ronnie interrupted. “You act like you don’t believe him.”

  “Well, it really doesn’t matter,” Sam explained. “The fact is, I’m putting you on the stand to show that you were interviewed, that you were fingerprinted, that you gave DNA and all that and you weren’t arrested, but Davonte was. Does that make sense?”

  “Well, yeah . . . kinda.”

  “Okay,” Sam continued. “So, my questions will be designed to make the jury see that really, you were just as good a suspect as Davonte, but you weren’t arrested. I mean, I’ll ask just enough questions to get them thinking that maybe Custer police had some preconceived notions—does that make sense?”

  “It does,” Ronnie said. He was tapping his foot nervously on the floor.

  “So it will almost seem like I’m accusing you. I’ll ask questions like, “Did you take a DNA test?’ ‘Did you give fingerprints?’ and stuff like that,” Sam explained. “You okay?” He looked at Ronnie’s foot.

  “Me? Oh, yeah,” Ronnie said. “Nervous habit.”

  “Okay, well, you don’t have anything to be nervous about, do you?” Sam chuckled.

  Ronnie didn’t respond.

  “Something you need to tell me?” Sam pressed. He waited.

  “No,” Ronnie said at last. “What else?”

  “I’ll ask questions designed to make the jurors see that you were there that evening, that you owed Davonte money, that you had communication, that you were in the area—everything just like Davonte, see?”

  “Yeah.”

  “And despite the fact that everything was the same, they arrested Davonte, not you—get it?”

  “Because he’s black, right?”

  “Well, I don’t know. It doesn’t matter.”

  “It does matter!” Ronnie exclaimed. “Black people have been railroaded for centuries! We have to fix that!”

  Sam watched Ronnie carefully. “Ronnie, I’m not going to put the Custer police on trial here,” he said. “I just need to show enough to make at least one juror—and hopefully all of them—understand the police might have arrested the wrong guy. That’s the task.”

  Ronnie sat quietly, tapping his foot.

  “And we’re going to have to talk about the drugs,” Sam continued. “You know that.”

  “It’s only weed. Weed’s legal lots of places.”

  “I understand that,” Sam said. “But it isn’t here. And it isn’t in Colorado or wherever for people under twenty-one, either. I’m just letting you know that is going to come out so you can talk with your folks or whatever. Let ’em know.”

  “My dad’s not talking to me.”

  “Why not?”

  “I think ’cause of the weed thing. He knows; he’s pissed.”

  “I wouldn’t worry about that, Ronnie. Fathers and sons. Ups and downs.”

  “You ever argue with your father?”

  “No,” Sam said. “My father wasn’t worth arguing with.”

  Ronnie looked at Sam for a long time. It was one of the few times he had ever looked Sam in the eye. “So . . . what happens if they start asking me about . . . you know. . . what happened?”

  “Well, I’ll tell you the same thing I tell all my clients and witnesses,” Sam explained. “The most important thing is that you tell the truth. You’ve got to do that, of course.”

  “Right.” Ronnie was looking at his hands. “I told Davonte that.”

  “You’ve spoken with Davonte?” Sam asked.

  “Of course,” Ronnie said. “We’re friends. When he gets to the NBA—”

  “Ronnie, I don’t have time for that right now. Tomorrow, it will work like this: if you can answer a question with a simple yes or no, do it, even if you think it is hurting Davonte’s case. Trust me to clean up the mess. That’s what I get paid to do—understand?”

  “I guess,” Ronnie said.

  “So, no ‘Yes, buts’ or ‘No, buts’—get me? Then, if you are asked something that requires more than a yes or a no, you need to answer in as few words as possible and then—and this is important—shut up. Don’t ramble on or try to explain.”

  “What if it is complicated?”

  “What do you mean?” Sam asked. He looked around his desk for the roll of antacids.

  Ronnie was fiddling with a paperclip. “I mean, what if there are things that you don’t know?”

  Sam felt the blood drain from his face. “Ronnie, what exactly are you telling me?”

  “Nothing. I mean . . . There’s stuff that maybe you don’t know.” Ronnie had manipulated the paperclip into a small, straight piece of metal.

  Sam assumed he knew what was coming. Might as well address it head-on. “Ronnie,” he said, leaning forward in his chair. “I know you’re gay, okay? It doesn’t matter. There’s no reason for that to come out in this trial. No one cares to begin with, and it isn’t relevant.” He watched the young man closely, hoping to see him relax. He did not. “Cathy doesn’t know and doesn’t care. You are not the accused; cross-examination—if she even bothers—will be perfunctory. I’m not going to bring it up, so don’t sweat it.”

  “Well . . .” Ronnie began.

  “Do your folks know?”

  “What? Of course not! My dad would go nuts!”

  “Maybe give him a little credit,” Sam said. “He’s a good man.”

  “Only when he deserves it.” Ronnie tossed the paperclip into a nearby wastebasket. “What else?”

  “Well, I think that’s it,” Sam said. “Ronnie, is there anything I need to know? If I’m going to give Davonte the best defense possible, I have to know everything.”

  Ronnie started to stand and then sat back down. “Whatever I tell you is privileged, right?”

  “Wrong. I’m not your attorney. I’m Davonte’s attorney,” Sam explained. Ronnie’s face fell. “But you owe it to your friend to tell me what you know.”

  “What would you d
o with the information?”

  “Depends on what it was.”

  “So, if it helped Davonte—”

  “Then I will get it in front of the jury if it is admissible. If it’s bad for you, well, it has to go to the jury anyway,” Sam said. “That’s my job.” Ronnie was again looking at his shoes. In spite of himself, an irritable and exhausted Sam exploded. “Damn it, Ronnie! What is it?”

  “It’s nothing.” Ronnie’s eyes were wide with fear. “Nothing. I’ll—I’ll tell you later.”

  “There is no later! There’s now, or there’s never. There is no later!”

  “Then it’s never,” Ronnie said. He stood and walked out of the room. Sam heard the office door shut behind him, then watched out the window as Ronnie made his way through the omnipresent protesters outside the office. Sam was about to intervene when Custer police arrived. Ronnie was able to make it to his car and drive away.

  The next morning, after the parties and audience had assembled and before the jury had been called, Daniels looked at Sam expectantly. “Any motions from the defendant?”

  Sam stood. “Yes, sir. On behalf of Mr. Blair we are moving for judgment of acquittal pursuant to Rule 29 of the Wyoming Rules of Criminal Procedure. While we recognize the State’s burden is low at this point, we do not believe the State has met even that low threshold of proof. May we be heard?”

  “Yes.”

  “Your Honor, as you know, in order to meet its burden the State was required to present evidence to show that my client not only killed the decedent, but that he did it purposely and with premeditated malice or while committing or attempting to commit a felony.”

  Sam then cited case law in support of his motion. “Your Honor, we contend the State’s evidence as presented in its case-in-chief is such that a juror must have a reasonable doubt as to the element of ‘purposely or with premeditated malice.’ The State has produced evidence which, if assumed to be true, a reasonable juror could use to determine my client killed the decedent. But there is no evidence from which that same juror could deduce malice. We know only that the decedent was a drug dealer and that my client owed him some money. Asking the jury to make the leap from owing someone money to killing them is simply too much under the law. We ask that you grant our motion to dismiss the charge of murder in the first degree. Further, with regard to the lesser-included offense of second-degree murder, we would ask—”

  “Just a moment, Mr. Johnstone. Let’s eat this elephant one bite at a time,” Daniels said. “I’d like to hear from Ms. Schmidt regarding the first-degree charge. Ms. Schmidt, what says the State?”

  “Your Honor,” Cathy began, “the State’s evidence is sufficient on every single element. First, we believe we have shown beyond a reasonable doubt the events in question occurred on or about the 6th day of November. There is no doubt as well that the relevant events occurred here in Custer County. Similarly, there is little doubt that Mr. Blair is the proper defendant. Finally, the State has shown the deceased was murdered. The only issue, then, is whether he was murdered by Mr. Blair purposely and with premeditated malice. The evidence on that point shows that the parties had a disagreement over money and that Mr. Blair hated homosexuals. The evidence shows that Mr. Blair followed the victim out of the party. The evidence shows Mr. Blair in the vicinity of the location where the defendant was found at the relevant time, and the evidence is that the victim was killed by a blow to the back of the head, virtually eliminating any argument of self-defense, accident, or the like. The State has met its burden, Judge, and we ask the court to deny Mr. Johnstone’s motion.”

  “Mr. Johnstone. Your motion. You get the last word.”

  “Thank you, Your Honor. I think Ms. Schmidt’s characterization of what was produced by the State in its case-in-chief is wishful thinking and we pray you grant the motion, Your Honor. With regard to the charge of second-degree murder—”

  “Just a minute, Mr. Johnstone. Regarding the charge of first-degree murder, the court is going to find the State has met its burden and will deny the motion. It’s a close call, and I’m not saying the jury should find premeditation; I’m saying they could.” Daniels paused as two members of the press corps left the room to file their stories. After they had left, he continued. “So, that motion will be denied. Mr. Johnstone, I’m not going to hear you on the second-degree charge. In my opinion, giving the State every reasonable inference, a reasonable juror could find the defendant acted purposely and maliciously—assuming she believed the evidence, of course. In any event, let the record show you made the Rule 29 motion on second-degree murder and I denied it.”

  Sam felt adrenaline pulse through his body, and thought he heard Paul sigh heavily as well. Both first- and second-degree murder were still on the table, so Davonte would do between twenty years and life if convicted. “Now, has your client made a determination as to whether he will testify?”

  “Not yet, Your Honor.”

  “Does the defense intend to offer evidence?” Daniels looked pointedly at the clock, clearly hoping for a negative response.

  “Yes, Judge,” Sam said. “Perhaps two witnesses, and perhaps Mr. Blair.”

  “All right,” Daniels said. “It’s still early. Here’s what I’m thinking we do. Let’s bring the jury back and the defense will put on its first witness. After the State does its cross, we’ll let them go for a long lunch, then we’ll meet and get the jury instructions straight so that we’ll be ready to go when Mr. Johnstone’s case has concluded. We’ll start the afternoon with the defendant’s second witness,” Daniels said. “Now, not later than lunchtime today, Mr. Johnstone, I’ll expect notification from you one way or the other. I don’t like to move jurors in and out of the courtroom like cattle. Can we do that?”

  “Yes, sir.”

  “Okay.” Daniels nodded. “Bailiff, let’s get the jury in here.”

  When the jury had reassembled and been accounted for, the trial continued.

  “Your Honor, the defense calls Russ Johnson,” Sam said. He was looking at the yellow legal pad on the defense table, upon which was written only the three points he wanted to make: that the producer of DNA was not necessarily the culprit, that no conviction should stand on DNA alone, and that there were a number of ways Davonte’s DNA could have gotten on that hat.

  Sam took Johnson through his background and qualifications quickly, then got to the substantive line of questioning. “Can you tell the jury a little bit about touch DNA?”

  “Of course,” Johnson said. “As I understand it, touch-transfer DNA was first discovered by an Australian scientist in 1997. The scientist discovered that tiny bits of DNA would transfer through touch, together with fingerprint markings, allowing for the collection and analysis of DNA from fingerprints left behind by culprits. So, it started as getting DNA from fingerprints. But scientists soon discovered the ability to search for touch-transfer DNA from other objects and surfaces. As you might imagine, this had law enforcement applications, and pretty soon we saw the prosecution of individuals based on DNA from these objects.”

  “Are there problems with the technique?” Sam asked.

  “Oh, yes,” Johnson said, warming to his subject. “While the sensitivity of the testing keeps increasing, making it possible to obtain DNA from smaller and smaller samples, it is kind of a double-edged sword.”

  “Why?”

  “Because the technological ability to use smaller samples means it is not so clear-cut that the person whose DNA is found at the crime scene is actually involved in the crime, or that they were even anywhere near the crime scene to begin with.”

  “Why is that?”

  “Well, think about it. If we’re getting DNA results from just a few cells that somehow sloughed off someone, we have to ask ourselves how easy it is for just a few cells to arrive where they were found.”

  “Well, how easy is it?”

  “Well, in study after study it has been shown that DNA transfers not only through primary contact with an item, but secon
darily, and maybe even beyond that.”

  “Meaning?” Sam asked. The jury was following, he observed.

  “It is possible that if you touch my hand, and I touch a third person’s hand, it is possible—I’m saying possible—that someone checking the third person’s hand could find not only your DNA, but that of someone else you touched before touching me.”

  “So,” Sam said, “is the science of any use at all?”

  “Of course, but we have to be aware of the limitations. We cannot tell you when the DNA was deposited or how. We have to remember the DNA could have been deposited perfectly innocently, or even by someone else,” Johnson explained. “And if that isn’t complicated enough, the literature says that DNA can be transferred from one area of an item to another area.”

  “So, touch DNA is everywhere?”

  “Yes,” Johnson said. “Touch DNA is known to last for up to two weeks outside and six weeks or longer inside.”

  Sam walked over to the table where the admitted evidence was and retrieved the bag containing the watch cap. “So, Mr. Johnson, my question is this: if I were to tell you that this hat had lain outside in the weather for two weeks, that my client and the owner of the hat were friends, and that my client’s DNA was found on the hat, would you automatically assume my client was the culprit?”

  “Oh, no.” Johnson shook his head sadly. “I wouldn’t be surprised to find your DNA on that hat. I’d say that while DNA never lies, you have to evaluate all the evidence. DNA is just one part of it—especially touch DNA.”

  “Speaking of touch DNA, you mentioned that our cells slough off relatively easily—is that right?”

  “Yes.”

  “So, can we expect that whatever we touch will have our cells on it?”

  “No.”

  “Why not?” Sam asked.

  “Well, we don’t know for sure,” Johnson admitted.” “What we do know is that in controlled experiments, sometimes cells transfer, sometimes they don’t.”

  Sam took a minute to walk to the table to feign getting a drink. What he really wanted was to be able to look at the jury and make certain he had their undivided attention. “So, let me ask you this. If you and I both touched an article—say, a hat like this,” Sam said, holding the watch cap aloft, “what are the possibilities?”