But I couldn’t let him keep shutting me out. “Jefferson, I don’t know how to help. I don’t know what to say. I don’t know what to do.”
“There’s nothing you can say and there’s nothing you can do. Let’s just talk about something else.”
At some point, we would have to talk. But for now, I agreed to abide by his decision not to. I nuzzled in closer to him. “Okay,” I said, “what do you want to talk about?”
“You think this chick you’re defending is innocent?”
I didn’t reply. I didn’t want to talk about Tina Montgomery either, and I was too tired to tell him what was going on with Neddy.
He gently nudged my shoulder.
“You’re not falling asleep on me, are you?”
“No, I’m still awake.” I still didn’t answer his question.
“Wait a minute,” he said. “You think she did it.”
“What I think is irrelevant.”
“Oh that’s a new one. I don’t think I ever recall hearing you say your opinion about a case was irrelevant. So this criminal stuff is kinda messin’ with your head, huh?”
Jefferson knew me well. Too well. “That’s one way of putting it.”
“I’ll never understand how you do what you do.”
Another whiff of Jefferson’s pungent alcohol breath hit me in the face. “It’s not that hard,” I said. “You just focus on the facts.”
“But what if the facts say your client’s guilty?”
This conversation felt like déjà vu for me. His questions were the same ones I had asked Neddy during that first night at her house. “It’s never that black and white,” I said. “There’ll always be some facts in your client’s favor. So you concentrate on those.” Did I actually believe that or was I simply echoing Neddy’s spiel?
“Your client may’ve actually killed her husband. Do you realize you could be helping her go free?”
“The jury makes the decision. Not me. I’m just putting the facts on the table.”
Jefferson wasn’t buying that. “Yeah, you’re putting the facts on the table, but not all of them. How could you? You think she’s guilty”
“I never said that.”
“Yeah, but you haven’t said she’s innocent either.”
“You realize this conversation could get me disbarred, don’t you?”
“Really,” he said, feigning excitement. “Tell me who to call and I’ll dial the number right now. That might be the only way for me to get some time with you.”
“Aw, c’mon, Jefferson. It’s not that bad. We spend time together.”
“When’s the last time we went out to dinner or to a movie?”
“I don’t know. You never ask me out.”
“That’s because by the time you get home, everything’s closed.”
“You’re exaggerating,” I lied.
“Am I?”
“Yep.”
The room fell silent. Jefferson reached up and turned off the lamp. “Baby, I don’t want to stress you out the day before your first big criminal case, but we can’t continue like this.”
“It’s not that bad.”
“Maybe to you it isn’t.”
I exhaled and pulled the thin blanket up to my neck.
“I’m just asking you to find some balance in your life. You want to practice law, cool. Just pencil in some face time with your husband every once in a while.”
“Okay, I will,” I mumbled, drifting off. “But if I don’t get to sleep right now so I can wake up in time for that prelim tomorrow, you’re going to have me around 24/7 because I won’t have a job.”
CHAPTER 34
This was my first preliminary hearing and I wanted to throw up.
The courtroom was packed, mostly with reporters. David sat at the far end of the defense table with Tina sandwiched between us. She was dressed in a classy, purple linen suit that looked as if it had been tailor-made for her petite frame. How she dressed didn’t matter so much before the judge, but it would be a different story with a jury present. I made a mental note to remind her to dress down for the trial. I wanted the jurors to view her as one of them, not some rich, snobbish socialite.
While I reread my witness outlines, which I’d already memorized, David doodled on a piece of paper. We hadn’t said very much to each other since we exchanged words in the conference room. Although he was second-chairing the case, I knew he planned to offer me zero help.
Julie and her co-counsel, Sandy McIntyre, were seated at the prosecution table a good four feet to the right of us. Sandy was only three years out of Hastings Law School and looked like she belonged behind the front desk at the nearest public library. She had a mousy air about her and avoided making eye contact with anyone who looked her way. Her bland beige suit probably came from the sale rack at Target. Her more-experienced colleague overshadowed her in every conceivable way.
Julie was wearing a large-collared white blouse and a striking midnight blue, Bill Blass skirt suit. I knew the label because I had seen the same suit in a store window in Century City a month earlier. When I walked inside to check out the price, I gagged. I guess Julie spent a good chunk of her check on clothes. Tiny pearl earrings dangled from her earlobes and a matching necklace draped her neck. The look on her face told me that she’d drank blood with her scrambled eggs that morning. I tried to convince myself that she was just as nervous as I was. Too bad she didn’t look it.
“All rise,” the bailiff called out, “the courtroom of the Honorable Betty McKee is now in session.”
We briefly stood as Judge McKee hobbled into the courtroom from a private entrance to the left of the bench. McKee was one of the city’s first female judges, which meant she had endured a lot of crap. She was a short, squat woman in her mid-sixties, who conducted her courtroom in a fast-paced, no-nonsense manner. She was considered smart and fair and was well liked by both prosecutors and defense attorneys. I heard that Julie had appeared before her several times and it was soon apparent that there was a strong mutual respect between them. Hence, Julie was already one-up on me and the hearing had barely started.
I looked around the courtroom and realized that I’d never had a case where women played all the key roles. A local tabloid had dubbed the case the “All-Chick Show.”
Judge McKee flipped through a stack of documents on her desk and called out the case name and number, then reviewed some other administrative matters, which, frankly, I was too nervous to pay close attention to. The judge looked at Julie and ignored me.
“Are The People ready to proceed?”
“Yes, Your Honor, The People are ready.”
Judge McKee turned an expectant glance in my direction, but didn’t say anything. I took the cue.
“The defense is ready as well, Your Honor.”
I glanced at Tina who had a hopeful look on her face. She was keeping up the same front she had maintained so well during her marriage to Max. David might as well have been asleep.
Behind us, reporters and onlookers were squeezed into the eight rows of wooden benches like a box of matchsticks. Only one TV camera was allowed inside the courtroom. It fed video into the media room on the fifth floor, which was packed with even more reporters.
Though we had told Tina there was only a slim possibility that she wouldn’t be held over for trial, in reality, there was no way in hell Judge McKee was going to dismiss this case at the prelim stage. Max Montgomery was too well-known and the case had attracted too much publicity. The judge had her career to think about, too. Hopefully, by the time the trial started, Neddy’s name would be cleared and I’d be joining her at the defense table.
Julie’s first witness was the coroner, Dr. Michael Winthrop. Julie breezed through the doctor’s impressive educational and professional background and then covered a few boring minutes of medical jargon about the cause of death. After verifying that he had written the autopsy report, Dr. Winthrop established that Max Montgomery died from multiple stab wounds in the neck and chest.
My cross-examination of Dr. Winthrop lasted all of ten minutes. We had no evidence to indicate that anything other than the stab wounds caused Max’s death, so it would have been a mistake to waste time trying to attack the doctor’s testimony.
The prosecution’s next witness was the crime scene investigator, Detective Richard Lowery. He was the person who had scoured the hotel room where Max was killed and come up with a sophisticated theory of what had likely happened in the suite that night.
Julie took Detective Lowery through several key points he’d uncovered during his investigation, facts she would undoubtedly use at trial to persuade the jury that Tina Montgomery was guilty of murder. The detective testified that a hotel worker spotted someone who resembled Tina outside Max’s room carrying a steak knife, the same type of weapon used to kill Mr. Montgomery. He also pointed out that Tina was at the Ritz-Carlton on the night her husband was killed, that the footprints found in Max’s hotel room belonged to someone who wore a woman’s size six—Tina’s shoe size—and that there was no sign of forced entry into Max’s suite, which was apparently set up for a romantic tryst. Detective Lowery further claimed his investigation uncovered that Max had a penchant for extramarital affairs. Finally, he surmised that the killer wasn’t very strong and was most likely a woman.
Julie paraded back and forth from the witness box to the prosecutor’s table, reigning over the courtroom as if she owned it. “Detective Lowery, I’d like to direct your attention to page six of Exhibit 5, your crime scene report,” she said. Julie handed the document to him and he quickly confirmed that he had prepared it. “Can you read the last sentence on that page?”
I hesitated a second, then sprang to my feet. “Objection, best evidence rule, the document speaks for itself.”
Judge McKee shot me an annoyed glance. “Overruled.”
I felt like an idiot. That was not a proper objection. I needed to relax.
Detective Lowery read from the report. “It’s likely that the suspect was between five and five-feet-five inches tall.” He looked up at Julie, then responded to a question that he hadn’t been asked. “I think Mrs. Montgomery is 5’4”.”
“Objection, non-responsive,” I said. “Your Honor, please instruct the witness to respond to the questions asked.”
The judge groaned and peered over at the witness box. “Detective Lowery, this is not your first time testifying. You know how it works. You’re instructed to respond only to the questions asked.”
He nodded. “Sorry, Your Honor.”
Julie did not appreciate my interruption. “Can you tell me how you reached your conclusion regarding the murderer’s height?”
“My conclusion is based on an analysis of the size-six footprints, the angle of the stab wounds, as well as the force and depth of the wounds.”
“What else can you tell us about the killer?”
“She was—”
“Objection!” I was out of my seat in an instant. “There’s been no determination that the killer was a woman.”
“Sustained.”
I was focused like a radar, tracking Julie’s every word. I was prepared to object the minute she headed down an improper path.
“In light of that objection,” Julie said, “what can you tell us about the killer, besides his or her gender?”
“He or she was not very strong.”
“And how did you reach that conclusion?”
Detective Lowery went into a long diatribe based partly on physics. Julie asked a few more questions, then walked back over to the prosecution table.
“I have no further questions at this time, Your Honor.” Julie looked my way before taking her seat. In a prelim, it would have been a mistake for the prosecution to expose its entire hand. The only goal here was to produce enough evidence to convince the judge that there was probable cause to proceed. At trial, when impressionable jurors were present, I was sure Detective Lowery’s direct testimony would last much longer.
When I stood to begin my cross-examination, my legs felt as wobbly as two strands of spaghetti. I remained close to the counsel table. If I fainted, I wanted something to break my fall.
“Detective Lowery, you testified that you believe Max Montgomery knew his killer because there was no indication that he tried to fight off the attacker.”
“Yes, that was my testimony.”
“Isn’t it possible that the killer snuck in on him and surprised him in the tub before he could stand up and defend himself?”
He shrugged. “It’s possible, but I don’t think that was the case.”
“And why is that?”
“The bathroom was a big, wide open room. No one could’ve snuck in on anybody. The minute someone appeared in the doorway, the person would’ve been spotted.”
“Isn’t it possible Mr. Montgomery might’ve been asleep in the tub?”
He chuckled. “Anything’s possible, counselor.”
I didn’t like Detective Lowery’s arrogance. “You were one of the investigators on the scene when Mrs. Montgomery’s home was searched, weren’t you?”
“Yes.
“And you didn’t find a single pair of shoes that matched the footprints found in the hotel room?”
“That’s correct,” he said. “But we found dozens of size sixes in Mrs. Montgomery’s closet.”
He was going off on his own tangent again, but I decided not to complain to the judge. “And you found some other sizes as well, didn’t you?”
“Yes.”
“Exactly how many different sizes did you find?”
I knew he didn’t want to answer my question. “I don’t remember.”
“Let me see if I can help you.” I walked over to the defense table and opened a folder. “I direct the witness to Exhibit 10.”
“Do you recognize this document?” I said, handing it to him.
“Yes.”
“Can you tell the court what it is?”
He grudgingly browsed it. “Yes, it’s a list of the items we took from the defendant’s home.”
“Is that your signature on the last page?”
“Looks like it.”
“Does it look like it, or is it your signature?” I challenged.
“Yes, it’s mine.”
“Based on your own report, how many pairs of shoes did you take from Mrs. Montgomery’s home?”
He looked down at the document. “Fifty-two.”
“And none of those fifty-two pairs matched the shoe prints found at the scene, did they?”
He smiled. “No, but killers usually dispose of their shoes and clothes.”
I was livid. “Objection, Your Honor! Detective Lowery’s statement was totally inappropriate!”
“All right, Mr. Lowery,” the judge admonished. “Enough of the wisecracking. You know better. One more time and I’m holding you in contempt.”
I heard David chuckle and that rattled me even more. He was sitting back, looking completely relaxed, his right ankle resting on the opposite knee.
I swallowed hard and continued.
“So, Detective Lowery, does Exhibit 10 refresh your memory as to the number of different shoe sizes you confiscated from Mrs. Montgomery’s home?”
He frowned. “Yeah, a few sevens, several six and a halfs, but mostly sixes.”
“And you found no hair, fibers, or any other evidence tying Mrs. Montgomery to the crime scene, isn’t that correct?”
“Yes,” he said. He was half slouched in the chair, his body leaning carelessly to the side.
“And you also didn’t find any blood matching Mrs. Montgomery’s blood type at the scene either, did you?”
“Nope.” He answered more quickly this time.
“Considering the number of times Mr. Montgomery was stabbed, don’t you think it’s odd that the killer didn’t cut himself—or herself?”
“No, not at all. Not as long as the killer kept her—excuse me—his or her hands away from the blade of the knife.”
“De
tective Lowery, you’ve testified that the killer wasn’t very strong.”
“That’s correct.”
“Do you know any men who aren’t very strong?”
He smiled. He knew exactly where I was trying to lead him. “Sure.”
“And what about men who are between five feet and five-feet-five, ever met any of those?”
“A few.” The confident way he pursed his lips told me he wasn’t the least bit worried about my line of questioning.
“You can’t point to any evidence that conclusively rules out the possibility that the killer was a man, can you?”
“Only DNA evidence is conclusive,” he said. “Based on my investigation, the odds are greater that the killer was a woman.”
I really had no place else to go. “But you wouldn’t bet your career on that estimate would you?”
He paused. “I don’t bet.”
I asked a few more questions that didn’t really gain me any ground. The judge called a recess and Tina, David, and I convened in a small meeting room across from the courtroom reserved for the defense.
Before we could even get seated, David went on the attack.
“You should’ve gone after Lowery a little harder,” he said, chiding me.
David was really out of line criticizing my cross in front of the client and he knew it. “It wouldn’t have done any good,” I said. “He’s an experienced detective and he testifies all the time. He’s not the kind of witness you can shake.”
“I’m not talking about shaking him,” he said. “There’s a lot of information in that crime scene report. I would’ve gone through each piece of evidence: the estimated time of death, the type of knife, where the body was found. We needed to pin him down on those elements so that if he changes his story at trial, then we have something we can use to impeach him.”
All that sounded reasonable, it’s just too bad David didn’t raise any of it when we were prepping. I couldn’t let Tina see how much David’s Monday morning quarterbacking was getting to me. Right now, she was waiting for my explanation.
“Let’s just concentrate on our next witness,” I said, ignoring his comments. “I’m purposefully saving our more aggressive tactics for Oscar Lopez. When he takes the stand tomorrow, he’s the one I plan to go after.”
Every Reasonable Doubt Page 17
