Murder One

by William Bernhardt

  Barkley appeared slightly off guard. “I just answered the questions that were put to me.”

  “Yes. And why did Mr. LaBelle want everyone to hear that? Is it relevant to determining how and when the victim died?”

  “No.”

  “Of course it isn’t. But it makes for a dramatic story, doesn’t it? Certain to fill the jury with contempt and loathing.”

  “Objection,” LaBelle said. Christina wondered what had taken him so long. “Is that a question?”

  “A good point,” Judge Cable replied. “You’re up there to ask questions, Ms. McCall. Not to give speeches. That part comes later.”

  Oh, thank you so very much. “Doctor, your answer to the questions regarding pain and suffering were entirely speculative, weren’t they?”

  Barkley appeared indignant. “They were based upon my medical examination.”

  “Sir, isn’t it possible that the man went into shock, then unconsciousness, with the first blow? Or with that head blow, which might have come before the stabbing?”

  “In my opinion—”

  “I didn’t ask you for a self-serving opinion, Doctor. You’re not my expert.” Out of the corner of her eye, Christina could see LaBelle start to rise, but he ultimately decided to let it go. Better to let the good doctor take care of himself. “I asked if it was possible he went into shock or unconsciousness with the first blow.”

  “I suppose it’s conceivable—”

  “Or to put it in Mr. LaBelle’s terms—would that be consistent with the evidence?”

  “Well, I suppose it’s an outside possibility, but—”

  “So your answer is yes. Why didn’t you inform the jury of this possibility?”

  “Excuse me?”

  “You’ve admitted that there were two possible results. At least. And yet you chose to tell the jury about one possibility, and to ignore the other. Why did you mislead the jury? Is that because dying in pain is so much more dramatic than instant unconsciousness?”

  Barkley sat up straight. “Mr. LaBelle asked me what I thought happened. I told him.”

  “And I never once heard you admit the possibility of other results. You just told the jury what you wanted them to know.”

  “That’s absurd. I—”

  “What I wonder is, how many other alternate possibilities did you fail to tell the jury about?”

  “Objection,” LaBelle said. It seemed restraint was at an end.

  “Sustained,” the judge said sharply. “Counsel, move on to something else.”

  Which she was happy to do, since she was finished anyway. The jury heard what she wanted them to hear. Hot dog, Christina thought, barely suppressing a smile. This cross-ex stuff wasn’t as bad as she thought. In fact, she kinda got a charge out of it.

  “On the subject of other possibilities you didn’t mention to the jury, Doctor, let’s talk about that knife. You claim that Exhibit Fourteen is the murder weapon, right?”

  “That was my testimony, yes.”

  “But didn’t you also say that the shape of the knife was a common configuration?”

  “Yes …”

  “Which, translated to English, means a lot of people probably have this very same knife.”

  “Not covered with blood.”

  “C’mon, Doctor, there are a lot of ways a knife could get covered with blood, aren’t there? I mean, it is a knife, after all.”

  “I suppose. But this blood was of McNaughton’s type—”

  “Which is O, correct?”

  “I believe that’s—”

  “Which is the most common blood type in the world, right?”

  He tilted his head to one side. “That is correct.”

  “So contrary to what you told the jury—you don’t know if this is the knife that killed Joe McNaughton. All you can say for sure is that it’s the kind of knife that killed Joe McNaughton.”

  “I hardly think it likely—”

  “That it could be another knife?” Christina didn’t give him a moment to come up for air. “Is that based on your medical examination? Or what the police told you about where the knife was found?”

  “Well … I suppose …”

  “Doctor, are you testifying based on your medical expertise, or are you just regurgitating what the police told you?”

  “Objection,” LaBelle said. “This is inappropriate.”

  To Christina’s amazement, the judge did not immediately agree. “I don’t know, counsel. I think she is making a point.”

  “She’s impugning the character and professionalism of the state medical examiner!”

  “Well, that’s more or less her job here, isn’t it? Overruled.”

  Christina wanted to jump into the air and give the judge a high five, but she managed to restrain herself. “Once again, Doctor, you failed to apprise the jury of all the possibilities. The murder could’ve been committed with a different knife, right?” This was a point of keen importance, because if it was another knife, there was no link to Keri.

  “But this knife had finger—”

  “Excuse me, Doctor, are you testifying outside the scope of your examination again?” Christina was well aware there was bad news to come about the knife with the next witness, but he was Ben’s problem, not hers.

  Barkley drew in his breath. “It is remotely possible that another knife was involved.”

  “Thank you very much, Doctor.” Yes! Could she cook, or could she? “Speaking of the knife, Doctor, we’re not even certain that the knife—any knife—was the cause of death, are we?”

  “The body had between twenty and thirty wounds—”

  “Yes, but that doesn’t necessarily mean it was the cause of death, does it?”

  “No one could sustain—”

  “Did the body also suffer a severe blow to the head?”

  “Yes …”

  Christina checked her notes. “A contusion sufficient to dislodge the skull, correct?”

  “Yes …”

  “That’s a rather serious blow. Couldn’t that be fatal?”

  “Given the evidence of bleeding—”

  “You’re not answering my question, Doctor. Could that have been fatal?”

  “I suppose it’s possible. But I don’t think—”

  “And if that was the cause of death, then the knife had nothing to do with it.”

  “The knife wounds were there!”

  “Yes, but if they didn’t kill the man—if the blow to the head already did it—then the person who wielded the knife may have mutilated the body, but was not necessarily the killer.” There you go, Ben, she thought. Something for the next witness. Don’t say I never gave you anything.

  “Based on the blood flow, I believe—”

  “For that matter, the victim also suffered at least one severely broken limb, correct?”

  “That’s true.” Barkley was looking less boyish and exuberant by the minute.

  “Couldn’t that cause internal bleeding? Couldn’t that be fatal, too?”

  “It could. But the external bleeding would’ve killed him first.”

  “You’re assuming that all the injuries happened at about the same time. But we don’t know that, do we?”

  He squirmed a bit. “Well … it seems logical.”

  “Doctor, are you up there to testify as a logician?”

  “Obviously not.”

  “Then please don’t. The truth is, any of these things I’ve mentioned could have been the cause of death, right?”

  “It’s … possible. But what difference—”

  “Doctor, do you have any way of knowing whether the person who stabbed Sergeant McNaughton was also the same person who broke his arm or bashed him on the head?”

  “Well, I assume—”

  “But you don’t know, do you?”

  “No.”

  “So there could’ve been a second person. Someone who didn’t touch the knife.” Someone other than Keri, in other words.

  Barkley was starting to
cave. Evidently, he’d had enough. “I suppose it’s possible.”

  “Thank you. As long as there’s room for doubt, it’s important for the jury to know it.” The operative word, of course, being doubt. As in reasonable. “Doctor, you said the skin sample found under the victim’s nails matched a sample taken from Keri Dalcanton. Some people might think that means they were exactly alike. But that isn’t so, is it?”

  “It means the similarities between the two were sufficient to establish to a medical certainty—”

  “Doctor, I’ve seen the analysis,” Christina said, holding a long strip of scrolled paper above her head. “They are not exactly alike, are they?”

  “Not exactly, no.”

  “So once again, what you’re actually saying, is not that you’re certain the skin came from Keri, but that it might have come from Keri.”

  “The odds against it being anyone else—”

  “This isn’t Vegas, Doctor. I’m not interested in the odds. I’m interested in telling the jury the truth. And the truth is, the skin might’ve come from Keri—but it could’ve come from someone else. It isn’t like fingerprints. You can’t say where it came from with absolute certainty.”

  “DNA analysis never does,” Barkley protested. “But it can establish that the odds against the sample coming from anyone else are so—”

  “Yes or no, Doctor—is it possible the sample came from someone else?”

  “It’s possible, but—”

  “Thank you for answering my question. It’s important that we separate the truth from the speculation.”

  “Your honor,” LaBelle said. “She’s speechifying again.”

  “I have warned you,” Judge Cable said, looking at Christina sternly. “Don’t let it happen again, young lady.”

  I’ll try not to, old man. And watch the sexist remarks. “Speaking of speculation—that was a handy bit where you told the jury the skin must’ve gotten under his fingernails when McNaughton fought off his attacker. The truth is, you have no idea how that skin got there, do you?”

  Barkley hesitated before answering. After being burned four times, he was undoubtedly reluctant to defend another assumption. “Given the circumstances, it seems reasonable—”

  “You don’t know how it happened. You’re guessing again. Your testimony has been nothing but guesses strung together to support the prosecution’s unsubstantiated case.”

  LaBelle started to object, but Barkley jumped in before he could. “Well, how else could it have gotten there!” he shouted. “It was her skin!”

  “Were you in the courtroom yesterday, Doctor?”

  “You know I was.”

  “Then you undoubtedly heard the lurid and unnecessary testimony about the victim’s unusual sexual tastes.”

  “I thought it was the defendant’s—”

  “And you heard that he allegedly participated in … rough sex.”

  Barkley’s face began to color. Apparently rough sex was not a topic LaBelle had prepared him to discuss. “So?”

  “Well I’m not an expert, Doctor, but if two people are having rough sex—don’t you think it’s possible he might get her skin under his nails?”

  “Well … how would—”

  “Maybe a long scrape down the back during a moment of passion? A firm grip on the buttocks?”

  Bentley was beet red. “How would I know?”

  Christina smiled. “That’s just the point, Doctor. You don’t. That skin sample might’ve come from consensual sex—it might have nothing to do with the murder. You don’t know how the skin got there, just as you don’t know whether this knife is the murder weapon or whether the victim suffered much pain or even what precisely was the cause of death. You’re just guessing. And the jury is entitled to know that.”

  LaBelle redirected, naturally, but after that whirlwind cross, there was only so much he could do. He’d made his points and Christina had made hers. The jury was ready for a new witness. And since he had a doozy waiting in the wings, it probably seemed smarter to move on.

  During the recess between witnesses, Christina couldn’t resist asking. “So, Ben—I know this is kinda like the insecure guy who wants to know, Was it good for you, too?, but I have to ask anyway—what did you think of my first cross?”

  “I only wish I’d been that good when I started,” Ben replied.

  “You mean it? You thought I did okay? I mean, I thought I did okay, but maybe I’m too close to be objective.”

  Ben smiled and gave her a punch on the shoulder. “It was good for me, too.”

  36

  AFTER THE LUNCH BREAK, LaBelle called a series of so-called experts. Ben knew that most of them were required, in order to establish one legal criterion or another, but none of them was very sexy, which was no doubt why LaBelle scheduled them during nap time.

  LaBelle called the hair-and-fiber expert who testified to the precautions taken to secure the crime scene after the police arrived. The evidence custodian testified regarding the chain of custody for all prosecution evidence. He was about as interesting as the ingredients label on a carton of milk, but the testimony fulfilled the legal need to establish that the evidence could not have been corrupted. The jury also heard from another DNA expert, an expert on knives, and the civilian who first found McNaughton’s body in Bartlett Square and called in the police.

  Just after the midafternoon break, LaBelle called Chester Isaac Bare, Tulsa P.D.’s top man on fingerprints. Ben had heard Bare testify so many times he could have done it for him, but he forced himself to remain attentive, just in case LaBelle tried to slip something past him.

  Before they got to any of the evidence relating to the case at bar, LaBelle and Bare gave the jury an almost hour-long lecture on everything you ever wanted to know about fingerprints, but not really. Bare waxed on about latents and patents, curls, smudges, line patterns, the thirty-two key indicia of print matching, the roles computers play in the identification process, the FBI database, and on and on and on. Ostensibly, this testimony was relevant because it would help the jury understand his later testimony—as if there was anyone on earth who didn’t know about fingerprints already. The real purpose, Ben knew, was to establish Bare as the unquestioned expert in his field—so the jury would believe what he said and resist any efforts by the defense to challenge his findings.

  Bare actually seemed to bounce up and down in his seat as he extolled the “virtually infallible computerized print extrapolation programs,” which could accurately create an entire print from a smudgy partial. In some respects, Bare, who was balding and wore thick black glasses, was like a Hollywood stereotype of the egghead professor, waxing on enthusiastically about a subject that could not possibly be of interest to anyone other than himself.

  Until they got to the McNaughton case. In a fraction of the time it had taken them to establish the man’s credentials, LaBelle and Bare told the jury why this information was important—because both the chains that bound the body of Joe McNaughton and the murder weapon itself bore the fingerprints of Keri Dalcanton.

  “Is there any question about your findings?” LaBelle asked, summing up.

  “Absolutely not. There were three perfectly clear un-smudged prints on the chains, and two on the murder weapon.”

  “Are you saying it’s likely Keri Dalcanton touched those chains?” It seemed LaBelle was learning from the previous cross.

  “No. I’m saying that it is an absolute certainty. This isn’t like DNA analysis, where ultimately you can only say that the chances of the sample belonging to anyone but the defendant are astronomical. No two people ever born anywhere on planet Earth have ever had the same fingerprints. Never. Those prints were made by Keri Dalcanton. Period.”

  LaBelle continued debunking any theories Ben might advance. “Is there some way those fingerprints could have been … planted?”

  “No. Despite what you might have read in Dick Tracy or Batman comics or something, there’s no way to fake a fingerprint. Ms. Dalcanton’s
fingers made contact with the chains and the knife. Unquestionably.”

  “Thank you,” LaBelle said. “I’ll conclude and let Mr. Kincaid examine the witness. If he thinks there’s any point.”

  Hard to turn down an invite like that, Ben thought, as he pushed himself to his feet. He sensed that the jury was not going to be responsive to any Simpsonesque theories of how the police could’ve planted the fingerprints. The expressions on their faces suggested that they believed Bare, and indeed, they had no reason not to trust him. Ben would have to do the best he could with the facts as they were.

  “Mr. Bare, were you in the courtroom during the testimony of Corporal Wesley?”

  “Yes, I was.”

  “Then you heard the evidence regarding alleged sexual activities between the defendant and the deceased.” He hated to keep reminding the jury about the most lascivious aspect of the case, but it was better than letting this damning fingerprint testimony go unrebutted.

  “Oh yes. Hard to miss that.”

  “Then you understand that there has been a suggestion that chains such as those found on the dead body were used on occasion in these sexual activities.” Somehow, it sounded worse when he used these euphemisms than it would if he just came out with it.

  “I kind of got that idea.”

  “So it’s entirely possible that the chains used did in fact belong to Keri Dalcanton, or were kept in her apartment. In fact, we saw chains in a photograph taken in her apartment.”

  “Okay.”

  “For that matter, lots of people keep chains in their homes for other reasons.”

  “They do?”

  “Ever heard of snow chains?”

  “In Tulsa?” He shrugged. “I guess it’s possible.”

  LaBelle rose. “Your honor … I fail to see the relevance …”

  Judge Cable fingered his glasses. “I’m a bit mystified myself, Mr. Kincaid. Could you please get to the point?”

  “Certainly. Mr. Bare … if the chains belonged to Keri Dalcanton, is it any big surprise that her fingerprints were on them?”

  Bare gave a sidewise glance toward some of his police buddies in the gallery. “It was no surprise to me, that’s for sure.” A mild round of laughter followed.