“Cross-exam, Mr. Daley?” the judge asks.
“Yes, Your Honor.” Robert Kidd always used to say you need the mindset of a heavyweight fighter when you cross-examine a strong witness. You get in close and try not to let your opponent breathe. “May we approach?”
“Yes, Mr. Daley.”
I move in front of Dito, who leans forward. My father taught him to meet an uppity defense lawyer head on. “Officer Dito,” I begin, “you testifed that Bobby Fairchild was upset when he answered the door.”
“Yes.”
“You realize he had just found his father’s body.”
“I had no way of verifying that information at the time.”
“You now understand Bobby had just turned eighteen.”
“That’s old enough to commit murder.”
“It’s also young enough to be very upset when you find a body— especially your own father’s. How many times have you been called to the scene of a homicide?”
“About a dozen.”
“How many times were you met by the children of the deceased?”
“Including this case, three.”
“How did they react?”
“They were very upset.”
Big surprise. “Wouldn’t it therefore be fair to say Bobby’s behavior wasn’t unusual?”
McNulty is up. “Objection, Your Honor. Calls for speculation.”
“Sustained.”
“I’ll rephrase. Given your experience,” I say, “was Bobby’s reaction unusual?”
“Probably not.”
“It certainly shouldn’t have been surprising he was visibly upset when you arrived a few minutes after he had discovered his father’s body, right?”
“Objection,” McNulty says. “Asked and answered.”
“Sustained.”
“Officer Dito,” I continue, “did you see Bobby kill his father?”
“No.”
“Have you or your colleagues found any witnesses who saw him kill his father?”
McNulty is up again. “Your Honor,” he says, “we’ll stipulate to the fact that the police have found no witnesses who saw the defendant kill his father.”
“Thank you, Mr. McNulty,” the judge says.
Good enough. I was simply trying to establish that this is a circumstantial case. “Officer Dito,” I say, “you testifed a moment ago that Bobby was holding a hammer when he answered the door.”
“Correct.” Dito flashes a hint of irritation. Cops hate it when defense lawyers try to use their own words against them.
“You also testifed that he told you he had used the hammer to kill his father.”
He’s trying to figure out where I’m heading. “Correct.”
“In other words, you’re saying he confessed.”
“Not in so many words.”
“Either he did or he didn’t. Yes or no?”
Dito thinks about it for an instant. “Yes.”
“You filed a detailed police report regarding the events of Saturday morning, didn’t you?”
“Of course.”
“There was nothing in it about a confession.”
“Yes, there was.”
“You didn’t use the word 'confess,’ did you?”
“The defendant didn’t use that word.”
“That’s because he didn’t confess.”
“Yes, he did.”
“Then why didn’t you put it in your report?”
“I did.”
The hell you did. I flip open the report. “I’m quoting page two: ’Defendant acknowledged that a hammer was used to kill his father.’"
“Correct.”
“That isn’t a confession.”
“Objection,” McNulty says. “We’re going in circles.”
That’s the whole idea. “Your Honor,” I say, “Mr. McNulty is trying to stretch Officer Dito’s testimony to suggest Bobby confessed. In reality, he didn’t.”
“Your Honor,” McNulty says, “Mr. Daley is intentionally mischaracterizing Officer Dito’s testimony.”
“That’s precisely what Mr. McNulty is doing.” I can play semantic games, too.
“Your Honor—"
I cut McNulty off. “Your Honor,” I say, “Bobby told Officer Dito that the hammer was used to kill his father. Notwithstanding Mr. McNulty’s clever attempts at parsing, Bobby did not say he used the hammer to kill his father. There’s a big difference. That’s why Officer Dito’s report made no mention of a confession.”
McNulty’s voice rises. “Your Honor,” he says, “now Mr. Daley is testifying.”
“No, I’m not.” Yes, I am.
“Mr. Daley is also calling Officer Dito a liar.”
“I’m not doing that, either.” Well, sort of.
“Mr. Daley is trying to put words in my mouth.”
I’m definitely doing that. “Now Mr. McNulty is testifying. I’m simply trying to provide the court with a truthful account of what Officer Dito saw and heard based solely upon the contents of his own police report. If Bobby had confessed to killing his father, a highly esteemed veteran such as Officer Dito would have mentioned it.”
“He did,” McNulty says.
“No, he didn’t.”
“Your Honor—" McNulty says.
Judge McDaniel stops him with an upraised hand. “You’ve made your position abundantly clear, Mr. McNulty. Anything else for this witness, Mr. Daley?”
The irritation in her tone suggests she may be leaning our way, but it’s impossible to know for sure. I decide to stop while I’m ahead. “No, Your Honor.”
“Please call your next witness, Mr. McNulty.”
“The People call Dr. Roderick Beckert.”
42/ DID YOU PERFORM THE AUTOPSY ON JUDGE FAIRCHILD?
Wednesday, June 22, 10:18 a.m.
“How long have you been the Chief Medical Examiner of the City and County of San Francisco?” McNulty asks.
Rod Beckert has ditched his starched white lab coat for a starched gray Armani suit. “Thirty-eight years,” he says.
Judge McDaniel knows he’s the real deal. “Your Honor,” I say, “we’ll stipulate to Dr. Beckert’s expertise.”
“Dr. Beckert,” McNulty continues, “did you perform the autopsy on Judge Fairchild at approximately seven thirty on the morning of Saturday, June eighteenth?”
“I did.”
McNulty clutches the autopsy report to his bosom as if it were the Holy Grail. "Your Honor,” he says, “we would like to introduce Dr. Beckert’s autopsy report into evidence.”
“No objection,” I say.
McNulty walks across the well of the courtroom and hands a copy of the thin volume to Beckert. “Doctor,” he says, “would you please confirm that you prepared this report?”
“I did.”
“Did you conduct the autopsy in accordance with the highest professional standards?”
There’s no reason to give Beckert fifteen minutes to read his résumé into the record. “Your Honor,” I say, “Dr. Beckert is an authority in his field. We will also stipulate that he conducted the autopsy in accordance with recognized standards.”
I feel a tap on my shoulder. I turn around and see the fire in Julie’s eyes. "Aren’t you going to challenge his credibility?” she whispers.
I don’t have time for this. “He’s as good at his job as you are at yours.”
McNulty is still hovering in front of the witness box. “Doctor,” he says, “were you able to determine the cause of Judge Fairchild’s death?”
“A blow from a blunt object caused a massive head wound and a fractured skull.”
“And time of death?”
“Between eleven forty-five p.m. and twelve thirty a.m.”
“It’s possible to make that determination with such precision?”
“The body was still warm when I arrived at the scene. As a result, I was able to take very precise temperature readings of various organs. I performed other tests relating to the state of rigor mortis, lividity
, and the degree of digestion of the food in his stomach.”
That’s good enough for McNulty. “No further questions.”
“Cross-exam, Mr. Daley?” the judge asks.
“Yes, Your Honor.” I button my jacket and walk over to the evidence cart. I pick up the hammer and hold it up in front of Beckert. “Doctor,” I say, “is it your contention that this hammer was used to infict the fatal blow?”
“Yes.”
“Did you find any traces of metal in Judge Fairchild’s skull?”
“That would have been almost impossible, Mr. Daley.”
“Yes or no—did you find any such traces?”
“No.”
“Were you able to match the contour of the hammer to the injury in the judge’s skull?”
“Not precisely.”
“So you can’t say for sure whether the killer hit the judge with this hammer, can you?”
“It was covered with his blood, Mr. Daley. The implication is clear.”
“Implications aren’t evidence, Dr. Beckert.”
“Objection,” McNulty says. “There wasn’t a question there.”
No, there wasn’t. “Withdrawn. Dr. Beckert,” I continue, “is it possible Judge Fairchild’s blood could have found its way onto the hammer in some way other than as a result of the defendant having hit him?”
“Objection,” McNulty says. “Speculation.”
“I’m asking for an informed opinion based upon Dr. Beckert’s expertise, to which I’ve already stipulated.” I’m also asking him to speculate.
“Overruled.”
“It’s unlikely,” Beckert says.
“But it’s possible?”
“It’s unlikely,” Beckert repeats.
“I’m going to take that as an affirmative answer. Is it also possible the blood could have found its way to the hammer when the defendant tried to help his father? Or somebody else hit him?”
McNulty’s decision not to object to my blatantly speculative questions shows his confidence in Beckert. It also reflects the practical reality that Judge McDaniel is going to give Beckert the benefit of the doubt.
“Mr. Daley,” Beckert says, “it is also possible that I came to court this morning on the Starship Enterprise. Even you would acknowledge it’s highly unlikely.”
Judge McDaniel taps her gavel to silence the gallery.
“What time did you arrive at the scene?” I ask Beckert.
“Two thirty-seven a.m.”
“According to your own calculations, that would have been more than two hours after the judge was killed?”
“Yes.”
“Was the body still in the laundry room when you arrived?”
“Yes.”
“Had the paramedics administered CPR and other first aid?”
“Of course.”
“Had they moved the body?”
“A little. It was a tight space. They needed room to work.”
“Had they opened the garage door?”
“Yes.”
“What about the door leading from the garage into the house?”
“It was still propped open by the body.”
“Isn’t it therefore possible that the jostling of the body and the exposure to the cold night air may have impacted the precision of your measurements in determining time of death?”
“Perhaps slightly, but only to an inconsequential degree.”
“How inconsequential?” I ask.
“I can’t say for sure.”
Every second matters. “Two minutes? Five minutes? Ten minutes? An hour?”
Beckert invokes a professorial tone. “It didn’t have any substantial impact on my calculations in this case.”
# # #
McNulty is behind the lectern a few minutes later. “Sergeant Jacobsen,” he begins, “how long have you been an evidence specialist with the SFPD?”
“Twenty-seven years.”
Kathleen Jacobsen has been plying her trade in the bowels of the Hall longer than anybody except Beckert, Roosevelt, and the blind man who’s run the sandwich cart in the lobby since the Kennedy administration. She spends her free time providing expert testimony in high-profile cases in other parts of the country. Though she steadfastly eschews the limelight, she became an unlikely media darling when she added her understated gravitas to CNN’s coverage of the Scott Peterson trial. She’s one of the few members of the media who emerged from that frenzy with her reputation and dignity intact.
“Sergeant,” McNulty continues, “you supervised the collection of the evidence at Judge Fairchild’s house, didn’t you?”
“Yes.”
To the untrained eye, the paunchy prosecutor and the stoic lesbian criminalist look like a couple of middle-aged bureaucrats going through their paces. To those of us who have had the privilege of admiring their work for the past two decades, they’re the legal profession’s counterpart to Astaire and Rogers.
McNulty walks over to the evidence cart and picks up the hammer Jacobsen meticulously wrapped and tagged. “Sergeant,” he says, “can you identify this item?”
“It’s the murder weapon,” she says.
Well played. “Objection,” I say. “Move to strike the witness’s characterization of this exhibit as the ’murder’ weapon. It assumes facts not yet admitted into evidence.”
“Sustained.”
McNulty and Jacobsen feign contrition as the judge half-heartedly admonishes them for trying to introduce evidence without the proper foundation. It’s a lovely gesture, but everybody knows Fred and Ginger had it planned in advance.
“Were you able to positively identify the victim’s blood on this hammer through DNA?”
“Yes.”
I could make the usual—and futile—objection about the unreliability of DNA tests. Thanks to CSI, everybody believes they’re infallible. In fairness, they’re about as close as you can get to a sure bet. Studies have shown that jurors now expect prosecutors to pull a DNA rabbit out of a hat sometime during trial, just like on TV. In academic circles, it’s called the CSI Effect.
“How were you able to conclude the tests so quickly?” McNulty asks.
“There is a common misperception that DNA tests take days or weeks. In reality, they can be concluded within a few days.”
That much is true. It just takes money and clout.
“Were you able to positively identify any fingerprints on the hammer?” McNulty asks.
“Just the defendant’s.”
“What about smudged prints or unidentifable prints?”
“None.”
“No further questions.”
I head straight for the witness box and park myself right in front of Jacobsen. "Sergeant,” I say, “did Bobby Fairchild try to hide the bloody hammer?”
“No.”
“If he was guilty, why didn’t he get rid of it?”
“Objection,” McNulty says. “Speculation.”
“Sustained.”
“Sergeant,” I say, “Dr. Beckert placed the time of death between eleven forty-five p.m. and twelve thirty a.m., didn’t he?”
“Yes.”
Good. “Do you have any forensic evidence placing Bobby inside his father’s house between eleven forty-five on Friday night and twelve thirty on Saturday morning?”
“His fingerprints were on the hammer.”
Not good enough. “He admitted he picked up the hammer when he returned home at two a.m.”
“We found his fingerprints all over the house.”
“Everybody knows fingerprints have an indefinite shelf life and could have been weeks or months old. I’m going to ask you one more time: Did you find any forensic evidence placing Bobby Fairchild inside his father’s house between the hours of eleven forty-five p.m. last Friday night and twelve thirty a.m. last Saturday morning?”
“No, Mr. Daley.”
Okay. “Did you find any fingerprints in the house or the garage other than Bobby’s?”
“Many. We found Judge Fairch
ild’s fingerprints along with those of his son, Sean. We found the fingerprints of the defendant’s girlfriend. We also found prints from Judge Fairchild’s wife and several of the defendant’s friends.” She reads off a list of friends, relatives, cleaning people, and other hangers-on who had visited the Fairchild residence from time to time.
“Did you find any unidentifable prints?”
“We found two smudged prints in the laundry room and a partial print on the inside knob of the front door. We ran the partial through the available databases. There were no matches with anybody with a criminal record. We’ve also ruled out relatives, friends, neighbors, and the defendant’s girlfriend.”
“Which means the smudged print could have belonged to anybody—including the person who killed Judge Fairchild.”
“We have no evidence to that effect.”
It opens up some possibilities, but it’s all I can do for now. “No further questions.”
43/ HE TOLD HIM HE WAS GOING TO MAKE HIM PAY
Wednesday, June 22, 11:36 a.m.
“Mrs. Osborne,” McNulty begins gently, “you taught at Grattan Elementary School for many years, didn’t you?”
I could object to the leading question, but I’ll look petty.
Evelyn Osborne sits up a little taller and answers in her best schoolteacher voice. “Forty years,” she says.
McNulty has quickly established her as a credible and sympathetic witness. "How well did you know Judge Fairchild?”
“Not very well. He moved in next door just a few months ago. He was a good neighbor.”
“And his children?”
“Bobby and Sean are nice boys. They’ve helped me around the house.”
“Did they ever argue with their father?”
“Occasionally. You know how it is with teenagers.”
“Yes, I do.”
No, you don’t. McNulty doesn’t have any kids.
“Mrs. Osborne,” he continues, “did you overhear an argument between Bobby Fairchild and his father on the morning of Friday, June seventeenth?”
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