Counterplay bkamc-18

by Robert K. Tanenbaum

  “I know what it takes to do my job,” Guma replied, balling up the sheet from his legal pad and tossing it toward the waste can near the witness stand and missing. “Damn. I’m just trying to see a little justice done here.”

  “I know you are,” Karp apologized, walking over to pick up the paper and toss it in the can. “I was just trying to take the edge off before you cross the aisle and beat that smarmy bastard to a pulp…. How you feeling these days?”

  “What is this?” Guma asked but only half as irritably. “I look like I’m going to keel over? Is the Grim Reaper standing behind me?” His eyes grew big with mock fear as he quickly looked over both of his shoulders.

  Karp laughed, but they both knew that the only reason he was sitting next to Guma at the prosecution table was as an insurance policy. They hadn’t announced that Karp would be second chair and let the media find out on their own at a run-of-the-mill motions hearing.

  As expected, Rachman had blown a fuse. What is this? she’d demanded to the press. A Joseph McCarthy witch hunt? Oppose me and we’ll pull out all the stops to see that your name is besmirched, your reputation destroyed, and your freedom imperiled.

  Meanwhile, Stavros’s lawyers went to court demanding that the judge impose a gag order to keep Karp and his team from using this bit of grandstanding for political gain. Of course, they’d immediately ignored the gag order themselves. In fact, Stavros soon had a dream team of celebrity lawyers, all of them well-known TV talking heads, each of whom held his own press conference where they announced, among other things, that they’d sliced their fees in order to work on a case that was so obviously a miscarriage of justice.

  “I’m okay,” Guma reassured Karp as Judge Lussman returned to the courtroom and asked him to call his witness in opposition to defense’s motion.

  Addressing the judge, Karp said, “Your Honor, for purposes of a complete record, the people suggest that the court consider the testimony of our experts as part of a Daubert hearing. As the court is well aware, a Daubert hearing tests the scientific reliability and acceptability of the evidence in question. Also, Your Honor, we will ask for a similar Daubert hearing with respect to the repressed memory testimony that we intend to present to the jury.”

  The way they’d laid out the workload of the trial, Guma was to give the opening statement, while Karp would sum up the people’s case for the jury. The reason was that the rigors of the trial might be too draining on Guma, and he might not have the energy for a lengthy closing argument on the final day. As far as the rest of it, Guma was going to handle the testimony of Zachary Stavros, and they would both take turns with the expert witnesses.

  Guma then called Swanburg to the stand. After establishing Swanburg’s credentials qualifying him as an expert, Guma proceeded. “Dr. Swanburg, were you able to identify the remains through standard scientific means, such as those named by defense counsel?”

  Swanburg shook his head. “No, the remains had skeletonized; there was no flesh on the hands for fingerprints. Nor was it possible to identify the deceased through dental records.”

  “And why is that?” Guma asked.

  “Well, it seems that some ten years ago, the office of Teresa Stavros’s dentist was burglarized and many files, including hers, disappeared,” Swanburg replied.

  “Objection,” Anderson said. “ If Your Honor allows any of this testimony about the remains, I insist that the witness be prohibited from testifying about why Mrs. Stavros’s files are missing. They’re obviously trying to imply that those records were removed as part of a coverup. There’s no evidence that this burglary had anything to do with her files in particular, or anybody else for that matter.”

  “It’s a simple fact, Your Honor,” Guma said.

  “Overruled,” the judge said. “Mr. Anderson, you may make all the appropriate motions in limine prior to trial. As far as we are concerned at this hearing, the witness simply stated that a burglary occurred and files were missing, among which were Mrs. Stavros’s. For the record, Mr. Guma, you can satisfy this point concerning the burglary by producing a police report.”

  Guma nodded and scribbled a note on his yellow legal pad.

  “Very well, please proceed,” the judge directed.

  “Yes, Your Honor,” Guma replied and turned back to Swanburg. “What about DNA comparison?”

  Swanburg shook his head. “We weren’t able to come up with anything there either,” he said. “Again we were hampered by the deterioration of the remains due to weather, insect activity, and the normal processes. We did attempt to compare hair found in the site with that of Mrs. Stavros’s only known blood relative, her son, Zachary, but all we can state is that they are ‘scientifically similar,’ but the same can be said with too large a percentage of the population to say ‘to a scientific certainty,’ which is the forensic standard. We also tried to extract marrow left in the bones, which can be used for blood typing as well as DNA testing, but again we were stymied by decomposition. We even attempted to extract pulp from one of her molars for the same purpose, but with the same result.”

  Guma turned to his next question. “Dr. Swanburg, can you tell the court how long, within a time frame, the remains had been in the grave.”

  “Objection,” Anderson called out. “Here is another point, Your Honor, at which the prosecution witness will be testifying about guesswork that has not been accepted as standard in the scientific community. In fact, any two scientists could debate these suppositions indefinitely without reaching an answer that satisfies the threshold of reasonable degree of scientific certainty.”

  “Well, that’s what we’re doing here, Mr. Anderson,” the judge said. “I’m listening to this gentleman, and any other witnesses, to determine whether it will be allowed into evidence at trial. Now, I’d like to hear what Dr. Swanburg has to say. I’ll rule on it then.” He looked at Swanburg. “You may answer the question.”

  “I can’t give you an exact day, but we have ways of getting pretty close,” Swanburg said. “For instance, we know that the body was buried for a number of years before cement was poured over the gravesite. We know this because when we exhumed the remains, my colleague in the back of the courtroom, Dr. Charlotte Gates, noted plant roots that had grown through the rib area. As it turns out, the roots were from a rosebush; however, the rosebushes formerly above the site had been removed when the cement was poured, at which point the roots stopped growing and died.”

  Swanburg turned in the witness seat and looked over at the judge. “Are you with me still?”

  Amused, the judge nodded. “So far, Dr. Swanburg, even if my wife accuses me of doddering senility.”

  “Know what you mean, Your Honor,” Swanburg chuckled. “Anyway, we know from the growth rings of the rose roots-roots have rings just like a tree that indicate age-that they had pierced the wall of the grave and grew into the corpse for at least two years before the plant was removed. We also know that the cement for the patio was poured in 1994, according to records from Manhattan Concrete, Inc. So that would mean that the roots had been growing in the grave since at least 1992. And, of course, after the grave was dug, it would have taken one to three growing seasons-depending if the plant had been disturbed by the digging-to reach the wall of the grave. So that pushes our timetable back to the grave having been dug sometime between 1989 and 1992.”

  Guma didn’t have much more for Swanburg and turned him over to Anderson. “Let’s start with the last issue first,” the attorney said. “Do you know within a scientific certainty that the roots in the grave are the roots of a plant removed when the cement was poured?”

  “It’s the scenario that makes the most sense.”

  “Is that a yes or no?”

  “That would be a ‘no,’ not absolutely certain.”

  “Then the roots in that grave could actually be much older than a plant killed by the pouring of cement in 1994?”

  “Yes, I suppose.”

  “In fact, the grave could have been dug, and the
victim interred at some point in the distant past before Mr. Stavros even purchased the home. Those roots could have ‘pierced the grave,’ as you put it, years before Mrs. Stavros left her home.”

  “I suppose it is possible but we-”

  “Is ‘I suppose,’ a ‘yes,’ Dr. Swanburg?”

  “Yes, a qualified yes, but a yes.”

  “More like a qualified guess, Dr. Swanburg.”

  Swanburg looked somewhat bemused but let the aside go without comment.

  “Let’s move on, Dr. Swanburg,” Anderson said. “Essentially, what you told Mr. Guma is that the standard accepted methods of human identification were not available to you.”

  “Well, no, that’s not what I said at all,” Swanburg replied. “I testified that two methods-granted, the most common known to laypersons such as you-were not available to us. And I’ll concede that these other methods are less exact, but I believe that my colleague will be testifying that these other methods have been used in courts throughout the world for years now.”

  When Swanburg stepped down, Karp called Charlotte Gates to the stand. After the exchange of pleasantries and establishing her expertise, he began by asking her for a short version of the excavation process. When she finished, he noted Swanburg’s testimony regarding the lack of fingerprint or DNA evidence. “Does that mean we have no other scientific means of identifying these remains?”

  “Not at all,” Gates replied. “Those are just two.”

  “Would you care to elaborate?”

  “Sure. For one thing, even though we don’t have dental records, the deceased’s teeth can still give us clues to her identity.”

  “How so?”

  “Well, through a subspecialty of dentistry called forensic odontology, something I’ve studied in my practice as a forensic anthropologist. There are several reasons why the dentition is valuable for human identification. Tooth enamel is the hardest substance in the human body, which makes teeth capable of surviving conditions under which other human tissues, including bone, deteriorate. Dental work such as fillings, crowns, bridges, and root canal therapy are individually customized for each patient; plus, individuals lose or damage teeth, as well as the bone that holds them. It is these unique qualities that enable forensic odontologists to compare dental restoration work, through X-rays or even anecdotal evidence, with the remains to identify, or exclude, a possible missing individual with a very high level of probability. However, as you’ve heard in this case, there are no dental records for comparison.”

  “And so?”

  “And so we move on to a less exact but nevertheless valid means to ‘narrow the field,’ so to speak,” Dr. Gates said. “We all know that we lose our so-called baby teeth at certain points in our life-give or take a year or two. But actually, we can make determinations as to age well into adulthood because dental development is tightly controlled and protected against disturbances through a process known as canalization. The disadvantage of age estimates, based on dental development, is that most adults have completed the process by age twenty-five.”

  “So from what you just said,” Karp asked, breaking up the sequence to make it more understandable, “what can we say about the remains found in the defendant’s backyard?”

  “We can say the deceased was at least twenty-five years old,” Gates replied.

  “Can you be any more exact?” Karp said.

  “To a lesser but still scientifically valid degree I can,” Gates said. “As strong as they are, our teeth don’t last forever. We wear them down by eating hard foods and grinding them against each other. We also tend to lose some of the bone around the roots as we grow older, and we experience more gum diseases, some of which can be seen in the bone of the jaw as well as the teeth themselves.”

  “Well, do all people wear out their teeth at the same rate?” Karp asked.

  Gates shook her head. “No, and as a matter of fact that can vary greatly according to culture, socioeconomic status-i.e., such as the availability and frequency of dentist visits-and some physical cause, such as a tense person who grinds their teeth a lot. However, a fairly large body of evidence has been gathered comparing thousands of people-both living and deceased-in any one age, gender, social class, and area. The end result is the ability to say that the average person in a certain category can be expected to demonstrate particular aspects in regard to their dentition. For instance, the teeth of the average wealthy white male in the United States will look different at age fifty, than the teeth of the average impoverished Asian, fifty-year-old female in Cambodia.”

  “So using this comparison system, can you estimate the age of the remains in question?” Karp asked.

  “Yes, these comparison studies have been fed into computers, which I’ve accessed,” Gates replied. “The remains fall into the category of adult, Caucasian females of upper-middle to wealthy economic status with an age range of between thirty and forty-two years.”

  “And do you recall the age of Teresa Stavros when she disappeared?”

  “I’ve been told that she was thirty-five years old.”

  “That’s correct,” Karp nodded. “Is there anything else that might indicate the age of the victim in this case?”

  “Objection,” Anderson said. “There’s no foundation that the remains are those of a crime victim.”

  “I see,” Karp said. “Then perhaps we should call the Smithsonian Institution to let them know that we may have discovered the ancient burial grounds of Pocahontas-she having died of natural causes.”

  Anderson chuckled and shook his head as if greatly amused while pouring himself a drink of water. The rest of the courtroom laughed as well.

  “Let me rephrase that,” Karp said, smiling. “Is there anything else you can tell us about the age of the person whose remains just happened to wind up in the backyard of Emil Stavros?”

  “Yes,” Gates nodded. “When we’re young our bones are very flexible because they have not hardened. This process begins at the growth places on either end of the bone and works its way toward the center until they meet and we have the stronger but more brittle bones of an adult. Bones can tell a story if you know how to read them. For instance, in adulthood we can see where someone broke his leg as a child. But there are more subtle clues as well, such as the onset of age-related arthritis. Or, in the case of women especially, who have difficulty maintaining bone density as they age due to a lack of calcium, the onset of osteoporosis.”

  “And how does that help you determine age?” Karp asked.

  “In a way that is similar to the comparison studies of teeth,” Gates replied. “By comparing the bones of thousands of females whose age at death was known, we can say with a strong degree of scientific certainty that the remains we exhumed belonged to a woman in her midthirties to early forties.”

  Karp took a sip of water from a cup on the prosecution table and looked at Emil Stavros, who quickly let his attention be drawn to his notepad. “Now, Dr. Gates, a moment ago you said that the remains belonged to a woman. Was it possible to establish the gender by looking at the bones?”

  “Yes, there are several means,” Gates said. “The easiest was looking at the bones of the hips. I’m sure we’re all fairly aware that a woman’s hips are anatomically different from a man’s, in large part so that a woman can give birth.”

  “Speaking of hips, Dr. Gates,” Karp said, “is there something more you can tell from the hip bones found in the grave?”

  “Yes, she’d given birth to one, perhaps, two children,” Gates said. “Babies do not pass through the birth canal easily, and the pressures of childbirth cause the bones to move and scar.”

  “So in summation, what can you tell us to a reasonable degree of scientific certainty about the remains?”

  “That they belonged to a woman who gave birth to at least one child and was between the ages of thirty and, let’s say, forty-five tops when she died.”

  Karp studied his notes. He actually knew exactly where he was going next
but wanted to let Gates’s testimony sink in before adding more. “Let’s move, on,” he said at last turning on a slide projector as Guma stood to turn down the lights in the courtroom. The photograph of a skull appeared on the screen set up in front of the jury box.

  “Your Honor, for the purposes of this hearing, may we have these slide photographs marked sequentially starting with people’s exhibit one,” Karp said.

  Anderson glanced up at the slide and went back to scribbling notes on his legal pad. “No objection.”

  Karp pointed to the screen. “Dr. Gates, can you tell us what this is a photograph of?”

  “It’s a photograph of the skull we removed from the grave in this case.”

  “What can you tell us about it?”

  “Well, firstly, all races have physical characteristics that differentiate them from another race,” she said. “We can see this walking down the sidewalk outside of this building. People of one race may have differences in the shape of their skulls that determine their appearance. For instance, you have what I would call Slavic facial characteristics, Mr. Karp-”

  “Very good,” he said, surprised as this had not come up before, “my ancestors came from Poland. So can you make a similar statement regarding this skull?”

  “Yes, well, in this particular case, the shape of the skull identifies its owner as a Caucasian woman.”

  Karp pressed a button and another slide appeared-this one showing the skull from the left side. Using a light pointer, he noted a small dark circle behind the ear hole. “Can you tell us what this is?”

  Gates nodded. “It’s an entry wound.”

  “Caused by?”

  “A bullet.”

  “How do you know?”

  “After we disinterred the remains, I carefully placed the skull in an evidence bag,” she said. “I then took it to the Office of the New York Medical Examiner, who was gracious enough to allow me to work there, where I placed it in hot water to remove dirt as well as organic matter, such as any remaining skin or organs…not that there was much. After the clean skull was removed, the residue in the bottom of the pot was sifted through a fine mesh screen. There was no exit wound from the skull, and I was able to find bullet shards still inside; several pieces, as a matter of fact, that under the microscope turned out to be that of a.22-caliber bullet.”