by Marti Green
“You’re here to talk about Jack Osgood,” Lisa said when they were all seated.
“That’s right.”
Lisa leaned back in her chair, ran her fingers through her hair, then sighed deeply. “I suppose you find it surprising that I work the defense side.”
Dani smiled. “I do. I would have thought you’d want to put away criminals.”
Lisa took in a deep breath, then bent her head downward. “It’s my form of penance.”
“For what?”
She looked back up at Dani and Tommy and spoke softly. “I was so young when it happened. I loved my cousin very much. She was like a big sister to me.”
“Did you grow up feeling responsible for what happened?”
“Not for Kelly’s death. No. I felt responsible for Jack’s conviction.”
Every muscle in Dani’s body tensed as she held her breath.
“For so long, I was certain it was him standing over my bed, and then—” She stopped, took another deep breath. “One night, when I was about ten, I woke up from a nightmare in the middle of the night. My father came into the room to comfort me. There was a full moon that night, just like when Kelly was taken. As he stood by Kelly’s bed, the shadow he cast from the moon’s light made him look like a giant. I realized at that moment that the only reason I thought it was Jack was because of his size. He was the biggest man I’d ever seen.”
Dani held back a smile. When she’d returned to the Hickses’ home earlier, she’d checked whether there were any trees in the backyard that would block the moon. She knew that the subtle light from its reflection could create a shadow that would enhance a person’s size. “Did you tell your parents?”
Lisa shook her head. She wrapped her arms around her body, and Dani saw tears in the corners of her eyes. “At first, I was afraid.”
“Afraid of what?”
“I was still a child. I thought maybe they would put me in jail for saying something untrue at the trial.”
“But you grew up. You went to law school. You must have known he was still alive, waiting to be executed.”
Now, the tears flowed freely down Lisa’s cheeks. “What could I have done? I can’t say it was Jack or wasn’t him. I can only say I don’t know who was in my room. My aunt and uncle are still devastated by their loss. I thought, how could I reopen their wounds when maybe it was Jack? They still had a bat that belonged to him, with my blood on it.”
“Anyone could have picked up that bat.”
“I know,” Lisa said, her voice barely above a whisper.
Dani and Tommy flew back to New York with an affidavit from Lisa Montague. Dani now had to make a decision—file a motion right away for a new hearing, or wait. Under Georgia law, she’d have only one bite at the apple. She had Whitman’s affidavit that he’d lied about the time he returned to his dorm room, and Johnson had lied about Kelly breaking up with him. Without more evidence pointing to Johnson as the killer, she knew the judge wouldn’t give those statements much weight. Lisa’s recanting of her childhood identification of Jack Osgood as the man who hit her with his bat was significant, though. Was that enough? Even without more, she’d go ahead with a motion if it meant his execution would be stayed, but that wasn’t automatic under Georgia law. If a stay were granted, it would give them time to keep searching for more clues, more pieces of the puzzle. If not, and the court ruled against her motion for a new trial, she would have thrown away Osgood’s chance at freedom—at life.
It was past seven when they landed at LaGuardia airport, so Dani drove straight home. Ruth was already asleep by the time she got there, but Dani was able to spend some time helping Jonah with his homework. By 9:00 p.m., “honeymoon hour,” she was wiped out. She lay cuddled next to Doug on the living-room couch and described to him her quandary.
“What do you think?” she asked him. “File or wait?”
“Has the date been set for his execution?”
“I just got word today—three weeks from yesterday.”
“Then I don’t see that you have a choice. If you wait until closer to the set date, and the judge doesn’t issue a stay, then it won’t matter if you find more evidence. It’ll be too late.”
“But if I go in now, with just what I have, I don’t know that it’s enough.”
“It’s a tough decision.”
“What’s the right decision?”
“There’s no crystal ball. Trust your gut. It’s always worked for you before.”
On the drive to work the next morning, Dani found herself again bemoaning that she no longer had an associate attorney working with her on cases. For many years, she’d worked with Melanie Quinn Stanton, but now Melanie was seasoned enough to handle cases on her own. Dani missed having another attorney to bounce around legal strategy. Doug was helpful, in his way, but teaching law was far removed from practicing it. Especially in life-and-death situations.
She arrived at HIPP’s office with two cups of coffee and two blueberry muffins in hand. She dropped her coat off in her own office, then made her way to Melanie’s. As usual, Melanie was dressed in a stylish suit, with a turquoise blouse that deepened the blue of her eyes. Melanie always looked like she’d stepped off a model’s runway—with her slim figure, beautiful features, and silky butterscotch-colored hair.
“Brought you a present,” Dani said as she handed Melanie one coffee and a muffin.
Melanie smiled. “What did I do to deserve this?”
“Nothing yet. But I need to pick your brain, so I’m bribing you in advance.”
Melanie took a sip of the coffee. “Go ahead. Pick.”
Dani filled her in on the Osgood case, then finished with the dilemma she faced.
“Ugh. Tough choice,” Melanie said when Dani finished. “But I don’t think you can afford to wait.”
Dani nodded. It was the conclusion she’d reached, but it was good to have confirmation from someone she trusted. She walked over to Bruce Kantor’s office. “I need to hire a forensic dentist for the Osgood case.”
Bruce frowned, then began tapping the pencil in his hand onto his desk. “How much will that set us back?”
“Around eight thousand dollars, including travel costs.”
“We’ve already spent money on a forensic psychologist, and you and Tommy have racked up the travel expenses. Is it necessary?”
“It’s essential.”
He paused, then asked, “Do you truly believe he’s innocent, or are you just trying to avoid the death penalty?”
“He’s innocent. I’m certain.”
Bruce shook his head slowly. “I don’t know where we’re going to get the money, but go ahead. I’ll find it somewhere.”
Dani returned to her office and began the task of preparing documents to request a hearing for a new trial.
CHAPTER
22
1999
He promised himself this would be the last time. It didn’t matter that he’d promised himself that once before. He wanted to believe it was true, that he would only murder one last time and get it out of his system forever. He’d wait until he came across someone who reminded him of Kelly. He traveled enough with his job that it could be anywhere. It didn’t need to be a college town.
It took less than two weeks to find the right person.
He was on a business trip in Florida, traveling from Jacksonville to Tallahassee, when he stopped in a drugstore to pick up some Advil. She was in the same aisle. Long blonde hair, pretty, young. She looked up at him and smiled as he passed her, and he saw eyes almost as blue as Kelly’s. He quickly paid for his purchase, then waited in his car for her to leave. He thought she looked too young to drive, and he was right. He followed her as she walked to her home three blocks away, then waited to see if a light went on in an upstairs bedroom. When it did, he knew he had his next target.
He drove three towns away and purchased a folding ladder, then returned to her block at 3:00 a.m. Her window was closed, but he had the tools he needed to open it
. Quietly, he slipped inside. He took out his pocket flashlight and found her bed. For a while, he just stared at her, marveling at how pretty she was. He kept telling himself to leave, to climb back outside, pretend he’d never been there. He knew what he was going to do was despicable. But his excitement had already started to build. Just this last time, he thought as he went through his ritual—first waking her, then choking her, then carefully carrying her out of the house to his car.
Later, after it was over—after he’d experienced the thrill that was unlike anything else he’d ever felt, after he was suffused with the knowledge of his own power and had returned to his motel room—he broke down and cried. I have to stop. I can’t keep doing this. Never again. Never again.
CHAPTER
23
Dani was back in Lawrenceville, Georgia, in Judge Beiles’s courtroom. Once again, Gary Luckman was seated at the prosecutor’s table. This hearing was without a jury. Only Judge Beiles would determine whether Osgood was entitled to a new trial. When the bailiff announced the judge’s arrival, everyone in the courtroom stood until she was seated on the bench.
“Everyone ready?” the judge asked.
Both Dani and Luckman answered, “Ready.”
“Okay, Ms. Trumball. This is your motion. Call your first witness.”
Dani called Lisa Montague. The bailiff held the door open for her, and she strode inside, then took her seat in the witness box. After she was sworn in and had given her name and address to the court reporter, Dani asked, “Would you state your maiden name?”
“Lisa Hicks.”
“And are you the same Lisa Hicks that the defendant, Jack Osgood, allegedly struck with a bat the night your cousin was abducted?”
“I am.”
“Tell us what you remember from that night.”
“I remember everything up until I was hit. I don’t actually remember being struck.”
“That was twenty-two years ago, and you were only five years old at the time. How could you remember that night?”
“It was the worst thing that had ever happened in my life. And as soon as I woke from my injury, I was asked about it—over and over. It was imprinted in my memory. I don’t think I’ll ever forget it. I can tell you today the television shows we watched before I went to bed. I can tell you the color of the nail polish Kelly had put on my fingers. What we ate for dinner.”
“Do you remember telling your mother that it was Jack Osgood who’d been in your room?”
“I told my mother that I thought it could have been Jack. I didn’t say it with certainty.”
“You testified at Jack’s trial, didn’t you?”
“Yes.”
“At his trial, you said it was Jack Osgood, right? Not that it could have been him.”
“I did.”
“I’d like you to think back to that night, and tell the court exactly what you remember.”
“I’d gone to sleep before Kelly. At some point, I was awakened by some noise, and I saw a man next to Kelly’s bed. He was holding Kelly in his arms. I cried out, and he laid Kelly back on her bed, then turned toward me and took a step closer. I don’t remember anything after that.”
“The man who turned toward you, do you still say that it was Jack Osgood?”
“I don’t know who it was.”
Dani let that statement hang over the courtroom before she asked the next question. “Are you saying that you lied at Mr. Osgood’s trial when you identified him as the man in your room?”
“No. Back then, I believed it was him. But years later, I realized that what I’d seen was someone big, very big, and Jack was the biggest person I knew. At least, I thought I’d seen someone very big.”
“What do you mean?”
“I’d seen the shadow cast by the moonlight streaming through the window, and it hit me years later that a shadow could make someone appear bigger than he was.”
“Just to be clear, are you now recanting your testimony that you saw Jack Osgood in your bedroom that night?”
“Yes. I am.”
“Thank you, Ms. Montague. I have no further questions.”
Luckman stood up and walked toward the witness. “I have just one question. Can you say right now that it wasn’t Jack Osgood in your bedroom?”
Lisa shook her head. “I can only say that I don’t know who it was.”
“So, it could have been the defendant, right?”
“Yes, that’s possible.”
“Thank you. You can step down now.”
Dani next called Captain Ed Cannon. She knew this was risky. She’d subpoenaed Cannon but hadn’t spoken to him, and she’d learned from Tommy that he was firm in his belief that Osgood was guilty. Still, she had just a few questions to ask him. He walked into the courtroom, dressed in his captain’s uniform, and took his seat. “Captain Cannon, were you involved in the investigation of Kelly Braden’s murder?”
His intense eyes bore into Dani as though she were his mortal enemy. “I was,” he answered, his voice clipped.
“When the defendant’s bat turned up, traces of Lisa Hick’s blood were found on it, right?”
“That’s correct.”
“Were any fingerprints found on the bat?”
“No, the defendant wiped it clean. Except for the blood. There were still traces on the bat.”
This was a hearing before the judge, not a jury trial. If it had been the latter, she would have objected to his reference to the defendant. Whether Osgood was the one to wipe the bat clean was a conclusion for the jury to determine. If she got a new trial for Osgood, she’d have to be on her toes with this witness. He was already showing that he’d be prickly.
“Thank you.” As Dani started to return to the defense table, Luckman announced he had no questions for Cannon.
“I call Dr. David Bagley,” Dani said. Bagley headed to the witness chair with long strides. The navy suit he wore looked custom-tailored and fit his slim frame perfectly. The deep blue served as a striking contrast to his full head of wavy, silver hair and goatee. He was sworn in, then gave his name and address to the court reporter.
“What is your profession, Dr. Bagley?”
“I am a licensed dentist, and a professor at New York University College of Dentistry. I am also a forensic odontologist.”
“What is a forensic odontologist?”
“It’s the forensic science that applies dental science to identify unknown human remains, and to analyze bite marks that occur during the commission of a serious crime, such as rape or murder.”
“What kind of training did you receive to be a forensic odontologist?”
“First, I received my DDS from Columbia University College of Dental Medicine. After ten years of practice, I received training from the New York Society of Forensic Dentistry as well as the American Board of Forensic Odontology.”
“As a result of that training, have you been called upon to identify human remains?”
“I have.”
“In what circumstances?”
“I was utilized to identify remains from the September 11, 2001, attacks on the World Trade Center, as well as several plane crashes.”
“Have you ever testified in a criminal trial about bite marks on a victim?”
“I have, yes, many times.”
“Please describe how you would go about analyzing a bite mark on a deceased victim.”
“First, the mark is excised from the body, and then photographs of the mark are enlarged to life-size. When a suspect is identified, a model of his bite mark is taken, and that model is compared to the photographs. The American Board of Forensic Odontology, or ABFO, has created guidelines to use for the comparison, including a scoring system.”
“Did you examine the model of Mr. Osgood’s teeth and the photographs of the victim’s bite mark that were introduced at his trial?”
“I did.”
Luckman stood up. “Your Honor, it seems that Ms. Trumball is bringing up an issue from the defendant’s tria
l that was already fully addressed. A forensic dentist testified on his behalf, and the jury heard him. The purpose of this hearing is to determine whether there is some new evidence, not relitigate old evidence.”
Dani turned to the judge. “This witness is going to testify as to facts that were unavailable at the time of the defendant’s trial. I’m merely laying the groundwork here.”
“I’ll give you a little latitude,” the judge ruled, “but I expect you to move on quickly from the past.”
“Thank you.” Dani turned back to the witness. “Dr. Bagley, at Mr. Osgood’s trial, the state’s forensic odontologist testified that it was scientifically conclusive that Jack Osgood bit Kelly Braden. Did you reach the same conclusion?”
“I did not, nor could any other forensic odontologist.”
“Why is that?”
“Because no forensic odontologist can attribute a bite mark to an individual with any accuracy. The little scientific research that’s been done has all been subsequent to Mr. Osgood’s trial, and it’s shown bite-mark analysis to be junk science.”
“Can you explain?”
“There are two assumptions in bite-mark analysis. The first is that human teeth are as unique as DNA. The second is that this unique print can be recorded on human skin. Neither assumption has ever been proven scientifically.”
“On what do you base that statement?”
“In 2009, The National Academy of Sciences was commissioned by Congress to report on the state of forensic science in the courtroom. It found there was no evidence of a scientific basis for identifying one individual and excluding all others based upon bite-mark matching.”
“Have there been any studies that have proven the reverse? That those two assumptions are false?”
“In fact, yes. An extensive study was undertaken by a group of professors at the University at Buffalo School of Dental Medicine over the last decade. They examined more than one thousand human dentitions and studied hundreds of bite marks in cadavers. Using computer analysis and applied statistics, they attempted to match the bite marks to the correct dental impressions. The results showed that a single bite mark could match numerous individuals, thus creating a high likelihood of false positives. They also found that no two bite marks from the same set of teeth were the same.”