Conclusive Evidence

by Al Macy

  “Ah, I see. And the waves were big that day?”

  “Yeah. Double overhead.” He glanced at the jurors. “They were twice as tall as I am.”

  “And I guess, if you’re not paying attention, they can really clobber you, is that right? You had to keep an eye out?”

  “Objection as to form.”

  “Sustained.”

  Finn was just trying to break my rhythm.

  “Sorry. You could really get clobbered if you weren’t paying attention. Isn’t that right?”

  “Yes.”

  “So, at this great distance, and with your attention divided between the waves and this falling body, it seemed to you that the body had been pushed?”

  “Yes. Definitely.”

  I was tempted to ask why but didn’t. A famous lawyer, R. Eugene Pincham, once joked, “I asked a witness ‘why’ on cross-examination twenty years ago. When I stopped by that courtroom a few days ago on my way here, the witness was still on the stand answering that question.”

  “Was it because the man was tumbling through the air?”

  “It wasn’t no cliff dive, like in Acapulco.”

  I froze. Something about that seemed important, but I didn’t know why.

  Judge Stevens asked, “Mr. Goodlove?”

  “Sorry. The man’s body was tumbling, is that right?”

  “Yes, I just said that.”

  “You’ve seen Tepona Point up close. Is that right?”

  “Yes. When the waves were smaller, I paddled close to it.”

  “Is it a straight shot from the tip of the cliff to the ocean below?”

  “No, there are some parts, some rocks, that stick out.”

  “Have you walked out on Tepona Point?”

  “Yeah.”

  “Can you see those outcroppings from the edge?”

  He shook his head. “Not really.”

  “Yes or no, please, Mr. Kapkowski. Can you see them or not?”

  “No.”

  “Permission to approach the witness, Your Honor?”

  Stevens said, “Uh, yes.”

  I stepped away from the lectern. “What would happen if I fell like this?” I summoned all of my acting skills, and, drawing from personal experience, put a look of intense depression on my face. On two occasions, I’d stood on the span of a high bridge but lacked the energy to climb over the railing and jump. Many depression sufferers are saved from themselves only because they don’t have enough spirit to commit suicide. To act. Trying to convey all of that, I hung my head and arms and let myself fall forward. I’d intended to catch myself at the last second but failed, and I dropped to the courtroom floor on my hands and knees. I stood back up. “What would have happened if I’d fallen off the cliff like that?”

  “You would have hit the, uh, outcroppings.”

  “Excuse me, could you speak up?”

  “You would have hit the outcroppings,” he said, “and then tumbled.”

  “And then tumbled,” I repeated. “So, if a depressed person, someone too tired to go on living, wanted to commit suicide, might he wait for a day with double-overhead waves then simply let himself fall from the cliff?”

  “Objection. Calls for speculation.”

  “Sustained.”

  “No further questions, Your Honor.”

  “Redirect, Ms. Finn?”

  “No, Your Honor.” She, along with the jurors, had heard the surfer’s tone change from certainty to doubt, and it was unlikely she could reverse that.

  * * *

  The court recessed for lunch, and Jen, Carly, and I drove to my office to confer in private. We’d learned the hard way that ASL conversations were only private when surrounded by four walls. A pizza was waiting for us on the floor outside the office door; Jen had arranged to have it delivered.

  I called the hospital and was told that Toby was doing fine in the locked psych ward. They wouldn’t let me talk with him but told me to expect a progress report in a day or so.

  I texted Nicole, thanking her for her excellent work and giving her the latest news.

  Jen told me I’d “done good.” In between bites of pizza, I translated our conversation into ASL.

  She asked, “How did you get the umbrella so fast? You didn’t plan that ahead of time, did you?”

  “Dumb luck. I found it in the hall. Discarded. I was going to get mine from the car, but the delay probably would have pushed Stormy Stevens over the edge. I had planned to talk about the pitfalls of circumstantial evidence, and when Finn used the umbrella example, I knew what I had to do.”

  “Ah. And you splashed water on it and on your head from the water fountain.”

  “Not exactly.”

  Carly frowned. Jen cocked her head.

  “You don’t want to know.”

  Jen was a bit of a germaphobe. Carly signed, “Tell us.”

  “The toilet in the men’s restroom.”

  Carly laughed, and Jen put her slice of pizza in the trash and went to wash her hands.

  When she was back, Carly said, “Angelo wasn’t depressed.”

  “You were separated, so how would you know?”

  “Angelo was never depressed.”

  I shrugged. “It doesn’t matter. Even if Finn can elicit testimony that suggests Angelo would never off himself, I can knock it down. Anyone can get depressed. I have an expert ready to testify to that, but I don’t think Finn wants to touch it.”

  Soon, the whole office smelling like a pizzeria, I turned to Carly. “Once again, you’re sure it wasn’t you that the eyewitness saw at Tepona?”

  She clenched her jaw the way she often did. “Correct. I did not go out on the point. I was coming back from Clam Beach. Along the road.”

  “And you didn’t see that woman? Ms. Dowzer.”

  “No.”

  “Okay.” I took a breath. “Let’s finish up and stop by Louella’s. I’m getting a very bad feeling about her.”

  As expected, Louella wasn’t home. I’d forgotten to bring the key she’d given me years ago. We banged and yelled, but no one came to the door. I looked in through the peephole but couldn’t see anything.

  I asked Jen. “What was the name of her partner at RPPD?”

  “Vince Rolewicz.”

  I called RPPD and left a message for him, asking him to look into Louella’s disappearance.

  Chapter Sixteen

  Finn rose. “The People call Ms. Yvette Dowzer.”

  Still looking fit and trim, she walked to the witness chair and sat. No stoop. She didn’t move like the senior citizen that she was.

  Ms. Dowzer’s testimony about seeing Carly on the trail from Tepona Point matched what she’d said in the preliminary hearing. As with the surfer, time had made her more certain about what she’d seen. Finn went through the testimony with no surprises.

  My turn. “Ms. Dowzer, you testified that the woman you saw was wearing a Bizet University hoodie, is that right?”

  “Yes.”

  “Are those sweatshirts pretty common around here?”

  “Yeah, I guess so. There are a lot of deaf students in this area.”

  “Thank you.” I produced a portion of the transcript from the preliminary hearing and introduced it into evidence. “May I approach the witness, Your Honor?”

  Stevens assented, and I handed the sheet of paper to the witness. “Ms. Dowzer, this is a transcript of your prior testimony. Could I ask you to read the highlighted text on this sheet? Out loud?”

  She put on her reading glasses. “Let’s see. ‘Q’ means ‘question’?”

  “That’s right.”

  “Okay. ‘Question: Ms. Dowzer, can you tell us anything more about what you saw? Answer: Well, I do admit that I only got a very quick look at her face. Just a flash, you know. I guess I kinda felt that the woman was—’”

  “That’s enough. Thank you. You only saw her face very briefly. Now I’d like to call your attention to the next exhibit.” I went through the process of having it entered. “Is this
the photo Detective Crawford showed you when he came to your house?”

  “Yes, I think so.”

  “Do you think it’s possible that seeing this photo all by itself may have seared the image of Carly Romero into your mind and kind of cemented that brief flash of a face into your memory so that later, when you saw multiple pictures, you picked that one as the face of the woman you saw?” I was going into dangerous territory, but I was depending on the witness’s qualifications of her answers in the past. This woman didn’t feel she could rely on her memory. One of her Facebook posts had indicated she thought maybe she was getting Alzheimer’s.

  She shook her head. “No, I don’t think that happened. I remember the face.”

  Darn. I’d printed out her Facebook post, made a year earlier. I entered that as the next exhibit then handed it to her. “Can you read the highlighted Facebook post out loud, please?”

  “Uh … it says, ‘I’m not remembering things as well as I used to. Alzheimer’s?’”

  “Do you remember posting that?”

  “Yes. Yes, I do.” The uncertainty on her face was a blessing. Did the jury notice?

  “You are under oath here, Ms. Dowzer, and your answer is very important. Do you want to reconsider what you said about remembering the face?”

  She looked at the photo again then frowned and pulled on her ear. “Yes, I guess that’s possible, if I understood your question. Yeah, I could have seen this photo and then remembered it later.”

  Phew.

  “But I don’t think that’s what happened.”

  I got the next exhibit entered, a stiff card printed with an array of photos—known as a “six-pack”—used when Ms. Dowzer identified Carly down at the station. Judge Stevens frowned deeply when she saw it and sent a scowl toward the prosecution table. Her ire was undoubtedly directed at Crawford.

  I handed it to the witness. “Do you remember when Detective Crawford gave you this sheet and asked you to pick out the photo of the woman you saw at Tepona Point?”

  She gave a tiny laugh. “Yes.”

  “Can you tell us why you’re laughing?”

  “Yes,” she said. “I remember laughing when I saw these the first time, because one of the pictures was a black lady.”

  “And why was that funny?”

  “Well, there aren’t many black people in this area, and if the woman I’d seen was black, I would have mentioned that to the detective, so it seemed funny for him to have put a black lady in the pictures.”

  “Do you think the detective did that because he wanted you to choose the photo of my sister?”

  Finn jumped up so fast her feet might have left the ground. “Objection! Your Honor, please!”

  “I withdraw the question. No further questions.”

  Judge Stevens said, “Redirect, Ms. Finn?”

  Finn took no time to get to the lectern. “Mr. Goodlove seemed to imply the detective may have tried to influence your identification of the defendant. Was your identification influenced?”

  “Well,” she said, “It could have been … but, no, I know who I saw.”

  “And who was that?”

  “The woman. Ms. Romero.” She pointed to Carly.

  “May the record show that Ms. Dowzer pointed to the defendant.” By always referring to Carly as “the defendant,” Finn hoped to dehumanize her. “And you’re absolutely positive of that, beyond any doubt. Is that so?”

  I could have objected on the grounds that the question had already been asked and answered, but I didn’t want to bring any more attention to it.

  Dowzer said yes.

  “No further questions.” Finn looked over her notes.

  Her next witness was Wenzel Rozetti, the amateur crabber who had seen Angelo’s body in the ocean but failed to retrieve it. Like the surfer, the crabber cleaned up well: a good pair of slacks, a blue shirt, and a darker blue tie. He held the tie’s knot, lifted his chin, and rotated his head back and forth. He was either unaccustomed to wearing a tie, nervous about speaking in public, or both.

  Finn led him through his testimony about discovering the body and getting some of its DNA on his boat hook. Angelo had died, and his body had washed out to sea. That wasn’t a big blow to our case.

  Louella had researched him, but we hadn’t gotten her report. Where are you, Louella?

  When Finn was finished with her direct, Judge Stevens turned to me. “Mr. Goodlove?”

  “I have no questions, Your Honor, but I would ask the Court to ensure that Mr. Rozetti remains available for later questioning and that he be excluded from the courtroom until that time.” Louella had put him on our witness list.

  We were packing up our materials when Jen squeezed my arm. Hard. Ow. She showed me the text on her phone.

  Louella Davis is at St. Joseph Hospital.

  * * *

  Well, that explained why we hadn’t heard from Louella. I should have figured it out. I guess I must have known she was in some kind of trouble, but with the start of the trial and my son’s mental breakdown, my brain pushed that information to the back burner. If my inaction resulted in her death, I’d never forgive myself.

  Louella was in a coma in the ICU, her daughter, Gail, by her bedside. The docs didn’t want me in there, but Gail insisted. Jen waited in the hall.

  Louella didn’t look good. I leaned down to her. “I’m here, Louella. We’re all pulling for you.” I wiped some tears away with my thumb and forefinger and stood to give Gail a hug. Gail was a tough broad, like her mom. She even looked like a younger version of Louella.

  Gail spoke in low tones. “They found her yesterday underneath a shed in a neighbor’s yard. She was wearing a housecoat, and she had her shoulder holster over it. With her gun.”

  “What? Really?”

  She ignored my question. “They wouldn’t have found her except that someone was walking their dog, and he was barking and sniffing at the shed. She had embedded glass and cuts on her calf. She lost a lot of blood.”

  “Oh, jeez. What do the doctors say?”

  “They give her a fifty-fifty chance of coming out of the coma, but even if she does, she might be bedridden the rest of her life. She had a heart attack. The police went to her house and found a dead body.”

  “What?” I paced around in a circle. Was this related to her investigation into Angelo’s background? Must be. What had she said? DialUSA was sketchy, and someone had warned her to mind her own business.

  Would Judge Stevens call a mistrial if this was related? Possibly. Did I want that? Too early to tell.

  I hugged Gail again and whispered to Louella that I’d be back—could she hear me?—then collected Jen and drove to Louella’s house. Squad car flashers bounced off the sides of the houses and made the fog glow. The police were investigating and wouldn’t let us in. Her former partner Vince Rolewicz met us at the crime scene tape.

  “They were pros, but that’s about all we know.”

  I wanted to tell him about DialUSA and Louella’s suspicions, but that could wait. Hold on. “You need to put a guard on her at the hospital. Someone might still want her dead.”

  He blinked. “There wasn’t a guard? I’ll take care of it.” He started toward the house.

  I called him back. “Detective Rolewicz, there’s information on her laptop that’s protected by attorney-client privilege. If you find—”

  “We haven’t found a laptop. There’s none here.” He went back into the house.

  That puzzled me for a few seconds, then I nodded. I knew why they hadn’t found it.

  * * *

  The next morning, Finn called Bridget Dundon to the stand. We’d been able to exclude the video of the damaging ASL conversation, but that didn’t mean the conversation was out-of-bounds. Both Finn and I had the precise transcript of what was said, but if she referred to it, the judge would call a mistrial. Still, knowing exactly what was said could guide Finn’s questioning.

  Bridget seemed extremely reluctant to testify against her supposed best
friend. Of course, Carly didn’t know it was Bridget who’d had the long-standing affair—according to Toby, at least—with Angelo.

  Stupid, stupid, stupid. I should have prepared Carly for that revelation, just in case. In my defense, I had a lot going on. If that came out in testimony, Carly would go ballistic. In front of the jury.

  But Finn doesn’t know. I relaxed, but just in case, I wrote, No matter what you hear, keep your cool. Show no reaction. Very important. I underlined “important” three times.

  Carly and Jen both frowned at me. Like: What the hell is that all about?

  I mouthed, “Okay?” to Carly, and she nodded.

  Finn glanced at my legal pad on her way to the lectern, but I covered my writing with my hand.

  “Ms. Dundon,” she said, “do you remember a conversation you had with the defendant toward the end of November of last year?”

  Bridget looked at Carly and rubbed her fist on her chest in a tiny circle, the sign for “sorry.” She did it so unobtrusively that perhaps no one else noticed. Judge Stevens would have had a conniption if she’d seen it or saw Carly respond. I wrote, Hands in your lap on my pad.

  The translator put Finn’s question into sign. Bridget answered, “Yes,” and the translator spoke the word.

  “Can you tell us what the conversation was about?”

  “A woman had sent an anonymous email to Carly telling her that someone had been having an affair with her husband. For years. Carly was very angry and was venting her frustration to me.” Bridget was sweating and not simply because the court’s heating system was cooking us alive. What stress she must have been under, talking about her own betrayal and hoping Carly wouldn’t figure things out. I shook my head. What a shit this woman is.

  I followed along as Bridget related the conversation. Finn had probably given her a transcript of the video to refresh her memory. Bridget followed the script pretty well.

  “Can you tell us what she said at the end of the conversation?”

  “She just said goodbye.”

  Finn pushed a lock of her orange-red hair behind an ear. “I’m sorry. I meant before she said goodbye.”