Conclusive Evidence

by Al Macy

  “Is Louella conscious?”

  Louella had been moved to a semiprivate room, shared with another comatose patient. I was still on her visitor list, and the guard didn’t object when I took Jen in to see her. I didn’t know of any regulations about bringing electronics into the room, but just in case, I’d hidden her laptop under my jacket. After talking to Louella for bit, I pulled out the laptop, opened it up, and put Louella’s index finger on the fingerprint reader.

  Jen smiled. “Of course. Why didn’t I think of that?”

  Nothing happened. She knew that police could force you to provide your fingerprint to unlock a laptop, but they couldn’t force you to give them the password. Damn!

  “Try a different finger.”

  “No, everyone uses their index finger.”

  Apparently not. When I put Louella’s middle finger on the reader, the screen changed. We were in. Maybe she liked to give her computer the finger.

  “Let’s go,” I said.

  “Hold on.” Jen took the laptop and had it learn our fingerprints. Smart.

  I gave her a kiss on the cheek and did the same to Louella. “Hang in there, my good friend. I love you, Louella.”

  Back at the office, I copied the report to our laptops, and Jen and I pored over it. It was even more than we could have hoped for.

  Chapter Nineteen

  Something woke me up in the middle of the night. I looked at the clock radio. 3:14 a.m.

  A crash from downstairs hit me like a slap in the face. I came fully awake. Whoever tried to kill Louella was coming after me. Did they know I’d gotten her final report? Impossible, only Jen and I knew that.

  I didn’t have a gun. All I had was a Maglite flashlight. The big black type that cops use. With four D cell batteries, the thing was heavy enough to kill someone. I stepped from the bed, clearing my Eustachian tubes so I could hear more clearly. Mercifully, my hangover had finally dissipated.

  I tiptoed to the wall and pulled the flashlight from its holder. The phrase, He brought a flashlight to a gunfight ran through my head. Maybe that would go on my tombstone. I started toward my bedroom door, when it swung open, and the ceiling light came on.

  “Dad! Dad, listen. You’re gonna love this. You’ll never guess what I found in Dundon’s house.”

  “Toby?”

  “You’re not listening, Dad.”

  “Why aren’t you in the hospital? What happened?”

  He was talking a mile a minute. “Oh they have lousy security there and it was easy for me to break out and I just waited until someone went out the double doors at the end of the ward and then I caught the door before it closed all the way but that’s not important now this is.”

  Toby still wore the psych ward hospital scrubs. How did he get here?

  “Hey, buddy. Sit down on the bed and take a deep breath. Slow down.”

  He took a breath, but it probably broke the speed record for deep breaths. In, out, talk. “I thought back to how Bridget was having an affair with Uncle Angelo, so I broke into her house—”

  “You what?”

  “I broke into her house and looked around. I went into a back room, and you know what I found? I found this big kinda dummy thing, like a man, only it was made of like branches and rocks held together with twine or something. It was heavy. Isn’t that weird? Do you think that has anything to do with Uncle Angelo’s death? Because I think it has to.”

  With what I knew from Louella’s report, it wasn’t actually that weird. Well, it was weird, but I understood what was going on.

  “Buddy, you shouldn’t have done that, but it was helpful. Can you do something for me? Will you let me take you back to the hospital?”

  I got him readmitted. No one had even realized he was gone. I didn’t get back to sleep until six.

  * * *

  The audience had doubled since news of the jailhouse snitch broke. Fine with me.

  At the start of my cross, I asked, “Ms. Heron, do you collect Get out of Jail Free cards?”

  Finn stood, about to object, then sat.

  “I don’t understand.” With Heron’s deaf dialect, “understand” sounded like “undershtand.”

  “Well, it seems that you’ve gotten out of jail a number of times in exchange for your testimony.”

  “Objection. Mr. Goodlove isn’t testifying here.”

  “Sustained.”

  “Do you remember being in jail in Las Vegas ten months ago?”

  “Not really.”

  “You don’t remember being incarcerated for passing bad checks?”

  “Oh, yeah, I remember. But they let me out.”

  “Ah, good. And why did they dismiss the charges and let you go?”

  “’Cause I didn’t do it. Duh.”

  Finn popped up. “Objection. This line of questioning is clearly beyond the scope of direct.”

  Nice try. “Your Honor, this is related to—”

  She held up her hand toward me. “Overruled.”

  “Ms. Heron, do you remember that before you were released, you testified against your cellmate?”

  “I might have.”

  I introduced a trial transcript into evidence and asked her to read the highlighted line out loud.

  “Uh … ‘Mary said she poisoned her boyfriend because he was cheating on her and the motherfucker deserved to die, but she had only meant for him to get real sick.’”

  According to a report by the Center on Wrongful Convictions at Northwestern University, jailhouse-snitch testimony is the leading cause of wrongful convictions in murder cases.

  “Had you met with the prosecutor before being put in the cell with that woman—Mary?”

  “I may have.”

  “Please answer yes or no.”

  “Yes, I think so.”

  “And did he suggest to you that your charges would be dismissed if she said anything incriminating and you testified about it?”

  “It’s how the system works, right? I made a deal, right?”

  “Did he tell you what Mary was accused of and what kind of testimony might get your charges dismissed?”

  She shrugged. “Yeah, something like that.”

  I introduced the court record showing that Heron’s cellmate was exonerated, that she had been proven innocent of the charge of manslaughter. I also led Ms. Heron through another instance in which her testimony was used in court and later found to be false. I had planned to spend more time on the fact that she’d obviously been transferred to our jail because they needed someone who understood ASL and that Crawford had coached her on exactly what he wanted her to say. But I saw it in the jurors’ faces: They got it. And they were getting bored. Can’t have that.

  I wrapped things up, confident that Crawford’s jailhouse snitch had been convincingly discredited. The defense table was a happier place than the prosecution table.

  The prosecution rested. I made a motion to have the charges dismissed, but it was denied. Apparently, Judge Stevens was unwilling to ignore the eyewitness testimony.

  * * *

  Over the weekend, Finn offered a plea to manslaughter, with a recommended sentence of eight years. We turned it down. Tax day, April 15, was our day to present our case. Finally. We began by attacking the reliability of the eyewitness, Ms. Yvette Dowzer.

  Our expert witness, a Dr. Hiram Bosch, had PhDs in psychology and criminology and taught at USC. He didn’t come cheap, but he was well respected, and, most importantly, came off well on the stand. Jen handled the direct examination.

  After running him through his impressive qualifications, she asked. “Dr. Bosch, what does science tell us about the reliability of eyewitnesses?”

  He adjusted the microphone. “In general, it’s very poor. Many people have been convicted based on eyewitness testimony that has turned out to be mistaken.”

  “Isn’t that surprising?”

  “Not at all. The human brain isn’t like a video recorder. It’s not like cueing up an old video and reviewing it. Instead, ou
r visual memories are reconstructed. My colleague, Dr. Elizabeth F. Loftus, likens it to putting puzzle pieces together. All too often, the pieces are put together in the wrong way, or they’ve been overwritten with some different pieces, so to speak.”

  Jen put a confused look on her face. She had some good acting skills. “But surely, doctor, if the witness is certain about the identity of the person she saw, that’s much more reliable.”

  “Sadly, no. Many studies have shown that witnesses who are highly confident are no more reliable than those who are uncertain of their identification.”

  “Why is that sad?”

  “Because jurors give more weight to witnesses who are sure of what they saw.”

  I glanced back at Ms. Dowzer, the eyewitness. She seemed fascinated.

  Jen did a great job. She hit all the important points yet didn’t bore the jurors. I wanted to give her a kiss when she came back to the defense table.

  The judge said, “Ms. Finn?”

  Finn stood. Why is she so confident?

  “Dr. Bosch, have you read the testimony of Ms. Dowzer in this case?”

  “I have.”

  “I’ve learned—and I hope you’ll correct me if I’m wrong—that eyewitnesses are less reliable if they are under stress at the time of the event.”

  “Yes, that’s true.”

  “Did you get the impression that Ms. Dowzer was under a lot of stress when she identified the defendant?”

  “No.”

  “She was going for a walk when this happened. Do you think she was under any stress at all?”

  “Probably not.”

  “Isn’t it true that she was probably as unstressed as anyone could be?”

  “Possibly. I have no way of knowing what she was thinking about at the time.”

  “That’s fair. Do you think she was under stress when Detective Crawford asked her to identify the defendant from photographs?”

  “I can’t say for sure.”

  “I’ve read that the presence of weapons is distracting and stressful and decreases the reliability of witnesses. Is that right?”

  “Very true.”

  “Was there a weapon involved when Ms. Dowzer saw the defendant?”

  “There was not.”

  “Is it true that a disparity in race between the witness and the person he or she identifies decreases witness reliability?”

  “Yes.”

  “But in this case the witness and the person she saw were both Caucasian,” Finn said.

  “Probably.”

  “Probably?”

  “Well, from the testimony, the witness only saw the person’s face for a brief instant, and it was obscured by the hood of a sweatshirt. She could very well be mistaken about the race. Brevity of observation correlates inversely with reliability.”

  Score a point for our side if the jurors understood.

  Obviously, Finn didn’t want to end on a down note. “But it’s your testimony that the reliability didn’t suffer because of stress, the presence of a weapon, or—”

  Jen stood. “Objection. Asked and answered.”

  “Sustained.”

  “No further questions,” Finn said.

  “Redirect, Ms. Shek?”

  I whispered in Jen’s ear and she nodded.

  She stood up. “Dr. Bosch, I heard you say that brevity of observation correlates inversely with reliability.” She smiled. “I’m having trouble wrapping my head around that. What the heck does it mean?”

  “Yes, sorry. It means that the shorter the time during which the witness sees the subject, the less reliable the identification.”

  “Ah, I see. That means that in this case when Ms. Dowzer said, and I quote, ‘Well, I do admit that I only got a very quick look at her face. Just a flash, you know,’ it means that because her observation was very brief, it’s not reliable.”

  I grimaced a bit.

  “Well, not exactly. I’d say that because it was very brief, it is less reliable.”

  “No more questions.”

  Jen whispered, “Sorry about that, chief” when she sat.

  “No big deal. Nice job.”

  My turn. I confirmed that the crabber was not in the room. I’d given instructions that he be excluded from the courtroom until I brought him in to testify, but I wanted to make sure. Then I called the head of the local Coast Guard station and ran him through his qualifications with regard to ocean currents.

  I put a nautical chart on an easel. I like to get witnesses away from the stand. It lets them better relate to the jurors. I got permission to approach him and handed him a pointer. “Can you tell us about the prevailing currents in our area?”

  He illustrated the currents with his pointer. He went into a little too much detail, and the jurors were barely hanging on. I stopped him.

  “I’m confused, sir. You’ve shown that the currents are moving north from Tepona Point, and yet Mr. Rozetti discovered the body to the south, straight out from the Redwood Point jetty. Maybe the currents were different that day in December?”

  He laughed. “No, they couldn’t have been that different. The ocean doesn’t work that way. Besides, we have buoy data that shows that the body would have drifted north.”

  “Now I’m really confused. If the body would have drifted north, how could it have been discovered to the south?”

  Finn jumped to her feet. “Objection as to relevance. We know the body was found where it was found. Who cares where it was found? Mr. Goodlove is just blowing smoke.”

  “Mr. Goodlove, care to enlighten us?” Stevens seemed a little more lively than usual.

  “Your Honor, the relevance will become clear soon.”

  “How soon?”

  “After a few more witnesses.”

  “Okay, I’ll allow it.”

  I repeated the question. “If the body would have drifted north, how could it have been discovered south?”

  “It couldn’t.”

  “Excuse me?” Am I laying it on too thick?

  “There is simply no way that the body could have drifted south like that.”

  “What if someone had picked it up and taken it south?” Now I was blowing smoke. I didn’t want Finn to know where I was going.

  “That’s the only way it could have gotten to where that crabber reported seeing it.”

  “Maybe the crabber wasn’t where he thought he was.”

  The Coast Guard officer laughed. “He’d have to have been thirty or forty miles north of where he thought he was. If his boat could travel at six knots, that would have been five or more hours of motoring. In each direction. He would have remembered. No way.”

  “No further questions.”

  Finn didn’t cross-examine.

  We next called an expert on how bodies float. He splashed more cold water, so to speak, on the testimony of the crabber. Jen went through it quickly but caught the high points. It was unlikely that the body had been floating faceup as Rozetti described. To have the body flip over and sink immediately was also unlikely.

  “So to sum up,” she said, “you find the testimony of the crabber, Mr. Rozetti, to be suspect?”

  “In the extreme. Dead bodies, and I’ve dealt with a lot, just don’t act that way.”

  “Thank you.”

  I’d selfishly saved the next witness for myself, a Dr. Bloome, whom we’d flown out from Illinois. He was an expert on DNA and tissue evidence in general.

  Finn stipulated to his expertise, and I got to the meat of the matter, almost rubbing my hands in anticipation. “Dr. Bloome, did you get a chance to analyze the material the RPPD supplied you?”

  “I did.”

  “It was evidence taken from the crabber’s boat hook, is that correct?”

  “It is.”

  “And did your analysis show that the DNA on that boat hook belonged to Mr. Angelo Romero?”

  “It did, to an astronomically high probability.”

  “Unless Mr. Romero had a twin brother.”

 
; “True. Did he?”

  I laughed. “Not that we know of. Now, was the sample they sent you consistent with Mr. Romero having been floating in salt water for four days?”

  “Well, that might be misleading.”

  I had been pacing back and forth a little to the amount allowed in the well, and at that point I froze. “Wait. What? Misleading? I don’t understand.”

  “It’s true that the sample had been in salt water. But it had not been in the Pacific Ocean.”

  “I don’t get it.” I turned slightly, so the jurors would see my Oscar-worthy performance, and frowned. “Was it in the Atlantic or something? The Indian Ocean?”

  He laughed. “No, it wasn’t in the ocean at all. My analysis suggested that the tissue sat in a bucket of seawater taken from the harbor, perhaps, that had been sitting at a temperature higher than that of the ocean.”

  Adding my puzzled look to the bewildered murmuring of the courtroom, I said, “What? How could you possibly know that?”

  He launched into a technical and jargon-filled explanation touching on salinity, water temperature, microbes, and so on. The jurors were curious about the plot twist in this murder mystery, but when some eyes started to glaze over, I got him to finish up.

  Finn had no questions. Hopefully, she thought I was just throwing out some red herrings.

  Chapter Twenty

  After the lunch break, I stood. “The defense calls Mr. Guyapi Yazzi.”

  Mr. Yazzi had the unmistakable look of a Native American. His black hair was parted in the middle and streamed back over his ears to a ponytail that extended down to his shoulder blades. He had dark eyes, high cheekbones, and turquoise earrings.

  After he was sworn in, and before I could ask my first question, he spoke a few words in what was apparently Havasupai. After confounding the court reporter for a while, he said, “This is a traditional greeting of my people, which I am bound to give, albeit a short version.”

  “Thank you, Mr. Yazzi, I enjoyed that.” I was sincere. It was interesting to hear a language that sounded like no other. “Could you tell us your occupation?”

  “I run a tour company and school in Havasu Canyon, which includes the reservation of my people.” He had a deep voice and spoke English perfectly.