The Last Chance Lawyer

by William Bernhardt

  That was nice, anyway. He doubted that Jazlyn had coached him to present Gabriella as mother of the year. “Did you search the house? The grounds?”

  “We did a cursory scan, not a thorough or complete search. Making sure she and the child were safe.”

  “But you did search the house?”

  “Yes.”

  “And you did search the grounds, including the backyard, right?”

  “Yes.” Treadway knew where this was going and tried to defend himself. “But remember, it was late at night. About three in the morning, by the time we were searching. We looked over the backyard with flashlights, never the best search conditions. It would be easy to miss something.”

  “Particularly if it wasn’t there yet.”

  Jazlyn rose to her feet. “Objection.”

  The judge nodded. “I’ll instruct the jury to disregard defense counsel’s remark. Counsel, your job right now is to ask questions. Please limit yourself to that.”

  He nodded, then plowed ahead. He knew that jurors had a hard time following objections and their aftermath. As long as he didn’t look as if he’d been beaten, they might not grasp that the judge had chastised him, or even that he had lost the objection. “What inspired you to return to Gabriella’s home?”

  “Two days later, we received an anonymous phone tip suggesting that the murder weapon could be found in the defendant’s backyard.”

  “Do you know who made the phone call?”

  “As I said, it was anonymous.”

  “I get that they didn’t identify themselves, but that doesn’t necessarily mean you have no idea who it was.”

  Treadway paused again. “We don’t know. We couldn’t get a fix on the call. But it seemed credible, so we obtained a warrant and searched the yard.”

  “The caller accurately described where the gun was located, correct?”

  “Yes.”

  “So the caller either saw the gun put there, talked to someone who saw the gun put there...or put the gun there himself.”

  “Or herself,” Treadway added.

  “If the gun had been there the night of the shooting, you would’ve spotted it, wouldn’t you?”

  “As I said, it was dark.”

  “Do you typically do sloppy work?”

  Treadway twisted his neck slightly. “No.”

  “Does your partner do sloppy work?”

  “No.”

  “You were using flashlights. Wouldn’t a metal gun glint if you shone a light upon it?”

  “Not necessarily. It was covered with mud.”

  “Officer Treadway, you do not strike me as incompetent. And let’s face it, searching the backyard but missing a murder weapon that was simply lying on the ground would be gross incompetence.” He could tell Jazlyn was deliberating whether to object, so he plowed quickly ahead. “In all likelihood, the gun was not there when you searched the first time, correct?”

  “I can’t answer that question. As I’ve said, it’s possible we missed it.”

  Jazlyn rose to her feet. “Objection, your honor. The witness is not qualified to argue about the probability of overlooking a small object covered with mud hidden beneath a hedge in the dark of a moonless night.”

  The judge nodded. “Counsel, can you rephrase your question? And please limit your questions to the witness’ actual knowledge or expertise.”

  He pondered a moment before proceeding. “Officer Treadway, you said you’ve worked this neighborhood for five years. To your knowledge, have you ever overlooked a murder weapon you were staring directly at?”

  Again the twisting of the neck. “Not to my knowledge.”

  “What would be your opinion of a police officer who overlooked a murder weapon he was staring straight at?”

  His lips thinned. “I would try to be understanding. It was a dark night.”

  “That’s generous of you. What would be your reaction to an officer under your supervision who overlooked a murder weapon?”

  Treadway didn’t answer. He was searching for the right response.

  “Would you give that sloppy officer a commendation?”

  Jazlyn rose again. “Objection. Calls for speculation. There are no officers working under Officer Treadway.”

  The judge nodded. “Sustained.”

  He wasn’t quite through with this yet. “Officer Treadway, the judge has asked me to limit my questions to your knowledge, so now I’m going to ask a question that directly pertains to it. Based upon your experience as a police officer for many years, at least five of them in that Southside neighborhood, do you think you overlooked the murder weapon the first time you searched Gabriella’s yard?”

  Treadway’s jaw clenched. Eventually he spoke. “I don’t know. It’s possible.”

  “I did not ask you what was possible. I asked what you think, based upon your years of experience. Do you think you overlooked the gun the first time you searched those hedges?”

  The officer’s eyes darted toward Jazlyn, maybe looking for help, maybe wondering what the ramifications would be if he gave an honest answer. “No, I don’t think I missed it the first time.”

  “And that means someone planted the gun later.”

  “Yes.”

  “And you don’t know who planted the gun.”

  “The most likely candidate—”

  “I didn’t ask you to guess. I asked if you know.”

  “I know whose prints were on it.”

  He ignored that. “If Gabriella were going to hide the gun somewhere, putting it in her own backyard would be about the stupidest move possible, wouldn’t it?”

  Treadway tilted his head to the side. “Sometimes criminals do stupid things.”

  “No one is that stupid.”

  “She might’ve been concerned she’d be followed if she left her home.”

  “Do you think Gabriella would call in an anonymous tip telling the police to go find the gun in her backyard? Is she that stupid?”

  “Probably not.”

  “And whoever made that phone call had to know that the gun had been placed under the hedge. So the person who called in the tip is most likely the one who planted the gun, right?”

  “I don’t know that. Maybe someone saw your client hide the gun.”

  “The truth is, you do not know who put that gun under the hedge. Right?”

  “Correct.”

  “Thank you, sir. I have no more questions.”

  Chapter 33

  Scanning the gallery, Dan saw that the composition of the spectators had not changed much. Happily, his two security officers were still in position, closely monitoring anyone who came in or out of the courtroom. He still had no idea who sent that mutilated doll, and sadly, that wasn’t because he couldn’t imagine anyone doing it. It was because there were too many people he could imagine doing it.

  He did notice that Albert Kazan, the park architect, was seated in the rear of the courtroom. What was his interest?

  He pulled close to Maria and whispered. “How do you think that cross-ex went?”

  “I thought you were terrific.”

  “I didn’t get that much.”

  “There wasn’t much to get. But you prevented the jury from thinking the discovery of the gun in Gabriella’s backyard was proof positive of her guilt. You suggested some kind of skullduggery. Always good for the defense.”

  “I’m just implementing your trial strategy. We should put forward as many alternative suspects as possible. That includes people who might’ve planted the gun or made the anonymous phone call.”

  “Any leading suspects?”

  “It doesn’t matter. Just so they aren’t Gabriella. Every new suspect makes it a little less likely she’ll be convicted.”

  The judge returned to the courtroom and called the court back to order. Jazlyn called Dr. Brenda Palmer, their top expert on dactylograms—what the rest of the world called fingerprints.

  Dr. Palmer walked to the witness stand. Serious expression. No jewelry. Pant
suit, earth tones. Small scar beneath her left ear. About a size six.

  Jazlyn spent twenty minutes establishing Dr. Palmer’s credentials as a forensic scientist, which were indeed impressive. After extensive schooling, she’d spent twelve years in the CSI units in various Florida jurisdictions. She was consistently serious and scientific. Mr. Spock on the witness stand.

  Jazlyn walked her through everything she did with respect to the murder weapon. Palmer identified two prints with the greatest clarity. A thumbprint was detected on the rear of the gun handle. And an index fingerprint was detected on the trigger. “That is consistent with how most people hold handguns.”

  After more scientific rigmarole, Jazlyn got to the key question. “Did you have access to the defendant’s fingerprints?”

  “Yes. I have the complete set taken when she was booked.”

  “Do they match the prints on the gun?”

  “They are one-hundred-percent consistent with the prints of the defendant.”

  “Thank you.” Jazlyn turned and smiled. “Your witness.”

  He positioned himself in front of the witness stand but off to the side, so he wouldn’t block the jury’s view of the witness’ face. “You testified that the two prints you found on the murder weapon matched Gabriella’s. In fact, you said it was a one-hundred-percent match. Is that correct?”

  Palmer nodded, appearing pleased that the stupid defense attorney understood her testimony so well.

  “But in fact, you did not have one-hundred-percent prints, did you?”

  “I... don’t know what you mean.”

  “On the gun. Did you have complete prints? Or partials?”

  Palmer nodded. “Oh, partials, of course. You almost never find complete prints in the field.”

  “You didn’t mention that before.”

  “The only time you’re going to get a complete print is in a laboratory setting, or when someone is booked, when someone is deliberately trying to record fingerprints. In real life, when people pick up or touch an object, they don’t lean in and roll their fingers around to make sure a complete print is left behind.”

  “How complete were these partials?”

  “I’m not sure what you mean.”

  He pulled a document out of a folder in his backpack. “I’ve looked at your reports. I’ve seen reproductions of the prints you lifted from the gun. Not only do they not appear complete, it doesn’t appear that you even had fifty percent of the print.”

  “That’s probably true.”

  “So looking at less than half a fingerprint, you decided that it must belong to my client.”

  She cocked her head to one side. “Fingerprint evidence doesn’t lie. As I’m sure you’ve heard, no two people have identical fingerprints.”

  “Yes, I’ve heard that, but I’ve never seen any proof of it. Has it ever been scientifically demonstrated?”

  For the first time, the witness hesitated. “It is taken as... axiomatic in my field.”

  “But what I asked is whether there’s any scientific proof that no two people have the same fingerprints. And the truth is, there isn’t, right? It’s one of those things people say, but it’s never been proven.”

  “I...don’t think I can agree with you.”

  “Can you direct me to a scientific study or analysis that has proven no two people have the same fingerprints?”

  “Everyone knows it’s true. Just as no two snowflakes are alike.”

  He smiled. “I was hoping you would bring that up, because that’s another example of something people say without any proof. But in fact, a few years ago, a scientist did find two snowflakes that were just alike, and he did it without spending too much time collecting snowflakes. Are you familiar with the study I’m referring to?”

  “I...did read something about that, yes.”

  “It appears that although there are many different snowflakes, it is not impossible for two to be identical. I can’t help but wonder if the same is true for fingerprints. Particularly when you’re not even dealing with complete fingerprints. The prints would only have to be fifty percent identical.”

  The expert squared her shoulders. “I examined these fingerprints personally. There is no question in my mind, based upon years of experience and expertise, that these fingerprints match the defendant’s.”

  “Have you ever been wrong?”

  After a beat, Jazlyn rose to her feet. “Objection, relevance. We’re here to talk about this case, not others.”

  “The suggestion that an expert witness’ track record is of no relevance is ludicrous. The prosecutor went to a great deal of trouble to establish Dr. Palmer’s expertise. She’s opened the door to evidence challenging that expertise, like for instance, evidence that the expert has made grievous errors in the past that have led to wrongful convictions.”

  The judge raised her hand. “The objection is overruled. You may proceed, Mr. Pike.”

  “Thank you.” He returned his attention to the witness. “Have you ever made an incorrect fingerprint match?” He opened a file. “Like, for instance, in the case involving Miles Cortez?”

  The witness’ eyes hooded. This was clearly not her favorite subject. “In that case, the prints in question were far less pronounced than what we have in this case. Barely even twenty-percent prints.”

  “So the quality of the prints affects the reliability of your testimony?”

  “It affects the certainty of the results.”

  “In the Cortez case, given the poor quality of the fingerprint, I would understand if you had declined to reach a conclusion. But you didn’t decline, did you? You declared that the fingerprints matched the defendant. Correct?”

  The witness’ jaw tightened. “What I said was that the partial fingerprints available appeared consonant to those of the defendant.”

  “And when you say consonant, you’re using a fancy word to mask the fact that you said the fingerprints matched. Right?”

  Out the corner of his eye, he could see Jazlyn bobbing, desperate for an excuse to interrupt the cross-examination. But she couldn’t think of one. Because there wasn’t one.

  “I did, ultimately, use the word ‘match.’”

  “But the fingerprints didn’t match. Subsequent DNA evidence proved that Cortez did not commit the crime. And he was released, though only after three-and-a-half years of incarceration. Is that accurate?”

  “That is sadly correct.”

  “Your testimony put an innocent man behind bars.”

  “He didn’t commit that crime. That doesn’t make him innocent.”

  “Are you saying it’s okay to put someone away based on false testimony, because they probably committed some other crime?”

  “No.”

  “It sure sounded like that’s what you were saying. Do you think we should lock people up regardless of the evidence? Especially if they’re Hispanic?”

  Jazlyn shot her feet. “Objection. The witness has said nothing to suggest any racial prejudice.”

  “It’s not her words, it’s her actions,” he muttered.

  The judge looked at him sternly. “This objection will be sustained. And I will not have any mindless mudslinging in my courtroom, Mr. Pike. Do you understand me? I will not have it. If you have no basis for making a claim of this nature, don’t make it. We will not have reputations tarnished just to score a few points during cross-examination.”

  He drew in his breath. “Understood, your honor. I’ll change the subject.” Having already planted the suggestion in the jurors’ minds. “You would be willing to acknowledge that you’ve made erroneous matches in the past, correct?”

  The witness was not going down without a fight. “As I said, in the Cortez case, the fingerprint evidence was far less compelling than what we have in the present case.”

  “Are you aware that the Innocence Project says misleading fingerprint evidence leads to hundreds of wrongful convictions every year? Why is that?”

  “I have no idea why they say that.
”

  “But you have heard that before?”

  “I have heard it.”

  “Do you disagree with it?”

  “I have no way of knowing.”

  “But you would be willing to admit that fingerprint evidence has led to wrongful convictions. At least one that you know of personally.”

  Her eyelids fluttered. “Fine. Yes.”

  “Let’s talk about your scientific procedure for a moment. When you talk about getting a match, jurors get visions of what they’ve seen on television, on CSI shows. High-tech labs and scientists running prints through computerized databases. But that’s not your procedure, is it?”

  “We do run prints through the FBI’s IAFIS, when it’s available.”

  “And since that only covers people who have attracted federal interest, like terrorists, how often in your experience has that led to a match?”

  “Never.”

  “So after IAFIS strikes out, do you run the prints through some other computer database?”

  “Unfortunately, we do not have equipment or records at that level of sophistication here. Few cities do.”

  “Then what did you do to determine whether the prints matched?”

  “I brought my scientific expertise to bear.”

  “Meaning you eyeballed it, right? You held the two prints up, looked back and forth, and decided they were similar enough to call a match.”

  “That is essentially correct. And there’s nothing wrong with that.”

  “Except—I wonder if you have perhaps misled the jury. You keep talking about your scientific expertise. But anybody could look at two pictures and reach a conclusion about whether they match, couldn’t they? Children do that when they’re working puzzles in Highlights magazine. ‘Can you spot the differences?’”

  “I think fingerprint analysis is more sophisticated than Highlights magazine.”

  “But at the end of the day, you looked at two pictures and decided whether they matched.”

  “And they did.”

  “Did they match perfectly? One hundred percent?”

  “As I’ve already said, we did not have one-hundred-percent prints.”

  “But with respect to the partials, was it a perfect match?”