by Gerry Spence
Judge Murray looked at Coker in shock and disbelief. “I beg your pardon?” the judge said. Competent defense attorneys rarely, if ever, reserved their opening statements. Standard wisdom held that the defense must begin raising reasonable doubt at the first opportunity. But Coker remained silent, his eyes focused on the east courtroom wall, which, so far as the judge could see, was off-white and blank.
Finally, the judge turned to Sewell. “Call the state’s first witness, Mr. Prosecutor.”
“The state calls Sergeant Harold Illstead,” Sewell announced.
Shrapnel on Omaha Beach had left the right side of Illstead’s face deeply scarred, and the right side of his mouth drooped. His right eye was covered with a black patch. When Illstead took the stand, he was still wearing an “I Like Ike” button on his lapel.
Illstead had been retired from the Jackson Hole sheriff’s office, but when the Lillian Adams murder case called for expert testimony, Illstead was summoned to duty by Sewell and he was offered to the jury as the county’s expert witness. Illstead once attended a short course in crime-scene investigation conducted by the FBI, after which he’d been anointed as the county’s “criminalist.”
Illstead settled stiffly into the witness chair.
Sewell provided the jury with Illstead’s qualifications as an expert. He then asked: “I suppose, Sergeant, that you examined the deceased for powder burns?”
“Yes.” Illstead replied. He opened his briefcase, extracted a pile of papers, and began fumbling through them. At last, he withdrew an eight-by-ten-inch photograph and held it close to his good eye for inspection. In the photograph, the deceased was shown seated in a desk chair, his face grotesquely contorted as it rested on the desktop in a large pool of blood. The blood had begun to dry around the edges. Sewell marked the photograph as an exhibit and offered it into evidence.
With old watery eyes, Judge Murray glared hard at defense attorney Timothy Coker. Surely he got the judge’s message. Why hadn’t Coker objected to such a prejudicial photograph? The photograph’s only relevance was to prove Adams’s death, and Coker had already admitted Adams was killed by a contact bullet wound through the skull.
Coker could usually be counted on to raise all sorts of hell over such tactics. Coker was competent, all right—often too aggressive. He’d been well versed in “the school of hard knocks,” as Coker liked to refer to his years of experience. If an accused was charged with a crime—any crime, from a bad check to a bar fight, even murder—Timothy Coker was the lawyer for the case. People had come to expect that along the way he’d pull something out of his bag of tricks to convince the jury to acquit, and sometimes he’d been successful. Why, the judge wondered, did Coker sit there like a dead frog on a rotting log and not object to the bloody exhibit? The judge had no choice but to allow its admittance.
Sewell handed the photograph to the juror, Harmony Biernstein, a realtor. She glanced fleetingly at the photograph and passed it on to the next juror, Helen Griggsley, a piano teacher, who let out a small gasp and shoved it quickly to William Witherspoon, a craggy-faced rancher who was never repelled by blood. Over a lifetime he’d castrated and butchered a trainload of cattle. He regarded the photograph for a minute or more before finally passing it on to the banker, James P. Smithson, the jury foreman. Smithson examined the photograph as if he were adding columns on a balance sheet. Then he passed it on.
Meanwhile, prosecutor Sewell marked as an exhibit a close-up of the deceased’s head, and offered it into evidence, and again it was admitted without objection from Coker. Illstead, with permission from the judge, stepped cautiously down from the witness chair, turned the easel bearing the photograph toward the jurors, and took the pointer Sewell handed him. “This is a photograph of the deceased’s head taken later in the mortuary,” Illstead said. “The blood has been cleaned away to reveal the bullet’s entry wound in his forehead. You can see the star-shaped lacerations around the black entry wound there.” He pointed. The jurors, fascinated with the unfolding drama, leaned forward.
Illstead continued: “When the end of the gun’s barrel is flush against the skin and the gun is fired, the released gases blast into the subcutaneous tissues and cause those star-shaped injuries. Here you can also see the grayish discoloration from the gunshot residues, sometimes referred to as ‘powder burns.’”
The judge glanced at the defendant, Lillian Adams. Yes, she’d been a handsome woman. She was a couple inches taller than Coker. Her black hair was done up in a tight bun on the back of her head. She was wearing a plain black dress that extended well below the knees. She wore a string of inexpensive pearls. Small tracks of sweat glistened on her forehead.
Judge Murray and his wife, Betsy, had loved Lillian Adams since she was a small child. She wasn’t their blood child, but she was the closest thing to a daughter they’d ever have. Yes, the judge knew he was in conflict. But he argued to himself that he was frequently in conflict. In this small berg he might one day have his doctor in court, and the next day his banker or Betsy’s best friend. But such was the challenge of every judge in thousands of small one-horse towns across the land. If they called in a new judge every time a conflict made its appearance, the county would be required to pay the new judge, and there was no budget or money for such as that.
Still, in every trial, by rule, each side had the right to disqualify one judge in a timely manner. Why had Coker left Judge Murray on the case? For Coker, the question had been simple: Would his defense of Lillian Adams go better in front of Judge Murray or with another judge who’d be selected by Judge Murray if he stepped down? Although in the past Coker and the judge had had their issues, they’d also enjoyed a long history as close friends and partners. Coker trusted the judge’s integrity.
On the other hand, Sewell knew that meticulous fairness was most important to Judge Murray, and Sewell would play on it. And he had other plans that would explode in the judge’s face down the line.
Sewell turned back to his witness, Illstead: “When you were at the scene, did you check the hands of Mrs. Adams for traces of gunshot residues?”
“Yes. I swabbed her hands and did the standard testing.”
“What was the result?”
“She was positive for gunshot residues.” Illstead’s disfigured face lent a macabre credibility to his testimony.
“And what does that mean?”
“It means that she either fired a weapon that night or that she was very close to one.”
“When you arrived at the scene, did you observe a weapon?”
“Yes, next to the deceased’s right hand on the desktop was a revolver.”
“What else did you observe, Sergeant Illstead?”
“I saw a handwritten note at the far end of the desk. It supposedly bore the signature of the deceased.”
“Did you examine the pistol, State’s Exhibit forty-three?”
Illstead put his good eye close to the weapon. “Yes, I examined this pistol.”
“And were you able to discern any fingerprints on the gun?”
“No, I wasn’t.”
“What does that mean to you?”
“It means that the gun was fired by someone wearing gloves, or that the prints had been wiped off.”
Sewell handed Illstead a photograph marked “Exhibit 9.” “What is this?”
“This is a photograph I took that night. It shows the floor of the den.”
“What did you intend to reveal with this photograph?”
“That there was blood on the floor where the body had been dragged.”
“Dragged?”
“Dragged.”
“Did you take fingernail scrapings from the defendant, Lillian Adams?”
“Yes.”
“How did you acquire them?”
“I simply took them from Mrs. Adams at the same time that I swabbed her hands for gunshot residues—standard police procedure.”
“And what did you discover from an examination of her fingernail scrapings?”
&nbs
p; “As reported by the FBI, she had traces of blood underneath her nails that matched the blood type of the deceased.”
The judge had given Coker another hard look, inviting his objection. The FBI’s report was hearsay. But Coker remained inexplicably silent. Lillian Adams, who sat next to Coker, glanced at her nails and then looked quickly away.
“What other evidence did you take from Mrs. Adams, the defendant?” Sewell asked.
“I saw what appeared to be blood on her white slacks. She also had blood on her high-heeled pumps. At my direction she went to her bedroom, changed clothes, and returned the bloody clothes to me, as I requested. The FBI reported that both her slacks and shoes contained blood splotches that matched the blood type of her deceased husband.” Sewell offered the exhibits into evidence. Coker made no objection.
“At the time you were at the scene, did you have a conversation with Mrs. Adams?”
“Yes.”
“Who was present?”
“Just myself and Mrs. Adams.”
Suddenly, Coker came alive. “Just a minute. Your Honor, we need to approach the bench.”
At the bench, Coker whispered to the judge, “Your Honor, Sewell is attempting to elicit from Sergeant Illstead what Mrs. Adams said to Illstead, and that’s protected by the Fifth Amendment.”
The judge turned up the volume on his hearing aid. “Mr. Sewell, would you state what you expect your witness’s answer will be?”
“Yes,” Sewell whispered back. “Sergeant Illstead will testify that he asked Mrs. Adams what happened and she told him she came home at about midnight and found Mr. Adams dead at his desk, and she called the police.”
“I see nothing objectionable with that testimony,” the judge ruled. “You may proceed.”
Sewell, still standing stiff and straight, returned to the podium. “During your investigation, Sergeant, what conversation did you have with Mrs. Adams?”
“I asked her if she could tell me what happened, and she said no, that she had gotten home about midnight and found him dead at his desk.”
“I see,” Sewell said.
Illstead continued: “Then I said, ‘I have to clear the record, Mrs. Adams. Did you have anything to do with this?’”
Coker shouted, “This is in gross violation of my client’s—”
“Hold it right there, Mr. Coker,” the judge said, interrupting him. “I sustain your objection.”
Illstead, seeming to ignore the judge’s warning, replied. “She said she wanted to talk to her attorney.”
Coker bounded to his feet. “Again, I move for a mistrial. This is outrageous. This is a blatant violation of Mrs. Adams’s rights. Sewell knew what the deputy would say, and he knows that any statement concerning Mrs. Adams’s request to see her attorney is protected.”
“Mr. Sewell, what do you have to say for yourself?” Judge Murray asked, glaring down at the prosecutor.
“Well, Your Honor,” Sewell replied under a cloak of innocence, “I had no idea he was going to tell us she wanted to talk to her lawyer.”
“I’ll bet not!” Coker said. “Once more, I demand a mistrial.”
“I’ll take care of it,” the judge said. The judge turned to the jurors: “Ladies and gentlemen, you are to totally disregard the testimony of this witness concerning Mrs. Adams’s wanting to talk to her attorney. She has an absolute right to make such a request. Indeed, we should all talk to an attorney concerning all legal matters. Moreover, Sergeant Illstead should have advised her that she had a right to talk to her attorney. That a citizen seeks legal advice must not be construed in any way as evidence of that citizen’s guilt or innocence. It has no bearing on this case whatsoever, and it was wrong for Sergeant Illstead to testify to anything in that regard.” He turned to the lawyers. “Proceed, gentlemen.”
Coker rushed to the edge of the judge’s bench.
“Back off, Mr. Coker,” the judge warned, slamming his gavel. “I said, ‘Back off’!”
Coker took a step back, his arms swinging wildly in the air, his fists clenched as if he were in the throes of a boxing match. “Your admonition to the jury will not cure this intentionally committed error. It cannot be cured,” Coker hollered.
The judge pounded his gavel in response. Then the judge, along with the lawyers, the court reporter, and Lillian Adams, adjourned to the judge’s chambers. “All right, Mr. Coker,” the judge said in chambers, “let’s see if you can address the court in a civil manner.”
Coker detonated again. “Sewell has just won his case by another of his sleazy tricks. Despite your instruction to the jurors, there isn’t a juror sitting there who believes an innocent person would need to talk to her lawyer. The jurors will now believe that Mrs. Adams killed her husband and wanted a lawyer to protect her.”
Yes, the judge thought, it was a typical sleazy Sewell trick. “Mr. Sewell, you are skating on very thin ice here. Any more little surprises like this and I may be forced to grant Mr. Coker’s motion for a mistrial. Do you understand?”
“Yes, of course.” Sewell tendered the judge a small, pained smile.
Was Sewell attempting to force the judge to declare a mistrial? If he declared a mistrial, Lillian might be set free due to the constitutional prohibition against double jeopardy. What scheme was Sewell devising?
Judge Murray turned to the prosecutor. “Mr. Sewell, as you know, my job here is very much like that of the referee in a boxing match. You might get away with one low blow, maybe two, depending on how severe. But if you keep this up, you may forfeit the fight on a foul. Do you get the picture?”
“Yes, Your Honor, of course,” Sewell said. He worked up another painful smile and announced he would have no more questions for the witness.
CHAPTER 4
THE JUDGE ORDERED the jurors be returned to the courtroom, and Timothy Coker headed to the podium for his cross-examination of Deputy Illstead.
“Let’s shed some honest light on your testimony, Deputy. You claim that your Exhibit nine reveals drag marks of blood on the floor. Did you test those stains on the floor to determine if, indeed, they were from blood?”
“No, I didn’t.”
“Why not?”
“I didn’t believe it was necessary.”
“Not necessary? Can we now go to the scene of this homicide and make any tests to determine if the stains you saw on the floor were actually blood?”
“Of course not,” Illstead said. “The scene has been cleaned up.”
“The jurors must now accept your beliefs rather than the results of any scientific tests, isn’t that true?”
“I suppose.”
“Don’t you agree that a competent death-scene investigator would have determined what those stains on the floor were?”
“No.”
“Is it all right with you that we guess?”
No answer.
“Well?”
Still no answer—except the deputy’s one-eyed glare at Coker.
“Well, Deputy, you want the jury to guess this lady into a murder conviction?”
Sewell: “Objection. This is argumentative.”
Judge Murray: “Sustained.”
“Now let’s deal with another issue here,” Coker said. “Did you attempt to determine who owned the revolver that you discovered at the scene of this death?”
“Yes, I did.”
“Why did you do that?”
“Standard investigation.”
“Why do you say it is standard?”
Illstead was silent.
“It’s good to know who owns the weapon that was supposedly involved in the homicide, isn’t that true?” Coker asked.
“Yes.”
“Who owned the pistol involved here?” As Coker waited, he hung his thumbs in his suspenders.
“I assume Mr. Adams.”
“You assume? You assume?”
No answer.
“To whom was it registered?”
“The pistol was unregistered.”
“You m
ean that the gun that supposedly killed Mr. Adams was not registered to him?”
“Yes.”
“Anyone with an unregistered gun could have dropped that gun there, isn’t that true?”
“I suppose.”
“Is ‘I suppose’ a yes answer, or is it a no answer?”
No answer from the deputy.
“Did you determine if the bullet that killed Mr. Adams was fired from that gun?”
“No.”
“Why not?”
“The bullet not only went through the skull of Mr. Adams; it also lodged in the wall behind him. I had to dig it out of the plaster. The bullet was so thoroughly scarred that no comparison could be made so as to tie it to the firearm in question.”
“You are not equipped to make that comparison, are you?”
“No.”
“You would ordinarily send both the revolver and the bullet to the FBI for such comparisons, isn’t that true?”
“Yes.”
“Did you send the gun and the bullet to the FBI to see if, in fact, they could match the bullet to the gun?”
“No, I didn’t.”
“So what we have here is another of your assumptions—namely, that the FBI couldn’t have matched the bullet to the gun—isn’t that true?”
“The bullet was too scarred, as I’ve testified.”
“No one from the FBI said so, did they?”
“No.”
“It’s you, who took a six-weeks course somewhere in crime-scene investigations, who is now telling us what the FBI can or can’t do?”
No answer.
“Sir?”
No answer from the deputy—only the hostile glower from his one good eye.
“And you can’t testify that the bullet you dug out of the wall was fired from the unregistered pistol that you found at the scene?”
“No, I can’t. But it was obvious.”
“‘Obvious’ means you guessed again, because both the bullet and the revolver were found at the scene, isn’t that true?”
“Both were at the scene, yes.”
“Now, you testified that you found what you took to be gunshot residues on Mrs. Adams’s hands?”
“Yes.”
“You don’t know that Mrs. Adams ever fired a gun, do you?”
