A Family Business (34 page)

By calling the pathologist and asking him to go over in detail his autopsy of Tim Waters, Diamond hoped to convince Judge Hunter that the late cremation service owner had died a natural death, and that attempts by the prosecution to point to murder were indicative of a vendetta against his client. Holloway fell into this plan in that he continued to insist he had no reason to believe that Tim’s death was anything but spontaneous.

Diamond opened the questions by asking Holloway if he remembered Tim Waters out of the some 13,000 persons he had autopsied during his career.

A tall, heavyset man with thinning gray hair, Holloway said he had no trouble recalling Tim because he had been so obese. “He was a grossly overweight individual,” he said in a soft, kindly voice, the kind of voice that seemed more suited to a bedside physician than a pathologist, “and that finding influenced my other findings.”

Far from apologizing for filing a report saying that Tim had died a natural death, Holloway said the signs all showed that Tim had been a very sick man when he died.

“His heart had come to the point where it could no longer function,” Holloway maintained. “His lungs filled up with fluid because his blood circulation had ceased. He was suffering from a metabolic overload. The displacement of his diaphragm had reduced his breathing capacity, and obesity added to the problems. As a result, his heart was working at its limit.” All of this, Holloway said, was obvious to him as soon as he took a firsthand look at Tim’s heart. His opinion was only strengthened, he added, when he examined slides of Tim’s heart tissue under the microscope.

But he had clues even before he cut Tim’s chest open that he was going to find problems. First of all, the pathologist explained, when he studied Tim’s hands, he had noticed that the base of his fingernails had been blue. Called cyanosis, that was an indicator that his blood was not carrying enough oxygen throughout his body. Then when Holloway slit open Tim’s chest, his suspicions were confirmed. Tim’s heart was enlarged and the left ventricle had thickened, which were other danger signs. When he examined the slides under the microscope, Holloway also discovered that Tim’s heart tissue had begun to fragment, which was another indicator that Tim’s heart was not getting sufficient oxygen.

There were other beacons to Tim’s ill-health besides the heart, Holloway added. Tim’s lungs were congested and his liver was blown up twice the size of a normal organ. When he examined the spleen, Holloway discovered that also was enlarged. “It did not cause his death,” Holloway said, “but it was another point showing an impeded flow of blood to the heart.”

Finally, the pathologist said, he also found congestion in Tim’s kidneys. Although the condition was minor, it was another hint that blood was not circulating as it should have been.

When the doctor finished, Diamond looked satisfied, smiling perhaps for the first time during the hearing. Even David seemed contented; he remained silent.

Under cross-examination by Giss, Holloway defended his conclusions, claiming that he had no reason to be suspicious about Tim’s death. “There was nothing to indicate that a detailed toxicological test should be done,” he said, adding that in any case, Ventura County did not have the equipment to perform the sophisticated examination carried out by Dr. Rieders. “I felt, and I still find, that an adequate cause of death had been found in my autopsy.”

When Giss pressed him about the possibility of oleander poisoning, Holloway said from what he had read about the plant, it was fatal within a few hours if it was going to be fatal at all.

“Here we have something that took much longer than would be expected for oleander,” Holloway said, “especially considering his [Tim’s] condition.”

Giss took his time, phrasing his next question carefully.

“Take as a given,” he said slowly, “that oleander was in Tim’s system. Are you saying that regardless of those findings, he would have died anyway at that time?”

Holloway did not hesitate. “Yes!” he replied emphatically.

Giss’s heart sank. Holloway was a credible witness and his opinion would carry a lot of weight. If he was willing to go on the record as saying that in his expert view Tim would have died when he did with or without the oleander, it could present major problems for the prosecution.

What was especially troubling was Holloway’s insistence that oleander was a fast-acting poison. The fact that Tim had lived so long after allegedly ingesting the oleander could cause doubt that Tim had taken a fatal dose. But before Giss could try to pick Holloway’s assertions to pieces, the pathologist blurted out: “Tim Waters was so hugely overweight, I think the toxin found its way into his fat. Otherwise he may have died sooner.”

Giss sighed in relief. Holloway, an M.D., had offered a detail that had not been alluded to by Rieders. But Rieders was a Ph.D. and a toxicologist, not an M.D., and therefore not as well-versed in pathology. Holloway, however, had volunteered that oleandrin was a fat-soluble substance, that is, that the poison could be stored in a person’s body fat, and the degree of obesity could directly effect the speed with which the poison acted.

Up to that point the prosecution had been unable to explain why Tim had not gotten sick earlier if he had been poisoned, as they contended, on Good Friday evening. Holloway inadvertently had provided an explanation. In the future the defense would still be able to argue that Tim’s death occurred too long after the time he could possibly have been poisoned by David, but the prosecution would have a ready answer: The oleander had not killed immediately, as oleander usually does, because the poison had been absorbed into Tim’s layer of fat and the deadly substance was released slowly. It was the difference between a person taking a Contac that emits medication over a period of time and taking an Excedrin that kicks in immediately at full strength.

Feeling more confident, Giss resumed his questioning. It wasn’t exactly a major victory for the prosecution, but it gave the DDA a considerable wedge that he could use to help weaken Holloway’s tenacious stand that it was Tim’s bad heart that killed him, not oleander.

“Would you say Tim Waters’s heart was grossly oversized?” he asked.

“No,” said Holloway.

“His liver? For a man his size?”

“Yes.”

Since Tim did not drink alcohol, what could have caused his liver to be in such poor condition? the prosecutor wanted to know.

Holloway shrugged. “Malfunction,” he replied, more question than answer.

Without preliminary, Giss switched back to oleander. “Are you saying that Dr. Rieders’s findings are inconsequential?” he asked.

“Not at all,” Holloway answered forcefully. “Other findings would have to be considered.” He added, however, that he would view the presence of oleander in Tim’s system as a contributing cause of death rather than the primary one. “The myocardial insufficiency
was
acute,” he said. “It
did
cause pulmonary edema.”

Was Tim’s severe diarrhea consistent with his findings? Giss asked.

“It might have been,” Holloway replied. “There is an overlap of symptomatology to be considered.”

“Had you been familiar with Dr. Rieders’s findings, would your report have read
exactly
like it does?” the prosecutor persisted.

“I would have added as a contributing cause oleandrin toxicity,” Holloway conceded. Then he added: “It is a matter of interpretation. How much oleandrin does it take to disable the heart? Dr. Rieders says oleander was the main cause of death. I would not necessarily agree.”

Giss was unwilling to let it go. “Dr. Rieders says that regardless of what you found, oleander would have killed Tim Waters.”

Holloway shook his head. Tim, he said, could possibly have survived the poisoning in the level in which oleander was found in his system. He would have been very sick, the pathologist said, but he could possibly have survived.

But then it was Holloway who was unwilling to let it go. He added a caveat. “Oleander is fat soluble and it could have gotten into Tim’s fat tissue. In other words, it could have been cumulative as a contributory factor.”

Giss, anxious to get Holloway off the stand and salvage what he could, asked if it would be a fair statement of the pathologist’s position to say that, in his opinion, the concentration of oleandrin found in Tim’s system was the contributing if not the independent cause of Tim’s death.

Holloway nodded. “I can’t deny that,” he said.

“But you can’t say that, but for the oleander, you couldn’t say
when
Tim Waters would have died?” Giss asked, pushing his luck.

In his opinion, Holloway said, even without the oleander, Tim probably would have died within a matter of hours. But to Giss’s delight, he softened the statement. “He was alive before the oleander was ingested. I don’t know when he might have expired absent the oleander.”

31

In his closing argument before Judge Hunter, Giss made accommodation for Holloway’s contention that Tim was doomed with or without the oleander. “It is still a homicide,” the prosecutor asserted.

Without making an issue of his belief that it was oleander that had killed Tim and not the illness outlined by the coroner, Giss argued that what was important—and which Holloway did not figure into his testimony—was that David
intended
to kill Tim, whether it was the oleander that actually killed him or not. Under California law a death is regarded as a murder even if the victim was already weakened by disease, or would have died soon from another cause. Giss’s reasoning was similar to Walt Lewis’s contention about the money that had been skimmed from the preneed accounts: Just because the money was returned did not mean that a crime had not been committed when it was initially taken. But in this case, even if he conceded the accuracy of Holloway’s diagnosis, Giss said, and even if Tim
was
fatally ill, and even if he died from another cause first, David was still guilty of murder if he gave Tim something intending to cause his death and he subsequently died.

To back up his argument about David’s intentions, Giss pointed out that, according to Galambos and Edwards, David had bragged that he had poisoned Tim. And even if David had been indulging in his customary braggadocio, his statements could not be rejected out of hand. Galambos and Edwards were so closely allied with David that it was not unreasonable to assume that he would be candid with them.

David’s motive, the prosecutor continued, was the simplest of all: greed. David was making a lot of money in his various operations, particularly by selling the dental gold, a practice that brought in some $6000 tax-free every month. If someone were to try to put an end to his various enterprises, it would hurt David badly in the pocketbook. And that was a situation that David could not tolerate. “Anyone who interfered with his business was marked for extinction,” Giss argued, paraphrasing statements allegedly made by David himself to others.

During the speech by the prosecutor, David sat rigidly at the defense table, rocking agitatedly back and forth. A deep scowl creased his brow; he looked as though he could hardly keep from charging across the courtroom and grabbing Giss by the throat. But the moment passed quickly. A few minutes later, when Diamond rose to present his argument, David visibly relaxed.

The defense attorney implored Hunter not to take too seriously everything the prosecutor had said, especially the part about testimony from Galambos and Edwards. “They are both convicted felons,” he reminded the judge, “and they have reason to blame someone else.”

As for others against whom David allegedly made threats, they are all alive and healthy. That in itself, Diamond maintained, should be enough to demolish the prosecution’s contention that David regularly indulged in violence against his perceived enemies.

But the most incomplete part of the prosecution’s case, he claimed, the biggest flaw of all, was in the fact that there had not been a single witness who could place David and Tim together, particularly not on Good Friday afternoon when the poison apparently would have had to be administered, if it had been administered at all. That, he said, was a “gigantic hole” in the case against David. To Diamond, the fact that the prosecution had not provided testimony linking the two was a significant gap, one so broad that the lack of such proof virtually demanded that David be released. “Justice requires that he be discharged now,” Diamond insisted.

However, the defense attorney seemed only to be going through the motions; in his heart he must have known that Judge Hunter was going to do no such thing. Even without the inmate testimony that Lewis had used with such effectiveness during the preliminary hearing in Pasadena, Giss and Rogan had made the only point that was required of them in such a proceeding: They had provided probable cause for David being tried for Tim Waters’s murder.

Seemingly certain that Judge Hunter was not going to allow David to walk out of the courtroom, Diamond had an alternative suggestion ready, one that would bypass completely the entire question of David’s possibly having murdered Tim Waters: Diamond suggested that Hunter simply declare that he did not have jurisdiction in the case, thereby bringing a speedy end to the proceedings.

“There is no evidence that David Sconce ever came to this county,” Diamond argued. “Tim Waters became ill in Malibu or, arguably, Burbank,” both of which are in Los Angeles County. What he was asking Hunter to do was send the case to Los Angeles County, where the whole process would have to be repeated provided the prosecution had the will to continue the fight. If Hunter were to accept Diamond’s argument, he could free David on jurisdictional grounds without having to consider whether the evidence was strong enough to justify David’s being bound over for trial.