Alibi (52 page)

“Not in the near future. The bureau predicts clear skies tomorrow but the commissioner sent out a memo today saying the next two weeks are looking pretty nasty. The uniforms were already going over their state of emergency protocols—which means no parking along designated major arteries, hospital closures, school closures and all the chaos that goes with it.

“A few winters ago, on Christmas Eve,” Joe went on, placing his feet on the coffee table as well, “I attended a case where a five-year-old kid got into his daddy’s snow-covered car and decided to play cops and robbers. He put the key in the ignition and ran the car for a coupla hours. But since the exhaust was buried under two foot of snow, he managed to poison himself with the carbon monoxide and . . .”

“Oh God,” said Sara.

“Merry Christmas,” said David.

“And a Happy New Year,” said Joe.

They were depressed. There was no other word for it. Seven of the jury had been confirmed—four women and three men—and five of the seven were married with kids, and all three of the men were working-class.

They still intended to target H. Edgar Simpson, but they knew the evidence against him was weak. Worse still, they had no idea as to the nature of Katz’s ace in the hole, which, if as good as the Kat seemed to think, could well blow them out of the water before they had a chance to point the finger at anyone—let alone the witness who delivered the case to the Commonwealth, hook, line and sinker.

The papers before them, including the horrific photographs of a deceased Jessica Nagoshi, were like graphic reminders of their impending defeat, taunting them with what they could see, and more to the point what they couldn’t—what had to be there, but wasn’t; what they knew, but could not prove.

David lifted his arm from around Sara’s shoulder and leaned forward to pick up one of the shots—a close-up of Jessica’s face and neck, her skin gray, her lips blue, her neck extended at an ungodly angle, circled by the marks of an unidentified monster.

“This is Katz’s ticket right here,” he said holding up the macabre image. “I can tell you exactly what he is going to do. He is going to blow up a shot of a smiling, healthy Jessica and juxtapose it with
this,
” he said, shaking the gruesome portrait in his hand. “The thing is,” he went on, “I look at this and I want to kill the bastard who did this too.”

Sara put her hand on his back, and Joe nodded.

“If Simpson or Nagoshi did this, David,” said Joe, “I promise you that Frank and I won’t stop until we find the evidence against them.”

“I know,” said David, still mesmerized by the photograph. “But I . . .”

And then he saw it. Just like that. It was there, or rather it wasn’t. He picked up another shot taken from behind, in a desperate need to confirm what he thought he saw. How could he have been so stupid? How could he have missed it?

“Jesus!”
he said at last.

“What is it?” asked Sara, leaning forward to look at the images in David’s hand.

“Can you stand up, Sara?” he said as he pointed to the middle of the room. “And can you put your hair up? And turn around. Thanks.”

“Ah . . . okay,” she said, grabbing an elastic band from the table to twist up her hair before moving around the coffee table and turning her back on David to face Joe.

“Don’t move,” he said before running to the kitchen and rifling through the top shelf of the narrow refrigerator. He moved to the sink beyond Sara and Joe’s line of vision before returning to the living room, his hands out before him.

David’s next move took Sara by surprise. He moved forward, quickly, and grabbed her long narrow neck with his large hands. “Ouch,” said Sara.

“Sorry, but I . . .” David removed his hands, the purple grape juice he had poured all over them, leaving their mark on Sara’s neck. He asked Sara to turn around to face him while Joe moved to the side table to switch on a lamp before jumping over the coffee table and standing next to David.

“Shit,” said Joe as David held the images of Jessica Nagoshi up next to Sara’s face.

“What?”
said an obviously frustrated Sara, not able to see what was now so clear to the other two in the room.

“I can explain . . . it’s just . . . can you turn around?” said David. “Slowly.”

And she did—as David looked at Joe.

“Matheson didn’t do it,” said Joe.

“It is a physical impossibility,” said David.

“Does this mean we can prove our client is innocent?” asked Sara.

And then David smiled. “Beyond all reasonable doubt.”

“No,” said Boston City Medical Examiner Gustav Svenson. Gus was a man of few words and David knew he would reject his first question outright.

“Wait, Gus. Hear me out.”

“Yes,” said the blond, six-foot-four Swede. “But before I hear, I repeat what I said many weeks ago when you ask me the same question.”

David nodded, knowing he had to play this Gus’ way.

“I refer you to
Journal of Forensic Sciences
, Volume 51, Issue 2, dated March 2006, pages 381 to 385,” Svenson began. “Using techniques adopted from forensic odontology, a study was conducted that tested whether researchers could match the correct hands to fingermarks left on the neck of a simulated strangulation victim.

“Blue paint was applied to the fingers of twenty-one men, who then grasped the neck of a dummy and applied pressure similar to that necessary to achieve strangulation. The dummy’s neck was constructed so that it had same compliance and consistency as a human neck with human skin.”

David turned his hands in a circular motion, willing Gus to speed it up.

“When fingers pressed into latex-like material, an imprint remained. The blue paint on the fingers of participants preserved the prints. The imprints on the dummy’s neck and participants’ hands were photographed, and all images were uploaded on a computer, sorted by imprints and hands.”

“Okay, Gus,” said David, now shaking his head as he took a seat on Gus’ white laboratory stool. “You told me this two months ago, when I asked if we could lift prints from the girl’s neck. But now I am asking something different. Now I want to know if . . .”

“Ah . . . ,” said Gus, holding up a finger. “I am not finished.”

David shook his head before dipping his hand as if to say: “Go right ahead.”

“Researchers were unable to make any correct match of a participant’s hand with the imprints left on a dummy’s neck. The study found that the matching of hands to finger marks is difficult and inconclusive.”

“But,”
countered David, lifting up a finger, “in four cases they matched the imprint with several hands, meaning they were able to eliminate certain hands simply because of their size.”

Gus shook his head. “So you are not trying to find a print?”

“No!”
said David.

“Then why not say this before?” said Gus in earnest. “Tell me what you want.”

Gus was a good man. Forthright and fair. And while he lived and died by the boundaries of logic and science, he was also open to new possibilities especially, David suspected, if it meant reminding Roger Katz of an ME’s professional responsibility as an independent analyst with no legal bias or predisposed opinions.

Gus had too much class to voice his own opinion of the demanding ADA, but David was aware of the Kat’s repeated attempts to get Gus to sway his way, and his tendency to blame Gus and his fellow examiners for setbacks or losses at trial. And so while David knew Gus would not bend the rules on his behalf, he believed he may agree to lean on the side of restraint when it came to providing information the ADA should be seeking individually. In other words he was hoping that what he was about to propose would remain in this laboratory. Giving David his own ace in the hole, guaranteed to trump whatever Katz had up his sleeve, hands down.

David began by showing Gus the shot of Jessica Nagoshi and describing the impromptu experiment he undertook in his own living room late the night before. He highlighted the finger marks on the front of Jessica’s neck, which led the ME to conclude the girl was strangled from behind, before showing him the second image of the murdered girl from the back.

“I do not understand,” said Gus. “What point is it you wish to make? My information is correct, the girl was attacked from behind. If strangled from the front the thumb impressions would be at the front of the neck, like so,” Gus held out his hands to form a circle as if grasping David’s neck front on.

“I don’t disagree,” said David. “But if strangled from behind you would get the opposite—finger impressions on the front and thumb impressions on the
back
.”

“Yes. Fingers front just as the image shows, and the other one, from behind, it . . .” But then Gus saw it.

“The thumbs,” said Gus with an intake of breath. “They are not there. They should be at the back of the neck, here.” He pointed at the second shot.

“That’s what I thought,” said David, hoping to lead the ME where he needed him to go.

“But they are at the side,” Gus went on. “Here,” he pointed again. “They do not reach far enough around to . . .”

“My client’s hands are the same size as mine, Gus,” said David, now standing in front of the ME, holding up his hands for Gus to see. “They are large, thick, broad. But the hands that did this,” he said gesturing at the images, “they are . . .”

“Small, slender, slim,” said Gus.

“And so . . .” David began, needing to hear it again, needing to know that this was the ME’s official medical assessment, the same assessment he would be willing to back up in court, for each and every member of their “imperfect” jury to hear. “. . . just to clarify, it is your learned professional opinion that . . .”

“That the hands that killed your victim are below average size,” finished Gus, still staring at the two shots before him. “A man with larger hands would have extended his thumbs to the top of the spinal column at the base of the back of the neck. I am sorry, David,” he said, lowering his eyes. “I should have found this sooner.”

“No, Gus,” said David, unable to suppress the beginnings of a smile. “It’s not your fault.”

“Of course there are discrepancies,” Svenson went on. “This is not an exact science. It is conjecture based on what we observe. But not everything is a mystery, David. In most cases the truth is there for us, plain and clear, as long as we are willing to see.”

Roger Katz was in his element. Ten down and two to go. It could not have gone better. The jury so far was a prosecutor’s dream—six women and four men, the majority public school educated, blue-collar workers with kids ranging from ages two to twenty. Two of the ten were black, one Hispanic and even better, praise God, one of Japanese descent!

It was as it should be, he pondered as he sat high and mighty at his desk on the right-hand side of the courtroom, waiting for Stein to return from their late luncheon adjournment. He had, as fortune would have it, realized at a very early age that opportunity was there for the taking; it was a perfectly straight road from
here
to
there
as long as you weren’t stupid enough to get diverted along the way. But that is what happened, time and time again, as millions upon millions of supposedly intelligent moralistic morons slowed their own path by meandering off course to assist those less fortunate. Morons like Cavanaugh and his pro bono princess girlfriend, and their poorly groomed boss who, even now, was stooped in a huddle with Katz’s prized kill.

He smiled. His right eye still smarted from Cavanaugh’s pathetic muscle flexing blow some weeks ago—an attack to which he did not retaliate because he was focused enough to realize that any physical retribution would be below him. As AG Sweeney had so aptly put it in a private conversation later that evening, “You are a smart man, Roger, who will not be drawn into the brutish Neanderthal games of desperate attorneys like Cavanaugh. Your victory will be won in the courtroom, not the boxing ring. And that, my friend, will be the greatest victory of all.”

And so, as Stein entered the room, the clerk calling for order, Katz turned his head to smile at Sara “Beyoncé” Davis. The look she returned was nothing short of abusive but he found even that amusing, or more to the point, stimulating, which, considering his mood, was just icing on the cake.

“Juror number fifty-two,” said Stein, cutting to the chase, Katz now on his feet ready to move another one of his little toy soldiers into his growing battalion of twelve.

“Thank you, Your Honor,” he said with a flourish, knowing that the best was yet to come.

Later that afternoon, Roger Katz made his first mistake, or rather two mistakes in a row. He used his last peremptory strike to veto a thirty-year-old electrical engineer and MIT grad named Michael Davenport. Tall, slim, with slick fair hair and fashionable glasses, Davenport looked like a walking, talking prototype for the defense—handsome, college educated, a state water polo champion with a furniture magnate father. In fact, he looked so perfect that Katz had obviously made the decision to strike him before he even took the stand, producing Davenport’s questionnaire and telling Stein he wanted to use his third and final challenge to remove this juror on the grounds that he had a cousin who had once attended Deane. The fact that the cousin was now forty-five and would have graduated when Matheson and his friends were still in diapers was obviously not a consideration. However, Katz did manage to convince the judge that his objections were valid, and within seconds Mr. Davenport was walking out the back door and on his way back to his $150K a year career. And Phyllis Vecchio could not help but smile.