Compelling Evidence (17 page)

Municipal court of C County, department 17, is now in session, the Honorable O'Shaunasy presiding."

Those in the aisle scurry for seam O'Shaunasy whisks out of chambers and ascends it u Itht nw the bench, a flash of swirling black robes and , .

early thirties, she is the latest rising star on the muni bench. "We have a few preliminaries , says O'Shaunasy. There is some minor jostling that follows, C eft, A fc and in the affected erudite English of an ag ng Ze rcake:, . have launching a number of pretrial motions. These e been by Cheetarn and Ron Brown. They are aimed at excludin dence‐4he carpet fibers found at Talia's house and some s cartridges seized in Ben's study. Nelson rises to the occasion, citing chapter and verse the case law for the proposition that a search warrant wasn't necessary.

"Mrs. Potter," he says, "consented to the search." Then the coup de grace. It seems that Ron Brown, whose role it was to address all prehearing motions, has faded to inform Cheetam of the court's forty‐eight‐hour rule. Cheetam has blown it, delivering his motions to the DA that morning. O'Shaunasy is clearly angered by Cheetam's cavalier attitude toward the local rules of court. Parochial as these may be, their willful violation is the fastest way to alienate a local judge who helped write them. Cheetam pounds the table and speaks of the seriousness Of the charges against his client. O'Shaunasy puts up a single hand to cut him off. "Mr. Nelson is right. The evidence here points to consent for the search. I've read your points and authorities, Mr. Cheetam. I see nothing in the facts which would lead me to conclude that the police had begun to focus suspicion on the defendant at the time that they visited her home for this inquiry. Is there something I don't know?"

Cheetam stands, confronted with the law. Unable to say "yes" for want of anything to follow it with, and unable to say "no" for fear of losing on the issue, he says nothing. "On this issue, this one time, I will overlook your clear violation of the forty‐eight‐hour rule, Mr. Cheetam.

Do not do it again. Do you understand me?"

Cheetam nods like a schoolboy. "But on the merits I find that the search was pursuant to the defendant's consent, without duress and before she became the focus of suspicion in this case. Your motion is denied."

The only one moved thus far by Cheetam's strategy and argument, it seems, is Talia, who appears almost terrified that the first blood shed in this battle is her own. Contrary to all that I have been led to expect by Sam Jennings, Nelson is an imposing presence. He projects just the right mix of authority and public benevolence. The state calls its first witness, Mordecai Johnson, an aging detective with a balding head of gray. Johnson is one of two evidence technicians called to the scene at Ben's office the night Of the killing. He testifies about the hair follicle found in the locking mechanism of the shotgun, and links it not exclusively but close enough to Talia to be damaging. "Consistent," he says, "in all respects with hair samples from the head of the defendant, Talia Potter."

Johnson labors only briefly over the blood in the service tor‐just long enough to establish the direction of travel with' body, and raise the implication that Ben was already dead he was carried into the office.

Nelson's finished with the witness. Cheetarn takes hilt', cross. Science has yet to devise a universally accepted for identifying the hair of a specific individual. Cheetam to get this admission from the witness.

"Then you can't say with scientific certainty that the hair in the locldng mechanism of the shotgun @ctually belonged to Potter?"

"No," concedes Johnson. "Only that it is identical in all characteristics to samples taken from the defendant." He the pike in a little deeper. For all of his famed pizazz, Cheetarn is notoriously slow feet. With no question before the witness, Johnson is give a quick and dirty dissertation on the characteristics the pigment in the cortex, the thin medulla, all i@e nliccuml sample from Talia's head, he says.

Cheetam fails to t All the while O'Shaunasy's taking notes. I'm scrawling my own on a yellow pad. Cheetam counsel table to look at the forensics report. I push my his nose like an idiot board. He pages idly through the a second while glancing sideways at‐my note, then witness.

"Mr. Johnson, do you know where the shotgun fo scene was normally stored or kept?"

"I was told, by Mrs. Potter and others, that that weapon was usually kept in a gun case in W. Potter's

"At the Potter residence?"

"Thavs correct."

"Then would it be unusual, given the fact that this stored at the Potter residence, that a single strand of belonging to Mrs. Potter might be found on twhis we The witness looks quizzically at Cheetam. "I mean, wouldn't it be possible that such a might be carried through the air, or could have been., on the gun when the case was being cleaned or Pottert

"I suppose," he says. "So it's entirely possible that this strand of hair could have been on this weapon, caught in the locking mechanism, long before the day that Mr. Potter was killed, isn't it?"

"Possible," says the witness. "Nothing further of this witness, Your Honor."

I tear the page of notes from my pad and crumple it. They won't make much of the hair at trial, I think. Ballistics comes on next. The witness, an expert from the state department of justice, testifies about the weight and size of the various shot pellets found in the victim and in the ceiling of Potter's office. He talks about velocity and the trajectory of the shot that took off the top of Ben's head. The witness nibbles around the fringes of the monster pellet without actually stating that there was a second shot. Nelson is digging a pit and covering it with leaves. Cheetarn rises to cross‐examine. He pops a single question. "Officer, is it not true that the trajectory of the shotgun pellets from the shot inflicted to the head of Mr. Potter were in fact consistent with a self‐inflicted woundt' "It's possible," says the witness. "Thank you." Cheetarn sits down. I can't believe it.

Cheetam's running on the theory that Den committed suicide. He hasn't read the pathology report, the fact that Potter's hands tested negative for gunshot residue. I can just hear Nelson on close: "And how does the defendant explain the lack of any fingerprints on the shotgun?"

The next witness is Willie Hampton, a young black man, the janitor who heard the shotgun blast and discovered Ben's body in the office. Nelson has some difficulty getting Hampton to repeat accurately the details he provided to police the night Ben was killed. "Mr. Hampton, can you tell this court approximately what time it was when you beard the shot in Mr.

Potter's officet' I was doin' the bathroom, the men's room, down‐the haff," be says. "Ali say it were maybe ..." There's a long pause as Hampton tries to conjure up the details in his inind. Nelson, Ming trouble, stops him. "Ma be this will help. Do you remember talking to a police y who questioned you later that evening?"

"Ah do. Ah do remember," he says. "And do you remember telling that officer that you heard the @@'@Yll in Mr. Potter's office about eight‐twerity‐five F,.M.T' "Objection, Your Honor. The question is leading." AM6711N‐ 71 on his feet. "Sustained."

"Ali remember," says Hampton. "I heared that shot about 4 11 @_u twenty‐five. It were about twenty‐five minutes after eight o',4 VT I remember cuz I was doin' the bathroom and I always do bathrooms about that time."

Wilhat's all with this witness." Nelson has what he wants. will stiffen it with evidence that the police phone call from Hampton before eight‐thirty. Cheetarn passes on any cross‐examination of the witness, we break for lunch. In the cafeteria, over a salad with lettuce browning at the 6,ot' I'm pounding on Cheetam, telling him to drop the iikoiff, nario. Talia's listening intently, swirling the tip of a plastic in a small container of yogurt. She is playing with it eating. "What's wrong with it?" he says. "The state's gotta If that the victim died as a result of criminal agency. move in the direction that it was a suicide, there's no ‐"0 agency. "There's only one problem; it doesn't square with 1; 1, dence," I tell him. This, it seems, is lost on F him through the GSR tests and the lack of er's the gun. All the while Talia is watching the two of us bicker. of foreboding is in her eyes, as if to say, "if my agree, what hope@ is there for me?"

"Potter was wearing a suit coat when he died," J‐0, wi

"What if he used

the bottom of the coat to grip the of wrapped the barrel in the coat?

This would ‐4,1 absence of prints on the gun and the lack of hands."

It is lame in the extreme, insufficient to overcome I of suspicion that has begun to settle on Talia. "And how did he carry the gun to the office and I ask. "May be a gun case," he says, or a blanket."

"Then why wasn't the case or the blanket found 1, ,V@ And how do you explain the fact that the cartridge in didn't carry Ben's prints, if he loaded it himself?" A "I : "I don't know, maybe he used gloves." He looks at me, pushing his plate away. "I need a cup of coffee," he says, and leaves Talia and me sitting at the table alone. In recent days Talia has taken on the look of a trapped animal, small and frightened.

"There's no way out of this, is therct' she says. "I'm going to have to stand trial in Ben's death, aren't P"

"11 doesn't look good," I concede. She looks out the window for a moment, giving herself time to absorb this news. Then she turns her gaze to me. "Will you stay with me?" she says. "Will you continue to represent me?"

At this moment she is completely vulnerable. I consider the mountain of incrimination rising up before her and my mind fills with images of the death house. Only now it is not Brian Danley twisting and writhing under the straps, but Talia. "I will," I say. "I will stay with you as long as‐ I can help, as long as you want me."

She says nothing, but slides a hand along the table and takes mine. She squeezes. We are finding, I think, at long last a point of equilibrium for us, somewhere between animus and lust. In the afternoon Nelson calls George Cooper to the stand. Cheetarn refuses to stipulate to Coop's expertise as a pathologist. One open‐ended question from Nelson, and Coop begins to narrate his curriculum vitae into the record. O'Shaunasy is fuming on the bench. Ten minutes pass and finally she cuts him off.

"The man is qualified to testify as an expert on issues of medical pathology. Do you have any specific objectiont' She looks over her glasses at Cheetam. "No, Your Honor."

"Thank God for little favors," she says. Coop looks at me obliquely from the witness box and smiles, a little Mona Lisa. This is ‐the same look he uses when we play poker. Coop has one of those stealthy expressions that can mean anything from an inside straight to a pair of deuces.

Nelson wastes no time leading his witness into the well‐charted waters of lividity. I suspect that Coop has kept his own counsel concerning our early conversation on the point. It is ancient history now, as the details were well covered in his report which Ome with discovery. Coop talks about gravity and the flow of blood, the indisputable JLT@ that the body was moved after death. Cheetam leans toward ine. "Was this in the report?" I nod. There is a sober expression on his face as he sees his sui theory turning to dust. "Dr. Cooper, can you tell us the cause of death?"

"Death was caused by a single bullet or bullet fragment lodged in one of the victim's basal ganglion. This produced," Coop, "almost instantaneous death."

There follows, for the benefit of the court, a brief explana using anatomical drawings, to show the location of the fragment. "This is a major nerve center at the brain stem," says C "This is where nerve cells connect td1he cerebrum and from down the spinal column to the rest of the body. If this nerve is destroyed or disrupted, vital life functions stop."

"And thats what occurred here?"

"Yes."

"You say a bullet caused this traurna to the victim' s ganglion. Do you mean a shotgun pellet?"

"No. I mean a bullet, probably small‐caliber, fired victim s head, probably at close range."

There's a stir in the courtroom. Reporters in the front tw are taking copious notes. Nelson pauses for a bit of dramatic effect, as if he is this revelation for the first time. "Doctor, can you tell us the time of death?"

Coop consults his notes, a copy of the pathology re

"Between seven P.M.

and seven‐ten P.M.," he says. it at seven‐oh‐five P.M."

"How can you be that preciset' "A number of procedures," he says. "The secret is to body soon after death. The various degrees of rigor tell you something. Lividity itself will give you some the skin blanches when pressed, turns white, the blood, to coagulate. This would mean that death occurre than half an hour of the examination. If the bi st sta pressed out of the capillaries, the skin will ay y tone when pressed.

The victim has been dead long I was able to take the temperature of the liv . Thi i@l. well insulated by the body. It's not subject to rapid variations of the outside atmosphere. In this case, I w it a precise means of determining the time of death."

I see. Then is it your testimony, doctor, that Benjamin Potter was shot in the head by a small‐caliber firearm sometime between seven P.M. and seven‐ten P.M., and that it was this wound that resulted in deatht'

"Yes.,$ "Then is it safe to say that the shotgun blast heard in Mr.

Potter's office was not the cause of death?"

"That's correct," says Coop. There's more stirring from the audience.

Two of the reporters leave, probably to telecast live news shots from their vans parked in front of the courthouse. Nelson now heads into the imponderables, the caliber of the small round and the distance from which it was fired. Coop explains that the answers to these questions are less certain since the bullet was but a fragment, and any tattooing that might have been left on the skin from a point‐blank shot was obliterated by the massive shotgun wound. It is Coop's opinion, stated to the court, that the bullet that caused death was itself fragmented by the shotgun pellets as they entered the brain. "The shotgun blast," he says, "in all medical respects, was an unnecessary redundancy."