Dante's Poison (14 page)

“With regard to the first area, what have these studies found?”

“Well, as you might expect, when the investigating officer himself conducts the lineup, as Detective Yanowski did here, there's a significant risk that he will provide subtle verbal and nonverbal clues that lead the witness to identify the suspect the police already have in their sights. For example, when the witness is lingering over a particular photo, a statement along the lines of ‘take your time and make sure you look at all the photos' can lead the witness away from a filler and toward the administrator's desired choice.”

“Are you saying that the police do this on purpose?”

“It doesn't have to be on purpose. It can be, and probably most often is, completely inadvertent. But it has led researchers to conclude that the best practice—and I'm not joking when I use this term—is a double-blind procedure in which neither the lineup administrator nor the witness knows the suspect's identity. The studies I've cited also conclude that the rate of mistaken identifications goes down significantly when the lineup is conducted sequentially rather than simultaneously.”

“Have these studies offered a reason why?”

“Again, it gets back to human nature. In a simultaneous lineup, witnesses tend to use ‘relative judgment'—that is, they compare lineup photos to each other, increasing the risk that they will choose whoever looks the most like the person they remember. Sequential lineups require witnesses to use what's called ‘absolute judgment,' comparing each individual they see to their actual recollection of the suspect. In laboratory studies, using a double-blind, sequential technique results in identifications twice as reliable as those obtained from the lineup procedure Detective Yanowski used here.”

“Are there any other factors that cause you concern about the lineup procedures used by Detective Yanowski?”

“Well, it's not a concern about the lineup, but the research we've been talking about also suggests that when the lineup doesn't contain the actual perpetrator, young children and the elderly make mistaken identifications at a much higher rate than other witnesses.”

Hallie then moved in for the wrap-up we had planned. “Just to be clear on this, are you saying that Mrs. Van Wagner was lying when she identified Jane Barrett as the woman she saw entering the deceased's home on the evening of August twenty-sixth?”

“Absolutely not. All I am saying is that, because of the way the lineup was conducted and due to Mrs. Van Wagner's age, there is a statistically significant chance, perhaps as high as twenty percent, that she mistook Ms. Barrett for the woman she believes she saw that night.”

“Thank you, Doctor,” Hallie said primly and sat down.

I actually felt sorry for Frost when he rose to conduct my cross-examination. He took several steps in my direction before deciding to keep a safe distance and returning to the safety of the lectern, where he ruffled some papers a good two minutes before proceeding.

“Um, Doctor, these studies you mentioned. Did you, uh, conduct any of them yourself?”

“No. As you might guess, I'm not very handy with photographs. Though, now that you mention it, it could be the ultimate double-blind—or if you like, triple-blind—procedure.” I smiled to let him know I wasn't being serious.

Frost giggled nervously. “Ah, yes. Yes, I guess it could be. Um, so . . . how many of them are there? Studies, that is.”

“Several dozen,” I answered. “All conducted in the last several years.” Frost had given me an opening to go on, but I didn't want the judge to think I was taking advantage of the situation. And I was feeling sorry for Frost, who was plainly discombobulated by me.

“And, uh, have there been any contrary findings?”

“A few,” I admitted. “But none without flaws in their methodology that have led most researchers to question their results.”

“So, uh, did any of these last studies involve a double . . . I mean, a double . . .” He stopped, unable to get the word past his lips.

“Blind?” I offered, to help him out.

“Yes, yes,” Frost agreed. “Double-bbblind,” he sputtered at last, sounding on the verge of tears.

“Is that a question, Counsel?” Judge Cudahay interjected, more out of kindness than impatience. “Because the afternoon is getting old.”

“No. I, uh . . . I have no further questions,” Frost sighed abjectly, before retreating from the lectern like a dog that's just been kicked.

“Redirect?” the judge asked Hallie.

“None, Your Honor.”

“Good,” the judge said. “The witness is excused. And thank you, Doctor Angelotti, for that very
enlightening
testimony,” he said, clearly impressed with his own wit.

“Don't look so pleased with yourself,” Hallie whispered in my ear as I reclaimed my spot next to her. “We still have our work cut out for us.”

After all the hoopla that preceded them, the closing arguments were remarkably short.

Frost structured his around the tired old saw of “means, motive, and opportunity.” Jane had the means to murder Gallagher because of her ready access to a large quantity of Lucitrol, which she hadn't even attempted to hide when the police showed up. Yes, it was true that the drug could be obtained by almost anyone, but it was highly suspicious that Gallagher had been poisoned in this manner immediately following Jane's victory in a civil case hinging upon Lucitrol's fatal propensities for persons with a preexisting heart condition. Jane knew about Gallagher's health issues because the two of them had been intimate for years—a fact the defense did not deny. As a former prosecutor she also would have been aware of the medical examiner's policy on autopsies, which she must have calculated would permit her crime to go undetected. What Jane hadn't counted on was the exhumation of the body, which, “like a footprint left at the scene of the crime,” created a trail leading directly back to her heinous deed.

In Frost's view, motive too was simple. It was the oldest one in history: a middle-aged woman's rage at being rejected by her lover of many years in favor of a much younger rival. Regardless of what Gallagher had told Jane that night, several witnesses could attest to the fact that he and the defendant had been arguing, and that she had physically assaulted Gallagher before stomping off to lick her wounds. Her plainly overheard words—“you won't get away with it”—supported the prosecution's theory that Gallagher had followed through on his intention to break off their relationship, as did the repetition of the name “Lucy,” which could only have referred to Gallagher's fiancée and the soon-to-be-completed nuptials. The defendant's ire upon being dumped in favor of a more youthful bride had found further expression in the vindictive destruction of Gallagher's records, carried out by Jane later that night and confirmed by the statement of an eyewitness, a retired public servant whose integrity was above reproach.

Last was opportunity, which came down to the fact that Jane had shared drinks with Gallagher that same night and could easily have slipped the pill into the carafe the two were sharing while Gallagher was distracted or not paying attention. Frost reminded the court that a drug like Lucitrol would have no ill effect on a healthy subject like Jane, even while it worked its insidious damage on her lover. In Frost's view, Jane had come up with an ingenious murder plan using a substance that both could consume in full view of others but that would be poisonous only to Gallagher. Indeed, it was probable that the defendant had chosen a public place to carry out the offense precisely for that reason, and had intentionally dumped the contents of the carafe over Gallagher's head to ensure that the evidence would never be discovered. Frost finished with a flourish, pointing out that only a former prosecutor would have been capable of planning what was nearly the perfect crime.

I had to give Frost credit. Though I wanted to think otherwise for Hallie's sake, this last set of conjectures had started me down the path of wondering whether Jane might really be guilty. Granted, the alleged motive for the murder seemed silly—it was hard to believe that such an accomplished woman would regard a two-bit showgirl as any kind of rival—and the theory depended on Jane having decided in advance to poison her lover, or she would not have come to the restaurant that night already armed with the Lucitrol that killed him.

But if Frost was right about what had taken place, the scheme was virtually foolproof. It would require a razor-sharp intelligence to devise it, and I had no doubt that the mysterious presence seated only a few feet from me—a woman who, though reportedly cold and haughty in ordinary life, could turn on the charisma required to bring a jury to tears—would have had the stage presence to carry it off. Viewed from one angle, the theatrical emptying of the carafe over Gallagher's head undercut Frost's theory, since a Jane bent on murdering her lover would have no reason to call further attention to their clash. But if she hadn't been sure how quickly the Lucitrol would take effect, the ploy had been brilliant, guaranteeing that the critical evidence would be mopped up long before Gallagher crashed to the ground in death.

Whoever had murdered Gallagher had counted on his demise looking exactly like what it initially appeared to be: the sudden heart attack of a man well known for his excesses in food, nicotine, and drink. If so, the poison had been selected carefully and with precisely that guise in mind. Who else besides Jane would have been familiar with the drug's black-box warnings? And who else besides her would have known that the medical examiner was unlikely to perform an autopsy? I was sure there were others who fit both descriptions, but it was all too neat, including the fact that whoever had fed the Lucitrol to Gallagher would almost certainly have gotten away with it but for the request to dig up the body. Which raised another question: exactly who or what had led to that request? And what was in Gallagher's computer files that so urgently needed to be disposed of, by Jane or someone else? I made a mental note to raise all these questions with Hallie.

Hallie, meanwhile, had risen to take the stage and was busily ticking off all the reasons why the prosecution's case fell far short of the proof needed to justify a no-bail order. “I needn't remind the court that the object of bail is to ensure the defendant's appearance at trial, and that under both our federal and state constitutions my client must be presumed innocent until proven otherwise. It is only when the prosecution has presented overwhelming evidence of guilt—in the words of the statute, that ‘the proof of guilt is evident and the presumption great'—that bail may be denied. The State hasn't come close to meeting this standard. All of its arguments are pure speculation. There isn't a single piece of evidence linking Ms. Barrett to this purported crime.

“The State's surmise that my client must have poisoned the deceased is built on two utterly flimsy foundations. First, that Ms. Barrett had access to samples of Lucitrol in connection with her defense of its manufacturer, Atria, in a recent civil matter. As we have shown, however, thousands, if not tens of thousands of persons in the Chicago area also have access to the drug through their own prescriptions or those of a close relative. The State did not bother to test other medications collected from Mr. Gallagher's apartment to see if he himself may have been taking the drug, and Detective Yanowski frankly admitted he could not prove that my client supplied the Lucitrol ingested by the deceased. Further, Dr. Lubbock was unable to say exactly when the alleged poisoning took place—I say alleged, since Mr. Gallagher may have taken the drug himself—except that it occurred sometime within the thirty-six hours preceding Mr. Gallagher's death, hardly a basis for theorizing that it was given to him on the night of August twenty-sixth.

“The State's only other evidence is the statement of a purported eyewitness who very conveniently was unavailable to be brought before the court so that her recollection could be tested. The court has heard the testimony of Dr. Angelotti explaining how the flawed lineup procedures used by the police might easily have resulted in a false identification. Further, even if the court were willing to assume that Ms. Barrett visited the deceased's home on the evening in question—which she may very well have done simply to collect items that belonged to her—there is no evidence that it was she who destroyed his computer records. The State surmises that my client was on a rampage to erase evidence of the deceased's involvement with another woman but is unable to produce a shred of proof that Ms. Barrett knew, or even cared, about Mr. Gallagher's engagement to Ms. Sparks, or that she had any other cause for concern about what was in his files. In short, the State's second foundation for accusing my client of murder is as riddled with holes as the first.

“I might also remind the court, since the State has seen fit not to address the matter, that my client has none of the attributes of a flight risk. Ms. Barrett is a leading member of the local bar with a spotless record, a respected officer of the court with a busy law practice and numerous clients who have the right to be represented by the counsel of their choice while the State neglects its responsibility to seek out the real culprit in Mr. Gallagher's murder—if in fact he was murdered at all. Ms. Barrett will agree to surrender her passport and to seek the court's permission before leaving the jurisdiction should traveling across state lines be required in service to her clients. The State cannot reasonably ask for more. Accordingly, we respectfully request that the court deny the State's petition for a no-bail order and set bond in an appropriate amount, certainly not to exceed one million dollars.”

Whereupon Hallie thanked the court for its indulgence and sat down.

Frost got up and made a halfhearted plea for electronic monitoring, but Judge Cudahay cut him off. “I've heard enough. Bond is set at one million, the defendant to appear in court on October tenth for arraignment and at such times thereafter as the court shall direct. The State's petition for a no-bail order is
denied
.”