Death on a High Floor (34 page)

So Spritz had listened to Jenna’s objection and fixed it himself by vouching in his answer for his own expertise. It was enough, at least to the level necessary for this kind of hearing. Spritz was indeed well down the road from the turnip truck.

Jenna could have renewed her objection on the grounds that Spritz had not testified to specific experience with depressions in carpeting. But, wisely in my view, she made no further objection.

“Was there anything else that led you to conclude that, Detective?” Benitez asked.

“Yes. The presence of some blue-black fibers in the depression. Based on my
experience
, they could have come from clothing.”

I waited to see if Jenna would object that Spritz had not laid a foundation that he had any experience at all in distinguishing clothing fibers from drapery fibers. Or from anything else. But Jenna made no objection, so Benitez had no doubt nailed his intended headline: “
Tarza Suit Fibers Match Fibers in Carpet Where Killer Hid
.
”
The additional “fact” that the fibers supposedly matched fibers from my suit would, of course, be attributed to an anonymous source, no doubt one inside the DA’s office.

Benitez decided to go further and gild the media lily. “Detective, did you later learn whether any comparative fiber analysis had been done on those fibers?”

I could see Jenna tense on the edge of her seat.

“Yes, I did. The LAPD crime lab compared—”

Jenna shot into the air. “Objection, Your Honor! Detective Spritz is about to announce the written results of some unidentified crime lab test. Not the best evidence, not to mention utterly without foundation, not to mention hearsay.”

Benitez rose. “Your Honor, I have the fiber lab report right here, which I can use to lay a basis for the detective’s testimony. It’ll be admissible through him as a record which—”

The Judge cut him off in mid-sentence. “Maybe so, Counsel. But it’s going to be achingly inefficient. Bring in the lab tech who actually did the analysis. Do it that way.” As she said it, her clerk handed her a note, and I saw her glance down at it.

Benitez sat back down. “I have no further questions, Your Honor.”

I was stunned. That was it? They weren’t going to ask him about his interview with me? Or what I said to him at the meeting in my office? Or the blood on my cuff? I felt like a star whose best footage has been left on the cutting room floor.

Benitez was still speaking. “. . . but I’d like to reserve the right to recall Detective Spritz later in the hearing if I need to.”

Judge Gilmore just looked at him. “That’s quite an unusual request from the District Attorney’s office concerning the lead detective on a case. I don’t usually permit such witnesses to testify piecemeal. Too much like a movie shoot. One shot here, one shot there.” She wagged her head back and forth as she said it. Her comment reminded me that Judge Gilmore was married to a movie director. Not a very good one, but a director nonetheless.

“I know Your Honor,” Benitez said, “but this is an unusual circumstance.”

Jenna had said nothing. She was applying a small but important rule of trial lawyering. If the judge is hanging someone, you don’t need to help hold the rope.

I saw Judge Gilmore glance down again at the note.

“Okay, Mr. Benitez,” she said. “Unless there’s an objection, I’ll let you do it this one time. Ms. James, is there an objection?” It was asked in a way that clearly said, ‘I’m really busy right now, please don’t object, I’ll make it up to you.’

“No, Your Honor,” Jenna said. “But if that actually happens, I want to reserve the right to inquire of Mr. Spritz
and
Mr. Benitez what caused the delay. I’d also like the right to split the testimony of one of my own witnesses if I need to.” Jenna smiled slightly as she finished making the second request.

Judge Gilmore smiled back. It was a “nice try” smile, but the smile was a good sign I thought. “You’ve got your first request, Ms. James. We’ll see about the second. Don’t count on it.”

Judge Gilmore had moved the note up, where we could see it more clearly. She was holding it in her right hand and conversing with her clerk while she shielded her mouth from view with the other hand. I saw her motion to the bailiff, an armed sheriff’s deputy who sits at a little desk at the rear of the courtroom. He got up and moved toward the bench. Then she turned to speak.

“Ladies and gentleman, I apologize. There is an unexpected bit of official business I need to attend to. I don’t expect it to take more than a minute or two. There is no need to leave the courtroom, and I expect to resume with Ms. James’ cross-examination of Detective Spritz the moment I return to the bench.”

With that, she got up and went through the door to her chambers, followed by the clerk and the bailiff.

I wondered what official business might require a man with a gun.

Jenna turned to me instantly. The unexpected break was a Godsend. Lawyers love to have a minute or two, before starting cross-examination, to talk to co-counsel or the client. Jenna leaned in close and whispered to me.

“Suggestions
?”

“Maybe we should just let him go, Jenna. He
didn’t hurt us much . . .”

“If this were a jury trial, maybe. But here we can go fishing for free
.”

“The Blob will get to smell any bad fish you pull up.”

Jenna paused a second, considering my point.

“I’m going to fish, Robert. There’s gotta be a reason Benitez only scratched the surface with Spritz
. . .”

“Okay
,” I said.

We both straightened back up.

I looked down at my notes, where I had marked testimony that needed coming back to. It’s my habit to write out the answers an opposing witness has given and circle a word for follow-up or make a check mark in the margin beside something unclear or suspect. I tore the pages out of my tablet and handed them to Jenna. She read through them and smiled when she got to the end, where I had written, in big block letters, “START WITH A LIE, END WITH A BANG.”

It was a tactic I’d taught her. Try to start a cross by catching the witness in a small lie. In the middle, have the witness clarify some unimportant things. At the end, ask the witness about something important that you can’t quite nail him on. If the witness gives an evasive or “can’t remember” kind of answer, a juror will remember the small lie at the beginning and assume the witness is telling a big lie at the end.

Judge Gilmore and her clerk returned to the courtroom. The bailiff was not with them.

“Counsel,” Judge Gilmore said, “please approach the bench.”

I started to get up, and then sat back down. She didn’t mean me.

Jenna got up and walked to the sidebar. Benitez went next. The court reporter followed with her steno machine. It was going to be an away from public ears transcribed session up there. A sidebar, despite what has happened in some highly publicized trials, is unusual. Judges don’t like them, and with no jury present, there’s usually little reason to shield what’s being said. The conference took but a moment. I saw the judge talk, Jenna respond, and Benitez say something animated. Then the judge again.

Jenna headed to the lectern to start her cross of Spritz. She didn’t have time to come by the table and tell me what had been said. As she reached the lectern, she just gave me a tiny shrug of the shoulders. I took it to mean the conference had been neither here nor there.

“Detective Spritz,” Jenna said, “you testified that Detective Apple told you,” she consulted her notes, “that, and I quote, ‘Defendant told him he had found the body when he arrived at work at about 6:00 a.m. and knew of no one nearby who was a threat.’ Is that correct, Detective?”

“Yes.”

“Did Detective Apple tell you anything else that Mr. Tarza had told him?”

“Huh. Now that I think about it, I think maybe he did.”

“What would that be, Detective?”

“He said the defendant told him he didn’t do it.”

“Thank you.” Jenna cast a quick glance at me. I shook my head. I was confirming her instinct:
Don’t ask Spritz why he forgot to mention it before
.
Don’t touch it
.

Asking him would create a hole through which an experienced witness like Spritz would drive a truck. He’d say something like, “because I have been so overwhelmed since then with evidence of the defendant’s guilt, it just drove his self-serving statement clean out my mind.”

Let Benitez try to fix the problem on redirect if he could, and if he dared.

Jenna simply moved on to something else.

“Detective, let me turn to the ‘depression’”
—
she raised both hands and used her fingers to depict quote marks around the word—“in the rug. Do you know if a picture of it exists somewhere?”

I knew she was asking because, despite the death penalty threat Drady had made to me in the squad car, we had been unable to locate such a picture in the murder book or anywhere else, and the police had simply said they were still “looking.” Indeed, Spritz was the only one who had mentioned anything about a carpet depression in a written report.

“No, I don’t know if a picture of it exists somewhere.” I noted that Spritz had carefully chosen to give an answer that mimicked the exact words of the question. Always an invitation to ask more questions. I could see Jenna thinking what to ask.

“Detective, does it surprise you that no picture exists, at least so far as you know?”

“Yes, it does.”

“Why is that?”

“Because I asked that one be taken.”

“Who did you ask to take it?”

“I asked Officer Wong to get it done when the crime scene team arrived.”

“So she failed to do that?”

“No, I believe she did instruct the crime scene photographer to do so. But my understanding is that by then the crime scene and coroner’s representatives had already obliterated the depression by walking on it.”

I laughed quietly to myself. We had been had. Without a picture of the depression, there was no chance in hell of any jury buying a lying-in-wait special circumstance count. No matter how vehement Spritz was about having seen the depression himself and no matter what kind of fibers were in the carpet. They had bluffed us out. And used the bluff to scare me into this early prelim. At least I’d thrown up on them in the course of their duplicity. I waited to see if Jenna was just going to leave it, or go for more. I might have left it. She decided to see if she could hang the error on Spritz.

“You had delegated Officer Apple to tape off the crime scene, right?”

“Yes. Earlier.”

“Did you tell him to tape off the supposed carpet depression as a special area?”

“It wasn’t a supposed depression,” he said.

She was getting to him.

“Whatever. Did you tell him or not, Detective?”

I had to suppress an actual giggle. I could never have gotten away with using the “w” word in open court. Jenna is of a generation that can. Although it wasn’t very professional of her to use it. On the other hand, Jenna had learned to let her professional demeanor slip once in a while. Sometimes to wonderful effect. Here, it was a way of verbally rolling her eyes.

Spritz had still not answered Jenna’s question. He was just sitting there. She asked him again.

“Did you tell him or not, Detective?”

“No, I didn’t.” There was no audible sigh, but I thought I saw the ghost of one in his breathing.

“Did you forget?”

“I did not forget.”

“How did it happen, then?”

“I assumed he would
know
to do it, because I had pointed out the depression to him earlier and remarked on its importance. He is a trained professional.”

Jenna walked back to our table and picked up a folder. She was intentionally in no hurry. She paged through it, pulled out three sheets of paper, and walked back to the podium.

“Your Honor,” she said, “Mr. Benitez and I have pre-marked certain exhibits and stipulated that they can be admitted into evidence upon presentation. I now offer in evidence Defendant’s pre-marked Exhibit 26, which is Officer Apple’s written report of his activities on the day of the murder.”

I looked over at Benitez. He was riffling through his own folders, apparently looking for his copy of Defendant’s 26. Jenna looked over at him. “You have it, Charlie?”

“Yeah, I do, Jenna,” Benitez said.

“May I approach the clerk to lodge the exhibit?” Jenna asked, directing her question to the judge.

“Yes,” Judge Gilmore said. She didn’t look particularly interested in any of this.

Jenna walked up to the clerk, sitting at a desk to the Judge’s left, and handed her a copy of Defendant’s 26. Then she passed a duplicate up to the judge and returned to the podium. “I move the admission of Defendant’s 26.”

Judge Gilmore looked at Benitez. “Any objection?”

Benitez did what I call the mini-rise of respect. He elevated himself ever so slightly from his seat. Maybe two inches off the chair. “No objection.”

Judge Gilmore gave the document a cursory review. Two seconds, if that. “Defendant’s 26 is admitted into evidence without objection,” she said. I watched the clerk make a notation in the evidence log.

“May I approach the witness?” Jenna asked.

“You may,” Judge Gilmore said.

I have always liked the formality of this ritual. In most courtrooms, you can’t just waltz up to a witness like they do in TV shows. You have to ask permission. And you have to have a reason. Partly to avoid needless intimidation of the witness. But mostly because, to get to the witness, you have to cross the well of the Court. That’s the area between the counsel tables and the bench. It is the Court’s sacred ground, and you don’t pass through it without begging the Court’s leave.

Jenna walked up to Spritz, holding Defendant’s Exhibit 26. Perhaps I imagined it, but Spritz appeared at least slightly apprehensive.

“Detective, let me show you Defendant’s Exhibit 26. It’s titled ‘Officer John Apple’s Report of Crime Scene Investigation, Homicide of Simon Rafer.’” She handed him the document. He held it without looking at it. A well-trained witness.

“Do you see there in the fourth paragraph where it says that he accompanied you up the elevator to the 84
^th
Floor?”

Spritz looked at the document for the first time. He took a moment to study it. “Yes.”

“Do you see there in the next paragraph where he describes the body and its position?”

Spritz looked at it again. “Yes.”

“Do you see there, fourth paragraph from the bottom, where he describes the blood on the carpet?”

Spritz only glanced at it this time. “Yes.”

“Do you see there, two paragraphs from the bottom, where it says ‘Detective Spritz asked me to tape off the crime scene, and I did so?’”

Spritz looked again. “Yes.”

“Please read the entire document carefully to yourself and then tell the Court whether you see, anywhere in it, any reference of any kind made by Detective Apple to a depression in the carpeting.”

Spritz didn’t bother to look at the document again. “I don’t have to read it. It’s not there.”

I waited to see if Jenna would ask him
why
it wasn’t there. She didn’t. Smart move. Let Benitez fix it on redirect if he could. It was Spritz who claimed to have pointed it out to Apple. Benitez’s list of fix-its seemed to be growing.

I could see that Spritz had been poised to explain. He looked slightly disappointed when Jenna moved on to a different topic.

“Detective, when you first entered the building, did you consider sealing it?”

“I did, but rejected the idea.”

“Why?”

“First, didn’t have the resources at that point. Second, sealing off an eighty-five story building creates an enormous inconvenience for thousands of people. Third, I’d have to deal with anyone who was already in the building. Fourth, I still didn’t know if it was really a murder. For all I knew, some guy’d had a heart attack, huh?”

“The dispatcher did call it a murder, though, right? When you got the call?”

“Yes.”

“Did you consider asking the building to block the elevators—up
and
down—to the six floors the law firm occupied—once you found a body on one floor, with a knife in its back?”

“Not right away. Three of the reasons not to do that remained.”

“Wasn’t the result that, by shortly after 7:00 a.m., a crowd of early-arriving workers had gathered in the eighty-fifth floor lobby?”

“You should know, Counsel. You were one of them.”

Touché, I thought. I mean, really, I had to give one to Spritz for that. Judge Gilmore apparently thought otherwise. “All right, boys and girls,” she said, “could we get on to something relevant?” I noticed that she had glanced at the door that led to her chambers as she said it.