Incriminating Evidence (42 page)

He acknowledges that there is no evidence proving that Garcia touched it.

“Mr. Kaplan,” I say, “did you inspect this flute for traces of fluids or other chemicals?”

“Yes.”

“Did you find anything?”

“Yes.”

“Which fluids or chemicals did you identify?

“Two. We identified champagne and traces of gamma hydroxy butyrate, or GHB.”

“And what did you conclude from this?”

“Champagne and GHB were in this glass at some point on the night in question.”

Good. “Mr. Kaplan, do you have any way of knowing who ingested the contents of this flute?”

“Objection. Speculative. Foundation.”

“Overruled.”

“No.”

I walk right up to him. “Mr. Kaplan,” I say, “were you able to determine whether the victim, Johnny Garcia, consumed any of the champagne and GHB in this glass?”

“Objection. Foundation.”

“Overruled.”

I’m pleased. I know the line of questioning I’m launching is out of Kaplan’s territory, but I want the jurors to start wondering about the whole premise of Skipper’s guilt. If I can make some points before the judge shuts me down—and she will—it’ll plant the seed and perhaps start easing them in the direction of reasonable doubt. So far so good.

Kaplan answers my question. “No, sir,” he says, “I was simply asked to identify any fluids in the glass. I have no way of knowing who drank from it.”

“And by the same token, were you able to determine whether Mr. Gates may have consumed the contents of this glass?”

“No.”

“But you were able to determine that Mr. Gates—and only Mr. Gates—handled this glass.”

“I was able to determine that Mr. Gates’s fingerprints were found on it and that there were traces of alcohol and GHB in it.”

Nice deflection. “Mr. Kaplan, if there was GHB in this flute, and Mr. Gates drank from it, he would have been rendered unconscious when he drank from it, wouldn’t he?”

Payne reacts as I expect. “Objection. Mr. Kaplan is not an expert on that subject.”

“Sustained.”

I’m not about to give up. “Doesn’t it seem odd to you, Mr. Kaplan, that Mr. Gates would have put the toxic date-rape drug GHB into his own flute?”

“Objection. Speculative.”

“Sustained.”

I’ve just begun speculating. “Do you think Mr. Gates intended to drug himself? Given the fact that it doesn’t make one iota of sense that Mr. Gates spiked his own drink and knocked himself out, isn’t it far more likely that somebody else came to his room and put the GHB in both flutes?”

“Objection. Speculative.”

“Sustained.”

One more time. “Mr. Kaplan, in light of the fact that GHB was found in Mr. Gates’s champagne flute, doesn’t it make more sense to conclude that somebody else spiked the drinks and then proceeded to kill Johnny Garcia when both were unconscious?”

“Objection. Move to strike. Mr. Daley is testifying.”

Yes, I am.

“Sustained. Enough, Mr. Daley.”

“No further questions, Your Honor.” I’ve had a much better run than I expected.

Payne tries to undo the damage in a brief cross-exam that falls flat. To my relief, she offers no new explanation for the presence of the GHB in both flutes. She sits down.

For the first time since the trial started, there are signs of cautious optimism in the consultation room during the mid-morning break. “Nice work with Kaplan,” Skipper says.

“It never made any sense that they found GHB in both flutes,” I say. “Did they think you drugged yourself?”

“Evidently.”

Molinari eyes him warily. “Do you have any idea how the GHB got into the champagne flutes?”

“No,” he says flatly.

“The defense calls Dr. Theodore Raffel.”

Our medical expert, Ted Raffel, is in his late fifties, with wiggly jowls, a bald head and a chatty manner. He may be a Stanford professor, but he looks like he could be tending bar at Harrington’s. His delivery is folksy. I wish I had found him a few years ago. Ed Molinari uses him for his class-action cases all the time. Raffel acknowledges the jurors with a warm smile as he takes his place in the witness box. According to Ed, he’s great if you need somebody to charm the pants off a jury.

He states his name for the record. He adds, “I’m a full professor in the departments of pathology and trauma surgery at Stanford Medical School.” He nods as he says it. He is very good at nodding. In fact, he was doing so with great authority during our rehearsals, even when he was spouting unadulterated bullshit.

I ask him to recite his credentials. Payne interrupts him right after he says he got his undergraduate degree at Stanford and his medical degree at Johns Hopkins. “We’ll stipulate that Dr. Raffel is an expert in his field,” she says.

Raffel is pleased. I hand him a copy of the autopsy report. “Dr. Raffel,” I begin, “have you had a chance to review Dr. Beckert’s autopsy report on Johnny Garcia?”

“Yes.”

“And do you agree with Dr. Beckert’s conclusions?”

Payne begins to object, then reconsiders. She’s already stipulated to his expertise.

“I’m afraid I don’t,” he says. He turns to the jury. “I have a great deal of respect for Dr. Beckert,” he says. “However,
in this particular case, I believe that he came to the wrong conclusion.”

I ask him to explain.

He addresses the jury, his tone solemn. “Dr. Beckert concluded that the victim, Johnny Garcia, died of asphyxiation. I have no doubt that there was duct tape placed over the victim’s eyes, nose and mouth. On the other hand, I believe there were other factors involved in Johnny Garcia’s death. Unfortunately, Dr. Beckert chose to ignore them.”

I’m still at the lectern. “What were those factors, Doctor?”

He picks up the cue. “It is a documented fact that Johnny Garcia was a recovering heroin addict. It was also documented that he had a history of coronary arrhythmia—an irregular heartbeat. At the time of his death, he had a substantial amount of heroin in his bloodstream.” He explains in medical and then layman’s terms that Garcia had enough heroin in his system to render him unconscious and to kill him. “It is clear to me that he had a serious adverse reaction to the drug.”

“And what was the result, Doctor?”

“He overdosed. It caused his heart to beat too fast. The increase in his heart rate caused a fatal coronary arrhythmia. He died within seconds.”

He’s better today than he was in rehearsals. “And you’re convinced that Johnny Garcia died of an arrhythmia caused by a heroin overdose?”

He juts out his lower lip. “Absolutely.” He nods for good measure. “It is also possible,” he continues, “that the arrhythmia was caused by a combination of heroin, GHB and alcohol.”

We discuss the possible effects of heroin, GHB and alcohol. He points out that the GHB alone could have caused Garcia’s death if he had consumed enough of it. “There are
dozens of documented cases of deaths caused by GHB poisoning,” he says. “It’s a very dangerous substance.”

I don’t want to get into a detailed discussion of the possibility that the GHB alone might have killed Garcia, because Skipper’s fingerprints were, in fact, found on the champagne flutes. It wouldn’t be a huge leap for the jury to decide that Skipper caused Garcia’s death by giving him the GHB. On the other hand, the possibility of GHB poisoning may help us to demonstrate that Rod Beckert’s conclusion was flawed. I decide to ask one more question. “Could you tell how much GHB Johnny Garcia had taken?” I ask.

“No. GHB metabolizes into other substances very quickly. It’s essentially gone within four to six hours. The fact that there were traces of GHB in the victim’s system at the time of the autopsy more than eight hours after the body was discovered leads me to conclude that the victim may have consumed a substantial amount of GHB as well as heroin.”

It’s enough. The jury seems interested but not fascinated. I say, “No further questions, Your Honor.”

Payne is out of her seat before I sit down. “Dr. Raffel,” she says, “you testified that the victim had a substantial amount of heroin in his bloodstream when he died.”

“Yes.”

“Yet Dr. Beckert characterized the amount of heroin in his system as a trace, didn’t he?”

“That’s true. However, you must take into account the fact that Dr. Beckert did not examine the body until more than eight hours after it was discovered. Heroin remains active within the system for only a few hours. Then it breaks down into other substances, including morphine. If you still find a little heroin in a corpse eight hours after the body is discovered, it means that there was a much larger amount of heroin in the party’s system several hours earlier.”

“Even so, isn’t it generally accepted that a minute amount of heroin could not cause an overdose in a healthy young male?”

“Not necessarily. In my experience, a fatal overdose can be caused by a very small amount of heroin, especially in the case of an individual who was a recovering addict. It depends upon the age and health of the individual, his size and weight, the amount of heroin injected, the severity of the addiction and the possible combination of the heroin with other drugs and toxic substances. I have seen cases where very small amounts of heroin have proved fatal. In this case, in my opinion, the amount of heroin found in the victim’s bloodstream not only could have caused an overdose, it did so.”

Nice parry.

Payne is frustrated. “How much experience do you have working with drug overdose patients?”

“A lot. I worked at the emergency room at San Francisco General for five years before I began my teaching career at Stanford.”

From her expression, it seems Payne didn’t know this. She regroups and asks, “You didn’t examine the body, did you?”

“No. The body was cremated.”

“And you didn’t have an opportunity to question Dr. Beckert, did you?”

“No. I did, however, have an opportunity to study his report in detail. And I did have an opportunity to discuss the toxicology results with the technician who performed the tests.”

Good answer.

Payne searches for a tone of measured incredulity. “And based upon your review of the autopsy report and the interview with one lab technician, you concluded that an experienced, respected coroner such as Dr. Roderick Beckert simply got it wrong?”

That’s about the gist of it, Hillary.

“Yes, Ms. Payne,” Raffel replies.

They joust for another thirty minutes. Payne pounds on Raffel, who holds his ground. I object only once. He doesn’t need any help from me. He keeps saying that based on his best medical judgment, he believes Johnny Garcia died of a severe irregular heartbeat brought on by an overdose. It’s just the way I wrote it for him. At this juncture, he’s persuasive enough to read the phone book to the jury and they would believe him. Hillary doesn’t pursue the possibility that Garcia may have died from an overdose of GHB—it won’t help her case to suggest that Beckert got the cause of death wrong.

Finally, Hillary decides to go to a standard ploy. “Dr. Raffel,” she says, “how much are you being paid to testify today?”

I could object to this question on grounds of relevance, but I elect not to do so. Raffel is an impressive guy. The jurors seem to like him. I don’t think the fact that he’s getting paid a lot will cause them to turn on him. Besides, they may be even more impressed when they hear his hourly rate.

“My standard rate,” Raffel says, “is four hundred seventy-five dollars an hour. My fee for this consultation is fifteen thousand dollars.”

“So Mr. Daley was able to buy your opinion for fifteen grand?”

Now she’s crossed the line. “Objection. Argumentative.”

“Sustained.”

“And you would have said pretty much anything he asked you to say, right?”

“Objection. Argumentative.”

“Sustained.”

Payne shakes her head in mock disbelief. “No further questions, Your Honor.”

Skipper gives me a quick nod. He seems pleased. When I
turn around to look at Natalie, I see her being hurriedly escorted out of the courtroom by Ann.

We spend the afternoon parading our evidence experts to the stand. We’ve found a Ph.D. from Berkeley who swears that their fingerprint analysis on the handcuffs was questionable. Payne lights into her with little success. We get a chemical expert to argue that the adhesive found on Johnny Garcia’s face wasn’t a perfect match for the duct tape on the night-stand. Smoke and mirrors. In a particularly creative trip through the looking glass, we trot out an expert on heroin addiction to testify that sexual drive is diminished when you’re high. As a result, we argue, it is inconceivable that Johnny Garcia engaged in sex that night and that his semen must somehow have been planted on the bed. I wouldn’t bet a penny on it, but the jury seemed to like the little guy with the long beard and the tiny glasses.

Judge Kelly decides to call it a day at a quarter to five. “How many more witnesses, Mr. Daley?” she asks.

“Just a couple, Your Honor.” I glance toward Skipper.

I’m dining upscale with Nick Hanson at Moose’s on Washington Square, just down the block from Ed Molinari’s office. Nick’s a regular. He nods to the proprietor and then dips his bread into a plate of olive oil and chews it heartily. The jazz combo in the middle of the crowded room is banging out Duke Ellington’s “Satin Doll.”

“I’ve been trying to talk to you for the last two days,” I say.

“I’ve been working.”

I’ll bet. “What did you find?”

Nick takes a sip of his martini and holds up his hand, indicating that it isn’t yet time to talk about business. Then he
launches into a twenty-minute discussion of the marketing plan for his new mystery. I nod and smile at appropriate times. The waiter brings Nick’s calamari and my petrale. We eat. We schmooze. Forty-five minutes later, I ask him again what he found.

He holds up the index finger. “I’ve been watching your pal, Turner Stanford.”

That was the whole idea. “And?”

“I found something.”

You have to let him tell the story. At the rate things are going, we could be here until midnight. I try once more. “What did you find, Nick?”

He wipes his hands on his napkin and reaches into his breast pocket. He takes out a small white envelope and hands it to me. I look at the photos as he does the play-by-play.