Missing Justice (24 page)

When she was finally done, it was my turn for a quick opening statement.

“Thank you, your honor. Deputy District Attorney Samantha Kincaid for the state. As your honor is well aware, the only question here is whether the state has sufficient evidence to hold the defendant over for trial on the pending Aggravated Murder charge. The ultimate decision regarding the defendant’s guilt must be made by the jury at trial, and the jury is entitled to make its own determinations about credibility. Accordingly, the standard for today’s hearing requires the court to credit as true all testimony that benefits the state, and to discredit any contradictory evidence from the defense, even if that would not be your own assessment of the evidence were you to sit in this case as a juror.”

I went ahead and cited the controlling cases for good measure. I would never spell out the governing law as thoroughly for a more experienced judge, but Prescott was still learning the basics of criminal law. The last thing I needed was for her to substitute her own opinion for the jury’s because I forgot to cover Criminal Procedure 101.

I gave a brief outline of the critical evidence and then called Ray Johnson to the stand.

Ray looked dapper, as usual, in a lavender dress shirt and black three-button suit. Half that man’s salary must go to the Saks men’s department. He had removed the diamond stud from his ear for his testimony. Good call, given Prescott’s transition from a corporate culture.

We covered the evidence quickly despite our judicial assignment. I wasn’t asking any questions that were objectionable, so there was no reason for Prescott to get involved.

In straightforward question and answer format, Johnson and I covered the critical points: Jackson’s pending case, the letters he’d written to Clarissa, the paint on Griffey and in Jackson’s van, his employment at the site where the body had been located, his statements, and the weapon. My criminologist would cover the fingerprint and blood evidence. It was more than enough.

I had decided to keep it simple. Since we weren’t alleging a sexual assault as part of the charges, getting into the nonoxynol-9 and the ME’s opinion that Clarissa had been undressed when she was killed would only muck it up. If Slip chose to get into those complications, he ran the risk of making his client look like a rapist and not just a murderer. Down the road, I’d have to worry about a jury thinking that Clarissa’s nudity was inconsistent with Jackson’s motivation of revenge. But even a judge as inexperienced as Prescott knew that rape was about exercising power over the victim, not sex.

I wasn’t surprised when Slip chose to cross. One of the only benefits to the defense of a prelim is the chance to test the state’s case and its witnesses in advance of trial. Here, Slip could risk asking Johnson questions that might backfire if asked for the first time at trial in front of the jury. Some judges would cut off a prelim fishing expedition at the start, but I knew Prescott would give Slip some line.

“Good afternoon, Detective Johnson. My name is Graham Szlipkowsky, and I represent Mr. Jackson.”

It sounded funny to hear Slip pronounce his full name. It had been a couple of years since we’d had a formal hearing together.

“You arrested my client late on Tuesday night, is that right?”

“That’s correct. Technically, it was Wednesday morning.”

“When you woke up on Tuesday morning, did you believe that my client killed Clarissa Easterbrook?”

“I believed it was a possibility, yes.”

Johnson was wasting his witness skills. He’s a master of spin, which helps in front of a jury. In a bench hearing, it was better to cut through the crap.

“But you didn’t believe you had probable cause, did you? Or surely you would have arrested him.”

No doubt about it. Slip was good.

“Prior to Tuesday evening, we had not yet made a determination of probable cause, against Mr. Jackson or anyone else.”

“You said you thought it was possible on Tuesday morning that Mr. Jackson killed Clarissa Easterbrook. Who else would you say that about?”

“Any number of people,” Johnson said. “We had not yet identified a suspect, so at that point anyone was a possible suspect.”

“How about the president of the United States. Was he a suspect?”

“Not a likely one,” Johnson said. He threw me a look to let me know he thought I should have objected, but he was going to have to sit through it. Judges are insulted by objections during a bench hearing. If the question’s absurd, they believe they should be trusted to disregard it on their own. Slip’s rhetorical question definitely fell within that camp.

“What about the victim’s husband, Townsend Easterbrook? Isn’t it true that he was still a possible suspect?”

“I wouldn’t call him a suspect.”

Johnson was falling into the pattern that a lot of cops get into on the stand. They’re so suspicious of defense attorneys that they fight every point, even those that aren’t damaging.

“But it’s true, isn’t it, that you were looking at him as a possibility?” Slip asked.

“We were interested in him, as we are always interested in anyone close to a murder victim. But, in this case, we were interested in excluding Dr. Easterbrook beyond any doubt, so we could focus the investigation on more likely subjects. Once he took the poly “

I wasn’t surprised when Slip cut him off with the objection. Johnson knew better than that. Polygraph results are inadmissible, whether it’s at trial or in a preliminary hearing. It was an easy call, even for Prescott. “Sustained. Do that in front of a jury, Detective Johnson, and it’s a mistrial. Mr. Szlipkowsky, you can be assured that I will disregard the witness’s mention of any polygraph examination that may have taken place.”

“OK,” Slip said, getting back on track. “So the husband was someone you were ‘interested in,” in your words. What about Terrence Caffrey? Were you looking at him?”

“I was in the process of trying to contact Mr. Caffrey when the evidence started to snowball against your client.”

Johnson was giving Slip a preview of what he could expect at trial if he pushed too hard on the stand. A defense attorney’s worst nightmare is a cop who can turn any question into an opportunity to prejudice the defendant.

“Your honor, please instruct witness to answer the questions presented to him without editorializing.”

Prescott flipped through the large binder she keeps with her on the bench, then told Johnson, “Please refrain from providing nonresponsive information.”

See, that thing about the truth, the whole truth, and nothing but the truth isn’t quite right. Witnesses are only allowed to provide the truth when it’s been specifically requested.

“Isn’t it true that you were trying to contact Mr. Caffrey to determine if he was involved in Ms. Easterbrook’s murder?”

“No, I wouldn’t put it like that.”

“Since semantics seem so important to you this morning, Detective Johnson, why don’t you tell us why you were trying to talk to Mr. Caffrey?”

“To determine whether he had relevant information.”

“Isn’t it true that you found Mr. Caffrey s name in Ms. Easterbrook’s phone records?”

“No, that is not true.”

“Excuse me. Isn’t it true that you located a telephone number in Ms. Easterbrook’s phone records that you subsequently determined to be associated with Mr. Caffrey?”

“That’s correct,” Johnson conceded. He was having a little too much fun. I’d need to talk to him about playing lawyer on the stand.

“And isn’t it true that those records showed multiple calls between Mr. Caffrey s telephone number and Ms. Easterbrook’s cellular phone?”

“Yes.”

“And isn’t it also true that you have evidence that Ms. Easterbrook had sexual relations with someone other than her husband?”

“If one considers rape sexual relations, then one could draw that inference, yes.”

“I’m sorry, Detective Johnson, are you saying that you are certain beyond doubt that Ms. Easterbrook was raped?”

“No, but that is one possibility, and I was uncomfortable describing that possibility as one involving what you called sexual relations.”

“Let’s talk a little bit about what that evidence is,” Slip said. “In the autopsy of Ms. Easterbrook, the medical examiner found an anti spermicide gel within her vaginal canal. Correct?”

“That’s correct.”

“A gel that’s often associated with condoms?”

“Yes.”

“And, according to Ms. Easterbrook’s husband, the two of them did not use condoms or any such gel in the course of their own marital relations, is that right?”

The question clearly called for hearsay. Under the rules, if Slip wanted to introduce something Townsend said as true, he had to get it from Townsend. But I’d been hoping to spare him from testifying. I let it slide without objection, and Johnson conceded the point.

“Is it fair to say, Detective Johnson, that you at least wondered whether Ms. Easterbrook and Mr. Caffrey were engaged in an extramarital affair?”

“I considered it a possibility.”

“In light of what was at least the possible connection between Mr. Caffrey and the victim, did you ever question him to determine whether he had relevant evidence?”

“No, I did not,” Johnson said.

“Did you try to?” Slip asked.

“Yes.”

“How so?”

“I left a message on Tuesday afternoon with his scheduling assistant.”

I hadn’t realized that Johnson had gotten around to making that call. He must have seen to it right after the MCT meeting, before he learned that Jackson worked in Glenville.

“Did you tell the assistant that you were calling about Ms. Easterbrook?” Slip asked.

“No, I did not.”

“Did you tell the assistant anything about the nature of the call?”

“I believe I told him that I was calling about a pending criminal investigation.”

“A murder investigation?”

“No, I would not have said that. Just a criminal investigation.”

“Is that a fairly standard message that you leave when you’re trying to reach a potential witness?”

“Yes.”

“And is there a reason why you say the call relates to a pending criminal investigation, rather than just leave your name and number?”

“Sure. Lets them know I’m not just fund-raising for the PBA. Makes it more likely I get a prompt callback.”

“And, in this case, did you get your prompt callback?”

“I have not spoken with Mr. Caffrey.”

So the respectable T. J. Caffrey was a total slime. What does it say about a man’s character when he’d hide from his lover’s murder investigation just to cover his own ass? It did not, however, make him a murderer.

“So if I understand you correctly,” Slip said, “a man who may have been having a special relationship with the victim on a murder case did not call you back, even though he knew you were trying to contact him about a pending criminal investigation. Is that right?”

“That’s correct. But I have no way of knowing he got the message.”

“Maybe we’ll find that out later,” Slip said. “After Mr. Caffrey failed to get in touch with you after you left this message with his assistant, did you continue your efforts to reach him?”

“No, I did not.”

“To be clear,” Slip said, “Terrence Caffrey is a member of the elected Metro Council, correct?”

“That’s correct.”

“Did that have anything to do with your decision not to continue your efforts to contact him about this case?”

“No, it did not.”

Slip looked and sounded incredulous. “If it wasn’t because of this man’s power and political influence, why then did you not want to speak with him, given what is at least the appearance of a close and unexplained relationship between him and the victim?”

A tip to defense attorneys: Don’t ever ask a cop a question that begins with why. It’s an invitation for a subjective opinion and a quick way to sink your client. Johnson batted it out of the park. “I stopped trying to reach Caffrey when it became clear to me that your client murdered Clarissa Easterbrook. To question him at that point about the nature of his association with her would have been exploitative, more like daytime television than a legitimate investigation. Or maybe a defense attorney.”

Slip was on his feet immediately, but even Prescott knew that Johnson’s answer was, just as Slip had requested, responsive.

My next witness was Heidi Chung from the crime lab. Heidi must be pushing forty but could be mistaken for a teenager. In trial, I always spend some time on her impressive credentials to be certain that the jurors understand that she’s a pro. Prescott, however, had seen Chung enough to know she knew her stuff.

By the time Heidi was done, there could be no doubt about it. The hammer Johnson pulled from Jackson’s closet had been the one that killed Clarissa, and two of the unidentified latent prints pulled from the Easterbrooks’ door knocker had been left by Jackson’s right index and middle fingers.

Slip couldn’t do much to Heidi on cross. Sure, there were no prints on the hammer, but wiping down a weapon is easy and a lot more obvious than remembering to clean the door knocker.

When he was done, I rested. Given my low standard of proof, there was no point giving him a look at my entire case in chief and a chance to test all my witnesses for weak spots. And, thankfully, there was no need to call Townsend to the stand. I’d managed to cover all the important stuff with my two pros.

Even though he had told me about his intentions all along, part of me was still surprised when Slip told Prescott he’d be calling witnesses before we moved to arguments. I half thought he was bluffing, since he had absolutely nothing to gain from the move. The judge was essentially required to disregard any testimony that helped the defense, since at trial it was possible that the jurors would not find it credible.

Maybe Slip was using the prelim as a formal version of the usual posturing that goes on between the prosecution and the defense: trying to make his case look good in the hope of getting me to give Jackson a plea. Or maybe he hoped Prescott was inexperienced enough to make the call herself.

“Call your first witness, Mr. Szlipkowsky.”

“There’s one complication, your honor. One of my witnesses is moving to quash the subpoena I served on him yesterday. If I may make a suggestion, perhaps I could call just one witness now, and we could take up the motion to quash after a lunch recess.”