Compelling Evidence

CHAPTER 30

Day three of the state’s case and I glimpse a wicked scene. Eli Walker, the dean of yellow journalism, and Jimmy Lama are conversing in the corridor outside the courtroom. Lama is puffing on a cigarette and leaning against the wall, one hand in his pocket. What is more, Walker actually appears sober. This is not strange, I think. Walker and Lama running together, the corrupted reporter and bad cop, each in his own way an outcast of his respective cult.

Lama has not said a word or approached me since his tirade on the steps outside. His deadline has passed, his ultimatum so much bluster. I have made a diligent effort to find Hawley, more to blunt any criticism the court might level at me than to humor Lama, but the lady knows how to lose herself. My guess is she has picked up sticks and moved to another city, perhaps another state.

Harry arrives with Talia. Lately he has been chaperoning her from the office to court while I run diversion by coming in from another door. It seems that the news moguls ask fewer questions, get less pushy when Talia and I are not together.

After the first week they backed away from Harry. Knees and elbows, Harry has his way with the press. Some of the cameramen are beginning to feel as if they’ve been up against the boards with Magic Johnson.

We bull our way into the courtroom, leaving the furor outside the door.

Today, Nelson puts Willie Hampton up. The young janitor is all spiffy, black shirt and white tie, pleated pants, enough material for a hot air balloon, and Italian basket-weave loafers, black sides and white tops, like spats. He looks ready to join Michael Jackson on stage.

This time Hampton is more polished. There is no stumbling, no overt signals from Nelson as to what is expected. It seems Hampton has memorized his script well.

He tells the jury that he found the body and calmly retreated to the reception station, where he called police. The picture he paints is one of composed professionalism, what every building manager dreams of in a four-dollar-and-thirty-cent-an-hour janitor.

Without leading, Nelson extracts from him the only critical element, that Hampton heard the report of the shotgun in Ben’s office at precisely eight-twenty-five P.M., a full hour and twenty minutes after the time of death the medical examiner will determine.

With that Hampton has had his fifteen minutes of fame. Nelson turns him over to me, and I waive off. The cardinal rule of cross-examination. Don’t get up and talk unless there’s a reason. Hampton has done us no harm. No crime, no foul. I let him go, and he seems relieved.

Nelson calls Mordecai Johnson, the evidence technician, to talk about the blood in the elevator and the single strand of hair that looks like Talia’s, caught in the locking mechanism of the shotgun.

“This blood in the elevator,” says Nelson, “from this you can tell that the body was moving or being moved?”

“Yes,” he says. “More likely the body was being moved. The victim would appear to have already been dead.”

“You can tell all this from a single drop of blood?”

“Yes. From the slight quantity of blood available for dripping, we believe that the heart had already stopped. This blood does not appear to have come from an active bleeding site.”

Johnson asks if he can use a chart, and the bailiff pulls a piece of butcher paper off an easel that has been propped near the witness box. Pointer in hand, Johnson does a little play-by-play for the jury.

The chart is a picture of a mammoth black spot against a stark white background, a magnified drop of blood in black and white, a hideous Rorschach. Around the edges on one side of the spot are needlelike comets radiating from the drop. Johnson explains to the jury that the edge characteristics of the drop, the little comets, will indicate the direction of travel whenever free-falling blood hits a smooth horizontal surface. From his examination of the blood in the service elevator, Johnson can conclude that Ben was already dead, and that he was being carried out from the elevator as the drop fell. A few friendly questions from Nelson, and Johnson puts down the pointer and returns to the box.

They’ve changed their tune on the sample of hair since the preliminary hearing. Nelson has been busy trying to shore up this critical piece of evidence, one of the few items linking Talia directly to the crime scene. What he doesn’t know is that we are no longer singing from the same sheet of music on this one either.

“Officer Johnson, can you tell the jury how you discovered this strand of hair?”

“During the laboratory examination of the shotgun found at the scene, we performed a routine examination for fibers and hair on the weapon.”

“And what did you find?”

“A single strand of human hair lodged in the breech of the shotgun.”

“Did you have an opportunity to perform any kind of a comparison of that hair with samples taken from the defendant, Talia Potter?”

“Yes, we took several exemplars of hair from the defendant and performed microscopic comparisons.”

“And what were the results of those comparisons?”

“The strand of hair found lodged in the shotgun matched in all respects the microscopic characteristics of the exemplars taken from the defendant, Talia Potter.”

There are dismal looks in the jury box with this news, several of the jurors glancing at Talia with certain disappointment. Robert Rath, my alpha factor, is sitting in the back row, dispassionate, studying the witness.

“Officer Johnson, can you explain to the jury exactly how this strand of hair was lodged in the shotgun?”

Harry and I have been waiting for this one. Nelson is working to get around our theory that there is nothing unusual about a strand of hair from the defendant being found on an item which was normally stored in her home.

Johnson starts off on a lecture about firearms. I object on grounds that the witness has not been qualified as an expert in this area. Nelson meets this with a litany of courses taken and credentials earned by the detective, including a stint at Quantico, at the FBI Academy, where Johnson weathered a course in ballistics and firearms. This is good enough for Acosta.

“If we might continue, then,” says Nelson.

Like a broken record Johnson picks up where he left off. “Most breech-opening long guns, including the shotgun found at the scene, have what is called a boxlock, the mechanism that seals the breech when the weapon is ready for firing. There is a small metal strap on the barrel end of the breech that fits tightly into a groove in the stock end of the weapon. When the two pieces are locked in position, the shotgun is ready to be fired. The strand of hair was found in the groove, held by this strap of metal, protruding down into the breech itself.”

Nelson has a microscopic photograph of this, taken with a macro lens before they lifted the hair from the gun. He has Johnson identify this, and it is marked for later introduction.

“In your professional opinion, Officer Johnson, given your experience and training in firearms, is it possible that this strand of hair could have casually found its way into that mechanism, say, when the gun was on a rack, or in a gun case in the victim’s home?”

“No.” Johnson is adamant, instantaneous on this. “For that strand to have become lodged in the firearm as it was, the breech of the weapon would have to be opened, the hair somehow lodged in it, and the breech closed again.”

“As if the gun were being loaded and fired, is that correct?”

“That’s correct.”

The jury is giving Talia harder looks. Rath is still impassive on the top row.

Nelson considers for a moment, exploring every possible avenue of escape.

“Officer Johnson, assuming for purposes of discussion that such a strand of hair had become innocently lodged in this weapon sometime prior to the day that Mr. Potter was killed, is it not likely that when the weapon was opened in order to load it before it was fired in Mr. Potter’s office, the strand of hair would have fallen out and therefore not been found on the weapon when you examined the firearm later?”

“This is possible,” he says. “It would depend on a number of factors, the amount of oil or grease on the weapon that might hold the hair.”

“But in your opinion there is no way this hair could have casually found its way into the weapon?” Nelson goes back to safe ground.

“No.”

“Thank you.”

Nelson has done all the damage he can with this witness. Fearful of asking one question too many, turning the tide, he takes his seat.

I get up, a legal pad in hand, a few dozen questions. Without much pain I get Johnson to repeat his concession, made during the preliminary hearing. He tells the jury that hair, unlike a fingerprint, does not possess a sufficient number of unique individual characteristics to be linked positively to any given individual, or to exclude all other individuals as the possible source.

He concedes that he cannot say with absolute certainty that this sample of hair belonged to Talia.

I cut him off before he can repeat his opinion as to microscopic similarities. He clearly would like to reinforce this with the jury.

“Officer Johnson, can you tell us what kind of condition this strand of hair was in, the one found in the shotgun?”

He looks at me, confused.

“I mean, was it fragmented, was the end split, was it all in one piece?”

“It was in good condition.” He says this as if to assure me that he had a fine specimen to examine, and there is no basis to impugn the quality of evidence here.

“It wasn’t broken or fragmented?”

“No.”

“In fact wouldn’t you say that this strand of hair was in exceptionally good condition given the apparent trauma it had suffered, being caught in the mechanism of this weapon and presumably jerked out?”

“It was in good condition.” He sticks to the original answer, unsure where I’m taking him.

There is, it seems, a cycle of life for hair as there is for humans. Harry and I have been busy researching follicles. As with many things in science, this cycle is classified into stages. In the last, or telogen phase, before hair falls out, it is fully mature and is anchored in the hair follicle only by the club at its root end, like a ball and socket Below this club new anagen hair is already starting to form. When the old hair falls out, new hair begins to replace it, and the cycle starts again, though not for Harry, who says his follicles have shot their wad.

I take Johnson on a verbal tour. He agrees that this little scenario is gospel in the life of a human hair.

“Officer Johnson, can you tell us, did the hair specimen found in the locking mechanism of the shotgun include that portion known as the ‘telogen root’?” This is the club end of the hair.

He asks for the photograph again and studies it. The root is there, big as life.

“It did,” he says.

“This telogen root, was it fully intact?”

“Yes.”

“Isn’t it unusual to find the telogen root of a hair that has presumably been pulled forcibly, as this one was, from the head?”

“It could happen,” he says.

“That’s not my question. I asked you if it was unusual to find the telogen root still attached to a hair which was forcibly pulled from the head?”

“I suppose,” he says. A grudging admission. “Yes.”

“Wouldn’t it be more likely that this root would come out of its own accord, perhaps on a comb or brush as it neared the end of its life cycle, but that a strand of hair that was jerked from the head would more likely be fragmented, broken off?”

He makes a few faces, a mental trip looking for exceptions to this norm.

“Yes,” he says, “that would be usual.”

“Isn’t it more likely that if this hair had in fact been caught in the weapon, and forcibly pulled from the head of Talia Potter, that it would have been fragmented, broken off somewhere above the root?”

“Possible,” he says.

“I’m not asking you if it’s possible; I’m asking you if it is not in fact more likely.”

“I don’t know,” he says. A little evasion.

“Is it not possible, Officer Johnson, that if someone wanted the police, or this jury, to believe that Talia Potter had fired that shotgun on the day that Ben Potter was killed, that person might very well have obtained a hair sample, from a brush or a comb belonging to the defendant, and placed it in the weapon?”

He makes a face like this is pure fantasy.

“Isn’t it possible, Officer Johnson?”

“Possible,” he says.

“From your own testimony, officer, isn’t this theory, that someone might have planted that hair on that gun, isn’t this theory in fact more consistent with the physical evidence discovered at the scene, than the theory advanced by the state, that the hair was caught in the gun and pulled out?”

He stops dead on this. “I don’t understand the question,” he says. Johnson’s looking for signals from Nelson.

I get my body between them.

“Isn’t it more consistent, Officer Johnson, based on this single strand of hair and considering its condition and the presence of the telogen root, to believe that someone might have planted that hair as opposed to having it pulled from the head of the defendant? It’s that simple.”

“I don’t know that I can make that conclusion.”

“But you can sit here and draw the conclusion-make the quantum leap-that this strand of hair was caught in the breech and pulled from the head of the defendant when she supposedly used the shotgun to kill her husband?”

To this Johnson offers no response. I play the odds with him.

“Officer Johnson, if I were to reach up right now and pluck a single strand of hair from my head, would you expect that hair to have the telogen root attached when you examined it under the microscope?”

He’s looking at me, no response.

“Officer, if you want, we can bring our own expert, a physician if you like, to obtain the answer to this question.”

“No,” he says. “I wouldn’t expect the root to be attached.”

“Why is that?”

“Because in most cases the hair would fragment, it would break off above the root.”

“Thank you.”

Johnson starts to get up.

“I’m not finished.”

He settles back in the chair.

“In your earlier testimony, officer, you stated that this strand of hair was lodged in the locking breech of this firearm. Is that correct?”

He makes a face, close enough. “Yes.”

“Do you want to look at the picture again, to refresh your recollection?”

“It’s not necessary.”

“Would you look at the picture, Officer Johnson?”

He studies it again.

“Was any portion of the hair actually in the breech of the firearm, from your observations when you removed it?”

“Yes,” he says. This is hard to deny, it is there in living color, an inch and a half of hair littering the open breech.

“So a portion of this strand would have been in the area directly behind or around the cartridge, in the breech?”

He nods, emitting more of an educated grunt than a response, the sign of a witness keeping his options open.

“When you examined the gun, were there cartridges in both barrels?”

“There was one fired cartridge. The other barrel was empty. At that range, in the mouth,” he says, “you only need one.”

There are a few morbid chuckles from the audience.

“So the shotgun apparently had not been unloaded after it was fired?”

“No,” he says.

“We’ve already established that this strand of hair was in good condition. I take it then that there was no singeing of this hair, no scorching, that it was not burned at any point?”

He looks again at the photograph, the pristine strand of hair, magnified a hundred times, almost translucent in its sheen on the page.

“No,” he says.

“There was no evidence of scorching or burning?”

“No.”

I can see from his eyes that he now senses where I am going.

“You’ve established earlier that you are qualified as a firearms expert. Based on your expertise, isn’t it true that when a shotgun is discharged it emits super-heated gases, and that these gases would flood the breech of the weapon?”

There’s a long sigh. “That’s true.”

“Then, Officer Johnson, how do you explain the lack of burning or singeing on that sample of hair?”

There is a long pause, the kind that catches a juror’s attention.

“I don’t know,” he says. He seems clearly puzzled by this, probably angry with himself that he has not considered it before.

“Isn’t one possible explanation that perhaps the hair wasn’t there when the weapon was fired, but was placed there later?”

“I don’t know.”

“You’re the expert, officer, isn’t that one possible explanation?”

“Yes,” he says. “It’s possible.”

“Thank you.” Now I am finished.

I’m ecstatic, trying to hold myself on the floor as I return to the counsel table. Harry is struggling to hold back a moonbeam smile.

Talia has already failed, clutching my arm as I get to the chair.

Nelson is getting hammered; he cannot leave it like this. He knows that unless the momentum shifts he may not weather a motion to dismiss at the close of his case in chief. There’s a heady conference at the prosecution table, Meeks and Nelson.

“Redirect?” says Acosta.

Nelson gets up and approaches the witness box.

“Officer Johnson, according to your testimony only one chamber of the shotgun was found to be loaded, is that correct?”

“Yes.”

“Then isn’t it possible that the strand of hair in question might have found its way into the empty chamber, and that this might explain why it was not singed or scorched?”

Johnson looks pained, as if under the burden of one who has just seen a friend fall.

“I don’t think so,” he says.

There is the stark expression of certain trouble in Nelson’s eyes. In desperation he has violated the cardinal rule: Never ask a question unless you know the answer. But it is too late to stop. The jury is waiting for the follow-up.

“Why not?” he says.

“The shotgun in question was an over-and-under, two barrels one on top of the other, not a side-by-side double barrel. It was the top chamber that was fired.”

Nelson’s dilemma is painfully obvious to anyone who has been following this little exchange. The strand of hair could not have reached the empty bottom chamber without a portion of it passing through the hot chamber on top. They cannot explain why this hair is not singed, fried like some crisp Chinese noodle.