Prime Witness

Chapter Thirty-one

This morning, early before court, Lenore prepped with Lloyd Tolar, our first meeting with him face-to-face. The guy is harder to get ahold of than the pope, but apparently a little more lascivious.

She tells me he is tall, gray-haired and distinguished, the kind of witness juries fall in love with. They went over his evidence, a cordial conversation of Y incisions to the human body, from crotch to breast bone and, between the liver and spleen, he asked her out to lunch.

“Randy old goat,” she says.

Trying to get ahold of Tolar I should have known. From what she tells me, I could have sent him Lenore’s picture clipped to her business card and saved myself a dozen phone calls.

“He says it won’t be necessary to put on the profile experts when he is finished laying out his evidence, so devastating will be his testimony,” she says.

It is easy to see where the young intern caught his arrogance, the kid in Tolar’s office the day I went looking for him. It is a required course in medical school. But we don’t argue with the good doctor. Lenore says he has enough gall that he speaks with the authority of a god, and possesses a resume to match.

Today I am forced to confront our missing evidence, the length of cord lost by our photo people.

I look over. The counsel table for the defense is crowded. Chambers and Iganovich form a sandwich with the interpreter squeezed between them. On the other side of the Russian is Bob Haselid, a last-minute addition to the defense team.

Haselid is a young lawyer, a growing reputation as a comer in the bar. He will serve as Keenan Counsel, responsible for the penalty phase of the defense, to save the Russian’s life if we convict and the jury finds special circumstances.

Before we begin I have asked for a few minutes with Ingel and Adrian in private. The bailiff wags a finger at me, then buttonholes Chambers. He leads us both back behind the bench to huddle with the judge.

When we arrive Ingel is busy picking fuzz off his robes, the sticky side of some Scotch tape threaded between his fingers. The life of the busy judge.

He looks at me. “What is it,” he says, “some last-minute ground rules?”

“A problem,” I tell him.

He lays the black garment aside, on the edge of his desk.

“Some of our evidence has been misplaced,” I say.

I get a look, as if meanness is not far below the surface this morning.

“I’m told it’s only temporary, that they will find it.” My effort to take a little of the edge off these tidings.

“What evidence?” Ingel’s gaze is icy.

“A piece of the cord, from the first two murders, the outer plastic sheathing,” I say. In the next breath, before he can say more, I tell him that we have detailed photos, offer this bait to see if maybe he will bite.

“Photographs of evidence are not evidence,” he says, “not in my court.” Unfortunately for me, Ingel, unlike the Coconut, has employed his copy of the Evidence Code for something more than a dense coaster for his coffee cup.

I get a quick tongue-lashing from him, admonitions that he warned me during discussions on settlement not to be looking for judicial dispensations. He questions me, in not too subtle ways, as to which of the charges are affected. He is no doubt probing to determine the effect of this mishap on the murder of Sharon Collins. Ingel does not want to tell Armando Acosta that he was forced by circumstance to dump charges in the murder of the Coconut’s niece. When he sees Chambers beginning to take note of this line of questioning, Ingel drops it quickly.

“How did it happen?” he says.

“The commercial photo lab,” I say. “They came in with their equipment to do some pictures. Apparently they misplaced the evidence in processing the film.”

“Threw it out?” says Ingel.

“They tell me no,” I say, “that that is unlikely, your honor.”

“The buck,” he says, “for every fuck-up in your case stops with you, counselor.” He makes it sound like I’m giving excuses.

“They’re confident they’ll find it,” I say.

“Good for them,” says Ingel. “In the meantime what are we supposed to do?”

Chambers smells advantage here, some unexpected boon. In a death case, chivalry is a stranger to the courtroom and defense attorneys, the good ones, give no quarter. He edges in close to the Prussian’s desk.

“We’ll oppose any motion for continuance,” he says. “The defense is ready to proceed.” He reminds the judge that the defendant has not waived time.

There is more than a week left before the sixty-day period will run requiring a dismissal for failure to prosecute. But Ingel makes clear that he is not entertaining any motions to continue.

“We’ve picked our jury,” he says. “I’m not about to let them sit around and chew on the facts of this case while the prosecutor looks for missing evidence.”

The less charitable might accuse the Prussian of hearing Hawaiian strings, but in point of fact he is right. There is nothing more dangerous than a restless jury once empaneled. Left to their own devices there is no end of mischief they might get into, speculation about the case they are about to hear, suppositions on the evidence.

Most of the jurors have read news accounts of these murders, seen the white-sheeted bodies, the cleaned-up aftermath of these crimes on their television screens.

“We are ready to go,” says Ingel, “and go we will, on this trial this morning.”

“I’m not asking for a continuance,” I say, “just some latitude.”

Ingel looks at me like he doesn’t know the word.

My tactic in coming here is not deep. The continuum of cord is the common thread of evidence running through my case. It was presented to the grand jury and is highlighted in that transcript, which by now Chambers has read and dissected. That a piece of this is now missing is not something likely to elude Adrian.

When he sees it he will make an immediate motion to dismiss the first two counts of murder, Julie Park and Jonathan Snider. Knowing the Prussian and his attitude toward me, I don’t want him to make a snap judgment from the bench on this. So I raise it here in private, off the record, a rehearsal to help temper his judgment. I ask Ingel for some leeway, to hold off on any motion to dismiss until we have time to find the cord, to give me a little license in presenting my case until then.

He is noncommittal.

He reminds me of my opportunity to settle the case, the proffered plea bargain on six counts of murder. If he could, Ingel would order me to don sackcloth while he shovels ash on my head. For a moment, I think maybe he would like to reopen negotiations, but suspects that Adrian, now sensing blood on the water, is not so keen. Instead he says nothing.

“How critical is this evidence?” he says. He wants a damage assessment on my case, here in front of Adrian, how the missing piece of cord fits in.

I give him the facts, but stop short of summing them up, that two counts of murder are now hanging perilously on a slender thread.

The sense of relief in his face when he discovers that the count on Sharon Collins is still intact is nearly palpable. He will not have to carry bad news to Acosta, at least not yet.

Adrian sees his opening. “I move for dismissal,” he says, “on Park and Snider, the first two counts, your honor.”

Ingel holds him off, palm outstretched.

“Is this the only evidence linking the defendant to these crimes?” he asks. “The missing piece of cord?”

I tell him it is not. “The fact that we can link evidence in the defendant’s van to the murders of the second two college students, this together with the fact that all four killings involved a similar MO,” I say, “provides a nexus to the defendant.”

“With a reach like that you should be the heavyweight champ,” says Chambers. He means that I am stretching my case. He is right, but it is all that I have left for the moment.

“The pieces of cord in all four murders are of the same manufacture, as are the metal stakes,” I tell Ingel, this latter to add a little gloss.

“And could have been bought in ten thousand places by a million people,” says Adrian.

“A question of fact for the jury,” I tell Ingel.

The judge makes a face like maybe. I have him thinking at least in the right direction.

Adrian is jumping all over his desk, pointing out that the Scofield murders also have a common MO, but that these have not been charged against his client. Instead, he says, the police have tacitly admitted that these crimes were committed by another perpetrator. “It’s the only thing so far that they got right,” he says.

He will be singing a different tune when I dump Tolar’s medical evidence on him, the autopsy results showing the knife wounds and the fact that the Scofields were killed someplace else. Let him try to massage that and make it fit.

“Two days ago you were ready to cop a plea in Scofield,” I tell him.

“That was tactical,” he says. He knows I cannot make this argument or reveal any of the matters pertaining to settlement negotiations to the jury. Mention of such failed deals is taboo at trial, a policy rooted in the ancient maxim that the law favors settlement. If defendants knew their openers to cop a plea would be revealed to the jury, the time-honored practice of bargaining would die a quick natural death.

Ingel finally looks up. He’s had enough.

“We’ll take this out on the record,” he says. If he gives me a break it is against his better judgment, but, one thing is clear, he will not spare me a good thrashing in the press. The papers and TV will have a field day, headlines and ten o’clock teasers about how the DA lost critical evidence.

With all of my problems, Adrian still has a single overweening difficulty with his case. He must explain how the coiled cord, the one now tied to the second two murders, and the metal stakes came to be found in his client’s vehicle. It is on this pivot point that his entire defense now turns.

For the moment Ingel has rejected his motion to dismiss the Park and Snider murders. This was done out of the presence of the jury, to avoid tainting them with thoughts of evidence, the missing cord, which may or may not later be produced.

I can no longer look Kim Park square in the face as he sits in the audience and glares. I know that on the first break he will accost me in the hall, ask me how justice is possible in the face of such negligence.

To avoid Ingel’s mounting hostility I have clung to the inner limits of restraint in my opening statement to the jury, a straight recitation of the evidence, the van, its registration, the incriminating items found in it.

“We will demonstrate, ladies and gentlemen, by expert testimony, the sociopathic links among these four murders, the common methods employed, and the inner workings of a sick and dangerous mind that will demonstrate beyond a shadow of doubt that the defendant, Andre Iganovich, committed all four murders and did so in a cold and calculating manner.”

I lay out the bloody rag found in the van which DNA testing now shows to have traces of blood not inconsistent with that of Sharon Collins and Rodney Slate. A few round eyes in the jury box.

I talk about the common manufacture of the cord, the fact that some pieces found at the second murder scene have been scientifically linked, a conclusive match, with the coiled length found in the Russian’s vehicle. The measure of my loss, the missing piece of cord, is now underscored by the snapping of necks in the jury box with mention of this forensic connection. It is the touchstone of my case.

Here I concede the broken window of the vehicle, touch on this briefly so that it does not look as if I am running from this circumstance of fact.

I talk about the stun gun taken from Iganovich at his arrest, and the burn marks found on Julie Park and Rodney Snider, evidence that the medical examiner will talk about.

Ingel shows appearances of growing restive as I hit the final issue, the uncharged Scofield murders.

“The defense will no doubt,” I say, “try to confuse you with a third and final set of murders, the deaths of Abbott and Karen Scofield, which at this time, and based on the evidence in our possession, we believe are copycat crimes.”

I take the middle ground here, not entirely absolving Iganovich, but leaving a little wiggle room if evidence later develops, which might allow me at the last moment, before the close of my case, to amend and charge the Russian. Lenore is feeling particularly nervous on this. She wants to talk about something involving Scofield when we break for lunch today.

“The evidence,” I tell the jury, “will demonstrate marked differences in the manner in which these crimes were carried out, which at this time, and given the evidence available, lead us to believe that Andre Iganovich did not commit them.”

I use this to foster a picture of evenhanded justice, the avoidance of overzealous prosecution. But the fact is that I must touch on it to avoid giving the appearance that we are hiding from these unresolved questions, unsolved murders with a seemingly common perpetrator.

With this I turn and take my place at the counsel table.

Chambers does not reserve his opening to the commencement of his case. Instead he is on his feet, almost before the invitation from Ingel. He wants to neutralize early any major points I may have scored, and he wastes no time.

He hits on Scofield, the theme that the true murderer is out there, stalking, still at large, that his client is a defendant of convenience, an immigrant with limited language abilities, someone obvious to dislike, easy to convict.

Ingel stops him. “You’re making argument, Mr. Chambers. Stick to the evidence of your case,” he says.

“Yes sir,” he says. Adrian regroups.

“The evidence of this case,” he says, “is entirely circumstantial. The fact is that my client would not be here today but for three pieces of evidence, a coil of cord, some metal tent stakes, and a piece of cloth with human blood on it.

“This and the inference,” he says, “that found in his car they must therefore belong to Mr. Iganovich. That in a nutshell is the state’s case.

“On first blush,” he says, “this may seem damning. But consider for a moment the rest of the evidence, the part that Mr. Madriani did not emphasize, the part that he does not know.”

With this he turns and looks at me sitting at the table.

“The evidence will show,” he says, “that indeed a window of this vehicle was broken as the prosecutor willingly admits. What he does not tell you,” he says, “what he fails to disclose is the fact that this window was smashed completely out, leaving the vehicle open to anyone who chanced by. The van sat there in a public garage, open to any passerby for a substantial period, for a number of days, before police came upon it, opened it, and found the seemingly incriminating evidence. This is the state of the evidence.

“The fact is anyone could have deposited the evidence in that vehicle after it was parked.”

“You’re arguing again,” says Ingel. “Keep to the evidence, I don’t want to tell you again,” he says.

“I was just getting to it, your honor, a critical piece of evidence.”

Ingel looks at him and nods as if to say, “then do it.”

“For some time police operated on the theory,” he says, “that this window was broken by a vandal, a possible witness who may have looked inside, who may have noticed the presence,” he lingers for a moment, mental italic for the words that follow, “or the absence of this critical evidence inside.

“They had reason to believe,” he says, “that this was the case. Testimony from their own officers will reveal that this theory in fact was pursued, but to no effect. The police,” he says, “on that stand”-he points to the witness box-“will tell you this.”

I look at Lenore, like how could he know this.

She leans in my ear. “Roland,” she whispers.

She is right, the tripping little fingers of Roland Overroy are all over this, revelations no doubt intended as a show of good faith to Adrian in their negotiations.

“But the police failed,” says Chambers, “to find this critical witness. Perhaps they should have looked a little harder. For it is failure which we have rectified.”

Lenore is leaning toward me to add something, when she hears this, breaks off and looks instead at Adrian, his hands gripping the jury railing.

“We will present a witness,” he says, “who will testify that he is responsible for breaking the window of this van, a man who has cut no deals with the prosecution for his testimony, who is willing to face the penalty for his crime.”

Like this is an assurance of credibility, a single misdemeanor count for vandalism.

“Our witness,” he says, “will testify under oath that when this window was smashed, he intended to burglarize the vehicle, that he opened the doors and went inside. He will testify unequivocally that after entering the van he was disappointed. He will tell you that he found nothing of value to take, no radio or tape deck, no tools, nothing of significance.”

Adrian turns from the jury and looks directly at me. In the instant before he speaks I get a premonition of what is to follow. Then he drops the hammer.

“He will also tell you,” he says, “here under oath, that on the day he smashed the window there was no coiled cord, no tent stakes and no bloody rag in the defendant’s vehicle.”

With this all I get is Adrian’s simpering smile.

Lenore and I are the picture of cool sitting at the table, seeming indifference dripping from us, like perhaps the only thing on our minds is an early lunch.

Inside I am a hot caldron, steaming to get my hands on Chambers’s witness list, buried in the pile of papers in front of me.

Adrian takes his seat. Ingel checks his watch.

“Too late,” he says, “to call a witness. We’ll take the luncheon recess now. Mr. Madriani,” he looks down at me. “You will be ready for your first witness when we convene,” he looks at his watch. “At one-fifteen.”

“Yes, your honor.”

He admonishes the jury not to discuss the case, then smacks the gavel on its wooden base.