Shadow of Power

15

Why would the killer remove the gloves before he left the room?” This is my opening question to Prichert on cross-examination.

“The gloves had blood all over them. You’re not going to leave the room and walk through a busy hotel with your hands dripping blood.”

“Why didn’t he leave the gloves in the room?”

“I don’t know.”

“How can you be so certain that he didn’t take them off after he left the room?” This is the question. I can see Tuchio looking up at his witness, hoping he’s caught the drift.

Implicit in my question, of course, is the fact that my client could not have been wearing gloves when he left the room. If so, how did his fingerprints get all over the entry floor and on the hammer?

“It doesn’t fit the evidence,” says Prichert. “Because it doesn’t account for the smears, the transfer marks on the bathroom floor. Or any of the other evidence.” He’s sticking to his story. “For example-”

“I think you’ve answered the question.”

“Let him complete his answer.” Tuchio, slouched in his chair, directs this to me, but for the judge to rule on. “Your Honor, counsel asked a question, the witness should be allowed to complete his answer.”

“Sustained. You can answer the question,” says Quinn.

“For example, if he was wearing the gloves when he left the room, he would not have left fingerprints on the floor in the entry,” says the witness.

Prichert turns it around on me in front of the jury and force-feeds me the theory of their case.

“Also, the blood smears on the handle of the door on the way out of the room. Gloves would be inconsistent with this evidence. Those smears were made by bare hands moving too quickly to leave clear latent prints.”

Carl must have been flying at the speed of light on his way out of that room. From the smeared prints all over it, you might have thought he was frisking the door. Forensics couldn’t get a single print that didn’t resemble the inkblots on a Rorschach test, not that it matters given the bonanza of evidence they found on the entry floor.

“Of course, your answer assumes that the fingerprints on the floor and around the hammer belong to the killer and not someone else?” I say.

“Yes, but the issue is whether that assumption is reasonable,” says Prichert, “and in this case I would say that it is eminently reasonable, considering the absence of physical evidence pointing to any other possible perpetrator.” He sticks his sword in me one more time.

When I turn away from Prichert, I am greeted by Detective Detrick sitting at the prosecution table. If the toothy grin is any indication, he’ll be organizing a human wave out in the audience any second.

“Let me ask you, if the killer took off the gloves in the bathroom, why were there no prints found at that location?”

“I would have to assume it was because he was very careful,” says Prichert.

Of course this begs the question under their theory: Why was Carl so careful in the bathroom only to leave finger paintings all over the entry-hall floor? After being stabbed twice, I leave this as one of those rhetorical items you drop on the jury in closing argument, where Prichert won’t be hiding behind a bush to give me an answer. If I were to pop the question to him here on the stand, he would no doubt say, I don’t know. You’d have to ask him. The “him” in Prichert’s answer naturally would refer to the killer, but you can bet that the glasses on the neon nerd would be flashing their beams at Carl. At the moment I have no need to be walking around with that particular pike sticking out of my chest.

I move on to the extraneous hairs.

“Mr. Prichert, can you tell the jury the purpose of gathering hair and fiber evidence at the scene of a crime?”

“To examine and preserve them,” he says.

“Yes, but for what purpose? What do you use them for?”

“Well, in the case of hair, you would compare, say, a questioned hair sample found at the scene of a crime with a known hair sample taken from a suspect, or it might be a known hair sample, say, taken from a victim and transferred to an article of clothing belonging to a suspect.”

“Is there some vast database of known hair samples maintained somewhere so that if you find an unidentified hair at a crime scene, you can go there and compare it in an effort to find a match?”

“Not in the way you describe it,” he says. “There may be some small collections of known samples held by some law-enforcement agencies, but these would be specialized, confined to certain crimes. Repeat offenders, for example, in sexual-assault cases.”

“But that wouldn’t apply in a case like this?”

“No.”

“So in this case you’re left to compare the so-called questioned hair samples found at the scene with known hair samples that you find where?”

“On various parts of the body. It depends on the particular crime.” Like a cabdriver, Prichert knows where I want to go, but he takes me on a ride through the park.

“But whose body?”

“Ah. I see what you mean. That would depend.”

“On what?”

“Well, for example, you might want to take hair samples from known subjects who might have had occasion to contaminate the scene. First responders, for instance, police officers or emergency medical personnel who might have come on the scene.”

“Was any of that done in this case?”

“Yes.”

“And who did you take those samples from?”

“Maids at the hotel, the officers who first arrived at the scene. I think we may have even taken a few hairs from Detective Detrick over there.”

“That’s why some of us have flat feet and bald heads,” says Detrick. Everybody laughs.

“I hope you used pliers to pull these from the detective’s head?” More laughter.

“Aw, that’s mean.” He’s still laughing. Detrick may be the enemy, but as a person he is quite affable, the kind who might make a good neighbor if you didn’t have to drill his teeth every other day in court.

Quinn taps his gavel and brings us back to the subject at hand.

“These people that you took hair samples from, were any of them considered suspects in this case?”

“No.”

“Even the maids, the other hotel employees you might have taken samples from?”

“No. Certainly not at that point.”

“So other than torturing Detective Detrick, what was the purpose of all this?” A little laughter in the audience.

“We were clearing the scene. One of the things you have to do before processing a crime scene is to identify all the people who may have been there for legitimate purposes and who may have contaminated it by inadvertently leaving trace evidence-”

“Or footprints?” I ask.

He nods. “Sometimes.”

“But not this time, right?”

“I don’t understand the question,” he says.

“Then let me clarify it for you. You took samples of hair from officers at the scene, some hotel employees, and I emphasize the word ‘some,’ because in your mind, or perhaps at the direction of Detective Detrick, these persons were determined not to be suspects in this case, is that correct?”

“That’s right.”

“And this was done so that you could eliminate any trace evidence connected to them that you might find at the scene?”

“That’s correct.”

“But when you got to the defendant, you weren’t treating him as just another hotel employee who left trace evidence at the scene, were you?”

“No.”

“Why not? Was it simply because of the quantity of evidence, the footprints and fingerprints that belonged to him at the scene?”

“Objection,” says Tuchio. “The question assumes facts not yet in evidence.”

“Your Honor, the prosecutor in his opening statement has already told the jury that he intends to prove that the fingerprints and shoe impressions belong to my client. There is no dispute over that. The defense will stipulate to those facts,” I tell him.

In fact, I have offered this stipulation to Tuchio, who has refused it, wanting instead to trot out all these details in front of the jury, with pictures they can remember.

“I renew my objection,” says Tuchio.

He’s trying to break my rhythm.

“Overruled. I’ll allow the question,” says the judge.

“Was the only reason that you refused to clear Carl Arnsberg from the scene as you did the other hotel employees based on the quantity of evidence, his fingerprints and shoe prints found at the scene?”

“I don’t know. I didn’t make that decision.”

“Who did?”

For a second he looks like one of those dolls on the dash of your dad’s car, head on a spring. “Detective Detrick,” he says. “He was in charge of the case.”

I turn and look at Detrick. He knows he will be heading back to the woodshed when I get to my case in chief.

“Let me ask you.” I’m back to the witness. “Did you take any samples of hair from my client, the defendant, Carl Arnsberg?”

“Yes.”

“Did you take any samples of hair from any other suspects besides my client?”

“No.”

“So to your knowledge there were no other suspects who were even considered with regard to the commission of this crime?”

“I don’t know. All I know is that hair samples were not taken from any other suspect or person of interest.”

“Mr. Prichert, let me ask you, did you find any questioned samples of hair at the scene that matched the samples you took from my client, Carl Arnsberg?”

“No.”

“Then let me get this straight, so that I understand. According to the state’s theory of the case, the position taken by Mr. Tuchio, my client entered the room, bludgeoned the victim to death with a hammer, went back out into the hall, retrieved a tray with food on it, and brought it into the room, putting it on a table. Then, according to this theory, my client searched the room looking for something, went into the bathroom, where he wiped down the raincoat, took off a pair of gloves, then proceeded to leave, and-let’s not forget-then panicked or was startled by something and left shoe impressions in the entry, where he slipped and fell, leaving his fingerprints on the floor as well as on the murder weapon, and then finally left the room-and during all this he never dropped a single hair from his head or his body anywhere in that suite? Is that what you’re saying?”

“No. I’m simply saying that we didn’t find any questioned hairs that matched your client.” The witness is good. He’s only going to play in his ballpark. As far as Prichert is concerned, the re-creation of events at the scene of the crime is a boat that Detrick and Tuchio have built. Let them sail it out to sea.

What is becoming abundantly clear is that the cops jumped before they had all the pieces to the puzzle. If Carl hadn’t run from the scene, we wouldn’t be here today. If he had gone to his supervisor and reported what he found, the police would have questioned him, taken his prints-both shoes and hands-plucked a few hairs from his head, and cleared him, at least initially. That’s what they did with the other hotel employees. No doubt they would have checked him out, found his friends, and probably even discovered that Carl had met in the bunker with his buddies and talked about doing evil things to Scarborough. But that would have taken time, and in that time the forensics experts from the crime lab would have been piecing together all the little details that would have told them that Carl didn’t do it, at least not in the way that Tuchio and Detrick have described.

It may be a minor point, no doubt one that Tuchio will step around in his closing argument. But I take Prichert over the falls on it anyway.

“During your investigation at the scene, did you find any small bloody transfer marks on or under the tray with the food or on the tablecloth underneath it?”

He thinks about this for a moment. “No.”

“How would that be possible if the perpetrator, immediately after killing the victim and still wearing these blood-soaked gloves, retrieved that tray and the tablecloth from the hall outside and then brought them in and placed them on that table?”

Prichert thinks about this in silence for a long moment. The tray, how did it fly into the room? “It’s probably not possible in the scenario you present,” he says.

“That’s not my scenario. That’s the scenario presented by Detective Detrick when he testified earlier.”

“Whoever crafted the scenario, it’s inconsequential,” says Prichert. “Change the order in which the tray came into the room and it’s entirely possible that there would be no blood on it.”

“How, for example?”

He smiles at me. “I don’t know. I’m not a crime-reconstruction expert.”

“You mean like Detective Detrick?”

He looks at me but doesn’t say anything. Unlike Detrick, Prichert is smart enough to avoid playing God, rearranging the cosmos of physical facts from the stand. He knows that somewhere, sometime, something will be punching a hole in the side of the universe when he’s done.

I let it drop. Tuchio and I will argue over this in closing. He will try to finesse it, bury it like a bone, and I will try to dig it up. In the end it is probably one of the multitude of items the jury will sleep through-bloody little smudges that aren’t there, unlike the fingerprints and shoe impressions that are.

I’m just about to move on to my centerpiece with Prichert when I remember the little item that Tuchio ignored in his direct questioning of the witness.

“One last question on hair,” I tell him. “When you testified earlier, you stated that there were a number of questioned hair samples, those with unidentified owners you said were collected from the area around the toe kick under the counter in the bathroom.”

“That’s correct.”

“And I think you testified that two of these-blond samples, I believe-were collected with tape from under the toe kick?”

“That’s right.”

“And that from your examination, both of these appeared to be hair samples from the same unidentified person?”

“Yes, the characteristics of the hair were sufficiently similar in each case, and that’s what I concluded. Yes.”

“You also stated that you found a number of blond hair samples-unidentified, what you call questioned samples-out in the living room, some of them on or around the chair near the victim?”

“Ah, I know what you’re getting at,” he says.

“Let me ask the question,” I tell him. “Did any of the blond hairs in the living room match the blond hairs found in the bath so as to cause you”-he’s already nodding-“to conclude that they also came from this same unknown, unidentified person whose samples you found in the bathroom?”

This was in his forensics report.

“Yes. One of them,” he says. “Do you mind if I consult my notes?”

“I have no objection.” I turn and look at Tuchio.

He shrugs.

Prichert flips through his report. He finds the page. “Yes, it was the potential floater,” he says. “I couldn’t tell how long it had been in the crevice of the chair, but it did appear based on hair characteristics to match the questioned samples in the bath. But like I say, many of the samples we found in the suite turned out to be matches.”

“Yes, but were any of those matches found in different rooms in that suite?”

“Absolutely. A number of them,” says Prichert. “We found hair, questioned samples-that is, unidentified owners with hair samples-in the bedroom and out in the living room. There were matches between samples in the living room and the dining room. It’s a problem,” he says. “You have a lot of transient use, and it’s all in a confined area.”

I move to the last issue with Prichert. It was Harry who first noticed it, looking at photos of the scene sent to our office by the crime lab. Even after he pointed it out to me, I couldn’t see it. The problem is, neither of the two photos catch it with any clarity. One of them is an oversize magnification concentrating on the zipper at the top of the leather portfolio, showing it in the open position. The other is a distance shot so far out that it’s almost impossible to see. Harry admitted that he would never have caught it himself, except for the fact that the two photos were included in an envelope labeled “Blood-Spatter Tracks.” Harry kept returning to the one close-up shot, searching for the blood, when he suddenly realized what he was looking at.

Three weeks ago, right as jury selection was ending and the trial was getting ready to start, Harry sauntered over to the police department’s property and evidence room. In actuality, this is a good-size warehouse just out of the downtown area. He wanted to look at some of the items taken by the police and inventoried in our case. Most of these came from the crime scene, along with some items from Scarborough’s apartment in Washington, boxes of files and his desktop computer. When Harry saw the number of boxes with files from the victim’s D.C. apartment, he made a note to send one of the paralegals back to the evidence room to go through them just in case Tuchio hadn’t sent us everything. To Harry it looked like there was a lot of boxed-up paper, more than the D.A. had sent us in discovery.

Of course a sergeant hovered over him in the caged locker as Harry surveyed what was there. Harry was not allowed to touch any of it, just look. It took him less than a minute, scanning down a printed inventory list, to find what he wanted. The box was pulled and put on a table outside the cage, where the same officer eyed Harry as my partner carefully went through the box wearing a pair of latex surgical gloves. When he got to the item, Harry barely slowed down. He knew that if he looked at it too long, the sergeant standing behind him would make a mental note and call Tuchio’s office with a report as soon as he left. An hour later Harry was back at the office telling me that what he’d seen in the photograph was there in physical form. He also warned me that unless we moved quickly, because of the way things were stored, stacked in boxes in the caged locker, it might not survive for long.

Back at the counsel table, Harry hands me the photo. I ask Quinn if I may approach the witness. I set the eight-by-ten color glossy on the light table in front of Prichert. Instantly it is projected on the overhead, where the jury, the judge, and Tuchio can see it. The close-up shot catches just the faintest glimmer of what I’m interested in, an area just over two inches long on the photograph.

“Mr. Prichert, do you recognize this photograph?”

“Yes.”

“Can you tell the jury what it is?”

“I believe it’s been marked for identification. That’s a partial shot of one of the leather cases. Unless I’m wrong, it’s the zipper on the light leather portfolio.”

“That’s right.”

Tuchio opened the door on this evidence in his own case when he got into the little blood spots, the transfer marks.

“Can you tell the jury what that is, right there?” I circle the area on the photo with the retracted point of my pen. Prichert looks at it, craning his neck. He removes his glasses for a second and polishes the lenses on the sleeve of his coat. He puts them back on and looks again.

“I’m sorry-but I don’t think I see what it is you’re referring to.”

“Right there.” I point to it again.

“It looks like maybe the shot is a little out of focus at that point. I’d say the focal point is farther out at the leather thong on the pull of the zipper.”

“You’re right, it is. It’s very hard to see in this photograph.”

In the picture it is nearly translucent, a thin, fine line that unless you studied it intently, you would never notice. Magnified nearly to a blur in the photo, it seems to disappear into the smooth, deep finish of the calfskin. It is why Harry, searching for evidence of blood, thought he was seeing a seam in the leather. Until he finally realized that it was a tiny section of a line straight as a ruler with a fine, dried mist of what looked like faded rust on one side and clear, smooth leather on the other.

“I think if we looked at the real item, you could see it more clearly,” I tell Prichert.

“Your Honor, I’m going to object.” Tuchio is out of his chair. “Whatever Mr. Madriani is doing, it is beyond the scope of direct. If he wants to do it, let him do it in his own case.”

“What I am do-”

“No. No.” Quinn cuts me off. “Bring it up here,” he says. He flips the sound button, and we go at it along the far side of the bench, away from the jury.

Tuchio is arguing that he never touched the folio during direct and that I shouldn’t be allowed to do it on cross.

“Your Honor, Mr. Tuchio went on at length regarding blood evidence, on the floor in the bathroom, blood on the victim’s chair, and blood transfer marks on the briefcases. All I’m doing here is addressing blood evidence on one of the cases, the small portfolio.”

“There were no transfer marks on the portfolio,” says Tuchio.

“I beg to differ. There is blood on the portfolio, and it was delivered there by centrifugal force. I’d call that a transfer.”

“Transfer involves touching,” says Tuchio.

“Maybe I should ask your witness,” I tell him.

The judge tells me to go ahead, and he flips the switch so everybody can hear again. Tuchio sits down, and I ask Prichert whether drops or particles of blood flung from an object such as the hammer, imparting themselves onto an object such as a briefcase, could be considered transfer evidence.

“Sure. You could look at it that way.”

“I’m going to renew my objection,” says Tuchio.

“Overruled,” says Quinn.

I ask the judge to have the clerk retrieve the portfolio from one of the evidence carts.

To this point we have been using photographs to document much of the physical evidence for reasons of convenience-they’re easier to handle-and because they provide a more permanent record. But the best evidence in this case will be the item itself.

Ruiz puts on gloves before he touches the leather portfolio, then brings it over and lays it on the rostrum just next to the witness stand. The portfolio had been on the table near the television in the hotel room, approximately twelve feet from where Scarborough sat on the morning he was murdered.

“This right here.” I point with my pen, avoiding contact.

Prichert studies it, this time leaning back in the chair. He can see it now. I’m guessing that he didn’t notice it during the investigation that day because two crime-scene photographers were moving among the items in the hotel room taking pictures with macro lenses, close-ups of the gloved prints in blood on the other two briefcases.

The portfolio, the top opening of which was unzipped, bore no gloved print marks. Moreover, it was empty. When Prichert turned his attention to these items in the lab, the one he concentrated on was the clean attaché case, which was on the couch in the living room, out of the line of fire from the blood spatter.

“Do you see what looks like a kind of rectangular outline of clear leather, here in the center of the portfolio?” I point to the area with my pen.

He looks more closely. “The distinction is faint,” he says. “Hard to see. But I think I see what you’re referring to.”

“And around the outside of that outline, do you see that?”

“Yes…”

I can tell by the look in Prichert’s eyes that he already knows what’s happened here.

“Can you tell the jury what that is, covering the surface on this side of the portfolio, almost all of it except the inside of the rectangular outline?”

He looks more closely. “I probably wouldn’t be able to tell you, except that I know where that portfolio was located at the time of the murder. While it doesn’t look normal, from the appearance I would say it’s a very fine mist of blood spatter. Though it’s much lighter in color than what you would usually associate with blood evidence.”

“As a trace-evidence expert, you deal with minute amounts of blood fairly regularly, don’t you?”

“I’m not a blood-spatter expert, if that’s what you mean.”

“No, but I assume you’ve attended crime scenes involving traumatic head wounds before?”

“I have.”

“In your experience in dealing with those cases, is there anything unique about the blood in those cases, particularly the density and color of the blood?”

“You’re talking about spinal fluid.”

“That’s what I’m talking about.”

“I would say that’s probably a good guess,” he says. “Blood diluted with spinal fluid might very well account for the near transparency of the stains on that leather.”

“So you’ve seen something like this before?”

“Not quite like that,” he says. “No. Every case is different.”

“Could the fine mist also be the result of the distance between the leather portfolio and the point where the hammer was swung?”

“It could.”

The seminal rule in asking any question in court is to know the answer before you ask. Harry consulted two experts with regard to an explanation for the fine film of blood that landed on the portfolio. The first was a blood-evidence expert who told us that distance from the point of origin would be one contributing factor; the farther the distance, the finer the spray. The other expert, a medical pathologist, provided the missing element, cerebrospinal fluid. The human brain virtually floats in this. Puncture the skull and what you get is not only a vigorous flow of deep red blood, often surging with the force of a pump, but a less-viscous, almost clear flow of spinal fluid. It is the reason that blood from massive head wounds often appears to be diluted, almost watery.

“Let me draw your attention back to the clear rectangular area in the leather on that side of the portfolio. Can you tell the jury what might have caused this outline to be formed?”

“If I had to guess, I’d say that something was lying there covering that area when the blood spatter hit the portfolio.” Prichert just says it right out, matter-of-fact, no big point. He knows that to belabor what is now obvious is to be pounded with it.

“Do you have any idea what that item might have been?”

“No.”

“Then I assume you don’t have it?”

“Of course not.”

“Do you know whether the police have it?”

Prichert looks over at Detrick, who is now huddled with Tuchio at the counsel table. The detective gives him a quick shake of the head, then turns back to the prosecutor.

“I think you can be fairly certain that they don’t have it either.”

It’s the only available answer, because if the police have it, they haven’t turned it over to us in discovery.

“So it appears that the item is missing?” I say.

“It would appear so.”

“Earlier I believe you testified that from your examination of the attaché case, while there was evidence of the case having been opened and traces of blood inside, you couldn’t be sure whether anything was taken. Let me ask you now: After looking at the leather on that portfolio, do you think there’s a fairly good chance that whoever killed Terry Scarborough took something from that room?”

“In light of the physical evidence, I’d have to say yes, there’s a pretty good chance that they did.”