The Judge

CHAPTER 28

When Harry and I open our case for Acosta, it is in those areas of scientific expertise where the prosecution has for some inexplicable reason never ventured. If Kline has a weakness, a soft underbelly exposed by inexperience in the courtroom, it is in his failure to anticipate.

There are mysteries he has left in his wake, needling questions of evidence that he would have been better to explore than leave for us.

Lewis DeShield is an expert in the science of metals, specifically the alchemy of separating trace elements, matching known with questioned samples from crime scenes.

We do the foundational dance, getting his curriculum vitae, education and experience that entitle him to testify, offering expert opinion. Kline offers a stipulation in an effort to keep DeShield’s credentials away from the jury. We decline, and twenty minutes later finally reach the core issue.

“Mr. DeShield, did you inspect the crime scene, in this case the victim’s apartment, last August twenty-eighth?”

“At your request,” he says, “I did.”

“And as a result of that inspection can you tell the jury what you found?”

“I examined the area of the living room, and in particular a small metal-and-glass coffee table. On the underside of that table I observed scratches on the metal at one edge, and what appeared to be traces of some foreign metal, not part of the table. I photographed these, and then, using tools, I removed some traces of metal from the edge of the table, packaged these in an evidence envelope, and removed them to my laboratory for analysis.”

We retrieve this envelope from a box of physical evidence. DeShield identifies it and we have it marked by the clerk, along with some slides and pictures.

I have the table, which the state has already placed in evidence, brought forward into the well of the courtroom, where DeShield identifies it. He then comes down off the stand to show where he found the scratches and trace metals. It is near the corner where blood had pooled and where according to the coroner the blows that killed Brittany Hall were most likely administered. Then the witness climbs back onto the stand.

“Did you form any early opinion based on visual observation as to what these trace metals on the table might have been?”

“It was my belief that they were scratches left by jewelry. There appeared to be elements of gold in the traces.”

For this DeShield employs photographs, enlargements under magnification, mounted on poster boards. We prop these on two easels in front of the jury box, where the witness illustrates the location of the metal scrapings with a pointer.

“Do you know whether the victim was wearing jewelry the night of her death that could have accounted for these scratches?”

“According to all the information I have, she was not.”

“In your examination of the table, did you notice anything remarkable about the location of these scratches?”

“Yes. While there were some minor scratches on the top surface near the edge of the table, the most severe marking appeared to have taken place at the edge on the underside of the table. Assuming the marks were left by a piece of jewelry worn by the perpetrator, it would appear that the force exerted in making these marks was the result of an upthrust, a pulling of the victim toward the perpetrator perhaps in preparation for the administration of another blow. This was done several times, leaving a distinct series of scratches each time.”

“And why is this significant?”

“It’s consistent with other expert opinion that multiple blows were struck. But more important, it is possible that as a result of the force of these upthrusts the jewelry in question may have become dislodged, caught on the table, and actually ripped off the perpetrator.”

“Objection,” says Kline. “Speculation.”

With this, Kline’s detective, John Stobel, comes out of his chair and leans toward the prosecutor. He wants to talk, but Kline abruptly waves him off as a distraction.

“You can tell this?” says Radovich, looking at the witness.

“Not with certainty,” says DeShield. “But from the depth of the scratches, one in particular under magnification, I would say it is a possibility.”

The judge waffles his wrist, like close call. “I’ll overrule it,” he says.

The problem for the prosecution is that if the jewelry came off, Stobel has not found it.

We turn to DeShield’s analysis of the metal traces, what he collected from the edge of the coffee table, and get into the technical stuff. The question here is whether the metal scraped off the table can be matched to a specific piece of jewelry.

DeShield tells me this is possible.

“Is this like comparing fingerprints?” I ask.

He considers for a moment, then says, “Not usually. We can show the existence or nonexistence of class characteristics in terms of the metal’s chemical composition. This is more likely to allow us to exclude certain possibilities as a potential match.”

He does concede, however, that there are cases in which the presence of what are called “trace elements,” impurities in the metal, can form invisible markers.

“Depending on how rare these are, their percentage to the total composition of the metal, and the number of these impurities, you could have a situation in which there are significant points of comparison in which a positive identification would be possible.”

He is now talking about evidence beyond a reasonable doubt. Find the owner of the jewelry, find the killer.

“Like fingerprints?” I ask.

“There have been cases involving matches of paint,” says DeShield, “in which known and questioned samples have been matched to a certainty of less than one chance in ten billion. This is a higher probability than human fingerprints. This was based on multiple impurities in the paint and the lack of likelihood that the same combination and percentage of these impurities would be replicated in another paint batch.”

“And the same might be true of metals?”

“It’s possible.”

The look on Kline’s face at this moment is ominous. For a moment I think he suspects we have actually found the item of jewelry, a positive match, and that it does not belong to my client. There’s a furious discussion at the counsel table between Stobel and Kline. The detective is shaking his head, like this is not the way the cops read the evidence. Nonetheless, it presents an interesting alternative for the jury.

“Did you have an opportunity to analyze the trace portions of metal removed from the table?”

“I did.”

“And how was this analysis performed?”

“Actually, I used two methods: standard spectrography and an examination under a scanning electron microscope with an energy-dispersive X-ray detector, a process known as EDX.”

This is the stuff that is deadly. I notice that in the jury box eyes are beginning to glaze over. Talk of science.

“What is spectrography?” I ask. “Very briefly.”

“A small portion of the evidence, usually a fraction of a gram, is burned at high temperature. The atomic structure of the substance is disturbed by the heat. In turn, this emits waves of energy, which we observe as colors. These color patterns are focused on a photographic plate and can be read as possessing certain wavelengths which correspond with the precise chemical composition of the substance. It’s a very old process, but reliable.”

He covers the so-called EDX process in similar shorthand fashion. A lot of yawning from the box.

“So you can tell precisely how much iron or copper, or magnesium, so-called impurities, are contained in a sample of metal?”

“That’s right. In theory you take the scrapings from the table, another scraping from a piece of jewelry, and compare them for chemical composition, and in particular the existence of known impurities, trace elements, in known quantities. If there’s enough of them, and they match, voilà.”

“And you can do this with minute amounts of metal?”

“We can. In fact we did not use all of the scrapings we took from the table.”

“You still have more of that sample?”

“We do.”

“So you could turn it over to the police if they needed to do their own tests?”

“We could,” he says, “but there’s no need. They took their own scrapings from the same area.”

This is the point I wish to make; that the cops took their own evidence and have buried it.

“Do you know whether they analyzed the portion they took?”

“Objection,” says Kline. “Hearsay.”

“I’m asking if the witness knows from personal experience,” I tell Radovich.

“Do you know?” says the judge.

“Yes,” says DeShield. “I was present for part of the testing.”

“Overruled,” says Radovich.

“They did tests on the defendant’s jewelry,” says DeShield.

“All of it?”

“To my knowledge, yes.”

“Let’s come back to that later,” I say. “First, can you tell us what you discovered as a result of your analysis?”

“It would be my opinion that whatever made those scratches on the table and left traces of its own metal was custom-made and very expensive,” says the witness.

“And what is that opinion based on?”

“The chemical composition,” says DeShield. “Very high gold content. Twenty-two karat. Somewhat unique for jewelry. Used mostly in India, where labor costs make design and construction of custom-made items of nominal concern. People buy gold there for its intrinsic value. A hedge against inflation,” he says.

“Is that your opinion as to the source of this jewelry?”

“Most likely. Very little is imported for sale here. Too expensive,” says DeShield.

“Did you find markers? Any impurities in the metal?”

“No. It’s the problem with gold of that quality,” he says. “Trace elements-lead, iron, magnesium-these normally will have leached out long ago.”

There’s the semblance of a smile from Stobel, and a knowing glance from Kline, who actually slaps the table in relief, though he tries to conceal this as merely stretching when he realizes he has drawn attention.

“So there is no way chemically to determine a positive identification between the trace metal and an item of jewelry?”

“Not chemically. No.”

“Is there another way?”

“In my opinion, it is possible.”

The smile melts on Kline’s face.

“How?”

“Tool marks,” says the witness.

DeShield had come to me with this a week ago. While he could not match the metals because of their purity, there is another common characteristic of gold. It is malleable, soft, especially in the twenty-two-karat variety he has identified here. He now explains this to the jury.

“The fact is that the underside of that table contains small ridges, raised areas that are part of its design. These are unique in their size and spacing.”

He has a picture to illustrate this, and we place it on the easel, a ten-power magnification that makes these grooves look like the mountains of the moon or, more accurately, according to DeShield, the teeth on a key.

“Find gold jewelry with gouges that match those grooves, and you would have positive identification.”

I allow this to seep in at Kline’s table, like sludge in beach sand, while I plow through our box of evidence. With the rustle of paper, he is all eyes. For a moment he gets out of his chair, looks at Stobel.

“Your Honor, could we approach?”

“Not now,” says Radovich.

Kline would like to break a dramatic moment. He can’t be sure, but there is a chance we have the missing object, the item of gold. How, he cannot know.

I pull out a paper sack, sealed with an evidence tag. All of these items have been collected by us under the watchful eye and direction of the special master, appointed by the court to ensure that there are no chain-of-custody problems, allegations of hanky-panky with the physical evidence. They have been examined and sealed in evidence bags by the special master and turned over to the court.

“Mr. DeShield, I’m going to show you a bag and ask you if you can identify its contents.”

I hand this to him. He reads the tag and opens the bag.

“A number of items of jewelry,” he says.

Kline gives me a look, a pained expression, as if I were leaving him suspended in air. He doesn’t sit but drifts to the witness for a look over my shoulder.

“And where did this particular jewelry come from?”

“The police department,” says DeShield.

“And where did they get it?”

“From the defendant’s home,” he says. “It’s contained in an inner bag signed by Detective Stobel, and there is an inventory sheet,” he says.

“And you retrieved this from the police department with the special master?”

“I did.”

“Why did you do this?”

“Because the prosecution was not going to place it in evidence,” he says.

“Objection,” says Kline. “How could he know that?”

“It’s a given,” I say. “You have closed your case and the jury has not seen it.”

Radovich nods. “Overruled. The answer will stand.”

“Do you know whether this is all the jewelry belonging to the defendant?”

“I’m told that it’s all the jewelry belonging to the defendant that the police found when they conducted a search of his home.”

“And do you know whether they examined it for chemical composition, or comparison to the traces of metal found on the victim’s coffee table?”

“I’m informed that they did. I have a copy of their report.”

All the reasons you don’t want to bury unproductive evidence. The other side will beat you over the head with it.

“And what did they find?” I ask.

“They were able to exclude every piece as not consistent with the chemical composition of the traces of metal found on the table.”

“And have you examined the jewelry belonging to the defendant?”

“I have.”

“And do you confirm the findings of the police crime laboratory that this jewelry belonging to the defendant does not correspond to the chemical composition of the trace metals found on that table?”

“I do.”

“And have you examined these pieces of jewelry to determine if any of them contain tool marks corresponding to the ridges on that table?”

“I have.”

“And what did you find?”

“None of the pieces contain such tool marks.”

“And to your knowledge, all of this information was available to the police, was it not?”

“Yes.”

Kline looks at me at this moment, seething with anger.

“Thank you. Your witness.”

He cannot resist the obvious question, even before he reaches the podium.

“Mr. DeShield,” he says, “did you not just tell us that the item of jewelry in question is likely to have been ripped off of the perpetrator?”

“It’s a distinct possibility,” says the witness.

“Then isn’t it probable that the item in question would not have been in the defendant’s home when the police searched it?”

“That’s true,” says DeShield, “but then I would have assumed that the police would have found it at the scene.”

Acosta actually grabs my arm and chuckles when he hears DeShield’s reply. This sticks like a burning hot poker from Kline’s ass, the thought that police not only buried their findings on the jewelry from Acosta’s house, but may have destroyed evidence when they discovered that it did not belong to their principal suspect.

Kline looks at Stobel, who actually shrugs his shoulders, a whaddya-gonna-do kind of expression.

“Isn’t it possible that the defendant removed it before he left,” says Kline, “and discarded it?”

“Objection, calls for speculation.” I’m up out of my chair.

“Sustained,” says Radovich.

“No more speculative than that we should have found it at the scene,” says Kline.

“You asked the question,” says the judge.

Kline fumbles at the podium with a yellow pad. His pen lands on the floor and he has to stoop for it. When he comes up, he is clearly puzzled, and pissed.

This is clearly not his finest hour. There is some shuffling in the jury box, and after several seconds Kline finally regroups and finds his place in his notes.

“Now. Now. You say,” he says, “that positive identification is possible. Exactly how specific could one of these tests be to determine what you called positive identification, the metal scrapings with the jewelry?”

“Which test are you talking about?” says DeShield.

“Well, any of them?” says Kline, like take your pick. He is obviously angry with the witness.

“As I said, given the gold content of the trace metals taken from the table, chemical analysis would not be useful to determine a positive identification with a specific piece of jewelry. But tool marks are another matter.”

“Yes,” says Kline. “The tool marks. How specific could you be in that regard?”

“I couldn’t say for certain until I examined it, but. .”

“Then you haven’t seen this jewelry?”

“Objection. Counsel should allow the witness to answer the question before interrupting,” I say.

“Sorry,” says Kline.

“As I was saying,” says DeShield, “an examination of the jewelry I believe would be dispositive. I believe that the marks would permit a definitive identification.”

“Then you haven’t seen the jewelry?” Kline is obsessed with this. By now he is thinking we must have it, holding it for a dramatic moment, but how?

“I haven’t seen it. Not yet,” says DeShield.

This sets Kline off.

“Then you know where it is?” he says.

“No.”

“You just said you haven’t seen it yet.”

“That’s what I said.”

“Does Mr. Madriani have it?”

“I don’t know.”

Kline looks at me and for a moment I actually wonder if he’s going to demand that I take the stand.

“Your Honor, we have a right to know if the defense is withholding evidence,” says Kline.

“Your Honor.” I jump in before Radovich can say anything. “We’re aware of the rules of reciprocal discovery. I will assure the court here and now that we have not violated them. We’ve produced everything to date that the law requires us to produce. Beyond that we cannot be compelled.”

This is a legalism that does not satisfy Kline.

“Your Honor, a straight answer,” he says.

“In chambers,” says Radovich. He gavels down. “Five-minute recess.”

Inside it are Harry and I, Kline and Stobel. Kline is animated, clearly angered by my antics of hide-the-ball. He is telling the judge that he has figured it out.

“The item of jewelry is being held by Lenore Goya,” he says. “Her fingerprint on the victim’s door. Now it all makes sense,” says Kline.

“Is this true?” says Radovich.

“I don’t know what he’s talking about,” I say.

“You have the missing jewelry,” he says. “It no doubt belongs to his client,” Kline tells Radovich. “All the pieces fit. It’s how she muscled her way into the case.”

“Who?” says Radovich.

“Goya,” says Kline.

He calls it extortion, and Radovich cuts him off.

“I don’t want to hear any more of that,” he says.

Kline comes off like a man on the edge.

“A straight answer.” Radovich looks at me. “Do you have the missing item or not?”

“I don’t have it,” I say. All the inflection is on the personal pronoun, which sets Kline off again.

“If anybody else has it, I don’t know about it,” I say.

“No games,” says Radovich. “I won’t have games here.”

“Well, he’s playing games,” says Kline.

“No games,” I say. “We may, I admit, have theories. But theories are not discoverable,” I tell the judge.

“You know where it is?” he says.

“I don’t know anything,” I tell him.

Radovich lays both hands palms down on the desk and shrugs.

“He says he doesn’t know,” he tells Kline.

“He’s lying,” says Kline.

“You’ve asked me and I’ve told you, Your Honor. I don’t have it, and I don’t know where it is.”

“Sure,” says Kline, “but Goya does.”

“You know that? Prove it,” I tell him.

“Your Honor, we move to reopen the state’s case, to call Lenore Goya to the stand,” says Kline.

“And we object,” I tell Radovich. “The state had every opportunity to call Ms. Goya during its case. It was aware of her fingerprint on the victim’s door and it failed to call her. Now they think they made a tactical mistake and they want to revisit it.”

Radovich is a million faces, expressions like melting butter behind the desk.

“I’m inclined to agree,” he says. “You had your chance,” he tells Kline. “It’s not that I’m unsympathetic.” He gives me a look as if he’s not sure he believes me.

Kline makes a last hit, and the judge cuts him off.

“Unless you can make an offer of proof,” says Radovich, “some hard evidence that Ms. Goya or Mr. Madriani has the item of jewelry in question, I’m not gonna allow you to reopen. We have to move on.”

Harry and I turn to leave.

“And you, Mr. Madriani,” says the judge. “You better not be comin’ into my court with any last-minute evidence of jewelry discovered the night before you close. Do we understand each other?”

“We understand each other,” I tell him.

He gives me the evil eye. “Good,” he says.

As I brush by Kline on the way out I can feel a shudder run through his body with this contact. He comes up close in my ear so that no one, not even Harry, can hear this.

“You tell that bitch,” he says, “you tell her that I want it.” He is actually holding my arm as he says this, a grip like iron so that I have to pull my shoulder to one side to get away.

When I look in his eyes, it is there: all of the hostility, months of shallow, concealed enmity toward Lenore suddenly bubbling to the surface, finding expression in this-a piece of missing evidence.