Accused

FORTY-FOUR

There's an old saying among trial lawyers: You can't pick your fact witnesses, but you can pick your expert witnesses.

Fact witnesses testify to facts-what they personally saw or heard. They identify the perpetrator or the murder weapon or the getaway car or what they saw at the crime scene. A prosecutor can't substitute better fact witnesses. They might be too young or too old or too nearsighted or too much of a jerk for the jury to appreciate, but he's stuck with what he's got. The DA was stuck with Ronda Jensen, Officer Art Crandall, and Detective Chuck Wilson as the state's fact witnesses.

But he wasn't stuck with his expert witnesses. Because expert witnesses offer their opinions. If a prosecutor doesn't like the first expert's opinion, he can find another one who will give a better opinion-an opinion that will support the prosecution's version of the case.

"Hard" experts testify as to "hard science": fingerprints, DNA, toxicology, cause of death, manner of death. The criminologist, the lab technician, and the medical examiner were the state's hard experts.

"Soft" experts testify as to the "soft sciences," primarily psychology and psychiatry. They testify as to the defendant's mental state. The D.A. picked a psychiatrist, Dr. Richard Holbrooke, as the state's soft expert witness. He had white hair and wore black reading glasses even when he wasn't reading. He wore a crisp shirt under a tailored sports coat. He was not nervous because he was a professional witness. He would testify for the prosecution or the defense, whichever side paid him more. That day he was a prosecution witness because the State of Texas had more money than Rebecca Fenney.

A bad fact witness can lose the case for a prosecutor, but a good expert witness can win the case. Consequently, there's another old saying among trial lawyers: Bad science convicts more innocent people than bad witnesses.

Scott stood and tried to make the best of a bad witness. "Objection. Once again, Your Honor, defense objects to the testimony of Dr. Holbrooke as being junk science that will in no way assist the trier of fact-this jury of intelligent, thoughtful jurors-in their search for the truth, but is in fact merely an attempt to inject a Dr. Phil moment into this trial."

The D.A. had a slight smile on his face. The judge did not.

"And once again, Mr. Fenney," she said, speaking to the cameras, "your objection is overruled. Whether Dr. Holbrooke's testimony is relevant and admissible is my decision and I have made my decision."

She seemed pleased with her speech. Scott sat. Bobby leaned in and whispered, "What jurors are you talking about?"

The D.A. began his direct examination. "Dr. Holbrooke, have you reviewed the toxicology report on Rebecca Fenney?"

"Yes, I have."

"And did she have alcohol and cocaine in her system the night of Trey Rawlins' murder?"

"Yes, she did."

"How much?"

"Point-two-two alcohol and four hundred nanograms per milliliter of cocaine."

"In layman's terms."

"A lot."

Bobby's laptop pinged. He read Karen's message then said, "Objection. If he's an expert, he can do better than 'a lot.' "

"Overruled."

"A whole lot, then," the doctor said.

"Doctor, in his opening statement, Mr. Fenney posed a question for the jury and Mr. Herrin just posed the same question to Detective Wilson: How could a normal person such as Rebecca Fenney have killed Trey Rawlins then slept in his blood? That is indeed a perplexing question. Do you have an expert opinion that might help the jury answer that question?"

"Yes, I do. With that much alcohol and cocaine in her system, she could have stabbed him then passed out in his blood."

"I see. Is it likely that she remembered much from that night?"

"No. That night is probably a complete black hole."

"She could have stabbed Mr. Rawlins and not remember?"

"Yes. She quite likely remembers very little from that night."

"Thank you, Doctor. Pass the witness."

Bobby stood. "Dr. Holbrooke, you're a professional witness, correct?"

"I'm a psychiatrist who testifies in court."

"You get paid for testifying, correct?"

"Just as you get paid for representing your client."

"Who's your client-the State of Texas or the truth?"

"I am here to offer my professional opinion."

"For a fee. What percentage of your income is derived from testifying in court?"

"I'm not sure."

"Best guess."

"I can't guess."

"Okay, how much did you earn last year from treating psychiatric patients?"

"Nothing."

"Ah, now we're getting somewhere. Do you have any other sources of income, other than testifying in court?"

"No."

"So one hundred percent of your income is earned by testifying?"

"Yes."

"See, that wasn't so hard. How many times have you testified in a criminal trial?"

"I'm not sure."

"More or less than a hundred times?"

"More."

"And were you paid for each time?"

"Yes."

"How much is the State of Texas paying you for your testimony today?"

"Including my review of the case files?"

"Your entire bill."

"Ten thousand dollars."

The D.A. stood and said, "State calls Rosie Gonzales."

Rosie was thirty-two, single, and a Mexican national with a green card. She spoke English; she took classes at the community college. She wanted to be a registered nurse. Since immigrating from Matamoras two years before, she had been a maid.

"Ms. Gonzales, did you clean Trey Rawlins' house?" the D.A. asked.

"Yes, I did that."

"How long?"

"Maybe, four hours."

"No. When did you first start cleaning his house?"

"Oh. One year ago."

"And how often did you clean the house?"

"Two days each week-Mondays and Thursdays."

"And did you clean the house on Thursday, June the fourth of this year?"

"Yes, I did that."

"What time did you arrive that day?"

"Maybe, eight."

"In the morning?"

"Yes."

"And what time did you leave?"

"Noon."

"Was anyone else in the house while you were there that day?"

"Mr. Rawlins, but he left at nine. And Ms. Fenney, she left at ten."

"And did you see them again that day?"

"No, I did not see them."

"And what did you do that day?"

"Wash the clothes, vacuum, windows, dishes…"

"Let's talk about the dishes. When you arrived, were there dirty dishes to be washed?"

"Yes, in the sink, and the dishwasher."

"Were there any dirty knives?"

"Yes."

The D.A. stepped over and picked up the murder weapon. "This knife?"

"No, not that knife."

"Other knives from this set?"

"Yes, one."

"And what did you do with that knife?"

"I washed it."

"How?"

"With my hands."

"Did you use a washrag and soap?"

"Yes, I did that."

"Did you scrub the blade?"

"Yes."

"Did you scrub the handle?"

"Yes."

"Is that how you always cleaned the knives, by hand?"

"Yes, then I put them in the dishwasher."

"You washed the knives first by hand and then in the dishwasher?"

"Yes, I do all the dishes that way."

"You're very thorough."

"Yes."

"So, by the time you had finished with the knives, anything that might have been on them would have been washed off, such as stains or food or fingerprints-"

Scott stood. "Objection. The witness is not qualified to testify as to fingerprints."

"Sustained."

But the D.A. had made his point to the jury.

"Ms. Gonzales, after the dishwasher had finished running, what did you do with the dishes and utensils inside?"

"I dried them off and put them up."

"Including the knife?"

"Yes."

"And did you put that knife in the drawer with the other knives in that set?"

"Yes, I did that."

The D.A. held up the murder weapon. "At that time, was this knife in the drawer?"

"Yes, it was there."

"Ms. Gonzales, when you left at noon on Thursday, June the fourth, were there any dirty dishes, glasses, silverware, or knives anywhere in the Rawlins house?"

"No. I clean everything."

Bobby had one question for Rosie: "Ms. Gonzales, did you ever hear Mr. Rawlins and Ms. Fenney arguing or fighting?"

"No. I did not hear that."

The prosecution's final witness was Terri Rawlins. She was petite and pissed. Which was understandable: her brother had been brutally murdered. Since she was a prosecution witness, Scott could have had her banned from the courtroom until she testified. But he hadn't because he wanted her to hear the truth about her brother-because Scott needed her to waive the attorney-client privilege. He needed to know what Melvyn Burke knew about Trey Rawlins.

"Ms. Rawlins," the Assistant D.A. said, "you and Trey were twins?"

"Yes."

"Were you close?"

"Very. We talked about everything."

"He called you often?"

"Almost every day."

"Do you miss your brother?"

"Every day."

"He was your only living sibling?"

"Yes."

"Did Trey ever mention to you that he was going to marry Rebecca Fenney?"

"No. Never."

"Thank you."

The jury seemed sympathetic toward Terri Rawlins, as well they should be. So Scott whispered to Bobby, "Be gentle." Bobby nodded and stood.

"Ms. Rawlins, I'm very sorry for your loss. I know you loved your brother, but I have to ask you some questions about him, okay?"

She nodded.

"Did Trey ever tell you about his affairs with wives of other pro golfers?"

She appeared flustered. "No."

"Did he ever tell you he was having an affair with a seventeen-year-old girl?"

Even more flustered. "No."

"Did he ever tell you that he used cocaine?"

"No."

"Or that he owed five hundred thousand to his drug dealer?"

"No."

"Or that he owed fifteen million to the mob?"

"No."

"Well, Ms. Rawlins, perhaps you and Trey didn't talk about everything."