Blind Justice

34

“THE UNITED STATES CALLS James Abshire to the stand.” Ben was surprised. They were foregoing the usual slow buildup and leading with a heavy hitter first out of the box. Abshire was wearing a blue sports jacket, khaki pants, and a dark tie—standard government witness costuming. In solemn sonorous tones, he repeated his oath to tell the whole truth. Moltke ran through Abshire’s résumé, eliciting a laundry list of qualifications and experience that made Abshire sound like the J. Edgar Hoover of the 1990s. Summa cum laude from Georgetown, top of his trainee class at Quantico, junior agent on several important investigations. Then Moltke traced the history of the Lombardi investigation, beginning with an account of how the FBI first obtained evidence of the so-called Tulsa connection, the purported narcotics pipeline flowing from South America to Oklahoma via small planes and smuggled goods.

“Do you know a man named Tony Lombardi?” Moltke asked.

“Yes,” Abshire replied. He was restraining himself, maintaining a flat, even tone. He gave no indication that he might have a personal stake in the success of the investigation. “Mr. Lombardi was engaged in the importation of parrots and other rare birds from South and Central America.”

“And why did that interest you?”

“Drug smugglers often use legitimate importation avenues to cover the movement of illegal goods. We suspected Mr. Lombardi was using his parrot network to bring cocaine and other narcotics into this country. Mr. Lombardi transferred his imported goods to another company for distribution in the United States.” He paused and made eye contact with the jurors. “A company owned by a man named Albert DeCarlo.”

Ben watched the jurors’ eyes widen. There was no misunderstanding the point of that little exercise in guilt by association.

“And do you know the defendant, Miss Christina McCall?”

“Yes I do.”

“How did you first come to know her?”

“During the course of our investigation of Mr. Lombardi. Miss McCall was his…” Abshire paused, allowing the jury to run all the possible synonyms through their minds. By the time he finished his sentence, it didn’t matter what word he used. “His special friend.”

“Was this friendship romantic in nature?”

“We believe it was, yes. They met as a result of her work for a local law firm, but the relationship became more than simply professional.”

Ben watched the jurors’ gazes shift to Christina, the scarlet woman. Well, thank God he got Mrs. McKenzie off the jury.

“Please tell us what happened on the night of Monday, April first.”

“The evidence we’d gathered indicated that major drug shipments were made on Monday nights, about every other week, and we were expecting one that night. We had been unable to determine the drop site—that is, the place where the drugs, were delivered. We hoped to follow Lombardi to the site, or at least to witness an intermediate exchange.”

“What did you do?”

“We watched Mr. Lombardi. Unfortunately, he remained at his office, apparently alone, until after midnight. When he finally left, we followed him directly to his apartment. He went inside”—another meaningful glance at the jury—“and never came out. Not alive, anyway.”

“Did you hear a gunshot?”

“No. After Lombardi went inside, we returned to headquarters and tried to obtain a search warrant. From one to two, the apparent time of death, none of our agents were—”

“Objection,” Ben said. “Lack of personal knowledge regarding apparent time of death. He’s not the coroner.”

“That objection will be sustained,” Derek said with an air that clearly suggested that he considered the matter trivial and that Ben was a petty pain in the butt for mentioning it.

“What happened next?” Moltke asked.

“No disrespect for the court intended, but the wheels of justice sometimes move rather slowly. About two A.M., we returned to the apartment building with a warrant and moved in.”

“Were you personally involved in the raid on Lombardi’s apartment?”

“I was. In fact, I had what police officers call the death seat. I led the way.”

How heroic. J. Edgar Hoover becomes Teddy Roosevelt. Ben tried not to gag.

“What did you find in the apartment?”

Several jurors, ever so imperceptibly, leaned forward. They knew they were coming to the juicy part.

“The front living room was dark, except for the blue glow of a television set. I turned on the lights and saw the defendant, Christina McCall, hovering over the body of Tony Lombardi. The gun was lying on the floor, just a few inches from her right foot. When she saw us, she screamed, panicked. As if she’d been caught in the act.”

“Objection,” Ben said. “Move to strike.”

“Sustained and granted,” Derek said. “The witness will stick to the facts.” As usual, it was barely a hand slap. Derek was keeping a clean record, ruling against the prosecution when he knew he had to, but all the while sending the jury a clear indication of his disdain for everyone at the defense table.

“Mr. Stanford and I examined Lombardi’s body. It was immediately clear he was dead—a huge section of his head was blown off; the entire cranium appeared shattered—”

“Objection—”

“Yes, yes,” Derek said. “We know. Not the coroner. Sustained. Let’s move along, gentlemen.”

“What did you do?”

“I proceeded to take the defendant into custody.”

“Did she resist?”

“Well…”A slight smile. “She didn’t exactly cooperate. Of course, we’re trained to handle that.”

Of course, Ben thought. And you never actually answered the question, did you? Although you left a clear, negative impression that she resisted arrest.

“I searched her, then handcuffed her. That’s when she made the statement.”

Moltke’s eyebrows rose, feigning surprise for the jury. “Statement? What statement was that?”

“She said, and these are her exact words, ‘I killed him.’ ”

“Are you sure that’s what she said?”

“Absolutely positive.”

“And did you provoke or elicit this statement in any way?”

“No, I did not.” He faced the jury. “I had no reason to. Frankly, it was perfectly obvious she had killed him. I didn’t need a confession. She volunteered it.”

“Objection, your honor!”

“That’s all right, your honor,” Moltke said. “We’ll strike the last remark. Are you aware of any other evidence indicating Ms. McCall’s guilt?”

“Yes. Just last week—”

“Again I object,” Ben said. “Your honor, this touches upon my motion in limine. Regarding the events of last week.”

“Well,” Derek said, “was Mr. Abshire personally involved in the investigation of last week’s incident?”

“No,” Moltke admitted, “he wasn’t.”

“Well.…then we’d better not have him testifying about it,” Derek said grudgingly. It was always a struggle to do the right thing, huh, Dick?

“Very well,” Moltke said. “Nothing more at this time, your honor.”

“Excellent,” Derek said. “And let me commend you, Mr. Prosecutor, for your succinct, straight-to-the-point examination.” He glanced at Ben. “I only hope defense counsel has been paying attention.”

Ben repeated all the points he’d made at the preliminary examination—that Abshire didn’t see Christina holding the gun, that he found no drugs on her (at that time) or elsewhere in the apartment, and that he found no weapon on her person. Ben decided not to pursue the theory that Abshire’s zeal for conviction biased his testimony. He could tell the jury liked Abshire, and they would probably find his zeal admirable, not impeaching. No, he would have to see what he could do with the gun.…

“You found no gun of any kind on Christina’s person, right?” Ben’s job was to humanize his client, to make her seem like a real person to the jury. Therefore, he would always call her by her first name (and refer to prosecution witnesses by their last).

“True,” Abshire said. “We found the gun on the floor beside her.”

“You don’t know that she actually used that gun, right?”

“Of course we do. There were clear latent fingerprints on the gun. The prints belonged to Christina McCall.”

Ben could object to this evidentiary harpoon—Abshire was not the forensics expert. But the evidence would come out eventually, and he had a different plan of attack in mind.

“Well, let’s talk about that, Mr. Abshire. You say Christina’s prints were on the gun.”

“That’s right.”

“But—didn’t the FBI also perform a paraffin test?”

“Objection, your honor,” Moltke said. “We have an expert who will testify about that.”

“This witness opened the door,” Ben insisted. “He inserted the fingerprint evidence into his testimony. Now I’m permitted to cross-examine him about his statement.”

Derek sighed. “I will allow limited cross-examination regarding the testimony given by the witness. Don’t exceed that scope.”

“Thank you, your honor.” Ben turned back to Abshire. “Was a paraffin test performed on Christina?”

“I believe so.”

“Can you explain what a paraffin test is to the jury?”

Reluctantly, Abshire did so.

“And did the paraffin test reveal any nitrous traces on Christina’s skin?”

“No, it did not.”

“Well, doesn’t that prove she didn’t kill Lombardi?”

Abshire made a snorting noise. “Obviously, she wore gloves.”

“Really.” Ben leaned forward against the podium. “Tell me, Mr. Abshire. If she wore gloves, why were her fingerprints on the gun?”

Abshire stuttered for a moment. “I…I suppose she must’ve taken the gloves off later.”

“I see,” Ben said. “Although she was smart enough to wear gloves when she fired the gun, she later removed the gloves and rubbed her prints all over it.”

“Something like that.”

“Mr. Abshire, does that make any sense to you?”

It was the classic one question too many. “Cards-on-the-table time? Murder often doesn’t make sense, Mr. Kincaid. Especially a crime of passion like this. Only in the movies do you find cold-blooded killers who do everything right. Ms. McCall was angry with Lombardi, emotionally distraught. She wasn’t thinking clearly. She could easily have absentmindedly taken some action that seems illogical in retrospect.”

Ben saw a slight nodding of several jurors’ heads. Made sense to them. Made sufficient sense to support their predisposition to convict, anyway.

“Did you in fact find any gloves on Christina’s person?”

“No. I found some in Lombardi’s clothes closet, though.”

“So your testimony is that, after shooting him, this emotionally distraught woman removed the gloves, put them neatly back in the clothes closet, and pawed the gun?”

“I don’t know that she used those gloves. I’m just saying it’s possible. She may have flushed the gloves she used down the toilet. It’s been done before.”

More nodding in the jury box. Ben knew it was time to move on.

“Mr. Abshire, you mentioned an alleged confessional statement made by Christina.”

“That’s correct.”

“Do you recall when we discussed this matter at the preliminary hearing?”

“Yes.”

“And at that time, you testified that you said something that provoked Christina’s statement.”

“I said I might have said something,” Abshire replied. “I was confused. Frankly, you caught me by surprise with that one; I didn’t really remember. But since that time, I’ve had a chance to think about it, and to talk to my superior, Mr. Stanford, who was also present. I’m certain now. I didn’t say a word to her. Her statement was completely voluntary.”

As it would have to be, Ben noted, to get around your enormous Miranda problem. “So you’re changing your testimony in the courtroom today.”

Abshire gave the jury a gosh-shucks grin. “I’m not changing anything, sir. Before, I didn’t remember clearly. Now I do. Her statement was unprovoked.”

And there’s nothing you can do to prove otherwise, Abshire said but did not say, unless you put the defendant on the stand, something no defense attorney ever wants to do. Having smoked out Ben’s Miranda argument during the preliminary hearing, Abshire and Moltke had put their heads together and figured out a clever way to salvage the evidence.

“No more questions, your honor,” Ben said regretfully. He returned to defendant’s table.

“Any redirect?”

“I don’t see the need,” Moltke said. Derek smiled back, obviously in agreement.

“Very well. Mr. Abshire, I thank you for your testimony.

You may step down. Mr. Prosecutor, call your next witness.”