Compelling Evidence

CHAPTER 19

I am anticipating a disaster, a rout on the magnitude of Napoleon at Waterloo. Cheetam sits at the counsel table between Talia and me. We are waiting for the result of a week of preliminary hearing. The judge is in chambers putting the final touches on her order.

“What do you think?” says Cheetam

I give him a blank stare. If he can’t see it for himself, I’m not going to tell him.

At the end of the prosecution’s case he’d asked for an outright dismissal of all charges. Only because legal protocol required it did the court humor him, taking this motion under submission.

That he could make such a motion under the circumstances tells me not only that Gilbert Cheetam lacks judgment, but that on a more basic plane, he is out of touch with reality. The submission to the court lasted three minutes, enough time for Nelson to make a brief argument; then O’Shaunasy gave the motion the back of her hand.

Cheetam reaches over and touches Talia on the arm. “It’ll just be a few minutes longer now,” he says. Talia smiles politely, then looks past him to me, searching for a little sanity.

The last day of hearing was the capper. Cheetam tried to build on a foundation of sand-Blumberg’s earlier testimony. He produced a janitor from the Emerald Tower, Reginald Townsend, who remembered cutting his hand, the day Ben was killed, on a jagged piece of broken glass. The man testified that he used the service elevator shortly after this and stated that he believed he may have dripped blood in the elevator. Lo and behold, the man’s blood type-the same as Potter’s-B-negative.

There was a satisfied grin in Cheetam’s voice as he said: “That’s all, Your Honor. Your witness.”

Nelson zeroed in on the man. He asked whether Townsend had a doctor attend to the wound after his ride in the elevator.

“It weren’t that bad.”

“Well, how much blood did you lose?”

“Oh, it were just a nick. A little thing.” He says this bravely, holding up two fingers to show the length of the wound, half an inch, as if he classifies anything less than a dozen stitches as a nick.

“I see, and you remember this nick, this little thing, nearly eight months later, and you can sit here and tell this court with certainty mat this wound, from which you apparently lost a single drop of blood in the elevator, occurred on the day mat Benjamin Potter was murdered?”

“Uh-huh. But I lost more blood than that. I held my hand in a towel,” said Townsend.

“Have you always had this gift?”

The man looked at Nelson with a vacant stare.

‘This ability to recall minute details and precise dates months after the event?”

“Oh, well, that’ll be a day none of us is likely to forget.” He was shaking his head as if to emphasize the momentous gravity of the events of that day.

“I see. You equate this nick, as you call it, on your hand with the day mat Mr. Potter was murdered?”

“That’s it,” he said, happy for some help. “Ah remember cuz you remember things when somethin’ like that happen. Like when President Kennedy got himself killed, I remember I was with my mama ….”

‘Tell me, Mr. Townsend, how did Mr. Cheetam come to discover this injury that you suffered? Did you come to him and tell him about it, or did he come to you and ask about it?”

“Well, it weren’t him.” Townsend was now pointing, his arm out straight like an arrow, at Cheetam. “No sir, Mr. Chitan, he didn’t come to me.”

Cheetam was reclining in his chair, nibbling on the eraser end of a pencil, smiling glibly at the dead end Nelson had just raced up.

“It were the other fellah, that one back there.” Like a weathervane in a shifting wind, Townsend’s arm had swung out toward the audience, taking a bead on Ron Brown, who tried to huddle behind a heavy-set woman seated in the row in front of him. “The one with the fancy pen,” said Townsend.

Nelson’s eyes followed the pointing finger like a guided missile. Brown was caught in the act, spear-chucker in hand, gold nib to the yellow pad propped on his lap.

“Your Honor, may we ask Mr. Brown, Mr. Cheetam’s associate, to stand for a moment.”

O’Shaunasy did not have to speak. Brown was up, shifting his feet, his shoulders sagging, his features lost in shadows as his head hung low, away from the beams of the overhead canister lights.

“That’s him.”

“Mr. Brown approached you?”

“Yes sir. He the one that talked to me He talk to all of us.”

“Objection, Your Honor, hearsay.”

“Were you present when Mr. Brown talked to the others, did you hear what he said to them?”

“I object, Your Honor.”

“Let’s hear what the witness has to say.” O’Shaunasy waits to see if Townsend will overcome the inference of secondhand information.

“Oh sure, he talk to all of us at once. The building manager get us together. He say one of the lawyers in the building want to talk to us.” Townsend was all smiles now, trying to be as helpful as possible.

“Overruled.”

Cheetam was fuming, angry not so much with the court and its ruling as with Brown and his lack of finesse in dealing with the hired help.

“What did he say when he talked to all of you?”

“He ask us if any of us see anything the day Mr. Porter was shot.”

“Did any of you see anything?”

“No, except for Willie He seed a lot.”

“Willie?”

“Yeah, he seed Mr. Porter after the shot.”

“Ah.” Nelson nods. “Willie’s the janitor who discovered the body?”

“Uh-huh.”

Nelson was becoming more charitable, his manner more easy, now that he was making headway with the witness.

“What else did Mr. Brown ask you?”

“He asked us if anybody ever got hurt, cut or like that, who used the service elevator.”

“He asked this question of all of you?”

“Uh-huh.”

“And you said yes?”

“Yeah, me and Bill and Rosie and Manual.”

“There were four of you?” Nelson’s question rose an octave from beginning to end.

Cheetam’s pencil lay on the table, the eraser end chewed off.

“Uh-huh.”

“Then what happened?”

“He took us up to his office.”

“You and Bill and Rosie and Manual?”

“Yes sir.”

“Then what happened?”

“They had a lady there, a nurse, she took our blood.”

“She took your blood?”

“Uh-huh. With a big needle. And they say they would get back to us.”

“And did they?”

“Just me,” said Townsend. “That gentleman”-he nodded toward Brown-“he get back to me.”

Cheetam and Brown must have thought they’d hit the mother lode when Townsend’s blood type came back.

“Did Mr. Brown say why he only wanted to talk to you?”

“No sir.”

“And what did he say when he finally got back to you?”

“He ask me when I hurt myself and how I done it.”

“And did you tell him?”

“Uh-huh. Just like I tell you today.”

“You mean to say that you cut your hand the day that Benjamin Potter was killed?”

“Yes sir.”

“I remind you, Mr. Townsend, you are under oath. To tell a he now is to commit perjury. That is a serious crime.”

Townsend did a lot of swallowing here. His Adam’s apple made the trip up and down his throat several times.

“I don’t lie,” he said

“Are you certain you did not injure your hand on another day, perhaps after Mr. Potter was killed, or long before the murder?”

Nelson, unable to shake the man, was offering him one last honorable way out of a lie.

“No, it were that day, or the day before, but I think it were that day. I’m sure of it.”

So much of his testimony had been compromising to Brown and Cheetam, that it was difficult to believe that he would lie on this point. Townsend’s words had the soulful ring of truth, and Nelson backed away. I wondered whether with all of his foibles Cheetam, and Talia by his proxy, would now-after all of this- finally profit from some happy coincidence. I would not wonder for long.

“Thank you, nothing more of this witness.”

Cheetam beamed like the Cheshire cat.

O’Shaunasy looked at him. “Redirect?”

“Nothing, Your Honor.”

“Very well, your next witness.”

“The defense rests, Your Honor.”

“Mr. Nelson, do you have any rebuttal witnesses?”

“Just one, Your Honor. The state would like to recall Dr. George Cooper.”

“Any objection?”

Cheetam looked mystified but at a loss to raise any grounds for objection.

He smiled. “None, Your Honor.”

Coop was called from the hall outside, where witnesses were assembled or held for further testimony. He took the stand and was reminded that he was still under oath.

“Dr. Cooper, you took blood samples from the body of the victim, Benjamin Potter, following death, did you not?”

“I did.”

“And the single drop of blood that was found in the service elevator-did you gather and process this evidence from the scene?”

“I did.”

“And finally, were you able to obtain a blood sample from one Reginald Townsend, a janitor in the building, a witness for the defense?”

“I did so, yes.”

“Doctor, can you briefly describe for the court that system of blood-type classification commonly known as A-B-O and explain in layman’s terms how it works?”

“As you know, there’s two types of blood cells, red cells and white cells. The A-B-O system keys on red cells only. It identifies chemical structures present on the surface of these cells called antigens. Under the A-B-O system, a type A blood donor would have A antigens on the surface of his red cells, a type B, B antigens, a type AB would have both A and B antigens and a type O would have neither. In addition, there is one other common factor in this blood-typing system. It’s the so-called D antigen or Rh factor of the blood. Those with the D antigen are said to be Rh-positive; those without it are Rh-negative.”

“So if both Mr. Potter and Mr. Townsend were classified as type B-negative blood donors, all that means is that they each had only type B antigens on the surface of their red blood cells, and that neither had the so-called D antigen present, so they were negative as to the Rh factor?”

“That’s correct.”

It was a polished routine, like Abbott and Costello. Townsend was disclosed as a witness for the defense before the trial, as required in discovery. It was clear Coop and Nelson had been over this ground in preparation. There was no wasted effort.

“Now this A-B-O system, is it the only method for typing and classifying blood?”

“No. It’s the most common system of classification used by hospitals for purposes of transfusions and other medical procedures. But in answer to your question, there are more than a hundred other different blood factors that have been shown to exist. In theory at least, no two individuals, except for identical twins, can be expected to have the same combination of all blood factors.”

Cheetam’s face sagged with this thought. He had spent too much time trying PI cases and too little chasing deadbeat fathers on paternity raps to be familiar with the nuances of identification by blood.

“Doctor, can you describe and explain some of these other blood factors, as you call them?”

“Well, besides the A, B, and D antigens, there are other antigens in the blood that serve as markers or can be used to identify a specific individual, or at least exclude other individuals from consideration. These can be detected, though it’s difficult when you’re dealing with dried blood.”

“Such as the blood in the service elevator?”

“Right. In this case the easiest factors to isolate are enzymes- these are markers, proteins on the red blood cells that regulate many of the body’s chemical reactions.”

Apparently in this case, given the slap-dash nature of Cheetam’s defense, Coop didn’t think it was necessary to go to the expense and trouble of exotic screenings. DNA tests were on the cutting edge, but required sophisticated labs and expensive equipment. The blood would have had to go to a private lab.

“Were you able to isolate blood enzymes in this case?”

“Yes. In the case of the dried blood taken from the service elevator we were able to isolate an enzyme known as PGM. The PGM enzyme is not the same in every person and comes in three common variations. We call these PGM-1, PGM-2-1, and PGM-2. The dried bloodstain from the service elevator in this case was PGM-2, actually somewhat rare. About six percent of the population carry this variation of the enzyme.”

“Now tell us, doctor, were you able to isolate the PGM enzyme in the blood taken from Mr. Townsend?”

“Yes, it was PGM-1.”

“Then it did not match the blood found in the elevator?”

“No.”

“Can you tell us, doctor, whether the PGM enzyme found in the blood of the victim, Benjamin G. Potter, matched the blood from the service elevator?”

“Yes, it did.”

“Therefore, is it safe to say that the blood in the elevator belonged to the victim, Benjamin Potter?”

“I can’t say that with certainty, but I can say one thing with assurance. It did not belong to Reginald Townsend. The enzyme test excludes Mr. Townsend as a possible source of this blood. I can also say that since the PGM-2 enzyme is carried by only six percent of the population, and that since type B-negative blood is similarly rare, only twelve percent, there is a very high probability that this blood belonged to the victim.”

“No further questions, Your Honor.”

Now, instead of being merely mortally wounded, Cheetam’d had his ass blown clean out of the water, in full view of the court-the entire world. He had to do something to save face. He leaned over and looked at me, a frigid, vacant expression in his eyes-it was the first time I had seen it in him. It was the look of fear. He was so shaken that it took a second for the brain to engage the mouth.

“Can you take him on cross?” he said.

I sat there stunned, caught between the devil and the deep blue see-Cheetam who was fear-struck, and Talia who sat there staring at me expectantly, as if at this late hour I could save her from Nelson’s rolling juggernaut.

My hesitation caused him to bolt. Before I could lean over and say anything to him, Cheetam addressed the court.

“Your Honor, if the court pleases, cross-examination of Doctor Cooper will be handled by my associate, Mr. Madriani.” He pushed himself back from the table and refused to make eye contact with me, looking instead off in the general direction of the empty jury box.

I could feel fire out to the tips of my ears. If the place had been empty, I could easily have killed. Here I was, about to earn an ulcer in a battle over the insignificant, some blood in an elevator that was now central to our case only because Cheetam had failed to defend on a plausible theory. He had pursued the case as a suicide with the dogma of a chief inquisitor, but with none of the success.

I rose, my thoughts a shambles. In a mental buzz, I approached the witness box, my mind racing for some loose thread, something to take hold of. I scanned the few notes I had taken from Coop’s direct testimony. I was stalling for time.

Coop sat there looking at me, the familiar Southern smirk on his face. I knew that inside he was laughing at how I’d been sandbagged by Cheetam. He was having a good time, now that this was at my expense. I would never hear the end of this, I was sure.

“Doctor, these tests-these so-called enzyme tests”-I was waving my arms, flapping my note pad in the air for effect, as if I was referring to a bag of witch doctor’s bones. “Are these tests absolutely reliable? Have you ever known them to report a false result?”

“People can make mistakes in administering them, but the tests themselves are reliable.” The asinine smile returned to Coop’s face.

“Is it possible that a mistake might have been made in this case?”

He looked at me, a bit of soulful Southern charm, then shook his head slightly. “No.” Like “Try the next door, Charlie.” He knew I was dabbling in the dark. He was almost laughing. It might have been funny but for the stakes.

“Did you perform these tests yourself?”

“I did.”

I was chasing rainbows.

“Now doctor, you say in your testimony that there was a high probability that the blood in the elevator was that of Mr. Potter?”

“No, I said there was a very high probability that the blood in the elevator belonged to the victim.”

He was playing all the buzz words. I referred to Ben as “Mr. Potter”-a little sleight of hand to decriminalize Talia’s situation. He came right back-”the victim.”

“Excuse me, doctor, a very high probability. Now does that mean that there is a possibility that this blood could also belong to someone else?”

“There is that possibility, though it is remote.”

For a long moment there was a still silence in the court, punctuated only by a hacking cougher in the audience. I considered whether to ask the question-the one set up by Coop’s answer. I rechecked my notes, the quick calculation I had made while Nelson was getting the answers he wanted. It was a risk, but it was weighed against void on the other side, for I had no other line of inquiry.

“Just how remote is the possibility that this blood sample in the elevator could belong to someone else?”

Coop reached into the inside pocket of his coat and pulled out a small hand-held calculator. He looked at his notes, then punched a few buttons and looked up. “Fewer than eight people in one thousand will carry the combination of these two markers in their blood.”

To statisticians such odds may be remote. To a trial lawyer in trouble, these numbers opened all the avenues of opportunity I was likely to get.

I turned for a moment and looked out over the railing at the bar. Two hundred sets of eyes riveted on me. A couple of artists were in the jury box doing my profile. For an instant there was the sensation, a little stage fright, the familiar flutter of fear as it rippled through my body, tinged by excitement. I turned back to Cooper to suppress it and reassembled my thoughts.

“That means that in an area such as this, with”-I made a face in estimation-“a million and a half people in the greater metropolitan area, there are what, almost twelve thousand people living in this area alone who could have dropped that blood in the elevator. Is that right?”

“Your figure,” said Coop.

“Is it right, doctor?”

“Objection, Your Honor. The doctor’s not a mathematician.” Nelson remained in his chair, but leaned toward the bench a little.

“Your Honor, it was Doctor Cooper who pulled the calculator from his pocket.”

Cooper smiled broadly and started to hand me the calculator. I stepped back, avoiding the thing like it was some truth machine.

“Sustained. The numbers will speak for themselves.”

Given what I had to start with, I’d done better than I had any right to expect, though my argument was more likely to confuse a jury than this judge. It ignored the facts that Townsend, Cheetam’s prime candidate for the blood, was not among the twelve thousand souls I’d fingered, and that Ben was.

It worked once so I trotted it out again, this dead horse that fed on numbers.

“Doctor. Do you have any idea how many people work in the building where Mr. Potter had his office?”

“No.”

“Would it surprise you if I told you there are nearly four thousand people who work in that building? That doesn’t count salesmen, vendors, repair people who come and go, deliverymen?”

I was dealing totally in the dark, testifying and pulling numbers from the air. I had no idea how many people work in the Emerald Tower.

Coop shook his head. “It wouldn’t surprise me,” he said.

“Then assuming a random distribution in the general population of these two so-called blood markers-the B-negative blood type and the enzyme factor-and using your figure of eight in one thousand, that means that of the four thousand people in that building at or around the time that Mr. Potter died, there were as many as thirty other people besides Ben Potter who worked there who might fit the blood characteristics or factors of the drop found in that elevator. Is that correct?”

My question ignored the obvious, that trendy secretaries in spiked heels and executives in thousand-dollar suits don’t generally travel in service elevators. Cheetam had left me no choice but to go boldly where no man had gone before-I was on a five-minute mission to evidentiary la-la land.

Coop made a face of concession.

“Am I right?”

“I haven’t made a precise statistical calculation.”

Thank God for little favors, I think.

Nelson was twitching in his chair, but so far had refrained from any objection.

“That might be close,” said Coop.

I had what I wanted, a tiny slice of shadow in the prosecutor’s bright light, some ray of doubt.

I could tell from his face that Coop now wished he’d done DNA. I considered pushing it just a little further. But I looked at him sitting there in the witness box, waiting, like an alligator submerged at the bank except for the eyes. Two blips on the surface. I’d taken it as far as I could. I thought better than to offer myself as a meal in a losing cause. Save it for the trial, I thought.

“That’s all for this witness.”

As I returned to the counsel table Cheetam was all over me. Cheap kudos and handshakes. Talia was more reserved, with a warm smile and eyes that knew the truth. Quibbling over blood in an elevator was not going to avoid an order binding her over for trial.

Now she is shaking. Time is drawing short and she senses mat a new horror is about to envelop her.

The bailiff saunters out of chambers with furtive looks behind him. He’s running interference for O’Shaunasy. She’s a dozen steps behind him with a sheaf of papers in her hand, Talia’s fate. She mounts the bench.

“Come to order. Remain seated, municipal court of Capitol County, department 17, is now in session, the Honorable Gail O’Shaunasy presiding.” The bailiff takes his place off to the side of the courtroom.

O’Shaunasy clears her throat and shuffles the papers until she has them in proper order. She looks directly at Talia before she speaks, men off to some broad undefined horizon beyond the bench.

“I have listened to all of the testimony presented here,” she says, “examined all physical and documentary evidence. I have considered it all very carefully before rendering this decision.

“The standard of evidence confronting this court is not that of guilt beyond a reasonable doubt, and no judgment of this court can determine guilt or innocence.

“The standard of proof here is that of probable cause. It is merely for this court to determine whether there is sufficient evidence to establish a reasonable belief that a crime has been committed and whether that evidence points to this defendant as the perpetrator.”

This is fodder for the tube, a vain effort to keep the story in perspective, to avoid the unavoidable, the mantle of guilt being laid on the accused before trial. A legion of jurors will later be asked if they’ve heard about this case, if they know anything about the defendant. Too many will say that they read or saw somewhere that Talia Potter was the woman who killed her husband. By tonight the nuances of evidence and standards of proof, the notion that Talia is entitled to a clear and unfettered presumption of innocence, will die on the lips of this judge, lost in an onslaught of headlines and thirty-second spots.

Now O’Shaunasy reserves her gaze for Talia.

“It is the judgment of this court that mere is ample evidence, albeit circumstantial, that probable cause exists to believe that Benjamin G. Potter died as a result of some criminal agency and that the defendant had ample opportunity and motive to commit that crime.

“On the charge of violation of penal code section 1murder in the first degree, mere is sufficient evidence to believe that the charged offense has been committed and that the defendant Talia Pearson Potter committed said offense.

“Further, I find that special circumstances exist as charged by the district attorney with regard to the commission of this crime and that she shall therefore be bound over for trial in the superior court on a charge of murder in the first degree with special circumstances.

“The filing of a formal criminal information is ordered within fifteen days. Arraignment is ordered at that time. The defendant is ordered into the custody of the sheriff, pending a hearing on modification of bail.”

It appears that Talia is no longer considered a minimal flight risk.

Cheetam is on his feet. “Your Honor, we can conceive of no possible reason why bail should be increased in this case. The defendant has appeared at every hearing, cooperated in every way with these proceedings.”

“That’s true,” O’Shaunasy concedes. “But your client is now bound over for trial on a capital charge of murder. The question of bail is one for the superior court. My order will stand. This court stands adjourned.”

Talia looks over at me, two tears cutting a furrow down each cheek.

“We’ll get you out.” Cheetam’s making promises as the matron moves in behind Talia to escort her to the steel door that leads to the holding cells below.

I lean over and speak into her ear. “I’ll see you first thing in the morning,” I say.

“Yes, first thing,” she says in a daze. I don’t think she’s heard me. I can’t tell if she comprehends any of this.

She is taken by one arm, assisted at the elbow from behind, and led from the courtroom. My last view is of her descending the steps to the lower bowels of the building, to the cold holding cells and the van that will transport her to the night of noises and horror that is the Capitol County Jail.