Double Tap

CHAPTER TWENTY-THREE

I was sitting on the state’s evidence report, the lack of impressions in the soil left by the gun and absence of marks on the silencer, for almost six weeks. I hoped that Templeton would not pick up on the inevitable sonar waves pinging just beneath the surface of his case.

Whenever arguments came up in chambers over evidence I would chirp loudly on some other point and hop in a different direction if the issue veered close to the photographs of the gun or the silencer. Like a bird protecting its nest, I feigned a broken wing over some other issue. In the end I was lucky, I suspect in part because Templeton was distracted by the embarrassment of riches presented in his own case.

“You did good. Very good. You nailed his feet to the floor, Counselor.” Emiliano is smiling at me this morning inside the holding area, one of the small cubicles just off the courtroom. He is buoyed by my cross-examination of Mitchell Perryman on the stand yesterday afternoon.

Decked out in his suit, a freshly starched shirt, and a different-colored tie each day, Emiliano looks more the banker than a defendant in a murder trial. He has learned to do a Windsor knot with the tie. With the half shadow of his dark beard clean shaven, he could pass for one of the sullen-faced Adonises of modeldom, Mr. December on the calendar Men of Combat. He cuts a good image. Whether the jury will try to put him to death is another question.

“You really got that guy. . The evidence man,” he calls him.

“Sometimes lawyers get lucky,” I tell him.

“You should learn to take a compliment,” he tells me. Emiliano has gotten the routine down so that he knows almost exactly, even without a watch, how much time he has once Harry and I arrive before they call us out into the courtroom. His orange jail jumpsuit is in a pile on the floor in the corner. Superman changing in a phone booth.

Ruiz looks as if he’s had a good night’s sleep, the first one in several weeks. “The little things that life gives to you sometimes. If you’re like me, it doesn’t happen very often,” he says. “You should be happy about it.”

“Oh, I am. It would be nice to be able to come up with a repeat performance, but I’m afraid that Mr. Templeton is not going to allow that to happen.”

“Don’t get me wrong: I’m not getting cocky, not even confident,” he says. “I know they’re probably gonna hang me no matter what. Still, I’d like to think we went down swinging. And the way you stuck the guy yesterday, I don’t mind saying, made me feel that at least maybe-you know, like, maybe-we made a statement. You know what I mean?” He looks at me.

“Yes.”

“Maybe that’s all we can do. But I think some of the jurors are listening. I think they’re asking themselves who set me up.”

“Let’s hope so.”

“No, I mean it. The lady at the end, I saw her taking lots of notes. Trust me,” he says. “You got ‘em thinking.”

It is the one thing in a capital case that a lawyer always worries about, besides conviction and a death sentence: creating expectations in the client’s mind that cannot be met.

“I don’t want to be the one to throw a damper on the party,” says Harry, “but we still don’t have a ruling from the court of appeal on the evidence from Isotenics.”

“No, we don’t. I talked to the judge about it this morning. In chambers with Templeton.”

“What did he say?” Harry missed the meeting. He was pulling some materials together for the day’s witnesses.

“What can he say? He told me that if we don’t have a ruling from the court by the time the state rests its case, he is inclined to give us a brief continuance.”

“How long?” says Harry. “How much time?”

“Three days.”

“Three days? Lotta good that’s gonna do.” According to Harry, this is just enough time to have a good anxiety attack.

“Gilcrest said there wasn’t much he could do,” I tell him.

“With the jury sequestered, locked away in a hotel with guards to usher them everywhere they go, there is a limit to how long he can hold them and keep the lid on the trial.”

“The state, through Isotenics, is sitting on a pile of evidence, thumbing their nose,” he says.

“We think they are.” I don’t want to place too much hope in the unknown.

“You know they are. Otherwise, why hide the ball?” says Harry.

“They can do that? Wait until the trial is over and keep us from getting the stuff?” Ruiz asks.

“The appellate court,” Harry says. “They can do whatever they want. They can sit on the appeal until the case is over and then decide that, while we had a right to the evidence, the failure to give it to us was not prejudicial-that the failure to deliver didn’t affect the outcome of the trial.”

“I don’t get it. They can make up the rules like that?” Ruiz, the soldier with scar tissue from nicks and wounds all over his body, looks surprised.

“Welcome to the Middle Ages, son,” says Harry. “They hold the pencil and wear the robes, so they get to write any fairy tale they like. And unless another set of wizards in black with a bigger wand comes along to slap them around, their fable becomes law-that is, at least as far as you’re concerned.”

What Harry means is that if the appellate court realizes it has made a bad decision, they are likely to refuse to certify it for publication. In that case it will apply only to Ruiz. Lawyers would not be allowed to cite the decision as authority in other cases, and because of the decision’s limited effect, higher courts would not be likely to waste their time reviewing it-though, in a death case, review to the state supreme court would be automatic. It would be an interesting social survey to find out how many people currently sitting behind bars in penitentiaries in this country are the victims of bad procedural decisions by appellate courts, written opinions that were dropped into a black hole and never certified for publication and therefore skirted review by more reasoned minds.

“Are we ready?” I ask.

Ruiz checks himself in the mirror one last time and takes a deep breath.

Harry nods.

“I just got one question,” says Ruiz.

“Jeez, only one,” says Harry. “You’re lucky.”

“You know, you asked me the other day about the frangible rounds, the bullets,” says Ruiz. “I couldn’t remember whether there were any in the case or not. But I do remember that over the last couple of years I shot a lot of them at the range before I was discharged from the Army. It is possible they were in the clips that were inside the bag.” The way he says this makes me wonder if perhaps there is something else he isn’t telling us.

“What I don’t understand,” he says, “is why whoever killed her would have mixed the rounds, used two different kinds of bullets.”

The guard taps on the little window in the door, the signal that the judge is ready to get started.

“I don’t have time to explain right now. Stay tuned,” I tell him.

We head to the courtroom, a constellation of guards segregating Harry and me from Ruiz until we get to the counsel table and take our seats. Chapman’s mother and sister are in the front row again. Nathan is in the cheap seats today toward the back of the courtroom. His intern must have overslept. It doesn’t look as if Jean Kaprosky could make it.

Templeton and his minions are already assembled at their table. A few seconds later the judge takes the bench and instructs the bailiff to bring in the jury.

This morning Templeton does a quick tap dance on our bones. His first witness is the ballistics expert from the county’s crime lab.

The witness quickly identifies lands and grooves on the partially deformed lead bullet that correspond with several test bullets fired in the lab through the HK Mark 23, Ruiz’s gun.

“Then there is no question in your mind,” says Templeton, “that the gun that fired at least one of the rounds that struck Madelyn Chapman is that firearm, the pistol identified as People’s exhibit six, is that correct?”

“That’s right.”

“Let’s talk a little about the other round. The frangible round. The bullet that the medical examiner testified fragmented into pieces inside the victim’s body. Are you familiar with frangible bullets?”

“I am.”

“Can you tell the jury the purpose behind the design of such a bullet?”

“There are several purposes and several different kinds of frangible bullets. Usually they are subsonic rounds: that is, the velocity of the bullet is designed and intended to remain below the speed of sound, roughly a thousand feet per second.”

“Did the frangible bullet that struck the victim, Madelyn Chapman, fall in this category?”

“Yes.”

“Go on, tell us the purposes of the round.”

“A forty-five-caliber automatic, such as the murder weapon in this case, is generally-unless it’s a special manufacture-in the nine-hundred-foot-per-second range in terms of bullet velocity. It is considered a large-bore pistol. Frangible rounds are a perfect fit for such a weapon. They could be used for target shooting where, for reasons of safety because of protocols of close-in fire training, you want to avoid ricochet. They are also used by law enforcement in certain hostage-rescue situations-on board airliners, for example. The frangible round is designed to fragment whenever it strikes something harder than itself, so it avoids overpenetration.”

“What is that? Overpenetration. Explain for the jury if you could.”

“In a hostage situation-say, where there are numerous innocent hostages-you would not want to shoot through your intended target, have your bullet pass through one of the hostage takers and hit an innocent victim. So a frangible round would be a good choice. The fragments would be absorbed, contained within the target. Also you wouldn’t want to punch holes in an airliner, perhaps have a ricochet go into one of the engines or a fuel tank.”

“What else? Any other purpose for a frangible bullet?”

“They’re also used for their lethality,” says the witness.

The way Templeton moves his hands and smiles makes it clear this is the one he is interested in. “Can you tell the jury a little about the lethal effect of these so-called frangible rounds?”

“Most frangible bullets are used in pistol loads where the velocity is lower than would be the case in a rifle. There is a tremendous transfer of kinetic energy when a bullet hits an object such as bone or flesh-a human target, for example.”

“Go on,” says Templeton.

“If a solid projectile passes cleanly through a target and doesn’t encounter any major resistance, much of the energy of the round is dissipated outside the target. This is what is referred to as overpenetration. In a frangible round of the type encountered in this case, overpenetration is eliminated.”

“How is that?” Templeton asks.

“Again, because the frangible bullet is designed to penetrate and to fracture or fragment into multiple small, often tiny pieces the instant it comes in contact with anything harder than itself. As I said earlier, when this happens, virtually all of the unexpended kinetic energy is transferred to the target.”

“Is this why it’s more lethal?” says Templeton.

“Yes. The transfer of that much kinetic energy generally produces shock. Most doctors will tell you that it isn’t the bullet that kills in many cases, especially if it doesn’t hit a vital organ. It’s the fact that the victim goes into shock.”

“So the use of a frangible bullet would be particularly lethal?”

“I would say so, yes.”

“Would you say that someone using a frangible bullet fired at another human being was trying to wound them?”

“No.” The witness smiles. “That’s highly unlikely.”

“Would you say that their intention was clearly to kill the person being shot at?”

“Most likely, yes. Even if you struck the person in an area of the body that might otherwise be considered nonlethal, the transfer of kinetic energy would probably send that person into immediate shock. Unless the victim received very prompt medical attention, they would most likely die.”

“So is it your opinion that the person who fired a frangible bullet into the victim, in this case Madelyn Chapman, would, by the use of that bullet, have indicated a fairly clear intention to kill Madelyn Chapman?”

“Assuming they knew what they were doing, I would say so, yes.”

“Let’s talk about that: whether the shooter in this case knew what he was doing. You are aware that there were two bullets fired into the victim in this case?”

“Yes.”

“And only one of which was frangible?”

“That’s correct.”

“Why would someone, in your opinion, use two different types of bullets fired through the same gun?”

“Objection. Assumes a fact not in evidence,” I say.

Templeton turns and looks at me as if he is mystified.

“We don’t know that the frangible round was fired from that weapon,” I say. “There is no ballistics to confirm that. For all we know, there could have been two weapons fired.”

Templeton moves quickly to dispel the impression that two separate shooters may have acted in concert to kill Chapman. This could present a problem for him. “We know from the trace evidence of the nitrates,” he says, “that there was only one firing position, from the railing over the entry.”

“I’ll sustain the objection,” says the judge. “Reframe the question.”

“Assuming that one person, a single shooter, used the same handgun to fire both rounds, in your opinion, why might that shooter choose to load that weapon with two different kinds of rounds, one frangible and one solid?” Templeton asks.

“Probably for reasons of certainty,” says the witness.

“Could you explain?” says Templeton.

“Frangible rounds, while they are lethal and have their purpose, have been known to fail. In some cases they can fragment before impacting the target. The inclusion of a solid round would provide the assurance that the shooter may have wanted that at least one of the rounds would reach the target.”

“So, by including both types of bullets, the perpetrator-the person who killed Madelyn Chapman-would have had lethality, the deadly effect of the frangible round, and certainty, the reliability of the solid round. Is that correct?”

“In my opinion, yes.”

This is neatly done. Without this theory, Templeton faced the prospect that I might be able to argue with some plausibility that two shooters might have been involved. He has now shut that door nicely.

Templeton now starts to work a different angle. He gets the witness to confirm that he examined the fragments of the frangible round under a microscope and subjected several of the small pieces to examination by gas chromatograph and mass spectrometry. In essence this is a chamber in which the minute bullet fragments were burned at a high temperature and the gas emitted passed through a beam of intense light. The machine is able to identify the chemical composition of the particles. The chromatograph, once married to the mass spectrometer, in which high-energy electrons bombard the molecules of the item being tested, produces what is in essence a chemical fingerprint, no two of which are precisely alike. According to the witness, this allowed the ballistics lab to identify not only the manufacturer of the frangible bullet but the customer who bought it.

“Can you tell the jury,” says Templeton, “if frangible ammunition of the type found here-the frangible fragments taken from the body of the victim Madelyn Chapman-is generally available to the shooting public, to the average citizen over the counter in a gun shop?”

“No.”

“Well, then, who is the customer, the end user, of this kind of ammunition?”

“Generally there are two: law enforcement and the military.”

“And can you tell us, do you know where this particular bullet, the frangible round used to kill Madelyn Chapman, came from?”

“Yes. The Lake City Army Ammunition Plant in Independence, Missouri. A small-arms ammunition manufacturer for the federal government.”

“And do you know who the intended end user, the ultimate consumer of this particular round, was? Which particular agency of the federal government?”

“It was shipped to the United States Army, Quartermaster Corps.”

“Thank you. Your witness.” Templeton comes down and pushes the stool underneath the rostrum.

I wait a second for him to clear the aisle before I take the podium.

“You say you fired several test rounds through the Mark Twenty-three pistol, the one identified as People’s exhibit six, is that correct?”

“Yes. In order to acquire sample bullets against which to compare the one surviving bullet recovered during the autopsy.”

“And did you fire those test rounds, or did someone else fire them?”

“No. I fired them.”

“Let me ask you: When you fired these test rounds, did you mount the silencer, the noise suppressor, that was found along with the weapon at the scene on the firearm, or did you fire the test shots without it?”

“Both,” says the witness. “With the suppressor and without.”

“Why did you do that? Can you tell the jury?”

“Because we wanted to see if there were variations in the ballistics, the microscopic marks that were left on the test rounds.”

“Were there?”

“No.”

“Do you know why there were none?”

“If the suppressor is functioning properly, there shouldn’t be any variations. The bullet should pass cleanly through the bore of the suppressor without making physical contact so that it would leave no detectible striations on the bullet other than those imparted by the lands and grooves inside the barrel of the firearm itself.”

“And that was the case in this instance?”

“Yes.”

“When you fired these test rounds, did you notice any difference or variation in the recoil of the firearm when the silencer, the suppressor, was on the weapon as opposed to when it was not?”

The witness smiles from the stand.

“Your Honor, I’m going to object,” says Templeton. “Exceeds the scope of direct.”

“Your Honor, the state opened the issue of test shots in the lab to confirm ballistics. I think we have a right to explore the area.”

“I’m going to allow the question. You can answer,” says Gilcrest.

“Yes. There was a marked difference in the recoil with the suppressor on the weapon as opposed to not having it on.”

“Perhaps you can explain to the jury what recoil is,” I say.

“It’s the rebounding effect of a firearm as it is discharged. Law of physics: for every action there is an equal and opposite reaction.”

“Is this commonly known by people who shoot as ‘kick’? That when they shoot a pistol or a rifle, they might say it ‘kicks’?”

“Yes.”

“Can you tell the jury how much kick, how much recoil, the forty-five automatic, that gun on the table, People’s exhibit six, produced when you fired the test shots.”

“I didn’t measure recoil,” he says.

“But, since you had a chance to shoot the firearm both with the suppressor, the silencer, mounted on the weapon as well as without it, which way produced the most recoil?”

“Without the suppressor.”

“So there was more kick without the suppressor than there was when the silencer was mounted on the gun?”

“That’s correct.”

“Can you give us an approximation as to how much less?”

“It was noticeable,” he says.

“Isn’t it a fact that there is literature, data, to support the proposition that recoil is reduced by as much as thirty percent through the use of a silencer on a handgun?”

“That sounds about right.”

“Is it true that the silencer, especially on a large handgun, acts as a muzzle brake?”

“Yes.”

“Can you tell the jury what a muzzle brake is?”

“It’s a device that can be applied, attached, to both pistols and rifles that serves to dispel some of the physical forces that produce recoil.”

“Usually attached to the end of the barrel, right?”

“Not always. Sometimes,” he says.

“But in this case the attachment of that silencer to that pistol”-I point to the table where both items are on display in front of the jury-“served not only to suppress the sound of the shots fired but also to reduce recoil, right?”

“Yes.”

“Would the reduction of recoil generally produce more accuracy-”

“Not necessarily.”

“Let me finish my question.”

“Sorry.”

“Would the reduction of recoil generally produce or permit more accuracy in the firing of a second shot that is fired within close proximity to an initial or first shot-say, where the shots are fired within a millisecond of each other?”

He looks at me, thinks about this. “Ah. Yes. That would probably be the case.”

“And it wouldn’t matter whether the shooter was an expert marksman or a novice: the application of that silencer to that weapon by the reduction of recoil would serve to steady and make more accurate the second shot regardless, would it not?”

The question seems to produce a little nervous tic in the witness’s left eye; the lid flickers a couple of times. “Yes. I suppose that’s true.”

“Let me ask you about the two different types of bullets used in this case: the solid lead bullet and the frangible bullet. Were you able to determine that the frangible bullet was actually fired from that gun, the one in evidence, the Mark Twenty-three?” I point toward the table.

“No.”

“So the only bullet that allowed you to make a definitive identification as to the firearm used was the solid lead bullet?”

“That’s correct.”

“And if, as in this case, the killer, the shooter or shooters-”

“Objection: assumes a fact not in evidence.”

“Overruled.” Gilcrest splits the hair and comes down on my side.

“If, as in this case, the perpetrator took the time to collect the spent brass and take it with him or dispose of it so that the police couldn’t find it, as was done here-and if, just assuming, two frangible bullets had been fired instead of a frangible and a solid bullet-it would have been impossible to trace the bullets that killed Madelyn Chapman to that particular weapon, wouldn’t it?”

The witness mulls this over, offers an expression of concession, nodding his head slightly. “That’s. . that’s true.”

“So, by using a solid round, the killer made sure that your laboratory would be able to trace the bullet that killed Madelyn Chapman to that weapon, isn’t that true?”

“No. He took the chance that we would be able to trace the round to that firearm. It was always possible that the lead bullet could have been sufficiently damaged in firing that it would have been unusable for ballistics comparison.”

“Yes, but if he’d used a frangible round instead of the solid round, he would have made sure it couldn’t be connected to that handgun, isn’t that true?”

Grudgingly he nods. “Yes.”

“That’s all I have, thank you.”

“Redirect.” Templeton is off his chair and on his feet. He scrambles to the stool, pulls it out from under the rostrum, and mounts it almost in a single motion.

“Is there any evidence, any ballistic evidence, that the silencer was used during the commission of the murder of Madelyn Chapman?”

“No. Not that I’m aware of.”

“So it’s entirely possible that the handgun in question was used for the commission of this crime without that silencer attached, is that not correct?”

“Yes. That’s possible.”

Templeton has a problem: the noise of the two shots that killed Chapman. If any of the neighbors heard them, the cops would have a more definitive fix on the time of death. They don’t. He goes to work on this.

“Can you tell the jury, how loud is that handgun?” He points to the pistol on the table.

“Suppressed or unsuppressed?”

“Objection: the witness is not a sound and noise expert.”

“I’m not asking for scientific measures,” says Templeton, “only as to within his common experience, having fired the weapon.”

“I’ll allow it,” says Gilcrest.

“Without the silencer, is that handgun, in your opinion, loud?”

“It’s quite loud.”

“Did you have to wear ear protection when you conducted the test firing of the weapon?”

“I did.”

“Do you know-can you tell the jury-in your opinion, would it be possible for shots fired from that pistol inside of a house on the ocean, perhaps with the noise of the surf in the background, to be heard in adjoining houses or on the street?”

“I don’t know.”

“Objection: calls for a conclusion beyond the expertise of this witness.”

“Sustained.”

Templeton fumes, then tries again. “Assuming the shots were fired in rapid succession,” says Templeton, “two of them: would they be distinct as gunshots to someone, say, situated inside another house perhaps a hundred feet away, with several walls in between?”

“Same objection, Your Honor.”

“Your Honor, the witness has fired thousands of test rounds; he has years of experience firing handguns, all kinds of firearms. He knows what they sound like inside of a building and out-and whether two shots fired in rapid succession are likely to be recognized as that: two distinct gunshots. That’s all I’m asking.” Templeton makes it sound like a plea.

“I’ll allow the witness to answer that narrow question,” says the judge. “Would two shots fired in quick succession be distinguishable as gunshots outside a house under the conditions specified by counsel?” Gilcrest has a finger shaking at the witness.

“In my opinion-in my experience-it’s possible that they would not. They would probably sound like muffled pops.”

“Is there a reason for that, within the realm of ballistics?” says Templeton.

“Yes. The fact that the forty-five automatic pistol is subsonic has a dampening effect on the sound. There are two factors affecting noise as regards gunfire, one being muzzle blast and the other the supersonic crack of the bullet as it breaks the sound barrier. The second factor is not present with a forty-five automatic.”

“Thank you,” says Templeton.

“Mr. Madriani,” says Gilcrest. “Anything more?”

“Very briefly, Your Honor.” I take the rostrum.

“Did you examine the bore of the sound suppressor, the silencer, in evidence in this case before you fired your test rounds through it?” I ask the witness.

“I did.”

“And did you find any gunpowder residue inside the bore of the suppressor when you examined it, before you fired it?”

“Yes, I did. There was residue in the bore of the suppressor.”

“Wouldn’t that indicate that it had been used?”

“Yes. But there was no way to tell when it was used. It’s possible that it was used the day of the murder. It’s also possible that it was used on some prior occasion and put back in the bag without being cleaned. There was no way to determine how much residue was present or how long it had been there.”

The witness takes back a sizable portion of what he has given.

“Was there any rust in the bore?”

“No. Not that I could see.”

“Wouldn’t there be some signs of rust inside the bore if the gunshot residue had been left inside the bore for any length of time?”

“Not necessarily. It would depend on the conditions of storage.”

“One final question. If the handgun, that handgun, was used with the silencer attached during the commission of this crime, would anyone outside of the Chapman residence, in your opinion, have been able to hear the two shots that killed her?”

He swallows a little, then looks up at me. “No.”

“Where did you learn about recoil and suppressors as a muzzle brake?” Ruiz chews on a sandwich from the vending machine, the plastic wrapper on the table under his hand as we talk across the small stainless-steel table in the holding cell.

“I read a lot,” I tell him. “I’ve been educated by other lawyers who have laid waste to me because they knew more than I did. And on occasion I’ve learned the hard way: by clients who have lied to me. Just as you have.”

He stops chewing and looks up at me directly in the eyes.

“What are you saying?”

“That you didn’t tell us the truth about the rounds in the case. You knew they were frangible, didn’t you?”

“I told you this morning: I forgot they were there.”

“No, you knew they were there. Where did they come from? Tell me. It’s too late to play games. Who gave them to you?”

“Like I said, they were issued in the Army.”

“Not to just anybody, they weren’t. Where did you get them? Why were they issued to you?”

“For training,” he says. “I told you it’s what I did. I trained other soldiers. We did a lot of shooting in shooting houses.”

“What’s that supposed to mean?”

“Situational stuff,” he says. “Listen, trust me, you don’t need to know. It doesn’t have anything to do with this, with Chapman or Isotenics or any of this.”

“It does now. Templeton is bearing down on you. He’s established that the rounds were purchased by the Army.”

“That’s true.”

“He’s going to prove that you were in the Army and that the gun in question was issued to you.”

“So it would make sense that the bullets would be in the bag with the gun, right? You made the point,” he says. “Answered my question, the one I asked this morning. I think the jury is starting to understand what’s happening here.”

“Good. Then they’re a leg up on me,” I tell him.

“Listen, you gotta believe me. I didn’t kill her. I had no reason to kill her.”

“Templeton hasn’t gotten to that yet, but you can believe that he’s working his way there.”

“The reason the killer used the solid round,” he says, “is because he needed to tie that bullet to my gun. It’s the frame-up. You made the point in court. Crystal clear,” he says. “The jury is getting the picture. I know they are.”

“Listen, if you start trying to mind-meld with a jury, guessing what’s going on behind twelve sets of eyes, you’re likely to get the shock of your life when they come back with a verdict. What they heard today is that that bullet, the one that exploded inside Chapman’s head, was purchased for use by the Army. Before he’s finished, Larry Templeton is going to take that fractured bullet and sprinkle bread crumbs all the way from the tiniest piece right to your doorstep unless you tell me what’s going on.”

“Nothing,” he says. “Nothing’s going on. I’ve told you everything I know about Chapman. I don’t know who killed her or why. All I know is she was scared.”