Judgement Calls

If she tries doing it to all of you, the jury will see that it's

dirty."

Walker nodded. "Got it. I'll tell the lieutenant so he gets off our

backs."

"As far as the order of your testimony goes, I'll be spreading your

statements out around Kendra's, so she will be the highlight of the

show. But I don't want to end with her testimony just in case she

winds up taking a beating on cross.

"The first witnesses will be the two kids who found Kendra in the

Gorge. That'll set the scene for the jury. Then I'm going to call

Mike." Calabrese would cover Kendra's condition when they got to the

scene and the processing of the crime scene.

The fingerprint on Kendra's purse would be a critical piece of

evidence. To get it before the jury, I'd need to show that the purse

examined by the crime lab was the same one Mike found near the crime

scene. We went through the purse's chain of custody. Mike placed it

in a sealed and marked bag at the Justice Center and then brought it to

the crime lab without opening it. Later, Heidi Chung would explain

that she removed the purse from the sealed bag that had been marked by

Officer Calabrese. It's the kind of testimony that puts jurors to

sleep, but, unfortunately, lawyers have to jump about six evidentiary

hurdles to get to the good stuff.

After Mike, I'd call the EMTs who drove Kendra to the hospital. They'd

help show how bad Kendra looked at first. Then we'd get into what

actually happened to her.

I was especially concerned about Kendra's initial lies to the police

about why she was in Old Town and whether she used heroin. I walked

them through how I was planning to deal with this. First, Ray would

testify about the initial interview with her. The bar against hearsay

would keep him from repeating most of Kendra's statements, since they

weren't made in court. But I could ask him about statements that were

eventually determined to be false. Out-of-court statements are only

hearsay if offered for their truth. He could also testify about

Kendra's demeanor.

I'd follow Ray with the ER doctor. If the jury didn't understand

Kendra's explanation for why she lied, they might hang their hats on

the Narcan if an MD explained the effects of the drug.

After the doctor, Jack Walker would testify about the second interview

with Kendra. I wanted him to talk about the change in Kendra's

demeanor from the first interview to the second and what he said to

Kendra to get her to open up with him. "Explain it to the jury just as

you did with me," I

told him. "If they're going to understand why she was initially

dishonest, it's going to come from you, followed directly by Kendra."

After Kendra, I'd call Andrea Martin to describe Kendra's recovery

since she'd been home. Then Deputy Lamborn and Dave Renshaw would

testify about Derringer's shaved body hair, followed by Chuck's

testimony about the car overhaul.

"Chuck, be ready to go over the contents of the work order from the

Collision Clinic." The only bone Lopez threw me was on that order. The

document was admissible under a hearsay exception for business records,

but technically I should bring in an employee to establish the

foundation. I'd included the shop's custodian of records on my witness

list just in case, but Lisa had agreed to stipulate to admissibility.

Stipulating for business records was the usual professional courtesy,

but with Lisa it could've gone either way.

After Chuck, I'd call Heidi Chung, closing on the strength of the

fingerprint evidence.

When I'd finished, the detectives were clearly impressed.

Ray Johnson nodded his head. "Man, that's classy, Kincaid. You've got

him smack down, girl."

"Hey, you guys did all the work. I just put it together in a way that

gets it all in front of a jury."

"You think he's going down on all counts?" Walker asked.

"To be honest, I'm not so sure. If Derringer were smart, he'd abandon

this whole identity defense, especially since we got that fingerprint.

If he'd focus on the actual legal charges instead of denying identity,

he could beat the attempted murder and try to get out from

responsibility for the sex acts of Suspect Number Two. But the jury's

likely to get so pissed off by his lame-ass alibi defense, they're not

going to split the legal hairs in his favor. They'll convict him of

the whole damn thing once they decide he was the one who did it."

Mike Calabrese liked that possibility. "Why shouldn't the loser get

smacked for lying his ass off? Would be nice for a jury to call

something in our favor for once."

We turned to the defense witnesses next. Lisa had given me the bare

minimum, names and addresses. She had even listed the five witnesses

in alphabetical order so I wouldn't know who was most important.

Jack Walker started with the top. "Well, you know who Derrick

Derringer is. He's the scumbag's brother slash alibi."

"Last time we talked about him, we hadn't found anything to prove they

weren't together. I'm assuming that hasn't changed."

Walker said, "All we got is that he's lied for his brother in the past

and is no stranger to the system himself."

"Yeah, but is the jury going to hear about that?" Ray Johnson asked.

I nodded my head and popped open a can of Diet Coke that Calabrese

tossed me from the MCT mini-fridge. "The priors for sure. As soon as

a person takes the stand, all his felony priors come in to impeach. I'm

sure the jurors will be real impressed that big brother's got a robbery

and two forges. As far as his statement backing Derringer on the last

beef, I filed a motion to get it in. Have to wait and see. If the jury

hears about it, Derringer's toast. They'll not only know that the

alibi's bullshit, but they'll also figure out that Derringer's done

this kind of thing before."

Mike's beefy hands looked awkward opening a tiny snack pack of

chocolate pudding that I imagined his wife packed in his lunch every

day. I tried to ignore the fumbling and focus on what he was saying.

"I say they're taking a big risk putting the brother up there. They

can't possibly think anyone's gonna buy this alibi deal. I mean, what

about the fucking print on the purse, for Christ's sake? I mean, don't

you think I'm right on this, Samantha?"

"All the way. Like I said, Lisa'd be better off arguing reasonable

doubt on the legal elements of the most serious charges, instead of

going with this alibi defense. I still can't figure out why she's

doing it. It's got to be coming from Derringer. Probably figures

that, with the prior attempted sod, the judge will tee up on him even

if he beats the attempted murder and the accomplice charges. Figures

if he's going down for the count anyway, he may as well roll the dice

and try to beat the whole thing."

Chuck pushed his palms against the edge of his desk, rolled his chair

back a couple of feet, and crossed his arms. "He must have some loaded

fucking dice, because I don't see him beating a damn thing with this

weak-ass witness list."

It's a fundamental truth that the number and density of cuss words

increases exponentially as the number of cops and DAs in a room goes

up.

"I'm glad you're so confident," I said. "I recognized the big brother,

and I knew Lisa'd be calling Jake Fenninger. He's the cop who popped

Kendra on Christmas. But I don't have a clue on the other three.

Enlighten me?"

"Well, let's start with Geraldine Maher and Kerry Richardson. Know

what they have in common?" Chuck raised his eyebrows, daring me to

guess. When I continued to stare at him, he said, "They work at Lloyd

Center."

I felt my eyes widen. "The shopping center? What does a fucking mall

have to do with my attempted murder case?"

"I wouldn't have put it together except for the last name on the list,

Timothy Monrad. Rad was a new recruit for the bureau last summer.

Works northeast neighborhood patrol, including you guessed it Lloyd

Center."

"Nice of Lisa to let me know that one of her witnesses is a cop," I

said.

"Don't freak out. It's not a big deal," Chuck said with confidence.

"See, Kerry Richardson comes up in PPDS as a complainant over and over

up at Lloyd Center. Turns out he's what they call a 'loss prevention

officer' at Dress You Up, that discount department store down at the

end by the movie theater?"

I nodded to let him know I recognized the name.

Chuck continued. "OK, so when I saw Rad's name on the list too, I was

psyched. I figured there might be some connection through Lloyd

Center. So I ran all of Rad's arrests at Lloyd Center and

cross-referenced them with Richardson's PPDS records. I found a report

from January where Rad was the arresting officer on a trespass that

Richardson called in. The trespasser was Andrea Martin."

"That's right. I remember. I ran Andrea's record in February as

background. She had no convictions, but I did see a real recent arrest

for trespass somewhere." I didn't pursue it, because even if I called

Andrea to the stand, misdemeanor trespass is not the kind of crime that

can be admitted into evidence against a witness. And her case hadn't

even been issued; it was just an arrest.

Chuck continued. "The somewhere was Lloyd Center. I pulled the arrest

report. Back in November, Kerry Richardson thought he saw Andrea

shoplifting in the store. He went and got the manager, Geraldine

Maher, and the two of them stopped Andrea outside in the mall. She had

receipts for the things in her bags, but Richardson insisted he'd seen

her sneak something. They figured she must have stashed whatever she

stole somewhere right outside of the store. They didn't call police,

but they did eighty-six her from the store. Richardson must have some

memory, because when Andrea came back into the store in January, he

recognized her and called police. Rad made the arrest. Andrea told

Rad she just assumed that the eighty-six from the store had ended by

then."

"I'm not surprised we didn't issue that. Sounds like she never

should've been excluded in the first place."

Ray Johnson was laughing. "So that's it? The whole defense is that

the vica whore, her mom's a trespasser, and Derringer's scum brother

says they were watching TV?"

I was just as bewildered. "I don't know what the hell Lisa's thinking.

The jury's going to hear about Kendra's background from me. I'll go

over it during voir dire, opening, and Kendra's direct, so Lisa doesn't

get any mileage by calling Fenninger. She can't get in those Lloyd

Center witnesses to impeach Andrea. And even if she did, who would

care?"

Mike Calabrese gave me a thumbs-up. "Lock and load, baby. That's what

I say."

I love it when a plan comes together.

I left the detectives at the Justice Center and walked over to the

courthouse to review my trial notebook one last time. I had already

outlined the topics I wanted to discuss during jury selection and had

written my opening statement, the direct examinations of the state's

witnesses, and the cross-examination of Derrick Derringer.

I no longer carried the anxiety I'd been shouldering all week about

Lisa Lopez's list of defense witnesses. She was desperate if she was

trying to get Kendra and Andrea's prior arrests into the record. No

wonder she'd been pretty quiet about the case when I'd seen her around

the courthouse lately. I had to admit a certain level of smug

satisfaction. If it hadn't been for her initial bravado, I'd feel

sorry for Lisa. She was going to spend her next two weeks stuck with a

major barker at trial, all for a scumbag sex offender who wanted his

free lawyer to present a preposterous defense that he and his dimwit

brother cooked up. But after Lisa's attempts to get under my skin at

arraignment, I was going to enjoy handing her a solid trouncing at

trial.

I called Chuck around seven to see if he was ready to go. We had

finally gotten around to rescheduling dinner with my dad. He agreed to

meet me at my car; I was uncomfortable letting the other MCT detectives

know that we were spending time together outside of work.

Dad opened the door before we could knock. "You sure the city can make

it through the night without you guys? I tell you, with the two of you

working together, the bad guys had better watch their backs." Dad

always found creative and not so subtle ways of letting me know that in

his view Chuck and I belonged together.

Dad was making his specialty, steak on the grill. Dad's like a lot of

men of his generation. Wouldn't think of putting together a full meal

in the kitchen, but sees cooking an entire dinner outside as one of the

great manly traditions, like hunting, fishing, or teaching a kid to

bat.

Dad took Chuck out to the deck to show him his new Weber while I poured

us some wine. Watching them crouched by the grill reminded me of the

summer the two of them built the deck. It was right after our college

graduation,

mine from Harvard, Chuck's from the University of Oregon. Chuck had

decided not to leave the state for college, a decision his parents had

harangued him for until they realized it would be bad form for the

governor and his wife to suggest their son was too good for the state's

best public university. By the time Chuck graduated, the former

Governor Forbes spoke at commencement of the pride he felt when his son

turned down the Ivy Leagues for U of O. That summer was also the summer

I told Chuck he had to fish or cut bait. I had vowed not to bifurcate

my life anymore between him and everything else. At Harvard, I missed

out on things that other kids experience when they go away to school,

because my heart had stayed with Chuck back in Oregon. When other kids

took summer internships on the Hill or in Manhattan, I had faithfully

returned to Portland, four years in a row. I decided law school would

be different.

So I'd begged Chuck during our senior year to live up to his potential

and apply to graduate programs around the country. He was accepted

into Stanford Business School and put down his deposit over Christmas

break when I sent my acceptance to the law school. By spring break, he

was saying that he hadn't gotten used to the idea of himself in

business school, and, by summer, he was thinking of pulling out.

So I told him to choose.

Of course, it wasn't as easy as that. I cried for two hours and told

him that I loved him and wanted to be with him and couldn't picture my

life without him in it. I said that moving to Stanford with him would

make me happier than I'd ever been, and then I told him to choose.

He chose to cut bait. He didn't know what he wanted to do, but he knew

he didn't want to go to California, and he knew he didn't want to go to

business school. He was thinking of becoming a cop.

I didn't handle it well. I laughed at him and asked what it would be

next: astronaut or firefighter. I told him he'd never grow up and

would never amount to anything. I pointed out that he'd been given

every advantage in life privileges other people actually had to work

for and took it all for granted. When my tirade finally ended, he went

outside, finished up the last coat of stain on the deck, and walked

out. I didn't see him again for six years.

I'd heard he'd joined the bureau, of course. I'd actually considered

turning down the job at the DA's office because of it. But I had no

interest in the alternatives I'd been given at the city's big firms,

and Roger knew it. There's no good way to tell your husband that

you're making employment decisions based on an old boyfriend, even if

it is to avoid him. So, instead, I'd played the odds that I could

avoid one of the county's two thousand cops, at least for a while.

When I saw his name on the police reports for my first trial, I tried

to ready myself. I prepared the speech in my head and went over it

again and again in the shower that morning, the way I should have been

rehearsing my opening statement. I was going to apologize for all the

venom that came out of me that day. Then I would laugh as I said it

all worked out for the best in the end, since he'd accomplished what he

wanted, and I was so happy with Roger.

None of it was ever said. He walked into my office with his patrol

partner, handed me a cup of coffee, and said, "Jason Hillard, meet

Samantha Kincaid. Kincaid and I went to Grant High together. So

what's the game plan?"

I'd prepped them for the trial, but the case turned into a bench

warrant when the defendant no-showed. Two years later, looking at

Chuck with my father, I realized I'd still never apologized to him for

how I behaved that summer, nor had I thanked him for saving me from

having to do it when I wasn't ready that day in my office two years

ago.

They came back into the kitchen with the steaks, and Dad started

heaping mass quantities of food onto three plates. I set the table,

blinking away tears before any could roll down.

"I was just telling Chuck about the damage you did last weekend at the

target range," Dad said.

My entire life, my father has enjoyed gun collecting and target

shooting. Cursed with having a daughter as his only child, he had

tried repeatedly to spark some interest from me, but to no avail.

To his initial chagrin, I eventually learned to use a gun only when my

ex-husband insisted on keeping one in our New York apartment. If he

was going to keep a loaded handgun in an unlocked nightstand, I figured

I sure as hell better know how to use it. So some of the agents took

me to the aTF. firing range and taught me how to load, aim, fire, and

reload just about every weapon available, legally and otherwise, in the

United States. As irrational as gun ownership is as practiced by the

most hard-core of American gun lovers, I'm a good enough shot and get

sufficient shooting practice that I find a sense of security in the .25

caliber automatic that I keep taped to the underside of my nightstand

drawer.

Chuck took his attention away from his steak long enough to say, "I

never would've believed it if someone had told me back in high school

that Sam would grow up to be a beef-eating gun toter who likes to put

bad guys in prison."

"Remember when she decided to be a vegetarian her junior year?" Dad

was laughing so hard I thought he was going to choke. "God, she tried.

Decided eating meat was so barbaric."

Chuck was nodding his head in agreement. "Right. But, in the end, she

hated the idea of being hypocritical even more, and, try as she could,

she couldn't live a one-hundred-percent animal-friendly lifestyle."

That's why I've always felt so at home with Chuck. He got me. He

could take the traits that other people see as so inconsistent and

understand that they make me who I am. I eat like a pig, but I run

thirty miles a week. I despise criminals, but I call myself a liberal.

I'm smart as hell, but I love TV. And I hate the beauty myth, but I

also want good hair.

To Chuck, it somehow all made sense, so I never felt like I was faking

anything. Dad has never quite figured me out, but he sure enjoys

making fun of me. "Poor girl drove me and her mother crazy trying to

avoid leather, animal fat, anything that might make her seem like a

hypocrite for telling everyone else how mean we were for eating

meat."

I had to laugh too, remembering my mother's face when she opened her

Christmas gift one year to find the hideous macrame purse I'd

triumphantly presented as an alternative to her tried-and-true tasteful

brown leather handbag.

"Does rubbing my face in my youthful attempts to be a good person make

you guys feel good?" I said. "OK, you win. I love the smell of

leather. I like being at the top of the food chain. I eat thick slabs

of beef, still pink in the middle. Vegetables are what my food eats.

Are you happy now? Maybe we should talk about the time Chuck joined

the feminist center in college so he could scam on women. Or how

about, Dad, when you got a CB radio and grew a mustache after you saw

Smokey and the Bandit? What was your handle again, the Rocking

Ranger?"

We continued like that, recalling our most embarrassing moments at

least the ones clean enough to tell in front of my dad until the

high-pitched beeping of a pager broke through our laughter. By

instinct, Chuck and I both immediately hit the "stop making that

wretched noise" button on the right side of our waists and looked down

at the digital display. "It's me," I said. "Grace. I better get

it."

Grace was calling to let me know that she'd dropped off Kendra and to

wish me luck with trial the next day. She also told me that when she

went inside with Kendra, Kendra had played the answering machine in

front of her. Apparently, her old friend Haley was looking to get back

in touch with her, had heard that she was living at home again, was

wondering what she was up to, that sort of thing. It was hard not to

be furious as I remembered my only encounter with the girl.

I tried to keep cool as I dialed Kendra's number.

"Hey there. How you holding up?"

"Alright, I guess. I just want the trial to be over with."

I said what I could to relieve the anxiety. In the end, there's

nothing you can say to comfort a victim who senses the system's

potential to fail.

I raised the phone message from Haley with caution. "Grace mentioned

that Haley is trying to get in touch with you. I didn't realize you

had stayed in contact with her."

"I haven't. She called, that's all."

"She give you any idea what she wanted?" I said.

The distinctively teenage sulk came through loud and clear over the

phone. "Will you please, like, not freak out? She was just wondering

how I was doing."

I didn't like the idea that Haley might be working her way back into

Kendra's life, so I said what I could to discourage her from returning

the call. I knew in the end she'd do what she wanted.

I'd been looking forward to curling up with a book and going to bed

early when I got home. That's not what happened.

I should've known something was wrong as soon as I put my key in the

lock. Vinnie usually runs to the front door to welcome me home. OK,

so it's more of a waddle. The point is that he comes to the door when

he hears my keys. This time, I could hear Vinnie barking, but he

wasn't at the door.

I remember the noise behind me in the dark as I bolted the front door.

And I think I remember feeling the crack against my head that quickly

followed, but maybe I fabricated that memory later with the help of

blinding head pain and a lump the size of a golf ball.

When I came to, the clock told me I'd been out for an hour. My house

was a wreck. Cupboards were open, cushions were thrown, drawers were

emptied. And I could still hear Vinnie's muffled barks from somewhere

in the back of the house.

As much as I wanted to run to him, I'd watched enough scary movies to

know what to do if someone might be in your house. What you don't do

is creep around in the dark silence. That's how you wind up skewered

by some guy in a bad mask.

Instead, I went to my car, started the engine, and used my cell phone

to call 911. And my dad. And then Chuck. And then I realized I could

call everyone I knew, and it wouldn't get the first of them here any

faster.

So I waited and watched. Even when I could hear the sirens, still no

sign of life. Whoever tore the place apart must have left after

knocking me out.

Two patrol officers swept through the house while the EMTs finished

checking me out in the ambulance. No concussion, just assurances that

I'd have a brutal headache for the next forty-eight hours.

The police cleared me to enter after I showed them my ID and assured

them I knew how to handle a crime scene. A pane in the back door had

been smashed to gain entry.

Chuck and Dad showed up around the time I was freeing Vinnie from the

kitchen pantry. Knowing Vinnie, he'd made a valiant effort, but it

doesn't take much to kick a French bulldog into the nearest closet. He

put up a brave front when I picked him up, but I could feel him

shaking.

Dad kept on eye on me, while Chuck pulled rank to make the patrol

officers page out a technician to search for prints. PPB doesn't dust

every home burg, so I was getting special treatment. Must have been

the nasty knock to the head.

When he was done with immediate business, Chuck came into the kitchen

where my dad was fixing me a drink and monitoring the ice pack on my

head. "You doing OK?"

"Yeah, I guess."

"How's the mutt?" he said, smiling as he flipped one of Vinnie's ears

over.

"Seems to be getting over it. Dad's going to take him to the vet for

me tomorrow just to make sure he's alright."

One of the young patrol officers walked in and gave the kitchen a

cursory look over "Man, they really did a number, didn't they?"

I looked around and took in just how bad the place looked. And then I

took it out on the patrol officer. "Better call off the crime scene

team. McGruff the Crime Dog here has got the whole thing figured out.

Yep, they really did a number on the place. I hadn't picked up on

that, Mr. Sensitivity. Jesus Christ, get yourself a copy of Policing

for Idiots before you go out on any more calls." I put my hands

against the kitchen table, pushed my chair back, and stormed over to

the sink to look out the window.

Dad came to my side and patted my shoulder while I fought back tears

and tried to regain my composure. When I'd gotten myself under control

again, Chuck suggested that I look around when I was ready to see if

anything was missing. As I started to leave the kitchen, the patrol

officer said, "Just make sure you don't touch anything, ma'am."

I didn't turn around, but I heard Chuck say, "You got a death wish or

something, Williams? Use your fucking head."

The only valuables I own are some jewelry I inherited from my mother,

and I'd be surprised if anyone ever found those. If every old house

has some irregularity that invites fantastic stories, mine is an old

wall safe that someone had built into the baseboard of my bedroom. The

day I was entrusted with my mother's jewelry, I locked it inside that

safe and moved my solid maple headboard directly in front of it.

The bed was right where I'd left it. In fact, nothing seemed to be

missing, making me wonder why someone had bothered.

We were throwing around theories in the kitchen, with me desperately

searching for one that didn't involve any further mortal danger. First

I floated the typical teenage thrill burg. Wannabes get a high off

being in another person's house, going through their stuff, and

trashing the place. But they probably wouldn't have slugged me in the

noggin.

My next front-runner was a small-time junkie thief who broke in and

then went nuts and trashed the place when he realized I didn't own the

kinds of things that smalltime junkie thieves steal, like CDs, DVDs,

and other small items that are easily resalable to those who live in

the modern world.

That theory just might have stuck, at least for the night, if I hadn't

decided I needed a beer.

I opened the fridge to find my twelve-inch chopping knife prominently

displayed on the top shelf. It secured a note that said, Next time we

slice up you and your dog. It's that easy.

So much for a theory that didn't scare the shit out of me.

Seven.

Like any other crime victim, I could do nothing about the intrusion

into my home and assault upon my person except wake up in a messy house

with a pounding headache.

PPB had assured me that they'd do what they could to find prints, but I

knew there wouldn't be any. And I assured PPB that I'd go over my

files to identify anyone who might want to scare me, but I felt in my

gut that it had something to do with Derringer. Unfortunately,

Derringer currently enjoyed the greatest protections a defendant can

enjoy. Lopez had served me and the police department with written

notice that he was invoking his rights to counsel and to silence, which

meant that, while his trial was pending, the police couldn't question

him about anything, even suspected new crimes.

The truth is that prosecutors are rarely threatened. Some speculate

that it's because they are feared, but the real reason prosecutors are

generally safe from the scum they prosecute

U1

is that they're replaceable. You take out your prosecutor and nothing

changes. The same witnesses bring the same evidence to the same

jurors, only with a different mouthpiece coordinating the show.

Unfortunately, an occasional defendant is too stupid to see that

reality, and I suspected Derringer was one of them. Now I had to go

into trial with yet another reason to feel sick whenever I looked at

him.

The first day of trial was mercifully quick. Judge Lesh had reviewed

all the written motions in advance and was ready to rule on them

without holding an evidentiary hearing. Even though the appearance

took only a few hours, I still found Derringer's presence

disconcerting. I'd almost hoped he'd throw me a look to confirm my

suspicion that he was behind the ransacking. His seeming indifference

only served to foster the combination of rage and fear that I'd been

nursing since the previous night. I tried to use it to fuel my

concentration on the pending motions.

I was nervous about Lopez's motion to exclude the false alibi Derrick

Derringer had volunteered for his brother the last time around. It was

my position that this was relevant in determining whether Derrick was

telling the truth now.

Lisa argued that the evidence was too prejudicial to provide to the

jury. Or, as she put it, "Your honor, Ms. Kincaid knows full well

that, under the Rules of Evidence, my client's prior conviction is

inadmissible. By framing this evidence as impeachment of Derrick

Derringer, she's trying to find a way to get my client's prior

conviction through the back door."

Lesh went off the record. "Ms. Lopez, you're doing a good job for

your client, but if I were you I would avoid using the term 'back door'

when referring to his prior conviction, which I see is for attempted

sodomy."

David Lesh was one of those people who could say the most inappropriate

things and yet somehow never offend anyone. A legendary story holds

that when Lesh was still a prosecutor, one of the female judges and her

law clerks saw him leaving the building wearing shorts. The judge

jokingly commented that the DAs were letting their dress standards

lapse a bit. Lesh's response? "I don't mind telling you, judge, that

these legs are under a court order from the National Organization for

Women. I cover these beauties, and those fanatical broads at NOW will

have me arrested." The clerks held their breath, sure that their judge

was about to unleash. Instead, the story goes, she laughed and said,

"Well, in that case, counselor, you should at least get out in the sun

periodically. You could blind someone with those things." My guess

was that Lesh had so much going for him on the stuff that mattered that

people were almost reassured by his irreverence.

Proving once again that he was a complete professional where it

counted, Lesh went back on the record and made what I believed to be

the right ruling. The jury should be allowed to consider Derrick's

previous lie for the limited purpose of judging his credibility as an

alibi witness in this trial. The problem was that if the jury knew the

whole story, including the nature of Derringer's previous conviction,

the unfair prejudice to the defendant would be overwhelming. So Lesh

carved out a fair compromise.

"Here's what we're going to do, folks. First of all, the State can't

get into any of this until after the defendant's brother has taken the

stand and offered testimony to exonerate the defendant. Until he does

that, Ms. Kincaid, the evidence you want to use is irrelevant.

"Even after the evidence becomes relevant, I am concerned about the

potential for unfair prejudice. Ms. Kincaid, the only facts you

really need to get to the jury are that Derringer Derrick Derringer, I

mean provided an alibi for the defendant in the past and that the

defendant, contrary to the proffered alibi evidence, eventually

admitted that he was, in fact, at the scene. I assume you can find a

way to put those facts into evidence without revealing the underlying

charge to the jury or whether the defendant was ever actually

convicted."

I nodded in agreement, but then said yes aloud so the court reporter

could transcribe my answer.

"Alright, then, that's the plan. And, Ms. Kincaid, I cannot emphasize

this enough. The facts that I just mentioned are all I want to hear

from your witnesses on this matter: Brother supplied alibi for

defendant, but then defendant later admitted he was there." He counted

off the points on his fingers. "If I hear one other word one mention

of sodomy, or kidnapping, or a teenage girl victim, or the fact that a

jury found the defendant guilty of something I will declare a mistrial.

And I may even declare a mistrial with prejudice. So I warn you to

proceed with caution and make sure your witnesses understand the rules

we're playing by. Do we understand each other?"

I assured him that we did, and he moved to the rest of Lisa's

motions.

Lisa had filed a motion to suppress the evidence regarding Derringer's

pubic hair. She tried to argue that the pethismo-graphic examination

and the jail booking process consti

U4

tuted unlawful searches in violation of Derringer's Fourth Amendment

rights. But once she agreed that both processes were part of the

normal corrections process and not intended to produce evidence of a

crime, Lesh quickly denied the motions.

In the alternative, Lisa asked the court to prohibit Derringer's parole

officer from testifying that he had seen Derringer without his pants at

the pethismographic examination. She argued that the evidence was

overly prejudicial because it revealed the fact that Derringer was on

parole for a sex offense.

In the end, Lesh decided to permit Renshaw to testify that he was

Derringer's parole officer and had occasion to see him without his

clothes. The jury would not hear about the setting or circumstances. I

didn't like it, because I thought the jurors might come up with their

own oddball explanations as to why a parole officer would see a client

naked. But I decided there was no other way to get Renshaw's

observations in without letting the jury know about the prior sex

offense, which surely would lead to a reversal on appeal.

"Alright," Lesh said. "Now, before I call a jury panel up here, let's

see if my rulings on these motions change anything about whether we

need to have a trial. I assume from the fact that we're here that the

two of you have had plea negotiations on this case by now."

Lisa and I sat silently.

"Nothing?" the judge asked. He told the court reporter to go off the

record. "What the hell are you two doing? Now, before I say what I'm

about to say, Mr. Derringer, I want you to understand that my comments

have nothing to do with my opinion about your guilt. I haven't heard

the evidence, so I don't have an opinion at this point. And, in any

event,

U5

that's going to be a decision for the jury, not me. But I've been

involved in a lot of trials, both as a lawyer and a judge. And I've

read the papers filed in this case, and I have some idea of what's

coming around the corner."

He turned his attention back to me and Lisa. "I'll be frank with both

of you. From what I've read in the motions and the warrants, Ms.

Kincaid, you've charged the hell out of this case. Frankly, I'm

surprised you chose to present this to the grand jury as an attempted

murder."

Lisa was never one to pass up an opportunity to ingratiate herself with

the court. She jumped in to thank Lesh for telling me what she'd been

saying all along.

He stopped her cold. "Not so fast, there, Ms. Lopez. I've got even

more for you. You may not have noticed, but your client's alibi rests

on the word of his convicted felon brother who by all appearances has

lied for the defendant before. Your client also is on parole for an

offense that is strikingly similar to the one for which he now stands

trial. I hope you have advised him that he is gambling in a very big

way. I can tell you right now, if he loses, he won't be looking at a

year in the pen this time. He's looking at a very long sentence, with

a parole board that will remember that he burned them the last time."

Having reminded both of us of our weaknesses, Judge Lesh wanted to hear

our offers. I offered to dismiss the attempted murder and other

charges if Derringer would plead to the kidnapping and sodomy, with a

ten-year minimum sentence. I offered to reduce that to seven if he'd

flip on Suspect Number Two. Lisa wouldn't hear it. She wanted Assault

Three with eighteen months no cooperation. Lesh gave up when it became

clear we'd never agree, and the clerk called up a jury panel.

U6

Picking a jury can be the most difficult part of a trial. Most people

can be convinced of just about anything, and one dud can sway enough of

these sheep to yield very bad results.

One of my first trials in Oregon was a slam-dunk controlled buy. An

undercover used marked money for the drug buy; then the surveillance

officers who watched the deal followed the suspect, keeping track of

him by his distinctive two-tone spectator loafers. When the defendant

was popped in the men's room of a nearby restaurant, the marked drug

money was in his pocket. The dummy blew any theoretical chance at an

acquittal when he showed up on the second day of the trial wearing the

same two-tone spectator loafers that every police witness mentioned the

previous day when describing the suspect.

After three days of deliberations, the jury hung, 7 to 5, in favor of

guilt. The judge was so incredulous that he broke from the usual

procedure and permitted the lawyers to question the jurors before they

were dismissed. Turns out that one particularly headstrong guy

convinced four of the others that the defendant must be innocent,

because no one would be stupid enough to wear those shoes to court

under the circumstances. The four sheep found it difficult to defend

the decision, saying repeatedly, "We just don't think he did it." When

I asked the leader about the marked drug money, all he could say was,

"Now, that was a problem for him. I'll admit that." The seven sane

jurors looked like their heads were going to explode after spending

three days trying to argue with that kind of logic.

My case against Derringer was strong, but I needed to weed out any

jurors who might cut him loose on the most

H7

serious charges, thinking that the victim deserved what she got. In

the end, Lisa bumped two retired women who looked at Derringer like

they were already afraid of him. I bumped two men with previous

assault arrests and two who said they were surprised that a person

could be charged with raping a prostitute. The worse of the two said

it sounded more like theft, then suppressed a chuckle. I was glad he

said it, not only because I knew to bump him but also because I saw one

woman flinch in revulsion. Lisa apparently didn't see it, because she

left her on the panel. A definite keeper for me. By the end of the

day, we had picked our jury.

Deciding that personal safety required me to navigate even further into

the twenty-first century, I bit the bullet and had a top-of-the-line

home security system installed that night. I could tell by the way the

installation guy eyed my trashed house that he didn't think I'd be

needing it. I didn't bother explaining.

Just knowing that the system was there helped. I fell asleep the

minute I hit the bed and didn't wake until the alarm clock advised me

it was time to go to work. At least I'd be rested for the second day

of trial.

I walked into Lesh's courtroom prepared for my opening statement. On

the way in, I checked to make sure that my witnesses were there: Mike,

the EMTs, and the kids who found Kendra were subpoenaed for the

morning. I figured there was no way we'd get through opening

statements and all those witnesses before lunch.

I had decided not to ask Kendra to attend the entire trial. Her mother

could not miss enough work to accompany her, and I thought that the

sight of Kendra sitting without a parent would feed the impression that

she was something other than a victimized child.

Fortunately, Derringer wasn't going to be getting an upper hand in the

sympathy arena by packing the halls with loving supporters. The only

people in the spectator seats were a few curious court-watchers and Dan

Manning, a young reporter for the Oregonian who was always trying to

branch out beyond his normal neighborhood beat by picking up crime

stories that otherwise wouldn't get covered.

I liked Dan. He tried to give potential future sources people like me

good press as long as he could do it and still give the straight story.

He stopped me as I was walking in. "Do you have a few seconds for a

quote? I'm thinking about using this trial as a centerpiece for a

larger special-interest article about the dangers faced by teen

prostitutes. You know, hoping to ride the coattails of the renewed

interest about the Jamie Zimmerman murder, now that Taylor's back in

the news."

I prefaced my answer by explaining that the Rules of Professional

Responsibility prohibit prosecutors from going very far in their

statements to the media. I was relieved when he nodded; he knew the

drill. For a prosecutor, media interviews are like navigating a

minefield. Stay too safe within the lines, and your typical nitwit

reporter looking for a story will make it sound like you don't believe

in your case. Go too far, and you're looking at sanctions from the

court and the bar.

I told Dan I'd be happy to talk to him if he would assure me that he

wasn't going to print Kendra's name. He agreed, reminding me that the

Oregonian was one of the few papers that had not abandoned its policy

of withholding information about the victims of sexual offenses after

the William

Kennedy Smith rape allegation triggered sensationalist paper-selling

headlines.

I gave Dan a few canned quotes about the trial and also plugged DVD as

an aggressive, proactive unit working to prevent girls from entering

the world of prostitution and to arrest and prosecute the adults who

lure them into it.

When it was time for opening statements, I delivered mine from memory,

without notes.

"Good morning. In case you don't remember, my name is Samantha

Kincaid, and I'm a deputy district attorney for Multnomah County. I

represent the State of Oregon.

"I want to start this morning by thanking you for your candor when we

spoke yesterday during the jury selection process. It is because of

your honesty during that process that the twelve of you have been

chosen to hear this case. And I am thanking you ahead of time, because

I think you will find the next week or so to be a difficult one. It

will be difficult because the process changes now. We don't get to

talk to each other like normal people, the way we did yesterday. You

are now jurors, and the rules of our trial system require a formality

unlike any other setting in our society. You are entrusted with a

profoundly important decision, but the rules require you to sit here

passively, listening, without asking questions or even talking to one

another about the case until all the evidence is closed and you begin

your deliberations. I do not envy your task, but I promise to do my

best to anticipate the issues you might find most important and to

focus on them.

"But I think you will find this week to be difficult for reasons other

than those faced by any person fulfilling a citizen's responsibilities

as a juror. You face an especially daunting task because this

particular trial will force you to focus on the sadistic acts of the

man sitting over here, Frank Derringer."

I had their attention now. A few of them shifted in their chairs to

move forward.

"You are going to hear facts about what Frank Derringer did to a

thirteen-year-old girl named Kendra Martin the kind of facts that most

people go a lifetime without ever having to contemplate. This man" I

pointed to Derringer "pulled Kendra Martin from the street, dragged her

into a car driven by an accomplice, and drove her to an isolated

parking lot with every intention of beating and raping her. And as he

brutalized her face and body with his fists and forced her legs apart

to take him, something happened that made Frank Derringer's already

horrific violence escalate and turned this crime into something I wish

I didn't have to tell you about.

"At the pivotal moment when Kendra Martin thought the defendant was

going to force himself inside of her, the defendant found himself

flaccid, unable to fulfill his intentions. So Frank Derringer found a

different way to take out his rage against the scared thirteen-year-old

girl who was pinned beneath him in the backseat of his car. He took a

stick and rammed it repeatedly between Kendra Martin's buttocks. From

the degree of tearing, doctors estimate that the stick was at least an

inch and a half in diameter. They know it was made out of wood,

because they found splinters inside Kendra Martin's anus. And when

Kendra lay bleeding from the defendant's torture, Frank Derringer still

didn't stop.

"The defendant told his accomplice to do what he couldn't do himself

and then watched while this second man raped and then sodomized Kendra

Martin, now barely conscious. And when the whole thing was over, these

two men drove

Kendra to the Columbia Gorge and dumped her like a bag of garbage to

die.

"You're going to learn that Kendra Martin hasn't lived the kind of life

that most thirteen-year-old girls get to live. She's going to get on

the witness stand and tell you very personal facts about her home life

and her background. And she'll tell you that she's not proud to admit

that when the defendant kidnaped, raped, and sodomized her and then

left her to die, she was a runaway girl engaging in prostitution to

support a growing heroin addiction. She'll also tell you that she

initially tried to tell the police what Frank Derringer did to her

without admitting her own troubles.

"But I believe that when she explains to you why she initially withheld

some information from police, you will understand. You will also

understand, and you'll determine from the rest of the evidence and from

your own common sense, that Kendra Martin did not deserve what Frank

Derringer did to her. She never consented to be tortured and left to

die near Multnomah Falls.

"You will hear evidence that Frank Derringer plotted this crime in

advance and then took extraordinary steps to avoid detection." I gave

them a detailed preview of the evidence that Derringer had shaved his

pubic hair during the days before the attack and then painted his car

and replaced its interior the next day.

"You'll also hear from Detective Mike Calabrese. He'll tell you that

he found Kendra Martin's purse in a trash can about a mile away from

where the defendant and his accomplice dumped Kendra to die. An expert

in fingerprint technology with years of training in this type of

evidence will testify that a fingerprint left on the strap of the purse

belongs to Frank Derringer."

I paused and looked across at the face of each juror to make sure that

the jury realized the impact of the fingerprint evidence.

"After you've heard from all these witnesses and experts, I'll have a

chance to talk to you once again. At that time, I think you'll find

that the State's evidence is going to measure up to the strong case

I've outlined for you here. And based on that evidence, I'm going to

ask you to return verdicts of guilty on all counts. I'm confident that

once you hear the horrendous facts of this case, and the overwhelming

evidence establishing Frank Derringer's culpability, returning that

verdict will be the easiest part of this entire trial for you."

Legal strategists say that jurors make up their minds about a case by

the end of opening statements. At the end of mine, I felt like I had

them. I took my seat at the state's counsel table, closest to the jury

box.

When Lesh nodded to Lopez to indicate she should proceed, she rose from

her chair, put her hands on Derringer's shoulders, and said, "Members

of the jury, Frank Derringer would like nothing more than for you to

hear the truth about what happened in this case right now, because he

is an innocent man who wants to go home. But, your honor, as his

attorney, I have decided to withhold my opening statement until the

State has put on its case."

Lisa apparently had even less confidence in her case than I thought. I

wondered if she had reserved opening to delay locking in her defense

until she knew for certain what we had.

But Lisa had gone a little further than that, insisting that Derringer

was innocent. Most attorneys go out of their way not to use that word;

all they really want to hear is "not guilty," and in a courtroom "not

guilty" is a far cry from innocence. If I wanted to be a stickler, I

could argue that she made an opening statement by referring to the

merits of the case. But what did I care? Better for me to put on a

one sided show.

I'd be putting on my witnesses earlier than I thought. So far, so

good.

My first witnesses were Brittany Holmes and Parker Gibson, the high

school students who found Kendra in the park and called the paramedics.

With their preppy good looks, they could have been a couple of

teenagers you see sailing and splashing water on each other wearing

hundred-dollar khakis in those mail-order catalogs. But they were

polite and articulate, so they were good witnesses.

The kids described their terror when they realized that they had

tripped not over a log but over the bloodied and unconscious body of a

young girl. What came across unmistakably was that when they saw

Kendra, they saw a girl just like one of their friends or little

sisters. They showed no judgment.

The EMT's testimony went just as well. Whether it was seen from the

fresh outlook of a shocked teenager or through the lens of a skilled

professional experienced in dealing with violence, this crime was a

serious one. The people who were there to witness her condition

firsthand all agreed that Kendra had been treated horrifically.

Mike Calabrese was up next, to explain how he and Chuck supervised the

crime scene. He summarized the basic mechanics: marking off a

perimeter, keeping a log of everyone who entered and exited, collecting

and maintaining anything that looked like it might be physical

evidence. That kind of stuff impresses juries.

Around the time they finished processing the crime scene, they got word

from the hospital that the suspects had sodomized Kendra with some type

of stick. "We didn't find anything in the immediate crime scene that

could've been the weapon, and we couldn't search the entire park for a

stick. But my partner, Chuck Forbes, noticed that the park put garbage

cans along the side of the road. We decided to look in the cans along

the road on the way out of the park on the long shot that the suspects

threw the weapon in one of them."

"Did you locate anything in any of the garbage cans that might have

been used to sodomize Kendra Martin?"

"No, ma'am, we did not." Mike's rough edges were barely detectable

when he testified, I noticed.

"Did you find anything that you deemed to be relevant to your

investigation?" I asked.

"We did," he answered.

"And what was that?"

Calabrese turned his head toward the jury box and answered.

"Approximately a mile from the crime scene, I found a black leather

purse on top of the garbage in one of the containers."

I cut in. "At this point in your investigation, Detective, were you

aware that the suspects had taken Kendra Martin's purse from her?"

"No, ma'am, I was not."

"OK. So what did you do when you found the purse?" I asked.

"I wasn't sure whether it was related to our case or not, but it was

suspicious in any event. I've been trained that discarded property is

considered abandoned under the Constitution, so I'm permitted to search

it without a warrant. I removed the purse from the garbage and opened

it."

As long as he actually gets it right, I like it when an officer tells

the jury the basis for conducting a search. It's not actually the

jury's job to decide whether evidence was obtained lawfully. That's

for the judge to determine. But you never know when you're going to

get some wise-ass wanna-be ACLU'er on the jury who decides to convince

the rest of them that some constitutional violation has occurred. "OK.

And did you use your bare hands to remove the purse from the garbage

and open it?"

"No, ma'am. I was wearing police-issue latex gloves during my search."

He looked at the jury. "It wasn't much fun poring through that stuff

even with the gloves." Some of the jurors laughed quietly, and he

continued speaking to me. "Once I saw the purse, I removed the gloves

I had been wearing and replaced them with a new pair. I was wearing

those when I picked up the purse and opened it."

"And what did you find in the purse when you opened it?"

"Things that looked to me just on first appearance like they might

belong to the victim, given her age. She had some gum in there, a tube

of lip gloss, a change purse with a Hello Kitty sticker on it. Turned

out to be empty. There was no official identification in the purse.

The victim's just a kid, so there wasn't going to be a driver's license

or the standard type of ID. I did find one of those wallet inserts

that have the see-through plastic pockets to put pictures and credit

cards in. It had a few pictures in there that looked like school

photographs of some little kids. Some of the kids had written messages

on the back of their pictures. They were addressed to

Kendra. I figured at the time that must've been the victim's name, but

I subsequently confirmed that information with other detectives."

"Once you determined that the purse belonged to Kendra Martin and was

involved in your investigation, what did you do?"

"My intention was to preserve the purse as I found it, so a crime

technician could process it for fingerprints or anything else of

evidentiary value. I took a plastic evidence bag from my car and,

still wearing my gloves, I placed the purse in the bag, sealed it, and

marked it with the date and my initials."

"And, detective, why did you mark the bag like that?"

"Whenever we seize physical evidence, we seal it in an evidence bag to

protect it from tampering, then mark the bag with our initials and the

date and time. The bag isn't opened until it gets to the crime lab.

It's a way for us to make sure that what the crime lab gets is what we

actually seized in the field."

In the same tedious question-and-answer format, we made our way through

Mike's link in the chain of custody. He brought the bag with the purse

inside of it back to the precinct and put it in the evidence locker.

Luckily, he was the person who had "lab run" duty the next day, so I

didn't have to bring in an extra witness to vouch for the walk from the

Justice Center to the crime lab. Mike delivered it to Heidi Chung

personally.

I spent the rest of the morning continuing to work step by mechanical

step through my trial outline. I was running the show in the

courtroom, since Lisa appeared to be doing little in the way of

cross-examination. Of Brittany Holmes, Parker

Gibson, and the EMTs, she asked one question: "Do you have any personal

knowledge to suggest that my client was one of the people who assaulted

Kendra Martin?" Of course, they all said no. She didn't ask Calabrese

a single question.

My guess was that she was saving the heavy stuff for Kendra.

Eight.

Ray Johnson and Jack Walker were waiting on a bench outside of Lesh's

courtroom when I got down to the fifth floor after the lunch break. I

started having my witnesses meet me outside the courtroom soon after I

became a DDA. That way, when the judges invariably start late, I can

make use of the time by preparing my witnesses in the hallway. An

added bonus of the practice is that it keeps the dirtbag informants in

my drug cases out of my office and away from my stuff.

I assumed that the man sitting alone on a separate bench farther down

the hall was Dr. Preston Malone, the emergency room resident who

treated Kendra at the hospital. Anyone who's had a shower and hasn't

ingested illegal narcotics within a couple of days stands out on a

bench in the courthouse. Unless, of course, you can tell the guy's a

cop, either from the uniform or the other sure signs beer gut, bad

tie,

big gun, those kinds of things. In Preston Malone's case, the medical

journal he was reading gave him away.

When Ray and Jack spotted me, they both opened their mouths to speak,

but I rushed past them with one finger up to let them know I'd be right

back. I wanted to touch base with Dr. Malone first. Typical of most

physicians, he hadn't found time in his schedule to prepare his

testimony with me. And, although I had Kendra's medical records for

the grand jury, Dr. Malone hadn't appeared personally to testify. In

other words, I had no idea what I was getting.

When he realized I was approaching him, he stood and offered his hand.

From a distance, the guy looked really good. But standing close to him

now, I could see that his profession was taking its toll. He hadn't

shaved, his eyes were bloodshot, and his hair was a mess. Tell you the

truth, I'm not sure that his eyes were completely focused. Coming out

of ER like that? Scary.

He apologized for not being able to meet with me before trial.

"With the schedules we get at the hospital, it's pretty much impossible

to keep an outside appointment. I have to admit, I was happy to get a

subpoena. Thought maybe I could catch a nap while I was waiting. But

when I was walking out, the attending physician gave me this medical

journal and asked me to summarize the articles for him when I got

back."

"You have to go back when you're done here? You'll probably be here

until the end of the day."

He smiled. "Not the way a hospital defines the end of a day. I went

in yesterday at six in the morning. I'll get home around ten

tonight."

I vowed inwardly never to complain again about my workload.

I ran through the trial outline in my head. "Actually, I could put you

on first so you don't have to wait around here."

"Um, thanks, but if it's the same to you, I'll wait as long as

possible. I'm almost done with this journal, then I'm gonna crash

right here on this luxurious wooden bench."

"I guess with your residency, you don't really need a suite at the Four

Seasons to sleep," I said.

"No, but the thought is pure ecstasy."

I could tell he was about to nod off at the idea, so I got my trial

prep in quickly. Malone's job would be to describe Kendra's demeanor

and injuries. I hoped the nap would refresh him before his

testimony.

I left him there, lying on the wood bench, and walked back to where

Walker and Johnson waited.

"Pretty good kid, isn't he?" Walker said, nodding his head toward

Preston Malone.

"Seems like a hard worker. You guys ready?"

"Let's roll, girl." I could tell Johnson was getting into witness

mode.

After Lesh took the bench and brought the jurors back in, I rose and

said, "The State calls Detective Raymond Johnson."

When he stood to walk to the witness seat, I noticed Claudia Gates, the

heavyset middle-aged black woman on the jury, sit a little straighter

in her chair and let her eyes follow Ray to the front of the

courtroom.

For her sake, after I asked Ray to state his name, age, profession, and

some other general background information, I added, "Are you married,

Detective Johnson?" I'm not above playing to a juror's weaknesses.

Whether he knew why I was asking or whether he just has a natural

charm, Ray Johnson gave the perfect answer: "Not yet, Ms. Kincaid. So

far, the only woman in my life's my momma, but I'm still trying."

I thought I actually heard Claudia Gates's blood rush, but it was more

likely the courtroom's crappy radiator.

I know. I'm a hypocrite. As much as I hate it that a good portion of

my half of the species loses all rational thought when a good-looking

man's in the room, I happily accept these boy-crazed women as jurors

when my cops are hot.

Ray covered some of the same ground as the initial witnesses,

describing the mood of the crime scene and Ken-dra's appearance when

MCT first arrived. Then we talked about what happened after he and

Jack separated from Chuck and Mike.

"When you saw Kendra Martin at the hospital, did you reevaluate your

assessment of her injuries?"

"In some respects." He explained that Kendra's appearance

substantially improved once the hospital staff cleaned the blood from

her, but she was still in obvious pain, evidenced by severe bruising on

her face and body, a large laceration across her nose and left cheek,

and noticeable discoloration around her neck.

"After you initially spoke with Kendra Martin, did you have an idea in

your mind about what had happened to her that night?"

"Yes, based on what she told me and my partner, Jack Walker."

"After the initial interview, did you speak to Kendra again about what

happened to her that night?" I asked.

"Yes. After some additional investigation, Detective Walker and I

spoke to the victim again when she was still in the hospital."

"Were her statements consistent with respect to certain sexual acts

committed against her that night?"

"Yes."

"Was she consistent in describing the physical abuse that occurred that

night?"

"Yes."

I could sense Lisa contemplating whether to object. Ray's answers were

technically hearsay, even though they didn't reveal what it was that

Kendra actually said to him. The answers were enough to reveal that

Kendra had been sexually and physically assaulted. But Lisa stayed in

her seat, and she was right to. If she objected in front of the jury,

they might think she was trying to keep information away from them, and

it was information they were going to hear anyway once Kendra

testified.

I continued the pattern of questioning, establishing that Kendra's

statements were consistent with respect to the most material facts.

"Were there some inconsistencies between the two statements?" Yes.

"Did Kendra have an explanation for these inconsistencies?"

"Yes. She admitted that she had omitted certain truthful information

and had included some untruthful information in her initial statement

to us."

Now, that one was definitely hearsay, since he was repeating something

Kendra had said outside the courtroom and asserting it as truth. But

the information helped the defense, so Lisa wasn't about to object.

Ray then walked through the portions of Kendra's initial statement that

were not true, being careful as we had discussed never to call them

lies. He explained that Kendra initially said she was in Old Town to

go to Powell's Books and did not know how heroin ended up in her

system.

"And Kendra admitted later that those statements were not true?"

"That's correct."

"Now, Detective, do you know what the defendant has been charged

with?"

"Yes, I do. Attempted Aggravated Murder, Kidnapping in the First

Degree, Unlawful Sexual Penetration in the First Degree, Rape in the

First Degree, Sodomy in the First Degree, and Assault in the Third

Degree."

"From an investigative standpoint, did the facts as Kendra Martin

stated them in her initial interview indicate that those charges would

apply in this case?"

"Yes."

"So, in other words, if someone had asked you right after you initially

interviewed Kendra Martin what the suspect might be charged with, those

are the charges you would have anticipated?"

"That's right."

"Would your answer to that question have changed after you learned

Kendra Martin's actual reasons for being in Old Town and how the heroin

ended up in her system?" No.

"Why is that?" I asked. "After all, the victim in the case changed

her statement."

"She did change some details in her statement, but her statements with

respect to what the suspects actually did to her did not change. The

charges would still be the same."

Ray wrapped up his testimony by describing the change in Kendra's

demeanor from the first interview to the second. He was well-suited

for this role. He actually managed to make Kendra's mood swings weigh

in her credibility's favor. As he explained it, Kendra was initially

very agitated. But once they made it clear that they were there to

find out what happened to her and who did it, she was cooperative and

focused. When they interviewed her again and indicated their concerns

about her initial statement, she seemed embarrassed and worried that

her honesty would hurt the case. Once she amended her statement, she

seemed relieved.

After Ray was excused, I called Dr. Malone to the stand. I was

worried that the bailiff might actually have to wake the poor guy up in

the hallway, but apparently not. Moments later, Preston Malone strode

confidently to the witness stand. I guess it's true that residency

trains doctors to perform well regardless of the sleep deprivation.

Dr. Malone took the oath and explained his credentials to the jury.

Pretty impressive. Undergraduate degree in biochemistry from Pomona,

MD from Johns Hopkins. Played the viola in the Portland symphony in

what he generously termed his "spare time." Damn. If I thought he had

room in his schedule, I might've called him for a date.

We walked through Kendra's medical records together, with Dr. Malone

explaining the cryptic notes that detailed the physical trauma that

Kendra experienced. Knowing Kendra like I did, it was hard to listen

to. But it was critical that the jury hear it.

"Dr. Malone, you have described what you have called tears to the wall

of Kendra Martin's anus. After your physical examination of Kendra

Martin, did you form an opinion as to what caused those tears?"

"Yes, I did."

"And what is your opinion?"

"You must understand that the anal wall is extremely sensitive to

pressure. Most people experience detectable trauma simply from a

standard bowel movement, so it's not unusual to detect some

irregularity in what we call the 'anal wink." In fact, I have seen

patients report to the emergency room with voluntarily inflicted

injuries in that particular area that are, as you might imagine,

extremely abnormal."

A couple of the jurors shifted uncomfortably in their seats.

"And how would you describe Kendra Martin's injuries?"

"Severe. Even compared to very young sexual abuse victims, the trauma

was incredible. There were no signs of lubrication, either chemical or

natural. The only thing I can compare it to is an episiotomy, in which

we enlarge the vaginal opening for childbirth. Of course, the patient

is anesthetized for that procedure. Given the degree of injury this

patient sustained, I would have expected her to need at least two

weeks' healing time. It was only because of this particular patient's

emotional resiliency that she was able to go home the following day."

"And were you able to form an opinion about what type of object created

Kendra Marin's internal injuries?"

"Yes. With voluntary pressure, for comparison, it's not unusual to see

perforations in the anal wall, but they tend to be superficial, and the

use of lubrication minimizes the damage. In Kendra's case, the

injuries were abrupt. Someone had subjected her to quick and intense

pressure in specific areas. Moreover, I found several wooden splinters

in her skin. This,

as well as the degree of tearing, led me to conclude that she was

penetrated abruptly and repeatedly with an unfinished wooden stick at

least an inch and a half wide and seven inches long."

I pushed my hair behind my right ear as I looked down at my notes for a

reminder of where I was and what I was trying to get out of this