Killer Ambition

67

I pulled out my checklist for Dorian’s questioning after the jury had filed out.

“Which DVDs do you want me to load?” Declan asked.

I told him, and started to review my notes. Bailey leaned in to whisper to me. “You probably want to think about giving him a witness. Just to let him feel like a real boy.”

I nodded. “But not Dorian-”

“God no. Just wanted to mention it so you could keep it in mind for later.”

“You’re right.” I hadn’t wanted to throw him into this snake pit with Terry, but I could let him handle some witnesses whose testimony wouldn’t draw a lot of fire. I jotted down a few names that immediately came to mind.

Dorian was a strong witness, but she was a tough one. She wouldn’t be pushed one centimeter farther than she intended to go and she never stretched beyond the most restrictive explanation of the physical evidence. If she didn’t see it, she wouldn’t say it, and she had no hesitation pushing back in ways that made the unfortunate lawyer regret the day he was born. No one was immune, as many an unwary prosecutor who’d been dressed down by her in front of a jury had learned the hard way. The judge came out and called for the jury, and Bailey went to bring her in.

“People?” the judge said. “Your next witness?”

“The People call Dorian Struck.”

Dorian strode up to the witness stand. I’d coordinated the photographs and videos to illustrate her testimony with a very bare bones “what did you see, what did you collect” series of questions. We moved through the evidence collection quickly, the only embellishment being her description in stultifyingly boring detail of the careful measures she’d taken to protect each piece of evidence from degradation or contamination. The soil and plant debris on the victims and on Brian’s and Averly’s cars, the fingerprints on the cars, the blood on the trunk of Brian’s car, and the hairs in Averly’s car. I ended her direct examination with the only analysis she’d performed.

“Did you do a microscopic examination of the hair you recovered from the driver’s and the passenger’s seats in Jack Averly’s car?”

“Yes.”

“Now, a microscopic examination cannot tell you for sure that a hair found at a crime scene matches one person to the exclusion of all others, correct?”

“Correct. It’s not DNA. We speak in terms of consistency, not matches.”

“Bearing that in mind, did you compare that hair from Averly’s car to any party involved in this case?”

“I compared the hair to every party in this case who might have contributed that specimen. That includes the victims, their friends and relatives, Mr. Powers, and Mr. Averly.”

“As a result of the comparisons you conducted, what did you conclude?”

“First, I found that many of the hairs in the Mustang were consistent with the hair of Jack Averly.”

“No surprise since that’s his car, right?”

“Surprising or not, that’s what I found.”

I noticed that a couple of the jurors’ lips twitched at that response.

“Were there any hairs in that car that were not consistent with Jack Averly’s?”

“Yes. There were several on both the driver’s and the passenger’s seats that were not consistent with Mr. Averly’s hair samples. I found many of those hairs to be consistent with the hair samples I myself took from the defendant, Ian Powers.” She went on to describe where in the car Powers’s hairs were found.

With another criminalist, I would’ve covered the gaps I knew Terry would go for. But knowing Dorian as I did, I left them alone. She could take care of herself and it’d come off better on cross. “Nothing further.” I passed the witness to the defense.

Terry moved to the lectern. I sat back to watch the show.

“You found hairs that didn’t match either Jack Averly or Ian Powers, correct?”

“Yes.”

“And it’s common to find stray hairs or fibers that can’t be identified as having come from any known party, right?”

Clever. That question ensured that Dorian would give Terry a helpful answer and make Terry look smart.

“Correct. It’s Locard’s exchange principle: ‘Every contact leaves a trace.’ Meaning that every person takes some trace and leaves some trace of himself-or herself-at any location visited. So the unidentified hair could be from someone at the car wash, or a hitchhiker, or a neighbor.”

“Or those unidentified hairs could have come from the person who framed Ian Powers?”

With any other witness I would have objected. But Dorian’s answer would be better than any objection I could make. And this frame-up nonsense was the whole defense theory. I didn’t want the jury to think it worried me.

Dorian raised an eyebrow. A big warning sign if you knew her. “I have no evidence to show that anyone was framed, Counsel. There were hairs in that car that were not consistent with either Jack Averly’s or your client’s hair. That’s all I can say.”

Terry’s unfazed expression told me she’d anticipated that answer. She was just continuing to plant the conspiracy seeds. Now she paused and looked down at her notes, as though taking a moment to gather her thoughts. I knew she was simply making sure she had the jury’s attention.

“You can’t say when any of those hairs got into Averly’s car, can you?”

“Which hairs, Counsel?”

“Any of the hairs you collected.”

“No.”

“And you can’t say how any of those hairs got into Averly’s car, can you?”

Dorian frowned. “Well, I can say that as many hairs as I found, it was likely they got there because your client sat in the car.”

“Fair enough. But what I meant was, for all you know, the hairs that look like Ian’s might have gotten there when Averly gave Ian a ride home one day, right?”

“True.”

“And that day might’ve been two years ago, isn’t that true?”

“Yes.”

“Now, you said you found no evidence of forced entry into Averly’s car, correct?”

“That’s correct.”

“But someone could have broken in without leaving evidence that force was used, right?”

“Yes, it’s possible.”

“So you can’t rule out the possibility that someone broke into Averly’s car at some point?”

“Not completely, no.”

“Now, it’s relatively easy to collect someone’s hair without their knowing it, isn’t it, Ms. Struck?”

“Well…it could be done. I’m not sure how easily.”

“Then let me give you an example. If I held your jacket for you, I might find hairs on the shoulders that I could lift off with my bare hands, isn’t that right?”

“You might.”

“And if you used the courthouse restroom across the hall, I might find your hair in the sink?”

“It’s possible.”

“So wouldn’t you agree that there are several ways someone could collect a person’s hair without that person knowing it?”

“I haven’t counted the ways, but I’d agree there are a few.”

“And if I took hair off a person’s jacket and put it into someone’s car, you’d have no way of knowing that I’d planted that hair, would you?”

“Probably not.”

“Thank you. So it’s possible that the hairs you found to be consistent with my client’s were planted in Averly’s car, isn’t it?”

“Counsel, it’s possible we could be on a spaceship to Jupiter right now. Or I could be the next Miss America. Though I’ve yet to be nominated, hard as that may be to imagine.”

At that, the jury laughed out loud. Short, squat, no makeup, inch-long-steel-gray-haired Dorian wouldn’t enter a beauty contest if her life depended on it.

Judge Osterman frowned. “I believe Ms. Struck is interposing her own objection that your question calls for speculation. Which it does. Sustained. Next question.”

Terry didn’t miss a beat. She came straight back at Dorian. “You can’t say someone didn’t plant those hairs in Averly’s car, can you?”

“No. I can’t say they didn’t, but I have no reason to say they did.”

“And once again, you’re not trying to tell this jury that the hairs in Averly’s car are definitely Ian’s hair-you’re just saying they’re consistent with Ian’s hair, right?”

“Yes, right.”

“So they might not be Ian Powers’s hair, correct?”

“Correct, they might not.”

“Thank you. Nothing further.”

Before the judge could ask, I was on my feet. Terry’s persistent questioning about planted evidence and frame-ups was, as she intended, having a water-on-rock effect on the jury. At first I’d seen only mild curiosity on their faces, but by the end of Dorian’s cross, I’d begun to see real interest. I had to find a way to do some damage control. I took a shot in the dark.

“Ms. Struck, is there anything noteworthy about the hairs that was inconsistent with both Ian Powers and Jack Averly? Anything that might indicate whether they were deposited recently, or by someone who’d been in the car on more than one occasion?”

“What I can say is this: the unidentified hairs in Mr. Averly’s car did not match each other. That indicates they came from different people-not one person-and probably at different times, or I would have found more hairs that matched each other.”

It was as good as I was going to get. It didn’t rule out the possibility that some unknown conspirator had gotten into Averly’s car and planted Ian’s hair, but no witness could do that. The only thing that could was common sense. I tried to look calm and confident as I said, “Nothing further.”

“Defense?” the judge asked.

Terry looked unperturbed. “No, Your Honor, thank you. But I’d like this witness to remain on call.”

Placing a witness on call means they have to come back whenever they’re summoned-no further subpoena required. Sometimes it means the lawyer has something to smack the witness with later-an inconsistent statement, or a prior screwup of some kind. Sometimes it’s a bluff. And sometimes it’s just a way of making sure a witness will come back in case the lawyer forgot something. It would be just like Terry to bluff. But it would also be just like her to really have something up her sleeve-though what anyone could have on Dorian was hard to fathom. It made me every bit as nervous as Terry undoubtedly meant it to.

The judge turned back to me. “We have about fifteen minutes left. Do you have any short witnesses?”

Dorian, who’d just stepped down from the witness stand, gestured to herself and looked up at the judge. “How much shorter can they get?”

The jury laughed again. I’d heard she had a funny side, but this trial was the first time I’d seen it.

And on that note, the judge declared the court in recess for the day. Things wouldn’t always go this well, I knew. But for now, just for this one moment, I let myself enjoy a brief surge of hope.