The Jury

chapter three

Through years of practice in Capital City I had come to observe the disparate forms of evidence in criminal cases, everything from scholarly court lectures by experts to furtive undercover videos of politicians lapping up bribes while making crude jokes about “servicing the people.”

As entertaining as some of these might be, they could never match the chilling content of a schooled medical examiner reciting the details of a sudden and violent death.

Max Schwimmer’s speech still retains hints of an Austrian accent, a remnant of his childhood. “Of course” comes out “af coss.”

He is the county’s chief medical examiner, and today Tannery has him on the stand outlining the case of murder against my client.

At the heart of the case is the infamous cable tie, a thin piece of white nylon. This one was nearly forty inches long, though one end had been cut. It is ratcheted on one side by tiny teeth molded into a nylon strip. When slipped into the yoke at the other end making a loop and pulled through, these teeth make a sound like a zipper as the tie is tightened. The tie locks in place and can be moved in only one direction, to tighten it. When pulled fast, it can hold tremendous tension. Cable ties may be purchased in any hardware store and are used by everyone from electricians to bundle mazes of wire, to cops who sometimes use them as temporary handcuffs to collar rioters. In this case, a cable tie was used to strangle Kalista Jordan.

“Doctor, can you state with certainty the cause of death?”

“Asphyxia. Technically, it was mechanical asphyxia.”

“You’re not saying that some machine did this?” Tannery is holding up one of the photos of the victim, her head looking like a purple blister about to burst.

“Mechanical asphyxia is a technical term. She was strangled, by the application of a ligature, in this case a nylon cable tie that was fastened and pulled tight around her throat.”

“I believe you stated earlier that the victim was rendered unconscious at some point prior to death. Do you know how long after the ligature was applied before the victim would have become unconscious?”

Schwimmer thinks for a moment. “Perhaps a minute, maybe two, after the ligature was tightened. Up here. Up high,” he says. The pathologist motions with both hands, front and back around his throat. “All movement by the victim would cease within three or four minutes.”

“So she might still be moving even though she was unconscious?”

“Some involuntary reflexes,” says the doctor.

“Would she feel pain during this period?”

“Oh, yes.”

“And how long before death took place?”

“The heart would stop beating within another five minutes.”

“So if my calculations are correct, from the time the ligature was applied to the point of death might have been anywhere from nine to eleven minutes?”

“That’s right.”

“So there is nothing quick, instantaneous or particularly humane about this kind of death?”

“Absolutely not.”

“Would you call it a lingering death in that it is slow?”

“Yah. Several minutes.”

“Would you call it a painful death?” asks Tannery.

“Objection. The witness has already testified that the victim was unconscious at the time of death.”

“Your Honor, I’m talking about the period before she became completely unconscious.”

“Overruled. The witness can answer the question.” Judge Harvey Coats is himself a former prosecutor. He was elected to the bench six years ago, knocking off an incumbent appointed by the governor, who failed to heed the warnings of local law enforcement that his man did not have their blessing.

“I would say that strangulation is a painful way to die,” says Schwimmer. “I would not choose it if I had a choice.”

“Would you call it an agonizing death, Doctor?”

“Objection.”

“I think you’ve made your point,” says Coats. “Move on.”

If Tannery wanted to drive this sword in deeper he would now take out his watch, turn to the jury, stare at them, and time it. Two minutes of silence would seem like a year. Nine to eleven minutes, assuming some tepid judge would allow it, would be an eternity. I have had it done to me, and I have done it to others. Fortunately for us, Tannery doesn’t think of this.

Instead he takes a different course.

“Can you describe for the jury the physical effects suffered by the victim as the cable tie was applied and tightened around her throat?”

“The tie is very strong. The one in question used here has a tensile strength of two hundred and fifty pounds.”

“What does that mean?”

“You could apply that much tension to the tie before it would fail, stretch or break. And it was thin. It produced a severe cutting edge when tightened. In this case it cut partially into the victim’s jugular vein.”

“Can you be sure that the victim died of asphyxiation? Is it possible that she could have bled to death?”

What the significance of this is I am not sure, but Schwimmer quickly puts it to rest.

“Asphyxiation. Due to ligature strangulation,” he says.

“Wouldn’t she tend to bleed to death if the jugular were cut?”

“If it were severed cleanly, completely, perhaps. But in this case the cable tie merely cut a deep ligature furrow that abraded a small portion of the surface of the vein. The orientation of this furrow was horizontal with just a little upward deviation at the posterior of the neck. There was some bleeding, including soft-tissue hemorrhage and abrasion, just below the ligature furrow. This groove, the ligature furrow, crosses the anterior midline of the neck, the front just below the laryngeal prominence. Here,” he says, “around the Adam’s apple. And fracture of the hyoid bone.”

“In layman’s terms?” says Tannery.

“The voice box was crushed. The breathing passage collapsed. There is no doubt. She died of asphyxia.”

“In nine to eleven minutes?” asks Tannery.

“Approximately.”

“Can you describe for the jury the physiological changes, what the victim would feel or experience as a result of asphyxiation by strangulation?”

“Yes. The pressure in the head would build as a result of constricted blood vessels, and the inability of the brain to obtain oxygen. There would be panic, a good deal of fear. The back of the tongue would be lifted and pulled into the posterior of the throat. This would block the airway. In a few seconds, the tongue would begin to swell. The head would turn a reddish purple. The lips would ultimately become cyanotic. . ”

“What does that mean?”

“They would take on a pale blue to black color. Death would result from a lack of oxygen in the tissues of the brain.”

“How can you be sure this particular case was not suicide or an accident?” asks Tannery.

Schwimmer actually smiles at this. He looks at the D.A. as if perhaps Tannery is joking. “You mean apart from the fact that the body was dismembered after death?” asks Schwimmer.

“Yes. Apart from that. I’m talking about a possible hanging, suicide or accident as the cause of death, leaving aside what happened to the body afterward.”

Tannery is covering his bases, on the long shot that we try to defend on the theory that she killed herself, and Crone merely panicked for fear that he would be blamed, and disposed of the body.

Schwimmer considers for a moment. “Well the ligature marks. The bruising on the neck was not consistent with hanging if that’s what you mean. When a person hangs herself, assuming she could use this thing-this nylon cable tie to do this, you would get a V pattern of bruising on the neck.”

“A V?”

“Yes. The result of gravity on the body, pulling it downward, and sagging of the ligature. Here you have a straight line, a ligature mark-in fact, in places it is so deep as to be an incision. It takes a straight line, almost level all the way around the neck. This is consistent with asphyxia by strangulation from behind.”

“And how do you know it was from behind, Doctor?”

“Because when the body was recovered, the ligature was still tightened around the neck, embedded in the outer flesh. The yoke, where the cable tie is joined together in a continuous loop, was at the midline here.” He reaches around to the back of his neck. “It was notched just slightly above the first cervical vertebra at the posterior midline of the neck.”

“And what did you conclude from this?”

“That the victim died as a result of a criminal agency,” says Schwimmer.

“So the jury can understand, Doctor?”

“She was killed by someone else. ”

“You’re saying this was a homicide? A murder? The intentional killing of another person?”

“That’s correct.”

Tannery turns away from the witness for a moment as if to regroup for the next assault.

“Doctor, would you say that the physical evidence as you observed it, the way the ligature was applied, indicated that some thought and preparation had been given to this act?”

“Objection. Counsel is leading.”

“Sustained. Rephrase the question,” says Coats.

Tannery does so and gets the answer he wants, that some thought and preparation went into the act. Schwimmer has brought some cable ties with him for purposes of demonstration. Tannery has him take several from a bag. One he gives to the judge, who studies it briefly and lays it on the bench. Another is delivered to our counsel table by the bailiff. Two others, with the court’s approval, start filtering through the jury box.

“These are identical to the cable tie used to kill the victim, Kalista Jordan,” says Schwimmer. “I believe they are made by the same manufacturer. They are designed as heavy-duty cable ties, thirty-four-point-eight inches long, three-eighths of an inch wide, made of white industrial nylon. They have a tensile strength of two hundred and fifty pounds.”

One of the male jurors has actually snapped the open end of one of the ties into the yoke and is pulling on the closed loop as if to test its strength. It doesn’t budge.

“In order to apply the tie to the victim in the manner in which I believe was done in this case, it would be necessary first to make a loop by inserting the open end into the yoke.”

Schwimmer demonstrates. The tie is now a large white nylon loop in his hand like a buckled belt, only much thinner, with the tip sticking through the yoke like a tail a couple of inches at one end.

“Why would that be necessary?” asks Tannery.

“If the loop were not started in this fashion, and if the victim were to struggle, it would be very difficult if not impossible for the killer to insert the end into the small opening of the yoke. Like threading a needle,” he says. “Very difficult to do if someone is jostling you, resisting. No, I believe it is clear that the cable tie was prepared in this fashion prior to the attack.”

“And this would indicate some thought and preparation by the killer?” Tannery is getting at the elements of premeditation and deliberation.

“Yes. Also there is evidence that the killer used a tensioning tool for leverage,” says Schwimmer.

“A tensioning tool?”

The coroner reaches into the bag again and comes up with a device that looks like a pistol with a long trigger. He holds it up for the jury and the judge to see, and we all examine this, though we have seen it before.

“This is specifically designed for tightening cable ties. The open end fits in here.” He feeds the open end of the tie into what would be the barrel of the gun until it hits bottom, then works the trigger. The tool grips the tie, and with each pull of the trigger more than two hundred pounds of pressure can be applied to the tie. The physics of leverage.

“Do you think the killer attached a tool like this to the tie used to kill Kalista Jordan. .?”

“Yes.”

“Let me finish the question, Doctor. Do you think the killer used a tool like this, and that he or she did this in preparation for the murder?”

“I do,” says Schwimmer. “We found small impressions on the nylon tie used to kill the victim. These marks are consistent with a tool of this type, which is commonly used and sold with the cable ties.

“Also,” says Schwimmer, “such a tool would give the killer great leverage. The assailant would not have to pull the thin nylon with the hands.”

“Is that important?”

“Yes. Given the pressure applied, the nylon could easily have cut the hands.”

Tannery takes all this in, nodding as he paces a few feet away from the jury box.

Now he moves toward the witness. “Doctor, can you demonstrate how you believe the killer in this case applied the cable tie around the neck of Kalista Jordan?”

“Sure. I can do that.” Schwimmer gets up from the witness chair and comes out of the box into the well just beyond the clerk’s desk. There before the judge and jury, with Tannery playing victim, the coroner approaches from behind. Deftly he slips the looped cable tie over the D.A.’s head and swiftly pulls on the gun-handled tool to tighten it just short of full tension. There is the sound of an audible zip as the nylon teeth slip through the tiny locking yoke.

“Once it is snug,” says Schwimmer, “the killer would work the trigger on the tensioning device to tighten it. Two or three pulls would do it.”

“Thank you. I think that’s enough, Doctor.” Tannery tries to remove the tie by lifting it over his head, but it has been closed too far. It is clear to me, perhaps not to the jury, that the witness and Tannery have rehearsed this. The clerk has to lend Schwimmer a pair of good-sized scissors in order to cut the loop and remove it from around Tannery’s neck. The witness steps back up into the witness box and takes a seat.

The D.A. is left feeling with one hand around his throat, a not so subtle gesture for the benefit of the jury. “All things considered, and assuming the element of surprise,” he says, “this would be a very effective weapon, would it not, Doctor?”

“Oh, yes. And silent. It makes very little noise.”

“Once it’s locked in place and tightened, it can’t be removed except by cutting the nylon tie. Is that right?” As if Tannery had not just proved the point.

“Yes. That is correct.”

Tannery heads back toward his counsel table, begs the court’s indulgence and looks over a few notes, flipping pages as if to find his place, then comes back toward the box.

“Let me ask you, Doctor. You had an opportunity to observe the ligature that was used in this case before it was removed from Kalista Jordan’s throat. Is that correct?”

“Yes.”

“Did you remove that ligature yourself?”

“I did.”

“And where did you do this?”

“In the examination room at the coroner’s office. As part of the preautopsy examination. We also took photographs at that time.”

“And as part of that examination, were you able to determine anything else regarding possible identification of the perpetrator of this crime?”

“I was able to make certain determinations.”

“For example?”

“Based on the placement of the ligature around the victim’s throat, it is my opinion that the killer was left-handed.”

As he says this, Crone, who has been copiously taking notes at the table next to me, suddenly stops and lays his pen down. Unfortunately, he isn’t quick enough. Several of the jurors are looking at the ballpoint pen resting on the table, angled like an arrow toward his left hand, which just laid it down.

“Can you tell the jury how you came to this conclusion?”

“Ordinarily with a garrote, or a piece of rope, it might be difficult to tell,” says Schwimmer, “although the dominant hand usually leaves some telltale bruising where the hands cross over. The ligature is twisted as the assailant applies pressure. But in this case it is fairly easy, and certain. The reason,” he says, “is the design of the cable tie itself.”

He picks up a fresh one from the bag as if to emphasize.

“The assailant would insert the end of the tie into the yoke, making a loop.” Schwimmer does this with the tie.

“From the tool marks on the nylon tail it is clear that the assailant used a tensioning tool to gain leverage. This would give him a solid grip on the thin nylon. In doing this, in using the tool to pull the loop closed, it is natural that the killer would use the dominant hand to pull the handle of the tool, and the weak hand to position the loop in place at the posterior of the victim’s neck. That means that when the act was completed, when the cable tie was fully tightened, the tail of the tie passing through the yoke would pass from right to left behind the victim’s neck as it exited the yoke. The tail would be in the direction of the killer’s dominant hand. In this case, the left hand. This was, in fact, what I observed before removing the cable tie from around the victim’s neck.”

“Thank you, Doctor.” Tannery has some close-up photographs of this, which the witness quickly identifies. These are marked for identification and placed into evidence without objection. He then identifies the cable tie used to kill Kalista Jordan sealed in its plastic evidence bag, still coiled in its deadly loop even though cut. This, too, is lettered for identification and moved into evidence.

“Just as a point of information, Doctor, do you have any scientific basis or knowledge as to what proportion of the general population is left-handed?” asks Tannery.

“About ten percent,” says Schwimmer.

“A distinct minority,” says Tannery.

“Correct.”

I can feel Crone as he bristles at this.

“Were you able to determine anything else from your observations during or before the autopsy?”

“Yes. It was apparent that the killer was taller than the victim. I would estimate, approximately six feet in height.”

“And how did you determine this?”

“The ligature, while being applied nearly on a level, was pulled up slightly higher at the back of the neck. As I said, above the first cervical vertebra. That would indicate that as the killer applied pressure, the ligature was being pulled just slightly upward, accounting for a difference in height. I determined the assailant to be approximately six feet tall by taking the height of the victim and the slight angle of the ligature and making some calculations.”

“I see.” Tannery then takes the witness through the process of dismemberment, the fact that Kalista Jordan’s arms and legs were severed neatly at the joints. Three of these were never found when her torso floated up on the beach along the strand.

“Could you tell how long she had been in the water?”

“At least three days.”

“Could sharks or other predators have accounted for the missing limbs?”

“Not unless they had medical training,” says Schwimmer. Several of the jurors laugh at the dark humor.

“Objection.”

“Sustained.”

“Could sharks have accounted for this?” Tannery holds up one of the photographs toward the jury.

“No. There were no tooth marks, no broken bones. Whoever dismembered the body after death knew what he or she was doing.”

“Is it likely that this person had medical or surgical training?”

“Objection.”

“I’m asking the witness for his expert opinion,” says Tannery.

“I’ll allow it,” says the judge.

“It’s possible,” says Schwimmer. “The incisions at the joints were made by a very sharp instrument.”

“Like a scalpel?”

“Possibly.”

“Thank you, Doctor. No further questions.”

Coats looks down at me. “Your witness, Mr. Madriani.”

The tactic here is always the same, playing the game of the possible. Securing little wedges of concession from the expert, issues on which he cannot be absolutely certain, and to maneuver for openings that can be exploited.

“Dr. Schwimmer. Am I pronouncing your name correctly?”

He nods and smiles.

“In your autopsy report you stated that the victim suffered several severe lacerations and contusions to the head.”

“That’s true.”

“Were you able to determine what caused these?”

“No.”

“Do you know whether these contusions and lacerations were suffered before death or after the victim was killed?”

“No. It was not possible. The body was in the water too long.”

This was a point covered in his report. Ordinarily, bleeding into the tissues surrounding a contusion or laceration might indicate that it was an injury sustained before death, before the heart stopped beating. In this case, immersion in salt water for two or three days destroyed many of the forensic signs that the state might have followed.

“So it’s possible that these bruises, the contusions and lacerations on Kalista Jordan’s head, were inflicted before death.”

“It’s possible.”

“As I recall from your report, there were three distinct contusions, one on the left side in the parietal area, and two to the back of the head near the right temporal region. Is that correct?”

“I believe so.”

“Would you care to consult your report?”

“No. That’s correct.”

“Were any of these contusions, particularly the two to the back of the head, consistent with blunt-force trauma?”

He thinks for a moment, evaluates the issue, a theologian splitting hairs.

“You understand what I mean by blunt-force trauma, Doctor? The application by force of a blunt instrument used to strike the head of the victim.”

“I understand.” He looks at me sternly as if I’m questioning his credentials.

“It’s possible,” he says. “She could also have fallen, striking her head. Or the injuries could have occurred after she was in the water. Wave action being thrown into rocks. It’s not possible to tell,” he says.

“But it’s possible that these contusions were the result of blunt-force trauma, before the victim died, is it not?”

“Yes.”

“It’s possible, is it not, that they could be the result of the assailant or assailants striking the victim, Kalista Jordan, with a blunt instrument in order to render her unconscious?”

“It’s possible.”

The opening I’m looking for.

“So if one or more of these contusions to the head were the result of blunt-force trauma, isn’t it possible that the victim was not only unconscious at the time of death, but that she may have been unconscious at the time the cable tie was applied over her head, or around her neck, and tightened?”

He thinks about this for a moment, and then finally says: “I don’t know.”

“Isn’t it possible that blows to the head, blows sufficient to cause these contusions, could have rendered the victim unconscious, Doctor?”

The problem for Schwimmer is that he cannot know. A concussion, one sufficient to knock a person unconscious, is virtually impossible to detect, even from tissue slides of the brain following an autopsy. It is difficult to argue with what he cannot know.

He begins to nod in concession. “It’s possible,” he says.

“And if these blows did render the victim unconscious, then there would have been no struggle. No need to slip up behind the victim. No need to prepare the cable tie in advance and no need to attach the tensioning tool before the killer actually used it. Isn’t that true, Doctor?”

“I suppose. If the blows, as you say, rendered her unconscious. We do not know that.”

“But we know that she suffered these contusions.”

“Yes.”

“And we know that they could have been caused, that it’s possible they were caused by blunt-force trauma and that this could have occurred before death?”

“It’s possible.”

I take a long breath. He has opened the door just a crack.

“Let’s assume, for a moment, that the victim was knocked unconscious by blunt-force trauma before the cable tie was applied. Is it not fair, then, to assume that she would be lying down on the ground or the floor, or at least not standing on her own two feet, when the cable tie was applied?”

“I suppose. It’s possible.” He is now slipping behind the curve in the game of possibilities.

“Possible? If she were unconscious, how could she be standing?”

“She couldn’t. She would be in a supine position.”

“Lying down. In fact, collapsed. Isn’t that true?”

“Yes.” Schwimmer can see where I am going, but he can’t avoid it.

“And if this were the case, if she were lying down, then the cable tie could easily have been placed around her neck and the end slipped into the yoke afterward?”

“I suppose.”

“And in that case the assailant would not have worried about which hand was dominant in order to pull the cable tie tight, would he?”

“Oh, I think he would still use his dominant hand.”

“Yes, but if the victim were lying down, we don’t know whether the assailant was standing over her head facing her feet when he pulled the tie closed, do we?”

He sees the problem.

“In that case, the killer would be pulling the cable tie closed with his right hand in order to have the tail of the tie pass from right to left through the yoke. He could be kneeling on her shoulder, reaching across his body and pulling it like he was starting a chain saw. Isn’t that a fact, Doctor?”

“Well, if the relative positions of the parties are changed. .”

“What’s changed is that the victim is down and unconscious,” I tell him. “And if that’s the case, then your opinion as to the killer’s dominant hand is no longer relevant, is it?”

“No. Assuming those facts.”

It wasn’t hard for the cops to determine that David Crone was left-handed, and to tailor their case accordingly.

“So that we’re clear, if the victim were lying down, since she could have been approached from any angle, is there any way to be certain which hand was used to tighten the cable tie?”

He thinks for a moment, looking for some way out, then concedes the point. “No.”

“Nor is there any way to determine the height of the assailant, is there? If the victim were on the ground.”

“No.”

“So the killer could have been a right-handed midget for all we know.”

I don’t get a response from Schwimmer, at least not a verbal one.

“Not to make light of the victim and what she lost,” I say, “but the fact is that all your testimony about the pain and suffering, the fear and agony brought out by Mr. Tannery in his direct, all that would be similarly in error if the victim had been rendered unconscious by one or more sharp blows to the head. Isn’t that a fact?”

“Yes. But we don’t know if she was rendered unconscious.”

“We don’t know that she was not, do we?”

“No.”

“All we know is that someone killed her. We don’t know how tall he or she was, or which hand he or she used.” I don’t make a question of this, something he can argue with.

“That’s all, Your Honor.”