The Law of Second Chances

61

Thursday morning’s temperature was in the low twenties, and only the staunchest advocates on each side of the death penalty issue were outside the courthouse. Jack had a relatively easy time making his way inside. The transcripts he’d requested from the court reporter were waiting at his table. The reporter was already at her seat, and Jack gave her a nod of thanks. One of the court officers came over to tell him that Dr. Wong’s exhibits had arrived and were resting against the far wall behind the court personnel. Moments later, Benny was ushered in through the side door. Today he was wearing a brown suit, blue shirt, dark multicolored tie, and brown shoes. His father, who had taken his place behind Jack, was certainly going to great lengths to ensure his son made a good impression on the jury every day.

Jack turned to Luis. “Nice job. He looks terrific.”

Luis seemed much more relaxed. “Tomorrow he’s in charcoal gray, like the dandy wore the first day,” he said, glancing in the direction of Spencer Taylor, who was dressed in navy blue with a bright gold tie. Jack got a kick out of Luis’s moniker. Spencer was indeed a dandy.

Spencer started the morning off with Detective Tony Severino. The testimony began with Tony’s telling the jury about his training and experience as a homicide detective. Then Spencer took him right to the murder scene.

“What time did you arrive?”

“I arrived at the scene at precisely 11:11 p.m.”

“Were you the first to arrive?”

“No. There were some uniforms there already. The coroner was there, I believe. There was a crowd, and some members of the press.”

“Were you the first homicide detective?”

“Yes.”

“What did you do when you arrived?”

“I went to the body and gave it a cursory inspection.”

“What did you observe?”

“I observed a white male, tall, probably in his late fifties or sixties-I found out later that he was actually in his seventies but he didn’t look it. He was wearing a blue suit, white shirt, and maroon tie.”

Jack noticed a couple of the female jurors stealing a glance at Benny, who had worn the exact same outfit the day before. He wanted to whack himself in the forehead for missing that detail. It was one of those little things that might tip the balance in a close case. That was the way trials went. You couldn’t possibly think of everything. At least Benny wasn’t sitting in court today in that outfit. Then even the men would have noticed.

Back on the stand, Tony Severino was continuing his testimony. “He had a bullet wound in his forehead.”

“What did you do next?”

“I directed some of the uniforms to tape off the crime scene. You don’t want people walking all around there. It can contaminate the evidence.”

“How did the police department first learn of this crime?”

“A woman from the neighborhood called it in. Her name was Frances Holloway.”

“What did she say?”

Jack was on his feet. “Objection, your honor. Hearsay.”

“Sustained.”

“Your honor, I’d like to be heard on this,” Spencer protested. “May we approach?”

The judge gave Spencer an annoyed look. “Come along,” he motioned to the two lawyers.

“Mr. Taylor, when it is obviously hearsay we don’t need to come to the bench to make a record.”

“I understand, Judge, but I’m not offering it for the truth of the matter asserted.”

Langford Middleton rolled his eyes at that one. It was an argument every lawyer tried at one time or another, but it was rarely successful. He let Spencer continue, though. “Carry on, but make it brief.”

“Mrs. Holloway merely reported that she heard the shot, came to her window, and saw someone kneeling over the deceased. She couldn’t identify him. This evidence was already entered through yesterday’s testimony and I don’t think counsel has disputed it. I’m only trying to create my time line without having to bring another witness in.”

It was a clever way to put it, appealing to the judge’s desire to move things along. The judge looked at Jack. “Well, Mr. Tobin?”

“It’s cumulative, Judge. He’s trying to get a third witness to say my client was kneeling over the deceased without bringing her in.”

“I’m going to allow it. If necessary, Mr. Tobin, I’ll let you call Ms. Holloway. As it stands, Mr. Taylor has the right to establish a time line with Detective Severino. Objection overruled.”

Spencer gave Jack another peek at his perfect teeth as they left the sidebar, smiling broadly as he gloated. Twenty years ago Jack might have gone after him right there in the courtroom, but he had learned to squelch those urges. If it was meant to be, the worm would turn eventually.

Spencer and Tony Severino went on and on for the rest of the morning. Spencer asked Tony about his expertise with firearms. Besides his experience as a detective, Tony was a certified firearms expert, which partly explained to Jack why Spencer called him rather than Nick Walsh as a witness. Spencer might still call Nick, but if the prosecutor was looking to get this case over as soon as possible, probably not. Spencer had Tony talk about the slug that was taken out of Carl’s skull and establish the chain of custody from that moment to his appearance at trial. He then introduced the bullet into evidence. Jack had no objection. It was a bullet without a gun. Yes, it killed Carl, but who was at the other end of the gun was the issue in this case. Spencer had Tony describe the bullet in great detail.

“It’s a nine-millimeter Parabellum, commonly known as a Luger cartridge,” Tony told him. “As you can see, it’s not in very good shape. It’s distorted. Once a slug like this hits bone, it starts to break up a little.”

“Were you able to establish the type of gun that this bullet was fired from?”

“Yes.”

“How do you do that?”

“It’s a little technical, but I’ll try to explain it as best I can. Each gun has distinctive markings in the barrel. They’re called lands and grooves. The grooves are cut into the barrel of the gun in a spiral; the lands are the spaces between those grooves. When the gun is fired, the spiral grooving makes the bullet spin so that it flies straight. The heat inside the chamber makes the slug softer and makes it conform to the spiraling and the grooves in the barrel. If the slug is not damaged too badly you can examine those impressions and determine the make and possibly the model of the gun.”

“Was the slug that you retrieved from the deceased’s cranium in decent enough shape to make that examination?”

“Barely.”

“And did you make that examination?”

“I was present when it was done. I’m no longer a full-time firearms examiner, but I was present when this examination was made.”

“And did you determine the make and model of the gun that killed Carl Robertson?”

“Yes. It was a Glock nine-millimeter semiautomatic weapon-probably a Glock 17. It’s a handgun manufactured by the Austrian company Glock. It has a unique barrel groove, and we could see that in this bullet even though it was distorted considerably.”

“What does the term semiautomatic mean?”

“It means that the gun can be fired like an automatic weapon-that is, it can fire multiple rounds rapidly-but unlike a true automatic weapon you actually have to pull the trigger each time.”

“In this case, from the evidence presented, how many rounds were fired?”

“One.”

“How do you account for that with this semiautomatic weapon?”

“The person firing only pulled the trigger once.”

“Thank you, Detective Severino, I have no further questions.”

“Cross-examination, Mr. Tobin?”

“Yes, your honor.” Jack walked to the podium and looked at Tony Severino.

Trials were often won or lost on how an attorney cross-examined key witnesses. In Jack’s mind, Tony Severino was a key witness in the case. It was very difficult to make a prosecution witness your own, especially a seasoned police detective who had hundreds of hours of courtroom testimony under his belt. One mistake and the whole process could backfire.

Jack was not a seasoned criminal lawyer, but he understood the art of cross-examination better than most other trial attorneys on the planet. You had to lead the witness down the road without letting him know where he was going-keep the pace up, cut off exits, until eventually he found himself on a dead-end street with no way out. He was about to try to do that with Tony Severino.

“Detective Severino, you told Mr. Taylor that the motive for this murder was robbery, is that accurate?”

“Yes.”

“Can you be more specific?”

“We think he stole ten thousand dollars from Mr. Robertson’s inside jacket pocket.”

“You do concede, however, do you not, that Ms. Vincent cannot say for certain whether Mr. Robertson had that money on him on September 1, 1998?”

“Yes, she said that.”

“And there is no other evidence to establish Mr. Robertson had that money on him that night, correct?”

“That is correct.”

“There were three individuals who immediately went to their windows after they heard the shot and saw someone kneeling over the deceased’s body, correct?”

“That’s correct.”

“And two of those individuals, Mr. Cook and Mr. Frazier, identified that individual as the defendant, correct?”

“That’s correct.”

“Ms. Holloway could not?”

“No, she could not.”

“Is it also accurate that nobody saw this individual take anything from the deceased’s body?”

“Yes, that’s accurate.” Tony was beginning to look bored. This was all set out very clearly in the police reports that were already in evidence.

“How do you square that with what you just testified to-that he took the money out of Mr. Robertson’s inside jacket pocket?”

“He took it before they got to the window and looked out.”

“And nobody saw this individual carrying a gun-this Glock 17 that you just told us about, correct?”

“Correct.”

“And he certainly didn’t drop it at the scene because you didn’t find a gun at the scene, did you?”

“No, we didn’t.”

“And you never found the gun-the murder weapon, is that accurate?”

“That’s accurate.”

“In your analysis, what did he do with the gun?” Spencer couldn’t object to this line of questioning even though it was speculation. He had put Tony on the stand in part to explain how the murder occurred. He would be annihilated in each juror’s mind if he now objected that his own witness was speculating on that exact issue.

“He probably tucked it in his pants or a pocket. It’s not a particularly large weapon.”

“Before the three individuals saw him from their windows?”

“Sure.”

“And is it accurate that there is no other physical evidence linking the defendant to this crime-no DNA evidence, no fingerprints, no hair fibers-other than the fact that he was present on that street and was seen kneeling over the victim after he was shot?”

Tony Severino took a deep breath. He didn’t want to answer the question. “Do you mean other than the fact that he was the only person in the area when Carl Robertson was murdered?”

Jack didn’t waste time arguing with him. He went directly to the judge.

“Your honor, I asked a question that calls for a yes or no answer. Would you instruct the witness to answer the question?”

“Answer the question, Mr. Severino.”

“No. There was no physical evidence other than the fact that the defendant was identified leaning over the body moments after Carl Robertson was shot.”

“Thank you, Detective. In your analysis of the crime scene, did you assume that the murderer was close to the deceased at the time of the murder?”

“Yes.”

“How close?”

“Within a few feet.”

“How did you determine that?”

“The witnesses came to the window immediately and he was already kneeling over the deceased. He had to be very close. There was no time to come from somewhere else.”

So far it was plausible to think that Benny could have shot Carl, taken his money, and stashed the gun before any of the three eyewitnesses reached their windows and looked out and saw him. Anything else would have been implausible in that short a time. Jack looked at the jury just to make sure they were still awake. They were listening intently; they wanted to see where this was going. Only Jack knew that he now had Tony Severino on that dead-end street.

“The bullet that you showed the jury and that counsel introduced into evidence as exhibit number 6, I believe, was taken from the deceased’s skull-is that right?”

“That’s right.”

“Now, that bullet before it is fired is in a shell casing, right?”

“Right.”

“And when it is fired from that Glock nine-millimeter the shell is ejected, right?”

“Yes.”

“And it lands in the immediate area where the gun is fired?”

“Usually, yes.”

“I’m not sure I understand that answer. It pops right out, doesn’t it?”

“Yes, but it could roll away if the surface was uneven or something.”

“Was the surface of Seventy-eighth Street and East End Avenue uneven?”

“Not that I noticed, no.”

“You searched the immediate area for that shell casing, didn’t you?”

“Yes.”

“But you didn’t find a shell casing, did you?”

“No.”

“Did that lead you to any conclusions?”

“Yeah. He must have picked it up.”

“Who’s ‘he’?”

“The defendant.”

“Let me see if I understand this. A shot rings out. Three people hear it and go to their windows immediately and they see a man kneeling over the deceased. From their observations, he doesn’t have a gun, he doesn’t take anything off the deceased, and he’s not searching on the ground for an empty shell casing. It is your theory that before all three of those people got to their windows and looked out, he had found the money, taken it and stashed it somewhere on his person, concealed his gun somewhere in his clothing, searched and found his empty shell casing, and also concealed it in his clothing. Is that accurate?”

“That’s pretty much it.”

“Pretty much it, or is that it? We want to be precise here, Detective. This is a murder trial.”

Spencer Taylor finally caught wind of the fact that his witness was floundering.

“Objection, your honor. He’s badgering the witness.”

“Overruled. Answer the question, Detective.”

The objection had given Tony Severino time to think. He tried to squirm out of the trap Jack had set for him.

“There is a possibility that he didn’t look for the shell casing and we just couldn’t find it.”

It was too important a point for Jack to let go unchallenged.

“How many police officers did you have there that night?”

“I don’t know exactly. A lot.”

“A lot?”

“Yes.”

“How many of them searched the area with you?”

“I don’t know for sure. Several.”

“Is several the same as a lot?”

“I don’t know. I don’t know. I’d say a lot of officers were looking for that shell.”

“You testified just a few moments ago that it was your conclusion that the defendant searched for the shell, picked it up, and put it in his pocket, correct?”

“That’s correct.”

“Then you said there was a possibility that the defendant didn’t look for the shell casing and you and your officers couldn’t find it, right?”

“Yes.”

“Are you changing your opinion here today in court, Detective Severino?”

The jurors were on the edge of their seats waiting for the answer. Even the judge was leaning over watching the witness intently.

“No. I’m not changing my opinion.”

“And your opinion was that the defendant took the time to look for the casing, found it and put it in his pocket?”

“Yes.”

“Because you and a lot of other police officers combed the area and no shell casing was there, right?”

“That’s right.”

“No further questions, your honor.”

“Redirect, Mr. Taylor?”

“Yes, your honor.”

Spencer Taylor knew his witness had been beaten up pretty badly. He didn’t want to make things worse on redirect by going back over the same ground, but he did have one point to make.

“Detective Severino, what did both Mr. Cook and Mr. Frazier tell you the defendant did when he saw them?”

Both Cook and Frazier had already testified to these facts in court, so Jack couldn’t object on the basis of hearsay.

“He fled.”

“He fled from the scene of the crime?”

“Yes.”

“No further questions.”

It was lunchtime when Tony Severino slithered from the stand and the judge recessed the proceedings. Jack stayed in the courtroom to go through Dr. Wong’s exhibits in detail. He knew the coroner was probably coming up next, and he wanted to be ready. Luis stayed with him.

“You were right, Jack,” Luis said. “This is your courtroom. You owned that man today. I don’t know why I ever doubted you.”

“Don’t get your hopes up too high, Luis. We still have a long way to go. Trials can turn on a dime-it’s the nature of the beast.”

Jack had subpoenaed all the prosecution’s witnesses before the trial started as a precaution. It was a habit he’d gotten into a long time ago as a civil defense attorney. He’d sent along a letter telling them that if they called and left a number where they could be reached during the day, they wouldn’t have to appear in court the first morning that testimony began and hang around potentially for days until they were called. Everyone always rang-the incentive was too great not to. The number Jack had given was Dorothy’s, Henry’s aunt.

Jack phoned Dorothy-who among other things was doing an excellent job as his temporary secretary-and asked her to get in touch with Nick Walsh and tell him to be at the courthouse at nine o’clock the next morning. If Spencer rested at the end of the day and Henry wasn’t back with witnesses, he needed a warm body to put on the stand. Maybe Nick Walsh would give him something he didn’t expect. Frankie O’Connor had told him that Nick was a legend in the police department. Joe Fogarty had said he was one of the best homicide detectives the department ever had. He was Tony Severino’s partner. Yet Tony never mentioned his name during his entire testimony. Why?

Leland Pendergast had been the coroner of the City of New York for twenty years. He knew every politician in the state and walked and talked with an air about him that suggested power and influence. His favorite attire were expensive, custom-made suits that padded his shoulders and tapered his waist-efforts on his part to hide most of the fat on his beefy, six-foot frame. He couldn’t hide his face, though, and those thick jowls.

Leland Pendergast strode confidently into the courtroom on the afternoon of the fourth day of Benny Avrile’s murder trial and took the stand. Spencer led him through his extensive and very impressive qualifications before honing in on the substance of his testimony. Not surprisingly, Spencer spent very little time on how the murder had occurred and the cause of death. Their little tragic opera was all about photographs, twenty in all-extremely graphic pictures of the bloody corpse. Each image was six feet tall and three feet wide, and Leland Pendergast stood in front of each one with a pointer-like a teacher leading a classroom discussion-explaining its significance to the jury.

Jack objected to each photograph, initially on the grounds of prejudice and eventually on the grounds that the evidence was cumulative and prejudicial.

“Judge, how many photographs does the jury need to see to understand that Carl Robertson was shot in the forehead? The prosecution is just trying to inflame the jury,” Jack argued at sidebar. But his objections were overruled.

The jurors were horrified. Some of the women were moved to tears. At the end of his testimony, Leland Pendergast finally gave the only opinion that mattered. The cause of Carl Robertson’s death was a single bullet wound to the head. It took him two and a half hours to get there.

Sitting in the front row behind Jack and his son and watching the juror’s reactions to the pictures, Luis understood what Jack meant about a trial turning on a dime. The pictures weren’t the only bad turn. Benny, who had been silent and stoic throughout the trial as Jack had directed him, was visibly moved by the pictures. Try as he might, he couldn’t help himself. Tears rolled down his cheeks. The jurors saw the tears and wondered if they were tears of guilt.

Jack saw the tears too. There was nothing he could do about them. He had to concentrate on taking a pound of flesh from Leland Pendergast. As he rose to begin the cross, something in his mind clicked about a piece of evidence whose significance he had not understood until that very moment.

Before taking his place at the podium he walked over to the easel facing the jury, removed the last of the grisly pictures, and placed it facing backward on the far wall with the other exhibits so it would not be a distraction during his cross-examination. Mr. Pendergast was going to have to get through cross on his words alone.

“Were you at the scene of the crime?”

“No.”

“Was somebody from your office there?”

“Yes.”

“Who was that?”

“Dan Jenkins.”

“And is Dan Jenkins a licensed pathologist like yourself?”

“Yes.”

“And has he testified in court before?”

“Yes.”

“In murder trials?”

“Yes.”

“Has he ever been disqualified for any reason?”

“Not that I am aware of.”

“Who did the actual autopsy?”

“Dan Jenkins-with my supervision, of course.”

“We’ll get to that. The autopsy report that you’ve been talking about, state’s exhibit number 10-did Dan Jenkins sign that?”

“Yes. And so did I.”

“Is it your practice to sign every autopsy report?”

“Yes. I am responsible for every opinion that comes out of my office.”

“And that signature of yours on this autopsy report, is that a stamp?”

“Yes, it is.”

“Is the stamp for convenience so you don’t actually have to sign all the autopsies that are done by your staff?”

“Yes.”

“How many autopsies does your office do a year?”

“Thousands. This is New York City. We are very busy.”

“So you don’t read and approve every autopsy report before it comes out of your office, do you, Mr. Pendergast?” This was where Jack expected the big lie. He wasn’t disappointed.

“I try to. I’m sure some slip by.”

“You said Dan Jenkins did the autopsy with your supervision, correct?”

“Yes.”

“How long has Mr. Jenkins been with your office?”

“Around ten years.”

“Does he need supervision to do an autopsy?”

“Absolutely not. What I mean by that statement is that I supervise the work of all my people.”

“You weren’t present when Dan Jenkins did the autopsy of Carl Robertson, were you?”

“I may have walked in and out of the room a few times.”

“Do you specifically recall if you did or not?”

“No, I don’t.”

“So you don’t have any firsthand knowledge of the findings in this autopsy report that you have been testifying about all afternoon, is that correct?”

Leland didn’t answer right away. Instead, he made one of the most amateur and devastating moves a witness who is trying to appear impartial can make. He looked over to Spencer Taylor for help. Spencer looked down at his notes.

“Is that correct?” Jack prompted.

“Yes, but as an expert witness I can testify about the findings of others, especially my staff.”

Jack had taken enough wind out of Leland’s sails. It was time to get down to specifics. He was debating whether he should even use Dr. Wong’s exhibits at this point. There had to be a reason Dan Jenkins was not on that stand. Maybe he would save the exhibits for when he called Jenkins himself.

“In your opinion, Dr. Pendergast, was the assailant close to the deceased when he shot him?”

“Yes.”

“How close?”

“Not point-blank but very close.”

Jack wanted to ask him how he’d arrived at that conclusion but he refrained from doing so because Leland had given the exact answer he’d wanted. “I’ve reviewed this autopsy report and I noticed that there was-I’m not sure how you put it-a protrusion at the rear of the cranium, is that accurate?”

“Yes, it is.”

“Is that where the bullet struck the back of the cranium?”

“Yes, that’s correct.”

“Now, did you or Mr. Jenkins measure the angle from the entry wound to this protrusion in the back of the cranium?”

“Yes, we did.”

“And why would you do that?”

“To determine the trajectory of the bullet. It’s not always totally accurate, because sometimes the trajectory is thrown off by other obstacles in the body.”

“How about in this case? Do you think the trajectory was accurate?”

“Yes, I do.”

“And what was the trajectory of the bullet?”

“It was almost a straight line from the forehead to the rear of the head. There was a slight upward angle.”

“Are you aware of how tall the defendant is?”

“Yes, I am.” Leland smiled when he gave the answer as if he suspected Jack would be surprised by his positive response. That told Jack that they knew where he was going and were ready for him. He kept going anyway.

“How tall is he?”

“Five feet eight.”

“And Carl Robertson, how tall was he?”

“Six feet four.”

“At close range, if a five-foot-eight man shot a six-foot-four man, wouldn’t the trajectory be straight up with the bullet hitting the top of the cranium rather than the rear?”

Leland smiled again. He’d obviously been waiting for the question. “Not necessarily, and certainly not if the taller man was looking down at the shorter man. Say they were having a conversation like ‘Give me your money’ or something like that. Then the trajectory would be at a straight angle, just like we found.”

That last opinion did in all of Dr. Wong’s wonderful graphs and charts. Jack had considered Leland Pendergast’s explanation as a possibility; he had just hoped that the state had been overconfident and not done its homework. Now he was out on a limb with no place to go, and Leland Pendergast was all puffed up and confident again.

Jack decided he had no choice but to try the new theory that had just come to him. “Doctor, is it accurate that a bullet loses its velocity the more distance it travels?”

“That’s hard to say with any definiteness. Velocity depends on a lot of things-the type of gun and the type of ammunition being the two most important factors. I don’t know as I sit here what the speed per foot was of the ammunition fired from the Glock that was used. That’s not my area of expertise. However, the longer the distance, the more resistance the bullet encounters in the atmosphere, and eventually it starts to lose a little steam-so I would agree with your proposition in general, but I don’t think you can gauge the loss of velocity with any accuracy. If the target is in the range of the gun as it obviously was in this case, the job gets done, no matter what the distance.”

It was a confusing answer, and Leland probably meant it to be so. Jack ignored the explanation completely.

“Is that a yes, Doctor?”

“Yes, I’d agree with your proposition in general.”

“Would a gun fired, say, at point-blank range or very close be more likely to pass through the skull?”

“Not really. The skull is very durable. That’s where we get the term ‘hardheaded.’” There was a laugh from a few members of the gallery. Some of the jurors smiled as well. The judge wisely let it go. “I don’t believe that a Luger Parabellum, the bullet that was used, fired from a Glock nine-millimeter would penetrate the skull no matter what distance it was fired from. Just look at how beat up this bullet was.”

Jack had what he wanted. It was time to bring Leland down a few pegs again before he let him go.

“When was the last time you actually performed an autopsy rather than simply supervising your staff?”

Leland didn’t answer right away. “Maybe five years ago.”

“How long has it been since you did autopsies on a regular basis as part of your job duties?”

“Ten years, I’d say.”

“No further questions, your honor.”

It was almost five o’clock when Leland Pendergast sashayed off the witness stand. The judge dismissed the jury and cleared the courtroom. He wanted to talk to the lawyers alone and get a sense of where they were and when they expected to be done with their cases.

“I may have one or two witnesses, I may not,” Spencer told the judge. Jack took that statement to mean that Spencer would be resting his case first thing in the morning.

To his credit, Judge Middleton didn’t buy off on Spencer’s dodge. “Come on, Mr. Taylor, you know if you’re going to rest tomorrow or not.”

“I really don’t, Judge. There’s a possibility I might rest first thing in the morning. If I do call more witnesses, they’ll be brief. I’m not going to go back over ground we’ve already covered.”

“Good,” the judge replied. “Because I’m not going to let you.” Jack liked the judge’s attitude. In spite of everything he had heard, up to now Langford Middleton had run this trial as well as anybody could have. Jack hoped he would continue in that vein.

“Mr. Tobin?”

“Yes, your honor?

“Be prepared to start your case tomorrow.”

“Yes, your honor. I also have a motion I would like to argue after the prosecution rests.”

“I figured you would. Okay, gents, I’ll see you in the morning.”

Jack caught the court reporter on the way out and requested the transcript of his cross of Tony Severino. He then called Dorothy and gave her another witness to call-assistant coroner Dan Jenkins.