The Wrong Man

70

Officer Francis Crespo was a ten-year veteran of the city police department. He was built like a brick house and had dark features and a mustache. He was one of the patrolmen in the area when reports came in of the shooting on Gehringer Street.

“We weren’t the first to arrive,” he explained. “But we got the nod when the call came through about a sighting of a homeless man running through Franzen Park with a gun.”

“You ‘got the nod’?” Wendy asked.

“We were dispatched by the detective-in-charge on the scene to investigate. My patrol and Officer Downing’s. Cars eighteen and twenty-three.”

“Go on, Officer.”

“My partner and I proceeded by vehicle to Franzen Park.”

“Why a vehicle?” Wendy asked. “Wasn’t Franzen Park just a block away?”

“That’s correct, ma’am, but it’s a city block wide and long. So the northeast end of the park was a quarter-mile away. It made sense to drive there and be mobile by vehicle once there.”

“Fair enough, Officer. Where did you travel?”

“Officer Downing’s patrol took the south end of the park, and my partner and I searched the north end. When we searched behind the park district building, we found an individual sitting between two dumpsters. He had-”

“Excuse me, Officer. Do you see that person in court today?”

“That’s correct, ma’am. It was the defendant, seated there.” He pointed at Tom.

“Stipulate to identification,” I said.

“Go on, Officer.”

“Ma’am, he-the defendant had a purse in his lap and was rummaging through it. I shined my Maglite-my flashlight-I put my flashlight beam on him and announced my office. I saw to his immediate left a firearm sitting in the grass. A Glock pistol. My partner and I drew our weapons. I told the subject to raise his hands where I could see them.”

“His hands were in the purse?”

“That’s correct.”

“What did he do when you told him to raise his hands?”

“For a moment, nothing. I ordered him again to remove his hands from the purse. He did not.”

“But then-”

“But then his right hand came free and he looked up into the flashlight beam. His gun was to his left, so he wasn’t a threat to go for that weapon.”

He was covering his ass here.

“And then in one very quick motion, he lifted a two-by-four sitting next to him and threw it at me. Kind of a boomerang throw. He hit me in the chest and knocked my flashlight out of my hand.”

“And what happened next?”

“I fell backward, ma’am, and my partner had been circling around me from behind, so I fell into her.”

“The defendant got away on foot?” Wendy said, helpfully.

“That’s correct, ma’am. It’s embarrassing. But he got away. He ran west, and we chased him. He jumped the fence and ran north on Gehringer Street for approximately three blocks. We had radioed for backup, and two squad cars cut him off.”

“And then what happened?”

“The subject-the defendant-dropped to his knees and put his hands behind his head.”

“You took him into custody.”

“That’s correct, ma’am.”

Wendy took the officer through the retrieval of the evidence-the murder weapon, the purse, the necklace. They also found where Tom “lived,” so to speak, in Franzen Park, but they didn’t find anything related to the case there. Finally, she questioned him on the process of submitting the evidence at the police station.

The direct was finished at a quarter to noon. I was eager to talk to Lee Tucker, so I hoped the judge would recess.

“Cross-examination, Mr. Kolarich?” he asked.

“It will take us past the hour, Your Honor.”

“Cross-examination, Mr. Kolarich?” he repeated.

I got to my feet. A searing pain shot through my knee. I liked to move around the courtroom as I cross, but today it would be painful.

“Officer, in your search after arrest, you ultimately found that my client had a small living area staked out in the park, didn’t you? Blankets, some canned foods, that kind of thing.”

“That’s correct, sir.”

“And Tom’s living space was on the southwest corner of that park, true?”

“That’s right.”

“It was right up against the fences, right? The southern and western fences? That corner?”

“Yes, sir.”

“The corner nearest the crime scene.”

“That… That would be correct, sir.”

I looked at the jury. “Less than a block from the crime scene.”

“Correct.”

I realized this cut both ways. It might make a crime of opportunity more likely. Tom was hanging out where he lived, saw someone and robbed her. But it also went to my theory.

“Someone walking, or let’s say jogging-someone jogging from the crime scene to the southwest corner of Franzen Park-could get there in seconds, right? Less than a minute?”

Officer Crespo gave that some thought. “No more than a minute, probably.”

“Someone could have robbed Kathy Rubinkowski after killing her and, in less than a minute, dumped those items and the murder weapon basically over a fence and into Tom Stoller’s lap.”

“Objection.” Wendy Kotowski got to her feet. “Calls for speculation.”

The judge removed his glasses and wiped them with a cloth. “The witness will answer.”

Surprising. I would have sustained. But Judge Nash ain’t most judges.

“I guess that would be possible,” said Crespo. “But that means he also could have reached the victim within seconds and killed her and robbed her.”

“Glad you brought that up,” I said, which is what I typically say when I’m not glad somebody brings something up. It deflects the zinger, the initial impression that the other side has scored is momentarily abated, and by the time I’m done drawing out the issue, hopefully the jury has forgotten.

Only this time, I really was glad. “The park was north of the crime scene, right?”

“Right.”

“And Kathy Rubinkowski’s assailant shot her while standing from the south. He was south of Kathy when he shot her, true?”

“Objection,” said Wendy. “Foundation.”

I flapped my arms. “Your Honor, I don’t think anyone disputes this point. Kathy Rubinkowski was facing south when she was shot head-on. Her assailant must have been south of her. That’s what the state’s going to say, and I won’t disagree. Do I really need to recall this witness or can we stipulate?”

The judge liked my idea. “Ms. Kotowski?”

“Fair enough, we’ll stipulate,” she said.

“Might we waive a written stip in lieu of testimony?” the judge asked her. If there isn’t testimony on a stipulated fact, you have to write it up for the jury. The judge was suggesting we skip that step if the state was going to introduce oral testimony on the point.

“Absolutely, Judge,” she said.

I agreed as well. Then I turned to the officer again. I had to restart my momentum. “Officer, if your idea held water, that would mean that my client left his living space at the corner of the park, traveled south past the victim, and then came back up north on the sidewalk and shot her. Isn’t that true?”

“Well, maybe he was casing her, checking her out to make sure she was an easy target first. Then, when he decided she was, he came back around and attacked her.”

That was a pretty good answer. Maybe I shouldn’t have gone this route. But still time to make lemonade out of lemons.

“That would entail a little forward thinking, right? Some planning?”

He chuckled. “Not much.”

He was right. He was a more worthy adversary than I’d expected. Still, lemonade was within reach. “So then, under your theory, he robs her and then heads south, away- away from the park, and turns around and shoots her?”

I wouldn’t normally kick around ideas with a witness like this-a good cross-examination is all about control, getting yes or no responses, knowing the answers before they’re given-but in a case like this, about all I had going for me was that the state couldn’t pin down exactly how the murder took place. So I was willing to do this back-and-forth all day if Wendy didn’t object.

But she did. She popped to her feet. “Now we are going far afield,” she said. “This is rampant speculation. There is no foundation for this, and we don’t stipulate.”

“Judge,” I said, “does the state claim that the victim was shot first and then robbed, or robbed first and then shot? Because if they’ll tell me which way it happened, I’ll adjust my questions accordingly. Otherwise, I completely agree-and would be willing to stipulate-that the prosecution’s theory is entirely speculative.”

“Your Honor, this is ridiculous-”

The judge raised a hand. “The objection is sustained. Ladies and gentlemen of the jury, please disregard Mr. Kolarich’s speech to you. Closing arguments are a few days away. Now move on, Counsel.”

“Yes, Your Honor. One more line of questioning. Officer, you called out to Tom to remove his hands from the purse, correct? You identified yourself as a police officer and ordered him to show his hands, didn’t you?”

“That’s correct.”

“And he didn’t react in any way, did he?”

“No.”

“Your voice was rather loud and commanding, I take it?”

“I would hope so.”

“Right, because when you give orders, it’s important that you’re taken seriously.”

“Correct.”

“So? He didn’t respond to your clear command?”

“He did not.”

“And then you said it all over again, right?”

“I… yes, a second time.”

“And again, he didn’t react in any way?”

“Object to relevance,” said Wendy. “Could we have a sidebar?”

She knew what I was doing. I was portraying Tom as mentally ill, in his own little world, oblivious to the shouts of an approaching police officer.

“I think the ship already sailed, Ms. Kotowski,” said the judge, before Wendy could get her sidebar. I’d gotten two answers on that topic already, he meant. She missed her chance. “Overruled.”

“Officer? A second time, Tom was unresponsive?” Since I had a clear shot now, I might as well use a more clinical word, make Tom seem like he was comatose.

“That’s correct.”

I was done. I hadn’t accomplished much. Wendy got all she needed from this guy, and I didn’t put any meaningful dent in him.

Prosecution 1, Defense 0.