The Wrong Man

72

The prosecution called the forensic pathologist next. Dr. Mitra Agarwal had been with the county coroner’s office for more than thirty years and currently served as the chief deputy medical examiner. She was old friends with my mentor, Paul Riley, and I’d known her professionally and personally for several years. She testified for me twice when I was a prosecutor. Juries liked her because she had no flash, no spin. She was as straitlaced as they came. Her gray hair fell to her shoulders without style. Her now-weathered brown skin was freckled. She was stooped a bit with age but still spoke with a strong voice.

I didn’t know why she was handling this case, but my assumption was that she was next in the rotation when Kathy Rubinkowski’s body was wheeled in. As the top deputy, she could have passed on autopsies altogether, but the thought probably never occurred to her. She was a workhorse.

All of which made her a good witness for the prosecution and a terrible one for me. The only good news was she was a complete straight shooter-to a fault if you asked prosecutors. But in the end, there wasn’t much to get here. The cause of death was beyond dispute. I would have considered stipulating but we needed a couple of things from the witness, and the prosecution wanted to introduce graphic photographs through her, which I was unable to exclude during pretrial motions.

Wendy Kotowski let her second chair, a woman named Maggie Silvers, handle the witness. She probably figured Dr. Agarwal was a safe witness. The prosecutor took the jury painstakingly through the pathologist’s credentials and then the autopsy she performed.

“The bullet penetrated the skin and musculature of the forehead,” said the doctor, pointing to a diagram of a human skull. “It penetrated the glabella and continued front to back, impacting the occipital bone, where it came to rest.”

“And the blood, Doctor?” asked the prosecutor, pointing to the pool of blood that had formed at the victim’s head. “This was caused by the gunshot?”

“Yes, surely so. The sphenoid and ethmoid bones were shattered. It would cause a large episode of bleeding. Remember that even if brain activity had ceased, the heart would have continued beating. It could have gone on for a good five minutes, while she lay prone on the street.”

“All right,” said the prosecutor. “You mentioned the ceasing of brain activity. In your expert opinion, how did that happen?”

Dr. Agarwal nodded. “The bullet produced a shock wave that essentially ended all brain activity. Her brain activity would have ceased almost instantly upon impact. That explains the injuries to her knees and the side of her skull.”

“Explain, that, please. Is this what we call a ‘dead drop,’ Doctor?”

“That’s a term that is used. She died upon impact of the bullet and fell straight to the street. Her right kneecap was fractured in the fall, and she received significant contusions to the skull on the right side as well.”

“She was dead before she hit the ground?”

“Correct.”

“And the blackening of her eyes, Doctor?”

“Yes, you see here.” The doctor pointed to a close-up photograph of the victim, whose eyes had blackened. “Her orbital plates shattered from the pressure wave from the bullet. But as I said, her heart kept beating, so blood ran into the tissue around her eyes.”

“So, Doctor, the fractured kneecap, the blackened eyes, the contusions to her skull-these were all the result of the gunshot?”

“Without question, yes. The single gunshot caused her death. There is no evidence that she was otherwise beaten or attacked physically.”

The witness appeared to have jumped the gun, anticipating the last question of the prosecutor. Without the final question she’d planned, she fumbled for a moment with her notes. “Thank you, Doctor,” she said.

A little rough with the ending, but she got the job done. She wanted to establish that the only thing that attacked Kathy Rubinkowski was a bullet between the eyes. No punching or kicking or the like, because no evidence of such was found on Tom Stoller. He didn’t have bruising or blood on his hands or shoes. She had done her job, I thought. It was one single shot that dropped the victim.

Shauna was handling the science in the case so she took the cross. “Doctor,” she said before she got to the lectern. “Where the bullet entered the victim’s skull-there was no charring of the skin around the site of the entry wound, was there?”

“No, there was not.”

“And there was no tattooing or spotting, either, was there?”

“No, there was not.”

“No soot or powder stippling, correct?”

“Correct.”

“So to a reasonable degree of medical certainty, you can say that the gun muzzle was not within three feet of the victim’s skull, true?”

“True.”

Shauna paused for effect. “So the shooter was more than three feet away, wasn’t he?”

“That appears so, yes.”

“That’s what you think, right?” Shauna doesn’t like it when witnesses equivocate. It’s one of the things I love about her. It makes her a pain in the ass when we argue, though.

“That’s what I think.”

“It’s possible that the shooter was ten feet away, true?”

“I can’t say it’s im possible.” Another equivocation.

“Meaning it’s possible.”

“Yes, it’s possible. I only say that-”

“You’ve answered my question, Doctor.”

I couldn’t get away with that. I’m not sure if it’s just a gender thing or my relative size compared to the diminutive witness, but I’ve never felt like cutting off a witness played well with the jury. I’m also pretty sure that the judge wouldn’t let me get away with it, but the old goat seems to like Shauna.

“In fact, wouldn’t you agree, Doctor, that nothing in your findings would contradict the possibility that the shooter was ten feet away from the victim?”

Dr. Agarwal paused. She wasn’t typically argumentative, but she didn’t completely agree with Shauna. We all knew that the spent shell casing from the murder weapon landed in the soil of a planted tree on the sidewalk and that the strong likelihood was that the weapon was fired from ten feet away. But it was possible that the casing rolled on the sidewalk, so there was a little bit of leeway in the estimate on either side of ten feet.

Shauna was baiting the witness.

“If common sense and experience are included in my findings,” the doctor answered, “then I would say that I am not totally convinced that the gun was fired from ten feet away.”

“Why would you say that, Doctor?” Shauna said. You never ask open-ended questions on cross-examination unless you’re sure that any answer will suit your purpose. Shauna had a pretty good idea of how the doctor would answer, but she wasn’t sure.

“In my experience autopsying homicides,” Dr. Agarwal replied, “most gunshots from the Glock handgun used here are not so precise that one could hit someone between the eyes from a distance of ten feet. It’s obviously possible, but it’s difficult.”

“The shooter would have to be very good at what he did,” said Shauna. “He’d have to be an experienced shooter of that weapon?”

“Objection,” said the prosecutor, Maggie Silvers, but she was a little late objecting to this line of questioning and the judge told her so.

“I would think so, yes,” said the doctor, after Shauna repeated the question.

We wanted the shooter to be as far away as possible, to show both the bizarre nature of the prosecution’s theory and that it would take a very good shot to hit a victim between the eyes from that distance. The prosecution had an answer for that, of course-First Lieutenant Tom Stoller was a trained shooter in the Army Rangers-but to bring in that evidence, they had to bring in Tom’s military background. And they didn’t want to do that, especially since we landed a retired colonel on the jury.

Shauna killed another twenty minutes with the doctor and the prosecution redirected with just a few questions. We had scored one simple point, but the jury had seen several close-up, gruesome photos of the murder and heard graphic descriptions of the violent end to Kathy Rubinkowski’s life. When it was all said and done, it was another good witness for the state.

Prosecution 2, Defense 0.