The Wrong Man

77

At a quarter to two, I rose to begin my cross-examination.

“Detective,” I said, “upon arresting and booking Tom Stoller on the early morning of January fourteenth, you didn’t find any of Kathy Rubinkowski’s blood on his hands, did you?”

“We didn’t, no.”

“You didn’t find any of her blood on Tom’s shirt, did you?”

“No.”

“Or on his shoes?”

“Correct, we did not.”

“You searched the area where Tom lived, so to speak. Where he slept. At the southwest corner of Franzen Park. And you didn’t find any of Kathy Rubinkowski’s blood among his possessions, either, did you?”

“Correct.” He was answering matter-of-factly, as if these were not significant facts. He was a well-trained witness.

“Gunshot residue,” I said. “GSR. That’s residue of the combustion components of a firearm after it’s fired, right?”

“That’s right.”

“When a gun fires, it creates an explosion-combustion of the primer and powder.”

“True enough.”

“Gunshot residue is the residue of the combustion. Little particles, or residue, can be found on the arm or wrist or body of an individual after they’ve fired a gun, right?”

“It can be, sometimes. Not always.”

A good answer. He was going to say that on redirect, anyway. “You tested Tom Stoller for the presence of gunshot residue, didn’t you?”

“Yes, and we didn’t find any.”

“Nor did you find gunshot residue on anything else among his possessions in the southwest corner of Franzen Park, correct?”

“We did not.”

“So you didn’t find any physical evidence that Tom Stoller fired that weapon, did you?”

“We didn’t find any GSR, as you said.”

Equivocation. Dumb. A chance for me to repeat and emphasize.

“GSR or anything else, Detective-you didn’t find a single shred of physical or forensic evidence that Tom Stoller fired the murder weapon, did you?”

“That’s correct, sir.”

I paused for a segue, and to let that quick rat-a-tat of favorable information soak into the jurors’ minds.

“Now, in the course of collecting evidence that night, you found the spent shell casing from the Glock 23 on the sidewalk, in the soil of the planted tree?”

“That’s correct, Mr. Kolarich.”

“A distance of ten feet and one inch from where the victim was lying dead.”

“That’s correct.”

“A Glock semiautomatic expels its casing to the right, true?”

“True.”

“Not forward or backward.”

“Correct.”

“So it’s likely that the weapon was fired from ten feet away.”

Danilo shrugged. “Hard to say. A shell casing could be moved.”

I looked at the jury. “You’re saying someone might have moved the shell casing?”

“It’s possible, I’m saying.”

“Well, did you find a fingerprint on the shell casing?”

“No, sir. But it was wintertime. People wear gloves.”

“Did you find gloves on my client’s hands when you arrested him?”

He paused, then smiled. “No, we did not.”

“So you have no evidence that the shell casing was moved, do you?”

“Just as you have no evidence it wasn’t.”

“But I’m not trying to prove my client innocent beyond a reasonable doubt, am I? You’re trying to prove him guilty beyond a reasonable doubt. Isn’t that your understanding of how this works, Detective?”

“Objection. Argumentative,” said Wendy.

The judge overruled. Danilo conceded the point. “I have no evidence the casing was moved.”

“And if the shell casing wasn’t moved, that would mean that the shooter was ten feet away from Kathy Rubinkowski when he shot her.”

“If the casing wasn’t moved, yes.”

“Detective, have you ever fired a Glock weapon?”

“Yes, I have.”

“Hitting someone with a shot between the eyes from ten feet away with a Glock pistol-that’s no easy feat, is it?”

“It’s good marksmanship,” he agreed.

“It’s excellent marksmanship, wouldn’t you agree?”

He gave that a moment. “Yes,” he said.

“And the street lighting on Gehringer Street was rather weak, wasn’t it?”

“I’m not sure I would characterize it that way.”

I walked him through the high-powered flashlights and the remote-area lighting equipment he brought in to conduct the crime scene investigation that night. I drew it out in a series of questions to overstate my point, which was that the shot from the Glock was not only impressive because of the distance but also the relative darkness.

“But since you raised it, Detective.” I moved from the podium now. I didn’t even feel my knee. “In your experience, why would someone move a shell casing?”

Danilo thought for a moment. He probably hadn’t expected that question. “To throw off the measurements,” he said. “Criminals alter crime scenes to make the story look different than it was.”

That was what I needed. “Criminals try to alter things to hide their crimes, yes?”

“Of course.”

“For example, some killers pick up their shell casings after firing their weapon. Yes?”

“Yes.”

“And in your experience, you’ve seen instances where killers robbed their victims after killing them to make their motive appear to be robbery. You’ve seen that, haven’t you? They had a different motive but they wanted to conceal it, so they made it look like a robbery? In your twenty-two years on the force, you’ve seen that?”

Danilo had no way out of that. “I’ve seen that happen. It’s not the norm.”

“But you’ve seen people use a purported robbery to cover up their real motive.”

“Objection, Your Honor. Asked and answered.”

“I’ll withdraw,” I said. “Kathy Rubinkowski was a paralegal at a law firm, wasn’t she, Detective?”

“Correct.”

“Do you know how many criminal cases she worked on?”

“I don’t, no.”

The answer was zero, but I don’t know was what I wanted.

“Well, then describe for us generally what cases she worked on.”

He shook his head. “I’m not able to do that.”

“You didn’t investigate the cases she worked on?”

“I didn’t consider it necessary, no.”

“Did you check her e-mails?”

“No, sir. I didn’t consider it necessary, given that your client was found with the victim’s personal items and the murder weapon, which he claimed as his own.”

“Did Tom say how long that gun had been in his possession?” I asked. I asked it as an open-ended question only because I knew the answer; the entire conversation was captured on tape.

“No, he didn’t,” Danilo conceded.

“He didn’t say, ‘I’ve owned that gun for ten years.’”

“No, sir.”

“He didn’t say, ‘I’ve owned that gun for ten hours.’”

“No, sir, he did not.”

“Detective, you’ve had some experience with homeless people as both a beat cop and later a detective, yes?”

“Yes.”

“And isn’t it fair to say that homeless people are often possessive of their things?”

“They can be. It’s not a hard-and-fast rule, but I take your point.”

Nice of him. “So isn’t it possible that when Tom said, ‘That’s my gun,’ that he had only possessed that gun for an hour before he was arrested?”

“That would surprise me.”

“But it’s possible.”

“Possible, I suppose.”

“So it’s possible that someone dumped that gun over the fence-the closest fence to the crime scene-and Tom was there. He picked it up, and in his mind, voila, it was now his gun.”

“Objection. Calls for speculation.”

“It’s no more speculative than the prosecution’s theory,” I protested. That wasn’t a valid response to the objection, and every lawyer in the room knew it. It was my closing argument.

The judge sustained and admonished me.

Good enough. I wanted to get back to my larger point. “Did you talk to Kathy’s co-workers about whether anyone had a problem with Kathy or would want to hurt Kathy?”

Danilo looked up and sighed. “I don’t believe we interviewed them, no.”

“What about her friends?”

“No, sir. As I indicated-”

“It wasn’t necessary. Yes, Detective. So you would have no way of knowing whether Kathy Rubinkowski had expressed some fear for her life? Fear that someone wanted to hurt her. You would have no way of knowing that?”

“Objection.” Wendy got to her feet. “This is all rampant speculation.”

“Your Honor, I’m simply inquiring into the depth, or lack thereof, of the investigation.”

Judge Nash paused, then overruled the objection.

“We had our guy, Counselor,” said Danilo.

“So you can’t tell this jury, one way or the other, whether Kathy sent e-mails to friends or co-workers that she was afraid for her life.”

“He said he didn’t review her e-mails, Counsel.” This from the judge.

I glared at him and then moved on. “And as the lead investigator on this case, Detective, that would be kind of an interesting thing to know, wouldn’t it? That the victim thought her life was in danger?”

“Objection. Argumentative and speculative, Your Honor.”

“Overruled. The witness will answer. But Mr. Kolarich,” said the judge, peering down at me over his glasses, “don’t belabor this.”

“Yes, Judge.” I looked at Shauna, who nodded back at me. She was right. It was probably time.

“Detective,” I said, “isn’t it true that Kathy Rubinkowski was about to blow the whistle on what she believed to be serious criminal activity only days before she was murdered?”

“Objection!” That was the quickest I’d seen Wendy leap up. “May we have a sidebar, Your Honor?”

The judge waved us up. I’d thought about going to the judge first, showing him everything I’d come up with to date, and begging him to let me introduce this evidence. But I liked springing it better. No matter how Judge Nash ruled on this, the jury heard it at least once.

The judge stepped down from the bench. We met him off to the side.

He gave me a long look.

“This better be good, Mr. Kolarich,” he said.