Clifford Irving's Legal Novels - 01 - TRIAL - a Legal Thriller (31 page)

Altschuler then asked if the medical examiner could determine whether or not Dr. Ott had been moving, or standing, or lying down when the bullets struck him. A lengthy technical explanation of angles and probable order of wounds followed.

"Can you boil that down for us, sir, and come to a conclusion that we laypersons who haven't been to medical school can understand?"

"In my considered opinion, when he was killed, Dr. Ott was standing still."

"Pass the witness."

Warren remembered all too well:
"He was running at you when you shot him?" "Yes." "He never hesitated? He never stopped?" "No."
That was Johnnie Faye's story, what she would testify to. If Clyde was standing still, it meant there was considerably less reason to shoot him. And it also meant she had lied to her lawyers.

Warren took the medical examiner on cross, but the doctor, who was not only a forensic pathologist but an attorney, refused to budge.

"Sir, your opinion that Dr. Ott was standing still when the bullets struck him — that's not necessarily a fact, is it?"

"In this instance, yes, it is. He was almost certainly standing still."

"
'Almost
certainly' doesn't mean 'certainly,' does it?"

"Well, I'll amend that. There's no doubt in my mind."

The more Warren nagged at him, the firmer the medical examiner became.

"Have you ever been proved wrong in such an opinion, sir?"

"Not that I'm aware of, except insofar as a jury's verdict of not guilty can be considered proof of error."

"What you mean, sir, is that in another case you testified to a set of facts or probabilities and the jury didn't believe you, isn't that right?"

"Objection," Altschuler said, rising. "He has no idea what another jury believed or didn't believe."

Warren turned to Judge Bingham. "Your honor, this is an expert witness — he's allowed to answer any way he pleases."

"It's close," the judge said, "but I don't think I can allow it. Objection sustained."

"No more questions," Warren said, sitting down, where he began to chew on the end of a pencil. Johnnie Faye threw him a dark, questioning look. Rick's eyes were hidden by a raised hand.

Photographs of the body were introduced into evidence, and then Tommy Ruiz, the homicide sergeant, told of his arrival at River Oaks. He had found the defendant waiting at the front door. She had flipped a cigarette onto the lawn before stepping out to meet him. Referring to his notes as transcribed into the HPD offense report, Ruiz quoted Johnnie Faye as saying: "When we got downstairs I tried to get out of the house, but Clyde was in the hallway and blocked the way… I picked up a poker to defend myself and he grabbed it away from me… I didn't mean to kill him, but he was coming at me like an old grizzly bear, waving that poker over his head." A poker had indeed been discovered about eighteen inches in front of a white leather sofa in the living room, Ruiz testified. Dr. Ott's body was half on the sofa, half on the floor.

Using a schoolteacher's pointer and a large three-colored architectural chart propped against an easel, Ruiz described the Ott house in detail. Altschuler had him dwell on the huge dimensions of the living room ("about thirty-two feet by nearly forty-five feet, plus an alcove furniture, the broad marble staircase ascending from the vestibule to the second floor, and the spaciousness of the archway leading from the living room to that vestibule and the front door.

Altschuler said, "Would it be difficult, Sergeant Ruiz, if a person was standing in either the archway or the vestibule, for another person to run past him — that is to say, run
around
him? I mean, was it too narrow for one person to dodge another person?"

Rick Levine objected. "Calls for speculation."

He and Warren had agreed that Rick would do the cross-examination of Sgt. Ruiz; only the lawyer scheduled to do cross could make objections during direct examination of the witness.

"Sustained," Judge Bingham said, after a little thought. "You can rephrase, Mr. Bob."

Altschuler asked, "Approximately how many people of average size, standing side by side, could fit across that archway, Sergeant Ruiz?"

"Ten or twelve," Ruiz replied.

"Was there any furniture or anything in that archway that might impede easy passage?"

"No, sir. Nothing."

"And how many square feet was the vestibule?"

"It was eighteen by eighteen. So I guess that's over three hundred square feet."

"Does three hundred and twenty-four square feet sound accurate?"

"Yes, it does."

"About the size of a large bedroom?"

"You could say that."

"Any furniture in the vestibule that could impede entrance or exit in any direction?"

"A couple of fancy wooden chairs, but they were against the wall. Two small carved tables with Tiffany lamps, but they were also against the wall on each side of the door. Basically, it was a large, empty space."

"When you arrived at Dr. Ott's house, how much time had elapsed since Ms. Boudreau's telephone call to the HPD dispatcher?"

"About twenty minutes."

"Did Ms. Boudreau seem drunk or sober?"

"Objection," Rick said swiftly. "They didn't run any tests on her. Calls for the witness to speculate."

"Sustained," the judge said.

"One more question. The white leather sofa in the living room — about how far was that from the bottom of the marble staircase?"

Ruiz looked carefully at his notes and then up at the architectural chart. "I'd say about sixty-five feet."

Altschuler passed the witness and Rick took him on cross. Unfortunately for the defense, Tommy Ruiz was not a cop who lied or fudged. Rick stayed away from the subject of the theoretical exit from the living room and concentrated on the distraught state of the defendant when the police arrived.

Altschuler asked for redirect. "Sergeant Ruiz, you just stated that soon after Ms. Boudreau met you at the front door smoking a cigarette, tears appeared in her eyes and she seemed very upset. Were you standing close to her, or were you at a distance?"

"Close. A few feet away."

"Did you smell alcohol on her breath?"

"No, sir."

"Did she appear to know what she was doing?"

Rick objected again.

In his reverberating baritone, Altschuler exclaimed,
"They
opened the door to speculation in this area, your honor!
They
asked the sergeant for his opinion of Ms. Boudreau's condition when he first arrived. I didn't object. Now I'm just following through."

Judge Bingham said, "I'm sorry, Mr. Levine. Mr. Altschuler is right. I have to overrule you." He turned to Ruiz. "You may answer."

"She seemed to know exactly what she was doing," Ruiz said.

"Did she then or later slur her words or make any movements or say anything that led you to believe she was at all drunk?"

"No," Ruiz said. "She seemed completely sober and in control."

In the street, with Johnnie Faye a few steps ahead of them, Rick looked thoughtfully into Warren's calm eyes. "This is going to be a little tougher than we thought it would be."

"Altschuler prepares," Warren observed.

At lunch with her lawyers, in the same garden restaurant where Warren had talked to Judge Bingham, Johnnie Faye's eyes were cloudy.

"I don't get it. What was that last part all about? What's the big deal about drunk or sober?"

Bob Altschuler, Warren explained, was mounting a double-barreled attack both on her credibility and her duty to retreat. In a few days, despite what had been said in front of the TV cameras, Johnnie Faye would take the witness stand. "And on cross," Warren said, "Altschuler will try to prove that you could have got out of the house, meaning there was no reason for you to shoot Clyde. If you were still a little drunk, as you claim you were, you might not have been able to get out so easily, and it helps to explain why you couldn't control the trigger. Being drunk doesn't negate a crime but it doesn't work against you. But Ruiz says you weren't drunk."

"Well, maybe when
he
got there I wasn't. But I was drunk when Clyde and I got back to the house. I told you that."

"Yes, you told us that."

"So what should I say about it?" Johnnie Faye looked worried. "Was I drunk or not? And what about that coroner? What about that standing-still bullshit?"

The lawyers were silent. Rick coughed. Warren sipped his iced tea. The medical examiner's testimony devastated her current version of self-defense.

Johnnie Faye's silver eye shadow glittered in reflected sunlight. "You guys told me I had nothing to worry about, that we'd win in a walk. You sons of bitches lied to me."

"I told you we had a good case if you were telling the truth," Warren said coolly. "If you always tell the truth, as my mother used to say to me when I lied about spilling Kool-Aid on the rug, then you can never forget what you said. So that's what you'd better do."

===OO=OOO=OO===

After lunch the state called Sgt. Jay Kulik, the HPD fingerprint expert. In his late thirties, Kulik was a curly-haired man with a handlebar mustache and a modest professional demeanor. After he had lectured at some length on the technicalities of fingerprint analysis, and it was established that both Clyde Ott's and Johnnie Faye Boudreau's prints were found on the thirty-two-inch-long, three-pound poker, Altschuler asked Kulik to describe in lay terms the exact placement of those prints.

"Her prints were all over it," Kulik said. "At the bottom, at the top, and in the middle. Both palm and fingertips."

"And Dr. Ott's prints?"

"One set only, at the bottom — the handle part. No palm prints. Just fingertips of both hands."

Altschuler produced the poker with its police I.D. tags, and had it entered into evidence. He asked permission from the judge to approach the witness.

"Please stand up, Sergeant. Pick up this poker in such a way that your palms don't touch it. In other words, just with your fingers."

Kulik did so. Obviously, an awkward grip.

Altschuler took a step backward. Turning to face Johnnie Faye, he fixed her with a stern look that blazed with reproach. With his back to the witness, he said loudly, "Sergeant, see if you can raise the poker over your head, holding it only with your fingertips. Can you do that?"

"It's not easy," Kulik said.

"You can't do it?"

"I can, but I wouldn't. It's not natural."

Altschuler turned to him again. "Now, Sergeant, grip the poker in a natural way and raise it over your head. You can swing it a little if you like."

Kulik drew it back and took a short swing, as if he were about to bunt.

"If that poker were taken from you now, Sergeant, and your office examined it, what would you find?"

"My fingerprints and palm prints."

"And there were none of Dr. Ott's palm prints on that poker, were there, when you examined it in your lab the day after his murder?"

"No, sir. None. Just prints of his fingertips."

"Does that lead you to believe, Sergeant Kulik, that Dr. Ott in fact
ever
held that poker up above the level of his shoulders?"

"No, sir, it doesn't."

"What does it suggest, Sergeant Kulik?"

"Objection," Warren called loudly. "Calls for sheer speculation."

"Sustained," said the judge.

Altschuler looked carefully at the jurors to assess whether or not they had understood. Satisfied, he said, "Pass the witness."

Warren asked for a ten-minute recess. Ignoring Johnnie Faye, he drew Rick into the hallway around the corner. He was pale. "The poker story," he said, "is a fucking fairy tale. She planted it. She put Clyde's prints on it after she shot him."

"You think the jury figured that out?" Rick asked.

"If any of them didn't, Altschuler will make it clear enough in final argument."

"I know this guy Kulik. He's an honest guy, a solid witness. You can't shake him."

"But I've got to do
something.
I just can't figure out
what."

"Save it for final argument," Rick suggested. "Point out that Clyde's palm prints could easily have been smudged and unrecognizable. But don't do it now because Kulik will say it's highly unlikely. Just pass the witness, like it's not important what he said."

Warren shook his head gloomily. "What else are we going to find out that we don't know?"

"Maybe the truth," Rick said.

===OO=OOO=OO===

The next witness was Lorna Gerard. Plump and suntanned, with a nervous twitch at the corner of her mouth, Lorna Gerard was Sharon Underhill's much-divorced daughter. She had been asleep in the house on the night of the murder. Had seen nothing, heard nothing. She had taken some sleeping pills, and the house was so huge.

Altschuler asked if she had known the defendant, Johnnie Faye Boudreau.

"Yes, in connection with my stepfather. She was his mistress. I was with them on several occasions, sorry to say."

"Tell us about those occasions, if you will, Mrs. Gerard."

At the defense table, Johnnie Faye whispered sharply in Warren's ear.
"Object! It's none of her fucking business."

Smiling crookedly, Warren whispered back, "That's not a proper objection."

"Just do it!"

Warren whispered, "Keep quiet, will you? I want to listen."

Lorna Gerard said that a month after Sharon's death, Clyde had brought Ms. Boudreau to Dallas, where they'd all had dinner at a French restaurant in the Anatole Hotel. The woman had said, "Clyde and I are going to get married." Clyde had said, "Maybe." The woman called him a "chickenshit motherfucker" and walked out in a rage. Clyde then said to his stepdaughter, "I'm getting rid of her as soon as I can, I promise you. Just let me handle it my way."

On another occasion, without Ms. Boudreau present, he said, "I'm frightened of her." Lorna Gerard had asked why, but Clyde declined to explain.

Judge Bingham overruled Warren's objection.

Johnnie Faye scribbled a note and shoved it at Warren. Rick, sitting on her other side, reached over and snatched it. The note read:
That's all hearsay! Object again!! Fight for me!!!