Matter of Trust (56 page)

‘And would you please describe these – I suppose we should call them, factors of evidence, for the court – starting with the injuries to the face and the back of the head?'

Curtis nodded. ‘The evidence of bruising was found mostly on the victim's legs and under her right cheek and along her left jawline – and in autopsy I discovered an accumulation of blood in these areas typical of subcutaneous bleeding which occurs after someone is struck. The head injury was contrecoup, which means it was localised and caused bleeding in the frontal lobes.' Curtis pointed toward the front of her head. ‘Injuries such as this are sustained when a moving victim hits a stationary object, as opposed to the other way around.'

‘So Ms Maloney hit her head on something?'

‘Yes.'

‘Like a coffee table?'

‘Yes.'

‘After being attacked, pushed . . . ?'

‘Possibly, but not necessarily. The victim may have fallen of her own account.'

The courtroom buzzed and Marshall moved quickly to minimise the damage.

‘But in your opinion, this was unlikely?'

Curtis hesitated. ‘Yes. The injury was significant, which suggested the stationary object was hit with some force.'

David had to give it to him – Marshall was an ass, but a clever one.

‘And the evidence of a sexual assault you mentioned – what did that entail?'

David knew Marshall would have to tread carefully with this line of questioning for a number of reasons. Firstly, he noted that Marshall had departed from the chronological order set by Curtis by not mentioning the signs of struggle – and this was cleverly deliberate given the DNA found under the fingernails of the victim didn't belong to the defendant. Secondly, any mention of the lack of seminal DNA also opened the door for reasonable doubt. In fact, David wouldn't be surprised if Marshall
attempted to get through his entire examination of this witness glossing over the fact that the struggle and subsequent rape ever occurred in the first place. But this did not concern David greatly, given he had every intention of focusing on both matters during his cross.

‘There was evidence of significant vaginal tearing and bruising,' answered Curtis after a pause.

‘But no bruises on the victim's wrists to suggest she was held down while this intercourse took place?'

Curtis hesitated once again. ‘No. But the bruising on her legs was extensive and . . . if the victim had hit her head and been knocked out before the sexual assault took place, then—'

‘Just yes or no will do, thank you Doctor,' Marshall cut her short. ‘Have you seen this sort of genital injury before?'

‘Sadly I have autopsied many rape victims.'

‘But you are also aware that such injuries might be caused when a woman engages in consensual rough sex?'

‘Objection,' David saw where this was going and took the opening. ‘Doctor Curtis is not an OB GYN, but a medical examiner. Her experience is with examining the dead, not living women who engage in rough sex.'

‘He has a point, Mr Marshall,' said Jones.

‘Your Honour, Doctor Curtis is a trained medical professional. She may not have worked in gynaecology, but she has extensive knowledge of the female anatomy.'

‘Do you feel comfortable answering this question, Doctor Curtis?' Jones asked of the witness.

‘No, Your Honour,' said Curtis.

David was once again grateful to another of McNally's friends.

That round lost, Marshall quickly moved on to the drowning – a topic David knew would be both distressing to Chris and damaging to their cause. He knew Marshall would go to town on the grisly details – as death by drowning was an incredibly gruesome process – and he had no doubt the medical description of it would make a deep impression on the jury.

‘Generally speaking,' the ME began, ‘the process of drowning is categorised in five stages – surprise, involuntary holding of breath, unconsciousness, hypoxic convulsions and clinical death. In the first stage, the
victim recognises danger and becomes afraid. They assume a near-vertical position in the water, with little or no leg movement. The arms will be at or near the water's surface, making random grasping or flipping motions. The head will be tilted back with the face turned up. Victims rarely make any sound; they are struggling just to breathe.'

‘And I believe you concluded in your autopsy report that the exposure to the cold waters of the Passaic most likely revived the unconscious Ms Maloney – triggering this first stage of surprise.'

‘That is possible. If the head injury had rendered Ms Maloney unconscious, the sharp drop in temperature could well have revived her.'

‘Thank you, Doctor,' said Marshall. ‘Please go on.'

Curtis took a breath before continuing. ‘The second stage, the involuntary holding of breath, occurs when the victim drops below the static water line, and the body, in an attempt to protect itself, initiates involuntary breath holding. This occurs because water has entered the mouth triggering the epiglottis to close over the airway – and at this point the victim is robbed of oxygen. The third stage, unconsciousness, is the natural result of oxygen deprivation. Basically, the body shuts itself down as the victim goes into respiratory arrest. At this point, the victim sinks, either slowly or rapidly, depending on factors such as the amount of air trapped in the lungs, body weight and muscle mass.'

‘And in Ms Maloney's case?' asked Marshall, wanting to milk this for all it was worth.

‘In Ms Maloney's case I believe she would have sunk fairly rapidly. While her body and muscle mass were not significant, there was a large amount of water in her lungs which would have resulted in a lack of buoyancy.'

Marshall shook his head – and half the jury joined him.

‘And the fourth stage,' he pushed on, ‘that of hypoxic convulsions?'

‘At this point the lack of oxygen to the brain causes involuntary convulsions. The victim's skin turns blue, especially the lips and fingernail beds, and the body may appear rigid. There may be violent jerking of the body and frothing at the mouth.'

Chris Kincaid shuddered.

‘And this is followed by the final stage of clinical death,' Curtis went on, and David got the sense she was keen to finish. ‘Clinical death occurs when both breathing and circulation stop. The victim is in cardiac arrest.
The heart stops pumping blood. The vital organs are no longer receiving oxygen-rich blood. The lack of oxygen causes the skin to turn blue.'

And there it was, a second by second account of how Marilyn Maloney had died. David tried to hide his grief, turning his head briefly toward the back of the room where a new member of the gallery had entered – the third of their three, an ashen-faced Father Michael Murphy.

His mission accomplished, Marshall had one more topic to tackle – that of Chris Kincaid's false identification of the victim. The FAP took Curtis back to that day when Harry McNally had accompanied Chris Kincaid and David Cavanaugh to the medical examiner's office; the same day, Marshall reiterated, that Chris Kincaid had ‘told numerous falsehoods relating to his relationship with the victim'.

Marshall instructed Curtis to summarise the viewing and identification process briefly before asking her to describe Chris Kincaid's reaction.

David braced himself for the ME's answer, knowing it would be yet another nail in his old friend's coffin.

‘Senator Kincaid concluded that the body was not that of his old friend Marilyn Maloney,' said Curtis, short and to the point.

‘He said it wasn't her.'

‘That's right.

‘In other words, he lied.'

‘Either he lied or he could not make a positive ID at that time. As mentioned earlier, the deterioration of the body was significant.'

‘Come now, Doctor Curtis, the defendant saw the victim regularly. Surely you will agree that someone who knew the victim as well as the defendant did should have been capable of indicating whether or not the body displayed before him was that of—'

David was about to object but ME Curtis beat him to it.

‘Mr Marshall,' Curtis interrupted, ‘let me put it this way. After Senator Kincaid gave us a negative ID, we had the option of asking other people who knew the victim and saw her regularly – such as her building super or her employer – to identify her body. But Detective McNally and I decided against it because of the state the body was in. Instead, we contacted her health insurance provider who gave us the name of her dentist – a Doctor Ivan Bashukov – who in turn supplied us with Ms Maloney's dental records.'

David saw Chris frown as if something was amiss. But then his brow relaxed as he returned his attention to the court.

‘In other words, Mr Marshall,' Salicia Curtis continued, ‘I could not be certain of Senator Kincaid's motives for giving us a negative ID. Perhaps he lied, or perhaps he failed to recognise the victim because her corpse was sadly . . .' Curtis gave a rare glance toward Chris, and for a second David could have sworn he saw sympathy in her eyes, ‘. . . unidentifiable.'

 

‘Doctor Curtis,' David was up and moving. Given the lateness of the hour, the judge decided against a break between Marshall's questioning and David's cross-examination which gave a grateful David the opportunity to capitalise on the ME's momentum.

‘In your opinion – as a medical examiner and
not
an OB GYN, do you think Marilyn Maloney consented to rough sex on the night of her death, or do you think she was raped?'

‘I believe she was raped,' said Curtis without the slightest of hesitation.

‘And why is that?'

‘Because the vaginal bruising and tears were relatively fresh and there was no evidence of any old bruising or scarring that might have suggested a penchant for rough sex.'

‘Which you have seen in other autopsies?'

‘Yes.'

Tick.

‘You didn't retrieve a semen sample from the victim?'

‘No.'

‘Because . . . ?'

‘In my opinion, the offender was wearing a condom.'

‘But you did secure evidence that led to your conclusion that some sort of struggle preceded this sexual assault. In fact, I am sure you listed this earlier but were not given the chance to—'

‘Objection,' yelled Marshall.

‘Overruled,' returned Jones.

Curtis was quick with her reply. ‘Yes. I found samples of skin tissue under two of the victim's fingernails.'

‘Suggesting Ms Maloney scratched her attacker?'

‘Yes.'

The gallery murmured.

‘Once again that was not something you mentioned in your earlier testimony, Doctor.'

‘And once again that was because I was not asked,' said Curtis.

Tick.

David could barely contain a smile.

‘Well, you have the floor now, Doctor, so please, tell us how you retrieved this sample – a finding which in itself seems quite remarkable given Ms Maloney's body had been submerged for some time.'

‘Yes, it is quite remarkable. But near freezing water is an amazing preserver of evidence. It helped that Ms Maloney had involuntarily curled these two fingers into a fist – her other extremities were attacked by the marine life, so . . .' Curtis paused. ‘Basically, her fist acted as a sort of incubator for the sample and the freezing waters as a form of refrigerator.'

‘I see. So the skin samples were what you would call viable?'

‘Yes,' confirmed Curtis. ‘The extraction took some time but we got a number of strands of viable DNA.'

‘Enough for you to make a clear comparison with the DNA supplied by Chris Kincaid?' David gestured toward his client.

‘Yes.'

‘And did these two DNA samples match?'

‘No.'

‘So there is no way the skin found under Ms Maloney's fingernails could have belonged to Chris Kincaid?'

‘It is a medical impossibility.'

The murmurs increased.

Tick.

‘And are you aware of the police making any progress in regards to identifying the owner of this DNA?'

‘
Objection
!' Marshall jumped to his feet so quickly that he knocked over a water glass beside him – a court clerk and a member of his junior staff moving in quickly to mop up the damage. ‘Your Honour, as defence counsel is so determined to point out, Doctor Curtis is a medical examiner –
not
an OB GYN,
nor
a homicide detective. As such, she would have no knowledge of any follow-up investigations in this regard.'

‘Your Honour,' David was ready with his counter-argument. ‘On the
contrary, the witness plays a very important role in this investigatory process as she is the one who supplies the DNA slides and the accompanying paperwork to the police so that they might undertake such enquiries.'

At this point David avoided the ME's eyes – knowing full well that McNally's good friend had done just that – not only in the weeks following Marilyn's death, but also mere days ago at McNally's request.

‘I'll allow it,' said Jones. ‘You may answer the question, Doctor Curtis.'

Curtis nodded. ‘Yes, I did supply the police with the standard information so that they could run the sample through the New Jersey DNA Databank.'

‘But no match was made.'

‘I do not believe so. If it had been, I am sure another test of the newly identified suspect would have been—'

‘Objection
!'

Suspect! Curtis said suspect!

TICK!

‘Your Honour,' Marshall's face had turned the colour of a beetroot. ‘The medical examiner is in no position to make such a supposition. I ask that her previous statement be struck from the record.'

And immediately, after chastising the witness for overstepping the mark, an irritated Jones agreed. But David knew while Curtis's comment could be struck from the record – it couldn't be wiped from the jury's memories.