Silent Witness (58 page)

‘Have you seen Ernie Nixon?' Tony asked.

Sam shook his head. ‘The
Weekly
says he took a leave. No explanation.'

Tony was quiet for a moment. ‘None needed,' he said at last.

Sam turned to him. With a deliberate, accusatory calm, he asked, ‘So when do
I
say I didn't kill her?'

‘Maybe you don't.'

Sam folded his arms. ‘Maybe I
hide
behind you, you mean?'

‘No.' Tony's voice was cool, succinct. ‘Maybe we decide, like the rational adults that we are, that you don't need to “win” this one. That I've established reasonable doubt by putting on our criminalist. That you don't need to run the risk of rationalizing infidelity, sodomy, and pregnancy to twelve solid citizens who may start to wonder where it is you drew the line.' Pausing, Tony spoke more softly. ‘We'll do a practice run tomorrow, try it out.'

Sam turned away, staring at the ground. In a flat voice, he said, ‘Let's finish this.'

‘The game? No, I think we should finish when the trial's over. I don't feel like winning today.'

Sam looked at him askance, eyes narrowing. Tony hoped that Sam understood his silent message; that today, finishing would not be good for either one of them.

Quietly, Sam repeated, ‘I'd like to finish this.'

Tony smiled, walking away. ‘That's the thing,' he said over his shoulder. ‘It's like a trial. You can't play without me.'

On Monday morning, two weeks after the commencement of the trial, Tony at last made his opening statement.

The jury was still and attentive. Tony felt the weight of their expectations, the burden of Sam's tense watchfulness and Sue's unfathomable gaze.

‘This is not a time for argument,' Tony began. ‘It is a time for fact.

‘The “facts” offered by the prosecution are entirely circumstantial.

‘There are no witnesses to Marcie Calder's death. Indeed, the only person who ever placed Sam Robb in Taylor Park that night was Sam Robb himself, and no one has offered a reason for that other than the one Sam gave when Marcie turned up missing – that he was concerned for her.'

Pausing, Tony surveyed the two rows of jurors. ‘Ms. Marz,' he said quietly, ‘has tried to give you reasons to dislike Sam Robb – that he had sexual relations with a teenage girl; that he was the father of her unborn child; that he concealed their true relationship from the police. Based on this, she then asks you to believe that Sam Robb must have
murdered
Marcie Calder to conceal it from everyone.

‘But lying is not murder. As uncomfortable as this might be, I venture to say that everyone on this jury, and everyone in this room, has done things that they're ashamed of, and told lies that they regret. And the
facts
suggest that Sam Robb lied not to conceal a murder from the police he contacted voluntarily, but to protect his marriage, his livelihood, and his reputation in the town where he has spent his entire life.' Tony's voice turned harder. ‘Just as Ernie Nixon tried to conceal his relationship with Marcie Calder from
you
– whatever it may have been – for whatever reason
he
might have had.

‘As to either man, deception is not murder, and speculation is not proof. And I believe that, in the end, you must conclude that the prosecution has not even proved – beyond a reasonable doubt – that
anyone
murdered Marcie Calder.

‘But let's assume for the moment, as you cannot do in your deliberations, that Marcie died at the hands of someone else.

‘Your obligation as jurors is not to convict Sam Robb of
murder
because you disapprove of his conduct. Nor is it to decide whether he should teach in our schools – for by resigning his license to teach, Sam Robb has decided that himself. . . .'

Stella Marz stirred, angry. Sam's resignation was not a ‘fact' of record, and would not be unless he testified. But Tony had already moved on. ‘Your job – your
only
job – is to decide whether the facts require that Sam Robb spend his life in prison.

‘That is, perhaps, the gravest judgment twelve people can render on another.' Pausing, Tony looked at Sam, then Sue. ‘The judgment to take this man from his family, forever. Yet that is what the prosecution asks.

‘Based on
what
'?

‘A fingerprint, and a drop of blood.'

‘A fingerprint. A drop of blood. I ask you to focus just on that. Because, before this day is over, I believe you will conclude that the prosecution cannot prove that Sam Robb is a murderer, or even that these two “facts” suggest murder at all.'

Pausing, Tony looked at each juror, a silent reminder of the compact they had made – to listen, and to be fair. Then he thanked them, and called the only witness he meant to call.

Peter Shapiro was a stocky man with salt-and-pepper hair and mustache, keen brown eyes, an air of evenness and good humor, and a plainspoken manner free of pomposity or cant. With degrees in medicine, criminology, and forensic science, all from Ohio State, he was one of the most expensive experts Tony had ever hired.

Quickly, Tony established Shapiro's credentials and then the scope of his assignment – to review the crime lab report, the autopsy report, and all physical and medical evidence that supported the prosecution case, but to do no original work of his own. In this way, Shapiro confirmed, he was able to review the exact evidence cited by Detective Gregg and Dr. Micelli, and to determine if his conclusions matched theirs.

‘In your opinion,' Tony asked, ‘does the physical and medical evidence support a homicide, as the prosecutor contends, or may it also suggest the possibility of accident or suicide?'

Shapiro nodded briskly, ready to tackle the question. ‘First of all, I don't question the competence of the Lake City police, and I have great respect for Dr. Micelli's experience and expertise. Are they right that this was a homicide? I'd have to say probably.' Pausing, Shapiro turned to the jury. ‘But could Marcie Calder have died some other way? Yes, she could have.'

It was a perfect opening, Tony thought: respectful, balanced, and credible – what Sam Robb needed was doubt, not certainty. ‘Why do you say that, Dr. Shapiro?'

‘Let's start with the medical evidence cited by Dr. Micelli: first, the absence of contre-coup brain injury.

‘It's a probable indicator that Marcie Calder did
not
die in a fall. But certain? Not to me.

‘For over two centuries of trying, no one has ever been able to explain
why
the apparent correlation between falls and contre-coup brain injuries works the way it does. But it's not a “straightforward matter of physics.” Take one example: the most serious falls, like from a building, may not result in contre-coup injury. Even though the skull may be totally fractured.

‘Why?'

‘We
think
it's because the body falls with such speed that brain and skull accelerate at the same rate, and therefore no acceleration pressure develops within the skull prior to impact. So a fall from a chair can, in theory, inflict much more contre-coup damage than a fall from a cliff.'

Scanning the jury, Tony saw that the nutritionist looked impressed, as did the English professor. It was just as well that they had not been there when Shapiro told Tony, ‘Micelli's probably right – odds are pretty high somebody threw the victim off the cliff, close to when your client says he was with her. But take Kate's reasons one by one, and there's a little doubt with each of them. It's the cumulative effect that bothers me.'

‘What is your assessment,' Tony asked Shapiro now, ‘of Dr. Micelli's belief that the nature of Marcie Calder's skin abrasions suggests a postmortem fall?'

Once more, Shapiro spoke to the jury. ‘Well, it certainly
could
. But the point Mr. Ravin made with Dr. Micelli is a fair one – you'd like to see the body sooner, instead of after seven or so hours of rain. That could help account for the nature of the wounds, including the leathery appearance Dr. Micelli describes.

‘You can go right down the list, Mr. Lord.
Could
the footprints and the marks on the cliff reflect someone dragging Marcie Calder's body? Yes. Could the footprints belong to someone other than Sam Robb – even to a jogger, stopping to look out on the lake? Sure, because we don't have a match.'

‘What about the so-called drag marks?' Tony asked.

‘It could be from Marcie Calder's toes, yes. But she could have tripped or, to be blunt, jumped too soon. Just like the mud on the toes of her tennis shoes could have come from the fall itself.' Shapiro stopped to wipe his glasses. ‘Look,' he told the jury, ‘I'm not telling you that Dr. Micelli's wrong about a homicide. But I can't tell you she's right, and I believe there's a number of reasons why
she
can't tell you that, either. Every one of the factors she cites could mean something, nothing, or something altogether different than what the prosecutor suggests.'

It was time to move on, Tony thought; the most Shapiro could do was leave some nagging questions. ‘Murder?' Shapiro had said to Tony several weeks before. ‘Yeah, I'd give you four to one in favor. So what's the ratio on reasonable doubt these days?'

Now, reaching beneath the defense table, Tony pulled out two separate charts – blowups of fingerprints. From the moment Tony clipped them to a bulletin board and saw Stella Marz look from one to the other, he knew that Stella understood.

Standing next to the bulletin board, Tony pointed to the blowup on the left side. ‘Can you identify defense Exhibit 1?'

‘It's a blowup of the three fingerprints taken from Marcie Calder's watch. As Detective Gregg testified, one print is Marcie Calder's – that on the left. The second is Mr. Robb's. The print on the far right is the one Detective Gregg could not identify.'

Stella watched with a studied blankness that Tony knew well; it was the face of a lawyer whose case was about to sustain damage and who did not wish the jury to see her dismay. ‘And what is Exhibit 2?' Tony asked.

‘Those are blowups of two fingerprints taken from a black Swatch wristwatch.'

Tony felt the stirring of anticipation. ‘And whose prints are they?'

Shapiro smiled slightly. ‘Well, Mr. Lord, one is yours.'

‘And the second?'

‘It, too, is unidentified.'

Tony paused, stringing this out. ‘And when did you first see this watch?'

‘One week ago, the morning you first gave it to me. When I wiped it clean of prints, put it in a manila envelope, and gave it back to you before the day's proceedings.'

‘Do you know where it was after that?'

‘Yes. Beneath the table where you've been sitting.'

‘How do you know that?'

Calmly, Shapiro folded his hands, playing the role of expert. ‘Because I was standing at the back of the courtroom.'

From the bench, Karoly stared at Shapiro in belated understanding. ‘And what did I do with the watch?' Tony continued.

‘In the course of cross-examination, you removed the watch from the envelope and handed it to the witness. Ernie Nixon.'

‘What happened then?'

‘Mr. Nixon handled the watch for a moment.' Shapiro glanced at Stella. ‘Then Ms. Marz objected, and you put it back in the envelope. When the cross-examination was concluded, you returned the watch to me.'

‘What were my instructions?'

‘To see if I could lift any prints off the watch, and to make sure that no one else touched it.'

Tony pointed to the second chart. ‘The result is shown on this chart?'

‘Yes.'

‘My print is the one on the left?'

‘Yes.'

‘Tony glanced at the jury. ‘Then, by process of elimination, the second print must be Ernie Nixon's.'

Shapiro looked solemn. ‘Yes. His right index finger.'

‘And with respect to Mr. Nixon's print, were you able to reach any other conclusion?'

‘Yes.' Facing the jury, Shapiro's voice was even. ‘It matches the unidentified print found on the watch Marcie Calder was wearing the night she died. Beyond any doubt, that print is also Mr. Nixon's.'

Tony felt the reaction behind him – chairs moving, stifled coughs, the sounds of nervous attentiveness. At the corner of his vision, Tony could see that the beautician did not move at all. Facing Shapiro, he asked, ‘Do you have any opinion as to how Mr. Nixon's prints got on
that
watch?'

‘Of course not.' Shapiro's tone became puzzled, self-deprecating. ‘Any more than I, or anyone, can tell you how Mr. Robb's prints got there. Or what either print might mean.'

‘All right.' Backing away from the bulletin board, Tony gave the jury a moment to absorb this. ‘Did I also ask, Dr. Shapiro, for your opinion as to whether Marcie Calder had anal intercourse the night of her death?'

‘Yes, you did.' Shapiro folded his hands. ‘I definitely agree with Dr. Micelli. Marcie Calder
did
have anal intercourse, and her partner
did
use a condom. I also agree with the coroner's assertion that the most likely brand is Adam's Rib.'

‘Did you agree, or disagree, with Dr. Micelli's belief that this act of anal intercourse was consensual?'

‘Again, I agree. As Dr. Micelli stated, a rape should have caused more tissue damage. I believe that such damage as existed reflects prior inexperience but willing participation.'

As with the jury, Tony saw, Sue had turned her gaze on Sam: it had the same unreadable quality that Tony had noticed on his return, so different from the gaze of the girl he once had known. Sam stared at his folded hands, unable to look at anyone.