The Judge (45 page)

Tony. Blood is thicker than water.

"It's not something we should talk about," I tell her.

"But you're not going to put me on the stand and ask about the note on the calendar?"

"No." There's a palpable sigh at this point. "I'll tell you," she says, "I've had a few sleepless nights." There is some tenderness in this as she talks.

Lenore's loyalties with Arguillo are deep-seated, more than mere kinship.

It is the kind of hook that is set in childhood, growing up on the mean streets. In an intimate moment a few months ago, her guard down, she put this in perspective. She told me of an incident when she was twelve, a group of kids, some of them older, three of them nearly adults, had wanted to get physical in ways that she did not. What evolved is that Tony and a buddy saved her from a gang rape, and took a beating for their troubles. She has never forgotten it.

"I know you have a duty," she says, "But the note was a dead end, a meaningless scrap of paper." There is obvious relief that I am not going to use this.

She smiles, then says, "Can I tell Tony?" "Tell him what?"

"That he's off the hook." Lenore has taken my assurances a step too far.

"I didn't say that."

"But you said you're not going to call me."

"True. I am not." She gives me a mystified look, and then it settles on her. "You're not going to call Tony?"

"I can't say anything more." There are elements of the case, now that she is out, that I cannot share.

"You're making a mistake," she says. "You won't get a thing out of him.

"

"Why? Because he won't tell me?"

"Because there's nothing to tell," she says. "They had a date, and it was canceled. The only reason he had me remove the note was because of..."

"I know. Embarrassment," I finish before her.

"Exactly," she says. "If you put him on the stand he'll have no choice but to deny everything." I give her arched eyebrows. "Even the fact that they'd set a date, he and Hall for that evening?" Her expression confirms that Tony would lie, even about this.

"Then he'd be committing perjury."

"It's irrelevant," she says. "The date was canceled."

"Only if the jury believes him." Clearly Lenore does. "But you have no evidence," she says. "Without my testimony you can't confirm that the note existed. Even if I testified, if I were able to produce the note, it would be hearsay."

"It's a possibility," I tell her. "Let's just say that I have a different scenario.

Something I can't discuss." I don't want to get into this.

"You know something else?" she says. This seems to take her back several steps. "What is it?" I can hear Harry's voice in the outer office. You can usually hear Harry without a phone, though at the moment he is shouting.

"What the hell's going on out there?" I say.

She's closer to the door than I am but ignores me. "Are you going to tell me or not?" she says.

"I can't."

"So that's the way it is?" she says. She's picking up her papers, her briefcase, and purse.

"I wish I could," I tell her, "but I can't." At this moment I am staring into Lenore's dark, resolute eyes, the revelation that the first person she will be talking to when she leaves my office is Tony. I have driven her there by my silence.

More shouting in the outer office. Then I realize that Harry is not on the phone. There are two voices; a second person is with him.

I get up from the desk and make my way to the door. When I open it, I'm staring into the hot, malevolent eyes of Phil Mendel. m run M.uirn "Just the person I wanted to see," he says. "What the fuck is this?" He's holding a crumpled piece of paper in one hand.

"His subpoena," says Harry. "Seems he's a little pissed off." "Wrong," says Mendel, "I'm a lot pissed off." It was among the last set of subpoenas that Harry sent out, to Mendel and a hundred others, in the event that our evidence develops like an octopus, with tentacles in every direction.

"Fine," he says. "You got a dog-and-pony show going on downtown. That's your business," he says. "But don't try and draw me into it.

Or the association," he says. "We'll kick your ass." "Seems we already did that number," I tell him.

"I don't know what you're talking about." A face that belies it. "The quest for drugs," I say.

"Oh, that," he says. What passes for a smile. "Read about it in the paper. Some people think you got away with it."

"Some people would know," I tell him.

"In the future they'll have to be a little faster," he says. "Yeah, and a lot quieter," I tell him.

He looks at me, a question mark.

"The clink of the toilet tank," I tell him. I can tell this fills in a blank for him--how I discovered the stuff so quickly.

He makes a mental note. Cable man is going to hear about this.

"Next time your friends go swimming in my toilet, do me a favor." He's not going to ask, but he looks at me as if to say, "What's that?"

"Tell em to bathe first, so they don't leave a ring around the bowl."

He gives me a wicked look and a cavalier denial. "Don't know what you're talking about," he says.

"Think about it. I'm sure it'll come to you." I start to close the door.

"What about this?" He holds up the subpoena as if I'm actually going to withdraw it. "I'm out of the country in five days," he says. "Vacation in Bali." Harry, a pencil in hand, asks him for the date of departure and Mendel, without thinking, gives it.

"I wouldn't pack the suntan lotion just yet," says Harry. Mendel gives him a dismissive look.

"What about it?" he appeals to a higher court.

"I hope it works out," I tell him. I start to close the door.

"Eight thousand dollars' worth of tickets," he says. "Non-refundable. It better work out."

"You have a problem, talk to your travel agent," I tell him. The problem here is that at least tacitly Mendel is a peace officer. Once under subpoena, he cannot absent himself from the trial without accounting to the court later. There could be severe repercussions.

"This is bullshit," he says, "and you know it. I don't know a god damned thing about your case." He calls it "a lotta crap."

"It's been nice talking," I tell him, and I close the door.

He rants at Harry for a couple of seconds until Harry threatens to call security. Then I hear a lot of things go onto the floor, as if perhaps Mendel has swept objects off one of the desks. There are a few choice words, and the door to the outer office slams, rattling in its frame.

I look at Lenore, who is studying me, briefcase in hand, behind my door. "There you have it," I say. "Tony's tight circle of friends."WHEn harry AND I OPEN OUR CASE FOR A COSTA, it is in those areas of scientific expertise where the prosecution has for some inexplicable reason never ventured. If kline has a weakness, a soft underbelly exposed by inexperience in the courtroom, it is in his failure to anticipate.

There are mysteries he has left in his wake, needling questions of evidence that he would have been better to explore than leave for us.

Lewis Deshield is an expert in the science of metals, specifically the alchemy of separating trace elements, matching known with questioned samples from crime scenes.

We do the foundational dance, getting his curriculum vitae, education and experience that entitle him to testify, offering expert opinion.

Kline offers a stipulation in an effort to keep Deshield's credentials away from the jury. We decline, and twenty minutes later finally reach the core issue.

"Mr. Deshield, did you inspect the crime scene, in this case the victim's apartment, last August twenty-eighth?"

"At your request," he says, "I did."

"And as a result of that inspection can you tell the jury what you found?"

"I examined the area of the living room, and in particular a small metal-and-glass coffee table. On the underside of that table I observed scratches on the metal at one edge, and what appeared to be traces of some foreign metal, not part of the table. I photographed these, and then, using tools, I removed some traces of metal from the edge of the table, packaged these in an evidence envelope, and removed them to my laboratory for analysis." We retrieve this envelope from a box of physical evidence. Deshield identifies it and we have it marked by the clerk, along with some slides and pictures.

I have the table, which the state has already placed in evidence, brought forward into the well of the courtroom, where Deshield identifies it. He then comes down off the stand to show where he found the scratches and trace metals. It is near the corner where blood had pooled and where according to the coroner the blows that killed Brittany Hall were most likely administered. Then the witness climbs back onto the stand.

"Did you form any early opinion based on visual observation as to what these trace metals on the table might have been?"

"It was my belief that they were scratches left by jewelry. There appeared to be elements of gold in the traces." For this Deshield employs photographs, enlargements under magnification, mounted on poster boards. We prop these on two easels in front of the jury box, where the witness illustrates the location of the metal scrapings with a pointer.

"Do you know whether the victim was wearing jewelry the night of her death that could have accounted for these scratches?"

"According to all the information I have, she was not."

"In your examination of the table, did you notice anything remarkable about the location of these scratches?"

"Yes. While there were some minor scratches on the top surface near the edge of the table, the most severe marking appeared to have taken place at the edge on the underside of the table. Assuming the marks were left by a piece of jewelry worn by the perpetrator, it would appear that the force exerted in making these marks was the result of an up-thrust, a pulling of the victim coward the perpetrator perhaps in preparation for the administration of another blow. This was done several times, leaving a distinct series of scratches each time."

"And why is this significant?"

"It's consistent with other expert opinion that multiple blows were struck. But more important, it is possible that as a result of the force of these upthrusts the jewelry in question may have become dislodged, caught on the table, and actually ripped off the perpetrator."

"Objection," says Kline. "Speculation." With this, Kline's detective, John Stobel, comes out of his chair and leans toward the prosecutor. He wants to talk, but Kline abruptly waves him off as a distraction.

"You can tell this?" says Radovich, looking at the witness.

"Not with certainty," says Deshield. "But from the depth of the scratches, one in particular under magnification, I would say it is a possibility." The judge waffles his wrist, like close call. "I'll overrule it," he says.

The problem for the prosecution is that if the jewelry came off, Sto bel has not found it.

We turn to Deshield's analysis of the metal traces, what he collected from the edge of the coffee table, and get into the technical stuff. The question here is whether the metal scraped off the table can be matched to a specific piece of jewelry.

Deshield tells me this is possible.

"Is this like comparing fingerprints?" I ask.

He considers for a moment, then says, "Not usually. We can show the existence or nonexistence of class characteristics in terms of the metal's chemical composition. This is more likely to allow us to exclude certain possibilities as a potential match." He does concede, however, that there are cases in which the presence of what are called "trace elements," impurities in the metal, can form invisible markers.

"Depending on how rare these are, their percentage to the total composition of the metal, and the number of these impurities, you could have a situation in which there are significant points of comparison in which a positive identification would be possible." He is now talking about evidence beyond a reasonable doubt. Find the owner of the jewelry, find the killer.

"Like fingerprints?" I ask.

"There have been cases involving matches of paint," says Deshield.

"in which known and questioned samples have been matched to a certainty of less than one chance in ten billion. This is a higher probability than human fingerprints. This was based on multiple impurities in the paint and the lack of likelihood that the same combination and percent age of these impurities would be replicated in another paint batch."

"And the same might be true of metals?"

"It's possible." The look on Kline's face at this moment is ominous. For a moment I think he suspects we have actually found the item of jewelry, a positive match, and that it does not belong to my client.

There's a furious discussion at the counsel table between Stobel and Kline. The detective is shaking his head, like this is not the way the cops read the evidence.

Nonetheless, it presents an interesting alternative for the jury.