The Last Plea Bargain (31 page)

72

Caleb Tate's opening made me sick to my stomach. He started out by saying how much he loved his wife. I partially stood to object, but Bill Masterson put a hand on my arm and kept me in my seat. “Don't highlight it,” he growled under his breath.

We both hated the fact that just because Tate was a big-enough fool to represent himself, he would have this opportunity to talk to the jury without being cross-examined. Because of the Fifth Amendment, we couldn't even comment on this little sleight of hand. The only concession Judge Brown had given us was to agree that Tate could not bring a lawyer on board after the opening statement. “If he wants to represent himself, I can't stop him,” Brown had told us at a pretrial motion. But then he had turned to Caleb Tate. “But you better make your choice before we start the trial. If you decide to go it alone, I'm not letting you bring a lawyer into the case later, after you've had a little chat with the jury in your opening.”

Caleb Tate had shrugged it off. This wasn't a game, he told the judge. His life was on the line, and he wanted to represent himself.

He told the jury how much he missed Rikki and how hard it was to live without the woman he had been married to for twelve years. I glanced at Masterson, and he gave me another subtle shake of the head. It seemed to me that Caleb Tate was just pushing the envelope to see how far he could go before drawing an objection.

“The prosecutors called me a ‘murderer' and a ‘control freak.' So ask yourself this: Would a control freak call Rikki's psychiatrist and beg him to help get her off the drugs? Because that's what the evidence will show. I called and told her psychiatrist that Rikki was struggling with addiction issues. I was begging for help.

“And about the hair—I wish I had brought pictures of myself in college,” Tate said. He was dressed in one of his slick navy-blue windowpane suits with a pocket square that matched his tie. The suit seemed to shimmer as he moved and I had to admit that the jury was paying close attention.

“I had long hair too. Styles change. Rikki had such a beautiful face that I thought her short hair would frame it—”

“I object,” I said. I had hopped up before Masterson could hold me down. “May we approach the bench?”

Judge Brown called us up and played some white noise over the loudspeakers so the jury couldn't hear us.

“Judge, he's testifying without taking the stand. An opening statement is supposed to be a preview of the evidence. If he doesn't plan on testifying, how is he going to prove that he asked Rikki to get her hair cut because he thought it would better frame her face?”

I could feel the blood pumping through my temples. I was so mad I wanted to just elbow Caleb Tate in the ribs as he stood there next to me.

He held up his palms as if he didn't understand what the fuss was all about. “I haven't decided yet whether I'll take the stand,” Tate said with a straight face. “And we all know that what counsel says during opening statements is not evidence. If you think it will help, I don't have any objection to you reminding the jury of that.”

Brown leaned forward and spoke under his breath. “I know what you're doing, Mr. Tate. And I don't want one more statement that sounds more like testimony than a preview of the evidence. From now on, stick to telling the jury about witnesses you
know
you'll put on the stand and exhibits you
know
you'll introduce. Is that clear?”

“Got it,” Tate said.

Bill Masterson and I returned to our counsel table, and I leaned forward, ready to pounce if Tate crossed that line again. He appeared to be gathering his thoughts.

“I previously represented a man named Rafael Rivera,” he said. He glanced over his shoulder at the judge. “I mean, the evidence will show that I previously represented a man named Rafael Rivera. In fact, the district attorney will put him on the stand to testify that he provided the drugs I allegedly used to poison my own wife.”

Tate stood straighter and stuck out his jaw in indignation. “Rafael Rivera has been convicted of three drug offenses. By testifying against me, he cut a deal to avoid a lot of jail time. Watch him very closely when he takes the stand—because I'm going to ask him some questions that will get at the truth of what happened. I'm going to ask him if he told me to approach a certain judge in order to bribe that judge and get the charges dismissed. I'm going to ask him if he threatened me when I refused to do his bidding. And I want you to watch his face because it will be the face of an arrogant man who thinks he can get away with a lie. A man who cuts a deal with the state as if justice were a flea market.”

Caleb had been pointing to the witness stand but now turned back to the jury. “And then I want you to watch his face when I catch him in his lie. It will be a moment you'll never forget. And I will tell you right now: if I don't destroy Rafael Rivera's credibility on cross-examination, you ought to convict me. But if I do, you must—and you should—acquit.”

The words, and the confidence that oozed from Caleb Tate when he delivered them, sent chills down my spine. Despite all of my attempts to envision only positive outcomes, the cross-examination of Rafael Rivera had haunted me. I could see Tate asking him about Judge Snowden. I could see Rafael denying it and a big fight ensuing between the lawyers as to whether Tate could introduce collateral evidence about Snowden—evidence of my father's record in front of her. I could see Tate strutting and shouting and accusing Rivera of making it all up just to save his own hide. And I could see the doubt on the faces of the jurors as they pondered the question that I had been asking for months:
Where did Caleb Tate really get the drugs?

“I miss her,” Tate said. He appeared on the verge of tears. “But to be honest, I won't even begin to mourn her until this case is over. The only thing harder than losing someone you love is being accused of murdering that person.”

I debated whether I should stand and object again, but I knew it would just mean another conference in front of the bench while those words echoed in the jurors' ears. I decided to sit tight and endure it.

“And if, after hearing all the evidence, you decide I'm not guilty, you won't see me pumping my fist like other defendants or high-fiving someone in the courtroom. I will walk out that door—” Tate pointed dramatically to the back door of the courtroom—“and go to my wife's grave and weep like a baby. I tried to get her off those drugs, but I didn't try hard enough. And whatever you decide, that failure will haunt me the rest of my life.”

Caleb Tate hung his head and walked slowly back to his counsel table. I cursed him under my breath, and the boss shot me a look.

Perhaps I had spoken a little louder than I thought.

73

Bill Masterson and I had spent a lot of time discussing our order of witnesses. Every trial lawyer knows that you start strong and finish strong and bury all of your weak people in the middle. Rafael Rivera would be the low point of our case, so we would bury him. We decided to start with Dr. Grace O'Leary, who was pretty much bulletproof, and end with Dr. Aaron Gillespie, who was equally unimpeachable. We would put LA on the stand right after Rivera so that LA could do immediate damage control.

O'Leary inspired confidence as she raised her right hand and swore to tell the truth. She had done this a time or two before.

She climbed into the witness box, and I placed my notes on the podium, catching a whiff of the cigarette smoke that trailed behind her. She settled in and lowered the mic. She told the jury good morning, and I started with my preliminary questions about her qualifications.

O'Leary was businesslike and disciplined in her choice of words, her style contrasting nicely with the unruly black hair that looked like it hadn't been brushed in a week. She exhibited great self-assurance, and she spoke rapidly as if she was anxious to get through the preliminaries so she could tell the jury how Rikki had died.

She testified that she had performed thousands of autopsies. Her résumé contained twenty pages of publications from trade journals and seminars. She had been interviewed extensively on shows like
20/20
and
60 Minutes
, so I had her talk about a few of her more interesting cases. She reminded me of a strict elementary school teacher—someone who knew a lot more than you did and didn't tolerate any nonsense. Spit out your gum. Sit up straight. Dr. O'Leary is talking to you.

I knew it was time to get to the heart of her opinions when I asked her about some consulting work on the Kendra Van Wyck case and she gave me a lecture in response.

“Counsel, I'm sure the jury knows all about the Kendra Van Wyck case. But I'll bet what they'd really like to hear about are my opinions in
this
case. And to be blunt, I'm anxious to tell them about this case as well.”

My face reddened, but I didn't really mind the lecture. It only bolstered the credibility of my witness if she felt the freedom to chew out the prosecutors.

“Then let's get down to it—do you have an opinion as to what caused Rikki Tate's death?”

“If I didn't, we've probably wasted a lot of the jury's time.”

That made a few of the jurors smile.

“Then why don't you tell me what that opinion is.”

“Rikki Tate died from acute drug poisoning. Specifically, the combination of codeine and oxycodone in her blood caused pulmonary congestive edema, which basically means that her lungs were filled with fluid and she suffocated. The drugs I mentioned are narcotics, which have the effect—if taken in massive doses such as we see here—of repressing and shutting down the central circulatory and respiratory systems, beginning with the lungs.”

“Do you have any doubt that Rikki Tate died from acute drug poisoning?”

“I would stake my professional reputation on it.” Dr. O'Leary gave me a sly smile. “In fact, I guess I already have.”

We spent about an hour discussing the details of the autopsy, including the absence of any trauma or signs of choking or any other cause of death. O'Leary talked about the hair-testing evidence and the finding of promethazine in the blood. She also testified about the specific levels of oxycodone and codeine that were found.

“How do these levels—.74 milligrams per liter for oxycodone and .27 milligrams per liter for codeine—how do these levels compare with other autopsies you've done?”

O'Leary made a face and turned to the jury. “These levels are very high. The codeine alone would have killed her. The oxycodone alone would have killed her. Combined, they have an additive effect and basically guaranteed that Rikki Tate would not survive.

“Have I seen higher levels? A few—but most of those are hospice patients who have been on these drugs for a long time and have built up an incredibly high tolerance. Just out of curiosity, I went back and made a chart of over two hundred cases in the past five years involving either oxycodone or codeine as a potential cause of death. Of those, this was the twelfth-highest case of oxycodone concentration and the fourteenth-highest case of codeine concentration.”

So far, I knew O'Leary's testimony was unassailable. But I wanted to take her one step further because everyone agreed that Rikki Tate had died from a drug overdose. The question that really mattered was whether it was suicide or poison.

“How long had Rikki Tate been ingesting oxycodone and codeine?”

“It's hard to tell. From the hair testing I described earlier, it's clear she had been taking some level of oxycodone and codeine for six months. Of course, the distal segments of the hair—those furthest away from her head—showed much lower levels of oxycodone and codeine.”

I moved now to a new piece of evidence—one that would form a central focus of our case. “Are there ways to determine drug use further back than six months?”

Dr. O'Leary shifted in her seat, and it seemed to me that she needed a smoke break. But I wanted to get this critical piece of evidence in first.

“Absolutely. Once you found the evidence on the defendant's computer that he had reviewed the Van Wyck case, and once Detective Finnegan talked to witnesses who said that Mr. Tate—”

“Objection!” Tate was on his feet. “That's hearsay.”

“Sustained,” Judge Brown ruled.

I knew that might happen, but I was hoping the jury understood the point I was trying to make. And I was hoping they would remember my opening statement—that it was Caleb Tate who had suggested that his wife cut her hair.

“What did you do, if anything, to determine whether Rikki Tate had been on these drugs for more than six months?”

Dr. O'Leary's eyes flashed a little smile. This was what she loved—the subtle cat-and-mouse games of the courtroom. “Well, on the off chance that somebody talked Rikki Tate into getting her hair cut so we wouldn't know whether she had been taking drugs more than six months prior to her death—”

Caleb Tate was on his feet again, looking disgusted. “Come on, Judge, that's just pure speculation.”

Judge Brown looked slightly amused, but he turned to Dr. O'Leary. “Doctor, please just stick to the facts of what you did.” Turning to the jury, he said, “The objection is sustained, and you should disregard Dr. O'Leary's prior answer.”

“Sorry, Your Honor,” Dr. O'Leary said. “Anyway, I suggested that we test the victim's fingernails. She had relatively long fingernails, and I thought we could reach back at least a year by testing them. You basically do the same thing that you do with the hair—grind them up and run them through some gas chromatographs.”

“Did they test the fingernails in the Van Wyck case?” I asked.

“No. So someone reading that case wouldn't realize that we could go back more than six months by testing the fingernails.”

Tate stood but apparently decided it was no use. He sat back down.

“And what did you find in testing the fingernails?”

“Well, it's important to understand that when we pulled the fingernails, we divided them into segments at varying distances from the cuticle. In other words, we divided them into segments that would represent growth in the last six months and in the six months just before that. The results showed very low levels—just trace levels—of oxycodone and codeine in the fingernails that represented the growth from six months prior to her death to one year prior. In other words, somewhere around that six-month time frame, the amount of oxycodone and codeine that she ingested increased dramatically.”

“Did you find any promethazine in the fingernail segments that represented the period of time from between six months prior to her death to one year prior to her death?”

“None at all.”

“Did you find any other drugs that you weren't expecting?”

“Yes. We found trace amounts of morphine.”

“Morphine?”

“Yes. It surprised me too.”

“Did you draw any conclusions based on those findings?”

Dr. O'Leary turned to the jury. Time for the punch line.

“It seemed clear to me that somebody started poisoning the victim with oxycodone and codeine in the last six months. To keep the drugs down, they also gave her promethazine. Perhaps this same person had experimented with morphine prior to that time but realized how unusual it would look for morphine to show up in an alleged drug addict's blood. Perhaps they waited a few months before changing over to oxycodone and codeine and thought that by having Rikki Tate cut her hair no one would be able to tell.”

I was surprised that she got through the entire answer without an objection from Caleb Tate. Maybe he realized that the jury had already pieced it together, and he would just have to deal with it on cross-examination.
Good luck,
I said to myself.

“I have no further questions,” I said. “Please answer any questions that Mr. Tate might have.”