Undue Influence (38 page)

The doctor identifies these, and after some objection and argument the court settles on five tasteful prints that it says should not enflame the emotions of the jury. These are put into evidence and begin to filter through the jury box. With each passing hand, as the prints make their way, there are eyes darting, quick stolen glimpses of Laurel.

Cassidy asks Angelo about the bullet retrieved from the wound. He describes it as a three-eighty or a nine-millimeter, he’s not exactly sure. But when Cassidy shows him a lead bullet in a plastic bag, he identifies it as the one taken from the head of Melanie Vega the morning of the autopsy, pried from her brain with gloved fingers so as not to scar it for possible ballistics comparisons should they later find the weapon. Next, Cassidy bores in on the evidence Angelo used to determine the range of fire. This is critical to their case. She wants to avoid any hint that there could have been a struggle for the gun, some unintended mishap, or evidence of some lesser crime than capital murder.

Angelo confirms that without the murder weapon it was difficult for ballistics to perform the usual firing tests. “There was no tattooing’

around the wound,” says Angelo. “But we did detect nitrates, evidence of gunpowder residue, on the upper part of the body. The limited amount of nitrates, and their pattern, some of it deposited in a spreading pattern around the level of the nipples on each breast, would indicate to me a range of fire of between four to six feet.” Cassidy gets him to explain that tattooing is caused by unexploded grains of gunpowder expelled from the barrel under high pressure. At close range these will impregnate the skin, leaving the equivalent of a tattoo on the skin around the wound.

The closer the range, the tighter the pattern. “Would the lack of tattooing, the probable distance involved in this shot which you estimate to be between four to six feet rule out any struggle for the gun?”

“I would think so. If the victim were actually close enough to reach for the gun at the time it was fired, I would expect to see some tattooing on the body somewhere.”

“Besides the absence of tattooing, in your examination of the wound did you find anything else that was in your view peculiar?”

“Yes. I discovered microscopic pieces of metal in the tissues immediately inside the entrance wound.”

“Do you have any opinion as to what caused these?”

“No. Metallurgic reports indicate that the substance in these fragments is composed of a low-quality, lowcarbon steel, minute shavings. Since this is not a steeljacketed bullet, they could not have come from the bullet itself.”

“Then where did they come from?”

“It’s hard to say,” says Angelo. “My best guess is from the barrel of the gun itself. Some defect,” he says. This is clearly lame. Soft lead does not cut casehardened steel. Still they leave it at that. Cassidy then turns her attention to the unborn child, the fact that Melanie Vega was pregnant at the time of her death. It is clear that she would end on a high point. In this case emotion. “Was there any way to tell the gender of this child?”

“It was male.”

“Doctor, can you tell us how far along fetal development was at the time of death?”

“From all indications it was in the early stages of the second trimester. I would say about four months,” he says. “And can you tell us the cause of death for this unborn child?”

“Asphyxiation,” he says.

“Please explain?”

“A fetus in the womb has no independent source of sustenance other than from the mother through the umbilical cord. This carries not only nutrition, but oxygenated blood, which keeps the child alive. If the mother dies, her heart ceases to pump blood, and the child’s oxygen supply is cut off. Unless the child can sustain life outside of the womb and is removed within minutes, it will suffocate.”

“It must have been an agonizing death,” she says.

“Objection!” I’m on my feet.

“Is that a question for the witness?” says Woodruff. “Yes, it is, your honor.” Cassidy scrambles to cover up.

“Do you have a medical opinion, doctor, would this be an agonizing form of death for the unborn child?”

“There are no solid medical studies,” he says. “We are not sure how much pain a fetus at that stage of development feels.” I can think of a score of organizations who would be happy to supply him with literature. There is a hush of voices in the audience, as if there is some serious division of views on this. Several jurors shake their heads. The only one, it seems, who doesn’t have an opinion is Laurel. She seems to sit, utterly dazed by the evidence of a dead child. Though we have discussed this several times, the effect on Laurel is always the same: to deliver her into a world of her own.

“Doctor, is there any way to medically ascertain whether the child was potentially viable at the time of the mother’s death?”

“Potential viability” as used here means that if left undisturbed, if the mother had not been killed, the fetus would have had every chance of surviving to term, to being delivered healthy and alive. “It would be my considered medical opinion that this unborn child, the fetus carried by Melanie Vega, suffered from no deformities, no congenital defects or abnormalities that might have prevented a normal birth. For this reason it must be considered potentially viable,” he says. If this stands uncontested, Cassidy will be entitled to a jury instruction at the appropriate time regarding multiple murder and invoking the death penalty. When I look over, Morgan is scavenging one more time through the evidence cart, a large manila envelope from which she pulls what appear to be several large color photographs, hues of red and cyanotic blue. I’m on my feet. “Your honor, if Ms. Cassidy has what I think she has, I’m going to request a recess and a conference in chambers.”

“What is it you have there?” says Woodruff.

“Some pictures, your honor.” She hands them up to the judge, three color glossies from what I can see, eight-by-ten. The glasses propped on the end of Woodruff’s nose nearly drop off on the bench as he gets a gander.

“We’d better talk,” he says.

We’re in chambers, Cassidy, Harry, the judge, the court reporter, and myself, all talking at once. l l “There’s no conceivable reason these shouldn’t come in,” says Cassidy. “There’s every conceivable reason.” I walk on her line. “Your honor, highly prejudicial,” says Harry. “These are awful.” Even Woodruff is on her case. “Well, excuse me, your honor, but removing a dead unborn child from the womb of its murdered mother can be a little messy.” Cassidy leaning on the prerogatives of womanhood, trying to cow the judge. “The next time we’ll ask the M.E. to wash it off first, before they shoot pictures.”

“That’s not what I meant and you know it.” This has Woodruff back pedaling, wondering no doubt what women who vote might think of his comment and whether Morgan might carry the message. “The child is dead,” she says. “These pictures evidence that fact. It is a multiple murder and the state is entitled to produce the evidence.”

“She has a point,” says Woodruff.

“The medical examiner has already testified,” I say. “There’s no question that the child is dead. The state already has ample evidence.

The question here,” I tell him, “is whether the pictures are prejudicial. There’s no question, they are highly inflammatory.”

“What about that?” says Woodruff. He is rubbernecking now, like a zealot at a Ping-Pong tournament, playing for time, looking for some winning point, a backhand smash upon which to hang his decision. “Fine,” she says. “We concede we don’t need all three photographs. One will do,” she says.

“Surely one of these must be acceptable to the court. Under the law, there is a homicide here, and we are entitled to produce the evidence.”

Woodruff looks at the photos again. He puts one aside quickly and studies the other two, waffling motions with his head, wavering judgment written in his eyes. Abstract arguments of unborn death I can deal with.

Pictures of an embryonic infant, smaller than the palm of my hand, its oxygen-starved body turned the cyanotic blue of a night sky, is another matter. Confronted with such evidence, jurors become myopic. A terrible crime has been committed not just an adult who could deal in the world, whose conduct may well have brought her own demise, but an innocent, an unborn infant. On such evidence juries are expected to act. They are not likely to be deterred by theories of another killer from whom they cannot exact justice. If these pictures come in, any one of them, the prosecution has become a locomotive moving on a single track, and Laurel Vega is tied to it. Woodruff has a hand in the air, about to slap one of the pictures on the desk like a trump card in bridge. “We will stipulate.” I speak before Woodruff can drop his hand.

He looks at me. “Stipulate to what?” he says.

“We’ll stipulate to the elements of multiple murder. In return the state puts on no more evidence regarding the unborn child, nothing until closing argument,” I say. Harry’s pulling on my arm “Ullbay itshay” talking pig latin in my ear.

I pull away from him.

“The prosecution insists that the photographs are necessary to establish the elements of multiple murder. We will concede that multiple murder has occurred here. Not that my client did it, but that whoever did is guilty of multiple murder.”

“Do you understand what you’re offering?”

says Woodruff. “Once entered into, you can’t withdraw it. Giving up all right of appeal on the point later. If she’s convicted you’re conceding special circumstances, grounds for a capital sentence.” Harry’s in my ear. “He’s right,” he says. “If she goes down, there’s no room to wiggle.” I look at him. “If the pictures come in, she goes down,” I say.

“And then we have to look at them again in the penalty phase. What do we do then?” I ask him. This, the limited options open to us, saps the wind from Harry’s sails. The only one who seems to take much joy in all of this is Morgan. This is elassic Cassidy: confront the court with the repelling images of unborn death, work the judge on all the angles political and legal, and then watch us scramble to make concessions.

“The pictures,” I tell Harry, “are all poison. If we have to swallow ”

I look at Woodruff. He gives me a judicial shrug, like fairness compels him to give her one of the photos. “Then the only question,” I tell Harry, “is whether we swallow it now or later.”

“We need to confer, your honor.” The fight has gone out of Harry, but he’s still trying to get me out of the room to talk. “Either a stipulation or one of the photographs,” says Cassidy. “One or the other. Make up your mind.”

“Do you want to talk to your client?” says Woodruff. “It’s a big point.

I think maybe you should talk to her.” Cassidy makes a face of exasperation. From the glazed look in Laurel’s eyes when confronted with the cold evidence of the dead child, questions of a stipulation on points of law at this moment would be the most obtuse of abstractions. I am not likely to penetrate her shell of pain. “A lawyer’s call,” I say.

“A question of strategy,” I tell Woodruff.

He makes a face, conceding the point. “Then what will it be?”

“The stipulation,” I tell him. “What else?”

“You got it. The pictures are excluded,” he says. “And I don’t want to hear anything more about the unborn fetus until closing argument. Is that understood?” He’s looking at Cassidy. Woodruff knows what we have given up. He is going to make sure that we get every inch in return. “We should have the right on redirect with this witness, Dr. Angelo,” she says. “To the extent the defense raises the issue on cross.”

“For what purpose? You’ve got your evidence. The elements are proven by the stipulation,” says Woodruff. “If the defense opens the issue ”

“Read my lips, counsel. Not a single word or I will declare a mistrial.

Do I make myself clear?” Cassidy gives him a sick grin. “You won’t hear it from me,” she says.

“Just so we’re clear.” At this moment Cassidy is staring into the brushy eyebrows of death. There is not a doubt in my mind that if she crosses him on this point, Austin Woodruff will draw and quarter her. We huddle over the table to craft the language of a penned stipulation, something that Woodruff can read from the bench into the record. Harry doesn’t have the heart for this. He wanders off, out of chambers, to talk to Laurel. I’ve got Angelo on the stand, staring at his beady little eyes in the box. I have told Laurel what I have done, the stipulation. She seems to accept this with equanimity. Woodruff has read the stipulation to the jury, a lot of bobbing heads and wondrous looks like they don’t know exactly what to make of all this lawyer talk. But the consensus, if I am at all literate in idioms of body language, is that it was not good for the defense. Angelo has done our case immense damage and he knows it. At this moment he is wary, though he has no reason. It is the first rule of cross examination: if you can’t score, don’t wade in. “I have only a few questions,” I tell him. “Points of clarification. Doctor, you testified at length regarding powder residue, the lack of tattooing on the body.” He nods at me. “Did you bag the hands of the victim at the scene before moving the body?”

“I did.”

“Can you explain to the jury why this is done?”

“It’s a usual procedure,” he says. “Paper bags are placed over the hands and tied or taped at the wrists to ensure than any microscopic evidence under the nails is not lost. It also protects the hands from becoming contaminated by fibers or other trace evidence during transportation.”

“Did you check the victim’s hands for such evidence during the course of your examination of the body?”

“I did.”

“And did you find anything?”

“Nothing of any consequence. The underside of the fingernails were clean. No fibers or tissue. No hair samples. Nothing that might have indicated a scuffle or struggle by the victim prior to death.”

“Did you examine the hands for gunpowder residue?”

He gives me a considered look. “No.”

“Why not?”

“There didn’t seem to be any point. We determined the range of fire to be too far away to have deposited any substantial amounts of residue.

And what was the point? She hadn’t shot herself. The gun wasn’t in her hand.”