Violence (14 page)

The court reporter asked Mr. Sliczynski to speak a little louder and he obliged her, finishing his interpretation of the report by saying, “Tests on Mrs. Karen Anderson’s hands showed a high concentration of unique primer residue particles from one of the same possible interactions with a firearm.” Mr. Sliczynski added that Mrs. Anderson’s test was done at the “Medical Examiner’s” and that her hands were properly protected with paper bags before transport to insure a proper “GSR” was administered.

Ms. Henklin asked if the residue on “Mr. Derek Lysander’s hands” could indicate the possibility “the defendant actually pulled the trigger and placed it in Mrs. Anderson’s hand” or “had his hands in control of the weapon and fired it in a struggle?”

The scientist answered, “Yes, it’s possible. Gunshot residue tests are extremely fragile and it is important that they be given within, at most, several hours of the weapon being discharged. To my understanding, the defendant took the test at least 2 hours later in which time much of the particles would have worn off, fallen off or possibly been washed off. It’s likely he had a higher concentration of residue earlier.”

On cross-examination Mr. Calcote attacked Mr. Sliczynski’s “speculations.” “We are not disputing whether Mr. Derek Lysander came in contact with fired gun that evening, but isn’t it entirely possible the defendant also was trying to stop the decedent from taking her life and by proximity alone picked up these particles?” Calcote posited.

“Yes, that’s entirely possible as well.” The scientist conceded.

Calcote peevishly reviewed the scientist’s credentials (something the defense team would do with each witness whether or not the prosecution already listed them). He asked the standard questions such as what training and education qualified him (or her, as the case may be) as an expert in his area of endeavor. It ended with the usual inquiry “and is this outside your usual area of competence?”

The defense team did the “education” review so as to not let any witness off the hook, even if the evidence was unchallenged. Sometimes it was done in hope of an inadvertent screw-up or a stammering nervous answer but, while nearly all of these experts were not new to this process, mostly it was done because public defenders are basically sworn to make the prosecution prove every element of the State’s case. They had to lay out a vigorous defense. The fear of any attorney is to get skewered by a defendant in appeal with the malpractice claim of “ineffective assistance of counsel.”

The prosecution, for their part, had to make sure they did everything by the book. They weren’t going to get caught in any Brady violations which occur when discovery is not fully disclosed by the State to the defense in a timely manner. They had to just lay out the evidence. No tricks. The defense had to know everything that was coming. Don’t allow any claims of prosecutorial misconduct down the line.

An old knock had it that a public defender was not in the same league as the prosecuting attorneys, but that is no longer the case. In Chicago, public defender’s now made even more on average than their prosecutorial counterparts. So, while an indigent client may be sorely limited in funds for expert witnesses to mount an extensive defense, it was closer to a “fair” fight in terms of representation and both sides could complain of burdensome case loads.

The last State witness the first day was a forensic chemist, Dr. Marius Vasker, who testified that Derek Lysander’s blood alcohol concentration was .172 percent, far in excess of the legal limit to drive at .08.

Dr. Vasker also testified as to the qualitative findings in a lab report concerning the chemical analysis of the “tablets inside the plastic bag taken as evidence from the vehicle occupied by the defendants at the time of their arrest.” He stated that the three tablets were identified as “Ecstasy” or “MDMA, clinically known as methylenedioxymethamphetamine from the sympathomimetic amine drug class.”

The court reporter asked him to repeat that last bit of testimony and he did.

Dr. Vasker then further swore under oath as to the composition and identity of “the two pills among the items in one of the defendant Gabriel Lysander’s pockets at the time of arrest” which were each “1 milligram doses of Clonazepam, a legal pharmaceutical in the United States, requiring a prescription.”

Ms. Henklin pointed out that the defendant did not possess a legal prescription and asked Dr. Vasker to give an assessment as to MDMA and Clonazepam’s effects and uses.

Calcote jumped in with an objection that the question and answer were “irrelevant.”

Henklin countered with the reason for its admissibility, saying, “Your Honor, the State needs to show the difference in the deceased’s toxicology tests with the assertion by the defense that the deceased possibly had a similar predilection for illicit or recreational pharmaceuticals or a predisposition for a lifestyle that could include recreational pharmaceuticals.”

Judge Marr quickly overruled Calcote and gave him an admonishing stare. Marr was a bit ticked off with Calcote who had already raised a pre-trial motion, in limine, to exclude this evidence and was denied. This testimony was no surprise. Calcote was just hoping to negate the effects of the doctor’s statements before the jury. There would be no drugs or alcohol found in Karen’s system (except what was naturally occurring), but Calcote hoped to make it appear the prosecution might be playing games.

Actually, both sides wanted to get through this portion of the trial fairly quickly. It was thorny.

The prosecution did want to show how different these defendants and their “lifestyle” were from the victims, specifically Karen, but they also didn’t want to give them an out, and open up the possibility of them using the “voluntary intoxication defense.” In effect, this would have them claiming they were so high or drunk or both that they didn’t know what they were doing.

Intoxication is no excuse for committing a crime but murder is a “specific intent” crime instead of a “general intent” offense which would have someone basically breaking the law but not having the all-important pre-planned deliberate design. It’s “mens rea” or “guilty mind” versus “actus rea” or “guilty act.” The defense could argue the states of mind of deliberation and premeditation could be negated by intoxication. Courts generally looked down on defendants using this tactic, and juries had a tendency to throw the book at anyone who tried to use it. Many think it should be considered an aggravating rather than a mitigating factor in a crime.

However, defendants using the “voluntary intoxication defense” have been known to get acquitted or have the charged crime and/or sentence reduced significantly if successfully argued. The intoxication has to be so extreme as to “suspend the power of reason and render someone incapable of forming a specific intent.” Using this argument, Derek and the others would be making an “affirmative defense,” essentially admitting the crime, but making an “excuse” for why they did it.

Derek and Gabriel could argue Karen offered them the beers they had that night which came from the Anderson refrigerator. Ecstasy tends to cause dehydration and she should have known mixing these particular narcotics has a nasty effect. They would of course leave out the fact that, in addition to taking the beers without asking during their heinous attack, Derek was the one who had noticed the six-pack earlier in the day when he took the liberty of grabbing a soda for himself out of the refrigerator, and it was also he who relayed that information to Gabriel.

The prosecution would counter-argue that they were clearly not so “extreme” in their intoxication. They were in command enough of their faculties to have sex and go through a retinue of booking procedures, and in Derek’s case, drive a car and not hit anybody or anything. They also didn’t make their impairment known to the police at the time of their arrest. It would have helped to tell the cops they were “so wasted” but they hadn’t formulated a secondary ruse defense at that point.

No, it was better for them to stick to their burden of proof path, make the State prove their case beyond a reasonable doubt, and if they lose big, use the intoxication defense possibly in appeal by claiming their public defenders didn’t properly advise them of the possibility (which they did) for such a defense and ask for a reversal due to counsel’s failure to disclose or request a voluntary-intoxication jury instruction. There were more than enough jailhouse attorneys to help Derek and the others down the line should they need it. Also, with such an appeal, higher court judges are many times more prone to tossing a conviction or remanding for a new trial once the emotional heat of the crime has passed and punishment has been meted out.

Dr. Vasker did continue and detailed Clonazepam’s primary prescribed use as an anti-seizure medication and sometimes use in the relief of panic attacks. He did add that it is also known as the “Dollar Date” drug, owing to its powerful anti-convulsant muscle relaxant feature that is used to immobilize people, usually women, much like the “Date Rape” drug Rohypnol is characterized.

The defense also let Dr. Vasker go on without interruption, detailing the uses, effects and lengthy deleterious side-effects for MDMA even though, on the face of it, it was damaging evidence. It sure didn’t help that MDMA commonly produces a “prolonged sense of euphoria, confidence, sexual prowess, and desirability.”

After the doctor finished, Calcote, on cross-examination, basically wanted to make one point, asking the doctor, “Don’t you work for the police?”

“No, sir.” Dr. Vasker replied.

“You are a forensic chemist employed by the Illinois State Police Crime Lab, are you not?” Calcote persisted.

“Yes, but-” Dr. Vasker answered evenly, having been in this position many times before.

“No, ‘but’, that’s who you regularly produce reports for.” Calcote hissed at the doctor, cutting him off while almost leaning into the witness stand.

Ms. Henklin voiced an objection for “badgering” the witness, arguing Calcote was attempting to bully the doctor by “looming over him.”

Judge Marr sustained the objection, and when the doctor tried to finish his answer, Calcote waved him off whereupon Ms. Henklin objected again saying the original question was “particularly leading” and that by not allowing the doctor to answer “Mr. Calcote is also
misleading
the jury, your honor, and has put the witness’s reputation and character in question.”

Leading questions are designed to discredit a witness’s testimony by formulating queries that require only a yes or no answer. While usually not allowed in the direct questioning of a witness they are generally permitted in cross-examination because an opposition witness is already considered hostile.

Marr again “sustained” the objection and ruled that the witness be allowed to “finish his answer.”

Dr. Vasker concluded by saying, “Yes, I work at the State Police Crime Lab where I am employed to make professional, independent observations and draw conclusions based on those observations.”

Calcote had no further questions.

Judge Marr said “thank you” and the witness stepped down.

Anyway, Calcote got his point across to the jury and, while not negating, at least tainted the effects of the doctor’s testimony. The doctor already was pedantic in his delivery, and at this phase in what was a long opening slog most of the jurors were nodding and ready for a rest. So it wasn’t entirely clear who won or lost the most by the day’s testimony.

The prosecution succeeded in making Derek and the others look creepy. Henklin would have loved to have used the non-DNA results of the blood draw but it can be a double-edged sword and there are arguments about whether involuntary drug tests of suspects violates due process making it fall under the 4th Amendment’s prohibition against unreasonable search and seizures.

All in all it could have been far more damaging to the defense. The drugs were there.

In Gabriel’s case it was an “active possession,” the drugs were on his person.

For Derek, because he was driving, the ecstasy pills were considered a “constructive possession,” in other words the narcotics were where he could easily reach or control them. They both had neglected to toss the pills out the window in their flight, mainly because being gainfully employed of late with the landscaping gig they had splurged for the more expensive ecstasy pills rather than their usual purchases of crystal meth. They just didn’t want to be wasteful. Having only a few pills still fell under crucial distribution limits anyway. It looked obvious the narcotics were only for their “personal use.” They knew the rules from their time spent dealing drugs. However, that dealing was done in very limited amounts. Even they were afraid of “getting in” heavy with real narcotic traffickers because actual practitioners of the drug trade don’t fuck around. If a trafficker even thinks for a second you’re screwing them, they’ll take you out. It’ll be a simple street execution that you won’t ever see coming.

No, the defense did do pretty good. They knew without Karen showing evidence of drinking or getting high it was best to get past the drug and alcohol testimony. They would have to use other ways to impugn her character. They were going to have to pursue their horny housewife defense from some other angle and Day 2, or another day, would offer a better set-up. But it wasn’t going to be easy. Illinois has a “rape shield” statute that prohibits using a victim’s sexual history against her (and there was no history here in any event). Even a deceased rape victim’s privacy is afforded the same protections as a surviving victim. But still there were ways.

The prosecution knew how to play the game as well. They weren’t going to spend it all opening day. These witnesses seemed to be more set up pitches by the prosecution. They were building to something. They wanted their big witnesses and the damning parts of their argument stacked later in the trial, too.

Ward met Anderson a few streets over from the criminal courts building.

Anderson paid for some hot dogs from a cart vendor and they sat in a small park by a dormant fountain that was shut down for maintenance. That was good. Anderson wanted to hear what Ward had to say. There were already enough city sounds and in the few trees scattered about the area there seemed to be a thousand birds waiting for bits of bun to be discarded.