Violence (18 page)

“Objection, your honor, immaterial and prejudicial!” Ms. Henklin jumped up and shouted her objection over Leesom’s not so veiled attack. “The victim is not on trial! Nor is her sexual history!”

The defense had brought up this matter pre-trial and Judge Marr did not want to be accused of applying the rape shield law improperly, and reservedly allowed them to raise the issue if they wished. It was a bit of a gamble on the defenses’ part to want to underscore Karen wasn’t overtly promiscuous, but it was deemed to be overriding to also insinuate she was not having much sex with her husband, either. They had to go all the way with the lonely but horny housewife theory.

“Your honor…” Leesom emphasized. “…the defense is not suggesting the deceased here had an immoral or unchaste past which the Rape Shield statute rightly prohibits from being brought into evidence.“

“Your whole defense is she was immoral and unchaste!” Henklin hissed indignantly, even though she knew all this was coming. She had to be vociferous in her response. Leesom’s insinuations were incendiary and deserved to be protested.

“We’re merely trying to establish spousal relations.” Leesom calmly asserted, trying to appear the more level-headed of the two.

“I’m going to allow it.” Judge Marr declared with a slight groan. “Overruled.”

During the short recess Judge Marr ordered right after Dr. Azzam was excused Al Ward tried to call Anderson to prepare and warn him that he would likely be targeted in the way that was just presented. It was to no avail. Apparently, Anderson was already in the Courts Building and had his cell phone turned off.

After the break, the lead attorneys, Henklin and Calcote, were back on their haunches as several non-expert lay witnesses were lined up. The prosecution had decided early on to just call everyone directly connected to the case because the defense likely would have called these witnesses anyway.

The Confrontation Clause portion of the Sixth Amendment to the Constitution asserts the right of a defendant to be confronted with those who are providing testimony against them. This guarantees that a defendant can cross-examine witnesses and any of their accusers face-to-face. So, while the government has some discretion as to whether they have to call
all
witnesses to prove its case, the prosecution wanted to, if anything, err on the side of total disclosure. They certainly did not want to be accused of knowingly concealing evidence that could be favorable, in other words exculpatory, to the defendants. That would be prosecutorial misconduct and tantamount to professional and moral suicide.

Joyce Breusler, Anderson’s secretary, was the first in this string of lay witnesses to be called by the prosecution. She calmly recounted how she took a message from Karen Anderson that fateful day in May and relayed that information to “Mr. Anderson” who was her employer.

Ms. Henklin made sure her testimony didn’t appear coached (and she wasn’t) but also made sure Joyce related how the call did seem disquieting and not only in retrospect.

“How many times would Mrs. Anderson call you in a normal week?” Ms. Henklin asked.

“A couple of times.” Joyce answered straightforwardly.

“So you could say this call was somewhat unusual?” Henklin wanted to know.

“I guess so, yes.” Joyce responded.

“Was there anything else about the call that struck you as being unusual?” Henklin continued. “The content of the call, her tone, anything?”

“It was short.” Joyce recounted.

“What was short?” Henklin probed.

“The call.” Joyce nervously riveted her gaze on her hands. “Normally we would talk for a bit, you know about our kids, something in the news, the weather-”

“But not this time?” Henklin queried.

“No.” Joyce shook her head. “Mrs. Anderson was really nice, but didn’t ask how I was or anything, just could I have Mr. Anderson call her, and thanks. That was kind of unusual.”

This was true. Karen did talk to Joyce frequently over the years, getting to know her family and sometimes calling Joyce just to chit chat. Karen, while careful in how much she revealed while interacting with people who worked for her husband, still was not guarded in any sense.

Henklin also had to make sure she presented the Andersons in the best possible light. She knew all along that the defense was going to try to change the focus of the case from the defendants to the victims and, since Karen was dead (Tristan being a minor was therefore out of bounds), Noel Anderson was going to be their particular whipping boy. It was all they had.

Henklin had to show a normal, loving relationship between Karen and Noel. She moreover had to be careful presenting it because if it were obvious it would look like they were uptight about it and play right into the defenses’ trap. However, she had to get the jump on the defense so to speak without having to wait to clean up on re-direct examination where it always looks like you’re deceptively trying to explain away damaging testimony that was already given.

“And according to phone records Mr. Anderson did ‘call her’ right back after he got off the phone with you.” Henklin offered, trying to elicit a beneficial response.

“Did he?” Joyce responded, looking back up. “That wouldn’t surprise me.”

“Why would that not surprise you, his calling her right away?” Henklin invited Joyce to elaborate.

“If he were ever in the office and I gave him a message his wife or daughter called, he would call them right back.” Joyce related with warm fondness. “His daughter usually called him direct, you know how kids are, she was a bit shy around me, but he always called his wife as soon as he got off a call or out of a meeting, whatever.”

Henklin secretly sighed with relief, pleased with Joyce’s answer, and ended her questioning.

Calcote, for his part, did not disappoint when it came his turn to cross-examine “Ms. Breusler.” He went right after her in an attempt to discredit Noel Anderson after throwing out some perfunctory questions to grease the skids and conceal his real intent.

“Why would Mrs. Anderson call you and not her husband directly?” Calcote asked pointedly.

“I wouldn’t know. I would imagine she does usually call him.” Joyce answered with a shrug of her shoulders.

“So why didn’t she just call him
in this case
?” Calcote queried as though he were completely flummoxed.

“Probably because he calls me a lot for messages or he’s in the office anyway.” Joyce replied. “I just think, ‘in this case’, she wanted to check with me to see if he was in an important meeting or something.”

“Was there ever a time she called her husband when he was at work and it was an emergency?” Calcote asked keenly, his brow furrowed, eyes intense.

Joyce had to think for a moment but then remembered, “Yes, one time, Tristan broke her arm pretty bad, riding her bicycle, I think.”

“Did Mrs. Anderson call you first?” Calcote prodded her to clarify.

“Oh no, she called Mr. Anderson, but she couldn’t get through for some reason. He was out in the field and couldn’t get service where he was at, so I had to send somebody out to tell him.” Joyce immediately responded.

“So, if Mrs. Anderson was so concerned about these men…” Calcote indicated Derek, Gabriel and Ruben as he stepped over near the jurors. “…if it was an emergency, something urgent or unusual, don’t you think she would have tried him first?”

“I can’t answer to that.” Joyce frowned, knowing she had been tricked.

But Joyce did answer by having no answer. Of course Karen called Noel many times directly, but Joyce couldn’t know it since the prosecution didn’t present the information, and the fact there was only one time Joyce could actually speak about, it made Karen and Noel’s relationship look cold, operated at an arm’s length, at least to the jury. For now, anyway.

Calcote was done with Joyce.

And she was excused by Judge Marr.

The next witness called was Langston Phipps, Anderson’s now 78-year-old elderly neighbor. Nobody liked to use older witnesses, for the obvious reasons, unless it fed into their case. In this instance, it worked for the defense. The obvious reasons why you don’t want to use an elderly witness are the vast spaces you can drive doubt through their testimony due to their diminished mental and physical capabilities. Yet, on the positive side of the ledger elderly witnesses tend to have more credibility. People don’t think they lie.

The prosecution had to call Mr. Phipps for the aforementioned purpose of disclosure and because this was the guy who saw the suspects running from the crime scene. Also, Ms. Henklin knew from pre-trial motions that the defense was interested in him because they did not rely solely on his witness statement but requested a personal interview with Mr. Phipps which she sat in on.

It was during this interview that Calcote showed particular interest wanting to clarify that “Mrs. Anderson was in her swimsuit when the workmen arrived” and also asked Mr. Phipps how reliable is his eyesight. Derek and the others had told their attorneys about the fact Karen was dressed in a swimsuit. It was obviously a point they were going to try and exploit.

Again, Henklin was stuck between a rock and a hard place. It would look deceptive if she passed over Mr. Phipps and the defense solely called him as a witness. This way, by having him on the prosecution witness list, outside of recalling someone to testify, it could also look like the defense didn’t have many of their own exclusive witnesses to call. Really they had only the one expert so far on their list: the specialist who was scheduled to testify about the suicide risks associated with having a gun in the home. They also had a couple of other witnesses the prosecution originally called along with Noel Anderson but that was only a ploy to keep Noel out of the courtroom.

When Mr. Phipps took the stand he thanked Judge Marr for keeping it so cool in the courtroom because it was beastly hot outside.

Ms. Henklin tried to be brief without being noticeably dismissive. She didn’t want to look like she was trying to minimize the importance of the testimony of her own witness, but she was trying to do just that.

Henklin basically got Mr. Phipps to quickly go over the extent of his macular-degeneration which was “not severe.” She had him describe how he “briefly” saw the defendants when they first arrived that morning for their landscaping duties. She then had him describe for the jury how later that night he heard the gunshot, went outside to investigate where he then saw two of the suspects running away from the Anderson residence where they joined a third suspect “who was waiting by a car.”

When Calcote stepped in to do the cross-examination it almost seemed as if he were licking his chops. He asked Mr. Phipps some corroborative questions to carefully exhibit that, while Phipps may be elderly, his faculties were sound.

Calcote asked him the standard opening questions which included having him confirm his age.

“Seventy-eight.” Phipps proudly declared.

Calcote said he noticed Phipps wore glasses and also asked him if he has any vision impairment.

“Only thing is I prefer reading large-print books now.” Phipps explained. “I’m getting used to those electronic tablet things. Getting books there are cheaper. I wear bi-focals, that I also use for driving, but there are no restrictions on my license. I even can still drive at night but I don’t because the other car lights do bother me.”

Calcote asked him what he was doing outside that morning.

“Watering flowers.” Phipps answered.

Calcote asked him if he remembered what time of day it was.

“Mid-morning, around ten-thirty. The sun hits the deck around 11 that time of year and I like to water the flowers before the sun hits them.” Phipps detailed.

Calcote then went on to say, “And it was around ten-thirty when you first saw the defendants arrive at the Anderson residence, is that correct?”

“Yes, sir.” Phipps answered.

“And when the defendants arrived that morning…” Calcote let his voice rise slightly and take on a suspicious tone as he inquired. “…can you tell us what Mrs. Anderson was wearing?”

“Objection, your Honor!” Henklin quickly protested. “Clearly prejudicial! The decedent is not on trial here!”

“May we approach?” Calcote wearily asked Judge Marr who motioned them to a sidebar.

Henklin knew she was going against the current. Only a few States, through their rape shield statutes, even addressed the inadmissibility of what a victim was wearing in a sexual assault case. The judge had the discretion here and judges like to adhere to the basic rule that
all relevant evidence is admissible
. A judge usually wants to rule to admit clothing or lack thereof into evidence because its likelihood to be of probative value to the defendant outweighs any prejudicial affect it may have on the victim.

Calcote argued that “what someone is wearing conveys a certain attitude and possible intent which could be relevant to the issue of consent.”

Judge Marr agreed and “overruled” Ms. Henklin’s objection.

When Calcote continued, he picked up where he left off and asked again what “Mrs. Anderson was wearing” and Phipps answered that she had on “a bathing suit.”

“You’re sure of this?” Calcote asked emphatically.

“Oh yes.” Phipps answered, the alacrity of his response embarrassing him. He obviously still had the image in his mind.

“And was it a two piece bathing suit or a one-piece?” Calcote queried.

“A one-piece.” Phipps tersely replied.

“And when the defendants arrived…” Calcote went on. “…Mrs. Anderson did not go running into the house to change into something more… or let’s say, something less revealing?”

“Not that I saw.” Phipps recollected.

“And isn’t it a fact, based on your witness statement…” Calcote set his jaw as he spoke. “…you saw Mrs. Anderson and the defendant, Mr. Derek Lysander, acting pretty friendly that morning?”

“I don’t know… ‘friendly’?” Phipps wavered slightly, thinking back.

“You said they were standing together for some time-” Calcote challenged him.

“Objection!” Henklin interrupted Phipps’ testimony. “The witness has already testified that it was only a brief time he saw the decedent with the defendants at all that morning.”