Death on a High Floor (42 page)

Jenna switched to a new topic. One that held more interest for me.

“Dr. Eliopolous, did you remove the knife that was in the victim’s back?”

“Yes, during the autopsy.”

“Did it appear to you that the knife had been dislodged in any way when the victim was moved from the scene of the crime to the autopsy room?”

“No, I instructed that he be placed face down on the transport gurney so that the knife would not be disturbed. I also instructed that his back was to be only loosely covered with a drape so that the knife would not be moved by the drape.”

“Did you do anything else to assure it had not been dislodged prior to the autopsy?”

“Yes, I took pictures of the knife at the scene, before the victim was moved, and compared those pictures to the appearance and placement of the knife in the autopsy room. It had not budged.”

Clearly, Dr. Eliopolous thought that Jenna was questioning whether he had competently made sure that the knife wouldn’t budge during transport of the body. I suspected she was going somewhere else.

“Dr. Eliopolous, did you make note of the exact placement of the blade in Mr. Rafer’s back?”

Eliopolous cocked his head to the side, clearly thinking about it. “Yes. Is there something about it you want to point out to me?”

“There is. Could you look at the photo that is attached as Exhibit A to your report?”

Exhibit A was sitting in a folder, just to my left, marked Filed Under Seal. Unlike the body of the autopsy report, the photos had not been released to the press. The judge had promised the Blob that if they became a topic of testimony in the preliminary hearing, she would permit them to view the photos in private but would not release them for publication. I could hear whispering behind me. From the Blob’s point of view, it was the first really interesting thing that had happened since court reconvened.

For myself, I had not been able to bring myself to look at the photos, despite the fact that we had had them for weeks. But if I was not to be a complete vegetable, totally at the mercy of my gardeners, I needed to look at them. I reached over to the folder, slid it in front of me, opened it, and looked. Exhibit A was a photo of Simon taken from above. He was lying face down, still wearing his blood-soaked suit jacket, with the beautiful Holbein dagger sunk to its hilt in his back.

But it wasn’t as I remembered it. The blade was not exactly halfway between Simon’s shoulder blades. It was much lower down and slightly to the left. As a lawyer, of course, I learned the first year I practiced law that eyewitness recollection usually sucks on the details. But somehow I had not expected that rule to apply to me.

Eliopolous had been studying the picture, too. “Okay, Counsel, I’ve looked at it. What about it?”

“Do you see where the knife is relative to the horizontal midline of the victim’s back?”

“Yes.”

“It’s below the midline, isn’t it?”

“Yes.”

“In fact, it’s below the rib cage, isn’t it?”

“Yes.”

“Well, if the killer and the victim were approximately the same height, and the killer stabbed the victim from the rear, swinging his arm down with force, wouldn’t you expect the blade to go in somewhere farther up the back?”

Eliopolous clearly had to think about it. “I suppose so.” He hesitated, and then did something experts really shouldn’t do. He proffered an unstudied explanation. “Maybe it was plunged in underhand.”

“Like a girl throwing a softball underhand, Doctor?”

There was a burst of laughter from the Blob.

Judge Gilmore glared. “If there is one more outburst like that, I will clear the courtroom. And I will also discover that the viewing of this autopsy photo by the press won’t be convenient until late next week. Or maybe even the week after that.” There was instant silence.

“Well,” Eliopolous said, “underhanding a knife into someone’s back might be unusual, but I think it could be done. I’ve seen lower-back stab wounds before.”

“The knife penetrated the muscle below the rib cage, didn’t it?”

“Yes.”

“And that muscle tissue is pretty tough, isn’t it?”

“I suppose you could say that, although I don’t know that it’s really any tougher than well-worked-out abs.”

“How long was the knife, Doctor?”

“I don’t recall exactly.”

“Your Honor, may we put a picture of the knife up on the ELMO? I think it’s Exhibit R to the report.”

“Yes, you may.”

“I’ll need a second to get it out.”

While Jenna looked for the photo, I thought about the ELMO. It’s an oddly named device used in courtrooms to project magnified images of exhibits onto a big screen. When I first encountered the name, I imagined it to have been invented by a court clerk named Elmo. When I finally looked it up, though, it turned out to be a mere acronym for the pedestrian phrase Electricity, Light, Machine, Organization.

Jenna found Exhibit R, and it flashed up on the big screen in the back corner of the courtroom. There it was, the Holbein dagger that I’d last seen buried in Simon’s back. Its elegant painted handle looked pristine, but its broad blade was covered in what was clearly dried blood. A twenty-four inch ruler was displayed to the side.

“Dr. Eliopolous, does this refresh your recollection as to how long the blade was?”

“Yes, it was almost thirteen inches long.”

“Did the knife make an exit wound in the abdominal area?”

“Yes, it did.”

“Let me direct your attention to Exhibit F of your report.”

Eliopolous reached for his report and paged through it until he came to the exhibit. “Okay, I have it here.”

“Do you see the sketch you made of the path of the knife through the victim, from entry wound to exit wound?”

“Yes.”

“It shows a downward slant, doesn’t it?”

“Yes, it does.”

“So, Doctor, do you really think that someone thrusting the knife
underhand
at a downward angle could develop enough force to drive a thirteen-inch blade through the muscle of the victim’s back, through his internal organs, and out the muscle in his abdominal wall, on the other side?”

“Objection!” It was Benitez. “Doctor Eliopolous is not an expert in biomechanics, and we haven’t presented him as such.”

Judge Gilmore peered down at him, bemusement spread across her face. “Mr. Benitez, wasn’t your witness just telling us a moment ago about the biomechanics of how bruises might be acquired?”

“Well, yes, Your Honor, but that’s different.”

“I’m not persuaded it’s so different. Overruled. You may answer the question, Doctor.”

A really talented expert witness would simply have responded to the question by saying that he didn’t
know
whether it could be put in underhand with enough thrust, and leave the answer to some other, better-qualified expert. But I sensed that Dr. Eliopolous was not a guy who liked to say he didn’t know the answer to a question.

“I don’t think that would be so difficult,” Eliopolous answered.

“Your Honor,” Jenna said, “may I be permitted a demonstration?”

“Yes, you may,” Judge Gilmore said.

“I’ll need my co-counsel to help me.” Jenna turned toward us. “Mr. Quesana, could you join me, please?” Oscar got up and moved toward the witness stand.

“Your Honor, may the witness step down from the witness stand?”

“Yes.”

I had no clue what Jenna had in mind. But since she was proposing to do a demonstration with the
other
side’s expert, it promised to be good. If it worked.

Eliopolous stepped down off the stand, looking as if he wished that he had said he didn’t know the answer to the question. Oscar was standing beside Jenna. He didn’t look nervous, but he did look puzzled. Like me, he clearly had no clue what Jenna had in mind.

“Mr. Quesana, would you just stand here, please?” She pointed to a spot in front of the witness stand. “And Dr. Eliopolous, would you just stand right behind him?” Eliopolous positioned himself behind Oscar.

Jenna handed Eliopolous a piece of chalk. She must have had it in her pocket. “Doctor, could you mark, right there on the back of Mr. Quesana’s suit jacket, the approximate spot where the knife went in?”

“Objection,” Benitez said. “Improper hypothetical. There’s been no showing that the witness and Mr. Quesana are the same heights as the victim and the defendant.”

“Overruled,” the judge said. “You can bring that out on redirect. And unless I’m going blind, the defendant and Mr. Quesana clearly are about the same height.”

Eliopolous took the chalk and made an “x” on Oscar’s back, just below the rib cage and slightly to the left of his spine.

“Thank you, Doctor,” Jenna said.

Then from somewhere, and to this day I don’t know where she had hidden it, Jenna produced a rubber knife of about the same size and shape as the Holbein dagger that had killed Simon. She held it out to Eliopolous.

“Doctor, would you show us how—in your expert opinion—you would use a knife like this to stab Mr. Quesana underhand, with a slight downward angle of the blade?”

“Objection!” It was Benitez again. “I renew my objection to this entire line of questioning. Doctor Eliopolous is not an expert in
this type
of biomechanics. This is the kind of thing a police officer, like Detective Spritz, might be able to shed light on.”

Judge Gilmore looked more than a little annoyed. “Well, Counsel, if you ever locate Detective Spritz, maybe you can ask him about it. But for the moment, I want to hear from Dr. Eliopolous on this topic. Overruled . . . again.”

Benitez then risked the judge’s ire by piling a second objection on top of his first. “Thank you, Your Honor. But then I want to make a second objection. This demonstration is an improper hypothetical demonstration because the
rubber
knife is not the exact size—and certainly not the same material—as the original.”

Judge Gilmore looked over at the screen, on which the image of the dagger was still projected. “It looks close enough to me, Counsel, at least for a demonstration in a preliminary hearing. Your objection is overruled. Go ahead and see if you can do it, Doctor.”

Eliopolous took the knife from Jenna, hefted it, and made the attempt. The blade bent as it hit Oscar’s back. There was a single titter from one of the spectators. The judge glared quickly out at them, but apparently decided not to punish the group for the sins of one.

It was apparent why the titter had come. In order to thrust the knife at a downward angle, Eliopolous had had to raise his elbow up and out. That had made the thrust puny at best, and it was clear to everyone that a thrust like that wouldn’t have had enough force to push a thirteen inch knife through an entire body.

It was even clear to Eliopolous, who muttered, in a just barely audible voice, “Okay, doesn’t work.” Then he just stood there, looking at a loss for what to do next.

Jenna helped him out. “You can take your seat on the witness stand again, Dr. Eliopolous.”

He took his cue and went back to the stand, although he no longer looked like he lived there. Oscar came back to our table.

“Doctor,” Jenna said, “do you have any theories as to how an assailant might have managed to put the knife in overhand, so low on the back, with a downward thrust?”

“Same objection,” Benitez said. “Not this witness’s area of expertise.”

“Same overruled,” Judge Gilmore said. “You may answer.”

Jenna’s question was, in fact, a risky one. She was giving an adverse witness an open-ended question in an important area. That’s something you’re not supposed to do, but every once in a while, you take the risk.

Eliopolous had learned the hard way not to go out on a limb. “No, I don’t,” he said.

“How about if the victim was falling when he was stabbed?” Jenna asked.

“Your Honor,” Benitez said, “can I just have a continuing objection to this line of questioning?” It was the right thing for a lawyer to say at that point, because judges have a lot of discretion in such rulings, and it must have become clear to Benitez that he was simply being punished—tortured really—for letting Spritz go wherever he had gone.

“Yes, you may,” Judge Gilmore said.

During this exchange, Eliopolous had been pondering Jenna’s question.

“I suppose he could have been stabbed when falling, but I’m really not sure. I’m not an expert on the biomechanics of that.”

“How about if he was stabbed when he was already lying down?”

“Seems more logical. But again, I don’t really know.”

“Doctor, was the point of the dagger embedded in the carpet and floor beneath the body?”

“I’m not sure because the body could have been moved or raised slightly before I got there. You’d have to ask . . .” You could see him hesitate as he realized what he was about to say, then just went ahead and said it. “You’d have to ask Detective Spritz.”

“Doctor,” Jenna said, “is the bruise on the victim’s ankle, the one we were discussing earlier, consistent with his having been tripped by being kicked in the ankle?”

Eliopolous looked happy to be asked something that he might actually have some expertise about. “Yes, it was a contusion, and it could have been caused by a kick. Or by many other things, of course.”

“Doctor, have you ever done an autopsy on someone who was seriously into martial arts?”

Now there was a question that truly came from left field. I could see Eliopolous trying to figure out where it was going. He had clearly come to respect Jenna. Even fear her.

He answered with caution. “Um, yes, a few times.”

“Did you notice bruises on those bodies?”

“Yes. Each of them had bruises of varying ages in many places—on the torso and on the hands, arms, and legs.”

“Including on the palms?”

“Yes.”

“Is it possible then, Doctor, that the bruise on the heel of the victim’s right palm was caused by some sort of martial arts move made by the victim when he hit somebody?”

“Objection,” Benitez said. “Calls for speculation.”

“Overruled.”

Eliopolous answered. “It’s possible, yes. But . . . well, yes, it’s possible.”

The “but” in the answer hung there, waiting to be plucked. Jenna chose not to pluck it.

“I have no further questions,” she said, and walked back to our table. Oscar was sitting beside me and flashed her a none-too-subtle thumbs up. Jenna acknowledged his thumb with a small nod of her head. I hoped the Blob had caught the exchange.

Judge Gilmore looked over at Benitez. “Redirect, Counsel?”

Benitez was now in full possession of what old John Jordan, the very same one who had taken me to dinner at the Yorkshire Grill so long ago, had called a BHP. Big hairy problem. Benitez’s BHP was that he had probably not anticipated several things Jenna had brought up on cross. Most especially the below average body temperature thing. And so he had no idea what his witness was going to say if he tried to get him to clean it up. He desperately needed to talk to him first.

He tried to create the opening, and I was impressed at the audacity of the try.

“Your Honor,” Benitez said, still sitting at his table, “I’m afraid I drank an awful lot of coffee during the lunch break. Would it be a problem if we took a really short break—maybe five minutes—so I could go deal with that?”

“Well,” Judge Gilmore said, “I could say to that what my third grade teacher would have said. But instead I’m just going to say that it’s getting toward midafternoon, and I’d like to get finished with this witness so we can all go home. Unfortunately, five-minute breaks don’t exist. It seems the smallest human break-unit for humans is inevitably fifteen minutes. So just push through. And if it’s more urgent than that, ask one of your co-counsel, who’ve been sitting so patiently there beside you, to do the redirect.” She smiled a beatific smile.

My choice, in his shoes, would have been to say, “No questions.” For the simple reason that Benitez could call Eliopolous again at the trial and try to clean up the problems Jenna had created. And if Oscar was right, what holes Jenna had managed to punch in the prosecution’s case weren’t going to sink the prosecutorial boat in a preliminary hearing. On the other hand, whatever Eliopolous said here, under oath, Benitez would be stuck with at the trial. Fatally, if the answers turned out to be bad.

Benitez got up and moved to the podium. He started by plucking the “but” that Jenna had left hanging.

“Doctor Eliopolous, I noticed that in answering Counsel’s last question, you said, ‘But . . . well, yes, it’s possible.’ Was there a but?”

“Yes,” Eliopolous replied. “I was going to say, ‘But it still seems more likely to me it was caused by a fall.’ And then I was going to add that in any case, if the bruise on the victim’s palm was caused by the victim’s martial arts move against his killer, you would expect to see a very nasty bruise on that killer.” As he said it, he looked directly at bruiseless me.

“Thank you.” Benitez had brought his legal pad with him to the podium, and he began paging through it. Taking his time. Clearly, he was reviewing his notes of Jenna’s cross to see what else he ought to try to fix. There wasn’t a lot that could be reliably fixed. But some lawyers find it hard to leave a damaged witness well enough alone.

Benitez was apparently one of them, because he went for the one thing he should have left completely alone.

“Doctor, do you have any information about what percentage of the population has below average body temperature?”

“Yes. I think it’s about ten percent. Although I’m not certain of the exact percentage.”

I was looking directly at Eliopolous as he answered, and I could read the message to Benitez in his eyes: stop asking me about this. But Benitez didn’t receive the message because he was still looking down at his notes. He barged right on.

“And,” he asked without looking up, “on average, do people with below-average body temperature have any particular physical characteristics?”

Eliopolous did his best to try to soften the answer. “Yes. Well, I’m not really an expert on this subject, but I understand they are often people with low heart rates who are also lean and in excellent health.”

That answer caused Benitez to snap his head up and look at his witness. As if coming out of some trance. I don’t know what answer he had been expecting, but it clearly wasn’t that one. I suppose he had expected Eliopolous to pull a helpful answer out of his expert hat. In any case, Benitez had apparently had enough. Finally.

“I have no further questions,” he said.

Judge Gilmore looked at Jenna. “Re-cross, Ms. James?”

“One question, Your Honor.”

Jenna asked it without getting up. “Doctor, when you conducted the autopsy, did the victim here appear to you to have been lean and in excellent health prior to his murder?”

“Yes.”

“I have no further questions.”

Judge Gilmore looked at Benitez. “Any re-redirect, Counsel?”

“No Your Honor.”

The Judge turned and looked up at the clock on the wall behind the bench. It was a few minutes past 3:00. “You know,” she said, “it’s been an unusual day. Why don’t we call it a day. Mr. Benitez, will Detective Spritz be with us in the morning?”

“I hope so, Your Honor,” he said.

“You
hope
so?”

“Yes.”

Judge Gilmore just sat there, looking at him. I’m not sure what was going through her head. The efficacy of a threat? Get him here or else? Most judges hate to make threats because if they don’t get compliance, they have to carry out the threats or lose all credibility. And trying to hold a senior homicide detective in contempt would be messy. She chose instead to utter a veiled threat. “Well,” she said, “let us hope your hope is fulfilled. And please communicate to the detective that I hope your hope is fulfilled.”