Defense for the Devil (33 page)

“You wouldn’t expect a report overnight, would you?” she asked then. He said no. “In a week?” He said no.

“When did you recover the partials?” she asked then.

“A few days ago,” he said.

“Please, let’s be precise,” she said coldly. “You had to let everything dry before you began your examinations. You had to go out and buy the materials to assemble a facsimile of the pipe. You had to have a photographer and a video cameraman come in. Is all that correct?”

“Yes.”

It took time, but she got him to admit that he had recovered the partial prints Sunday evening at about seven or eight o’clock. He had gone out to eat while the photographer made the enlargements, and had worked with them from about nine until after midnight.

“So you spent a few hours at a job that FBI technicians might spend weeks on, and you decided you couldn’t make a match with Ray Arno’s fingerprints. Whose decision was it not to send the material to the FBI lab to see if their technicians might have more success?”

“It was my decision,” he said flatly.

Slowly she walked to her table and stood by it, then asked, “Detective Whitaker, if you had recovered those partial prints back in September, or even October, would you as a matter of routine have forwarded them to the FBI laboratory for possible identification?”

Roxbury objected, and this time his objection was sustained.

“Is it a matter of routine forensic investigation to forward partial fingerprints to the FBI for possible identification?” she asked deliberately.

“Sometimes we do, yes.”

“What determines the instances when you do?”

“If the identification is crucial to a case, we would send them in usually.”

“And you decided without consultation that those partial prints were not crucial to this case? Is that what you’re telling this court?”

“I decided there was no point in sending them in, yes.”

She regarded him for a second; then she went to the evidence table and picked up the pipe he had assembled.

“You described in great detail what you found in the key ring at one end of the pipe. Was there any material, any trace material at all, in the other ring?”

While he didn’t really refuse to answer any of her questions, it took a long time before she got him to say the material at the other end of the pipe had been leather, pigskin, and that it was discolored not so much by the stains from bloody water as from age and wear.

Before the lunch break, Judge Waldman summoned Barbara and Roxbury to the bench, and asked somewhat wearily how much longer Barbara planned to take with this witness.

“Your honor, I’m sorry, but you can see how it’s going with him. I need a shoehorn to pry out basic information.” She glanced at Roxbury. “You could speed things up by telling him to stop dodging, no one’s after his scalp.”

“You’re just picking apart every word of his testimony,” Roxbury snapped.

“I’ll keep picking away,” she snapped back, “until we hear the full report of his findings, all the things he conveniently left out in direct.”

Judge Waldman shook her head at them both. “Mr. Roxbury, it would be helpful if your witness would simply answer the questions more directly.” Then she said to Barbara, “And I hope you will finish with him before we adjourn today.”

As if to emphasize her point about time, she allowed only an hour for lunch, an hour Barbara spent pacing back and forth from her office to the reception room.

Whether it was because Roxbury spoke sharply to him, or he simply foresaw many more hours of cross-examination looming, Detective Whitaker stopped dodging that afternoon and answered her questions directly.

He stated that the canvas gloves and the leather gloves were new, both size large. As work gloves they were readily available. The leather gloves were cowhide, and he had found traces of pigskin in two seams of the leather gloves.

“Detective Whitaker,” she asked, “would it be fair to say that the person who wore those leather gloves handled the same object that left pigskin traces in the key ring?” He said yes.

“Can you speculate, based on your experience, what that object might have been?”

“Yes,” he said to her surprise. “I believe it was a hand grip for the pipe.”

“Are you familiar with such an object?” He said yes, and she asked, “Did you find such an object in the plastic bag?”

“No.”

She held up the pipe he had put together. “Would it fit over the end of the pipe and be tight against the edges?” He said yes. “Would you expect the sharp edges of the pipe to fray the pigskin?”

“It might get worn down that way,” he said cautiously.

“You testified that the pigskin fragments indicated that the pigskin was old, discolored by age, not merely stained by water and traces of blood. Would you say the pigskin hand grip had been used more than once on a pipe such as this one?”

Roxbury objected finally, and it was sustained.

She worked around the objection, and Whitaker admitted that the fragments of pigskin had been frayed and worn thin, and the discoloration was due to both age and staining by lead.

It was nearly four-thirty when Barbara thanked the witness and sat down. Roxbury went directly to the problem of the hand grip.

“Is it not possible that such a grip would be useful for other purposes? Such as at the end of a sickle for cutting brush and weeds?”

“Yes, it would work for that.”

“Or even as a grip for a fishing rod?”

“Yes.”

After Roxbury was finished with his redirect examination and Whitaker was dismissed, Judge Waldman asked Roxbury if he had another witness.

“May I approach?” he asked. Wearily she beckoned him and Barbara to the bench. “I have another witness,” he said in a low voice.

“You’ve got to be kidding!” Barbara exclaimed.

“Who?” the judge demanded.

“An FBI agent, to explain more fully about partial prints and composites,” he said.

Judge Waldman said, “No. If you have concluded your case, the state may rest at this time. We have heard quite enough about composites and partial prints to understand the matter.”

“Your honor,” he said, “she’s left the jury thinking Whitaker shirked his duty, that his investigation was less than thorough. I don’t believe that’s a fair assessment, and it’s misleading and prejudicial—”

“Rest your case,” Judge Waldman said.

32

When Barbara, Frank,
and Shelley left the courthouse, Barbara could not suppress a groan. Fog eclipsed Skinner Butte; it hid the upper floors of the Hilton Hotel, it pressed down on the bank under construction across the street and wrapped the world more distant than a block away in ghostly shrouds. Lights were haloed everywhere, sounds muted. The fog was insidious; no clothing could keep it out. It was cold and penetrating, chilling to the bone. Bailey was at the curb, with the Buick door open, a scowl on his face.

“John said for us all to come up to the apartment,” Bailey said at the car door. “He’s got a surprise.” He sounded only marginally less gloomy than Barbara felt.

As soon as they were inside the car, and Bailey was waiting for a chance to enter traffic, Barbara asked, “Where’s Palmer?”

Bailey took his time answering. The traffic was creeping as if following invisible tentacles that had to test each inch of road ahead. “Vancouver, Washington,” he said after making his turn off Seventh. “Nothing’s moving from the North Pole down to the middle of California. Fog all the way.”

John’s surprise was dinner: his specialties of green chili and cheese enchiladas; do-it-yourself tacos, with many bowls of various fillings; a beautiful salad with green and red peppers and slivers of red onions, white mushrooms, and black olives; black beans and rice…. He was as anxious and nervous as a newlywed serving in-laws their first meal in his house.

Cornering him in the kitchen, Barbara whispered, “Thanks.”

“Can’t compete with your old man,” he said, “but I hated the idea of your being in and out of the fog all night.”

She kissed him. “It’s wonderful.”

The first witness to be recalled the next morning was the medical
examiner. At first glance it appeared that Dr. Tillich was a frail old man, but that was deceptive. He was going on seventy, but he was sinewy and muscular without a trace of fat, a runner who ran a mile every day. As he regarded Barbara through thick lenses, his attitude suggested that he had not been surprised in fifty years, and didn’t expect to be surprised now.

“Dr. Tillich,” she said, “good morning.” He nodded. “I won’t keep you long today,” she said. “There are just a few points I’d like to clarify. Have you had the opportunity to review your report, refresh your memory?”

“I have.”

“In your report you wrote that Mitchell Arno’s death could have occurred anytime between Sunday night, August fourth, and before noon Tuesday, August sixth. Is there any scientific or medical reason for choosing one of those periods over another for the time of his death?”

“There’s no reason to pick one over another.”

“Dr. Tillich, is it usually possible to tell how long before death the victim has eaten a meal? And even what that meal had consisted of?”

“Often that is the case. However, where serious trauma is inflicted, the digestive process slows or even comes to a stop in some cases.”

“Based on your autopsy findings, can you tell us what Mitchell Arno’s last meal was and how long before his death he ate it?”

“Not precisely. The stomach contents indicated a meal based largely on meat protein, partially digested, as it would have been during a two- to three-hour period following consumption. There was little further digestion following that, indicating severe trauma had occurred. Also, he had been drinking beer, within minutes of the severe trauma. It had not been assimilated to any extent.”

“Later, in your report, you wrote that based on the amount of swelling present and internal hemorrhage present, you estimated that his right arm was broken and that he suffered the injury to his testicles two to three hours before death. Is that correct?”

“It is.”

“So, he had his meal, then two or three hours later he was drinking beer when he was attacked, and two to three hours later he died. Does that sum up the times correctly?”

“Yes, it does.”

“Would the initial attack, the breaking of his arm and the trauma to his testicles, have caused unconsciousness?”

“More than likely. He would have been in shock and incapacitated, at the very least.”

“In your original report you provided drawings of the wounds on Mitchell Arno’s feet. Do you recall that?”

“Yes, of course.”

“I’d like to go into more detail about those lacerations and other wounds at this time,” she said. He had included the injuries in his report; no one had referred to them when he first testified. Now she picked up his drawing from her table and showed it to him. “Is this the drawing you made of Mitchell Arno’s feet?” He said yes, and she turned to the judge and said, “Your honor, I had an enlargement made of this drawing, and would like Dr. Tillich to use it in order for the jury to see more clearly what he is talking about.”

Shelley set up an easel and placed the enlarged drawing on it, several views of both feet. Dr. Tillich left the stand to position himself before the drawing, then used a pencil as a pointer as he explained his marks.

“I’ll start with the heels,” he said. “Here, there are two cuts on the left heel in the upper region.” He had found slivers of glass from a light bulb in both heels, but only two had cut through the skin.

Barbara stopped him to ask if those cuts had bled, and he said yes, a little.

Then he said concrete dust and particles were embedded in both heels.

The soles were both embedded with slivers of fir bark, the sort that comes from bark mulch; there were several bruises where the deceased had stepped on sharp gravel, and there were bits of cedar splinters in both soles. The upper parts of the toes and the tops of the feet had splinters of cedar, and several deeper lacerations from gravel cuts, and they had fir splinters and embedded dirt.

“Did those wounds on the toes and upper fleet bleed?” Barbara asked.

“No. They occurred after death.”

“From the nature of the lacerations and the glass cuts, can you surmise how the deceased received those wounds?”

“Yes. He was dragged through the glass and then over concrete. The cuts and the embedded concrete are in parallel lines, and concrete dust was on top of the glass fragments. Then he was dragged after his death, facedown this time, across rough cedar, flooring maybe, and over fir bark mulch and peaty dirt. Again, all the lacerations and cuts are in parallel lines. He walked through the bark mulch and gravel, and his weight caused the gravel to bruise his soles.”

She thanked him and asked him to resume his seat. After he had done so, she asked, “When you perform an autopsy, do you also examine the deceased’s clothing?”

He said yes, and explained that he would look for holes, entrance or exit holes for bullets or sharp weapons, for possible tears that would help explain and identify various wounds.

“What did you find on the deceased’s clothes?”

“The lower legs, the bottom three inches in the back of the jeans, had slivers of light bulb glass, and some concrete dust. The front of the jeans legs, the lower three inches, had embedded cedar, fir bark mulch, and dirt. There were slivers of cedar on the front and the back of the jeans and the shirt.”

“Dr. Tillich, if the deceased had been conscious and struggling, would you expect the cuts on his heels to be parallel?”

“No,” he said promptly.

“How high would you need to lift an inert man in order for the lower three inches of his jeans to scrape the floor, and only his heels to show signs of being dragged?”

Roxbury objected that this was beyond the scope of the doctor’s expertise. No one knew the condition of the deceased at that time. His objection was sustained.

“Dr. Tillich,” Barbara said slowly, “in your previous statement, you said that the deceased’s hands were burned after his death, and that the flames had reached as high as his wrists. Is that correct?”