Incriminating Evidence (19 page)

Judge Vanden Heuvel glides to the bench, her black robe trailing behind her. She hauls a heavy bench book in one hand and a calendar in the other. She takes her seat under the Great Seal of the State of California. She puts on her reading glasses and studies the calendar. She’s trying to pretend this is just another case. She doesn’t look up when she says, “Are counsel prepared to proceed?”

Payne and I say yes almost simultaneously. We state our names for the record.

“First up this morning,” Vanden Heuvel says, “we have a preliminary hearing for Mr. Gates.” She asks her clerk to recite the case name and number for the record.

“The People versus Prentice Marshall Gates the Third.”

Judge Vanden Heuvel reminds us that Skipper has entered a plea of not guilty, and that the case carries the possibility of the death penalty. For the benefit of the rookie reporters in the gallery, she explains that we are about to conduct a preliminary hearing to determine whether there is sufficient evidence to hold Skipper over for trial. She doesn’t mention that the standard of proof is very low. The prosecution must simply show there is a reasonable possibility that Skipper committed the crime in question. Preliminary hearings usually have as much suspense as the ceremonial throwing out of the first pitch at a baseball game. Judge Vanden Heuvel points her gavel at Hillary Payne. “You may proceed, Ms. Payne.”

Payne stands and says, “Thank you, Your Honor.” The preliminary hearing is the prosecution’s show. A smart prosecutor like Payne will show just enough to get the case pushed over to trial, but nothing more. You don’t get convictions at the prelim. “May it please the court,” she begins. She launches into her opening statement. She says they’ll show that Skipper was present at the hotel room that night
and that he had direct contact with the victim. They’ll show that the victim died of suffocation after Skipper put duct tape on his eyes, nose and mouth. “The defendant had opportunity, motive and means, and there is no doubt that the defendant lured the victim to his room, engaged in bizarre sexual activity and then killed him.” Her opening lasts less than five minutes. McNasty has coached her well. Just the essentials.

Judge Vanden Heuvel is pleased when Payne sits down. With a little luck, her part in this case will be over by the end of the day. With a lot of luck, she’ll be able to get out the door and onto the freeway before the traffic gets heavy. “Thank you for your concise presentation,” she says to Payne. She turns to me. “Mr. Daley, it’s your turn.”

Skipper leans over and whispers, “Keep it short.”

“Your Honor,” I begin, “the evidence will show that the prosecution’s case rests on highly suspect circumstantial evidence. Mr. Gates was, in fact, in the hotel room at the Fairmont that night. As we will demonstrate, the prosecution simply cannot prove that Mr. Gates committed any of the acts of which he is accused.”

Vanden Heuvel raises her eyebrows. The reporters stir.

“Your Honor,” I continue, “this case is a setup. The prosecution knows it.” I assure her that we will punch so many holes in Payne’s case that by the end of the day, she’ll have no choice but to dismiss the charges. She isn’t buying a word of this, of course. I try to cast doubt on every piece of evidence. I litter my remarks with generous use of the words “contrived,” “shaky” and “unsubstantiated.” Judge Vanden Heuvel takes it all in. Five minutes later, I sit down.

Judge Vanden Heuvel asks Payne to call her first witness.

“The people call Inspector Elaine McBride,” she says.

Solid choice. They’re leading with their strength. McBride strides to the front of the courtroom. Her bearing is professional, her expression stern. She acknowledges the
judge. Her gray pantsuit is freshly pressed, her white blouse starched. She’s sworn in and takes her seat in the witness box. She adjusts the microphone with the confidence of a woman who has testified at hundreds of trials. She states her name for the record and nods to Payne, as if to say “Let’s get this show on the road.”

Payne approaches her. “Inspector McBride,” she begins, “how long have you been with the SFPD?”

She tugs at the microphone. “Eighteen years.”

“And how long have you been a homicide inspector?”

“Eight months. I was the head of the sex crimes unit for six years before I was promoted to homicide inspector.” Payne begins to walk her through her résumé. I stop her after a moment and stipulate to her credentials. We aren’t going to win any points by trying to attack her experience.

“And you are the homicide inspector assigned to investigate the death of the victim in this case, Johnny Garcia?”

“That’s correct.” She confirms that she was the first homicide inspector to arrive at the Fairmont. She describes the scene. Garcia’s body. The handcuffs. The duct tape. The champagne bottle and glasses. “The police officers had secured the area,” she says. “The paramedics had arrived. A team from the coroner’s office was on the way.”

Payne turns and looks at Skipper. “And did you have an opportunity to interview the defendant?” She’s using one of McNulty’s favorite tricks. She’ll never refer to Skipper by name. Neither will McBride.

“Yes. The defendant admitted that he had been present in the hotel room the entire night.”

The first score goes to the prosecution. She’s placed Skipper at the scene.

“And did the defendant offer any explanation for what happened?”

“No. He said he fell asleep in front of the television.”

“Did he hear anything?”

“No.”

“See anybody come in?”

“No.”

“Hear anybody knock on the door?”

Enough. “Objection, Your Honor. We get the idea.”

“Sustained. Move along, Ms. Payne.”

“Just so we’re clear on this, Inspector, when you arrived there was a dead body in the bed and the defendant admitted he had been there the entire night.”

“Objection. Asked and answered.” I’m trying to break up her rhythm.

“Sustained.”

Payne takes this in stride. “Inspector, did the defendant offer any explanation for how the body got there?”

“No. He had no explanation, plausible or otherwise.”

I think I see the hint of a smile on Payne’s impassive face. “Let’s talk about something else for a moment,” she says. She takes out an enlarged photo of Johnny Garcia handcuffed to the bedposts. She points to the handcuffs. “Inspector,” she says, “did the defendant have any explanation for how the victim became handcuffed?”

“Objection. Asked and answered. The witness has already testified that Mr. Gates did not offer an explanation with respect to this issue.”

“Sustained.”

Payne pouts. She leads McBride through an explanation of how Skipper’s fingerprints were found on the handcuffs. McBride cannot account for the handcuff key found in the toilet. Payne takes her through a description of the duct tape found on Garcia’s eyes, nose and mouth. She has her describe the search of Skipper’s house. Finally, she takes her through an item-by-item inventory of the photos and
Hustler
magazines they found in Skipper’s study. I object sporadically and inconsequentially. McBride is on the stand for more than an hour.

At eleven-fifteen, Skipper jots a note that says “Can you stop this?”

I shake my head. I can slow her down, but I can’t stop her.

Finally, Payne decides she’s extracted everything that she can from McBride. “No further questions for this witness,” she says. She got what she needed, and then some.

I stand, button my jacket and approach McBride. I look at the picture of Johnny Garcia’s body. “Inspector,” I say, “you have testified that Mr. Gates’s fingerprints were found on the handcuffs and the duct tape.”

“That’s correct.” The voice of authority.

“Did Mr. Gates offer an explanation as to how his fingerprints found their way onto the handcuffs and the duct tape?”

“Mr. Gates indicated that he had tried to remove the handcuffs and did, in fact, remove the duct tape.”

Just what I wanted. “I see. Isn’t it therefore logical to conclude that Mr. Gates got his fingerprints on the duct tape when he removed it from the victim’s face? And isn’t it also logical to conclude that he got his fingerprints on the handcuffs when he attempted to remove them?”

“Objection. Leading.”

Right objection, wrong grounds. On cross-exam, you can lead the witness. In fact, you’re supposed to do it. She should have objected because it was a speculative question. That’s a no-no.

Vanden Heuvel makes the right call. “Overruled. The witness will answer.” She glances at Payne. “Next time, Ms. Payne, when Mr. Daley asks a speculative question, you might try objecting on those grounds.”

A small victory. Payne’s fair skin reddens.

McBride says, “Anything is possible, Mr. Daley. And it still doesn’t explain the key that was found in the toilet.”

It’s a fair point. “But you didn’t find any fingerprints on that key, did you, Inspector?”

“No. It was too small to show any prints.”

Time for one more quick trip through the looking glass. “Inspector, is it possible that the person who brought Mr. Garcia’s body into Mr. Gates’s room may have pressed the handcuffs against Mr. Gates’s fingers while he was asleep?”

McBride looks at Payne, who gets the message. “Objection. Speculative.”

“Sustained.”

“Isn’t it possible, Inspector, that somebody who wanted to set up Mr. Gates may have drugged him and brought Johnny Garcia’s body into the room? And isn’t it possible that the same person may have caused Mr. Gates’s fingerprints to have been placed on the handcuffs?”

Before Payne can object, McBride says, “That’s preposterous, Your Honor. Mr. Daley is trying to concoct a scenario where anybody in the world could have framed Mr. Gates that night.”

That’s exactly what I’m trying to do. “Your Honor,” I say, “would you please ask the witness to answer the question?”

“Objection,” Payne shouts. “Speculative.”

Murmurs in the gallery. Vanden Heuvel pounds her gavel. She points it toward the reporters in the jury box. “The objection is sustained. There will be order in my courtroom.” She turns back to me. “Any further questions for this witness, Mr. Daley?”

“No, Your Honor.”

Judge Vanden Heuvel slams her gavel and recesses court for lunch.

“Jesus Christ, Mike, you should have taken McBride apart.” Ed Molinari is offering some helpful suggestions on my courtroom technique in the consultation room behind Judge Vanden Heuvel’s courtroom. At the same time, he slides into one of the heavy wood chairs and unwraps a pastrami sandwich.

Skipper ignores the bag with his lunch and paces. He’s been nervous all morning. “Dammit, Mike,” he says, “you’ve got to be more aggressive. You should have taken McBride by the balls and squeezed.”

Such a delicate way with words. “What did you think I was going to prove today? McBride was up there to place you at the scene and to confirm that your fingerprints were on the handcuffs. Those are the facts. You were at the scene. Your fingerprints were on the handcuffs. We’ll go to war about how your fingerprints got there at the trial. For the moment, all they need to show is that you were there and that you had contact with the body. And it doesn’t help that they found the photos and magazines in your study.”

He looks right through me and doesn’t respond. Then he takes the white bag that contains his sandwich and soda and hurls it across the room into the trash can.

The afternoon session doesn’t improve when Rod Beckert takes the stand. Payne hands him a copy of his autopsy report, which he holds as though it is the Super Bowl trophy. I stipulate to his expertise in pathology as soon as he takes his seat in the witness box. There’s no sense in giving him twenty minutes to read his résumé into the record. He testifies that Johnny Garcia died of asphyxiation sometime between one and four A.M.

“Was it a painful death?” Payne asks.

I could object because it is a speculative question. I would look like an idiot if I did.

Beckert strokes his beard. “Initially, it would have been quite painful,” he says. “After a few moments, the victim would have lost consciousness. At that time, it is very difficult to determine what, if anything, the victim is feeling.”

“Dr. Beckert,” Payne says, “are you absolutely sure Johnny Garcia died of suffocation?”

“Yes.”

She turns away and heads toward her chair. She’s about to sit down, when she turns back to him. “Doctor,” she says, “did you find traces of any drugs in the victim’s bloodstream?”

He acts as if he didn’t expect the question. He flips through his report. He pushes his glasses down to the tip of his nose. “Yes, Ms. Payne,” he says. “We found traces of heroin.”

“A substantial amount?” She’s trying to undercut the argument I’m about to make that he may have OD’d.

“Not enough to kill a young, healthy male.”

“Did you find any other drugs?”

“Yes. We found traces of gamma hydroxy butyrate in his bloodstream, commonly known on the street as GHB.”

“What happens when you take GHB, Doctor?”

“It induces unconsciousness,” he replies. “It’s frequently seen in date-rape cases.”

“So, Doctor, in addition to being bound and gagged, the victim was high on heroin and was rendered unconscious by a date-rape drug.”

“That’s true.”

“But it is your conclusion that he died of asphyxiation.”

“That is my conclusion, Ms. Payne.”

“No further questions.”

Beckert is still clutching his report when I approach him. “Dr. Beckert,” I begin, “I would like to direct you to page thirteen, which indicates that you found heroin in the victim’s bloodstream.”

“That’s true, Mr. Daley.”

“And, in fact, there was a substantial amount of heroin in his bloodstream, wasn’t there?”

“No, Mr. Daley. I said there were traces of heroin in his bloodstream. I also said that there wasn’t enough to kill a young, healthy male.”

“And you understand, of course, that the exact amount of heroin in a person’s bloodstream would determine whether a person has overdosed.”

“Yes.”

Here goes. “Isn’t it possible that Johnny Garcia died of an overdose?”