A Family Business (37 page)

Virtually until the day that jury selection was scheduled to begin, Giss was secure in the strength of the prosecution’s case. He knew that Dan Galambos, Dave Edwards, George Bristol, and Jim Dame, among others, would deliver powerful testimony against the former crematorium operator, testimony that would be rounded out by equally damning words from people like Detective Diaz, Richard Gray, Steve Strunk, and John Pollerana.

The only area in which he had a growing reservation was in the solidity of his medical evidence. Although Dr. Frederic Rieders was a widely acknowledged expert in the field of toxicology, and an adept witness as well—that is, someone not likely to become rattled under cross-examination or fall into a defense trap—the prosecution team of Giss and De Noce had become worried. While Giss had even wrung a concession from the pathologist who performed the autopsy on Tim Waters—the man who had initially ruled the death a natural one—that poisoning likely was a contributing factor in the victim’s demise, there was a cloud on the horizon.

One of the first things De Noce had done after being named to the case was to go over Rieders’s report with a critical and scientifically knowledgeable eye. When he had been on the stand in October 1990 describing his findings, the toxicologist had been careful to say that his determination was based largely on the fact that he had not been able to discount oleander as the poison that possibly killed Tim. This was subtly different from saying that oleander had actually killed Tim. At the same time, Rieders’s testing process divulged nothing else as a possible poison. Therefore, it had been Rieders’s
opinion
that oleander in some form had been administered to Tim and that was what had caused his death.

Looking at the situation objectively, De Noce felt that was not quite good enough. As he shuffled through Rieders’s report, which described in enigmatic scientific jargon the procedures he had followed and the results he had obtained, De Noce became worried that, despite the Pennsylvania scientist’s expertise, his findings lacked “substance-specificity.” That is, Rieders did not find with unwavering certainty—and with the data to back it up—that it was oleander that had killed Tim.

After Rieders’s testimony, too, Giss found an obscure medical report that said persons with liver ailments for some as yet unknown reason also registered an unusually high reading for digoxin in their systems, a situation generally referred to as a “false positive.” This was particularly troubling to the prosecution because the pathologist who had autopsied Tim had very specifically pointed out that Tim had a liver that was twice as large as that of the normal adult male. It was, in fact, in the pathologist’s opinion, a major contributing cause in Tim’s death.

De Noce felt that what the prosecution really needed for an airtight case was testimony that said unequivocally that oleander had been the poison. If he and Giss did not have that, he feared the defense might come up with an expert at trial who would make mincemeat of Rieders’s report.

Shortly before Christmas 1990, De Noce went to Giss and confessed his fears. If they went to trial with Rieders as the prosecution’s only expert, he said, they might be asking for trouble. Rieders would be able to testify that his tests showed such-and-such, which
led him to believe
that oleander had been the source of the poison. But, and this was the crucial part, Rieders’s methodology had not
proved
that it was oleander that had killed Tim Waters.

Rieders’s testimony, De Noce pointed out, was subjective, based on his experience in another case in which oleander was the known agent. But what if the defense found another scientist who used a different method of testing which would be able to pinpoint with uncontestable accuracy that it was
not
oleander that killed Tim? As long as the defense was going to be running new tests, De Noce suggested, it might not be a bad idea if the prosecution did the same thing. What they should look for, he proposed, was a scientist who used a testing method different from the one employed by Rieders. If those tests were positive as well, they would confirm Rieders’s findings, and the prosecution would have two experts in its camp. If the results were different, it was something the prosecution needed to know before the trial began.

Giss, whose confidence in Rieders’s findings was waning as far as stand-alone testimony was concerned, recognized the practicality of De Noce’s suggestion. “Find somebody,” he told De Noce.

De Noce’s search for an expert led him to a man named Dr. Jack Henion. Like Rieders, Henion was a Ph.D. rather than a medical doctor. But while Rieders was also a businessman who operated his own toxicological testing firm, Henion was an academic, an associate professor of toxicology at Cornell University in Ithaca, New York. However, what really interested the prosecutor was the fact that Henion also worked for the New York State Racing and Wagering Board and the Equine Drug Testing and Research Program. In that capacity, he examined specimens from race horses, testing to see if their performance had been affected by chemical substances.

Over the years, Henion had built a high-tech lab whose centerpiece was a machine that by itself had cost $2 million. Using that equipment, Henion had developed a method for testing for the presence of a foreign item in tissue or fluid that was extremely sophisticated. More important, it was substance specific. His tests could determine with near irrefutable accuracy if a specific substance was or was not present in a particular sample. While there was a world of difference between a long-dead cremation service operator in California and a live race horse in New York, the testing principle was the same.

At the same time that De Noce was looking for a new expert, Roger Diamond was talking to Dr. Bryan Finkle, who was with the Center for Human Toxicology at the University of Utah. Finkle had come to California at Diamond’s request and had been on hand to take tissue samples when Tim’s body was exhumed. But later, when it came time to do the analysis, Finkle suggested to Diamond that there was another toxicologist who could probably run a more definitive series of tests than he could. That man’s name, Finkle said, was Dr. Jack Henion. It was one of those coincidences that people would look at later and exclaim, “What a small world,” which in those circles, in fact, it is. Both De Noce and Diamond—operating from totally opposite directions—ended up in exactly the same place: with Henion.

De Noce was the first to discover the coincidence. As soon as he found out that the defense also planned to use Henion as its expert, he telephoned Diamond to tell him about the prosecution’s plans.

“You can’t do that,” Diamond had exploded in indignation. “You can’t contact our expert.”

Almost as soon as he said it, Diamond reconsidered. “On second thought,” he said, thinking quickly, “that won’t be any problem.” What had made him rethink his original position was his rock-solid personal belief that Henion was not going to find oleander in Tim’s tissue samples. If that were the case, if the prosecution were using Henion as well, Giss and De Noce would not be able to attack the Cornell toxicologist’s findings, not if he was their expert as well.

As it turned out, Diamond’s decision was amazingly accurate, and his decision to reverse himself and not contest the prosecution’s choice proved to be the smartest move he would make in the case.

Even as Henion was bending over his test tubes, David was moving inexorably closer toward trial on the charge of murdering Tim. Only a few noncritical issues had to be settled before Judge Jones called the first panel of prospective jurors, thereby formally beginning the laborious
voir dire
process that Giss estimated might take as long as eight weeks.

When the court convened on March 19 after a one-day postponement, Diamond, as expected, submitted a flurry of last-minute paperwork. Among the documents was his copy of Henion’s preliminary report.

It was five pages long and most of it dealt with details of the procedures Henion had followed in testing the samples removed from Tim’s long-buried body, details so technical that they were all but unintelligible to a non-scientist.

Take a 50 ml. polypropylene centrifuge tube (Becton-Dickinson, Blue Max) on an electronic balance and using a clean scalpel remove and weigh out a 1-gram piece of tissue
…the report began. And from there it got
really
complicated.
These experiments all used the precursor ion at mlz 577’for oleandrin plus mlz 517, 373, and 145 product ions at the heart-cut time window of 2.8 min
., it continued.
The corresponding ions for oleandrigenin were mlz 433 for the precursor ion with mlz 373, 355, and 377 as characteristic product ions from the heart-cut time window at 2.7 min for oleandrigenin
…

Giss, who had received his own copy of the report only shortly before, felt like punching the wall. As soon as he had received Henion’s document, he skimmed through it, looking for something recognizable among the unfamiliar scientific words. “Oleandrin” and “oleandrigenin” jumped out at him, but not in the context that he had expected. He had been hoping for confirmation of Rieders’s findings. Instead he got refutation. The closer he read the document, the tighter he clenched his jaws. He didn’t have to be a scientist to interpret Henion’s one-paragraph conclusion. He stared at the paper and gulped. Summing up his findings, the toxicologist had written:
Neither oleandrin nor oleandrigenin were detected in any of the heart, kidney, and liver tissues, or the fixing solution provided from Mr. T. Waters
.

In other words, according to the findings of this hand-picked expert extraordinaire, Tim had
not
been killed with an extract from the oleander plant:

The testing procedure that Henion had used, called liquid chromatography/tandem mass spectrometry, or LC/MS/MS, was so new that it probably had never been introduced in a courtroom. Still, that did not reflect unfavorably upon its accuracy. The tests, in layman’s terms subsequently articulated by De Noce, were performed like this:

First Henion bombarded a sample of known oleandrin with electrons in order to split the oleandrin molecule. Then he weighed the fragments in a magnetic field to determine oleandrin’s molecular weight. Finally, he studied a tissue sample from Tim to see if he could find a molecule with a weight identical to that of the known oleandrin molecule. If there had been a positive match, that would have definitively shown the presence of oleandrin. But there was no match, and that just as definitively ruled out oleander as the source of a poison that may have killed Tim.

In a way that frightened as well as startled the prosecution, Henion’s process was basically very simple. It also was entirely scientific, not a mixture of science and opinion, as Rieders’s had been. Rather, the Pennsylvania toxicologist had based his report on his
interpretation
of the results of the tests he had used: radio immunoassay, thin-layer chromatography and fluorometry. But they could not compare for accuracy with the methodology used by Henion. Rieders had been required to interpret his results, but with Henion’s method, there was very little to interpret. Either oleandrin or its derivatives were there or they were not. Henion’s tests had shown they were not.

Henion’s words had rippled through the prosecutor like an electric shock. The Cornell University toxicologist, for all practical purposes, had wrecked the prosecution’s case. The argument that Giss had planned to use at trial was a carefully constructed vehicle that led progressively from one segment to another. The prosecutor wanted to demonstrate to a jury, in essence, that David had both the motive and the means to murder Tim Waters; that David was well-aware of the properties of poisons, especially oleander, and that he had, in fact, used an extract from the common garden plant to kill the Burbank businessman. But the whole thing hinged on two facts: (1) Tim had been murdered, and (2) he had been killed with oleander. Henion’s test results had destroyed fact number two, and without that it would be extremely difficult to prove fact number one. To get a murder conviction against David, Giss first had to prove that Tim was murdered. Henion’s test results would make that extremely difficult if not impossible.

Diamond, on the other hand, felt like cheering. His major claim, at trial, would be that there was no murder and no oleander. Henion had confirmed the latter and, by implication, the former, which obviated Diamond’s need to fall back on alternative theories for Tim’s demise—namely, that someone other than David had murdered him; that he committed suicide, or that he had died as a result of medication he was taking that produced readings indicating the presence of oleander. It was the best possible position for Diamond to be in. And the worst for Giss and De Noce.

Because of Henion’s report, Giss knew that if he went into court and tried to pit Rieders against Henion or, more accurately, Rieders’s testing procedure against Henion’s, Rieders’s methodology would come out on the short end. Besides, Henion was the prosecution’s expert as well as the defense’s. Giss and De Noce had sought him out just as eagerly as had Diamond. The prosecution had, in fact, paid half of the $38,000 it had cost to run the tests—normally they cost $20,000, but the request to expedite the results fairly doubled the cost. Just because Henion’s findings did not fit into the prosecution’s trial plan, Giss could hardly go into court and attack the findings of his own expert. Not if he expected to win.