Glitsky 02 - Guilt (41 page)

A war had broken out in Thomasino's chambers.

The lead attorneys, the Judge, and Glitsky had originally gathered to discuss logistics. Farrell had decided that, after all, he wasn't going to call character witnesses – he didn't need them. The defense was going to rest.

And then Jenkins had dropped her bomb, saying she would like to call a rebuttal witness then, someone who wasn't on her original witness list, a man who had been at the driving range during the time Dooher claimed he was, and who hadn't seen him.

Glitsky was sitting in his chair off to the side, and Farrell, looking again more as he'd appeared earlier in the trial – the King of Insomnia – was screaming.

'She's known about this witness all along, your honor! If I'd known about this witness or his testimony, I never would have asked Mr Dooher to take the stand. And this witness is nowhere on any of her lists. This is an incredible, unbelievable,
egregious
breach of professional ethics.'

'Oh, get a grip, Wes,' Jenkins retorted, 'it's nothing of the sort. It's Prop One Fifteen.' She was referring to California Proposition 115, which eased the prosecution's obligations regarding discovery to the defense. The law changes every once in a while, Wes, you'll be surprised to hear. Maybe you ought to try to keep up on it.'

'I keep up on the Goddamn law as well as a Goddamn rookie homicide prosecutor on her first case that she's blown all to hell because she doesn't know…'

Thomasino, atypically wearing his robes in chambers, had heard all he would tolerate – Glitsky was surprised he'd let it go as far as it had – and now he was slapping his hand down on his desk, hard. 'All right, all right, enough! I said enough!'

Both attorneys sat, breathing hard, in front of the Judge's desk. Thomasino, not jolly on his best day, was a study in controlled rage, his eyebrows pulled together until they met, a muscle in his jaw vibrating under the pressure of holding it so tight.

Gradually, he gathered himself. The face relaxed by small degrees. 'This is a matter of law,' he said, almost whispering, 'not a matter of personality. Although, Ms Jenkins, I must admit to some discomfort about it. Surely you knew about this witness before this, and if that were the case, the name should have appeared in discovery.'

The name they were discussing was Michael Ross. In the early days of the investigation, Glitsky had gone out to the San Francisco Golf Club and reviewed the credit-card receipts for the night of June 7th. Michael Ross had paid for a bucket of golf balls by VISA card, and the transaction had been run up at 8:17 p.m. Glitsky had brought the receipt in to Jenkins and they'd had a discussion about it in her cramped and airless office.

The moment was etched clearly in Glitsky's memory. Jenkins's eyes took on a faraway look as she'd sat at her desk, fingering the receipt. He had figuratively seen the light bulb go on over her head.

'Why don't you go out and interview this fellow Ross by yourself, Abe? You don't even need to bring your tape recorder. It's probably nothing anyway. And don't write it up until we've had a chance to talk about what he's told you.'

Glitsky had been a cop long enough, he didn't need a road map. Jenkins wasn't suggesting anything illegal – it could be said that she was trying to save Abe the trouble of writing up lots of meaningless paperwork. It wasn't even procedurally suspect. He interviewed lots of people in the course of any investigation, and often these interviews were casual, limited, irrelevant to the case. There was no need to tape anything.

Of course, in this case Glitsky knew what Jenkins was really telling him – she wanted to limit what she had to give to Farrell as discovery. She knew early on that their evidence case was weak, and she was going to sandbag the defense if she got the chance, which was what she was doing in Thomasino's chambers early on this Friday morning.

Perry Mason notwithstanding, real trials were not supposed to deal in surprises. The discovery process – where the prosecution must turn over to the defense all evidence it possesses relating to the case – is supposed to guarantee that the defense sees all the cards before the game. It's how those cards are played that determines the winner.

Jenkins was supposed to provide Farrell with a list of the prospective witnesses she might call during the course of the trial. She didn't
have
to call every witness on the list, or any of them, but in theory she couldn't call anyone who wasn't on the list.

And Michael Ross hadn't been.

Back in the war zone, the soldiers continued to scuffle. Jenkins was holding up the faded yellow tissue with Michael Ross's name and VISA number on it. and pointing out that she had Xeroxed it, both sides, and it had been turned over to Wes Farrell when he'd requested discovery documents. 'Is that true, Mr Farrell? Do you have a copy of this document?'

'So what, your honor? What's the document mean? I even ask her back last June, July sometime, and she says it means what it means. So I look on her witness list – there's no Michael Ross. She's not allowed to call him, am I right?'

'I'm calling him in rebuttal.'

Farrell brought his own hand down on the edge of the armchair. 'You knew all along you were going to call him. Don't give me that crap.'

'Mr Farrell.' Thomasino, too, was heating up. 'If I hear any more profanity out of you in this chambers, or out of your witnesses or defendants in the courtroom, I'm going to hold you in contempt. We're not street-fighting here, and we're not gangsta rappers, and if you say so much as "darn" in my presence, you'd better have an unassailable reason for doing so.'

Farrell sat back in his chair. 'Sorry, your honor. I mean no disrespect.'

'Well, intention or no, it
is
disrespectful and I'm not going to have it.' Thomasino's eyes strafed the room, came to rest on Jenkins. No one, it seemed, was going to get off easy here. 'Now, as to this witness, Ms Jenkins, do you care to explain to me how you saw fit to include this credit-card slip in your discovery documents and yet at the same time omit the man's name from your witness list?'

'Your honor, he's a rebuttal witness. I didn't know I was going to call him until Mr Dooher testified.'

Glitsky was kind of enjoying seeing Farrell sputter, sitting forward now, seeking non-profanities. 'I believe that is not the truth, your honor,' he finally said. 'When did she interview this witness?'

'Lieutenant Glitsky interviewed him.'

Finally in on the action, Glitsky took the chance to goad Farrell further. 'About two weeks after your client killed his wife, give or take.'

But the attorney ignored the challenge. 'Two weeks?' He turned to the Judge. 'Your honor, two weeks. She knew she was going to call him. Where were Glitsky's notes on the interview, the transcription, anything?'

Abe was glad to see Jenkins cover for him for a change. 'I didn't ask for a tape. It was a preliminary interview.'

'Ms Jenkins,' Thomasino said, 'I'm not liking what I'm hearing here. It sound to me like you deliberately tried to circumvent the discovery process.'

'Damn… darn straight she did!'

The Judge pointed a finger across the room. 'And you, Lieutenant, I find this hard to believe of you.'

Glitsky shrugged. 'I just build 'em, your honor. I don't fly 'em.'

'Judge.' Jenkins wasn't having it. 'How could I have put this man on my witness list? He was no part of my case in chief. What was he going to say? That he didn't see Mark Dooher at the driving range? What am I supposed to do, provide a list of everybody who didn't see Mark Dooher at the driving range? That's pretty much the whole city, isn't it? And, in fact, the prosecution rested its case against Mr Dooher without using Mr Ross. If Mr Farrell here hadn't opened this whole can of worms by having his client testify, we wouldn't be having this discussion right now. It would never have come up.'

'All right, all right.' Again, the warning hand, palm up. 'I'm going to let him testify.'

Farrell went ballistic. 'Your honor, please…!'

But finally, Thomasino's fuse flared. 'Mr Farrell, if
you
please. We're going outside now into the courtroom and Mr Ross is going to testify. That's my ruling and I don't want to hear another word about it.'

Michael Ross was a twenty-one-year-old student at San Francisco State University – clean cut, well spoken, well dressed. From Glitsky's perspective, he was the last hope, if in fact it wasn't already way too late. But Jenkins, no denying it, had played this card masterfully.

'Mr Ross,' she began, 'on the evening of June 7th of this year, would you tell us what you did between the hours of seven and ten p.m.?'

Ross had a fresh and open face and he sat forward in his chair, enthusiastic yet serious. 'Well, my wife and I put our daughter to bed' – he looked over at the jury – 'she was just a year old and we put her down to bed at seven o'clock. Then we had dinner together. We barbecued hamburgers. It was a really nice night, and after dinner, about eight, I asked my wife if she'd mind if I went and drove a few golf balls.'

He seemed to think this might need some more explanation, but hesitated, then continued. 'Anyway, I went to the San Francisco Golf Club's range and hit a large bucket of balls, and then came back home.'

'And what time did you leave the range?'

Ross thought a moment. 'I was home by nine-thirty, so I must have left at about ten after nine, quarter after, something like that.'

Jenkins produced the credit-card slip, showing that Ross had picked up his bucket of balls at 8:17, and entered it into evidence as People's Exhibit Number Fourteen. 'So, Mr Ross, while you were out in the driving-range area, did you go to a particular station to hit your bucket of balls?'

'I did.'

'And where was that?'

'I turned left out of the clubhouse and walked down to the third mat from the end.'

The third from the end on the left side as you left the clubhouse?'

'Yes.'

Again, show and tell, and Jenkins produced the posters she'd first used with the maintenance man and then during her cross-examination of Mark Dooher. She mounted them on to the easel next to the witness box, side by side. 'Could you point out to the jury, Mr Ross, just where you stood, according to both of these visual aids?'

He did.

'And how far, then, were you from the first mat, the one Mr Dooher has testified he used on this night?'

Ross stole a neutral glance at Dooher. 'I don't know exactly. Twenty or thirty feet, I'd guess.'

'So Mr Ross, to reiterate: you went out with your bucket of golf balls at around eight twenty-five and you stood hitting shots from a mat and a tee three spots from the end on the left side, finishing up at around nine-fifteen. Is this an accurate rendition of the facts you've presented?'

'Yes.'

'All right, then. During this period of time, nearly an hour, while you stood two mats away from the last mat on the left, did you at any time see the defendant, Mark Dooher, at the last tee?'

'No. I didn't see anybody. There was nobody at the last tee.'

A buzz coursed through the room. Glitsky noticed Dooher leaning over, whispering to Christina. Farrell was sitting, face set, eyes forward, his hands crossed on the desk in front of him.

Jenkins pressed on. 'Did you see Mr Dooher anywhere there at the range, at any time that night?'

Ross again spent a minute studying the defendant, then said he'd never seen him before in his life.

'Mr Ross, was there anybody on the second tee? In other words, on the tee next to you, between you and the last tee?'

'No. I was the last one down that way.'

'There was no one either at the first or second tee the whole time you were there hitting golf balls, between eight-twenty-five and nine-fifteen p.m. on June 7th of this year?'

'That's right. Nobody.'

Farrell tried to smile, to convey the impression that this wasn't a problem. Glitsky didn't think he succeeded – he looked a couple of days older than God.

'Mr Ross,' he began. 'You've testified that you hit a large bucket of golf balls on the night in question, is that correct?'

'Yes.'

'And how many balls are in a large bucket?'

The witness seemed to be trying to visualize a bucket. He smiled, helpful. 'I'd say eighty or a hundred.'

'A hundred golf balls. And is it true that you were at your mat, hitting these hundred golf balls for fifty minutes – eight twenty-five until about nine-fifteen?'

Ross did the math and nodded. 'That's about right.'

'Would that be about one ball every thirty seconds?'

'About, yes.'

Farrell glanced over at the jury, including them. 'Perhaps some members of the jury aren't familiar with how things work at a driving range. Would you please describe in detail your actions to hit each golf ball?'

This seemed to strike Ross as mildly amusing, but he remained cooperative and friendly. 'I lean over, pick a ball out of the bucket, then either put it on a tee – they have a built-up rubber tee you can use – or lay it on the mat. Then I line up my shot, check my position, take a breath, relax, swing.'

Farrell seemed happy with this. 'And then you do this again, is that right? Do you do this every time you hit a ball?'

'Pretty close, I'd say. Yeah.'

'And would you say hitting a golf ball is a fairly intense activity? Does it take a lot of concentration?'

Ross laughed. 'It's like nothing else.'

'You're saying it
is
intense, then, aren't you?'

'Yes.'

'Would you say you get yourself into almost a trance-like state?'

'Objection. The witness is not an expert in trances, your honor.'

Jenkins was sustained, but Farrell was doing a good job drawing the picture. If Ross had hit a ball every thirty seconds, going through his routine on each ball, and he was concentrating deeply on every swing… 'Is it possible, Mr Ross, that someone could have been hitting balls a couple of mats away and, concentrating as you were, you might not have noticed?'

'No. It's not like you're not aware of what's around you.'