If You Only Knew (26 page)

CHAPTER 65

THE SECRETARY FOR DON'S
business answered questions next. Toni Brosseau spoke of a simple man who never swore around the office and never mentioned anything of a sexual nature. He pretty much kept to himself. Toni also said she was “shocked” to learn from Billie Jean that Don's niece, whom she referred to as “Nicole,” was a man. She learned this in November, when Billie Jean showed up at the office to collect some of her late husband's things.

When asked about her boss's health issues, Toni spoke of Don Rogers's “rectal bleeding.” She said it was Billie Jean who told her about it. After suggesting Don should go see a doctor about the condition, Billie Jean told Toni it was difficult to get him to go and she had basically given up on the prospect.

Quite surprising, after those few questions and answers, the APA said he was done, leaving many in the room to wonder once again why the witness had even been called. Toni had offered nothing to further the PO's case against Billie Jean. If anything, she said the Rogers couple had a fairly normal marriage, as far as she could tell.

* * *

Piszczatowski kept his cross simple. He set it up with questions so that Toni talked about Don being a private person. Yet, in speaking of what she did for Don throughout the workday, she also explained that she had “balanced” his checkbook. This led Piszczatowski to ask a fair question regarding Don ever complaining to her about the amount of money he had paid on his Visa bills. Piszczatowski knew it was going to be the PO's contention that part of the reason why Billie Jean wanted to rid herself of Don Rogers was the enormous debt she had amassed and how pissed off Don was because of it.

“Mr. Rogers kept his personal business to himself,” Toni said.

“So he never really complained to you?”

“Not really.”

They talked about Don's habits at work and she admitted that she'd found empty vodka bottles in the Dumpster and realized he was drinking. Seeing Don every day, however, she didn't notice a man who was deteriorating over the years from poor health and excessive drinking. But when she met Don's brother at his funeral, a guy older than Don, Toni then suddenly realized how bad Don Rogers looked and how far his health had spiraled downward.

“His brother is older, and his brother looked like Mr. Rogers did, you know,
fifteen
years ago.”

From there they discussed how Don looked during the week before his death. Toni did not notice any marks or bruises on his face, she explained. And she would have, because he often gave her tasks to do that required him walking to her desk and handing her paperwork. This brought him up close to her.

“If he would have had any real injury to his face, I would have noticed it,” she testified.

As they talked about Don's funeral and the arrangements, it sounded as though Billie Jean had engaged her late husband's secretary to help her out, ordering flowers, delaying things so his family could make it into town, calling the funeral home. The way Toni described her relationship with the widow during this period was akin to a wife and her husband's secretary working hard together to bury a man they both loved. There was no animosity from Billie Jean, Toni noticed. There was no anger from Billie Jean projected toward her dead husband. On top of that, after Don's death, Toni said she had taken on “more responsibility” at the machine shop and because of that Don Kather gave her a raise. Billie Jean was told about it, because she now had taken over for Don.

And guess what? She “was very nice about it.”

* * *

At 2:47
P.M.
, the state called Dr. Ljubisa Juvan Dragovic, the chief medical examiner. This was an important witness for the APA—maybe the most important of the trial. Dragovic would either seal the deal on an acquittal by not explaining why the ME's office changed its mind on the death certificate, or he would bring jurors back into the state's fold and convince them Don Rogers had, in fact, been murdered.

After listing the doctor's credentials, the APA asked the ME if he could explain his actual position within the office.

“I work in the capacity of chief medical examiner, chief forensic pathologist for the County of Oakland.”

Dragovic was the top dog; what he said was gospel, the final word on death, countywide. He had been “qualified” as an expert witness in hundreds of trial cases, he told the court. He was an associate professor at a local university. He had published scores of articles on pathology over the years. The guy's credibility, on paper, was rock solid.

As he testified, Dragovic said he had not gotten involved in Don Rogers's death on the day his body had been brought in. That was Ortiz-Reyes, a pathologist he oversaw. Dragovic had not deeply immersed himself in Don's case until the TPD had called to ask him to take another look because of some new information.

And “after reviewing it,” he explained, “together with Dr. [Ortiz-Reyes], I decided that we had to proceed to reevaluate everything in conjunction with the activities that the Troy Police Department was carrying out.”

The APA asked him to explain why the TPD had thought the case needed further examination and what had convinced Dragovic there might have been something going on besides natural death. This was the question of the trial, thus far. A lot rode on what the doctor would say.

He spoke of “suspicion that the death . . . was not an accidental death or natural death. That it was a—that it was foul play involved and they had some suspects and that they were progressing along the line, investigating all that information, and I encouraged them to continue doing that and I evaluated our end of things.”

He was then asked what he found after evaluating the files.

“Significant discrepancies” was part of his answer. Most of what he found, Dragovic explained, he uncovered within the “Polaroid photographs” from the death scene and pathologist's initial examination. Once he realized that Don's body had been cremated, he knew that they could not have him exhumed, which they certainly would have done after a call from law enforcement, like that one he received from Troy.

Regarding his office giving a permit, or permission, for the body to be cremated, the way Dragovic framed the situation it made perfect sense: requests of all types came across his desk every day, he had to look at them, decide what to sign off on, what to talk to his staff about, and how to proceed, deciding if anything needed further examination or evaluation. With Don's case, it was simple. At the time, his pathologist had given a cause and manner of death. So, as his boss, he signed off on the cremation permit. This sort of thing was a normal course of any business day. There was nothing that led anyone to believe—at that time, “based on the information that existed”—that they should not okay the permit. The case had gone through the proper channels, via the system the county had in place, and was approved, the doctor told jurors. Most of this was done, he further stated, “by our clerical staff.” It was only brought to the ME's specific attention or to his staff if there was a question. Many requests are done with an “automatic approval.”

A rubber stamp.

Happened every day.

“So you would not have personally reviewed this case request for cremation?”

“No.”

The system
had approved Don's cremation, essentially—not an actual medical examiner. “Unless,” he said, “there was a problem or issue that is brought to my attention, but not routinely. I saw that”—the issues summoned by the TPD—“only when I started looking into the file.”

Those Polaroid photos.

Dragovic then talked about how after he began to look intensely into Don's death and studied the toxicology reports, the photos taken by the pathologist, the remainder of the file, that “it looked a little bit odd and a little bit different, and looking at everything together, things did not add up.”

The more information he digested, the more he felt he needed to look deeper into it all.

The way the doctor painted the series of events leading up to what became a murder investigation indicated that he was doing his job the way in which he had been trained, the way in which he had done it in hundreds of cases before this. However, as he followed procedure and policy, “things began to make less and less sense,” and so he raised a hand and “encouraged” everyone on his staff, including himself, “to dig more into this matter so that we can come to the bottom of it.”

Jurors were clearly not bored or impatient with this testimony. The ME was putting the case into a broader sense of facts as they unfolded in real time within the ME's office. He was explaining, not in a defensive manner, but professionally, how everyone involved came to the conclusion that Don Rogers was murdered.

Had the tables turned for the PO? Had the APA finally won a round?

Piszczatowski, who vigorously scribbled notes and spoke with his co-counsel as Dragovic spoke (that is, when he was not objecting), did not seem at all worried or concerned about the ME's testimony—probably because Piszczatowski knew that at some point over the next day or so, he was going to get a crack at him.

CHAPTER 66

SKRZYNSKI AND DR. DRAGOVIC
discussed the particulars of the early heart attack claim, the acute alcohol intoxication diagnosis and a final judgment that included asphyxiation by smothering. It took the remainder of the afternoon for the APA to get through it all. In the end, Dragovic had been a superb witness for the APA. He spoke of how important the crime scene photographs had been in his determination after he had immersed himself in the case and had “all” of the information in front of him.

“Position of the body” came up again, and it was something Billie Jean and her attorneys needed to knock down. They could ignore the significance of this seemingly irrelevant fact, but it would not prove sensible to do so.

“Comfortably resting,” Dragovic noted, while staring at the photos of Don. This stood out to him, he told the APA. Don seemed to be “placed there on the hard tile floor.” It didn't appear he had fallen. Or had passed out drunk. This was important, along with how Don's legs had been crossed at the ankles, Danny Chahine's accusations, the abrasions, along with several other minor factors, Dragovic said with authority, that “were more
conflicting
than matching.”

It's funny how when an expert looks at a crime scene under a new light, or changes the focus of his observations, predictable appearances can have different meanings. That was what the good doctor meant here: it all added up for him, once he had answered a few unanswered questions about Don's death.

The
aha
moment, in other words, came late.

But it certainly came.

They discussed the position of Don's body for several more moments, before moving on to the crime scene and what truly made Dragovic take notice.

“Well, the scene was very
neat,
” he told jurors, “for a person that is heavily intoxicated.” He mentioned those crossed legs yet again. “That appearance to me was unreal and still is. This is unreal.”

The chair had been tipped over, the doctor suggested, “in such a way that is—it just does not make any sense of this body falling out of this chair. . . .”

One could argue that his “opinion” was mere speculation, mere conjecture and not at all a fact in this case. The doctor was qualified, certainly, to make this judgment, but in the end, who could know how a chair fell when a drunk passed out and landed on the floor? Moreover, had anyone done any tests? Had a crime scene reconstruction lab conducted any tests? Or was this all based on Dragovic's personal and professional opinion and experience?

They talked about this chair for perhaps too long, which only drew more attention to it. Then the APA asked about manner and cause of death—the differences—and how science played into his final opinion.

“People don't die in a vacuum,” Dragovic explained, which sounded rather strange just left out there hanging. “People die under circumstances, and those circumstances define the manner of death—the manner of death being how death comes upon a person. . . .”

Dragovic called his relationship with law enforcement a “two-way street,” one in which he and the police often used to connect on cases.

It was “a process,” he said after being asked.

Piszczatowski leaned over and whispered something to his co-counsel. The man nodded his head in agreement. Billie Jean looked on, clearly aggravated—and why shouldn't she be?—by the doctor's testimony.

The APA asked the doctor to break down, step-by-step, the fall Don allegedly took. Then:

The alcohol levels in Don's system.

The alcohol numbers of a person that consumed” a lot.

How “alcoholics” had higher numbers than social drinkers.

“Hypothesized” X-ray photos of Don and what they “might” have said.

How the fact that Don did not show any signs of major injury to the back of his skull likely meant he had not fallen.

“Pinpoint bleeds on the eyelids” and what they mean: asphyxiation—but not all the time.

Pinpoint bleeds were not present in every smothering case the doctor said he had seen. Plus, pinpoint bleeds are generally “the hallmark of manual,
ligature
strangulation. . . .”

The image here was that Don was passed out drunk. His killer(s) had placed him on the floor and then poured additional straight booze down his throat, which might have put him into an alcohol-induced coma, so he could not react when he was deprived of oxygen. If he had been conscious, this would have caused those little blood vessels in his eyes and eyelids to burst. It was a well-composed— and perhaps rehearsed—argument, peddled fairly cleanly and somewhat persuasively by the doctor.

Dragovic was convinced, he said over and over, that asphyxia by smothering had killed Don. Nothing was going to sway him from this opinion. And for the next twenty minutes, they discussed it, piece by piece. Near the end of the doctor's direct testimony, the APA asked if the “terminal fall”—a strange way to phrase it—that Don took “could have caused” the “abrasions on the lip and nose”?

“No, sir,” Dragovic said emphatically.

“Why not?”

“Because for a terminal fall, you'd have a solid bruise . . . covering the one place that your face, if you go on your face, there will be a plane and you can actually take a piece of glass, apply this to someone's face and reenact exactly how much of the surface got into contact on those exposed parts of the face, and it wouldn't be the form of these light scrapes.” It was manifest, the doctor added, “in the form of
bruising.
” He also noted how the skin above the lip was more sensitive to this type of injury.

That comment sparked another interrogation by the APA into the bruising and exactly where the doctor had found the bruises on Don's face.

Whenever it felt as though the APA was wrapping things up, he found another opening and asked the doctor about it. The testimony, by then, was getting technical and quite fatiguing; it seemed as though they were going over the same issues. The doctor's explanations became long and exhausting.

Dragovic brought up “burking” at one point. This is the act of smothering without leaving any markings on the body, whereby a killer would sit on the victim's chest, using his or her weight to hold him down, and then place his or her hands over the victim's mouth and nose, thus cutting off not only the victim's oxygen but the act itself of breathing by moving the chest up and down. It is said that burking leaves no trace of murder.

Dragovic called the murder of Don Rogers not “perfect burking,” but “the closest one gets to burking.”

And again, instead of leaving it there, which might have been more powerful, the APA asked, “So this [was] kind of burking?”

“Kind of burking, yes.”

With that, Billie Jean shook her head, as did her attorneys.

Is this the same as, like,
kind of
murder?

No doubt Piszczatowski was thinking it either
was
or
wasn't.
Any gray area in between was where reasonable doubt lived.

Piszczatowski stared at the APA with an almost
are-you-freakin'-done-yet
look of annoyance.

By the end of this final conversation between the APA and doctor, Dragovic had actually agreed—without visiting the crime scene or examining the body, only by looking at it in photos, mind you—with the APA when he said that there was “nothing on Mr. Rogers's body or in the scene that you see that is inconsistent with your diagnosis of asphyxia by smothering. . . .”

Dragovic, jurors knew, had not once examined Don's body while it was at the morgue. Everything he had done he did after the fact. This was a bold statement by the APA and the doctor—one that would be most certainly challenged.

The APA's final question was even bolder; he wanted to know if there was “any doubt” in the doctor's mind about the “medical manner of death being homicide” in this case.

Dragovic said that there was not one “doubt” about it. Don was “smothered by someone else.”

And that someone else was his wife, the APA implied before handing Dragovic over to what appeared to be a defense attorney chomping at the bit to get going on this witness.