Invasion of Privacy (36 page)

"No objection," Nina said.

"The exhibits are admitted into evidence as numbered," Milne said, writing his own notes.

Collier said, "Now tell me, Mr. Evans—"

"Willie."

"Please read those notes to the jury."

"Objection. Best evidence rule," Nina said.

"Come on up," Milne said.

When she, Collier, and Milne had their heads together, Nina whispered, so the jury couldn’t hear, "The witness’s recollection is the best evidence, even if he uses the notes to refresh his recollection, so he should be testifying from memory to the extent he can do so."

Milne said to Collier, "She’s right, but she’s wrong. The best evidence is the videotape. The witness is the interpreter. Why aren’t you starting with that?"

"I thought we needed more of a foundation. Show the chain of custody is intact. Unless, of course, counsel is willing to stipulate—"

"That you haven’t tampered with the tape? So long as it’s the same tape I saw that day in your office, I’m not going to object," Nina said. "Let’s show it. I’ll reserve any objection."

"It will save a lot of time. Thanks," Collier said, casting her a puzzled look. She knew he was wondering why she didn’t use every technical tool to keep it out.

They went back to the counsel tables, and Collier had a whispered conference with a deputy. In a few moments a screen had been set up and the deputy had set up a projector in the aisle.

"The objection is sustained," Milne announced.

"At this time, the People would like to show the witness Exhibit 45, a videotape apparently made by Terry London after she was shot."

"No objection."

"Just a moment," Milne said as the lights dimmed. "Ladies and gentlemen of the jury, I am going to advise you that this tape is quite graphic and shows the physical effects on a human being of being shot. You are going to see quite a bit of blood. If at any time you feel unable to continue, please raise your hand and you will be escorted from the courtroom."

The jurors lifted a collective eyebrow. Mrs. Bourgogne took a deep breath and folded her hands in her lap, and several of the others followed suit.

"Proceed."

Collier motioned with his hand. Suddenly they were all in Terry’s lurid studio, with all the shocking sounds pouring out of the speaker. The stricken courtroom watched and listened to her gagging on her own blood, mouthing words with hideous resolve.

The tape ended. The jurors appeared to be in shock. Kurt said in a low voice, "God, it’s horrible, horrible!" He seemed to be in the grip of a great upheaval, as if he would jump up in a moment and say something he’d regret. Nina laid a restraining hand on his.

The video had yanked Nina from the game of trial strategy back into the reality of a human being whose life had ended in front of her. And yet—and yet— Terry London had died hating. She had to remember that.

"Is that the tape you saw?" Collier was saying to Evans, in a matter-of-fact voice.

"The same."

"And you watched it several times?"

"I did."

"Your notes, Exhibit 46, are a result of lip-reading the words of the victim?"

"Yes."

"Can you remember her exact words without reading your notes?"

"No."

"All right. Read your notes," Collier said.

Evans hesitated, looked over at Nina as if she intended to stop him.

"Go ahead, Willie," Collier said again.

"All right. This is according to my notes, which I took while I was watching the video over and over. She said, uh, ’It doesn’t hurt pause I’m dying pause It’s your fault Kurt pause oh oh I’m dying pause You blanky blanky pulled the trigger pause what a surprise pause The Angel of Death pause I’ll see you in hell.’ Then she trails off, saying ’oh oh oh.’ "

The courtroom had fallen silent. The words, read in the elderly man’s hollow voice, were so powerful, so chilling. One of the young woman jurors pressed her hand over her mouth.

Collier let the silence die away. Then he said, "When you say ’pause,’ what does that mean?"

"Oh, she didn’t say that. It’s just to make it clear that she paused between those words."

"And when you say ’blank’?"

" ’Blank’ means there’s a syllable I couldn’t catch. ’Blanky’ is two syllables."

"So, to make it a little easier, without the pauses and blanks, she said, ’It doesn’t hurt. I’m dying. It’s your fault, Kurt. Oh, oh. I’m dying. You pulled the trigger. What a surprise—the Angel of Death. Oh, oh, oh."

"Yes. Those are the words I saw."

"Thank you. Your witness."

"Good morning," Nina said.

"Good morning," Willie Evans said, flashing a sparkling pair of dentures.

"Your hearing is normal with the hearing aid?"

"Yes."

"How’s your eyesight?"

"My eyesight? About what you’d expect. Fine, so long as I wear my specs."

"That conference room you were sitting in—about how far were you from the TV monitor?"

"Oh, about as far away as you are from me."

"Good," Nina said. "Because I’d like to give you a little test like Mr. Hallowell did, only from the distance that you observed the TV monitor."

"Okay," Willie said. "Let me wipe my glasses." While he wiped them, Nina wrote something down on a card and passed it to Collier, then to the judge.

She mouthed some words, and Willie strained toward her.

"Again," he said. She did it again, and he said, "It’d be better if you came up close."

"Oh, but that would ruin my test," Nina said. "Tell the jury what I just said.’’

"Well, I missed a couple of words. You slurred them. "

"Did the woman on the tape slur words too, Willie?"

"Sure. In her condition, I would too. That’s why I had the blanky blanks."

"Okay, use blanky blanks if you need to," Nina said. "Want to see me say it one more time?"

"Sure."

She mouthed the words once more.

"The best I could tell," Willie said slowly, "you said, ’You might’s well of pulled the trigger.’ Say it again."

Nina sat there, made words with her lips.

" ’You might’s well of pulled the trigger,’ " Willie Evans said hesitantly. "That’s what I see."

Nina said, "Thank you," then got up and took the paper to the jury. As they passed it around, she said, looking at Mrs. Bourgogne, "Let the record show that I wrote on the paper, ’You might as well have pulled the trigger.’ "

"Like I said, you slurred it a little bit."

"And could the lady in the video have said ’might as well have’ where you wrote ’blanky blanky’ in your notes?" Nina said.

Evans picked his notes up again, adjusting his glasses as if they could help him divine what the blanks said. "I can’t tell right now," he said.

"As you sit here right now, is it possible that the lady said that sentence in the video? ’You might as well have pulled the trigger’?"

"Objection! Calls for speculation!" Collier said quickly.

"Withdrawn," Nina said. "I’ll tell you what, Willie. I need you to look at that bit of the tape one more time. Can you do that?"

"If you insist," Evans said.

The tape rolled again. This time Nina motioned for the deputy to stop it in the middle. Terry’s agonized face filled the screen. Evans craned his neck to see better.

"What did she say right there?" Nina asked.

"She said, ’You blanky blanky pulled the trigger.’ "

"Can you fill in the blanks, based on this viewing?"

" ’You might’s well’ve pulled the trigger,’ " Evans said. "Yes, it would fit right."

"I’m not asking you if it would fit, Willie. I’m asking you, is that what she said?"

"I don’t know. It’s an art, you see."

"Is that what she said?"

"Objection! Asked and answered! Calls for speculation."

"Overruled," Milne said unexpectedly.

"That could be what she said, all right. It could be. But you want to know for sure, is that it? I can’t tell you. I sure can’t. She said some words in between ’you’ and ’pulled.’ Four syllables. She was coughing. I can’t tell you."

"But it could have been, couldn’t it, Willie? ’You might as well have pulled the trigger’?"

"Objection! Argumentative! Request a sidebar conference! Your Honor ..."

Willie was nodding his head, saying, "It could be. Yep, it could."

"The answer will stand. Move on, counsel."

"All right," Nina said. "Was any portion of the video blown up or refined for you using computerized techniques, Willie?"

"No. But I watched the video at least ten times. I don’t think I would have—"

"Thank you. Did you see any still pictures from the video?"

"No. It wouldn’t have helped."

Nina went on to the other words in the video, especially the "Kurt." But Evans wouldn’t budge on that one, and stood up to her very well for the remainder of the morning. The lunch recess was coming up. Nina thought she had gotten everything she could, but she felt reluctant to let Evans go. She felt that Willie had another treasure for her, if she could just dive deep enough for it.

Finally, she said, "That sentence, ’I’ll see you in hell.’ The H is an aspirant that you can hear but not see, isn’t that right?"

"Right. But I got it easily from the context."

"What you actually saw was ’I’ll see you in L,’ isn’t that right?"

"Sure, but there is no L. Some say there’s no hell, either, of course." Some of the jurors smiled.

"How do you know there’s no L?" Nina said. "It could be an initial for a certain place, couldn’t it?"

"No. I don’t think so," Evans said. "She said ’hell.’ It was in her eyes, her expression, the context. She said ’hell.’ "

She wasn’t getting anywhere. And Mrs. Bourgogne yawned, a discreet little yawn, but a yawn. She gave up. "Thank you," she said. Sandy elbowed her.

"Just a moment, Your Honor," she said.

Sandy whispered, "Put him on the film the cop took when he pulled Kurt over."

Nina thought, said under her breath, "Wow!"

"Are you finished, counsel?"

"Just a few more questions, Your Honor. Willie, you say lip-reading is an art—"

"And I’m an artist," Willie said, grinning. "I see a lot of speech you wouldn’t believe. You want to know what the lady sitting next to you said just now?"

"No! But I guess you know what I want you to read for us now."

"That I do."

"With the court’s permission, I’d like to have Mr. Evans read the defendant’s lips on the tape made by Officer Joyce at the time the defendant was stopped on Pioneer Trail. People’s Exhibit 14."

"That’s completely improper, your Honor," Collier said. "It’s beyond the scope of direct examination. It’s cumulative. The witness has already demonstrated his competence. She’s using our expert as a defense expert."

Milne had followed the last interchange with the witness keenly. Now he said, "Your objections are technically correct, counsel. However, the request to show the witness that portion of the tape in which the defendant’s lips are moving is granted in the interests of justice, in the Court’s discretion."

Collier sat down, whispering in agitation to his paralegal. The deputy had already located the film.

Once more, the soundless film Officer Joyce had made was shown. Kurt’s cheek pressed against the window of the Pathfinder he had been driving. He was saying something.

"Again," Evans said. He had leaned forward toward the screen. The film appeared again.

"Okay," he said. "Those boys don’t take any chances. They got a good shot of his face. It’s nice and clear." The lights came up again.

Nina said, "What did the defendant say as he leaned against the car, Willie?"

"He said, ’Blood.’ Then he nodded, and he said, ’A shooting. I’ve been shot.’ "

Collier slammed his file down on the table. Nina had never seen him look so angry. "Objection!" he said. "The prosecution has been unfairly surprised—"

"To the sidebar, both counsel." Nina stood there and didn’t say a word, while Collier raised every argument he could to have the line of testimony stricken. Milne listened carefully, then said, "You should have had him do it yourself. He’s uncovered some shoddy police work you should have uncovered. Live with it."

"Anything further?" Milne said to Nina as Collier returned, shaking with anger, to his place.

"Nothing further, Your Honor."

"Mr. Hallowell? Rebuttal?"

Collier shook his head.

"The witness is excused. Thank you, sir."

"A pleasure." The bright-eyed retiree hopped nimbly from the stand.

"The court will recess until one-thirty," Milne said, and the jury filed down the center aisle.

The deputy was already approaching to take him away, when Kurt leaned toward Nina and Sandy and said, "I don’t know how you thought of that."

"Thank Sandy," Nina said. She smiled encouragingly. He clanked off.

37

"CALL FRANK FONTAINE."

The criminalist shuffled up and sat in the witness box. Still in his twenties, with sleek, straight black hair and tufted eyebrows, even in street clothes he had the disinfected air of one who wears a lab coat most of his life.

Collier asked a number of preliminary questions establishing that Fontaine was employed by the county sheriff’s office and was loaned out on a regular basis to help local police with homicide investigations.

"And it is correct that your services have been employed in collecting and examining physical evidence in connection with the deaths of both Theresa London and Tamara Sweet?"

"I’m going to interrupt right here," Judge Milne said, turning to the jury and putting his glasses down on his bench. "You have probably noticed that, although the defendant has been charged with only one homicide, that of Terry London, from time to time there is evidence coming in about another homicide, that of Tamara Sweet. I want to make it clear that the defendant is not charged with the murder of Tamara Sweet. The evidence concerning her death is to be considered by you only in regard to the question of motive for the murder of Terry London. I will instruct you further on this matter at a later time."

Nina watched Mrs. Bourgogne. As she had expected, it looked like the forewoman had not heard one word of Milne’s advisement. She was examining the short skirt of the juror next to her. The rest of the jurors looked lost too. She could only hope they would figure it out from the jury instructions, which they unfortunately wouldn’t hear until the close of evidence.

"Go ahead," Milne said, looking satisfied with himself

"Yes, sir. I was called out on both cases. The London case first."

"State the circumstances of your assignment to the London case."

"South Lake Tahoe police contacted the sheriff’s office in Placerville requesting a criminalist be sent out to a crime scene located at 8 Coyote Road at nine-fifteen A.M. on March thirty-first. I was already working at the sheriff’s substation at Tahoe, so I went directly to the crime scene."

"Does this report, marked as People’s Exhibit 12, summarize your activities at that date and time?" Nina thought about objecting to the report, which was hearsay, coming in, decided it might help, and said nothing.

"Yes. I remained there for several hours. I collected blood samples from the walls and floor and from the body of the decedent. I also collected fingerprints from a number of surfaces, including a Remington .30-06 rifle found at the scene, and took into custody two bullets and bullet casings."

"All right," Collier said. "Please summarize your findings with regard to each blood sample which has been marked as an exhibit and summarized in this chart."

Fontaine patiently and exhaustively detailed his findings. His lab methods were irreproachable. He used gloves for everything. He had kept orderly and legible notes. "Blood spatters here, and here," he said, pointing with his marker to the chart. "Found five feet one inch up on the wall near bullet one, are intermixed with tissue—"

"Human tissue?"

"Correct. Indicating that the tissue and blood spattered against the wall at the same time as the bullet."

"Did you compare the blood samples from the wall with the blood of the decedent?"

"The DNA tests indicate that all samples were from the decedent."

"You are aware of the coroner’s finding that the decedent was shot through the neck and that a large rear entry wound was present in the posterior portion of the neck?"

"Yes."

"What if anything can you conclude about the position of the decedent at the time the bullet was fired?"

Fontaine established that Terry London had been standing, close to and facing the rifle at the time she was shot, and that the rifle had been at an angle pointing upward.

"Indicating that the assailant was kneeling on the floor?"

"I’d have to defer to the coroner on that. Dr. Clauson."

"What about bullet two?"

"That bullet was taken from a different wall, facing the outer door. There was also blood and human tissue beside the bullet in the wall."

"Were you able to match the blood and tissue samples taken near bullet two with any other samples available to you?"

"The samples matched the defendant’s DNA sample provided to our office."

"Indicating what to you?"

"That bullet one struck Theresa London, and bullet two struck the defendant."

"Did you compare the striations and other evidence from firing the bullets with the Remington rifle you also took into custody?" The rifle was brought up.

Kurt wrote on his notepad, "If only I hadn’t left it with her."

"Yes. Both bullets were definitely fired from the Remington," Fontaine said, and proceeded to show the jury another chart with blowups of the bullets and test bullets he had fired for comparison. Even Nina could see the striations were almost exactly the same.

"Now, with regard to the fingerprints you took," Collier said, and almost three hours went by while Fontaine explained in mind-numbing detail how each fingerprint had been taken, labeled, and analyzed. Nina’s own fingerprint expert had spent hours going over the expected testimony with her. She checked off the testimony on her notes, point by point.

Finally Fontaine stated his conclusions. On the barrel of the rifle he had found complete prints from both Kurt and Terry, along with several unidentified partial prints, though the prints on the trigger had been smeared into unidentifiability. On the camera he had found only smeared and partial prints. The front doorknob was too smeared to make any identifications. All around the studio, Terry’s prints showed up as ghostly markers from the chemicals used to locate them. And there were other, unidentified prints. But no full prints on the rifle, except for Terry’s and Kurt’s.

"Okay, let’s talk now about the homicide investigation of remains found in a small cave near Fallen Leaf Lake."

"Right."

"Your Honor, at this time we intend to offer the evidence discussed last week," Collier said, cuing the judge.

"Very well," Milne said. He turned to the jury and read from his notes, "At this time I am going to instruct you regarding certain evidence to be introduced in this trial. The evidence is all statements and physical evidence that may be introduced regarding the death of another person, named Tamara Sweet. I am instructing you that the defendant is not charged with the death of Tamara Sweet. You will not be asked to decide whether he should be convicted of any crime in connection to her death. However, you may consider evidence that the defendant caused the death of Tamara Sweet in considering what if any motive the defendant may have had to murder Terry London."

Mrs. Bourgogne listened politely. She could have been following Milne perfectly, or she could have been thinking about buying a new car. There was no way to tell.

"You may proceed, counsel."

Collier said, "Were you called to assist in the investigation of bones found near Fallen Leaf Lake on June twenty-fourth?"

"Correct. Remains eventually identified as those of Tamara Sweet." Fontaine was pulling out a new set of notes. He detailed how he had been called to the scene, and listed the evidence he had found. Photographs were passed around. One human skeleton makes a large pile of bones. Nina would never forget the sight.

"There was still some rotted blue cloth, probably clothing, under the body. Her ... wrist"—he intentionally chose the common word over the scientific one—"still, ah, carried a watch on it." He drew out the watch carefully from the evidence bag. "A Timex," he said. "But it hadn’t kept on tickin’." He smiled at his little joke, but no one else did. "The mother, Mrs. Sweet, recognized the Timex," he added. "Dental records confirmed the tentative I.D."

"And did you assist in a search of the surrounding area to try to ascertain where the death actually occurred?"

"Yes, and I received and read supplemental reports filed by the deputies. But it had been too many years. The cave was close to the trail that leads down from the ranger station at Angora Ridge to Fallen Leaf Lake, so I would think she was perhaps killed on the path—"

"Objection. Speculation."

"Sustained. The jury will disregard the last sentence of the answer to the last question."

"Mr. Fontaine, were you able to ascertain the source of the bullet found in Tamara Sweet’s body?"

"Yes, we were. Your office suggested that we compare that bullet to the ones we recovered in the other homicide. Our tests showed it to be from the same Remington rifle that killed Theresa London. Registered, as I previously testified, to the defendant."

Collier kept Fontaine on the stand until the mid-afternoon break. When she finally had her chance, Nina said, "Just a few points, Mr. Fontaine." Keep it simple, she thought to herself. Hit hard and run.

"Regarding the two bullets found at the London studio ..."

"Uh-huh."

"You labeled them bullet one and bullet two. Do those labels indicate your opinion as to which bullet was fired first?"

"No, just the order in which they were discovered."

"So the defendant could have been shot first, and then the victim?"

"Well, I am sure the coroner will tell you the victim was not able to shoot after being shot in the neck. The wound was too grievous."

"Based on the evidence you have, could the victim have shot the defendant first, and then someone besides the defendant have shot the victim?" Nina said.

"No," Fontaine said. "There were only the two sets of prints on the gun."

"That’s not quite true, is it? Don’t you want to be precise here? Isn’t it true that there were several indistinct prints you could not identify on the gun?"

"Yes, but they were most likely made by the same people who left the full prints we did identify," Fontaine said.

"Isn’t that just a sloppy assumption, Mr. Fontaine? Isn’t it also possible that one or more of the partial prints was made by a third person? Or that the shooter wore gloves?"

"We’ll never know," Fontaine said.

"So you are guessing?"

"I’m stating my opinion."

"But your opinion is baseless, isn’t it? You’re clutching that microphone right now. Your prints are on it, along with many other people’s prints, right?"

"I suppose. I don’t know when they clean it."

"Suppose they haven’t cleaned it in twelve years," Nina said. "Or let me put it this way. Suppose they don’t clean it for twelve years—it gets put in a closet after today and not used again. Tell me, would your prints still be on the microphone?"

"If they weren’t overlaid by the janitor," Fontaine said.

"Okay. Now let’s suppose the defendant here touched that rifle twelve years ago, and didn’t touch it since, and no other prints were overlaid on it. Couldn’t his print still be there?"

Fontaine stroked his chin. He didn’t want to answer.

"Well?"

"With our current advanced methods, a print could show up that was that old," he said. "It would be very faint, but faintness also can occur when the grip of the fingers is very light."

"Do you have any way of dating exactly when the fingerprints you found on the gun barrel were made?"

"I suppose not. One could overlay the other, and that would give you the fact that the overlying print came second, but it wouldn’t tell you when the first print was made."

"So let’s be very clear about this. Based on all your observations, Mr. Fontaine, regarding the fingerprints as shown on your chart, could Mr. Scott’s prints have been made as long as twelve years ago?"

"Objection. Vague. Calls for speculation."

"Rephrase the question, counsel," Milne said.

"Mr. Fontaine," Nina said doggedly. "Based on all your observations at the crime scene and analyzing all the evidence you obtained, and based on your advanced training in forensic science and your experience in law enforcement and criminology, is it inconsistent with any of the evidence that the defendant’s fingerprints on the gun were placed there some months or years prior to the death of Ms. London?"

"Same objection."

"Overruled."

"Not inconsistent," Mr. Fontaine said.

"Did you, or anyone in your office, perform a fluorescein test—which would have indicated whether or not he had recently used a firearm—on the hands of the defendant, Kurt Scott?"

She already knew the answer, of course, just as she had known he would ask the question. As expected, he frowned, then squirmed, a perfectionist caught in a glaring oversight. He read through his notes, looking for a way out, and finally had to answer. "Unfortunately, my understanding is that the fluorescein test was not performed on the defendant."

"Wouldn’t it be standard operating procedure to perform such a test on a shooting suspect?"

"Yes. But we’re a small department up here. We do our best. Somehow it was overlooked."

"Isn’t it true that if the test was performed early enough after the arrest, the police department would have known if Kurt Scott had fired a weapon within the previous twenty-four hours?"

"Maybe even longer."

"So he could have been completely vindicated, if the fluorescein test had been negative?"

"I’d say it’s lucky for the defendant we didn’t perform the test. It would have nailed him, if it was positive."

"I see. We’re left with our doubts," Nina said, as if to herself.

"Objection!"

Nina said hastily, "Withdrawn, Your Honor. So ... you have no evidence that Kurt Scott handled or shot the rifle on the night of Terry London’s death?"

"No, but—"

"Thank you," Nina said. She sat down.

Jerry Kettrick stepped up to the stand, dressed in baggy jeans and a wide tie, his rubbery lips spread wide as if to say, "Let me entertain you."

Jerry was a very important witness. He was getting an uncalled-for extra fifteen minutes of fame. He understood that. Today he looked like Pete Townsend giving good interview, or Alice Cooper, dignified and polite in a black-eyeliner, ravaged-albino kind of way. His tufty beard had been trimmed for his legal debut and a rubber band held most of his scraggly white hair back, but the burnt-out look in his eyes and the length of the white hair flowing down his back told on him. He was the quintessential aging hippie, Nina thought, the kind who doesn’t move on to politics or the Sierra Club or Buddhism, but just gets older, wondering where the revolution went.