Judgment Calls (17 page)

“Alright,” Lesh said. “Now, before I call a jury panel up here, let’s see if my rulings on these motions change anything about whether we need to have a trial. I assume from the fact that we’re here that the two of you have had plea negotiations on this case by now.”

Lisa and I sat silently.

“Nothing?” the judge asked. He told the court reporter to go off the record. “What the hell are you two doing? Now, before I say what I’m about to say, Mr. Derringer, I want you to understand that my comments have nothing to do with my opinion about your guilt. I haven’t heard the evidence, so I don’t have an opinion at this point. And, in any event,

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that’s going to be a decision for the jury, not me. But I’ve been involved in a lot of trials, both as a lawyer and a judge. And I’ve read the papers filed in this case, and I have some idea of what’s coming around the corner.”

He turned his attention back to me and Lisa. “I’ll be frank with both of you. From what I’ve read in the motions and the warrants, Ms. Kincaid, you’ve charged the hell out of this case. Frankly, I’m surprised you chose to present this to the grand jury as an attempted murder.”

Lisa was never one to pass up an opportunity to ingratiate herself with the court. She jumped in to thank Lesh for telling me what she’d been saying all along.

He stopped her cold. “Not so fast, there, Ms. Lopez. I’ve got even more for you. You may not have noticed, but your client’s alibi rests on the word of his convicted felon brother who by all appearances has lied for the defendant before. Your client also is on parole for an offense that is strikingly similar to the one for which he now stands trial. I hope you have advised him that he is gambling in a very big way. I can tell you right now, if he loses, he won’t be looking at a year in the pen this time. He’s looking at a very long sentence, with a parole board that will remember that he burned them the last time.”

Having reminded both of us of our weaknesses, Judge Lesh wanted to hear our offers. I offered to dismiss the attempted murder and other charges if Derringer would plead to the kidnapping and sodomy, with a ten-year minimum sentence. I offered to reduce that to seven if he’d flip on Suspect Number Two. Lisa wouldn’t hear it. She wanted Assault Three with eighteen months no cooperation. Lesh gave up when it became clear we’d never agree, and the clerk called up a jury panel.

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Picking a jury can be the most difficult part of a trial. Most people can be convinced of just about anything, and one dud can sway enough of these sheep to yield very bad results.

One of my first trials in Oregon was a slam-dunk controlled buy. An undercover used marked money for the drug buy; then the surveillance officers who watched the deal followed the suspect, keeping track of him by his distinctive two-tone spectator loafers. When the defendant was popped in the men’s room of a nearby restaurant, the marked drug money was in his pocket. The dummy blew any theoretical chance at an acquittal when he showed up on the second day of the trial wearing the same two-tone spectator loafers that every police witness mentioned the previous day when describing the suspect.

After three days of deliberations, the jury hung, 7 to 5, in favor of guilt. The judge was so incredulous that he broke from the usual procedure and permitted the lawyers to question the jurors before they were dismissed. Turns out that one particularly headstrong guy convinced four of the others that the defendant must be innocent, because no one would be stupid enough to wear those shoes to court under the circumstances. The four sheep found it difficult to defend the decision, saying repeatedly, “We just don’t think he did it.” When I asked the leader about the marked drug money, all he could say was, “Now, that was a problem for him. I’ll admit that.” The seven sane jurors looked like their heads were going to explode after spending three days trying to argue with that kind of logic.

My case against Derringer was strong, but I needed to weed out any jurors who might cut him loose on the most

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serious charges, thinking that the victim deserved what she got. In the end, Lisa bumped two retired women who looked at Derringer like they were already afraid of him. I bumped two men with previous assault arrests and two who said they were surprised that a person could be charged with raping a prostitute. The worse of the two said it sounded more like theft, then suppressed a chuckle. I was glad he said it, not only because I knew to bump him but also because I saw one woman flinch in revulsion. Lisa apparently didn’t see it, because she left her on the panel. A definite keeper for me. By the end of the day, we had picked our jury.

Deciding that personal safety required me to navigate even further into the twenty-first century, I bit the bullet and had a top-of-the-line home security system installed that night. I could tell by the way the installation guy eyed my trashed house that he didn’t think I’d be needing it. I didn’t bother explaining.

Just knowing that the system was there helped. I fell asleep the minute I hit the bed and didn’t wake until the alarm clock advised me it was time to go to work. At least I’d be rested for the second day of trial.

I walked into Lesh’s courtroom prepared for my opening statement. On the way in, I checked to make sure that my witnesses were there: Mike, the EMTs, and the kids who found Kendra were subpoenaed for the morning. I figured there was no way we’d get through opening statements and all those witnesses before lunch.

I had decided not to ask Kendra to attend the entire trial. Her mother could not miss enough work to accompany her, and I thought that the sight of Kendra sitting without a parent would feed the impression that she was something other than a victimized child.

Fortunately, Derringer wasn’t going to be getting an upper hand in the sympathy arena by packing the halls with loving supporters. The only people in the spectator seats were a few curious court-watchers and Dan Manning, a young reporter for the Oregonian who was always trying to branch out beyond his normal neighborhood beat by picking up crime stories that otherwise wouldn’t get covered.

I liked Dan. He tried to give potential future sources people like me good press as long as he could do it and still give the straight story. He stopped me as I was walking in. “Do you have a few seconds for a quote? I’m thinking about using this trial as a centerpiece for a larger special-interest article about the dangers faced by teen prostitutes. You know, hoping to ride the coattails of the renewed interest about the Jamie Zimmerman murder, now that Taylor’s back in the news.”

I prefaced my answer by explaining that the Rules of Professional Responsibility prohibit prosecutors from going very far in their statements to the media. I was relieved when he nodded; he knew the drill. For a prosecutor, media interviews are like navigating a minefield. Stay too safe within the lines, and your typical nitwit reporter looking for a story will make it sound like you don’t believe in your case. Go too far, and you’re looking at sanctions from the court and the bar.

I told Dan I’d be happy to talk to him if he would assure me that he wasn’t going to print Kendra’s name. He agreed, reminding me that the Oregonian was one of the few papers that had not abandoned its policy of withholding information about the victims of sexual offenses after the William

Kennedy Smith rape allegation triggered sensationalist paper-selling headlines.

I gave Dan a few canned quotes about the trial and also plugged DVD as an aggressive, proactive unit working to prevent girls from entering the world of prostitution and to arrest and prosecute the adults who lure them into it.

When it was time for opening statements, I delivered mine from memory, without notes.

“Good morning. In case you don’t remember, my name is Samantha Kincaid, and I’m a deputy district attorney for Multnomah County. I represent the State of Oregon.

“I want to start this morning by thanking you for your candor when we spoke yesterday during the jury selection process. It is because of your honesty during that process that the twelve of you have been chosen to hear this case. And I am thanking you ahead of time, because I think you will find the next week or so to be a difficult one. It will be difficult because the process changes now. We don’t get to talk to each other like normal people, the way we did yesterday. You are now jurors, and the rules of our trial system require a formality unlike any other setting in our society. You are entrusted with a profoundly important decision, but the rules require you to sit here passively, listening, without asking questions or even talking to one another about the case until all the evidence is closed and you begin your deliberations. I do not envy your task, but I promise to do my best to anticipate the issues you might find most important and to focus on them.

“But I think you will find this week to be difficult for reasons other than those faced by any person fulfilling a citizen’s responsibilities as a juror. You face an especially daunting task because this particular trial will force you to focus on the sadistic acts of the man sitting over here, Frank Derringer.”

I had their attention now. A few of them shifted in their chairs to move forward.

“You are going to hear facts about what Frank Derringer did to a thirteen-year-old girl named Kendra Martin the kind of facts that most people go a lifetime without ever having to contemplate. This man” I pointed to Derringer “pulled Kendra Martin from the street, dragged her into a car driven by an accomplice, and drove her to an isolated parking lot with every intention of beating and raping her. And as he brutalized her face and body with his fists and forced her legs apart to take him, something happened that made Frank Derringer’s already horrific violence escalate and turned this crime into something I wish I didn’t have to tell you about.

“At the pivotal moment when Kendra Martin thought the defendant was going to force himself inside of her, the defendant found himself flaccid, unable to fulfill his intentions. So Frank Derringer found a different way to take out his rage against the scared thirteen-year-old girl who was pinned beneath him in the backseat of his car. He took a stick and rammed it repeatedly between Kendra Martin’s buttocks. From the degree of tearing, doctors estimate that the stick was at least an inch and a half in diameter. They know it was made out of wood, because they found splinters inside Kendra Martin’s anus. And when Kendra lay bleeding from the defendant’s torture, Frank Derringer still didn’t stop.

“The defendant told his accomplice to do what he couldn’t do himself and then watched while this second man raped and then sodomized Kendra Martin, now barely conscious. And when the whole thing was over, these two men drove

Kendra to the Columbia Gorge and dumped her like a bag of garbage to die.

“You’re going to learn that Kendra Martin hasn’t lived the kind of life that most thirteen-year-old girls get to live. She’s going to get on the witness stand and tell you very personal facts about her home life and her background. And she’ll tell you that she’s not proud to admit that when the defendant kidnaped, raped, and sodomized her and then left her to die, she was a runaway girl engaging in prostitution to support a growing heroin addiction. She’ll also tell you that she initially tried to tell the police what Frank Derringer did to her without admitting her own troubles.

“But I believe that when she explains to you why she initially withheld some information from police, you will understand. You will also understand, and you’ll determine from the rest of the evidence and from your own common sense, that Kendra Martin did not deserve what Frank Derringer did to her. She never consented to be tortured and left to die near Multnomah Falls.

“You will hear evidence that Frank Derringer plotted this crime in advance and then took extraordinary steps to avoid detection.” I gave them a detailed preview of the evidence that Derringer had shaved his pubic hair during the days before the attack and then painted his car and replaced its interior the next day.

“You’ll also hear from Detective Mike Calabrese. He’ll tell you that he found Kendra Martin’s purse in a trash can about a mile away from where the defendant and his accomplice dumped Kendra to die. An expert in fingerprint technology with years of training in this type of evidence will testify that a fingerprint left on the strap of the purse belongs to Frank Derringer.”

I paused and looked across at the face of each juror to make sure that the jury realized the impact of the fingerprint evidence.

“After you’ve heard from all these witnesses and experts, I’ll have a chance to talk to you once again. At that time, I think you’ll find that the State’s evidence is going to measure up to the strong case I’ve outlined for you here. And based on that evidence, I’m going to ask you to return verdicts of guilty on all counts. I’m confident that once you hear the horrendous facts of this case, and the overwhelming evidence establishing Frank Derringer’s culpability, returning that verdict will be the easiest part of this entire trial for you.”

Legal strategists say that jurors make up their minds about a case by the end of opening statements. At the end of mine, I felt like I had them. I took my seat at the state’s counsel table, closest to the jury box.

When Lesh nodded to Lopez to indicate she should proceed, she rose from her chair, put her hands on Derringer’s shoulders, and said, “Members of the jury, Frank Derringer would like nothing more than for you to hear the truth about what happened in this case right now, because he is an innocent man who wants to go home. But, your honor, as his attorney, I have decided to withhold my opening statement until the State has put on its case.”

Lisa apparently had even less confidence in her case than I thought. I wondered if she had reserved opening to delay locking in her defense until she knew for certain what we had.

But Lisa had gone a little further than that, insisting that Derringer was innocent. Most attorneys go out of their way not to use that word; all they really want to hear is “not guilty,” and in a courtroom “not guilty” is a far cry from innocence. If I wanted to be a stickler, I could argue that she made an opening statement by referring to the merits of the case. But what did I care? Better for me to put on a one sided show.