Panther's Prey
Authors: Lachlan Smith
Bear Is Broken
Lion Plays Rough
Fox Is Framed
A Leo Maxwell Mystery
LACHLAN SMITH
Copyright © 2016 by Lachlan Smith
Cover design and illustration by Carlos Beltrán
Author photograph by Sarah Moody
Panther's Prey cover credits
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Published simultaneously in Canada
Printed in the United States of America
FIRST EDITION
ISBN 978-0-8021-2503-3
eISBN 978-0-8021-8992-9
The Mysterious Press
an imprint of Grove Atlantic
154 West 14th Street
New York, NY 10011
Distributed by Publishers Group West
16 17 18 19 10 9 8 7 6 5 4 3 2 1
“Not everyone who confesses is guilty. This is the case of a man who confessed to a crime he didn't commit.”
I turned and indicated my client, Randall Rodriguez, behind me at the defense table in a borrowed suit. Next to him sat my cocounsel, Jordan Walker.
I went on, addressing the jury. “After a childhood filled with unspeakable abuse, Mr. Rodriguez has spent his adult life on the street, in mental hospitals, or in jail. Three times in the past five years he's appeared at one of the police stations here in San Francisco and asked to be arrested, just as he did in this case. Each confession involved a well-publicized crime: two murders and a rape. Each time, the police proved he couldn't have committed it.
“But that was before he crossed paths with police detective Harold Cole.”
I drew the fourteen jurors' attention to Cole, a balding, middle-aged man sitting at the DA's table beside the assistant district attorney.
Medicated now, Randall was passive before his fate. The judge had determined his confession was voluntary, and she'd also found him competent to stand trial and assist in his defense. Jordan had worked wonders with him, but our client's “assistance” was more theoretical possibility than practical fact. One of his diagnoses was autism, another schizophrenia. His raw intelligence was remarkable, however. For instance, he'd begged me to clip the chess problems from the
Chronicle
and bring them to our meetings. Before we could discuss the case, he'd sit down with a chess set he'd constructed from scraps of paper. He began from the opening position and played a realistic game, complete with formal openings and sophisticated tactics, his fat, scarred fingers moving at lightning speed, delicately sliding certain slips of paper and plucking others up, until after five or six minutes the pieces arrived in the formation of the problem. Then, rather than solve the puzzle, he'd move to the next clipping and start again. Wanting the jury to see a homeless man incapable of planning or foresight, I'd instructed Randall to avoid chessboards in jail.
Jordan and I'd been prepping the case for weeks, day and night. It was August. Janelle Fitzpatrick had been raped in January, one of the first cases I was assigned when I came to work at the PD's office. When Jordan had arrived for her six-month stint as a volunteer attorney, I'd enlisted her help, asking her to interview the cops who'd investigated Rodriguez's confessions in the past. Two years younger than I was, she was a slight five four, with red-blond hair, a distance runner. She could get in someone's face when needed, but was accustomed to relying on her more than considerable charm. Most importantly, she was a worker, willing to put in the hours. I hadn't expected her to succeed, but she'd persuaded those ordinarily closemouthed detectives to cross the so-called blue line. Based on this accomplishment, I'd asked her to help me try the case.
After I'd laid out our defense in my opening statement, the grizzled DA, Mark Saenz, called his first witness. This was the
alleged victim, Janelle Fitzpatrick. She was young, blond, single, and dressed more expensively than any of the three lawyers in the courtroom. She came from a wealthy family and worked at a downtown investment bank.
At the prelim Saenz had presented only the testimony of the investigating detective, who'd nearly fumbled the case when I confronted him with the shocking fact that the victim had failed to pick out Rodriguez from a lineup on her first try.
She wouldn't make the same mistake today. After they'd spent over an hour walking through every detail of the attack, most of which admittedly had occurred in near darkness, Janelle dramatically pointed out Rodriguez in the courtroom as her attacker.
Next, Saenz asked her what had happened when she returned to the police department's Southern Station three days after the attack.
“They called me to let me know they had a suspect who'd confessed, saying all I had to do was identify him. I thought I was strong enough, that I'd be able to handle that. But I was wrong.
“Being in the same room with him again, even separated by glass, sent me into a panic attack.” She stiffened slightly as she spoke these words, and avoided looking at Rodriguez, showing the jury that the fear was still there, though under containment now. “I couldn't breathe. I had tunnel vision. When the light came on, I was so focused on not breaking down I couldn't look at the men. I didn't want to see him. I blurted out a number, but it was just the number that was in my head, and the minute I said it I knew I was wrong.
“All I could think was now they'd have to let him go. And he'd be waiting for me someday again. I told Detective Cole I wanted to go back in. And so we did and I picked out Mr. Rodriguez.” Now she looked directly at him across the courtroom, ignoring Jordan and me. I could almost feel her counting to herselfâone, two, threeâas if daring him to glance up and meet her eyes. Rodriguez went on staring at his hands, hunching lower in a posture the
jurors no doubt would construe as shame but that was simply the reaction of a severely autistic, schizophrenic manâor so I wanted the jurors to believe. “It was him. I've never been more sure of anything in my life.”
When Janelle looked away, Rodriguez glanced at me and winked.
This crafty look was gone in an instant. I couldn't even be completely sure I'd seen it. The jurors were watching Janelle as Saenz wrapped up his questioning. Jordan hadn't noticed anything, either.
Now Jordan took Saenz's place at the podium. It made sense for a female to handle this cross-examination, and Jordan was more than up to the job. Also, the physical resemblance between her and Janelle couldn't have been lost on the jurors. Janelle's smile at her indicated recognition of a peer, someone who couldn't possibly harm her. The jury saw that, too.
“When you picked out the wrong man from the lineup, how much time had passed since the rape?” Jordan asked.
“Three and a half days.”
“Did you watch TV news or look at newspapers, websites during those days?”
“Some. I was staying at a friend's. I needed to know if my name was out there. Because it would dictate how much I'd have to tell people when I went back to work.”
“Was there much publicity?”
“More than I expected.”
“A media frenzy?”
“I wouldn't go that far, but my father is active in state politics. If something happens to his daughter, that's news.”
Jordan led Janelle through a summary of what she'd read in the news, quickly establishing that the rape had been a lead story on the
Chronicle
website and had also featured on TV. A number of details had been leaked, including that she'd been raped, forced by her attacker to shower, then duct-taped and locked in the bathroom. “The press didn't learn any of these facts from you?”
“Of course not. I was screening my calls.”
Jordan skipped to the contact from the detective informing Janelle a suspect had confessed. “Was that also reported?”
Janelle didn't recall. But, in fact, Rodriguez's picture, an old mug shot, had been published online by the
Chronicle
a few hours before she showed up at the station to make the ID.
“Do you recognize the story?” Jordan asked, showing her the website printout.
The witness claimed not to remember if she'd looked at that particular article.
“Isn't it true that you viewed online a picture of Mr. Rodriguez immediately before you drove to the police station to identify the suspect in custody?”
It was possible, Janelle conceded.
“You ran a Google search with the keywords ârape' and âSan Francisco' and âconfession,' correct?”
Janelle again pleaded a faulty memory but didn't deny it.
Jordan moved away from the podium, coming back around to a position beside Rodriguez behind the defense table. She put her hand on his shoulder, the jurors swiveling their heads between her and Janelle, most of them looking back to Jordan. Rodriguez was stone-faced. Again I tried to tell myself I must have been mistaken about the wink. “The reason you couldn't identify Mr. Rodriguez in that first lineupâeven right after looking online at a mug shot of him as the guy who'd confessedâwas because you were having a panic attack?”
Janelle must have recognized what Jordan was doing with Rodriguez, playing off her physical similarity to the victim, showing the jurors
she
wasn't afraid. “I might be having one now.” Her tone was cool but her voice had begun to shake a little.
Jordan remained at Rodriguez's side, her hand on his shoulder. “Thank you, Ms. Fitzpatrick.”
The next afternoon, it was finally my turn again. While Jordan cross-examined Janelle, and during the DA's direct examination of Detective Cole, I'd found myself obsessing over Randall's slightest movements in the chair beside me, with equal parts dread and fascination, both dreading and anticipating another revelatory moment like that wink.
Relieved to be on my feet, I cross-examined Detective Cole, working from the script I'd established based on his testimony at the preliminary hearing. As I moved around the courtroom, approaching the witness and retreating, I was conscious of the jurors, the only audience that mattered. Yet, at every moment, I was also aware of Jordan watching me.
The conundrum for the police was the complete lack of physical evidence implicating Rodriguez or anyone else. This was because in addition to forcing Janelle to shower after the attack, the rapist had taken away the bedding, an act obviously requiring more cunning than I wanted the jury to believe he possessed. (Good thing they
hadn't seen him moving his homemade chess pieces ⦠) Having confessed to the crime, Rodriguez nonetheless had been unable or unwilling to tell the police what had become of the bag and its contents. Cole kept trying to minimize the importance of this, while I did everything in my power to highlight his evasions. My goal: to show the jury that this cop was incompetent or indifferent or both.
The state rested on Wednesday, after calling the obligatory police, medical, and forensic witnesses. Then Jordan and I took over and put on a demonstration showcasing the beauties of a publically funded defense. Our case lasted the rest of that week and half the next, with closing arguments on Tuesday morning and the jury retiring to deliberate that afternoon.
We'd begun by attacking Janelle's identification of Rodriguez as the rapist. Wednesday afternoon, the jury heard from the computer expert who'd analyzed her hard drive. Then an employee of the newspaper's website host confirmed that on the afternoon in question, a URL listed in her search history had linked to the article with the picture of Rodriguez. This allowed us to argue that her picking him out of a lineup an hour later was a foregone conclusion, tainted by her viewing the photograph online. This was in addition to the fact she'd
not
been able to identify him as the perpetrator the first time she'd tried.
Our main problem, of course, was the confession. The conventional wisdom held that the jury would need to hear Rodriguez deny the guilt he'd previously admitted. Jordan had worked with our client for hours in the weeks leading up to the trial, and I'd considered letting her put him on the stand, but we decided there was no question of Randall testifying. This was owing to his numerous low-level convictions for theft and drug offenses as well as his habit of responding to even the most basic questions with non sequiturs. Not to mention my fear that if he took the stand, he'd revert to his free-confessing ways.
Without the ability to use him as a witness to disown his confession, we had our backs to the wall. Our way out was the testimony of a pair of expert witnesses.
The first we called to the stand was a Michigan law professor who'd published prolifically on the subject of false confessions. Jordan had met Eric Lewis at the airport Wednesday evening and driven him straight to our office, where the three of us sat up late into the night.
Based on his review of Detective Cole's testimony, Lewis testified that in his opinion Rodriguez's confession had been obtained as the result of improperly coercive and suggestive questioning, without the safeguards necessary to ensure key details came from Rodriguez and not from the police. At the same time, Lewis had no choice but to acknowledge that Cole's interrogation of Rodriguez was itself the result of the accused's own prior uncoerced and voluntary admissions.
The research on voluntary false confessions was less developed, Lewis explained to the jury. Yet it was well established there were personality types prone to confessing falsely without prompting from the police. “The reasons for voluntary false confessions are as varied as the confessors themselves. These include a conscious or unconscious desire to be punished because of some real or imagined guilt, or a compulsion arising out of childhood trauma that leaves the individual with a deep-seated conviction of his worthlessness. There can also be simple confusion between fantasy and reality, to the point where a person fantasizes about a crime, then comes to believe he actually committed it. These conditions are often reinforced by a desire to impress or gain approval.
“It is a real phenomenon, recognized by psychological and sociological authorities, to the extent that police interrogation has evolved techniques to minimize voluntary false confessions. One method is to check the suspect's knowledge regarding key details of the crime scene that have been withheld from the public. The
most important safeguard is to record the entire interview. Obviously, those precautions weren't followed in this case.”
The DA's cross-examination of our first expert focused on making his testimony seem abstract, emphasizing that he'd flown here from Michigan the night before, had a ticket home to Detroit that evening, and had never set eyes on Rodriguez prior to seeing him in the courtroom today and thus had no idea whether he was mentally ill or not, guilty or not. Lewis's own statistics revealed the rarity of voluntary false confessions. Outwardly bored with a witness that his body language communicated was an irrelevant waste of the jury's time, Saenz excused Lewis after twenty minutes. “To catch your plane,” he said.
However, his testimony provided merely the foundation of our false-confession defense. More significant was the testimony of Angela O'Dowd, a psychiatrist from Berkeley who'd examined Rodriguez on two separate occasions and worked up a profile that the judge, over the DA's strenuous (and well-argued) objections, had deemed admissible. This was a major victory, owing in large part to Jordan's well-researched brief. Dr. O'Dowd's testimony allowed us to present much of Rodriguez's life story in the guise of the factual basis for her psychiatric conclusions. She'd ultimately determined that Rodriguez was competent to stand trial under California law. However, this did not mean that in the conventional sense he was sane.
On the contrary, she identified him as someone highly susceptible to confessing to crimes he hadn't committed. In her interviews with Rodriguez and in her review of the records generated by the state's involvement in his life, dating back to his early childhood, she'd uncovered a history of physical abuse at the hands of his mother. This mistreatment had ended only when Rodriguez, at the age of nine, was taken by the state and placed in a series of foster homes, where the abuse continued in other forms. By sixteen, he'd been sent to juvenile camp, where suicide attempts
and an attempted sexual assault by Randall against a teacher had resulted in his transfer to a series of mental institutions. (We'd been unsuccessful in persuading the judge to exclude evidence of this long-ago crime, even though it bore little similarity to the facts of Janelle Fitzpatrick's case, and so we were forced to integrate it into our narrative as best we could.) In all, he'd spent the next ten years in the custody of the state before funding cuts forced the closure of the inpatient hospital where Randall at the time was being treated with heavy doses of lithium and shock therapy.
With no family to turn to, and no ability to support himself by even the most menial employment, Randall Rodriguez, like so many others, had spent the last fifteen years on the street.
O'Dowd was in her forties, a slight woman with a prematurely lined face who wore no makeup, thus offering an absolutely unpretentious presence on the stand. As I eased her through her testimony, I snuck glances at the jurors. Their faces were skeptical, troubled, as though confronting a problem of knotty complexity. In this case, conviction was the easy answer. Their confusion meant we were winning, I hoped.
Based on her psychiatric training and her examinations of Rodriguez, Dr. O'Dowd hypothesized he suffered from a guilt complex associated with childhood abuse. “Deep down,” she testified, “he's convinced he must have done something to deserve it. It's not an uncommon response in survivors. They blame themselves.
“On the flip side, this man shares a universal human need for attention and esteem. Unlike most of ours, his life presents no realistic possibility for fulfilling those needs. The people with whom he comes into contact almost universally seek to end that contact as quickly as possible. Except, of course, for those who regard him as prey for
their
needs.
“For a man like this, confessing to a terrible crime gets him off the street, into a warm room where the attention's on
him.
Suddenly people are listening to him in a way he never experiences at
other times. In that interview room, he's able to give those detectives exactly what they want, and in return he receives an intense reward of affirmation and praise.
“Also, let us remember this is a man who's spent his life either homeless or in mental institutions. At least in comparison with the streets, prison is a relatively safe place, and the type of abuse he experiences there is predictable and familiar. So in some ways, the punishment he seeks isn't punishment at all. Rather, the opposite. It's the only safety in his power to achieve.”
Saenz listened with a stony face, not writing a word on his pad. This wasn't Dr. O'Dowd's first time on the witness stand. Along with the hearing regarding the admissibility of Rodriguez's confession, there'd been one to determine whether the Berkeley psychiatrist would be allowed to offer her conclusions. After that second hearing, the judge had issued an order defining what Dr. Dowd would and would not be allowed to say in her testimony. Because of this, both she and I were careful not to step a foot beyond the boundaries. She was not to opine that Rodriguez had falsely confessed, nor was she to testify that he'd told her he'd invented his confession. Rather, she was to stick to demonstrable facts based on generally accepted, reliable principles of psychiatry.
When Saenz finally rose to cross-examine her, he simply turned her opinions inside out, showing how each aspect of Rodriguez's pathology could be consistent with that of a criminal who, by actually committing a crime such as the one here, gained the same notoriety and fulfillmentâthe same “safety”âwhile exhibiting the same disregard for future consequences of present actions in favor of their immediate reward.
Nonetheless, he couldn't so easily brush aside our next three witnesses, as we moved from the abstract and theoretical to the increasinglyâand undeniablyâconcrete and real. Now Jordan took center stage, questioning the first of the three police detectives
who'd rejected Rodriguez's previous false confessions. Each had brought that previous investigation to a successful close, leading to the conviction of another suspect notwithstanding Rodriguez's claim of guilt. One case had ended with the confession of the real perpetrator; the second had been sealed with a DNA match; the third had been closed by video footage of the true suspect leaving the crime scene. Each detective had previously testified either in a preliminary hearing or trial to prove the guilt of the person who was convicted. Each therefore was now obligated to defend that result here in this trial.
Though at moments a bit clumsy, her handling of Janelle Fitzpatrick had been intuitive and successful. This, by comparison, would be like shooting fish in a barrelâand the reason the fish were in the barrel was because Jordan had placed them there. She'd insisted on obtaining the complete records from every case in which Rodriguez had contact with the police, either as a suspect or as a witness. She'd then pored over every page of the nearly ten thousand the DA had produced in a “document dump” containing mostly irrelevant material. Next, after identifying the detectives who'd questioned Rodriguez in prior cases, she'd convinced them to talk. I still didn't know how she'd done this, and I'd suggested it hadn't hurt that she was extremely attractive, but Jordan had discounted this. “They talked because they know this prosecution is a mistake. No good cop wants to see an innocent man convicted, because that means the real rapist is still out there. The guy who did this is going to strike again. You've got to offer them a chance to do what's right.”
Testifying in response to Jordan's questions, each of the detectives was reticent but professional. Clearly, none of them was eager to do the defense any favors, and each was conflicted by the unfamiliar role of being called as a witness on behalf of a man accused of a terrible crime. Their obvious reluctance made their testimony all the more damaging to the state.
Jordan used them to draw out the common themes. Each of the three cases, to start with, had been the subject of intense local news coverage across multiple media outlets, including the newspapers that Rodriguez was known to hoard. (His possessions included notebooks in which he'd pasted clippings having to do with notorious crimes.) In each of the cases, following the initial wave of publicity, Rodriguez, a familiar face to the local beat cops, had presented himself at the Southern Station reception desk and asked to speak with the investigating detective. When he was interviewed, Rodriguez's stories had seemed to fit the known facts. In none of the cases, however, had he been able to provide details that weren't contained in the plastic-wrapped scrapbooks in his shopping cart.
“You want to ask open-ended questions in a situation like that,” the lone woman, Sergeant Ochoa, testified. “It's human nature to feed the witness details in the hope of jogging his memory, but some of them are like mediums, or fortune-tellers. They've got this ability to figure out what you want to hear and parrot it back, wrapped up in the information you provided. That's why you always look for corroborating evidence. If the case is legitimate, the confession confirms what the physical evidence already shows.”