Sleight of Hand (30 page)

"The other scenario is that Wally looked at the boat and handed it back to Jay Wilkins, who was still standing by the case, and he replaced it himself. Then the three of them moved on to the bar room. Ask yourselves if it is more logical for Jay Wilkins to have remained by the case until the boat was returned. I encourage you to act out the two scenarios during your deliberations."

She resumed her slow pacing back and forth as she said, "There are other considerations I urge you to discuss about the trophy case and its contents. The housekeeper testified that the door was closed almost all the way, so much so that she did not notice it was not entirely closed until she went to it to clean the glass.

When did the door get closed that much? Jay Wilkins opened it fully, extending it about two feet. If he closed it most of the way, why not all the way? Was it on his mind that the boat was covered with fingerprints? Once the door was closed the security would reset and the housekeeper would not be able to open it. Knowing his obsession with fingerprints, an almost phobic aversion to them, does it seem likely that it was on his mind to clean the boat himself before closing the case?

"You have to consider whether Wally Lederer would have taken the boat in the first place. Wally valued friendship highly. He responded to acts of kindness with kindness of his own. He befriended an old, sick convict who had helped him regain his path. He became a lifelong friend with the restaurant owner who helped him along the way. He made no distinction. Acts of kindness were important to him and he repaid them. Jay Wilkins had extended hospitality and the offer of friendship. Do you think in light of what you have learned about Wally Lederer that he would have repaid that with an act of treachery, the theft of a valued object? He harbored no long-standing envy of Jay Wilkins. Rather, he had pitied him as a youth, and he pitied him as an older man, believing as he did that Jay Wilkins was having a marital dispute. He thought of him as the caretaker of his father's possessions, not a man to be envied or someone he would have wanted to wrong in any way.

"When they were in the bar room, Jay Wilkins dropped his pretense and began to voice his concerns about his wife and his fears for her life. He could no longer maintain the public face he had assumed. Having no desire to get involved in a family dispute, a marital problem, Wally and Meg left the house as soon as they could do so politely."

She stopped for a moment, then said briskly, "At the start of my remarks I mentioned that there are relatively few facts in this case, and a great deal of speculation. It is a fact that the boat was in the case on Monday evening, and that Wally and Meg examined it. It is speculation that it was taken at that time. All we can say for certain is that it was missing on Tuesday morning and it was found a day or two after Jay Wilkins was killed. But also, it had been cleaned of all fingerprints.

Why?

"It is known that all three people handled the boat, Jay Wilkins, Wally and his wife.

They all left fingerprints on it. There was no reason for Wally to have cleaned it since his fingerprints should have been on it. But we also know that Jay Wilkins had what could be called an obsession about fingerprints and smudges, both in his home and at his workplace. Of the three who handled it, he was the only one with any reason to have cleaned the boat. As you deliberate, ask yourselves if it is possible that Mr.

Wilkins removed the boat after Wally and Meg left, and cleaned the fingerprints himself. Remember, he had been up all night worrying, and by then he must have been in a state of nervous exhaustion. In such a state people frequently do and say things that they don't recall afterward. We know that by midweek he stopped pressuring the insurance agent about it as well as the police. By then, his other fears might have made the boat seem irrelevant. Ask yourselves if he could have found it later, perhaps in his own pocket or even in the desk drawer, and instead of turning off the security system and unlocking the case to put it away, he decided it could be dealt with later.

"The prosecution also stated as a fact that the boat was returned on the night of the murder but, ladies and gentlemen, that is speculation, a guess. The investigators have no way of knowing when it was placed in the drawer. All they can state as factual is when it was found, after the investigation began. It could have been in the drawer ever since the night Wally and Meg Lederer visited Mr. Wilkins. There is no way of knowing when it was put there."

When she paused again, Judge Wells tapped his gavel and said they would recess briefly. He left, and moments later the bailiff led the jury out.

At the defense table Meg was regarding her with tears in her eyes, but Wally's gaze was appraising. "Are they buying it?" he asked.

Barbara shrugged helplessly. "I don't know." She waved. "See you in a few minutes," and she fled. In the washroom she splashed water on her face and blotted it dry. The impassivity of the jury was unnerving. Now and then a nod, or a frown was about the only reaction they had shown to anything she said.

Shelley entered the restroom. "Are you all right?" she asked.

"Right as rain," Barbara said. "Considering."

"Yeah. Me, too. What a bitch of a case."

And that summed it up, Barbara decided. It was a bitch of a case.

Chapter 40

Back in court, standing once more in front of the jury box, Barbara said, "There are a few things that we know about Jay Wilkins's activities in the days following Wally and Meg's visit. We know he called his insurance agent and the police about the missing boat, and he demanded an immediate arrest of the man he accused of taking it. We know that he demanded that the police intensify their efforts to find his wife.

And they continued to regard her absence as voluntary."

She paused, then said slowly, "If Jay Wilkins had said that he feared his wife might have been murdered, the police would have acted swiftly and decisively in an effort to locate her. But he maintained that he was afraid that she was suicidal. His fear was real. His agitation and worry were real and the investigators thought he was overreacting to a commonplace domestic dispute, or they attributed it to the alleged theft of the boat.

"Then, curiously, by midweek, Jay Wilkins stopped putting pressure on the police about his wife, and he stopped pressuring his insurance agent about the boat. He stopped making frantic phone calls. He stopped all his activities. And he did not leave his house a single time that week."

She stopped moving and regarded the jurors as she said slowly and deliberately, "I suggest, ladies and gentlemen, that Jay Wilkins was behaving like a man in fear for his own life. We have no way of knowing why he stopped putting pressure on the investigators. All we can do is speculate."

She went on more briskly, "And now for the night of the murder. There have been very few facts introduced as evidence about the events of that night. What is known is that someone entered the house at nine forty-five and remained for one hour and five minutes, and during that time Jay Wilkins was hit in the head with a glass pitcher, and that he fell in such a way that his neck was broken and he died instantly. The house was not entered again until the housekeeper arrived on Monday.

"We know that Jay Wilkins had denim fibers under his fingernails. We know there was bark mulch on the threshold and in the foyer leading to the bar room, and in the bar room itself. We know that a hand towel was missing, and that a red Afghan was also missing. And we know nothing else about that night."

She paused, then said, "That's all we can claim to know about that night. What I am going to do is separate those few facts from the speculation surrounding them. First the bark mulch. The state has speculated that the assailant stepped into the bark mulch in order to pick up a stick, but there is no evidence to support that speculation. It is no more than a guess, an opinion. There are alternate guesses. That person might have walked through the bark mulch in the planting between the driveway and the house. He might have walked around the house in the bark mulch, perhaps trying to peer into a window. Or he might have stepped into the bark mulch for another reason altogether. There is no evidence to support one opinion over another. We don't know, and we can't know from the evidence.

"Next, there was bark mulch in the doorway." She walked to the exhibit table and brought out the threshold. "Where the bark mulch was found is most unusual, in the corner where the door meets the doorjamb and the floor. No one would have stepped on it at that place. To account for it, the prosecution has speculated that the assailant used a stick covered with bark mulch to prevent the door from closing. But why? It suggests premeditation, preparing for an undetected exit from the house. But again, why? If that person suspected or knew there was an elaborate security system, he would have known that Jay Wilkins had to turn it off in order to admit him.

Would he have thought in advance that it would have been turned back on during his visit? If that person did not know about the security system, there was no reason to provide for an undetected exit from the house.

"An alternative speculation might be that the person who went to that door that night was unwelcome. You've seen the scenario in movies. The person inside tries to close the door, and the one outside puts his foot in it to prevent that. He puts his foot in the corner, exactly where that bark mulch was located, then forces the door open and enters. The door isn't spring loaded, or on any kind of automatic closing device. It would have remained open until someone closed it."

She took the threshold back to the exhibit table. "Ladies and gentlemen, the theory advanced by the detective explaining the mulch is speculation, not fact. The alternative I have suggested is also speculation, not fact. We can't say from the evidence how the bark mulch got there."

Barbara used the schematic of the front of the house, the entryway the foyer and the rooms off it. "There was bark mulch here," she said pointing to the foyer. "And inside the bar room bark mulch was here."

Remaining by the easel, she said, "Please keep in mind where there was no bark mulch." Once more, as she spoke she pointed. "There was none leading to the lavatory. That is roughly a distance of thirty feet from the bar room. And there was none leading to or inside the study, and that is about twenty feet from the entrance door, or thirty-five feet from the bar room.

"The bark mulch was wet that night after intermittent rain for weeks, and rain that night in particular. It would have clung to anyone's shoes who stepped into it. And it would have been removed by the rough, unpolished stone flooring throughout the foyer. As the mulch dried, even more would have flaked off. The stone flooring goes past the lavatory, and it also extends into the bar room. The study has deep pile carpeting and it would have been even more efficient at rubbing mulch off shoes, but there was none on it. There is no evidence to indicate that the assailant walked anywhere except to the bar room. He left no traces anywhere else."

She moved away from the schematic, closer to the jury box, as she said, "And keep in mind the other places where no bark mulch was found. None was found on Wally Lederer's shoes. Nor in his car.

"The next puzzle is what happened during the hour and five minutes between when the door was opened and when it was closed. The assailant went to the bar room where he stood in one place, according to the evidence. What was Jay Wilkins doing? Did he stand as still as the intruder for the next hour and five minutes? Why?

"And what happened to the red Afghan? We don't know. We do know that no red silk fibers were found in Wally Lederer's car or on his clothing. The bar room has the stone floor to the end of the bar, and the rest of it is carpeted with a pale gold, plush pile carpet. Anyone with bark mulch on his shoes could not have walked across it without leaving evidence. There was none. But the housekeeper testified that the Afghan was kept on the sofa across the room.

"You may start to speculate about what took place between Jay Wilkins and his killer, and how the Afghan played any part in the exchange. That's fair enough since the state's case is based on speculation. You may consider that Jay Wilkins himself walked across the room and brought the Afghan back to the bar with him. That it did play a part in whatever was being said at the bar. There is no evidence to support any speculation whatsoever, therefore the state left it out of their reconstruction of the crime. But is it insignificant enough to be neglected altogether? We don't know."

She smiled slightly. "It is always a matter of convenience to omit any facts that don't fit the speculative reconstruction you have arrived at."

Quickly sober again, she said, "But something happened that resulted in the assailant picking up the glass pitcher and striking Jay Wilkins with it. We don't know at what point in that hour and five minutes the attack occurred. A glass pitcher does not seem a weapon of choice if a murder is planned. In the state's reconstruction, the stick in the door implied premeditation, but why then was the killer not prepared to kill? Why was he without a weapon at hand?

"And why was the pitcher placed on the floor instead of being dropped? Did he keep it in hand to use again? Or did he put it down thinking to render aid, only to find that Jay Wilkins was dead? One opinion is as valid as the other because we don't know why. One guess is as good as another. But it does lead to another question.

"At what point did the assailant decide to get a towel and wipe off his fingerprints?

Remember, no bark mulch was found leading to the lavatory and none was found inside it. Yet, he would have left traces of it wherever he walked.

"Yellow fibers were found on items in the bar room, but none were found in the study or in Wally Lederer's car or on his clothing.

"The investigators theorized that as Jay Wilkins fell, he reached out and raked the leg of Wally Lederer's jeans, and that accounted for the denim fibers in his fingernails.

But we have demonstrated that the match was not conclusive. Any number of garments could have yielded such fibers. You saw Wally Lederer's jeans, and you saw the dirt and blackberry debris in the evidence bag. If fingernails had raked down those jeans, dirt and debris would have been loosened and come away with the fibers. Some of it would have lodged under the fingernails. Dirt and debris would have fallen to the floor. None was found. None at the immediate crime scene, none in the study, or in the foyer, none under the fingernails and none anywhere else on the premises.

"The prosecutor has suggested that perhaps the jeans on that particular day were not covered with dirt and debris, but that is more speculation. Wally Lederer testified that he cut brambles every day except when it was actually raining. He had two acres of brambles that he was clearing by hand. He changed his jeans at the back door and put on a robe and slippers that he kept by the door for that purpose because his wife made him. Would that particular day have been any different from all the others?

Would he have kept wearing those jeans despite his wife's demand that he change and not track up the house they were so painstakingly restoring?" She shook her head. "Or did he change as usual, and later on change again and put the jeans back on in order to visit Jay Wilkins? That is even more implausible.

"Wally was not allowed to wear those jeans in his own house because he left a trail wherever he went. It is not possible that he could have been in the Wilkins house that night wearing those jeans without leaving some trace of blackberry dirt or debris, however slight."

"Then there is the matter of headlights," she said slowly. "Mrs. Ogden saw headlights, nothing else, at nine-fifteen on that night. And that's all we know about that. We don't know whose car it was, or where it was going, or where it came from.

How many other cars in and around Eugene were being driven that night that could have arrived at the Wilkins house at nine forty-five? We don't know that, either." She shook her head again. "As I said earlier, this is a purely circumstantial case with a great deal of speculation, and speculation is not enough to take the next step to certainty. If we don't know, we have to admit just that. We don't know.

"Ladies and gentlemen," she said slowly, "if the police had started their investigation with the death of Jay Wilkins, they never would have brought Wally Lederer's name into it. There is absolutely no physical evidence that leads to him, and in fact what evidence there is points away from him. And yes, they could have just as reasonably arrested a stranger, a passerby who happened to be wearing old, faded denims, and who happened to be in the area at the right time."

She was stopping more often now, and emphasizing her statements more forcefully, and she was holding the attention of the jurors.

"If the police had started the investigation with the death of Jay Wilkins, immeasurably more serious than the missing boat, they might have asked why he had appeared so nervous and why he had appeared to be living in fear of leaving his house. And why he had insisted, in spite of statements to the contrary, that his wife was in danger of taking her own life. As you deliberate, keep in mind two important facts about the many phone calls Jay Wilkins made over a few days. He told his wife's brother that he had to know if she was alive and well. The second fact to keep in mind is what he didn't say to any of the people he called. He did not say he had to remain at home in case she returned. He said he remained home in order not to miss a call from her, but with a cell phone he was never out of reach by telephone, no matter where he was.

"If the police had started with the murder, the investigators would certainly have discovered that second persona, the one who ruled his workplace with an iron first, who showed no tolerance or mercy toward his employees, the one who made hard and fast rules and swiftly punished anyone who broke them, the man who tried to impose his rules on his neighbors, and monitored his own household. And they might have concluded that that man had made enemies.

"If they had even considered the Jay Wilkins that Doug Moreton and Mrs. Haley, the housekeeper, knew, they might have concluded that the most likely person to have cleaned the fingerprints from the gold boat was Jay Wilkins himself.

"And they might have wondered if there was a connection between the two deaths when both husband and wife met such violent deaths within a week. And they might have theorized that one killer was involved, and that that person had nothing to do with a gold boat.

"But the state did not pursue that course for their investigation. Instead, they built a circumstantial case against Wally Lederer based on two assumptions, neither of which has been proved, or can be proved. They accepted the statement made by Jay Wilkins that the boat was stolen by Wally. And they assumed when the boat was found that the only time it could have been placed in that drawer was on the night of the death of Jay Wilkins. Both of those unproven and unprovable assumptions became fixed in their minds as facts. They constructed their case based on those two faulty assumptions.

"Those two assumptions are not facts, they are suspicions, opinions, no more factual than the stick in the doorway, or the reason for putting the glass pitcher down instead of dropping it. All you can say about any speculation is that it could have been this, or it could have been something else.