Special Circumstances (31 page)

His client walked in that case. I hope we get the same result.
“My name is Sergeant Kathleen Jacobsen. I’m an evidence technicianwith the SFPD. I’ve been with the force for twenty-two years.”
Skipper stands at the lectern.
“Do you have a particular area of expertise?”
“Yes. Fingerprints and other chemical and physical evidence.” KathleenJacobsen is a tall, gray-haired woman in her late fifties with aprofessional demeanor and a commanding aura. One of the first lesbiansto work her way up the ranks, she’s become a nationally known figure onevidentiary matters. Skipper begins to walk her ever so slowlythrough her impressive resume: undergrad at U S C, master’s from U CBerkeley. I stipulate to her expertise. She confirms she was the leadevidence technician in the investigation.
Skipper strolls to the evidence cart, picks up the revolver and paradesit in front of the jury.
“Are you familiar with this weapon?” he asks.
“Yes. It fired the shots that killed the victims, Mr. Holmes and Ms.Kennedy.”
Her authoritative tone is a prosecutor’s dream.
Skipper is pleased. She’s delivered her lines on cue.
“Did you find any fingerprints on this weapon?”
“Yes. The defendant’s.” Her delivery is precise.
They go through the same exercise for the computer keyboard. Sheconfirms that Joel’s fingerprints were found on it, too. Skippersignals to McNulty, who turns on a projector. The suicide E-mailappears on the screen.
“Sergeant, could you please describe the message displayed on thescreen?”
“It’s an E-mail message generated from Mr. Holmes’s computer atone-twenty on the morning of December thirty-first.”
Skipper asks her to read the message out loud. When she finishes, hesays, “Does that appear to be a suicide message to you, Sergeant?”
“Objection. Sergeant Jacobsen is an expert on evidence, notsuicide.”
“Overruled.”
“I believe it was intended to look like a suicide message. However, itwas obvious the message was a fake. We found the defendant’sfingerprints on the computer keyboard. We believe the defendant typedthe message.”
“And why would he do that?”
“Objection. Speculative.”
“Sustained.”
“Wouldn’t he have done so to make it appear that Mr. Holmes hadcommitted suicide?”
“Objection. Leading.”
“Sustained.”
“No further questions, Your Honor.” He’s made his point. McNultyturns off the projector.
I approach her cautiously.
“Sergeant, who was the registered owner of > gun?”
“The victim, Robert Holmes.”
“So Mr. Holmes had a loaded gun in his office on the night he died.”
Jacobsen agrees.
“It would seem that Mr. Holmes had a loaded gun in his office thatnight,” “Sergeant,” I say, “did you find any fingerprints on theweapon besides Mr.
Friedman’s?”
“Yes. We found smudged fingerprints belonging to the victim, RobertHolmes.”
“On what part of the weapon did you find his fingerprints?”
“On the handle.”
“And could you please show us where you found the fingerprints of Mr.
Friedman?”
“I’d have to review my report.” I introduce her report into evidence.I hand it to her and she studies it. She explains she found Joel’sright thumb and right middle finger, ring finger and pinky on thehandle. His right index finger was on the cylinder.
I hand her the plastic-wrapped revolver.
“Sergeant,” I say, “isn’t it a fact that you didn’t find any of Mr.Friedman’s fingerprints on the trigger?”
She looks at Skipper. Then she looks back at me.
“We found smudged fingerprints on the trigger, Mr. Daley.”
“I understand. But, isn’t it true that you could not positivelyidentify any of Mr. Friedman’s fingerprints on the trigger?”
“That’s correct.”
That helps.
“And isn’t it possible that the fingerprints of Mr. Friedman’s thatwere found on this weapon were generated while Mr. Friedman wasunloading the weapon, just the way he described it to Officer Chinn?”
Skipper stands up, but doesn’t say anything. If he objects, heundercuts her testimony. She’s supposed to be his expert. She lookshopelessly at Skipper.
“It’s possible,” she says quietly.
I pause to let her answer sink in.
“And isn’t it true that while you may have fingerprint evidence thatMr. Friedman touched this revolver, you have no hard evidence that heactually fired it?”
“Objection, Your Honor.” Skipper’s trying to stop the bleeding.
“Argumentative.”
“Overruled.”
She looks right at me.
“That’s true. I can say to an absolute certainty that Mr. Friedmanheld this revolver. I can’t say to an absolute certainty that hepulled the trigger.”
I take the computer keyboard from the evidence cart and ask her toidentify it.
“Would you please tell us which keys had Mr. Friedman’s fingerprints?”I ask.
“All of the alphabetic keys.”
I take a half step back.
“All of them?”
“Yes.”
“What about the numeric keys and the function keys?”
“We found his fingerprints on all of the numeric keys and three of thefunction keys.”
I signal to Rosie. She turns on an overhead projector. The suicideEmail flashes up on the screen.
“Sergeant,” I say, “you and Mr. Gates contend this message wasactually typed by Mr. Friedman.”
“That’s correct. The defendant’s fingerprints were found on thekeyboard.”
“I understand.” I pause.
“Did you find the fingerprints of Mr. Holmes on this keyboard?”
She looks at McNulty. He shrugs.
“No, we didn’t.”
“Isn’t it odd you didn’t find Mr. Holmes’s fingerprints on his ownkeyboard?”
“Objection, Your Honor. Speculative.”
“Sustained.”
“I’ll rephrase. Sergeant, based on your experience as a fingerprintexpert, wouldn’t you expect to find Mr. Holmes’s fingerprints on hisown computer keyboard?”
She frowns.
“Probably, although we think he may not have been a secretor.” Shepauses.
“In other words, Mr. Holmes didn’t sweat profusely enough to give offa lot of fingerprints.”
Sure.
“But you’ve said you didn’t find any at all.”
“Objection. Asked and answered.”
“Sustained.”
I’ve made my point.
“You’ve said you found Mr. Friedman’s fingerprints on all of thealphabetic keys. Did you stop to determine whether the E-mail used allof the letters of the alphabet?”
“No.”
“May I ask why not?”
She looks straight ahead for a moment.
“We were looking for his fingerprints.
We didn’t attempt to analyze the contents of the E-mail message.”
“Would it surprise you to find out that the E-mail didn’t use all ofthe letters of the alphabet?”
She looks at Skipper.
“It wouldn’t surprise me.”
“In fact, Sergeant, if you read the E-mail carefully, you’ll find thatit does not contain the letters J, K, Q, X or Z, or any punctuationmarks other than periods, and no numbers at all. Yet you found Mr.Friedman’s fingerprints on all of the alphabetic keys.”
“Yes, we did.”
“How do you account for that?”
“Perhaps he typed the message several times, or made corrections orerased.”
I move closer.
“The fact is, you don’t know. The fact is, you can’t explain it.
Isn’t that right?”
“Objection. Argumentative.”
“Overruled.”
“Yes, Mr. Daley. We can’t explain why his fingerprints were found onall the alphabetic keys.”
Now we’ll see if Skipper’s awake over there.
“Isn’t it possible, Sergeant, that the reason his fingerprints werefound on all the alphabetic keys is that somebody switched his keyboardwith that of Mr. Holmes?”
“Objection, Your Honor. Speculative.”
Judge Chen looks at me.
“Unless you’re prepared to bring evidence concerning this allegation,the objection is sustained.”
“Withdrawn.” We’ll get back to this subject when it’s our turn.
“No further questions.”
Judge Chen looks at Skipper.
“Redirect?”
“Yes, Your Honor.” Skipper picks up the wrapped revolver and hands itto Jacobsen.
“Sergeant,” he says, “could you please show us once again where youfound Mr. Friedman’s fingerprints?”
She picks up the revolver and points to various spots wherefingerprints were found.
“Would you please grip the gun in the manner that would have generatedthese fingerprints?”
“Objection, Your Honor. There’s no foundation for this.”
“Your Honor,” Skipper says, “Mr. Daley asked Sergeant Jacobsen todescribe the locations of the defendant’s fingerprints. I’m justamplifying her answer.”
“Overruled.”
Shit.
She picks up the revolver in her right hand. She grips it in her palmwith her right thumb, middle finger, ring finger and pinky. Her rightindex finger rests on the cylinder.
“Sergeant,” Skipper says, “without moving your thumb or other fingers,would you please move your index finger down to the trigger?”
She holds up the gun so that the jury can see it. She easily moves herindex finger from the cylinder to the trigger.
“What would you conclude from this demonstration?” Skipper asks.
“Objection. Speculative.”
“Overruled.”
Jacobsen nods knowingly at the jury.
“I would conclude that the defendant could have created thefingerprints I’ve described while pulling the trigger of thisweapon.”
“No further questions.”
I’m back in her face.
“It’s still your testimony that you could not find identifiablefingerprints of Mr. Friedman on the trigger, right?”
“Yes. The fingerprints on the trigger were smudged andunidentifiable.”
“So, you can’t prove he pulled the trigger.”
“Objection. Asked and answered.”
“Sustained.”
“No further questions.”
“The people call Richard Cinelli.” The bartender walks forcefullythrough the courtroom and is sworn in. He takes his seat on thewitness stand. He pulls the microphone toward him. He’s used totalking to people. Before he’s said a word, he’s already connectedwith the jury. Skipper walks him through the preliminaries. He was atwork on the night of the thirtieth. He confirms that Joel and Dianacame in about nine-forty-five. It was crowded. They ordered drinksand dinner.
“Around ten o’clock, Mr. Friedman and Ms. Kennedy had adisagreement,” Cinelli says.
“Would it be more accurate to call it an argument?” Skipper asks.
Cinelli shrugs.
“I’d call it a disagreement.”
“But it could have been described as an argument.”
“Perhaps it might have been an argument,” he says without raising hisvoice.
“She threw a glass of water in his face and she left.”
“Was she upset?”
He raises his eyebrows.
“Obviously.”
“Did you hear anything they said?”
“Not much. I’m a bartender. I get paid to be discreet.”
“But you did hear something, right?”
“Yes. Mr. Friedman told Ms. Kennedy that he’d get her for something.Those were his exact words.
“I’ll get you for this.”
” “So he threatened her, right?”
“Objection, Your Honor. Speculative.”
“Sustained.”
“No further questions, Your Honor.”
I walk toward Cinelli.
“Do you know what they were arguing about?”
“No.”
“And you know that they were attorneys, right?”
“Yes.”
“And you knew they were working on a big deal together?”
“Objection. Foundation.”
“Overruled.”
“That’s what I understand.”
“Is it possible Mr. Friedman and Ms. Kennedy may have been arguingabout work?”
Skipper stands.
“Objection. Speculative.”
“Overruled. The witness will answer.” Give her credit. She’streating us equally.
“Yes, Mr. Daley. That’s entirely possible.”
“No further questions.”
“My name is Homer Kim. I’m a custodian at the Bank of AmericaBuilding.” Homer Kim sits nervously in the witness chair late in theafternoon. He’s uncomfortable in a new, ill-fitting suit, “Mr. Kim,”Skipper says, “you were at work at the Bank of America Building on thenight of December thirtieth of last year, right?”
“Yes.” His pronunciation is pretty good, but his tone is tentative.
Skipper gets Kim to explain that he walked by the office of RobertHolmes at approximately twelve-thirty in the morning.
“Was there someone in the office with Mr. Holmes?” Skipper asks.
“Yes. Mr. Friedman.” He points at Joel. It’s a wooden gesturethat’s been rehearsed.
“Mr. Holmes and Mr. Friedman were having an argument.”
“Was it a loud argument?”
“Yes. Very loud. Mr. Friedman was very angry at Mr. Holmes. Veryangry.” His eyes dart.
“Did you hear Mr. Friedman say anything to Mr. Holmes?”
“Objection. Hearsay.”
Skipper explains he isn’t trying to prove the truth of what was said.
“Overruled.”
Kim gulps water from a paper cup.
“Mr. Friedman said to Mr. Holmes, “I’ll get you for this.”
” He gestures with his right index finger for emphasis.
Skipper looks solemn.
“Did it sound like Mr. Friedman was threatening Mr.
Holmes?”
“Objection. Calls for Mr. Kim to make a determination of Mr.Friedman’s state of mind.”
“Sustained.”
“No further questions.”
I’m in his face in an instant.
“Mr. Kim, how long have you observed Mr.
Friedman?”
He looks perplexed.
“A couple years.”
“And have you ever heard him raise his voice?”
He looks at Skipper, who shakes his head.
“No,” he answers.
“Mr. Kim, do you know what they were arguing about?”
He hesitates slightly.
“No.” He sounds tentative again.
“Is it possible they may have been arguing about work?”
“Objection. Speculative.”
“Overruled.”
“I don’t know,” Kim says. He glances at Skipper for help. Skippercloses his eyes.
“It’s possible, right?”
Out of the corner of my eye, I see Skipper nod.
“Yes, it’s possible.”
“Mr. Kim, you’ve had some problems over the years with your finances,haven’t you?”
Skipper’s up immediately.
“Objection. Mr. Kim’s financial situation is irrelevant.”
“Your Honor,” I say, “Mr. Kim’s financial situation is very relevantto this discussion.”
Judge Chen looks troubled.
“I’ll give you a little leeway, Mr. Daley.”
“Mr. Kim,” I continue, “isn’t it true you’ve had some significantdebts over the last few years?”
He looks desperately at Skipper, then says, Tes.” He’s starting toturn red.
“And isn’t it true that you filed for personal bankruptcy last year?”
“Yes.”
“And isn’t it true that you’ve lost some substantial amounts of moneygambling?”
His shoulders slump. He hesitates.
“I don’t recall.”
“You’re under oath, Mr. Kim. I’d be happy to introduce the bankruptcycourt filings into evidence.” I turn to the judge.
“Your Honor, would you please instruct the witness to answer.”
“Mr. Kim,” she says, “I’m going to have to ask you to answer Mr.Daley’s question.”
He shrugs.
“Yes. I have lost some money gambling.”
“Mr. Kim, isn’t it a fact that you received a check in the amount oftwenty thousand dollars shortly before you agreed to testify in thiscase?”
He shakes his head forcefully.
“No.”
I walk back to the defense table. Rosie hands me a note.
“Isn’t it true, Mr, Kim, that twenty thousand dollars was depositedinto your account at Bank of America on February twentieth of thisyear?”