Try Fear (26 page)

Sister Mary and I waded through and got to the doors, where another guard recognized me and let us in. The gallery was packed.
We were just what I didn’t want to be now. A show.

K
ATE AND
B
ABS
were seated, and Kate gave me an encouraging smile.

Eric was brought in and unshackled. He touched my arm and said, “We did okay yesterday, right?”

“We did okay,” I said.

“I’m worried about Mom. She looks thinner.”

“I’ll look out for her,” I said. “Have you heard from your wife?”

“Let’s not talk about that,” he said.

I was fine with that.

Judge Hughes came in and called for the jury. As they filed in I felt a little like Paraguay when it plays the USA in an Olympic
basketball game. Telling myself, Just hustle and try not to foul too much.

Radavich’s first witness was another expert, this one on suicides. Nice specialty. He was a psych from mid-Wilshire, named
Dorsini. Fiftyish, brown hair, bushy mustache. The avuncular type. Juries love that. Radavich knew who to pick.

After the qualifications, which were excellent, Radavich got into the details that did not serve my suicide theme at all.

“Dr. Dorsini, you have studied how many suicides over the years?”

“Oh, well over a thousand cases, in varying degrees. The most significant are in my case book, which is required reading in
many universities and medical schools.”

“How many of these suicides involved self-inflicted gunshot wounds?”

“Seventy-eight percent.”

“And how many of these self-inflicted gunshot wounds were by males?”

“Ninety-one percent.”

“How are most of these gunshot wounds administered?”

“Almost always through the mouth.”

“As was done in this case?”

“Yes.”

“In your opinion, does this case constitute a standard suicide scenario?”

“No.”

“Would you explain to the jury, please, the basis of your opinion.”

Dorsini turned to the jury. “The most crucial piece of evidence in a case like this comes from the hands, in the form of soot
or powder. In some instances of suicide by handgun, the soot will be found not on the trigger hand, but on the off hand used
to steady the muzzle. The soot would then be found on the palm of the hand, or on the radial surface of the index finger and
palm, and the ulnar and palmar surface of the thumb.”

“Please demonstrate for the jury what you mean by ulnar and palmar,” Radavich said.

Dorsini did some pointing and explaining. Then Radavich said, “Was any such soot found on the left hand of the victim in this
case?”

“No.”

“What does that tell you?”

“The size and intensity of the soot pattern is a matter of how close the muzzle of the gun is to the body when it’s discharged,
along with things like angle of the muzzle, barrel length, caliber of weapon, and so forth. But here there was no pattern
at all. That tells me someone else fired the shot.”

“In this case, a gunshot to the mouth, would you expect to find soot inside the mouth?”

“Absolutely.”

“And was there soot inside the mouth?”

“None.”

“Outside the mouth?”

“None.”

“What about the blood that was found on the gun?” Radavich asked.

Dorsini shook his head. “Deposition of high-velocity blood droplets on the back of the hand used to fire a handgun is fairly
rare. Five percent. But where it is found, it is in droplets, not in streaks and patches as in this case.”

The suicide theory was sinking slowly in the west, but I didn’t let my face show it. Eric sat perfectly still through the
whole thing.

“Does the fact that a latent print on the trigger of the gun was from the victim’s index finger have significance?” Radavich
asked.

“It does, but not for suicide.”

“Why is that?”

“Because that is not how gunshot to the mouth would be self-administered.”

“How would it be self-administered?”

“With the thumb.”

Radavich took up the gun and handed it to the witness. “Would you demonstrate what you mean?”

“Certainly.” Dorsini held the gun with both hands and pointed the barrel at himself. “It would look like this,” he said. “This
thing’s not loaded, is it?”

The jury and most everybody else laughed.

“I can assure you it’s not,” Radavich said. “We like expert witnesses to be perfectly safe. Now, for the record, you placed
the pad of your right thumb on the trigger, is that correct?”

“That’s correct.”

“What is your opinion about the gunshot in this case?”

“It appears to me someone wanted to make it look like suicide, but got careless with the fingerprints.”

“No more questions.”

I went to the lectern. “Doctor, it’s not impossible to shoot yourself in the mouth, using your index finger on the trigger,
is it?”

“It is not likely.”

“That’s not what I asked you.”

“It’s not impossible, no. Just highly unlikely.”

“If someone is planning and deliberating about it, then using the thumb as you just demonstrated, that would be the likely
method?”

“Yes.”

“But if the act was not planned. Say it was done on impulse. It’s reasonable that the victim might just suddenly pick up the
gun, point it in his mouth, and fire, correct?”

“That can happen, yes, but as—”

“Thank you, Doctor. Oh, by the way, if a person is drunk, is he more or less likely to be deliberate?”

Dorsini scowled. “I suppose it depends on the person.”

“Doctor, what is more
likely?
”

“I cannot say one way or the other.”

I liked that answer. It defied common sense. And juries don’t like that, especially when it comes from an expert. I decided
to save this for closing argument, too. I was storing up a couple of nice nuts.

“Now, Doctor, assuming you are correct about this not being a suicide, there is nothing you can tell us about who may have
shot the victim, is there?”

“Of course not.”

“Anybody with a grudge against Carl Richess could have done it, isn’t that right?”

“Objection,” Radavich said. “Speculation, exceeds the scope of direct.”

“Sustained.”

No big deal. I got the question out. I had to at least plant the idea that somebody besides Eric could have killed Carl. The
flower would bloom if Nick agreed to testify. If he didn’t, I’d have to find another flower.

N
EXT
, R
ADAVICH CALLED
Freeman Jenks, the tech who had testified about blood at the prelim. Now he was here to talk DNA.

He did, in a concise thirty minutes of testimony. He was pretty good. Went over some of the basics of DNA sampling and matching.
As he did, the jurors’ eyes lit up. There it was. The CSI effect.

Even though I’d prepped the jury on this in the opening, those were still magic letters—DNA.

Especially when Jenks estimated that there was only a one-in-eleven-million chance that the sample was not a match for Eric
Richess.

I felt like Jim Carrey in
Dumb and Dumber.
“So there
is
a chance!”

Instead, I was ready with something else.

“Good morning, Doctor.”

“Good morning.”

“You performed the DNA test on the sample provided by the prosecution, is that correct?”

“That is correct.”

“Did you provide the sample to the defense so that we could also test it?”

“No, the sample was too small. It was used up in the test I performed.”

“Seems a tad unfair, wouldn’t you say?”

“Objection.”

“Sustained.”

I said, “And you used the polymerase chain reaction test, or PCR for short?”

“Yes.”

“You don’t know how the sample got on the gun, do you?”

“I assume it was when it was fired.”

“It may have been fired several days or even weeks before, isn’t that right?”

“I would say only days, because of the condition of the blood at the time I tested it. It was not degraded.”

“Could it have been one week?”

“That’s possible.”

“So, if Eric Richess had fired the gun, say, at a firing range, and some of the webbing of his hand got caught in the slide,
that would be consistent with your test results?”

“That’s all speculation, but yes. Consistent.”

The hard part was over, as far as I was concerned. The blood could have come from Eric on the range, and I was prepared to
call Christa the tattooed range lady—which suddenly sounded like a song sung by Groucho Marx.

There was still a little more fun to be had, however.

“D
OCTOR, ARE YOU
familiar with an error known as the ‘prosecutor’s fallacy’?”

I didn’t have to look at Radavich to know he was tense and irritable, like a businessman with a morning hangover waiting in
a long line at Starbucks.

Jenks said, “I’m not sure I know what you’re talking about.”

“It’s a term from a paper by Thompson and Schumann, titled ‘Interpretation of Statistical Evidence in Criminal Trials.’ Have
you read that paper?”

“Not to my recollection.”

“I’ll give you the definition and ask if you agree.” I looked at the copy in my hand and read. “ ‘The prosecutor’s fallacy
occurs when the prosecutor elicits testimony that confuses source probability with random match probability.’ Do you agree
with that?”

Before he could answer Radavich was objecting and asking for a sidebar.

When we got to the bench Radavich said, “I want to know the basis for this questioning.”

Judge Hughes looked at me and waited.

“This is from a Ninth Circuit opinion, Your Honor,” I said, handing him the copy. “I’m quoting the very language of the decision.”

Hughes scanned it for a full two minutes, then said, “Frankly, I’m not sure I understand what they’re saying.”

“I’ll be frank, too,” I said. “I’m not sure I understand it, either. But that doesn’t matter. I’m not the expert. Jenks is.
And I’m asking him questions he, as an expert, should be able to answer.”

Hughes raised his eyebrows. “He’s got a point there, Mr. Radavich.”

“I want to study this case before any further questioning,” Radavich said.

“I’m sorry,” the judge said. “I’m going to give Mr. Buchanan the benefit of his legal research. You can look at the case later
and decide what you want to do.”

I
COULD HAVE
kissed Judge Hughes then. A big one, right on his dome.

I settled for going back to Jenks. I had the court reporter read back my last question.

Jenks thought about it. “There is a difference, yes, between source probability and random match probability.”

I read, “ ‘Put another way, a prosecutor errs when he presents statistical evidence to suggest that the DNA evidence indicates
the likelihood of the defendant’s guilt rather than the odds of the evidence having been found in a randomly selected sample.’
” I looked at Jenks. “Would you agree with that?”

“Yes.”

“And would you also agree with the old saying that there are lies, damned lies, and statistics?”

He chuckled. “No, I would not agree with that.”

“I thought you wouldn’t,” I said with as much indignation as I could muster, and sat down.

Then Radavich knocked the socks off all of us. “The prosecution rests,” he said.

“A
RE YOU READY
to proceed, Mr. Buchanan?” Judge Hughes said.

“I wonder if we might recess until after lunch,” I said.

“Is that necessary?”

“Mr. Radavich surprised us all, Your Honor. I was sure he would take all morning.” Radavich knew I thought that, too. He had
sandbagged. Wanted to throw me off, like a little hip to the body as I’m driving to the hoop. He succeeded.

Hughes looked at the clock. “Then let’s be back here at one-thirty. I want to get as much in as possible. Court will be in
recess.”

As the deputy came for Eric, he said, “What just happened?”

“The prosecutor’s done. He’s going with the expert testimony.”

“What do we have?”

A wing and a prayer, I thought.

“Me,” I said.

I
TOLD
S
ISTER
Mary to keep trying to get Nick, and to lay as much Catholic guilt on him as possible. I don’t think she appreciated that.

I had Christa Cody, the shooting range woman, on call. I phoned her and asked if she could come down now, and go on at one-thirty.
She was as anxious as an
American Idol
contestant.

Which was not good. The last thing you want out of a witness is acting. During the O.J. trial, there was a prosecution witness
named Kato Kaelin who used his testimony as an audition. He got about fifteen minutes out of it. And the prosecution got zip.

It was going to be one interesting afternoon. But the morning was not over.

I
TOOK THE
elevator down and crossed Spring Street to City Hall. I went through the formal front doors, usually used only for ceremony,
and walked through the marble rotunda with its pillars and bronze caravel, and took an elevator to the fourth floor.

I passed a few council offices until I got to the oak door that said:

COUNCILMEMBER

JAMIE MACARTHUR

ASSISTANT PRESIDENT

PRO TEMPORE

Beneath that was the Great Seal of the City of Los Angeles. I went through the door into a reception area. An attractive African
American woman looked up from her computer terminal.

“Help you?” she said.

“I’m here to see Mr. Nielsen,” I said. “I’m an old friend.”

She picked up a phone. “May I have your name?”

“Buchanan.”

“One moment.” She punched a couple of numbers, waited, then said, “A Mr. Buchanan is here to see you. He says he’s an old
friend.”

“Not that old,” I said.