Authors: H. Terrell Griffin
“What did you find?”
“The only thing of significance was some hair from Mr. Hamilton’s comb.”
“Why was the hair important?”
I was on my feet again. “Objection. The witness is not qualified to testify to that.”
“Well,” said the judge, “We don’t know why he thinks it’s important, do we?”
“May we approach, Your Honor?” I asked.
“Come on,” the judge said, motioning us forward.
Elizabeth and I huddled at the judge’s bench, while the court reporter got her machine so that she could hear our whispered conversations and get it all on the record. “Judge,” I said, “The witness is going to testify about DNA, and Lord knows what else. He isn’t qualified to do that, and we need to wait until someone who is can take the stand.”
“I wasn’t going to ask him about the results of testing, Judge,” said Elizabeth.
“Where are you going with this Ms. Ferguson?” he asked.
“Chain of custody, Your Honor,” she replied. “I’m simply asking the witness to tell me what he did with the hair sample.”
“She asked him about the importance of the hair sample, not what he did with it,” I said.
“Okay,” said the judge, “Don’t ask him about the importance of the hair. Establish your chain of custody, and let’s get this show on the road.”
I went back to my chair, and Elizabeth turned to the witness, who had heard the entire conversation at the bench. “What did you do with the hair, Detective Banion?”
“I took it to the Florida Department of Law Enforcement Crime Lab in Tampa for DNA testing.” He planted the DNA question in the minds of the jury. Now they would be primed to hear the rest of this, because everybody knew DNA was solid evidence. I thought Elizabeth was pulling a fast one on me and the Judge, but it wouldn’t do me a lot of good to object now. It’s impossible to put that cat back in the bag. But Elizabeth surprised me again.
“Detective Banion,” she said, her voice cold, the words flung like cubes of ice into the face of the witness, “I didn’t ask you why you took the sample to Tampa. I asked you what you did with it. Please answer my questions, and do not elaborate.”
“Sorry Counselor,” Banion said.
“To your knowledge did the lab conduct DNA testing?”
“Yes.”
“I have no further questions of Detective Banion,” said Elizabeth.
“The judge turned to the jury. “Ladies and Gentlemen, we’ll take our lunch break now. We’ll reconvene at 1:30.”
Banion was back on the stand, swelled with his own importance, glowing in his flashy haberdashery. I stood quietly for a moment, giving him time to wonder at my first question.
“Were you still drunk when you arrived at the crime scene?” I asked.
“Objection, your Honor.” Elizabeth was on her feet, eyes flashing. I had struck a nerve.
“What are your grounds, Counselor?” asked the judge.
“This is absurd. Detective Banion is a respected law enforcement officer,” said Judy, glowering at me.
“Those are not legal grounds. Objection overruled.”
I looked at Banion, waiting. “Absolutely not,” he said. His face was red with anger, the little capillaries of the drunk standing out like major thoroughfares on a road map.
“But you were hungover,” I said.
“Your Honor,” said Elizabeth, coming to her feet.
“Let him answer the question,” the judge said.
“No, sir,” said Banion.
“Where were you on the evening of April 15, the night before you arrived at the crime scene?” I asked.
“Your Honor, may we approach?” asked Elizabeth.
The judge waived us forward. The court reporter moved in close for the whispered conference with the judge.
“I hate to keep objecting, but this all seems completely irrelevant to me,” whispered Elizabeth.
“I agree, Mr. Royal,” said the judge. “Where are you going with this?”
“I intend to show that Detective Banion was so hungover the morning of April 16, that he could not have overseen a murder investigation.”
“Do you have evidence to back this up?” asked the judge.
“Yes, sir,” I said.
“Proceed then, but don’t overstep Mr. Royal.”
We returned to our places. “Where were you on the evening of April 15?” I asked Banion.
“I don’t remember,” he responded.
And with that answer, he sprung the trap.
“Detective, are you familiar with Gary’s Sports Bar on Cortez Road?”
“Yes.”
“As a matter of fact, you spend a lot of time in that bar, don’t you?”
“I go there occasionally.”
“If some people testify that you were at Gary’s on the night of April 15, would you dispute it?”
“No. I don’t remember being there that evening, but I might have been.”
“And if the same people testify that you did not leave the bar until after closing at 2:00 A.M., would you dispute that?”
“I don’t remember.” He was losing some of his bluster.
“But would you dispute that testimony?”
“I’d have to hear it, first.” I had him now. The jury could see that he was waffling in his testimony, and that is usually devastating. If a witness will lie about one thing, he will lie about others. A lie, or a convenient loss of memory, always undermines testimony that the witness is so sure of.
“And if people testify that you were drunk when you left the bar would you dispute that?”
“I would.” Drunks never admit they were ever drunk.
“Tell us about the fight you got into that night.”
“What fight?”
“The fight where you punched a tourist from Indiana.”
“I don’t remember that.” He was talking low now, his confidence eroded.
“You don’t remember it because you were drunk?”
“Maybe.”
“Do you remember the owner of Gary’s driving you to your home at 3:00 A.M.?”
“If you say so.” He was totally cowed now.
“And you arrived at the scene of the crime less than 4 hours later.”
“Yes, sir.”
“No more questions, your Honor.”
Banion left the stand with a lot less confidence than when he took it. Elizabeth ignored him as he walked from the courtroom.
“Call your next witness,” said the judge.
Elizabeth called the director of the Florida Department of Law Enforcement’s crime lab in Tampa. She asked him about his qualifications, his academic background, and offered him to the court as an expert on DNA. She established that the lab had taken custody of a sample of sperm taken from Vivian’s vagina and a few hairs from Logan’s comb. The DNA matched. The hair and the sperm came from the same man.
There were some holes in the testimony, since the comb had not been directly connected to Logan. I could have made a case that the hair in the comb was from a visitor to Logan’s condo, but I had agreed with Elizabeth not to do that. In fact, I had stipulated that the hair was Logan’s, and she reported that to the jury after the director finished testifying. If I had not agreed, Elizabeth could have forced a DNA sample from Logan, and put the trial off until the lab work was done. This could have taken weeks, as she mentioned to me, given the back log in the lab, and Logan would have enjoyed the hospitality of the county jailer during that time. Since I was not going to argue that Logan had not had sex with Vivian on the evening of her death, I could see no harm in moving things along.
Elizabeth called a couple more unimportant witnesses dealing with the DNA and then we broke for the day.
I had ordered a dinner of subs and diet cokes from the deli across the street from the courthouse. Logan and I ate an early supper in a witness room, with an armed guard outside the only door. They would go directly from here to the jail for the evening. I thought Logan would like the sub better than the crap served by the county to its inmates.
“You’re knocking them out of the park,” Logan said, speaking around a large bite of cheese steak with all the fixings.
“No, we’re not,” I said. “We’re just playing defense. Elizabeth is building her case, and I’m just trying to punch small holes in it.”
It was true. A case is built a small brick of evidence at a time. Elizabeth was getting in everything she needed to make the prima facie case for murder. I had, to continue Logan’s metaphor, only hit a couple of ground balls, and nobody was on base. Elizabeth had spent her time establishing that there had been a dead body in Logan’s condo, and that the DNA proved that Logan had had sex with Vivian shortly before her death. She would continue with the technical details for the rest of the day and probably the next. She still hadn’t established motive, and that was going to be harder to do. On the other hand, she did not really have to establish a reason for the murder, only that a murder occurred and that Logan probably did it.
“Don’t put too much into what is going on in the early part of the trial,” I said. “Elizabeth has a way to go to prove her case, and then we get our turn at bat.” I hate to waste a good baseball metaphor. “We’re still in the first inning.”
“We’re going to win, right?”
“Logan, that is the sixty-four dollar question.”
We finished our dinner in silence.
Day three was over. I had scored a few points, but I still had an uphill battle. I headed for Longboat, looking forward to a beer, a late dinner, and a good night’s sleep. I knew I could count on the first two, but would probably sleep fitfully, if at all. Trial lawyers are prone to nightmares.
Anne was at my condo when I arrived. I had told her where I hid the extra key, and she had let herself in. Grocery bags were strewn across the counter top. She was barefoot, wearing shorts and a halter top. She looked delicious. “Hey Counselor,” she said softly, as she folded herself into my arms. “You look beat.”
“I am. I’m getting too old for this crap.” That’s the lament of every trial lawyer over thirty, but I think we all feel it during a trial.
“Sit down and take off your shoes and tie. I’m going to make dinner tonight.”
I went to the living room and did as told. She was right behind me with a cold beer. “When you finish that, go get a hot shower. It’ll make you feel better, and dinner will be almost ready.” I didn’t tell her about the sub with Logan.
Anne had called on Sunday evening to fill me in on her Miami trip. She needed a couple of days to get everything set, and she would be back in Longboat on Wednesday evening. I was glad to see her.
Over dinner I filled her in on the day’s events, and told her I was still worried about what Elizabeth had that I didn’t know about. “I always think there is something the other side knows that I don’t. Usually they don’t have anything, but I stay awake nights thinking about it. I just can’t figure out why Elizabeth went into this with what seems to me to be a thin circumstantial case.”
“Well,” said Anne, “they did find Vivian’s body on Logan’s balcony. How did she get there? And why? Then you have a State Attorney running for reelection next year, and you probably have the makings of a case.”
“You’re pretty cynical for a real estate lawyer.”
She laughed. “I think the cynicism starts in law school.”
“Is that what made you decide to go into real estate law?”
“Not really. The firm made me a great offer, and I had a lot of educational debt to pay off. I just took the job without thinking too much about it.”
“What do you think now?”
“I think the loans are almost paid off, and I’m ready to start representing real people for a change. Do you know how boring it is to do the same thing over and over again for the same big company, and still have them question your bill every month? I spend as much time explaining my bill to the company bean counters as I do practicing law.”
“What are you going to do?”
“I don’t know, Matt. I don’t have any anchors. My brother was the only family I had, and he’s gone. I’ve got my nieces and nephews, who are more like siblings to me, but they’re spread all over the country now, with lives of their own. I’ll wake up some morning and know that that is the day for me to make a decision, and I will. We’ll see.”
We made small talk for awhile, and then headed for the bedroom. I could get used to this. Anne was a good cook, and sex before bedtime always makes the trial lawyer sleep better.
THURSDAY
Thursday. Day four. I was in the courtroom early, reviewing statements from the trove of documents Elizabeth had given me. The court deputy came in and said that Logan wanted to talk to me before court began. I met him in the witness room.
He was looking more and more haggard. He was handcuffed, a rule I had already been told could have no exceptions. He would only be let out of the cuffs when he was in sight of the jury. “How’s it going, old buddy?” I asked.
“I’ll survive, Matt, but not for long if I’m locked up.”
“Try to be patient. We’ll be through by the end of this week.”
“I know. And you’re doing a good job. I just wanted you to know that I’m glad you’re my lawyer.”
“Thanks, Logan. You ready for court?”
We walked into the courtroom to start the next segment of this fight for life or death.
Elizabeth called Dr. Bert Hawkins as the first witness. After qualifying him as an expert in forensic pathology she began the examination.
“Doctor Hawkins, do you hold an official position with the government?”
“Yes. I am the Chief Medical Examiner for the Twelfth Judicial Circuit, which is made up of Sarasota, Manatee and Desoto counties.
“Doctor, did you have occasion in your official capacity to perform an autopsy on a body identified as that of Vivian Perkins?”
“Yes.”
“Did you reach a conclusion as to the cause of her death?”
“Yes.”
“What was that conclusion, Doctor?”
“She died from manual strangulation”
“You mean somebody choked her to death?”
“Yes.”
“How did you determine that Doctor?”
“The small U shaped bone in her neck called the hyoid bone was fractured, and she had bruising around the neck that was consistent with someone’s hands exerting a great deal of pressure on her throat. Also, petechiae were present in the conjunctivae.”
“What are petechiae and what are their significance, Doctor?”
“Petechiae are pinpoint-sized hemorrhages of small capillaries, in this case in the conjunctivae, which are the thin, transparent tissues that cover the outer surface of the eyes.”
“Were you able to determine a time of death?”
“Within reasonable probability, the time of death was between 11 P.M. on April 15, and 3:00 A.M. on April 16.”
“You mentioned the bruising on the victim’s neck. Was there any other bruising on the body?”
“Yes. The area around the vaginal opening was bruised.”
“Did this lead you to believe she had been raped?”
“No.”
“No?” Elizabeth seemed surprised. Had she missed something? Was this her Achilles heel? “Doctor, doesn’t that kind of bruising usually result from rape?”
“Not always.”
“Doctor, I’m a little confused here. If a rape didn’t cause the bruising, what did?”
“It could have been any number of things. She could have engaged in rough sex; she could have fallen on something, straddling it and getting the bruises.”
“Nothing further,” said Elizabeth, obviously in a snit.
She had just made what could be a fatal error. She had violated the first rule that every trial lawyer learns. Never ask a witness a question to which you do not know the answer. Even seasoned trail lawyers make this mistake sometimes. It is usually because the lawyer assumed she knew the answer, when in reality she had not fully prepped the witness. I could see how that happened here. Elizabeth and the Medical Examiner had tried a lot of cases together. They knew each other well. Elizabeth had read his report, and gone along with the conventional thinking, that bruising around the vagina meant rape.
I was going to have to begin to get into the personal lives of Vivian and Logan. I rose, walked to the podium and said, “Good morning, Doctor.”
“Good morning, Counselor.”
“You don’t think Vivian was raped, do you?”
“I don’t have an opinion either way.”
“Would it be fair to say that if a rape had occurred you would have expected to find tearing of the vaginal tissue?”
“That would be fair.”
“You didn’t find that in this case, did you?”
“No, but that is not always dispositive.”
“What do you mean by that?”
“I have seen rape victims that didn’t have the vaginal tearing.”
“But those were always live victims who told you they had been raped, right?”
“Yes, that’s right.”
“Tell the jury why vaginal tearing is of some importance in the diagnosis of rape?”
He turned in his seat to face the jury. “When a woman is ready for sex, she secretes a lubricant into the vaginal tract. When there is no lubricant, the forceful penetration of the vagina causes tearing of the delicate tissues.”
“You said that rough sex could cause the bruising you found?”
“Yes,” said the M.E.
“If there is testimony in this case that Vivian and my client Logan had engaged in rough sex shortly before her death, would you agree that given everything you know about this case and about Vivian, you would have to form an opinion that rape did not occur?”
“Objection!” Elizabeth was on her feet, fuming. “That is assuming facts not in evidence.”
“Your Honor,” I said, “I will tie this up in my case.”
“Overruled,” said the judge.
I turned back to the witness stand. “You may answer, Doctor.”
“Correct.”
“In other words, with that evidence you would be of the opinion that Vivian was not raped.”
“That is correct.”
Big time win on this one. I thought I may have just shot down Elizabeth’s motive. I still figured she had something else. She was too good a prosecutor not to have a fall back position on something as important as motive. Still, even experienced lawyers make mistakes.
“I’d like to move on to another issue, Doctor,” I said. “You told Ms. Ferguson that in your opinion the time of death was between 11:00 P.M. on Thursday night, and 3:00 A.M. on Friday morning. Can you be more exact than that?”
“No, sir.”
“Would you agree with me that you cannot fix the exact time of death?”
“Yes.”
“So the best you can do is approximate.”
“That’s correct,” said the doctor, “but it is a scientific estimate as opposed to a guess.”
“I understand that, but wouldn’t the chances of pinpointing the exact time of death diminish as you moved toward the outer edges of the estimate? For example, wouldn’t there be a greater possibility of the death occurring between midnight and 2:00 A.M.?”
“Yes.”
“So, an estimate of time of death as between midnight and 2:00 A.M. would be a better scientific estimate than the four hours between 11:00 P.M. and 3:00 A.M.”
“I would agree with that.” said the witness.
“Can you narrow that time span any more?”
“No, not with any kind of scientific reliability.”
“Thank you, Doctor. That’s all I have.” I returned to my seat as Elizabeth was rising.
“Doctor,” Elizabeth said, “based on the evidence you’ve seen, you can’t say whether the victim was raped, can you?”
“Based on the evidence I’ve seen, and what Mr. Royal suggested the evidence will be, it would be my opinion that she was not raped.”
He was good. He really didn’t like lawyer word games, and he was showing it. Elizabeth had tried to set him up to testify as she wanted, and he had slid right by her. I guessed there would be hell to pay when the trial was over. Prosecutors don’t like their witnesses to testify truthfully, if the truth hurts their cases.
Elizabeth had had enough of the Medical Examiner. She sat down and the witness was excused by the judge. We broke for lunch, and Elizabeth stormed out of the courtroom without a word, her assistant trailing behind.
Anne had been in the courtroom all morning, and she and I joined Logan in the witness room for another lunch of sandwiches. I introduced them, and explained to Logan Anne’s involvement, including her brother’s death. “And,” I said, “she’s sweet on me.”
“Geez,” said Logan, grinning, “I’m on trial for my life, and you bring a date.”
That was the first flash of humor I’d seen from Logan since the indictment, and I thought it was a good sign. “You seem a little more chipper today,” I said.
“That was a great cross examination of the M.E.,” said Logan. “I’m beginning to think we can win this thing.”
“We made some good points,” I said, “but we still have a way to go.”
Anne asked, “Do you have enough for a directed verdict of acquittal?”
“I don’t think so,” I said, “but I’ll make the motion anyway. You never know, and it will be a ground for appeal if we lose.”
“We’re not going to lose,” said Logan. “I feel it.”
“I think the prosecution is winding down,” I said. “I don’t know what else Elizabeth can put on. We have a decision to make, Logan, and it’s your call.”
I explained to him my plan for the defense, and the fact that I thought this might be the only way to open the way for a prosecution of the real killers. I told him that I thought with the thin case Elizabeth had put on, we could remain moot, not put on any evidence, and argue to the jury that the state had not proved its case and that they had to acquit. I could excuse Logan’s not testifying as I had promised, by the fact that there was no need for him to do so, since there was no case to begin with. I told him that there is always the chance that a plan will go off the rails; that a witness might testify differently than expected; that the prosecution might bring out something in cross examination that we did not know about. There was also the chance that the jury would not buy my argument that the state had not proved its case and convict if we didn’t put on any evidence.
“If we quit now, what happens to the killers?” Logan asked.
“In all probability, they’ll walk,” I said.
“And you think the same people who killed Vivian killed Anne’s brother?”
“You can bet on it,” Anne said.
“Then we need to go ahead with the evidence,” he said. “I want the bastards who killed Vivian, and I know Anne wants to see them hang.”
“You sure?” asked Anne.
“I’m sure,” said Logan. “Go for it, Matt.”
Elizabeth rested her case when we came back from lunch. I made a motion for directed verdict of acquittal, which was promptly denied. The judge asked me if I was ready to proceed with my case. When I responded that I was, Elizabeth rose to object.
“Your Honor,” she said, “Mr. Royal provided me with a witness list on Monday morning. I’ve had investigators interviewing these witnesses since, and most of them wouldn’t talk to us. I object to the late notice of witnesses and ask the court to disallow their testimony.”
“Denied,” said the judge.
“But your Honor, how am I supposed to prepare my case if I don’t have access to the witnesses?”
“Your Honor,” I said, rising to my feet, “Ms. Ferguson gave me nine days lead time to get ready for trial. I asked her for ninety days. She said no. If we had had that time, she could have deposed the witnesses. I think she has hoisted herself on her own petard.”
“Mr. Royal is the one who wanted the quick trial,” Elizabeth said.
“Children, children,” said the judge, “I’ve ruled. The motion is denied. Sit down. Deputy, bring in the jury.”
Things were not going well for Elizabeth, but I knew this trial had a long way to go. She was an able prosecutor, and I was still worried that she had held something back, and would spring it on me at the worst time.
I called Will Ledbedder. Will had flown in the night before from Chicago, taking vacation time to help me out. I had him state his name, occupation and place of residence. He told the jury about Vivian’s background, her conviction, her incarceration and her rehabilitation. He also told them that she had disappeared from Chicago and that at the time of her death there had been a warrant out for her arrest.
“Who is Joseph Dean Johnson?” I asked.
“He was Ms. Pickens’ pimp, known as Golden Joe.”
“Where is Golden Joe now?”
“Dead,” said Will.
“What do you know about his death?”
“Shortly after he got out of prison, he disappeared. A few days later his body was found in Miami, shot through the head.”
“What was he in prison for?”
“Objection,” said Elizabeth. “What possible relevance could this have to the case we’re trying?”
“I was wondering that myself, Mr. Royal,” said the judge.
“May we approach the bench?” I asked.
He waved us forward. Leaning in, whispering, I said, “Judge, I can tie this all up with the next few witnesses. I’m going to show the jury that someone else killed Vivian.”
“Okay, Mr. Royal, but tread lightly. If you don’t tie this up, you’re going to have to send for a toothbrush, because I will jail you for contempt of court.”