Authors: Alafair Burke
“In the end, the evidence in this case may present more questions than answers. We may never know who killed Jamie Zimmerman, but I have a feeling you’re going to suspect that it’s not Margaret Landry or Jesse Taylor. I also have a feeling that you’re going to suspect that whoever killed Jamie Zimmerman assaulted Kendra Martin. But one answer you will have for certain: Kendra Martin identified the wrong man, and Frank Derringer is innocent.”
So my paranoia had been warranted. Lopez had a trick up her sleeve after all. But what Landry and Taylor had to do with Derringer’s defense was beyond me.
Judge Lesh apparently agreed. When Lisa finished her statement, he turned to the jury and calmly excused them to their waiting room for a break. Then he sat back, crossed his arms, looked at me, and said, “Before I flip my lid up here, let me confirm, Ms. Kincaid, that Ms. Lopez never informed you that she would be introducing anything having to do with the murder of Jamie Zimmerman. Is that right?”
“That’s correct, your honor. I’m forwarding to the court a copy of the witness list I received from the defense before trial. I received no notice from Ms. Lopez that she would be springing the possibility of a serial rapist at trial, and she obviously reserved her opening statement so she could drop this bombshell as late in the day as possible.”
Lesh looked at the witness list and shook his head. “Alright. That’s pretty much what I figured. Ms. Lopez, give me a good reason why I shouldn’t declare a mistrial right now and then send a letter down to the Bar suggesting that they look into this little stunt you’ve pulled here.”
Oh, petty vengeance can feel so good. If I could’ve stuck my tongue out at her without anyone noticing, I would have. In fact, this was good enough to warrant a big wet raspberry, but I settled for my best poker face.
Lisa feigned ignorance as she rose from her seat. For someone like me who roots for Sylvester to eat that damn baby-talking yellow bird it was hard to take. “I apologize if I’ve done something inappropriate, Judge Lesh, but I believe I have complied with my obligations toward the State. I’m not required to do the State’s work, your honor. All I have to do is disclose my witnesses, which I did, and I’m entitled to reserve my opening.”
Lesh wasn’t buying it. “You mean to tell me that the people on this list are going to raise the specter of a serial rapist who attacked the victim in this case and also killed Jamie Zimmerman three years ago?”
“No, your honor. Those witnesses serve a legitimate purpose “
Lesh cut her off. “You mean the legitimate purpose of throwing the prosecutor off track?”
Lisa was on the edge. She was getting defensive. “Your honor, if Ms. Kincaid was thrown off track, that’s not my fault. I do intend to question those witnesses. They don’t know about the Jamie Zimmerman case, but the State’s witnesses do. And Oregon’s discovery rules are clear: I can call any witness named by the State without having to declare my intention to do so ahead of time. It just so happens that the same investigative team in this case handled the Zimmerman investigation.”
I cut in. “I find Ms. Lopez’s choice of words interesting. It seems to me that if these two cases didn’t just so happen’ to involve the same detectives, we might be hearing about some other old case that the MCT handled. This entire tactic seems manufactured to spring something at trial and catch the State off guard.”
“I’m inclined to agree,” Lesh said. “Ms. Lopez, you may be in technical compliance with the discovery statute, but you have certainly violated its spirit. It would’ve been nice of you to tell Ms. Kincaid what was going on here.”
Lisa worked her jaw and looked for words. “With all due respect to your honor and to Ms. Kincaid, my job isn’t to be nice. My job is to defend my client. I sincerely believe that Mr. Derringer is innocent. If I had trusted Ms. Kincaid to believe my sincerity, I would have gone to her in the hopes that she would dismiss this case and reopen the Zimmerman investigation. But from the minute she walked over to the Justice Center to handle the arraignment on this case personally, your honor, Ms. Kincaid has made it clear that she wants to hammer my client. So I weighed my options and decided on this one.”
I started to defend myself, but Lesh didn’t see a need for it. “Ms. Lopez, I’m letting you know right now that both you and Ms. Kincaid have appeared before me several times since I’ve been a judge, and up until today I’ve never had reason to question either of your ethics. Your attempt to impugn Ms. Kincaid’s integrity has failed with me. I hope you understand that. Now, here’s what we’re going to do. I have deep suspicions about your intent, Ms. Lopez, in holding your cards so close to your chest. But it looks like you have stayed within the letter of the law. So for now you’re not in lawyer jail. Consider yourself lucky.”
When a slight smile registered at the edges of Lisa’s mouth, Lesh leaned forward. “Not so fast, Ms. Lopez. Your strategy will have its consequences. You can’t have it both ways. You’re going to have to make your case with the State’s witnesses and the ones disclosed on this sorry witness list. I won’t let you parade a couple of convicted murderers in front of this jury, and I won’t let you bring in anything you can’t get through those witnesses. With that in mind, I suspect that much of what you said in your opening statement is hearsay. At the end of the trial, I will instruct the jurors that they should disregard anything you said in opening that wasn’t actually proven through evidence during the case. With that said, it’s time we brought these jurors back in, so we can get on with this trial.”
I rose to address him. “Your honor, the State requests a continuance. I need time to research this defense. I’d like two weeks to investigate any possible connection between this case and the Zimmerman murder. I assure the Court and Ms. Lopez that if we determine a connection, we’ll proceed as necessary from there.”
I could tell from the way that he tilted his head and smiled that he sympathized, but he wasn’t going to give me any time. “I understand that you’ve been put in a jam, but you don’t really think you’re going to find a connection between these cases. What you want is time to disprove a connection so you can nip this defense in the bud. Trust me, I understand that desire.
“But Ms. Lopez is right. The defense is not obligated to disclose its theory ahead of time, only its witnesses and any alibi defense. Basically, she’s allowed to drop these little bombshells. I suspect it’s one of the things that make being a defense attorney entertaining. If she really wanted to screw you over, she could’ve waived opening altogether and hid her cards until testimony.”
He told me he’d give me some leeway during rebuttal to recall witnesses, but it was little consolation.
As an alternative, I moved to exclude any evidence relating to Zimmerman’s murder, at least until I had a chance to file a written motion to exclude Lopez’s defense. In my urgency to point out that Lisa had been a complete bitch in failing to disclose the defense’s theory, I had almost forgotten to question whether the evidence supporting Lopez’s theory was even admissible. Any connection between this case and the Zimmerman murder was tenuous at best, so I had a good argument that, even if the Zimmerman case was minimally relevant, any relevance was substantially outweighed by its potential to distract and confuse the jury.
I think Lesh skipped that part of the analysis as well and now saw the opportunity to get this mess out of his courtroom. The problem was, we were venturing into a risky area of the law. Trial courts routinely get reversed on appeal if they completely prohibit a defendant from presenting his theory. On the other hand, as long as the trial judge lets the defendant present his theory, the court has tremendous latitude in excluding evidence that might support it. The fact that I understood the nebulous distinction between the defendant’s theory and the evidence used to support it made me think I’d become a complete asshole.
Luckily, Lesh understood the relevant distinction too, so I wouldn’t have to try to explain it.
“I can tell you right now, Ms. Kincaid, that I’m not about to keep the defense from arguing that someone else might have committed this crime. But, I’m no Judge Ito either, and you’re correct to point out that the defense doesn’t necessarily get to put on whatever evidence it wants. So, here’s what we’re doing. Ms. Lopez, either you agree to a continuance or you call the witnesses you named on your discovery list before you start calling cops to the stand to talk about the Zimmerman case.”
Lisa objected. Big surprise. “Your honor, it’s highly unusual for the Court to dictate the order in which evidence is presented.”
“Well, it’s also highly unusual for an attorney to pull the kind of stunt you’ve pulled this morning. Think of this as another repercussion of your strategy.” He had noted Lisa’s objection but then forced her to make her choice.
“I have no interest in a continuance, your honor. Mr. Derringer is eager to go home.”
“Very well then, Ms. Lopez. No mention of Jamie Zimmerman, Margaret Landry, or Jesse Taylor again until I’ve ruled on these issues. Now we’re taking a twenty-minute recess so we can collect our thoughts.”
Forcing Lopez to work her way through the boring stuff first helped me in a couple of different ways. Obviously, the detectives and I could use some time poring over the police reports for the Zimmerman murder to get up to speed, and I could prepare a motion to exclude evidence about the case. But even if the evidence wound up coming in, Lesh had provided a more subtle kind of assistance. In the time it would take Lisa to get through these other witnesses, the jury might forget the drama of her opening statement, and the defense might lose its momentum. Along the same lines, it would be hard for Dan Manning to write a great story when he had no trial testimony to back up the opening statement yet.
For those reasons, I decided I wouldn’t object to testimony relating to Andrea Martin’s arrest for criminal trespass at the Lloyd Center Mall, although it was blatantly inadmissible. It was better to let Lisa present that kind of innocuous evidence and hope the impact of her opening statement wore off before the sexy stuff started. Plus, I might have a better chance of getting Lesh to exclude the damaging evidence if I didn’t throw a fit over this chippy stuff.
A twenty-minute recess wasn’t much, but at least I could update my investigators so they could start working on it while I was in trial.
I almost knocked Dan Manning on his ass as I was rushing out of the courtroom. He looked like a high school kid who just won a swimming pool full of beer and a squadron of cheerleaders to share it with. I could see his willingness to be sucked into Lopez’s defense. It was, after all, a great story. But I didn’t have time to set him straight and I suspected it wouldn’t work anyway. So instead I almost knocked him on his ass.
To save valuable time, I pulled out my cell phone rather than fight the courthouse elevators to get back to my office.
My first call was to Alice Gernstein, the paralegal in our major crimes unit. I gave her a quick rundown of what was going on and asked her to pull the files from the Landry trial from archives and put them on my chair and to order the trial transcripts. As it turned out, she had already pulled the stuff for O’Donnell. He had prosecuted Landry and Taylor and was now part of the investigation into the new letter to the Oregonian. Alice said she’d make copies for me. I also asked her to tell O’Donnell that I was going to need to talk to him soon, since he’d handled the Zimmerman case.
Next, I called MCT. I was lucky. Chuck was out interviewing a witness, but Ray and Jack were both in. They put me on speaker and I told them what Lisa had unloaded in her opening.
It was a great opportunity for catty chat about my nemesis, but I told them I had to make it quick. They had already refreshed themselves on the Zimmerman case, since they were working on the investigation into the anonymous letter. I warned them that Lisa might call them back to the stand to testify about the case.
“Do you have anything yet on the letter?” I asked.
They were silent. I could picture them looking at each other over the speakerphone, wondering how to tell me that I was outside the official circle of knowledge. Walker handled it. “This thing’s really hot, Sam. O’Donnell and the lieutenant are going nuts over it, this being the first execution and all. If anything leaks “
“Hey, forget it. I only asked because it would obviously be a lot easier to defuse this Lopez stunt if we could show that the letter was a hoax. If you don’t want to tell me “
I heard the line get picked up off the speaker. Walker spoke quietly into the handset. “Look, don’t count on getting anything on the letter. No prints. No DNA on the envelope or stamp. Typewritten on plain paper and dropped in a mailbox by the side of a road.” Great. No help for me, and no help to Chuck. “And Sam,” he said. “No one knows, not even Chuck. I just didn’t want you getting your hopes up.”
I hung up feeling let down. It would be easiest if I could tie up any loose ends that Lopez pulled free about the Zimmerman case, but apparently I couldn’t count on that. I would need to convince the jury that Derringer was guilty, even if they developed doubts about the guilt of Landry and Taylor.
When court resumed, Lisa called her first witness, the star with the alibi convicted felon Derrick Derringer.
His testimony was predictable. Lopez did her best to make him sound respectable. He owned a home in southeast Portland and worked night shifts at one of those quickie oil-change places. As expected, he swore under oath that his loser brother had been at his house on the night Kendra was attacked. According to Derrick, his brother Frank a few months on parole and ready to set off on a new law-abiding lifestyle had walked the mile and a half to his house to hang out. They wound up watching a Saturday Night Live repeat. He remembered that John Goodman was the host because he did a brutally accurate impersonation of the woman who had sold out the former president’s mistress to the independent counsel. I wasn’t impressed. Last time I checked, John Goodman hosted that show a couple times a month. And it still wasn’t funny.