Authors: Howard Fast
“When we first started our relationship, she occasionally slept in my son's room. I must explain that he lives in California. But after she moved into my apartment, she always slept with me in my bedroom.”
“And when was that?”
“The first week of AprilâApril third, I believe.”
“Now, Professor Goldman, do you sleep soundly through the night without awakening?”
“No. As far as I know, no man of my age doesâ”
Rudge interrupted with an objection: “He is not a statistician or a physician.”
“Mr. Rudge,” the judge said, “he has qualified his statement by saying as far as he knows. I'm going to allow it. You may continue, Professor. The objection is overruled.”
“I was going to say,” I continued, “that from what I have read and from discussions with my contemporaries, most men over sixty-fiveâand I am seventy-eightâwake up to urinate once or twice, or even three times during the night. This, I am told, is due to an enlargement of the prostate gland with age; and my own pattern is closer to three times. Usually, I awaken an hour after I fall asleep. When I awakened to urinate an hour later, Elizabeth was sound asleep next to me.”
“How do you know it was an hour later?”
“We have a clock in the bedroom. The face of the clock is lit.”
“What time was it then?”
“Ten-thirty.”
“How are you able to recall this so precisely?” Sarah asked.
“Five days later, the police appeared with a search warrant. That was when they arrested Elizabeth. When she was released on bail, we recalled the hours and noted them for reference.”
“So according to your testimony it would have been impossible for Mrs. Hopper to have left your apartment, traveled to Wall Street, killed Mr. Hopper, and then returned to your bed?”
“Absolutely impossible.”
Rudge had already objected: “Calls for a conclusion.”
The judge agreed with Rudge and admonished the jury to ignore my statement.
“Is it inconceivable to you that Mrs. Hopper could have committed a murderâa deliberate murder such as this was described to the jury?”
Once again, Rudge objected that this called for a conclusion.
“I agree,” Kilpatrick said. “Look up the word in your dictionary, Ms. Morton.”
“Yes,” I said. “Inconceivable.”
“The jury will ignore that remark,” the judge said crossly.
“I have no more questions for this witness,” Sarah said.
Rudge stood up for the cross-examination, and said, “Do you love the defendant, Professor Goldman?”
“Yes.”
“And you intend to marry her?”
I expected Sarah to object, but she did not.
“Yes,” I replied.
“And would you lie to save her life?”
“That's outrageous!” Sarah cried. “I do object.”
“Sustained,” the judge said. “And you should know better, Mr. Rudge. The witness is under oath.”
“I'm sorry, Your Honor,” Rudge said. Sarah was getting under his skin. He didn't know how to deal with her, and the scathing attack he usually launched at criminal-defense lawyers was not applicable here. You don't humiliate and put down a black woman with the whole media alert. Also, there was no harmony between him and Judge Kilpatrick.
“Do you ever take more than a single twenty-milligram dose of Temazepam, Professor?”
“Once or twice, I have doubled the dose,” I replied. “It's still harmless.”
“You testified that you took no Temazepam the night of May twenty-fourth. Don't you take it every night?”
“No.”
“I have here,” Rudge said to the judge, “copies of two sequential prescriptions for Temazepam, written for Professor Goldman, one, a month after the other, each for thirty capsules. I would like to enter them as evidence.” He handed them to the judge, who then handed them to the clerk.
“Might I see them?” I asked.
The clerk passed them to me. One was for May 4th, 1996, and the other for June 4th, 1996. I gave them back to the clerk.
“Here, Professor Goldman, I have two prescriptions for Temazepam thirty days apart. Obviously, you took one each night, is that not so?”
“Obviously not,” I replied. “I go to the doctor for a prescription when I can. I go to the drugstore when I can. If I have a few extra capsules, this does not concern me. I find it reassuring.”
“And you still insist that you did not take Temazepam on the night of May twenty-fourth?”
“That is correct.”
“I have no more questions for this witness,” Rudge said.
I left the witness stand and returned to my seat in the audience. Liz turned from her seat at the table, looking at me longingly. I had lied under oath, and it would be false to say that I did this with no compunctions. I had always taken my oath as an officer of the court very seriously; it was ingrained, you might say, as part of my nervous system and I thought of the lectures on legal ethics that I gave to every class I taught. Well, from here on, the case was Sarah's, with the assistance of J. J.âbut then it had always been Sarah's. A man who has spent thirty years teaching contract law is neither a litigator nor a responsible criminal defender, and he does not become one overnight.
The next witness Sarah called was Dr. Sam Bernstein. His doctorate was in inorganic chemistry, and he worked in the forensics department of Manhattan South. She asked the judge whether she might treat him as a hostile witness. It was he who had analyzed and matched the lipstick on the fax paper with Autumn. He was a small, pink-cheeked man with a Vandyke and a mustache, and his attitude immediately bespoke a long history of testimony.
“Dr. Bernstein,” Sarah said, “what is your work at Manhattan South?”
“Chemical analysis.”
“Do you mean in the broadest sense? Not a single specialty?”
“I am available for any matter that requires chemical analysis. Of course, I have assistants.”
“But in the case of the murder of William Sedgwick Hopper, you undertook the analysis of the lipstick writing on the fax paper yourself. Is that not so?”
“Yes. When dealing with important cases, specifically in homicides, I do the work myself. With assistance when I require it.”
“Now, can you tell me how many substancesâthat is, chemical ingredientsâare involved in the manufacture of lipstick in the United States?”
“I'm afraid not.”
“Why not?”
“Because there are so many chemical ingredients that I could only make a guess.”
“I don't want a guess, thank you. Nevertheless, you made an analysis and Mr. Rudge entered your analysis as evidence for the state in this trial, the outcome of which could mean life imprisonment for the woman involved. Will you please tell me how you made this analysis?”
“I matched eleven chemical ingredients and then I matched the color.”
“Does that mean you matched every chemical ingredient?”
“No. We do not work that way. I consider a match of eleven ingredients and color enough to draw a valid conclusion.”
“Do you, indeed? And yet you know that this case depends on a series of pieces of circumstantial evidence, among which the lipstick match is very important. Do you, as a doctor of inorganic chemistry, consider your conclusion valid that Autumn, manufactured by Devlon, was the kind of lipstick used to write the words on the fax paper? Specifically, the kind of lipstick found in Mrs. Hopper's bag and in her bathroom?”
“Yes, I do.”
“Would you please name the eleven ingredients upon which you depended?”
Bernstein, apparently expecting this question, took a small notebook from his jacket pocket and read: “Castor oil, acetylated lanolin, ozokerite, candelilla wax, paraffin, carnauba oil, cetyl alcohol, mica, cyclomethicone, synthetic wax, and lanolin. And, of course, color.”
“Thank you,” Sarah said. “I have no more questions for this witness.”
Rudge appeared to hesitate; then he rose and asked Bernstein how many years he had spent in police forensics.
“Twenty-nine, sir.”
“And you have matched lipsticks previously?”
“Frequently.”
“How frequently, if you can recall?”
“Taking twenty-nine years and including my staff, I would say over a hundred times.”
“And how many times have you been challenged and proven wrong?”
“I have often been challenged but proven wrong only once. And that was a singular case of a European lip rouge. But that was in 1977, and our methods have improved since then.”
“Then you have no doubt that the words on the sheet of fax paper were written with a stick of Autumn lipstick, the same brand of lipstick that was found in the bag of Mrs. Hopper and the second stick that was found in her bedroom?”
“None whatsoever. I would stake my professional career on it.”
“That is all,” Rudge said. “Thank you.”
The judge then looked inquiringly at Sarah, but she spread her hands and shook her head.
“You may step down,” Kilpatrick said to Bernstein.
Sarah's next witness gave his name as Leland Greene, took the oath, and identified himself as chief chemist for Household Research Laboratories. He was a dark-skinned man with bushy eyebrows and black suspicious eyes.
“Would you tell us the nature of your work?” Sarah asked.
“Household Research analytically checks products produced for household use, and their effect on human beings. We do not deal with medications, except for certain topical preparations. For the most part, we deal with products for household and garden use. Also, foods when the packager desires to know the caloric and vitamin content.”
“And among these products you analyze, are there lipsticks?”
“Oh, yes.”
“Now you will recall that I gave you a piece of fax paper, on which three letters were printed with lipstick. Is that not so?”
“Yes.”
“And I asked you to compare them with Autumn and to tell me whether they were identical and whether the Autumn had been used to write the large block letters on the fax paper. Is that not so?”
“Yes, it is.”
“And you made the comparison, did you not?”
“Yes, we established the comparison.”
“And are you ready now, under oath, to testify that the same brand of lipstick was used in both cases, in the printing and in the Autumn.”
“No, I can't testify to that.”
Suddenly, their was a buzz among the reporters, and the jurors' attention visibly intensified.
“Why not? Will you please explain why you can't testify that both lipsticks were the same?”
“Simply, madam, because there is no way to prove that they were the same. Devlon's Autumn is an excellent product, the result of years of experiment that few of the smaller companies can afford. It contains elements of seventeen substances in varying amounts, aside from the color elements. Devlon may patent this lipstick, but by varying the amounts of each ingredient, the patent can be circumscribed. In a sense, all lipsticks are essentially the same, and while I was able to find trace amounts of each substance in the paper you gave me to work with, it was impossible to determine the exact proportions.”
“May I show the witness the entire sheet of paper that was entered into evidence, Your Honor?” Sarah asked the judge.
“Yes, of course.”
The clerk handed Sarah the sheet of fax paper, restored in full now, and she passed it on to Greene, and asked him to look at it.
“If you had the entire sheet, would an exact analysis be possible?”
“Perhaps we could come closer to an exact analysis, but it would still be impossible to determine the amount of each ingredient. There are over a hundred lipsticks produced in America that have the same ingredients as Autumnâor at least 90 percent of these ingredients.”
“And what about color? Can the color of Autumn be replicated?”
“Very easily. It is a âlake' color. Lake is a category of colors. At least eight other companies produce lipstick of the same tint as Autumn. This color category has been in use for at least a hundred years. There is no way to restrict its use.”
“Now, Dr. Greene, earlier, a chemist who works for the New York City police department matched the lipstick found in Ms. Hopper's purse withâ”
Rudge was on his feet, angrily objecting, as Sarah said, “with the printing on the fax paper.”
“Calls for an opinion!” Rudge snapped.
“But if a physician,” Kilpatrick said mildly, “testified to the life or death of a subject, that would also call for an opinion, would it not?”
“He's not a physician.”
“Come, come, Mr. Rudge. He is a chemist and therefore an expert witness so I am going to overrule your objection and allow Ms. Morton to complete her question and the witness to answer it. This is a capital case.”
Sarah said, “This chemist from police forensics found eleven substances that were identical on both the fax paper and in the lipstick. What do you think of his decision that it was Autumn?”
Again Rudge objected, and Kilpatrick sustained the objection. “Phrase it differently, Ms. Morton.”
“Is such a conclusion valid?” Sarah asked.
“Not in our laboratory. Of course, we are not a police forensic laboratory.”
Rudge objected and demanded that the last phrase be stricken. The judge sustained the objection and ordered the jury to disregard the witness's last statement.
“Do you have with you, Dr. Greene,” Sarah asked, almost coyly, “some lipsticks that might readily be mistaken for Devlon's Autumn?”
Taking three lipsticks out of his jacket pocket, Greene held them up for the jury to see. “I have only three. You asked me to bring only three.”
“May they be entered as evidence, Your Honor?” Sarah asked. Greene handed the lipsticks to the judge, who examined them curiously, manipulating them so that the contents might be seen, and then handed them to Rudge, who couldn't wait to get his hands on them. While he was examining them, Sarah said, “I asked you to bring only three to avoid confusion here in court. If I had asked for half a dozen, could you have found them?”