Authors: Sydney Bauer
74
T
he DA won some points on countercross, mainly to do with the DMSO being used as an analgesic and the argument that there had been times, although rare, when police sniffer dogs had failed to locate evidence ‘under their noses’. But by the lunch break David felt buoyed by the progress they had made.
After accompanying his client to the holding cell and checking in with Arthur and Nora and reading a text from Joe that said he wanted to see David later that night, he allowed himself ten minutes alone with Sara, the pair sharing some very ordinary egg salad sandwiches and instant coffee from the Superior Court café.
‘You need to eat something,’ he said as she picked at her sandwich.
‘I'm okay,’ she smiled. ‘You did good.’
‘It's a start.’
‘I can see it in their eyes, David,’ she said, referring to the jury. ‘They're starting to see it – that morsel of reasonable doubt.’
‘It won't be enough,’ he said.
She didn't bother to correct him.
‘Svenson will be tough,’ he said, referring to Katz's next witness, ME Gus Svenson.
‘Gus is a good man. He won't let the DA drag him up the garden path.’
‘No, but I played all of my cards with Martinelli. I can't argue the blood or the dogs or …’ he took a breath. ‘The Kat will use Gus to detail the physicality of Eliza's death, and there's nothing about those facts I can argue.’ He met her eye. ‘We're running on empty, Sara.’
She took his hand across the table. ‘We've been here before, David.’
‘No,’ he shook his head. ‘We've gone into trials with the bare bones, Sara, but we've never gone in with nothing.’
‘You're wrong,’ she said.
‘About what?’
‘About the nothing thing.’
‘Sara, we –’
‘No, David,’ she interrupted him. ‘Despair is nothing. Hope is something. Marco De Lorenzo, Madonna's list, Hunt's DNA, your ability to work with that so-called nothing in your cross-examinations … they're all something.’
He managed a smile. ‘Have I told you I love you today?’
‘No, but it's only just gone one.’
He smiled again.
‘Do me a favour,’ she said then. ‘Give the Kat another whipping this afternoon, will you? Just for me?’
‘You put it that way … I don't see how I can refuse.’
*
Suffolk County Chief Medical Examiner Gus Svenson took a sip from the glass of water that sat on the front of the witness partition before him. The sun was flooding in through the courtroom's western windows, hitting the Nordic-featured Svenson directly in the eyes.
The Judge asked a clerk to close the blinds so that Svenson might receive some relief from the glare. His respite from the DA and his repetitive interrogations, however, was another matter altogether.
‘Dr Svenson, could you describe for us the nature of the wounds on Eliza Walker's neck – and by that I mean the nature of the course of the incision?’
Svenson took a breath. He had just spent a good half-hour being quizzed on the fact that while the cut to her throat was the incident that led to Eliza's death, the official cause of death was cardiac arrest given the ‘resultant collapse of the respiratory system and lack of oxygen supply to the heart’.
‘The incision was made right to left with the deepness of the wound decreasing as it became diagonal in orientation toward the right earlobe. There was transection of the left and right common carotid arteries, incisions to the left and right internal jugular veins, transection of the thyrohyoid membrane, epiglottis, and hypopharynx. There was also an incision into cervical spine C3 at the back of the neck.’
‘A separate cut?’ said Katz.
‘Yes.’
‘That severed the spinal cord?’
‘Yes.’
‘Which would have left the child a paraplegic?’
‘Perhaps, but a moot point considering the other injury,’ said the ME, who David knew was used to the DA's penchant for drama.
The Kat nodded, his nods soon turning into a shake.
‘Dr Svenson, earlier this morning Lieutenant Dan Martinelli of the Boston Police Department's Crime Lab Unit testified that the child was being cradled while the injury to her throat was inflicted. Would you agree with this conclusion?’
‘Yes.’
‘But your concurrence is not just due to the forensic evidence. Would that be correct?’
‘Yes. The cut angled upward, which indicates the perpetrator was most likely holding the child in one arm while cutting with the other.’
‘Could you elaborate, please, Dr Svenson?’
David saw Sara shift in her seat, her hand now resting on their client's under the table.
‘The incised wound of the neck on the right side was gaping and exposed the larynx and a portion of the cervical vertebral column. But then it becomes less deep, orienting diagonally on the left side toward the left earlobe – as I said.’
‘So the wound became – what? More superficial?’
‘Yes.’
‘Even though on the left-hand side the wound was still close to one inch deep?’
‘Yes. As I said, one and a half inches on right and three-quarters of an inch on the left.’
‘So as it traversed the neck, it cut through –’
‘Objection, Your Honor,’ said David. ‘Asked and answered. I am wondering how many times this witness can describe this incision.’
‘Your Honor.’ Katz would have expected this was coming. ‘Expert witnesses such as Dr Svenson are called to give what their description implies – expert testimony. As such I feel it would be remiss of me not to examine the nature of the wound inflicted to a degree where I believe the jury have been provided with as much information as possible to make certain conclusions about this case.’
Silence, as Stein made his call.
‘I'll give you some rope here, Mr Katz, but Mr Cavanaugh is correct when he says your questioning is becoming repetitive. Objection overruled – but move along, Mr Katz.’
The DA nodded as David retook his seat.
‘I am sorry, Doctor, you were saying the incision cut through …?’ The Kat knew exactly where he had left off, and Svenson exhaled as he was faced with going over it once again, which he did, for the third time.
‘So the cut was deeper on the right, where it severed things like the thyrohyoid membrane and ligament.’
‘Yes.’
‘And just to clarify, the cut at the back of the neck, this was a separate incision.’
‘Yes. This was small, about half an inch deep.’
‘But deep enough to sever the spinal cord?’
‘As I say,’ answered Gus, ‘this incision transected the third cervical vertebra extending one-quarter inch into bone. It also nicked the epiglottis and hypo-pharynx.’
‘And in your opinion, how was this second wound inflicted?’
‘I am not certain,’ replied Svenson. ‘But perhaps as the perpetrator changed hands with the cutting instrument – perhaps as he or she began picking up the child, the cut was inflicted in this process.’
‘A mistake?’ the DA was shaking that head again. ‘
She
made a mistake.’
‘Objection. Dr Svenson was not gender specific in his answer, Your Honor,’ argued an increasingly frustrated David.
‘He's right, Mr Katz.’
‘My apologies,’ smiled the DA, who didn't look at all sorry. ‘What I was getting at, Doctor, was that if this was a mistake, it was rather a macabre one, was it not?’
David was up again before the Kat held up his hand to say, ‘Withdrawn.’
But it was said, and the jury heard it, and so the damage was done.
‘Dr Svenson,’ the DA resumed. ‘I have one final query if that is all right with you. But before I proceed,’ he turned to Stein, ‘I would ask the court's permission to use a prop for this last question.’
‘Your Honor,’ began David, now sick to death of the DA's posturing.
But Stein lifted his hand to silence him. ‘What prop, Mr Katz?’
The Kat moved back to his desk to retrieve a pink canvas bag from beneath his seat. He spent a good twenty seconds fishing around in the padded contraption before finally pulling its contents out with an almost ridiculous amount of care.
‘Oh god,’ said David, unable to stop himself. ‘Your Honor, he
cannot
be serious.’
Katz carried the doll like it was his daughter, cradling it carefully in the crook of his right arm.
The jury inhaled as the media leant forward and the gallery recoiled at the vision of the life-like baby doll in the pink suit almost identical (bar the bloodstains) to the one in the photographs shown earlier. The doll was blonde with pale blue eyes, a small pink ribbon sitting delicately on its head.
Sienna's cuffed hands shot to her mouth as Sara placed her hand on Sienna's knee for comfort, her eyes on David as if to say, ‘
You have to shut this down – now
!’
‘Judge,’ David continued. ‘This is
beyond
inexcusable. The District Attorney is not only manipulating this courtroom with his
sick
sense of melodrama but causing unnecessary distress to the jury, the gallery and most of all my client, who –’
‘He's right,’ barked the Judge. ‘This better be good, Mr Katz.’
‘It goes to cause, Your Honor,’ said the DA. ‘I am simply trying to assist the jury with their deciphering Dr Svenson's sometimes hard to understand medical rhetoric.’
‘
Hard to understand
?’ David was now moving around his desk. ‘The District Attorney went to great
pains
to have Dr Svenson describe Eliza Walker's injuries with as much medical detail as possible.’
‘I agree Dr Svenson is very thorough,’ countered Katz, now surreptitiously rocking that goddamned doll like he was trying to put it to sleep. ‘But my job, as a representative of the Commonwealth, is to provide the jury with both technical information and the practical interpretation of it wherever possible. Dr Svenson is the one who examined the child's body. All I wish to do is ask him to hold this doll so that the jury might see the action used to take Eliza Walker's life.’
And that had done it. Sienna had finally had enough. From her mouth came a guttural moan which was low enough to have the jury wondering where it was coming from but sorrowful enough for them to soon make the connection between the mother and the child. This did not mean they felt sorry for her – on the contrary, the majority of faces told a story of regret, regret that they lived in a world where such things existed, mothers that slaughtered their children and then lamented over actions carried out by their own hand.
Stein hesitated, obviously unsure about what to do. ‘Does your client need a moment, Mr Cavanaugh?’ he asked.
‘She deserves more than a moment, Your Honor.’
He shook his head as if to say, ‘
You need to make a decision here. You need to shut the DA down
.’ But even as he thought this, he knew that Stein was legally shackled. Katz was a prosecutorial genius. He had been clever enough to word his reasoning with a legal wizardry which left the Judge little room to manoeuvre. The law stated that both Commonwealth and defence counsel were more than justified in their request to use props to demonstrate an action relevant to the perpetration of a crime, and to deny Katz's point would be seen at best as restrictive and at worst, prejudicial.
‘You have exactly sixty seconds to make your point, Mr Katz,’ said Stein, shaking his head in a gesture of what looked to be disgust.
So the Kat swallowed a smile and moved toward the witness stand before asking Gus Svenson to hold the baby as the killer would have done. And then Gus was instructed to mimic the cutting of the child's throat, which he did, almost dismissively at first until the DA asked him to demonstrate the level of force that would have been necessary to inflict a wound of the required depth.
And then an obviously uncomfortable Gus put some muscle into it, holding an imaginary knife which he used to carve the doll's neck from right to left. And David knew the jury saw it – the imaginary blood now spurting and oozing and dribbling down ME Svenson's pristine white shirt. David saw it too.
And then he began to smile.
*
‘Your Honor, permission for my client to approach the jury.’
Even Katz did a double-take. He had returned to his seat to put the ‘baby’ back in her canvas bag when David's comment surprised him, so much so that he accidentally dropped the doll which landed unceremoniously on its head.
But David was too quick for him. He scooped up the plastic toy and moved to the front of the courtroom.
Stein cleared his throat. David knew he would have been as surprised as anyone present about the unusual nature of David's request, but he was professional enough not to show it.
‘To what end, Mr Cavanaugh?’ asked the Judge.
‘To demonstrate a point, Your Honor,’ said David, deciding it was best not to elaborate further.
The Judge considered him, just as the DA had recovered enough to object. ‘I'll allow it,’ said Stein, holding up his hand to silence the DA. ‘Swings and roundabouts, Mr Katz,’ he added, basically indicating to the DA that the latitude awarded to him would also be awarded to the defence.
David turned to his client from where he stood in front of the witness. Sienna hesitated, but only for a second before sliding back her chair and getting to her feet. She looked small in her pale blue tailored dress, her long hair pulled back in a simple ponytail, her make-up-free skin flawless in the bright afternoon light.
David waited for her to reach him, after which he bent slowly and whispered something in her ear. And her chin fell, as if what he asked of her might be too much. But then she pulled back and looked up at him, her blue eyes blinking in agreement.
David turned to the Judge once again. ‘Your Honor,’ he gestured toward his client's wrists. ‘At this point I would request that my client's handcuffs be removed temporarily, and that she be sworn in so that any comments she makes during this demonstration might be tabled as being on the record.’
Stein's brow furrowed, but then it relaxed as he indicated to the nearby deputy that he could remove the defendant's handcuffs and that the court clerk could swear Sienna in so that her testimony would be recorded along with Gus Svenson's, given the ME had not been dismissed by the defence counsel, and this, in effect, was still a cross-examination of the witness currently on the stand.