I still had my ace in the hole, though. When the prosecution introduced evidence of Tom confessing to the murder, I would argue that he wasn’t confessing to Kathy’s murder but to the shooting in Iraq. I was going to
back-door the post-traumatic stress disorder evidence. The judge had barred the defense, but I wouldn’t be raising it as a defense—I’d raise it simply as an
explanation
for the supposed confession.
Wendy, I thought, wouldn’t see that coming. With the PTSD defense knocked out by the judge, she probably assumed Dr. Sofian Baraniq had no basis for testifying. But the judge hadn’t specifically barred Dr. Baraniq as a witness.
It was a quarter after ten when the jury came in. Where the hell was Tori? I prayed that Tom Rangle wasn’t on vacation or something.
Wendy’s second chair, Maggie Silvers, put the ballistics expert on and got through his direct in about twenty minutes. I told Shauna to do what she could to draw this out. We had no basis for denting his testimony, but I needed time. I didn’t want the prosecution to rest today, and if they did, I didn’t want them to rest until the end of the day.
I needed the weekend. I needed at least a couple of days to put all of this together.
Shauna did what she could, but the examination was completed before eleven.
Normally we’d take a mid-morning break, but with the late start it made no sense. The judge told Wendy to call her next witness.
“The People call Detective Francis Danilo,” she said, just as Tori walked into the courtroom with another man.
Tom Rangle, I presumed.
I worked on a matter with Frank Danilo once when I was a prosecutor. He was a good guy. Pretty nondescript appearance—average height, average build, short brown hair—and cool under pressure. And overall, a pretty fair guy. I ran into him in the hallway about six weeks ago, while each of us was working on another matter, and he even told me he hated like hell that an Iraq War vet who was obviously messed up in the head was going down for this.
But I remember working an interrogation with him, and he had the suspect so scared that he threw up on Frank’s shoe.
Danilo was dressed today in his Sunday best. He didn’t look comfortable in a shirt and tie. But he did look comfortable on the witness stand. He was the kind of cop juries liked.
I looked over my shoulder at Tori, who was now seated a few rows back next to the man who came in with her, presumably Tom Rangle. I was more interested in what she had to say than what Danilo did, but the judge wasn’t going to give me a break right now, because he’d want to give Wendy Kotowski the chance to complete Danilo’s direct testimony before lunch.
Wendy started with the basics, getting Danilo’s bio before the jury. He’d been a detective first grade for more than seven years now in the robbery-homicide division. He’d investigated over a hundred murders.
Danilo did a chronological tour of the night Kathy Rubinkowski died. The call came in a few minutes after midnight. Danilo and his partner,
Ramona Gregus, responded to the shooting of a female DOA. Danilo was the DIC—the detective in charge—who oversaw the handling of the crime scene in every aspect. He and Wendy did an impressive show of how the evidence was collected, but in my opinion they went on too long. I say that because they ultimately didn’t find anything incriminating, so it only highlighted this point. But most jurors these days have watched
CSI
and expect these kinds of investigatory procedures. In fact, Wendy spent most of the voir dire making the point to the potential jurors that
CSI
is just fiction—that, in fact, finding fingerprints, for example, is remarkably harder than you’d think from watching TV. Prosecutors around the country face these unfairly high expectations from juries. I feel really bad for them. But that wouldn’t stop me from doing my “
CSI
cross,” pointing out all the tremendous resources available to them but the lack of any physical evidence against my client.
By the time Wendy had gone through all of this and chain-of-evidence testimony—establishing that the evidence was collected and stored in proper fashion—the hour of noon had passed. That was okay with Wendy, who wanted to elongate this testimony because Danilo would probably be the last witness. And it was okay with me, for whom the end of the day could not come too soon.
But Judge Nash wanted to keep going, so Wendy didn’t miss a beat.
“The interview with the defendant was conducted by myself and Detective Ramona Gregus,” said Danilo.
“Did you record the interview, Detective?”
“We did.”
“Did you read the defendant his rights?”
Danilo nodded. “I informed him of his right to remain silent and the right to counsel. He indicated he was willing to speak with us.”
“And did he speak with you?”
“Yes.”
Wendy Kotowski retrieved the murder weapon from the evidence table and asked for permission to approach the witness. Most judges have dispensed with that formality but not Bertrand Nash.
“Showing you People’s Number Six,” said Wendy. “Did you show this firearm to the defendant?”
“I did.”
“And what happened next?”
“Without any prompting, he said, ‘That’s my gun.’ He said it twice. ‘That’s my gun.’”
“And after the defendant twice indicated to you that the gun belonged to him,” asked Wendy, following the time-honored tradition of repeating helpful information, “what happened next?”
Danilo said, “I asked him where he got the weapon.”
“Did the defendant respond?”
“No, he didn’t.”
Wendy nodded and reviewed her notes. She obviously wanted to save the confession for last, and wanted to make sure she’d gotten everything else from the witness.
Then she looked up at the judge and said, “Nothing further for this witness.”
Nothing further?
I jerked in my chair, a surge of electricity passing through me. Wendy wasn’t going to ask him about the confession?
I played it out. She had established that Tom claimed the gun as his own, so she would take that—without any statement to the contrary from Tom—to mean that Tom had owned that firearm for some time before the shooting. If left unchallenged, that would kill any argument I had that the weapon was planted, dumped into his lap by a fleeing murderer.
And that, she had decided, was good enough for her.
Because she had figured out my plan.
She knew Tom’s confession was shaky. She knew that a jury would watch the videotape and see Tom squaring off against an imaginary foe, shouting orders to “drop the weapon” and bursting into tears. She knew it would give me an opening to introduce my PTSD argument and Tom’s military history.
So she wasn’t going to argue that Tom confessed. She was going to take his claimed ownership of the gun as enough.
It had never occurred to me that a prosecutor with a confession on tape wouldn’t use it. When she didn’t mention the confession in her opening statement, I thought she was just holding back. I hadn’t realized what she was doing.
Wendy Kotowski had outsmarted me.
Judge Nash banged his gavel. “The court will recess until one-thirty,” he said.
I looked at Shauna. Her expression showed that she had worked through the same calculations. “Smart move,” she whispered to me.
I looked over my shoulder past Aunt Deidre to Tori, who nodded eagerly. I nodded back.
And hoped she had something really good.
At a quarter to two, I rose to begin my cross-examination.
“Detective,” I said, “upon arresting and booking Tom Stoller on the early morning of January fourteenth, you didn’t find any of Kathy Rubinkowski’s blood on his hands, did you?”
“We didn’t, no.”
“You didn’t find any of her blood on Tom’s shirt, did you?”
“No.”
“Or on his shoes?”
“Correct, we did not.”
“You searched the area where Tom lived, so to speak. Where he slept. At the southwest corner of Franzen Park. And you didn’t find any of Kathy Rubinkowski’s blood among his possessions, either, did you?”
“Correct.” He was answering matter-of-factly, as if these were not significant facts. He was a well-trained witness.
“Gunshot residue,” I said. “GSR. That’s residue of the combustion components of a firearm after it’s fired, right?”
“That’s right.”
“When a gun fires, it creates an explosion—combustion of the primer and powder.”
“True enough.”
“Gunshot residue is the residue of the combustion. Little particles, or residue, can be found on the arm or wrist or body of an individual after they’ve fired a gun, right?”
“It can be, sometimes. Not always.”
A good answer. He was going to say that on redirect, anyway. “You tested Tom Stoller for the presence of gunshot residue, didn’t you?”
“Yes, and we didn’t find any.”
“Nor did you find gunshot residue on anything else among his possessions in the southwest corner of Franzen Park, correct?”
“We did not.”
“So you didn’t find any physical evidence that Tom Stoller fired that weapon, did you?”
“We didn’t find any GSR, as you said.”
Equivocation. Dumb. A chance for me to repeat and emphasize.
“GSR or anything else, Detective—you didn’t find a single shred of physical or forensic evidence that Tom Stoller fired the murder weapon, did you?”
“That’s correct, sir.”
I paused for a segue, and to let that quick rat-a-tat of favorable information soak into the jurors’ minds.
“Now, in the course of collecting evidence that night, you found the spent shell casing from the Glock 23 on the sidewalk, in the soil of the planted tree?”
“That’s correct, Mr. Kolarich.”
“A distance of ten feet and one inch from where the victim was lying dead.”
“That’s correct.”
“A Glock semiautomatic expels its casing to the right, true?”
“True.”
“Not forward or backward.”
“Correct.”
“So it’s likely that the weapon was fired from ten feet away.”
Danilo shrugged. “Hard to say. A shell casing could be moved.”
I looked at the jury. “You’re saying someone might have moved the shell casing?”
“It’s possible, I’m saying.”
“Well, did you find a fingerprint on the shell casing?”
“No, sir. But it was wintertime. People wear gloves.”
“Did you find gloves on my client’s hands when you arrested him?”
He paused, then smiled. “No, we did not.”
“So you have no evidence that the shell casing was moved, do you?”
“Just as you have no evidence it wasn’t.”
“But I’m not trying to prove my client innocent beyond a reasonable doubt, am I?
You’re
trying to prove him
guilty
beyond a reasonable doubt. Isn’t that your understanding of how this works, Detective?”
“Objection. Argumentative,” said Wendy.
The judge overruled. Danilo conceded the point. “I have no evidence the casing was moved.”
“And if the shell casing wasn’t moved, that would mean that the shooter was ten feet away from Kathy Rubinkowski when he shot her.”
“If the casing wasn’t moved, yes.”
“Detective, have you ever fired a Glock weapon?”
“Yes, I have.”
“Hitting someone with a shot between the eyes from ten feet away with a Glock pistol—that’s no easy feat, is it?”
“It’s good marksmanship,” he agreed.
“It’s
excellent
marksmanship, wouldn’t you agree?”
He gave that a moment. “Yes,” he said.
“And the street lighting on Gehringer Street was rather weak, wasn’t it?”
“I’m not sure I would characterize it that way.”
I walked him through the high-powered flashlights and the remote-area lighting equipment he brought in to conduct the crime scene investigation that night. I drew it out in a series of questions to overstate my point, which was that the shot from the Glock was not only impressive because of the distance but also the relative darkness.
“But since you raised it, Detective.” I moved from the podium now. I didn’t even feel my knee. “In your experience, why would someone move a shell casing?”
Danilo thought for a moment. He probably hadn’t expected that question. “To throw off the measurements,” he said. “Criminals alter crime scenes to make the story look different than it was.”
That was what I needed. “Criminals try to alter things to hide their crimes, yes?”
“Of course.”
“For example, some killers pick up their shell casings after firing their weapon. Yes?”
“Yes.”
“And in your experience, you’ve seen instances where killers robbed their victims after killing them to make their motive appear to be robbery. You’ve seen that, haven’t you? They had a different motive but they wanted to conceal it, so they made it look like a robbery? In your twenty-two years on the force, you’ve seen that?”
Danilo had no way out of that. “I’ve seen that happen. It’s not the norm.”
“But you’ve seen people use a purported robbery to cover up their real motive.”
“Objection, Your Honor. Asked and answered.”
“I’ll withdraw,” I said. “Kathy Rubinkowski was a paralegal at a law firm, wasn’t she, Detective?”
“Correct.”
“Do you know how many criminal cases she worked on?”
“I don’t, no.”
The answer was zero, but
I don’t know
was what I wanted.
“Well, then describe for us generally what cases she worked on.”
He shook his head. “I’m not able to do that.”
“You didn’t investigate the cases she worked on?”
“I didn’t consider it necessary, no.”
“Did you check her e-mails?”
“No, sir. I didn’t consider it necessary, given that your client was found with the victim’s personal items and the murder weapon, which he claimed as his own.”
“Did Tom say how long that gun had been in his possession?” I asked. I asked it as an open-ended question only because I knew the answer; the entire conversation was captured on tape.
“No, he didn’t,” Danilo conceded.
“He didn’t say, ‘I’ve owned that gun for ten years.’”
“No, sir.”
“He didn’t say, ‘I’ve owned that gun for ten
hours
.’”