Judgment Calls Read online

  “What did you observe?”

  “I saw the girl wave to a few cars that drove by on Burnside. A couple of cars stopped, and she talked to them through the passenger window. All the cars that she had any interaction with were driven by what appeared to be men who were alone.”

  “Did you draw any conclusions from that?”

  “Yes. Given the time of day, the fact that it was Christmas, the neighborhood, and the activity that I observed, I believed that the girl was loitering to solicit prostitution.” Fenninger testified that he arrested Kendra for the ordinance offense and then searched her and her purse, in what’s called a “search incident to an arrest.”

  Lisa held up a plastic bag with Kendra’s purse in it, which I had marked as evidence during my case. After looking at his police report to refresh his memory, Fenninger confirmed that it appeared to be the same type of purse Kendra had been carrying last Christmas. He found heroin residue in the purse and added a charge for drug possession. Instead of booking Kendra as a prisoner, he wrote the charges on a ticket and took her to juvenile hall to have her processed as a runaway. It was a nice thing for him to have done for her.

  Lisa asked him whether he seized the purse as evidence. Fenninger said he should have, but that Kendra started crying, saying it was a Christmas gift from her mother. So he shook the residue into a baggie instead and let her keep her purse. Jesus, no wonder the juvie DA had dumped the case. Even the arresting officer seemed to think it was chippy.

  I didn’t have much for Fenninger on cross. “Officer, do you know who assaulted Kendra Martin last February, two months after the arrest you’ve testified about?… Do you know anything about where Frank Derringer was when Kendra was attacked?… In fact, have you ever even seen the defendant before today?” No, no, and no. I thought the jury would see that Lopez had no legitimate reason for calling Fenninger.

  Next was Kerry Richardson, the so-called loss prevention officer at Dress You Up, who was called to testify about Andrea Martin’s trespass arrest at the mall. The testimony was completely irrelevant and inadmissible, but I didn’t mind letting Lopez waste time with evidence that wasn’t going to hurt me. Andrea hadn’t been an important part of my case anyway. She only testified about the extent and duration of Kendra’s injuries, facts that were established by other evidence too.

  Richardson testified that he was sure he saw Andrea conceal something inside of a shopping bag back in November before she left the store. He told the store manager, Geraldine Maher, and the two of them confronted Andrea in the mall. However, they didn’t find any stolen goods on Andrea, and Richardson hadn’t actually seen Andrea steal anything. So instead of trying to prosecute Andrea for shoplifting, he had asked Maher to issue a trespass warning, telling Andrea she’d be arrested if she came back into the store. When he saw her again in January, he called the police.

  My cross was quick.

  “Was Ms. Martin convicted for shoplifting merchandise in November from Dress You Up?” No. “Was Ms. Martin even arrested for shoplifting merchandise in November from Dress You Up?” No. “Do you have any information to provide to the jury regarding whether Frank Derringer raped and attempted to murder Andrea Martin’s daughter, Kendra, last February?” No.

  I couldn’t help but give a look to the jury after I finished my cross of Richardson, just to make sure they got the point. I’d never seen such a desperate defense.

  My confidence began to feel misplaced when Lopez rose for redirect. “A point of clarification, Mr. Richardson. You testified that you couldn’t actually see what Ms. Martin stole in November, but that you were left with the impression that she was concealing something, is that correct?”

  “Yes. Like I said, she was carrying a large shopping bag and it looked like her hand passed over it and she stuffed something in there, but I couldn’t actually see what it would have been.”

  Lopez used the old trick of looking at Richardson curiously, like she’d just realized something for the first time. “Interesting. You say that it looked like she ‘stuffed’ something in the bag, not that she merely ‘dropped’ something. Why is that?”

  Richardson thought a moment. “Well, just the way her arms moved. It was like she was struggling with the bag.”

  “As if the object she were placing in the bag were relatively large?” she asked.

  This was getting ridiculous, so I piped up. “Objection, your honor. Leading and vague.”

  “Sustained.”

  This shows why I rarely object at trial. Once the leading question has been asked, the damage has been done if there’s a rapport between the questioning attorney and the witness. Even though my objection was sustained, Lopez followed up by asking Richardson, “What size would you estimate the object to be that you thought you saw Ms. Martin conceal in the bag?”

  Richardson’s response was predictable. “Relatively large. Bigger than a pair of earrings or something. Maybe a shirt or something bulkier like that.”

  Lopez then moved to the table at the front of the courtroom where the physical evidence that had been introduced lay. She picked up the plastic bag containing Kendra’s purse. “I’m showing you a purse that has been marked as State’s Evidence Three, which prior witnesses have identified as Kendra Martin’s purse, a gift from her mother Andrea. Is it possible that you saw Andrea Martin hide this purse in her bag last November in Dress You Up?”

  “Sure, it’s possible.”

  After Richardson left the stand, Lopez called Geraldine Maher, the store manager who barred Andrea from Dress You Up. I had expected Lopez to continue her questioning about the supposed theft incident, although I couldn’t see why it would matter if Andrea stole the purse she gave Kendra from Dress You Up. But Lopez had something else in mind.

  “Ms. Maher, as the manager of Dress You Up, are you generally knowledgeable about the merchandise that you stock in the store?”

  “Of course. We’re a fairly small store, so I take pride in knowing our inventory well.” Never put it past a retailer to take advantage of any opportunity to get in a free plug.

  Lopez picked up the purse again. “I’m showing you a purse that’s been marked State’s Evidence Three. Has Dress You Up ever stocked a purse like this one?”

  “Yes. We’ve carried that purse. I believe it’s an Esprit.”

  Lopez pretended to check the small cloth label sewed on the side of the purse. “Correct indeed, Ms. Maher. You do know your inventory.” The Home Shopping Network banter was killing me. What was going on here? Lopez continued. “Could this purse have been on your shelves last November, when Kerry Richardson thought he saw Andrea Martin steal something from the store?”

  “Yes. We would have gotten that in around June. I think we may still have a couple in the store. It’s a relatively popular style.”

  “So you had this style in stock last October, is that correct?”

  “That’s right. June of last year until at least the after-Christmas sales, and we may have one or two left still on clearance.”

  “Ms. Maher, do you recall contacting Staffpower Temporary Agency to count Dress You Up’s inventory last October?”

  “Yes, I do. We do inventory twice a year, in April and October. I’ve been using Staffpower for a few years now.”

  At that point, Lopez handed me a piece of paper I’d never seen before and then approached Geraldine Maher with a copy of the same document. Defense attorneys are not required to show their documentary evidence prior to trial. As I scanned the paper to make sense of it, panic set in. But there was nothing I could do, and I was left watching Lopez go to work.

  “Ms. Maher, I’m showing you a document I’ve marked Defense Exhibit One. What is it?”

  Maher responded, seemingly as oblivious as I was about where this was going. “It’s a letter from Staffpower notifying me of the individuals they hired to conduct our inventory last October, with the amounts to be paid to each of them for their work. We pay the lump total to Staffpower to distribute and do wage with
holding, but this acts as a sort of itemization of the amount.”

  Lopez continued. “Please read for the jury the sixth name on the list.”

  There it was. Even Geraldine Maher was surprised. “Oh, it’s Frank Derringer, or at least according to this.”

  “And do you have any reason to doubt the accuracy of that list?”

  “No, I do not. If it says that a Frank Derringer worked on our inventory, then I suppose he did.”

  “And, to be clear, an inventory requires the person doing the counting to handle the merchandise, is that right?”

  “Yes, generally. They’d need to move stock around to count it properly.”

  That was enough for Lisa. “No further questions.”

  Lopez had just managed to defuse my most compelling piece of evidence, Derringer’s fingerprint on Kendra’s purse. Renshaw had already testified that Derringer had worked various jobs, including inventories, through temp agencies. And now Geraldine Maher’s testimony gave a plausible explanation for how Derringer’s fingerprint ended up on Kendra’s purse, if the jury believed that Andrea either bought or stole the purse from Dress You Up.

  Judge Lesh denied my request for a recess, so I tried my best to control the damage. “You testified, Ms. Maher, that the handbag marked as State’s Exhibit Three is a popular style of handbag, is that right?”

  “That’s correct.”

  “Where would I go if I wanted to buy a handbag just like that one?” I asked.

  “Oh, any number of stores. Like I said, we’ve got a few left, but so would most of the major department stores and other women’s boutiques that carry that brand of purse. It wouldn’t be hard to find one.”

  “So Dress You Up is the not the exclusive seller of that purse in the Portland area, is that right?” I asked.

  “Far from it.” Good.

  “Can you tell from looking at State’s Exhibit Three whether it originated in your store or in any one of the many other retailers who stock it?”

  “No, I cannot.”

  “And you never actually saw Andrea Martin steal anything from your store, let alone this purse, did you?”

  “No, I did not.”

  “So the purse marked as State’s Exhibit Three could have come from any number of stores other than Dress You Up?” She agreed. There wasn’t much more I could do for now.

  * * *

  During the break, I called MCT from my office. Ray Johnson picked up. It took me awhile to explain the connection that Lopez was trying to draw between Derringer and Kendra’s purse.

  Ray wanted to make sure he got it right. “So one of Derringer’s temp jobs was doing inventory at Dress You Up?”

  “Right.”

  “And Lopez was able to show at least a possibility that Kendra’s purse came from there?” he asked.

  “Right,” I said. “A possibility. We know that the store carried the purse and that Andrea gave it to Kendra. Lopez was able to show that Andrea was in the store a month before Christmas, and there’s at least a possibility that she stole something the size of a purse when she was there.”

  “So what you need,” he said, “is something showing that the purse came from another shop.”

  “That’s the idea,” I said.

  He clicked his tongue while he thought. “Alright. Walker and I are still tied up on this Zimmerman letter, so I’ll check with Forbes and Calabrese. Someone will do it, though, and we’ll let you know what we find out.”

  When I got off the phone, I noticed Tim O’Donnell waiting for me in my doorway. He looked annoyed that I hadn’t noticed him during my phone call.

  “Hey, Kincaid, how’s that trial going?”

  I didn’t see any point in lying. “Pretty crappy, actually. My best evidence was this guy’s print on the vic’s purse. Turns out he had a temp job doing inventory, so he’s claiming an alternative explanation for the evidence.”

  “Bummer,” he said. “Anything new about the Zimmerman connection?”

  I couldn’t tell whether O’Donnell actually gave a rip about my case or if he was faking it to find out if there was anything he needed to know for his investigation into the anonymous letter.

  “I’ve got until tomorrow morning to file papers to exclude any evidence relating to the Zimmerman case.”

  O’Donnell looked concerned. “Have you talked to the boss about making that motion?”

  “No,” I said. It hadn’t dawned on me to consult the District Attorney himself about my trial. In our large office, it was rare that we had any direct contact with the boss, let alone on individual cases.

  “Well,” he said, “this is something Duncan would want to know about. He’s feeling the heat on this Zimmerman thing. The last thing he needs is for one of his deputies out there trying to prevent a court from hearing evidence supposedly exonerating Landry and Taylor.”

  “But, Tim,” I said, “Lopez isn’t trying to exonerate Landry and Taylor. She’s trying to get Derringer off by confusing the jury and trashing MCT. That evidence has nothing to do with my case.”

  “Sam, I’m trying to help you out. How about joining the rest of us in the real world? I don’t get it. You’re so fucking smart, but you’re acting like some rube on misdemeanor row who can’t see the politics here.”

  I knew the politics, but I hadn’t connected them to my case. Duncan Griffith ran for DA as an opponent of the death penalty who’d make sure that the law was at least enforced evenhandedly against the truly reprehensible. In short, he got it both ways. The libs liked him because he talked the talk against the death penalty, but no one came after him on it, because he said he’d enforce the law.

  O’Donnell had more advice. “Jesse Taylor is the first scheduled execution this state has seen in decades. And we put him on death row, Sam. This is the center of the storm. If he turns out to be innocent, Duncan’s got—well, he’s got a major problem. The only way he’s going to make it through is if he’s one of the good guys making sure we know who killed Zimmerman. If one of his deputies looks like she’s part of a cover-up, he’s toast. If you don’t go to him with this, I will. The Zimmerman case was mine, and this shit that’s going down now is a hell of a lot more important than some loser like Derringer.”

  “Yeah? Well, that loser basically tortured a thirteen-year-old girl and then left her to die. I don’t see much of a difference between him and Jesse Taylor.”

  He looked frustrated, but at least his response seemed earnest. “Sam, I wasn’t saying Derringer was a good guy. Hell, maybe I was too quick to write it off as an Assault Three. But be pragmatic. The boss’s political exposure on this Zimmerman thing is huge. You at least need to tell him before you try to keep Derringer from getting into it in your trial.”

  He was right. “I’ll talk to Duncan when I get out of trial today.” He started to walk away, but I couldn’t leave it at that. “You know, Tim, you could be a little more careful about how you handle things, too. I don’t think it would help the boss’s political image if the newspapers heard that the head of his major crimes unit short-shrifts thirteen-year-old sex-crime victims and tells jokes about incest.”

  O’Donnell rolled his eyes at me. “You want to make it around here, you’re going to have to tame those emotions. This isn’t personal, Sam.”

  The truth was that I didn’t know why I’d snapped at him. He was being helpful, but I couldn’t bring myself to tell him I appreciated it. “We done here?” I asked.

  “Yeah. Come get me when you’re out of trial. I want to be there when you talk to Duncan.”

  I couldn’t see any reason for him to baby-sit me when I talked to Duncan, other than to show his authority, but it wasn’t worth fighting about. He was the supervisor of major crimes, had prosecuted the Zimmerman case, and was heading the investigation into the anonymous letter. With all those legitimate reasons for him to be part of the conversation with Duncan, I wouldn’t be able to convince him or anyone else that he was only stroking his ego.

  I couldn’t co
ncentrate after O’Donnell left my office. So instead of staring at the Derringer file with my last remaining minutes of the break, I ran out to the burrito cart in front of the courthouse. The combination of fat and spice was just what I needed before going back to court.

  Unfortunately, the bliss was short-lived. Lopez called her next witness, a guy named Travis Culver.

  I stood up to speak. “Sidebar, your honor?” Lesh nodded, and Lisa and I approached the bench. It was my sidebar, so my turn to speak first. “Your honor, it was my understanding that Ms. Lopez would be prohibited from calling witnesses other than those included on the defense or prosecution witness lists. Mr. Culver was not listed as a potential state witness, and the defense did not include him on its witness list, either. I don’t even know who he is.”

  Lesh sounded concerned. “I thought I’d made myself clear, Ms. Lopez.”

  “You were quite clear, your honor,” Lopez said. “I assure you that the defense is complying with your order. Mr. Culver is the custodian of records for the Collision Clinic, and the person holding that position was in fact included in the state’s list of potential witnesses.”

  “Right,” he said. “That’s the auto detail shop. The parties stipulated to the admissibility of the invoice, which is”—Lesh fished around for his list of exhibits—“State’s Exhibit Five. So if we’ve got the stip, why is Mr. Culver here?”

  “Because,” Lisa said, “he has relevant testimony that goes beyond the stipulation of the parties.”

  There was nothing I could do. Anticipating the need to lay the foundation for the Collision Clinic, I had indicated on my witness list that I planned to call the business’s custodian of records. As a result, Lopez was allowed to call that person without notifying me in advance. If his testimony was irrelevant, I could object after the questions were asked, but there was no way to find out in advance what he intended to say.

  We retook our seats, and the bailiff called Travis Culver to the stand. Culver’s coiffure was the classic white-trash mullet. If you’re not familiar with the name, you’re familiar with the look: a short regular cut in the front, but with length in the back reminiscent of the great eighties hair bands. Also known as the shlong, since it is both short and long. Truly versatile. Culver finished off the look with jeans that had a brown undertone from wear and dirt, and a NASCAR T-shirt commemorating a race-car driver killed a few years back.