The Plea, page 18
part #2 of Eddie Flynn Series
“You’ll see there is extensive damage to the front of this vehicle, from a heavy head-on collision, correct?”
“I’m not a motor vehicle expert, but I agree.”
“So, having seen these photographs, do you wish to withdraw your earlier testimony?”
“I’m sorry, what? I don’t understand,” said Porter. The DA knew I was winding up for a sucker punch, but he didn’t know where it was going to land. I could hear Zader whispering to Lopez—she didn’t know where I was going with this either. It wouldn’t have mattered if they’d figured it out. The main thing was that right then, Porter didn’t see it coming.
“You are aware, Doctor, that an expert witness has a duty to offer unbiased, expert opinion.”
“I’m aware of my obligations, but I don’t understand what part of my testimony you are asking me to withdraw.”
“Your testimony that David Child tested positive for gunshot residue and therefore either shot a gun multiple times or was likely to be in the immediate vicinity of a gun that was discharged multiple times. I will allow you one last opportunity to withdraw that testimony, Doctor.”
“No, I see no reason to withdraw that statement.”
I paused, nodded. Looked at the judge.
“Look at photograph three, Dr. Porter.”
He flicked through the set of photographs until he found it. A close-up of the wrecked Bugatti. He’d examined it only moments before, but gave it a further glance and then waited for the question.
“A moment ago you could not explain the nylon, plastic, leather, and rubber particle deposits found on Mr. Child’s hands, arms, clothes, and face. Can you now?”
Another look at the photograph.
“No.”
I sighed, as if I was having to drag this admission from Porter, when in fact, I wasn’t giving him enough to answer the question.
“Dr. Porter, we’ve already established the heavy impact to the vehicle—photograph three is a close-up of that vehicle. As you can see from the interior, no less than three…”
He slid down in his chair a little. Closed his eyes. I’d backed him into a corner. Chiseled his testimony on a stone tablet. If he wavered from it, one inch, his tower of evidence crashed, and he knew it. Yet he had no choice.
He’d seen it.
The revelation had come to me when the Lizard talked about laying out the parts of his disassembled weapon in an exploded view. It occurred to me that GSR is the material left behind from an explosion, and I knew for sure that David had been near an explosion that day. A small one, but larger than an explosion from a bullet being fired.
“The air bags,” said Porter.
Behind me, I heard Zader whispering excitedly. I turned and saw an ADA leave the courtroom, powering up his cell phone as he walked. He was young, in his twenties, wearing a gray suit, brown leather shoes, a dark beard set below brown hair. I turned my attention back to Porter.
“Yes, the air bags. When the air bags are triggered in a crash, they explode from the dash and inflate in microseconds, do they not?” I asked.
“Yes,” said Porter.
“That explosive force is caused via a small primer, which would leave traces of barium and antimony. Isn’t that right?”
“I’m not sure of the exact composition…”
I was already walking toward him. In my hand I held a copy of the French forensic paper on similarities between GSR and trace material found in a vehicle following air bag deployment.
“Doctor, this is a scientific paper published last year that details the forensic analysis of air bag deployment residue and its similarities to GSR. Please turn to page four and you can read the results for yourself.”
The clerk took a copy of the paper for the judge. I left one copy on Zader’s table. He didn’t pick it up, just stared at me.
As he read, Porter chewed his lip. I gave him a full three minutes to read the entire article. My stomach did a small leap when I saw Judge Knox reading along, too. He was interested. I had to keep it that way.
“Yes, I see that the forensic results detail the standard characteristics of the particle residue from air bag deployment. But it doesn’t mean my results don’t reveal the presence of GSR.”
Porter was clinging to his opinion, fighting back. Exactly what I’d expected an expert who’d been successful in his previous two hundred and three appearances in court to do.
“Are you sure?” I said.
“I’m confident in my results.”
“In the explosion that punches through the steering wheel cover and the dash to release the air bags, it’s entirely probable that small particles of the nylon air bag itself, together with the rubber, leather, and plastic from the dash, would also be fused in the heat, released, and would deposit on the skin, just as the study found?”
“Perhaps.”
“Perhaps? It’s very likely to happen. Isn’t that correct?”
“Yes,” he said softly.
“This forensic paper on air bag deployment residue states a very similar material was found in nearly every analysis done. Do you accept that?”
“I have to.”
“You accept that the characteristic air bag deposit material, identified in this paper, is almost identical to the material found in your analysis of the samples taken from the defendant?”
Before I’d finished the question, Porter had already begun to shake his head; he wasn’t going down without a fight.
“It’s almost identical, and some of the deposits such as the nylon and rubber may have come from the air bag explosion, but that doesn’t change a thing. The barium and antimony found on the defendant are characteristic materials of gunshot residue. My opinion remains that I found GSR in those samples.”
He looked around the courtroom, almost relieved. Taking a sip of water and swirling it around his mouth before he swallowed, he had the appearance of a prizefighter who’d just taken his opponent’s best shot and come back swinging. He didn’t know it yet, but he was already on his way down for a ten count.
“Dr. Porter, we had earlier established that the holy trinity of GSR material are lead, barium, and antimony, do you remember?”
“I do.”
“You said that some manufacturers’ rounds are tougher than others, so they may not leave traces of lead in GSR. Is that still your opinion?”
“It is.”
“You tested samples taken from the defendant, but you also tested samples taken from the gun?”
His eyes closed slowly. He was way ahead of me. He nodded blindly.
“That’s a yes?” I asked.
“Yes,” he said softly, keeping his eyes shut so that he wouldn’t see the freight train when it hit him.
“Doctor, your analysis of the weapon recovered from the defendant’s car found traces of barium, antimony, and lead.”
His eyes opened and he said, “Yes.”
“No nylon?”
“No.”
“No rubber?”
“No.”
“No leather?”
“No.”
“The results from your tests of the gun material, and the material found on the defendant, are very different?”
“Yes, there are differences.”
“To be fair to you, Dr. Porter, the district attorney’s office didn’t inform you that immediately prior to his arrest the defendant had been in an automobile accident in which the air bags deployed, is that right?”
He knew I was throwing him a bone and he grabbed it with both hands.
“That’s right, Mr. Flynn. I cannot conduct accurate comparison tests if I do not have the vital environmental facts to feed into my analysis.”
“So, had the prosecutor given you this vital information, would your opinion have been different?”
Even before Porter threw Zader under the bus, I could feel the DA’s eyes in the back of my skull; the contempt was palpable.
“My opinion would’ve been very different,” said Porter.
“It’s not possible for a gun discharging lead residue to leave that residue only on the gun and not even a trace of it on the hands or clothes of the shooter, correct?”
I couldn’t help but look at the DA, watched as he willed Dr. Porter to come up with something, some great scientific trump card, a Hail Mary to rescue his testimony. The expert said nothing for a time. He looked at Zader almost apologetically. I swear I saw Porter shrug.
“Given what I know now, I would say it’s highly unlikely.”
“From your results, and what you know now about air bags and the common significant differences between your sample results, it’s likely that the material found on the gun is GSR and the material found on the defendant is from the air bag?”
He was drowning, and I was tying cement bags to his legs. Scratching his head, he remained silent for a time.
I spoke slowly, softly even. “Doctor, may I remind you of your earlier answer? You told this court that your opinion flows from the facts and the evidence before you. Please bear that in mind. Now, I’ll ask you again, from the facts and the evidence you are now aware of, the material you found on the defendant was likely to be residue from the air bag explosion and not gunshot residue?”
“Yes, now that I have the full facts, I would agree with that statement,” said Porter.
“Doctor, earlier your sworn testimony was that the defendant had fired a gun on multiple occasions. Now you cannot be certain that he even fired a single shot. Isn’t that right?”
Silence. Not even the faintest sliver of breath in the air. All waited for that answer.
Through gritted teeth Porter said, “No. I cannot now be certain.”
I spun one-eighty and said to Child, “Send it.”
Under the defense table, David’s hands worked at his smartphone. The only sound came from my heels on the floor. Then Zader’s chair screeched on the tiles as he stood and said, “No redirect.”
“Any further witnesses today, Mr. Zader?” said Judge Knox.
“Allow me one minute, Your Honor,” said Zader, taking his seat and flipping pages in his file. He was stalling.
David held out his phone to let me see the screen. For a kid on a first-degree murder charge, he looked mightily pleased with himself. I took the cell phone from him and approached the prosecution. The judge had his head down, looking over his notes. I said nothing. Just held out the phone so Zader could see.
It was from David’s Reeler account. A new post had been Reeled through all other social media channels. The number of views at the bottom of the screen moved in real time—and accelerated in its thousands. By the time Zader read the post, it had twenty-one thousand views. The post was simple and personal from David to his followers:
I’M INNOCENT. THE DA’S EXPERT WITNESS JUST GOT DESTROYED. THE PROSECUTION’S CASE IS COLLAPSING.
IT’S EMBARRASSING FOR THE DA.
IT’S PUBLIC AND MESSY.
CHAPTER FORTY-SIX
The ADA that Zader sent out on an errand returned to the courtroom. He gave his boss the thumbs-up on his way down the central aisle.
Some steel returned to Zader’s face. His jaw set, his eyes lit from behind, no doubt by some kind of move he was planning with the returning ADA.
He couldn’t resist the urge to gloat.
“Twenty years on a plea?” he said.
“Drop the charges; let him walk.”
“I hoped you might say that. You did a good job on Porter. Pity it was all for nothing,” said Zader. In his next breath, he addressed the court.
“Your Honor, a matter has arisen, and we would like to see you in private, in your office.”
“Mr. Zader, I’ve already missed my golf day and I’m running late for a dinner tonight, so you’d better make this fast,” said Knox, relaxing into his chair.
Zader and the ADA who’d returned to court with the document stood behind the right-hand chair at Knox’s desk. Sinton and I stood on the left. No prospect of Zader making an ass of himself by sitting down. He knew his judges.
Zader took the page from his ADA and handed it to the judge. His tone was solemn and respectful as he addressed Judge Knox. “Your Honor, I have to make you aware of our intention to file a motion requesting your recusal from this case. We have evidence of judicial bias, and you cannot continue with this hearing.”
A flash of anger rippled over Knox’s lips, drawing them into a snarl before he fixed his mouth shut, biting down the urge to tear a piece off of Zader. As he read, his eyes broke wide and blood flooded his cheeks, the skin shading into a color that could only be described as sunset pissed.
“How did you come by this information?” said Judge Knox, turning the page over and setting it facedown on his desk.
After looking at his ADA, Zader held out his hands innocently.
“It’s for your own good, Your Honor. You should step aside and let another judge hear this prelim. No one is saying that you were aware of this information before the case started. In fact, we just discovered this ourselves. It may be that we’ve saved you some embarrassment if you withdraw now, voluntarily.”
The judge shook his head, his mouth wide now in amazement. Eventually he turned to me and said, “What’s your take on this, Mr. Flynn?”
“I have no idea what’s going on. I’m just as surprised as you are, Judge. May I see the docu—”
“No,” said Knox, and his hand thumped down on top of the page. “You don’t need to see it, but I will tell you the contents. It’s a statement from my investment agent. I have stocks and shares invested in various portfolios, and my wife deals with the agent and manages these affairs. That’s her domain. I just write the checks. It seems as though I have a small investment in the parent company of Reeler, your client’s business. I knew nothing about this investment before the case started, I can assure you of that.”
Son of a bitch.
The DA knew Porter’s destruction tainted the prosecution case. In fact, it sent it flying into a brick wall, and Zader wanted to kill the evidence. If Judge Knox recused himself, the case would have to start all over again. And this time either Porter would be fully prepared for my line of questioning or, more likely, Zader wouldn’t even call him as a witness and would build his case around the rest of the evidence. A fresh start for Zader with no mistakes this time.
“Well, Your Honor, if you didn’t know about this, then I can’t see how you could be biased…” I said.
“Oh, I can,” said Judge Knox, giving a look to Zader that conveyed every inch of the judge’s contempt for the DA. If the evidence had gone in the prosecution’s favor, there was no way they would ask the judge to recuse himself. I had a suspicion that Zader knew all about the judge’s investment before the case even started, so that if there was a disaster he had a recusal motion in his back pocket so that he could wipe the slate clean and start again. Sending out the ADA to retrieve Knox’s list of investments was just for show. He’d had this information before the prelim started.
“With respect, Your Honor, the defense has no objection to you continuing with this hearing.”
“Well, of course not,” said Zader. “The defense isn’t going to object because the stock price of Reeler is plummeting every second of this prosecution, and if the defendant has a judge hearing the case who has a financial interest in dismissing the charges and saving the stock price and return on his own investment, well, who wouldn’t want a judge like that? The fact is, Your Honor, if you continue and if the press get ahold of this, the prelim will turn into a farce and your career would be seriously compromised.”
“How dare you lecture me on my career and my professional judgment, and don’t threaten me with the press, Mr. Zader. You’re about the width of a page from seeing the inside of a cell. The fact is, despite Mr. Flynn’s gracious response, I have no choice but to recuse myself. I’m sorry, gentlemen. I will contact the superior judge and have this case transferred to a new judge in the morning. I’m afraid the prelim will have to start over.”
It was the right decision, for all the right reasons, but it still left a bad taste in my mouth. I thought that the points against Porter would give David a sympathetic hearing; it was the first in a series of hammer blows to knock out the prosecution’s case. Porter and the air bag was the only hammer blow that I’d found, so far. Now it was gone. Didn’t matter that the press knew about it. The new judge wouldn’t consider it at all unless Zader called Porter as a witness again—and there was no way he’d do that.
No one spoke. We filed out of Knox’s office, and I saw Zader waiting for me in the corridor.
“You see, Flynn, there is no way to beat me. You can’t beat me. I’m going to blow you away tomorrow, and there isn’t a single thing you can do about it. If necessary, I’ll continue to kick every goddamned judge off this case until I get one who gives me the right result. I’ve also got me some backup. We’re convening a grand jury tomorrow afternoon. So even if you win the prelim tomorrow, I can still go before the grand jury, who will indict Child. You’ve got nothing. Come to me when you want to make a deal.”
I let Zader walk away, Gerry Sinton following him. Sinton didn’t want to be anywhere near me. That huge hand of Sinton’s fell on Zader’s shoulder. He gave the DA his card, and they talked and walked ever farther from earshot. Gerry was building insurance, making plans so that he’d be the first to know if I approached the DA to make a deal. He was probably explaining to Zader that he was really the attorney of record and that any deal would have to go through him. Sinton didn’t want a deal. He wanted a tip-off from the DA so that he could make sure to kill young David before he signed up to bury the firm in exchange for an easy ride for Clara’s murder. I took the opportunity to lose Gerry in the crowd, grabbed David, and made for the side exit of the courtroom, leading to the cells.
One thing continued to scratch at the back of my head. How did Zader get the goods on Judge Knox? Even if he already had this information before the hearing began, it wouldn’t have been easily obtained. Somebody was helping Zader. Somebody with serious connections.
CHAPTER FORTY-SEVEN
Exiting the courthouse without being seen proved a lot easier than getting inside. A courthouse security officer named Tommy Biggs led us down to the ground floor from the secure elevator used to move detainees from the cells to the courtroom. I made it my business to know as many security guards, clerks, secretaries, back-office staff, cops, and detention officers as possible. There were several reasons for this. The first is that they’re usually pretty good people to get to know when you’re cooling your heels waiting for your client’s case to be called. The added bonus of getting to know these good people is that you realize, in reality, they run the justice system. They do the work. All it takes for the administration of justice is a handful of decent judges out of a bagful of assholes and a bank of good support staff.
