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CHAPTER SIXTY-FIVE
I wore my hair in a pony tail for the first day of Mark’s trial. Friendly, but professional, I thought. I put on my glasses. My vision needed only slight correction, and I rarely bothered to wear them. Maybe they would make me look smarter. On second thought, I felt like the glasses would be a barrier between my eyes and the jurors’. I took the glasses off. I didn’t want anything to block my connection with the jury, not even a plastic lens. I considered lipstick, deciding on a fresh rose color, no gloss. Suddenly, I realized that Mark’s trial would begin in an hour, and I was thinking about my hair and lip color. My hands started to shake and I dropped the lipstick on the floor.
I bent over and grabbed the edges of the sink. I took three deep breaths. “Hold it together, Kate,” I said out loud. I stood up, brushed my teeth, and applied my lipstick.
I met Mark and his family outside the courtroom. We were thirty minutes early, but I wanted to make sure I controlled the seating. Mark was dressed neatly in khaki pants that hung loosely on his thin frame and a bright blue button-down shirt. He tried to smile casually, but the red blotches on his cheeks betrayed his anxiety.
Because she was the newest judge, Judge Peterson’s courtroom was the smallest in the building. The lawyer portion of the room held only one long counsel table, rather than two. I placed Mark at the end of the table closest to the jury. When Frank and Smoot arrived, Smoot crammed so close to me that he could read my notes. I felt like covering my legal pad with my hand, but realized how juvenile this would appear.
Because this was a serious case, I had numerous motions in limine, and I had prepared them all in writing. I had seen Frank in trial before, and he was more obnoxious in front of a jury than he was in person. His style was inflammatory; he exaggerated everything. His incendiary language was so constant, in fact, that I didn’t think he knew any other style.
As soon as I started my motions in limine, Frank’s posturing began. The first, and most important, motion I made was that Frank be prohibited from making inflammatory statements. It was well-settled law that prosecutors were not to make outrageous or inflammatory statements, the theory being that these sorts of statements appealed to prejudice and emotion, rather than reason. I wouldn’t usually make this motion, preferring to object at the time the prosecutor made the inflammatory statement. This way, the judge would admonish the prosecutor in front of the jury. Really, though, most prosecutors didn’t go too far. In general, they knew where the line was, and would approach it without crossing it.
Not Frank. I had seen Frank in trial before. His emotional presentation ranged from indignation to outrage. Thus, I asked the court to prohibit him from making inflammatory statements or arguments.
Frank stood up in response to my motion, indignant. “This certainly offends me, Judge. How can I know what she’s talking about—inflammatory language? If she thinks I am going to say something wrong, then she needs to tell us what that is. Otherwise, it’s just pure speculation!”
“I am unable to read Mr. Pukitis’s mind and predict what exactly he will say in the future,” I said, quite logically, I thought. “I do know that Mr. Pukitis has a habit of over-the-top expressions, and I am asking the court to rule that inflammatory statements are prohibited.”
“I can’t read Ms. Hamilton’s mind either, Judge, so I can’t know what I’m not supposed to say, until she tells me what I’m going to say. To me, this just seems like a lot of legal obfuscation on Ms. Hamilton’s part. It’s an underhanded effort to draw attention away from what this young man did.” He turned and pointed at Mark. “That this young man mowed down a little old man in an intersection!”
I suppressed, with difficulty, the urge to roll my eyes. Instead, I just shook my head and said, “That’s the kind of statement I’m talking about, Judge.”
The judge, though, didn’t know what was going on. “Move along, Ms. Hamilton, I’ll reserve ruling on this motion until Mr. Pukitis actually says something inflammatory.”
“But he just did.”
“That’s enough, Ms. Hamilton. Your next motion?”
The rest of the motions continued in this vein. Frank didn’t have any of his own motions prepared, so his only strategy was to attack mine. During the course of my 20 motions, he claimed that I was not only obfuscating, but also badgering, hiding the ball, turning the tables, and committing unethical acts on behalf of my client. He used the phrase “ran down a little old man in the intersection” three times.
After the judge had ruled on all of my motions, I had made little headway. I felt like I had been in a fist fight with both Frank and the judge. I had all my motions typed, with legal authority listed, and copies of the cases attached. Frank had nothing but gray hair and overconfident posturing. He won almost every issue, even when the law was clearly on my side. I started to wonder why the judge couldn’t tell that Frank was completely without substance. I could, but maybe I was crazy. Maybe I was the one who didn’t know what I was doing?
As I gathered up my notebooks and legal pads, I noticed a tall lawyer in an understated gray suit sitting in the back of the courtroom. It was Phil Newman, the man widely acknowledged as the best criminal defense lawyer in the state. I wondered what he was doing here. I didn’t know him, but it wasn’t unusual for lawyers to watch parts of trials. Mr. Newman stood up and walked over to me. He was probably going to tell me what a bad job I was doing.
He bent down and put his head close to mine. “Who is that guy?” he asked, gesturing with his thumb toward the counsel table.
“My client? His name is Mark.”
“No, the asshole.”
I flushed and then smiled. “That’s the prosecutor. Frank Pukitis.”
“Well, I don’t know him and I don’t know you, but he has to be the most obnoxious individual I’ve ever seen in my life.”
“I couldn’t agree with you more, Sir.”
“Please don’t call me ‘sir’—I don’t feel as old as I look. My name’s Phil. Phil Newman.”
“Kate Hamilton.”
“Look,” he said. “Do me a favor, Kate. Kick his ass.”
“Yes, Sir… I mean Mr. Newman … I mean, Phil,” I said, oddly flustered. “I promise to do my absolute best.”
“And when you’re done with this trial and have a little time, come see me in my office.” He handed me a card.
After the recess, it was time for voir dire. We all sat tightly squeezed together at the small counsel table. Detective Smoot’s gun holster pressed against my thigh. I hoped the gun didn’t have a hair trigger.
“All rise for the jury venire panel!” the bailiff announced in an abnormally deep voice. I tried to radiate confidence that I did not feel.
We stood up and turned to face the doors to the courtroom as the potential jurors filed in. I scanned their faces, trying to see something in these people who would sit in judgment on Mark and, ultimately, me. I was trying to see the back of the group, when I saw a face at the front of the line that made me smile. It was Jimmy, Judge Black’s bailiff, who had recently retired. While it was nice to see a friendly face, I knew he would be kicked off the panel as soon as Frank used his first peremptory challenge.
Neither Frank nor I asked Jimmy any questions during voir dire. Jimmy didn’t volunteer any information, probably thinking that we should hurry up and bump him so that he could get out on the golf course. When the judge asked if anyone had heard of this case, Jimmy didn’t say anything, even though I know he had heard about the whole public-defender-goes-to-jail thing. Jimmy was always up on courthouse gossip. I figured he knew he would be bumped, and thus didn’t feel it was necessary to volunteer any information.
When the voir dire questioning had been completed, the judge’s bailiff handed the strike sheet back and forth between Frank and me. Ever since Nate’s trial, I had become obsessive about keeping track of the jurors being bumped. Jimmy was in the first 12, seated in the actual jury box, so I figured he’d go early. However, after our first three rounds of strikes, Jimmy was still on the panel. Maybe Frank was trying to trick me into striking Jimmy myself. I started to wonder if Frank was going to strike Jimmy at all.
When we reached the last peremptory strike, I peeked over at Frank’s paper and saw that Frank was using his last strike to bump a young woman in the back. I couldn’t believe it. Jimmy was going to be on the jury.
Since Jimmy was seated in the actual jury box, he would soon realize that he would be a juror on Mark’s case. Jurors who were seated in the box and had been stricken would be called by the judge and excused to make room for the jurors who would be replacing them. Jurors who were in the box, but had not been stricken, would simply remain seated. Jimmy had seen this process a million times.
I watched Jimmy carefully. The judge excused four jurors from the box, and started calling jurors from the pews to fill in the chairs for the people who had been bumped. I looked at him, waiting for the moment when he realized he would not be excused. I saw a funny look come over his face. He turned and looked directly at me. I met his eyes and I shrugged my shoulders ever-so slightly. He raised his eyebrows and shrugged back.
I felt as if I had won the lottery. Jimmy would never vote to convict Mark, no matter what the other crazy jurors thought. I turned to Mark. “I don’t know if we are going to win this case or not,” I whispered in his ear, “but we are not going to lose.”
Frank’s opening statement was predictable, dramatic, and repetitive. Frank had missed his calling as a televangelist. He had as much drama and as little substance. I worried, though, because people fell for televangelists and sent them money. Because the courtroom was so small, Frank stood directly in front of me to deliver his opening. I was forced to stair at his large ass while he delivered his remarks. My only escape from the sight was to look down at my notepad, but I didn’t like the message that that sent to the jurors.
“Good afternoon, ladies and gentlemen of the jury. My name is Frank Pukitis, and I represent the State of Washington. We are here today because a heinous crime has been committed. The evidence will show that Mark Holland, the defendant, got in his car, a Mustang, and drove it like a bat out of hell. He turned his mustang into a weapon, and with it, caused the death of an innocent man.”
Instead of shouting and gesticulating in my opening, I laid out my theory of the case, gave the details, and told the jurors why Mark was innocent. I had practiced the opening several times in my bathroom, and the practice paid off. When I got to the part about Mr. Smith dying not from the accident, but from peritonitis, Jimmy actually rolled his eyes.
At the end of my opening, I had a sudden inspiration. I had already finished my presentation, and was walking back toward the counsel table. I turned back around to face the jury. “One other thing,” I said quietly. “Watch for exaggeration. Because when a lawyer exaggerates, it means he doesn’t have a case.” I wanted to laugh out loud, I was so pleased with myself. Because I knew Frank couldn’t help it. He would exaggerate as always, and the jurors would be watching for it.
CHAPTER SIXTY-SIX
Frank’s first witness was Mr. Smith’s wife, who had been a passenger in the car. Mrs. Smith didn’t have anything factual to add to the case—she had been working a crossword puzzle when the accident occurred. She didn’t remember anything about the accident except waking up in the hospital. By calling her as a witness, though, Frank could ask her about the Smiths’ 50-year marriage, their children, and grandchildren. As long as he kept the family part short, I couldn’t object, because the jurors would think I was callous for objecting to the question, “How long were you married?” I could feel the jurors staring at Mark, the teenager who had taken Mrs. Smith’s husband away.
Next, Frank called Officer Moon, the patrol officer who first arrived at the accident scene. Officer Moon testified that he arrived at about the same time as the ambulance. He took pictures of the accident scene, and then called for a back-up officer. He talked briefly to Mark, who Moon described as crying and upset.
I only had a few points to make with my cross-examination. I needed to emphasize how little time he had spent at the scene. He was relatively inexperienced, though, so I figured it would be a struggle. Inexperienced officers wanted to argue about everything.
“Officer Moon, you spent 22 minutes investigating and documenting the scene of this accident, didn’t you?”
“I can’t really recall.”
“You arrived at the scene at 1:20.”
“That sounds about right.”
“It is exactly right, isn’t it?”
“I don’t recall precisely.”
“Could you please explain to the jury what a CAD is?”
“It is a computer print-out of my conversation with dispatch.”
“You have a radio in your car?”
“Yes.”
“And dispatch calls you and sends you to situations?”
“Yes.”
“You respond to dispatch to say that you got the message.”
“Yes.”
“As a matter of routine, you call dispatch when you arrive at a scene.”
“Yes.”
“The dispatcher keeps a typed record of all the communications.”
“Yes.”
“And that is called a CAD.”
“Yes.”
“Did you call dispatch when you arrived at the scene in this case?”
“I suppose I did.”
“You did or you didn’t?”
“I usually do, so I suppose I did.”
“Would it refresh your recollection to see the CAD report regarding this case?”
“I suppose.”
“Officer, do you recognize the document that I have handed you?”
“Yes, I do.”
“What is it?”
“It appears to be the CAD report regarding this case.”
“It appears to be, or it is?”
“It is.”
“Does it indicate whether you called dispatch when you arrived at the scene?”
“I called into dispatch at 1:20.”
“Thus, 1:20 is when you arrived at the scene?”
“Yes.”
Thinking he had probably learned that he wasn’t going to get away with being squirrelly, I asked next, “What time did you clear the scene?”
He looked down at the CAD in his hand. “1:42.”
“That makes the time that you spent at the scene …?
“Twenty-two minutes.”
“What did you do once you arrived?”
“I immediately checked on the people involved in the wreck. Mr. Smith was still in his car. I had no idea as to the extent of his injuries. Dispatch had already called for an ambulance, which arrived minutes after I did.”
“Where was Mark Holland?”
“He was standing in the street. If I remember correctly, he was crying and kept saying, “I’m so sorry, I’m so sorry.”
“What did you do next?”
“I called for a backup officer.”
“Why did you do that? Weren’t things under control?”
“I didn’t have any chalk.”
“Why did you need chalk?”
“To mark the scene.”
“To mark the scene?”
“When you measure skid marks, you mark the beginning and end of the skid with bright chalk or fluorescent spray paint. That way you can show in the photographs exactly where you started and stopped measuring. You also indicate any other important reference points—the point of impact, pieces of debris, and things like that.”
I paused. I didn’t remember any chalk marks in the police photographs. I found my notebook that contained all of the photographs and quickly found the accident photos.
“Officer, I’m going to show you what’s been admitted into evidence as state’s exhibits 30, 31, 32, and 33. Do you recognize these photos?”
“Yes.”
“What are they?”
“They are the photographs of the accident scene.”
“Are they the photographs that you took?”
“Yes.”
“Could you please show me where the chalk marks are?”
He already knew. “There aren’t any.”
Officer Finley testified next. He said that he received a call from dispatch, responded to the scene, and quickly and accurately measured the skid marks and street. He said that based on his calculations, Mark was traveling between 56 and 65 miles per hour.
“How would you describe those speeds, Officer Finley?” was Frank’s last question.
“Highway speeds. Those are highway speeds.” He turned and looked at Mark, shaking his head in disgust.
My goal with Officer Finely was to emphasize the sloppiness of the state’s crime-scene documentation.
“Officer Finley, you have been involved in the investigation of car accidents for some time now?”
“Twenty years.”
“You’ve received training in the area of accident reconstruction?”
“Yes. I’m not an accident reconstruction specialist, but I’ve received training in the area, especially in the processing of the accident scene.”
“Are you often dispatched to the scene of accidents?”
“Yes.”
“Do you carry any special equipment in your car for this purpose?”
“Yes. I have a calibrated wheel measure, spray paint, numbered markers, chalk, and a camera.”
“Do you use those tools in the documentation of accident scenes?”
“Yes.”
“How did you measure the skid marks in this case?”
“I didn’t note the method in my report. Either with the wheel measure or a tape measure.”
“You don’t remember how you measured the skid marks?”
“No.”
“In any event, no total station was done.”
“No, it wasn’t.”
“Could you tell the jury what a total station is?”
“It’s a system of measurement that we use in vehicular homicide cases. It is highly accurate. We can measure every square inch of the crime with a high degree of accuracy.”
“Why is the total station used in vehicular homicide cases?”
“I suppose in case our measurements are challenged in court.”
“Why didn’t you use the total station in this case?”
“At the time, the accident didn’t appear that serious. Mr. Smith suffered from some bruising and an abrasion on his head. He appeared bumped up, but not gravely injured.”
“So there didn’t appear to be a need for the total station?”
“Right.”
“But you still had your chalk and paint, right?”
“Yes.”
“And the little markers?”
“Yes.”
“Officer, I’m showing you state’s exhibits 30, 31, 32, and 33. Do you recognize these?”
“Yes. They’re the pictures we took of the scene.”
“Do the photographs show the skid marks that were measured?”
“Yes.”
“Is anything marked with chalk, paint, or markers?”
He looked at the photos. “No.”
At the end of the second day, Detective Smoot testified. He wore tan jeans, a button-down plaid shirt and a brown sports jacket. He testified that the case was not referred to him until after Mr. Smith passed away, 10 days after the accident. He said that he went to the accident scene that same day, to get a first-hand view of the intersection. When asked, he said that the skid marks were still plainly visible 10 days after the accident. He took no additional measurements or photographs, however. When asked why not, he shifted in his chair a little, and said that the initial measurements were sufficient.
At the end of the second day, we had finished all of the testimony about the accident scene, the speed estimates and the lay witnesses.
CHAPTER SIXTY-SEVEN
On the third day of the trial, Dr. Robinson, the state’s pathologist, testified. I knew what Frank was going to try to accomplish with her. He was going to have her testify as an expert about a legal conclusion, rather than a medical conclusion. I had tried to prevent this testimony with motions in limine. I was unsuccessful. As the pathologist, Dr. Robinson could give her opinion about the cause of death. However, this was supposed to be a medical opinion, like, say, the cause of death was a subdural hematoma resulting from blunt trauma to the head. Or, in this case, the cause of death was peritonitis from an unknown source. Frank had a different plan.
Dr. Robinson testified in a straight-forward fashion, as always. She testified that Mr. Smith was frail, but healthy. In her opinion, the injuries from the accident had not been severe. She said that the emergency-room doctors had seen a huge hernia on the x-ray, and assumed that it had been caused by the accident. Consequently, the ER doctors had performed emergency exploratory surgery. She explained that the site of the surgery somehow became infected, and that Mr. Smith died 10 days later from peritonitis.
“Dr. Robinson,” Frank said, “Were you able to form an opinion regarding the cause of death?”
“Yes, I was.”
“And what, in your expert opinion, was the cause of death?”
“The cause of death was traffic-related.”
“Thus, you’re saying in your expert opinion, the traffic accident caused Mr. Smith’s death?”
“Yes.”
In my cross-examination, I needed to try to clear up the issue of the cause of death.
“Dr. Robinson, you’ve testified that if an accident puts someone in the hospital, and the person later dies in the hospital, then the accident is the proximate cause of death.”
“I suppose.”
“Now, ‘proximate cause’ is a legal term more than a medical term, isn’t it?”
“As a pathologist, it is my job to determine the cause of death.”
“And the cause of death was acute peritonitis.”
“I have listed the cause of death as traffic-related. Peritonitis ultimately killed Mr. Smith. But for the accident, however, he would not have died.”
“It is your testimony that because the accident put Mr. Smith in the hospital, the accident was the proximate cause of his death.”
“Yes.”
“Let’s say that Mr. Smith was in a light traffic accident, broke his finger, and went to the emergency room. In the emergency room, he contracted Necrotizing Fasciitis, the flesh-eating bacteria, and later died from that. Would the accident be the proximate cause of his death?”
“I suppose the accident is the reason he was in the hospital, and if he hadn’t had the accident, then he wouldn’t have died,” she answered, but didn’t appear as confident.
“Well let’s say that Mr. Smith was in the same light traffic accident, went to the hospital for his broken finger, but it just so happened that at the same time police had brought a deranged lunatic into the emergency room. The lunatic pulls out a knife and stabs Mr. Smith, killing him instantly. Would the traffic accident be the cause of death?”
“That doesn’t seem right.”
“So just because an accident puts someone in the hospital, doesn’t mean that something that happens later at the hospital isn’t the proximate cause of the death?”
“What?”
“Um …” I couldn’t remember what the poorly-phrased question had been, but I was confused by the faint memory of it. “Let me try that again: Just because an accident causes a person to be in the hospital, and then the person later dies in the hospital, it doesn’t necessarily follow that the accident caused the death?”
“I really don’t know.”
“It is obvious to all of us, Dr. Robinson, that you are very highly trained in the medical field.”
“Thank you.”
“Do you have any training in the law?”
“No.”
“Would you agree that the proximate cause of death is more of a legal issue than a medical one?”
“I suppose so.”
“Thank you, Dr. Robinson.”
Frank rested his case after Dr. Robinson’s testimony. I would start my case after the lunch break.
I called Dr. Rudolph as my first witness. I had been trying to get in touch with him to go over his testimony, but he hadn’t returned my calls. He was an intelligent man though, and telling the truth, so I wasn’t especially worried.
“You were Mr. Smith’s family doctor.”
“Yes.”
“And you were aware that he had a large hiatial hernia.”
“Yes, he’d had it for a good 20 years.”
“Why didn’t you repair this hernia?”
“Because it was benign.”
“You’re aware that Mr. Smith was involved in a car accident.”
“Yes.”
“He was taken to the emergency room, where the doctors performed surgery to correct the hernia. Let me ask you doctor, was that surgery necessary?”
“No, but you’ve got to understand that an emergency room is, by definition, an emergency situation. The doctors assumed the hernia was traumatic and went in to save this man’s life.”
What was happening? He was backing off what he told me before.
“Didn’t the surgeon call you before performing the surgery?”
“Yes.”
“Did he ask about Mr. Smith’s medical history?
“Yes.”
“What did you tell him?”
“That he was in general good health, but frail.”
“In your opinion, was the emergency surgery medically wise?”
“I don’t like to second-guess my colleagues on the front lines.”
“Isn’t it true, doctor, that hiatial hernias are common in the elderly?”
“Objection!” Frank called out. “She’s leading the witness.”
“I’m asking the court to allow me to examine Dr. Rudolph as a hostile witness. I’ll make it brief.”
For once, the judge ruled in my favor. “I’ll allow it,” she said.
“Isn’t it true, doctor, that hiatial hernias are common in the elderly?”
“Yes, it is true.”
“A hernia of the stomach into the chest cavity can arise either from a weakening of the hiatus or from a tear caused by a traumatic event.”
“Yes.”
“An x-ray will show whether the hernia was caused by trauma or a weakened hiatus?”
“It should.”
“Wouldn’t you agree, doctor, that it would also be proper to consider the possibility, in a case like Mr. Smith’s, that the hernia was pre-existing, and not caused by the accident?”
“As you said earlier, hiatial hernias are common in the elderly.”
“So, let’s say that you are the emergency room doctor, and Mr. Smith comes in the hospital from an automobile accident.”
“OK.”
“You see a large hernia of the stomach into the chest cavity on the x-ray.”
“OK.”
“You call his family doctor, and ask him about Mr. Smith’s general health.”
“OK.”
“Do you tell the family doctor that you will be performing emergency surgery to repair a hernia of the stomach into the chest cavity?”
“I would think so.”
“Do you ask the family doctor whether Mr. Smith had a pre-existing hernia due to the fact that he was elderly?”
He sighed. “Yes, I would.”
I ended the day with Dr. Rudolph. I thought I had made my points with him, but I was angry at myself for not handling him better. I should have had a witness with me when I initially interviewed him. I would have given anything for the jury to hear his statement, “I sure as hell think you’d check before you go hacking away at someone.” What a rookie mistake. I cursed myself as I walked back to the office.
CHAPTER SIXTY-EIGHT
I stomped into my cubicle to find Bill snoozing in my client chair.
He woke up when I dropped my trial notebooks on the chair next to him. “Hi, I’m Bill.”
“I’m Kate.” I was not in the mood for Bill.
Bill picked up the notebook with the police photos of the accident scene. He flipped through the notebook as I took off my jacket and kicked off my shoes. “Looks like photos from an accident scene,” he said.
“Yes,” I said, sitting in the client chair.
“How fast they say he was going?”
“Anywhere from 55 to 65.”
“Doesn’t look that fast to me.”
“Right,” I said, wishing he would just go away.
“How long do they say the skid marks are?”
“117 feet.”
“Those skid marks aren’t 117 feet long. Probably half that.”
“How can you tell?”
“Seen a lot of skid marks in my day.”
I looked at the picture. It showed two long black marks on the roadway. I had no idea how long they looked. “They’re gone now,” I said dismissively. “There’s no way to measure them now.”
“They look to be about 65 feet.”
“Great, maybe you can come testify about how long they appear to you.” Something was bothering me, though, like an itch in the back of my brain.
I considered asking Bill to leave so I could work on trial preparation for tomorrow. I looked at the notebooks stacked on my chair. Who was I kidding? I was too tired to do anything. “I think I’m going to go home,” I said. “I’m too tired to work on this tonight. I’ll see you tomorrow.”
I carried my briefcase and trial preparation notebook up the back stairs to my apartment. When I opened the door, I took in the living room, as if I had never seen it before. An old newspaper covered the couch, and a couple of empty Shiner Bock bottles and a pile of unpaid parking tickets sat on the coffee table, but the room seemed strangely empty, like no one lived there.
I sat up straight in my bed, jolted out of sleep by a dream. The only image from the dream that remained was Doug’s face. He was saying, “Something sounds fishy …”
The skid marks. That’s what Frank and Smoot were talking about the day Doug overheard them. There was something fishy about the skid marks. We had to check the measurements. But how? The marks had faded from the street long ago.
I found my briefcase by the door, where I had left it when I got home last night. I searched through it, and finally dumped the contents on the floor. Buried in the mess, I finally found Hank’s card. I dialed the number.
“We need to check the measurement of the skid marks.”
“Hello?”
“It’s Kate. I think they may have mis-measured the skid marks.”
“What time is it?”
“It’s 2:30. Sorry. But we’ve got to check this.”
“The skid marks?”
“I have a hunch that the measurements are off. What should we do?”
He sighed. “Meet me at the intersection at 5 o’clock.”
The sun had risen when I parked at the intersection where the accident had happened. Hank was already there, smoking a cigarette as he stared at the road. “You’ve got the pictures?”
“Right here,” I said, handing him the notebook.
We sat down on the curb and opened the notebook on our laps. “Can we tell where the skid marks start?”
We looked at the pictures. “It’s hard to tell, because there’s no frame of reference now that the skid marks are gone …”
We stared at the picture and then the road.
“Except the sidewalk,” we said simultaneously. We looked through the notebook of photographs until we found a clear picture of the skid marks that also showed the sidewalk.
Hank pulled a magnifying glass out of his pocket and examined the picture. He held it up and compared to the sidewalk. “I don’t think the sidewalk has been re-done. Look, here around the curb where it’s all chewed up—that’s the same. And here, these cracks in the sidewalk—they’re the same too.”
I looked again at the photograph of the skid mark. The sidewalk in the picture had a few distinctive features—a wiggly crack in the corner of the 3rd square, a chewed-up portion of curb, a buckle in one of the sections from a tree root. The sidewalk looked almost exactly the same now as it had when the picture was taken.
“We can figure out the starting point of the skid marks—using their pictures and the cracks in the sidewalk.” He showed me the picture. “Look, here’s the curve of the curb from the intersection, and then here’s the cracks. One, two, three, four. In this picture, you can tell that the skid marks start at crack number nine.”
“But where do the skid marks end?”
“We can figure that out mathematically within a couple of feet. Mark’s car was in his lane before the accident. So was Mr. Smith’s. Therefore, the cars intersected where the lanes meet. Mark’s car hit Mr. Smith on the side, so the side of Mr. Smith’s car had to be a couple of feet from the centerline.”
“We need to measure from the ninth crack in the sidewalk to a couple of feet beyond the centerline? Is that what you’re saying?”
“Exactly.”
Hank got his measuring wheel out and measured from the ninth crack to the point of impact. Sixty-eight feet.
“Are you sure?” I asked, wanting to believe him, but afraid to let myself.
“Do you want to measure it yourself?”
“Yes, I do.”
I took the wheel. I looked at the photograph and found the crack in the sidewalk where the skid mark had started. I started two feet farther back, just to be generous. I wheeled to the spot in the intersection where the accident occurred. Sixty-eight feet. “But I started two feet back from the forth crack, to give it a margin of error.”
“So did I.”
“Maybe this wheel thing isn’t working right.”
“I calibrated it last week.”
“Don’t you have a regular tape measure?”
“Yes.”
“Can I use it?”
He went to the trunk of his car and retrieved a very large tape measurer. He held one end while I pulled the other to the point of impact. Still the same.
We sat on the curb again.
“How could they mis-measure the skid marks by 60 feet?” I asked, barely letting myself believe our measurements were right.
“I can’t imagine. It had to be a mistake.”
“What’s this do to his speed?”
He pulled out his calculator. “High 30s to low 40s.”
“Just like Mark told me all along. I wonder what we should do now.”
“Don’t ask me. I’m not the lawyer.”
“Should we tell them?”
“What could happen if we told Frank?”
“He could realize he doesn’t have a case, and dismiss the charge. Or he could try to fix the problem.”
“I don’t know Frank Pukitis as well as you do, but I don’t trust him.”
“They seem a little invested in this whole thing to just dismiss it. On the other hand, what can they do? I guess they could say that our measurements are wrong. But we can prove we are right. Their own photo shows it. It’s obvious to even an English major like me.”
“It’s not like Frank can change the facts. Those skid marks were 68 feet long.”
“If there is any way to spare Mark from any more trial stress, I’d like to do it,” I said. “On the other hand, the element of surprise can be very powerful.” I remembered Mr. Roberts’ leg and hand from my first trial. “I guess the main thing comes down to: If I tell them, can they fix it? And I don’t see how they can. Those skid marks were 68 feet long, and Mark was going around 40—still speeding, but like everyone else on that road, every day.”
“It’s up to you, Kid.”
“Let’s tell them,” I said, deciding. “They’ll see they made a mistake and need to dismiss the case. We’ll bring them out here if we need to.”
Frank picked up on the first ring.
“I’ve got some important information for you,” I said.
“All right.”
“Hank says the skid mark measurements are off. By a lot. And he can prove it.” I don’t know what I expected from Frank, surprise, anger, frustration—but it wasn’t the response that I got.
“Is he right?” he asked.
“Yes, he is,” I explained eagerly. “I went out there myself, counted the cracks in the sidewalk. You can tell pretty easily, really. The initial measurements were just wrong. Do you want to come out there with me? I can show you.”
“That’s OK.”
I waited.
“I’m still waiting for your proposed jury instructions.”
CHAPTER SIXTY-NINE
On Friday morning, I arrived at court with person-sized enlargements of the original picture of the skid marks along with the photographs of the sidewalk Hank and I had taken three hours earlier.
“What are these?” Frank said.
“Great big pictures of the accident scene.”
“No, no, no, Kate.” He actually wagged his finger under my nose. “You have to turn in all of your exhibits two weeks prior to trial.”
“I just found out about the skid marks.”
“That’s too bad, Kate. Rules are rules, you know.”
“I suppose if I found a picture of someone else driving the car when it struck Mr. Smith’s car, that would be too late too?”
“You have a picture of someone else driving? This is really too much, Kate.”
“Let’s just go see the judge.”
I knocked on the judge’s door, and waited.
“Come in,” she said. A bronze statue of Lady Justice stood on her desk; I noticed the statue’s bronze hair was styled in the same curled bob as the judge’s hair.
“Judge, my investigator and I went to the accident scene this morning. We made some startling discoveries.”
“I thought you had completed your investigation.”
“I thought so, too. I certainly wish we had discovered this earlier. It just didn’t occur to us that the state could be so inept.”
“I won’t stand here and listen to Ms. Hamilton’s snide insults.”
“I wasn’t snide.”
Frank looked ready to punch me. I hoped he did. “Your honor, Miss Hamilton is well aware that all exhibits must be submitted to the court two weeks in advance.”
“That is the rule, Ms. Hamilton,” the judge said.
“Yes, Judge, but I can’t prepare exhibits about something I haven’t yet discovered.”
“That should teach you to complete your investigation earlier,” Frank said.
“You are well beyond the cut-off date, Ms. Hamilton. The trial is almost over. It is too late for new exhibits.”
“Wait a minute. I have evidence that makes my client innocent, and you aren’t going to allow me to show my exhibits to the jury because I didn’t submit the pictures two weeks in advance?”
“This is a court of law and laws are based on rules.”
“And justice? Not to mention fairness? Aren’t those concepts supposed to fit in somewhere? An innocent 19-year-old boy may go to prison, but thank heaven we didn’t violate the two-week exhibit rule.”
“That’s quite enough, Ms. Hamilton.”
“Then I have a motion for the jurors to be allowed to view the scene.”
The judge looked interested. “Mr. Pukitis?”
“I’ve never heard of anything like that.”
I picked up the rule book from the judge’s desk and turned to a page number I had memorized in anticipation of this battle. “Under rule 3.7, the jurors may view the scene of an incident if the court finds that a viewing ‘will substantially assist the trier of fact.’ Judge, if you just give me a chance, I can show these jurors that the skid marks in this case were completely mis-measured, and that my client is innocent. It’s not an exhibit, it’s just reality.”
“All right, Ms. Hamilton,” the judge said. “But you have to make the arrangements. I’ll give you 30 minutes.”
I managed to get the court administrator’s office to allow us to borrow a van to transport the jurors. The jurors themselves seemed like grade-school kids on a field trip. They were excited to see the accident scene themselves rather than having lawyers and police tell them about it.
Several of the jurors wanted to measure the distance themselves. I wasn’t sure if this was permissible, but since no one was objecting, every one got a turn with the measuring wheel.
I was actually grateful that the judge had not allowed me to use the exhibits. It is one thing to show people pictures of a road with skid marks and to prove by landmarks that the skid marks that are half as long as the state claims. It is quite another to have the jurors go to the scene, look at the pictures, and then make the measurements themselves. Jurors love to figure things out themselves.
We returned to the courtroom after the field trip. I wondered how Frank was going to handle this new evidence. I speculated that he would say that the sidewalk had changed, although it hadn’t, or something—I really couldn’t imagine.
Frank called Officer Moon back as a rebuttal witness. He showed him the picture of the skid marks. The picture that he himself had taken less than 10 minutes after the accident.
“Now, Officer Moon,” Frank said. “Is this the photograph you took of the skid marks?”
“Yes.”
“Does it show the entirety of the skid marks that you measured?”
“No, it doesn’t.”
“Could you explain to the jury how this is possible?”
“The first thing I did was accurately measure the skid marks, from the starting point to the point of impact. Not all skid marks will be visible in a photograph. Sometimes you have to get on your hands and knees to actually see the marks.”
What? The skid marks were not subtle. Mark had slammed on his breaks, and the photograph showed their obvious starting point.
“Are you saying that the skid marks can disappear before they can be documented?” Frank continued.
“It happened in this case, so it must be true.”
“So is it your testimony that half of the skid marks in this case evaporated before they could be photographed?”
“Yes it is. I measured the skid marks, and they were 117 feet long. If they are shorter in the picture it is simply because the picture does not show the entire skid mark.”
This was a strategy I had not imagined. Some fifty feet of skid had simply disappeared—poof! And despite the fact that it was their photograph that they took, it simply did not show what Officer Moon saw at the time. And despite the fact that these 50 feet of skid had vanished, a noteworthy event, one would think, no one had mentioned that fact until this day. In fact, the picture that they took did not even show the portion of the roadway where the skids would have started had they been as long as Officer Moon claimed.
I began my cross examination. “Officer Moon, you’ve testified that according to your investigation, Mark was traveling about 62 to 68 miles per hour when he applied his breaks?”
“Yes.”
“And you’ve testified that this was outrageous speed for this residential arterial?”
“Yes. It was far too fast for the conditions.”
“But it was an arterial?”
“Yes.”
“And the speed limit was 35?”
“Yes.”
“Would you agree that many drivers exceed the speed limit?”
“Yes.”
“In fact, your agency has a policy of not stopping people for speeding unless they are going more than 5 miles per hour over the speed limit?” A patrol cop had told me this a week ago when he pulled me over for going six miles per hour over the limit. He gave me a warning.
“You agree that there is a difference between normal speeding and egregious speeding?”
“Yes.”
“What would you consider normal speeding?”
“High 30s to low 40s.”
“Thank you, Officer Moon.” I took my copy of the skid mark photograph and walked to the witness stand. “I want to make sure I understand your testimony. Are you saying that your picture simply does not show the entire skid mark?”
“Yes.”
“You agree, then, that the skid mark in the picture is 68 feet long?”
“Are you talking about the part you can see?”
I resisted the urge to say, “Yes, the part we can see, rather than the part the fairies took away.” Sarcasm misfired too easily with jurors. “Yes, the skid mark in your picture—that is, the non-invisible part. Would you agree it is 68 feet long?”
“That looks about right.”
“Mr. Hank Brennan testified earlier that he measured the marks in the photograph using the cracks on the sidewalk as a reference point and an estimated point of impact. Would that be an acceptable method of measurement?”
“It wouldn’t be the most accurate method.”
“But it would get you within a couple of feet?”
“Yes.”
“And Mr. Brennan testified that he measured the distance using both his wheel measurer and his tape measure—would you have any reason to doubt his measurement?”
“No.”
“So let’s say for a second that the skid marks are, in fact, 68 feet long—that there was no invisible part.”
“A portion of the skid evaporated.”
“I know you say that. What I’m asking you to do for a second is pretend that the skid mark in the picture is all there is. No invisible part. OK?”
“OK.”
“If the skid mark was, in fact, only 68 feet long, what would Mark’s speed have been at the time he noticed Mr. Smith’s car?”
“Um, just a second. He tapped on his calculator, paused, made a note, and tapped a few more keys. “High 30s to mid 40s.”
“A normal speed for this arterial?”
He knew he had walked into my trap. “Ah, um … Yes. A normal speed for this arterial.”
“Do you think they did it on purpose?” Hank asked during a break.
“I can’t imagine that. I can’t believe that anyone would just make up facts to make an innocent kid guilty. I can’t live in that world. But it’s just as bad to be so invested in your position that you can’t admit you made a mistake.”
“We’re kicking their asses, though.”
“Don’t say that, you’ll jinx us.”
CHAPTER SEVENTY
Frank and I sat in the judge’s chambers, waiting for the Judge Peterson to arrive to discuss jury instructions. I hated being alone in the same room with Frank; I felt like I was being forced to breathe his air.
“You know, Kate,” he said conversationally. “You should go into private practice. You actually do a good job for your clients.”
My only response was to stare at him without expression.
I hoped Frank would give up. He seemed to recognize that he had lost. Maybe he would dismiss the case before closing argument, I fantasized. Instead, Frank was as dramatic and self righteous in his closing as he had been throughout the trial. The jury wasn’t with him, though. At least half of them had their arms crossed and leaned back as far as they could, as if hoping to put more space between themselves and Frank.
I refused to listen to Frank’s closing argument. I loathed him by this point—I couldn’t bear to allow his words into my brain. I was also physically and emotionally exhausted. I knew I should listen so I could make objections, but I didn’t think anything mattered at this point.
“Ladies and Gentlemen of the Jury, I’ll tell you what Mark did,” I accidentally heard Frank say. “He turned that car into a gun,” he said, holding his thumb and finger in the universal “gun” gesture, “and he,” Frank turned to face Mark, pointing his finger gun at him, “pulled the trigger!” And he pulled his thumb back twice.
Oh my God, someone murdered the old man! I probably should have stopped Frank, but his drama was utterly ridiculous. I thought the jury would know it. I hoped they would hate him for it.
We concluded the trial at 5:30 on Friday. Judge Peterson released the jurors for the weekend, instructing them to return promptly at 9:00 on Monday morning to begin deliberations. The fact that Jimmy was on the jury kept me sane over the weekend.
On Monday morning, I sat down at my desk at exactly 9:00. I thought the verdict would be quick. At 9:01, I checked my messages. No one had called. I started to pick up the phone to call another client, but then hung up, realizing that I needed to keep the line open. At 9:03, my mother called. “Nothing yet, gotta go. Want to keep the line open.”
At 9:05, Doug called. “Miss Hamilton,” he said in a nasally voice, “the jury has a verdict.”
“You’re lucky I recognize your voice, or you’d be dead.” I hung up.
At 9:06, I started to worry. What was taking them so long? It really had been an old-fashioned ass kicking, as far as I was concerned. What if they took an hour? What if they took all day? It was 9:07 and I was starting to lose it. I forced myself to leave my office and walk laps through the hallways.
Finally, at 9:12, Judge Peterson’s bailiff called. “The jury has a verdict,” she said.
“I’ll be right over.” My heart was pounding.
Mark and his family were waiting in the hallway outside Judge Peterson’s courtroom. His mother let out a little shriek when she saw me coming up the stairs. “Is it …?”
“Yes. The jury has a verdict.”
Mark’s face went pale.
“It’ll be OK. Come on.”
The jurors filed in. I saw Jimmy holding the verdict form. He looked straight at Mark and me, a good sign, but I didn’t want to jinx anything with too much optimism. I took a breath and tried to clear my mind. I looked at Mark and saw tears welled in his eyes. I forced my mind to imagine myself french kissing Frank in order to beat back my own tears. I waited until all the jurors were in their places, and then looked over at them. Most made eye contact with me.
“Does the jury have a verdict?”
“Yes, your honor, we do.”
“Please hand the verdict form to the bailiff.”
When the judge finally had the verdict form, she read, without the usual time-slowing phrases, “In the matter of the state of Washington versus Mark Holland, we the jury, find the defendant Mark Holland, not guilty of Vehicular Homicide.”
As the judge said the words “not guilty” Mark’s friends and family sighed audibly, having waited almost two years for this relief.
“Juror number one. Is this your verdict?” the judge asked.
“Yes, it is.”
“And is it the verdict of the jury?”
The juror looked directly at Mark and me. “Absolutely.”
“Good job, Kid,” Jimmy said after the judge released the jurors, and snuck off, probably not wanting to talk to Frank. The rest of the jurors stopped and shook hands with Mark and his father, as if guests in a bridal reception line. They all wished him well, and said they were sorry he had to go through all of this. I was floating on a cloud of pure euphoria.
Want to read more? New chapters coming this Friday, September 21, 2012!
