The Fifth Witness Part 41

"Doctor? Do you want me to repeat the question?"

"No, that is not necessary. You must remember that in science one-tenth of a centimeter can mean quite a difference."

"Are you saying that the hammer did not strike Mr. Bondurant evenly, sir?"

"No!" he said in an annoyed tone. "I am just saying that it is not as cut and dried as people think. Yes, it appears that the hammer struck the victim flush, if you will."

"Thank you, Doctor. And when you look at your wound-depth measurements on the second and third strikes, they are not as even, correct?"

"Yes, that is correct. In both of these impacts the deviation ranges up to three millimeters in each."

I had him now. I was rolling. I stepped back from the lectern and started to wander to my left, into the open s.p.a.ce between the lectern and the jury box. I put my hands in my pockets and adopted a pose of a completely confident man.

"And so, Doctor, you have the fatal blow delivered clean and flush to the top of the head. The next two, not the same way. What would account for this difference?"

"The orientation of the skull. The first strike stopped brain function within a second. The abrasions and other injuries to the body-the broken teeth, for example-indicate an immediate dead fall from a standing position. It is likely that the second and third strikes occurred after he was down."

"You just said the other injuries indicate 'an immediate dead fall from a standing position.' Why are you sure the victim was standing when attacked from behind?"

"The abrasions to both knees are indicative of this."

"So he could not have been kneeling when attacked?"

"It seems unlikely. The abrasions on the knees indicate otherwise."

"What about crouching, like a baseball catcher?"

"Again, not possible when you look at the damage to his knees. Deep abrasions and a fracture to the left patella. The kneecap, as it is more commonly called."

"So no doubt in your mind that he was standing when struck with the fatal blow?"

"None."

It was perhaps the most important answer to any question in the whole trial, but I glided on like it was just part of the routine.

"Thank you, Doctor. Now let's go back to the skull for a moment. How strong would you say the skull is in the area where the fatal impact occurred?"

"Depends on the age of the subject. Our skulls grow thicker as we age."

"Our subject is Mitch.e.l.l Bondurant, Doctor. How thick was his skull? Did you measure it?"

"I did. It was point eight centimeters thick in the impact region. About one-third of an inch."

"And have you conducted any sort of study or test to determine what kind of force it would have taken for a hammer to create the fatal dent fracture in this case?"

"I have not, no."

"Are you aware of any such studies of this question in general?"

"There are studies in the area. The conclusions are very broad. I happen to think each case is unique. You can't go by general studies."

"Isn't it widely held that the threshold measurement of pressure needed to create a depression fracture is one thousand pounds of pressure per square inch?"

Freeman stood and objected. She said that I was asking questions outside the scope of Dr. Gutierrez's expertise as a witness.

"Mr. Haller himself was quick to point out in his cross-examination that the witness's expertise is in diseases of the GI tract, not bone elasticity and depression."

It was a no-win situation for her and she had chosen the lesser of two evils: burning her witness or allowing me to continue to ask him questions that he didn't know the answers to.

"Sustained," the judge said. "Let's move on, Mr. Haller. Ask your next question."

"Yes, Your Honor."

I flipped a few pages on my pad and acted like I was reading. It would buy me a few moments while I considered the next move. I then turned and looked at the clock on the back wall of the courtroom. It was fifteen minutes till lunch. If I wanted to send the jury out with a final bit of food for thought, I needed to act now.

"Doctor," I said. "Did you record the height of the victim?"

Gutierrez checked his notes.

"Mr. Bondurant was six feet, one inch tall at the time of his death."

"So this area at the crown of the head would be six feet and one inch high. Is that fair to say, Doctor?"

"Yes, it is."

"Actually, with Mr. Bondurant wearing shoes he would have been even taller, correct?"

"Yes, maybe an inch and a half to account for the heels."

"Okay, so knowing the victim's height and knowing that the fatal wound came in flush on the top of his head, what does that tell us about the angle of attack?"

"I am not sure what you mean by angle of attack."

"Are you sure about that, Doctor? I am talking about the angle the hammer was at in relation to the impact area."

"But this would be impossible to know because we don't know the posture of the victim or whether he was ducking from the blow or what the exact situation was when he was struck."

Gutierrez ended his answer with a nod, as though proud of the way he had handled the challenge.

"But Doctor, didn't you testify during direct examination from Ms. Freeman that it appeared to you, at least, that Mr. Bondurant was struck from behind in a surprise attack?"

"I did."

"Doesn't that contradict what you just said about ducking from the blow? Which is it, Doctor?"

Feeling cornered, Gutierrez reacted in the way most cornered men do. With arrogance.

"My testimony is that we do not know exactly what happened in that garage or what posture the victim was in or what the orientation of his skull was when he was struck with the fatal blow. To be minutely guessing and second-guessing at this point is a fool's errand."

"You are saying it is foolish to attempt to understand what happened in the garage?"

"No! I am not saying that at all. You are taking the words and twisting them."

Freeman had to do something. She stood and objected and said I was badgering the witness. I wasn't and the judge said as much, but the little interruption was enough for Gutierrez to collect himself and resume his calm and superior demeanor. I decided to wrap things up. I had largely been using Dr. Guts as a setup man for my own expert, who would testify during the defense phase. I believed I was almost there.

"Doctor, would you agree that if we could could determine the victim's posture and the orientation of his skull at the time of that first, fatal blow, then we would have insight as to the angle at which the murder weapon was held?" determine the victim's posture and the orientation of his skull at the time of that first, fatal blow, then we would have insight as to the angle at which the murder weapon was held?"

Gutierrez considered the question for longer than it had taken me to ask it, then reluctantly nodded.

"Yes, it would give us some insight. But it is imposs-"

"Thank you, Doctor. My next question is if we knew all of these things-the posture, the orientation, the angle of the weapon-wouldn't we then be able to make some a.s.sumptions about the height of the attacker?"

"It doesn't make sense. We can't know these things."

He held both his hands up in frustration and turned to look at the judge for help. He got none.

"Doctor, you are not answering the question. Let me ask you again. If we did indeed know all of these factors, could we then make a.s.sumptions about the attacker's height?"

He dropped his hands in an I give up I give up gesture. gesture.

"Of course, of course. But we do not know these factors."

" 'We,' Doctor? Don't you mean you you don't know these factors because you didn't look for them?" don't know these factors because you didn't look for them?"

"No, I-"

"Don't you mean you didn't want to know these factors because they would reveal that it was physically impossible for the defendant, at five foot three, to have ever committed-"

"Objection!"

"-this crime against a man ten inches taller than her?"

Luckily they no longer used gavels in California courtrooms. Perry would have smashed his through the bench.

"Sustained! Sustained! Sustained!"

I picked up my pad and flipped over all the folded back pages in a show of frustration and finality.

"I have nothing further for-"

"Mr. Haller," the judge barked, "I have warned you repeatedly about acting out in front of the jury. Consider this your last warning. Next time, there will be consequences."

"Noted, Your Honor. Thank you."

"The jury will disregard the last exchange between counsel and the witness. It is stricken from the record."

I sat down, not daring to glance at the jury box. But that was okay, I felt the vibe. Their eyes were on me. They were riding with me.

Not all of them, but enough.

Thirty-eight.

I spent the lunch hour schooling Lisa Trammel on what to expect during the afternoon session of court. Herb Dahl was not present, having been dispatched on a phony errand so I could be alone with my client. As best I could, I tried to explain to her the risks we would be taking as the prosecution's case wound down and the defense took center stage. She was scared, but she trusted me and that's about all you can ask from a client. The truth? No. But trust? Yes. spent the lunch hour schooling Lisa Trammel on what to expect during the afternoon session of court. Herb Dahl was not present, having been dispatched on a phony errand so I could be alone with my client. As best I could, I tried to explain to her the risks we would be taking as the prosecution's case wound down and the defense took center stage. She was scared, but she trusted me and that's about all you can ask from a client. The truth? No. But trust? Yes.

Once court reconvened Freeman called Dr. Henrietta Stanley to the witness stand. She identified herself as a supervising biologist for the Los Angeles Regional Crime Laboratory at Cal State L.A. My guess was that she would be the last witness for the prosecution and her testimony would have two parts of major significance. She would confirm that DNA testing of the blood found on the recovered hammer matched Mitch.e.l.l Bondurant's DNA perfectly and that the blood found on Lisa Trammel's gardening shoe also matched the victim's.

The scientific testimony would bring the case full circle, with blood being the link. My only intention was to rob the prosecution of the moment.

"Dr. Stanley," Freeman began. "You either conducted or supervised all DNA a.n.a.lysis that came from the investigation of Mitch.e.l.l Bondurant's death, did you not?"

"I supervised and reconfirmed one a.n.a.lysis conducted by an outside vendor. The other a.n.a.lysis I handled myself. But I must add that I have two a.s.sistants in the lab who help me and they do a good portion of the work under my supervision."

"At one point in the investigation you were asked to have a small amount of blood that had been found on a hammer a.n.a.lyzed for a DNA comparison to the victim, were you not?"

"We used an outside vendor on that a.n.a.lysis because time was of the essence. I supervised that process and later confirmed the findings."

"Your Honor?"

I was standing at the defense table. The judge looked annoyed with me for interrupting Freeman's examination.

"What is it, Mr. Haller?"

"To save the court's time and the jury from going through a long-drawn-out explanation of DNA a.n.a.lysis and matching, the defense stipulates."

"Stipulates to what, Mr. Haller?"

"That the blood on the hammer came from Mitch.e.l.l Bondurant."

The judge didn't miss a beat. The chance to jump the trial forward an hour or more was welcomed-with caution.

"Very well, Mr. Haller, but you will not get the opportunity to challenge this during the defense phase. You know that, right?"

"I know it, Judge. There will be no need to challenge it."

"And your client does not object to this tactic?"

I turned my body slightly toward Lisa Trammel and gestured to her.

"She is perfectly aware of this tactic and agrees. She is also willing to go on record, if you wish to ask her directly."