Appearances, copyright 2006, by Etienne. All rights reserved.

-23-

The Trial Begins

Monday began with a cold front passing through the area, followed by a drenching early morning rain which served to both dampen our spirits and prevent us from running. This, in turn, caused me to arrive at the office in something less than the best of moods. Which was not the best of ways to begin the final week of preparation for a major trial.

Somehow I got through the day without losing my cool, and by six, Philip and I were running in the Park, after which we went and swam some laps. We retired early to the spare room, which we had begun calling the study, the former study downstairs having acquired the new title of library.

He had begun a new novel, principally as a distraction from the period of waiting for the trial to begin, and settled down at his computer. I had brought home a bulging briefcase, and busied myself with working my way through its contents. As usual, I had placed several hours' worth of music on the stereo system. We worked steadily and without interruption until nearly eleven, when Richard came in.

The door had been open, and I don't think that either of us were aware of his presence until he spoke "Knock, Knock."

I looked up from my desk. "Hi, what's up?"

"News from Bruce," he said. "First, Wetherbee himself is going to try the case."

"That is hardly surprising, but good to know for sure. What else?"

"Second, I have managed to acquire every name and address on the list of prospective jurors."

"Great, that gives you five days, counting the weekend, to check them out. Anything else?"

"Geez, Charley, isn't that enough?"

"Well, to quote from the gospel according to Richard, one can't get enough."

"That was said in an entirely different context."

"But applicable, nonetheless. If you want me to say 'well done,' then 'well done.' Now, go to bed and get some rest, you are going to be extra busy tomorrow and for the rest of the week."

After Richard had left the room, Philip asked "What is so important about the jury list?"

"In this case, it could be vital. I will be allowed to dismiss only so many jurors summarily, that is to say without a specific cause. If I know a little something concerning the background of each juror before I question him or her, I may be able to ask questions that will elicit an answer that will allow me to dismiss for cause. Considering the way Wetherbee is going to present this case, it is vital that we have no certified homophobes on the panel. Background data will help me in weeding out the Baptists and Fundamentalists, for example, without wasting my other options."

"I see, I think."

I stood up, stretched, and walked over to his desk, where I began to massage his shoulders. "Are we anywhere near a stopping place?"

"Actually, we are," he said, "Why?"

"Oh, I was just wondering if I could entice you to bed."

Within ten minutes, we were in bed, and half an hour later, we were asleep.

Tuesday morning, we were able to resume our habitual morning run, which allowed me to arrive at work in a better frame of mind. The rest of that day was uneventful, as was the rest of the week, the working portion of which ended at noon on Thursday, it being New Year’s Eve.

We went out to dinner that evening, and came home in plenty of time to relax in the library before toasting the New Year with champagne. We spent a relaxing three-day weekends, and were in bed early Sunday evening, having gone for a run through the park before bedtime in hopes that physical exhaustion would insure soundness of sleep despite a certain amount of nervous anticipation concerning the events of the next morning.

Monday, we rose at our usual hour, and ran and breakfasted. Philip rode with me to the office, and waited in my office while I took care of a few odds and ends. Andrew came in around eight thirty, to wish us good luck, and shortly thereafter Mark and Philip and I walked over to the courthouse.

We took our places in front of the Courtroom, with Philip sitting between Mark and myself at the defense table. Mark and I had just finish arranging our documents when Craig Wetherbee came in with Tom Shields, an Assistant District Attorney, or ADA, who was to help him with the prosecution. There was no time to exchange pleasantries with the opposition, as was sometimes the case, as the bailiff entered the room, demanded that 'all rise,' and we were under way.

The process of jury selection lasted until Wednesday afternoon around four o'clock. Richard and his team had done their work well, and I had managed to eliminate all of the prospective jurors whom I thought might be remotely prejudiced against homosexuals without using up all of my rights to dismiss jurors without cause. During the process of questioning the panel, I clashed repeatedly with Wetherbee, who objected vehemently every time my questions had strayed into or near the area of religion. As expected, the Judge granted a recess until the next morning due to the lateness of the hour, and we walked back to the office, where Mark and Philip and I had a brief conference before we called it a day.

Mark and I were as pleased with the Jury as we were with the degree of Wetherbee's apparent displeasure, and I explained our reasoning to Philip, who seemed to understand.

Philip and I arrived at home a little after five, where we changed into casual attire, having decided to go directly out to eat after our swim. We had a light supper at Micks, after which we visited our favorite bookstore and browsed for a while before returning home. Once we were home, we went up to the study and spent an hour or so at our respective desks and then changed into running gear for a short run around the park. This had the desired effect, and afterward we went straight from the shower to bed.

Thursday produced no real surprises. Wetherbee's opening statement boiled down to one or two items, - that Philip, who had no visible means of support, was dependent upon his wife's income; - that her pregnancy (he managed to imply, without coming out and saying so, that Philip was obviously not the father) represented a threat to his financial security, and fearing that he would lose his gravy train, he had killed her. How they intended proving this was beyond me.

Knowing in advance that this was the gist of their argument, I had prepared an extremely brief opening statement to the effect that we would prove to everyone's satisfaction that their case was based upon total fantasy. I concluded my remarks and sat down, whereupon Wetherbee called his first witness and we were off.

The first two witnesses were the officers who appeared at the scene in response to a call from Lucy Starling. I found little fault with their testimony, and chose not to cross examine them. The next witness was the former maid, Maria Santos, who had discovered the body. When my turn came, I had a few questions for her.

"Miss Santos, were you present at the house when Mr. d'Autremont returned home that morning?"

"Yes sir."

"Did he seem upset at the discovery of his wife's death?"

"Objection," interrupted Wetherbee, "the witness is not a qualified psychologist."

"She is a human being, your honor, and capable of recognizing human reactions," I said.

"Overruled," replied the Judge, "The witness may answer the question."

In her slightly accented English, Maria Santos continued "Yes sir, he seemed to be very upset."

"Thank you, Miss Santos. I just have one or two other questions, and then you may go."

"Thank you, sir," she said.

"Miss Santos, who paid your wages?"

"Mrs. d'Autremont."

"Are you sure of that?"

"Of course, she handed me a check every week."

"She handed you a check, but do you know if it was her money that she paid you with?"

This prompted an objection, some arguing between Wetherbee and me, and finally we had to approach the bench.

Wetherbee jumped right in "Your Honor, this is totally irrelevant and has nothing to do with the murder."

"On the contrary," I answered, "it has everything to do with the Prosecution's case, which seems to be predicated upon the fact that the Defendant is some sort of gigolo who was afraid of losing his meal ticket."

The Judge overruled Wetherbee, who went back to his seat. I walked over to the Defense table, picked up two canceled checks, and returned to face the witness.

"Miss Santos, I'll ask you again, do you know that the deceased paid you with her own money?"

"Like I said, she handed me a check."

"One of these?" I asked, and I handed her the two canceled checks.

"Yes sir."

"Would you read, for the court, what name is printed in the upper left-hand corner of these checks?"

"d'Autremont Household Account," she read, continuing with the address and telephone number which were also printed there.

"And whose signature is on these checks?"

She squinted at the signatures, then frowned and looked at me. "I can't read it."

"Let me help you," I said. "Both checks are signed, as in fact were all of your paychecks, by Randolph Forney, who is both a Certified Public Accountant and a Tax Attorney, and who handles the financial affairs of Mr. d’Autremont and his late wife.”

"Oh." She seemed surprised.

I took the checks from her, and handed them to the bailiff "Defense enters these two checks as Exhibits 'A' and 'B' for the Defense."

I turned back to her "Now, Miss Santos, if I asked you once again who paid you for your services, how would you answer?"

"Well, the mistress handed me a check, but I guess I don't know where the money came from."

"Thank you, Miss Santos," I said, and went to my seat before I looked at the Judge. "No more questions, your Honor."

Wetherbee then called, in turn, both Lucy and Henry Starling. After he had finished with each of them, I asked them basically the same questions I had the maid, eliciting the same surprised responses from both of them when they were confronted with their paychecks. My questions about Philip's reaction upon his arrival at the scene drew the same response from them, and the same objections from Wetherbee.

All of this took us up to eleven o'clock, at which time the Judge recessed for lunch. Mark, Philip and I walked to a nearby restaurant for a light lunch, over which Philip asked how we were doing.

"Well," I answered, "we planted a seed of doubt this morning concerning money and where it came from. There is not much more we can do with that until our turn comes and we put Randolph on the stand. He is the one that will blow their theory out of the water."

Mark added "It is good, however, to be able to get the jury to think about the matter now. Then, when Randolph testifies, it will not be such a novel idea to them."

When the trial resumed after lunch, Wetherbee called the Pathologist who had performed the autopsy. He described in some detail the nature of the wounds and the cause of death, and when he was asked if there were any other findings, added that the deceased was about six weeks pregnant. Wetherbee returned to the fatal wound.

"It would have taken a strong man to drive a stake through the body with such force, wouldn't it?" he asked.

"Objection." It was my turn to protest. "Mr. Wetherbee is leading the witness."

"Sustained," said the Judge.

Wetherbee took a different approach, asking the Doctor "In your opinion, how much force would have been required to drive a wooden stake through the deceased's body and into her heart?"

"Oh, a considerable amount," he replied.

"More than a strong man could muster," Wetherbee inquired.

"I wouldn't think so," said the Doctor.

When it was my turn, I focused on the strength issue. "Doctor, you described the murder weapon as a wooden stake, about two feet long, pointed at one end, and flat at the other, is that correct?"

"Yes, sir."

"Anyone of average strength, even perhaps a female, could have used a hammer to drive that stake into the deceased, could they not?"

Wetherbee cut off any reply "Objection. No evidence has been introduced concerning any hammer."

I looked at him "Surely the Prosecutor is familiar with popular culture?"

This stopped him cold "What?"

"In the movies, a wooden stake is always driven through a vampire's heart using a hammer or mallet. Everybody knows that. The similarity is so obvious, that even the Prosecution should have thought of it."

That caught him slightly off guard, but he renewed his objection, which was ultimately sustained.

I turned back to the Pathologist. "Rephrasing my question, Doctor, are the wounds consistent with the wooden stake having been pounded into the deceased using some unknown instrument, perhaps even a hammer, to provide the force?"

"They are not inconsistent with that scenario," he replied.

"Doctor, in plain English, doesn't 'not inconsistent' mean the same thing as 'consistent’?" I made two words out of it so it came out con sistent.

"Yes sir."

"Thank you Doctor, I have no further questions."

The next witness called was Sergeant Harold Kellerman, the Detective in charge of the investigation. Kellerman was in his late forties, considerably overweight, and judging from his face, clearly an extremely heavy drinker. Later, when I was up close, questioning him, the odor about him told me that he smoked to excess, as well. In short a stereotypical career police detective.

Wetherbee led Sergeant Kellerman through his report, detail by painstaking detail, finally turning him over to me for cross-examination.

"Sergeant Kellerman," I said, holding a copy of his report in my hand, "according to your report, there were no fingerprints found in the murder room other than those of the deceased, the defendant, the maid, and the housekeeper."

"That is correct."

"All of whom one would expect to have been in the bedroom of the deceased, at one time or another, correct?"

He gave a faint smirk, "Well, we have reason to believe that the defendant was not a regular visitor to his wife's bedroom."

"Do you?"

"Come on, counselor, everybody knows that they didn't sleep together."

"Sergeant, if by 'sleep together' you refer to conjugal relations, I must remind you that 'everybody' does not know anything of the kind, moreover there has been no testimony introduced to that effect."

"Well, they certainly had separate bedrooms."

"So did my great grandparents, but they somehow managed to produce five children." This produced a titter from the audience and a bang of the Judge's gavel.

When quiet was restored, I continued "Sergeant Kellerman, how many sets of my client's fingerprints were found at the scene?"

"One very faint print was located on an item on the deceased's dressing table."

"Just one?"

"Yes sir."

"Located on," I studied the report briefly although I knew the answer, "a bottle of perfume. Is that correct?"

"Yes sir."

"Which, according to the housekeeper, my client had given to his wife last Christmas, is that also correct?"

"Yes sir."

"How then, can you conclude that my client was ever in that room, given that the only object bearing his fingerprints had been a gift to his wife last Christmas, and given that it is your theory that he did not know his wife in the biblical sense?"

This drew a violent objection, which was finally overruled.

"We feel that he wiped the room clean of prints."

"If that is the case, Sergeant, how do you explain all those other prints you found?"

"What other prints?" he asked, just a shade nervously, which got me thinking.

"Those of the deceased, and the servants."

"Well, he must have missed a few."

I paused for such a long time, lost in my train of thought, that the Judge had to prompt me to continue. "I'm sorry, your Honor."

"Sergeant Kellerman, this is a remarkably lucid document," I said, holding up his report, "May I ask how it was prepared."

"I don't understand?"

"Did you write it out on a yellow pad, and then type it, or did you dictate it to a secretary?"

"Oh, I have a Personal Computer on my desk, and use word processing software to prepare my reports. I am a poor speller, so the program helps me a great deal." Suddenly, I wanted very much to see the Sergeant's Personal Computer.

"I'm impressed. I did not know that the Department was so automated."

"Oh yes, we even transmit reports by modem to the Prosecutor's Office."

"Do you, indeed. Well, the taxpayer's money seems to be being used efficiently, for once."

Wetherbee couldn't stand it any longer. "Is this drivel leading somewhere, or can we get on with it?"

I looked at him with a smile. "No, I think I am finished with this witness, for now." And I went back to the defense table, and leaned across Philip so I could whisper to Mark "Go call Rosemary. Tell her to find Richard wherever he is. I want him waiting for us at the office immediately. I am going to try to get us to recess early and I want him there stat, no matter where he is or what he is doing." He gave me a puzzled look, but got up and left the room to find a telephone.

Philip gave me a puzzled look as well, so I quickly wrote on a yellow pad "Brain wave. Wait and see" and showed it to him before I focused on the next witness, which was yet another police detective, who had conducted some routine portion of the investigation.

I questioned this detective briefly and without result, as I did the next two similar witnesses, by which time it was three-thirty. The next witness on the list, a woman, was an unknown, in that Philip had no idea who she was or what she might have to say. During Discovery, I had learned only that she was crucial to the Prosecution's case. Before Wetherbee could call this witness, I stood up "Your Honor."

"Yes, Mr. Barnett."

"May we approach the bench?"

"You may."

When Wetherbee and I were in front of the Judge, she looked at me.

"Your Honor, the Prosecution has indicated that it's next witness is a crucial one. I do not know how long Mr. Wetherbee intends to question her, but I expect my cross examination to be lengthy, and I would prefer that it take place on the same day as his questioning of her, rather than the next morning."

She took the bait. "Yes, I see your point, Mr. Barnett, you are suggesting an early recess."

"If it pleases the Court."

"It does."

Wetherbee, caught off balance, had nothing to say, and we went back to our respective seats. As soon as we were seated, the Judge ordered a recess until nine o'clock the next morning.

I hurried Mark and Philip out of the court, and back to the office. They obviously did not know what I was up to, but I did not give them a chance to ask questions. Richard was waiting in my office, also with a puzzled look about him. I directed the three of them to the conference table.

When we were seated, I explained.

"Mark, did you notice Kellerman's reaction when I asked him about other fingerprints at the scene?"

"Well, he looked a tad nervous," said Mark, thoughtfully.

"He looked a damn sight more than a tad nervous. He looked to me like a kid who had been caught with his fingers in the cookie jar."

Mark said "Aren't you reading too much into too little?"

"No, I don't think so. Anyway, I want to get my hands on the Sergeant's Computer, or at least the hard disk drive from it."

"How are you going to do that, and what good will it do" asked Richard.

I looked at him "You and I will discuss the how, later. As for the what, the good Sergeant uses Word Processing software to prepare his reports, he even transmits then by modem to the Prosecutor's Office. Most people who use Word Processing will prepare several drafts of a document, sometimes keeping the old versions on hand for various reasons. In point of fact, some of the better software even allows this to happen automatically. There might be one or more older versions of that report still stored on his hard disk. I would like very much to compare them to the final version."

"What if they have been erased?" Richard asked.

"Richard, you really should gain some technical expertise," I answered, "your computer illiteracy is showing."

"Can’t you just give me a straight answer, without the abuse?"

"All right. Think of the hard disk in a computer as a ten-story building. Each story contains ten windows, with each window representing a storeroom for data. When information is stored in one of the rooms, a light goes on in the window. That light represents an index that the computer keeps, telling it where to look to retrieve that data. Are you with me, so far?"

They all indicated that they were.

"When the hard disk is half full, all of the windows on the first five floors will be lighted. If you tell the computer to erase the information contained in, say the right most window on the fourth floor, all it does is turn out the light, indicating that the storeroom is again available for use. It does not actually erase the information."

Mark asked "But won't it use that storeroom for something else?"

"Not until the rooms in all the floors above have been used. Then and only then, will it go back and attempt to find empty rooms near the bottom of the building. It is a long shot, of course, but think about it. If there are older versions of that report, even if they were erased, they could well be recoverable. For that matter, even if the room has been used, it is possible, with the right equipment, to extract data that has been ‘erased’ and overwritten."

"So what," said Richard, "it is still in Kellerman's office, in the police department."

"Yes, but I know somebody who might just have legitimate access, and we are going to see him."

Mark spoke up "What do you expect to find?"

"Gentlemen, I can barely permit myself to think about what we might find, or not find, but we must try, because I have a hunch that it will be crucial."