Write to Die, page 28
“And that’s because you weren’t there when it happened, right?” Sarah asked.
“Correct.”
“And so far as you know, no one else from the LAPD or your lab was there when it happened, right?”
“Correct.”
Don’t, Rory silently willed Sarah, ask her whether anyone else she knows about was present, because if she’s sharp, she’ll say Mr. Harold was there. He breathed a sigh of relief when Sarah skipped asking that and instead asked a different question.
“Did you make any attempt at all to analyze the age of the blood on Exhibit 5?”
“Not initially.”
“You mean not until someone asked you to do it?”
“Correct.”
“Who asked you to do it?”
“Mr. Trucker.”
“Did he call you up?”
“Yes.”
“Did he say why he was asking you to do it?”
“Yes.”
“What did he say?”
“Objection, hearsay,” Trucker said.
“That’s ridiculous, Your Honor,” Sarah said. “Counsel is objecting to this witness repeating what he himself said to her. The hearsay objection is designed to prevent witnesses from repeating statements made out of court that can’t be cross-examined, so perhaps Mr. Trucker would prefer us to call Mr. Trucker himself to the stand so we can cross-examine him directly about what he said to Ms. Chen. Or he can put himself on the stand to contradict Ms. Chen. Either one of which seems to me a waste of this court’s time.”
Rory liked Sarah’s response, which focused on helping out the court. She had good instincts.
“Well, Mr. Trucker, what’s your response to that?” Judge Gilmore asked.
“Your Honor, what I may have said to the witness is subject to the investigatory privilege and would harm the public if revealed, since our investigation is ongoing.”
The judge quirked her lips to the side. “If that’s your only response, your objection is overruled. You’ve already charged Mr. Harold with murder and put on a witness here to bolster your charge. So even though you may still be investigating the crime, you can’t invoke the investigatory privilege to deny Mr. Harold’s attorneys the right to ask the witness what you said to her.”
Judge Gilmore looked at the witness. “Please answer the question, Ms. Chen.”
Chapter 44
“Let me repeat the question. Ms. Chen,” Sarah said. “What did Mr. Trucker say to you about trying to judge the age of the blood spot that you matched by DNA to Mr. Harold?”
“He told me to do it, and I told him it was not easy to do, and he told me to make the best estimate I could consistent with good science.”
“And so you made an estimate?”
“Yes.”
“What was the basis of your estimate?”
“Freshly spilled blood starts out as red and then changes gradually to deeper and deeper shades of brown.”
“What color does it ultimately arrive at?”
“Dark brown, almost black.”
“So you just looked at the color of the blood spot on the piece of carpet and estimated its age?”
“Yes, using what I learned during prior training where I practiced estimating the age of the blood spots under laboratory conditions.”
“When did you look at the Harold blood spot and make your estimate of how old it was?”
“Yesterday.”
“Which was several days after your initial analysis of Crime Scene Exhibit 5, right?”
“Yes.”
“You haven’t done any actual scientific testing to determine the Harold blood spot’s age, have you?”
“Yes. I made a by-eye estimate—I looked at the color and saw that it was a certain shade of brown and worked backward from that, counting days back and noting how I expected the color to change over time. I consider that to be scientific.”
“Where did you learn to do that?”
“In school, when I learned to analyze blood. We were shown bloodstains of various ages on various surfaces, and then we practiced estimating their age in a blind test. The instructor knew the age of the samples, but we students did not.”
“Were your personal test results always accurate?”
“No, but they were pretty good.”
“Your Honor, I ask that the end of the witness’s answer be struck as not responsive,” Sarah said.
“Overruled. You opened yourself up for that answer, Counsel, by using the vague word ‘accurate’ in your question.”
Sarah had indeed screwed up the question, Rory thought. She should have asked something along the lines of “And you made mistakes, didn’t you?” As he listened, though, he heard Sarah trying to recover.
“. . . and so how many times did you take the blind test, Ms. Chen?”
“The test had ten samples, and I was tested ten times.”
“How many times did you get it wrong?”
“Only thirty times out of the one hundred samples.”
“Was that a passing score?”
“Yes.”
“Did you have the highest score in the class?”
“I don’t know. I never learned the scores of the other students.”
“Of the times you got it right, how many times were you just guessing?”
Chen paused and said, “I wasn’t guessing on any of those. I was using my trained by-eye approach in each and every one.”
“So you weren’t guessing then on the ones you got wrong, either, correct?”
Chen hesitated again, clearly seeing what was coming. “No, I wasn’t guessing on those.”
“So you just got it flat wrong thirty percent of the time, despite your best efforts using your scientific by-eye test?”
“I guess you could put it that way.”
Sarah grinned a full Duchenne smile. “I would put it that way,” she said.
“Well, I—”
“There’s no question pending,” Sarah said. “Let me ask you this, though. What color was the carpet sample from Mr. Stanton’s office on which you identified Mr. Harold’s blood?”
“Dark brown.”
“That made it harder to use your by-eye test for the brownness of the blood, didn’t it?”
“Somewhat.”
“When you did your training for the by-eye test, were the samples you evaluated laid down on some surface?”
“Yes.”
“What was the surface?”
“We trained initially on a variety of surfaces, but the tests were on paper towels.”
“White?”
“Off-white, I’d call it.”
“But a shade of white?”
“Yes.”
“I have no further questions, Your Honor.”
Rory thought to himself that Sarah had, smartly, not asked the witness what day she estimated the blood got onto the rug. Should Trucker ask, Sarah had simply set herself up to be able to destroy the answer.
“Redirect, Mr. Trucker?” Judge Gilmore asked.
“Yes.” He stood and asked, “Ms. Chen, using your by-eye test, did you make a scientific estimate of the date that Mr. Harold’s blood was laid down on the rug sample, Crime Scene Exhibit 5?”
“Yes.”
“And what was that scientific estimate?”
“The day of the murder.”
“I have no further questions, Your Honor.”
Judge Gilmore looked at Sarah. “Ms. Gold?”
“Yes. A couple. Ms. Chen, are you aware that in higher temperatures, the color of blood changes from red to brown more quickly?”
“Yes.”
“Do you know the temperature of the room in which the murder occurred on the day of the murder?”
“No.”
“Do you know the humidity of that room on that day?”
“No.”
“Might high humidity in a room cause the color of blood to change to brown less quickly than in a very dry room?”
“It might.”
“Do you know of any studies calculating the rate of color change based on either ambient temperature or humidity?”
“There may be such studies, but I’ve not looked at them.”
“Ms. Chen, did you do any other tests on the blood sample other than the by-eye test that you’ve described?”
“No.”
“Are you familiar with any other available tests?”
“There are a few under development, to my understanding.”
“But you didn’t use any of them, did you?”
“No.”
“And that’s because they haven’t yet been proved scientifically reliable, isn’t that right?”
“Objection,” Trucker said. “The question is vague and ambiguous because the witness hasn’t identified any particular tests under development. We’re just talking about ‘a few under development,’ which could be almost anything anywhere in the world.”
Rory understood that Trucker was trying to protect himself against being effectively barred from using any scientific test at trial because his witness was about to dis them all, without being specific, in the prelim.
“Overruled,” Judge Gilmore said. “You may answer.”
“Correct. They haven’t been proved scientifically reliable. Yet.”
Rory, had he been the questioner, would have skipped exploring what the witness meant by “yet.” Asking that would give her too much leeway to try to figure out how to help out the prosecutor. He was pleased Sarah didn’t take the bait, either.
“By the way, Ms. Chen,” Sarah asked, “when you misjudged the date of those samples, how far off were you? A day, two days, three days?”
“I don’t recall.”
“I have no further questions, Your Honor,” Sarah said. “But I do want to move to strike the witness’s answer to Mr. Trucker’s question—the answer in which she estimated the age of the bloodstain on the carpet as ‘the day of the murder.’”
“And your grounds for that motion?”
“By her own admission, Ms. Chen was wrong thirty percent of the time over a hundred samples. And by her own admission, her so-called by-eye test might be affected by the temperature and humidity of the room in which the blood was laid down. But she doesn’t even know the temperature or humidity of Mr. Stanton’s office on the day of the murder.”
“But she was right seventy percent of the time,” Trucker muttered under his breath but loud enough so everyone could hear.
As if in response, but without acknowledging Trucker’s comment directly, Sarah said, “And, Your Honor, if Ms. Chen’s estimate was off by as little as twenty-four hours, it would move the date Mr. Harold’s blood got on the rug to the day before the murder.”
She paused to let what she had just said sink in. “And the day before was a day when Joseph Stanton was very much alive. Thus, Ms. Chen’s testimony as to the date that Mr. Harold’s blood was deposited on the rug is junk science, and California law is clear that junk science is not admissible.”
Trucker was on his feet. “Your Honor, the fact that a scientific test is not one hundred percent reliable does not make it junk science. The trier of fact—that would be you in this preliminary hearing—can weigh the results of the test together with its possible error rate in the context of all of the facts. And in light of the standard of proof to be applied, which is only probable cause here, it is certainly admissible.”
Without waiting to be invited to speak, Sarah said, “Junk is junk, whatever the standard of proof. And when a man is charged with murder, we shouldn’t use slipshod methods to try to send him to prison for life. Slipshod originally described loose, ugly shoes; I don’t think justice should be made to wear ill-fitting facts, let alone walk in them.”
Judge Gilmore placed her hands on her chin. “Interesting metaphor, Counsel. I’ll take the motion under consideration and rule after I’ve had a chance to do a spot of legal research on evidentiary standards for science evidence. Let’s take a fifteen-minute break.”
Rory turned to Hal and said, “I think we need to talk. Let’s get the deputies to arrange a room for us so you can attend the meeting.”
“Truth is, Rory, I need to use the bathroom. And they’ve got a special one back there for us prisoners. So you guys go talk. I really don’t have much to contribute at this point except anger at being accused of something I didn’t do and at rotting in jail while this farce goes forward. You can bring me up to date after the break.”
Chapter 45
The three of them walked into the attorneys’ lounge and took over a small area in a corner. There was no one else in the room.
“That was a great cross, Sarah,” Otto said.
“Ditto that,” Rory added.
“Thanks, guys. It felt good for my first time out. I went down a wrong path a few times, though. I need to learn not to ask open-ended questions.”
“It takes a while,” Rory said.
“So what’s next, do you think?” Otto asked.
“Their witness list has only two more people on it,” Rory said. “The first is a Detective Henry Masimo. He’s going to lay the foundation about the security video that shows Hal leaving the studio, supposedly looking disheveled and so forth.”
“Why aren’t they putting on the guy from the studio in charge of the security system?” Otto asked.
“Don’t know,” Rory said. “But in this prelim it doesn’t matter. We’re not contesting the authenticity of the tape. The real issue is how to interpret what’s on the tape, and the judge will have to do that for herself.”
“Have you seen the tape yet?” Sarah asked.
“Yes,” Rory said. “And it’s pretty much as the prosecution contends. Hal looks as if he is fleeing something and is in a great hurry.”
“Don’t we have a way to explain away why Mr. Harold looks the way he looks on that tape?” Sarah asked.
“We do have a way,” Rory said. “But, unfortunately, we’d either have to put Sylvie Virtin or Hal himself on the stand to explain. There’s no way we’re putting Hal on, and we don’t know where Sylvie is—even if we wanted to put her on.”
“Can I get us to think outside the box?” Sarah asked.
“Sure,” Rory said. “Float above the box, and think any way you want.”
“Well, why can’t we put Mr. Harold on the witness stand? What’s the downside?”
Otto spoke up. “The issue is, first and foremost, what’s the upside? They’ve already put in evidence the fact that his blood was found in the victim’s office. Once they add to that a tape showing he was nearby at the time of the murder, and everyone looks at it and concludes he was leaving the scene in a hurry, that’s probably all they need to win this prelim.”
“We can counter it,” Sarah said. “By putting Mr. Harold on the stand and having him explain that his blood got there before the murder and the reason he was at the studio and needed to leave in a hurry.”
“Yes,” Otto said. “But if all he’s got is a counter-explanation, it’s not likely to sway the judge, because he’ll be seen as having good reason to lie, and he has no evidence to corroborate his story. Sylvie’s not around to corroborate the reason he was there. And I just read the transcript of Peter Stanton’s testimony, and he’s obviously not going to support the how-the-blood-got-on-the-rug story.”
“Exactly right,” Rory said. “Or, to put it another way, there’s really no way we can win this prelim on the state of the evidence that’s already gone in or is about to go in.”
“You both have a really negative, bummer attitude,” Sarah said.
“No, we both have a realistic bummer attitude,” Rory said. “There’s no upside whatsoever to putting Hal on the witness stand now. It won’t win this prelim, and it will just give the prosecution an advance look at what Hal’s going to say if he decides to testify later. Which will let them prepare better to cross-examine him at trial.”
“It would be so much better to win here and not have a trial at all,” Sarah said.
“If wishes were fishes, we’d all cast nets in the sea,” Rory said.
Sarah smiled the smile of superior knowledge. “That’s not the saying,” she said.
Rory sighed. “What is it, smarty-pants?”
“If wishes were thrushes, beggars would eat birds.”
“It doesn’t have quite the same poetry about it,” Otto said.
“Boys and girls, we need to get back to court,” Rory said. “Otto, why don’t you take this Detective Masimo on cross, and then we’ll see who they put on next, if anyone.”
“You’re not crossing any witnesses yourself?” Sarah asked.
“No, I’m saving myself.”
“Like I did for my husband?”
“I didn’t know you had a husband.”
“For about ten seconds, when I was married to Stanislaus Gold. Back when I was eighteen.”
“Wow,” Rory said. “I’d like to hear more about that poor man. When we’re done with today, of course. For now, let’s head back to court.”
As they were walking out of the attorneys’ lounge, Sarah’s cell phone beeped. She looked down at it and said, “Huh. It’s a text from Gladys Stanton. It says she’d like to see me again. And she wants to meet in person. She’s asked if I can I drive out there this evening.”
“Go ahead and go,” Rory said. “Maybe she has some information that would help us. God knows we need it. And she’s apparently a friend of Hal’s, so maybe she’s got something useful.”
Chapter 46
“The People call Detective Henry Masimo as their next witness,” Trucker said.
Masimo, a tall man who looked to be in his forties, took the stand. He was wearing a blue pin-striped suit that looked, in quality, to be somewhere north of Men’s Warehouse, but well south of Saville Row. Once he was sworn in and had presented his background—twenty years with the LAPD, the last twelve of them as a detective, and six of those on robbery-homicide—Trucker asked his first substantive question.
“Detective, did you investigate who was present at the studios of TheSun/TheMoon/TheStars on the day of Joseph Stanton’s murder?”
“Yes.”
“How did you carry out that investigation?”
