Death Qualified (26 page)

    EIGHTEEN

    on friday frank, Barbara, and Nell had a final conference before the trial. They were in the living room of his house, before a fire muttering to itself, as, outside, a cold wind drove fir needles against the windows. Frank had insisted on the topic that headed his list of priorities for discussion.

    He watched Nell closely over the rims of his glasses when he started. "You still have the option to change your plea. You know that, don't you?"

    She nodded. She was wearing an oversized sweater that accentuated her diminutive body; she had lost weight in the past months, and she appeared more frail and more vulnerable than ever.

    "Right," Frank said.

    "You can opt out right up to the time the case goes to the jury. You know what Tony's offering manslaughter he wouldn't fight self-defense and a probable sentence of two to four years."

    "I know," she said.

    "But I can't do that. I didn't do it."

    "Okay. So we go all the way." He leaned back in his chair and let Barbara have the floor, but he was troubled.

    Every line on his face, his posture, his voice all attested to his concern.

    Barbara began to outline the procedure.

    "First, they will establish that the cause of death was a gunshot wound to the head. There will be the sheriff's men who responded to the call, the search for the body, autopsy, all of that.

    And it will be ugly." She paused.

    "Do you ever take tranquilizers? Would they help?"

    Nell shook her head.

    "I don't react very well to most drugs. Tranquilizers do funny things to my system and even make me hyper. Doc says I should leave them alone."

    Doc. Barbara wanted to find him and give him a swift kick, but she did not comment. No one had commented about the forlorn look that had come to lodge on Nell's face. Barbara continued to prepare her client for the ordeal to begin the following week.

    "Next, there will be evidence about the location, who had access, things of that sort, and the weapon itself, your abilities as a marksman.

    I'm afraid he'll call various neighbors of yours to add to the details, and that might get hard to take."

    Nell nodded, white-faced, her eyes too large.

    "The next part will be motive. I doubt that they will try to do much with that, but what little they do will again rely on neighbors and your in-laws. About all they can establish is that you were an abandoned wife. The problem is that they won't need much more than that for a motive, if they can establish that you were the only one with opportunity because most murders are within families. Tony is certain to concentrate on that fact in his summation.

    That and the fact that circumstantial evidence is sufficient.

    In your case that means opportunity, being in the place at the time; weapon, probably your rifle, or one exactly like it; and the ability to use the weapon, which I think they will more than substantiate. Now, I can't deny any of those bits, no one can. All we can hope for is to demonstrate that another person had equal opportunity and took advantage of it."

    Nell looked almost wildly to Frank, who appeared even more grim than he had before. He shook his head.

    Very slowly Barbara said, "Nell, if the case were confined to the points Dad made a while ago, I would tell you to pay close attention to what he advised. Tony will fight to keep the past out of it, to limit everything to what happened on that ledge that Saturday, and I'll fight just as hard to expand our playing field to the utmost. The judge will decide finally what will or won't be admitted as relevant.

    And right now I can't guess what that decision will be."

    Now the jury was in place and Judge Kendall Lundgren was on the bench. He was an ascetic intellectual, pale-faced, with thin, sandy hair, in his early forties; he would have looked at home in a monastery. According to Frank's summary, he had no sense of humor and little patience with theatrics in court or with stupidity. He had talked very briefly to the jury about the gravity of a murder case, about reasonable doubt, and mandatory sentencing guides.

    It had been so brief that Barbara had begun to worry that he might have a date in Hawaii, a hanging maybe, or more likely a burning; he could be itching to get on a plane.

    She knew he was considered to be a fair judge, but still she worried, exactly as she always did. Tony was finishing his opening statement. "What the state will prove is that Nell Kendricks deliberately shot to death her husband, that no one else could have done it, that no one else had cause to do it. Her rifle was the instrument of death, and no one else had access to that rifle. We will prove that no one else could have entered her house that Saturday in June, no one could have taken the rifle. And in fact no one else knew that her husband would arrive that day or any other day."

    When Tony concluded and resumed his seat, he did not look at the defense table. He had not looked at Barbara a single time yet. He had nodded in her direction, but his eyes had focused on a spot just over her shoulder. She and Nell were alone at the defense table. Her father had chuck led when she said that that was how she wanted it. He was seated directly behind her, one of the law clerks from his office on one side of him, and John and Amy Kendricks on the other. Clive was in the scant audience not directly behind the defense table, but off to one side where he could see Nell's profile. Mike planned to come by between classes; curiosity, he said. When Mike asked if she would wear her three-hundred-dollar suit, she had said no emphatically She wore a skirt and jacket, a very simple blouse, nothing fancy, nothing expensive, just in very good taste. Nell was in a dark dress, low heels. Barbara had told her to wear low heels every day, and she had been bewildered but compliant. Barbara knew that when they stood together the jury would notice and remember how very small Nell was. Barbara was seven inches taller than Nell, wider in the shoulders; she felt gargantuan when they stood together.

    She got to her feet unhurriedly and approached the jury.

    "Ladies and gentlemen," she said, "the defense does not have to prove anything except that there is not simply a reasonable doubt, but in this case a great doubt, that Nell Kendricks killed her husband." Tony had been declamatory; she was conversational. Go for the contrasts, one of her instructors had said, and treat the jury as if you really believe they have a brain among them. Sometimes they may even have one.

    "It is the duty of the state to investigate every lead, to pursue every bit of evidence, to actively search out those who have testimony concerning the crime being investigated. If the state fails to discharge that duty, there is a basis for reasonable doubt. The state has vast resources at its disposal manpower, subpoena power to gather testimony, financial resources to carry the investigation to wherever the evidence leads and if the state misuses those resources, or fails to use them, there is basis for a reasonable doubt. The state would have you believe a murder was committed in isolation, and that it does not matter where Lucas Kendricks was for the past seven years, and yet, you and I, ladies and gentlemen, know that human acts of such violence do not take place in isolation.

    The defense will demonstrate that Lucas Kendricks had powerful enemies who were actively pursuing him, that those enemies performed illegal acts in the course of that pursuit, and that Lucas Kendricks knew he was being followed, pursued, and he was fearful because of it. And that, ladies and gentlemen, is a basis for a reasonable doubt. Nell Kendricks did not shoot her husband, the father of her two children. She did not know where he was.

    She did not know when or if he would visit her. The defense will demonstrate that his enemies knew those things, and that provides a basis for a reasonable doubt. The state, with all its power and all its resources, has brought the wrong person to trial."

    Tony was whispering to one of his assistants, who got up and left the courtroom. When Barbara took her chair, Frank's hand pressed her shoulder briefly, and he passed her a slip of paper. You 're walking a thin line. Keep an eye on KL's face.

    Judge Kendall Lundgren ignored her and said to Tony, "Let us begin, if you please." He, Barbara thought, was part of the state. She nodded slightly to let Frank know she understood.

    Tony efficiently led his first witness through his testimony. Sheriff Bernard Gray established that murder had been done, when, and where.

    "Sheriff Gray," Barbara said when Tony concluded, "I have a map also. Will you look at it, please, to make certain it is essentially like your own?" It was much bigger in greater detail; it showed, as did the one already introduced, the trail from Old Halleck Hill Road to the waterfall, the bifurcation there, the dead end side, and the continuation that led down to Nell's property. The sheriff agreed that it was the same.

    "Will you examine these photographs, please, to make certain they are comparable to the ones you took." Like the map, the photographs were enlarged conspicuously.

    When they were accepted, Barbara put one on an easel before the sheriff.

    "Where would you place the mark in the rocks where the bullet struck? Please, indicate it on the photograph."

    He looked from his picture back to hers and finally touched a spot. Barbara marked it with a red pen.

    "Thank you. You said in your testimony that it is about four feet high, is that right?"

    "Yes, Ma'am."

    "And you testified that you did not find a spent shell casing, is that right?"

    "Yes, Ma'am."

    "Where did you look?"

    "All over the place."

    "Show us on the ^photograph, will you? All over where?"

    Sheriff Gray looked patient and long-suffering as he pointed at the photograph.

    "Four of my men searched every inch of that ledge," he said, pointing to the section on Nell's side of the gorge.

    "How about below the ledge?" Barbara asked.

    "There, too."

    "All four of them?"

    "I don't think so. That trail's hardly wide enough for one grown man, but they looked below, too."

    "Three men looked around there?"

    "I think maybe one." Quickly he added, "Wasn't much point in looking down there. The shot couldn't have been fired from there, not and hit anyone. You couldn't have seen him from below, not until you got up to the ledge."

    "All right. How about on the side of the ledge, where the main trail starts to climb?"

    "We looked there, too."

    "How many men looked there?"

    "I don't remember."

    "Could it have been just one man?"

    "Objection," Tony said.

    "The witness has said he doesn't remember."

    "Sustained."

    She got him to admit that the bullet they had recovered had been so badly deformed, with just fragments remaining, that it could not be stated with absolute certainty that Nell Kendricks's rifle had fired it.

    "And you went to her house where you found her rifle.

    Where was it?"

    "On the couch in the living room."

    "And shells?"

    "On a table by it. A box about half full."

    "I see. So you examined the rifle, looked for fingerprints?"

    "Yes, Ma'am. There weren't any prints, just a few smudges."

    "Did you find that strange?"

    "I didn't think of it one way or the other, I guess. There was a towel on the couch. I guess I just thought she wiped it off."

    "Oh? You assumed that at the time?"

    He looked confused for a moment. "I just didn't think anything of it," he said then.

    "What about the box of shells? Did you examine that for fingerprints?"

    "Yes, Ma'am. Smudges, that's all."

    "And did you think anything about that?"

    "Objection, Your Honor," Tony said. He sounded bored.

    "What the witness thought at the time has no bearing on the facts."

    "Sustained."

    "You found a backpack on the ledge and a wallet in Lucas Kendrick's pocket. Was there anything about the contents of the wallet that you found strange?"

    Sheriff Gray flushed slightly.

    "His driver's license expired in 1982. I guess that was strange."

    "Yes, I think so. How about credit cards?"

    "Two. They expired, too."

    "In 1982?"

    "Yes."

    "Did you look for a car?"

    "No, Ma'am."

    "Why not?"

    "I didn't see one at the head of the trail, and I guess we just took it for granted that he walked in."

    "Did you know Lucas Kendricks?"

    "No, Ma'am."

    "Do you know Nell Kendricks?"

    "No, Ma'am." "Yet, you said in your direct testimony that you got the call about Lucas Kendricks and you headed straight out to the old Dorcas place. Did you know Nell Kendricks's maiden name was Dorcas?"

    "Your Honor, I object! I can't see the relevance of any of this!"

    "Ms. Holloway, is there any relevance here?"

    "Yes, Your Honor.

    "Did this witness know that Lucas Kendricks had been away for seven years? I think that is relevant to his investigation."

    Judge Kendall Lundgren nodded slightly and said to the sheriff, "You may answer the question."

    "Yes, I knew who she was. And I knew he had been gone a lot of years."

    "But you guessed that he had walked in? Is that what you're telling us?"

    "Yes."

    She turned away from him for the first time in many minutes. The jury was following closely, and Tony no longer looked bored.

    "Did you know where his car was, Sheriff?" she asked, and watched a muscle move in Tony's jaw as he stood up swiftly to object.

    "Your Honor, objection. Where the car was has no relevance, nor does the fact that the sheriff knew or did not know its whereabouts."

    "I agree," Judge Lundgren said.

    "Sustained. Ms. Holloway, please confine your questions to the scope of this trial."

    "No further questions," she said quietly, and resumed her seat to listen to Tony undo some of what she had done.

    He took the sheriff over the marks on the rocks and got him to state that bullets tumble erratically at times, especially after going through bones. She had expected Tony's line of argument, and he well knew that she had her own expert witness to call to dispute what the sheriff was saying.

    And so it goes, she thought. Nothing unforeseen, everything in order, as predictable as movements in a stately dance in rhythm with unheard music. What no one could foretell was when the music would become discordant, when a false note would break the rhythm, or even if that false note had already been played, if the ripples already were forming, the pattern already altered irretrievably.

    John and Amy Kendricks left the courtroom when Tony began questioning the medical examiner about the body of their son. Nell was the color of chalk, and after the first question she bowed her head and kept her gaze on the table before her. She did not move again. Barbara had known Dr. Emerson Riley for a long time; he was her father's age, but not yet retired. A gentle man, a beekeeper by hobby, and scrupulously fair, he treated each case in which he was called exactly like all others; for him justice was completely blind.

    "So the bullet entered here," Tony said, pointing to a picture that showed a line drawing of a head with the path of the bullet in a thick black line.

    "And it exited here.

    Almost a straight line."

    Dr. Emerson Riley held up his hand.

    "May I correct you, sir?"

    "Of course."

    "We cannot be certain of the exit; the damage was too intensive. As I stated, we can only estimate from the trajectory that we are certain about, how it continued."

    Tony inclined his head.

    "Thank you, Doctor. Now if the victim had his head lowered even a little, this much--" he tilted the drawing so that the heavy black line was al most horizontal, then a bit more so that it now was slanting upward instead of down "we could account for the trajectory, couldn't we?"

    Barbara heard her father's breath and knew he would be objecting by now, but she made no motion.

    Dr. Riley glanced at her before answering, then said, "Yes, you could say that."

    "Or if he was kneeling tying his shoelace, for example that trajectory would fit the situation. Is that correct?"

    Again there was a very slight pause; again Barbara made no movement. The doctor said that was so.

    Tony was finished with him quickly. There was a glint of malice in his eyes when he passed Barbara on his way to his chair.

    "Dr. Riley," she began, "it is possible that I could describe a number of positions that would account for the trajectory of that bullet, isn't it?"

    "Yes. Of course." . "Tracing the trajectory of a bullet through a human body is a fairly exact science, isn't it?"

    "It is."

    "Yes. Exactly what can you tell about the position of the victim before the bullet strikes?"

    "Nothing. If all we have is a body with a wound, we can't tell a thing about the position before the wound was inflicted."

    "Thank you. Doctor. Was Lucas Kendricks in good health as far as you could ascertain from your autopsy?"

    "Yes, he was. But he was dehydrated."

    "Dehydrated. He had not been drinking enough fluids?"

    "That's right."

    "For how long? Could you tell that?"

    "I would say more than one day, but not more than a week." He talked about the condition of the kidneys and the blood in terms that Barbara knew were too technical, but she did not interfere. He had said what she wanted.

    "So he had been eating things like trail mix and dried fruits and had not been drinking enough water for a number of days. What else did you observe about his body?"

    "His feet were badly blistered. Some of the blisters were infected."

    "And can you estimate how old any of those blisters were?"

    "Some about five days, maybe four, some brand-new."

    "I see. And what conclusion do you draw from your observations, Doctor?"

    He shrugged slightly.

    "The man had been hiking for four or five days in improper clothing without enough food or water."

    "Improper clothing? What do you mean?"

    "Wrong kind of boots. No change of socks. Cotton socks with threadbare heels and toes. Just not dressed for a long hike."

    Barbara nodded and walked toward the defense table, where she turned and asked, "Were there any traces of any drugs in the body?"

    "None."

    "Not just illegal drugs, but medications?"

    "Nothing."

    "How tall was he. Doctor?"

    "Five eleven."

    "So the entry wound was about five feet five inches above the ground, and angled downward?"

    "Objection," Tony snapped.

    "The witness doesn't know the position of the victim when the shot was fired."

    "Sustained," Judge Lundgren said.

    Barbara turned to regard Tony for a long moment. Then she said, "I withdraw the question. I agree entirely, Mr.

    De Angelo The witness doesn't know that."

    Tony jumped to his feet, but before he could object, Judge Lundgren said sharply, "Ms. Holloway, please save your commentary for your summation."

    She was aware of a stir in the jury box, but she looked at Dr. Riley again.

    "Thank you, Doctor. No more questions

    Tony hesitated momentarily, then said that he had no further questions. It was almost four, time to adjourn for the day. Barbara stood with Nell at her side as the judge left the courtroom, and she knew every eye of the jury was on the small woman at her side.

    NINETEEN

    the next day Tony called to the stand the UPS delivery man, Ed Seligman, who testified that when he delivered the computer to Nell's house, he had seen the rifle on the couch and the box of shells nearby. He had noticed because that seemed a strange place to keep a rifle in June, out of hunting season and all. Barbara had no questions for him.

    James Gresham was next, a dignified witness who was succinct and obviously unhappy about being called. He admitted that no one could have gone to Nell's house after the delivery man because both he and his wife had been in the driveway or on the porch the entire time until they heard the shot. No one had come in past them.

    Tawna, equally reluctant, recounted Nell's warning to lock her door because Lucas might show up and walk in.

    She confirmed that no one had entered by the road after the delivery man.

    Lunch that day was subdued. Nell went off" with her in laws and Frank and Barbara went to the Park Bar and Grill a block and a half away.

    "It's going to get worse this afternoon," she said gloomily.

    "You bet." Frank leaned over and patted her hand.

    "You haven't lost your touch, honey. I'm proud of you.

    Tony's racking up points, but so are you, Bobby. So are you."

    She took a quick breath, but did not voice the swift and bitter retort. Points, she thought, his points were as abstract as ... as Mike's points that he charted on his computer.

    Now and then one sailed off into infinity, he had said, grinning; and when that happened you just started over with new numbers. Not with people, Barbara said under her breath: no more abstractions, no pretty computer pictures. Here and now Nell's life was the only point.