Incriminating Evidence (34 page)

“Please state your name and occupation for the record,” Hillary Payne begins on Monday morning.

“Officer Thomas Murphy. I’ve been a patrolman with the San Francisco Police Department for almost twenty-five years.”

Tom Murphy was the first officer at the scene. Not the sharpest tool in the shed, but a hardworking street cop. He’s mid-forties and still looks as though he just stepped off the boat from Dublin. His uniform is pressed. He’s likable—a good opening act. Payne is going to build her case slowly. First, she’ll show that Skipper was there that night and that he had motive and opportunity. Then she’ll demonstrate that he had direct contact with the materials used to suffocate Garcia. I expect her to make all the pieces fit. That’s what good prosecutors do.

“What time did you arrive at the Fairmont?” Hillary asks.

“Seven-fourteen A.M. I responded to a 911 call.” He explains that Dave Evans, the head of security at the Fairmont,
met him at the front desk and escorted him to Skipper’s room. That’s where he found Skipper, Joseph Wong and other members of the Fairmont’s security staff.

The first score goes to Payne. She’s placed Skipper at the scene. “What did you do when you arrived at Room 1504?” She’s letting Murphy and the jury settle in.

“I called for assistance. I cordoned off the area.” He describes the SFPD’s procedures for securing a crime scene. He says that reinforcements began to arrive within five minutes.

Payne asks the judge to allow her to introduce a schematic drawing of the fifteenth floor of the tower into evidence.

“No objection,” I say.

Payne asks Murphy to describe the scene in Skipper’s room.

He walks to the diagram and gestures with his index finger. “We found the victim in Room 1504,” he says. He explains that Garcia’s body was lying on the bed. He points to the chair in front of the TV, where Skipper was sitting. He shows the locations of the bathroom and the doorway leading to Room 1502.

“Officer Murphy,” Payne continues, “was anybody else staying on the fifteenth floor that night?”

“Objection. Foundation. Officer Murphy has testified that he arrived at seven-fourteen. He doesn’t have any personal knowledge of who was staying on the fifteenth floor that night.” It’s a minor point. I just want the jury to know I’m paying attention.

“Sustained.”

Payne is undaunted. “I’ll rephrase. Did you find any other guests staying on the fifteenth floor that night?”

“No.” He explains that they checked the hotel records later on and determined that there were no other registered guests staying on the fifteenth floor that night.

“Thank you,” she says, sounding pleased. “Did you have an opportunity to interview the defendant when you arrived?” She isn’t going to mention Skipper by name.

“Yes.”

“Could you describe his demeanor?”

“Objection. Speculation.”

“Your Honor,” Payne says, “I wasn’t asking Officer Murphy to speculate about how the defendant felt. I’m asking him to describe how the defendant looked and acted.”

“Overruled.”

Murphy turns toward the jury. “He was uncooperative. He appeared tired and confused.”

“How was he dressed?”

“He was in pajamas and a bathrobe.”

“Was he belligerent?”

“No. Just uncooperative.”

Payne stops. Not the answer she wanted. “What else did you observe in Room 1504?”

“The victim was handcuffed to the bed.”

“And there was duct tape on the victim’s face, wasn’t there?”

“Objection. Leading.” Might as well let Hillary know we’re listening.

“Sustained.”

She tries again. “Did you find duct tape on the victim’s face, Officer?”

“Objection. Leading.”

“Overruled.”

“No. Mr. Gates indicated that he had removed tape from the victim’s face. Mr. Joseph Wong, the room service waiter, also indicated that the duct tape had been used to cover the victim’s eyes, nose and mouth.” He explains that he found a wadded-up ball of used duct tape on the nightstand and an unused roll, along with a telephone. He describes the handcuffs,
the champagne glasses and the champagne bottle. He says all of the items were catalogued into evidence.

“Did the defendant offer any explanation for how the victim got into his room?”

“No, ma’am.”

“Did he open the door and let him in?”

“He didn’t explain, ma’am,” he says again.

“Did the victim have his own key?”

“I don’t know, ma’am.”

“Did someone bring him into the room?”

Enough. “Objection. I’m sure Ms. Payne can list at least a hundred other ways that the victim
didn’t
get into Mr. Gates’s room.”

“Sustained. Move along, Ms. Payne.”

“Officer Murphy, did Mr. Gates have any explanation, plausible or otherwise, for how the victim got into his room?”

“No, ma’am.”

“And how he died?”

“No, ma’am.”

“No further questions.”

I approach the witness box. “Officer Murphy,” I say, “you’ve testified that Mr. Gates was uncooperative and confused when you arrived.”

“That’s true.”

“Did it occur to you that Mr. Gates may have been drugged?”

“Objection. Speculative.”

“Your Honor,” I say, “I’m not asking Officer Murphy to speculate as to whether Mr. Gates may have been drugged. I’m asking him whether he considered the possibility.”

“Overruled.”

Murphy pauses. “That went through my mind,” he says.

“But you didn’t insist that Mr. Gates take any sort of
blood or alcohol test to determine whether there were any substances in his system?”

“No.”

It’s the answer I wanted, although he was under no legal duty to require Skipper to take such tests. You try to make small points early in the case. “And neither did any of your colleagues, including the homicide inspectors.”

“Not as far as I know.”

So far, so good. “Officer,” I continue, “did you see the tape on the victim’s face?”

“No. The tape had already been removed.”

“I see. So you have no firsthand knowledge of how the tape was removed from the victim’s face, or whether it was ever on his face at all.”

“Objection. Speculative.”

“Overruled.”

“That’s true,” Murphy acknowledges.

“And therefore, by the same token, isn’t it also true that you have no firsthand knowledge of how the tape found its way onto the victim’s face in the first place, right?”

He glances at Payne. “That’s also true,” he says.

“In fact, except for the descriptions provided by Mr. Gates and Mr. Wong, you have no personal knowledge of whether the wadded-up tape was ever on Johnny Garcia’s face. Isn’t that correct, Officer?”

“That’s correct.”

It’s all I can do. Murphy is here to set the scene, not to win their case. “No further questions.”

Joseph Wong sits in the witness box. He looks at the jury when he explains that he has been a room service waiter at the Fairmont for almost forty years. Payne asks him to describe what happened when he arrived at Skipper’s room.

“There was no answer when I knocked on the door,” he says. He explains that he is supposed to knock twice. If there’s still no answer, he’s supposed to open the door and leave the tray.

“And that’s when you discovered the defendant and the body of the victim?”

“Yes.”

“Where was the victim?”

Wong takes a deep breath. “He was lying on his stomach on the bed. He was naked. He was handcuffed to the bed. His eyes, nose and mouth were covered with tape.”

Another score for the prosecution. They’ve shown Garcia’s face was covered with tape. Payne decides to clarify one point. “If he was lying on his stomach, how could you tell that his face was covered with tape?”

“His head was turned to the side. I could see the tape covering his eyes, nose and mouth.”

“Could you tell whether the victim was dead?”

“Objection. Mr. Wong isn’t qualified to make a medical determination.”

“Sustained.”

Payne shows the hint of irritation. “Mr. Wong,” she says, “was the victim moving?”

“No.”

“Was he breathing?”

“Not as far as I could tell.”

Payne is pleased. She’s making small points now, and they’ll do. We know Garcia was dead. She doesn’t need Wong to confirm the time of death. Rod Beckert will take care of that. “What was the defendant doing when you walked in?”

“He was sleeping. I woke him up and he called security.”

“And what was the defendant’s reaction to all of this?”

“He was confused.”

“Confused?”

“Yes. He was disoriented. He told me to leave. He said he would take care of everything.”

“Did you leave?”

“No. I waited for the security people to arrive.”

“And what did you do while you were waiting?”

He looks at Skipper. “I observed Mr. Gates remove the tape from Mr. Garcia’s face.”

“Did you touch the body?”

“I don’t think so.”

“Did you remove any of the tape?”

“No. Mr. Gates did.”

“Mr. Wong,” Payne continues, “you’ve testified that the victim was handcuffed to the bedposts.”

“Yes.”

“Did you attempt to remove the handcuffs?”

“Mr. Gates did. He had a key. He tried to release them, but he wasn’t able to do so.”

“Do you know what happened to the handcuff key?”

“No.”

“Would it surprise you to find out that the key was found in the toilet?”

“Objection. Speculation.”

“Sustained.”

Hillary keeps Wong on the stand for a few more minutes. Over my objections, he repeats that Skipper was confused and says at times he was belligerent. Hillary sits down. She’s gotten all that she needs from Wong, and he’s connected with the jury.

I walk toward Wong and stand near the jury box. I don’t want to crowd him, but I don’t want him to become too comfortable, either. “Just so we understand the situation when you arrived,” I say, “the victim, Mr. Garcia, was in the bed, naked.”

“Yes.”

“And he was handcuffed to the bedposts and his face was covered with tape.”

“Objection. Asked and answered, Your Honor.” Hillary is getting a little jumpy.

“Overruled.” Judge Kelly turns to me. “Let’s keep moving forward, Mr. Daley.”

“Understood.” I repeat the question. Wong acknowledges that Garcia was, in fact, handcuffed to the bed and his face was covered with duct tape.

“Mr. Wong,” I say, “when you arrived in the room, isn’t it true that Mr. Gates called security right away?”

“Yes.”

“And he removed the tape from the victim’s face and attempted to release the handcuffs, right?”

“Yes.”

“So although you described him as confused, he was, in fact, coherent enough to attempt to assist the victim, right?”

Wong has no choice. “That’s true.”

“And he made no attempt to leave the room or to flee before the police arrived, did he?”

“No.”

“And he answered their questions as soon as they arrived?”

“Yes.”

One more. “So although Mr. Gates had just woken up, it would be fair to characterize his behavior as helpful, wouldn’t it?”

Hillary has heard enough. “Objection. State of mind.”

“Overruled.”

Wong nods and acknowledges, “I guess you could say that was true.”

“Mr. Wong,” I continue, “you don’t know how the victim got into Mr. Gates’s room, do you? You didn’t see him arrive in Mr. Gates’s room, did you?”

“No.”

“And you didn’t see Mr. Gates, or anyone else for that matter, handcuff the victim to the bedposts, did you?”

“No.”

“And you didn’t see Mr. Gates or anyone else cover the victim’s face with duct tape, did you?”

Payne objects. “Speculative,” she says.

“Overruled.”

Wong acknowledges that he didn’t see Garcia enter the room. And he didn’t see anyone cover his face with duct tape.

“So,” I conclude, “you don’t know what happened in that room that night, do you?”

He hesitates for an instant and says, “No.”

“And it’s possible that somebody other than Mr. Gates could have brought Mr. Garcia’s body to Room 1504 at the Fairmont, handcuffed Mr. Garcia to the bed and taped his face.”

“Objection. Speculative. Argumentative.”

True and true.

“Overruled.”

Wong is perplexed. “I don’t think that’s what happened,” he says.

I tell him that’s not what I’m asking him. I reiterate that I’m asking whether it’s possible that somebody else might have done it.

“I suppose when you put it that way,” he says, “the answer is yes.”

“No further questions.”

Payne spends the afternoon questioning Dave Evans and members of the Fairmont’s security staff. They introduce the portions of the videos that show Skipper and his entourage heading for the elevators. Evans confirms that there were no other guests staying on the fifteenth floor that night. He tries
to demonstrate that it would have been very difficult for anybody to get up there without being caught on camera. On cross-exam, I get him to admit that there are parts of the building that are not captured on camera.

The security tapes provide no clear-cut winners and no big losers. I get Evans to acknowledge that there were many other people in the building. Among others, I have him point out Dan Morris, Jason Parnelli and Turner Stanford in the videos. Turner’s appearance after three o’clock in the morning raises a few eyebrows in the jury box. We volley for most of the afternoon. Finally, I run the portion of the videos that were taken at three A.M., point to Andy Holton and ask, “Mr. Evans, were you able to identify this man?”

He looks troubled. “Yes. His name is Andrew Holton.”

“And he arrived at the hotel at approximately three A.M. and left a short time thereafter?”

“Yes.”

“And did you know that Mr. Holton and the victim, Mr. Garcia, had a relationship?”

Evans pauses. “Yes. We understand that they were roommates.”

“That’s right. And do you have any idea why Mr. Holton may have come to the hotel in the middle of the night?”

“I don’t know.”

Bullshit. “Do you know if Mr. Holton and Mr. Garcia were getting along?”

“I don’t know.”