Proof Positive (2006) (10 page)

It's a copy of a sex offender registration form that was filled out by the defendant a little over two years ago, right after he got out of the penitentiary.

What address did the defendant list for his residence?

The Hotel Monte Carlo on Burnside in Portland.

Graves offered the registration form into evidence. Doug had no grounds on which to object.

Detective Hooper, does a sex offender have an obligation to reregister within ten days of his birthday every year whether or not he's changed his residence?

Yes.

Did you check to see if the defendant registered again this year?

Yes, ma' am. I' ve been keeping tabs on Mr. Cohen and

Objection, Doug said. I move to strike what Mr. Hooper said after ' Yes, ma' am' as irrelevant and nonresponsive.

Sustained. Detective Hooper, just answer Miss Graves's questions. Don't editorialize.

What did you learn, Detective Hooper?

The defendant was sent a registration form by registered mail but it came back unclaimed.

What did you do when you saw that?

I wanted to be fair, so I checked the form the defendant filled out last year and found a new address.

So he wasn't staying at the Hotel Monte Carlo?

Not according to his form, Hooper said.

Graves introduced the registration form from the previous year as exhibit three.

Was the registered letter sent to this second address?

Yes.

What did you do next?

I went to the address the defendant had listed as his home on the latest form and found out it's an office building in downtown Portland.

Are there any apartments in the building?

No.

I'm offering into evidence a copy of the defendant's birth certificate marked state's exhibit four.

No objection, Doug said.

Detective Hooper, look at the date of defendant's birth. Did the defendant register this year within ten days of that date?

No, ma' am. There is no registration form for this year in his file and the form that was sent to him was returned blank.

Hannah entered the registered letter and the envelope in which it had been sent into evidence and told the judge she had no further questions of the witness.

Mr. Weaver, the judge said.

Thank you, Your Honor, Doug said. Detective Hooper, as I understand it you went to the building at the address Mr. Cohen listed as his home address and found an office building in downtown Portland.

Yes.

Did you go inside?

Yes.

Are there many offices in this building?

Yes. In fact, it's all offices and no living quarters.

Is one of the offices State Parole and Probation?

I believe it is.

Would it surprise you to know that Mr. Cohen lost his job and was living in an abandoned car in a vacant lot?

No, he was living in a vacant lot when the attempted rape happened and that's where I arrested him on this charge.

You can't get mail delivered to a vacant lot, can you?

Probably not.

Would it surprise you that Mr. Cohen was having his mail sent to the Parole and Probation office?

I wouldn't know anything about that. All I know is that your client has a duty under the statute to register within ten days of his birthday and he didn' t.

Move to strike, Your Honor, as nonresponsive.

Sustained. Detective Hooper, I' ve warned you before. Don't make me hold you in contempt.

I'm sorry, Your Honor.

A thought occurred to Doug just as he was about to press on about what Hooper had done inside the building. He ran through a mental checklist of the evidence that Hannah Graves had introduced.

Mr. Weaver? the judge inquired.

Since he had nothing to lose, Doug decided to take a chance. No further questions, Your Honor.

You may step down, Detective. Any more witnesses, Miss Graves?

No, Your Honor. The state rests.

Any motions, Mr. Weaver?

Yes, Your Honor.

The judge turned to the jurors. We' re going to recess while the lawyers and I discuss some legal matters. The bailiff will take you to the jury room and we'll call you out when we' re ready to proceed.

The jurors filed out. Several of them cast a quick glance at Jacob, who was hunched over in his seat, muttering to himself again.

You may make your motions, Mr. Weaver, the judge said as soon as the jurors were in the jury room.

I move for a judgment of acquittal, Your Honor.

Hannah Graves rolled her eyes.

On what grounds?

Miss Graves rested without proving an element of the crime.

Hannah's brow furrowed. This was unexpected. She picked up the indictment and stared at it.

Mr. Cohen is charged with failure to report as a sex offender, Doug said. The state has charged that he was convicted of a felony sex offense and knowingly failed to report his change of address, but ORS 181.595 states that the reporting requirement applies only to a person who and I quote ' is discharged, paroled, or released on any form of supervised or conditional release' from certain specified correctional facilities. Miss Graves never introduced any evidence that proved that Mr. Cohen was released from prison because he was discharged, paroled, or released on a form of supervised or conditional release.

Graves was on her feet. This is ridiculous, Your Honor. The defendant was in prison at the Oregon State Penitentiary. How do you suppose he got out?

It's not your job, Your Honor or the jury's job to guess why Mr. Cohen is not in prison, Doug answered. Mr. Cohen's conviction could have been reversed or the governor might have pardoned him. We don't know why he's out, because Miss Graves never proved that he was let out of prison in a status that would require him to register.

What do you have to say to Mr. Weaver's argument, Miss Graves? the judge asked, obviously disturbed by Doug's logic.

Graves looked panicky. May I have a moment? she requested.

Certainly, the judge said.

Graves shuffled through her papers, rereading the documents she'd entered into evidence and the notes she'd used to examine Detective Hooper.

Your Honor, Mr. Weaver asked Detective Hooper if the State Parole and Probation office was in the building listed on Mr. Cohen's last registration form, Graves said, but her voice shook and she did not sound confident.

I did, Your Honor, Doug agreed, but the question and his answer only concerned the location of a government office. The discussion had nothing to do with the question of whether or not Mr. Cohen is on parole.

But he was getting his mail there, Hannah said. He was obviously on parole.

Maybe he has a friend who works at the office who was getting his mail because Mr. Cohen was living in an abandoned car.

Mr. Weaver has a point, Judge Rome said. I' ve been looking at the statute and it does limit the registration requirement to people who have been let out of the penitentiary for specific reasons.

We can solve this problem by reopening my case, Graves said. She sounded desperate.

I don't think I can do that, the judge answered. You' ve rested. Do you have any other arguments, Miss Graves?

Graves looked tormented. She shuffled through her papers again, as if hoping that a new document would miraculously appear. After a moment, she shook her head.

Mr. Weaver, I'm going to grant your motion and dismiss the charges against Mr. Cohen, Judge Rome told Doug. Then she turned her attention to Jacob.

Mr. Cohen, you were lucky today. Through an error on the part of the prosecution and the excellent work of your attorney, you' re going to escape being punished for your clear failure to register. As soon as court is adjourned I urge you to register and to make certain that you keep registering each year. Do you understand me?

Cohen looked confused.

Mr. Cohen, do you understand that you' re free, that I' ve dismissed your case?

We won, Jacob. We beat them, said Doug, who was as shocked as his client by the victory. You' re free. They'll let you out of jail today.

We won? Jacob said in disbelief.

Yes. God was on your side this time.

Jacob started to tremble. I won't have to go back there?

You' re not going back to prison, Doug assured him.

Jacob put his head in his hands and began sobbing uncontrollably. Doug sat next to his client and put his hand on Jacob's shoulder.

You' re going to be okay, he assured him.

I don't deserve this, Cohen said to no one in particular. I should be punished for what I' ve done.

This wasn't your fault. Someone at the parole office returned the letter. They should have given it to you.

Jacob turned his tear-stained face to Doug. You think I care about that letter, he said, his voice barely louder than a whisper. That letter is nothing. I killed them, I killed them all. They died because of me.

Doug was not certain he'd heard Jacob correctly.

Let's bring the jury in so I can explain what happened and dismiss them, Judge Rome said.

Doug stared at his client, still stunned by his statement. Hannah Graves stared straight ahead, her hands folded and her face unnaturally pale. Obviously, she had not heard Jacob's confession.

As soon as the jurors reassembled in the jury box, Judge Rome explained that the case had been resolved through a legal motion. Then she thanked the jurors for their service and dismissed them. When the jurors were gone, Judge Rome adjourned court, and the guards led Jacob back to the jail. Doug followed his client and watched the guards lead him down the corridor to the jail elevator in the back hall of the courthouse.

I hope you' re proud of yourself.

Doug turned. Hannah Graves and Detective Hooper were standing behind him. They were very angry.

Look, Hannah

No, you look. You think you' re so smart now, but let's talk after your client rapes his next victim.

Hannah turned on her heels and stomped off toward the elevator, with Hooper following close behind. Normally, Doug would have blown off Grave's tirade or enjoyed the stiff-necked DA's discomfort, but he couldn't get Jacob's words out of his head. Had Jacob killed someone? Was it more than one person? Had he confessed to something he'd really done, or was his confession the product of one of his delusions? Doug hoped that it was the latter, but he couldn't get over the possibility that he had just been responsible for setting a killer free.

Chapter
13.

ON THE AFTERNOON OF THE DAY THAT DOUG WEAVER WAS trying State v. Cohen, Frank Jaffe was down the hall, handling the preliminary hearing in State v. Prochaska. There weren't many spectators at his case, either. Art Prochaska was notorious among criminals and in law-enforcement circles, but he was not a celebrity, and the victim was a junkie who had died in a cheap motel. This was not the kind of story that made front-page news. Frank noticed a few court watchers in the gallery; the reporter for the Oregonian, who covered the courthouse; and Charlie LaRosa, who would be reporting the day's events to Martin Breach. Frank also spotted Billie Brewster and Bernard Cashman, Mike Greene's witnesses, who were sitting in the back near the door.

Hey, Billie, Bernie, Frank said.

Billie turned to the forensic expert. Don't you just hate it when the defense attorney tries to act all nice and sweet?

I am nice and sweet, Frank said, feigning offense.

Only when you' re planning some devastating cross-examination trickery.

Frank snapped his fingers. Damn, and I thought I'd put one over on you.

Not in this lifetime, Bubba, Billie answered with a grin.

Frank laughed and walked toward the front of the courtroom, where Mike Greene was going over his notes. Frank liked Mike but hated trying cases against him. He was so nice and polite that jurors believed everything he said, and he was so fair that he rarely gave a defendant grounds for an appeal. If Mike Greene sent you to prison, you stayed in prison.

Mike was frequently mistaken for a former basketball player, because the curly-haired prosecutor was six-five, but he had stopped playing competitive sports in junior high. His passions were tenor sax, which he played with a jazz quartet in local clubs, and chess. Greene had been married when he worked in the Los Angeles District Attorney's Office, but his wife had cheated on him, and her infidelity and their divorce had been devastating. Mike had quit his job and run away to Europe. When he finally decided that the divorce wasn't his fault, he had called a friend from law school who lived in Portland. The friend had gotten him a job interview with the Multnomah County DA's office. Greene had moved into the capital crimes section quickly, because of his experience in California, and now he was one of the top prosecutors in the office.

How's your cold? Frank asked.

Mike looked up and smiled. He and Frank fought hard in court, but they were friendly when they weren't litigating.

I was sick as a dog for a few days, but I'm much better now. Just an occasional coughing fit. Thanks for asking.

Frank stared at Greene. Something about him was different.

You shaved off your mustache.

Yeah, Mike answered shyly.

You' re not going through a midlife crisis, are you? Frank joked.

Don't worry. There are no Porsches or gold chains in my immediate future. Not on a DA's salary. Mike hesitated for a second before asking, How's Amanda?

She's doing fine.

The DA's tone of voice hadn't changed when he asked about Amanda, but Frank was sure that she'd hurt Mike when she stopped going out with him. Frank had never asked Amanda why she'd quit dating Greene. He knew better than to make unsolicited comments to his daughter about her social life. Frank knew that Greene was awkward at times, and he wasn't handsome, but he was smart, honest, and down-to-earth, and Frank had been happy when Mike was dating his daughter.

Greene started to say something else, when two guards escorted Art Prochaska into the courtroom.

Your client's here, Mike said.

Frank put his briefcase and the law books he'd been carrying on the counsel table. The guards brought Art over to Frank and unlocked his handcuffs. Unlike Jacob Cohen, Frank's client had no objection to looking respectable. One of Martin Breach's goons had delivered a suit to Frank's office, which had been hand-tailored for Art during a trip to Hong Kong, where he'd met with several shady Asians who were interested in supplying Breach with heroin. Frank's secretary had brought the suit to the Justice Center that morning. With it on, Prochaska looked like a successful professional wrestler.

Frank motioned to the chair on his left, and Art sat down. While Frank poured a glass of water from a pitcher that the judge's clerk had placed on the counsel table, Art slid up his French cuff and rubbed his wrists where the handcuffs had pinched.

How are you feeling? Frank asked.

Can't complain. Any chance I'll get out today?

No. This is a preliminary hearing. The DA is only trying to convince the judge to certify your case for trial. They don't have to prove beyond a reasonable doubt that you murdered Vincent Ballard. It's a much lower standard. It's very rare for a case to be dismissed at a preliminary hearing.

So why bother if you know we' re going to lose?

Discovery. I get to hear key witnesses testify under oath and I can cross-examine them. I'll learn a lot about the state's case and we'll have the recorded testimony of the witnesses to use against them if they say something different at trial.

Are we going to put on a case?

No. I don't want to give the DA the chance to examine our witnesses or learn our strategy.

The bailiff banged his gavel, and everyone stood as the Honorable Arthur Belmont took the bench. Belmont was a short, stoop-shouldered African-American with salt-and-pepper hair, who had made his reputation practicing insurance defense at a large Portland firm. He ran his court with a steady hand, and his sense of humor kept even the most irascible attorneys on an even keel.

Morning, gentlemen. I understand we have a preliminary hearing today. How many witnesses are you going to call, Mr. Greene?

The prosecutor stood. Not that many, Your Honor. Mr. Jaffe has agreed to stipulate to a few witness statements and the medical examiner's findings to speed things up.

Well, that's good, the judge said.

The defendant is charged with the murder of Vincent Ballard at the Continental Motel and with ex-con in possession. I'm leading off with Detective Billie Brewster. She'll tell you how the body was discovered and describe the crime scene. Detective Brewster will also tell you about a search of the defendant's home, which turned up a 9-mm Glock and some 9-mm Remington ammunition. They' re the basis for the excon-in-possession charge.

My next witness will be Criminalist Bernard Cashman from the crime lab. He'll tell you how the defendant was linked to the crime. And that's it.

You' re willing to go along with the stipulations, Mr. Jaffe? the judge asked.

I am, for purposes of this hearing only.

Okay. Sounds like this is doable this afternoon.

I expect so, judge, Greene agreed.

Call your first witness, then.

Billie Brewster was wearing a black pantsuit that she saved for court and a white, open-necked, man-tailored shirt. After taking the oath, Greene had the detective summarize the witness statements of the neighbor at the Continental Motel who had discovered Vincent Ballard's body, the motel clerk who had called the police, and the first officers on the scene. Then Brewster described what she had observed when she arrived at the crime scene, and she identified Bernard Cashman and Mary Clark as the forensic scientists who had examined the motel room.

Detective Brewster, the day after Vincent Ballard was murdered did you receive a call from Bernard Cashman?

I did.

What did he tell you?

He said that he had found a thumbprint on a beer can he had taken from the nightstand in Vincent Ballard's room.

Was Mr. Cashman able to match the thumbprint to a person?

That's what he told me.

Who was this person?

Brewster turned toward the defense table and pointed. Arthur Wayne Prochaska, the defendant.

Prochaska met the detective's stare. Neither blinked. Then Mike Greene asked another question, and Brewster turned away. Prochaska leaned over and whispered to his attorney.

That's bullshit. I was never in that room.

Frank put his hand on his client's arm. Write down anything you want to discuss. We'll talk before I cross-examine Brewster. I have to concentrate on her testimony now.

As Prochaska started writing, Frank glanced at his client. Prochaska had a reputation as a cold-blooded killer who rarely showed emotion, but he was definitely agitated now.

Detective Brewster, after Criminalist Cashman called you, did you use his information to secure a search warrant for the defendant's house?

Yes.

Please describe what you did after securing the search warrant.

After Brewster told the judge about the team she had put together and the procedure the team had used when they searched Art Prochaska's house, Greene introduced a judgment roll to prove that Prochaska was a convicted felon.

Were you aware that Mr. Prochaska was an ex-convict when you searched his home? Mike Greene asked.

Yes.

Is it legal for an ex-convict in Oregon to possess a firearm?

No.

Did you make a discovery, while searching Mr. Prochaska's bedroom, that involved a firearm?

Brewster told the judge about finding the Glock and the ammunition for it in Prochaska's closet.

Detective Brewster, did you visit the State Medical Examiner's Office recently? Greene asked.

Yes, sir. I was over there when Dr. Grace conducted the autopsy of Mr. Ballard.

Your Honor, pursuant to stipulation, I'm submitting Dr. Grace's autopsy report, which concludes that Vincent Ballard died as the result of gunshot wounds to the brain.

It will be received, Judge Belmont said.

Greene picked up a plastic evidence bag and carried it to his witness. In the bag were several small pieces of metal.

Detective Brewster, will you please identify the contents of this bag for the judge.

Brewster turned to Judge Belmont. During the autopsy of Vincent Ballard, Dr. Grace opened the victim's skull and found these two bullets inside.

What caliber are they?

Well, they' re badly fragmented, but Criminalist Cashman was able to say that the fragments are consistent with the ammunition found in the defendant's home.

Why are the bullets so banged up? Greene asked.

They break up when they bounce off bones in the skull. They' re designed that way to cause multiple injuries.

Did you transport these fragments to the lab and deliver them to Bernard Cashman?

Yes.

I have no further questions for Detective Brewster, Mike Greene said.

Frank conferred with his client, who was adamant about not being in Ballard's motel room but said nothing about the weapon and ammunition that had been found in his closet. Frank could not think of many questions for the detective. He'd read the search warrant affidavit, which appeared to be solid, and Cashman's lab reports. There was one area he wanted to ask about, though.

Detective Brewster, were Mr. Prochaska's prints found on the bullet fragments that were discovered during the autopsy? Frank asked.

No. Criminalist Cashman was of the opinion that they were too fragmented to be printed.

Thank you. I have no further questions.

The state calls Criminalist Bernard Cashman, Greene said.

Frank turned toward the back of the courtroom. When Cashman walked toward the witness stand, Frank could not help smiling. The criminalist always made an entrance, like an actor with the lead in a Broadway play. Frank would not have been surprised if one day the forensic expert appeared in court with an opera cape draped across his shoulders.

I do, Cashman intoned in his deep baritone as soon as the bailiff asked him if he would tell the truth, the whole truth, and nothing but the truth, so help him God.

Criminalist Cashman, for the record, how are you employed?

I am a forensic scientist with the Oregon State Crime Laboratory.

Judge Belmont is familiar with the work of forensic experts, so you needn't give him a description of your job, but I would like to put your educational background and work experience in the record, Greene said.

Of course. Cashman squared his cuffs and smiled at the judge. I received an undergraduate degree in chemistry from the University of Oklahoma and a master's degree in forensic science from the City University of New York. I spent three years in Colorado at the state crime laboratory before coming to Oregon. I' ve been here for ten years.