Thirty-seven
Thursday was supposed to be the day when all the orchestral elements came together in a crescendo for the prosecution. Since Monday morning Andrea Freeman had carefully rolled out her case, easily handling the variables and unknowns, like the potshots I had taken and the intrusion of the federal target letter, in a strategic buildup that gathered momentum and led inalterably to this day. Thursday was the science day, the day that all elements of evidence and testimony would be tied together with the unbreakable bindings of scientific fact.
It was a good strategy but this is where I intended to turn her plans upside-down. In the courtroom there are three things for the lawyer to always consider: the knowns, the known unknowns and the unknown unknowns. Whether at the prosecution or defense table, it is the lawyer’s job to master the first two and always be prepared for the third. On Thursday I intended to be one of the unknown unknowns. I had seen Andrea Freeman’s strategy from a mile away. She would not see mine until she had stepped into it like quicksand and it silenced her crescendo.
Her first witness was Dr. Joachim Gutierrez, the assistant medical examiner who performed the autopsy on Mitchell Bondurant’s body. Using a morbid slide show that I had halfheartedly and unsuccessfully objected to, the doctor took the jury on a magical mystery tour of the victim’s body, cataloging every bruise, abrasion and broken tooth. Of course, he spent the most time describing and showing on the screens the damage created by the three impacts of the murder weapon. He pointed out which had been the first blow and why it was fatal. He called the second two strikes, delivered when the victim was facedown on the ground, overkill and testified that in his experience overkill was equated with an emotional context. The three brutal strikes revealed that the killer had personal animosity toward the victim. I could have objected to both the question and answer but they played nicely into a question I would later ask.
“Doctor,” Freeman asked at one point, “you have three brutal strikes on the top of the head, all within a circle with a four-inch diameter. How is it that you can tell which one came first and which one was the fatal blow?”
“It is a painstaking process yet a very simple one. The blows to the skull created two fracture patterns. The immediate and most damaging impact was in the contact area where each strike of the weapon created what is termed a depressed calvarial fracture, which is really just a fancy way of saying it created a depression in the skull or a dent.”
“A dent?”
“You see, all bone has a certain elasticity. With injuries like this—a forceful, traumatic impact—the skull bone depresses in the shape of the striking instrument and two things happen. You get parallel break lines on the surface—these are called terraced fractures—and on the interior, you get a deep depression fracture—the dent. On the inside of the skull this depression causes a fracture that we call a pyramid splinter. This splinter projects through the dura, which is the interior lining, and directly into the brain. Often, and as was found in this case, the splinter breaks and is propelled deep into the brain tissue like a bullet. It instantly causes the termination of brain function and death.”
“Like a bullet, you said. So these three impacts on the victim’s head were so forceful that it was literally tantamount to him being shot three times in the head?”
“Yes, that is correct. But it only took one of these splinters to kill him. The first one.”
“Which brings me back to my initial question. How can you tell which impact was the first one?”
“Can I demonstrate this?”
The judge gave permission for Gutierrez to put a diagram of a skull on the video screens. It was an overhead view and it showed the three impact spots where the hammer had struck. These points were drawn in blue. Other fractures were drawn in red.
“To determine the sequence of blows in a multiple-trauma situation we go to the secondary fractures. Those are the fractures in red. I called these parallel breaks terraced fractures because, as I said earlier, they are like steps moving away from the impact point. A fracture or crack like this can extend completely across the bone and here you see that with this victim these fracture lines stretch across the parietal-temporal region. But such fractures always end when they reach an already-existing fracture. The energy is simply absorbed by the existing fracture. Therefore, by studying the victim’s skull and tracing the terraced fractures it becomes possible to determine which of these fractures came first. And then of course you trace these back to the impact point and you can easily see the order of the blows.”
On the drawing on the screen the numbers 1, 2 and 3 were in place, depicting the order of blows that rained down on Mitchell Bondurant’s head. The first blow—the fatal impact—had been to the very top of his head.
Freeman moved on from there and spent most of the morning milking the testimony, finally reaching a point where she was belaboring the obvious in many areas with too many questions that were repetitive or not germane. Twice the judge asked her to move along to other areas of testimony. And I began to believe she was trying to stall. She had to keep the witness going through the morning because her next witness was possibly not on hand and may have even flaked out on her.
But if she was nervous about some problem, Freeman didn’t show it. She kept her focus on Gutierrez and steadfastly walked him through his testimony, finishing with what was most important—tying the Craftsman hammer found in the bushes to the wounds on the victim’s head.
To do this she brought out the props. Following the Bondurant autopsy, Gutierrez had made a mold of the victim’s skull. He also took a series of photos of the scalp and had prints made that depicted the wounds in one-to-one size.
Presented with the hammer that had been entered into evidence, Gutierrez removed it from its plastic bag and began a demonstration that showed how its flat, circular face fit the wounds and skull indentations perfectly. The hammer also had a notch on the top edge of its facing that could be used to hold a nail. This notch was clearly seen in the depression left on the skull. It all fit together in a perfect prosecutorial puzzle. Freeman was beaming as she saw a key element of proof solidify in front of the jury.
“Doctor, do you have any hesitation in telling the jury that this tool could have created the fatal injury to the victim?”
“None.”
“You realize that this tool is not unique, correct?”
“Of course. I am not saying that this specific hammer caused these injuries. I am saying it was either this hammer or one that came out of the same mold. I can’t be more specific than that.”
“Thank you, Doctor. Now let’s talk about the notch on the strike surface of the hammer. What can you tell about the position of the notch in the wound pattern?”
Gutierrez held up the hammer and pointed to the notch.
“The notch is on the top edge. This area is magnetized. You put the nail in place here, the hammer holds it and then you drive the nail into the surface of the material you are working with. Because we know the notch is on the top edge we can then look at the wounds and see which direction they came from.”
“And what direction is that?”
“From the rear. The victim was struck from behind.”
“So he may have never even seen his assailant coming.”
“That is correct.”
“Thank you, Dr. Gutierrez. I have no further questions at this time.”
The judge turned the witness over to me and as I passed Freeman on the way to the lectern she gave me a deadpan look that transmitted the message: Take your best shot, asshole.
I intended to. I put my legal pad down on the lectern, tightened my tie and shot my cuffs, then looked at the witness. Before I sat down again, I wanted to own him.
“Around the medical examiner’s office, they call you Dr. Guts, don’t they, sir?”
It was a good out-of-the-gate question. It would make the witness wonder what other inside information I knew and could possibly spring on him.
&nbs
p; “Uh, sometimes, yes. Informally, you might say.”
“Why is that, Doctor?”
Freeman objected on relevance and it got the judge’s attention.
“Do you want to tell me how this ties into the reason we are here today, Mr. Haller?” he asked.
“Your Honor, I think if allowed to respond, the answer Dr. Gutierrez will give will reveal that he has an expertise in pathology that is not in the area of tool patterns and head wounds.”
Perry mulled things over and then nodded.
“The witness will answer.”
I turned my focus back to Gutierrez.
“Doctor, you can answer the question. Why are you called Dr. Guts?”
“It is because as you said I have an expertise in identifying diseases of the gastrointestinal tract—the guts—and it also goes with the name, especially when it is pronounced incorrectly.”
“Thank you, Doctor. Now can you tell us how many times you have had a case in which you matched a hammer to the wounds on a victim’s skull?”
“This would be the first one.”
I nodded to underline the point.
“So you’re sort of a rookie when it comes to a killing with a hammer.”
“That’s right, but my comparison was painstaking and cautious. My conclusions are not wrong.”
Play to his superiority complex. I am a doctor, I am not wrong.
“Have you ever been wrong before in giving court testimony as a witness?”
“Everyone makes mistakes. I am sure I have.”
“What about the Stoneridge case?”
Freeman quickly objected as I knew she would. She asked for a sidebar and the judge waved us up. I knew this would go no further but I had gotten it out in front of the jury. They knew from what little had just been said that somewhere in his past Gutierrez had testified and been wrong. That was all I needed.
“Judge, we both know where counsel is going and not only is it not relevant to this matter, but Stoneridge is still under investigation and there has been no official conclusion. What could—”
“I withdraw it.”
She looked at me with searing hostility in her eyes.
“No problem. I have another question.”
“Oh, as long as the jury hears the question you don’t care what the answer is. Judge, I want an instruction on this because what he is doing is not right.”
“I’ll take care of it. Go back. And Mr. Haller? You watch yourself.”
“Thank you, Your Honor.”
The judge instructed the jurors to disregard my question and reminded them that it would be unfair of them to consider anything outside of the evidence and testimony while later conducting their deliberations. He then told me to proceed and I went in a new direction.
“Doctor, let’s zero in on the fatal wound and get a little more detailed. You called this a depression fracture, correct?”
“Actually, I called it a depressed calvarial fracture.”
I always loved it when the prosecution’s witnesses corrected me.
“Okay, so the depression or dent that was left by this traumatic impact, did you measure it?”
“Measure it in what way?”
“How about its depth? Did you measure that?”
“Yes, I did. May I refer to my notes?”
“You sure can, Doctor.”
Gutierrez checked his copy of the autopsy protocol.
“Yes, we called the fatal impact wound one-A. And, yes, indeed, I did measure the definitions of the wound pattern. Shall I give you those measurements?”
“My next question. Please tell us, Doctor, how did it measure out?”
Gutierrez looked at his report while speaking.
“Measurements were taken at four points of the circular impact location. Using a clockface, the measurements were at three, six, nine and twelve. The twelve being where the notch on the surface was located.”
“And what did the measurements tell you?”
“There was very little play in these numbers. Less than a quarter of a centimeter separated the four measurements. They averaged out to seven millimeters in depth, which is approximately a quarter of an inch.”
He looked up from his notes. I was writing his numbers down even though I had already gotten them off the autopsy protocol. I glanced over at the box and saw a few jurors writing in their notebooks. A good sign.
“So, Doctor, I noticed that this part of your work didn’t come up on direct examination by Ms. Freeman. What did these measurements mean to you in terms of the angle of impact of the weapon?”
Gutierrez shrugged. He stole a glance at Freeman and got the message. Be careful here.
“There is nothing really to conclude from these numbers.”
“Really? Wouldn’t the fact that the impression in the bone—the dent, as you called it—left by the hammer was almost even at all measurable points indicate to you that the hammer struck the victim evenly on the top of the head?”
Gutierrez looked down at his notes. He was a man of science. I had just asked him a science-based question and he knew how to answer it. But he also knew he had somehow strayed into a minefield. He didn’t know how or why, only that the prosecutor sitting fifteen feet from him was nervous.
“Doctor? Do you want me to repeat the question?”
“No, that is not necessary. You must remember that in science one-tenth of a centimeter can mean quite a difference.”
“Are you saying that the hammer did not strike Mr. Bondurant evenly, sir?”
“No!” he said in an annoyed tone. “I am just saying that it is not as cut and dried as people think. Yes, it appears that the hammer struck the victim flush, if you will.”
“Thank you, Doctor. And when you look at your wound-depth measurements on the second and third strikes, they are not as even, correct?”
“Yes, that is correct. In both of these impacts the deviation ranges up to three millimeters in each.”
I had him now. I was rolling. I stepped back from the lectern and started to wander to my left, into the open space between the lectern and the jury box. I put my hands in my pockets and adopted a pose of a completely confident man.
“And so, Doctor, you have the fatal blow delivered clean and flush to the top of the head. The next two, not the same way. What would account for this difference?”
“The orientation of the skull. The first strike stopped brain function within a second. The abrasions and other injuries to the body—the broken teeth, for example—indicate an immediate dead fall from a standing position. It is likely that the second and third strikes occurred after he was down.”
“You just said the other injuries indicate ‘an immediate dead fall from a standing position.’ Why are you sure the victim was standing when attacked from behind?”
“The abrasions to both knees are indicative of this.”
“So he could not have been kneeling when attacked?”
“It seems unlikely. The abrasions on the knees indicate otherwise.”
“What about crouching, like a baseball catcher?”
“Again, not possible when you look at the damage to his knees. Deep abrasions and a fracture to the left patella. The kneecap, as it is more commonly called.”
“So no doubt in your mind that he was standing when struck with the fatal blow?”
“None.”
It was perhaps the most important answer to any question in the whole trial, but I glided on like it was just part of the routine.
“Thank you, Doctor. Now let’s go back to the skull for a moment. How strong would you say the skull is in the area where the fatal impact occurred?”
“Depends on the age of the subject. Our skulls grow thicker as we age.”
“Our subject is Mitchell Bondurant, Doctor. How thick was his skull? Did you measure it?”
“I did. It was point eight centimeters thick in the impact region. About one-third of an inch.”
“And have you conducted any sort of study
or test to determine what kind of force it would have taken for a hammer to create the fatal dent fracture in this case?”
“I have not, no.”
“Are you aware of any such studies of this question in general?”
“There are studies in the area. The conclusions are very broad. I happen to think each case is unique. You can’t go by general studies.”
“Isn’t it widely held that the threshold measurement of pressure needed to create a depression fracture is one thousand pounds of pressure per square inch?”
Freeman stood and objected. She said that I was asking questions outside the scope of Dr. Gutierrez’s expertise as a witness.
“Mr. Haller himself was quick to point out in his cross-examination that the witness’s expertise is in diseases of the GI tract, not bone elasticity and depression.”
It was a no-win situation for her and she had chosen the lesser of two evils: burning her witness or allowing me to continue to ask him questions that he didn’t know the answers to.
“Sustained,” the judge said. “Let’s move on, Mr. Haller. Ask your next question.”
“Yes, Your Honor.”
I flipped a few pages on my pad and acted like I was reading. It would buy me a few moments while I considered the next move. I then turned and looked at the clock on the back wall of the courtroom. It was fifteen minutes till lunch. If I wanted to send the jury out with a final bit of food for thought, I needed to act now.
“Doctor,” I said. “Did you record the height of the victim?”
Gutierrez checked his notes.
“Mr. Bondurant was six feet, one inch tall at the time of his death.”
“So this area at the crown of the head would be six feet and one inch high. Is that fair to say, Doctor?”
“Yes, it is.”
“Actually, with Mr. Bondurant wearing shoes he would have been even taller, correct?”
“Yes, maybe an inch and a half to account for the heels.”