Before the hearing, the judge held a conference in his chambers and went over all the cases on his calendar with the D.A. and defense counsel.
“Who’s got the Haskins case?” Clark asked, as he clicked a cough drop around his teeth.
“I do, Your Honor,” said Bradley Chernow.” Chernow was an aspiring young prosecutor who had his sights on a judicial position, or maybe even politics. He was also an ex-classmate of Brent’s from law school. He was clever, sharp, but still had that “cop look” from the days he had served in uniform, and the same style of dress. Brent had always liked Chernow in law school. He had friendly, amber eyes and a pleasant disposition, but they had never really become friends. Brent could never shake the feeling that Chernow thought that he had made it on his own, and that he regarded Brent as coming from privilege – the easy way.
“You’re on the defense, right Brent?” asked Judge Clark.
“Yes, Your Honor.”
“Is there an offer on this case?”
“Your Honor, we’re not prepared to make an offer. It’s a capital case,” replied Chernow.
“Brad, she’s an old lady. Plus, we haven’t had an execution in California since 2006. Why don’t you plead her out to second degree, and we’ll send it for a report?”
“I’ll discuss it with my client, Your Honor, but I’m not sure this one is ready to be plead out.”
“I agree,” said Chernow. “And I’d also have to get authority.”
“Well then, you discuss it with your client, and you get authority. Then we’ll reconvene and see whether to go forward on this.”
Brent had the obligation to relay the proposition to Nancy, but he didn’t relish doing that. She was nervous enough already. Brent took Nancy out into his courtroom “office” – the hallway.
Nancy, the Judge has asked me to explore a possible settlement with you, and he’s asked the District Attorney to do the same.”
“Settlement?”
“Yes. The Judge suggests a plea bargain.”
“I remember discussing this with you. Brent, I didn’t do it – whatever they say – I’ll just throw myself on the mercy of the Court.”
“Well, I have to communicate this to you, because, if you’re convicted of first degree murder with special circumstances, throwing yourself on the mercy of the Court could get you the death penalty. And if you’re convicted of first degree murder, the sentence is life in prison.”
“My God! What is their offer?”
“It’s not an offer yet, but the judge suggests a plea to second degree murder, which carries a sentence of 15 years before you can be considered for parole.”
“Brent, in 15 years, I’ll be 88 years old. They may as well give me the death penalty. I say we fight.”
“No matter what?”
“No matter what.”
Brent honestly was relieved by her answer. Defending a murder case was no stroll in the park, but he never took on a case he didn’t think he could win, and he felt good about this one.
“Okay then, let’s go get ‘em!”
* * *
When the Judge called the case, he first took up the matter of Brent’s motion to suppress the evidence taken from Nancy’s trash can, which was, essentially, the only physical evidence they had in the case. If this evidence was suppressed, there was no case and it would be dismissed.
“Your Honor, you have the motion before you. The defendant in this case had an expectation of privacy in her garbage because it was in her garage and not yet set out for collection. I cited the landmark United States Supreme Court case of California v. Greenwood in my brief,” said Brent.
“Your Honor, the defendant gave her consent for the search. Therefore, she waived her Fourth Amendment guarantee against unreasonable searches and seizures,” Chernow argued.
“Your Honor, the Fourth Amendment protects a person’s reasonable expectation of privacy against unreasonable searches and seizures. A warrant is required unless certain exceptions apply, and a police detective who wants to snoop around fishing for evidence without probable cause is not one of those exceptions,” said Brent.
“Mrs. Haskins did not consent to the search of her garage or her garbage container, and, as I mentioned earlier, according to prevailing Supreme Court case law, she had a reasonable expectation of privacy with respect to that garbage can and everything inside of it, unless and until it was placed outside for collection.”
“Mr. Chernow?” asked Judge Clark, rolling his cough drop from one cheek to the other.
“Your Honor, the detective asked if he could search the premises, and the defendant consented. She made no objection when he indicated he was going into the garage, so the only reasonable inference we can draw from that is that she consented to a search of the entire premises. Consent is a recognized exception to the Fourth Amendment guarantee.”
“Mr. Marks?”
“Your Honor, under the law, a person’s consent has to be the product of his or her own free will and not the mere submission to an assertion of authority. Detective Tomassi had no probable cause whatsoever to believe that evidence of a crime would be found by a search of Mrs. Haskins’ home. When he asked if he could ‘look around,’ Mrs. Haskins asked if she needed a lawyer, and the Detective responded that he didn’t think so.
“The scope of the consent to search was never defined, and no consent form was signed. The Detective merely asked if he could ‘look around.’ Under these circumstances, there cannot be deemed consent to search the garage. ‘Looking around’ denotes looking around the area of the home where Mrs. Haskins and the Detective were situated, not the garage and certainly not the trash can.”
“Mr. Chernow?”
“Your Honor, as you can see from the detective’s declaration, he asked if he could look around the defendant’s home and the defendant agreed. There was no coercion involved.”
“I agree with Mr. Chernow,” said the Judge. “The motion to suppress is denied. Are the parties ready for preliminary hearing?”
“Yes, Your Honor.”
“Yes, Your Honor.”
“The Court will be in recess for 15 minutes and then take up the matter for preliminary hearing.”
CHAPTER EIGHTEEN
“The Court calls the case of People vs. Nancy Haskins,” said the judge, in between clicks and smacks.
“Brent Marks appearing with defendant, who is present in Court, Your Honor.”
“Bradley Chernow for the people, Your Honor.”
“Thank you Gentlemen. Mr. Chernow, are you ready to proceed?”
“Yes, Your Honor.”
“Thank you. Do you have an opening statement?”
“No, Your Honor, I will waive opening statement.”
“Please call your first witness.”
“Your Honor, I call Dr. Ignacio Perez.”
Dr. Perez was sworn in by the clerk, and took a seat in the witness stand. Being a medical examiner for the county, this was routine for him.
“Please state your name for the record.”
“My name is Dr. Ignacio Perez.”
“Dr. Perez, what is your current occupation?”
“I am a medical examiner for the county of Santa Barbara.”
“Can you please summarize for the Court, your education and experience?”
“I am a certified medical examiner, currently serving with the County of Santa Barbara. I hold an M.D. and a PhD from Georgetown University School of Medicine, an A.B. from Dartmouth, and a medical license from the State of California, where I am board certified in clinical, anatomic and forensic pathology. I am a Diplomate of the American Board of Forensic Medicine, and. . .”
“Your Honor, the defense accepts the qualifications of this witness for the purposes of this preliminary hearing, subject to cross examination on his actual findings.”
“Very well. Mr. Chernow, you may inquire.”
“Dr. Perez, did you perform an autopsy on Barbara Densmore, the victim in this case?”
“Yes, I did.”
“And, as a result of that autopsy, did you prepare an autopsy report and a certificate of death?”
“Showing you what has been marked for identification as Exhibits 1 and 2, can you identify Exhibit 1 as a true copy of your report and Exhibit 2 as a true copy of the death certificate?”
“Yes, they are.”
“Dr. Perez, were you able to form an opinion, within a degree of reasonable medical certainty of the victim’s cause of death?”
“Yes, I was.”
“What was the cause of death that you determined?”
“The victim was poisoned.”
“Were you able to determine the type of poison?”
“It was ricin poisoning.”
“Objection and move to strike!” interjected Brent. “Non-responsive.”
“Sustained. It is non-responsive. The answer will be stricken,” declared Judge Clark.
“In your opinion, what type of poison was responsible for the victim’s death?”
“Objection, lack of foundation,” Brent barked out.
“Sustained. Mr. Chernow, for the doctor to have an opinion, it has to be based on evidence, and that evidence must be shown as foundation. You may proceed.”
Chernow was getting a little flustered by now. He was no match for Brent in the moot court battles at law school, but had gone on to quite an experienced career as a prosecutor. The old competition had crept back into Brent’s skin and he wouldn’t back down. Nancy was openly pleased. She smiled at Brent and whispered, “You’re doing great!” Brent put his hand on her arm and whispered back, “Thanks, but remember, I told you not to expect much from this.”
Chernow continued, “Dr. Perez, as a result of your examination, did you come to the conclusion that Ms. Densmore had been poisoned?”
“Objection, asked and answered!” said Brent, just to get Chernow flustered.
“It has been asked and answered, Mr. Chernow,” said the judge.
Chernow’s cheeks were flushed. Nancy was so happy she was wiggling in her chair.
“It’s foundational, Your Honor.”
“Very well, overruled. You may continue.”
“Dr. Perez, as a result of your examination, you came to the conclusion that Ms. Densmore had been poisoned, is that correct?”
Brent could not resist. “Leading, Your Honor,” he barked out. Chernow glared at him.
“It is leading, but I’ll allow it. Mr. Chernow, please try to keep this tighter. I have a large calendar today.”
“Yes, Your Honor.”
“I concluded from my examination, yes, that Ms. Densmore had been poisoned.”
“On what did you base that opinion?”
“On the symptoms I had observed from the autopsy. She had lesions on her esophagus, compete respiratory failure, and she was foaming at the mouth shortly before death.”
“Were you able to determine the poison from the examination?”
“No, I was not.”
“Did you perform toxicology tests to determine the poison?”
“Yes.”
“And what did the tests show?”
“They all came back negative.”
“And what did that lead you to conclude, if anything?”
“It led me to conclude that it was a poison that would not show up on a blood test. That, and the symptoms she exhibited were why I suspected it was ricin.”
“Move to strike the last sentence, Your Honor, lack of foundation.”
“It will be stricken.”
Chernow gave Brent another dirty look. Why take it so personally? Brent thought. I’m the one with the client facing the death penalty, not him. The bottom line was that Brent had uncovered the weakness of this witness; something he had already known from the discovery he had received from the D.A.’s office. Dr. Perez knew that Densmore had been poisoned and he knew it was ricin, but, without further physical evidence, he couldn’t prove it.
“Dr. Perez, in cases where you cannot determine the type of poison, is there a forensic protocol, and, if so, what is it?” asked Chernow.
“Yes, the protocol is to examine the death scene to determine the presence of any poisons.”
“Thank you, Dr. Perez.”
“Anything further of this witness, Mr. Chernow?”
“No, Your Honor.”
“Cross examination, Mr. Marks?”
“Yes, thank you, Your Honor. Dr. Perez, isn’t it true that you could not determine from the toxicology report that the poison that killed Ms. Densmore was ricin?”
“Yes, that is true.”
“And isn’t it also true that the only way to confirm your opinion that the poison that caused Ms. Densmore’s death is to determine if ricin was found at the death scene?”
“We also sent a urine sample to CDC for testing, but we’re still waiting for the results.”
“So, without that report, in order to confirm your hunch that Ms. Densmore died from ricin poisoning, you would have to find traces of ricin at the scene of her death, isn’t that correct?”
“It’s not a hunch,” said the Doctor, wrinkling his forehead in frustration.
“Move to strike as non-responsive, Your Honor,” said Brent.
“Doctor, please answer the question,” said the Judge.
“But I can’t answer it yes or no.”
“Then please just answer it.”
“The answer to your question, Mr. Marks, is that to confirm my diagnosis of ricin poisoning, it is true that we would have to find traces of ricin in the environment.”
“Thank you Doctor. Your Honor, I have no further questions of this witness.”
“Mr. Chernow?”
“No further questions, Your Honor.”
“Well then, Dr. Perez you may be excused. Please call your next witness, Mr. Chernow.”
Dr. Perez stepped down from the stand, gave a smile to Brent as he passed by, and Chernow called his next witness.
CHAPTER NINETEEN
“I call Detective Roland Tomassi.”
Detective Tomassi approached the witness stand, faced the clerk, took the oath, and sat down.
“Mr. Chernow, you may inquire.”
“Thank you, Your Honor. Detective Tomassi, will you please state your full name?”
“My name is Roland Tomassi.”
“And you are a California Peace Officer?”
“Yes, I am.”
“What is your current assignment?”
“I am a detective in the Homicide Division of the Santa Barbara County Sheriff’s Department.”
“And how long have you been serving as detective in the Homicide Division?”
“About 20 years, give or take a few months,” said Tomassi, dryly.
“And you are also the officer who was first on the scene at Barbara Densmore’s house after her death, is that correct?”
“Yes.”
Tomassi described the scene, his interview with Nancy, the search of her house and the arrest, in detail, as well as the positive test for ricin on the cellophane wrapping and flower food package.
“Cross examination, Mr. Marks?”
“Thank you, Your Honor. Detective Tomassi, isn’t it true that the forensic team you described made a thorough search of Barbara Densmore’s residence for evidence?”
“Yes, sir.”
“And you specifically instructed them that you were looking for some type of poison, isn’t that correct?”
“Yes, sir.”
“And isn’t it also correct that, all the interviews of witnesses that you have conducted indicated that Barbara Densmore was at home all day before being taken to the hospital in the ambulance?”
“That is correct, sir.”
“So there is no doubt in your mind that she would have ingested the poison at her residence, isn’t that correct?”
“Objection, calls for speculation,” Chernow interjected.
“He can answer if he has an opinion,” said the Judge. ??
?Detective Tomassi, answer the question if you can.”
“No, sir, there is no doubt in my mind that it occurred at her residence.”
“Is it also true that, at her residence, your forensic team found no traces of ricin?”
“Yes, that is true.”
“And they also found no traces of any poison of any kind, isn’t that correct?”
“Yes, that is correct.”
“You testified, Detective Tomassi that, as a result of a search of Mrs. Haskin’s house that you did find cellophane wrapping in her garbage can with traces of ricin on it, is that correct?”
“Yes, that is correct.”
“And this cellophane wrapping had no fingerprints besides the victim’s, isn’t that correct?”
“That is correct.”
“This means that, if anyone had wiped the cellophane clean, they would have done so only before Barbara Densmore handled it, isn’t that correct?”
“Objection, calls for speculation,” Chernow called out.
“It does call for speculation, but the inference is there,” said the Judge. “And this is just a preliminary hearing. You can answer.”
“It seems that, if fingerprints were wiped, they were done before Ms. Densmore handled it, yes.”
“And, by the same token, they could not have been wiped clean after because that would have also wiped Ms. Densmore’s prints off, isn’t that correct?”
“It seems so, yes. But the suspect could have used gloves to handle the cellophane to avoid leaving prints.”
“One more question, Detective Tomassi. Did you find any flowers at Ms. Haskin’s residence?”
“No.”
After the short cross examination, Chernow tried to introduce Barbara Densmore’s sister to identify a picture of her body, but Brent stipulated and agreed that it was, indeed, a photograph of Barbara Densmore. He didn’t see the need of putting the sister through that.
CHAPTER TWENTY