“Then let me clarify it for you. You took samples of hair from officers at the scene, some hotel employees, and I emphasize the word ‘some,’ because in your mind, or perhaps at the direction of Detective Detrick, these persons were determined not to be suspects in this case, is that correct?”
“That’s right.”
“And this was done so that you could eliminate any trace evidence connected to them that you might find at the scene?”
“That’s correct.”
“But when you got to the defendant, you weren’t treating him as just another hotel employee who left trace evidence at the scene, were you?”
“No.”
“Why not? Was it simply because of the quantity of evidence, the footprints and fingerprints that belonged to him at the scene?”
“Objection,” says Tuchio. “The question assumes facts not yet in evidence.”
“Your Honor, the prosecutor in his opening statement has already told the jury that he intends to prove that the fingerprints and shoe impressions belong to my client. There is no dispute over that. The defense will stipulate to those facts,” I tell him.
In fact, I have offered this stipulation to Tuchio, who has refused it, wanting instead to trot out all these details in front of the jury, with pictures they can remember.
“I renew my objection,” says Tuchio.
He’s trying to break my rhythm.
“Overruled. I’ll allow the question,” says the judge.
“Was the only reason that you refused to clear Carl Arnsberg from the scene as you did the other hotel employees based on the quantity of evidence, his fingerprints and shoe prints found at the scene?”
“I don’t know. I didn’t make that decision.”
“Who did?”
For a second he looks like one of those dolls on the dash of your dad’s car, head on a spring. “Detective Detrick,” he says. “He was in charge of the case.”
I turn and look at Detrick. He knows he will be heading back to the woodshed when I get to my case in chief.
“Let me ask you.” I’m back to the witness. “Did you take any samples of hair from my client, the defendant, Carl Arnsberg?”
“Yes.”
“Did you take any samples of hair from any other suspects besides my client?”
“No.”
“So to your knowledge there were no other suspects who were even considered with regard to the commission of this crime?”
“I don’t know. All I know is that hair samples were not taken from any other suspect or person of interest.”
“Mr. Prichert, let me ask you, did you find any questioned samples of hair at the scene that matched the samples you took from my client, Carl Arnsberg?”
“No.”
“Then let me get this straight, so that I understand. According to the state’s theory of the case, the position taken by Mr. Tuchio, my client entered the room, bludgeoned the victim to death with a hammer, went back out into the hall, retrieved a tray with food on it, and brought it into the room, putting it on a table. Then, according to this theory, my client searched the room looking for something, went into the bathroom, where he wiped down the raincoat, took off a pair of gloves, then proceeded to leave, and-let’s not forget-then panicked or was startled by something and left shoe impressions in the entry, where he slipped and fell, leaving his fingerprints on the floor as well as on the murder weapon, and then finally left the room-and during all this he never dropped a single hair from his head or his body anywhere in that suite? Is that what you’re saying?”
“No. I’m simply saying that we didn’t find any questioned hairs that matched your client.” The witness is good. He’s only going to play in his ballpark. As far as Prichert is concerned, the re-creation of events at the scene of the crime is a boat that Detrick and Tuchio have built. Let them sail it out to sea.
What is becoming abundantly clear is that the cops jumped before they had all the pieces to the puzzle. If Carl hadn’t run from the scene, we wouldn’t be here today. If he had gone to his supervisor and reported what he found, the police would have questioned him, taken his prints-both shoes and hands-plucked a few hairs from his head, and cleared him, at least initially. That’s what they did with the other hotel employees. No doubt they would have checked him out, found his friends, and probably even discovered that Carl had met in the bunker with his buddies and talked about doing evil things to Scarborough. But that would have taken time, and in that time the forensics experts from the crime lab would have been piecing together all the little details that would have told them that Carl didn’t do it, at least not in the way that Tuchio and Detrick have described.
It may be a minor point, no doubt one that Tuchio will step around in his closing argument. But I take Prichert over the falls on it anyway.
“During your investigation at the scene, did you find any small bloody transfer marks on or under the tray with the food or on the tablecloth underneath it?”
He thinks about this for a moment. “No.”
“How would that be possible if the perpetrator, immediately after killing the victim and still wearing these blood-soaked gloves, retrieved that tray and the tablecloth from the hall outside and then brought them in and placed them on that table?”
Prichert thinks about this in silence for a long moment. The tray, how did it fly into the room? “It’s probably not possible in the scenario you present,” he says.
“That’s not my scenario. That’s the scenario presented by Detective Detrick when he testified earlier.”
“Whoever crafted the scenario, it’s inconsequential,” says Prichert. “Change the order in which the tray came into the room and it’s entirely possible that there would be no blood on it.”
“How, for example?”
He smiles at me. “I don’t know. I’m not a crime-reconstruction expert.”
“You mean like Detective Detrick?”
He looks at me but doesn’t say anything. Unlike Detrick, Prichert is smart enough to avoid playing God, rearranging the cosmos of physical facts from the stand. He knows that somewhere, sometime, something will be punching a hole in the side of the universe when he’s done.
I let it drop. Tuchio and I will argue over this in closing. He will try to finesse it, bury it like a bone, and I will try to dig it up. In the end it is probably one of the multitude of items the jury will sleep through-bloody little smudges that aren’t there, unlike the fingerprints and shoe impressions that are.
I’m just about to move on to my centerpiece with Prichert when I remember the little item that Tuchio ignored in his direct questioning of the witness.
“One last question on hair,” I tell him. “When you testified earlier, you stated that there were a number of questioned hair samples, those with unidentified owners you said were collected from the area around the toe kick under the counter in the bathroom.”
“That’s correct.”
“And I think you testified that two of these-blond samples, I believe-were collected with tape from under the toe kick?”
“That’s right.”
“And that from your examination, both of these appeared to be hair samples from the same unidentified person?”
“Yes, the characteristics of the hair were sufficiently similar in each case, and that’s what I concluded. Yes.”
“You also stated that you found a number of blond hair samples-unidentified, what you call questioned samples-out in the living room, some of them on or around the chair near the victim?”
“Ah, I know what you’re getting at,” he says.
“Let me ask the question,” I tell him. “Did any of the blond hairs in the living room match the blond hairs found in the bath so as to cause you”-he’s already nodding-“to conclude that they also came from this same unknown, unidentified person whose samples you found in the bathroom?”
This was in his forensics report.
“Yes. One of them,” he says. “Do you mind if I consult my notes?”