you will have for certain: Kendra Martin identified the wrong man, and
Frank Derringer is innocent."
So my paranoia had been warranted. Lopez had a trick up her sleeve
after all. But what Landry and Taylor had to do with Derringer's
defense was beyond me.
Judge Lesh apparently agreed. When Lisa finished her statement, he
turned to the jury and calmly excused them to their waiting room for a
break. Then he sat back, crossed his arms, looked at me, and said,
"Before I flip my lid up here, let me confirm, Ms. Kincaid, that Ms.
Lopez never informed you that she would be introducing anything having
to do with the murder of Jamie Zimmerman. Is that right?"
"That's correct, your honor. I'm forwarding to the court a copy of the
witness list I received from the defense before trial. I received no
notice from Ms. Lopez that she would be springing the possibility of a
serial rapist at trial, and she obviously reserved her opening
statement so she could drop this bombshell as late in the day as
possible."
Lesh looked at the witness list and shook his head. "Alright. That's
pretty much what I figured. Ms. Lopez, give me a good reason why I
shouldn't declare a mistrial right now and then send a letter down to
the Bar suggesting that they look into this little stunt you've pulled
here."
Oh, petty vengeance can feel so good. If I could've stuck my tongue
out at her without anyone noticing, I would have. In fact, this was
good enough to warrant a big wet raspberry, but I settled for my best
poker face.
Lisa feigned ignorance as she rose from her seat. For someone like me
who roots for Sylvester to eat that damn baby-talking yellow bird it
was hard to take. "I apologize if I've done something inappropriate,
Judge Lesh, but I believe I have complied with my obligations toward
the State. I'm not required to do the State's work, your honor. All I
have to do is disclose my witnesses, which I did, and I'm entitled to
reserve my opening."
Lesh wasn't buying it. "You mean to tell me that the people on this
list are going to raise the specter of a serial rapist who attacked the
victim in this case and also killed Jamie Zimmerman three years ago?"
"No, your honor. Those witnesses serve a legitimate purpose "
Lesh cut her off. "You mean the legitimate purpose of throwing the
prosecutor off track?"
Lisa was on the edge. She was getting defensive. "Your honor, if Ms.
Kincaid was thrown off track, that's not my fault. I do intend to
question those witnesses. They don't know about the Jamie Zimmerman
case, but the State's witnesses do. And Oregon's discovery rules are
clear: I can call any witness named by the State without having to
declare my intention to do so ahead of time. It just so happens that
the same investigative team in this case handled the Zimmerman
investigation."
I cut in. "I find Ms. Lopez's choice of words interesting. It seems
to me that if these two cases didn't just so happen' to involve the
same detectives, we might be hearing about some other old case that the
MCT handled. This entire tactic seems manufactured to spring something
at trial and catch the State off guard."
"I'm inclined to agree," Lesh said. "Ms. Lopez, you may be in
technical compliance with the discovery statute, but you have certainly
violated its spirit. It would've been nice of you to tell Ms. Kincaid
what was going on here."
Lisa worked her jaw and looked for words. "With all due respect to
your honor and to Ms. Kincaid, my job isn't to be nice. My job is to
defend my client. I sincerely believe that Mr. Derringer is innocent.
If I had trusted Ms. Kincaid to believe my sincerity, I would have
gone to her in the hopes that she would dismiss this case and reopen
the Zimmerman investigation. But from the minute she walked over to
the Justice Center to handle the arraignment on this case personally,
your honor, Ms. Kincaid has made it clear that she wants to hammer my
client. So I weighed my options and decided on this one."
I started to defend myself, but Lesh didn't see a need for it. "Ms.
Lopez, I'm letting you know right now that both you and Ms. Kincaid
have appeared before me several times since I've been a judge, and up
until today I've never had reason to question either of your ethics.
Your attempt to impugn Ms. Kincaid's integrity has failed with me. I
hope you understand that. Now, here's what we're going to do. I have
deep suspicions about your intent, Ms. Lopez, in holding your cards so
close to your chest. But it looks like you have stayed within the
letter of the law. So for now you're not in lawyer jail. Consider
yourself lucky."
When a slight smile registered at the edges of Lisa's mouth, Lesh
leaned forward. "Not so fast, Ms. Lopez. Your strategy will have its
consequences. You can't have it both ways. You're going to have to
make your case with the State's witnesses and the ones disclosed on
this sorry witness list. I won't let you parade a couple of convicted
murderers in front of this jury, and I won't let you bring in anything
you can't get through those witnesses. With that in mind, I suspect
that much of what you said in your opening statement is hearsay. At
the end of the trial, I will instruct the jurors that they should
disregard anything you said in opening that wasn't actually proven
through evidence during the case. With that said, it's time we brought
these jurors back in, so we can get on with this trial."
I rose to address him. "Your honor, the State requests a continuance.
I need time to research this defense. I'd like two weeks to
investigate any possible connection between this case and the Zimmerman
murder. I assure the Court and Ms. Lopez that if we determine a
connection, we'll proceed as necessary from there."
I could tell from the way that he tilted his head and smiled that he
sympathized, but he wasn't going to give me any time. "I understand
that you've been put in a jam, but you don't really think you're going
to find a connection between these cases. What you want is time to
disprove a connection so you can nip this defense in the bud. Trust
me, I understand that desire.
"But Ms. Lopez is right. The defense is not obligated to disclose its
theory ahead of time, only its witnesses and any alibi defense.
Basically, she's allowed to drop these little bombshells. I suspect
it's one of the things that make being a defense attorney entertaining.
If she really wanted to screw you over, she could've waived opening
altogether and hid her cards until testimony."
He told me he'd give me some leeway during rebuttal to recall
witnesses, but it was little consolation.
As an alternative, I moved to exclude any evidence relating to
Zimmerman's murder, at least until I had a chance to file a written