motion to exclude Lopez's defense. In my urgency to point out that
Lisa had been a complete bitch in failing to disclose the defense's
theory, I had almost forgotten to question whether the evidence
supporting Lopez's theory was even admissible. Any connection between
this case and the Zimmerman murder was tenuous at best, so I had a good
argument that, even if the Zimmerman case was minimally relevant, any
relevance was substantially outweighed by its potential to distract and
confuse the jury.
I think Lesh skipped that part of the analysis as well and now saw the
opportunity to get this mess out of his courtroom. The problem was, we
were venturing into a risky area of the law. Trial courts routinely
get reversed on appeal if they completely prohibit a defendant from
presenting his theory. On the other hand, as long as the trial judge
lets the defendant present his theory, the court has tremendous
latitude in excluding evidence that might support it. The fact that I
understood the nebulous distinction between the defendant's theory and
the evidence used to support it made me think I'd become a complete
asshole.
Luckily, Lesh understood the relevant distinction too, so I wouldn't
have to try to explain it.
"I can tell you right now, Ms. Kincaid, that I'm not about to keep the
defense from arguing that someone else might have committed this crime.
But, I'm no Judge Ito either, and you're correct to point out that the
defense doesn't necessarily get to put on whatever evidence it wants.
So, here's what we're doing. Ms. Lopez, either you agree to a
continuance or you call the witnesses you named on your discovery list
before you start calling cops to the stand to talk about the Zimmerman
case."
Lisa objected. Big surprise. "Your honor, it's highly unusual for the
Court to dictate the order in which evidence is presented."
"Well, it's also highly unusual for an attorney to pull the kind of
stunt you've pulled this morning. Think of this as another
repercussion of your strategy." He had noted Lisa's objection but then
forced her to make her choice.
"I have no interest in a continuance, your honor. Mr. Derringer is
eager to go home."
"Very well then, Ms. Lopez. No mention of Jamie Zimmerman, Margaret
Landry, or Jesse Taylor again until I've ruled on these issues. Now
we're taking a twenty-minute recess so we can collect our thoughts."
Forcing Lopez to work her way through the boring stuff first helped me
in a couple of different ways. Obviously, the detectives and I could
use some time poring over the police reports for the Zimmerman murder
to get up to speed, and I could prepare a motion to exclude evidence
about the case. But even if the evidence wound up coming in, Lesh had
provided a more subtle kind of assistance. In the time it would take
Lisa to get through these other witnesses, the jury might forget the
drama of her opening statement, and the defense might lose its
momentum. Along the same lines, it would be hard for Dan Manning to
write a great story when he had no trial testimony to back up the
opening statement yet.
For those reasons, I decided I wouldn't object to testimony relating to
Andrea Martin's arrest for criminal trespass at the Lloyd Center Mall,
although it was blatantly inadmissible. It was better to let Lisa
present that kind of innocuous evidence and hope the impact of her
opening statement wore off before the sexy stuff started. Plus, I
might have a better chance of getting Lesh to exclude the damaging
evidence if I didn't throw a fit over this chippy stuff.
A twenty-minute recess wasn't much, but at least I could update my
investigators so they could start working on it while I was in trial.
I almost knocked Dan Manning on his ass as I was rushing out of the
courtroom. He looked like a high school kid who just won a swimming
pool full of beer and a squadron of cheerleaders to share it with. I
could see his willingness to be sucked into Lopez's defense. It was,
after all, a great story. But I didn't have time to set him straight
and I suspected it wouldn't work anyway. So instead I almost knocked
him on his ass.
To save valuable time, I pulled out my cell phone rather than fight the
courthouse elevators to get back to my office.
My first call was to Alice Gernstein, the paralegal in our major crimes
unit. I gave her a quick rundown of what was going on and asked her to
pull the files from the Landry trial from archives and put them on my
chair and to order the trial transcripts. As it turned out, she had
already pulled the stuff for O'Donnell. He had prosecuted Landry and
Taylor and was now part of the investigation into the new letter to the
Oregonian. Alice said she'd make copies for me. I also asked her to
tell O'Donnell that I was going to need to talk to him soon, since he'd
handled the Zimmerman case.
Next, I called MCT. I was lucky. Chuck was out interviewing a
witness, but Ray and Jack were both in. They put me on speaker and I
told them what Lisa had unloaded in her opening.
It was a great opportunity for catty chat about my nemesis, but I told
them I had to make it quick. They had already refreshed themselves on
the Zimmerman case, since they were working on the investigation into
the anonymous letter. I warned them that Lisa might call them back to
the stand to testify about the case.
"Do you have anything yet on the letter?" I asked.
They were silent. I could picture them looking at each other over the
speakerphone, wondering how to tell me that I was outside the official
circle of knowledge. Walker handled it. "This thing's really hot,
Sam. O'Donnell and the lieutenant are going nuts over it, this being
the first execution and all. If anything leaks "
"Hey, forget it. I only asked because it would obviously be a lot
easier to defuse this Lopez stunt if we could show that the letter was
a hoax. If you don't want to tell me "
I heard the line get picked up off the speaker. Walker spoke quietly
into the handset. "Look, don't count on getting anything on the
letter. No prints. No DNA on the envelope or stamp. Typewritten on
plain paper and dropped in a mailbox by the side of a road." Great. No
help for me, and no help to Chuck. "And Sam," he said. "No one knows,
not even Chuck. I just didn't want you getting your hopes up."
I hung up feeling let down. It would be easiest if I could tie up any
loose ends that Lopez pulled free about the Zimmerman case, but
apparently I couldn't count on that. I would need to convince the jury
that Derringer was guilty, even if they developed doubts about the
guilt of Landry and Taylor.
When court resumed, Lisa called her first witness, the star with the
alibi convicted felon Derrick Derringer.