Billy unlocked the driver’s side door and got in the car. More accurately, he tried to get in the car, but was stopped by the fact that there was already someone in the driver’s seat.
In the dim interior light of the car, Billy saw that it was a man’s body, wrapped tightly in what seemed like cellophane, but with an empty space where the head was supposed to be. The body rolled back and forth from the impact of Billy’s jostling it, then fell to the left and out of the car and onto the asphalt. In the process, it covered up the note that was taped to the body’s chest.
And then Billy screamed, loud enough to wake the residents of Jean, Nevada, if there were any.
Discovery documents are the New York Yankees of the criminal justice system.
Before the baseball season, all the experts look at the various rosters of the teams, and say that the Yankees are by far the best, and that there’s no way they should lose. And then supporters of the other teams bravely say that everyone should just wait until the season is played, and that although the Yankees may have the best team on paper, the season isn’t played on paper.
Discovery documents are the prosecutor’s version of events, and they chronicle in excruciating detail the results of what are usually intensive investigations by law enforcement. Obviously it is all incriminating to the accused, since it all resulted in the poor sucker getting arrested.
So as evidence “rosters” go, the discovery always shows that the prosecution’s is by far the best. Of course, in this case it’s a two-team league, which leaves the defense in second, meaning last, place.
But, like baseball games, trials are not “played on paper”; they are won or lost in the courtroom. Unfortunately, once they get off the paper and into that courtroom, the evidence included in discovery usually carries the day, and the prosecution winds up winning.
Just like the Yankees.
Considering the fact that this case was at least partially put together six years after the crime, the evidence-gathering against Noah has been impressive.
A number of neighbors identified Noah as a frequent presence in the area, and it was understood that he was purchasing drugs from the people in one of the first-floor apartments. He was also seen and heard earlier that evening engaged in an angry dispute with those same pushers, no doubt over their refusal to extend him credit.
It gets worse from there. Soon after the fire a paint can had been found in a trash can three blocks from the burned house. Testing showed it to have contained residue from the chemical compound identified as having caused the fire. There was DNA on the can, including a tiny piece of charred skin.
Noah’s DNA.
Noah’s skin.
Of course, the trigger that set this whole process in motion was the deposition given by Danny Butler. It makes for a devastating read, if you happen to be Noah’s defense attorney, which unfortunately I am, at least for the time being.
Hike and I go through the material together, exchanging documents when we’re through with them. I can hear him audibly moaning as he reads, which is not terribly significant, since Hike spends most of every day moaning.
When we’re finished, he says, “Well, at least we’ve got a client we can believe. When he says he did it, he did it.”
“So says the prosecution.”
“So says the evidence. Come on, Andy, that paint can is the goddamn murder weapon, and Galloway’s DNA is on it. The only thing they don’t have is a deposition from God saying Galloway set the fire. And they’d probably have that by the time we went to trial.”
“We haven’t developed our own evidence yet,” I say lamely.
“What are you talking about?” he asks. “We’ve already got the key piece. He saved your dog. All we have to do is present studies proving that dog-savers do not burn down houses.”
Hike is annoying me by not playing the game. A defense attorney is supposed to disbelieve and discount everything the prosecution says. “Have you ever read discovery that didn’t make it look like your client was guilty?”
“No, but my clients are always guilty.”
“And maybe this one is also, but we start by assuming he’s not, and we try to make the pieces fit. Maybe the real killer set him up to take the fall.”
Hike frowns, which is what he does when he’s not moaning, though he is able to do both simultaneously. “Interesting frame. They plant the evidence, and then wait six years to bring it to light. We’re dealing with some very patient framers.”
Hike is right, of course, but the more he talks, the more obstinate I feel. The problem is that my obstinate feelings have nothing to do with whether Noah will spend the rest of his life in jail.
The phone rings, and since Edna is either not in the office or hiding, I pick it up. A woman’s voice says, “Mr. Carpenter?” and I confirm that it’s me. She then tells me to hold for Mr. Campbell.
Dylan picks up moments later. “Andy, glad I got you,” he says. “There’s been a new development in the case, which is obviously not included in the discovery yet. It’s pretty important, so I thought I should tell you right away.”
Based on Dylan’s calling me like this, and the upbeat tone of his voice, the chance that this is bad news for Noah is exactly one hundred percent.
I don’t ask Dylan what it is, because he’s going to tell me anyway, and I don’t want to give him the satisfaction. So without prodding, he continues. “A body was found in a parking lot in Jean, Nevada, just outside of Vegas. The deceased is Danny Butler.”
“Cause of death?”
“Well, the autopsy hasn’t been done yet, but it shouldn’t be too difficult. Butler was decapitated, and the head hasn’t been found.”
“That’s it?” I ask.
“That’s it.”
“Nice chatting with you, Dylan.”
“Damn, I forgot, there’s one more thing. They found a note on the body. It says, ‘Talkers die.’”
The death of Danny Butler is a major problem for Noah.
Not as big a problem as it is for Danny Butler, but it’s a serious blow, at least if Noah’s case goes to trial. No trial, then no harm, no foul.
The damage is on two levels. First of all, the timing of the murder, along with the note on the body, makes it look like it is a revenge killing for Danny’s squealing on Noah. While Noah’s presence in jail obviously disqualifies him as the actual killer, his possible connection to criminal elements in the drug world would suggest that he could have requested it be done.
At the very least, it suggests that perhaps Noah has substantial influence with, and connection to, murderers. That is never a good thing for a murder defendant to have on his résumé.
Even more serious than that is the potential legal impact. If there is a trial, there will be a legal battle, and I’ll be arguing that the statement Butler gave to the police should not be admitted.
I will cite the Confrontation Clause in the Sixth Amendment to the Constitution, which states that the accused “shall enjoy the right… to be confronted with the witnesses against him.” Though I certainly would not agree with the use of the word “enjoy,” it’s a crucial part of our legal system.
It insures that everything comes to light, and most importantly, that a defendant’s lawyer has the right to cross-examine the witness. We lawyers think we can break witnesses down, and reduce the impact of the negative things they have to say about our clients.
In Danny’s case, we would have had a minor advantage, in that everything he had to say was committed to a statement, which he signed. If I could have gotten him to deviate in any way from that statement, and I almost always can do that, then the jury might tend to disbelieve him.
So I would make all these arguments, citing the Constitution, and I would lose. Because over time, judges and lawyers have carved some holes in that document, and Noah is about to fall into a big one. In fact, two of them.
There are two reasons the judge will admit Butler’s statement. First of all, it represents a confession. Not by Butler, of course, but Butler was reporting Noah’s alleged confession. That is admissible, and represents an exception to the Confrontation Clause, as well as to the hearsay rule.