Doctor Kessington shook his head. “Certainly not. That was the primary means, but I verified my findings by checking the stomach contents.”
“The stomach contents, Doctor?”
“Yes. Since digestion ceases after death, by checking the stomach contents and seeing how far digestion has progressed, it is possible to determine when a person died relative to when they ingested their last meal.”
“I see. And in this particular case?”
“In this case, the stomach contents included a partially digested meat that proved to be veal. The extent to which digestion had progressed indicated the decedent had died approximately three hours after ingesting the veal.”
“Three hours, Doctor?”
“That’s right.”
“Tell me, Doctor, how does that verify your finding that the decedent died between eleven and twelve that night?”
Doctor Kessington smiled. “In and of itself, it doesn’t. It does not tell us the time of death. As I stated, it only pinpoints the time of death relative to his last meal. I don’t personally know when the decedent ate his last meal. But I understand that fact is known and will be brought out in evidence in this trial. And that fact was communicated to me, and based on that hearsay evidence, which I can’t testify to, I was able to use the stomach contents to verify my own personal findings based on the body temperature that the decedent died between eleven and twelve.”
“I see. But in verifying those findings, you are relying on what people told you regarding when the decedent ate his last meal?”
“That is correct.”
“And if those people were mistaken, then you could be mistaken?”
Dr. Kessington frowned.
“Can’t you answer that, Doctor?”
“Yes, I can. I wish to phrase my answer so as to be absolutely fair. The figure I gave you-three hours from the time the decedent ate the veal till the time he died-that is a constant. That would not change, regardless of the accuracy of what anyone told me. As to the exact time of the day the victim died, that of course would be affected.”
“I see. Now you say he died three hours after he ate his last meal. You also say he died between the hours of eleven and twelve. The median time would be eleven-thirty. Three hours prior to that would be eight-thirty. Working backward, from your personal medical findings, and not based on anything anyone told you, is it your personal opinion that the decedent ate his last meal at eight-thirty on the night that he died?”
Dr. Kessington nodded. “That is correct.”
“Fine, Doctor. Then let me ask you this hypothetical question. From District Attorney Harry Dirkson’s opening statement, there is reason to believe that we will hear testimony that the decedent ate a long and leisurely meal. If it should turn out that the decedent was not actually served his veal until nine o’clock, would that change your findings any? You say three hours is a constant. Would you then say, the decedent probably died at midnight, midnight is the median time, he could have died between eleven-thirty and twelve-thirty?”
Dr. Kessington shook his head. “No, I would not.”
“Why not, Doctor?”
“As I said, digestion is merely a secondary factor in verifying the time of death. The primary method, body temperature, is the more precise method, and the one on which I would rely. It indicated death between eleven and twelve, and that is the finding I would rely on. If the stomach contents indicated the time of death to be around midnight, I would take that as a confirmation rather than a contradiction of that finding.”
Fitzpatrick nodded. “Very well put, Doctor. And you say the body temperature indicated that the time of death was between eleven and twelve o’clock?”
“Yes. As I’ve stated several times.”
“It could have occurred at midnight, Doctor?”
“It could. But that is an outside limit. The optimum time would be around eleven-thirty. Eleven and twelve are outside limits.”
“But death could have occurred at twelve o’clock?”
“It could.”
“Could it have occurred at twelve-oh-one?”
For the first time, Doctor Kessington appeared annoyed. “Now you’re splitting hairs, Counselor.”
“Maybe I am, but I’d still like the question answered. Are you telling me death could have occurred at twelve o’clock, but could not have occurred at twelve-oh-one?”
“No, I’m not,” Dr. Kessington said irritably. “I’m a reasonable man attempting to make a rational answer. My expert findings indicate death occurred between eleven and twelve. If you want to stretch that by one minute, obviously there is no argument I can make against it that will not sound ridiculous.”
“I appreciate your dilemma, but I would still like a yes or no answer. Could death have occurred at twelve-oh-one?”
Dr. Kessington took a breath. He glared at Fitzpatrick. “It is stretching the bounds of likelihood,” he said. “But the answer is yes.”
Fitzpatrick nodded. “Thank you, Doctor. So,” he said breezily, “if I understand you correctly, you are now testifying that your expert medical findings indicate the decedent met his death sometime on June twenty-eighth or sometime on June twenty-ninth. Thank you. That’s all.”
Dirkson roared an objection, and Judge Wallingsford admonished Fitzpatrick for the comment.
As Fitzpatrick sat down, Steve Winslow leaned across Kelly Wilder and nodded approvingly. “Not bad.”
30
Fitzpatrick spent the lunch hour on the phone to his office, catching up on his law practice.
Steve Winslow, who had no law practice to catch up on, had lunch with Mark Taylor and Tracy Garvin at a small deli near the courthouse. They ordered at the counter, carried their food to a small table in the back.
Mark Taylor sat down, took a huge bite of pastrami sandwich and washed it down with coffee. “So,” he said. “Tell me about the time element.”
“What about it?” Steve said.
“You always make a big deal of the time element. Last case it was bullshit. What about this time? Does it mean anything?”
“Yes and no.”
“What does that mean?”
Steve shrugged. “For the most part, it’s just bullshit. Give the jury a show. Mess the facts up, create reasonable doubt. Besides, it’s standard practice to pick on the doctor. Why? Because the jurors like that. Doctors make big bucks. Doctors don’t make house calls. Doctors are professional men who are apt to come off pompous and arrogant, and jurors love to see ’em taken down a peg.” Stave shrugged again. “It ain’t fair, but that’s just the way it is.
“But in this case, it actually does mean something. The doctor puts the time of death at eleven-thirty. We happen to know eleven-thirty was the time Kelly Wilder left the apartment. That’s pretty damning. You don’t stick around after you kill someone. You kill ’em, and you leave. She shot him at eleven-thirty and got the hell out of there.”
Taylor grimaced. “Christ, Steve,” he said with a mouthful of pastrami. “You’re torturing me.”
“Yeah, well at least I’m not spoiling your appetite,” Steve said dryly. “I’m sorry, Mark, but that’s the fact. She left at eleven-thirty. We know it, the prosecution doesn’t.
“But think what that means. If the time element gets screwed up, if the waiter from that restaurant gets on the stand, says he didn’t serve the veal until after nine-well, we got the doctor saying he died three hours after that. Which would be midnight. And in that case, when he was shot Kelly Wilder was long gone.”
“Right,” Taylor said irritably. “You know it and I know it. But how the hell are we gonna prove it? Call the detectives to the stand? For one thing, we can’t even find ’em. For another thing, if you did, you’d put me on the hook for withholding evidence.”