His testimony was predictable. Lopez did her best to make him sound
respectable. He owned a home in southeast Portland and worked night
shifts at one of those quickie oil-change places. As expected, he
swore under oath that his loser brother had been at his house on the
night Kendra was attacked. According to Derrick, his brother Frank a
few months on parole and ready to set off on a new law-abiding
lifestyle had walked the mile and a half to his house to hang out. They
wound up watching a Saturday Night Live repeat. He remembered that
John Goodman was the host because he did a brutally accurate
impersonation of the woman who had sold out the former president's
mistress to the independent counsel. I wasn't impressed. Last time I
checked, John Goodman hosted that show a couple times a month. And it
still wasn't funny.
Fortunately, I was ready with a tough cross for Derringer's brother,
and Lisa did little on direct exam to blunt the effect in advance.
With permission from Judge Lesh, I rose and approached Derrick
Derringer for questioning. The fact that the witness was the
defendant's brother was enough to give him a motive to lie, but
fortunately that line of questioning was only the beginning of my
cross.
"Isn't it true, Mr. Derringer, that you've had some run-ins with the
law yourself?"
"Yes, ma'am, I have."
"Now, do I have this right? You have three felony convictions in the
last ten years?"
"I believe that's correct, ma'am."
Lisa had done a good job of warning Derrick not to get defensive about
his criminal history. When a witness with a problematic background
owns up to his problems, some jurors will actually give him points for
it. I hoped Derringer's brother's record was bad enough to speak for
itself whether he admitted the convictions or not.
I asked him about his felony record, and he conceded that he'd been
convicted of armed robbery and then of two separate incidents of
forgery in the first degree. In a perfect world, the guy would still
be in the pen for the robbery alone. He walked into a Subway sandwich
shop just before closing and left with just $67 from the cash register.
The cashier was a sixteen-year-old kid who'd started working at the
shop a few days earlier. After Derringer discovered that there were
only small bills in the register and that the cashier had no access to
the safe, he made the kid get on his hands and knees on the floor in
front of the safe. He stuck a gun in the kid's mouth, forced him to
make three tries at opening the safe despite his protestations that he
didn't know the combination, and then dry fired the gun when the safe
didn't open.
After the kid pissed his pants, Derringer got down on his knees in
front of him, grabbed him by the hair, and mocked him while he cried.
As he grabbed the small bills from the register, Derringer told the
kid, "Hey, just be glad you're not a chick, man, or you'd really be
having a bad day."
Unfortunately, the Rules of Evidence being what they are, all the jury
got to hear was that Derrick Derringer had been convicted of armed
robbery. Just doesn't have the same effect.
When I finished asking about his felony convictions, I got to the good
stuff.
I pulled out a thick case file from my leather legal briefcase, opened
it, and asked him, "You've offered in the past to testify on your
brother's behalf, haven't you?"
He took the bait and tried to avoid what he knew to be the issue. "I'm
not sure what you're referring to specifically, ma'am, but I have been
saying since this unfortunate event occurred that I'm willing to tell
the truth about what happened to establish my brother's innocence."
What a fucking idiot.
"I'm aware that you've been what you call 'willing' to testify for your
brother in this trial, but I was referring to a trial two years ago in
Clackamas County where your brother also was the defendant. Do you
recall that, Mr. Derringer?"
Of course he recalled it, he said.
"And in that trial, Mr. Derringer, didn't you offer to testify that
your brother had been with you when the crime of which he was accused
occurred?"
He had to admit that one, too.
"Did you eventually testify in that trial?"
"No, I did not," he said.
"Were you in the courtroom when your brother testified in that
trial?"
Derringer looked surprised. I think Lisa expected me to get this
evidence in through a DA or a cop instead of through her own witness. I
guess she and Derrick Derringer didn't know that the DA who tried that
case must've gotten bored during Frank Derringer's testimony. The
prosecuting attorney had made a note in the file that Derrick Derringer
was in the courtroom during his brother's testimony and looked
irritated when his brother admitted having sex with the victim but said
that it was consensual. Clackamas County had happily made the file
available for me to use.
"I'm not sure whether I was there for the entirety of his testimony,
ma'am."
"Well, let me ask you this. You were there when your brother admitted
under oath that he was present at the scene of the incident that was
the subject of that trial, right?"
He finally gave up what I was looking for and conceded that he'd heard
his brother admit to being at the scene of the crime.
"And, let me get this right, before your brother testified under oath
that he had been at the scene of the crime, you had been willing to
testify also under oath that your brother had been with you on the same
day and at the same time as the crime occurred?" This was the stuff
that made being a trial lawyer fun. Yes, ma am.
"And in this trial, you're saying that your brother was with you at the
same time and on the same day as this crime occurred, is that right?"
"Yes, ma'am, but "
I cut him off. "No further questions, your honor."
Lisa tried to rehabilitate him as a witness, but what could he say? He
claimed he was confused in the previous trial about the night in
question, which might be better than admitting to an offer to perjure.
I was pretty sure the jurors saw him for what he was, though.
Considering the crap Lisa had pulled, I got through the afternoon
pretty well.
By the time we were done with Derrick Derringer, it was a little past
five, so Lesh was more than ready to call it a day. Lesh is one of the
hardest working judges in the courtroom, so you can usually count on
him to have trial every day, even Fridays, which most judges view as
golf day. But this evening he announced that he had a funeral to
attend the next day and that we would not reconvene until Monday. The
delay would give me some extra time to file whatever papers I planned