“The question before us is whether to allow the golden retriever known as Reggie to appear in court,” says the judge before turning to me. “What is the purpose behind the request?”
“We want to demonstrate that he is in fact Mr. Evans’s dog and that he did not die along with Ms. Harriman, as the prosecution claimed at trial.”
“And how do you propose to do that?” he asks.
“Through testimony by his veterinarian and by the actions of the dog as he relates to Mr. Evans. We believe it is vital to establish ownership beyond a doubt.”
The judge turns to the prosecutors. “Ms. Coletti?”
“Your Honor, as stated in our brief, the state feels that such a maneuver is completely out of bounds and likely to turn the proceedings into a circus. There is no precedent for a dog to take on the role of witness, and such testimony would be inherently unreliable.”
I shake my head. “Your Honor, the reliability of canine testimony, as demonstrated through actions, has been amply demonstrated in many court proceedings, including those of Your Honor himself.”
Judge Gordon looks surprised. “Would you care to explain that?”
I nod. “Certainly. In New Jersey v. Grantham you ruled that a search that uncovered drugs was reasonable, when the only fact presented to justify the search was the action of a DEA German shepherd who detected the drugs by his sense of smell.”
“That dog was not a witness in court,” the judge says.
“That’s true. But you affirmed his reliability by allowing the search. He was, in effect, presented through hearsay testimony. If you’d like, we could conduct our own test outside of court, with you present or through videotape. Then the reference to Grantham would be exactly on point.”
Coletti shakes her head in disagreement. “Your Honor, that dog was trained in drug detection. It is an entirely different situation.”
“No, it is exactly the same,” I say. “We will demonstrate Reggie’s training in court, training that could only have been done by Mr. Evans. And untrained dogs have testified as well, through hearsay. Even in the O. J. Simpson trial, endless testimony referenced the barking of a dog, and it was used to pinpoint the time of the murders.”
“Obviously we disagree, Your Honor,” says Coletti. “But we object just as strongly on the ground of relevance. Mr. Evans was not convicted of murdering his dog, and whether or not the dog is alive is of no consequence. He was convicted for murdering his fiancée, and her death has been confirmed by DNA.”
“Mr. Carpenter?”
“Ms. Coletti was not the prosecutor at trial, so perhaps she is unaware that Mr. Steinberg, who did prosecute, referenced the deceased dog thirty-one times. He did so in his opening and closing arguments and through witness testimony. He used it to argue the facts of the case and to demonstrate Mr. Evans’s ‘extreme callousness.’ The jury certainly considered it; he instructed them to. And this new evidence will prove that he should not have been able to reference it, and they certainly should not have considered it.”
The judge continues questioning us for another fifteen minutes. My assessment is that he does not want to allow Reggie into the courtroom but is unable to come up with an adequate legal justification to prevent it.
“Your Honor,” I say, “we think the evidence to be introduced by the dog will be compelling. But Richard Evans has not seen the dog in five years, and maybe we’ll be wrong. Maybe it will blow up in our faces. But either way, what harm can come of it?”
“What do you mean?” he asks.
“There’s no jury here to protect from being misled. You are the judge and jury, the sole arbiter. You can see it and assign whatever importance to it that you wish. If you think it has no value, you will ignore it. If you consider it valuable for either side, you’ll assign it the appropriate weight. It will be significant or harmless, or somewhere in between, and only you will decide which.”
The judge then asks how we would proceed, and I tell him that Karen Evans would bring Reggie in, that her presence as someone he knows would put him at ease. Then Richard would put him through some training paces, tricks that he had taught him, as a way to demonstrate familiarity.
The fact that the judge asks about process is a good sign; if he were going to disallow Reggie, then the process would not be important. Coletti seems to sense this as well, and she renews many of her objections to the testimony. I refute them, but we’re going over the same ground.
“I’m going to allow it,” the judge says, and then makes an unusual ruling. All other witnesses, for both sides, will testify before Reggie. His appearance will represent the finale. “See you in court,” he says.
We take this as our cue to leave the chambers, and I immediately head for a phone to call Laurie. I tell her what time to have Karen and Reggie here, and that I will call her back if that changes.
“You’re taking a chance,” Laurie reminds me. “Reggie could go into court and bite your client, and your case, on the ass.”
“You’re right,” I say. “You’d better ask Tara to speak to him.”
She laughs. “Will do. See you later… good luck.”
I take my place in the courtroom, and Richard Evans is brought in. I can see the nervousness etched in his face; he’s experienced the wonder of hope this past couple of weeks, and he knows that it could all come crashing down today.
“You ready?” he asks.
I nod. “Ready.”
He’s searching my face for a clue to his chances, doesn’t find anything particularly reassuring, so he finally nods. “Okay. Me, too.”
* * * * *
WHEN THE JUDGE enters the courtroom and the bailiff calls the case, I get my own butterflies. This hearing represents not only a huge hurdle but also an unfamiliar one for a defense attorney like me. Usually we only need “reasonable doubt” on our side; the prosecution has to have a slam dunk, a unanimous verdict, to win. A hung jury is generally considered a defense victory.
Here the opposite is true. Richard is presumed guilty, and we must decisively prevail to give him another chance. In this case a tie doesn’t go to the runner, and it doesn’t go to the defense. We have to win decisively, and the judge must be persuaded that we would probably win in a new trial.
The first witness I call is probably the most important human witness I’ll call all day. It’s Dr. Gerald King, here to testify on the toxicology and medical reports. I start to take him through his credentials, which are as impressive as they come. Halfway through them, Coletti belatedly offers to stipulate to him as an expert witness.
“Your Honor, I would like you to hear his entire curriculum vitae,” I say.
“It’s not necessary,” Judge Gordon says. “I’m very familiar with the doctor.”
That’s plenty good enough for me, and I don’t push the issue. Instead, I take Dr. King through his description of how the bruise could not have been on the left side of Richard’s head if he had fallen out of bed, and could only have been caused by a rounded, blunt instrument, not by the floor.
Dr. King has brought pictures and charts with him, some of which are identical to those used in the first trial and some which he has created from scratch. His presentation is reasonably compelling, and once I’m satisfied he’s made his point, I move on to the toxicology.
It only takes a few questions before I lead Dr. King into dropping the bomb that the sleeping pills had to be injected or taken in a liquid form, because of the presence of campene. I could lead him even further, but I want to save some ammunition for when the prosecution puts on its rebuttal witness.
Coletti gets up to cross-examine, and she focuses on the bruise first. “Dr. King, you say that if Mr. Evans had fallen from the bed, the bruise would have been on the right side and not the left. Is that correct?”