“Where was he a mental patient, Detective Stewart?”
He seemed surprised by the question. “The Oregon State Hospital.”
“He had been there more than ten years, hadn’t he?”
“I believe so.”
“In the forensic ward of the state hospital, where the criminally insane are kept, correct?”
“Yes.”
“Isn’t that the same place where Elliott Winston has been kept for the last twelve years?”
“Objection!” Loescher protested before he could answer. “There’s been no foundation established to demonstrate that the witness would have direct knowledge of this.”
“Withdraw the question, your honor.” I stood at the end of the jury box, my arms folded across my chest. “Now, Detective Stewart, you’ve testified that you have no doubt at all that Jacob Whittaker was the person who murdered Judge Jeffries, but you also testified that you thought there was something odd about his confession. I don’t need to remind you that you’re under oath, Detective Stewart, but I want you to think carefully about your answer to this question. When he was telling you-repeating it over and over again-that he couldn’t say when you asked him why he had done it, did you believe then that there was something else going on, that there was in fact a reason why he had killed this man he did not know and had never met?”
“Yes, I thought that was a possibility.”
“And when Quincy Griswald was killed, did you think there might be some connection-some possible connection-between the two murders, even though the second one could not have been committed by the man who committed the first?”
“The two murders were almost identical.”
“Almost?”
“Yes. Both victims were stabbed, but only the first one was disemboweled.”
“But with that exception, they were identical?”
“Yes, but that exception seemed at first to argue against any connection. It was the one important detail that had never been released to the public. Because of that, I assumed the second was some kind of copycat killing.”
“At first?”
“Yes. I began to wonder more about it when I learned of the way the arrest was made and where it was made: the anonymous phone call, the homeless man living under the same bridge. It was hard to believe there wasn’t some connection.”
“Did you do anything to pursue this suspicion?”
“When they brought in the suspect…” He paused and nodded toward the counsel table. Danny was sitting with his head sunk down on his chest, half asleep. “I sat in on the interview.”
“You weren’t part of the investigation?”
“No.”
I glanced over at Danny and then looked back at Stewart. “Did he confess?”
“No. We didn’t talk to him very long. He was filthy and he had to be cleaned up. But, no, he didn’t confess.”
I made my way from the jury box to the chair where Danny was just starting to pay attention and stood behind him, my hands on his shoulders.
“Ms. Loescher asked if you had any doubt whether Jacob Whittaker killed Calvin Jeffries. You sat in on the police interview of the defendant. Do you have any doubt about his guilt?”
Stewart had been around for years. He knew there was something wrong with the question. More by instinct than design, he gave the prosecution time to object.
He did not have to wait long. Loescher’s arm shot into the air with such force it seemed to pull the rest of her along with it.
“Your honor!” she shouted, banging her hand down on the table.
“This goes beyond anything-!”
Bingham seemed almost amused by her outburst. “You wish to make an objection, Ms. Loescher?”
She looked at him, her mouth hanging open, and blinked. “Yes, your honor,” she said, quite calm. “The question calls for speculation.”
“The prosecution asked this witness his opinion of the guilt of the person charged with the murder of Judge Jeffries,” I responded.
“That opened the door to an inquiry of this same witness about his opinion of the guilt or innocence of the defendant in this case.”
Bingham politely disagreed. “I’m afraid I don’t see it quite that way, Mr. Antonelli. The witness was the lead investigator in the first case. He was asked his opinion based on that investigation.
And no objection was made to that question,” he added, letting me know that he would not, given a proper objection, have allowed that one either. “You’re asking him to give an opinion on a case in which he was not involved. For that reason the objection must be sustained.”
“I’ll rephrase the question, your honor,” I said as I started to turn back to Stewart.
“It doesn’t matter how he phrases it, your honor. The question can’t be asked.”
“She’s right, Mr. Antonelli.”
“I’ll limit myself to what Detective Stewart observed.”
“Just so you don’t elicit any opinion regarding the ultimate issue,”
Bingham insisted.
“Yes, your honor. I promise I won’t ask the witness what he really thinks.”
“Your honor!” Loescher cried.
Bingham held up his hand, then leaned back in his chair and began to tap his fingers together, a stern expression clouding his brow. Presently, he sat forward and the seldom disturbed civil smile returned to his clean, straight mouth.
“I really never expected that sort of thing from you.”
I could have ignored and almost enjoyed the angry shouting of one of the many intemperate, self-important judges who take pleasure in the pain they can inflict on the lawyers who practice in front of them. This hurt, all the more because he was right. It was a cheap trick that never worked.
“I apologize, your honor. That was inexcusable.”
He kept his gaze on me a moment longer, then looked at the jury.
“Sometimes, in the course of a trial, things are said that shouldn’t be said and that the person who says them immediately regrets. This is particularly true in a case like this one where something very serious is at issue. Mr. Antonelli said something which I’m going to ask you to ignore and which I know he wishes he had not said. I want you to understand this very clearly. Detective Stewart was asked if he had an opinion about the guilt or innocence of the defendant. I don’t know if he does or not; I do know that it doesn’t matter if he does. Opinions don’t count: Facts, and only facts, count.
Detective Stewart, like any other witness, may testify about things he knows-that is to say, facts about which he has knowledge. The conclusions which are to be drawn from whatever facts are established during this trial, including whatever facts Detective Stewart has to offer, are to be drawn, not by the witnesses themselves, certainly not by the lawyers, and not by me. That job is for you, the jury, and only for you. Therefore, I now instruct you that you are to ignore what Mr. Antonelli said, and you are not to infer from it, either that the witness believes the defendant to be innocent of the charge of murder or guilty of that charge. Do you understand?”
When the twelve of them nodded dutifully in unison, Bingham’s eyes came back around to me. “You may continue.”
It did not hurt if the jury thought I was zealous; it would be the end of me as a lawyer if they thought I was too chastened to keep fighting. It was the judge’s courtroom, but it was my case.
“You were present during the police interview of the defendant, correct?”
“Yes, I was.”
“When he was asked a question, did he look away?”
“No.”
“Did he fidget nervously with his hands?”
“No.”
“Did he spend a lot of time thinking about his answers before he gave them?”
“No.”
“Did he do anything at all that, based on your experience, you could label as an indication of deception?”
“No.”
“He denied he killed Quincy Griswald?”
“Yes, he did.”
“Did you believe him?”