have me arrested." The clerks held their breath, sure that their judge
was about to unleash. Instead, the story goes, she laughed and said,
"Well, in that case, counselor, you should at least get out in the sun
periodically. You could blind someone with those things." My guess
was that Lesh had so much going for him on the stuff that mattered that
people were almost reassured by his irreverence.
Proving once again that he was a complete professional where it
counted, Lesh went back on the record and made what I believed to be
the right ruling. The jury should be allowed to consider Derrick's
previous lie for the limited purpose of judging his credibility as an
alibi witness in this trial. The problem was that if the jury knew the
whole story, including the nature of Derringer's previous conviction,
the unfair prejudice to the defendant would be overwhelming. So Lesh
carved out a fair compromise.
"Here's what we're going to do, folks. First of all, the State can't
get into any of this until after the defendant's brother has taken the
stand and offered testimony to exonerate the defendant. Until he does
that, Ms. Kincaid, the evidence you want to use is irrelevant.
"Even after the evidence becomes relevant, I am concerned about the
potential for unfair prejudice. Ms. Kincaid, the only facts you
really need to get to the jury are that Derringer Derrick Derringer, I
mean provided an alibi for the defendant in the past and that the
defendant, contrary to the proffered alibi evidence, eventually
admitted that he was, in fact, at the scene. I assume you can find a
way to put those facts into evidence without revealing the underlying
charge to the jury or whether the defendant was ever actually
convicted."
I nodded in agreement, but then said yes aloud so the court reporter
could transcribe my answer.
"Alright, then, that's the plan. And, Ms. Kincaid, I cannot emphasize
this enough. The facts that I just mentioned are all I want to hear
from your witnesses on this matter: Brother supplied alibi for
defendant, but then defendant later admitted he was there." He counted
off the points on his fingers. "If I hear one other word one mention
of sodomy, or kidnapping, or a teenage girl victim, or the fact that a
jury found the defendant guilty of something I will declare a mistrial.
And I may even declare a mistrial with prejudice. So I warn you to
proceed with caution and make sure your witnesses understand the rules
we're playing by. Do we understand each other?"
I assured him that we did, and he moved to the rest of Lisa's
motions.
Lisa had filed a motion to suppress the evidence regarding Derringer's
pubic hair. She tried to argue that the pethismo-graphic examination
and the jail booking process consti
U4
tuted unlawful searches in violation of Derringer's Fourth Amendment
rights. But once she agreed that both processes were part of the
normal corrections process and not intended to produce evidence of a
crime, Lesh quickly denied the motions.
In the alternative, Lisa asked the court to prohibit Derringer's parole
officer from testifying that he had seen Derringer without his pants at
the pethismographic examination. She argued that the evidence was
overly prejudicial because it revealed the fact that Derringer was on
parole for a sex offense.
In the end, Lesh decided to permit Renshaw to testify that he was
Derringer's parole officer and had occasion to see him without his
clothes. The jury would not hear about the setting or circumstances. I
didn't like it, because I thought the jurors might come up with their
own oddball explanations as to why a parole officer would see a client
naked. But I decided there was no other way to get Renshaw's
observations in without letting the jury know about the prior sex
offense, which surely would lead to a reversal on appeal.
"Alright," Lesh said. "Now, before I call a jury panel up here, let's
see if my rulings on these motions change anything about whether we
two of you have had plea negotiations on this case by now."
Lisa and I sat silently.
"Nothing?" the judge asked. He told the court reporter to go off the
record. "What the hell are you two doing? Now, before I say what I'm
about to say, Mr. Derringer, I want you to understand that my comments
have nothing to do with my opinion about your guilt. I haven't heard
the evidence, so I don't have an opinion at this point. And, in any
event,
U5
that's going to be a decision for the jury, not me. But I've been
involved in a lot of trials, both as a lawyer and a judge. And I've
read the papers filed in this case, and I have some idea of what's
coming around the corner."
He turned his attention back to me and Lisa. "I'll be frank with both
of you. From what I've read in the motions and the warrants, Ms.
Kincaid, you've charged the hell out of this case. Frankly, I'm
surprised you chose to present this to the grand jury as an attempted
murder."
Lisa was never one to pass up an opportunity to ingratiate herself with
the court. She jumped in to thank Lesh for telling me what she'd been
saying all along.
He stopped her cold. "Not so fast, there, Ms. Lopez. I've got even
more for you. You may not have noticed, but your client's alibi rests
on the word of his convicted felon brother who by all appearances has
lied for the defendant before. Your client also is on parole for an
offense that is strikingly similar to the one for which he now stands
trial. I hope you have advised him that he is gambling in a very big
way. I can tell you right now, if he loses, he won't be looking at a
year in the pen this time. He's looking at a very long sentence, with
a parole board that will remember that he burned them the last time."
Having reminded both of us of our weaknesses, Judge Lesh wanted to hear
our offers. I offered to dismiss the attempted murder and other
charges if Derringer would plead to the kidnapping and sodomy, with a
ten-year minimum sentence. I offered to reduce that to seven if he'd
flip on Suspect Number Two. Lisa wouldn't hear it. She wanted Assault
Three with eighteen months no cooperation. Lesh gave up when it became
clear we'd never agree, and the clerk called up a jury panel.
U6
Picking a jury can be the most difficult part of a trial. Most people
can be convinced of just about anything, and one dud can sway enough of
these sheep to yield very bad results.
One of my first trials in Oregon was a slam-dunk controlled buy. An
undercover used marked money for the drug buy; then the surveillance
officers who watched the deal followed the suspect, keeping track of
him by his distinctive two-tone spectator loafers. When the defendant
was popped in the men's room of a nearby restaurant, the marked drug
money was in his pocket. The dummy blew any theoretical chance at an
acquittal when
he showed up on the second day of the trial wearing the
same two-tone spectator loafers that every police witness mentioned the
previous day when describing the suspect.
After three days of deliberations, the jury hung, 7 to 5, in favor of
guilt. The judge was so incredulous that he broke from the usual
procedure and permitted the lawyers to question the jurors before they
were dismissed. Turns out that one particularly headstrong guy
convinced four of the others that the defendant must be innocent,
because no one would be stupid enough to wear those shoes to court
under the circumstances. The four sheep found it difficult to defend
the decision, saying repeatedly, "We just don't think he did it." When
I asked the leader about the marked drug money, all he could say was,
"Now, that was a problem for him. I'll admit that." The seven sane
jurors looked like their heads were going to explode after spending
three days trying to argue with that kind of logic.
My case against Derringer was strong, but I needed to weed out any
jurors who might cut him loose on the most
H7
serious charges, thinking that the victim deserved what she got. In
the end, Lisa bumped two retired women who looked at Derringer like
they were already afraid of him. I bumped two men with previous
assault arrests and two who said they were surprised that a person
could be charged with raping a prostitute. The worse of the two said
it sounded more like theft, then suppressed a chuckle. I was glad he
said it, not only because I knew to bump him but also because I saw one
woman flinch in revulsion. Lisa apparently didn't see it, because she
left her on the panel. A definite keeper for me. By the end of the
day, we had picked our jury.
Deciding that personal safety required me to navigate even further into
the twenty-first century, I bit the bullet and had a top-of-the-line
home security system installed that night. I could tell by the way the
installation guy eyed my trashed house that he didn't think I'd be
needing it. I didn't bother explaining.
Just knowing that the system was there helped. I fell asleep the
minute I hit the bed and didn't wake until the alarm clock advised me
it was time to go to work. At least I'd be rested for the second day
of trial.
I walked into Lesh's courtroom prepared for my opening statement. On
the way in, I checked to make sure that my witnesses were there: Mike,
the EMTs, and the kids who found Kendra were subpoenaed for the
morning. I figured there was no way we'd get through opening
statements and all those witnesses before lunch.
I had decided not to ask Kendra to attend the entire trial. Her mother
could not miss enough work to accompany her, and I thought that the
sight of Kendra sitting without a parent would feed the impression that
she was something other than a victimized child.
Fortunately, Derringer wasn't going to be getting an upper hand in the
sympathy arena by packing the halls with loving supporters. The only
people in the spectator seats were a few curious court-watchers and Dan
Manning, a young reporter for the Oregonian who was always trying to
branch out beyond his normal neighborhood beat by picking up crime
stories that otherwise wouldn't get covered.
I liked Dan. He tried to give potential future sources people like me
good press as long as he could do it and still give the straight story.
He stopped me as I was walking in. "Do you have a few seconds for a
quote? I'm thinking about using this trial as a centerpiece for a
larger special-interest article about the dangers faced by teen
prostitutes. You know, hoping to ride the coattails of the renewed
interest about the Jamie Zimmerman murder, now that Taylor's back in
the news."
I prefaced my answer by explaining that the Rules of Professional
Responsibility prohibit prosecutors from going very far in their
statements to the media. I was relieved when he nodded; he knew the
drill. For a prosecutor, media interviews are like navigating a
minefield. Stay too safe within the lines, and your typical nitwit
reporter looking for a story will make it sound like you don't believe
in your case. Go too far, and you're looking at sanctions from the
court and the bar.
I told Dan I'd be happy to talk to him if he would assure me that he
wasn't going to print Kendra's name. He agreed, reminding me that the
Oregonian was one of the few papers that had not abandoned its policy
of withholding information about the victims of sexual offenses after
the William
Kennedy Smith rape allegation triggered sensationalist paper-selling
headlines.
I gave Dan a few canned quotes about the trial and also plugged DVD as
an aggressive, proactive unit working to prevent girls from entering
the world of prostitution and to arrest and prosecute the adults who
lure them into it.
When it was time for opening statements, I delivered mine from memory,
without notes.
"Good morning. In case you don't remember, my name is Samantha
Kincaid, and I'm a deputy district attorney for Multnomah County. I
represent the State of Oregon.
"I want to start this morning by thanking you for your candor when we
spoke yesterday during the jury selection process. It is because of
your honesty during that process that the twelve of you have been
chosen to hear this case. And I am thanking you ahead of time, because
I think you will find the next week or so to be a difficult one. It
will be difficult because the process changes now. We don't get to
talk to each other like normal people, the way we did yesterday. You
are now jurors, and the rules of our trial system require a formality
unlike any other setting in our society. You are entrusted with a
profoundly important decision, but the rules require you to sit here
passively, listening, without asking questions or even talking to one
another about the case until all the evidence is closed and you begin
your deliberations. I do not envy your task, but I promise to do my
best to anticipate the issues you might find most important and to
focus on them.
"But I think you will find this week to be difficult for reasons other
than those faced by any person fulfilling a citizen's responsibilities
as a juror. You face an especially daunting task because this
particular trial will force you to focus on the sadistic acts of the
man sitting over here, Frank Derringer."
I had their attention now. A few of them shifted in their chairs to
move forward.
"You are going to hear facts about what Frank Derringer did to a
thirteen-year-old girl named Kendra Martin the kind of facts that most
people go a lifetime without ever having to contemplate. This man" I
pointed to Derringer "pulled Kendra Martin from the street, dragged her
into a car driven by an accomplice, and drove her to an isolated
parking lot with every intention of beating and raping her. And as he
brutalized her face and body with his fists
and forced her legs apart
to take him, something happened that made Frank Derringer's already
horrific violence escalate and turned this crime into something I wish
I didn't have to tell you about.
"At the pivotal moment when Kendra Martin thought the defendant was
going to force himself inside of her, the defendant found himself
flaccid, unable to fulfill his intentions. So Frank Derringer found a
different way to take out his rage against the scared thirteen-year-old
girl who was pinned beneath him in the backseat of his car. He took a
stick and rammed it repeatedly between Kendra Martin's buttocks. From
the degree of tearing, doctors estimate that the stick was at least an
inch and a half in diameter. They know it was made out of wood,
because they found splinters inside Kendra Martin's anus. And when
Kendra lay bleeding from the defendant's torture, Frank Derringer still
didn't stop.
"The defendant told his accomplice to do what he couldn't do himself
and then watched while this second man raped and then sodomized Kendra
Martin, now barely conscious. And when the whole thing was over, these
two men drove
Kendra to the Columbia Gorge and dumped her like a bag of garbage to
die.
"You're going to learn that Kendra Martin hasn't lived the kind of life
that most thirteen-year-old girls get to live. She's going to get on
the witness stand and tell you very personal facts about her home life
and her background. And she'll tell you that she's not proud to admit
that when the defendant kidnaped, raped, and sodomized her and then
left her to die, she was a runaway girl engaging in prostitution to
support a growing heroin addiction. She'll also tell you that she
initially tried to tell the police what Frank Derringer did to her