how the police messed up the Zimmerman case, but also how those same
detectives have bungled this investigation. They don't want to admit
that they missed a killer four years ago, and they don't want to admit
that they've got the wrong person again now.
"Let me make something clear to you. I'm not required to prove who
killed Jamie Zimmerman. That's supposed to be up to the police and the
district attorney. But I think it's important that you at least know
about that case, because it sure looks a lot like this one, and it's
sure starting to look like whoever did it is still out there.
"In the end, the evidence in this case may present more questions than
answers. We may never know who killed Jamie Zimmerman, but I have a
feeling you're going to suspect that it's not Margaret Landry or Jesse
Taylor. I also have a feeling that you're going to suspect that
whoever killed Jamie Zimmerman assaulted Kendra Martin. But one answer
you will have for certain: Kendra Martin identified the wrong man, and
Frank Derringer is innocent."
So my paranoia had been warranted. Lopez had a trick up her sleeve
after all. But what Landry and Taylor had to do with Derringer's
defense was beyond me.
Judge Lesh apparently agreed. When Lisa finished her statement, he
turned to the jury and calmly excused them to their waiting room for a
break. Then he sat back, crossed his arms, looked at me, and said,
"Before I flip my lid up here, let me confirm, Ms. Kincaid, that Ms.
Lopez never informed you that she would be introducing anything having
to do with the murder of Jamie Zimmerman. Is that right?"
"That's correct, your honor. I'm forwarding to the court a copy of the
witness list I received from the defense before trial. I received no
notice from Ms. Lopez that she would be springing the possibility of a
serial rapist at trial, and she obviously reserved her opening
statement so she could drop this bombshell as late in the day as
possible."
Lesh looked at the witness list and shook his head. "Alright. That's
pretty much what I figured. Ms. Lopez, give me a good reason why I
shouldn't declare a mistrial right now and then send a letter down to
the Bar suggesting that they look into this little stunt you've pulled
here."
Oh, petty vengeance can feel so good. If I could've stuck my tongue
out at her without anyone noticing, I would have. In fact, this was
good enough to warrant a big wet raspberry, but I settled for my best
poker face.
Lisa feigned ignorance as she rose from her seat. For someone like me
who roots for Sylvester to eat that damn baby-talking yellow bird it
was hard to take. "I apologize if I've done something inappropriate,
Judge Lesh, but I believe I have complied with my obligations toward
the State. I'm not required to do the State's work, your honor. All I
have to do is disclose my witnesses, which I did, and I'm entitled to
reserve my opening."
Lesh wasn't buying it. "You mean to tell me that the people on this
list are going to raise the specter of a serial rapist who attacked the
victim in this case and also killed Jamie Zimmerman three years ago?"
"No, your honor. Those witnesses serve a legitimate purpose "
Lesh cut her off. "You mean the legitimate purpose of throwing the
prosecutor off track?"
Lisa was on the edge. She was getting defensive. "Your honor, if Ms.
Kincaid was thrown off track, that's not my fault. I do intend to
question those witnesses. They don't know about the Jamie Zimmerman
case, but the State's witnesses do. And Oregon's discovery rules are
clear: I can call any witness named by the State without having to
declare my intention to do so ahead of time. It just so happens that
the same investigative team in this case handled the Zimmerman
investigation."
I cut in. "I find Ms. Lopez's choice of words interesting. It seems
to me that if these two cases didn't just so happen' to involve the
same detectives, we might be hearing about some other old case that the
MCT handled. This entire tactic seems manufactured to spring something
at trial and catch the State off guard."
"I'm inclined to agree," Lesh said. "Ms. Lopez, you may be in
technical compliance with the discovery statute, but you have certainly
violated its spirit. It would've been nice of you to tell Ms. Kincaid
what was going on here."
Lisa worked her jaw and looked for words. "With all due respect to
your honor and to Ms. Kincaid, my job isn't to be nice. My job is to
defend my client. I sincerely believe that Mr. Derringer is innocent.
If I had trusted Ms. Kincaid to believe my sincerity, I would have
gone to her in the hopes that she would dismiss this case and reopen
the Zimmerman investigation. But from the minute she walked over to
the Justice Center to handle the arraignment on this case personally,
your honor, Ms. Kincaid has made it clear that she wants to hammer my
client. So I weighed my options and decided on this one."
I started to defend myself, but Lesh didn't see a need for it. "Ms.
Lopez, I'm letting you know right now that both you and Ms. Kincaid
have appeared before me several times since I've been a judge, and up
until today I've never had reason to question either of your ethics.
Your attempt to impugn Ms. Kincaid's integrity has failed with me. I
hope you understand that. Now, here's what we're going to do. I have
deep suspicions about your intent, Ms. Lopez, in holding your cards so
close to your chest. But it looks like you have stayed within the
letter of the law. So for now you're not in lawyer jail. Consider
yourself lucky."
When a slight smile registered at the edges of Lisa's mouth, Lesh
leaned forward. "Not so fast, Ms. Lopez. Your strategy will have its
consequences. You can't have it both ways. You're going to have to
make your case with the State's witnesses and the ones disclosed on
this sorry witness list. I won't let you parade a couple of convicted
murderers in front of this jury, and I won't let you bring in anything
you can't get through those witnesses. With that in mind, I suspect
that much of what you said in your opening statement is hearsay. At
the end of the trial, I will instruct the jurors that they should
disregard anything you said in opening that wasn't actually proven
through evidence during the case. With that said, it's time we brought
these jurors back in, so we can get on with this trial."
I rose to address him. "Your honor, the State requests a continuance.
I need time to research this defense. I'd like two weeks to
investigate any possible connection between this case and the Zimmerman
murder. I assure the Court and Ms. Lopez that if we determine a
connection, we'll proceed as necessary from there."
I could tell from the way that he tilted his head and smiled that he
sympathized, but he wasn't going to give me any time. "I understand
that you've been put in a jam, but you don't really think you're going
to find a connection between these cases. What you
want is time to
disprove a connection so you can nip this defense in the bud. Trust
me, I understand that desire.
"But Ms. Lopez is right. The defense is not obligated to disclose its
theory ahead of time, only its witnesses and any alibi defense.
Basically, she's allowed to drop these little bombshells. I suspect
it's one of the things that make being a defense attorney entertaining.
If she really wanted to screw you over, she could've waived opening
altogether and hid her cards until testimony."
He told me he'd give me some leeway during rebuttal to recall
witnesses, but it was little consolation.
As an alternative, I moved to exclude any evidence relating to
Zimmerman's murder, at least until I had a chance to file a written
motion to exclude Lopez's defense. In my urgency to point out that
Lisa had been a complete bitch in failing to disclose the defense's
theory, I had almost forgotten to question whether the evidence
supporting Lopez's theory was even admissible. Any connection between
this case and the Zimmerman murder was tenuous at best, so I had a good
argument that, even if the Zimmerman case was minimally relevant, any
relevance was substantially outweighed by its potential to distract and
confuse the jury.
I think Lesh skipped that part of the analysis as well and now saw the
opportunity to get this mess out of his courtroom. The problem was, we
were venturing into a risky area of the law. Trial courts routinely
get reversed on appeal if they completely prohibit a defendant from
presenting his theory. On the other hand, as long as the trial judge
lets the defendant present his theory, the court has tremendous
latitude in excluding evidence that might support it. The fact that I
understood the nebulous distinction between the defendant's theory and
the evidence used to support it made me think I'd become a complete
asshole.
Luckily, Lesh understood the relevant distinction too, so I wouldn't
have to try to explain it.
"I can tell you right now, Ms. Kincaid, that I'm not about to keep the
defense from arguing that someone else might have committed this crime.
But, I'm no Judge Ito either, and you're correct to point out that the
defense doesn't necessarily get to put on whatever evidence it wants.
So, here's what we're doing. Ms. Lopez, either you agree to a
continuance or you call the witnesses you named on your discovery list
before you start calling cops to the stand to talk about the Zimmerman
case."
Lisa objected. Big surprise. "Your honor, it's highly unusual for the
Court to dictate the order in which evidence is presented."
"Well, it's also highly unusual for an attorney to pull the kind of
stunt you've pulled this morning. Think of this as another
repercussion of your strategy." He had noted Lisa's objection but then
forced her to make her choice.
"I have no interest in a continuance, your honor. Mr. Derringer is
eager to go home."
"Very well then, Ms. Lopez. No mention of Jamie Zimmerman, Margaret
Landry, or Jesse Taylor again until I've ruled on these issues. Now
we're taking a twenty-minute recess so we can collect our thoughts."
Forcing Lopez to work her way through the boring stuff first helped me
in a couple of different ways. Obviously, the detectives and I could
use some time poring over the police reports for the Zimmerman murder
to get up to speed, and I could prepare a motion to exclude evidence
about the case. But even if the evidence wound up coming in, Lesh had
provided a more subtle kind of assistance. In the time it would take
Lisa to get through these other witnesses, the jury might forget the
drama of her opening statement, and the defense might lose its
momentum. Along the same lines, it would be hard for Dan Manning to
write a great story when he had no trial testimony to back up the
opening statement yet.
For those reasons, I decided I wouldn't object to testimony relating to
Andrea Martin's arrest for criminal trespass at the Lloyd Center Mall,
although it was blatantly inadmissible. It was better to let Lisa
present that kind of innocuous evidence and hope the impact of her
opening statement wore off before the sexy stuff started. Plus, I
might have a better chance of getting Lesh to exclude the damaging
evidence if I didn't throw a fit over this chippy stuff.
A twenty-minute recess wasn't much, but at least I could update my
investigators so they could start working on it while I was in trial.
I almost knocked Dan Manning on his ass as I was rushing out of the
courtroom. He looked like a high school kid who just won a swimming
pool full of beer and a squadron of cheerleaders to share it with. I
could see his willingness to be sucked into Lopez's defense. It was,
after all, a great story. But I didn't have time to set him straight
and I suspected it wouldn't work anyway. So instead I almost knocked
To save valuable time, I pulled out my cell phone rather than fight the
courthouse elevators to get back to my office.
My first call was to Alice Gernstein, the paralegal in our major crimes
unit. I gave her a quick rundown of what was going on and asked her to
pull the files from the Landry trial from archives and put them on my
chair and to order the trial transcripts. As it turned out, she had
already pulled the stuff for O'Donnell. He had prosecuted Landry and
Taylor and was now part of the investigation into the new letter to the
Oregonian. Alice said she'd make copies for me. I also asked her to
tell O'Donnell that I was going to need to talk to him soon, since he'd
handled the Zimmerman case.
Next, I called MCT. I was lucky. Chuck was out interviewing a
witness, but Ray and Jack were both in. They put me on speaker and I
told them what Lisa had unloaded in her opening.
It was a great opportunity for catty chat about my nemesis, but I told
them I had to make it quick. They had already refreshed themselves on
the Zimmerman case, since they were working on the investigation into
the anonymous letter. I warned them that Lisa might call them back to
the stand to testify about the case.
"Do you have anything yet on the letter?" I asked.
They were silent. I could picture them looking at each other over the
speakerphone, wondering how to tell me that I was outside the official
circle of knowledge. Walker handled it. "This thing's really hot,
Sam. O'Donnell and the lieutenant are going nuts over it, this being
the first execution and all. If anything leaks "
"Hey, forget it. I only asked because it would obviously be a lot
easier to defuse this Lopez stunt if we could show that the letter was
a hoax. If you don't want to tell me "
I heard the line get picked up off the speaker. Walker spoke quietly
into the handset. "Look, don't count on getting anything on the
letter. No prints. No DNA on the envelope or stamp. Typewritten on
plain paper and dropped in a mailbox by the side of a road." Great. No
help for me,
and no help to Chuck. "And Sam," he said. "No one knows,
not even Chuck. I just didn't want you getting your hopes up."
I hung up feeling let down. It would be easiest if I could tie up any
loose ends that Lopez pulled free about the Zimmerman case, but
apparently I couldn't count on that. I would need to convince the jury
that Derringer was guilty, even if they developed doubts about the
guilt of Landry and Taylor.
When court resumed, Lisa called her first witness, the star with the
alibi convicted felon Derrick Derringer.
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