Joseph Teller - Guilty As Sin

SHAUGHNESSEY: And the package seized from the defendant at the time of his arrest?

KASMIROV: I found the weight to be 124.8 grams. That’s just under an eighth of a kilogram, or about 4.4 ounces. Once again, I tested for the presence of heroin hydrochloride and the results were positive.

SHAUGHNESSEY: Now, these lab reports you prepared. Were they prepared in the ordinary course of business at the lab?

Jaywalker knew the ritual, the legalese required to admit business records as an exception to the hearsay rule. The next question would be, “And was it the ordinary course of business at the lab to prepare such reports?” He rose to his feet and magnanimously stated that he had no objection to the reports being received in evidence.

The fact was, he actually wanted them in.

He needed them in.

“Received in evidence,” said the judge.

Miki Shaughnessey thanked her witness and sat down. Her entire direct examination had taken less than fourteen minutes.

Jaywalker’s cross would take considerably longer.

JAYWALKER: Good morning. Is it Ms. Kasmirov, or Dr. Kasmirov?

KASMIROV: In the Soviet Union I was Dr. Kasmirov. Here I’m not sure how it works.

JAYWALKER: But you won’t object if I call you Doctor?

KASMIROV: I won’t object.

JAYWALKER: Good. Dr. Kasmirov, in response to Ms. Shaughnessey’s questions, you essentially described performing both a quantitative analysis of the drugs you examined in connection with this case and a qualitative analysis. Correct?

KASMIROV: That is correct.

JAYWALKER: In other words, how much the substances weighed and what they contained.

KASMIROV: Correct.

JAYWALKER: Let’s talk about the weights first, okay?

KASMIROV: Okay.

JAYWALKER: Starting with the first buy. You found that its net weight was 1.01 grams. Can you tell us how close that was to weighing exactly one gram?

KASMIROV: It was off by only one one-hundredth of a gram. In other words, if it was supposed to be a gram, it was off by about one percentage point.

JAYWALKER: And skipping to the third quantity of drugs you analyzed. That you found to weigh 124.8 grams. If that was supposed to be an eighth of a kilogram, how close was it?

KASMIROV: Well, a kilogram is a thousand grams. An eighth of that would be 125 grams. So 124.8 would be off by only two-tenths of a gram. I would need a calculator or paper and pencil to compute the margin of error.

JAYWALKER: Here. [Hands calculator to witness]

KASMIROV: It comes out to.00016, or sixteen-thousandths. That’s a small fraction of one percentage point.

JAYWALKER: In other words, very, very close.

KASMIROV: Yes.

JAYWALKER: So close as to suggest that whoever had measured it out used a very sophisticated scale. Would you agree?

KASMIROV: I would agree, yes.

JAYWALKER: Now let’s go back to the one we skipped, the second buy. There you found the net weight to be 25.8 grams. Correct?

KASMIROV: Correct.

JAYWALKER: Assume for a moment that that buy was supposed to have been one ounce. Can you tell us how close it actually was?

KASMIROV: Well, an ounce contains 28.35 grams, rounded off to two decimal points. The difference would have been 2.55 grams.

JAYWALKER: In other words it was more than two and a half grams short?

KASMIROV: Yes.

JAYWALKER: And the margin of error?

KASMIROV: May I use the calculator?

JAYWALKER: Of course.

KASMIROV: More than nine percent off, almost ten.

JAYWALKER: Where did it all go?

KASMIROV: Some might have been lost during field-testing.

JAYWALKER: But only a tiny bit, right?

KASMIROV: I should think so.

JAYWALKER: And if the first and third batches were field-tested, as well, they appear to have lost almost nothing in the process. Agreed?

KASMIROV: I agree.

JAYWALKER: So where did those two and half grams-almost ten percent of an ounce-go?

KASMIROV: I can’t tell you.

Jaywalker walked back to the defense table and dug out a file. Although dug out was only what it looked like. The truth was, he’d had the file right where he could find it since three o’clock that morning. Now he drew two sheets of paper from it. One he handed to Miki Shaughnessey. The other, the original, he gave to the court reporter, asking that it be marked Defendant’s Exhibit A for identification.

JAYWALKER: Dr. Kasmirov, I hand you this item and ask you to take a look at it.

KASMIROV: [Complies]

JAYWALKER: Have you seen it before?

KASMIROV: No, I don’t believe so.

JAYWALKER: Are you able to tell us what it is?

KASMIROV: Yes. It’s a lab report prepared by someone at the police department’s lab. It describes an analysis of drugs recovered from a man named Clarence Hightower, also known as “Stump,” at the time of his arrest.

JAYWALKER: I offer it in evidence.

Now by rights Miki Shaughnessey could have objected. For one thing, it was hearsay, since Jaywalker hadn’t subpoenaed anyone from the lab to authenticate it as a business record. There simply hadn’t been time for him to do it the right way. Beyond that, its relevance was far from clear.

But one of the things that happens when the defense allows the prosecution to do things without objection is that the prosecutor-particularly a young and inexperienced prosecutor-feels compelled to match that display of goodwill. Jaywalker was betting that the last thing Shaughnessey wanted to do was seem threatened by a piece of paper. She had a winner of a case, an open-and-shut conviction. Would she dare jeopardize that by being perceived as fighting to keep evidence out of the trial?

SHAUGHNESSEY: No objection.

THE COURT: Received as Defendant’s A.

JAYWALKER: Thank you. What does this lab report tell you, Dr. Kasmirov?

KASMIROV: It tells me that what was recovered from Mr. Hightower had a net weight of one-eleventh of an ounce plus 4.6 grains. They use avoirdupois weight over there.

JAYWALKER: And the metric equivalent?

KASMIROV: [Using calculator] Let me see. It comes out to just about two and a half grams. Aha!

If any of the jurors had missed the significance, there was Olga Kasmirov’s spontaneous “Aha!” to highlight it for them. Was it just a coincidence that Clarence Hightower had ended up with the exact amount of heroin in his pocket that had mysteriously disappeared from the ounce Agent St. James had received from Alonzo Barnett on the second buy?

But Jaywalker was only halfway there.

JAYWALKER: Now, the lab report tells you still more, doesn’t it, Dr. Kasmirov?

KASMIROV: Like what?

JAYWALKER: Like what else was in those two and a half grams besides heroin. Right?

KASMIROV: [Examining report] Right.

JAYWALKER: What else was in there?

KASMIROV: [Reading] Lactose, dextrose and quinine. Although it doesn’t say how much of each.

JAYWALKER: Yes, too bad about that.

SHAUGHNESSEY: Objection.

THE COURT: Sustained. Strike the comment.

JAYWALKER: What is lactose?

KASMIROV: Lactose is milk sugar.

JAYWALKER: And what is dextrose?

KASMIROV: Dextrose is sugar from fruits or vegetables. In this case it’s most likely from corn syrup.

JAYWALKER: What are they doing in heroin?

SHAUGHNESSEY: Objection. How can she say?

JAYWALKER: She’s an expert. I’m asking her to give us her opinion.

THE COURT: Yes, overruled. You may answer the question if you can.

KASMIROV: A seller will add either lactose or dextrose to heroin as a diluent, to bulk up the heroin and make more of it. At the same time, it reduces the strength of the heroin, brings it down to a level where it can be safely injected or snorted by the user. Though it’s a bit unusual to see both lactose and dextrose present in a single sample. It’s redundant. They do exactly the same thing.