David Ellis - The Last Alibi

“Yes, it’s a crude test, but that’s the idea.”

Shauna properly ignores that remark. “On the night of Ms. Himmel’s death, you had Jason’s hands swabbed for GSR at his house, isn’t that true?”

“Yes, I believe we swabbed his hands at some point after we arrived. What Mr. Kolarich did before we arrived is un-”

“You answered my question, Detective. And the results of the GSR test you performed on Jason were negative, correct? No gunshot residue was detected.”

Cromartie, realizing he’s again getting no help from Roger Ogren, stops fighting. “That’s correct.”

“Very good.” Shauna, who hasn’t looked down at her notes once, now reviews them, flips a page. More for a segue than anything else. I’m going to revise my assessment of Cromartie as a witness. He’s fighting unnecessarily with Shauna. All the counterpoints he wanted to make-the GSR test isn’t perfect; I might have washed up, even taken a shower before calling the police to remove any residue from my hands-he will make in redirect with Roger Ogren. To fight with Shauna here has diminished him and highlighted the strength of our position. I would expect more from a veteran cop, and more from Ogren, who probably figured he didn’t need to tell Cromartie these basics, Testifying 101.

“We heard excerpts of your interrogation of my client following the death of Ms. Himmel, didn’t we?”

“We did.”

“This interview took place at four in the morning, correct?”

“Yes.”

“My client hadn’t had any sleep prior to the questioning, correct?”

“Any sleep? No, neither of us had slept.”

“And he was dealing with the loss of a woman with whom he’d shared a romantic history, isn’t that true?”

I like how Shauna phrased that. When she was mock-crossing Cromartie in our office, with me playing Cromartie, I kept nailing her when she said the loss of his girlfriend . Saying it the way she did now- a woman with whom he’d shared a romantic history -sounded innocuous enough but was meaningfully different.

“Dealing with the loss? If killing someone means you’re dealing with the loss, then yeah, I guess he was, y’know, dealing with the loss. It’s kind of like killing your parents and then asking for mercy from the judge because you’re an orphan.”

That line gets some snickers from the gallery, one person laughing outright. The answer jars Shauna to attention. She could object and move to strike the statement, but she doesn’t.

“You don’t know my client killed Alexa Himmel, do you, Detective?”

“It’s what I believe.”

“But you don’t know that for a fact, do you?” She approaches the witness.

“For a fact? I know the evidence strongly-”

“It’s up to these good men and women of the jury to make that decision, isn’t it, Detective?”

He gives an exaggerated sweep of his head. “Of course it is.”

“You don’t get to play accuser and juror , do you, Detective?”

He raises a hand, almost smiling. “Luckily, I do not.”

“The evidence will decide this case, not you. Is that okay with you, Detective?”

“Objection,” Roger Ogren says. “Argumentative.”

“Sustained.” The judge looks over her glasses at Shauna. “We get the point, Ms. Tasker. Let’s move on.”

Shauna, thankfully, doesn’t miss a beat. “My client was sleep-deprived, and a woman with whom he’d been romantically involved for several months had just been found dead in his house. Isn’t that all true, Detective?”

Cromartie starts to answer but pauses, his eyes on the ceiling. “I don’t know about sleep-deprived. It was late, yes. All of us were probably tired.”

“And on top of that,” says Shauna, “my client was under the cloud of a painkiller addiction at the time of the interview, wasn’t he?”

“Oh, objection.” Roger Ogren springs to his feet. “Sidebar, Judge?”

The judge waves him forward. She steps off the bench over to the corner of the courtroom, away from the jury box. The court reporter picks up her stenography machine and joins the attorneys and judge.

I can’t hear them any more than the jury can, but I have a pretty good idea how this conversation is going to go. Shauna and I argued the point, with me playing Roger Ogren, several times over the past week.

Shauna is going to argue that the prosecution plans to use my OxyContin addiction against me, and thus my addiction is fair game. Roger is going to say that there’s no actual proof of my addiction, certainly not at the time of the interrogation, unless I take the stand and testify to it. And Shauna will reply that I received treatment while in custody for my addiction, and she will call the counselors to the stand if necessary to lay the foundation, but she can’t believe Ogren will make her go to that trouble.

I think we’ll win the point, but just to be sure, we had Shauna ask the question first, so the jury would hear it either way.

Shauna makes eye contact with me as she leaves the conference, betraying no emotion but telling me it worked out for us. “Let me restate the question,” she says, reclaiming her spot in the center of the courtroom. “Detective, isn’t it true that at the time my client was speaking with you, he was under the influence of an addiction to a painkiller called OxyContin?”

Cromartie, of course, has had a long time to consider his answer. “I asked the defendant at the beginning of the interview if he was under the influence of any drugs at that time and if he was able to speak with a clear mind, and he said he was able to speak with a clear mind.”

A standard pre-interrogation question, to prevent exactly the type of cross-examination that Shauna is conducting now.

“You didn’t answer my question, Detective.”

“I think I did, Counselor.”

“Then let me ask it again, and the judge can decide. Detective, isn’t it true that at the time my client was speaking with you, he was under the cloud of an addiction to a painkiller called OxyContin?”

That’s three times she’s gotten to say it. And Ogren doesn’t object, because she’s not asking whether I admitted to being addicted at the interrogation-I didn’t-but whether it was true, regardless.

“I don’t know if he was or he wasn’t,” Cromartie says. “I asked him and he said no. That’s all I knew at the time.”

“I’m talking about what you know now , Detective. Are you telling this jury that, as you sit here today, you don’t believe that my client was suffering from an OxyContin addiction at the time you questioned my client? Is that really your testimony?”

“I didn’t say that. We’ve come to believe that the defendant did have that addiction, yes. It’s nice to hear you admit it. I didn’t realize you would.”

Nice jab. The addiction is the third rail in this trial. It plays a significant role in the prosecution’s narrative, a major piece of Roger Ogren’s story that ends with my killing Alexa. Given our choice, Shauna and I would have liked to deny the whole thing. But the problem is that I’ve been treated in jail for the problem, so I can’t really deny it. So instead, we’re embracing it, trying to make the most of it. Shauna will argue to the jury that I was impaired when I submitted to the interview with the police. It can explain some of the-ahem-ambiguities in my statements.

But it cuts the other way, too. It gives the jury a vision of me that is not flattering-out of control, desperate, irrational, quite possibly dangerous, capable of doing things that, ordinarily, would be beyond a well-heeled attorney. Picture those old meth commercials- This wasn’t supposed to be your life! — or the old egg-frying-in-a-pan, This is your brain on drugs ads.