William Bernhardt - Dark Justice

“How exactly would Gardiner catch on fire?”

“His clothes would probably ignite first. Cottons are somewhat more flame-retardant. Nylons and polyesters-which the victim was wearing-burn very quickly. Once the clothes caught fire, of course, unless the flames could be quenched, the body would soon begin to burn.”

“And how would that feel?”

“Objection!” Ben shouted. “She’s trying to inflame the jury.”

Pickens’s expression was grave. “I wasn’t kidding about that room with the barred windows, counsel. You’re overruled. Now sit down.” He nodded toward the witness. “You may answer.”

“Well,” Tobias started hesitantly, “I don’t think I have to tell anyone here that being burned is an … unpleasant experience. Most people who have been through it say it’s the most intense feeling of pain anyone can experience. And in a situation like this, when the entire body was consumed, when death was certain, when there was no help or relief in sight …” He shook his head. “Well, I’m sure the pain was just … unimaginable.”

“Would Mr. Gardiner have been likely to pass out?”

“We’d like to think so. But there’s no medical basis for that assumption. To the contrary, given that he apparently moved some distance away from the exploded machinery, I’d have to say he was probably conscious very close to the time of his death.”

Ben pressed his hand against his forehead. This testimony was grossly objectionable and prejudicial, but Pickens had already ruled, and if Ben stood up again, Zak would probably be representing himself for the rest of the trial.

He glanced over his shoulder, wondering what effect this hideous testimony was having on the bereaved widow. To his surprise, he spotted no widow in the gallery. Everyone appeared affected by the testimony; several people had tears in their eyes. But he saw no trace of Lu Ann Gardiner.

“And how long would it be, Dr. Tobias? Until death occurred.”

“I can’t say with precision.”

“Dr. Tobias, would it have been a quick death?”

Tobias’s chin fell. “Not particularly, no. It could have been eight, ten minutes from when he first caught on fire until he was actually dead. And I expect every one of those minutes seemed like days. Agonizing, unbearable days.”

“Thank you, Dr. Tobias.” Granny turned away from the podium, her face grim and set. “No more questions.”

Ben had hoped the judge would call for a break, to give the jury some breathing space and to break the grim mood Granny had established during her direct examination. Unfortunately, he didn’t, and Ben knew why. He’d seen Pickens glance once too often at the clock on the wall. Pickens was hoping that if they blazed straight ahead, they might finish the witness before closing time.

There was no point in revisiting Tobias’s testimony about Gardiner’s hideous pain and suffering prior to death. Although the good doctor had engaged in considerable speculation and Ben could probably drive holes through his testimony in several places, it would serve no purpose. Best not to even remind the jury about that business. Instead, Ben would focus on the one aspect of Tobias’s testimony that might actually incriminate his client.

Ben squared himself behind the podium. “Let’s talk about the time of death.”

Tobias seemed open and compliant. “Whatever you want.”

“You gave an opinion about the time of Dwayne Gardiner’s death, didn’t you?

“That’s right. About one in the morning.”

“It’s standard procedure for coroners to give an opinion about the cause of death, isn’t it?”

“I believe so, yes.”

“But in most cases, that opinion is based upon medical evidence, isn’t it?”

“I … would assume so, yes.”

“But yours wasn’t, was it?”

“I’m not sure what you-”

“Dr. Tobias, what are the standards by which a coroner establishes the time of death?”

Tobias seemed a bit unsure-the traditional wariness of the witness who hasn’t quite figured out where the cross-ex attorney is trying to lead him. “Different doctors use different methods.”

“Well, there’s body temperature, for starters. That’s one way, right?”

“Certainly. Of course.”

“But that wasn’t any help to you in the Gardiner case, because the corpse had been burned. Right?”

“That’s true.”

“And sometimes time of death can be determined from the contents of the corpse’s stomach, true?”

“True. Absolutely true.”

“But that didn’t help you either, right? Due to the amount of damage the remains had suffered.”

“That’s correct.”

“And so, not having any actual medical evidence at your disposal, you decided to guess.”

Granny flew up. “Your honor, I object.”

Pickens’s teeth were grinding together. “Mr. Kincaid, I’ve had about enough of your misbehavior.”

“Your honor,” Ben said, “the jury has a right to know which of the witness’s opinions are based on medical evidence, and which of his opinions are pure pie-in-the-sky guesswork.”

“This man is the coroner for the entire county!” Pickens barked. “You will treat him with the respect he deserves. If you can’t manage to do that, I’ll have you replaced by someone who will.”

“Yes, your honor.” Ben sensed it was time to back down; Pickens was near the eruption point. “Dr. Tobias, your conclusions regarding the time of death were not based upon medical evidence, were they?”

“I disagree. Based upon my examination of the extent of the injuries, I determined that death would follow about eight or ten minutes after the body first caught fire.”

“But that didn’t give you a time of death. You only got the time of death by guessing.”

“Well, I had reports of the explosion-”

“Exactly. You had hearsay accounts from people who aren’t on the stand and can’t be cross-examined. And hearsay accounts do not constitute medical evidence.”

Granny was back on her feet. “Your honor, this man is an expert witness. He’s allowed to consider hearsay when reaching his expert conclusion.”

“I’m not saying he isn’t,” Ben shot back. “I just want the jury to understand that some of his opinions are based on medical fact and some of them aren’t.”

“But your honor,” Granny insisted, “he’s suggesting that-”

“Would you two stop bickering?” Judge Pickens snapped. “This isn’t moving the trial along. Let’s get back to the questions.”

At least this time Granny got to share some of Pickens’s wrath. “Of course, your honor.” Just grin and bear it, he told himself. There had been a time when Ben took these sorts of attacks from the judge personally, when he worried and fretted about them. These days he realized they were just part and parcel of life as a defense lawyer-and even more so when you’re the out-of-towner. Best to smile placidly and plow right ahead.

“Dr. Tobias, isn’t it true that your only information regarding the time of the explosion came from third parties?”

“Yes,” he said wearily. “That is true.”

“So if those loggers had told you the explosion had occurred around two, you would now be telling the jury Mr. Gardiner died eight or ten minutes after two.”

“I suppose so.”

“And if they’d said the explosion was at three-”

“Yes, yes. I’d have said ten past three. What’s your point?”

“The point is that if in fact the explosion was not at one in the morning but at two, then my client might not have been in the forest. Right?”

“I don’t have any idea when your client was in the forest.”

“Dr. Tobias, I think that’s the absolute truth. All you know is that Mr. Gardiner died eight or ten minutes after the explosion. But you yourself have no idea when that actually was. Right?”