73

Bill Masterson and I had spent a lot of time discussing our order of witnesses. Every trial lawyer knows that you start strong and finish strong and bury all of your weak people in the middle. Rafael Rivera would be the low point of our case, so we would bury him. We decided to start with Dr. Grace O’Leary, who was pretty much bulletproof, and end with Dr. Aaron Gillespie, who was equally unimpeachable. We would put LA on the stand right after Rivera so that LA could do immediate damage control.

O’Leary inspired confidence as she raised her right hand and swore to tell the truth. She had done this a time or two before.

She climbed into the witness box, and I placed my notes on the podium, catching a whiff of the cigarette smoke that trailed behind her. She settled in and lowered the mic. She told the jury good morning, and I started with my preliminary questions about her qualifications.

O’Leary was businesslike and disciplined in her choice of words, her style contrasting nicely with the unruly black hair that looked like it hadn’t been brushed in a week. She exhibited great self-assurance, and she spoke rapidly as if she was anxious to get through the preliminaries so she could tell the jury how Rikki had died.

She testified that she had performed thousands of autopsies. Her résumé contained twenty pages of publications from trade journals and seminars. She had been interviewed extensively on shows like 20/20 and 60 Minutes, so I had her talk about a few of her more interesting cases. She reminded me of a strict elementary school teacher—someone who knew a lot more than you did and didn’t tolerate any nonsense. Spit out your gum. Sit up straight. Dr. O’Leary is talking to you.

I knew it was time to get to the heart of her opinions when I asked her about some consulting work on the Kendra Van Wyck case and she gave me a lecture in response.

“Counsel, I’m sure the jury knows all about the Kendra Van Wyck case. But I’ll bet what they’d really like to hear about are my opinions in this case. And to be blunt, I’m anxious to tell them about this case as well.”

My face reddened, but I didn’t really mind the lecture. It only bolstered the credibility of my witness if she felt the freedom to chew out the prosecutors.

“Then let’s get down to it—do you have an opinion as to what caused Rikki Tate’s death?”

“If I didn’t, we’ve probably wasted a lot of the jury’s time.”

That made a few of the jurors smile.

“Then why don’t you tell me what that opinion is.”

“Rikki Tate died from acute drug poisoning. Specifically, the combination of codeine and oxycodone in her blood caused pulmonary congestive edema, which basically means that her lungs were filled with fluid and she suffocated. The drugs I mentioned are narcotics, which have the effect—if taken in massive doses such as we see here—of repressing and shutting down the central circulatory and respiratory systems, beginning with the lungs.”

“Do you have any doubt that Rikki Tate died from acute drug poisoning?”

“I would stake my professional reputation on it.” Dr. O’Leary gave me a sly smile. “In fact, I guess I already have.”

We spent about an hour discussing the details of the autopsy, including the absence of any trauma or signs of choking or any other cause of death. O’Leary talked about the hair-testing evidence and the finding of promethazine in the blood. She also testified about the specific levels of oxycodone and codeine that were found.

“How do these levels—.74 milligrams per liter for oxycodone and .27 milligrams per liter for codeine—how do these levels compare with other autopsies you’ve done?”

O’Leary made a face and turned to the jury. “These levels are very high. The codeine alone would have killed her. The oxycodone alone would have killed her. Combined, they have an additive effect and basically guaranteed that Rikki Tate would not survive.

“Have I seen higher levels? A few—but most of those are hospice patients who have been on these drugs for a long time and have built up an incredibly high tolerance. Just out of curiosity, I went back and made a chart of over two hundred cases in the past five years involving either oxycodone or codeine as a potential cause of death. Of those, this was the twelfth-highest case of oxycodone concentration and the fourteenth-highest case of codeine concentration.”

So far, I knew O’Leary’s testimony was unassailable. But I wanted to take her one step further because everyone agreed that Rikki Tate had died from a drug overdose. The question that really mattered was whether it was suicide or poison.

“How long had Rikki Tate been ingesting oxycodone and codeine?”

“It’s hard to tell. From the hair testing I described earlier, it’s clear she had been taking some level of oxycodone and codeine for six months. Of course, the distal segments of the hair—those furthest away from her head—showed much lower levels of oxycodone and codeine.”

I moved now to a new piece of evidence—one that would form a central focus of our case. “Are there ways to determine drug use further back than six months?”

Dr. O’Leary shifted in her seat, and it seemed to me that she needed a smoke break. But I wanted to get this critical piece of evidence in first.

“Absolutely. Once you found the evidence on the defendant’s computer that he had reviewed the Van Wyck case, and once Detective Finnegan talked to witnesses who said that Mr. Tate—”

“Objection!” Tate was on his feet. “That’s hearsay.”

“Sustained,” Judge Brown ruled.

I knew that might happen, but I was hoping the jury understood the point I was trying to make. And I was hoping they would remember my opening statement—that it was Caleb Tate who had suggested that his wife cut her hair.

“What did you do, if anything, to determine whether Rikki Tate had been on these drugs for more than six months?”

Dr. O’Leary’s eyes flashed a little smile. This was what she loved—the subtle cat-and-mouse games of the courtroom. “Well, on the off chance that somebody talked Rikki Tate into getting her hair cut so we wouldn’t know whether she had been taking drugs more than six months prior to her death—”

Caleb Tate was on his feet again, looking disgusted. “Come on, Judge, that’s just pure speculation.”

Judge Brown looked slightly amused, but he turned to Dr. O’Leary. “Doctor, please just stick to the facts of what you did.” Turning to the jury, he said, “The objection is sustained, and you should disregard Dr. O’Leary’s prior answer.”

“Sorry, Your Honor,” Dr. O’Leary said. “Anyway, I suggested that we test the victim’s fingernails. She had relatively long fingernails, and I thought we could reach back at least a year by testing them. You basically do the same thing that you do with the hair—grind them up and run them through some gas chromatographs.”

“Did they test the fingernails in the Van Wyck case?” I asked.

“No. So someone reading that case wouldn’t realize that we could go back more than six months by testing the fingernails.”

Tate stood but apparently decided it was no use. He sat back down.

“And what did you find in testing the fingernails?”

“Well, it’s important to understand that when we pulled the fingernails, we divided them into segments at varying distances from the cuticle. In other words, we divided them into segments that would represent growth in the last six months and in the six months just before that. The results showed very low levels—just trace levels—of oxycodone and codeine in the fingernails that represented the growth from six months prior to her death to one year prior. In other words, somewhere around that six-month time frame, the amount of oxycodone and codeine that she ingested increased dramatically.”

“Did you find any promethazine in the fingernail segments that represented the period of time from between six months prior to her death to one year prior to her death?”

“None at all.”

“Did you find any other drugs that you weren’t expecting?”

“Yes. We found trace amounts of morphine.”

“Morphine?”

“Yes. It surprised me too.”

“Did you draw any conclusions based on those findings?”

Dr. O’Leary turned to the jury. Time for the punch line.

“It seemed clear to me that somebody started poisoning the victim with oxycodone and codeine in the last six months. To keep the drugs down, they also gave her promethazine. Perhaps this same person had experimented with morphine prior to that time but realized how unusual it would look for morphine to show up in an alleged drug addict’s blood. Perhaps they waited a few months before changing over to oxycodone and codeine and thought that by having Rikki Tate cut her hair no one would be able to tell.”

I was surprised that she got through the entire answer without an objection from Caleb Tate. Maybe he realized that the jury had already pieced it together, and he would just have to deal with it on cross-examination. Good luck, I said to myself.

“I have no further questions,” I said. “Please answer any questions that Mr. Tate might have.”