74
Caleb Tate stood quickly and went to the well of the courtroom, ignoring the podium. “That’s an awful lot of speculation, isn’t it?”
O’Leary gave him a stern look. “I would call it reasonable inference from the medical data. Your wife, may she rest in peace, is telling me a story, and I’m doing my best to pass that along to the jury.”
Tate took a step closer. “People addicted to narcotics tend to need more and more of the same drug to get the same effect; isn’t that correct?”
“Of course.”
“That’s why some of the highest blood levels on your list came from hospice patients, isn’t that right?”
“Yes. And as far as I know, your wife was not a hospice patient.”
Tate froze for a moment, staring at the doctor. “Do you think this is funny?”
“No, I think this is a horrible tragedy. And I hope you do as well.”
“I lost my wife. I haven’t been able to sleep since the night I found her dead. I would trade places with her if I could—”
I jumped up. “Objection. He’s testifying, not asking questions.”
“She’s right,” Judge Brown snapped. “Stick to questions.”
Tate chewed this over for a moment. I knew this was a show for the jury and that he already had his next line of attack prepared. “You can’t rule out the possibility of an accidental drug overdose, can you?”
“Anything’s possible.”
“You’re aware that the police found pill bottles with OxyContin and codeine in the bottom of my wife’s dresser drawer?”
“I was aware of that.”
“And that those bottles had her fingerprints on them and not mine?”
“I would presume that if you are smart enough to poison your wife, you would also be smart enough to use gloves when you handled the pill bottles. I would also presume that you’d be smart enough to make sure her hand touched those bottles one way or another.”
O’Leary’s answer made me relax. I was usually tense when my witnesses were cross-examined. I felt helpless watching the other attorney hammer away, knowing there was nothing I could do about it. But O’Leary could handle herself. And Caleb Tate’s ego was way too big for him to do the smart thing—sit down and shut up.
“Fingernail testing is much less reliable than hair testing, is it not?”
“There are more possibilities for false positives, yes.”
“That’s why you didn’t do the fingernail testing in the first place. Right?”
“That’s correct.”
“So let me ask you a few questions about the morphine.”
Tate had recovered some, and his voice was picking up confidence. He had learned about the morphine when we turned over the fingernail tests as part of our Brady materials—any exculpatory or impeachment information favorable to the accused.
“The morphine didn’t show up in the hair?” he asked.
“No.”
“It only showed up in the fingernail testing, which, as we just established, tends to have more false positives.”
“Because of the length of the fingernails, we were able to test for drug use over a longer period of time. The tests indicate the morphine was taken more than six months prior to her death.”
“Are you aware that my wife had an affair about two years ago?”
“I was told that. I don’t know it to be true.”
“Well, let me assure you that it’s true—”
I was up again. “He’s testifying, Judge.”
“Approach,” Judge Brown demanded.
Caleb Tate and I went to the bench and stood side by side. “Mr. Tate, she’s right. You need to quit testifying. Don’t think I don’t know exactly what you’re trying to do.” Judge Brown then turned to me. “And you can make your objections without pointing out the fact that he’s testifying. Every time you say that, it comes dangerously close to highlighting the possibility that he might take the Fifth Amendment and refuse to testify. You know prosecutors can’t comment on that.”
I bit my tongue. I was determined not to pick a fight with Judge Brown in this trial, and I reminded myself of that. “Yes, Your Honor,” I said.
I returned to my seat, and Caleb Tate returned to the well of the courtroom. “Do you know the name of the man my wife had her affair with?”
“No.”
“And therefore you don’t know whether he was a recreational drug user or not.”
“I’m a medical examiner, not a detective.”
“That’s exactly my point,” Tate fired back. “You don’t know where my wife might have obtained these drugs.”
“First of all, my understanding is that the affair occurred two years prior to her death. The fingernail tests only measure back just over a year. And second, I don’t know many recreational drug users who get high on liquid morphine.”
“But isn’t it true that heroin metabolizes into certain compounds when it’s processed by your body and that one of those compounds is morphine?”
“Yes, that’s true.”
“So even if the fingernail testing was right and my wife had morphine in her body, that could have been caused by using heroin; isn’t that correct?”
Dr. O’Leary made a face. “Not really.”
The response was classic O’Leary. She threw it out there as a challenge. She was hoping Tate would be foolish enough to ask why. And she knew that even if he wasn’t, I would circle back around on redirect.
But Tate was no rookie. He smiled and put his right hand in his pocket. “Okay, I’ll bite. Why did you say, ‘Not really’?”
“Because when heroin metabolizes in your body, it produces not only morphine but also a substance called 6-acetylmorphine, which is found in the vitreous humor fluid. That’s the eye fluid of the victim. In Rikki’s case, we found no 6-acetylmorphine.”
It was a “gotcha” moment for O’Leary, but Caleb Tate didn’t seem fazed by it. He walked slowly back to his counsel table and leafed through some papers until he found what he was looking for. He asked his next question while holding the document.
“But 6-acetylmorphine has a relatively short half-life, doesn’t it? It breaks down over time until it processes itself out of the body.”
“I see you’ve done your homework,” Dr. O’Leary said. “Of course it has a half-life, but I would still expect to see some amount of 6-acetylmorphine in Rikki’s eye fluid—depending on the exact date that she injected heroin.”
“But the half-life for the 6-acetylmorphine is shorter than the half-life for morphine—isn’t that right?”
“That’s correct.”
“So it’s possible, if Rikki experimented with heroin with one of her lovers well before her death, that the heroin might have broken down into 6-acetylmorphine, which processed itself out of the body, and morphine, which was still found in Rikki’s fingernails.”
“Mr. Tate, there are a lot of things that are possible. But I’m here to testify about the medical probabilities. And in my view, it is not probable that your wife just happened to experiment with heroin at the precise point in time that we would later find morphine in her system but not 6-acetylmorphine.”
It was a good response, but Tate had also made his point. And he was smart enough to know when to quit. “That’s all I have for this witness,” he said.
The rest of the day was much less eventful. I called the toxicologist who had generated the results for both the hair testing and the fingernail testing. I paraded five other witnesses to the stand to show the chain of custody for the tests. Through one of the officers involved in executing the search warrant, I introduced a number of exhibits found in Caleb Tate’s home. It wasn’t necessarily riveting testimony, but brick by brick, I was methodically laying the foundation for my case.
That night I watched a little of the news coverage, which featured O’Leary’s testimony. In the eyes of the press, we had scored some major points on the first day of trial.
But that was to be expected, and it gave me no solace. I knew the commentators would have a different perspective after Rafael Rivera took the stand on Friday. Besides, the commentators didn’t matter.
And as for the twelve people who did, it had been impossible to read their expressions.