“Take her back. See if she’ll say anything.”
“You want me to be nice?”
I hesitated but only for a moment. I understood the threat and pressure people like Marco and Lankford could bring to bear. If the jury picked up on that, then her flip on the stand might be more valuable than if she had testified truthfully.
“Yeah, be nice.”
Over Cisco’s shoulder I saw Detective Whitten enter the courtroom and take a seat in the back row. He was right on time.
36
As the lead investigator on the Gloria Dayton murder, Detective Mark Whitten had attended most of the trial, often sitting along the rail next to Lankford. However, I had not noticed during the course of the proceedings the two acting much like prosecution teammates. Whitten seemed to keep to himself, almost aloof when it came to Forsythe, Lankford, and everyone else associated with the trial. During trial breaks I had seen him walking by himself back to the PAB. Once I had even seen him in Pete’s eating lunch by himself.
I called Whitten as my next witness. He had already testified for a day and a half during the prosecution phase of the trial. He had primarily been used by Forsythe to introduce evidence such as the video of the La Cosse interview. In a way, he was the narrator of the prosecution’s story, and as such, his testimony had been the longest by far of any witness in the case.
At the time, I had limited my cross-examination to aspects of the video, repeating many of the questions I hit Whitten with during the unsuccessful motion-to-suppress hearing. I wanted the jury to hear him deny that La Cosse had been a suspect the moment Whitten and his partner knocked on Andre’s door. I knew no one would believe that and hoped it would plant a seed of mistrust in the official investigation that would blossom during the defense phase.
I had reserved the right to recall him as a witness, and now was that time. I didn’t need to get a lot from him, but what I was going for was vitally important. It would be the fulcrum on which the case would pivot to the defense’s side of the equation. Whitten, who was in his midforties with twenty years on the job, was an experienced witness. He had a calm demeanor and spoke in a matter-of-fact tone. He was skilled at not revealing the hostility that almost all cops carry for the defense. That was reserved for times when the jury was not present.
After a few preliminary questions that would serve to remind the jury of his role in the case, I moved on to the areas I needed to explore. Defense work is about building foundations for the evidence and angles you want to introduce. That’s what I needed Whitten for now.
“Detective, when you testified last week, you spoke at length about the crime scene and what was found there, correct?”
“That’s right, I did.”
“And you had an inventory of that crime scene and what was found there, correct?”
“Yes.”
“And these were the victim’s belongings and property, right?”
“Yes.”
“Can you refer to that inventory list now?”
With the judge’s permission, Lankford brought the so-called murder book to Whitten. If he had been called by the prosecution, he would have normally taken the witness stand with the thick compendium of all investigative records tucked under his arm. Not bringing it with him to the stand when I called him was a little glimmer of that hostility he was so skilled at hiding.
Working off a copy of the list I had received in discovery, I continued.
“Okay, referring to the inventory list, I see no cell phone. Is that correct?”
“We did not recover a cell phone from the crime scene. That is correct.”
“Now, Mr. La Cosse explained to you, did he not, that he’d been on a call with the victim earlier that evening and that that conversation was the reason he went to her place in person?”
“Yes, that is what he told us.”
“But you found no phone in the apartment, right?”
“Right.”
“Did you or your partner try to find an explanation for this discrepancy?”
“We assumed that the killer took her phones as a means of hiding his trail.”
“You say ‘phones.’ There was more than one phone?”
“Yes, we determined that the victim and the defendant used a variety of throwaway phones to conduct their business. The victim also had a cell phone for private use.”
“Can you tell the jury what a throwaway phone is?”
“These are inexpensive phones that come with a limited number of minutes of call time. When you burn up the minutes, you throw the phone away or in some cases you can reload them with new minutes for a fee.”
“These were used because call records would be difficult to obtain by investigators if the phone was thrown away and you didn’t know where to start looking.”