trauma and that this could have occurred before death?"
"It's possible."
I take a long breath. He has opened the door just a crack.
"Let's assume, for a moment, that the victim was knocked unconscious by blunt-force trauma before the cable tie was applied. Is it not fair, then, to assume that she would be lying down on the ground or the floor, or at least not standing on her own two feet, when the cable tie was applied?"
"I suppose. It's possible." He is now slipping behind the curve in the game of possibilities.
"Possible? If she were unconscious, how could she be standing?"
"She couldn't. She would be in a supine position."
"Lying down. In fact, collapsed. Isn't that true?"
"Yes." Schwimmer can see where I am going, but he can't avoid it.
"And if this were the case, if she were lying down, then the cable tie could easily have been placed around her neck and the end slipped into the yoke afterward?"
"I suppose."
"And in that case the assailant would not have worried about
which hand was dominant in order to pull the cable tie tight, would he?"
"Oh, I think he would still use his dominant hand."
"Yes, but if the victim were lying down, we don't know whether the assailant was standing over her head facing her feet when he pulled the tie closed, do we?"
He sees the problem.
"In that case, the killer would be pulling the cable tie closed with his right hand in order to have the tail of the tie pass from right to left through the yoke. He could be kneeling on her shoulder, reaching across his body and pulling it like he was starting a chain saw. Isn't that a fact, Doctor?"
"Well, if the relative positions of the parties are changed ..."
"What's changed is that the victim is down and unconscious," I tell him.
"And if that's the case, then your opinion as to the killers dominant hand is no longer relevant, is it?"
"No. Assuming those facts."
It wasn't hard for the cops to determine that David Crone was left-handed, and to tailor their case accordingly.
"So that we're clear, if the victim were lying down, since she could have been approached from any angle, is there any way to be certain which hand was used to tighten the cable tie?"
He thinks for a moment, looking for some way out, then concedes the point.
"No."
"Nor is there any way to determine the height of the assailant, is there? If the victim were on the ground."
"No."
"So the killer could have been a right-handed midget for all we know."
I don't get a response from Schwimmer, at least not a verbal one.
"Not to make light of the victim and what she lost," I say, "but the fact is that all your testimony about the pain and suffering, the fear and agony brought out by Mr. Tannery in his direct, all that would be
similarly in error if the victim had been rendered unconscious by one or more sharp blows to the head. Isn't that a fact?"
"Yes. But we don't know if she was rendered unconscious."
"We don't know that she was not, do we?"
"No."
"All we know is that someone killed her. We don't know how tall he or she was, or which hand he or she used." I don't make a question of this, something he can argue with.
"That's all, Your Honor."
chapter four
She sits on her mom's lap and looks at me with big brown eyes under a mop of shaggy hair that hasn't been clipped in months. Penny Boyd doesn't like having her hair cut, and given her condition, her mother no longer makes her do things she doesn't like. Penny is nine. She will be lucky if she sees her next birthday.
I first met her with her mom and dad at aPTA function almost a year ago. At the time, Penny seemed fine, just another healthy fourth grader. Her parents, Doris and Frank Boyd, have two other children: twelve-year-old Jennifer, my daughter Sarah's best friend, and a boy, Donald, who is seven. But Doris and Frank harbor a terrible secret. The family lives under a dark cloud that Penny and her siblings still do not comprehend. I have had to keep the specifics from Sarah and develop codes when
"It's possible."
I take a long breath. He has opened the door just a crack.
"Let's assume, for a moment, that the victim was knocked unconscious by blunt-force trauma before the cable tie was applied. Is it not fair, then, to assume that she would be lying down on the ground or the floor, or at least not standing on her own two feet, when the cable tie was applied?"
"I suppose. It's possible." He is now slipping behind the curve in the game of possibilities.
"Possible? If she were unconscious, how could she be standing?"
"She couldn't. She would be in a supine position."
"Lying down. In fact, collapsed. Isn't that true?"
"Yes." Schwimmer can see where I am going, but he can't avoid it.
"And if this were the case, if she were lying down, then the cable tie could easily have been placed around her neck and the end slipped into the yoke afterward?"
"I suppose."
"And in that case the assailant would not have worried about
which hand was dominant in order to pull the cable tie tight, would he?"
"Oh, I think he would still use his dominant hand."
"Yes, but if the victim were lying down, we don't know whether the assailant was standing over her head facing her feet when he pulled the tie closed, do we?"
He sees the problem.
"In that case, the killer would be pulling the cable tie closed with his right hand in order to have the tail of the tie pass from right to left through the yoke. He could be kneeling on her shoulder, reaching across his body and pulling it like he was starting a chain saw. Isn't that a fact, Doctor?"
"Well, if the relative positions of the parties are changed ..."
"What's changed is that the victim is down and unconscious," I tell him.
"And if that's the case, then your opinion as to the killers dominant hand is no longer relevant, is it?"
"No. Assuming those facts."
It wasn't hard for the cops to determine that David Crone was left-handed, and to tailor their case accordingly.
"So that we're clear, if the victim were lying down, since she could have been approached from any angle, is there any way to be certain which hand was used to tighten the cable tie?"
He thinks for a moment, looking for some way out, then concedes the point.
"No."
"Nor is there any way to determine the height of the assailant, is there? If the victim were on the ground."
"No."
"So the killer could have been a right-handed midget for all we know."
I don't get a response from Schwimmer, at least not a verbal one.
"Not to make light of the victim and what she lost," I say, "but the fact is that all your testimony about the pain and suffering, the fear and agony brought out by Mr. Tannery in his direct, all that would be
similarly in error if the victim had been rendered unconscious by one or more sharp blows to the head. Isn't that a fact?"
"Yes. But we don't know if she was rendered unconscious."
"We don't know that she was not, do we?"
"No."
"All we know is that someone killed her. We don't know how tall he or she was, or which hand he or she used." I don't make a question of this, something he can argue with.
"That's all, Your Honor."
chapter four
She sits on her mom's lap and looks at me with big brown eyes under a mop of shaggy hair that hasn't been clipped in months. Penny Boyd doesn't like having her hair cut, and given her condition, her mother no longer makes her do things she doesn't like. Penny is nine. She will be lucky if she sees her next birthday.
I first met her with her mom and dad at aPTA function almost a year ago. At the time, Penny seemed fine, just another healthy fourth grader. Her parents, Doris and Frank Boyd, have two other children: twelve-year-old Jennifer, my daughter Sarah's best friend, and a boy, Donald, who is seven. But Doris and Frank harbor a terrible secret. The family lives under a dark cloud that Penny and her siblings still do not comprehend. I have had to keep the specifics from Sarah and develop codes when
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