Chapter 7
Chain of Custody
The courthouse reopened in stages, like a patient being taken off oxygen.
In June, one courtroom was allowed to hold hearings with plexiglass between the bench and the well and tape on the floor of the gallery in six-foot intervals. In July, a second. Judges wore masks that made them sound as if they were speaking from the bottom of a well. Lawyers learned to read each other by the eyebrows. And in the third week of August, in a room on the second floor that smelled of disinfectant and hot carpet, Judge Whitcomb-Rhodes took her seat, looked down at the empty gallery, and said that she would hear argument on the defendants' motion to suppress the forensic evidence in State v. Pruitt, et al., beginning Tuesday.
"Suppress the kit," said Detective Beck, in the hall. "That's what the motion is. All of it."
"On what grounds?" said Corinne.
"Chain of custody."
She was wearing a navy dress and a paper mask. Her mother stood beside her in scrubs, because she had come straight from a shift. Marcia Lenoir had asked them both to come early, and had then not come out of her office for twenty minutes.
"Explain it to me like I'm a stranger," said Corinne.
"You're not a stranger. You're the best-informed victim in the state."
"Explain it anyway."
Beck took out a toothpick, looked at it, and put it back in his pocket. "When a nurse collects evidence, she seals it in a box. Red tape across the lid, initials across the tape, date and time. After that the box has a history. Every person who touches it signs a log. If there's a hole in the log, a gap, a stretch where nobody can say who had it, a defense lawyer can stand up and say the evidence might have been tampered with. And if the judge agrees, the jury never hears about it."
"I was at the hospital for four hours. Denise sealed it in front of me."
"She did. She'll say so." He looked at the floor. "It's what happened after that."
What happened after that took Marcia Lenoir most of an afternoon to explain, and she did it with the help of a diagram on a legal pad, drawn with a pencil, in small careful boxes joined by arrows.
At 9:40 on the morning of the fifteenth of June, 2019, Nurse Armitage had sealed the kit and handed it to the hospital's security officer, who had logged it at 9:45 and locked it in a refrigerator in the pathology suite.
At 4:15 that afternoon, a deputy from the Pruitt County Sheriff's Office had signed for it and carried it to the county evidence room, as required by an agreement between the hospital and the sheriff.
The evidence room's log recorded its arrival at 4:48 p.m. It was assigned a bin number and a barcode.
On the eighteenth of June, it was sent to the state crime laboratory in Decatur.
"That's the official history," said Lenoir. "Four entries. Everything accounted for."
"But?" said Corinne.
"But in the course of discovery we received the sheriff's own internal log. A different document. A handwritten ledger that the evidence clerk keeps in a drawer, for her own protection." She turned the pad around. There was a fifth box, drawn with a dotted line. "It shows that the kit was signed out of the evidence room at 2:15 a.m. on the sixteenth of June. A Sunday night. Eight hours after it came in. It was returned at 6:05 a.m."
"By who?"
Lenoir didn't answer at once. She looked at Detective Beck. Beck looked at his hands.
"By a deputy named Sutter," he said.
The room was very quiet. Somewhere beyond the wall, a printer was making the slow insectile noise of a thing that has been left running.
"Dale Sutter," said Corinne.
"Yes."
"Who was at the lake house."
"He's the defendant, Corrie," said Lenoir. "That's what I need you to see. The man who is charged with obstruction, in the case where the evidence is the thing he is alleged to have obstructed, took the evidence out of a locked room in the middle of the night and had it for four hours. Alone. Nobody knows why. Nobody has ever asked him. When we asked, in discovery, his lawyer produced a signed statement that he had gone in to retrieve a separate item, in a separate case, and had inadvertently signed the wrong line."
"And you believe that?"
"I don't have to believe it." Lenoir pressed her fingertips against her closed eyes. "The question isn't whether I believe it. It's whether I can prove that the kit was tampered with. And I can't. The seal is intact. The lab report says nothing is missing. The DNA, as a matter of fact, is extraordinarily strong. There is a mixed profile of three male contributors, and when the lab ran the reference swabs we took from Mr. Pruitt, Mr. Maddox, and Mr. Boyle, all three matched."
"Then it's proof."
"It's proof that they had sexual contact with you. It's not proof of the how. The defense will say it was consensual. They'll say you were intoxicated and confused. They'll say that you've an unreliable memory of your own consent, and that the three of them, in good faith, believed you were willing."
"Three men."
"Yes."
"At once."
"They'll say," said Lenoir, with terrible gentleness, "that you've told investigators you don't remember."
Corinne looked at the diagram. The pencil lines were very neat. In the fifth box, the dotted one, she could see the shape of the tiny letters Lenoir had put inside it. D.S.
"And the motion to suppress?"
"If the judge accepts the chain-of-custody argument, she can exclude the kit and everything derived from it. The DNA. The nurse's testimony about injuries. The photographs." Lenoir lifted her head. "I think it's a bluff. I think Crane is hoping that she'll decide the entire kit is tainted because of one entry in a clerk's private ledger. I think he's trying to make me choose between the DNA and the argument that Dale Sutter obstructed. If I say the kit was tampered with, I've told the jury that evidence was unreliable. If I say it wasn't, I've told the jury that Dale Sutter is not guilty of the one thing I charged him with."
"A trap."
"A very good one."
"Can you win it?"
"Honestly?" Marcia Lenoir looked, for a second, like a woman who had not slept in a month. "I'd say it's sixty-forty. In our favour."
It was the first time in a year that she had given a number.
She did not come away from the hearing with a number. She came away with an afternoon.
It was the twenty-fifth of August, a Tuesday. It was unbearably hot. The tape on the courtroom floor was starting to peel. The air-conditioning had been turned up to fight the virus and was roaring in the vents like a distant train, and from the second row, in a mask that fogged her glasses, Corinne watched a stranger do what she had once been trained to do.
The court reporter, a young man this time, with a ponytail and an earring, sat at the left of the bench with his hands poised. His fingers hardly moved. They simply pressed chords, in a small steady rhythm, like a man playing a very quiet piano.
"Ms. Delacroix is out sick," Marcia Lenoir whispered, noticing her watching. "That's Danny. He's good."
"He's fast."
"Is that a compliment?"
"It's an observation."
Hollis Crane stood at the lectern, one hand resting lightly on its edge.
"Your Honor," he said. "I wish to be very clear about what we are not saying. We are not accusing the State of misconduct. We are not accusing the Pruitt County Sheriff's Office of malice. We are merely observing that between the hours of two and six a.m. on the sixteenth of June, the central physical evidence in this case was in the sole custody of an individual who has since been indicted for the very crime of tampering with it. The State's own witness has testified that the log shows a gap. Whatever the reason for that gap, whatever the innocent explanation, it creates a reasonable possibility of contamination. And a reasonable possibility, Your Honor, is the standard."
"It is the standard for admissibility," said Judge Whitcomb-Rhodes. "Not for guilt."
"Quite so. I'm grateful for the correction."
He said it so smoothly that half the room did not notice that he had not been corrected at all.
On the third day, the evidence clerk, a woman of fifty-eight named Bernice Tolliver, was called to the stand.
She had worked in the Pruitt County evidence room for thirty-one years. She wore a lavender blouse and a mask printed with small flowers, and she held her handbag in both hands in her lap as she was sworn. She was a nervous witness, Corinne saw at once. She looked at the clerk, and the judge, and then, without meaning to, at the defense table, where five men sat in a row, in grey and navy suits, with their hands folded.
"Ms. Tolliver," said Crane, with great respect. "You keep a private ledger."
"Yes, sir. For my own protection."
"Can you tell the court why?"
"A long time ago a deputy lost a bag of marijuana, and said I'd taken it." She cleared her throat. "I didn't. But after that I wrote everything down."
"A very prudent habit." Crane smiled. "In your private ledger, you recorded that Deputy Sutter signed out Evidence Item 19-0614-A at 2:15 a.m. on the sixteenth."
"Yes, sir."
"Were you present?"
"No, sir. I'd gone home at ten. It's what the night officer wrote. A man named Pickett. I copied it down the next morning."
"So you can't say what Deputy Sutter did with the box."
"No, sir."
"You can't say whether he opened it."
"No, sir."
"You can't say whether the seal was intact when he took it."
"Oh, it was intact. I checked it myself on the seventeenth. The seal was fine."
"Thank you." Crane's voice softened further. "And can you say, Ms. Tolliver, whether the seal might have been replaced?"
Bernice Tolliver was silent.
"Ms. Tolliver?"
"I don't know what you mean."
"Red tape, madam. Evidence tape. It comes in rolls. Is it possible to remove a piece of tape from a box, to open the box, to remove or alter a portion of what is inside, and to put on a new piece of tape of the same kind, signed with the same initials?"
"It's, I suppose, anything's possible."
"I'm asking whether it's possible."
"Yes, sir."
"Thank you. No further questions."
Marcia Lenoir rose for redirect. She stood a long moment, with her hands flat on the table, and Corinne saw that her knuckles had gone pale.
"Ms. Tolliver," she said. "Did you have any reason to think the tape on that box was not the original tape?"
"No, ma'am."
"Did you notice anything unusual?"
"No."
"Then why did you write something in your ledger on the seventeenth?"
There was a pause. In the long strange quiet of the half-empty courtroom, Corinne heard the young court reporter's fingers stop.
"Ms. Tolliver?" said the judge gently.
"It's just a note," said Bernice Tolliver, after a moment. "It's nothing."
"May we hear it?"
"It's not, it isn't anything." The clerk had gone grey. She was looking at her handbag. "I wrote down that the tape was, it was a different shade. A little. I thought maybe it was a new roll. I figured they'd ordered a new roll. It's, I didn't think about it."
"A different shade," said Lenoir.
"It's not proof of anything, ma'am. It was only that it looked brighter than I remembered."
At the defense table, Hollis Crane did not look up. He was writing something on a legal pad, in a small neat hand. He seemed, Corinne thought, almost sad.
Five seats down, in a navy jacket, with his hands very still, sat Dale Sutter. He was thirty-one. He had a flat, pleasant face and short fair hair, and his chin was tilted up very slightly, in the manner of a man who has been told to be patient. He was looking at Bernice Tolliver with an expression of warm, steady, tender sympathy.
It was the look of a man who intended to ask her how her grandchildren were doing.
Corinne stared at him. She did not blink. She was counting, so quietly that her lips did not move. One. Two. Three. She was aware of her mother's hand coming down on her knee.
At the count of nine, Sutter turned his head.
For a moment their eyes met across the room. She had been prepared for hatred. She had been prepared for contempt. She had even been prepared for the faint, polite, evasive blankness of the men she had known in high school who looked through girls they had hurt.
What she was not prepared for was what she saw.
He smiled at her. It was a very small smile, almost shy. It was the kind a man gives a stranger on a bus when he has noticed that they are reading the same book.
And then, deliberately, as if giving her a gift, he lifted his hand from the table, and touched the tip of one finger against the bridge of his nose, just once, in the gesture of a man adjusting his glasses.
He wasn't wearing glasses.
Something, she thought, with a cold exactness that frightened her. He's telling me something.
She did not know what. She would not know for three years. But she wrote it down, afterward, on the inside of her wrist, in pen, in tiny block capitals, exactly as she had been taught: 9 sec. finger on nose. NO GLASSES.
It was the first entry in a notebook she would not know she was keeping until the following spring.
The ruling came on the twenty-eighth. It was seven pages long.
Judge Whitcomb-Rhodes denied the motion to suppress the kit. She wrote that the evidence of a possible interruption in the chain of custody, while troubling, goes to the weight of the evidence and not to its admissibility. She found no proof of actual tampering. She said the lab's results were independently verified. She directed that the matter be placed before the jury, who would be free to consider the clerk's testimony and the deputy's signature for what they were worth.
And in a footnote, on page six, in a type size smaller than the rest, she wrote the sentence that Marisol Vega would quote in the next morning's edition under the headline JUDGE: SHERIFF'S "BRIGHTER TAPE" DOES NOT TAINT RAPE KIT:
The Court notes with concern that the explanation offered by the sheriff's office for the 2:15 a.m. entry has changed twice since the date of the indictment, and directs the State to inquire further.
"We won," said Marcia Lenoir.
She said it standing in the hallway, in her blazer and her mask, with a stack of files under her arm. She said it twice, in different tones.
"We won."
"Then why do you look like that?" said Corinne.
"Because she told me to inquire further."
"That's good."
"It is. It's very good." Lenoir took off her mask. Her face was shiny with sweat, and her eyes were very bright. "It means I get a subpoena. It means that for the first time since this case began, I get to put Dale Sutter's phone records and his personnel file and his tax returns in front of a judge. It means I can ask him where he was."
"But?"
"But it takes four to six months. And in the meantime—" She stopped.
"In the meantime?"
Lenoir looked up at the ceiling, where a long fluorescent tube was buzzing faintly. She put her hand over her mouth, as if to stop herself from saying it, and then she took it away.
"In the meantime," she said, "Hollis Crane has filed something else."
She took a sheet of paper from the stack, and unfolded it, and held it out.
It was one page. It was the stationery of the Atlanta firm, embossed, cream. It was dated the twenty-seventh of August, a day before the ruling, which meant that he had written it before he knew whether he had lost.
It was a notice.
DEFENDANTS' MOTION IN LIMINE TO ADMIT THE COMPLAINANT'S HOSPITAL NOTEBOOK IN ITS ENTIRETY, AND TO CALL DR. PAUL VANTERPOOL, M.D., AS AN EXPERT IN THE FIELD OF DISSOCIATIVE AMNESIA.
Corinne read it standing up.
She read it twice. She had a trained eye for the verb. She found it in the second line, in the middle of a long sentence, small and quiet, like a fish in a dark pool.
...to testify regarding the complainant's capacity, on the night of June 14, to form reliable memories of any kind...
"They're going to put a doctor on the stand," she said.
"Yes."
"To say I couldn't have known what happened."
"Yes."
"Even though they've just said, in a pleading, that I'm not lying."
"That's exactly what they're going to say."
"Then the kit doesn't matter." She was surprised at how clear her voice was. "You can win the whole thing, and it doesn't matter. Because it was never about the box."
For a long moment, nobody answered her.
In the corridor, a janitor pushed a bucket on squeaking wheels past the open doors of Courtroom B. The courthouse clock, which ran four minutes slow, chimed once, a flat dull note. And Marcia Lenoir, who had practised law for seventeen years and had never in all that time been so afraid of a piece of paper, reached out and, as if it were the most natural thing in the world, took the hand of a twenty-five-year-old woman in a navy dress, and held it.
"It's about you," she said. "It always was. I'm sorry. I should have said it in August."