Caleb Silver, standing trial for what prosecutor Tim Stoen called “the frenzied murder” – 11 hammer blows to the head, and a throat slashing that was so ferocious it splattered the walls with blood – of Fort Bragg (and former Boonville) resident Denis Boardman, was granted a reprieve, by way of a hung jury at 11:33am last Friday morning.
The jury was deadlocked seven to five, the seven for guilty.
Deputy DA Tim Stoen admitted he’d made a mistake in not excusing a particular juror, one the Deputy District Attorney had had a disquieting inkling about, a minor sort of impression, that this person wasn’t quite candid during voir dire (the process of jury selection by the lawyers, prior to the trial), a person Stoen refused to name. But it was fairly clear who he meant, a colorful fellow in a jaunty white yachting cap with lots of scrambled eggs on the brim, a long blond pony-tail, who arrived daily in a gold Lexus special edition, the same juror who laughed with shrill derision whenever defense attorney Eric Rennert of the Office of the Public Defender, alluded to the perfidy of the police, and punctuated his remarks with a dismissive single-word sentence, “Yeah.”
(Yeah — the strongly implied “you know what I’m talking about” — goes unspoken: Code in dope country for everybody knows the cops are crooked and it’s Us versus Them.)
Once Rennert connected with the Commodore on this point, he knew he had the jury hung at the very least, and that the defendant, Caleb Silver (whose own mother had gasped to a friend, “Oh my God, a glove — that’s Caleb’s calling card — I better lock my doors”) would get a reprieve, before he would have to stand trial a third time (his first trial was interrupted by the local firestorm which affected the lives some members of the first jury panel, to the extent a mistrial had to be declared) – and through the influence of the Commodore, who was likely to become foreperson by dint of his flamboyant personality, maybe even an acquittal.
In his eloquently convincing closing argument Mr. Stoen pointed out that the defense was based entirely on an expert witness, Dr. Haddock for the defense, a forensic pathologist brought in at considerable expense to refute the medical examiner, Dr. Benjamin, who testified that rigor mortis was absent from the body of the decedent, and that the absence of rigor was consistent with the murder having occurred on the morning of December 26th, when the victim’s truck, which Silver admitted he’d stolen, was videotaped passing Colombi’s Market in Fort Bragg on its way out of town at 7:14 in the morning of the 26th.
If the murder could be shown to have occurred later, say as late as December 30th by the presence of rigor mortis on January 2nd when the crime was discovered, then Caleb Silver would have what Stoen called “an ironclad alibi.”
Dr. Haddock proposed to prove the presence of rigor mortis from the photographs of the body taken at the crime scene and at the time of the autopsy, which was conducted by Dr. Benjamin. And it was Dr. Benjamin who said that it wasn’t possible to tell from photos alone, whether rigor was present or not, although on cross-examination, Rennert put up a photo of the victim at the autopsy and asked, “Isn’t it true that it looks like rigor mortis.”
Dr. Benjamin was forced to answer yes, and the clever Rennert stopped her there, before she could add that looks alone were not conclusive. Then in his closing argument Rennert made quite a to-do over this little stunt, pretending he’d actually forced the medical examiner into admitting that rigor mortis was present, when in truth she had said repeatedly that without manipulating the limbs of the decedent it was impossible to tell.
Dr. Haddock, retained by defense, said it was easy enough to tell from the photos alone. So the prosecution brought in Dr. Chapman, another expert forensic pathologist to refute Dr. Haddock – and Stoen freely admitted these experts were both “hired guns.”
Mr. Rennert didn’t cotton to having his expert called a hired gun.
“Dr. Haddock refutes the medical examiner so she’s a ‘hired gun’ — really? Yeah. But what about the medical examiner herself, Dr. Benjamin – isn’t she just another ‘hired gun’ for law enforcement? That’s not what the district attorney would have you to believe, but really? Yeah.”
Lines like the following were directed with a furtive, self-deprecating smirk at the Commodore, “If my demeanor towards some of the law enforcement witnesses was a bit, umm, intemperate — well, let me just say this, if any of you thought I was being unfair, put that on all on me. Yeah,” Rennert said.
The Commodore restrained himself from applauding, but Rennert couldn’t restrain a self-congratulatory grin. Yeah.
Mr. Rennert’s closing was very long – it began on Wednesday afternoon and went on until Judge John Behnke called it a day at 4:30 so one of the jurors could go pick up a child at daycare, then continued the Thursday morning until lunch recess. By contrast to Deputy DA Stoen’s ordered and coherent closing, Rennert’s wrap-up was a whirlwind of his signature dithering, false starts, disjointed interjections, and repetitive pot-shots at questions already answered — in layman’s parlance, a snow-job.
“But it’s a very effective defense,” Stoen admitted.
“We’ll get back to this,” Rennert would often say, then change course abruptly. “But before I forget, I just wanted to mention, I thought it interesting that the, um… The district attorney, that is, that he, what he neglected to tell us is why, that is, why neither Dr. Benjamin nor Dr. Chapman couldn’t be precise as to the, uh… the time of death, and how they both made sure to hedge whenever I tried to pin them down on it. Can’t be precise? Really? Yeah.”
Rennert turned from the podium, went back to his table, picked up a sheet of paper, came back with his forefinger hooked on his lip studying the page pensively, then threw his hand in the air and exclaimed, “Well! Yeah. I was trying to tailor my questions precisely when I asked Dr. Chapman on cross and he naturally wouldn’t answer me directly, but he would go off on something else entirely. Yeah.”
When Rennert says, “trying to tailor my questions precisely,” he means he was using the time-honored lawyer trick of trying to force a simple yes or no answer to a complex question. Yeah.
“And he actually said ‘yes’” – Rennert boasted – “in answer to the maximum rigidity question I was trying to pin him down on. Yeah. This happens with experts all the time, and I just thought it interesting… Oh, and one other thing. As to the, um… the so-called drunks who lived upstairs – why weren’t they brought in?”
This had been asked and answered several times. They were cleared as suspects, no motive and not a scintilla of evidence against them. And Stoen had pointed out that if Rennert thought they had anything to add he was free to subpoena them. As it happened, Rennert only brought in one witness from the neighborhood, a guy who resented the people upstairs, and tried to go to the police with unsubstantiated rumors about them. When Rennert put him on the stand he couldn’t answer the one question he was asked, “Who did you speak to at the Fort Bragg Police Department?”
He couldn’t remember and was barred by the hearsay rule from repeating idle gossip, so he was excused.
“The defense doesn’t have to prove anything,” Rennert insisted repeatedly and often. Then Rennert went through the photos — first he said there were too many, then complained there weren’t enough. He picked a photo here and there, put it up on the screen and said, “I found this interesting. See the so-called ‘fresh’ quote-unquote laundry folded on the table there. Cindy Buckmaster put that there, we were told. Really? Yeah.”
Then he put up a picture of Buckmaster’s food stamp card, found in the victim’s wallet. “Really? Yeah. Too many questions, not enough answers. Yeah.”
Alcoholics sometimes ask a person they trust to keep their food stamp card so they don’t blow it in trade for booze and go without food for the rest of the month. But all this relentless repeating of already answered questions was very reminiscent of arguing with a person who will never admit they were wrong about anything, no matter how many times their point has been refuted.
The letter Silver wrote to his mother under a false name from the San Jose jail wherein he made a thinly veiled confession, and asked his mother to sniff around and see if the cops were on to him was another example of this same foolishness, telling the jurors if they could possibly construe it in some other way, then that is what they must [emphatically] do. And the same for the subsequent letter to his mom asking her to help him concoct a story about the Mexican Mafia being after him.
“What is the district attorney trying to suggest here? That a mother shouldn’t try to help her own son? Really? Yeah.”
As Stoen said, it was a very effective form of defense, and we can only be thankful, as I feel sure Caleb’s mother is, that he wasn’t acquitted and won’t, therefore, be coming home for the holidays.
Caleb Silver’s next court appearance will be on November 27th, when the District Attorney is expected announce whether he will continue to pursue conviction of Silver with a new jury panel.