by Adam Mitzner
On the bright side for George, a former ME who goes into the expert-witness business is in high demand. As soon as George put out his shingle, he became the first call for every defense lawyer, and price was never an object. Unfortunately, the same Boy Scout impulse that lost George his job made him a difficult expert. Put another way, George wrongly thought he was being paid for his expertise; the truth is, defense lawyers retain experts to provide helpful testimony.
The one and only time we discussed it, I told George that he’d more than double his client list if he were a bit more flexible in his opinions. “I’m not saying that you should lie,” I said, “but sometimes you could tell me that there are other possible scenarios, and that’s all I need.”
“Let’s be honest,” he said. “Defense lawyers don’t want a black doctor as their expert. And the last thing I’m going to be is a black doctor willing to say whatever it takes to get paid.”
I’d retained George to consult on at least ten cases but had put him on the stand only twice. In the others, I couldn’t get the opinion I needed and ultimately had to retain an expert who was willing to testify in line with my defense. However, the only two cases I won were the ones in which George had been my expert.
“So what have you got for me?” I asked.
“First thing. Cause of death was drowning.”
“No real surprise there. She was found in the bathtub.”
“I know. But it’s not like a blow to the head or a heart attack or aneurysm is present. So I think that probably goes in the bad news category. Because you have to explain that she somehow drowned in her bathtub without a clear precipitating medical cause. The ME has time of death as the night before, between midnight and four a.m.”
I was focused solely on the precipitating cause, hoping that George’s claim that there wasn’t a “clear” precipitating event meant that there was at least an unclear one for me to work with.
“Were there any drugs or alcohol in her system?”
“She was on this new drug called Tofranil. It’s used to combat anxiety and depression. It’s still too new to have real data on it, but drowsiness is a side effect all by itself, and mixing it with alcohol, which she did, accelerates that process. She had a blood alcohol level of .04.”
“How much is that in servings?”
“One. Give or take.”
“And the drug . . . it’s called Tofranil?”
He nodded.
“What was that dosage?”
“A hundred milligrams. Within the guidelines.”
“So no possibility of suicide, then?”
“No. She took one pill and had, at most, a glass of wine. I’m not sure that even downing a handful of the stuff and following it up with an entire bottle of wine would have killed her, but she wasn’t intentionally trying to cause herself to pass out in the tub, if that’s what you’re asking.”
Even with suicide off the table, George had given me a drug that causes drowsiness, plus alcohol, all mixed in with a hot bath. I could definitely push that as a viable reason for Carolyn to pass out. But I knew there’d be more.
“So what’s bad for us?”
“I’m not even done with the good news yet.”
“Don’t let me stop you.”
“She was pregnant.”
It shouldn’t have jolted me. Anne had been speculating about it for months, saying that the only thing that explained the whirlwind nature of their romance was if a baby was on the way. But it was still a shock, especially because Nicky didn’t know.
“How far along was she?”
“Not very. Five weeks.”
I did the math in my head. They probably had conceived on their wedding night or during the honeymoon.
“Would she have known?”
“That depends on how regularly she got her period. If you subpoena her OB or even her physician, you’ll find out whether she told either of them about the pregnancy—or if they told her. But she could have just as easily found out through a home pregnancy test.”
“Does the alcohol level or the fact she was taking the depression meds suggest she didn’t know yet? Would a doctor have told her to stop?”
“Not necessarily. Some OBs are okay with a little wine now and then. And I’m not sure that there’s enough research about Tofranil and pregnancy for a doctor to take her off it. Again, I think it depends on the doctor and how strongly she felt she needed the meds.”
“Does pregnancy increase the likelihood of her passing out in the tub?”
“Bingo,” he said with a big smile. “I won’t bore you with the medical reason, but pregnant women often feel dizzy and faint.”
This was why George put the pregnancy in the good news category for the defense. I didn’t see it that way, however. Whatever ground was gained by it being a possible contributing factor to her passing out would be lost tenfold when Carolyn’s pregnancy was considered as part of motive evidence. An unwanted baby was powerful ammunition for the prosecution to argue that divorce—which now came with eighteen years of child support payments—was less appealing to Nicky than murdering Carolyn.
“Are you ready for the bad news?”
I wasn’t, of course. I didn’t want there to be any.
“Give me your worst,” I said.
“She had some bruising.”
He traced his finger along the autopsy photo of Carolyn. The picture was cropped to omit her nipples, but the top of her cleavage was visible. George pointed below her clavicle. Both sides. I knew instantly what he was going to say—that the placement was exactly where you’d put your hands on the body of a person you were trying to drown in a bathtub.
There had been other times in our working history that George had brought me scientific evidence that conflicted with my defense. Sometimes I pushed back, making him counter the various arguments that I expected to make when I heard the same points articulated by the other side’s expert in court. But in none of those instances did I ever think George had made a mistake.
But this time he had to be wrong. There was simply no way the evidence suggested that Nicky had pushed on Carolyn’s chest to keep her under the water until she drowned.
When I’d initially looked at the photo, I had assumed that the bruises were caused when Nicky tried to revive her. George immediately disabused me of the notion.
“Your guy says he did the CPR the following morning. By that time, she was already dead for something like eight hours. Without blood flow for that long, you wouldn’t get bruising like this. I’m sorry to say it looks to me much more likely that this type of injury would have been incurred during a struggle in which she fought her attacker. The scratches on your guy’s arm and the skin under her fingernail also fit that scenario.”
Included in the photos was one of Nicky’s forearms. They had some scratches on them, but nothing deep enough to break the skin.
“There’s got to be another explanation. There’s no way Nicky drowned her, George.”
He shrugged, indicating that he was now going to give me ammunition that he didn’t think would fire. “You could try the age-old defense that it was the result of rough sex. The problem there is that you’re going to need a jury comprised of twelve virgins. Otherwise, they’re going to know that it’s a little odd that the man would bruise his lover by bracing all his weight on her torso, which is what would have to have happened for him to leave these kinds of bruises.”
It was certainly a vivid picture. Nicky on top of Carolyn, his hands pressing on her upper chest, right above her breasts but below her collarbone, with her fingernails scratching at his arm. It seemed awkward. Not to mention unpleasant for Carolyn.
“And, on top of that, there’s no evidence of sexual intercourse in the last forty-eight hours,” George added.
“What if they used a condom?”
“Yeah, that’s one way to go. But they wouldn’t use a condom if she was pregnant. So that theory will only work if you can also prove that she didn’t know she
was with child. The prosecution’s rebuttal will be that the most prominent bruising is lower than the rest.”
He stopped as if his statement were self-explanatory. It wasn’t. At least not to me.
“And?”
“Well, think about it. Most of the pressure applied from hands is from the thumbs.” I nodded, but not because I agreed. I had no idea if that was right or not. I wanted George to get to the point.
“So that means in the typical way you’d think about someone’s hands”—he put his own hands up, palms facing me—“the thumbs are facing up, which means when pressure is applied, the most prominent bruising will be either to the side or above, but not below.”
I laid my palms flat on my desk, conducting my own experiment. The most natural position was what George had said, with my thumbs at a little more than a forty-five-degree angle above my wrists. Then I began to slightly rotate my hands, until my thumbs were pointing straight down.
“Not the most natural position,” George said.
“But not impossible.”
He rolled his eyes. His business was not about disproving impossibilities.
“There’s another possibility I like better than the theory that your friend is a contortionist when he has intercourse,” George said.
“Tell me.”
George got up from my guest chair and stood directly over me. “If he was standing and she was on her knees,” he said and placed his hands below my clavicle to illustrate his point. His thumbs were now in the right position, pointing downward.
“Wouldn’t his hands be on her shoulders?” I asked.
“You would think. But maybe his fingertips were on her shoulders. Then it could line up. Does your friend have smallish hands?”
“I never measured them, but he’s a big guy, six-two, so I doubt it.”
“It doesn’t necessarily correlate to height. Take a look at his hands next time you see him. If they’re much bigger than yours, then if his hands were on her shoulders, his thumbs wouldn’t line up with the bruising.”
I considered how to word the next question. “Anything consistent with that theory in the forensics?”
“You mean is his semen in her throat? No. But if he ejaculated elsewhere, or she spit it out . . .”
I ran through my mind how this would sound to the jury. Midway through my thought process, I tried it out, hoping to get George’s opinion.
“Ladies and gentlemen of the jury, you heard the prosecution place heavy emphasis on the bruises located on Carolyn McDermott’s upper torso. It’s practically their entire case, the only evidence that they have to suggest murder. There are many other interpretations regarding how Carolyn McDermott incurred that bruising that are completely innocent, however. Dr. Graham testified that the exact same bruising is consistent with sexual intercourse.”
“Might have been caused by sexual intercourse is the best I can do, Clint,” he interrupted. “And I’d also add that only if his hands were in the awkward position we discussed.”
“But you’d at least wait for them to ask you that, right? You don’t have to offer that opinion up on direct examination, do you?”
He smiled. “Does it matter when I say it if I end up saying it?”
“Hold that thought and let me get back to my summation.” His nod told me the floor remained mine. “I know that this is a little graphic, but it’s important that we not shy away from the truth because it is embarrassing. Dr. Graham was quite clear that the bruising lines up almost exactly with the possibility of Mr. Zamora standing, while his wife kneeled before him. A position that they very well might have taken part in while engaging in a sexual act.”
George laughed. “That’s the thing I love about you, Clint. You can turn a blow job into a defense for murder.”
10.
On television, plea discussions are always held with the client present. I suppose writers do that to get the defendant’s reaction to the offer without having to repeat the scene. But no defense attorney with a brain puts his client anywhere near a prosecutor. No matter how many off-the-record disclaimers are made before the meeting begins, letting a prosecutor even look at your client before trial is a mistake.
Which was why, when the Assistant District Attorney handling Nicky’s case told me that he wanted to discuss “a pretrial resolution,” I went alone.
The Westchester County District Attorney’s Office was newer and cleaner than its counterpart in Manhattan, but that didn’t mean it was anything more than a utilitarian government space. Assistant District Attorney Brandon Sherman’s office was on the third floor, and my first impression upon meeting him was that he could be fairly described in the same way as his surroundings—newer and cleaner than his Manhattan counterparts.
His office was littered with boxes piled on top of one another and spread out against the walls. Each was labeled with a case name on the side: People of the State of New York v. a variety of surnames accused of criminal activity. The v. Nicholas J. Zamora box stood on the corner of his desk.
“Thank you for coming, Mr. Broden,” he said as he extended his hand. He nodded at a clean-cut colleague also waiting in his office. “This is ADA Patrick Ferris. Please, have a seat.”
Nicky had agreed I could take this meeting only if I made clear from the outset that he had absolutely no interest in taking a plea deal. Even without such instructions, I would have suggested as much to the other side, regardless of whether it was true. For me, the meeting was a one-way street: I’d get Sherman to tell me the evidence he had, and I wouldn’t give him ice in winter.
Which was why, as soon as I took my seat, I said, “I’m here as a courtesy, but we’re not interested in discussing a plea.”
If my hardline approach surprised Sherman, he didn’t show it. I suspected that many a defense attorney had said exactly the same thing to him at the beginning of a plea meeting, only to leave his office with a deal.
“Look, I know you don’t know me, and I don’t know you,” Sherman said, “but if you did know me, then you’d know that I’m a straight shooter. I have no interest in making Mr. Zamora another notch in my belt, but I have every interest in punishing murderers.”
The speech was over-the-top, even by prosecutorial standards.
“I appreciate hearing anything you have to tell me,” I said. “Just don’t expect it to change my mind. I know Nicky Zamora. I’ve known him since we were kids. And I knew his wife. Nicky loved her, and he didn’t kill her.”
“You’ve seen our Brady material and discovery. So you know what our forensic proof shows—the bruising on her body, the scratches on his arm that line up with the skin under her fingernails, and the fact that she was pregnant, which makes divorce a very costly endeavor for your client.”
He stopped there, probably hoping that I would provide our rebuttal to this evidence. When I didn’t, he continued with his prepared remarks.
“And I know that you’re going to get some expert who, for the right price, will do his best to poke holes in all of it. But what’s not in the discovery materials is our evidence of motive. Did your friend tell you that he was having an affair?”
I remained blank-faced even as the allegation shook me. Had Nicky lied to me about that?
“I take your silence to mean that this is new information,” Sherman said with a slight smile. “His wife told several people about it.”
“Who?”
“You should ask Mr. Zamora.”
“I thought you were a straight shooter.”
He chuckled. “Straight shooter, yes. An idiot, no. That means you should believe me when I tell you we have evidence of the affair, and if your client is claiming otherwise, well . . . that should tell you he’s lying to you. And if he’s lying to you about that, then I suspect he’s lying to you about the ultimate issue too. Allow me to share something else with you.”
He reached into his desk drawer and pulled out a file folder. Inside was an insurance policy. I saw Carolyn’s name on the top, and
then my eyes dropped to the amount: $200,000. I assumed the beneficiary would be Nicky, so what I looked for next was the date.
“He purchased it a month before her murder,” Sherman said, a step ahead of me.
Her murder. Not her death. Her murder.
“There was also a second policy for fifty grand that Martin Quinn took out on her, and your client is the beneficiary of that too. So her death is a two-hundred-fifty-thousand-dollar payday for him. Not too shabby for a guy who makes most of his money from tips.”
I scanned the pages. It was as Sherman represented, all there in black and white. Two insurance policies. One by Chubb, in the amount of $200,000. It was signed by both Carolyn and Nicky and dated January 9, 1986. The other was underwritten by Northwestern and appeared to have been provided as part of Carolyn’s benefits through work. It had been taken out three years earlier. Carolyn’s parents were originally listed as fifty-fifty beneficiaries, but on the same day she and Nicky purchased the Chubb policy, Carolyn executed a change-of-beneficiary form, making Nicky the sole recipient of the proceeds from her work policy.
I suspected Sherman was waiting for me to proffer some innocuous explanation for the policies, or maybe even for me to admit that he had me on this one. But I kept my mouth shut. He’d hear my view on the insurance policies at trial, and not a second before.
“Is that all you’ve got for me?” I said.
He smiled the cocky grin that prosecutors seem to be issued on their first day of work. “If we let this go to a jury, I’m relatively confident that I’ll get a conviction. Twenty-seven-year-old women just don’t drown in the bathtub, after all. But I also know that lots of things can happen in a trial, and so there’s some chance, maybe ten percent, if I’m being generous, that the jury acquits. That means that a man who murdered his wife goes unpunished, and that’s not good. So my boss is telling me that I can offer your client first-degree manslaughter. Between you and me, it’s a gift.”
Man-1 is still an intentional crime, but it doesn’t include premeditation among its elements. It’s the charge for a heat-of-passion murder. The penalty range is five to twenty-five years. While that’s no walk in the park, it’s far better than the life sentence Nicky would serve if convicted of murder in the second degree.