The Best Friend

by Adam Mitzner

  If we’d been negotiating, I would have countered that manslaughter in the second degree might be worth discussing with my client. The mens rea for that charge was recklessness, which would allow Nicky to claim that he didn’t intend to kill Carolyn, and her death was the result of an accidental but reckless act. That version wouldn’t match up with the evidence, but plea deals often suffer from that defect.

  Man-2 was a Class C Felony, which reduced the potential jail to fifteen years on the high end, and to as little as one year, given a lenient judge. But my client’s instructions were crystal clear on this point: I was not to indicate any willingness to consider a plea.

  “I appreciate the consideration, but we’re not interested in a plea. He’s innocent.”

  “I’ve heard that before, Clinton . . . Can I call you Clinton?”

  “Clint,” I said, a correction I normally didn’t make, but I didn’t want the man prosecuting Nicky to call me by the same name my friend did.

  “He’s not innocent, Clint. I know you want him to be, which is understandable given your personal connection to the case. But let’s be clear about one thing. No posturing. No bullshit. I’m telling you straightaway that Nicholas Zamora murdered his wife. And if I’m being honest with you, your client would be much better served if he had a lawyer who could get his head around that fact.”

  Later that day, I met with Nicky to discuss the prosecution’s plea offer.

  “There are a bunch of things Sherman said that we need to go over, but to get to the headline first, he put manslaughter in the first degree on the table—”

  “No. I don’t want to talk about a plea,” Nicky said sharply. “I only said you could meet with him because you said we’d get some free discovery. Tell me about that.”

  I wasn’t surprised by Nicky’s initial reaction. Still, I’d be doing him a disservice to allow him to dismiss the possibility of a plea so cavalierly. I decided to table that part of the discussion. At least for now.

  “Remember when we talked about possible motives, and I told you it was usually about love or money?”

  “Yeah.”

  “They think they have both. On the money, they told me that you took out a two-hundred-thousand-dollar life insurance policy on Carolyn a month ago. And she also had another fifty-grand policy through work. You’re the sole beneficiary of both.”

  He scrunched up his face. “I swear, I don’t remember anything like that.”

  “The ADA also said that he has evidence you were unfaithful.”

  “What evidence?” he shot back.

  It was the second-best response. That said, it was a natural reflex. I would have said the same if the accusation were made about me.

  Still, I pressed him. “That’s not a denial.”

  “Abso-fucking-lutely no,” Nicky said with anger in his voice. “Is that a good enough denial for you?”

  I smiled, my way of suggesting that I’d never doubted him for a second. “I’m just preparing you for testimony. And to answer your first question, they wouldn’t tell me their evidence about the affair. They said to ask you about it.”

  “So they’re bluffing.”

  “I don’t think so. That’s not to say, of course, that I don’t believe you. I do. But it does mean that they think they have something to suggest an affair. He said Carolyn told others that she thought you were having an affair. Any idea who she might have said that to?”

  “I can’t imagine her saying it to anyone because it wasn’t true. But she was closest with her sister, Allison. Maybe . . . I have no idea because I wasn’t cheating and I don’t for a second think that Carolyn thought I was . . . but if she had a suspicion or something, that would at least explain why the McDermotts saw me as public enemy number one even before the police did.” He shook his head, as if to reject that thought out of hand. “No. I know what’s going on. The police must have told her that they didn’t have enough evidence to make an arrest, but I was the only guy who could have done it, and so Allison made the whole thing up.”

  That Carolyn’s sister might have lied to the police to push them to arrest Nicky wasn’t far-fetched. Family members will lie, cheat, and steal if they think it’ll win justice for a murdered loved one.

  I thought about probing further, telling him that I would make no judgment, even if he had been cheating on Carolyn. That’s what I would have said to any other client, and therefore it should have been what I said to Nicky. Instead, I nodded and returned to the plea discussions.

  “Like I said, they offered Man-1, which has a twenty-five-year top sentence. And I told them to pound sand. End of discussion. Just between us, I think they’ll go down to Man-2.”

  “No,” he said as defiantly as before.

  “Nicky, Man-2 has a one- to fifteen-year range.”

  “I said no. How many times do I have to tell you that?”

  Nicky was not the first client to declare that he would never, not in a million years, take a plea because he was innocent. In fact, most clients said that. And even with such a declaration, the vast majority of them still ended up pleading guilty in exchange for reduced or no jail time. The few who held firm were almost always convicted and ended up serving the maximum sentence.

  “Forgive me for what I’m about to say, but it’s important. Accepting a guilty plea doesn’t mean that you are guilty. Think about it as if a doctor were telling you that you needed to have your leg amputated to save your life. No one wants to do it, but sometimes the risk of not doing it is so great that you choose something that’s unthinkable because it’s the better option. Or it’s the only option to save your life. Look, if you got fifteen years on a Man-2 plea, I know that seems like forever, but it’s not. You’ll get out earlier on parole, and then you’ll have your entire life ahead of you. Time to get married again, have children. Write. Do whatever you want to do. But if we go to trial and you lose, your life is over. You’ll never have any existence outside of prison.”

  “I did not kill Carolyn,” he said slowly, as if I were a child and he needed to enunciate each word.

  “You’re missing my point. I’m saying that your innocence—which I totally, one hundred percent believe—is also totally, one hundred percent beside the point. I’m only talking about the risk of you spending your life in jail—and the possibility of eliminating that risk.”

  “I understand exactly what you’re saying. But the fact that I’m innocent isn’t as irrelevant to the calculus as you’re suggesting.” He sighed, as if frustrated that I couldn’t understand. “Clinton, it’s because I’m innocent that I have faith I’ll be found not guilty.”

  11.

  That night, Anne and I both arrived home late and tired from a hard day at the office. Anne was complaining about her feet and back after the dance portion of an audition for a part she was certain she wouldn’t get.

  “I’m not sure how many more of these I have in me,” she said.

  Anne got this way every so often, but it usually passed.

  “Like you always say, sweetheart, one audition at a time. The moment you land something, everything will look different.”

  In the past, she would have smiled and agreed when I offered this pep talk. Her protestations lately seemed more acute, though, and her willingness to risk rejection no longer so strong.

  “If . . . if I land something.” Anne’s tone indicated no further interest in discussing her career prospects. “How’d your meeting with the ADA go?”

  “Their case in a nutshell is that Nicky was in love with someone else and found out his wife was pregnant, which meant that he couldn’t just walk away from her, so he killed her to collect two hundred fifty thousand dollars in life insurance proceeds.”

  “He took out insurance on Carolyn’s life?”

  I raised my eyebrows. “I would have thought you’d be more interested in the claim that Nicky was seeing someone else.”

  “I’m interested in both,” she said. “Him screwing around doesn’t shock me, but
I can’t see him killing Carolyn for money.”

  I was sure Anne didn’t mean it that way; she sounded as if she could imagine him murdering his wife for other reasons.

  “Fifty grand of the insurance was a work benefit. Nicky says he didn’t know about it. He claims he didn’t know about the other two hundred K either, but he must have known about it at some point because he signed the document. It’s the affair part that bothers me. The ADA wouldn’t tell me what they have, but he says Carolyn told people about it.”

  “What did Nick say?”

  “He said it was absolutely, positively not true.”

  Anne gave me a look that suggested Nicky’s denial settled the issue. I wished that it did, but the thought nagged at me. The evidence against Nicky was beginning to pile up.

  When we were kids, Nicky and I used to say that if one of us ever killed somebody, the other would show up with a shovel ten minutes later, no questions asked. For me, it wasn’t a joke. I was quite sure that was what I would have done.

  Was that what I was doing now?

  That night, I couldn’t sleep. My mind was a never-ending loop of Carolyn in the bathtub. First, I imagined it as I hoped it had occurred. The way I’d tell the jury it had happened. Carolyn was alone. Relaxing. A glass of wine beside her. The steam rising from the water. Her reward for a difficult day of client and partner demands. Then she slipped away peacefully, unaware that her pregnancy, mixed with the wine, the Tofranil, and the heat of the bathwater, would cause her to pass out.

  Next I saw Nicky waking in the morning to the other side of an empty bed. He groggily made his way to the bathroom, assuming today would be just another in his life. I imagine him with a smile on his face right up until the moment he saw Carolyn.

  The scene the prosecution would be presenting to the jury would start like my version—Carolyn seeking solitude in a soothing, warm bath. But then something happened. Perhaps Carolyn confronted Nicky about his affair and they argued. Or maybe there was no trigger, and Nicky simply decided that was the night to put an end to the suffocating life he’d so quickly gotten himself into—marriage, house in the suburbs, baby on the way. However it happened, the prosecution would tell the jury that Nicky put his hands on his wife and pushed her down with such great fury that he bruised her while Carolyn fought back, scratching him as she struggled for her last breaths.

  As if that weren’t grisly enough, the prosecution’s theory further postulated that after Nicky murdered his wife, he waited until morning to call the police, going to sleep while the dead body of the person he’d sworn to love forever cooled in the bathtub. Then, in the morning, with cold calculation, he staged the bathroom to reflect a frantic husband performing CPR on his dead wife.

  George Graham had told me what a dead body looks like after nine hours in the water. Carolyn’s complexion would have been blue. Not like a Smurf, but a hue that would have alerted Nicky, unless he was in a severe state of panic, that she was dead. And that owed to the fact that she had died faceup. Otherwise the blood would have pooled in her face, turning it a dark purple. Rigor had also already begun to set in, as the warm temperature of the water would have sped up that process. Which meant that when Nicky reached into the tub, Carolyn must have been ice-cold to the touch, and her arms and legs wouldn’t have bent. Nonetheless, he had pulled her out and then pressed his mouth against her lifeless lips.

  Nicky told me that he had no idea how much time elapsed as he tried to bring his wife back to life. But I could not imagine the scene for much more than thirty seconds without it becoming impossible to fathom. Nicky’s alarm clock had been set for 8:15 a.m., and the call to the police came in at 8:55 a.m. Nicky’s version of events meant he could have been performing CPR for as long as forty minutes.

  Forty minutes. Assuming he took a breath every other second, that meant more than a thousand breaths he blew into his wife’s cold, rigid, lifeless body.

  It’s a tried-and-true lawyer trick to make the jury experience the period of time in question. To ask them to look at the clock and watch the seconds tick by without offering any narrative. I wondered if Sherman would do it. Forty minutes. How could anyone perform CPR on a corpse for that long?

  12.

  There’s an old joke that all of Russian history can be summarized in five words—And then it got worse. Criminal defense is the same way. It keeps getting worse right up until the day you hear not guilty. Of course, if you don’t hear the word not, then things worsen from there.

  Six months had passed since Nicky’s indictment, and everything continued to get worse. His literary agent had put pitching Precipice to publishers on hold until he knew if he was representing a murderer. The house in Mount Vernon was on the market, but the broker had told Nicky not to expect a sale soon, as houses that had once been murder scenes tended to scare off potential buyers.

  Worst of all, my efforts to delay the trial for as long as possible had been rejected by the trial judge, the Honorable Ross Asbill. When I played Little League baseball, common wisdom said that a walk was as good as a hit. The defense-lawyer version is that delay is as good as acquittal. In neither case is it entirely accurate, but in the same way a walk put a runner on base, a delay kept your client out of jail.

  Unfortunately, Judge Asbill’s judicial life had an expiration date of his seventy-seventh birthday, which was in early December. Under New York law, judges had a mandatory retirement age of seventy, which could be extended by three two-year terms. Each extension required Judge Asbill to go through a mental-competency screening, which he had always passed with flying colors. But December was his sell-by date, and there was no way he was going to retire before presiding over a front-page murder trial. He gave us the earliest available trial date on his calendar.

  The first day of trial was only the third time I had appeared before Judge Asbill. During the initial pretrial conference, the merits of the case weren’t discussed at all. The sole purpose of that gathering was to set the schedule through the final pretrial conference. The final pretrial conference had been held a month ago, my second appearance before Judge Asbill, at which His Honor had set the trial date.

  The largest courtroom in Westchester County was only slightly smaller than the ceremonial courtroom in Manhattan. At the pretrial conferences, it had seemed even larger, due to the empty seats, but for the opening of the trial, the gallery was at capacity. Mainly press, of course, but the Zamoras and McDermotts were there too, on opposite sides, as they had been at the wedding—and at Carolyn’s funeral, for that matter.

  I had asked Anne to come, but she declined. It had been a running joke in our marriage that we never saw each other perform. Anne had always said my presence made her nervous. I need to be someone else when I sing, was how she explained it. I just can’t be that person when you’re there. I, on the other hand, liked when Anne came to watch me in action. The problem for her was boredom. In real life, trials are nothing like they’re portrayed in fiction. Examinations can last days, delving into minutiae without ever leading to a last-second confession on the stand.

  “I just can’t,” was her only explanation, but I knew what she meant. Boredom wasn’t the issue this time; she didn’t want to come for the opposite reason. It was hard enough for me to watch Nicky’s life hang in the balance, but at least I was too busy defending him to contemplate the implications of a guilty verdict. That would have been all Anne could think about if she were in the gallery during the trial.

  As we awaited the prosecution’s opening statement in the courtroom, it seemed Nicky was the calmer of us two. As if his faith in the jury getting it right fueled his hope.

  I had difficulty clinging to that fantasy.

  Usually by the time the prosecutor delivers his opening statement, I have a pretty good idea of what I’m up against. That was not true this time. Although I knew the forensic evidence, I was still in the dark regarding the evidence they’d proffer to prove the affair—and Nicky’s motive—if they had anything at all.


  I was about to find out. Brandon Sherman had stepped to the podium to deliver his opening statement.

  “Ladies and gentlemen of the jury, twenty-seven-year-old women simply do not drown in the bathtub without some type of outside interference,” Sherman began. “And fortunately for us, this is not a murder mystery like you might find in an Agatha Christie novel, with a half dozen suspects, each with motive. There was only one person—only one—who could have murdered Carolyn McDermott. The only person in the house when she drowned in her bathtub. Her husband, the defendant, Nicholas Zamora.”

  Sherman had a smooth way about him. He spoke without notes, and he made strong eye contact with the jurors. The first half of his opening was devoted to demonstrating that Carolyn had, in fact, been murdered, rebutting any defense suggestion that her death had been a tragic accident. The bruising, the skin under her fingernails, and the scratches on Nicky’s arm were the stars of this part, and in Sherman’s telling, these things left no doubt that Carolyn had been murdered.

  “Why?” Sherman asked, the obvious pivot to motive. Predictably, he told the jury that he was under no burden to tell them why. “If you believe beyond a reasonable doubt that Mr. Zamora murdered his wife, then the law is that you must convict. That obligation is no less mandatory if you don’t know exactly why he did it. Even if you have no idea at all, for that matter. In other words, ladies and gentlemen, why isn’t a relevant question. Who is all that matters. And the evidence will convince you beyond a reasonable doubt that the who is Nicholas Zamora.”

  He was right on the law, but I always found that a weak gambit. Juries want to know why. It is probably the most important part of the story for them. So much so that I’ve always thought that the prosecution did better when it had a compelling why and flimsier who case.