by Adam Mitzner
“But we know why too,” Sherman said. “And it’s as old a story as there is. Mr. Zamora was involved with another woman. We have ample proof of that. Expensive gifts—jewelry and lingerie—that were purchased by Mr. Zamora but not found in the Zamora-McDermott home because they were given by Mr. Zamora to his mistress. And you will hear testimony that Mr. Zamora checked in to hotels in New York City and paid cash. That’s the behavior of a cheating husband.”
Judge Asbill gave everyone a ten-minute break after Sherman’s opening. As soon as the jury was excused, but before he dismissed the rest of us, the judge asked me if I was going to deliver my opening statement now or reserve it until the start of the defense case.
If ever there were a trial in which the defense would want to reserve its opening statement until after the prosecution had put on its full case, this would have fit the bill. I was still uncertain about the prosecution’s theory, and I had a strong alternate theory of the facts that I could keep hidden from the prosecution’s witnesses if I didn’t open until after they had testified. But I had never declined to open immediately after the prosecutor. My belief was that any delay in addressing the jury allowed the prosecution’s theory to solidify. The longer the jury listened to only one side of the story, the more difficult it would be for them to discount that story later, even if the defense demonstrated facts to rebut it.
“The defense will open after the recess,” I told Judge Asbill.
“Very well, then,” he said. “That’ll be in exactly ten minutes. Don’t be late, or we’ll start without you.” He grinned and banged the gavel.
Out of my peripheral vision, I saw Sherman receiving congratulatory handshakes from his seconds as they left the courtroom. I didn’t have the luxury of stretching my legs, however. I needed the next few minutes to revise my opening so that it would rebut Sherman’s allegations about the affair.
The problem was that I wasn’t completely sure Sherman hadn’t been telling the truth.
One of the unspoken dynamics in a murder trial is that the jury cannot restore the life lost. It is only empowered to take the freedom of the accused. Sometimes the best defense is to make them feel as if they don’t want that responsibility.
“To hear Mr. Sherman tell it, this case is as straightforward as any scientific principle,” I said at the beginning of my opening. “As simple as . . . I don’t know, water freezing at thirty-two degrees Fahrenheit. But what makes science, well, science is that you can prove it. And not just beyond a reasonable doubt. There is no doubt at all that water freezes at thirty-two degrees. But a criminal trial—especially a murder trial—is about people, not science. Sure, science plays a role. In fact, if the defense were allowed to go first, I would have been the one telling you about Carolyn McDermott’s blood alcohol level. About the drugs in her system at the time of her death. About her pregnancy, which made her particularly prone to passing out. About how each one of these factors was greatly exacerbated by the fact that she was bathing in hot water.”
So far, so good. The jury looked engaged, nodding along with my words.
“Mr. Sherman said who was the critical question for you to decide. But the real question is if—if Carolyn McDermott was murdered. Because if she wasn’t, then there is no crime.”
Nicky and I had discussed whether he would take the stand. I had not wavered in the belief it was indispensable, but he was less sure. Although most people think that defendants are always champing at the bit to tell their story, that isn’t usually the case. The smart ones, at least, know that putting your entire future at risk in the hope that you’ll be able to withstand cross-examination is a sucker’s bet, especially because no amount of practice can prepare you for what it’s like in reality.
I had originally told Nicky that it was a decision to be made at the end of the case, when all the other evidence had been presented. But now I realized I could not wait. I needed to tell the jury that Nicky would take the stand and, under oath, swear he had been faithful to his wife and had not killed her.
I took a deep breath, then threw caution to the wind.
“Only one person can tell you what happened on the night Carolyn McDermott died. And he will. Nicholas Zamora is going to take the stand and swear an oath to God, under penalty of the crime of perjury, to tell the truth. After doing that, he will testify to the following: First, that he and Carolyn were in love. Second, that he is absolutely devastated by her death. Third, that he was not having an affair. And most important of all, that he did not kill her. I ask of you, ladies and gentlemen of the jury, one thing, and one thing only, as you sit in judgment of Nicholas Zamora: don’t make up your mind about whether this man murdered his new bride until you hear every word of his testimony. And if you keep an open mind, once you hear what Nicholas Zamora has to say, I am confident that you will find him not guilty.”
13.
If I had been prosecuting the case, the ME would have been my first witness. That way, the jury would hear about the evidence of a struggle—Carolyn’s bruising and Nicky’s scratches—while their attention was at its peak. But when we returned from lunch, Sherman called Detective Lynch to the stand. That was the by-the-book approach to trying a case, so I couldn’t blame him. The lead detective would serve as a narrator, telling the jury the entire story from beginning to end and establishing why the police had concluded that Carolyn had been murdered—and that Nicky had murdered her.
Detective Lynch performed his master-of-ceremonies role well. He went through the investigation timeline, starting the moment he picked up the call from his CO that a twenty-seven-year-old woman had drowned in her bathtub.
“Did that strike you as odd? The drowning-in-the-bathtub part?”
I objected. “Detective Lynch is not an expert in this area.”
Judge Asbill agreed. “Sustained. Stick to what the witness observed and what he did, Mr. Sherman.”
Sherman nodded at the rebuke but didn’t change tack. Instead, he reframed the question to get the answer he wanted.
“Detective, please tell us what you observed when you entered the bathroom that caused you to conclude that Carolyn McDermott had been murdered.”
“Mr. Zamora told us that he first saw his wife in the bathtub that morning and that he had attempted to revive her. However, by eight or nine the following morning, when Mr. Zamora says he came upon his wife in the bathtub, Ms. McDermott’s body was rigid and her skin had a definite bluish color, as did her lips. It was clear that she had already been dead for several hours. I was certain that Mr. Zamora would have been able to discern that immediately upon seeing his wife in the tub.”
“What conclusions about this matter, if any, did that cause you to reach, Detective Lynch?”
“That Mr. Zamora knew his wife had died the previous night. That he hadn’t tried to perform mouth-to-mouth in the morning, as he claimed. That the scene we were looking at in the bathroom had been staged. And most importantly, that he was lying to me.”
“Detective, let’s start at the beginning, shall we?” I said when I began the cross-examination. “When you arrived on the scene, you had already been told that a woman had drowned. Do I have that right?”
“Yes.”
“And when you entered the home, you went straight to the bathroom?”
“Yes. That’s right, counselor.”
“And you saw that Ms. McDermott had drowned in her bathtub. Am I right so far?”
“I saw that she was on the floor, beside the tub. The tub still had water in it. I could tell from looking at her that she was dead. It was my supposition that she’d drowned, in part because that was the way the 911 call came in. As a drowning.”
“You testified on direct that it was obvious to you that she had been dead for some time, and therefore that you believed it would have been obvious to Mr. Zamora as well. Do I have that right?”
“Yes. The rigor and the discoloration were clear signs of that.”
“To you, Detective. You have how many ye
ars on the force?”
“Seventeen.”
“And you’ve seen how many dead bodies in that time?”
“I don’t know how many.”
“Right. Too many to count. But Mr. Zamora did not have seventeen years of police experience, and he had not seen countless dead bodies, correct?”
“You are correct, counselor, that Mr. Zamora wasn’t a police officer. But I don’t know if he’d ever seen a dead body before.”
Detective Lynch was proving to be a disciplined witness. He answered the question, and only the question, always with a dispassionate tone. I didn’t know if it was good coaching or that was his natural affect, but I was nearly certain the jury trusted him.
“At that time, am I correct that you knew nothing about Carolyn McDermott?”
“Other than she was dead, you mean.”
There was some nervous laughter by some of the jurors. I decided to use it to push Detective Lynch off-balance. Sometimes you could get cops to mess up on cross because they resented being questioned. In their jobs, they ask the questions, and I’d never met a police officer who didn’t get off on being in charge.
“There’s nothing funny about a woman’s death, Detective. You agree with that, don’t you?”
Detective Lynch was too smart to rise to the bait I was dangling, “Your question was unclear, and I was commenting on that, counselor. Of course Carolyn McDermott’s death was a tragedy.”
His reference to me as counselor was also a nice touch. It reminded the jury that I was a hired gun. My job was to defend Nicky, without regard to his guilt. By contrast, Detective Lynch’s only job was to investigate whether Carolyn had died as a result of a crime having occurred and, if she were the victim of foul play, to arrest the perpetrator.
“Back to my question, then,” I said, trying to regain control of the cross. “When you first arrived on the scene, you didn’t know anything about Carolyn McDermott’s medical condition, right?”
“Not exactly. We asked Mr. Zamora whether his wife had any health issues that might have caused her death. I remember specifically asking if she suffered from a heart condition or a seizure disorder. He said she did not.”
This was something Nicky hadn’t shared with me. It was understandable that he would forget this detail, considering his mental state when he first spoke to the police. Still, a surprise in a trial can be like quicksand; I needed to move away from it quickly.
“You didn’t know she was pregnant at this point, did you?”
“That is correct,” he conceded in a tone that made the fact seem irrelevant. I half expected him to add that he also didn’t know whether she was lactose intolerant.
I pretended to be surprised by this revelation. I’m quite certain that if Anne had been present in the courtroom, she would have found my acting to be subpar.
“That fact—that Carolyn McDermott was pregnant—was something that you would have expected Mr. Zamora to tell you in response to your question about her medical condition, isn’t it?”
“I don’t know if I had any expectations of what he would or would not tell me, other than that I assumed that her husband would be truthful with me if he had no involvement in her death, and would lie if he had murdered her.”
“Let’s break that down, Detective. If Mr. Zamora was telling you the truth and knew his wife was pregnant, you would have expected him to tell you, right?”
“Yes.”
“And if he had murdered her—as you claim is the case—wouldn’t he also tell you that she was pregnant, because it would be an explanation for how she might have passed out in the tub?”
“Now we’re speculating, but if you want me to indulge you, I can imagine that he would have lied about her pregnancy because the fact that she was pregnant gave him a motive to murder her.”
This was the equivalent of trading chess pieces. I needed to establish that Nicky hadn’t known she was pregnant in order to rebut the prosecution’s motive theory, but in doing so, I had to give Detective Lynch the opportunity to bring it front and center.
It had seemed like a better bargain before the detective laid it out for the jury.
14.
The prosecution’s next witness was Eric Russell, Westchester County’s Medical Examiner. George Graham knew a little bit about him from his own days in the Manhattan ME’s office, and unfortunately for the defense, all of it was good. Smart, thorough, and honest were the words George used to describe the man who would tell the jury that Nicky had forced his wife underwater to her death in a violent struggle.
Russell looked like a scientist, with a scraggly beard and hair too long around the ears for the little he had left on top. He wore a standard-issue government suit that screamed midlevel bureaucrat.
During his direct, Sherman took Dr. Russell through the postmortem findings in a workmanlike fashion. The time of death was firmly established between midnight and four o’clock the night before Nicky called the police. Death was caused by drowning, although Dr. Russell actually said that Carolyn “experienced respiratory failure from submersion in liquid,” before Sherman asked him if that meant that she drowned. He noted the Tofranil and the wine in her system, as well as the fact that she was five weeks pregnant, but he claimed those things, even in combination, should not have caused Carolyn to pass out in the bathtub.
About two hours into the testimony, Sherman asked, “Dr. Russell, was there anything in your findings that suggested Carolyn McDermott was involved in a struggle?”
“Yes. There was very clear bruising on Ms. McDermott’s upper torso. This occurred as a result of considerable force being exerted on her body to push her down under the water. It is also my medical opinion that during this struggle, Ms. McDermott scratched Mr. Zamora, and that was the reason for the skin under her fingernails.”
I could not help but make a half turn to gauge the jury’s reaction. There were some nods, and even those who didn’t show approval demonstrated that they understood the importance of what Dr. Russell had just said.
“Let me focus you on a part of your report, Dr. Russell. It has previously been marked as Exhibit 27. You may look at the actual report, but I have reproduced a portion that I will put up on the screen.”
Sherman walked to the overhead projector that was set up on the side of the courtroom. A member of the DA’s support staff placed the transparency on the machine and adjusted the lens to bring the image into sharper focus.
“What we can all now see is a photograph of the portion of Ms. McDermott’s upper torso,” Sherman said. “Dr. Russell, please point to the place or places where the bruising you just testified about is present.”
Dr. Russell walked out of the witness box. He picked up the wooden pointer waiting for him beside the screen.
“It’s here,” he said, tapping the screen with the stick. “And here as well,” he added, tapping a second time. “The two discolorations that you see are bruises that could only have been caused by someone applying severe pressure with their hands.”
That was the high point that Sherman wanted to end on, but Dr. Russell lifted him even higher, despite the lack of a question to prompt it.
“There is no doubt in my mind that this bruising was caused when the defendant murdered his wife. None whatsoever.”
I asked my first question without introducing myself.
“Dr. Russell, is it your testimony that it is inconceivable to you—and I mean that there’s no possibility whatsoever—that these bruises were caused by anything other than someone forcibly drowning Ms. McDermott?”
“It is my opinion that these bruises were caused by her husband drowning her. That is correct.”
“Is it possible—just possible—that these bruises occurred in some other way that would not be indicative of murder?”
“What other way?”
“That’s exactly my point, Doctor. If you’re asking me what other options there are, can we all agree that you acknowledge that there might be other explanations?�
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“I don’t know if that follows. I have no alternative explanation, but perhaps you have something that will cause me to reconsider my conclusion.”
The last thing you want to do is get into a discussion with a witness. As a cross-examiner, you can frame the question as you wish and force the witness to answer. In this case, it made better sense to have George put forth the alternative explanation, then tell the jury that Dr. Russell’s contrary view should be rejected because he hadn’t even considered other possibilities.
“Can you rule out that these bruises were incurred prior to when Ms. McDermott got into that bathtub?”
“I cannot tell precisely when the bruises occurred, but given that she drowned in the bathtub, I made the assumption they were received as part of that drowning.”
“So that is your assumption. I see. And I take it that you have the same assumption regarding how it came to be that Ms. McDermott had skin under her fingernails, even though, as a medical fact, you have no idea whose skin is under her fingernails, correct?”
“Well . . .”
“Yes or no, Doctor? Isn’t it a fact that you cannot determine whose skin is under her nails?”
“Yes. We do not currently have the scientific ability to confirm that the skin belongs to one person or another.”
“That’s right. It could be her own, in fact. And the same is true of the scratches on Mr. Zamora’s arm. As a medical fact, you have no idea how those scratches occurred, isn’t that also correct?”
“Yes . . . but the logical assumption—”
“If I wanted logic, I would have a logician testify. You are here solely because you are a medical examiner. So please limit your testimony to your medical findings.”
Sherman objected.
Before Judge Asbill could rule against me, I said, “I’ll ask my question a different way. The medical facts do not even allow you to conclude when these things occurred. For all you know, the bruising on Ms. McDermott, the skin under her fingernails, and the scratches on Mr. Zamora all occurred an hour or two before she even got into the bathtub on the night she died.”