by Adam Mitzner
“I’d like to publish Exhibit 23, Your Honor,” Sherman said.
The screen lit up with a larger-than-life image of Carolyn and Nicky dressed to the nines. Carolyn was wearing a black cocktail dress, her dark hair shiny as polished granite. Nicky looked like James Bond in his tux.
“Was this photograph taken during the party you just testified about?”
“It was,” Quinn said.
Sherman pulled the photograph off the overhead projector. The screen was white for only a second, however. He quickly replaced it with an enlargement of the prior picture. It looked a little vulgar, as it cut off Carolyn’s head and focused almost exclusively on her cleavage.
My stomach sank. I now knew where this was heading.
Sherman didn’t ask any questions. Instead, he stood silently as the jury stared at the necklace that Carolyn had worn to the Martin Quinn formal. Instead of the Tiffany sapphire pendant Nicky had purchased the day before, around Carolyn’s neck was a string of pearls.
That night, Anne asked about the evidence the prosecution had put on about the affair.
“It was a bad day,” I said.
“Bad how?”
“I’m not sure I want to discuss it now,” I said.
She nodded as if she understood. “Okay. But I’m sure it’s not as bad as you think.”
I could have left it there. Maybe I should have, but I didn’t.
“I’m certain Nicky was having an affair,” I said.
She waited for me to say more. To explain why I’d had this epiphany in court. When I didn’t, she said, “I thought you said the evidence was all circumstantial.”
“Yeah, well, circumstantial evidence can be true. Often it is.”
“What did Nicky say about it?”
“What does it matter what he said? He’s lied to me from day one about it. I’m sure he’ll lie to me about it until the day I die.”
She looked at me sharply, waiting for me to answer her question.
“There was this necklace,” I said. “Expensive. From Tiffany’s. Nicky had told me that he bought it for Carolyn to wear at the Martin Quinn formal, so I didn’t think twice about it when I saw the purchase on his credit card. But in court today, the prosecution proved that Carolyn hadn’t worn it at the formal, which was something Nicky failed to mention.”
“Maybe . . . I don’t know . . . maybe Carolyn didn’t think the necklace went with her dress or something.”
“That’s what Nicky says too. She thought it was too showy for a firm function. But the detectives said that it wasn’t even in their house. So where’d it go?”
This stopped her for a second. “I don’t know. Maybe she didn’t like it and returned it. Or she lost it.”
“No. Tiffany’s would have had a record of the return. And if she lost it, she would have told Nicky.”
“Maybe she thought he’d be upset. Maybe she was waiting for the right time to tell him.”
Anne was trying hard to restore my faith in my best friend. “Yeah, maybe,” I said.
In point of fact, I believed that this had become an Occam’s Razor situation—the simplest explanation is the correct one. Nicky had bought the necklace for his mistress, not for Carolyn.
17.
The next day, I began to present the defense’s case.
My ME witness, George Graham, told the jury that it was possible that Carolyn had passed out in the bathtub, the victim of a toxic cocktail of wine, antidepressant medication, her early-stage pregnancy, and the hot water.
“On their own, none of these factors is particularly dangerous,” George explained, “but combine them, and that could be enough to have caused Ms. McDermott to lose consciousness.”
This was the best George could do. I had engaged two other experts, both of whom were willing to provide a less equivocal conclusion, but in the end, I could not stake my friend’s future on testimony from an expert less reliable than George.
After establishing the possibility of accidental drowning, I addressed the evidence that there had been a struggle.
“Dr. Graham, were you present in the courtroom when the County’s Medical Examiner, Dr. Russell, testified?”
“Yes, I was.”
“Do you recall his testimony regarding certain bruising that was found on Carolyn McDermott’s upper torso?”
“I do recall that.”
“Did you draw any conclusions regarding that testimony when you heard it?”
“I did.”
“What were those conclusions?”
“That he had not considered other possibilities.”
That was exactly how the Q and A was scripted. Short questions, shorter answers.
“Dr. Graham, please tell the jury what you concluded about the cause of the bruising present on Ms. McDermott’s body.”
“The manner of bruising is consistent with explanations other than someone drowning her.”
I walked up to the railing of the witness box. I only wished that I were taller, so my crotch would line up with George’s mouth, to make the point better visually.
“What is another possible explanation for the bruising, Dr. Graham?”
“At the risk of being indelicate, and recognizing that we are in a court of law, I can certainly see it being the result of Mr. Zamora and his wife engaging in a sexual act where he is standing and she is on her knees in front of him. That would cause the same bruising pattern.”
“Oral sex, in other words?”
“Yes.”
“Would that also explain how Mr. Zamora’s forearm was scratched by Ms. McDermott?”
“It would. While this area is outside my expertise as a forensic pathologist, it is not uncommon that during sexual activity, scratching occurs. Therefore, it would also explain the marks on Mr. Zamora, as well as the skin under Ms. McDermott’s fingernails.”
Sherman’s first question on cross undid a lot of my good work on direct. “Dr. Graham, can you rule out that Ms. McDermott was murdered?”
“No. All I can testify to competently is that there are factors involved that could have caused her to pass out. And if that happened, she would have drowned.”
“I understand. So put another way, what you’re saying is that the evidence is consistent with Mr. Zamora murdering his wife?”
It hurt to watch. Like seeing your kid forget her lines onstage and knowing there’s nothing you can do to help.
“I wouldn’t say that,” George replied. “Instead, I’d say that the forensic evidence is ambiguous. It could be interpreted to be consistent with either a murder or an accidental drowning.”
Nicky was my only other witness.
Electricity fills the air when the defendant takes the stand. Finally, the jury will hear from the only person who can tell them what actually happened. The irony is that the defendant is often the least reliable witness of all. No other trial participant is as incentivized to lie, so it should hardly come as a surprise that, more often than not, they do.
Nicky explained that the life insurance was purchased in tandem with their closing on the house. “I could never have afforded to stay in the house without Carolyn’s income,” he explained. “That’s why the bank required that I have sufficient life insurance on Carolyn to cover the mortgage. It wasn’t for me. It was for Citibank. I didn’t even remember that we had taken out the policy until I saw it as part of this case. And I never knew that Carolyn had life insurance at work. We never talked about that kind of thing.”
He sounded every bit as confident when I asked my next question, whether he’d ever been unfaithful to Carolyn.
“Absolutely not.”
“Ever been to the Hilton hotel in midtown?”
“I can’t say that I never walked through the lobby, maybe to use the men’s room or something. But I never checked in. That never happened.”
He was two for two. I moved on to the forensic evidence, hoping that Nicky would be equally convincing on that subject.
“Your wife had s
ome bruising on her body, and she had skin under her fingernails. You also had some faint scratches on your forearm when the police arrived at the scene. Can you explain how those things occurred?”
“The night before Carolyn died, we had sex. As part of that, she . . . like Dr. Graham said, she was kneeling and I was standing. I had my hands on her chest, and she had hers on my arms. Both of us got caught up in the moment and . . . well, marks were left.”
We had practiced this part of Nicky’s testimony at length. He delivered his lines exactly as rehearsed, complete with the right amount of emotion.
I could now see the finish line. But before I broke the tape, I still needed him to explain away the lingerie and the necklace.
“Please tell the jury for whom you purchased the nightgown and the necklace.”
“For Carolyn, of course.”
“You heard a detective testify that the police did not find the nightgown among Carolyn’s possessions. Do you know why that would be?”
“Yes. This is a little embarrassing, but she wore it on the night I gave it to her, and it was . . . torn. After that, she threw it out, I guess. I don’t know. Maybe she brought it to a dry cleaner to be mended. I doubt it, though, because the nightgown cost less than thirty dollars. It probably wasn’t worth the cost of tailoring.”
“The prosecution made quite a bit of a necklace that you purchased. Do you recall that?”
“I do.”
“And that necklace was more expensive than fifty dollars, wasn’t it?”
“Much more. I paid about fifteen hundred dollars for it.”
“Why did you purchase that necklace?”
“To give to Carolyn.”
“Did you give it to her?”
“Yes. The same night I bought it.”
“So that would have been the night before the Martin Quinn formal?”
“That’s right. I bought it because I thought she might want to wear it at the formal.”
“We saw evidence that she did not, in fact, wear it to the firm formal, though. Is that right?”
“She thought it was a little showy for a work function. So she wore an older necklace she had. Obviously, it didn’t matter to me.”
“You heard a member of the Westchester police department testify that they did not find the necklace at your home when they executed a search warrant looking for it. Do you recall that testimony?”
“I know that’s what they said. But it makes no sense because the necklace was there. Carolyn was a little strange in this respect, but she kept jewelry of any value rolled up in a sock in her top dresser drawer.”
“How can you be so sure that the necklace was there?”
“Because that’s where I found it.”
Nicky reached into his pocket. A moment later, dangling from his fingers was the necklace on which the prosecution had premised a large chunk of its conclusion that Nicky had cheated on Carolyn.
Sherman was like a bull in a china shop when he got his turn.
“So you’re telling this jury that a team of highly trained detectives just missed this necklace? Is that your story, Mr. Zamora?”
“I don’t know about them being highly trained, and I’m not telling any stories,” Nicky said calmly, exactly the way I had instructed him to respond to aggressive questioning. “But if you’re telling me that the police were looking for this necklace and they didn’t find it, then I would agree with you that they missed it. Because it was there.”
“How about this as an alternative explanation, Mr. Zamora—you purchased the expensive necklace as a gift for your mistress. After you murdered your wife, she returned it to you.”
“That’s not true,” said Nicky.
“And it’s your testimony, under oath, that the reason your wife did not wear the necklace after you gave it to her as a gift expressly to wear at the firm formal was because she thought it was—your words—too showy. That’s your testimony?”
“That is not only my testimony, it’s the truth.”
Sherman didn’t respond, other than to flash a smile as if to say, Of course. You would never tell a lie.
He put the photograph of Carolyn at the formal back on the overhead projector.
“Is it your sworn testimony, Mr. Zamora, that your wife thought that this necklace, which appears to have diamonds in between the pearls, was less showy than the sapphire necklace we saw earlier, and that she decided to wear this one, and not the one that you had just purchased for her for more than fifteen hundred dollars?”
“It is my testimony, and it is more understated. The pearl necklace is costume jewelry. Those are not real pearls or diamonds.”
“Where is that necklace today?”
Never ask a question you don’t know the answer to is practically the golden rule of cross-examination. Nicky made Sherman pay for the mistake. In spades.
“She was buried in it,” Nicky said.
Sherman actually laughed. “You want this jury to believe that you buried your wife in fake gems and costume jewelry?”
“I don’t make very much money, Mr. Sherman, and it was the first present I ever gave Carolyn. She always said that made it special to her. I thought it was a fitting tribute to my love to bury her in it.”
18.
That night, Anne asked me if I thought I would win. She phrased it like that, as if the victory would be mine, not Nicky’s. That’s how we often talked about my cases, as if I were the only interested party.
She hadn’t seen any of the trial, but each night I’d filled her in on the developments. I’d just finished sharing with her the theatrics of the necklace reveal. I suspect that it was this turn for the better that had prompted her question, one that she’d been afraid to ask before now.
In my career up to that point, I had won slightly less than 20 percent of my trials. When people asked about my winning percentage, I had always hedged that it was too broad a question to have any meaning. “The better indicator,” I’d say to them, “is the percentage of cases I’ve won that I thought I might win.” That inevitably resulted in my questioner asking for that figure. “There I’m around fifty-fifty,” I’d answer.
In other words, in cases I expected to win when the jury began deliberations, I was wrong 50 percent of the time.
“I don’t know,” I told Anne.
Few things are as simultaneously boring and fraught with peril as the time spent waiting for the jury to reach a verdict. At any moment the jury could come back; every hour was potentially the last Nicky would experience as a free man.
Even though there was nothing to do all day but wait, we were still required to be in court promptly at nine thirty. The judge sent the jury home at five. That added up to seven and a half hours each day spent sitting and waiting.
That’s what we did on the first day. And the second. And the third.
During jury deliberations, the dynamic between lawyer and client often switches. Once my job is done, I often can no longer summon the resolve to tell my client it’s going to end well. Usually, defendants pick up this slack, expressing confidence in an acquittal, often praising my brilliance in the process. Of course, when the verdict goes the other way, it’s my trial work that’s to blame.
With Nicky, however, it wasn’t professionalism that kept me from predicting the outcome. I was too close to the matter to know what version of Nicky the jury was considering: devastated spouse or philandering murderer.
The Zamoras had largely kept to themselves during the trial, but it wasn’t hard to see that they were dying a little bit each day. If I thought that they’d looked elderly at the arraignment, now they seemed downright ancient.
I had taken every opportunity I could to tell them I was confident of acquittal. But the Zamoras were smart enough to know the truth. It could go either way.
The official announcement came from the judge’s clerk at three o’clock on the fourth day. Until then, there had not been a peep out of the jury. No request that they be read back any portion
of the evidence, no need for further explanation on the law. Nothing.
Somehow, the press already knew; a reporter for the New York Post had told me ten minutes earlier that he’d heard there was a verdict. His scoop didn’t include what it would be, however.
“The judge will take the bench at five to read the verdict,” Judge Asbill’s law clerk told the parties. “He has another matter that he has to attend to first.”
I couldn’t imagine what would be more pressing than the verdict in a high-profile murder case. Then again, perhaps his prior commitment was a ruse, and the delay was to give the media the time they needed to be front and center for the judge’s star turn.
I called Anne from the pay phone in the hallway. “There’s going to be a verdict at five. Can you come down here and wait with us?”
As she had with my prior invitation, Anne at first declined. “I don’t know if I’ll be able to take it if Nicky’s convicted,” she said.
“Please, come,” I said. “I wouldn’t ask, but I’m afraid I won’t be able to take it either. I don’t want to be alone if it happens.”
Two hours later, right before five o’clock, when Nicky and I entered the courtroom from the private space that was reserved for us during deliberations, Anne was sitting in the gallery’s first row, right behind defense counsel’s table. I smiled at her and mouthed, Thank you. She smiled back and mouthed, Good luck, then, I love you.
Judge Asbill took the bench at five on the dot. Five minutes after that, the jury was seated, and a minute later, the foreman officially told the judge that the jury had, in fact, reached a verdict. After another few minutes of procedural rigmarole, including the reading of the charge, the jury foreman passed the verdict slip to the court officer, who passed it to the judge for review. Judge Asbill told the defendant to rise and turned to the foreman for the big reveal.
“On the only count of the indictment, murder in the second degree, what is the jury’s verdict?”
I stood shoulder to shoulder with Nicky, although in actuality my shoulder was slightly below his armpit. I could feel my legs turning to jelly. Nicky looked straight ahead. If he felt any anxiety, he hid it better than I.