The Best Friend

by Adam Mitzner

  48.

  Tyree Jefferson was not as publicly recognizable as the attendees of his party, but the buildup to his testimony made this his star turn. Nicky had predicted that Jefferson would be dressed like a character in a British period piece, and on this Jefferson did not disappoint. He was attired in a dark suit with a cream-colored waistcoat, a circular-collared shirt, and a bow tie.

  Ethan had already told Judge Sloane that Jefferson would be his last witness. He expected to take the remainder of the day with him, after which the prosecution would rest.

  I was back in the first chair. I sensed Nicky tensing up beside me as Tyree Jefferson took the oath.

  Sometimes, in my imagination, I thought that Nicky feeling the shame of being a cuckold would bring me some relief. During our estrangement, I sometimes fantasized about sleeping with Nicky’s future wife, or at least a girlfriend he liked, then asking him how it felt to be betrayed by both the woman he loved and his best friend.

  But now I felt no pleasure in the karma being dished out by Tyree Jefferson. I knew firsthand that there was no more humiliating a feeling. Even though Nicky’s betrayer wasn’t his best friend, I doubted that provided any solace.

  “Please tell the jury about the nature of your relationship with Samantha Remsen,” Ethan said after he had gotten the introductory questions out of the way.

  “We were lovers.”

  “For how long?”

  “Not very. Three weeks.”

  “Did you know that Ms. Remsen was married?”

  “Of course, but she said—”

  “Objection.”

  My main objective for Jefferson’s direct was to keep Ethan from getting Samantha to testify from the grave that she’d told Tyree she was going to leave Nicky. That meant being vigilant whenever it seemed as if Jefferson were about to recount something Samantha had told him.

  Judge Sloane sustained my objection and then helped my cause even more by saying, “Mr. Jefferson, you are not to testify about anything that Ms. Remsen said to you.”

  Jefferson testified that he did not know if Nicky had been aware of the affair, but that he wouldn’t have been surprised if he’d sensed something, which I took as a not-too-subtle sexual brag. He recounted the party as his guests had, although Jefferson said his use of drugs and alcohol was less than the others claimed, likely because he didn’t want to admit that he was under the influence when he drove Samantha home.

  It was what had happened after the party that mattered most, however. When Ethan got to that, the courtroom became still.

  “What did you and Ms. Remsen do after the party ended, when you were alone?”

  Jefferson displayed a prurient smile. “We had sex.”

  “When did that end?”

  “About an hour after we started,” he said, looking proud of himself.

  “Your Honor,” Ethan said, “we’d like to be heard in chambers.”

  Nicky whispered to me, “What is this about?”

  “He wants permission for Jefferson to testify that Samantha told him she was going to leave you,” I whispered back.

  Chambers actually meant the small conference room to the rear of the courtroom. The space we crammed into was barely large enough to fit the eight of us (including the judge’s law clerk and court reporter). There were only six chairs, so Nicky and Ethan’s number-two stood.

  “Okay, Mr. Ethan, it’s your show,” Judge Sloane said. “What is Mr. Jefferson going to say that is so important to require an in-chambers conference?”

  “That Samantha Remsen decided to return home that evening solely so she could end her marriage to the defendant,” Ethan said with none of the flourish he would use if this were in front of the jury. “Specifically, she told Mr. Jefferson that she wanted to go back to her house to tell Mr. Zamora to return to California and that, until he did, she would be staying with Mr. Jefferson. She also intended to collect some of her belongings, her phone, and some clothing, and to get her car. Mr. Jefferson’s statements on this score are directly relevant to the People’s theory that Ms. Remsen’s disclosure triggered a violent reaction by Mr. Zamora, which led to Ms. Remsen’s murder. His testimony is therefore firmly within the parameters of Rule 8.41, the state-of-mind exception to the hearsay rule.”

  The state-of-mind exception allowed the jury to hear statements made by someone who was not under oath or subject to cross-examination if the statement reflected that person’s state of mind. It was an important prosecutorial tool in spousal killings. No judge excluded the testimony of a now-murdered wife telling her sister or a friend days before her murder, “I think my husband is going to kill me,” even though that statement is pure hearsay.

  It was déjà vu all over again. The prosecutor had tried the same gambit in Nicky’s first trial. Back then, it had been Carolyn’s sister who was going to testify to her mental state to let the jury know that Nicky was having an affair. Thirty-four years ago, I had convinced the judge that the hearsay exception didn’t apply.

  Now I had to do it again. Only this time, I had to block Nicky’s wife’s off-the-stand assertion that she was planning to leave him for another man.

  The judge’s law clerk handed her an open book. Judge Sloane looked down at the page as the rest of us waited.

  “I’m going to read the rule—I should say the exception to the hearsay rule—into the record,” Judge Sloane said. “As Mr. Ethan said, it is section 8.41 of the New York code. I quote, An out-of-court statement by a declarant describing the declarant’s state of mind at the time the statement was made, such as intent, plan, motive design, or mental condition and feeling, but not including a statement of memory or belief to prove the fact remembered or believed, is admissible, even though the declarant is available as a witness.”

  It didn’t seem to me that Jefferson’s account of Samantha Remsen’s final words were analogous to those of a terrified spouse fearing for her life. Tyree Jefferson had every reason to lie. If Nicky hadn’t killed Samantha, then he had.

  I made that point to Judge Sloane. Ethan argued otherwise. And after ten minutes of that back-and-forth, Judge Sloane sent us back to the courtroom to wait.

  When she returned to the bench, she announced her ruling: the proffered testimony met the state-of-mind exception. My objection was overruled, and Jefferson’s recounting of what Samantha had told him would be admitted.

  Ten minutes after that, Tyree Jefferson was back on the stand, explaining that right before Samantha was killed, he took her back to her house so that she could tell her husband she was leaving him.

  “Did Ms. Remsen tell you why she wanted to go back home, even though it was by that time after one o’clock in the morning?”

  “She wanted to go home and tell Nick that their marriage was over. After she did that, she was going to collect her clothing, her phone, which she’d forgotten to bring to the party, and some other things, including her car, and then drive herself back to my house.”

  “Did she ever return to your house?”

  “No.”

  “Did that concern you?”

  “Not at first. I figured that maybe they were still fighting it out, or the discussion took longer than Sam figured. Or she concluded she was too drunk to drive. But when she didn’t show up on set the next morning and wasn’t answering my calls . . . and then after I heard her car was still in the garage and her phone was still on the nightstand at her house, well . . . that’s when I knew he’d killed her.”

  Judge Sloane allowed a ten-minute recess before my cross-examination. She could have given me ten hours, and it still would have been impossible to undo the damage that Tyree Jefferson had inflicted on the defense.

  “You need to throw everything we have at him,” Maggie said during the break. “The jury has to believe that he killed Samantha by the time you’re done.”

  I smiled at her. “Is that all?”

  Nicky wasn’t smiling. He looked shaken by Jefferson’s testimony. I did not get the sense that he thought
Jefferson was lying, however.

  He looked at me in desperation. “I’m counting on you, Clinton.”

  I started the cross by taking Jefferson through the timeline.

  “Mr. Jefferson, you claim that Mr. Zamora left your party at approximately eleven thirty p.m., is that right?”

  “Yes. Give or take.”

  “And the rest of the guests left within the next thirty minutes.”

  “Yes. By midnight, Sam and I were alone.”

  “And you claim that you then had sex with Ms. Remsen, and that lasted until approximately one a.m.”

  “Yes. Maybe a little later than that,” he added with the same smirk from before.

  “And at about one fifteen a.m., you claim that you got in your car and drove Ms. Remsen home. Is that your testimony?”

  “Yes, that is what happened.”

  “And you say that the reason you took her home was because she could not wait until daybreak to tell her husband she wanted a divorce, is that right?”

  “That is what she said, yes.”

  “She absolutely, positively had to tell him that night. She couldn’t wait until the next day? Your testimony is that she had to leave your warm bed and, in the middle of the night, while she was drunk and high, go end her marriage.”

  “She told me that was what she wanted to do and she did not want to wait.”

  “You claim that you were not drunk or high. Do I have that right?”

  “That’s right. I drove her. I was able to drive.”

  “Given your clearheaded state of mind, you must have realized that she should wait until morning to discuss ending her marriage.”

  He shook his head regretfully. “I wish more than anything else I had thought of that. But I didn’t. I just wanted to do what Samantha wanted me to do. That’s all I was thinking about.”

  I thought through what he’d just said. Was it resonating with the jury? Would going back over it reveal how self-serving it was, or only reinforce that Jefferson had made a fatal mistake in acquiescing to Samantha’s request, nothing more?

  These are the split-second decisions that determine how your client will spend the rest of his life. In this case, I moved on.

  “And that ride—from your house on the beach to Ms. Remsen’s house on the beach—took no more than five minutes. So, according to your testimony, Ms. Remsen got out of your car at the latest, at about one twenty a.m.”

  “I can’t be certain of the precise time, but as a general matter, that’s correct.”

  “Who else, other than you, can support any of this timeline from the moment your last guest left?”

  “No one. It was just Sam and me.”

  “So all we have to go on about what happened after the last guest left is your word and your word alone.”

  He glared at me. I glared back.

  “Do you not understand the question?” I asked.

  “No one else was there except me and Sam,” he said. “And now she’s dead.”

  “Mr. Jefferson, isn’t it a fact that everything you said happened between you and Ms. Remsen is a lie? That she stayed after the party to talk to you about your sexual harassment.”

  “No.”

  “Isn’t that what it is when a boss—as the director of the film, you are the boss, are you not?—starts such a relationship with an employee?”

  “Not really.”

  “Of course it is. You ran the show. You called the shots. And you made a sexual advance on your subordinate.”

  “It was consensual,” Jefferson said.

  “Objection!” Ethan shouted over his witness’s answer.

  I continued over both of them. “And when she wanted to end the sexual relationship you initiated, you threatened to fire her. That’s some real Harvey Weinstein action by you.”

  “Objection!” Ethan yelled, this time even louder.

  But I raised my voice above his. “Ms. Remsen said she’d go public, and that’s why you killed her!”

  “Objection, Your Honor!” Ethan said at a decibel level that hurt my ears.

  By now Judge Sloane was pounding her gavel. “That is enough, Mr. Broden!” she shouted. “When there is an objection lodged, I expect you to stop your questioning and allow me to rule. Now there must have been five questions asked there that Mr. Ethan objected to. I’m going to sustain the objection on every single one of them. That means, ladies and gentlemen of the jury, you are not to infer anything—and I mean anything—from Mr. Broden’s questions, which I’m ruling were improper.”

  I shook off the admonishment and took a deep breath before reengaging the director.

  “Mr. Jefferson, isn’t it a fact that Ms. Remsen never told you that she was leaving her husband? She told you the exact opposite—that she loved him. She also told you that she was going to report your sexual harassment to the studio. You knew that meant that your career was over. So you killed her because nothing—not even a woman’s life—was more important to Tyree Jefferson than his career.”

  Ethan objected. I’m quite sure that Judge Sloane would have ruled the same way she had a moment before, telling the jury to disregard my questions, had Tyree Jefferson not answered so quickly.

  “No. Everything you just said, mate, it’s all crazy. Sam was in love with me. And that’s why her husband killed her.”

  I might have gone back at him, asking the same question again and again, if only so the jury heard my conviction that Jefferson was Samantha’s murderer. But each time they also would have heard his denial.

  In another split-second decision, I told the judge that I had no further questions.

  49.

  “You’re not going to present any case on my behalf, are you?” Nicky asked that evening when we were alone at my house.

  I’d told Maggie that was my intent. She must have shared my strategy with Nicky.

  “It’s your call, in the end. But that is my strong recommendation.”

  “I’ve done whatever you said so far, Clinton. Even when it didn’t make any sense to me. I still did it. Even when it was the opposite of what you did the last time. Even when I knew Maggie thought it was wrong. I followed your advice because I thought, Clinton loves you like a brother, and he’s the best criminal defense lawyer of his generation.”

  I wasn’t completely certain where he was going with this, but I had a strong suspicion I wasn’t going to like it.

  “I didn’t kill Samantha,” he said.

  I’d heard him declare his innocence before. With regard to Samantha, of course, but also thirty-four years ago, when he denied guilt in Carolyn’s murder and claimed he wasn’t having an affair.

  I had believed him then, and that turned out to be a mistake. I didn’t plan to repeat it.

  As if he realized I wasn’t buying what he was selling, Nicky said, “Here’s the God’s honest truth, Clinton. Believe me or don’t, I don’t give a damn. But at least I know I’m telling you what happened. I don’t know if Samantha actually said those things to Tyree, but he was telling the truth when he said he took her back to our place. I was shocked when she came back because she’d told me at the party I should return to LA, and she was going to stay with Tyree until I did.” He shook his head. “If she hadn’t forgotten her damn phone . . . That’s why she came back that night. At least that’s what she told me. I thought it was my last chance to save my marriage. I begged Samantha not to leave me. I thought . . . I don’t know, that I could still talk her out of it. We went outside to the deck. Samantha didn’t want to sit on the furniture because it was soaked from the storm. So she pulled herself onto the railing and . . . she slipped off. She was dead as soon as she hit the ground.”

  I tried not to show my shock. It had never occurred to me that Samantha’s death was an accident.

  Perhaps a more objective lawyer would have considered that possibility. Then again, I doubted Maggie had thought of it either.

  “And then you put her body in the ocean?”

  “That’s my only crim
e. I know it’s not nothing. And if they’d let me plead guilty to that, I would. I swear that I would. But I didn’t kill Samantha, and I knew no one would ever believe me. I didn’t have a choice, Clinton.” He looked at me with eyes as big as saucers. “You’ve got to believe me. I didn’t kill Samantha. It was an accident.”

  When I was slow to confirm that I believed him, Nicky said, “I guess you don’t really care one way or the other about whether I killed Samantha. All you care about is making me pay for Carolyn’s murder.”

  It was the first time he had ever said it. The look in his eyes when the words came out suggested that he wished he could take them back.

  “I don’t care about what you did to Carolyn,” I said. “I’ve only ever cared about what you did to Anne.”

  Nicky Zamora, the voice of his generation, was mute. Finally exposed for who he was to me—a murdering, lying backstabber who’d had an affair with his best friend’s wife.

  I could have asked him point-blank whether it was Anne or he who’d killed Carolyn. But I didn’t. Instead, I walked away before he could say another word.

  The next morning, before the court day began, I told Maggie that I needed to discuss something with her. Once we were alone in the room usually reserved for the next witness, I shared my exchange with Nicky.

  “Do you believe him?”

  “I do. There was something about the way he said it that . . . I don’t know, but yes, I do believe him.”

  “The good news, I guess, is that he’s innocent,” she said. “I didn’t think he was.”

  “He’s not innocent, Maggie. He was my best friend. Not like a brother, because I’ve known plenty of people who can’t stand their brothers. Like a soul mate. Before I met Anne, he was the person I loved the most. I loved him differently than I did her, obviously, but no less completely. And then they both betrayed me.”

  I’d never said this aloud before, although the thoughts had reverberated in my head a million times, in countless combinations.