35
I don’t believe in long opening statements. Too many lawyers place too much faith in their rhetorical skills, in their ability to convince anyone of anything if only given enough time. Conceit of this sort kills self-analysis—the ability to edit. Start strong, say your piece, sit down. The ability to maintain focus is a lost skill in the digital age, and the attorney who bores his jurors ensures that their minds will wander to other things.
Judge Woodcomb turns the floor over to me. I remain seated for a few seconds to let the silence settle. I stand up, walk to the center of the room, face the jury, and prepare my courtroom voice.
“‘He’s going to kill me!’”
A lot of lawyers start with sweet introductions. Not me. Man is an emotional animal. Grab the jury’s attention and tell a story. Stories move people. I muster up all the pathos I can and relay the tragedy of Sara Barton.
“‘He’s going to kill me!’ Sara Barton spoke those words. Seventy-nine days later, Sara’s prophecy came true. Bernard Barton—the defendant, that man over there—pointed his gun at his wife and squeezed the trigger. A shot straight into Sara’s heart.”
I pause to allow the jurors to create their own mental pictures of the scene in their heads. What the mind can see, the mind will believe. I next take the jury on a tour of what the State’s evidence will show—Barton’s desperate need for money; the trips to Las Vegas; the gambling losses; the $5 million of life insurance on Sara’s life; Barton’s affair with a much younger woman; the murder weapon with Barton’s fingerprints on the unused bullets; the lack of an alibi at the time of the murder; the video of Sara and Brice and the 911 call that followed; Sara’s bruised back after her husband beat her.
Thirteen minutes after starting the story, I approach the finish line. I move closer to the jurors to foster greater intimacy. The connection is strategic. I seek to enlist them as my partners in the quest for justice.
“Ladies and gentlemen of the jury, on behalf of the State of Georgia, I’m going to ask you to hold Bernard Barton accountable for the death of his wife. I’m going to ask you to listen to the evidence and follow the bread crumbs right to Bernard Barton’s door. I’m going to ask you to listen … to Sara herself.”
***
Millwood looms large over the courtroom. Judges sit behind raised pedestals to enhance their authority over the lesser men and women who appear before them. The visual effect usually works, but not with Millwood. His presence cuts too formidable a figure to be dwarfed by such pretensions. His oak-tree frame coupled with his oak-tree integrity drew me to him the first time we met. Working at his side for years only enhanced my regard. And now we sit at opposite tables.
He begins his opening statement:
“How do I stand before you and prove that Bernard Barton did not kill his wife? I don’t. That’s not my job. It’s the State’s job to prove beyond a reasonable doubt that he did. And that they cannot do. Sure enough, the State spins a compelling story, if only it were true. Let’s start with what the evidence will not show.”
Millwood starts away from the jury but walks slowly to a perch right in front of them, leaking gravitas all the way.
“The evidence will not show that Bernard ever fired that gun. His fingerprints were not found anywhere on the gun, no prints on the barrel, on the trigger, or anywhere. But his prints were on the unfired bullets in the gun, says the State. So what?”
He roars the “so what?” as if to dare anyone to answer the question.
“The gun belonged to the Bartons—Bernard and Sara. He bought it for her protection for when he was away traveling on business. His prints are on the bullets because he loaded the gun himself.”
I’m floored. That evidence can only come in through Barton’s own testimony, and it is foolish to commit to that course of action this early. Millwood would never agree to such nonsense unless pushed into it by his client. The idea that Barton is paying Millwood a boatload of money only to ignore his advice fills me with sardonic glee. I also smell weakness. They have to deal with the gun, and I take comfort that they feel risking Barton on the stand is the only way to do so. Knowing I will get a crack at Barton on cross-examination already feels like a monumental win. He won’t wear well.
Millwood goes on, “The truth is that anyone who visited the Barton residence had access to that gun. Brice Tanner, one of Sara Barton’s lovers, will testify that he was there the night before the murder. Sam Wilkins, Sara Barton’s lawyer, was there the night of the murder. He discovered the body at 10 p.m. that night. What lawyer visits his client at her house that late?”
The question is argumentative, and I could move to have it stricken, but I don’t dare put a spotlight on that particular issue. Millwood stands silent for a moment and allows the unstated gossip of the question to brew into something stronger.
“Sam Wilkins won’t testify at this trial, so I won’t get to ask him why he visited Sara Barton so late at night. Sam is dead from a bullet hole in the head. The State forgot to mention that in their opening statement. The only person we know for sure who was at the murder scene at the time of the murder is shot shortly thereafter. That’s strange, and the State has no explanation for it.”
Crafty. I’ve been spinning my wheels for weeks trying to discern how Millwood would approach Sam’s death, and he just shifted the responsibility to me. If I don’t explain it, Millwood will pound the table in incredulity. I have no choice but to take the bait. When your actions as a lawyer tell the jury that you’re uncertain about your case, you shouldn’t be surprised if the jury reaches the same conclusion.
I immediately rule Sam’s death a suicide. Murder raises too many unanswerable questions: who killed Sam, why did that person kill Sam, and how does Sam’s murder relate to Sara Barton’s case? That’s a quagmire I intend to avoid.
“Sam Wilkins has another connection to the murder scene. Sam’s wife, Liesa Wilkins, was also in the vicinity of the Barton home at the time of Sara Barton’s murder. Traffic cameras caught her driving away. Do I know if Brice Tanner, Sam Wilkins, or Liesa Wilkins killed Sara Barton? No. I do not. But red flags are everywhere.”
He knows about Liesa and fully intends to use her. Great.
Millwood continues the process of laying out detonation devices to tripwire my case. He doesn’t share my aversion to long openings. He considers himself a builder, and building takes time. The difference in our styles—he’s the tortoise, I’m the hare—grew starker over the years. And while I’m well aware of the outcome of that particular fable, the hare’s downfall was one of hubris, not strategy. He took the tortoise for granted. I won’t make that mistake with Millwood.
Forty-five minutes in, I steal a glance at the jurors. Because it’s their first day on the job, they figure to be at their attentive, nervous best. But a few of them struggle to maintain focus. Likely sensing the growing complacency of his audience, Millwood makes his final approach for landing.
“I’m going to tell you something I’ve never told a jury before, and I’ve tried a bunch of cases in my life. You won’t like my client. He’s abrasive and arrogant. He cheated on his wife throughout the course of their marriage. He gambles too much, and he acts like a little boy who has never grown up. But you are not jurors in a popularity contest. You’re not charged with deciding whether Bernard Barton is a good person. He’s not. You’re charged with deciding whether the evidence shows beyond a reasonable doubt that he murdered his wife. The evidence presented will not meet that standard.”
***
The first thing I do back in my office is call Liesa. The news that she is now front and center in the Barton trial has already landed on her. I smell the alcohol on her breath over the phone.
“We need to talk about how to handle your testimony,” I say.
“No we don’t. I don’t care about your stupid case. I care about my children. I’m not talking to you. I’m not talking to that other lawyer.”
“Do you care about being accused of murder
on national television?”
Heavy breathing is the only thing I hear on her end. She needs to sober up. Any erratic behavior now becomes fodder for Millwood to keep dropping hints that Liesa may be a murderer. I expect the worst. Liesa has played this thing wrong from the beginning. Little reason exists to think she’ll change now.
Trying to illicit some response, I say, “Millwood’s going to subpoena you, Liesa. You can’t run from this.”
She hangs up.
Did Liesa kill Sam? I credited her denial when I asked her the same question at her house. I’m not so sure now. Sam gave her plenty of reason. Liesa gave up everything for him only to be betrayed in favor of another woman. The insurance money is also a nice pot of gold at the end of the rainbow. Three million dollars is three million dollars. The location of Sam’s murder—if it was murder—further suggests that someone close to Sam killed him. He didn’t walk into the woods with a stranger.
36
Ella calls Cecil Magnus to the stand. The old coroner strides up to the witness box with the royal bearing of a king. He takes his seat with an Old World dignity that teeters on extinction. The gentlemanly nod he offers to the jurors melts their hearts. After a ho-hum series of witnesses establishing the preliminaries with some of the first officers on the scene, Cecil will kick the case into high gear.
Law enforcement witnesses require special handling in a city with a majority black population. African-American jurors carry with them a well-earned distrust of the police—a wariness foreign to most whites. Mindful of this baggage, Ella questions most of our witnesses who serve in some law enforcement capacity. The subliminal message behind this strategy is that if Ella trusts the witness, then African-Americans on the jury can, too. The exception to this typical work division is Scott. I always question him—the two of us seemingly born on the same page.
With Cecil, an additional reason makes Ella the obvious choice to handle his direct examination. I think Cecil likes me, probably could even tell you my name. I know Cecil likes Ella. I could say that Ella is the daughter Cecil never had, except that Cecil has two other daughters and his affection toward Ella isn’t all together fatherly. She is beautiful, and I’m not the only man to notice.
Ella starts with the basics, allowing Cecil to tell the story of his long-ago journey to becoming Fulton County Coroner. I’ve heard the routine more times than I can count, but the telling always sounds as fresh as the morning dew. The effect in the courtroom is captivating, and the jury now has no doubts about the expertise of the witness. Whatever Cecil says going forward will be written in stone as the rock-solid truth. Millwood knows as much. He won’t dare challenge Cecil, but only highlight what the coroner doesn’t say.
The meat of the testimony follows. To prevail on a murder count, the State bears the burden of proving beyond a reasonable doubt that Bernard Barton intentionally killed his wife with malice aforethought. The most elemental part of this showing requires proof that Sara Barton is, in fact, dead. Cecil testifies that he confirmed the victim’s identity through driving license records and a personal identification of the body by the next of kin.
“And who identified the body of Sara Barton?”
“Her husband—the defendant.”
“How would you describe his demeanor when he identified his wife’s body?”
“Cold. Distant. Matter of fact. In a hurry to get out of there.”
Ella walks back to the prosecution table and picks up a folder. The admission of autopsy photos—like the crime scene photographs I’ll later introduce through Scott—is a ritual in every murder case. A dead body demands justice. But unlike the photos of DeShawn Carter’s exposed brain matter in the Corey Miller case, the pictures of a dead Sara Barton lack much gruesomeness. Instead, the ghostly pallor on the victim’s face will have to do.
Establishing the cause of death is the last piece that Cecil brings to the puzzle. Some coroners get stuck in the web of medical jargon and render conclusions confusing to lay people. But Cecil avoids the weeds of too much detail and tells it to the jury straight—Sara Barton died because of a gunshot wound to the chest.
“And were you able to make any determination about the type of gun used to kill Mrs. Barton?”
“Yes. Based on the entry wound and the ammunition recovered from the victim’s body, I concluded that the murder weapon was a .22 revolver.”
***
Millwood strides up to the front and turns to face the jurors as he begins his questioning of Cecil. The point of this tactic—a tool used by all skilled cross-examiners—is to focus the attention of the jury on the lawyer as if it is the lawyer who’s doing the testifying. When done well, the witness is reduced to a prop. Millwood’s dominating stage presence only adds to the effectiveness of this technique. He commands attention naturally.
“You’re the coroner of Fulton County?”
“For longer than I care to remember.”
Some laughter floats about the courtroom. Millwood laughs, too, to show that he’s a good sport. He is building a camaraderie with the jurors who will decide the fate of his client.
“And the coroner doesn’t determine who did the killing, only how the killing was done?”
“That’s fair.”
“And nothing in your testimony actually shows that the defendant murdered the victim here?”
“Correct.”
“Your testimony just shows that the victim is dead?”
“Correct.”
Millwood asks the basic questions of the State’s witnesses that Joe failed to ask in the Corey Miller trial. Instead of attacking the finding of Cecil’s autopsy, Millwood demonstrates what the autopsy does not—indeed, cannot—show. Questions such as these push the jury to keep an open mind as a counterweight to the impulse to condemn the defendant after seeing disturbing autopsy photos.
“Your autopsy also doesn’t show if the murderer was short or tall?”
“It does not.”
“Male or female?”
“Don’t know.”
“Right-handed or left-handed?”
“No idea.”
“Don’t know the race of the murderer?”
“No.”
“The nationality?”
“Nope.”
“Age?”
“Can’t tell.”
“The only thing you can tell us is that Sara Barton is dead and how she died?”
“Correct.”
Millwood sits down. The game is afoot.
***
The next round of testimony focuses on the gun. Establishing the chain of custody of the weapon is a laborious, but necessary, process. Five witnesses in total testify, starting with the neighbor who discovered the gun in a playground down the street from the Barton residence. From the playground to the evidence locker to the fingerprint lab to the ballistics testing range, we document the gun’s journey and the findings of the various experts along the way.
When the last of these witnesses steps down, I take stock of the evidence. Ballistics confirms that the gun found on the playground killed Sara Barton. Fingerprint analysis establishes that the defendant’s prints were on the unused bullets in the chamber of that same gun.
Many a defendant has been convicted on less evidence than that.
37
Scott takes the stand, swears his oath, and introduces himself to the jury. The badge on the outside of his jacket conveys the authority of his position. The years of experience that wrinkle his face add gravity to his words. Plain-speaking and to the point, he makes a good witness.
The testimony begins with Scott’s description of what he first saw at the Barton house—the lifeless body, the blood on the floor, no signs of forced entry. I show him pictures of the scene. He affirms their authenticity, and Judge Woodcomb admits the photographs into evidence.
I distribute the depictions of Sara Barton’s dead body to the jurors one at a time. I don’t hurry. Eight pictures overall pass through the hands of each juror. I assess each
reaction as they contemplate Sara Barton’s lifeless body. The slowness of the process allows the images to marinate and sink in. The main goal, of course, is to inflame.
But more than cynicism lies behind my efforts. Murder is serious business. What’s happening in this courtroom is not some mock trial with fake facts and imaginary stakes. If the jurors have not felt the awesomeness of their responsibility up to this point, they will feel it now. Unlike the antiseptic autopsy photos, the pool of red blood around Sara’s body pops visually—the stark color repulsing with guttural impact. These photographs portray the reality that Sara Barton was a living, breathing woman until someone shot her dead. Once the photos make their rounds, I continue with the examination.
“Who was Sam Wilkins?”
“Mrs. Barton’s divorce lawyer. He discovered her body and called 911.”
I then show Scott the divorce complaint Sam provided to the police the night of the murder. I move to introduce it into evidence. Millwood stands up, and we both approach the bench for a sidebar with the judge.
“The defense objects to the admission of the complaint on the grounds of hearsay. The complaint is an out-of-court statement that makes factual allegations that cannot be substantiated. It is squarely inadmissible.”
“Response?”
“The complaint is not offered into evidence to prove the truth or falsity of the allegations therein. Rather, the fact that the victim stood ready to make these allegations public—allegations that are very damaging to the defendant’s reputation—supplies a motive for the defendant to murder his wife, regardless of whether the statements in the complaint are true or not. The existence of the allegations themselves, not their truth, is at the heart of this case.”
That’s only half-true. The mere existence of the allegations matters, but Millwood knows as well as I do that the jurors will be hard-pressed not to view the allegations as credible under the circumstances. The close timing of the murder and the planned filing of the complaint combine to create an inference that the two things go together. The complaint represents Sara Barton’s last words to the world, and those words have great weight. They are Sara telling the jury who killed her from beyond the grave.
The Murder of Sara Barton (Atlanta Murder Squad Book 1) Page 22