by Amanda Lamb
“[Colon Willoughby] was very truthful and up front with the Millers. ‘This is probably a death-penalty case, but you have input. I want to know what your thoughts are,’ ” Morgan paraphrases the district attorney’s words.
Morgan says Willoughby explained the options, the death penalty or life in prison, and listed the pros and cons of each. Then he gave the family time to confer among themselves before they gave him their decision. Morgan felt it was exactly the right way to handle this delicate situation. It was in these moments that he understood why some people became cops and others became prosecutors. He admired good prosecutors and increasingly, as Morgan watched Willoughby in action, he decided this D.A. was one of the best.
“They [the Millers] didn’t want to take Ann’s life regardless of what she’d done to theirs and to Eric’s,” Morgan says. “They didn’t want to take it, but I’m sure in some ways they did want to see her pay a heavy price.”
Morgan had no problem with Ann Miller being sentenced to death, but it wasn’t his decision. He respected the Millers and their beliefs and knew that Willoughby would do the right thing. In some ways he was disappointed that it wouldn’t be a death-penalty case, but the more he thought about it, the more Morgan realized that maybe life in prison would be the ultimate punishment for someone who relished control as much as Ann did.
“I kept thinking, ‘What is the greatest punishment for this woman?’ ” Morgan says. “I’ve always thought that hell for a psychopath probably isn’t death nearly as much as it is sitting in a prison cell.”
RULE 24
On November 16, 2004, Ann Miller entered a Wake County Superior Courtroom wearing a navy jail uniform. From what Morgan could see from his second-row seat in the audience, she looked teary-eyed and weary. Once again he felt like she was playing the martyr for everyone, including television news viewers. She waved at the audience, presumably at her family and husband, like a beauty queen in the backseat of a convertible during a small-town parade. Her hand stiffly turned back and forth in an awkward motion as if to say: “You will not break me with your accusations, I am still a winner.”
Judge Donald Stephens asked District Attorney Colon Willoughby to proceed with his decision on whether or not he would seek the death penalty.
“Do you believe there’s no evidence of any aggravating circumstance or do you simply in your discretion elect to proceed non-capitally?” Judge Stephens asked Willoughby.
“Your Honor, there may be evidence from which there could be an aggravating circumstance, but after reviewing it, I have elected in my discretion to not seek the death penalty upon my review of the evidence and the totality of the circumstances,” Willoughby replied.
After the hearing, two things struck Morgan. First, he witnessed Ann Miller, whose fair skin was blotchy and tearstained by this point, mouth the words I love you to her husband, Paul Kontz, on her way out of the courtroom. To Morgan it was as if Ann was still in denial that she’d killed one husband, and now she had another one panting at her feet like a puppy dog. Second, as soon as the hearing was over, Nancy Brier, Ann’s mother, turned and extended her hand to Verus Miller, Eric’s father. He took it politely. The whole exchange lasted maybe two seconds, but to Morgan it was further proof of the Millers’ graciousness.
In the hallway, after the hearing, the media crowded around the Millers as Morgan stood in the background like a sentinel protecting the perimeter. He wore his trademark white fedora with a brown feather peeking out of the brim and chewed gum as he stood just behind Verus’s left shoulder.
“We feel that Eric did die an agonizing death and we do want justice for our son,” said Verus, his voice cracking with emotion as Morgan looked on, his angry eyes peering out just beneath the brim of his white fedora. “But as a family, we just weren’t for the death penalty.”
“We need to represent our son, there’s no one here now to represent him, and we’re going to be down here representing Eric. That’s what’s been for the past four years and it will continue [until] it’s all over,” Verus went on to say, looking like he was going to break down at any moment. Morgan continued to stand stoically at Verus’s side in case he was needed to run interference and help his friend get away quickly. Morgan nodded as Verus talked about the case going in the right direction.
“You don’t know where you get the strength from, you just get up in the morning and you have it,” said Verus. “I give a lot of credit to our family and friends that are continuing to pray for us.”
THE PRICE OF FREEDOM
On December 10, 2004, Ann Miller’s attorneys returned to court to ask Judge Stephens to set bond so that Ann Miller could be released from jail pending trial. While most first-degree murder suspects are not offered bond, in North Carolina it is up to the discretion of the judge whether or not to do so in any case.
It was a chilly winter day and Morgan’s disposition was also somewhat chilly at the thought of seeing Ann Miller in person again. But he did want to see how jail was affecting her. He hoped not well. Morgan took his place in the row behind the prosecutors’ table so that he could get a good clear view of Ann as she entered the courtroom. Naturally he sat with the Millers to lend them support. Respectfully, he took off his white fedora in the courtroom and put it on his lap.
This time Ann wore the standard uniform of the Wake County Jail, a gray-and-white-striped number. But instead of looking woeful and dejected, at the bond hearing she had a bounce in her step and new curl in her hair. Unlike the day of her arrest, when her strawberry-blond hair hung limply around her drawn face, it was now as curly and bouncy as a shampoo advertisement. Ann seemed perky, even bubbly, as she entered the courtroom and took a seat between her attorneys. To Morgan, it was just one more bizarre twist in the life and times of Ann Miller. Even after all of these years he still didn’t know what to expect from her.
In the days leading up to the bond hearing, Morgan had sensed that Assistant District Attorney Becky Holt and District Attorney Colon Willoughby were planning something big. He couldn’t put his finger on what it was, but he felt strongly that he was being kept in the dark about some very important strategy that was about to unfold.
The detectives who had worked their hearts out for Morgan on the case had sent thousands of pages of case files to the district attorney’s office. The D.A.’s investigator, Bill Dowdy, was in turn spending his days copying the files to send them to the defense team as part of the discovery process. Morgan couldn’t help but feel a little helpless as he watched the boxes, amounting to four years of hard work, sent off. It was like giving a newborn baby up for adoption. He almost felt compelled to wrestle the boxes out of Dowdy’s hands and run for the elevator. But it was the law, and Morgan knew it had to be followed.
“It’s a terrible feeling. You do all this hard work, you get all this information, and then you turn it over to somebody who’s trying to shoot holes in it,” Morgan confesses.
The defense testimony at the bond hearing was strong. Witness after witness testified that Ann had a full life in Wilmington, North Carolina, with her daughter, Clare, and new husband, Paul, and her stepdaughter. They told the judge that Ann was not a flight risk or a danger. They testified that she would never leave her young daughter under any circumstances, not even to escape prosecution.
“I think that her love for God and Paul and Clare . . . that she would never hurt them,” said Dan Brier from the witness stand on his daughter’s behalf. “She would definitely not be a threat to herself or to anyone in any way whatsoever.”
Her family and friends said they would make sure she showed up for court. Her new employers at PPD, the pharmaceutical company, said they would allow her to continue working pending the outcome of the case. To Morgan, things did not seem to be going well at all. Defense attorneys were making an admirable case for Ann Miller getting bond. Something had to turn this train around or Ann was going to be free again, free after so many years of hard work to get her off the streets.
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�We would like for Ms. Miller to [be] out on bond because it would be good for her,” Ann’s lawyer Wade Smith said in his polite deferential tone. “But Mr. Cheshire and I need her desperately to be on bond because we’ve got thousands and thousands of pages of material that [we] need her to help us with and that’s just the truth, it’s just the truth, and I don’t know how we do it at the Wake County Jail.”
The Wake County Jail was supposed to offer temporary housing for people awaiting trial, but like most county jails in growing cities, it had become almost unbearably overcrowded. The visiting space for attorneys and clients was very limited and rarely available.
Always the southern gentleman, Wade Smith could out-polite just about any lawyer in the courtroom. With his shock of white hair, wire-framed glasses, bow tie, and diminutive stature, he looked more like someone’s kindly grandfather than a force to be reckoned with, but in the world of defense attorneys, he was the guy you wanted on your side.
“She has extraordinary close family ties, a remarkable family that will stay in touch with her; they will be together at all times. There’s no way that’s she’s going to hurt herself. There’s no way that’s she’s going to run away. She is absolutely loved by her family and they will look after her,” Smith asserted.
Smith called Ann Miller a “church worker” who lived for God and her family. He pointed to the dozens of letters of support in a stack on the table in front of him. It was almost too much for Morgan to take, but even as the disgust welled up inside of him when he heard people talk favorably of Ann Miller, he was still enjoying the show. In his heart he felt sure Judge Stephens wouldn’t buy in to the farce that was being played out in his courtroom.
“While we would never use this point, we don’t have the child here, we would not do that, we don’t make the argument on the child to try to twang Your Honor’s heartstrings in some way, the child is important because the child gives her [Ann] life force. There’s every reason for this woman to want to live,” Smith said forcefully.
“For years she has known this was coming,” he continued. “She did not run away. And when it came, the day had arrived, she came to Raleigh to present herself. Remember that, Your Honor, she’s a marvelous candidate [for bond].”
But just as Morgan had expected, A.D.A. Becky Holt had some fireworks of her own planned for the bond hearing. That nagging feeling that he had had all week that something was in the works was right. Holt wasn’t going to let defense attorneys, even the top defense attorneys in the state, outdo her with character witnesses.
Boldly, Holt asked Judge Stephens’s permission to read the Gammon affidavit into the record. This was the first time anyone outside of the attorneys, the investigators, and the judge had ever heard the contents of Derril Willard’s statement to Rick Gammon. It was more than likely that paragraph 12 would never make it into the trial court as evidence because of the legal hurdles the D.A. would have to cross, but now it would be in an even more influential court in Morgan’s mind: the court of public opinion.
Stephens allowed Holt to proceed with the verbatim reading of paragraph 12 while the audience leaned forward and hung on every word. Television cameras zoomed in to make sure they captured the moment in its entirety. Morgan beamed and exchanged hopeful glances with the Millers. Now the information was finally out there for the entire world to know. Even if it were never admitted at trial, it was now public record. Ann’s dirty little secret was out. She could deny all she wanted to, but to Morgan, paragraph 12 was the evidence that confirmed her guilt beyond a reasonable doubt.
Morgan knew it by heart, but still listened intently to Holt’s reading of Ann’s evil deed, her admission to Willard that she had taken a syringe and inserted it into Eric’s IV while he was a patient at Rex Hospital, and that she’d told Willard the substance was some type of poison.
In Morgan’s mind it was irrefutable evidence that would show the world what he had known about Ann Miller all along: she was a cold-blooded killer.
Holt also read Willard’s suicide note out loud and into the court record, another document that had been kept under lock and key for four years. In it, Willard denied any responsibility for Eric’s death. It was a statement that Morgan now truly believed after learning more about Willard and his relationship with Ann.
“I’m sure Wade Smith and Joe Cheshire were both totally apoplectic. They were in a much bigger state of shock than I was, and I was shocked,” Morgan admits.
Judge Stephens said that he had prepared the bond order the night before, but left the terms blank because he wanted to wait and see what transpired at the hearing. He told the court that he had never set bond in a poisoning case before, and needed to take the matter under advisement for a few minutes before he made a decision. He left the courtroom and returned twenty minutes later with his decision.
“I have decided in my discretion to set bond, but I will set a bond appropriate to the nature and circumstances of the charge and the evidence that the state thus far [has shown] as well as the defendant’s situation and her local ties and family support,” Stephens said, peering over the top of his glasses at the order on the bench in front of him. “I’ve just signed the order. It reads as follows: ‘Upon review of all of the evidence presented, the court in its discretion sets the bond in the amount of three million dollars secured to be approved by the undersigned judge. It’s further ordered that the defendant shall reside either in Wake or New Hanover County and shall remain therein unless traveling to court, or to meet with counsel. The court finds that the nature and the circumstances of the alleged offense and of the defendant’s situation are such that this bond is necessary to assure the defendant’s presence at trial.’ ”
Morgan exhaled. “It was [a bond] that was impossible for any person who was not a well-connected Colombian drug dealer to make,” he says.
In Morgan’s mind they had already won the case. Clearly, with a $3 million bond, Ann wasn’t going anywhere. And now with paragraph 12 solidly in the court record, he couldn’t imagine a jury that would let her off.
“The Millers were looking at me, I was looking at the Millers, my mouth was open, I looked at Becky [Holt], she grinned at me,” Morgan says.
LET’S MAKE A DEAL
The case was definitely beginning to take shape, but Morgan had to keep reminding himself that it wasn’t a done deal yet.
He personally didn’t see anything that was insurmountable, but he also knew that cops and lawyers were different creatures who approached situations in very different ways. What he saw, and what they saw, might be two completely divergent scenarios.
“Lawyers are always concerned, and they’re always looking three steps ahead. Cops act on impulse, in large part; even the most seasoned amongst us are typically not great thinkers,” says Morgan with a belly laugh.
He knew it was the prosecutors’ job to be skeptical, to ask the tough questions, to play the devil’s advocate. So like a good soldier, he went along with it for the good of the case. He didn’t get his feathers ruffled when Becky Holt and Doug Faucette went over and over points they had already discussed with him a million times. He tried to give them all of the information they needed to build the best possible case against Ann because they had a common goal: putting her away.
They went back to the nuts and bolts of the case, reinterviewing people they hadn’t talked to in years. Morgan concentrated on the hospital staff. While they all remembered Eric Miller and his painful death, unfortunately they had little to say about Ann. Morgan had been hoping to find someone who remembered her behaving inappropriately during her husband’s hospital stay, or had seen her show some sort of crack in her rock-hard veneer, but while he found glimmers of this, he heard no real evidence that she had given herself away to anyone.
One thing did stick in Morgan’s mind, though, after the interviews. Typically, big-time defense attorneys conduct their own parallel investigations in order to be able to refute whatever the state said about their client. They interview
the same witnesses. In most cases involving fancy lawyers and deep pockets, the attorney interviews are often conducted long before the police get to these same witnesses. The goal, Morgan imagined, is to take rock-solid witnesses and confuse them, leaving the cops hoping for some tidbit hidden deep down inside their subconscious. But in every interview Morgan conducted in preparation for Ann’s trial, when he asked the witnesses if they had been contacted by defense investigators, every time the answer was “no.”
“For a while I worried about it. Are we missing something? ” Morgan remembers wondering.
The defense team had also not contacted Morgan himself for an interview even though they knew he would be a key witness in the case. This seemed highly unusual to Morgan. Most defense-team investigators were retired cops themselves, who called on officers testifying for the prosecution and tried to pick their brains about the case. But he hadn’t gotten a single call.
Finally, in A.D.A. Becky Holt’s office, during the early spring of 2005, Morgan simply blurted out the conclusion he had come to.
“I said, ‘Becky they’re going to try and cut a deal, they’re not going to trial,’ ” Morgan recalls.
Everyone told Morgan he was crazy, that there was no way that after evading arrest for so many years, this woman would roll over so easily. But Morgan was convinced something smelled funny. Top attorneys like Wade Smith and Joe Cheshire left nothing to chance. This wasn’t their first rodeo. They knew exactly how to play the game. If they weren’t interviewing witnesses, there was a reason, a very good reason.
ELEVEN
Some things have to be believed to be seen.
—RALPH HODGESON
It was time to tie up loose ends. Since they didn’t know what the defense team was up to, the prosecution team continued to prepare their case thoroughly. And there was still one very key player who needed to be brought in—forty-four -year-old Carl Eddy Mackewicz, Ann Miller’s former lover from California.