The judge explained the criminal process to the jury pool and that, in Utah, noncapital felonies had eight jurors along with two alternates in case any of the eight became sick or had to leave for some other reason. Brigham wasn’t really paying attention. He was focused on how to get Timothy Montgomery’s testimony in.
Technically, he was supposed to give ten days’ notice to the prosecution of any witnesses he intended to call to trial, or reasonable notice if that wasn’t possible. He wanted to surprise the prosecution with Tim as much as possible, so there was only one way to do that.
The jury pool was asked a series of questions by the judge: Have you ever been convicted of a felony? Are you or any members of your family in law enforcement? Do you feel you can be impartial in a criminal trial?
The questions were nonsense. Everyone felt they were objective, rational people that could be fair. No one could admit that they were ruled by forces they couldn’t even see, much less understand and acknowledge. Every person in the pool had things they were hiding from the world, things that would influence how they felt in this trial but that they weren’t going to share with a room full of strangers. This was a futile exercise in tradition, and Brigham wished they just did a random lottery instead.
When the attorneys were allowed to ask questions of the pool, Debra spent nearly forty-five minutes going through detailed personal aspects of each juror—what political party they affiliated with, what sports teams they liked, what magazines they read.
There were generalizations that had become fact in the minds of lawyers: liberals tended to acquit, women were more likely to convict than men. Brigham hadn’t seen either to be true, but Debra was playing into the stereotypes she’d been trained in.
When it was Brigham’s turn, he simply stood in front of the jury pool and asked, “If I presented evidence to you that Ted Montgomery did not commit this crime, would you acquit him?”
He knew the people who would convict no matter what wouldn’t be honest. That wasn’t why he asked. He just wanted to get the thought into the jurors’ minds that there was evidence that Ted was innocent.
After that question, he sat back down.
More formalities followed, and when they were done, the judge called for a ten-minute break before the State’s first witness.
They rose as the judge, eight jurors, and two alternates left the courtroom. When they were gone, Ted looked at Brigham and said, “I’m going to take a quick walk with my kids.”
Brigham nodded and sat back down, staring at the bench. He glanced behind him and saw Molly in the audience. Their eyes locked, but neither of them spoke. He turned back around, his eyes forward.
“Is there anything you need me to do?” Rebecca asked.
“Take notes if something stands out.”
She hesitated. “For what it’s worth, that was wrong, what she did.”
Brigham didn’t respond.
The ten minutes passed in silence, and Ted was back in his chair as the judge came out. Everyone rose and sat back down, and the judge said, “All right, Ms. Flynn, an opening statement if you’d like to provide one.”
34
Debra Flynn stood up and walked to the lectern. She turned it to face the jury, giving Brigham a view of her opening statement: bullet points. Many attorneys used the same technique of turning the lectern toward the jury and reading off a list. It was thorough and prevented them from missing something. But Brigham thought it was damaging. It created distance between them and the jury and placed a physical object in the middle.
“On November the second of last year, Ted Montgomery ended his wife’s life. Ruby Montgomery was his wife of nearly twenty years. They had three children together: Monica, Devan, and David. By all accounts, they had a loving marriage… until Ruby Montgomery developed cancer. She was hospitalized for three weeks at the University of Utah. That man, Ted Montgomery, determined that three weeks was enough.
“On the date in question, he brought in a bag of morphine and connected it to Mrs. Montgomery’s IV. She was dead less than half an hour later. And this murder wasn’t committed in the darkness of night with nobody around. He brought his kids to watch. A five-, ten-, and seventeen-year-old had to watch their mother die because this man decided that he didn’t want to put up with her pain anymore. I don’t mean to make light of cancer—my aunt died of breast cancer, and I watched her fight valiantly to the end. But never, not once, did her husband consider killing her. They dealt with the pain the best way they knew how: with medication, and she lived until her body simply couldn’t fight anymore. But we don’t know how long Ruby Montgomery could’ve lived, because on November second, Ted Montgomery took that choice away from her. He robbed her of any chance of recovery, and of the final months or even years of her life that she could’ve spent with her children. And he robbed the children of their mother.”
She cleared her throat and stepped away from the lectern, getting closer to the jury one slow step at a time. “I know some of you may be thinking, ‘Well, he killed her to alleviate her pain.’ Did he? Or did he kill her to alleviate his own pain? Mrs. Montgomery never signed a do-not-resuscitate order. The defendant made that decision on his own. And the evidence today will show you overwhelmingly that he killed her because she had become too much of a burden for him. This had nothing to do with Ruby Montgomery. This act was about Ted Montgomery. So I will be asking you, after you hear the overwhelming evidence, including a confession given to police, to convict Ted Montgomery of homicide.”
Brigham waited until she had taken her seat. The opening was clear and concise. It laid out the facts and painted a picture. The typical defense strategy was to take issue with every point made by the prosecution. But that wasn’t his strategy. This case wasn’t about facts.
He got up and went to the courtroom’s DVD player. He removed a disc from a paper sleeve and inserted it into the DVD player. Without a word, he hit play and the video began on the large-screen television against the wall.
“This is Ruby Montgomery, early in her cancer diagnosis.”
On the screen, Ruby lay in a hospital bed. She had a full head of beautiful brown hair, and she was smiling as she played with Devan. David was running around in the background, and every once in a while Monica would ask a question of her mother from behind the camera phone. Ted didn’t appear in the video.
Ruby seemed young and full of life, with strength and resolve—a resolve that she would survive. It came through as clearly as anything else in the video. Brigham let the jury watch it for about thirty seconds before he paused it and said, “And this is Ruby Montgomery near the end of her life.” He switched to the next scene.
The image changed, and the timbre of a scream filled the courtroom. The scream was so harsh that one of the jurors gasped.
Ruby was strapped down in a bed. Her once-long hair was falling out in clumps. She was yelling and crying as a nurse injected something into her IV. Ruby screamed again, so loud that her voice nearly went hoarse.
Ted was in this video. He was sitting next to his wife, holding her hand and telling her it was almost over, that she just needed to hang on a little longer.
Ruby arched her back and screamed again, and Ted snapped at the nurse. “Damn it, give her something!”
“Sir, I’m trying.”
Ted turned to his wife. “Shh, be calm, calm.”
“Ted,” she screamed, “please. Please.”
There was no request that came with the plea. She just kept repeating, “Please, please.” Brigham let it play to the end of the video and then turned it off. He approached the jury slowly, letting the video sink in. He put his hands in his pockets, making sure they could see his watch.
“That video was taken by Ruby and Ted’s daughter, Monica. She, along with her father and two brothers, watched Ruby Montgomery go from the beautiful, vivacious woman you saw to a woman who howled in pain, day and night, a woman the doctors said had no chance of surviving this ordeal. See, what the government d
idn’t tell you was that Ruby didn’t just have cancer, she had one of the most painful, deadly forms of cancer that ever cursed us: pancreatic cancer. The pain was so intense, Ted will tell you, that there were times when she would just pass out from it. And when she woke, she would just start screaming again. Ted isn’t a murderer. He loved his wife. He wanted to grow old with her, to sit on some porch swing and have their grandchildren running around them. But that’s not what life had for them. Instead, life had the most pain a single person could go through. Both for her, and for him.
“Ted Montgomery… loved his wife. The pain was so much that she begged him to end her life. Imagine that. Imagine a pain so brutal that you no longer feel life is worth living. And then imagine being the husband of someone in that much pain. What would you do?”
Brigham had planned on discussing diminished capacity in the opening but decided against it. He would be going for the straight acquittal based on Timothy’s testimony.
“I’m not asking you to judge, I’m asking you to understand. Understand what these poor people went through. I’m asking you to walk in their shoes, and to truly feel what it would be like to be put in Ted Montgomery’s situation. What… would you do?”
He sat back down.
The judge said, “Ms. Flynn, your first witness.”
Brigham waited as Debra Flynn checked something on her tablet. She could make a single important choice when it came to witness order: where to put the detective. The detective was the authority and summary of her case, a professional witness who knew how to get the facts they needed across to the jury. She could put him up first to provide an outline, to frame the case, or she could put him up last to tie up loose ends and bring the entire case together.
“Your Honor, the State calls Detective Henry Sean to the stand.”
The detective approached the stand and was sworn in. He had been seated next to the prosecution as the case manager. The prosecutors could pick one of the police officers involved in any case and have the officer sit at the prosecution table and hear all the testimony, when witnesses were otherwise excluded from the courtroom.
It was the defense who typically made the motion to exclude. Brigham didn’t want any witnesses excluded. He wanted everyone to hear what he was about to say.
He reached into his satchel and removed his notes. On top was another disc labeled “Detective Sean bribe.” He held the disc in his hand, feeling its smooth edges. He would destroy the detective’s career by playing this for the court. The media were here, so it would be on every station as the top story. His only concern was that he hadn’t provided it to the prosecution because he wanted to surprise them with it. That meant his top two pieces of evidence, Tim and this disc, had been kept from the State. The rules of evidence were clear: no notice was required for impeaching someone who was lying. But the judge wasn’t stupid. She would know Brigham had purposely withheld the disc and Timothy.
The judge could then declare a mistrial. Not a completely bad option, as Brigham wanted a continuance anyway to prepare fully. The risk was that Timothy seemed on edge and uncertain, and the word “prison,” something Brigham shouldn’t have said, had frightened him. It was completely within the realm of possibility that he would flee to Oregon and not come back if this case was set out three months. Brigham had him here now, and he would have to use that.
What the judge could also do was even more damaging: she could exclude Timothy’s testimony. It would eventually be overturned on appeal, if for nothing else than an ineffective-assistance-of-counsel claim that Brigham should’ve given notice, but in the meantime, Ted might be sitting in jail.
If he introduced just one or the other, the disc or Tim’s testimony, the judge might buy the argument that he was just ready with impeachment evidence that the prosecution should’ve figured out on her own. But if he tried to introduce two pieces of powerful evidence that way, Judge Lawrence might see it as a pattern that he was trying to hide the ball from the prosecution.
“Please state and spell your name for the record, Detective,” Debra asked.
“Henry Nicolas Sean, that’s H E…”
Brigham zoned out, his eyes on the disc. The detective really wasn’t going to say anything too damaging other than discussing the confession. But the confession was part of Brigham’s case that Ted was covering for his brother. It wasn’t worth risking Timothy’s testimony being excluded and looking deceptive to the judge just to introduce a disc with this detective accepting a bribe and doing coke. But he also couldn’t let this guy be on the streets anymore. Who knew what he was accepting that bribe for—turning away from a murder? Not arresting the perpetrator when he knew who it was? Someone like that couldn’t hold a gun and a badge. Brigham would gladly defend him on any charges that came about, but he couldn’t just let him loose on the public.
Detective Sean went through his resumé, how many years he’d been with the police, how many homicides he’d investigated. Everything gave the jury the impression that he was professional and objective and not just a witness for the prosecution, which he actually was.
“Tell us what you remember about November second of last year,” Debra said.
The detective took a drink of water out of a paper cup. “I was at my desk in the morning finishing up some paperwork when I got a call from another detective, Detective Jim Graves, that there had been a homicide at the University of Utah Hospital. I was called out and I met Detective Graves at the entrance. He informed me that a man had told him that he had—”
“Objection, hearsay,” Brigham said.
“Sustained,” the judge said.
The detective glanced at the prosecution, and Debra nodded for him to go on.
“Um, well, I met Detective Graves and he told me what was going on. I entered the hospital and was led up to a room in the Huntsman Cancer Institute, which is in a different building. There’s a bridge connecting the two. I found two uniformed officers sitting with the defendant, Ted Montgomery.”
“And by defendant who do you mean?”
“The man at the defense table in the suit with the blue tie.”
“And that is the man you saw in the hospital that day?”
“It is.”
“Your Honor, I would like it noted that the detective has identified Mr. Ted Montgomery, the defendant.”
“Any objection?”
Brigham rose. “No objection as to identity.”
“So noted.”
Debra continued. “So what happened then?”
“I approached Mr. Montgomery and stood in front of him. I asked him if he knew why I was there that day, and he said, ‘Because I just killed my wife.’”
“Were those his exact words?”
“Let me check my report…” The detective picked up the sheets of paper in front of him and flipped through them. “Yes, those were his exact words. ‘I just killed my wife.’”
“So then what did you do?”
The detective glanced at the jury and then kept his eyes on the prosecutor again. “I asked him what had happened. He informed me that his wife had been dying of cancer, that she’d been in an extraordinary amount of pain the past three weeks, and that she had asked him to end her suffering.”
“What did you take ‘end her suffering’ to mean?”
“He basically told me that his wife had asked him to end her life and he had done so.”
“How did he say he did it?”
“He informed me that he had brought in a bag, a medical IV bag, and hooked it up to the victim’s IV. She was injected with the morphine which ended her life. The doctor informed me that the amount of morphine—”
“Objection,” Brigham bellowed, “hearsay.”
“Sustained,” the judge said again, without looking at the detective.
Debra said, “Let’s just focus on what you saw and heard, not what other people told you. The doctor is here and will be testifying, so I’d just like to know more about your impressions, Detective.”
“Of course. I’m just trying to give the jury context.”
“So tell us what happened after he told you what he did.”
“He said several times that he had done it, um, he repeated that his wife was in so much pain that he just couldn’t stand it anymore and that they’d decided together that this was the best option. I have made a recording of the incident.”
“Let’s play that now.” She looked to Brigham for an objection because she hadn’t laid enough foundation for the recording, but he didn’t object. There was no point going through recognizing the voices and the time, date, and location.
A digital recorder was hooked up to the sound system and began playing. Brigham had heard the recording. Half of it was irrelevant, and the other half was what the detective had just testified to.
Ted’s voice came over the sound system as he described what had happened. He said he’d hooked up the morphine and had to play with it because he didn’t know how to get it to go. That the drip was slow but eventually his wife had a smile and they spent their last few minutes together as a family laughing and reminiscing right before she died.
Debra stopped the audio and said, “Where this recording left off, what happened then?”
“The medical examiner was there as well as the doctors, and it was determined that Mrs. Ruby Montgomery had passed away. I then took Mr. Montgomery into custody. I placed him in handcuffs and escorted him off the premises. The children were there, all three of the couple’s children, and I was going to call DCFS, but I allowed the oldest, Monica, to take the younger ones home.”
“Why did you do that?”
The detective hesitated. “They’d been through enough. I didn’t want them in foster care, too.”
Brigham looked up, catching the detective’s eyes. They held each other’s gaze, and then both looked away.
“What happened then, Detective?”
“I was about to escort Mr. Montgomery to the Salt Lake Metro Jail when I decided I better call the screening prosecutor first, just to cover my bases. I called the DA’s office, your office, and asked for the screening team. I spoke to Anita Madrid and explained the situation. She stated that they wouldn’t be able to file charges quickly enough.”
Mercy (A Neon Lawyer Novel Book 2) Page 15