by David Ellis
TRIAL, DAY 4
Thursday, December 12
91.
Shauna
Judge Bialek denies my motion for a directed verdict after the close of the prosecution’s case, refusing to throw out the charges against Jason for lack of evidence. She gave me more than my allotted fifteen minutes to argue the motion, which was charitable of her, because she was no more likely to toss this case than she was to sprout wings and fly out of the courtroom. After breaking the bad news to me, the judge summons the jury.
“Is the defense prepared to call its first witness?”
For the first time in the trial, Bradley John rises to address the court.
“The defense calls Jason Kolarich,” he says.
Everyone takes note of Bradley’s sudden participation—the judge with a double blink of her eyes, Roger Ogren with a rifle-quick jerk of the head, the jurors with more casual looks of surprise, not having any firsthand investment in the case.
The biggest witness in the case, and the second-chair attorney, who has yet to speak before the jury, handling him? It was a mutual decision made between Jason and me. His idea, primarily, but I went along with it. A lawyer cannot knowingly suborn perjury, cannot question a witness on the stand if she knows he’s lying. Bradley, on the other hand, does not know everything I know, and in fact does not know with any certainty, one way or the other, whether the testimony Jason is about to give will be the truth, the whole truth, and nothing but the truth.
But I’d be lying to myself if I said this was all about ethics. As artificial and staged and thoroughly rehearsed as this conversation he and Bradley are about to have may be, it is a conversation nonetheless. Jason doesn’t want to have to answer these questions from me. He is afraid of how I will react. And maybe how he’ll react, too.
Bradley organizes his notes while Jason takes the witness stand and is sworn in. After giving his name for the record, Bradley cuts to it.
“Jason,” he says, “did you murder Alexa Himmel?”
“No, I did not.”
“Did you have anything to do with her murder?”
“No, I did not.”
Jason likes to say he is the son of a con artist, which is true, and he likes to say he can bullshit with the best of them, also true. But there is an earnestness to the way he answers these questions, no flash or sizzle, no overwrought emotional appeal, not even a puppy-dog face for the jury, that works. I think it works. I’m doing my best to retain a clinical perspective, a lawyer’s objectivity, to view this through the eyes of the jury and not from my own memories.
“You watched segments of your interrogation with Detective Cromartie?”
“Yes, I did.”
“You heard the testimony about your handgun, the prints being wiped off?”
“Yes.”
“You heard the testimony about the e-mails Ms. Himmel sent you and the many phone calls she made to you in the days leading up to her death?”
“I heard it all. And I have to say, if all I knew about the case was the evidence the prosecution has shown the jury, I’d probably think I was guilty, too. But I’m not guilty. I didn’t kill her.”
“Will you address this evidence with me today?”
“I’ve been waiting all week.”
“Do you know who did kill Ms. Himmel?”
“I believe I do, yes. I didn’t, when the police questioned me, but I do now.”
Roger Ogren stiffens in his chair.
“Will you discuss that with me today, as well?”
“Yes, I will.”
The jury is at full attention. This is Jason’s one chance. The evidence against him has been pretty solid. The jury has to be leaning toward conviction, if they aren’t all the way in, hip-deep, by now.
Bradley peeks at his notes. “Okay, then, let’s get to it,” he says.
92.
Shauna
Bradley John begins the substance of his direct examination with the videotaped interrogation, Jason’s lies to Detective Cromartie about his relationship with Alexa.
“It was stupid of me to lie about that,” Jason says. “But I was trying to protect her. It was—obviously, from everything we’ve seen here—a very difficult time for Alexa after our breakup. I would think she’d find it embarrassing, humiliating, really, for others to know how she behaved afterward. I felt like that was between Alexa and me, and nobody else needed to know. I felt bad enough about our breakup already and I thought I owed her some respect.”
“But Jason, this was a murder investigation.”
“I know. I understand. But I knew I didn’t kill her, so I didn’t see how the status of our relationship really mattered in terms of catching the killer. I mean, what I did was wrong, but I only did it out of respect for Alexa. I certainly wasn’t covering up anything.”
“Jason, you worked as a prosecutor here in this county, did you not?”
“Over eight years,” he says. “And then I’ve been in private practice for about three years.”
“In that time, on either side of the criminal justice system, have you seen occasions when phone records, like the ones we’ve seen in this case, were used by law enforcement to help solve crimes?”
“Of course. So many times, I’ve lost count.”
“And what about searching Internet servers for e-mail correspondence?”
“It’s a routine part of investigations, especially more recently, as Internet usage and e-mail have skyrocketed.”
“Is there any reason why this case would be any different in that regard?”
“No, not at all. And I guess that’s the point I’m trying to make. If I killed Alexa and was trying to cover it up, why would I lie about something that I knew the police would discover? Why would I say our relationship was just fine when I knew that she’d called me hundreds of times after the breakup, phone calls that I knew were on some provider’s records ready to be subpoenaed? When I knew there were e-mails out there that showed that our relationship had ended, and ended badly? I mean, if I’m a diabolical killer who carried out this crime and tried to cover it up, I’m the dumbest diabolical criminal who ever lived.” Jason opens his hands. “But I wasn’t thinking of any of that, because I wasn’t covering up any crime. I was just trying to show Alexa some respect.”
Good. That was almost verbatim how Bradley and Jason practiced it. I think it sounds reasonable, convincing. And if I find it convincing—knowing, as I do, that Jason had an ulterior motive for what he told Detective Cromartie in that interrogation—the jury might buy it, too.
Roger Ogren stands as Jason nears the end of his speech. “Your Honor, I’m trying to be patient, but I have to object to this speech and move to strike. This has moved from a direct examination to a summation, a monologue.”
The judge nods. “I’m going to overrule, Mr. Ogren. I understand your point, but this is the defendant testifying.”
That’s what Jason predicted the judge would say. Criminal defendants get more leeway when testifying in their own defense, with their liberty at stake and the Bill of Rights waving like the Stars and Stripes at its most magisterial.
“However, Mr. John,” the judge adds, “let’s resume the Q-and-A, please.”
“Thank you, Your Honor.” Bradley comes from a school where you thank the judge for everything she says to you, even if she just called you an idiot and held you in contempt.
“Next, Jason, let’s talk about one of your least favorite subjects: OxyContin.”
Jason smiles and grimaces at the same time. He takes the jury through the highlights, the knee surgery, the recuperation, ultimately the addiction. “You don’t admit it to yourself,” Jason says. “It’s happening right in front of your eyes, and a part of you knows it, but you make excuses to everyone around you and suddenly you’re believing those same excuses.”
Bradley nods. “Jason, did there come a time when you finally admitted the addiction to yourself?”
“Yes. It was the Friday before Alexa died.
”
“Friday, July twenty-sixth.”
“Correct.”
“And how is it that you remember that date so clearly?”
“Because, for one thing, it was the day that Alexa and I broke up.”
“Can you explain how the one has anything to do with the other?”
Oh, does Roger Ogren want to object. He knows, I think, what Jason’s going to say, and he doesn’t want his victim getting trashed, an age-old tactic of the defense bar. But he’s also built his entire case around this relationship, this catastrophic breakup, and if he jumps up and keeps the jury from hearing something directly germane to that topic, he looks like he’s hiding something, like he’s afraid of some fact. That’s how I’d feel, at least, if it were me.
“I think, by the time it had reached that point, it was obvious to everyone close to me that I had a problem,” Jason says. “I’d lost a lot of weight, I was losing focus, I was moody all the time, I was really a completely different person. I think it was obvious to Alexa, too. It had to be. But she made excuses for me as much as I was making them for myself. In rehab, they call that person an enabler. And if I was going to beat this addiction, I couldn’t be with an enabler. I needed to break free of the drugs and break free of her. I needed people surrounding me who would say to me, Don’t take drugs, not, Here, honey, have some more.”
“You’re not blaming Alexa for your addiction?”
“God, no. The blame for my addiction falls on me and only me. All I’m saying is, I had to get out from under that spell. I had to win that fight or I’d lose my life. It really came down to that for me. It was going to kill me, sooner or later. And I needed people around me who would help me fight it. Alexa, for whatever reason, and she had a good heart deep down, but . . .” Jason shakes his head, like he’s reliving a sad memory. “She always told me it was okay to take the pills, it was okay to want to feel good. I needed someone yelling ‘Stop!’ at the top of their lungs.”
Bradley allows for an appropriate pause before he moves on.
“In any event, Jason, you and Alexa did break up in the days preceding her death.”
“Yes, we did. The previous Friday.”
“Friday, July twenty-sixth?”
“I guess that’s the date,” says Jason.
“I’d like to refer you to People’s Eighteen, Jason.” Bradley references the chart on the screen, previously set up. “This is a summary chart of Call Detail Records from that date, is that correct?”
“Yes,” he says. “You can see that on the CDR for that Friday, the phone calls begin happening in earnest at 2:47 in the afternoon. You can work back from that time. I went to her house at some time around one or so, give or take. I told her our relationship had to end, that I was going to get clean, and I wasn’t going to change my mind. She started calling me within the hour, and as you can see . . . she didn’t stop.”
“Did these calls go into voice mail, Jason? Or did you answer them and speak with her?”
“Mostly voice mail. I talked to her a couple of times. Not on Friday, I don’t think. But Saturday, I believe I answered one of the calls in the afternoon. I can’t be sure of which one.”
Bradley references the Call Detail Records for that Saturday. Like Friday, every call was less than a minute in duration, thus receiving the rounded-up 1 in the duration column.
“A short conversation, I take it? Less than a minute?”
“Very short,” Jason says. “I don’t know if you’ve ever had a bad breakup,” he says, ostensibly to Bradley but really to the jurors. “Whether you’re the one who breaks up or the one who got dumped, it’s an awful thing. So . . . on the one hand, I had to be firm, I had to let her know that we wouldn’t be getting back together. My life depended on that, I thought. But on the other hand, I’m human. I felt terrible about how things went with us. I knew she was hurting. So I just wanted to answer a call or two, not to give her false hope, but to let her know that I was sorry. Maybe give her a tiny pep talk, for lack of a better word. You know, ‘It will all work out, it will take some time but you’ll be fine,’ that kind of thing.”
“I see,” says Bradley. “Now, Jason, that Friday, and the next day, Saturday, and all of those days, what were you doing?”
“I was trying to wean myself off the painkillers,” he says. “I was trying to quit. It was . . . it was hell, actually. It’s physically painful, it’s mentally tortuous—I vomited, I cramped up badly, my skin burned—but I was dealing with it.”
“And were you dealing with this alone, or did you have any help?”
“Alone,” Jason answers. His eyes remain fixed on Bradley, deliberately avoiding mine. This was the subject of a heated debate, to say the least, Jason wanting to remove me entirely from the equation, pretending that I wasn’t with him during those initial days of his withdrawal, not wanting to risk the possibility that I might become a witness. You can’t be my lawyer and a witness, he said to me, stating the obvious. I need you as my lawyer.
That was his stated reason, anyway. We both knew, I think, that his reasoning ran deeper. He didn’t want to put me in the position to have to testify under oath. He didn’t want to put me in a position where I would have to lie.
Or where I would tell the truth.
93.
Shauna
“Jason,” says Bradley John, “I’d like to talk about another exhibit the prosecution admitted into evidence.”
Bradley puts on the screen the e-mail that Alexa sent, with the attached letter to the Board of Attorney Discipline. “Did you open and read this e-mail, Jason?”
“I did. Something like ten o’clock on Tuesday morning.”
“This is Tuesday, the thirtieth of July? The day Alexa died?”
“Correct,” Jason says.
Bradley puts the letter itself on the screen. “Did you read the letter?”
“I did, yes.” That’s already been established by the prosecution, anyway.
“What was your reaction, Jason?”
“More than anything, I was sad,” he answers. “It was spiteful. It wasn’t like Alexa to do something like that.”
Roger Ogren is maintaining appropriate courtroom demeanor, the stone face, but I see his lips twist up just a little. This is one of those times when you realize a trial is just a show, a performance, a competition, not the reflection of the truth it’s supposed to be. Roger Ogren knows about Alexa’s history, the doctor in Ohio and the restraining order. He fought like hell, successfully in the end, to keep any reference to it away from the jury. So the jury will never hear it. But Ogren himself, he knows all about it. And he knows we know, of course. And so Jason telling this jury that it “wasn’t like Alexa to do something like that” is, to the lawyers in the room, pure bullshit. An untrue statement taken from an artifice constructed by Roger Ogren and, ultimately, the judge, who agreed with his argument and kept Alexa’s past off-limits.
It is the first time during Jason’s testimony that Roger Ogren is certain that Jason is lying. And it has changed how he views him. Whether that will make a difference to us is anyone’s guess.
“Beyond that,” Jason goes on, “what she wrote was basically true. I’m not aware of any case I handled during that time period where a client of mine suffered as a result of my problem. But it’s no doubt true that I had that problem.”
“What did you do, Jason, after reading that e-mail and the attachment?”
“I went to see Alexa,” he says.
Roger Ogren, in spite of himself, rifles to attention. This would be news to him.
“When did that happen?” asks Bradley.
“Not long after I read the e-mail,” Jason says. “I packed up Alexa’s clothes and toiletries, whatever belonged to Alexa that was in my house, and then I drove them over to her house. I needed to return those things, anyway. And I wanted to talk to her.”
“Did you? Talk to her, I mean?”
“Yes. I drove to her house. I brought in the suitcases. We sat in her
living room and talked. I told her that she could send that letter if she wanted to, that it was basically true and that I wouldn’t deny the charges.”
“What happened next?”
“She told me she’d never send that letter, that she’d never do anything to hurt me.”
“Objection, hearsay,” says Roger Ogren.
Bradley says to the judge, “It’s not offered for the truth of the matter asserted, Your Honor. Only to show the effect on Mr. Kolarich’s state of mind. This is all about motive, from the prosecution’s standpoint. They want to paint this picture of a man threatened, and we are offering this to show that he didn’t feel that way at all.”
“This is offered precisely for the truth of the matter asserted, made by someone who isn’t here to contradict this so-called truth,” Ogren snaps back.
The judge holds up her hand. “The objection is overruled.”
“Your Honor,” Ogren says, “I’d request this testimony be held in camera first so we can address these hearsay problems before they are simply tossed out in open court—”
“What hearsay problem? That objection was overruled,” Bradley says, his competitive juices flowing. He’d be better off shutting up. When you’re ahead, shut up. A young lawyer’s mistake. Some of the best decisions an attorney makes are when she keeps her mouth closed.
“We’re not hearing this testimony twice, Mr. Ogren,” the judge says. “And the two of you, I’m going to say this once: You do not talk over each other and you don’t talk at all unless I indicate that I want to hear from you. Is that clear?”
“Yes, Your Honor,” says Ogren, defeated, and says Bradley, satisfied.
“Jason,” says Bradley, “when Alexa told you she was never going to send that letter, and that she’d never do anything to hurt you, did you believe her?”
Borrowing a page from Ogren’s playbook, earlier in the trial, repeating helpful testimony in the form of a question. Ogren can hardly object.
“Of course I did. I was surprised she even sent that e-mail in the first place. Like I said, it really wasn’t like her to do something mean-spirited like that. So, I’m sorry—the answer to your question is, yes. I believed she would never send that letter to the disciplinary board.”