If You Only Knew

by M. William Phelps

  As they went through the reports issued by Oakland County, Baden spoke of a “lethal amount of alcohol” in Don’s system at the time of his death.

  He spoke of the need for a “full autopsy” here, but that it had not been done.

  He spoke of a seventy-four-year-old man who had diverticulitis and a host of other ailments who had, without a doubt, died from one of them.

  He recalled how “people who drink a lot tend to bruise” more than others.

  He maintained there just wasn’t enough “evidence” to change the death verdict to asphyxiation, and Baden himself would have never done such a thing.

  Baden testified to a whole litany of eye-opening observations:

  Most deaths are “unnatural,” and that, in and of itself, is no reason to raise a red flag.

  “Most—ninety-five, ninety-six, ninety-four percent—of deaths in this country nowadays, those deaths are certified without an autopsy . . . [and] autopsies are becoming rarer and rarer. . . .”

  The initial medical examiner (Ortiz-Reyes) had enough information to make the call to issue a death certificate.

  All of these events were “not at all uncommon.”

  Baden was effectively saying the ME’s office did the right thing, came to the right conclusion, followed the book, but then they suddenly changed their minds.

  A valid point Baden made was that Don weighed about 140 pounds. The amount of alcohol in his 140-pound body (.44) was “significant and extremely high” for his weight. Baden further stated that for the chronic alcoholic, the more he drinks the later in life, the less he is able to handle the amount of alcohol he used to be able to consume.

  “I think the problem with chronic alcoholism . . . it doesn’t make you better. It makes you worse, because as you drink and damage the liver (the target organ of alcohol) . . . it causes cirrhosis and other damage to the liver. The liver, which is the main organ for getting rid of alcohol, becomes damaged, so that the older alcoholic often can handle it less well than when he or she was younger.”

  They spent the next ten minutes breaking down the alcohol argument at its most basic level. Baden had his facts and figures ready and fully prepared. As they did this, the idea that “alcoholism” was a potential killer kept coming up within all that Baden talked about. Then he switched to cardiovascular disease and it was clear that without an autopsy, how was one to draw any conclusion?

  The topic of Don’s body possibly being repositioned came up next. Baden said he’d studied all of the photos and there was no way, based on what he had available for evidence, he could come to the same conclusion.

  “I don’t see any evidence that this was a tampered scene,” Baden told jurors. “Alcoholics can die just lying down and going to sleep. The legs being crossed at the ankles was not in any way remarkable.”

  What’s more, at one time, Baden had done hundreds of autopsies on skid row drunks dying in New York City. He knew what to look for, as far as death by alcohol went.

  In fact, as they concluded twenty minutes later, there was very little Dr. Baden could agree with regarding Dragovic’s findings in this case. For all anybody knew, Baden said at one point, with “all of the rectal bleeding” reported, Don Rogers “could have died of colon cancer.” It was possible—and “another consideration that an autopsy would have resolved.”

  As far as those so-called bruises on Don’s face and nose, supposedly left by a pillow, all “alcoholics leave” scars and fresh wounds from bruising themselves. There was just no way to tell if those minor scrapes on Don could have come from a pillow. Baden stopped himself just short of saying how ridiculous it was even to claim they had been made by a pillow. For all intents and purposes, Baden said near the end of his direct, those scrapes, especially, could have been discolorations in the photo negatives. There was no indication that they were actually scrapes in the surface of the skin.

  Concluding, Baden said, if he had to guess, he’d say no, those were not scrapes, they were old wounds.

  “I don’t think it’s sufficient to indicate foul play.”

  * * *

  What can an APA do after a show like Baden had just put on? Go after his ethics was about all. The APA began by hammering Baden on his “consulting” jobs, asking him repeatedly if he spent most of his time these days consulting on other cases, as opposed to conducting autopsies.

  Baden said (twice) he split his time equally between autopsies, writing and consulting.

  The APA asked where.

  Baden said all over the world.

  The cross-examination was, at best, a last-ditch effort; at worst, it came out as desperation.

  Predictably, the APA went after Baden’s “fees.”

  Baden agreed that he got three hundred fifty dollars an hour, and five thousand dollars a day while on the road. In this case, it amounted to about twelve thousand dollars, paid for by Billie Jean Rogers.

  From there, the APA asked about Baden’s contention that .44 might have been lethal.

  Baden agreed when the APA asked that not everyone with that level dies from it.

  As they discussed the alcohol levels for what felt like a nauseating umpteenth time, it appeared the cross-exam was going nowhere. A lot of Baden’s answers consisted of a simple “yes” or a simple “no.” Zero elaboration.

  APA Skrzynski asked questions about the amount of alcohol in a person’s system for the next twenty minutes; then he tossed in an OJ Simpson question (if Baden had testified in that case). As the state attorney finished, it was clear the PO had nothing left. If anything, Baden’s cross-exam bolstered Billie Jean’s case in the sense that the APA made a bigger deal than necessary about the amount of alcohol in Don’s system, casting even more light onto it, which meant more doubt about the murder charge.

  * * *

  By 1:56 P.M., after lunch, the judge indicated all of the testimony had been heard. Closings followed a day later.

  And then, quite unceremoniously, to no one’s surprise, Billie Jean Rogers was found not guilty.

  It had all happened so quickly. The closing arguments. The verdict. The good-byes.

  And then the breakdown of Billie Jean’s health: She faded fast. Heading toward Christmas that year, after it was announced that Vonlee would face trial within just a few months, Billie Jean secluded herself inside her home. No one saw her. Not many spoke to her. She’d beaten a murder rap—which was no easy task under any circumstance—but she still had a death sentence hanging over her.

  PART 4

  I now inhabit a life I don’t deserve, but we all walk this earth feeling we are frauds. The trick is to be grateful and hope the caper doesn’t end any time soon.

  David Carr, The Night of the Gun

  CHAPTER 75

  ON DECEMBER 19, 2001, Vonlee’s new lawyer, Frederick Toca, along with Vonlee by his side, appeared before Judge Wendy Potts and the APA to set a date for Vonlee’s trial. Toca needed to ask for more time. He said he had not yet had a chance to order the transcripts from Billie Jean’s trial and with the New Year approaching, the holiday season slowing things down, he wanted additional time to study all of the documents and consult with his client.

  Judge Potts was not going to stand for any delays. Her court had always been run with an iron fist as it pertained to schedules. She said all of the witnesses had just testified in Billie Jean’s case and their testimony was “fresh in their minds” and she did not want to disrupt that momentum.

  It was a valid point.

  From the state’s point of view, Vonlee’s trial was going to be a facsimile of Billie Jean’s in the manner of witnesses and how they would appear—the most important among them being Danny Chahine.

  After they hashed it out, Judge Potts said March 4, 2002.

  No delays!

  Gavel.

  CHAPTER 76

  BY FEBRUARY 6, 2002, fewer than thirty days before the scheduled start of Vonlee’s trial, Frederick Toca filed a motion that would once again change the course of his clien
t’s life.

  Fred Toca was now withdrawing from the case—a case that he had claimed to his client he could win for her.

  Citing a “breakdown of communication” between him and Vonlee, and “also some other issues,” Toca said he’d like the court to allow him to step aside.

  Potts was a bit perturbed by this eleventh-hour revelation.

  As he explained further, Toca said he was out of funds. They needed six thousand dollars to buy the Billie Jean Rogers trial transcripts and “certain financial arrangements have been made. Unfortunately, her family indicates that they may not be able to come through. . . .”

  Vonlee looked angry. She stared at him.

  “And, of course, that gives us four days until trial, and I think Ms. Titlow will tell you, quite frankly, that you know certain representations have been made by other family members of hers, that this was taken care of. It has not been taken care of.”

  Was Toca now saying that Vonlee’s family had been partly responsible for paying him to finance her defense? Was the guy blaming Vonlee’s family for the position he now found himself in?

  “Are you going to come through and have you retained Mr. Toca?” Judge Potts asked Vonlee, who was standing before the court. “Have you paid any money to Mr. Toca?”

  “Just some jewelry, that’s all,” Vonlee said.

  “No money?” Potts asked, seemingly confused that zero dollars had exchanged hands.

  “There was an agreement on, supposedly, on a book deal,” Vonlee said before looking over at Toca.

  “But that’s—” Toca began to say before Vonlee cut him off.

  “That’s how I retained his service,” Vonlee said.

  “On a what?” Potts asked. She sounded perplexed by this.

  “Your Honor, there was initially, per the first attorney in this case,” Toca said—a statement no one else connected to the case would later agree with—“a book deal on this table that fell through as well.”

  “Oh!”

  “But, Your Honor,” Toca continued, “this has nothing to do with my retention. I mean, this has to do with trying to retain experts. Trying to get transcripts, et cetera, et cetera.”

  Toca claimed that the “book deal” portion of his defense, which was paid by Vonlee in her signing over rights to her story, only covered Toca’s time and efforts, not his expenses. That money was supposed to, he said, come from Vonlee’s family.

  “Who is going to represent you in this case?” Potts asked Vonlee.

  “I don’t have anyone if he don’t,” Vonlee said.

  “Okay. You would need a court-appointed attorney?”

  “Yes,” Vonlee answered.

  Neither Toca nor his co-counsel was on the state’s official court-appointed attorney list. So the state could not allow them to continue and pay them those monies they needed for expenses, if this was even an option Vonlee desired.

  Potts asked Vonlee again if she wished to retain Toca or she wanted a court-appointed lawyer.

  Vonlee said, “I just want it over with. Whatever is best.”

  Potts said she would get to work right away finding Vonlee a competent, court-appointed attorney that might be able to keep the trial on schedule.

  CHAPTER 77

  HE DIDN’T KNOW IT on that cold day in February 2002, as Judge Potts went to work locating an attorney to fill Toca’s shoes, but forty-five-year-old—“feeling thirty-two”—William Cataldo was about to become involved in the legal mess that had become Vonlee Titlow’s case. There had been so much misperception over what had happened between Toca and Vonlee, so much animosity between the two—with Vonlee telling people she was going to see Toca in civil court one day to prove he had destroyed any chance she had left to defend herself properly—the case was a complicated challenge for any defense attorney.

  Cataldo, who was often called Bill, was a wispy, wiry man, with long, stringy, concrete gray hair, flowing inconspicuously around a shiny bald spot. He kept a salt-and-pepper mustache, wore small and round Ben Franklin glasses, and generally donned tailored suits. Cataldo had been a radio producer on his way toward entering the world of law. He’d overseen countless shows on ABC Radio in Detroit, finally producing a law series that sparked an interest in the profession. By 1984, Cataldo had given up on radio as his sole career and had graduated law school. His passion became trial work.

  “Law was like my fourth career,” Cataldo told this author. “I graduated and still didn’t practice law for years while I continued to produce the radio program.”

  Oakland County did not have a public defender’s office, same as many counties across the United States—a particular office, per se, where all of the cases in which defendants could not afford legal counsel were referred. Oakland had a court-appointed public defender list of lawyers it went to when in need of pro bono counsel. By the time Cataldo found his way into practicing law full-time, he had made friends with judges, lawyers and others involved in the business of criminal law. He knew the landscape and layout of a courtroom fairly well, and had become familiar with all the local players.

  “Besides one house closing and two divorces, I have never touched civil law—all the cases I’ve done since 1984 have been criminal,” Cataldo explained.

  Criminal law fit Cataldo’s character: fast-paced, thrill-driven, drama-based and edgy. He liked to be around the action. He took careful preparation to avoid the nonsense and bullshit that many lawyers participated in.

  Judge Potts thought of Cataldo immediately when Vonlee was in need of an attorney after what had happened between her and Toca. Cataldo was on Potts’s list of lawyers she was familiar with and liked to see practicing in her courtroom.

  “I had done several high-profile cases in front of her, so she was comfortable with my skill set,” he said.

  One of the main factors for Potts, as the judge in this case, according to Cataldo, was she did not want to “adjourn the trial date.” Potts needed the trial to proceed, even with this legal hiccup. And, lo and behold, the trial was set to begin when she had scheduled it in March. She believed Bill Cataldo could fill those vacant shoes and make it happen. What’s more, she knew that handing Cataldo over to Vonlee, Vonlee was getting the best representation she could for the money she was willing to spend.

  “We were six weeks out from the time of my appointment and I assured her that I could turn aside my other cases and focus on this.”

  A travesty, Cataldo thought as he sat down to look through the documents, study the trial transcripts from Billie Jean’s case (for which the state could now provide at its own cost), shaking his head in disgust, learning about what had happened between Vonlee and Toca. As he flipped through pages, looking at it all in its entirety, he also considered that Vonlee’s case at trial was unwinnable. She had already admitted her involvement in Don’s murder in a court of law and could be heard on tape confessing, essentially, to the crime. It didn’t matter what she said, the lawyer knew. Didn’t matter that her role was minimized and she might have not even participated in the actual murder. Didn’t matter what kind of witness Danny Chahine made, or what history with the law he had. All jurors would hear, Cataldo was entirely confident, was Vonlee describing how she and her aunt carried out this crime.

  Vonlee had seven to fifteen years on the table and was now staring down the barrel of what could be anywhere between twenty years to life.

  Incredible, Cataldo told himself. He wondered how someone could be so incompetent to have screwed that deal up for her. The attorney thought it was ignorance that had led to Vonlee’s decision to remove Richard Lustig, and the deal he had brokered, and go with Toca.

  What bowled Bill over the most was that his colleague and friend, a man he knew very well, Richard Lustig, Vonlee’s initial attorney, was able to go into the PO and negotiate that deal of seven to fifteen during a time when the PO’s administration had what Cataldo said was a “no plea” policy in place. That feat alone was nothing short of a legal miracle. Lustig had performed magi
c in that regard. The idea that a plea deal had been set between them, considering the evidence in Vonlee’s case the state had against her, proved Richard Lustig had done the best work of his career, as far as Cataldo was concerned.

  “Richard was able to have a deal struck,” Cataldo explained, “that included a first-degree murder charge—think about that!—pled down to a much lesser offense, with a cap of fifteen years, reducing the charge to, basically, manslaughter.”

  Anyone practicing in Oakland County, he went on to note, “knew that those deals don’t ever come along.”

  It revolved around Vonlee’s testimony against Billie Jean. The PO knew they could never get a conviction without Vonlee, and the verdict in Billie Jean’s case had proven that.

  “Vonlee wasn’t even in the fucking room at the time of this murder,” Cataldo said. “They realized that.”

  But that was months ago. Now Vonlee, because of a decision she and Toca had made, was facing murder one. There was no chance of any deal. Billie Jean’s case was over. There was no bait to make the switch. No longer any carrot on the end of the stick to dangle in the PO’s face. And the PO, coming from a loss, now wanted blood.

  Vonlee was screwed.

  “I made that request, of course, as a formality,” Cataldo said of a possible plea bargain, “but I was laughed at, just as I am laughing now thinking about it.”

  As he sat and looked over everything, trying to find a strategy to defend Vonlee, what amazed Cataldo was that he couldn’t understand why the PO had tried Billie Jean’s case first.

  “They should have tried Vonlee before Billie Rogers, made a deal with her, and then had her testify against Billie.”

  Cataldo was certain they would have obtained a conviction if they did that.

  One major factor for Cataldo was the idea that the Detroit metro area has always been “starved for glitterati,” and with Dr. Michael Baden riding the wave of his HBO series and the notoriety of the OJ Simpson case at the time, there was not a chance of winning against Billie Jean and that spectacle her defense put on. In Bill Cataldo’s opinion, the PO knew it, going in.