by Adam Mitzner
Elizabeth tastes whatever is in the pan and puts the wooden spoon back in the pot. “Can I talk to you for a moment?”
“Okay.”
“Let’s sit down,” she says, and starts to move toward the dining room. Despite the fact that I believe everything is on the right track, I’m shaken by her need to tell me anything of such import that it requires sitting.
My concern increases with each moment Elizabeth doesn’t seem to know the right way to begin.
After a few moments of this silence, Elizabeth begins to look as if she’s going to cry, and my inner alarm grows to the point where I can feel tears well behind my own eyes. When I look more closely, however, I see that I’ve misread her. I can’t explain how, and I’m not a believer in clairvoyance, but I know what she’s about to tell me.
“I’m pregnant,” she says, smiling, but in a cautious way.
Another baby was once a constant topic of conversation, but it hasn’t been raised by either of us in a very long time. More than that, the very idea of Elizabeth becoming pregnant seems impossible. We were taking proper precautions, although I know that’s never foolproof.
“That’s … amazing,” I finally say. “I’m so happy.”
“Are you sure? I know it’s not something we planned, and I know that the timing could hardly be worse.”
She’s right, on both scores. And truth be told, panic is the actual emotion I’m feeling, rather than happiness. I’m ashamed that my first thought is that it feels like I’ve re-enlisted in the army right before I was up for a discharge. And then a different sensation begins to take hold, as if this unplanned event is a sign that things are going to get better. I know from first-hand experience that children make marriage harder, not easier, but I can’t help but see the possibility of another child being an opportunity for me to start anew. I don’t have to stay with Elizabeth just because we’re going to have a baby, but I can choose to do so. And I can be a better father, not just to this new life, but to Charlotte as well.
Is that even possible? Can you make yourself a better husband? A better person?
And then I realize that I’ve made myself a worse one—a distant father; an unfaithful husband; a liar—by the choices I’ve made. It seems only fair that different choices could make me a better person.
What if Batman went to therapy? He could stop being Batman, couldn’t he?
“I’m very happy,” I tell her, and pull Elizabeth into my arms. At that moment, feeling her exhale, I realize that, for the first time in quite a while, I’m optimistic about the future.
Part 6
52
Michael Ohlig’s trial for my mother’s murder begins the second week of July.
Felony trials in Palm Beach County take place in the criminal court complex, which, without irony, is located on Gun Club Road. The building is one of those architecturally anonymous concrete structures that could pass for a suburban mall if only there were a movie theater attached to it.
A murder trial of a multi-millionaire is a relatively rare phenomenon, even in Palm Beach, and the gallery is filled to capacity, which is about a hundred spectators. The counsel tables and the jury box are empty, however, which I’ve always found a little eerie, like a riderless horse at a funeral.
As the prosecutor Morgan Robertson requested, I’m in attendance from the start, dutifully sitting in the gallery’s first row, right behind the prosecution’s table. Pamela Ohlig sits just across from me, behind the defense’s table, but she never looks in my direction, not once, the surest sign she knows I’m here.
Clint Broden and Ohlig enter the courtroom together. Broden extends his hand and a warm smile, but Ohlig can’t even force himself to put on that much of a show. He looks right at me, however, unflappable as always, his glare telling me he’s not the least bit intimidated by my presence.
Ohlig is wearing what looks to be the exact same blue suit, light blue shirt, and dark blue tie that he wore on the opening day of our trial, but Broden apparently doesn’t impose the same prohibitions with respect to client jewelry as I do—Ohlig’s wearing his Patek Philippe, and I’d already noticed that Pamela looks more like she’s attending the Oscars than her husband’s murder trial. Of course, Broden is more flamboyantly dressed than either of them—dark, double-breasted suit with purple pinstripes, a pink shirt with contrasting white collar, a bright red tie, a diamond Rolex, and a gold pinky ring.
The judge’s name is Hector Rodriguez, but to look at him you’d never guess he’s Hispanic. He’s lighter featured than most of my father’s side of the family, and he has blue eyes. Robertson told me that he was head of the Florida Commission on the Death Penalty, and a former Republican nominee for State Attorney General before being appointed to the bench, neither of which bodes well for Ohlig.
Unlike Judge Sullivan who handled voir dire herself, Judge Rodriguez plays a supporting role during jury selection, allowing the lawyers to ask the questions. This allows Broden to immediately establish control of the courtroom.
He’s got a folksy manner, which I know to be a complete act, but it enables him to treat each juror like a guest in his home, so much so that I’m surprised he doesn’t offer any of them tea and cookies. The contrast with Robertson’s more businesslike demeanor is stark, and I’m immediately nervous that she’s in over her head.
The accepted wisdom at Cromwell Altman was that Assistant United States Attorneys are about twenty IQ points smarter than their counterparts at the DA’s office. Federal prosecutors get paid more than local ones and are more desirable in the private sector, which leads to the U.S. Attorney’s Office usually attracting the better candidates. I’ve tried not to let this preconceived prejudice color my views of Robertson, but so far it seems to be right on.
I’m sure both sides had their jury consultants hidden among the spectators, but it doesn’t take an advanced degree to know what each is looking for in a juror. Broden wants men, likely of any race, the older the better. Anyone who will identify with Ohlig and sympathize with his plight is a possible vote for acquittal. Even those who think that Ohlig’s guilty may still vote to acquit if they can understand why he would have done it.
Robertson tries to put as many older women on the jury as she can. Twelve of my mom would work out best for her. There’s some risk in that strategy, which I’m not sure she sees. First, statistically speaking, older women are usually the most cautious when it comes to convicting, likely the only group that takes the reasonable doubt instruction to heart. The bigger problem is that those same statistics point out the rather sexist conclusion that in the jury room, like in the living room, women, especially older women, tend to follow the lead of men. Maybe it’s the same impulse that prevents them from exerting their will over the TV remote, but female jurors are known to defer to men who are adamant.
At the end of the selection process, the jury sworn to faithfully adjudicate Michael Ohlig’s fate can easily be split into equal parts of older men, older women, and jurors neither side could avoid. It’s a classic situation where no one is happy.
Neither opening statement contains any surprises. Robertson lists the evidence in a dry manner, but when it’s all out it sounds pretty compelling. She lays the cornerstones that the prosecution always tries to establish—means, motive, and opportunity—and tells the jury that witnesses will place Ohlig with my mother on the day of her death, not far from the place where she drowned. She also has some evidence that he drugged her, although she’s vague enough about this in her opening that I suspect she knows it’s not rock solid. As for motive, she’s going to argue that Ohlig killed my mother to prevent her from telling his wife about their affair, thereby avoiding a costly divorce.
Broden is a much more captivating speaker, making his points with a modulated voice and sweeping arm gestures, but the substance is pretty basic—no one except my mother could know the events that led to her death, and it’s unfair for Ohlig to have to prove what is unprovable; namely, that he did not commit murder.
After an hour or so, Broden pulls a stunt I’ve heard he’s done before, although I always thought it was apocryphal. He walks over to the prosecution table and asks Robertson if he can pour himself a cup of water from the pitcher in front of her. I notice that defense counsel table has no pitcher on it. This must be because Broden has removed it, as I’m positive that the courthouse cleaning people who are charged with placing the water pitchers have no agenda. The point, however, is to show the jury how much the prosecution controls in the process, right down to denying the defendant and his counsel a simple cup of water.
Before concluding his opening, Broden goes where I did not during the New York trial. He promises Ohlig will testify.
“Ladies and gentleman of the jury, you will hear from several witnesses who claim to have first-hand knowledge of certain facts”—and Broden air quotes the word—“and you will hear from certain people who claim to be experts”—this, too, earns an air quote—“but the only witness who really matters in this case is Michael Ohlig. He is going to take the stand and tell you he is innocent. I am confident that you will believe him.”
After court, I go back to the hotel. It’s closer to the courthouse than my parents’ home in Boynton, but that’s not why I decided to stay here. There are enough ghosts in the courtroom, and I figured there was no need to face even more after court.
The first thing I do is call home. Elizabeth sounds happy to hear from me, and that’s enough for my loneliness to lift.
“How did it go today?” she asks.
“It’s hard hearing the evidence laid out. And, no big surprise, during his opening Broden promised Ohlig’s going to testify.”
“Did he give any hint of what Ohlig’s going to say?”
“Broden didn’t come out and say it directly; I think he’s trying to keep all his options open. But when push comes to shove, he’s going to say that my mother killed herself.”
“Then it’s a good thing you’re there to tell them that didn’t happen.”
I move the topic away from my expected testimony. “Broden’s something to see. He’s really got them eating out of his hand.”
“And how’s the prosecutor, what’s her name, Morgan?”
“She’s fine. A little on the stiff side, but she makes up for it with absolute certainty that Ohlig’s guilty.”
“You say it as if you lack that certainty.”
“I think it’s more complicated than that.”
“What’s complicated about whether he’s guilty or innocent?”
I smile, which I know is lost on her over the phone. If only things were that simple, I think to myself.
53
Robertson’s first witness is the sheriff of Palm Beach County, Richard Brunswick. He looks like a cop undergoing a makeover that’s still in progress. There’s a certain amount of polish to him, the snug-fitting suit and the pocket square that matches his tie, but they are at odds with the used car salesman mustache and large pot belly that hangs over an alligator belt.
His answer to Robertson’s first question—“Are you currently employed?”—clarifies the inconsistency.
“Since my election in 2007, I have served as the sheriff of Palm Beach County. Before that, I was a career law enforcement agent here in Palm Beach.”
I should have guessed. Richard Brunswick is a cop turned politician.
Just as Special Agent McNiven did during the securities fraud trial in New York, Sheriff Brunswick is going to lay out the prosecution’s case. Robertson has already told the jury in her opening statement that eyewitnesses and experts will follow, but Brunswick will give the narrative into which the evidentiary pieces will fit.
Brunswick has a confident air about him without being too smug, not an easy balance for either a cop or a politician to master. He recounts his rise through the department, during which he seems to have held every position in law enforcement from crossing guard right up to chief of police. When there was nowhere higher to climb within the department, he was elected sheriff.
This is Brunswick’s nineteenth murder case, he tells the jury, the fourth since he’s been sheriff. This seems like a lot to me, which I imagine is why Robertson sought to bring this issue to the fore, so the jury won’t think he’s a small-timer in over his head.
Robertson takes Brunswick through the investigation chronologically, careful to touch on each of the points she made in her opening. Early on she plays tape 17, the one I first heard during Ohlig’s New York trial. The one that started all of this, at least for me.
Tapes are catnip for a jury. It’s the only time they get to hear the actual truth and not the testimony of well-coached witnesses. I understand from Robertson that there was a hearsay skirmish over this one, but because it’s Ohlig’s voice, the recording is admissable as a party admission.
Even though by now I’ve heard the tape at least half a dozen times, the sound of my mother’s voice pledging her undying love to a man who is not my father still touches the same nerve it did originally. I can feel the jurors looking at me as they listen, and I oblige them by wiping my eyes, even though there are no tears.
“It is the theory of the defense,” Robertson tells Brunswick as if he doesn’t know, “that Mrs. Miller committed suicide—”
Broden objects, rightfully. This was a poorly worded question on Robertson’s part.
“Your Honor,” Broden says, “the defense doesn’t have theories. The defense is only obliged to point out that the government’s theory of murder is not believable beyond a reasonable doubt.”
“He’s right,” Judge Rodriguez says to Robertson. Even he looks a little disappointed with her. “Try to rephrase.”
“Sheriff Brunswick, did you consider that Mrs. Miller committed suicide as a possible explanation for her death?”
Robertson actually looks over her shoulder at Broden, I assume to see if he’s going to object. When he doesn’t, she looks back at her witness.
“Believe me,” Brunswick says, “I’m in no hurry to declare something a murder if it isn’t. I know that the defense has claimed this might be a suicide, but that just isn’t consistent with the evidence.”
Broden could object and seek to strike Brunswick’s answer, but he’s smart enough to know not to dwell on this issue. He’s made his point that it’s not the defense’s burden to prove suicide, and he’s content to leave it at that.
“Why is that?” Robertson asks.
“For starters, there’s no suicide note.”
“In your experience, Sheriff Brunswick, do most people who take their own lives leave a note?”
Broden objects. This is an area in which the experts will fight it out later. Robertson has already told me that each side lined up a psychologist with differing views on the subject.
I expect Judge Rodriguez to leave the question for them, but he lives up to his reputation as a prosecution-oriented jurist. “Mr. Broden,” he says, “I believe that the experience of the county’s leading law enforcement official is relevant here, and so I’m going to allow it.”
It’s a nice feeling being on the other side for once. Judge Rodriguez’s ruling is probably wrong—after all, how many suicides has Brunswick actually dealt with, and how would he know how many he’s missed?—but it’s a tremendous boon to the prosecution.
“I’ve never seen a suicide that didn’t leave a note,” Brunswick says. Largely because I’m sure Robertson has informed him that statistically that’s not accurate, he qualifies his answer by adding, “I’m aware that some have existed, of course, but I believe that they are the narrow exception.”
After this detour into a subject matter he has nary any experience in, Brunswick goes onto sturdier ground, as Robertson focuses on the sleeping pills, which are a lynchpin of proving my mother was murdered.
“Sheriff,” Robertson says, “please tell the jury about the quantity of sleeping pills found in Mrs. Miller’s system.”
“Yes,” he says. “We found approximately 40 milliliter
s of a drug called Ambien. That quantity is inconsistent with Mrs. Miller voluntarily going swimming.”
“Objection,” Broden says again, although I can tell he knows it’s not going to fly. I suspect he’s trying to lay the groundwork for the jury to see what an uphill battle a defendant faces, a variant on the no water at counsel table theme.
“What is it, Mr. Broden?” Judge Rodriguez asks.
“Once again, this witness is a police officer. He has no training whatsoever in forensics or medicine, and therefore his views about sleeping pill quantities should be stricken.”
“No. No.” Judge Rodriguez says, shaking his head. Then he turns to the jury. “Ladies and gentleman, Mr. Broden is correct that Sheriff Brunswick is not a doctor or a scientist or, for that matter, an Indian chief. He is, however, the sheriff of this county, and by virtue of that, he has been involved in more criminal cases than anybody else in this courtroom. It is for that reason, and only that reason, that I’m permitting him to testify about these subjects. The prosecution and the defense may call to the stand later other people who are more expert in these particular areas. If—and I’m not saying that this will happen, but if—any of those experts disagree with Sheriff Brunswick, then I leave it to your good judgment to decide whom you should believe.”
Broden should now know where he stands. The judge is going to allow Sherriff Brunswick to serve as the master of ceremonies for the prosecution’s case, and he’s telling Broden to back off.
“Is that what led you to believe that Mrs. Miller’s death could not have been an accident?” Robertson asks with the same wide-eyed expression she used for the question regarding how Sheriff Brunswick rejected the suicide angle.
“Your Honor, is it too much for the defense to ask that Ms. Robertson not lead her own witness to discuss what caused him to believe anything?” Broden asks with obvious contempt.