A Conflict of Interest

by Adam Mitzner

  Broden scores with the gallery, if not the judge. “Mr. Broden, if you have an objection, please make it without playing to the crowd.” Judge Rodriguez waits a beat. “That’s only permitted for the judge.” This quip earns a larger laugh, which Broden acknowledges with an exaggerated bow of his head.

  “Would you like me to repeat my question, Mr. Brunswick?” Robertson asks, looking only too eager to move away from the banter going on between the judge and the defense counsel.

  “No, I remember it. You asked why we concluded that Mrs. Miller’s death was not an accident. As I previously testified, the amount of sedative—the sleeping pills—almost conclusively meant that her drowning was not an accident. These pills must have taken effect within an hour or two of her death. Our conclusion was that her murderer”—and then Brunswick points—“Mr. Ohlig, drugged Mrs. Miller so that he could later throw her overboard to her death.”

  You could almost feel Robertson ticking off the points she wanted to present through Brunswick. First, establish that it wasn’t a suicide, but murder. Then show that Ohlig did it. If that was her plan, she was halfway there.

  “Did you consider any other possible suspects in this murder?” she says, emphasizing the last word.

  “Of course. The first rule in law enforcement is that everyone starts off as a suspect, and then you eliminate the ones who couldn’t have done it. You don’t do it the other way around.”

  “What ultimately caused the police to conclude that Mr. Ohlig was guilty of this murder?”

  “There were several factors. First,” he touches his two index fingers together, as if he is counting the reasons on his hand, “we learned that the sleeping pills in Mrs. Miller’s system were purchased by Mr. Ohlig, which, of course, raised suspicions. Mr. Ohlig denied any involvement in the purchase of these pills, which we knew was untrue based on the credit card statements and the mailbox where the pills were delivered. That mailbox was the second reason,” he says, this time touching two fingers on his right hand against the index finger of his left. “Third, Mr. Ohlig was engaged in a long-running affair with Mrs. Miller that he had just ended, which apparently upset Mrs. Miller sufficiently that she demanded to see him at once.” Three fingers now touch his left hand. “Mr. Ohlig lied about the last time he saw Mrs. Miller, claiming it was weeks prior when, in fact, it was the morning of her death.” Just as Brunswick is running out of fingers, he says, “Finally, we had an eyewitness who put Mr. Ohlig at the scene of the crime with Mrs. Miller—on his boat shortly before the time Mrs. Miller went into the water. All in all, the evidence of Mr. Ohlig’s guilt is overwhelming.”

  “Thank you, Sheriff Brunswick,” Robertson says. “No more questions, your Honor.”

  I can tell from the outset that Sheriff Brunswick isn’t going to fare well against Clint Broden. There’s a swagger to Brunswick that you love to see when you’re a cross-examiner. It’s like someone pulling out a knife when you know you have a gun.

  “Sheriff Brunswick,” Broden begins, “I’m going to ask you some questions that are a little different than the ones the prosecution just asked. In my questions, I just want to know what you know firsthand. I’m not interested in what other witnesses told you—or what Ms. Robertson here told you. Okay? I only want to know what you know.”

  The point made that Robertson overstepped, Broden proceeds to show Brunswick exactly who’s in charge. I have the sinking feeling that, despite the fact that the questioner always controls the examination, Brunswick might actually think he’s running the show.

  “Sheriff, did I hear you correctly that the presence of sleeping pills in Ms. Miller’s system is what made you conclude Mrs. Miller was murdered?”

  “That’s right.”

  “Why didn’t you conclude that she took these pills herself, as part of a suicide?”

  “Like I testified before, because there was no suicide note, and no evidence of her being in a suicidal state of mind.”

  “You’re not a psychiatrist, are you, Sheriff?”

  “No.”

  “And you’re not a psychologist?”

  “No.”

  “Do you have any training whatsoever that gives you insight into recognizing when a person is in a suicidal state of mind?”

  “As a law enforcement officer of twenty-seven years, I do.”

  By sparring with Broden, Brunswick is only making it harder on himself. Robertson should have prepared him better, but it’s also possible that he was one of those witnesses who just wouldn’t take instruction.

  “Did your twenty-seven years of law enforcement experience teach you that the sudden death of your husband of thirty-five years doesn’t make you depressed?” Brunswick doesn’t answer, but blinks uncomfortably. “Sheriff, you need to answer, so the jury can understand how your twenty-seven years of law enforcement experience prepared you to offer the psychological evaluation that even though Mrs. Miller’s husband of thirty-five years had just passed away, she wasn’t depressed.”

  “Well, she was having an affair with Mr. Ohlig, so I don’t know how upset she was about her husband’s death.” Brunswick is smiling, and that only makes it a thousand times worse. It’s bad enough when the defense puts the victim on trial, but at least that’s their job. No one wants to see the police impugn the dead.

  Broden can probably smell blood in the water now. “And did your twenty-seven years of law enforcement training lead you to conclude that the death of Mrs. Miller’s husband while she was cheating on him was insufficient to cause her to take her own life out of remorse or guilt?”

  Brunswick doesn’t answer at first, but at least he’s not smiling.

  “Is that your expert psychological opinion, Sheriff?” Broden emphasizes the last word, telling the jury once again that Brunswick is a long way from having expertise in this area.

  “I don’t know,” Brunswick finally says.

  “Think about how justice would have been better served if you had just admitted that you didn’t know at the outset.”

  Robertson objects, but by now there’s no point. The question didn’t call for an answer, so the fact that Judge Rodriguez sustains it makes no difference.

  “No more questions,” Broden says, turning his back to Brunswick and walking toward the counsel table. But then he wheels around again. “Actually, if I may, your Honor. One more thing, Sheriff.” He pauses, long enough that I’m sure he’s scripted this moment and the preface was all for affect. “Did your twenty-seven years of law enforcement experience provide you with expertise as to how you would force four sleeping pills down the throat of a woman to murder her?”

  Brunswick’s eyes widen, as if he’s looking for Robertson to rescue him. “We believe that Mr. Ohlig put the pills into something she ate.”

  “Can we conclude that the only evidence you have for that claim is your twenty-seven years of law enforcement experience?”

  Judge Rodriguez puts an end to the massacre. “I think you’ve made your point, Mr. Broden.”

  It didn’t require twenty-seven years of legal experience—or even twenty-seven minutes of it—to know that the trial had not gotten off to a good start for the prosecution. Robertson is going to have to step up her game if Ohlig is going to pay for what he did to my mother.

  54

  On the second day of the trial, the prosecution calls Gary Dillon, an employee of the Palm Beach Yacht Club where Michael Ohlig is a member. Dillon doesn’t seem old enough to vote and looks scared as can be.

  “Mr. Dillon,” Robertson says, using her stern teacher voice, even though a more soothing tone would be more appropriate considering Dillon is her witness, “did you see the defendant”—and then she points at Ohlig—“on Thanksgiving morning of this past year?”

  Broden motions for Ohlig to stand. It’s a nice touch, conveying to the jury that he doesn’t fear the identification, although why he doesn’t fear it is less clear. If Ohlig was with my mother on a boat that morning, it goes a long way to proving he drugged her a
nd then threw her into the ocean.

  “I did.”

  “Approximately what time?”

  “Early.”

  “What’s early to you, Mr. Dillon?”

  “I don’t know. Around seven. I start my shift at seven, and I saw him just after I got there.”

  “How do you know it was Mr. Ohlig that you saw?” Robertson asks.

  “I’d met him before.”

  “How can you be certain the man you saw on that day was the same man you’d met before and knew to be Mr. Ohlig?”

  “We had a nickname for Mr. Ohlig at the club—the Silver Fox. Some of the guys called him Foxie for short,” Dillon chuckles. “I remember thinking that it was funny that I was seeing a fox on Thanksgiving.”

  “Was he alone?” she asks.

  “No, he was with a woman.”

  “Did you recognize the woman?”

  “Not really.”

  “Please describe her to the jury.”

  “She had blond hair, really light like. She was tall.”

  “How old was she?”

  “Mid-fifties, I guess. ‘’

  Of course, that description would cover a large portion of the female population of Palm Beach, but then Robertson hands Dillon a photograph. The jurors sit up, taking special notice of what is about to happen.

  The picture that Dillon is studying is one I provided to Robertson. I originally gave her a photo of my mother with Charlotte, but Judge Rodriguez ruled that was gilding the lily. The photo Judge Rodriguez allowed was taken by my father the last time I saw him alive, which was when we visited over Passover.

  Dillon is studying the picture as if he’s never seen it before. In actuality, he’s likely seen it more than twenty times, the last of which was probably right before Robertson called him to the stand.

  “Mr. Dillon,” Robertson says, “is the woman in this picture the same woman you saw with Mr. Ohlig at the yacht club on the morning of Thanksgiving?”

  Dillon swallows hard. “Yes,” he says, not quite as a question, but certainly not as emphatic as you want your witnesses to make identifications.

  Robertson passes the witness, looking relieved to have finished the examination. As Broden stands to begin his cross, all I can think is that I’m glad I’m not Gary Dillon.

  “Mr. Dillon,” Broden begins, “do you consider yourself someone who has a better-than-average memory?”

  “No. I’d say it was average.”

  “Me too,” Broden says, his smile suggesting that there’s no reason for Dillon not to trust him. “Mr. Dillon, do you recall what Foxie was wearing Thanksgiving day?”

  “Not everything, but typical stuff to go sailing.”

  “Was he wearing sneakers or boat shoes?”

  “I don’t remember that.”

  “But it was one or the other, right? I mean, he wasn’t wearing work shoes.”

  “Yes. It was either boat shoes or sneakers.”

  “And, Mr. Dillon, I assume you recall he was also wearing a hat, you know, because of the sun on the water?”

  “Yes.”

  “Did the hat on this person you think was Foxie hide his hair?”

  “Oh no,” Dillon says, as if he’s proud of himself for anticipating the trap that Broden had been setting. “I remember very clearly that I could see his hair. That’s how I knew it was Foxie.”

  “Mr. Dillon, about how long would you say that you looked at Foxie?”

  “Not too long. I wasn’t staring, but long enough.”

  “Maybe ten or fifteen seconds. Is that a fair estimate?”

  “Maybe a little bit longer than that.”

  “I assume that Mr. Ohlig is not the only member of the club with gray hair, correct?”

  “Uh-uh,” Dillon says, beginning to sound much less sure of himself than he did during direct.

  “In fact, I’m sure the only demographic in the Palm Beach club that’s larger than gray-haired men is bald men. Wouldn’t you say, Mr. Dillon?”

  Laughter spills from the gallery, and even Judge Rodriguez seems amused. Dillon, however, looks like he doesn’t get the joke.

  “Mr. Dillon?” Broden asks.

  “I’m sorry, sir, but I don’t know what that word you used means.”

  The gallery has a chuckle at Dillon’s expense, but Broden looks apologetic, despite the fact that I’m reasonably sure he used the word “demographic” to show the jury that Dillon isn’t the smartest tool in the shed.

  “My apologies, Mr. Dillon. What I meant to ask is whether there are a lot of gray-haired individuals at the club.”

  This time Dillon nods.

  “And from time to time, is it the case that non-club members dock at the club? Just for the day?”

  “Yes.”

  “And, Mr. Dillon, do these people sometimes have gray hair?”

  “Yes, sometimes.”

  “And on a holiday, like Thanksgiving, is the dock more crowded with non-club members than on other days?”

  “Yes. Non-club members will sail in for Thanksgiving or Christmas to visit family.”

  “Mr. Dillon, you feel like you got a good look at that hat, right? Otherwise you wouldn’t have known it was Foxie, if you didn’t see that hat and the gray hair underneath, right?” Dillon is nodding as Broden says this, having no idea that Broden’s about to slam him. “So tell me. What color was the hat?”

  Dillon gets the deer-in-the-headlights look that you dream about as a cross-examiner.

  “Mr. Dillon, you saw Foxie for little more than fifteen seconds, and you’re certain he was wearing sneakers or boat shoes and a hat that hid his hair, but not so much you couldn’t identify him as Foxie—due to his gray hair—but you don’t recall the color of the hat?” Before Dillon can venture a guess, Broden cuts him off. “Let’s try something easier. What color hat were you wearing that day?”

  Broden must know that Dillon wears different colored hats on different days or he’d never take such a gambit. “I’m sorry,” Dillon sputters, “I’ve got a bunch of hats and I just don’t remember which one I was wearing on that day.”

  “It was Thanksgiving day,” Broden continues, now working at a rapid-fire clip. “What clothing were you wearing that day? Better yet, what was your mother wearing? How about anyone at your Thanksgiving dinner?”

  “I think—”

  “Mr. Dillon, please do not guess. I’m prepared to call your family members to testify whether you’re right or not, and if your family is anything like mine, I bet someone took a picture that day, so we can confirm your recollection.”

  Robertson objects. “Your Honor, this witness isn’t here to test his memory on what people wore on Thanksgiving. He’s made an identification of Mrs. Miller, and Mr. Broden’s questions should stick to the issues in this case.”

  “Mr. Broden,” Judge Rodriguez says, “I think you made your point. Let’s move on.”

  “Thank you,” Broden says. “Mr. Dillon, the prosecutor wants me to ask you about your identification of the woman on the boat, so that’s what I’m going to do next. You say that it’s the same woman as you saw in the picture. The woman we all now know is Barbara Miller. First off, you didn’t know it was Barbara Miller then, correct?”

  “No.”

  “And you’d never seen Barbara Miller before, that’s also correct, isn’t it?”

  “Yes.”

  “So are you absolutely sure that it was Barbara Miller you saw that morning—what, one, two, three, four, five, six, seven months ago? I mean, would you bet your life on it?”

  “Objection,” Robertson says, this time with a world-weary tone, as if to convey to the jurors that this is a complete waste of time. Unfortunately, I suspect the jurors have the sense that Robertson doth protest too much.

  There’s a silence in the courtroom as the lawyers wait for a ruling, but then Broden takes advantage of Judge Rodriguez’s hesitation to drive his point home. “Your Honor, he can just tell us if he’s certain or less than certain. So, I don’
t really know the basis of Ms. Robertson’s objection.”

  Rodriguez looks the way Elizabeth sometimes does when Charlotte has exasperated her. I’m half expecting him to call a time-out and send both of them to their rooms.

  The judge finally lets out a heavy sigh and then turns to Dillon, craning his neck to see the witness beneath the bench. “Sir, how confident are you that the woman you saw is the same woman in the picture? Very confident, or is this a case where you think it was the same woman, but you’re not completely sure?”

  “I don’t know,” Dillon says, and then, as if he’s just caught Robertson’s eye, he clears his throat, and adds, “I think it’s her, which is why I said it was, but I’m not one hundred percent certain. I’m sorry.”

  Broden got what he wanted, and now it’s time to rub salt into Robertson’s wounds. “No need to apologize, Mr. Dillon,” he says loudly. “All I want is your honest recollection,” and then Broden stares at Robertson, accentuating the point that the desire for honesty above all else is not mutual.

  After the Dillon debacle, the prosecution calls a representative from the Canadian internet pharmacy where the sleeping pills were purchased, and then the store manager of the Palm Beach Post-Drop USA branch where the pills were sent. Robertson gets from each what she needs, laying the foundation that the pills in my mother’s system were purchased through the pharmacy and then shipped to the post office box under the name M. Ohlig.

  On cross, Broden gets what he needs too—an admission from the pharmacist that anyone with access to Ohlig’s credit card could have placed the order for the pills, including Ohlig, his wife, or even my mother. The Post-Drop USA representative acknowledges that they don’t verify identity when someone opens a post office box. For the type of box that was opened under the name M. Ohlig, a key is given out at the time of purchase, which means anyone could have opened the box under that name, or any other, no questions asked.

  As her last witness of the day, Robertson calls her expert, a shrink named Westwood. His testimony is brief, most likely because his opinion—that most people who commit suicide leave a note—is suspect, at least according to what I’ve read on the internet. Broden’s cross is twice the length of the direct, but all he can do is sound incredulous at Westwood’s testimony, because the psychiatrist doesn’t yield an inch.