by Adam Mitzner
“How do you think we’re doing so far?” Robertson asks as we’re leaving court at the end of the day. She often uses phrases like “we” to describe the prosecution’s case, her effort to give me some ownership of the mission, I suppose.
“You’re getting the evidence you want in, and the jury appears to be engaged,” I tell her, a little unenthusiastically. “The shrink was pretty good, and you did as well as possible with the pharmacy guy. I’m sure the jury believes that the pills my mother took were the same ones purchased with Ohlig’s credit card. But I don’t know if that’s enough to conclude he was the one who bought them, or that he gave them to her. And neither the sheriff nor Dillon helped the cause much.”
“Take it as a cautionary tale for you, Alex,” she says.
“How so?”
“Your testimony is going to make or break our case, and I don’t want Broden making you look like a monkey too.”
“I’ll be okay,” I say.
“And just so there’s no misunderstanding between us, I’m not asking you to lie. I don’t know what happened with Dillon, but I didn’t pressure him to make the identification, and the last thing I want is for you to think that I’m pressuring you. Understand?”
“Understood.”
“Are you sure? Because I get a weird vibe from you sometimes.” She stares at me, as if she’s trying to read my thoughts. “So far I’ve spared you the perjury lecture because I can only assume you know it by heart. But, believe me, victim’s son or not, if you lie up there I will prosecute you for perjury. Understood?”
“Yeah, sure. I understand.”
55
My “I do” upon taking the witness oath sounds like a squeak. I’m not too surprised that I’m nervous. Part of my apprehension is because I’ve never testified before, but that’s only part of it.
Robertson begins my examination the textbook way—asking questions about my educational background and work history. I tell the jury I’m unemployed, but quickly mention that I’d been practicing law for the past twelve years, in the hope that causes the jury to assume I’ve voluntarily taken time off. I know I shouldn’t care what they think, but I still do. So much so that I’ve asked Robertson not to inquire about the reasons I left Cromwell Altman. I’m assuming Broden will be smart enough not to do so. After all, there’s nothing in it for him to piss me off, especially concerning an issue that doesn’t help his case.
After Robertson has finished going through my resume, she makes the transition to the facts at issue. “Mr. Miller, please tell the jury how you came to know Mr. Ohlig.”
“I had heard his name throughout my childhood due to his role in my parents’ first meeting, but then I came to represent him—”
“Objection,” Broden interrupts. “Your Honor, may we approach?”
Robertson told me several times during prep that she’d be the lawyer and my job was only to be a witness. As a sign of how well I’ve listened, I’m not sure what was objectionable about Robertson’s question.
After Robertson and Broden join Judge Rodriguez at the bench, the judge puts his hand over his microphone and leans away from me. This means that, just like the jury, I can’t hear what’s being said.
I can see Broden go first, and then Judge Rodriguez nods at Robertson, apparently to permit her a brief rebuttal. After she’s done, I can see Judge Rodriguez rule, but I can’t make out who won. Then, in his normal voice, the judge says, “Step back,” followed by a flick of his fingers.
When we resume, Robertson begins a different line of questions—“Please explain, Mr. Miller, when you first met Mr. Ohlig”—which means that Judge Rodriguez sustained Broden’s objection. It finally occurs to me that Broden must be trying to keep the jury from learning the facts surrounding my representation of Ohlig—or, more specifically, that he was the defendant in a criminal matter.
“Um, it was at my father’s funeral,” I say. “Mr. Ohlig”—Robertson instructed me to address Ohlig formally to convey to the jury that I have no affection for the man—“spoke to me after the service.”
Then, without prompting, I decide to help Robertson out a little and send a message to Broden that he should be wary. “Mr. Ohlig asked me to represent him in connection with a criminal investigation—”
“Objection!” Broden shouts.
“Yes. Yes. Well, I think the cat’s out of the bag now,” Judge Rodriguez says, barely stifling a smile. “Ladies and gentlemen of the jury,” the judge says, now looking toward the jury box, “the circumstances of how it came to be that Mr. Miller met Mr. Ohlig are not relevant here. The only crime for which you should concern yourselves is the crime for which Mr. Ohlig now stands accused. You may continue, counselor.”
“Mr. Miller,” Robertson says, “what was the nature of your mother’s relationship with Mr. Ohlig?”
“They were engaged in a sexual affair.” I say this matter-of-factly, realizing only after I say it that Robertson had wanted me to testify with as much emotion as I could muster.
“When did you first come to learn that your mother was having an affair with Mr. Ohlig?”
“When did I first learn about it, or when did it begin?”
“First tell us when you learned about it.”
“It was when I was representing Mr. Ohlig. The government had produced wiretap recordings.” I see Broden shift uncomfortably at my continued references to Ohlig’s criminal prosecution, and I enjoy making him squirm. “On one of those tapes, my mother and Mr. Ohlig were discussing that they had recently had sex.”
“What was said on that tape that led you to believe—”
“Objection!” Broden calls.
When we practiced this line of questioning during prep, I told Robertson that Broden would object. He was right on cue.
“Ms. Robertson already played the tape for the jury during Sheriff Brunswick’s testimony,” Broden explains. “There’s no reason to question this witness about it because we all know what was said.”
Judge Rodriguez nods. “I agree, Ms. Robertson. Let’s move on.”
“Did you confront Mr. Ohlig about the sexual relationship he was having with your mother?” she asks next.
“I did.”
“Explain to the jury as best as you can recall, what you said to Mr. Ohlig and what he said to you in that confrontation.”
“Your Honor,” Broden says, now standing, “although the court has already ruled on this issue, please note the defense’s continuing objection on privilege grounds.”
“So noted, Mr. Broden,” Judge Rodriguez says dismissively. “The prosecution may continue.”
Robertson told me that the privilege issue has already been decided by Judge Rodriguez as part of the defense’s in limine motion—the request before trial for the exclusion of certain evidence. Robertson wanted me to testify about the discussions I had with Ohlig about my mother, but Broden claimed any utterance between Ohlig and me was privileged. Judge Rodriguez sided with the prosecution, reasoning that my conversations with Ohlig about his relationship with my mother were not in furtherance of his seeking legal advice.
“Mr. Miller, do you need to hear the question again?” Robertson asks. “It concerns your conversation with Mr. Ohlig about his sexual relationship with your mother.”
“No. I remember the question. Mr. Ohlig admitted to me that he had been involved in a sexual affair with my mother. This was after my mother had died, so I couldn’t ask her about it.”
“Let me focus you now on the day before Thanksgiving, the day before your mother’s death. On that day, did you hear Mr. Ohlig speaking to your mother on the phone?”
“I did. The day before my mother died, I was meeting with Mr. Ohlig in my office when he received a phone call. After my mother died, I looked at her phone records and they showed that this call was from her.”
“Please describe this call for the jury.”
I’m able to say, “They were arguing,” before Broden objects.
Judge Rodriguez doe
sn’t need to hear the substance of the objection. “Mr. Miller, please confine your answer to what you heard and, if asked, to what you observed concerning Mr. Ohlig’s demeanor. In other words, don’t characterize it. Think of yourself as more of a video camera simply capturing what was observed, and less of a narrator.”
I smile at him. The video camera analogy is one that I’ve actually used when preparing witnesses. “I apologize, your Honor.”
The judge then throws me a bone. “No need to apologize, Mr. Miller. We all know how difficult this is for you.”
“Mr. Miller, let me ask you again,” Robertson says, “what did you hear and observe during that phone call?”
“Mr. Ohlig appeared to me to be very agitated. He asked that I leave the room so he could have some privacy, but before I left, I heard him say that my mother should calm down. He said that several times.”
“You say that it wasn’t until after your mother’s death that you learned this call was from your mother?”
“That’s correct.”
“Who did Mr. Ohlig tell you he was speaking with at the time?”
“He said it was his wife on the phone.”
“So he lied to you?”
“Yes. He lied.”
Robertson looks more than pleased with the way this is going. “Mr. Miller, did Mr. Ohlig lie to you at any other times about your mother?”
“He did.”
“Please tell us about those lies.”
“At my mother’s funeral, I asked Mr. Ohlig when he had last seen my mother. He said that it had been several weeks. But I now know he was the last person to see her alive.”
“Objection,” Broden says, rising. “Mr. Miller’s response assumes facts not in evidence.”
Broden’s right, and he’s entitled to an instruction on this point, but Judge Rodriguez looks as if he’s thinking this one over.
“Ladies and gentlemen of the jury,” Judge Rodriguez finally says, “so far there has been no evidence that proves Mr. Ohlig was the last person to see Ms. Miller alive. Based on the evidence, you could conclude that he saw her late in the evening on the night before she died, and you are certainly within your rights to believe Mr. Dillon’s testimony that it was Mr. Ohlig and Mrs. Miller who were out on a boat early Thanksgiving morning, in the vicinity where Mrs. Miller drowned. But no evidence shows conclusively that someone else did not see Mrs. Miller after that. Of course, the defense has not had their turn yet, so perhaps they will put on evidence which shows that someone else did see Mrs. Miller after Mr. Ohlig.”
Broden has the look that I’ve seen before from criminal defense lawyers all too often. It’s rare enough for a judge to side with you on something, and then when he does, it turns out to be worse than if he had overruled.
“Your witness,” Robertson says, and gives me a wink.
It’s a little bit of a point of honor to be cross-examined by Clint Broden, like batting against Mariano Rivera. Something to tell your grandchildren about. Broden has cross-examined everyone from a former vice president of the United States to the head of one of New York’s five mafia families.
It is a tremendous surprise, and a little disappointing then, when Broden tells Judge Rodriguez, “The defense has no questions for this witness.” After which, he turns to me and says, “Mr. Miller, on behalf of my client, please accept our heartfelt condolences for your loss.”
And with that my testimony is over.
That evening, when I call home, Charlotte says she doesn’t want to talk to me. “I’m busy, Daddy,” she says, “here’s Mommy.”
“Sorry,” Elizabeth says when she takes back the phone. “Don’t take it personally, she’s been in a bit of a mood all day.”
“Anything wrong?”
“Not that I can tell. She probably just misses you. I know she’s liked having you around so much over the past few months. She asked me if you’re back at work, and I told her that you just needed to go on a trip. She said she hopes you don’t go back to work.”
“She won’t say that when we’re living in a box in Central Park.”
“That’s probably true, but you should be happy that your daughter enjoys you being home so much. Better than the alternative, right?”
“You mean like her not wanting to talk to me on the phone?”
“I think that’s just her way of telling you she wants you to come home. So, tell me. How did it go today? You testified, right?”
“Yeah. It’s finished,” I said.
“Was it how you thought it would be?”
“More or less.” And then I realize that’s not true. “Actually, much less. Broden didn’t do any cross-examination.”
“Why not?”
“He must have figured it wasn’t going to earn him any points with the jury to call me a liar, and he decided just to get me off the stand as quickly as possible.”
“So, what did you say?”
“What I told you I would. I talked about how Michael had lied to me at the funeral about the last time he saw my mother, and I talked about how they were arguing that day in my office, you know, the day before she died.”
“They didn’t get into the whole suicide thing?”
“No. Morgan had prepared me for that being the focus of cross, but for whatever reason, Broden decided not to go there.”
“That’s good, right?”
“I don’t know. I’ve lost the ability to gauge what’s good and what’s not good about this. It meant that I got off the stand quicker, so it was good in that sense.”
“What comes next?”
“I don’t think Broden’s case is going to last more than a day or two. He’ll call the shrink tomorrow. That probably won’t go too long, and my guess is Michael will testify after that.”
“You don’t sound good, Alex. Are you sure you’re doing okay?”
“I didn’t think it would be so hard. And, unfortunately, I suspect tomorrow is going to be the worst day of all.” I pause for a second, and then amend the statement. “Actually, closing arguments will likely be worse. At least tomorrow I’ll be able to see Robertson stick it to Michael a little bit.”
56
As I’d predicted, the next morning, after welcoming the jurors back, Broden calls as his first witness his expert, a psychiatrist with a four-syllable Italian name, Favinelli or Fanarelli or something like that. He’s on the stand for less than twenty minutes, during which he says the same thing in a half-dozen different ways—people sometimes commit suicide and don’t leave notes. Robertson’s cross is limited to getting the concession that sometimes people who commit suicide do leave notes.
After the shrink steps down, Broden says, “Your Honor, the final defense witness is Michael Ohlig.” Broden proclaims this proudly, facing the jury, as if the defense’s decision not to call other witnesses was somehow further proof of Ohlig’s innocence.
Ohlig purposely strides to the witness chair. It reminds me of that very first time I saw him—the way his body communicated his complete and utter commitment to the task at hand. His “I do” upon taking the oath is far more assertive than my own had been. In fact, everything about him exudes confidence that he will be able to explain his innocence. As he told me and Abby more than once, he can be quite persuasive when he has to be.
And now he has to be.
Broden spends the better part of the morning detailing Ohlig’s rags-to-riches story. The way Ohlig tells it, he’s still a Master of the Universe, his narrative ending prior to the time that OPM started selling Salminol and the SEC shut the place down. I can only assume that Judge Rodriguez previously ruled OPM’s collapse was off limits, thereby giving Ohlig free rein to put the lie of his continued success before the jury without fear of contradiction.
It’s as much of an education to watch Broden do a direct as it was to study his cross-examinations. The method at Cromwell Altman on direct examination is cool precision, a minimalist style of interrogation, where the lawyer’s goal is to be unobtrusive so as to a
llow the client to appear to be telling his story without a filter. On more than one occasion, I recall Aaron Littman saying, If a juror knows what color tie I’m wearing, I haven’t done my job. Broden, however, is ever present as Ohlig testifies—he’s the lion tamer to Ohlig’s lion, the two working in tandem to paint a picture of events.
After lunch, Broden focuses on the day years ago in Central Park when Ohlig and my father met my mother. Michael Ohlig claims he fell in love with my mother that day in the park and yielded out of friendship to my father’s claim of prior right.
“It must have been difficult for you, Michael,” Broden says, sounding more like a therapist than a lawyer, “to wonder what your life would have been had you not stepped aside for your friend.”
“I wondered about that for a long time,” Ohlig says, sounding almost wistful. I can only imagine the extent of coaching required to make Ohlig seem introspective. “But that stopped the moment I met my wife. It may sound hokey to some, but I knew then and there that my destiny was to be with Pamela.”
“But you were unfaithful to your wife,” Broden says, now sounding like a parent scolding a child caught smoking cigarettes.
“It’s the greatest failing of my life.” If I didn’t know him better I would have thought Ohlig was going to cry. “I have absolutely no excuse. It was a mistake, and one for which I’m so very sorry. I have apologized repeatedly to Pamela. Luckily for me, I married a woman who is very understanding, and whom I certainly do not deserve. Pamela says she forgives me, but I feel like I need to prove myself to her every day.”
I look over to the jury, wondering if they’re buying what Ohlig’s shoveling on them. I want them to be looking on with disgust, but, amazingly, they seem particularly engrossed by this fairy tale.