by Adam Mitzner
When you put a client on the stand, there’s always the decision about whether to place the more damaging evidence before the jury during the direct, in order to blunt the force of the cross-examination. “Drawing the teeth” it’s called. On television, to heighten suspense, they never do it, and so the viewer is given two starkly different versions of events. During direct examination you’re taken hook-line-and-sinker by the testimony, but then on cross you learn what a lying dirt bag the witness really is. In real life, it makes much more sense to introduce bad testimony during direct examination in order to put the best face on it. This also has the benefit of creating a level of trust with the jury that you’re not holding anything back. In the best-case scenario, the jury ends up being uninterested when the same information is brought up on cross with a more sinister slant because it feels like old news.
“Let’s turn to some of the evidence we’ve heard from other witnesses in this courtroom,” Broden says, preparing to lay this groundwork. “First, let me ask you the question straight out—did you kill Barbara Miller?”
Ohlig breaks eye contact with Broden and looks directly into the jury box. I can actually see his eyes move from one juror to the next.
“No. I did not.” He says this in his most authorative voice, as if he’s daring the jury to disbelieve him.
In Broden’s hands, the evidence against Ohlig seems insignificant. He didn’t order the sleeping pills or open the post office box, and so he has no information about that. He wasn’t on his boat that morning, but at home, in bed, so Dillon must be mistaken when he claimed to have seen Ohlig and my mother at the yacht club that day.
I wonder if the jurors realize that Pamela Ohlig’s failure to testify means she wouldn’t corroborate his story. Maybe she was out before him that morning and seen by others so she couldn’t lie, even if she were so inclined. It’s also possible that she could alibi him, and for whatever reason refuses to do so.
Ohlig admits to the phone call with my mother in my office, but says that I must have received a distorted view having listened to only one side of it, and only the beginning of the call at that. “Barbara wasn’t upset with me at all,” he says earnestly. “She wanted to see me, and so I told her that we could meet that evening.”
“Did Mrs. Miller ever threaten to tell your wife about the affair?”
“Objection,” Robertson says, but it’s a loser. What my mother said fits another hearsay loophole because it’s not being offered for the truth. In other words, the issue isn’t whether my mother was actually going to tell Ohlig’s wife about the affair, but whether she made the threat to Ohlig—thereby giving him a motive for murder.
“Overruled,” Judge Rodriguez says.
“She never said anything of the kind,” Ohlig says definitively.
Getting the answer he wants, Broden quickly pivots to another topic. “Michael, how well do you know Alex Miller?”
The sound of my name brings a flush to my cheeks. I stare intently at Ohlig, and he stares back just as hard.
“I knew a lot about him,” Ohlig says, shifting his focus back to Broden. “Both his parents were understandably very proud of him, and they would share his accomplishments with me. And then, as Mr. Miller testified, I had the privilege of working with him, at which time I was able to see firsthand that all his parents had told me over the years was true.”
“Did you lie to Mr. Miller about the relationship you were having with his mother?”
“I can only answer that as yes and no. And by that I don’t mean to sound clever, but it requires some explanation. Let me start by saying that I’m sorry for anything I’ve done that might have caused Alex even the least amount of pain. He is a very good man. As with my wife, I hope that someday Alex will find it in his heart to forgive me. And I’m very sorry to say that I misled Alex at his mother’s funeral. I wanted to tell him the truth, and I would have, but Pamela was standing right beside me. So I told him that the last time I had seen his mother was a few weeks before.”
“There were other times when your wife wasn’t beside you, weren’t there, Mr. Ohlig? Why didn’t you tell Mr. Miller then about your relationship with his mother?”
“Barbara said—”
Robertson objects, again on hearsay grounds, but the objection is overruled for the same reason it was rejected before—the testimony is relevant for what Ohlig heard, without regard to whether my mother’s statement was true.
“You may answer,” Broden tells his client after the judge has ruled.
“Barbara didn’t want me to tell him, and I respected her wishes.”
Finally, at four-thirty, Judge Rodriguez asks Broden whether he’ll finish the direct by the end of the day, or if he’d like to break early instead. This is a no-brainer for Broden—he wants to finish the direct and then let the jury sleep on it for the evening. In fact, I’ve gotten the feeling that he’s been stalling for the last half hour just to choreograph the timing.
“I’m almost finished, your Honor. If you allow us to go until five, I’m sure I’ll complete the direct by then.”
Given the green light by the judge, Broden turns to the suicide angle. He approaches the subject gingerly, asking Ohlig if he has any understanding of what caused my mother’s death.
“I don’t know for sure, of course,” Ohlig says. “I like to think it was an accident. As hard as it is to believe because we all like to think that such things just can’t happen, it’s possible Barbara went into the water and got tired or developed a leg cramp or just got caught in the undertow. But, although I hope to God that it isn’t the case, Barbara may have taken her own life.”
“Why do you say that?” Broden asks.
“Well, the coroner said that she had sleeping pills in her system. Now I don’t know if that’s true or not, but if it is, that would explain why she took the sleeping pills before going in the ocean. And I know that she was feeling depressed—”
“Objection,” Robertson shouts.
“Grounds, Ms. Robertson?”
“This witness isn’t qualified to opine as to the victim’s mental state. He’s not a therapist.”
She should have let this one go, especially considering the leeway Judge Rodriguez gave her with her witnesses, Sheriff Brunswick in particular, and also me. Judge Rodriguez has little choice but to be consistent.
“Ladies and gentleman of the jury,” the judge says, turning to face them in the box, “Ms. Robertson is correct that Mr. Ohlig is not a health care professional. As a result, when he says that he thought Mrs. Miller was feeling depressed, you must understand that he’s not making a medical diagnosis, but providing an opinion about what he observed. You can consider Mr. Ohlig’s opinion the way you would any testimony about what a witness observes, giving it whatever weight you deem appropriate.”
Broden knows enough to make as much as possible out of every victorious skirmish, so he continues on with the theme.
“On what do you base your opinion that Ms. Miller was depressed?”
“First of all, how could she not be? Her husband had just died, and she told me many times—”
“Objection!” Robertson shouts, this time louder than before. “Mr. Ohlig is going to provide hearsay testimony.”
“Mr. Broden, try it another way,” says Judge Rodriguez.
“Michael, what did you observe Ms. Miller’s demeanor to be in the weeks leading up to her death?”
“She was very upset, crying a lot. She told me she had been praying for forgiveness—”
Robertson objects again, but she’s a beat too late. Through what was hearsay testimony, Ohlig has already painted a picture of my mother as a woman on the edge.
“Mr. Ohlig,” Judge Rodriguez says, “as I instructed Mr. Miller when he testified, please limit your testimony to what you observed, and not what Mrs. Miller said to you.” He then turns to the jury. “Ladies and gentlemen of the jury, please disregard Mr. Ohlig’s statement about what Mrs. Miller said to him, although you may consi
der his perceptions about her mental state.”
After a few concluding questions, Broden passes the witness. He’s done about as well as he could have with Ohlig, and I wonder if I would have done as well putting him on the stand in New York.
But then I remind myself, it’s only halftime.
Just like in direct examination, most lawyers start cross with the easy stuff and attempt to gradually build momentum, with their questions becoming more pointed as the examination progresses. Robertson decides to go with the other school of thought—attack right from the opening bell.
“Mr. Ohlig, let me get this straight. You didn’t kill Mrs. Miller?”
“No. I did not.”
“And you were not on your yacht on Thanksgiving morning?”
“No.”
“And Mr. Dillon is mistaken when he says he saw you there.”
“That’s correct.”
“Because you were home at the time? That’s your story, right, and you’re sticking to it?”
“That’s the truth.”
“Did your wife see you in bed?”
This is a risky move because it invites Pamela Ohlig to reconsider her refusal to testify—assuming that’s what’s going on—but Robertson must feel it’s worth the risk. She turns out to be right.
“My wife saw me asleep, but she’s an early riser and leaves for her regular gym class at 6:30 in the morning. After that, she did some shopping for our holiday dinner, and so I didn’t see her again until maybe one o’clock.”
“In other words, Mr. Ohlig, no one can verify your story that you were in your house during the time that Mrs. Miller was murdered? That’s what you’re saying—or I should say, trying not to say—isn’t it?”
“Objection,” Broden says.
Judge Rodriguez doesn’t need to hear more. “Ms. Robertson, please don’t argue with the witness. Simply ask questions.”
“My apologies,” Robertson says, although a more insincere statement of regret would be hard to fathom. Then she turns back to Ohlig to get an answer to her question.
At first Ohlig doesn’t say anything, but then he flinches. “That’s right,” he says, “no one can verify where I was after my wife left the house that morning until she returned at about one o’clock.”
“And it’s also your testimony that you never ordered the sleeping pills from the Canadian pharmacy that were charged to your credit card?”
“I did not.”
“And you have no idea who did?”
“I assume it was Barbara.”
“Ah, Mrs. Miller. You think she ordered them under your name.”
“Yes. Yes, I do.”
“So, is it also your assumption that it was Mrs. Miller who opened the PO box under your name where the sleeping pills were delivered?”
“It’s the only conclusion that makes sense to me.”
“And why—withdrawn. Is it your view that Mrs. Miller was trying to frame you for murder?”
He sighs, perhaps knowing that this isn’t going to sound good. “It’s one theory.”
“Here’s another theory, Mr. Ohlig—you bought the pills, you opened the PO box, you drugged Mrs. Miller, you murdered her by throwing her off your yacht on Thanksgiving morning, and you did this so she wouldn’t tell your wife about the affair.”
Broden has said objection three times during Robertson’s speech, the last time followed by Judge Rodriguez shouting “sustained,” but Robertson still finishes the sentence.
This time Robertson doesn’t apologize. “Let’s get back to how sorry you are about all this, Mr. Ohlig,” she says with a sneer. “You previously testified that you’re very, very sorry for cheating on your wife.” Ohlig stares at her after this question. “Please answer audibly. I’m sure the jury wants to hear again about how so very, very sorry you are for breaking your marriage vows by having sex with your best friend’s wife.”
For a moment I wonder if Ohlig is going to flash the temper I’d seen from time to time, but he’s too good a witness for that. “I didn’t think you had asked a question, Ms. Robertson,” he says matter-of-factly. “But, yes, I am sorry, and I have apologized to Pamela.”
“And you are also very, very sorry for lying to Mrs. Miller’s son—at Mrs. Miller’s funeral no less—about the last time you saw his mother alive.”
“I am.”
“And you are also very, very sorry for lying to Mr. Miller about the fact that you were having sex with his mother at the time he was your lawyer?”
“Yes,” he says, although this time with more edge to his voice, as if he’s beginning to see that he’s coming off far less sympathetic than he might have imagined.
Robertson makes the rest of her points crisply, like a boxer throwing more jabs than knockout punches.
“Mr. Ohlig, you and your wife have a combined net worth in excess of $50 million, is that correct?”
“It is substantial,” he concedes. “I’ve been very fortunate.”
“And it’s true, isn’t it, sir, that nearly all of that is in your wife’s name?”
“For estate planning reasons, a substantial portion of my wife’s and my assets are in her name, yes, that’s correct. It also is very common among high-net-worth individuals.”
“Common or not, you would have been in a hell of a lot of trouble if your wife divorced you?”
Robertson’s less than precise question allows Ohlig an opportunity to counterpunch. “I would have lost the love of my life, if that’s what you mean.”
Robertson doesn’t react, but instead goes on to her next question. “You don’t deny, do you, Mr. Ohlig, that you didn’t want your wife to find out about your affair with Mrs. Miller?”
Ohlig has no choice but to agree, or else he’d lose all credibility with the jury. “Of course,” he says in a strong voice. “I did not want Pamela to know, that’s true.”
“And it entered your mind that if she found out about the affair, she might seek to divorce you.”
“I didn’t think that would happen, and it hasn’t.”
“That’s not my question, Mr. Ohlig. Before your wife found out about your affair—before Mrs. Miller was murdered—did you think about the prospect of her divorcing you if she found out?”
“Fleetingly, perhaps.”
“I’ll take that as a yes,” Robertson says. She hesitates a beat, perhaps because she’s expecting Broden to object, but he doesn’t. “And if she did divorce you, she’d get nearly every penny of the money, wouldn’t she?”
“I don’t know. That would be an issue for the lawyers to figure out.”
“Oh come now, Mr. Ohlig. You’re not telling this jury that the thought never crossed your mind that if your wife found out about your affair she might divorce you, and that would leave you with nothing. You’re not saying that, are you, sir?”
“I can’t say that I never thought about it.”
She’s done well with this part. I didn’t expect Ohlig to give her what she wanted without a fight, but she got it in the end.
“No more questions, your Honor,” she says, and then, as she walks back to counsel table, she smiles at me.
“Your Honor,” Broden says when Ohlig is excused, “at this time the defense rests.”
“Any rebuttal, Ms. Robertson?” Judge Rodriguez asks.
“We will have one rebuttal witness,” she says.
“Very well,” the judge says. “Given the lateness of the hour, let’s pick this up Monday morning for rebuttal and then closing arguments.” He pauses and then remembers to ask, “Ms. Robertson, who will the people’s rebuttal witness be?”
“Alex Miller.”
The moment Judge Rodriguez leaves the courtroom, I confront Robertson. “I thought I was done testifying.”
“I wasn’t trying to trick you, Alex,” she says in a whisper. “I was hoping I wouldn’t have to put on any rebuttal case at all. But I’m concerned Ohlig may have some people buying the suicide angle, and you’re the only one who can contradict hi
s testimony about your mother’s mental state at the time of her death.”
I wonder if there’s something in my expression that leads to her next question.
“You up for this, Alex?”
“Of course,” I say, trying to assuage her concern.
“Because this is it. You’re going to need to tell the jury that you had no reason to think your mother committed suicide. If there’s any reason you think you can’t do that, tell me now.”
“No reason. No reason at all.”
To my great surprise, Elizabeth is sitting on the bed watching television when I get back to the hotel room. She’s six months pregnant, and even though I saw her a week ago, she seems much larger now. She looks almost as if she won’t be able to get any bigger, but I know from our experience with Charlotte that she’s still got a long way to go.
“What are you doing here?” I ask. “And where’s Charlotte?”
“She’s with my mother. And I’m here because you sounded so sad on the phone last night that I thought you could use some moral support. I figure that closing statements are going to be difficult, and then the witness impact stuff. I just thought I might be able to make it a little easier on you.” She pauses a moment. “I hope that’s okay.”
“It’s more than okay. I can’t tell you how glad I am that you’re here. It was okay for you to fly?”
“Yes, the doctor said it was fine.”
“And how are you feeling?”
“Great. Second trimester, nothing better than that. Although I’ve got to figure out how to get the baby on a schedule so she sleeps when I sleep, rather than using that time to practice her soccer kicks.”
We found out during the first sonogram that our second child would be another daughter. I felt the slight pang of the Miller name not continuing, but only for a moment. The prospect of having another daughter was nothing to be disappointed about.
“I’m really glad you came down, Elizabeth. Thank you. I really missed you.”
She kisses me, fully on the mouth, and I can feel her swollen belly rubbing against mine.
“Do you remember what one of the great benefits of the second trimester is?”