by Adam Mitzner
“I do,” I say, knowing that she means that the sex is great.
“Good,” she purrs, pulling off her shirt.
57
I’m no more relaxed for my return engagement to the witness chair than I was the first time. If anything, I’m a little more nervous, feeling as if the case now rides on my shoulders. The gallery is the most crowded it’s been so far, having more to do with the fact that closing arguments are to follow than any interest in my testimony, but it still adds to the pressure.
Judge Rodriguez reminds the jury, and me, that I continue to be under oath from my prior testimony, so there’s no need for me to be re-sworn. He asks if I understand, and I tell him that I do. With that, the judge tells Robertson to proceed.
“Mr. Miller,” Robertson begins, “you have been called to give what is referred to as rebuttal testimony, which means it’s limited to certain issues that have already been addressed in the trial. In this case, I only have one subject to ask you about—your mother’s mental state at the time of her death.”
“Okay.”
“Mr. Miller, were you in the courtroom on the day that Michael Ohlig testified?”
“I was.”
“Do you recall Mr. Ohlig testifying that he thought it was possible that your mother committed suicide?”
“I do recall him saying that.”
“Do you believe that your mother committed suicide?”
I had given considerable thought to how I would answer this series of questions. Not to the actual responses, which I had little doubt about, but the tone I should convey. Matter of fact? Outraged by the suggestion? Surprised?
I go with matter of fact. “No, I do not.”
“Did your mother leave a suicide note?”
“No, she did not.”
“Did your mother ever—ever—say anything to you to indicate that she was suicidal?”
“No.”
“When was the last time you spoke to your mother?”
“The day before she died.”
“Please tell the jury about that last conversation you had with your mother.”
“Objection!” Broden shouts. “May we approach, your Honor?”
Judge Rodriguez motions for the lawyers to come forward to the bench, and shifts his body away from me so that I won’t hear what’s transpiring. I have little doubt Broden is making a hearsay objection, the same one that Robertson made when Broden had Ohlig on the stand and asked about his conversation with my mother the day before she died—and Robertson will argue that a hearsay exception for state of mind is applicable, the same exception that Broden tried to use.
When the sidebar breaks up, Robertson says, “Mr. Miller, what did you and your mother talk about during that last call you had with her?”
Judge Rodriguez overruled the objection and is going to allow me to testify as to what my mother told me on the phone. Like a running back that sees daylight, I rush as fast as I can through the hole the judge has opened. “My mother said she was very excited about spending Thanksgiving with her friends. She also said that she was looking forward to seeing my daughter, her granddaughter—”
“I apologize, Mr. Miller,” Judge Rodriguez interrupts, apparently realizing his earlier ruling had been in error. “Your testimony should focus on what you said to your mother, rather than what she said to you. Ladies and gentleman of the jury, I realize that may seem to you a strange distinction, but Mr. Miller is an attorney and will recognize that what his mother told him is hearsay, and therefore I cannot allow testimony concerning it.”
“I apologize, your Honor,” I say.
“No need to apologize, Mr. Miller,” he says with a smile. “Just limit your response to what you said to your mother on that call.”
Even with the judge’s belated imposed limitation, I still had enough leeway to pour it on thick. “We discussed my daughter, my mother’s only granddaughter. Her name is Charlotte and at the time she’d just turned five.” I catch the eye of the two older women in the jury—both of whom are grandmothers according to the jury questionnaires they filled out before trial—and they’re smiling. “I told my mother that Charlotte had recently confided in me that she was in love with a boy in her class.”
This earns a modest amount of laughter from the gallery. Much more importantly, the two grandmothers nod with approval. That’s enough encouragement for me to further gild the lily.
“I also discussed with my mother taking a visit to Florida with Charlotte and my wife. We talked about going to Disney World.”
“The last conversation you had with your mother was inviting her to a vacation at Disney World with her granddaughter?” Robertson says, reemphasizing the point even though she must recall that I never mentioned such a conversation during our preparation.
“Yes.”
“Mr. Miller, do you have reason—any reason at all—to believe your mother took her own life?”
“No. To the contrary, I know she would never do that.”
This time I know Broden is going to question me. He’s in the worst position possible for a lawyer—he’s got to shake my testimony without looking as if he’s attacking the victim.
Broden stands, folding his hands across his chest. As with all his cross-examinations, he has no notes. He walks deliberately to the jury rail, and then leans on it with one arm, careful that his back is not to any juror.
“Mr. Miller,” he begins, “you just said that you had no reason to believe that your mother might have taken her own life.” I don’t say anything, following Robertson’s prior instruction to answer only questions. “Do you recall that testimony?”
“I do.”
“The thought never—withdrawn. Mr. Miller, isn’t it the case that the police told you that your mother’s death may have been a suicide?”
“No, the police arrested your client for murdering my mother. I take that to mean they thought she was murdered.”
There are some chuckles in the gallery, but Broden doesn’t seem the slightest bit ruffled. He looks at me hard and says, “The police ultimately decided to charge Mr. Ohlig with this crime, but that was not my question, Mr. Miller. I know it’s difficult, but please try to listen to what I’m asking because it’s very important. Can you do that for me?”
This last part is for him to show he’s not without some power to make me look foolish too. At first I don’t answer, but he repeats the question, which only highlights the point.
“Yes,” I say, trying not to look too chastened.
“Thank you. Now, my question was whether anyone in the Palm Beach Sheriff’s Office ever communicated to you that your mother’s death might be a suicide.”
“No.”
“Never?”
“No. Never.”
I’m trying not to break eye contact with him. Not an easy feat considering Broden looks like he’s going to spit fire at me.
“Mr. Miller, you recognize you are under oath, correct?”
“I do. As you know, Mr. Broden, I’m a lawyer too. So I take the witness oath very seriously.”
Clint Broden asks the judge for a moment and turns away, slowly moving back toward the counsel table. When he gets there, he leans over and whispers in his client’s ear. After a moment, Ohlig breaks contact with him and focuses on me, actually squinting his eyes as if he’s trying to read my mind. There’s not much mystery about what the two of them are discussing, however.
Broden now has three choices. He could call Deputy Sheriff Gattia and ask him if the police ever seriously considered suicide a possibility, but considering that Sheriff Brunswick has denied my mother committed suicide, Broden’s not likely to get Gattia to contradict the boss. Second option is to play the Abby card, but I’m sure he knows that I’ll deny ever having such a discussion with her, and he’s got to be concerned that if he starts down that path, I’ll follow through on the threat I made back in his office to tell the jury that Ohlig confessed to me.
When Broden straightens back up and faces m
e, I know what he’s decided to do by the fact his jaw is clenched. He’s going to select the third option.
Still standing behind his client, Broden says, “Mr. Miller, I have no further questions.”
Judge Rodriguez excuses me from the witness stand, but rather than take my usual seat in the gallery, I leave the courtroom. I’ve had enough testimony for the day.
Elizabeth must have followed me out, because a minute later she’s joined me on the wooden bench in the hallway.
“Quite a performance,” she says.
Elizabeth will leave it at that. Someone else would be more direct, asking me why I lied … about Disney World, about my suspicions that my mother took her own life, or about the sheriff department’s initial suspicions of suicide. I know Elizabeth well enough to know that she’s not going to go there. She’s said all she needs to on the subject, and she’ll wait for me to tell her my reasons when and if I’m ready.
The jury files out a few minutes later, several of them nodding at me as they walk by. Robertson comes out right after that, looking as giddy as a schoolgirl.
“You did it, Alex!” she says. “Broden just rested, and by the way the jurors were nodding during your testimony, I think they’re going to convict. Poor Broden, that son of a bitch didn’t know what to do with you. You both go out and have a nice bottle of wine tonight—” She stops herself short, in recognition of Elizabeth’s condition. “You have the wine, Alex. Elizabeth, you should stick with something healthy.”
We take Robertson up on the suggestion and go to an Italian restaurant on Worth Avenue. It’s the same place that Elizabeth and I once took my parents for their anniversary, maybe two or three years ago.
“Do you think he’s going to be convicted?” she asks me after our entrees have arrived.
“I don’t know. Obviously Morgan thinks so.”
“If he is, will he get the death penalty?”
“Hard to say. Morgan’s going to ask for it, and even though it’s not Texas, they’re pretty liberal with giving it out here too. But it’ll ultimately be the judge’s call.”
“How would you feel about that? About his getting the death penalty?”
“I try not to think about it, actually. I’m glad it’s not going to be my decision.”
She nods at me, without showing any hint of what she’s thinking. But there’s no need for her to say more.
I know she’s thinking that it actually has been my decision.
58
Closing statements are the following morning. They track the openings, laying out the evidence. Robertson makes her case for murder, and Broden argues that the jurors must have some doubts about whether it could have been suicide.
Fictional courtroom portrayals usually show each side taking its turn. However, in real life, the prosecution gets a second bite at the apple during closing arguments, a rebuttal after the defense closes. The theory is that because they carry the burden of proof, they get the final word.
During rebuttal, for the first time all trial, Robertson seems at ease in the courtroom. “There is only one truth,” she tells the jurors. “There’s only one way that Mrs. Miller died. We have given you proof beyond a reasonable doubt that it’s murder. The defense would like you to believe that it’s something else, maybe suicide. But what it all boils down to is who do you believe: Mrs. Miller’s son, Alex, an attorney of impeccable reputation who understands the importance of truthful testimony, or Michael Ohlig, a man who admitted to all of you that he lied numerous times to protect himself? You can only believe one of them. Alex Miller told you that right before her death his mother was making plans to see her granddaughter in Disney World. He swore to you that his mother would never—never—have committed suicide under any circumstances. It is even more inconceivable that she would do so and not leave a note to explain her reasons or just to say good-bye to her only child and only granddaughter. Do you believe him? Or do you believe Michael Ohlig, a man who was cheating on his wife with his best friend’s wife? A man who lied to Mr. Miller not once, not twice, but several times? And why did he lie? Because, he said, he was afraid of his wife finding out about the affair. Well, if Mr. Ohlig would lie to avoid his wife finding out he was engaged in an affair, wouldn’t he surely lie to all of you to stay out of prison?”
The jury is out for a day and a half. Thursday afternoon, they finally file into the courtroom with a verdict in hand. I remember the feeling I had sitting next to Ohlig the last time this happened. I’m just as uncertain about the outcome, again wondering if decisions I made played a determinative role.
Elizabeth squeezes my hand, and this, too, takes me back to when I stood beside Ohlig as he accepted judgment in New York. Then I resisted making any physical contact with him so he’d know he was in it alone. Elizabeth’s gesture conveys the opposite. She’s with me, she’s saying. I caress the top of her hand, and think about how thankful I am that she’s here. More than she knows.
The theatrics are the same as before: The foreperson, this time a young woman, rises and walks the note to the judge. When she returns to her spot, Judge Rodriguez calls for Broden and Ohlig to stand to accept judgment.
“Madame Foreperson,” Judge Rodriguez says, “on the sole count of the indictment, murder in the first degree, how does this jury find?”
In a clear and loud voice, the young woman says: “Guilty.”
Ohlig shows little emotion, as if he had expected this outcome. He shakes Broden’s hand and then reaches over the gallery’s railing to embrace his wife. Pamela is less stoic, tears visibly running down her face.
“Quiet, please,” Judge Rodriguez says in a booming voice over what has by now become a fairly loud rumble from the gallery. “Ladies and gentlemen of the jury, this completes your duty for what we call the guilt and innocence phase of the trial. However, your service is not yet finished. In this state, when the prosecutor has obtained a conviction for capital murder, a sentence of death by lethal injection may be imposed. It is now your obligation to hear and evaluate the evidence as to whether capital punishment is appropriate in this case. Please be advised, however, that you will not render sentence. Your verdict is solely an advisory opinion for me to consider. I will issue the sentence, but I will consider your opinion seriously.”
He pauses, surveying the mosaic of people in the jury box. “All right then,” he says, “I’m going to give everyone the day off tomorrow, so the lawyers can prepare for the sentencing phase and so all of you in the jury can reconnect with your employers or families. But you continue to be under my jurisdiction, and you must return back to this courtroom on Monday at 9:30 A.M. And, of course, while you’re away the same instructions that I’ve given you throughout this trial still apply. No talking to media or each other about the sentence.”
The jurors begin their single-file procession out of the courtroom. When the very last of them has receded from view, Broden calls out, “Your Honor, we request that Mr. Ohlig be permitted to remain free on bail pending sentencing.”
I can tell from the way Judge Rodriguez sighs that he’s not even going to consider the request. “Mr. Ohlig,” he says looking down from the bench, “as I’m sure your able counsel has already discussed with you, the presumption of innocence no longer applies to you. In the eyes of the law, you are now a murderer. As a result, I’m immediately revoking your bail.”
This pronouncement causes the first sound to come from Pamela, a loud gasp, even though this can’t truly be a surprise to her. As Judge Rodriguez said, Broden must have advised Ohlig that he’d be immediately taken into custody if he were found guilty.
During the trial, there have been one, sometimes two, court officers in the room. Now four uniformed guards approach Ohlig at counsel table, one of whom I can see reaching for handcuffs.
It’s yet another moment of déjà vu. Michael Ohlig’s pirouette as he’s being placed into custody. The last time he looked at me with an expression which, at the time, I thought was contrition. This time, as he’s
being led from the courtroom in handcuffs, Ohlig stares at me with nothing but dead coldness in his eyes.
“This has got to be the worst celebratory dinner I’ve ever attended,” I say to Robertson. Elizabeth has joined us at an Irish bar called Mick Michaelson, which is across the street from the courthouse. It’s the kind of place with only burgers on the menu, but over a hundred different beers on tap.
“Sorry, the county of Palm Beach doesn’t spring for lobster and Dom Pérignon every time we put a murderer behind bars.”
I raise my beer mug. “Thank you,” I say. “To a successful prosecution.”
“I prefer to drink to justice being done,” Robertson says.
“To that then,” I say, taking a sip of my beer.
“I meant in the future sense. Like the judge said, we’re not done yet.”
I look at Elizabeth before saying anything. She nods, ever so slightly, telling me it’s okay to respond as we’d discussed I would.
“I know you’re not, Morgan, but I’m afraid I am. We’re heading home tomorrow morning, and I’m not coming back.”
“Alex, I need you for the sentencing phase.”
“I’m sorry,” I say in a flat voice, one that I hope gets across that she won’t be able to change my mind.
“I don’t understand. Family members are usually climbing over one another to give an impact statement. I need you to be at the hearing to speak for your mother. But more than that, I’m sure she’d want you there to see that Ohlig pays for what he did.”
“I’m sorry,” I tell her again. “My mother would understand that I’ve already done enough.”
59
True to my word, I returned to New York with Elizabeth before the penalty hearing began. Robertson called when it ended. “Dueling experts,” she said, making a point to note that Ohlig didn’t return to the stand. That wasn’t surprising. Given that Ohlig wasn’t going to admit to the murder, his testifying would only make the jury think that he lacks remorse. Robertson told me that Judge Rodriguez said he’d pronounce the sentence today at five. She promised to call me as soon as she could.