Gossip outside the courtroom—from Christine, from the Internet—is that Durbin is now married to the woman he was with when he and Ashley were hooking up. She’s a dancer, and they have kids now, and this whole thing is terribly uncomfortable for him. She ostensibly forgave him somehow, somewhere, at some point back then, but now with this hearing he’s forced to humiliate himself—and her and his family—all over again, re-embodying the guy he once was: a handyman who was cheating on his partner with the sexy girl next door. If only he were allowed to truly leave all that behind—to get away with it, as it were. Poor, poor, hot handyman. Ashley never got that choice, though, so to me at least a little squirming in his seat seems as though it should be more than tolerable, given what happened to her.
He’s also disturbed by the presence of press, I am told. He’s already aware that he doesn’t come off well, and now he has to deal with potentially having it affect his slash career, dredging up this “association” he had put behind him. He’s weighing the competing impulses of telling the truth versus controlling his image; you can tell by his reticence to answer even the most basic things. Which will win out?
I can’t take my eyes off of him, even as he’s getting testy under questioning. He looks to be about six foot two, he’s tall and broad-shouldered and muscled, and for the first time I get a glimpse into a part of Ashley’s life that really does look appealing. I can clearly imagine the effect this guy must have had on her back in 2001, because he’s having it on me right now.
“A lot of these questions, it’s like the first page of Homer’s Iliad. I mean there is so much,” Durbin says, an oddly contrived response to the question of whether or not the figure he reported seeing in front of Ashley’s house later that night after he left her could have been Ashton Kutcher.
“There are no wine-dark seas in this case,” says Lindner. Eye roll. Defense attorneys, I have noticed, find it hard to resist opportunities for a bit of showboating.
“Let’s move on,” says the judge.
Durbin is in a difficult position, though, and it’s clear that Lindner is setting him up to look suspicious to drum up more reasonable doubt that Gargiulo is definitely the killer. This guy was right there: they were involved, he was cheating. The potential motive—although not the most persuasive one—is right there.
I don’t for a second believe it could be him, though, from the simple manner of Ashley’s death itself, let alone that I just don’t buy it on a gut level. Ashley was stabbed forty-seven times, brutally and with extreme force. Durbin is clearly strong enough to have overpowered Ashley, sure, but the average stabbing murder victim suffers far fewer wounds—look up a typical murder case, and you’re much more likely to find stab wound numbers topping out around fifteen, per my research. In other words—at least following my layperson’s logic—whoever did this had to have been a professional killer, a professional psychopath, and probably both.
I am impressed that Lindner is leading things so well, bringing up disputes Durbin had with past female employers and at least one temporary restraining order filed against him. The very tight timeline of the night’s events is striking, as well: somewhere between around 7 p.m. and sex with Durbin and the time that Ashton Kutcher arrived, around 10 p.m., Ashley was killed.
“Sir, if you were one of the last persons to see Ashley Ellerin alive, were you the first person to see her dead?” shouts Lindner.
“I’m going to object,” says Miller.
“I never saw her dead,” sighs Durbin.
“. . . Overruled.”
Things are getting a little scary as the defense closes in. What are they getting at? Why is Durbin coming apart so quickly? It doesn’t take much work to erode any sympathy this guy might have started with. Maybe he’s just too good-looking? Or maybe it’s just me; I can’t stand cheaters.
I feel a tiny pang for the panic he must be experiencing, but at least in this instance, I’m glad it’s not Ashley’s active sex life Lindner’s harping on as a means to convey that we can’t be sure his client is the killer. The scrutiny is at present focused on just one man and just one sex act.
In a series of cross-examinations and redirects, both Miller and Lindner probe Durbin in excruciating detail to recount the chain of foreplay that resulted in him and Ashley having sex that night. It’s cringeworthy and more than a little bit exciting to hear—a prurient look into Ashley’s private means of seduction, her tools, her gestures, her bag of tricks.
It all started with a faulty ceiling fan or light and then proceeded like a porno fantasy come to life.
“I wasn’t so sure the light thing was really an issue or it was a reason to get me over to visit,” Durbin explains, by way of giving context to the fact that he was in Ashley’s apartment only hours before her murder. She had called him to come fix her ceiling light, and he was hesitant to go over. He guessed she was probably after more than just his handyman capabilities. How typical, and cheap, to call the dead woman the instigator. I knew I’d never seen Ashley initiate any approach to a man—why would she, given all the attention she got?
The two of them had already hooked up a few times, but Durbin was trying to play it straight, as he lived next door in the same building as his longtime girlfriend and he already felt bad about how far he had let it go with Ashley in the past.
Later, Chris would tell me that he and Justin did not approve. “You’re better than just a side ho,” Justin would tease her. And Chris thought Durbin was a bit of a sleazeball. But none of that mattered to Ashley. Just as always, she would do what she wanted, when she wanted.
“We had been intimate prior to that, but never really completely consummated anything,” Durbin says.
Does that mean oral?
A few years later, Chris would tell me that he had always been sketched out by Durbin. Chris said he would just about bet his car that he and Ashley had done it before that night.
Once Durbin fixed the light, he says, they “hung out for probably about an hour.” I’ve imagined time and again what that might have meant. Did it mean kissing? Did they lounge on the couch and talk about politics? What did Ashley do to move things along? I could only imagine I’d have been sitting there nervously. An older guy, attractive, a guy who had all the power—how could this have ever been my show to run? I would have waited, waited, waited for something to happen, never considering for a moment that I could have set things in motion myself.
• • •
Durbin’s testimony, in all its detail, continued. Ashley said she needed to take a shower as she was going out later. She invited Durbin into the bathroom, and they kept talking from opposite sides of the shower curtain as Ashley rinsed off. I thought about that move for a second. It seemed coy and brazen at once. Showering while a guest is over, inviting him into your space so he can stand on the other side of a flimsy piece of plastic while hot water pours down on you and steam rises around your body. Of course he’s picturing you naked behind the curtain, you’ve made it easy for him—you’ve drawn the picture for him almost completely; maybe he can even see your silhouette in shadow. Of course you might not have been surprised if suddenly he appeared naked behind you as you stood facing the shower head, soaping up your hair with Pantene. “Oh, hello,” you’d say as you slowly turned around and brought your lips to his. Everything has fallen into place according to your plan.
But Durbin didn’t move things that way, at least that time, at least so he says. When Ashley was ready to get out, she asked him to step out of the bathroom. Then it was on to the bedroom. What happened next was mercifully glossed over, but here’s how I imagine it: Ashley’s hair is wet, her skin glistens with water, as well. She holds a towel wrapped around herself with one hand; Durbin follows her into her room. There’s a candle already lit, and the room is otherwise dark. She turns, facing him, and slowly drops the towel. She is confident and naive at once, and it is impossible to take your eyes off her.
I think of the way she strolled up and down the hallway
of my one-bedroom apartment more than a decade ago, naked but for a black thong. She seemed barely aware of her nakedness, how she appeared, and how it might be taken by whoever else was in the room, but part of her also seemed to know she looked fantastic. It was a lack of self-consciousness bred from experience: she had a body that she knew paid the bills, that made men make stupid decisions. Walking around naked in front of her childhood friend was harmless, but I wondered if self-doubt ever did creep in.
“When you did have intercourse with Ashley, were either of you loud with your emotions? Either of you scream during this passionate . . . encounter?” asks Deputy District Attorney Miller. Yeesh. Poor Durbin, I think in my head for the first time. How incredibly awkward and invasive to have to recount something like this in public. What could Miller be getting at?
“I wouldn’t say silent, but it was more intimate,” Durbin says. “It wasn’t like anything anybody was going to hear—part of my concern was that the parking lot was right outside the bedroom window.” The parking lot next door being the one his girlfriend would soon be driving into. Classy. “I left hurriedly to some degree and reluctantly to another,” he says. “I recall her telling me that . . . she had fallen for me.”
He sighs. “She said she didn’t want me to have to leave,” he says, and that she didn’t want to go out anymore either. The room is silent. I look at my knees. Here’s the moment when the acknowledgment of loss descends. When voices start to talk more softly, slowly, it’s when the victim becomes human once again, and by human, I mean we remember that she’s dead. We’re backing up against the crime and turning over the contours of what might have gone differently had this person stayed just a little longer, left a little earlier, taken a different turn that day. We see guilt writ large and painful personal reckoning. It’s happened with each witness: for Chris it was the moment when he and Ashley first met Gargiulo on the street; for Justin it was Gargiulo’s hand on his in the car; and for Durbin, it’s knowing that he could have stayed longer that night—she wanted him to stay! What if he had stayed?
It’s also the first time any of the testimony has revealed something of Ashley’s vulnerability. Maybe she did really want this guy: even with her celebrity hookups, her big-ticket escort gigs, and her life-of-the-party sex appeal, she couldn’t always get what she wanted. Here came the limits of her sexual power; it could get her into a man’s arms for a night or two, sure, but it couldn’t necessarily get her into his heart. She had worked herself into a situation that was clearly ill advised: falling for someone who was taken. No matter how hot you were, that kind of mess always ended in tears.
But maybe Durbin really did have feelings for Ashley—girlfriend aside. I had heard from a family friend that for six months after her death, he had called the Ellerins regularly to see if there was any new information.
“I’m the kind of person, as a man, that, yes I care about the security of women that I’m involved with and women in general, whether it was my sister or my mom or my girlfriend,” Durbin says defensively when he’s asked about the circumstances under which he left Ashley’s house after they had just had sex. He called her when he got home but he thinks he probably got her answering machine. He can’t remember. He also said he sent some wistful longing looks toward her house, but mostly after the sex stuff his testimony that day ends with a whimper. The last known person to see Ashley alive has finished his story. If only he had more to say—if only there were more to say. The only person who would be able to say more is her killer.
• • •
Unexpectedly, Durbin’s words are some of the hardest for me to listen to. What is it about this guy and his swagger and his fleeting sexual encounter with Ashley that is somehow sticking with me? Something about the testimony felt particularly unjust. This whole thing is outrageously unjust, obviously, but Durbin seems like a living embodiment of just how unjust. Why did this guy get to be married—to a woman he cheated on!—and have a family and act as though we should feel sorry for him because he has to dredge up the past by (gasp) talking about his transgressions, whereas Ashley is murdered, robbed of what could have been seventy-five more years of life, and she wasn’t even cheating? I have lived long enough to know better than to expect life to be fair, but occasionally a somewhat Draconian idea of crime and punishment flares up in me around the subject of infidelity. None of my previous boyfriends cheated on me—to the best of my knowledge—but I have always reserved a particularly bitter judgment toward people who cheated and “got away with it.” Maybe I am also just fried on courtroom dramas. My mind is flitting about on this and other subjects, but mostly I’m just itching to leave Department 108 for the day. It has been a long one, and I’m looking forward to a glass of wine and maybe a burger. Maybe something with avocado. Or bacon. Yeah, bacon. I’m gathering my things and standing up to leave the room when I see DA Miller coming toward me.
“Do you have a moment?” she asks. I look behind me for a second. Is she really talking to me? Christine and most everyone else have left at this point. The bailiffs and the other lawyers are collecting their binders and straightening the place up. I nod. She motions for me to come up through the gate over to where her table and chairs are.
“How’s everything been so far?” she asks, warmly and with care in her voice, almost like a librarian or grade school teacher.
“Oh, you know. Fine,” I say, instantly realizing that nothing was, but still, that’s what you say. Same old same old. What was I supposed to say? What is she asking of me? Where is this going? Did I do something wrong? This feels like the sort of special attention that I’m not sure I need right now.
“I just want to let you know that tomorrow we’re going to be showing some graphic images of the crime scene,” she begins. “I always try to warn friends and family members beforehand so they can leave the room at that time. This is not how you want to remember your friend. It’s better to keep her in your mind as you knew her.”
What is the Ashley I have in my mind? It’s hard to choose just one image. Is it us as girls? Young and soft-featured in Esprit stirrup pants and scrunchies? Or is it Ashley the last time I saw her—plucked and manicured and tanned in seven-inch Lucite heels? Maybe I do want to see this final Ashley, to bear witness, and to catalogue it with all the rest. Miller’s tone has a directive, officious, almost threatening quality to it, like if I “disobey” there will be consequences.
I understand the simple present tense she has just used to assert her authority and her experience—“I always try to warn friends and family members”—and I know that the force in her voice is only trying to protect me from what she is sure will make things worse for me. I appreciate this, even as I receive the information as if I am watching myself receive the information.
I look down at my blue silk dress, my Marni heels, the same ones I nearly fell off of when Lindner approached me at the elevator. I am wearing one of the new outfits I had bought myself when I first started at New York, still dressing up for my new job and hoping to pass as an adult. Somewhere along the way I realized I had become one. In the courtroom I had seen in a new way what it looks like when a life is cut off at twenty-two. All the messy baby fat of emotional immaturity still stuck on you for eternity, paraded out for everyone to see.
I’m lucky that isn’t me anymore, even though my immaturity back then expressed itself very differently than Ashley’s had. I’ve become a grown woman in all the ways she never got to, among them: I can enjoy attention from men and not define my life around it. I can sit with myself and feel my feelings. I can admit vulnerability and communicate to others when I need help. For that and much more, I feel grateful for the almost ten more years I have on her.
• • •
I know immediately that I won’t agree to do as Miller is telling me to do, or at least I will need some time to think about it. I won’t do as she says just because she is telling me to, just because it’s the recommended behavior for friends and family of the victim. I will need a
much better reason than that.
I wish I hadn’t been given this warning.
“If I remember, I’ll take a short pause and look at you before I get to the graphic photos, and that’s when you should leave the room,” she goes on. “In case I’m too busy to do that, I’m just going to show you a few of the photos now and you’ll know when you should leave. Don’t worry, I’m not going to show you the bad ones.”
The bad ones, eh? Like the ones full of blood and pain and violence like I’ve never encountered in real life? The ones I’ve already pictured in my mind countless times? The ones I am terrified of yet masochistically drawn to, now that I know they exist? Those ones?
Miller opens a black plastic three-ring binder on the table, each loose-leaf page laminated in a plastic sleeve, reminding me of the way that Ashley and I would make our manuals for the Young Inventor’s contests we entered together in elementary school. Miller’s binder looks almost exactly like our old binders. My mind jumps to the weird fact that capital murder trials and grade school projects use the same supplies, and then Miller starts to describe what we’re seeing.
“Here’s the outside of her house,” she’s saying. And there’s Ashley’s yellow house indeed, the one on Pinehurst I had looked at on Google Street View more than a hundred times, only in this image the place is crisscrossed with yellow crime scene tape bisecting the view. My heart is pounding, even more than the other day with Lindner at the elevator. Miller flips the page, and we see a hallway. “This is her hallway,” she says. There’s beige carpeting—the nylon kind with the flat loop weave—narrow walls, and more of that police tape. What’s at the end of the hallway? Is Ashley back there? Can she hear us?
“This is when you should leave the room,” Miller says. “Like I said, I’ll try to remember to pause and make eye contact with you when we get here, but if I don’t, just remember that when you see this picture, you should leave.” I nod, but half of me wants to cry out: Go on! Show me the rest! Take me to her. Now. Please. I can handle it. I must handle it. I’ve never been more prepared for anything in my life than I am for this. This is what I came here for, isn’t it? Without knowing when it will happen, part of me understands that just then I butted right up against the thing that could potentially break this wide open for me in my head: a through line, a final punctuation mark, the Finis in Finis origine pendet.
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