Months went by without any indication this pattern would change. With Cassidy’s fourth birthday approaching in March 2008, Meredith and Linda formulated a plan. They knew where Cassidy attended daycare and decided to take a chance. Without breathing a word to anyone, they drove to Brevard on Cassidy’s birthday and pulled up to the daycare center.
Instead of announcing their presence in the office, they headed directly to Cassidy’s classroom, bearing balloons and birthday gifts, as well as the Christmas gifts that had been returned unopened. They even baked and decorated cupcakes for the whole class.
To their incredibly good fortune, the daycare’s director was absent. Not quite knowing what to do, Cassidy’s teacher allowed Linda and Meredith into the classroom where, for the very first time since Michelle was buried, they were able to spend quality time with Cassidy, without Pat or Jason—or Pat’s friend—hovering over them as if they were convicted child molesters.
They repeated this gambit just before Mother’s Day. Once again, they were able to gain entry into Cassidy’s classroom. To their surprise and delight, that day was “spa day” for all of the moms. They spent the afternoon having Cassidy pamper them, apply makeup, and paint their fingernails. For that moment, at least, it was like old times.
But their joy was short-lived. Soon after that May 2008 drop-in at the daycare center, Jason had a note placed into Cassidy’s file directing that Meredith and Linda were no longer authorized to visit his daughter. Once again, they were being shut out of Cassidy’s life, this time, without any obvious path forward. It was time—indeed, long past time—to fight back.
• • • • •
By 2007, Mike Schilawski was widely recognized as one of Raleigh’s best—and smartest—family-law attorneys. Prior to passing the bar exam in 1982, he served as Editor in Chief of the prestigious Law Review at Campbell Law School, some eleven years after obtaining his bachelor’s degree from the University of North Carolina at Chapel Hill. He also held a master’s degree in education from N.C. State. Schilawski had been practicing family law for about twenty years when Meredith and Linda first came to see him in the spring of 2007.
At that point, they simply wanted to better understand their legal rights as Cassidy’s maternal aunt and grandmother. What they learned confirmed their worst fears. Neither had legal standing to force Jason to allow them to visit with Cassidy. If Jason wanted to exclude them from his daughter’s life altogether, as her biological father, he had every right to do so. No court would intervene even to allow them to have phone contact with Cassidy. Whatever informal arrangements they could work out with Jason would be more than they could ever hope to achieve through legal action.
But there might come a time, Schilawski advised them, when that could change. A blood relative—such as an aunt or grandmother—could obtain standing to challenge a biological parent for custody or visitation if the parent had acted inconsistently with his Constitutionally protected rights as a parent.
Schilawski told them that if Jason had brutally murdered Michelle while his daughter was just a few feet away—as Meredith and Linda knew investigators had all but concluded—that criminal act would support their argument that he had forfeited his Constitutionally protected rights to be Cassidy’s father. If Jason were charged with Michelle’s murder, he said, he could then pursue action on their behalf in family court.
By August 2008, however, investigators still hadn’t wrapped up their investigation. It wasn’t clear how much longer it would be until they charged Jason with Michelle’s murder—or if they ever would. Meredith and Linda had been completely excluded from Cassidy’s life for three months. They hadn’t been able to speak with her by telephone for nearly a year. Their frustration was mounting, as was their hostility toward Pat and Jason.
“We know we don’t have standing to file a lawsuit,” Linda lamented. But she implored Schilawski to do something—anything—to induce Jason to allow them to visit with Cassidy.
Schilawski agreed to write Jason a letter, which would insist he agree on a visitation schedule. The letter was delivered by registered mail to Pat’s address in Brevard in mid-August. Schilawski informed Jason he had been retained by Meredith and Linda “to assist them in securing visitation opportunities and telephone contact with Cassidy.”
He noted that Meredith and Linda had been completely cut off from Cassidy since well before May. His letter invited Jason “to enter into negotiations to voluntarily provide access” to Cassidy. Schilawski warned Jason—in what was essentially an empty threat—that if he were “unwilling to attempt to negotiate a visitation schedule with Meredith and Linda, I would advise them to proceed with other remedies that may be available.”
Though Meredith and Linda had no idea whether Schilawski’s letter would alter the status quo, they were relieved something was finally being done to force the issue and cautiously optimistic it might result in renewed contact with Cassidy.
Two weeks later, Schilawski received a call from Alice Stubbs, Roger Smith, Jr.’s law partner at Tharrington Smith. She indicated she was responding to his letter and would be representing Jason on all matters related to Cassidy. “This is good news,” Schilawski thought. With Stubbs involved, at least there was a possibility of a dialogue.
Alice Stubbs was only thirty when Governor Jim Hunt appointed her to the Wake County District Court bench in 1997, barely five years after she graduated from the University of North Carolina School of Law. She had a stellar resume, having attended the prestigious Phillips Academy prep school in Massachusetts and Davidson College near Charlotte—widely regarded as one of the best private universities in North Carolina—before heading off to law school.
By 2002, Stubbs was one of four Wake County judges hearing family court cases. Four years later, she joined Tharrington Smith and became an integral part of its family-law practice. Though she had only been a family-law practitioner a short while as of 2007, her time on the family-court bench—not to mention her bulldog tenacity and ferocious, take-no-prisoners style—made her a force to be reckoned with.
When Schilawski had sent Jason his letter, he wasn’t certain he would even receive a response. After all, Jason had rebuffed every effort detectives had made to speak with him for nearly two years. It was reasonable to assume Jason would take the same approach to his letter.
But now that Stubbs was involved, Schilawski was more optimistic a favorable outcome might actually be possible. He considered it unlikely she would advise her client to continue insulating Cassidy from all contact with the aunt and grandmother who had been such a central part of her life prior to Michelle’s death. Stubbs knew all too well from her time on the bench that this type of “restrictive gatekeeping” generally backfired on family-court litigants.
In early September, Stubbs invited Schilawski to propose a visitation schedule for his clients. With their lawyer’s assistance, Meredith and Linda crafted a monthly schedule from September 2008 to August 2009, with visits to take place in Brevard, Fuquay-Varina, and even New York. Unsupervised long weekends were proposed for September 2008 and during the Christmas holidays. Their proposal also would have restored telephone contact with Cassidy on a regular basis. Schilawski was hopeful this proposal would begin a dialogue with Stubbs that would lead to a formal, written agreement.
At the same time, as a showing of good faith, Stubbs arranged for an unsupervised weekend visit in Brevard that October—the longest visit Meredith and Linda had with Cassidy in the two years since Michelle’s murder. It was amazingly wonderful. But the weekend flew by and, just like that, they were right back to where they had been since the confrontation in Pat’s living room in 2007. All further discussion over their proposed visitation schedule came to a screeching halt.
Stubbs informed Schilawski the October visit had gone so well, Jason and Pat believed a formal agreement simply wasn’t necessary. She explained Jason was perfectly willing to allow further visits in Brevard. He just wasn’t willing to commit to anything in writin
g or to be boxed into specific dates and locations that far in advance.
Yet with the sting of the “keep-away” game Jason and Pat had been playing for nearly two years still all too fresh in their minds, Meredith and Linda had little appetite—or reason—to return to visitation being dictated by Jason and Pat’s unfettered control. They told Schilawski that Stubbs’s suggestion was unacceptable. At their urging, he insisted to Stubbs that she and Jason make a counter-proposal, so they could keep the discussion going.
Days and weeks passed. Schilawski’s entreaty was met with dead silence. No counter-proposal of any kind was extended. Once again, Meredith and Linda were back to square one.
• • • • •
Paul Michaels had been a successful Raleigh personal injury attorney for nearly thirty years. He worked exclusively on a contingency-fee basis—paid only if he succeeded in recovering money for his clients, typically taking one-third of their recoveries. Meanwhile, his younger brother Jack spent most of his career as an insurance defense lawyer, defending against personal injury claims brought by lawyers like his brother. In 2000, Jack decided to join forces with Paul, forming the law firm Michaels & Michaels, P.A.
In August 2008, Paul received a voicemail from Howard Cummings, Wake County’s first Assistant District Attorney. Though they were casually acquainted from attending the same YMCA, their professional paths didn’t ordinarily cross—Cummings tried cases in criminal courtrooms, not the civil courtrooms with which Michaels was most familiar. He had no idea why the Assistant DA might be calling.
When Michaels returned the call, Cummings explained that he had been working with detectives involved in the Michelle Young murder investigation. He had gotten to know Linda and Meredith Fisher very well, he said. They had become increasingly frustrated with the lack of progress in the investigation and wanted to know if they could do anything to push things along.
In addition, Cummings told Michaels that Linda and Meredith were apoplectic that Jason stood to receive $4 million as the sole beneficiary on Michelle’s life insurance policy when—they all believed—he was the one who killed her. Though the Prudential policy was for only $2 million, it was going to pay double indemnity because her death was caused by “accident,” rather than illness or disease.
Cummings confessed to Michaels that the criminal investigation was at somewhat of a standstill. And that was precisely why he was calling. He knew there were tools available in the civil discovery process he and Sheriff’s investigators couldn’t use. He wanted to know if Michaels and his brother could pursue a wrongful death case against Jason which—through the civil discovery process—might lead to additional evidence.
“You can ask him questions under oath in your case,” the prosecutor explained. “We can’t do that and he absolutely refuses to talk with us. Either he answers your questions under oath about what happened to Michelle, or he’ll forfeit the $4 million.” He promised the personal injury lawyer access to detectives and their files so long as he agreed to share with the DA’s Office whatever additional information the civil case uncovered. Michaels told Cummings he would discuss the matter with his brother Jack and get back with him.
Time was of the essence. The statute of limitations on the wrongful death case was two years—they had less than three months to decide whether to take the case and file suit. Though neither Paul nor Jack Michaels had ever before filed a wrongful death suit based on the victim’s murder, they were certainly aware of other lawyers who had obtained civil judgments against murderers.
Cases of that type were rarely contested and typically resulted in judgments of well over $1 million. But the judgments were almost always worthless, as the defendants found liable for wrongful death—typically in prison by then—ordinarily lacked the resources to pay even the first penny. A wrongful death judgment against Jason Young would be equally worthless, they believed.
Nonetheless, the appeal of a potential civil case against Jason was the possibility they could obtain a judgment declaring him to be Michelle’s killer under the “slayer statute.” Were that to happen, not only would Jason be precluded from recovering the $4 million in insurance proceeds under North Carolina law, those proceeds could then be redirected to Michelle’s lineal descendant—Cassidy.
Michaels got back to Cummings to let him know he and his brother were happy to meet with Linda and Meredith, though they couldn’t yet commit to pursuing a case. When that meeting occurred, however, the Michaels brothers were surprised to learn that Linda and Meredith weren’t as eager to file suit against Jason as the Assistant DA had advertised. Linda, in particular, was concerned doing so might further doom their efforts to reestablish meaningful visitation with Cassidy.
The lawyers had other concerns as well—substantial concerns. For starters, they were civil attorneys, not prosecutors. They had never before proven a murder case, and weren’t sure they could—after all, the Sheriff’s Office had been investigating the case for nearly two years and hadn’t even obtained an indictment, let alone a conviction. And as they researched the slayer statute, they couldn’t find a single instance in which it had been applied before a murder conviction—every prior case they found applied the statute only after a conviction.
Compounding their concern was the risk the insurance company, Prudential, might take the position the policy would be voided altogether if Jason had murdered Michelle. For instance, had Jason secured the policy because he intended to kill Michelle, Prudential could argue the policy was obtained fraudulently and would therefore be void. Thus, there was grave doubt Prudential would pay a single penny without a separate court battle.
Jack Michaels spoke with two of his former insurance defense lawyer colleagues, both of whom predicted Prudential would fight vigorously rather than pay. Even more alarming, the Michaels brothers learned Cummings had actually approached another prominent personal injury attorney before calling them, who declined to take the case due to all these risks.
The attorneys’ reluctance to get involved began to subside only after they were given access to the criminal investigation files. For two long days, they reviewed investigators’ interview notes, the autopsy report, SBI reports, and crime-scene photos.
They were also put in touch with the lead detective, Sergeant Richard Spivey, who helped them connect the dots and put the puzzle pieces in place. The brothers became convinced not only that Jason had in fact killed Michelle, but that there was sufficient evidence available for them to prove he had. Though they still had reservations and concerns, they decided to take the case.
On October 29, 2008—five days before the statute of limitations expired—Paul and Jack Michaels filed a wrongful death complaint with Linda, as the executrix of Michelle’s estate, named as the plaintiff. The lawsuit named Jason Lynn Young as the sole defendant.
The complaint alleged, “In the early morning hours of November 3, 2006, Jason Young brutally murdered Michelle Young at their residence.”
Linda sought “compensation for the horror, pain and suffering of Michelle Young caused by Defendant’s fatal assault” as well as “the present monetary value to Cassidy of her mother’s reasonably expected net income” and “society, companionship, comfort, guidance, kindly offices and advice.”
She also sought punitive damages to punish Jason for killing Michelle. Finally, she asked the court to declare that Jason was Michelle’s “slayer” under the slayer statute and therefore barred from collecting any life insurance proceeds.
The following afternoon, a private process server appeared at Pat Young’s doorstep in Brevard. When she opened the door, she was handed the summons and complaint suing her son for the wrongful death of his wife. Jason had thirty days to respond, or the relief requested in the complaint could be granted.
Linda and Meredith assumed someone from Tharrington Smith would file some kind of a response. Yet there was no response at all. As was permitted by the civil rules when a defendant fails to respond to a complaint, on December 2, Jack Micha
els had the Clerk of Court enter a “default” against Jason.
The following day, he filed a motion for a default judgment under the slayer statute and personally walked a copy over to Tharrington Smith. He asked the receptionist to ensure the motion’s delivery to Roger Smith, Jr. The hearing was set to take place just two days later.
The afternoon of December 5, 2008, would ultimately represent a critical turning point in Linda and Meredith’s quest for justice. At 3:30 p.m., Judge Donald Stephens called the case of Linda Lee Fisher v. Jason Lynn Young on for hearing. Sitting at the plaintiff’s counsel table was Linda Fisher, flanked on either side by Paul and Jack Michaels.
Meredith sat behind them in the first row of the gallery. In stark contrast, the chairs behind the defense counsel table were empty. No Roger Smith, Jr. No Jason. No one at all. Judge Stephens asked whether anyone in the courtroom was there on behalf of Jason Lynn Young. No one responded.
Jack Michaels then asked for permission to approach the bench and handed Judge Stephens three sworn affidavits: one from him, one from his brother Paul, and one from Sergeant Spivey. The lawyers’ affidavits recounted the extensive efforts they had made reviewing the criminal investigation files and asserted their belief that those materials established Jason had killed Michelle.
Sergeant Spivey’s affidavit went even further, stating, “Based on my experience in law enforcement … and my knowledge of the evidence gathered in the investigation of the death of Michelle Young, in my opinion, the allegation in the Complaint that ‘in the early morning hours of November 3, 2006, Jason Young brutally murdered Michelle Young at their residence’ is true.”
Peering over the top of his wire-rimmed reading glasses, Judge Stephens asked, “Do you have a proposed judgment?”
“I do, Your Honor,” Michaels responded as he walked toward the bench to hand the judge the unsigned judgment he had drafted.
Murder on Birchleaf Drive Page 8