Murder on Birchleaf Drive

by Steven B Epstein

  Becky Holt rose to her feet and asked Judge Stephens to deliver the “Allen charge,” more commonly referred to in legal parlance by its nickname, the “dynamite charge.”

  True to its nickname, the Allen charge is designed to provide a significant jolt to a jury seemingly on the verge of a deadlock. Its use had been sanctioned not only by the North Carolina Supreme Court, but by state and federal courts throughout the country.

  Judge Stephens told the lawyers he would give his own version of the Allen charge. The bailiff then led the jurors back into the courtroom to their seats in the jury box. In his brief instructions, the judge told them it was their duty “to do whatever you can to reach a unanimous verdict.”

  He instructed them to act “together as reasonable men and women in an attempt to reconcile your differences, if you can, without the surrender of conscientious convictions.” But he also told them, “No juror should surrender his or her honest conviction as to the weight or the effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.”

  The judge also informed the jury if it did not reach a verdict, a retrial would likely be necessary, and that it was unlikely a subsequent jury “will be in any better position to resolve these difficult questions. It is equally unlikely that any other future jury would be any better qualified than you are to return a unanimous verdict, if that can be done without violence to individual judgment.” He asked the jury to return to the jury room, considering what he had just said, in an effort to reach a unanimous verdict.

  While jurors continued their deliberations, Pat and her family huddled with Collins and Klinkosum around the defense counsel table while Linda and Meredith huddled with Holt, Saacks, and Sergeant Spivey around the prosecution’s. Their parallel discussions focused on precisely the same question: What would happen if the jury couldn’t reach a unanimous verdict?

  At their table, Collins and Klinkosum explained there could be a second trial, though that was entirely up to the District Attorney. If the DA concluded a second trial wouldn’t increase the likelihood of a conviction, they said, he might offer Jason a plea bargain to significantly reduced charges—or even dismiss the charges altogether. There was every reason for Pat and her family—and Jason—to consider a hung jury a victory. With that understanding, optimism was on the rise around the defense table.

  The mood was decidedly more somber around the prosecution table. Holt and Saacks couldn’t provide any certainty to Linda and Meredith as to what might happen in the event of a hung jury. They would have to let matters play themselves out. Michelle’s mother and sister took little solace in the prospect of a second trial. Their quest for justice for Michelle had gone on long enough already.

  At 1:30 p.m., the jury indicated that it was ready to take a lunch break. Before letting jurors leave, Judge Stephens asked the foreperson whether they had been making any significant progress since he had provided his additional instructions.

  “No, Your Honor, we are not,” the foreperson replied glumly.

  The judge asked if they were still divided six to six. The foreperson confirmed they were. He indicated he didn’t believe further progress could be made.

  But rather than giving up, Judge Stephens asked them to step back into the jury room to determine if there was agreement they were “hopelessly divided,” such that further deliberations wouldn’t lead to a unanimous verdict no matter how long they continued.

  The judge told jurors if they unanimously agreed that they were, in fact, hopelessly at an impasse, he would declare a mistrial and let them go. He asked them to focus on only that question and then report back to him. With that admonition, they retired once again to the jury room.

  Six minutes later, the jury once again assembled in the jury box. Judge Stephens asked the foreperson if he felt there was a consensus on the jury’s inability to reach a verdict. To everyone’s surprise, however, the foreperson reported, “The jury feels that the seriousness of the consequences here, we owe it to the Court, that we have a little bit more work to do.”

  Relieved he wouldn’t yet need to declare a mistrial, Judge Stephens released the jury for a late lunch. Jurors returned at 2:45 p.m. and resumed their deliberations.

  Unfortunately, what little hope there was that a verdict might still be reached was short lived. At 4:00 p.m., Judge Stephens received another note. This one read:

  Your Honor, we have made some progress, however the current 8 (NG)-4 (G) situation that we find ourselves in leads us to believe that we will make no further headway in this matter. We find ourselves deadlocked and at this time the decisions of the parties that feel the defendant [is] guilty or not guilty will not change. We are deadlocked.

  When the jurors came back into the courtroom the final time, their collective frustration was evident on their faces and in their body language. One last time, Judge Stephens asked the foreperson if he was sure the jury couldn’t make any more progress.

  “I believe we’re done, Your Honor,” he replied. The judge asked for a show of hands of all jurors who agreed with that sentiment. All twelve raised their hands.

  “Let the record show,” Judge Stephens stated, “that all twelve jurors indicated to the Court that they agree. Therefore, the Court will order that the case be mistried.” The judge told the jurors that he sincerely appreciated their efforts. “You can’t put a price on the value of this part of what we do in our society being a part of your own democratic way of life,” he added.

  He then excused them and formally declared a mistrial, indicating there would be a status conference on July 20 to discuss whatever next steps might occur. With that, he adjourned court.

  Pat, Kim, and Heather were permitted to give Jason a hug before Sheriff’s deputies led him away, headed again for the jail cell that had been his home since December 2009.

  Linda and Meredith stood up, visibly shaken, Linda clutching an oversized photo of Michelle and Cassidy. She walked to the other side of the courtroom—in Pat’s direction. Through her tears, she asked Pat, “Isn’t she beautiful?” though it wasn’t clear if she was referring to Michelle or Cassidy. Pat smiled awkwardly, not sure how to respond to the first words Linda had spoken to her in years.

  Slowly, the courtroom that for a solid month had been the epicenter of the Young and Fisher families’ world emptied out. Left behind in its wake was an uncertain future—for Jason, his family, and for Linda and Meredith’s quest for justice. It would take some time to sort through what had just taken place. And what might happen next.

  • • • • •

  July 20 couldn’t come soon enough. Jason was led into the courtroom in a fresh, dark suit and took his seat beside Collins and Klinkosum. Sitting next to Holt at the prosecution table was Howard Cummings, Wake County’s first Assistant DA. Though he had no involvement in the trial, it was clear he was back at the helm now.

  Judge Stephens asked Cummings if the State intended to retry the case.

  “Yes, sir,” Cummings responded resolutely. He told the judge the State could be ready for a new trial as early as the middle of October.

  The judge stated if the court reporter was able to complete all transcripts from the first trial in time, the case would proceed to retrial on October 10. Though Judge Stephens likely didn’t realize it at the time, that date would have marked Jason’s and Michelle’s eighth wedding anniversary.

  The status conference then transitioned to the subject of a bond—as Jason had been held in jail pending the first trial without bond. Collins argued forcefully that Jason should have the opportunity to post a bond. He told Judge Stephens his client had a total of one infraction in the nineteen months he had been in jail—for hoarding food. “I think that says something about the way he has comported himself since he’s been in custody. As you know, he has no availability to pay a bond at all. Any bond that he might make would be posted by family.”

  In view of the result of the first trial, the Public Defender
suggested, Jason had “every reason to come back, no reason to flee. If he was going to flee, I argue to you that he would have done that while he was under investigation.”

  He noted that Jason was in Puerto Rico while the case was being investigated, but ultimately was back home where investigators knew he lived.

  Cummings argued against any bond. “Your Honor heard all the evidence,” he stated. “I would just like to point out to you that this is a very brutal murder of a fine person, and that it’s the State’s contention in this case that some of the evidence that was involved has been disposed of, either by the defendant or persons on his behalf.”

  Judge Stephens ruled swiftly, declaring, “Certainly a bond is appropriate, and in my discretion, the Court sets the bond at $900,000 secured. That’s the ruling of the Court. The case is set for trial October the 10th.”

  • • • • •

  The mid-afternoon sun was shining brightly on downtown Raleigh on July 28, 2011, as Jason Young walked out the doors of the Wake County Public Safety Center and took his first steps of freedom. His mother Pat had posted his bond by offering five pieces of property as collateral.

  For the first time in nineteen months, Jason was no longer confined to the tight spaces of the county jail. He left the building wearing the same Nike T-shirt he had worn when he first entered it.

  News crews followed Jason as he and Mike Klinkosum strode side-by-side to Klink’s office a few blocks away. Reporters shouted questions at the newly liberated defendant—not one of which received any response.

  “Jason, are you innocent?”

  “Where will you go, Jason?”

  “Are you going home to Brevard and your family?”

  “How does it feel to be out in fresh air?”

  “Jason, are you glad to be out?”

  “Do you have anything at all to say to your family?”

  The reporters should have known better. In the nearly five years since Michelle’s murder, Jason hadn’t uttered a single word to law enforcement officers or the media. That strategy had worked well enough to win him eight votes in favor of acquittal. With a second trial looming on the horizon, he certainly wasn’t going to abandon that strategy now.

  Court-exhibit photos of public record.

  Pictured with their ring bearer, Mr. Garrison, Michelle and Jason were all smiles on their wedding day, October 10, 2003 (top). In happier times: Puerto Rico (bottom).

  Court-exhibit photos of public record.

  The light of both Jason’s and Michelle’s life: Cassidy Elizabeth Young. The bond between mother and daughter was undeniable.

  Court-exhibit photos of public record.

  Jason at the front desk of the Hampton Inn upon check-in at 10:49 p.m. (top), wearing a different shirt at 11:59 p.m. (bottom left), and walking toward the exit door seconds later (bottom right).

  Court-exhibit photos of public record.

  Michelle was found lying facedown in pools of blood, with her head pressed against Jason’s open closet door (top). Blood spatter nearly reached the ceiling, covering the walls and exterior side of the closet door. DNA collected from the jewelry box, and from a hair found on the picture frame (bottom), didn’t match Jason’s or Michelle’s DNA.

  Court-exhibit photos of public record.

  Jason lived in the North Carolina mountains with Cassidy for more than two years before agreeing to transfer custody to Meredith. The picture taken at Cassidy’s third birthday party (top) featured prominently at both trials.

  Photos courtesy of WRAL News.

  Linda and Meredith’s raw emotions were on full display at the March 2009 wrongful death hearing (top). Even though Jason hadn’t yet been charged with Michelle’s murder, Sergeant Richard Spivey told the presiding judge the evidence pointed directly at him (bottom).

  Photos courtesy of WRAL News.

  Following their December 2009 drive across North Carolina, Sergeant Spivey escorted Jason to his new home at the Wake County Public Safety Center (top), the same place he and Michelle were married. The striped jumpsuit (bottom) was standard issue at the county jail.

  Photos courtesy of WRAL News.

  Meredith and Linda fought for twelve years for justice for Michelle (top row). Pat Young (bottom left) was her son’s biggest supporter, standing by his side through a custody battle and two criminal trials. Jason’s testimony at the first trial (bottom right) was convincing enough to win him eight votes in favor of acquittal.

  Photos courtesy of WRAL News.

  The State’s star witness—a convenience store worker in King, North Carolina, who claimed Jason cursed at her when she refused to turn on the gas pump—appeared to have had a complete makeover between the first and second trials. Testifying at the first (top left), her name was Gracie Dahms. At the second, she was Gracie Calhoun (top right). The defense challenged her relentlessly. Cindy Beaver (bottom), a postal worker who lived on Birchleaf Drive, was the defense team’s answer to Gracie Dahms. She actually witnessed two people in the Youngs’ driveway just before 5:30 a.m. the morning of the murder. The State challenged her relentlessly.

  Photos courtesy of WRAL News.

  Jason was actively involved in an affair with his wife’s sorority sister, Michelle Money (top left). While Michelle was in New York less than two weeks before the murder, he had sex with his old friend, Carol Anne Sowerby (top right), with Cassidy upstairs. In an email investigators discovered on his work-issued laptop, Jason had also professed his eternal love to his former fiancée, Genevieve Cargol (bottom), just seven weeks before the murder.

  Photos courtesy of WRAL News.

  The prosecution team: Becky Holt (top) was the lead prosecutor at the first trial and “second chair” at the second. David Saacks (bottom left) was a last-minute substitute at the first. Howard Cummings (bottom right), who had been in charge of the prosecution from the very beginning, took the lead at the second trial.

  Photos courtesy of WRAL News.

  The defense team: Jason was very fortunate to be represented by two excellent lawyers—Public Defender Bryan Collins (top) and Mike Klinkosum (bottom). He didn’t have to pay a penny for either.

  Photos courtesy of WRAL News.

  Judge Donald Stephens (top) held his tongue throughout both trials. Once the second jury found Jason guilty, the judge’s lengthy speech eloquently expressed his belief that Michelle had succumbed to an all-too-predictable incident of domestic violence. After listening to the judge’s soliloquy, Jason is sentenced to life in prison (bottom).

  Photos courtesy of WRAL News.

  Jason enters the courtroom for the June 2017 hearing on his ineffective assistance of counsel claim (top). His five years in prison had aged him considerably. The star witness at the hearing was none other than Bryan Collins (bottom right), now a superior court judge.

  Part III

  Take Two

  19

  Reset

  The retrial presented numerous difficulties and challenges—to Judge Stephens, the prosecution, and the defense. For the judge, ensuring the selection of a fair and impartial jury was complicated significantly by the extensive media coverage of the first trial.

  Not only was there almost daily newspaper and television coverage, the entire trial was streamed live across the website of Raleigh’s WRAL television station.

  In addition, there was widespread blogging about the trial as well as copious information available on the internet and in social media prospective jurors were likely to have encountered.

  For these reasons, jury selection for the retrial was painstakingly slow, lasting twelve court days—one day longer than the entire first trial. Judge Stephens even found it necessary to disqualify two prospective jurors for misbehavior—one who had been posting information about the proceedings on an internet message board and a second who was overheard discussing the case at a restaurant. Finally, though, on February 1, 2012, a jury of eight women and four men was impaneled.

  The biggest hurdle facing prosecutors, o
f course, was to figure out how to transform a near acquittal into a unanimous guilty verdict.

  The first jury had been so unconvinced of Jason’s guilt, it had nearly set him free. The State was quite fortunate four jurors had held out and hung the jury. With this second bite at the apple, the prosecutors knew they had to do better. Though they couldn’t manufacture new evidence, they definitely needed to develop some new ideas and a more coherent trial strategy. Replacing David Saacks with Howard Cummings provided a fresh perspective to do just that.

  Cummings, who had spent 23 of his 32 years in law practice at the Wake County DA’s Office, served as second in command to District Attorney Colon Willoughby. He had been the lead prosecutor in numerous high-profile cases—including the Brad Cooper murder trial that ended with a guilty verdict shortly before Jason’s first trial began.

  Like Collins, the first Assistant DA spoke with a thick Southern drawl, delivered in a painfully slow—almost hypnotic—cadence. Cummings’ was more of an Eastern North Carolina accent he had developed growing up in Kinston, not far from the coast.

  Thus, at this new trial, the seats behind the prosecution table belonged to lawyers reared near the beach—just like the victim for whom they were fighting. Fittingly, the seats at the counsel table across the room were filled by lawyers and a defendant who grew up in the mountains.

  The second trial provided Cummings and Becky Holt the opportunity to correct the biggest mistake the prosecution team had made in the first trial—when Holt had a mere sixty minutes to prepare for Jason’s cross-examination after being caught completely off guard by him taking the stand in his own defense. In preparation for the retrial, she and Cummings had more than seven months to parse and fact check every word of his testimony. Were he to testify again, they would be more than ready to cross-examine him.