Murder on Birchleaf Drive

by Steven B Epstein

  At that point, Justice Robin Hudson jumped in, expressing her concern Lorrin Freeman had been permitted to testify at some length about the slayer statute and that Jason had been declared the slayer. She asked the Assistant AG if Judge Stephens had adequately explained to jurors they couldn’t use that determination in assessing his guilt.

  Though O’Brien responded Judge Stephens had, in fact, properly guided the jury how to use this evidence, Justice Hudson didn’t appear convinced. She also seemed very troubled Judge Stephens, who had made the slayer declaration, “was also the very judge who presided over the criminal trial.”

  “So the jury then knew,” she stated with apparent disapproval, “that the judge who was sitting there had already decided that this defendant was the one” who murdered Michelle.

  As O’Brien’s time neared its end, Justice Sam “Jimmy” Ervin—the grandson of the late United States Senator of the same name, and of Watergate fame—offered a helping hand. He suggested the State’s position was that section 1-149 merely prevented the prosecution from using a civil pleading for the sole purpose of proving the matter alleged in the pleading. And further, that so long as a civil pleading is offered into evidence for a different purpose, “you could admit it for anything else.”

  O’Brien agreed, firmly grabbing the lifeline thrown by Justice Ervin. He also highlighted the failure of Jason’s attorneys to object to that evidence on the basis of section 1-149.

  Barbara Blackman began her argument by reminding the court the first jury had hung 8-4 in favor of acquittal. The State, she insisted, had resorted to the introduction of the civil complaints, Jason’s default, the wrongful death judgment, and the slayer declaration in its zeal “to change the outcome at the new trial.”

  “This evidence,” she asserted, “made molehills out of the mountains of problems in the State’s circumstantial evidence case.” But it also led to a “diminution in the defendant’s presumption of innocence,” Blackman argued, “as great as this court has ever reviewed.”

  Justice Hudson asked the Assistant Appellate Defender for her perspective on Judge Stephens’ jury instructions. Blackman insisted the instructions were defective because they failed to inform the jury it couldn’t use the civil pleadings and wrongful death judgment as proof of Jason’s guilt.

  Justice Ervin asked her whether Jason’s defense counsel had even objected to the content of the judge’s instructions. Blackman conceded they hadn’t, but contended it was nevertheless incumbent upon Judge Stephens—even without an objection—to instruct the jury it couldn’t utilize this evidence to determine Jason’s guilt.

  Justice Robert Edmunds then chimed in, noting the Supreme Court—some 75 years earlier—had held a defendant’s failure to object to the introduction of civil pleadings operated as a waiver of the defendant’s right to assert the violation of section 1-149 on appeal.

  “It seems to me in that instance,” he told Blackman, “we did put the burden on the defendant to make the objection.”

  She disagreed, voicing her view, “The lack of an objection here didn’t waive the 1-149 problem,” because evidence of the default judgment was being used for an improper purpose.

  Blackman ended her argument by asserting that one of the “biggest holes” in the State’s case was establishing the time of Michelle’s death. The only evidence admitted related to time of death, she noted, was from a paramedic who examined Michelle the afternoon of November 3, 2006, and concluded she “had been dead for some time.” That left open the possibility she had been killed on November 2, rather than November 3. Yet the wrongful death complaint had to assert she was murdered on November 3, she told the justices, as Jason had an airtight alibi in Virginia on November 2.

  Thus, in filing the wrongful death complaint, Blackman explained, the civil lawyers merely speculated Michelle had been murdered on November 3, which then “became enshrined in the civil judgment.” The prosecution team’s repeated references to November 3 as the date of death, she argued, hadn’t been supported by any evidence beyond the allegations and findings of the civil pleadings and wrongful death judgment. In her view, that proved the State had indeed relied on the civil pleadings and wrongful death judgment to prove that Jason had killed Michelle on November 3.

  Following the oral argument, Lorrin Freeman was interviewed outside the Supreme Court building. Her involvement in the case had grown significantly since her 2012 testimony about the wrongful death pleadings and judgment, upon which the now-completed arguments had focused. In November 2014, she had been elected as Wake County’s new District Attorney.

  “We are hopeful that based on the arguments today,” Freeman told reporters, the Supreme Court justices “will make a determination that is different from that of the Court of Appeals. We will continue to fight for justice for Michelle Young.”

  • • • • •

  August 21, 2015, would serve as yet another critical turning point in what had evolved into Linda’s and Meredith’s marathon for justice. On that date, the Supreme Court released a unanimous 44-page opinion that reversed the Court of Appeals’ decision.

  Writing for the court, Justice Ervin expressed agreement with the basic proposition Dan O’Brien had articulated during his argument: A trial court could admit evidence of civil pleadings in a criminal trial—despite the language of section 1-149—if “relevant for some purpose other than proving the same facts found, admitted, or alleged in the civil proceeding in question.”

  Consequently, section 1-149 didn’t constitute a statutory mandate, as Barbara Blackman had argued, that required Judge Stephens—even without an objection—to exclude the evidence of the wrongful death complaint and judgment and child custody complaint.

  Rather, as Justice Edmunds seemed to be suggesting during the oral argument, Jason’s trial lawyers were required to cite the statute as the specific basis for their objection.

  Because they had failed to do so, the justices ruled, Jason was precluded from asserting this argument—for the first time—on appeal.

  They also held Judge Stephens didn’t abuse his discretion in deciding to admit that evidence—particularly in view of the careful, limiting instruction he provided to the jury, to which Jason’s lawyers had also failed to object.

  The final paragraph of the Supreme Court opinion contained two sentences intended to direct the case forward. In the first, the court ruled that the Court of Appeals “erred by awarding defendant a new trial.”

  In the second, it remanded the case back to the lower courts to permit Jason to argue that his trial lawyers’ failure to cite section 1-149 as the basis for their objection to the admission of the civil pleadings and judgments resulted in him receiving “ineffective assistance of counsel”—legal parlance in the criminal arena essentially equivalent to the concept of malpractice in the civil arena.

  Under the law, however, the hurdle a criminal defendant must clear to establish “ineffective assistance of counsel” is extremely high. Were it otherwise, criminal defendants dissatisfied with their guilty verdicts would pursue this avenue in virtually every case.

  Thus, in contrast to the Court of Appeals—which had awarded Jason a third trial without qualification—the Supreme Court erected an extremely high bar Jason would need to surmount to obtain one. And to surmount that bar, he would need to put his own lawyers—Bryan Collins and Mike Klinkosum—on trial.

  25

  Overtime

  On the morning of June 15, 2017, those involved in the Jason Young case assembled in a Wake County courtroom for a final time, including family members, lawyers, Sheriff Donnie Harrison, and Sergeant Spivey. Though many of the faces were familiar, much had changed over the more than five years since Jason’s last courtroom appearance.

  For starters, the eleven-story, $184 million Wake County Justice Center in which the day’s proceedings were being conducted was barely under construction in March 2012. Bryan Collins was no longer serving as Wake County’s Public Defender, having parlayed his p
ublic exposure in Jason’s case into his election to a Superior Court judgeship in November 2012. He now presided over murder trials from his perch on the bench, rather from a seat adjacent to the accused.

  Collins wasn’t the only lawyer involved in Jason’s case now donning a black robe. In November 2016, Becky Holt won her own election and was Wake County’s newest superior court judge. For his part, the County’s longest-serving judge—Donald Stephens—was nearing the end of his illustrious 33-year tenure on the bench, which, under North Carolina law, would conclude in October 2017, following his 72nd birthday.

  One lawyer notably absent that June morning was Mike Klinkosum. Though only in his mid-forties, Klink had suffered a massive stroke in July 2016 and was no longer a practicing lawyer, the stroke having robbed him of his short-term memory and some of the cognitive ability that had made him such an excellent courtroom lawyer. The day’s proceedings had actually been delayed for nearly a year with the hope Jason’s former counsel might regain enough mental acuity to be able to testify—a hope that, sadly, didn’t come to pass.

  Judge Paul Ridgeway presided over the “evidentiary hearing.” Only 57, Judge Ridgeway was the most senior judge on the County’s superior court bench after Judge Stephens. Upon Judge Stephens’ retirement, he would assume the position of senior resident judge.

  The Jason Young who Deputy Sheriffs ushered into the courtroom that morning couldn’t have looked more different than he had during the two trials. His five and a half years in prison had aged him considerably. He appeared gaunt—almost malnourished—his suit jacket swimming across his shoulders and torso as if he were a child wearing an adult garment. It appeared as if his hair hadn’t been cut a single time since the last trial, as it now hung well below his shoulders. During the lunch recess, he actually tied it into a tight pony tail.

  Bob Trenkle, a criminal defense attorney from neighboring Chatham County, had been appointed to represent Jason at this special proceeding that had been necessitated by the Supreme Court’s decision. He would serve as the fourth lawyer furnished to Jason at taxpayer expense—preceded by Collins, Klinkosum, and Blackman.

  Trenkle’s sole mission was to establish—to Judge Ridgeway’s satisfaction—that Collins and Klinkosum had provided Jason with ineffective assistance during the second trial. And in particular, that their failure to bring section 1-149 to Judge Stephens’ attention as a basis for excluding the wrongful death and custody complaints, default judgment, slayer determination, and $15 million wrongful death judgment had deprived their client of his Constitutional right to be afforded effective counsel.

  As his first witness, Trenkle called Judge Bryan Collins, who rose from his seat in the back row of the gallery and began striding toward the front of the courtroom. As he walked by the defense counsel table, the former Public Defender gently patted Jason on the back—twice—as if to say, “I’m still here for you.” For his part, Collins looked a good bit older than at his last appearance for Jason, his hair considerably grayer and hairline more elevated.

  It became clear early in his testimony that Collins was more than willing to fall on his own sword. If admitting to failures in his representation of Jason would help his former client win a third trial, he was more than happy to oblige.

  Collins testified he learned the prosecution team might seek to introduce evidence from the wrongful death case when it provided the defense team portions of the civil case file in discovery between the first and second trials. His biggest concern about the possible admission of that evidence, he said, “was that Judge Stephens had entered an order declaring Mr. Young to be the slayer.”

  That concern increased significantly at a December 16, 2011, hearing, a little more than a month before the second trial began. At that hearing, when Howard Cummings announced the State intended to offer evidence about the wrongful death proceedings, Judge Stephens responded there was nothing “‘that would preclude an inquiry about that matter,’” Collins testified.

  Trenkle asked what the defense team did after realizing Judge Stephens appeared inclined to allow that evidence to be admitted at the second trial. The witness responded that even though he and Klinkosum agreed it would be Collins’ job to try to keep this evidence from being admitted, he neglected to conduct any legal research in his effort to keep this evidence out—admitting to not reviewing any cases or statutes. Instead, Collins testified, he had merely “thought about it a lot.”

  Trenkle then fast-forwarded to the trial, just before Lorrin Freeman took the witness stand to testify about the wrongful death proceedings. Judge Stephens called the lawyers into his chambers to discuss the matter, Collins testified. He said, “I did the best I could to convince Judge Stephens to exclude this testimony.” The essence of his argument was, “This just isn’t fair.” But he wasn’t able to cite any cases or statutes because he hadn’t performed the necessary legal research.

  During the chambers conference, Jason’s former lawyer testified, Judge Stephens made it clear he was going to allow the evidence in. “He had a limiting instruction already prepared. Wasn’t anything we asked for or had any input into. And my memory is that he told me he was going to let this into evidence and that I could go outside and make my objection, [saying] ‘Let’s move on.’ That’s what we did.”

  Getting to the heart of the matter, Trenkle asked, “You did not object under North Carolina General Statute 1-149?”

  “I did not,” Collins readily conceded. “I didn’t know any other way to keep it out. If you want to call that my failure to do research, then that’s what it was.” Again, if admitting to this failure gave Jason a path to a third trial, he had no qualms about doing so.

  But that wasn’t the only failure Trenkle established during the former Public Defender’s testimony. He asked Collins to confirm no specific objection had been made to Cummings’ question which revealed that Judge Stephens himself had signed the judgment declaring that Jason had unlawfully killed Michelle.

  “That’s correct,” Collins answered.

  “Were you concerned that this jury might take the testimony that Judge Stephens had found Mr. Young to be the slayer as an expression of Judge Stephens’ opinion?” Trenkle inquired.

  “Not overtly,” Collins responded, “but I think it was, I know it was very concerning that that would be a factor that they would consider.”

  “But yet you made no objection to that, other than the general objection?”

  “Not specifically. No, I did not,” Collins acknowledged. He also conceded he had failed to lodge any objection to testimony that Judge Osmond Smith had entered a wrongful death judgment against Jason for $15 million.

  It wasn’t every day Howard Cummings got to cross-examine a sitting superior court judge, but this was no ordinary day. Oddly, during this Kabuki dance that had Collins denigrating his own performance, Cummings’ questioning was designed to make his former adversary appear to be Perry Mason. Or Ben Matlock. He had very little success doing so, however, and eventually passed the witness back to Trenkle for redirect examination.

  Trenkle ended by asking the former Public Defender, “Did either you or Mr. Klinkosum want this evidence to come in?”

  “No,” Collins responded emphatically.

  “Did either one of you think it would be a good idea for this evidence to come in?”

  “No,” Collins answered, putting a fine point on his testimony.

  Trenkle tendered Joe Zeszotarski, a Raleigh criminal defense lawyer, as an expert witness in criminal defense trial representation. Zeszotarski had tried dozens of cases in Wake County since completing a clerkship for a federal judge in 1995. He testified that, upon his review of materials from Jason’s second trial, the two areas that “jumped out” at him were the slayer declaration by Judge Stephens and the wrongful death judgment in the amount of $15 million, both of which he believed “would be very prejudicial for the jury to hear in a criminal case.”

  Zeszotarski explained that the normal course of action for a
defense attorney confronted with the possibility of the prosecution seeking to admit this type of evidence would have been to conduct basic legal research. When he personally conducted computer-assisted legal research to determine if that type of evidence is admissible in a criminal trial, Trenkle’s expert witness testified, it took him less than ten minutes to locate relevant case law and section 1-149 of the General Statutes.

  In his opinion, Zeszotarski told Judge Ridgeway, it would have been the “prevailing norm of practice” for Collins and Klinkosum to have conducted that type of legal research and to have then filed a pre-trial motion—called a “motion in limine”—to try to exclude or limit this evidence at Jason’s second trial. And further, to have objected when Cummings alerted the jury that Judge Stephens was the judge who made the slayer declaration, and to introduction of evidence about the $15 million wrongful death judgment and custody complaint.

  Because Trenkle had the burden of proof to demonstrate Jason had received ineffective assistance of counsel, he was permitted to make the last argument.

  Arguing first, Cummings focused nearly exclusively on establishing that whatever failures had occurred in Jason’s representation, they didn’t matter because the other, admissible evidence against him was so overwhelming. He reprised much of his and Becky Holt’s closing arguments from the second trial for Judge Ridgeway—a newcomer to the case—arguing that “there was overwhelming evidence of this defendant’s guilt beyond” the civil pleadings.

  Trenkle began his argument by focusing on the deficiencies in Jason’s legal representation. “Bryan Collins and Mike Klinkosum are both excellent lawyers and worked very hard in this case,” he acknowledged, “but their failure to do legal research, failure to file motions in limine, and failure to object properly both to the wrongful death and the slayer declaration and the custody complaint … was deficient.”