The Best Friend

by Adam Mitzner

  “I have no idea when she actually got into the tub. Therefore, no one could testify that the bruising and scratching must have occurred while she was in the tub or before she got into the tub. What I can tell you, what I am certain about, is that the bruising was a result of severe pressure placed on her torso by another person, and that the skin under her fingernails was the result of Ms. McDermott scratching someone, and her husband has scratch marks on his forearms that are consistent with such scratching.”

  “You testified on direct that you were certain that the bruising was the result of her being drowned. Now you’re saying that you are not sure if the bruising even occurred while she was in the tub. Which one is it, Doctor?”

  Sherman objected. “He’s arguing with the witness, Your Honor.”

  This time Judge Asbill had his say. “Mr. Broden, it does sound that way to me.”

  I’d done as well as I could. I had the prosecution’s forensic witness saying that he hadn’t seriously considered any other alternative to Carolyn being drowned, and he could not rule out that the bruising and scratches, which he claimed on direct had occurred during a death struggle, had not, in fact, occurred well before the time of death. That should be enough for reasonable doubt all by itself.

  But only if the jury believed any of it.

  15.

  After court, I told Nicky to go home. Given the number of witnesses still on the prosecution’s list, I didn’t think it was possible that we’d get to the defense case the next day.

  I went back to the office, ordered dinner, and prepared for the next day’s battle. But an hour later, I realized there wasn’t much for me to do. I had already prepared my expected cross of Carolyn’s sister and the managing partner of Carolyn’s law firm. The other three witnesses on the prosecution’s list were names I didn’t recognize. The police hadn’t interviewed these witnesses, or if they had, they hadn’t taken notes, so I wouldn’t find out who they were or what they had to say until they said it on the stand.

  I was home by eight—the first time I’d been back before midnight in weeks.

  Anne and I lived in a one-bedroom apartment on the second floor of a town house on the Upper West Side. The place was full of “old-world charm,” as the classified ad had put it, which meant that, in addition to ten-foot ceilings, an exposed brick wall, and a nonworking fireplace, the kitchen and bath hadn’t been updated in years. On the plus side, it was quiet, and the southern exposure allowed us to keep the lights off during the day, or so Anne told me, as I was rarely home during the day.

  Much to my surprise, Anne was not only awake but in her pajamas when I arrived home. Tuesday night was a standard open mic night at Lava, a club downtown where Anne had developed a friendship with the booker, which guaranteed her a slot.

  “Taking the night off?” I asked.

  “Yeah. Maybe more than just tonight.”

  “Did something happen?”

  She smiled. “More like the opposite. Nothing’s happening. I just—I don’t know . . . maybe a break will do me good.”

  “Why? I thought you loved singing.”

  “Yeah, the singing I love. The rejection, the being out every night, not so much.”

  I had been waiting for this type of epiphany from Anne, but now that it was at hand, I felt nothing but loss. I’d only ever wanted her to give up singing because she thought she’d be happier if we had a family, and because she had made it clear that she didn’t think she could do both. The last thing I wanted, however, was for her to give up her dream because she didn’t think she could make it as a singer.

  “Well, please don’t do it for me. I want you to be happy, and if that means chasing your dream for forever, I won’t say another word about it.”

  “Thanks for saying that. Let me think about it a little more. I don’t have to decide right now about the rest of my life.”

  She smiled again, which reminded me of just how long it had been since I’d seen it before tonight. Of course, with Carolyn’s death, Nicky’s arrest, and now the trial, there hadn’t been many moments of happiness to celebrate.

  “How’d today go?” she asked.

  “Good. Better than I expected, actually. The state’s ME testified, which I’d worried might be a nail in Nicky’s coffin. But I think I did a good job of getting the jury to consider the evidence doesn’t preclude the possibility that Carolyn died accidentally.”

  “You think they’re buying the oral-sex-caused-the-bruising angle?”

  When I first told Anne how I planned to explain away the bruising and scratch marks, she was unconvinced. “I guess it makes some sense, but . . . I’ve never been bruised during sex,” was her response.

  I’d pointed out that there are really only two defenses to a murder charge: it wasn’t murder at all, or if it was murder, someone other than the defendant committed it. I’d hitched Nicky’s freedom to the first, but I continually second-guessed that call. Nicky’s house was in a sketchy neighborhood, at least for Westchester, only a few blocks from the train station. I knew that he never locked his doors. The master bedroom was on the main floor, which made it entirely possible that someone could have entered the house, found Carolyn in the tub, and forced her under while Nicky slept unaware down the hall.

  “I haven’t laid it out in all of its glory yet. Do you think the random-intruder theory works better?” I asked.

  “Oh, no. I’m just saying that the bruising during oral sex was a bit hard for me to swallow, no pun intended.”

  Neither of us had the heart to laugh.

  “Right. Well, the problem I always had with the intruder angle was that there’s no motive. It wasn’t a robbery because nothing was taken. Besides, the fact that the murderer killed Carolyn and left Nicky asleep would suggest that Carolyn had been targeted. But who would have wanted her dead? I went through her caseload, thinking that maybe she had done some criminal case, pissed off a client or something, but there was nothing like that. And Nicky swore up and down that she had no enemies.”

  “You definitely made the right decision. I’m not second-guessing you.”

  “I know, but I’m second-guessing myself. I didn’t believe that Nicky was having an affair because he said he wasn’t. Maybe that was a mistake. Just like an affair gives him motive, it gives the mistress motive too. Maybe that was the better defense—to have him concede the affair and cast the mistress as the murderer. Someone involved with Nicky would have known that Carolyn took a bath nearly every night. That lines up with why Carolyn was killed and Nicky was left alone. It has the added benefit of taking the sting out of whatever infidelity evidence the prosecution offered. I could have argued that the prosecution had almost all of it right—the bruising was when she was drowned, the affair being the motive, and Carolyn’s pregnancy or the insurance—or both—was the reason that a divorce was no solution. Then I could have argued that the only mistake the police made was that they arrested the wrong lover.”

  “But that’s not right,” she said. “For one thing, that strategy presumes that Nick was actually having an affair, and he swears he wasn’t. Also, he couldn’t just say, My lover killed Carolyn. He’d have to identify an actual person. And God only knows what his lover would wind up saying . . . For all you know, she has a husband or someone else to alibi her, and then where would you be? Besides, even if such a person did exist, and even if she had no alibi, Nicky blaming her for Carolyn’s murder wouldn’t help his defense. The women on the jury wouldn’t waste a second before convicting a man who was cheating on his pregnant wife a month after the wedding, then blamed his lover to save himself.”

  That pretty much covered all the reasons why I had gone with the rough-sex explanation for the bruising and scratches. Every potential defense has pitfalls, and you need to pick the one least likely to sink your case.

  16.

  The following morning, Sherman led off the day by calling Carolyn’s sister, Allison, to the stand. As soon as I heard her name, I jumped to my feet.

/>   “Your Honor, may we approach?”

  Judge Asbill didn’t seem to understand what the fuss was about. For his part, Sherman wore a confused expression too, but I assumed that was for show.

  When Sherman and I reached the bench, Judge Asbill leaned over. “So what’s the problem with this witness, Mr. Broden?”

  “I’d like a proffer on her testimony,” I said.

  “That’s rather broad, don’t you think?” Sherman snapped.

  “I’ll be more specific. I would like a commitment from the Assistant District Attorney that he will not elicit hearsay testimony regarding anything Ms. McDermott said to this witness on any subject.”

  From Sherman’s change of expression, I could tell that was exactly what he was planning.

  “Is that what’s going on here, Mr. Sherman?” Judge Asbill asked.

  “Judge, the victim told her sister the defendant was cheating on her. That evidence is highly relevant to our theory of motive.”

  “That’s hearsay 101,” I said.

  “It fits the mental-state exception,” Sherman said.

  “How so?” Judge Asbill asked.

  “If Ms. McDermott believed that her husband was unfaithful, that would explain what triggered their fight on the night she died.”

  To my surprise and horror, Judge Asbill looked like he might be buying this explanation.

  “The prosecution is attempting to manufacture relevance,” I protested. “The entire argument is bootstrapping. If there was a fight, it somehow makes Ms. McDermott’s mental state relevant, but there is no evidence that there was such a fight between the defendant and his wife. I also cannot imagine a more biased witness than Ms. McDermott’s sister. Is there any question she’d lie to help convict the man the police said murdered her sister?” It wasn’t my most coherent argument, and I could tell that I’d lost the judge midway through. “On top of which,” I added somewhat desperately, “the testimony would be highly prejudicial, and that prejudice would greatly outweigh any probative value, which would be minimal at best.”

  “I think the motive for the murder is pretty probative,” Sherman said.

  “But it’s not motive for the murder, Your Honor,” I pleaded. “It’s . . . nothing, really. It’s total conjecture that her mental state started a fight.” It then clicked how to make my point. “Here’s the problem in a nutshell: Mr. Sherman is advancing a theory where it doesn’t matter if Mr. Zamora was actually having an affair, but what matters is that his wife thought he was having an affair. But if Mr. Zamora wasn’t having an affair—as we contend—he lacks motive. And that’s true even if his wife thought he was being unfaithful. That’s why her thoughts on the matter—her mental impressions—are irrelevant.”

  Sherman started to rebut that point, but Judge Asbill waved him off. With that same hand he scratched his cheek, like Vito Corleone in The Godfather.

  The next few seconds were interminable. If Judge Asbill went against us and allowed evidence that Carolyn told Allison that Nicky was cheating, there would be no coming back.

  Finally, Judge Asbill said, “Nope. I’m going to agree with Mr. Broden on this one. You can’t go there, Mr. Sherman.”

  Sherman chose not to call Allison McDermott at all, but I didn’t for a second think that meant he was done trying to prove Nicky was having an affair. I knew that he’d get that evidence in front of the jury another way with a different witness.

  That process began when he called a woman named Lori Swenson to the stand. Hers was one of three names on the prosecution’s witness list that Nicky hadn’t recognized.

  She testified that she worked at the front desk of the Hilton hotel on Sixth Avenue.

  I looked over to Nicky.

  He whispered, “No idea.”

  She testified for less than ten minutes, but during that time, she provided the most devastating testimony of the trial. Matter-of-factly, she said that she recognized Nicky as a man who had checked into the hotel “several times.” She further said that he’d always paid in cash and she’d never seen him with any luggage.

  Sherman hadn’t introduced any documentation to support his claim that Nicky had spent time in the Hilton, which meant he didn’t have any. I couldn’t imagine how he’d come upon Lori Swenson. Even if Nicky had been engaged in an illicit hotel rendezvous, he could have selected any one of two hundred hotels in Manhattan alone and varied them so that he never returned to the same one twice.

  Besides, Nicky had assured me that he had never checked into the hotel. Not even once, and certainly not the several times Swenson was claiming she’d witnessed. Which meant that Swenson was either a liar or simply mistaken. Which one it was didn’t matter to me, so long as the jury didn’t believe her.

  Of course, that was a tall order. It’s always difficult to convince the jury that a witness with no ax to grind is lying, and even though people often get things wrong and then lock themselves into a story, jurors are reluctant to believe that too.

  “How did it happen that the police came to question you about this matter?” I asked right out of the gate.

  She stared at me before responding. “What do you mean?”

  “Did you seek them out, or did they come to you?”

  “They came to me. They showed me a picture and asked me if I had ever seen the man in it before.”

  That visit could have been dumb luck, but I doubted it. Something had tipped the cops off to flash Nicky’s picture around the Hilton. Perhaps a charge on a credit card statement I’d missed. Maybe he’d frequented restaurants around the hotel.

  “How many rooms are in your hotel?”

  “Nearly two thousand. We’re the largest hotel in New York City.”

  “So you must receive . . . I can’t even hazard a guess. Does ten thousand guests a month sound right?”

  “I have no idea either. But it’s a lot.”

  “Right. Did the police show you any other pictures, aside from the picture of Mr. Zamora?”

  “Um, they also showed me a picture of his wife. But that was it.”

  “When the police first approached you, did you know that Mr. Zamora had been arrested for murdering his wife?”

  “Not at first. Since then, I’ve seen the story in the newspapers and on TV.”

  “The police told you that they were trying to prove that Mr. Zamora killed his wife, didn’t they?”

  “They didn’t say it like that.”

  “But you knew that’s what they were doing, and that you would be helping them if you said you’d seen Mr. Zamora checking into the hotel.”

  Sherman objected.

  Judge Asbill agreed, admonishing me to ask questions, not make speeches.

  I decided not to do either. “I have no more questions for this witness.”

  The jury now understood that our rebuttal to Lori Swenson was that she was looking for her fifteen minutes of fame and willing to perjure herself to achieve it. Far from a solution for our side, as the jury had now heard from a witness who claimed that Nicky had checked into a hotel suspiciously several times. That would be a difficult bell to unring.

  Swenson was followed by the second witness whose name Nicky hadn’t recognized. Soon enough I learned that she was a representative from Victoria’s Secret. Without much preface, Sherman placed a Victoria’s Secret receipt on the overhead projector, the employee pointed out the item identification code on the corner of the receipt, and Sherman replaced the image with a photo of a black nightgown.

  This was the lingerie that Sherman had claimed in his opening Nicky purchased for his mistress. I couldn’t imagine why he’d assume that, however. It looked like ordinary lingerie to me, and Nicky and Carolyn were newlyweds.

  The final witness whose name was unfamiliar was Jennifer Fried. She was young—early twenties—and attractive. At first I thought she might have been a friend of Carolyn’s outside of work who would claim Carolyn had told her that Nicky was cheating. But I couldn’t imagine Sherman trying the same gambit that the judg
e had ruled off-limits with Carolyn’s sister.

  “Ms. Fried, what do you do for a living?” Sherman asked.

  “I’m a sales associate at Tiffany & Co.”

  “Do you recognize the defendant, Nicholas Zamora?”

  She looked at the defense table. “Yes. He came into my store.”

  Nicky’s credit card statements contained a big-ticket charge from Tiffany. He told me it was a necklace he’d purchased as a gift for Carolyn. At the time, I had no reason to doubt that.

  “Did there come a time when law enforcement requested that you search Tiffany’s credit card receipts to see if Mr. Zamora had made any purchases?”

  “Yes.”

  “What did that search reveal?”

  “He did.”

  Sherman was back at the overhead projector. “Exhibit 19,” he said.

  On the screen was a credit card receipt, complete with Nicky’s signature. The price of the item purchased, including tax, was $1,512.

  “Is this that receipt?”

  “Yes.”

  “Can you tell from the receipt what item was purchased, Ms. Fried?”

  “Yes. The item number is in the corner—72014.”

  “Exhibit 20,” Sherman said.

  On the screen appeared a sapphire pendant surrounded by diamonds.

  Another detective tied it all together. In a monotone he testified that neither the lingerie nor the necklace was found when the police searched the house after Carolyn died.

  “In this case, the absence of evidence was, to our mind, conclusive evidence,” the detective said. “The lingerie and the necklace were not for the defendant’s wife but gifts he gave to another woman.”

  Sherman’s final witness wasn’t a witness at all, but a photograph. Still, a live person had to explain it, and he chose Martin Quinn’s managing partner, Ted Quinn, to do the honors. Quinn established that the firm’s formal dinner-dance occurred the night after Nicky purchased the Tiffany’s necklace.