The Best Friend

by Adam Mitzner

  “Since when have teenagers become State Supreme Court justices?” Maggie whispered in my ear, proving I was not alone in my impression.

  For this hearing, Nicky sat at the end of the table with Maggie between us. He was dressed in a suit and tie, although I had lost the battle with the guards to remove the monitoring device.

  Before Judge Sloane took the bench, Jack Ethan had come over to our table to exchange pleasantries. “Good to see a local at the defense table,” he said. “And leave it to you, Clint, you found the very best we have.”

  Given the stiffness of Maggie’s smile at the compliment, I wondered whether she had left the DA’s office of her own accord.

  “Clint and I have known each other since you were in diapers, Jack,” she said, triggering a tight smile in return from the DA.

  “We have a lot of housekeeping matters to take care of today,” Judge Sloane said. “But before I get to setting a schedule, I wanted to ask both sides if they had any issues that they wished to address. Mr. Ethan?”

  “Thank you, Your Honor. We would like the court to reconsider Judge Romatowski’s bail ruling. We believe that house arrest subjects the community to danger, as well as creating an undue risk of flight. Given the seriousness of the charge, the defendant’s resources, his lack of ties to this—or, frankly, any—community, and the circumstances regarding the death of his first wife, this is a case that calls out for incarceration pending trial. Can any of us truly say that if Mr. Zamora were a roofer in Speonk or a gardener in Ronkonkoma he would be allowed house arrest while pending trial on a murder charge?”

  That answered two questions right away, though neither had been in much doubt. The prosecution would take every opportunity to point out that Nicky was a rich outsider, and that he’d killed his first wife.

  Judge Sloane listened to Ethan’s pitch earnestly, which I took to be bad news for our side. I knew the request to revoke bail was coming and hoped the judge would swat it away as unnecessarily dredging up something that had already been decided.

  “Mr. Broden, care to respond?”

  “Thank you, Your Honor. Judge Romatowski already considered these issues, and there is no reason for this court to second-guess his determination.”

  “The reason is that it’s my case, not his,” Judge Sloane replied curtly.

  I belatedly heard Ella’s rebuke in my ears. The last thing you want to do with a young, inexperienced female judge is tell her not to make her own decisions because an older male judge already told her what to do.

  “Of course, Your Honor. I didn’t mean to suggest you didn’t have every right to reconsider Judge Romatowski’s ruling. That is your prerogative as the trial judge. I was merely stating that there was no basis for you to do so because your colleague got it right the first time. As you can see, Mr. Zamora is here today, and he will be at trial too. Mr. Ethan for some reason thinks that the defendant should be punished now, even though, as we all learned in grade school, a defendant is innocent until proven guilty. So the only issue at this point is what will it take to get this innocent man to appear for trial. His being confined to my house with electronic monitoring is more than enough to accomplish that goal.”

  The judge hesitated, then said, “I’m going to leave the bail conditions as they are for now. Mr. Zamora, understand that bail is a privilege, not a right. I can—and I will—revoke your bail conditions if I hear that there’s even the slightest problem with you being under house arrest. Do you understand that?”

  Maggie stood to remind Nicky that he had to come to his feet before responding. “Yes. Thank you,” he said.

  “Anything else you want to raise, Mr. Ethan?”

  “No, Your Honor.”

  “Mr. Broden?”

  “Yes, Your Honor. When Mr. Zamora is in court, we request that the ankle monitor be removed. Obviously, he’s not going to flee from this courtroom. And it’s stigmatizing, which might ultimately prejudice the jury pool.”

  Judge Sloane needed little time to think about this ruling. “No, that’s not going to happen. At trial, when the jury is present, he won’t need to wear the monitoring device. But for now, I don’t see the harm. Is that all?”

  “I’d like to be heard on the issue of scheduling,” I said.

  “Yes, that was the main item on my agenda for today as well. When are you thinking the defense will be ready for trial? And don’t tell me it’s more than a year from today, because I’m not going to put up with that kind of delay.”

  “To the contrary, Your Honor. We’re ready to try this case as soon as the court can accommodate.”

  I’d heard Maggie out thoroughly on the issue. She said the same things I’d told countless clients in the past about the benefits of delaying, especially when the defendant was not incarcerated: the extra time might be Nicky’s last days of freedom; plus delays almost always help the defense because witnesses can die, memories dim, evidence becomes lost or contaminated. It also lets juror passions cool. The conventionally “optimal” time to go to trial is when the jury can no longer remember reading about the crime in the newspapers.

  I told Maggie that I understood her point. I simply disagreed.

  “I hope you’re right,” she’d said.

  Judge Sloane apparently agreed with Maggie’s assessment, because she laughed at my request, although she quickly covered her mouth, realizing the image was less than judicial. “Not what I was expecting, Mr. Broden. So props to you for that. I was told that Clint Broden was the master of delay. And here you are, in a murder trial no less, wanting to go right away. Care to share why?”

  “The obvious reason, Your Honor. Mr. Zamora is innocent. Every day the stain of guilt clings to him is a day that justice is not served.”

  “You heard the man, Mr. Ethan,” Judge Sloane said. “He wants a trial, and he wants it now. You ready for that?”

  Ethan looked over at the defense table before addressing the court, the way the opposing coach smiles across the sidelines when his adversary has run a trick play. “I’m not sure what game the defense is playing here, Your Honor, but we need a little more time to get ready for trial. We’re happy to put this on a fast track, but I would think ninety to one hundred twenty days is appropriate.”

  I didn’t give him the chance to say more. “Your Honor, I’m really very surprised that Mr. Ethan is not ready to proceed. He was certainly ready to get an indictment. He was certainly ready to ask this court to incarcerate Mr. Zamora pending trial. Is he actually now representing that he does not today have sufficient evidence to prove Mr. Zamora’s guilt beyond a reasonable doubt, and he needs another three to four months to acquire it? Because if that’s the case, we move for an immediate dismissal of the indictment. That will give the DA all the time he needs to assemble his case, and then he can reindict Mr. Zamora—or whomever this new evidence that he hopes to collect points to as the murderer—at that time. Perhaps he should not have been so hasty to rush to judgment if he was so uncertain about his case.”

  Ethan was shouting over the last part of my speech, although I couldn’t make out what he was saying. Apparently, the court reporter couldn’t discern what either of us had said, because she lifted her hands from the steno machine, her way of signaling that she couldn’t transcribe anything.

  “Gentlemen, please,” Judge Sloane said. “I get it. You’re both grandstanding. Playing to the jury pool or the news or . . . whatever. But my job is to keep everything real in my courtroom. I made a promise to myself when I was sworn in as a judge that I wasn’t going to pretend that I knew what I didn’t know. But I was definitely going to figure it out quickly. So here’s me putting that into practice: Mr. Broden, I have no idea why you want to go to trial ASAP. But that’s not my job. It’s your job. Mr. Ethan, I understand why you don’t want to go to trial as fast as Mr. Broden. You assumed that Mr. Broden would seek to delay. And I’m certain that if Mr. Broden had asked for a trial date sometime next year, you would have said you were ready to go tomorrow. One o
f the things that has always seemed unfair to me about the way our system operates is that the prosecution can take its sweet time to bring an indictment, then demand an early trial date to get the defense before it’s ready. I suspect Mr. Broden is hoping to turn the tables on you in that regard. Only time will tell if that was a smart move or a dumb one, but he has that right. So here’s what I’m going to do. I would like nothing more than to have a big juicy trial on my docket. So let’s put that down for three weeks from today. Who doesn’t want to celebrate autumn in a courtroom, am I right?”

  Ethan looked like someone had shot his dog. “Your Honor, I told our witnesses that nothing imminent was going to happen. As you may know, the last people to see Ms. Remsen alive were the director and costars of the movie she was shooting. Those folks all live in California and have returned there. For all I know, they’re out of the country on some type of shoot right now. I don’t know if I can get them back for trial.”

  “Here’s another thing that never made any sense to me,” Judge Sloane said. “Why do celebrities get treated like their time is so much more valuable than everyone else’s? These are people with access to private jets, right? Tell them to use one and get back here for trial. If you told me that your witness was building somebody’s deck and they might lose their job if they didn’t finish it by the end of the summer, I might be more sympathetic to a delay because of witness unavailability, but not because somebody wants to walk the red carpet or tour the Côte d’Azur rather than give trial testimony. I would think you would be too, considering that those movie-star friends of yours, Mr. Ethan, are not members of this community. I have to say that I was moved by your impassioned plea a few moments ago on behalf of . . . was that the roofer in Ronkonkoma and the gardener in Speonk, or was it the other way around?”

  “Your Honor . . . ,” he said.

  “I could make the trial even sooner.”

  “I was about to say that the People will be ready to proceed on the schedule set by the court.”

  “Excellent. I do so love it when a plan comes together.”

  43.

  It is a ritual I’ve repeated in every case. Before the trial begins, I say a silent prayer. Not for victory, but for justice to prevail. I say it silently because no client would join in the sentiment. The accused pray only for freedom. I pass no judgment on their self-preservation instinct, but before going into battle on their behalf, I have to remind myself to stay faithful to something greater than victory.

  This case was different. I still said a prayer, but it wasn’t for justice. I was looking for something else entirely.

  Trial officially began with the selection of the jury, voire dire as it’s referred to by lawyers. In most cases, the jury is selected in a day. In those with considerable pretrial publicity, however, it lasts longer. Once I had a voire dire that took longer than the trial.

  Like every lawyer, I lean toward certain stereotypes in picking a jury. I favor people with nontraditional jobs—freelance writers, dog walkers, and the like—because they tend to skew more liberal, and therefore are more apt to be skeptical of law enforcement. In the same vein, I reject anyone who served in the military or has a relative who has done so. In a pinch, I can find comfort in the most tangential support—selecting jurors who wear casual shoes, on the theory that they’re not uptight and therefore are more likely to be open-minded. I therefore avoid men in brogues and women in stilettos. A bearded man usually makes the cut (no pun intended) unless his facial hair is too well groomed. But the gold standard of a defense juror is anyone who can sympathize with being wrongly accused, which is why you rarely see a young African American rejected by the defense.

  For Nicky’s case, I realized quickly that my plan to rush to trial to find jurors who had not been tainted with the knowledge of Carolyn McDermott’s murder was ill conceived. Anyone with a social media account knew the score.

  Toward the end of the selection process, an older white man was up for consideration. By sight alone, he was the prosecutor’s dream: big and overweight, but with a cocky look that told you that he had never been convinced about something he didn’t already believe. When he added that he considered himself a Fox News junkie, Ethan looked positively giddy. Which was why, when I told Judge Sloane that the defense would also seat Mr. Fox News, I thought Maggie was going to slug me.

  “What are you doing?” she whispered. “That guy looks like he’s ready to convict right now.”

  “Trust me,” I said.

  “My name is Jack Ethan, and I am the District Attorney for Suffolk County,” is the way he began his opening statement, so that everyone knew he hadn’t sent an underling to swing the sword at Nicky. “Murder is the most heinous act one person can commit against another. It is among the bedrock principles on which our society stands that murderers must be punished. Ladies and gentlemen of the jury, the evidence will show beyond a reasonable doubt that Nicholas Zamora is a murderer.”

  After this preface, Ethan indulged in a dramatic pause and then attempted to make eye contact with the jurors, one at a time. Mr. Fox News was smiling at him, but so were the freelance blogger, the man with the shaggy beard, and even the woman in the hijab. The others maintained more neutral expressions, but I was certain that none of them disagreed with punishing murderers.

  “The evidence will be incontrovertible that Samantha Remsen was murdered. You will hear from police officers that Ms. Remsen’s body was found washed up on the beach not far from the home in East Hampton she was renting with the accused for the summer. The medical examiner who conducted the autopsy will testify that the cause of Ms. Remsen’s death was a broken neck, not drowning. She was dead before she ever went in the ocean. Dr. Cammerman knows that for a fact because there was not a drop of water present in Ms. Remsen’s lungs. That can only mean that she had stopped breathing before she entered the water. Which, in turn, means that someone put her in the ocean after ensuring she was already dead.”

  At our last meeting before trial, we had conducted mock openings. Maggie had taken the role of prosecutor and delivered a more passionate presentation than Ethan was mustering, at least so far, hitting the same notes. When she was finished, she told Nicky to show more emotion when listening to Ethan detail the prosecution’s evidence.

  “Remember, she’s your wife, and you loved her,” Maggie said. “You need to show the jurors that you’re more repulsed at what happened to Samantha than they ever could be.”

  I turned slightly to gauge Nicky’s reaction to see if he was following Maggie’s instructions. Sure enough, he looked sickened by Ethan’s recitation of the circumstances of his wife’s death.

  “How do we know that Mr. Zamora is the one who murdered his wife and put her body in the ocean?” Ethan asked. “On this, the evidence will be what is called circumstantial, but that makes it no less reliable. If you are standing in front of a bank and you hear the alarm go off, and a moment later someone wearing a mask runs out holding a bag full of money with bank markings on it, all that evidence is circumstantial because you did not witness the robbery firsthand. But that doesn’t mean that you can’t conclude beyond a reasonable doubt that the man holding the bag of money had just robbed the bank. In this case, there is no eyewitness to the murder. That’s not unusual. Most murders are not committed in the plain sight of an eyewitness. This means that circumstantial evidence plays an important role in the conviction of most murderers.”

  Maggie scribbled in all caps on the legal pad between us—OBJECT. She was right that Ethan’s detour into the meaning of circumstantial evidence, as well as the hypothetical bank robbery scenario, had crossed the line into argument, which is prohibited in an opening statement.

  I rejected her advice with a shake of my head.

  “Allow me to lay out this circumstantial evidence—all of which points to Mr. Zamora, and Mr. Zamora alone, as the murderer,” Ethan continued. “First, you will hear that there was considerable tension in the marriage between Mr. Zamora and Ms. Remsen. Mr
. Zamora was quite a bit older than his wife was—by some thirty years. He did not support her decision to accept a starring role in a movie being filmed in East Hampton, but Ms. Remsen defied him and accepted the part despite his objection. But most importantly, you will hear that only an hour or so before Ms. Remsen was murdered, she and her husband had a terrible fight. That fight was in front of witnesses, people whose names you’ve undoubtedly heard of from the movies and the music world. Jaydon Lennox and his wife, Paige Anderson-Lennox. Chloe Lassiter and her boyfriend, the musician known as T-Rex. And their host, the film director Tyree Jefferson. They will each tell you what happened at that party. Specifically, they will testify that Mr. Zamora accused Mr. Jefferson of having an affair with his wife, and after speaking briefly with Ms. Remsen, Mr. Zamora stormed home alone. Ms. Remsen not only abandoned her husband in favor of Mr. Jefferson in front of the others, but Mr. Jefferson will testify that, after the others left the party, he had sex with Ms. Remsen. That, ladies and gentlemen, is the motive in this case. The oldest one there is. Jealousy. Mr. Zamora knew that he was going to lose his wife to a handsome, younger man.”

  Nicky’s description of the party had been slightly different, but not necessarily in a way that meant he’d been lying. “It was your usual Hollywood debauchery,” was how he had described it. “Lots of drugs and alcohol. At one point, I went to the bathroom, and when I came back out, he was dancing with Samantha. I thought he was getting a little too handsy, and I told him that he needed to keep his distance, and not in a nice way. Some other words were exchanged, I don’t remember what either of us said. Schoolyard-type taunts. Stupid shit. Samantha finally took me aside, and I apologized to her for my outburst. She said she understood, but I had to remember that Tyree was her boss. We agreed that it was best if I just went home. She kissed me goodbye and said she wouldn’t be too late.”