by Adam Mitzner
Maggie and I had reached out to the other participants at the dinner party to see if they would confirm Nicky’s version of events. Each, through counsel, declined to speak with us or even to offer a glimpse of their expected testimony. It is one of the many inequities of the criminal justice system: if defense counsel instructs witnesses not to cooperate with the prosecution, it’s obstruction of justice, but prosecutors can send that message loud and clear without breaking the law.
This was the first time I was hearing that Jefferson was claiming he’d had sex with Samantha the night of her death. From what Nicky had told me, he hadn’t known that. The autopsy hadn’t revealed any semen, but that didn’t mean that Jefferson and Samantha hadn’t had sex.
Witnesses at a trial—and maybe people in everyday life too—either tell the truth or lie due to some perceived benefit. I couldn’t come up with a motive for Tyree to lie about bedding Samantha, unless it was to burnish his already solid reputation as a lothario.
“After they had sex, Mr. Jefferson drove Ms. Remsen home that same night,” Ethan continued. “The plan was for her to pick up some things that she needed, including her phone, which she’d inadvertently left at home when she went to the party, and then she would drive her car back to Mr. Jefferson’s home. She was planning to live with Mr. Jefferson for the rest of the filming. In other words, she was going to leave her husband. The very evening she was murdered.”
Maggie pointed back to the legal pad. Her index finger tapping on the word OBJECT.
I remained mute.
“Mr. Jefferson will tell you that taking Ms. Remsen home was the biggest mistake of his life. He dropped her off at approximately one thirty a.m. He watched her enter the home she shared with the defendant. He will further testify that he fully expected her to return to his home with some of her things and her car later that night. But she never did. There is one person, and one person only, who could possibly have seen Ms. Remsen alive after she entered her home: the defendant, Nicholas Zamora.”
Ethan didn’t say that Nicky had seen Samantha because he couldn’t prove that. But he worded it so it sounded like the same thing.
“That’s where the prosecution’s proof ends,” Ethan said. “What happened behind the closed door of their home on the beach is known only by the victim, Samantha Remsen, and the accused, Nicholas Zamora. And of course, Ms. Remsen cannot tell us, as she has been silenced forever.”
Ethan paused again, and I recognized the trick. He was planting the seed with the jury that maybe Nicky wouldn’t tell them what had happened either. That is the defendant’s constitutional right, of course. The Fifth Amendment allowed Nicky not to testify and prohibited any reference to his declination before the jury. But that didn’t mean that a smart prosecutor couldn’t get the point across loud and clear, as Ethan was doing.
“Mr. Zamora told the police that his wife never returned home that evening,” Ethan continued. “But that story—the one he told the police—is in direct contradiction to what Mr. Jefferson will tell you, under oath.”
Ethan was goading Nicky and, by extension, me. He had promised the jury that his star witness, Tyree Jefferson, would tell them what had happened. The challenge was for me to promise them that Nicky would do likewise when it was my turn to address the jury.
When Ethan finished his opening, I had to decide whether I would rise to the bait.
44.
“Mr. Broden,” Judge Sloane said, “you may present your opening statement at this time.”
“Request a short recess, Your Honor.”
“Very short, Mr. Broden,” she said. “I want to finish your opening today.”
After the jury left the courtroom, I repositioned myself so I was standing between Maggie and Nicky. Crouching down so my whisper would not be heard by the press or the prosecutors, all of whom were less than fifteen feet away, I said, “I’m not going to open.”
The defense has the option of opening after the prosecution or reserving its opening statement until the prosecution has rested its case. Deferring allows the defense not to commit to any position until it hears the prosecution’s evidence. But I’ve never seen a defense lawyer reserve an opening statement. The conventional wisdom, which is backed by considerable research, is that jurors make up their minds immediately—often before the first witness testifies—and therefore it is incumbent upon the defense to put forth its theory of the case as early as possible.
“Why?” Maggie asked before Nicky could.
“If we open the way we planned—without promising Nicky’s testimony—it looks weak next to Ethan’s promise that Jefferson is going to tell all,” I said. “And we can’t promise Nicky’s testimony until we know how the judge is going to come out on Carolyn. Our best play is to keep our powder dry and not commit to anything until we see how the prosecution’s case comes in.”
How the judge was going to come out on Carolyn had become our shorthand for the most important issue in the trial—whether, despite Nicky’s acquittal in his first trial, Judge Sloane would permit evidence indicating that he had, in fact, killed his first wife. Both sides had filed briefs on the issue claiming that legal precedent supported their position. Judge Sloane had taken the issue under advisement, which meant that we wouldn’t know her ruling until she made it, and when that would be was anyone’s guess.
“If we’re voting, I say you should open,” Maggie whispered back. “I’ve never reserved my opening. And if the reason you’re thinking of waiting is because you don’t want to open without committing Nicky to taking the stand, then I say two things: First, you can open without making that commitment. But if you think you can’t, then let’s commit to it right now. You know as well as I do, he’s got to testify if we’re going to win. But like I said, I don’t know if we have to make that call right now. But I do know that not opening is worse than a bad opening.”
It was certainly an impassioned plea. I was a little taken aback that Maggie would challenge my advice in front of my client. Then again, Nicky was now our client, and I hadn’t given her much warning or time to prepare a more politic opinion.
“You know my vote, Nicky,” I said. “I’m not going to say that Maggie’s wrong. I normally open too. But I think it’s a mistake in this case. It’s your call in the end. What do you want to do?”
Nicky took a deep breath. Of the three of us, he was the only one unqualified to offer an opinion.
“I’m in your hands, Clinton. Whatever you say.”
There was a buzz in the courtroom when I informed Judge Sloane that I would reserve my opening statement until after the prosecution rested its case-in-chief. Like my cocounsel, the media had not expected that. By the look on her face, neither had Judge Sloane.
“Call your first witness, Mr. Ethan,” Judge Sloane said.
Ethan too was caught unawares. He’d undoubtedly thought he wouldn’t have to put on a witness until tomorrow, giving him the evening to prepare that direct testimony. In a shaky voice he said, “The People call Dr. Daniel Cammerman.”
There was nothing in the forensic evidence that we were going to contest. Unlike in Nicky’s first murder trial, we wouldn’t be arguing that death had occurred accidentally. There was obviously no way that Samantha broke her own neck, then put herself in the ocean. Nor could we argue that Samantha died at any time other than the eleven o’clock to four o’clock window provided by the ME. She was at the party in plain sight of multiple witnesses until after midnight, and Jefferson claimed that they were alone for an hour or so until he took her back to her house at around one thirty. If I could create my own evidence, the time of death would have been limited to that window when they were alone—midnight to one thirty. We’d talked to five pathologists in hopes that one would tell us that, but none could. The best we got was three thirty, and that didn’t do us much good at all.
Dr. Cammerman looked the part of a death doctor. He had a full gray beard, round steel glasses, and a stern resting expression. His testimony came in smoo
thly, as Ethan walked him through the findings set out in the autopsy report. Time of death (eleven o’clock to four o’clock). Cause of death (broken neck). Possibility of drowning (no). Signs of struggle (no). DNA on the body (no). Semen present (no).
I didn’t make a single objection. When Judge Sloane told me I could begin my cross-examination, I said, “The defense has no questions for this witness.”
After court, we adjourned to my home. Although Maggie’s office might have been more comfortable to work out of, she didn’t have a full kitchen and a chef, which I did. Trial time is precious, and spending it in a restaurant or cooking was wasteful.
“Maybe tomorrow you’ll actually say something,” Nicky said while we ate.
He matched his words with a smile, but it was a nervous one. I saw him catching Maggie’s expression after mine.
“No reason to attack a witness who doesn’t hurt us,” I said. “When we do it to the witnesses we need to discredit, it’ll be all the more effective because we didn’t cross Cammerman.”
Maggie came to my defense. “Not crossing him was the right move, Nick.”
But after Nicky retired for the evening, and Maggie and I were alone, she could no longer hold her tongue. In a quiet voice, so as to not reveal to our client that there was dissension between his lawyers, she asked, “Is something going on here that I don’t know?”
“No,” I said, content to leave it at that.
“You sure?”
“Yes.”
The truth, of course, was that there was much going on that Maggie didn’t know. More than I could ever explain to her.
Before Nicky’s first trial, I had gone to Macy’s and bought ten white shirts. I wore the first during the initial pretrial conference, the second at the final pretrial conference, and the third on the first day of trial.
That third shirt caused the problem.
I had mistakenly included among my shirt purchases one with French cuffs, and at the time, I didn’t own a pair of cuff links. I might have simply put it back in the bag and reached for the next shirt in the pile. If I had, my life would have played out differently. But I didn’t. Instead, I remembered that Anne sometimes wore a French-cuffed shirt.
She kept her jewelry in a large mahogany box. I’m not sure I had ever previously opened it or even seen its interior. The box had earrings on top, rings inserted in grooves, and a false bottom hiding Anne’s larger pieces.
If only Anne had kept her cuff links on top with her rings . . . but she hadn’t.
I removed the false bottom. There were the cuff links I was searching for—silk knots in a lavender shade—among the chains and pendants and lockets that Anne occasionally wore on special occasions.
I shut the jewelry box and didn’t think of it again. That is, until Brandon Sherman put on the overhead projector a photograph of the sapphire pendant that Nicky had allegedly purchased for his mistress.
At first, it was a memory I no longer trusted. Hadn’t I seen the exact same pendant in Anne’s jewelry box? Could two such necklaces look alike?
That evening, I went back to Anne’s jewelry box to confirm that I was mistaken. But when I removed the false bottom, the necklace was gone.
I don’t know how she got it to Nicky. I assume he called her from the courthouse pay phone, and she went to his home, leaving it in the mailbox. But when Nicky brandished it in court, I knew beyond all doubt that he was holding the same piece I’d seen in Anne’s jewelry box.
I never made the deliberate decision not to discuss it with Anne. In fact, the opposite. I decided that I would wait until after Nicky’s trial and then confront her about the betrayal. But after his acquittal, I lost my nerve, fearing that I might push Anne further away, perhaps even into Nicky’s embrace. So I kept my discovery to myself.
I’m ashamed now that I made the coward’s decision then. I should have had more faith in Anne, and in our marriage—that it could withstand the truth. I might have learned things about my wife that will now forever be mysteries, and perhaps in the end it would have brought us closer together.
Once or twice in the years that followed, I sensed that Anne wanted to come clean. In each of those instances, I said something to suggest that there was no need. Anne must have recognized my code, because she always stopped short.
Without knowing the truth, I had filled in a version of events that allowed me to go on with my life. That Nicky had been the aggressor, and in a moment of weakness, fueled by loneliness that I had ignored and was to blame for, Anne succumbed to temptation. That she immediately felt guilty, and perhaps the necklace had not been a gift to promise a future together, but one to entice her back. That Nicky alone killed Carolyn, because Anne would never have been part of the taking of a life. That the murder was for his own twisted reasons and not caused in any way by his desire to live happily ever after with my wife, rather than his own.
For thirty-four years, I told myself that story, and at times it soothed me, but more often than not it burned. By sparing Anne from confessing the truth, I allowed her affair with Nicky to take on mythic proportions in my mind, to the point that I questioned everything that I thought had been true between Anne and me.
This was, at long last, my opportunity to learn the truth. For some reason, even after he had betrayed me in the most fundamental way a friend can, I still trusted him to provide me the answers I longed for. How did it begin? How long did it last? What were their future plans? Why didn’t those plans come to fruition? Was Carolyn murdered because she learned of their affair?
Most important, I wanted Nicky to, once and for all, tell me who had murdered Carolyn: My best friend or my wife?
45.
The next morning, Ethan put the police detective in charge of the investigation on the stand. As during the medical examiner’s testimony the previous day, I would have very little to do with Detective Hibbitts. As part of the discovery the prosecution was required to produce, I had already seen his interview notes, so I knew what he’d claim Nicky told him, which was the story Nicky was sticking to.
“Detective Hibbitts, when you first met the defendant, Nicholas Zamora, what did he tell you regarding his wife’s whereabouts?” Ethan asked.
“That he had no idea where she was. He told us about the party the night before, and he claimed that she had never come home.”
“What, specifically, did he tell you about the party?”
“That there had been a party at the home of Tyree Jefferson. That large amounts of drugs and alcohol had been consumed by others, but not by him. That he had a disagreement with Mr. Jefferson, and that he had left the party alone.”
“Was that his characterization? A disagreement?”
“Yes.”
“Did he ever tell you what the disagreement was about?”
“He was never very specific about that. When he first explained it to us, he blamed it on both of them being drunk, and very generally told us that he was upset with the way Mr. Jefferson was acting toward his wife. After we heard from other witnesses and learned more about what actually was said, Mr. Zamora admitted that the argument had to do with his concerns that Mr. Jefferson might be having an affair with his wife.”
“He admitted that to you? That he suspected Mr. Jefferson was having sex with his wife?” Ethan asked, even though that was exactly what Hibbitts had testified.
“Yes. That is what he ultimately said, although it took several meetings with him to get there. By the time he admitted it, we already had ample evidence of the affair through text messages, so there was no point in denying it anymore.”
Ethan circled back to the prosecution’s table, ostensibly to look at his notes for his next line of inquiry. More likely, his purpose was to allow the last exchange to sink in with the jury.
On cross, my goal was to lay the groundwork that the police were so focused on Nicky that they neglected to consider Jefferson as a suspect. Although rush to judgment was a cliché, there’s a good reason for that—it’s often tr
ue.
“Detective Hibbitts, when you first spoke with Mr. Zamora, were you already considering him a suspect in his wife’s murder?”
“I’m a police detective. So whenever I am called to do anything, there is the possibility that a crime has occurred, or I wouldn’t have been called in the first place. But in a missing-persons situation, it often turns out that no crime has been committed. The missing person returns unharmed and explains that the entire thing was just a misunderstanding. When I first met Mr. Zamora, I was open to the idea that would occur in this instance as well.”
“When you say you were open to it, can we take from that answer that you were also open to the fact that this might be a situation in which foul play was involved in Ms. Remsen’s disappearance?”
“Yes. That is also a possibility in any missing-persons case.”
“You reached that conclusion—that a crime might have been committed regarding Ms. Remsen—even though there was no evidence of that?”
“There was some evidence of it. She was missing.”
Score one for Detective Hibbitts. He was a good witness.
“Did the police search Tyree Jefferson’s car for DNA belonging to Ms. Remsen?”
“We did. But there was nothing there.”
“In other words, there is nothing the police found to corroborate Mr. Jefferson’s claim that he took Ms. Remsen home that evening?”
“That’s right.”
Score one for me.
The production assistant from the movie came next, Katlyn Belton. She reminded me a little of Charlotte, with her dark hair and dark eyes that combined to provide a certain beauty that you knew would never fade.
“Mr. Jefferson told me that he thought Ms. Remsen had overslept and asked me to get her,” she said.
Maggie whispered, “Hearsay,” but I let it go, even though she was right. What Jefferson had told her should be admissible through only his testimony.
“What were your perceptions of Mr. Zamora’s demeanor at this time?”
