“No.”
“Didn’t take a witness statement from the person who discovered the murder victim?”
“Beyond what’s in the police report, no.”
“This was an important case, right?”
“All murder cases are important.”
“And because all murder cases are important, you try your best to be thorough?”
“Always.”
“But being thorough here didn’t require taking a witness statement from Sam Wilkins?”
“Beyond what’s in the police report, no.”
Millwood doesn’t like it. I can tell from the tautness of his muscles that his Spidey senses are going haywire. I feel him look at me to get a read on the situation, but I ignore him with all the nonchalance I can muster. I then confer with Ella on some trivial point just to have something to do.
“You took a statement from Brice Tanner?”
“I did.”
“From Monica Haywood?”
“Yes.”
“But not Sam Wilkins?”
“No.”
Millwood is burning his britches to ask why not but knows that he can’t because he has no idea what’s on the other side of that door. In a brazen act of reverse psychology, Scott unleashes a look of challenge, all but daring his questioner to give in to temptation and ask the question. Millwood trains his sights on Liesa instead.
“Sam Wilkins’ wife was in the vicinity of the murder scene at the time of the murder?”
“A traffic cam caught a minivan registered to the Wilkins family over a mile away from the Barton residence around the time of the murder.”
“Traveling away from the direction of the Barton home?”
“Yes.”
“And it wasn’t Sam Wilkins driving that vehicle?”
“No. He drove his Volkswagen Passat to the Barton residence.”
“Did Liesa Wilkins admit driving the minivan through the intersection that night?”
“She didn’t want to talk to the police.”
“Refused to talk to you?”
“Yes.”
Millwood gives the jury a look pregnant with meaning and cashes in on his gains by moving to other topics. The remaining time of the cross-examination barely registers in my consciousness, except that I intuitively know that Millwood did us no great harm—only nibbling here and there at the periphery. Even the Liesa stuff is a big bag of nothing at the end of the day. When Millwood finishes his turn, I announce, “No further questions for this witness, Your Honor.” The judge excuses Scott from the stand, and I give him a slight smile of thankfulness and solidarity.
We survived.
39
Brice Tanner walks to the witness box when I call his name. He wears an appropriate gray suit. With a haircut and a clean shave, he presents like the Brice of old. I met with him extensively in the past few weeks to prepare him for his testimony. He held better than I would have thought, but the real thing is a different animal. The goal today is to introduce Brice to the jury on my own terms and safely defuse some of the land mines he presents to the case. Toward that end, the first thing is to establish that Brice and Sara had an affair. No need to beat around the bush, either.
“What was your relationship with Sara Barton?”
“We were lovers.”
The next questions delve into the beginning of the relationship. He and Sara had met and flirted, but nothing more, at a series of law firm functions. That changed when Sara showed up unannounced at Brice’s door one early evening. An intimate romance commenced. When Brice and Sara later found themselves alone at another Marsh & McCabe firm party, one thing led to another. They had sex on the floor of the High Museum.
We talk a little bit about the video—how he learned about it and his reaction in the aftermath. Despite the public revelation of their affair, the two continued to see each other. Sara confessed that she was scared of her husband. She told Brice to watch his own back, too.
“How did you respond?”
“I pledged to protect her, but she assured me that she could protect herself.”
Brice delivers the line with appropriate gravity. His guilt-ridden eyes stare a hole in the courtroom floor. Sensing that the moment is right, I play the jury the unedited video of Sara and Brice. The proximity of the video to the 911 call necessitates a public airing of what triggered Bernard Barton’s rage.
The video is high quality and shows a naked Sara in full frontal glory, sitting on top of Brice, rocking up and down. She faces the camera, and I marvel again at the sexual beauty of the Landrum twins. The female jurors look away in disgust. The male jurors absorb the evidence with complete concentration. I relive the past—kissing Lara that first time in my house, watching her remove the purple tank top, seeing those breasts in full technicolor.
I take a deep breath.
The playing of his sex tape further chastens Brice. His face bears the brunt of it. After the video runs its course, I force Brice to authenticate its accuracy, which he does with monosyllabic reluctance. His visual suffering the past few minutes pays strategic dividends—his weakness making it harder for Millwood to credibly paint him as a murderer. Barton, in contrast, has looked like a coiled ball of anger every single day of the trial.
“When was the last time you ever saw Sara?”
“The night before her murder.”
“Tell the jury about that night.”
“I walked over to her house, and she cooked me dinner. Spaghetti. Bernard was working late. After dinner, we went to her bedroom and made love. Afterwards, we talked about the future. She was getting a divorce. Her lawyer was delivering her divorce paperwork the next night, and she was going to tell Bernard. I wanted to be there for her, but she made me promise to stay away that night. I should’ve gone over there. Things might have turned out differently. When I learned that she was dead, I was devastated. We were going to run off together until Bernard killed her.”
“Objection!”
“Sustained. The jury will disregard that last remark.”
My blank face hides the joy I feel inside. Brice slid the shiv in Barton’s gut with remarkable swiftness. I decide to wrap up by asking Brice why he left Marsh & McCabe.
He answers, “I was disgusted that the firm didn’t fire the defendant after he was indicted for murder. I couldn’t work there any anymore. It felt like a hostile work environment.”
I nod in sympathy and relinquish the witness. Judge Woodcomb announces a 15-minute recess.
***
Millwood eyes Brice from his chair—more lion hunter than lion tamer now. The witness is nervous. Me, too. One thing we don’t have to worry about is Brice’s arrest for stalking Brittany Wood. Ella filed a pre-trial motion in limine to exclude any mention of the event on the grounds that the arrest never led to a conviction. Mary Woodcomb agreed, meaning we’ve sidestepped a rather large landmine already.
I’ve toughened Brice up as best I could, but Millwood will draw blood. The only uncertainty is how much. I hope for nothing worse than a flesh wound, expect something of a deeper cut, and dread a kill shot. Still sitting, Millwood asks his first question.
“What did you do when you quit Marsh & McCabe?”
“I took a break and spent some time in the mountains. Sara’s death was quite a shock.”
“What did you do in the mountains?”
Two odd, open-ended questions to start the cross-examination. Not good. Millwood knows something. The alarm bells in my head threaten to burst my eardrums. The imagination runs wild. Anything would seem to be on the table at this point.
“Nothing really. I hiked a little. Read some books.”
“Did you do drugs?”
I remember the heavy stench of residual weed when Scott and I paid Brice a visit. May the damage stop there. I can deal with drugs, as long as Brice—who actually looks at me now—honestly answers the question. My face exhibits nothingness in response to Brice’s glance. But telepathically I send him a single message
. Tell the truth. Tell the truth. Tell the truth.
Millwood wouldn’t ask that question unless he had the goods to smash Brice into broken pieces for a lie. Smoking weed is a little deal. Perjury is a big deal. The biggest sin a witness can commit is to lie. The jurors figure that if you deceive them about one thing, you will deceive them about everything.
Brice answers, “Sure, I smoked some dope.”
Good boy.
“Did you ever smoke dope with Sara before she died?”
“A few times.”
How would Millwood know that? I feel outflanked. I never even thought to ask Brice such a thing. Even though I doubt the legal relevance of the question, objecting would give Millwood a free monologue to spin the drug use in whatever ways he wants in answer to the objection. That fight is not worth having.
Millwood, who remains seated still, reaches for a manila folder on the defense table. His deliberate movements ramp up the suspense. Four questions in, he has already maneuvered Brice into admitting to a crime and implicating the victim in a crime. Anticipation for the next bombshell builds. Millwood pulls something out of his folder. He stands up, ready to take the action to a new phase. Brice looks halfway on the road to being shaken.
Millwood strides toward me and hands over some photographs that he intends to present to the witness. The pictures capture a crazed-looking Brice in his mountain man phase. To call the pictures unflattering undershoots the reality by a country mile. They’re terrible. The worst of the bunch features Brice shirtless with demonic red eyes that could only come from Satan himself. The image screams murder. Millwood has been busy.
He undoubtedly picked the worst of the litter, but these pictures are so bad I wonder if they have been edited. Technology can do a lot these days. It’s a long shot, but I have to attempt to keep these photos out.
I say to the judge, “May we approach, Your Honor?”
I smile to keep the jury off the scent that I want to keep evidence from them. Millwood already has them eating out of his hand. I make a small joke to him as we walk up and follow it with an animated laugh disproportionate to the joke’s merits—anything to distract attention from whatever Millwood showed me from the manila folder. When we reach the bench, I make my argument.
“Your Honor, it appears Mr. Millwood intends to introduce into evidence photographs taken of the witness months after the murder of Sara Barton. First, the evidence is irrelevant to the issue of the guilt or innocence of the defendant. Rather, the point of the photos is nothing more than to paint the witness in a bad light during a private, unguarded moment. Their prejudicial effect outweighs any probative value.
“Second, the photos were apparently taken without the witness’ knowledge. Besides possible issues of trespassing and invasion of privacy, the witness cannot know whether these images were edited or not, making authentication impossible with this witness.”
“Response?”
“This Court has my personal assurance that the photographs haven’t been edited, and the witness can certainly authenticate whether he is in the picture or not. The photos are relevant because the witness is a suspect in the victim’s murder and the photos show his apparent mental breakdown in the aftermath of the murder. The defendant has a right for the jury to see this evidence as part of his defense so that the jury can make its own judgments.”
Judge Woodcomb sifts through the photographs from her perch. She moves at her own pace, taking time to carefully review each of the pictures. If nothing else, the delay breaks the easy momentum of Millwood’s cross-examination. A murmur spreads across the courtroom as people talk among themselves, which means they aren’t paying attention to us at the front. I maintain an easy casualness.
The judge addresses me, “Mr. Millwood has vouched that the photographs are unedited. Do you accept his word on that issue?”
“Your Honor, Mr. Millwood is the finest and most ethical lawyer I know, but I still get to talk to his photographer before these pictures can be admitted into evidence.”
Woodcomb mulls over my words without revealing what she is thinking. She gives a second expeditious look through the potential evidence. She then hands all of the pictures back to Millwood.
The judge rules, “I’ll allow the witness to be questioned about the evidence to confirm that he is the person in the photographs. It is up to the witness to tell us if he thinks the pictures have been doctored in some way and do not accurately depict reality.”
I smile in defeat and head back to my seat, praying that Brice will keep it together over the embarrassments coming his way. Millwood now towers a few feet away from him. This technique is one of his favorites—using his size to convey his authority and make the witness feel small. I can’t assess Brice’s reaction because Millwood purposely blocks my line of sight, just as I blocked Corey Miller from seeing Tasha Favors. I slide toward Ella’s side of the table to grab a partial view. Millwood hands the first picture to Brice, who stares at it with no expression.
“Do you recognize the person in this photograph?”
“It’s me.”
“When was the picture taken?”
“I don’t know. It was taken without my knowledge.”
Good answer. Emphasize the shady circumstances surrounding the taking of the picture and punish Millwood for asking an imprecise question.
Millwood says, “Fair enough. Do you know approximately when the photo was taken?”
“Objection to the word ‘approximately.’ It’s vague.”
“Sustained.”
“Isn’t it true that the picture was taken some time after Sara Barton’s murder?”
“Yes.”
Millwood focuses on Brice’s days of living off the grid in the mountains. He establishes that Brice fled the city following the murder, grew long hair, grew a beard, and lived alone. Through his evocative questions, Millwood depicts a depressing mosaic of Brice’s living conditions—the seldom-used dirt road leading up to the place deep in the woods, the dilapidated exterior of the house, the disheveled interior piled high with trash. Like a good cross-examiner, Millwood essentially does the testifying, reducing Brice’s role to merely affirming everything his questioner asks.
To this point, Millwood has refrained from showing the jury a photo of Brice in the woods. I think I know why. Right now, the jurors have created in their individual minds an image of the witness with long hair and a beard in the woods. Based on the man testifying before them, they have probably constructed a tame, albeit slightly hairy, person in their heads. If Millwood can shatter this comfortable mental construction to pieces, the shock value of the real images of Brice soars. The move requires patient discipline to execute. Most lawyers rush to get good evidence in front of the jury. But Millwood plays the long game.
Millwood returns to the photos at the defense table. He leafs through his stack as if deciding on the perfect one, an exercise in theatrics. At last, he picks out the most damning photo—the one featuring a shirtless Brice and his red, demon eyes. He meanders back toward the witness stand and says, “I want to show you another picture, Mr. Tanner. Can you confirm again that you are the person in this photograph?”
Millwood hands over the photo with all the solemnity due to a critical, trial-turning piece of evidence. This moment represents the culmination of his work for the past forty-five minutes. Brice looks at what is handed to him and reacts in a way that startles everyone present, but especially Millwood.
Brice bursts out laughing. Hard.
No one knows quite how to react to this display. The jurors look taken aback. Spectators sit confused. Barton flashes anger. Mary Woodcomb seems mildly amused. Millwood appears stunned, something I’ve never seen. He doesn’t take it well.
He demands, “Do you find something funny, Mr. Tanner?”
Brice answers, “I mean, this photograph is perfectly ridiculous. Look at my eyes! What did you do? Sit in a tree all day and wait to catch me at my worst moment? Getting me without my shirt on was a nice
touch. The whole thing is a joke.”
Mockery! Perfect. The unexpected grit in him astounds. Ella writes something on a legal pad and slides it over to me: “Wow!” Our eyes meet, and I throw her a sly smile.
Trying to recover, Millwood notes for the record that the witness did confirm his identity in the picture. He further asks that the photographs be admitted into evidence and shown to the jury. I answer with a hearty: “No objection!”
Millwood hands the photos over to the jurors, and many of them actually laugh. They look at Brice, and he laughs right back at them. The whole scene must be painful for Millwood, who waits patiently to collect the photos before giving them to the court reporter. Mental cartwheels of joy roll along inside my head.
Brice skates through the rest of Millwood’s cross relatively unscathed. Millwood tries to jab him here and there—no alibi, walking distance to the murder scene, the intensity of his feelings toward Sara—but nothing comes of it. The jury grows bored, and Millwood gives up the chase. The first rule of getting out of a hole is to stop digging. Millwood had high hopes for Brice as a witness, but one unexpected response changed the whole dynamic.
Trials are like that. Good witnesses lose it in the moment and come across terribly. Bad witnesses exceed all expectations and become a strength, not a hindrance. As a lawyer, you can’t take such sudden shifts personally. You have to roll with it. Otherwise, you’ll become an alcoholic.
We won this round. I consider allowing Brice to leave the stand with no further questions. The easy choice would be to go ahead and claim victory. But I don’t want the jurors’ last impression of Brice to be one of boredom. Millwood will still try to smear Brice in closing argument as an alternative suspect to Barton. I need a different lasting note. I stand for re-direct.
“Mr. Tanner, Mr. Millwood was beating around the bush, but I will ask you flat-out. Did you kill Sara Barton?”
“Absolutely not.”
I pick up the infamous picture of Brice’s bare chest and his demonic eyes. I then turn the picture around and show it from afar to Brice and the jury at the same time. A few chuckles emerge.
The Murder of Sara Barton (Atlanta Murder Squad Book 1) Page 24
