Woodcomb chews on it a brief moment before acquiescing, “Granted.” A spring forms in Millwood’s step.
“You have three young children?”
“Yes.”
“Ages 11, 8, and 5?”
“Yes.”
“They have bedtimes?”
“Yes.”
“They weren’t in the car with you at 9:51 p.m. on the night of the murder, were they?”
If my earlier figuring is correct, Liesa followed Sam to the Barton residence, no doubt leaving her kids at home as she did so. Sam discovered Sara’s dead body, exited the house, and found Liesa there. Because they saw one another at the scene, each of them suspected the other might be the murderer, which explains their strange conduct throughout the investigation. But even if my figuring is wrong about some of the precise details, Liesa was there that night for sure. Now she must lie herself of her predicament.
“As I said before, I have no specific memory of driving that night. I cannot tell you if my children were in the car or not.”
“But it’s possible that your kids were not in the car?”
“It’s possible.”
“Possible that you left them home all alone?”
“It’s possible.”
“Your children—ages 11, 8, and 5—left all alone late at night?”
“I wouldn’t have been gone long. The oldest is very responsible.”
“You know you wouldn’t have been gone long, but you have no idea where you were?”
This sequence demonstrates the power of momentum and leading questions. Millwood is in the zone now, and Liesa borders on looking criminally negligent as a parent.
“You’re twisting my words. They may very well have been in the car with me. They probably were that late. If they weren’t, it means I was running a quick errand.”
I grimace. The problem with lying is the lies. Liesa is getting pretzeled by Millwood because failing to tell the truth creates a whole bunch of other plot holes in the narrative. Liesa the Good Mother would never leave her kids alone that late. Liesa the Mad Wife would.
Millwood pounces, “You just said that you didn’t know if they were in the car with you. Now you say they probably were in the car with you?”
“I just don’t remember.”
“You don’t know?”
“No.”
“You don’t know anything about your actions that night?”
“No.”
“The night your husband discovered a beautiful woman murdered in her home?”
“No.”
“And he discovered her around the same time you were just down the street?”
“If you say so.”
“And now your husband is dead, isn’t he?”
“Yes.”
Millwood pauses to let the audience catch its breath. The “if you say so” answer is just what he wants to hear. A beaten down person who agrees with whatever the questioner asks is the holy grail of witnesses—like a suspect being grilled by the police for hours who eventually confesses to everything just to hasten the end of the ordeal.
“Your husband died of a gunshot wound?”
“Yes.”
“In a secluded area of the woods?”
“Yes.”
“The gun that killed him right by his side?”
“Yes.”
“The gunshot wound was to his temple?”
“Yes.”
“And this was after the murder of Sara Barton?”
“Yes.”
A toddler still in diapers would have no trouble connecting those dots. Liesa makes eye contact with me for the first time. I slowly make a fist with my hand as it hangs near my face to indicate that she should stay strong. Millwood has scored some points, but Liesa hasn’t admitted a single damaging thing yet. The questioning is more sizzle than steak at this point.
“Your husband died only three weeks ago?”
“Yes.”
“And he was due to testify at this trial, wasn’t he?”
“Yes”—a pause—“that’s what killed him.”
The answer comes of out nowhere—a sudden break from the monotony of Liesa meekly saying “yes” to whatever Millwood puts in front of her. Worry seizes my insides. I have no idea what she is talking about. I swallow my concern and nearly choke on it. My entire trial strategy hangs in the balance. Millwood shares my shock. Confused, he actually blurts out, “What?”
His disorientation leads him to make a mistake. He asks a witness on cross-examination an open-ended question to which he doesn’t already know the answer. With rare exceptions, cross-examination questions should almost always elicit a yes or no response. Giving the witness a free platform to answer an open-ended question in a way that can hurt your case is a cardinal sin. Millwood just sinned.
“Sam wasn’t a strong man mentally. He knew clever lawyers would accuse him of something bad just because he was in the wrong place at—”
Millwood yammers, “Move to strike as non-responsive, Your Honor.”
I blast out of my seat and assert, “No, Your Honor. Mr. Millwood posed a question. He asked, ‘What?’ The witness is allowed to finish the answer to that question without Mr. Millwood interrupting her.”
Judge Woodcomb agrees and tells Liesa that she may proceed with her answer. Millwood stands there numbly, fearing the worse. The slow-moving pitch to Liesa sits right over the middle of home plate waiting for her to knock it out of the park.
Liesa takes her swing, “As I was saying, Sam was a nervous sort. He was worried about testifying because he knew that finding the body automatically made him a suspect. He knew what the lawyers would do to him, drag his name through the mud. You’re doing it to him now, even after he’s dead. It was too much for him. He wasn’t built for that kind of pressure. If he had just left that house instead of doing the right thing and calling the police when he discovered the body, he would still be alive today.”
Grand slam. Millwood must regroup and fast. He asks, “But your husband was a divorce lawyer, right?”
“Yes.”
“And he was a good divorce lawyer?”
“Yes.”
“He was used to battling out contentious divorces?”
“He was a good divorce lawyer because he was full of empathy for hurting people going through a difficult time in their lives. He could never do what you do, Mr. Millwood.”
The Ice Queen just sliced off pieces of Millwood’s body onto the floor. Millwood again moves to strike the answer as non-responsive. This time the judge agrees with him, but no matter. The wound is real, and it is gaping. A few female jurors throw looks of disgust Millwood’s way.
Liesa starts crying.
I grab a box of tissues and lift them up toward Millwood. He burns a hole through me with the intensity of his stare, but with the jury watching him like a hawk, he knows what he must do. He takes the tissue box like a dutiful child and makes the slow march to the witness box. I wonder if he remembers pulling the same stunt on opposing counsel years ago. That’s where I learned the trick—the spontaneous remembrance of that incident paying huge dividends in the present.
“Here you go, Mrs. Wilkins,” Millwood says, offering her the box of tissues before walking back to his corner of the courtroom. I know he loathes ending his examination at this point, but any further questions would invite an encore performance from the witness. He sits down.
Judge Woodcomb asks me, “Should we take a short break now or wait fifteen minutes?”
“I’m ready to go now, Your Honor.”
***
I won’t take fifteen minutes. The examination of Liesa ricocheted with swift blowback against the defense, and I don’t intend to give Millwood another crack at reversing that negative momentum.
“Mrs. Wilkins, did you kill Sara Barton?”
“No.”
“Didn’t drive your car to her house on the night of her murder for some nefarious purpose?”
“No.”
“Y
ou don’t even know where the house is, do you?”
“No.”
The ease with which she lies is a spectacle to behold. Remarkable. I take the measure of the jury. Liesa has won them over. Millwood’s gamble backfired. I mentally prepare the finishing touches.
“Mrs. Wilkins, you’re a grieving widow with three small children?”
“I am.”
“And you were forced to come down here to testify?”
“Yes.”
“Mr. Millwood subpoenaed you?”
“He did.”
I stand near Millwood and give him a stern look of reproach. Liesa dishes up a disapproving look of her own. With twelve pairs of eyes from the jury studying him closely, Millwood has no choice but to say nothing and take his medicine. He’s no match for the grieving widow with three small children.
Still looking at him, I ask, “And you have no idea who killed Sara Barton?”
“I do not.”
“And you don’t even know anything relevant to this case?”
The question demands an objection. Relevance is an issue of law beyond the competency of any witness. I’m daring Millwood to object. A lesser lawyer would, but Millwood sits there stony-faced still. He knows the witness is lost. Protesting too much now only lowers the jurors’ estimation of him. The flipside of cashing in your gains is limiting your losses when the hand doesn’t go your way.
Liesa answers, “No.”
“Mrs. Wilkins, I’m very sorry for your loss. And I’m sorry you had to come down to the courthouse today. You’re a brave woman. No further questions, Your Honor.”
44
Millwood calls police officer J.D. Hendrix to the stand. Hendrix responded to Sara’s 911 call and made the decision not to arrest Barton. He is Millwood’s witness, but our guy. We prepped his testimony many times, emphasizing that at no point whatsoever should he get clever or cute in his answers to Millwood. Listen to the questions, let Millwood score his points, don’t argue, don’t evade, be polite. Scott sat in on these prep sessions to put an exclamation point on the seriousness of these instructions as if from God Himself. Hendrix got the message. He’s a good kid.
Millwood’s mission is no mystery. In the hands of an angry jury, the 911 call is enough to convict Barton itself. One need not possess an active imagination to believe that a man who hits a woman has it in him to kill her, too. Millwood will use Hendrix to show that nothing at the scene indicated domestic violence. Anything Barton says on that score will be instantly disbelieved. To dilute the impact of the 911 call, Hendrix is the only game in town for the defense. How Millwood deals with the photo of Sara Barton’s blackened back remains to be seen.
Following a few background questions, Millwood asks Hendrix, “Describe the demeanor of Mrs. Barton when you arrived at the house.”
Millwood doesn’t fear the answer to this question because he holds Hendrix’s incident report in his hands. Contemporaneous with the event, the document describes Sara Barton as being calm, composed, and apologetic for involving the police in a private matter between husband and wife. By Hendrix’s telling, Sara confessed that she overreacted to her husband’s yelling in calling 911. And just like we trained him to do, Hendrix hews the line established by his report. Sara Barton was calm, composed, and apologetic when Officer Hendrix showed up at her door.
“Where was Mrs. Barton when you arrived at the house?”
“In the living room.”
“Did you have any indication that Mrs. Barton had been physically assaulted?”
“No.”
“How long did you talk to her?”
“Fifteen minutes.”
Millwood draws out the details of this conversation. Sara denied to Hendrix that she had been hit and emphasized that she had overreacted to an otherwise unexceptional domestic quarrel. Barton, also, presented a picture of absolute calm, denying that anything was amiss. The questioning is effective, transforming a scene of violence into an innocent misunderstanding.
“And after visiting the scene and talking to Sara Barton, you decided not to arrest Bernard Barton?”
“That’s correct.”
“No further questions.”
***
My cross-examination is short and to the point. I start by showing Hendrix the photo of Sara Barton’s injuries at the hand of her husband.
“Did you see these bruises?”
“No.”
“Sara Barton was wearing a shirt?”
“Yes.”
“And you couldn’t see her back?”
“Correct.”
“If you had seen these bruises, would you have arrested the defendant, Bernard Barton, for punching his wife?”
“In a heartbeat,” Hendrix responds.
I then play the 911 call, using the opportunity to get the frightened words of Sara Barton before the jury again. I establish that Hendrix didn’t hear the 911 call prior to arriving at the Barton house. Rather, the dispatcher only told him that a domestic disturbance was in progress.
I ask, “If you had heard the 911 call prior to arriving at the residence, would you have arrested the defendant, Bernard Barton?”
“Absolutely.”
“Why?”
“I put more credibility in what’s said in the heat of the moment to 911 than what’s said to the police once they arrive at the scene. Many women are coached by their abusers to stay silent for their own good.”
Millwood jumps out of his chair, “Objection! No evidence indicates that my client coached anyone to do anything. That is just rank speculation.”
“Sustained. The jury shall disregard any suggestion that Mrs. Barton was coached to stay silent.”
I expected that. No matter. The seed has been planted. I move behind the jury box, forcing Hendrix to look right at the jurors as he answers. The connection between witness and jurors needs to be tight for my big finish—because I know something that Millwood doesn’t.
“Did you ever see Sara Barton again?”
“Yes.”
“When?”
“She was dead on the floor of her kitchen. I was one of the first officers to secure the scene.”
“What did you think when you saw Sara Barton dead on the floor of her kitchen?”
“I wished I had arrested her husband.”
45
Roy Winston approaches the witness box for the defense. Winston is Marsh & McCabe’s managing partner and figures to testify about the money Barton makes, with a dash of character reference on the side. Winston refused to talk to me when I called him up after seeing his name on the witness list. He’s a mergers and acquisitions lawyer by trade, and a meaningful possibility exists that today is the first time he has ever set foot in a courtroom.
Corporate law has treated him well. In the witness box, Winston wears a $3,000 suit and a look of profound unease. My guess is that he makes north of $3 million a year, all without ever having to dirty himself in the trenches of real law. But his money does him no good here. I have plans for him that won’t be to his liking.
Winston’s discomfort doesn’t abate as Millwood introduces him to the jury through a series of background questions. The witness sits erect, considers every word from Millwood with the utmost of care, and only answers when he is good and ready. With the end of the day nearing, Winston’s measured detachment tests the patience of the room—those who are awake at least. Millwood conceals his irritation with Winston’s extreme deliberateness, but hurries through the basics all the same to get to the point.
“In your capacity as managing partner, do you know how much money Bernard Barton earns each year?”
Pause. “Yes.”
They next go to the particulars. The testimony establishes that Barton’s share of partner profits totals approximately $1 million a year. Additionally, Barton’s interest in the firm retirement plan is $3.3 million in total. The numbers aren’t new. Millwood referenced them in his opening statement. The jury looks interested but uncommitted. Rich men kil
l people, too.
The financial evidence established, the questioning takes a turn into the personal.
“Mr. Winston, how long have you known Bernard Barton?”
Pause. “Twenty-five years.”
Millwood next solicits Winston’s observations that the Barton marriage was over, and neither wife nor husband exhibited much discernable regard for the other. Winston offered to terminate Brice Tanner for the offense of sleeping with a partner’s wife, but Barton laughed off the sex tape and wanted no retribution taken on his account. The general knowledge within the firm was that Barton had moved on to Monica Haywood. Winston gave Barton the name of the lawyer who handled Winston’s own divorce, and that was that. The testimony concludes with the witness describing Barton’s extensive work in fundraising for domestic violence shelters.
I stifle a yawn. I have a text of Barton calling his wife a whore, a 911 call of him yelling at her on the same day he learned about the sex tape, and a color photo of Sara Barton’s bruised back. The documentary evidence doesn’t lie. I don’t care how much money Barton gives to good causes. Millwood turns the witness over to me.
***
Winston eyes me with the wariness of a house cat that still possesses a healthy dose of tiger DNA in its blood. He is obviously a competent lawyer, but corporate law has domesticated him. Now he finds himself in the wild on unfamiliar ground and doesn’t like it. I approach friendly-like, more for the jury’s benefit than Winston’s. Jeff Yarber told me the day after Sara Barton’s murder that Marsh & McCabe has had to settle numerous sexual harassment lawsuits on Barton’s behalf. I doubt Winston knows I know. That is about to change.
“Mr. Winston, you’re managing partner of Marsh & McCabe?”
Pause. “Yes.”
“One of the largest law firms in Atlanta?”
Pause. “Yes.”
“And your firm employs a great number of women?”
Pause. “Yes.”
“And some of these women have accused Bernard Barton of sexual harassment?”
Winston reacts as if punched in the face. He calculates the awful equation in an instant. His firm now has bigger problems than one of its partners on trial for murder. The #MeToo movement just showed up on its doorstep on national television. An unresponsive Winston looks to Millwood for rescue.
The Murder of Sara Barton (Atlanta Murder Squad Book 1) Page 28
