“Now, in the seventeen years since this murder, has Mr. Naposki’s Beretta nine-millimeter ever turned up?”
“No, sir.”
Matt Murphy spent a good portion of the trial going over the numerous driving-time tests that the detectives conducted during the 1990s and again in recent years to prove that Eric had plenty of time to kill Bill McLaughlin before the 911 call was made.
Murphy showed the jury a videotaped drive, maps of the possible routes from the soccer field to Eric’s apartment and on to Balboa Coves, and had several witnesses discuss these trips. It was tedious, but, as it turned out, important to the jury.
The defense came back with many questions for these witnesses, asking about changes in traffic patterns and challenging the thoroughness of NBPD’s investigation, with the hope of showing that the passage of time had dramatically reduced Eric’s ability to get a fair trial.
When Murphy asked a question that implied Eric had enough time to commit the murder, Angelo MacDonald objected, saying the question was “conclusionary.” Froeberg sustained the objection.
Nonetheless, the prosecutor remained collegial with the two defense attorneys. At the end of the day, as the three of them headed back to the judge’s chambers to discuss a few issues, MacDonald touched Murphy’s back as he walked behind him—the same way male athletes pat each other during a game.
But that collegiality would soon turn to contentiousness.
As many experienced attorneys do, Murphy, Pohlson, and MacDonald had forged a pretrial agreement not to launch unnecessary objections, believing they were disrespectful to the judge, slowed things down, and sometimes served no purpose except to make the lawyers look bad to the jury.
Murphy was prepared for MacDonald to be more aggressive than his usual Orange County opponents might be, because the defense attorney had nothing to lose. Being from New York, MacDonald wouldn’t have to appear before this judge again. Murphy also figured that MacDonald would likely try to slip in a mention of Jacob Horowitz, which Murphy believed was inappropriate.
Under the rules governing a third-party culpability defense in California, Murphy explained later, an attorney has to have “actual evidence that somebody did it, you can’t just point your finger at somebody.”
The attorneys had agreed to let some evidence come in for purposes of streamlining the case. However, when MacDonald slipped into a question that Horowitz had just lost his lawsuit with Bill, implying that Horowitz had a strong motive for murder, Murphy dealt with the issue by talking to defense attorneys privately rather than object in front of the jury. Then he “cleaned it up” in open court with a slide he’d prepared for this explicit purpose.
“I wasn’t upset about it,” he explained later. “I fully anticipated that they were going to do that.”
But as a result of this type of courtroom sparring, the pretrial agreement broke down, prompting Murphy to repeatedly object to certain defense questions—no matter how they were asked—until he was effectively able to block them.
Tit for tat, the defense also started lodging objections, and even the judge agreed that Murphy hadn’t laid enough foundation for a certain question. As Murphy grew visibly and audibly irritated, his voice dripped with sarcasm as he asked questions in such a way that the jury knew he was upset: “Are you familiar with this thing we have in the United States called ‘states’?” he asked.
By this time, even the judge had noticed the friction that had developed between the attorneys.
“My, the mood has changed,” Froeberg said.
On cross-examination, MacDonald grilled Detective Voth about nitpicky details, implying that the investigation had wrongly overlooked them, such as why police never interviewed the soccer players’ families, the referee, grounds crew, or record keeper from the game on the night of the murder. Why he didn’t look for pieces of torn clothing caught on the barbed wire around Balboa Coves, or follow up on getting Eric’s phone records?
Then came a surprise for the prosecution team. MacDonald flashed a page from Nanette’s check register on the overhead screen, showing that she’d written a check to Frankie’s Lock and Key in November, the same time frame that the prosecution had claimed that Eric was getting keys copied.
Seeing this unexpected piece of evidence, Murphy’s heart started to race.
Oh, my God, Murphy panicked. We just lost the trial. How did we miss the fact that, days before the murder, she’s got a record of getting keys made?
It was right before noon. As soon as they broke for lunch, Murphy, Larry Montgomery, and Detective Joe Cartwright rushed out to start Googling and digging through boxes of evidence. To their relief, they discovered that Frankie’s was actually a key shop in Arizona, where some of Nanette’s family lived. And once they reviewed the check register, they realized that the Frankie’s key shop transaction actually occurred in November 1993—more than a year before the murder.
Heaving a collective sigh of relief, Murphy and his team were able to come back to court to present the full picture, which also allowed the prosecutor “to take some shots” at the defense in front of the jury.
“It’s part of the duel,” Murphy said later. “It’s nothing slimy.”
Even so, he believed that the defense took a credibility hit from the exchange.
On June 29, Murphy went quickly through the forensic evidence from the autopsy with Dr. Anthony Juguilon, the county’s chief pathologist, subtly hinting to the jurors that he didn’t want to waste anyone’s time by going into more detail than necessary about the victim’s bullet wounds.
“Every one was potentially fatal, independently,” Juguilon said, and each one would have killed Bill McLaughlin quickly.
Asked which was the fatal shot, the pathologist said, “If you’re asking me what the most serious one would be, it would be the one that passed through the aorta,” explaining that bullets also tore through the abdominal cavity and lacerated the intestines, pancreas, liver, and vena cava.
When ballistics expert Thomas Matsudaira testified, Angelo MacDonald tried to poke holes in the analysis that the Hydra-Shok bullets could have been fired by only one type of gun, a Beretta 92F like Eric Naposki’s.
“Pretty much anyone can commonly get Hydra-Shok bullets, right? Any Tom, Dick, Harry, or Nanette can get it, right?” MacDonald asked.
Murphy objected, and the judge sustained the objection—twice.
On redirect, Murphy came back with his own form of the question, focusing on the gun itself.
“Am I wrong saying it’s popular?”
“Oh, no, it’s popular,” Matsudaira said.
“It’s available to you, me, Tom, Dick, Harry, or Eric?”
When the defense objected to Murphy’s question, Froeberg overruled the objection.
“That’s based on what’s good for the goose is good for the gander,” the judge said.
Murphy typically started off a trial with a laid-back speaking approach, often talking so low and soft that his voice couldn’t be heard in the gallery. His aim was to make things as simple, fast, and easy as possible for the jury to understand, growing more aggressive when he wanted to make a point or show he was “fired up” on cross-examination. Only then did his tone grow sharper and his questions more acerbic, signaling jurors that he thought a witness was not credible or was being uncooperative.
Murphy usually kept his cool, shaking his head, or staring down at his yellow legal pad as he pondered the next sharp comeback to dispel whatever questions the defense might have raised with the jury. But sometimes his enthusiasm was palpable as he jumped out of his seat to get in a couple last pithy questions to bring his points home. And he almost always got the last word.
After facing Pohlson in the Skylar Deleon trial, Murphy had feared going up against him again, “because he’s so friggin’ likeable.” But Murphy was even more scared that the combination of Pohlson and his co-counsel Angelo MacDonald—“the perfect New York lawyer and the hometown loveable guy”—could be dead
ly.
“I feared that before the trial and my worst fears came true,” he said, referring to the hammering, staccato style of cross-examination MacDonald had mastered, which made him a “tremendous trial attorney.”
A sharp contrast to Murphy’s tall, lean, and athletic confidence during his direct questioning, Pohlson came across more as a humble, stocky Joe Everyman during his brief stints of cross-examination. While Murphy often used biting wit, Pohlson related to the jury by speaking in even more simple language, making self-deprecating jokes about not knowing how to turn off his own cell phone, teasing witnesses—even the judge—to let the jury know that he’d been around awhile. Rarely confrontational, he tended to ask short bursts of questions, not wanting to tax the jury’s attention span.
But both of these attorneys marked a stark contrast to MacDonald, whose more theatrical, New York style was to ask about minute details and to repeat questions to underscore certain points. A man in motion, MacDonald was very animated, pacing around the courtroom, leaning on the defense table, grabbing his lip, and taking his glasses on and off. However, at one point, he asked so many similar questions that Judge Froeberg told him during a sidebar to cut down on the unnecessary and irrelevant ones.
“A lot of questions are being asked of these witnesses, and they’re not the right witnesses, and it’s just . . . it’s getting very tedious,” the judge said.
“Are you telling me that I need to object more?” Murphy asked. “That might be the first I’ve heard that.”
Froeberg said that from his viewpoint, 90 percent of MacDonald’s questions were objectionable, saying he would step in if Murphy didn’t. The judge also scolded MacDonald for putting his hand on the railing separating him from the jury.
After his very detailed cross-examination of Juguilon and Matsudaira, MacDonald explained in the hallway that he was simply trying to educate the jury about guns, bullets, and forensics. This tactic could just as easily be viewed, however, as an effort to show the jury that he was knowledgeable and experienced as he questioned the witness. Either way, he came off as smart and likeable, albeit a little long-winded.
Pohlson continued to score points with the jury for humor, which helped break the tension in the courtroom. After Murphy questioned Lieutenant Craig Frizzell, now retired, about his surveillance of Eric Naposki and Eric’s countersurveillance tactics, such as switching cars with Leonard Jomsky to try to trick police, Pohlson said lightly, “It sounds like neither you nor Mr. Naposki was very good at what you were doing.”
“What do you mean by that?” Frizzell countered dryly in an exchange that evoked some chuckling from the gallery.
Detective Voth, who spent something like nine hours on the stand, was recalled again toward the end of the prosecution’s case, on July 7.
“Did Eric Naposki ever approach you and ask you any questions like, ‘Can we get extra patrols? I’m concerned about my girlfriend. There’s a killer on the loose.’ Anything like that?” Murphy asked.
“No, sir.”
Murphy then had Voth talk about two mailers for credit cards, which were addressed to Eric at the Seashore Drive house, which proved that Eric was, in fact, “living” there, a fact that he has denied to this day.
On cross-examination by Pohlson, Voth testified that he looked through forty or fifty different sets of phone bills for Nanette, and he also asked a manager at the Thunderbird for the nightclub’s phone records. But he acknowledged that he never got Eric’s.
“We asked him a couple of times and didn’t receive them,” Voth said, acknowledging that he never obtained a search warrant to get the records.
“Isn’t that something that you normally, in the course of an investigation of a murder case, would have obtained?” Pohlson asked, following up with a series of questions about other items for which the police had obtained warrants.
“Maybe, maybe not,” Voth said, refusing to give Pohlson what he wanted, which was an admission that it was, essentially, the police department’s responsibility to prove Eric’s alibi for him. “We didn’t put that effort into that particular thing at that time. No, sir.”
During a sidebar with the judge, Pohlson said he wanted to use a page in Eric’s notebook to counter the prosecution’s characterization of Eric as “a money-grubber.”
Murphy disputed that he was trying to characterize Eric that way, contending that the defense was trying to use the journal as “self-promoted character evidence,” such as the defendant’s goal of developing a better relationship with his children.
Trying to block the defense’s move, Murphy said, “I got bad stuff on him for character. We have information he’s worked as a collection agent for a loan shark in New York and was actually arrested for that.”
As far as illustrating Eric’s state of mind or the truth of what he was saying, the judge said he didn’t think the journal was relevant.
Jenny McLaughlin was the last prosecution witness, whom Murphy used to show, once and for all, that the defense’s attempts to raise doubts about Eric being the shooter by casting a shadow over the late Kevin McLaughlin were fruitless and wrong.
“Ever hear your brother say, ‘I’m going to kill Dad’?” Murphy asked.
“No,” she said.
Asked about Kevin’s reaction to his father’s murder, she said, “He was very upset.”
“We’ve heard it a number of times throughout the trial. Did Kevin McLaughlin kill your father?”
“No.”
During his cross-examination, Pohlson tried to put the focus back on Nanette, reiterating that she was the one to steal from the McLaughlin family, not Eric.
“She even took your father’s Babe Ruth baseball, right?”
“She very well may have,” Jenny said.
“Did you ever meet Mr. Naposki?”
“No.”
Then Pohlson switched tactics, asking questions that suggested Jenny had been a pawn used by police to entrap Eric into saying something incriminating, by pretending to be on his side.
Did the police ever ask you to “induce admissions or anything like that?” he asked.
“No,” she said.
When Jenny mentioned that it seemed that Eric got scammed by Nanette, Pohlson asked, “did you mean that or were you just saying that?”
“I was trying to listen to what he had to say. Interpret it.”
Pohlson also tried to show that Eric didn’t actually benefit from Nanette’s financial shenanigans, one of the requirements needed for the jury to find the “special circumstances” allegation to be true.
“Your family or estate never paid any money to Mr. Naposki, correct?”
“Correct.”
Murphy jumped back in to show that the opposite was, in fact, true, and that Eric had thrown veiled legal threats at Jenny over the phone while Nanette was in jail.
“Remember that whole litany?”
“Yes.”
Did Naposki ever call and say, “I’m terribly sorry about your father’s death, or I have a security company, I can offer you guys protection?”
“No.”
Asked if she remembered any times when Nanette went shooting with Bill, Jenny said no.
And with that, the prosecution rested its case.
CHAPTER 39
The day before the defense was ready to start its case, Gary Pohlson and Angelo MacDonald spent that entire Sunday afternoon at the jail with Eric, discussing the pros and cons of him testifying. Murphy, they said, was a very tough cross-examiner. Just look at what he had done during the motion hearing to one of their witnesses, private investigator James Box.
They had debated this question throughout the trial, Pohlson said, “on an almost nonstop basis.” Some days, Eric wanted to testify; other days, he realized he shouldn’t.
While Murphy had tried to show that Nanette had made a patsy out of Eric, who then killed for her, the defense was now going to try to show that Eric had a real alibi and that Nanette was a more likely killer than he w
as. The defense had about eight witnesses lined up, some of whom would be asked to provide testimony that proved it would have been impossible for Eric to commit the murder.
Over Murphy’s repeated objections, Judge Froeberg granted the defense’s motion to allow Box to testify about his knowledge of the telephone call Eric made the day of the crime. Although the judge acknowledged it was hearsay evidence, he said this was a remedy “to somewhat rectify the delay in prosecution,” which he believed was “the fair thing to do.”
That said, Froeberg denied the defense’s request to take the jury on a field trip to view the soccer fields in Walnut Ranch Park. There was no need for the jury to get a feel for the distance between the field and the parking lot, he said, because they already had a phone record in evidence showing a call was made on Nanette’s car phone at 8:24 P.M., immediately after she and Eric skedaddled off the field.
After lunch, Angelo MacDonald gave a sixty-four-minute opening statement, lending a whole new meaning to the words “timeline” and “patsy.”
MacDonald said the defense intended to prove that Eric was innocent, “because he was somewhere else at the time of the murder. He has an alibi that proves he could not—and did not—commit this crime.”
“If you find that Mr. Naposki had an alibi—you must find him not guilty,” he said. “It is an absolute.”
The defense will prove, he said, that Eric and Nanette drove twenty-six minutes from the soccer field parking lot to his apartment in Tustin, where Nanette dropped him off.
“It’s now eight-fifty in the evening,” MacDonald said, “and she’s off, lickety-split.”
After Eric changed clothes, he set off in “his lumbering Nissan Pathfinder” and drove by his friend Leonard Jomsky’s house, heading toward the southbound 55 Freeway. He was about to get on the highway when he got paged, so he pulled into Denny’s on Seventeenth Street, went inside, and called the bar manager on one of the pay phones.
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