“The defense will show there was a call placed at eight fifty-two P.M.,” he said.
In his dramatic, theatrical presentation, punctuated by gesturing and verbal exclamation points to hold the jury’s attention, MacDonald presented a timeline incorporating Eric’s varying claims. But with all the numbers of minutes and time trials being tossed around by the prosecution and now the defense, it may not have sunk in right away for the jury that this timeline lacked credibility. And when jurors applied common sense and basic mathematics to this scenario they decided that it was physically impossible, as the prosecution—and even the judge—would later proclaim.
MacDonald didn’t take into account the time it would have taken Eric to get changed and get in his car before he even started to drive to Jomsky’s house. But MacDonald was a great storyteller, just like Eric.
Eric was the “popular suspect, the patsy,” he said, but you “can’t convict someone on innuendo.”
Eric was, in fact, late for a meeting that evening, the defense attorney said, an eight o’clock session with city officials about parking outside the Thunderbird. (MacDonald didn’t mention that Eric originally had told police that he didn’t have a meeting that night; it was the next night.)
After Eric returned the page from bar manager Mike Tuomisto, MacDonald said, Eric got back on the road around 8:54 or 8:55 P.M. And by then, he said, it would have been impossible to make it to Newport in just thirteen or fourteen minutes, in time to kill Bill McLaughlin.
“I’ll tell you why that particular night, that night of all nights” it was impossible, MacDonald said. “It was a Thursday night. It was a big night . . . the first night of the boat parade,” which translated into heavy traffic congestion.
Giving Eric fifteen minutes to get to the Thunderbird, he said, “gets us to nine after nine, nine-ten.” He added that Eric would have to be “superhuman” to park at the club, cross the bridge, go down the steps to the pedestrian-access gate, which was shrouded in trees and had no lighting, use the key to get in the gate, enter the house, leave the key in the door, drop one on the mat, go into the house, and then shoot Bill, all by 9:10 P.M., when Kevin heard the shots.
Because, by then, the defense will show that “the crime is already done. Someone else had already killed Mr. McLaughlin,” and that Eric had a “solid, simple, logical, reasonable, and compelling alibi,” he said. “He simply could not have done it.”
Nanette Johnston was the real culprit, he said, “an accomplished liar, cheat, thief, manipulator, con woman, and selfish, promiscuous gold digger. . . . When you combine those qualities with pretty, good-looking, in great shape, young, literally with the ability to charm the pants off the man she wants, extremely successful at fooling people, cheating people, taking advantage of people . . . Ladies and gentlemen, the defense will prove that Eric Naposki was just one of the many men she took advantage of. One of the litany of names we heard. One of the gym guys.”
Nanette was the one who “plotted and schemed . . . and she planned the killing of William McLaughlin. . . . She is the only person in this world who had the motive, the means, the opportunity, the knowledge, the wherewithal, the callousness, the dispassionateness, to pull this off.”
Only she knew when Bill was coming home, the extent of Kevin’s disability, and how far away his bedroom was. The dog knew her and wouldn’t attack her. Eric was getting too serious in the relationship, MacDonald said, and “only she knew that he could never keep her in the life that she was accustomed to.”
“The defense will show she had plenty of time to do this,” the defense attorney said.
The crime scene photos of the dining-room table and chairs show that Bill’s papers are not askew, the table has not shifted, he said. “It’s telling us that Mr. McLaughlin got out of his chair to greet someone he knew.”
As MacDonald described Kevin dialing 911, Kim McLaughlin put her fingers in her ears. Once he finished the violent portion of the story arc, Kim returned to doodling with colored pens.
Eric’s alibi and the overwhelming evidence that Nanette “independently and exclusively committed this crime” created reasonable doubt, MacDonald said. The defense will prove that Eric is not guilty, he continued, but it did not have to prove that Nanette committed this crime.
“That’s the government’s job,” he said. But if the jury thought it was possible that she did it, “then that’s a reasonable doubt.”
The government has a lot of power and manpower, MacDonald said. “The question for you is, did they exercise enough responsibility? Because at the end of this case, we’re going to argue that they did not.”
As soon as the defense’s first witness, PI James Box, started to testify, its case began to take a slow and painful tumble.
Box sounded just as sure of himself on the stand as he had during the first part of the “402” hearing, telling Gary Pohlson definitively that he’d seen the infamous “alibi” phone bill, with the 8:52 P.M. call.
Box said his boss, Julian Bailey, asked him to verify that there was a pay phone with that number at the Denny’s in Tustin, and also to verify the Thunderbird’s number, both of which he did.
Box described his drive from Denny’s to the main entrance of Balboa Coves on February 15, 1995, a “driving-experience experiment,” which had taken him twenty-one minutes and forty-seven seconds. This showed him that Eric would have arrived too late to commit the murder.
A major liability for the defense, Box voluntarily fed the prosecution some juicy details. He explained, for example, that the pattern of shots described by Bill’s neighbor, Rosemary Luxton, fit the “double-tap” technique, in which Eric had been trained with the SWAT team.
In the interview with Luxton, Box said, she described that “the popping sound or gunfire was kind of in a uniform pattern,” which she thought was “odd.”
Asked to elaborate, Box said Luxton recalled hearing five shots around 9:10 P.M., but “it wasn’t random, like they were scattered about. It was there were two shots, and then a period of time went by, and there were two shots, and the shots’ sequence just seemed to be uniform.”
Pohlson then asked him to talk about his interview with Mike Tuomisto, the Thunderbird bar manager who noticed there was “a lot of traffic, more than normal traffic,” which he attributed to “the first night of the boat parade.... He told our client that he ought to leave a little bit early, because there was heavy traffic and he may need some extra time.”
“Did he tell you at what time he paged Mr. Naposki?”
“Probably did. I don’t recall off the top of my head.” After Pohlson showed Box his own report, Box remembered. “Shortly before nine P.M.”
Finally, Box talked about his interview with the manager of the Tustin Hardware store, who “told the officers that the silver key could have been made at his store or another one of several Ace stores, either in Orange County or in the nation.”
Matt Murphy, a master of cross-examination, could slide the proverbial knife into witnesses before they even knew it, and get them to look like incompetent idiots or, even worse, liars. As he walked Box through his driving-time route, Murphy was able to show that Box took a completely roundabout way to get to Balboa Coves, insinuating that he did it on purpose to help his client.
“You drove that in twenty-two, sorry, twenty-one minutes, forty-seven seconds. Would it shock you to learn that we’ve driven it eight times and it takes an average of about thirteen minutes?”
“Objection, Your Honor,” Pohlson said. “Mr. Murphy’s testifying.”
They broke for the day, but Murphy was in his element, and it would only get worse when they returned after the Fourth of July holiday.
On July 5, in open court but out of the jury’s presence, Pohlson raised some objections to Murphy’s line of questioning of Box, which prompted the prosecutor to issue a counterwarning, implying that he could make things even worse for the defense’s key witness.
“Jim Box has a horrible reputation,�
� Murphy said. “His reputation for veracity is bad. If Julian’s going to testify [Box is] an honest guy, I can line this hallway with people that are going to come in and say he is not an honest guy, investigators that work with him, people in the DA’s office.”
Enough said.
By the time Murphy had finished cross-examining Box in front of the jury, he’d filleted the defense’s “facts” of the case, along with Box’s memory, his professional standards, ethics, methodology, and overall credibility by implying that the investigator was not only unprofessional but untruthful.
“Was there anything bizarre about the time-space continuum when you drove from Mr. Naposki’s apartment to the Denny’s pay phone?” Murphy asked with his classic sarcasm. “Like Bermuda Triangle stuff, lights in the air, anything like that?”
“No, there was nothing like that,” Box replied.
Murphy took Box through the same exercise as he had at the “402” hearing—“Do you remember whether you actually saw the bill, or if you were just told about the bill?”—as he reminded Box of his previous testimony from just a week earlier, which the investigator said he couldn’t remember.
By his own admission, Box said he sometimes omitted facts from his reports to his boss, and also rewrote them. When Murphy asked if this was because Box knew he was legally bound to give these reports to the prosecution as discovery, Box said no, but his credibility was tainted nonetheless.
Even when Pohlson questioned Box, he couldn’t do much to dispel Murphy’s implications that Box had specifically chosen a longer route in an effort to prove that Eric couldn’t have murdered Bill McLaughlin.
“Would the reason you drove down Superior have been so you could have an inflated number in terms of how long it took you?” Pohlson asked.
“Not really.”
“Was it even some part of ‘really’?”
On recross, Murphy had Box firmly and repeatedly confirm that he was sure the night of the murder was the first night of the boat parade. Pohlson had tried to hint in his questioning that Box had the wrong night, but the judge sustained Murphy’s objection before Box could answer.
After Murphy had solidly made his point, he triumphantly pulled out an official record from the Newport Beach Chamber of Commerce, showing the jury that the boat parade had not actually started until December 17, two days after the murder. He then got Box to admit that if he wasn’t being untruthful, then he was inaccurate—neither one of which was good for the defense. (Murphy subsequently called Raymond Luehrs, a chamber of commerce official, who undermined Box’s credibility even more.)
Murphy also got Box to admit that if Mike Tuomisto said he only had one conversation with Eric, and it was about heavy traffic from the boat parade, then “that conversation didn’t take place on the fifteenth, right?”
“If this document’s accurate, that’s right,” Box said, referring to the chamber record and essentially admitting that if Eric had been paged at all, it must have been two nights after the murder.
In addition, Murphy forced Box to reluctantly admit that, although he’d previously testified that he’d worked only for Bailey on this case, he’d actually fed information in conference calls to Nanette’s attorney as well.
“You even wrote a memo to Barry Bernstein, saying, ‘She still owes me nineteen hundred dollars.’ Do you remember that?” Murphy asked.
“No.”
“Are there ethical problems, sir, when you’re working for two different people at the same time that might have conflicting defenses?”
“If the attorneys have worked out a conflict of interest, no.”
“It just seems to me, sir—and correct me if I’m wrong—you seem to be very sure about things when Mr. Pohlson’s asking you questions and not so sure when I’m asking you questions. Is there any reason for that?”
Murphy’s cross-examination of Box had decimated this witness, and Julian Bailey’s subsequent testimony didn’t help the defense recover all that much.
When the defense submitted a motion for a new trial a year later, it described Murphy’s treatment of Box as follows: Mr. Murphy savagely, unfairly and often sarcastically questioned Mr. Box to the point that would have been a rock-solid claim to an 8:52 phone call in 1995 . . . was now reduced to little more than a punch line.... As a result, every single item that Mr. Box testified on was tainted by this cross-examination and further prejudiced Mr. Naposki.
The same day that Box and Bailey testified, the Casey Anthony verdict of “not guilty” came down in Florida and shocked the nation. A couple of the Florida jurors said in posttrial interviews that they weren’t persuaded by the prosecution’s case of circumstantial evidence, as if it didn’t count.
“Everyone was shitting bricks,” Sandy Baumgardner said, recalling that Murphy had stated that prosecutors couldn’t get a win for months after the “not guilty” verdict in OJ Simpson’s criminal trial came down.
Much of the defense’s questioning of Eric’s friends was geared primarily toward portraying Nanette as a lying manipulator who knew how to fire a gun.
Defense attorney MacDonald called Abbey Shilleh, the head valet at the Thunderbird, who routinely parked Eric’s truck. Shilleh testified that he didn’t remember whether he parked Eric’s vehicle the night of the murder, but said Eric was “later than usual” when he got to work that night. He also said that Eric was considered a manager in charge of security and parking, so it made sense for him to attend the meeting between city and club officials about parking issues at eight o’clock that night, but Eric didn’t make it.
Murphy proceeded to shred Shilleh’s credibility, however, by forcing the valet to admit that he’d recently been convicted of paying a $50,000 bribe to the chief of an Indian reservation and that he’d started his home confinement just a month earlier.
After Shilleh left the witness stand, Murphy hammered the nail home. “Your Honor,” he said, “can I just put on the record, as the witness was leaving, he wished Mr. Naposki ‘good luck.’”
Leonard Jomsky, Eric’s friend and off-and-on roommate, took the stand to recount a trip to the shooting range during which he, Eric, and Nanette shot at targets for an hour, after which Nanette teased him about being a better shot.
After defense witness Rob Frias was called, Murphy used him to poke holes in Eric’s claim that he never moved in with Nanette after the murder, because he wanted nothing to do with her. When Frias claimed that he didn’t know whether Eric was really “living” at Nanette’s house on Foxhollow in Dove Canyon (a neighboring community to Coto de Caza), Murphy reminded the witness of statements he’d made in an interview two years earlier.
“After the murder, Naposki moved into Nanette’s residence in Coto de Caza, and you recall visiting their house for a barbecue, and that they, in fact, lived together . . . and that when you visited them, they appeared to get along well. Remember making those statements?”
Confronted with his own words, Frias had to agree. “That sounds pretty accurate.”
“Wasn’t Mr. Naposki living with her at the beach house for a time too?”
“He might have,” Frias said. “I might have heard that.”
Some of the prosecution’s rebuttal witnesses testified out of order, before the defense had rested, which was a little confusing. These included Larry Montgomery, Tom Matsudaira, who talked about the ballistics testing, and Detective Scott Smith, who was unable to answer certain questions as MacDonald repeatedly tried to poke holes in the NBPD investigation.
But over the weekend, Smith took the initiative to do some research on his own so he could answer those questions when he retook the stand on Monday, which seemed to take MacDonald by surprise.
One nagging debate between the two sides was whether the traffic patterns for Tustin, Costa Mesa, and Newport Beach had changed significantly since 1995, as the defense tried to nullify or at least challenge the relevancy of the prosecution’s recent time trials.
By presenting its contrasting time trials an
d cross-examining the prosecution witnesses, the defense tried to persuade the jury that the prosecution had left out important details that would have added precious minutes to that timeline.
“They’d never even looked at the phones,” Pohlson said later. “They’d never even checked this stuff. They didn’t check records.” He added that the defense also highlighted the failures in the NBPD’s original investigation, such as the failure to interview Mike Tuomisto, which wasn’t done until 2009.
“[Eric] also mentioned ‘Teresmo?’” Pohlson asked Voth during cross-examination. “We now know it’s Mr. Tuomisto. Your whole team never contacted him in 1994 to 1995, correct?”
“I think I left a message on his phone and didn’t get a return call,” Voth said.
In an odd move, given that the defense had apparently scored on that point, Murphy and the defense attorneys entered into a stipulation that if Tuomisto was called as a witness, he would testify that he had no recollection of paging Eric the night of the murder, or any other night, and didn’t know why he would have, because he was the alcohol manager and Eric was the security manager. Tuomisto would also say that he didn’t recall speaking to Eric on the phone, or having any conversation with him before or after December 15, 1995, and that the club wasn’t busy at 9:00 P.M. The club had just opened that October, so he and Eric had worked together only a short time by then.
On July 7, out of the jury’s presence, the defense lost a motion objecting to three areas of prosecution evidence: Joseph Stoltman Jr.’s testimony that Eric had been trained in the “double-tap” shooting method; testimony that Eric was present at all of Nanette’s court hearings related to her 1995 forgery case (meaning that he had to be aware of all the charges against her); and the testimony of Investigator Larry Montgomery, for whom Pohlson coined the nickname “Saint Larry” for his role in resurrecting the cold case.
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