THIRTY-EIGHT
True to his word, Judge Carr pushed hard on the second day of jury selection. He did so by limiting the questions the lawyers asked. If either of them wanted to delve into areas he had already covered, he was not shy about letting them know it was time to move on. By 6:00 P.M. they had selected nine more. This left them needing the twelfth and the four alternates.
“That might be the fastest murder one jury selection of all time,” Barry Cline said to Marc.
It was not quite 11:30 A.M. on Wednesday morning, the third day of the trial. The twelve jurors and four alternates had been chosen, sworn and impaneled. Carr barely finished impaneling them, adjourned until 9:00 the next morning and fled the courtroom. The abruptness of it all caused Marc to look at Heather Anderson with his arms raised and palms up as if to ask her what was going on. She answered by shrugging her shoulders and shaking her head.
“Mr. Kadella, Ms. Anderson would you give me a minute, please?” Carr’s clerk asked as he motioned them up to the bench.
“Hey, Tyrone,” Marc said when the four lawyers got up to the clerk’s desk. “I wanted to see the judge. I have a couple of issues to discuss with him.”
“Sorry, he has a, ah, prior engagement. He wants me to tell you, be in chambers tomorrow morning at 8:00 for any last minute motions.” Tyrone looked at Heather and said, “He wants opening statements in the morning then be ready to call your first witness right away. Sorry,” Tyrone continued, “I just work here.”
As Marc and Barry were returning to the defense table, Marc loosely draped an arm around Barry’s shoulders. “I think his Honor is a bit horny and Shayla Parker is on the lunch menu,” Marc whispered in his ear.
“Don’t say that! That’s disgusting. The image of those two groping around is not something I want in my head,” Barry said and shivered for effect.
Still whispering Marc said, “Think about it. Otis Carr bouncing around on…”
“Stop or I’ll scream!” Barry said while Marc laughed.
When they reached the table Marc quietly told Mackenzie and Maddy what was going on.
“Are you sure?” Maddy asked.
“No, but the kid practically admitted it. I want you,” he continued looking at Maddy, “to get downstairs and see if you can follow him. If you can, get some pictures. If he slips past you, meet us for lunch.”
“Will do,” Maddy said as she quickly grabbed her bag and coat and headed for the door.
On their way back to the office, Barry riding with Marc and Mackenzie with Butch and Andy following, Maddy called.
“Lost him. Sorry. Actually, I didn’t see him come down.”
“That’s okay,” Marc said. “Come over to the office and join us.”
“Your Honor,” Marc began, “I want to revisit a couple of issues.”
The lawyers, absent Barry Cline, were seated in front of Carr’s desk in the judge’s chambers at 8:00 A.M. as ordered. The judge’s court reporter was also present, at Marc’s request, to make a record of this in-camera hearing.
Judge Carr was almost casually seated behind his desk. His robe hung up on a coat stand, his tie loose, wearing a pinstriped dress shirt and slacks. He also looked decidedly more relaxed than he had the day before.
“Your Honor,” Heather started to protest.
Carr held up his left hand to stop her and said, “This is a first-degree murder trial, Ms. Anderson. We’re going to be very careful here. Go ahead, Mr. Kadella, what’s on your mind?”
“Wendell Cartwright, your Honor,” Marc began. “I ask that the court review its decision. Judge, allowing in any testimony about his death is highly prejudicial, has no probative value and even the claim that it shows a pattern is very thin.”
Carr listened patiently, looked at Heather and said, “Ms. Anderson?”
“The only reason there isn’t more evidence is the defendant rushed to have the body cremated. His ex-wives are on our list. They will testify that Wendell Cartwright never said a word about wanting to be cremated.”
Carr sighed and said to Heather, “What about that, the ex-wives? Can we limit it to one ex-wife?”
“If he’ll stipulate that the others will say the same thing,” Heather said.
“Not a chance,” Marc said knowing they all had a serious financial stake and credibility problem. “They have no evidence that Wendell had any unusual drugs in his system and…”
“I’m going to allow it. You, I’m sure, will bring all of this out in front of the jury. I have this discretion and I think it will stand up on appeal. Anything else?”
“Yes, your Honor. I want Mrs. Sutherland’s former lawyer excluded from testifying. She insists on invoking her rights under attorney-client privilege. Also, if he is to be believed, he is a co-conspirator and they have no independent corroborative evidence which is necessary to allow his testimony in.”
“Again,” Carr began using the word ‘again’ because they had been over this before, “he is not a co-conspirator. Your offer of proof that he was romantically smitten by Mrs. Sutherland does not make him one. A fool maybe, but not a co-conspirator. There is no evidence he stood to personally gain from William Sutherland’s death. And your claim that he would have if he left his wife and married your client is too speculative. Do you have any evidence that this was going to happen?”
The only possible evidence of this would be testimony from Mackenzie and Marc had not decided if she was going to testify. In fact, at this point, he was leaning for not putting her on the stand.
“As for the attorney-client privilege and enjoining his testimony because of it, I’m afraid that ship has sailed. It’s already been breached, with Mrs. Sutherland’s permission, when he submitted the original affidavit in which he now claims to have perjured himself and made it public. Of course, Mr. Thomas will have to deal with the fallout from it, but I will allow him to testify.
“Anything else?” he asked of Marc first, then Heather. Both lawyers answered in the negative. Carr looked at the court reporter who understood what came next was off the record.
“I’ll be out in…” Carr swiveled around to check the time from a clock on his credenza then swiveled back and continued saying, “twenty minutes, then we’ll get going. Marc, you gonna make an opening now?”
“Yes, your Honor,” Marc admitted even though he did not have to. As the defense, he had the option of waiting until the prosecution finished presenting their case and give his opening statement then. Because he already decided to give it now Marc saw no harm in admitting it.
“Very well,” Carr said. “I’ll see everyone out front in a few minutes.”
“Greed, ladies and gentlemen,” said Heather Anderson after again introducing herself to the jury and reminding them who she represented, ‘the people of the State of Minnesota’, to begin her opening statement.
“This trial is about one thing and one thing only: greed. That no matter how much money some people have, more is always better. It is about the estate of William Sutherland, twenty-seven million dollars, and who stood to inherit that estate. The evidence will show that only one person stood to gain and that person was Mackenzie Sutherland, the wife of the late William Sutherland, the victim of her greed.
“You’re going to hear a sordid tale about the death of a beloved father, grandfather, father-in-law and employer.”
When Heather said this, Mackenzie, without being noticed, took a slip of paper, wrote a single word on it and slid it across to Marc: Beloved!? Unseen by the jury the corners of Marc’s mouth twitched upward in a suppressed smile.
“A man who worked hard his entire life to build up a successful business. A chain of grocery stores, Sutherland’s, that employed thousands of people, hundreds of whom attended this adored man’s funeral.
“You will hear from the medical examiner that the cause of death was a heart attack,” Heather continued slowly pacing in front of the jury box looking directly at each of the jurors while she spoke. “And that the heart attack w
as not from natural causes. It was brought on by someone introducing a drug, a cancer drug, which if administered improperly can induce a heart attack.
“To be completely candid and up front with you which you certainly deserve, we do not know how this drug was given to the victim. But the evidence will show there is only one person who could have done it. Only one person who had all of the elements necessary to prove guilt beyond a reasonable doubt. Mackenzie Sutherland, the allegedly grieving widow,” she continued with barely concealed sarcasm which almost drew an objection from Marc, “is the only one with means, motive and opportunity.
“And then we come back to the word this trial is all about, greed.
“Mackenzie Sutherland had inherited a fortune from a husband who also died of a mysterious…”
“Objection to the use of the word mysterious, your Honor,” Marc stood and said.
“Sustained,” Carr said.
“Sorry, your Honor,” Heather said knowing the damage was done. “I’ll rephrase.
“Mackenzie Sutherland inherited a fortune, forty million dollars,” – here the jurors snuck a peek at Mackenzie – “from a previous husband in Chicago, Wendell Cartwright. Mr. Cartwright also died of a heart attack. Despite having children and ex-wives to support, Mr. Cartwright changed his Will shortly before his death and left everything to Mackenzie Sutherland, who was using the name Frances at the time.
“You will also hear testimony from a former lawyer of Mrs. Sutherland that William Sutherland changed his Will shortly before his death. This witness will testify that William Sutherland did this, changed his Will and left everything to Mackenzie Sutherland, cutting out his children and grandchildren in an attempt to save his marriage. Or so he was led to believe.
“I’m going to be totally honest so there will be no surprise. Mackenzie Sutherland caught William cheating on her.”
Heather then went on to explain the terms of the prenuptial agreement the Sutherlands had signed and it was Mackenzie who pressured William into changing his Will. William went along with it because he truly loved her and was trying to save the marriage.
She then went on to explain in more detail the witnesses she would call, the testimony of each and the damage Mackenzie did to the family of William Sutherland.
When Heather was talking about the Sutherland family, Marc paid extra attention. If Heather even hinted that Mackenzie was in any way responsible for Robert’s death, Carr had said he would call a mistrial. The shooting death of Robert Sutherland had been the subject of a lengthy and very acrimonious pretrial motion. The prosecution argued the jury should be told in detail about it because even if it was self-defense, it was Mackenzie who had driven Robert to it with her devious machinations and deceitful ways.
Marc won the argument because this act would be extremely prejudicial and offer nothing to prove who may have killed William Sutherland. In fact, the subject was so inflammatory that Judge Carr ordered that not a word of it was to be spoken in front of the jurors. The only time it would be brought up was during jury selection. The judge himself asked each juror if they knew or remembered hearing anything about Robert’s death. The answer he received would be accepted at face value and was not explored further than that.
“At the conclusion of the trial, each side will make a final argument. At that time. I will bring all of the evidence together for you. I have no doubt that when you go back to deliberate and review the evidence and testimony, you will find the defendant guilty. Thank you, ladies and gentlemen.”
When Heather returned to her seat Carr called for a break. Marc, Maddy and Mackenzie stayed at the defense table to confer.
“Even I don’t like me right now,” Mackenzie seriously said.
“Relax,” Marc said with a smile. “We’re just starting. I warned you she would paint you as a scheming murderer. Wait until the closing. It will be a lot worse. Opening statements are supposed to be an opportunity to lay out for the jury what the case is about and what evidence they’ll see and testimony they’ll hear. We have a long way to go. She held some things back that I thought she’d use. Like the computer searches. She must want to use these things for a surprise.
“Do you need to use the bathroom?” Marc asked her.
“Yes!” Mackenzie said. “I have to pee so bad it’s starting to hurt but I don’t want to go out in the hall.”
“How about you?” Marc asked Maddy.
“Well, since you brought it up…”
“Come on, there’s one in back you can use. Follow me and I’ll show you,” Marc said.
THIRTY-NINE
“Greed,” Marc said beginning his opening statement. “Greed,” he repeated. He was standing seven or eight feet in front of the jury box holding his hands together in front of himself slowly looking over the attentive jurors.
Without turning his head, using his left hand, he pointed at the prosecution table. “Greed is what Ms. Anderson wants you to believe this case is about,” he said dropping his left arm. “That would be good for her because greed is an emotional word. It is a very negative, emotional word that most of us are taught is something to avoid. Greedy people are bad and should be punished. It’s even one of the seven deadly sins. Apparently, you should go straight to hell if you are greedy,” he said as he slowly started to pace while keeping eye contact with the jurors.
“The prosecutor wants you to punish my client and find her guilty of murder because Ms. Anderson has decided Mackenzie Sutherland is greedy.”
Taking this approach was, at least, close to objectionable. Marc was making an argument which is supposed to be done during closing statements not during opening. But then, Heather Anderson had done the same thing during her opening. Was she able to provide any evidence that Mackenzie Sutherland was driven by greed to kill her husband? Only by inference.
“Well, ladies and gentlemen,” he continued. “This isn’t about greed or any other emotionally based word she will try to fool you with to distract you from what a trial is really about.”
Marc stopped his pacing, turned and looked directly at the jury. “A trial is about evidence and not emotion. It’s about the prosecution’s duty to present sufficient factual evidence to prove the defendant guilty beyond a reasonable doubt. It’s not about the prosecution tossing you a word,” here Marc flicked his left hand at them as if tossing something, “that she knows you will find distasteful. Greed,” he said again then paused to slowly look at each and every one of them. “Greed,” he repeated. “She’s greedy,” he whispered pointing at Mackenzie. “She’s not like you people. You’re good because you’re not greedy. She’s bad because she is. Find her guilty because she’s not like you. Find her guilty because I say she’s greedy.”
Marc straightened up, took a step back, folded his hands and again held them in front of himself. Shocked that he had not drawn an objection, he silently looked over the jurors again noticing that he had their rapt attention.
“First of all, ladies and gentlemen, you will not hear a single witness or see a single piece of evidence proving my client guilty of being greedy. And even if you did, being greedy is not one of the elements of the crime of murder that the prosecution must prove beyond a reasonable doubt for you to find my client, Mackenzie Sutherland, guilty of the crimes charged.”
Over the next fifteen to twenty minutes Marc slowly paced and stopped, paced and stopped while he carefully, quietly spoke to the jury about the prosecution’s case. Mostly what he did was to let them know that they would find out about flaws in the evidence. Without going over each individual piece of evidence and pointing out the flaws, he simply let the jurors know that there were flaws and he would show them to the jury.
He did this to keep from the prosecution what Marc would bring out during the actual testimony. Why tell the prosecution what he was going to do and give them a chance to fix it ahead of time?
Marc also, again, indoctrinated the jurors in the concepts of innocent until proven guilty, the prosecution’s burden of p
roof and guilt beyond a reasonable doubt. “That is what this trial is about, ladies and gentlemen. Not some emotional word the prosecution has used to fool you.”
As he went over each of these principles, he explained them and reminded each juror that he or she swore an oath to abide by them. He looked each juror in the eye and almost every one of them solemnly, silently nodded his or her head in agreement. Several of them even politely smiled.
Finally, Marc was trying to build an unspoken rapport with them. If this likeable, pleasant, well-spoken, nicely-dressed man believed his client is innocent, maybe she is. At the very least, the juror should do as promised and wait until everything has been presented.
“Keep an open mind, ladies and gentlemen. That’s all I ask. Abide by your oath, wait to make a decision until you deliberate and follow the law as the judge tells you. If you do those things, you will come back with a verdict of not guilty. Thank you.”
When Marc finished, Judge Carr looked at the clock and decided to break for lunch.
As the jury was being led out, Mackenzie squeezed Marc’s hand and whispered, “That was great. Thank you.”
Max Coolidge, being the lead investigator from the beginning was the first witness called. Heather started out by having Max tell the jury about his position as a detective, years on the force and experience investigating homicides. Heather also had enough good sense to get out Max’s personal relationship with the Sutherland family. Better for her to get it all out in a way she wanted to than leave it for Marc to do it. Admit it, discuss it, and move on.
Max explained to the jury that he was approached by the family and asked to look into William’s death. Max claimed he was initially reluctant to do so since there was no evidence that William died other than by a natural heart attack.
“When did you decide to investigate Williams’ death?” Heather asked.
“The children, Bob, Adam and Hailey told me about William changing his Will and leaving everything to his wife, Mackenzie, shortly before his death.”
Marc Kadella Legal Mysteries Vol 1-6 (Marc Kadella Series) Page 208
