“Beyond a reasonable doubt, ladies and gentlemen. The prosecution must prove all of it beyond a reasonable doubt. When we’re finished, probably this afternoon, Judge Carr will give you his legal instructions. He’ll explain to you the elements of each crime charged. It is on the prosecution to prove, beyond a reasonable doubt, each and every element of the charges. If the prosecution fails to prove even one of those elements, beyond a reasonable doubt, then you must, and I do mean must, come back with a not guilty verdict for that crime charged.”
Marc then discussed the weaknesses of the prosecution starting with the investigation. The police focused solely on Mackenzie and did not bother with anyone else.
“Their motive for accusing Mackenzie, greed, was not substantiated by a single witness or shred of evidence or testimony that Mackenzie was a greedy person. It’s a fantasy made up by the prosecution.
“Further,” Marc continued, “The means to carry out the crime. Again, no evidence, no testimony to show how she supposedly poisoned William. And there were other people who had access to William’s computer to do the searches and pharmacies through which the drug could have been obtained, Pharmacies to which Makenzie did not have access. In fact, we showed there were others who had better opportunity and means than Mackenzie Sutherland.
“The health of both William Sutherland and Wendell Cartwright. The prosecution wants you to believe that it is too much of a coincidence that these two men, husbands of my client, could have both died of a heart attack,” Marc said.
Marc walked over to the prosecution table and with his left hand, palm up, pointed it at Heather and Danica. “That’s what they want you to believe. How could this happen, they want you to ask? How can you possibly believe she didn’t murder them both? It can’t be a coincidence that both husbands died from the same thing, a heart attack.”
Marc moved back in front of the jury box and continued. “First of all, ladies and gentlemen, the medical testimony for both men was that they were in terrible physical and medical condition and were walking heart attack victims. As for coincidence, fifteen hundred people die from heart attacks or heart disease in this country,” Marc paused for several seconds, sternly looking them over then said, “…every day! That’s as many as died on 9/11, every two days. In fact, the odds of both of these elderly men in bad physical condition dying of a heart attack are a lot better than the prosecution wants you to know.
“The Wills of William Sutherland and Wendell Cartwright. The lawyer who wrote the new Will for Cartwright testified that, as far as he knew, Mackenzie knew nothing about Wendell changing the Will or the beneficiary of the Cartwright Family Trust.
“The lawyer who testified Mackenzie knew about the changes William made was clearly if not coerced then intimidated into saying…”
“Objection to the use of the word coerced or intimidated,” Heather said.
“Overruled. The jury heard the testimony of Cooper Thomas and they can decide if he was coerced or intimidated for themselves.”
“Coerced or intimidated into saying she knew about the changes to William Sutherland’s Will. No matter how you slice it, he is a liar. He either lied when he signed the affidavit, when he had no reason to lie or, he lied in court after the police interrogation during which they made it clear they were going to destroy his life and possibly put him in prison. And she,” Marc continued referring to Heather, “doesn’t want you to believe Cooper Thomas was coerced in any way.
“Finally, ladies and gentlemen, as a reminder, the defense has no obligation to prove anything. It’s not up to me to prove someone else obtained the cancer drug and fed it to William Sutherland. But we have given you several other people who had motive, means and opportunity, at least as much as Mackenzie Sutherland. Certainly enough to create reasonable doubt that someone else did it.
“Mackenzie Sutherland was wealthy in her own right. She didn’t need William’s money. There were people for whom that was not true. William Sutherland had threatened to cut off the money to at least two of his children. They couldn’t survive without it and they knew nothing about a new Will. For all they knew, if their father died, they stood to inherit millions which would have solved their money problems.
“The lynchpin of their case,” Marc continued turning to look at Heather and Danica, “is the belief that only Mackenzie had access to both computers. Even though, again, we had no obligation to do so, the defense has shown reasonable doubt about that. Adam Sutherland and his good friend Phillip Cartwright, acting together had access to both computers. And they each had the same motive: inheriting money.
“There is reasonable doubt throughout this case, ladies and gentlemen. The prosecution has failed miserably proving Mackenzie Sutherland did this. Do your duty, abide by your oath, obey the law and return a verdict of not guilty.”
FIFTY-TWO
Marc trudged up the back stairs from the parking lot to the second floor. As he did, he stomped the snow off his shoes from the five inches that had fallen during the night. It was almost 11:00 A.M. and he was just now arriving at his office on this Monday morning.
“Any messages?” he asked the secretaries when he entered the suite of offices. Marc was hoping to have received word from Judge Carr that Mackenzie’s jury was in.
“No, sorry, nothing yet,” Carolyn answered him knowing what he was looking for, “Maddy called wondering the same thing.”
“How did your settlement conference go?” Sandy asked referring to the divorce Marc was handling.
“We settled it,” Marc said while hanging up his overcoat.
“Gary happy with the settlement?” Carolyn asked.
“It’s Hennepin County. He’s the husband. Of course he’s not happy. But the good news is his cheating ex-wife was delighted,” Marc said.
“No news on the Sutherland jury?” Barry Cline asked as he came through his private office door into the common area.
“No, nothing since last Thursday when they asked for a clarification on the elements of each charge and reasonable doubt,” Marc said.
“Hung jury,” Barry said.
“Looks like, but which way?”
“Hard to say,” Barry answered him.
About a half-hour later, Marc received the phone call he was waiting for. Or, so he thought. It was Judge Carr’s clerk telling him the jury had sent out a message wanting to see Carr.
“Have they reached a verdict?” Marc anxiously asked.
“Didn’t say. The note just said they wanted to see him,” Tyrone said.
“Hung jury,” Marc quietly said.
“Probably,” Tyrone replied, “but you didn’t hear me say that.”
“What time?” Marc asked.
“1:30. He wants everybody there including Mrs. Sutherland,” Tyrone told him.
“We’ll be there Tyrone and thanks.”
While Marc was on the phone with Carr’s clerk, Mackenzie Sutherland was sitting on a stool at the breakfast island in her kitchen. A package had been delivered to her and while wearing thick, rubber cleaning gloves, she was reading through the contents. The private investigator she hired had done an excellent job. The man came highly recommended from the P.I. Mackenzie used in Chicago. When she finished looking over the photos and reading his report, quite pleased with what he came up with, she placed everything back in the large manila envelope it came in. The rubber gloves were new, never used and a precaution against DNA and fingerprints.
When she finished she hid the envelope on a top shelf in one of the kitchen cabinets. She would keep the contents hidden there until she could figure out how to get to a FedEx office to send the documents to the reporter she had in mind. As she was climbing down from the three-step ladder, her phone rang.
“Hi, any news?” she asked Marc when she answered it.
Marc told her what was happening and the 1:30 court call.
“What do you think?” she asked.
“I think the jury might be hung. They deliberated all day Saturday and I
don’t know why they would want to see the judge if they had a verdict. I think they’re hung up.”
“Is that good?”
“Maybe, we’ll see. Let’s not get ahead of ourselves. How are you?” Marc asked.
Mackenzie took a deep breath which Marc could clearly hear then said, “Stressed. How do you do this for a living?”
“Well, don’t take this wrong, Mac, but it’s not my ass on the line. Maddy will be here in a few minutes then we’ll come by and get you. I’ll call Butch and Andy and have them meet us at your place. We’ll get some lunch then go to court. See you soon.”
“All rise,” Tyrone proclaimed as Carr came out onto the bench.
Marc, Heather and Danica Kyle had spent fifteen minutes in chambers with the judge discussing the jury’s note. Everyone, including Carr, expected to be told the jury was hung up. Marc argued forcibly for Carr to order a mistrial. If that happened, the prosecution would have to decide if they wanted to try the case again. Unfortunately, Marc was a minority of one wanting a mistrial.
Judge Carr was inclined to force the issue and make the jury continue their deliberations even through the upcoming weekend. Heather and Danica were all for that.
Marc, somewhat successfully, argued that if the jury had to go through the weekend they were going to get angry. In that case, there was only one person they could blame and take it out on and that was Mackenzie Sutherland.
Carr said he would hold off on that until he heard from the jury.
“Be seated,” Carr intoned. After everyone took their seats, Carr looked at the jury and asked, “Mr. Foreman, where are we?”
The first juror selected, the retiree named William Stokes, stood to address the judge.
“We’re deadlocked,” Stokes told him with a touch of frustration in his voice.
“I see. Well,” Carr continued, “I’m sorry but that’s not good enough. I understand the difficulty and your burden but I’m going to order you to keep at it. Start over if you have to, but let’s get a verdict.
“Is there anything else?” Carr asked Stokes, the disappointment on his face plain to see.
“No, your Honor,” Stokes said as respectfully as possible.
Looking over all of the jurors, Carr said, “I’m sorry but you’ve only been at it for eight full days. I have to ask you to keep going.”
While the jury was filing out, Carr told the lawyers he wanted to see them in chambers again.
Carr hung up his robe on a coat stand behind his desk while the lawyers took their usual seats. Maddy, Mackenzie and the two bodyguards waited in the courtroom.
Carr took his seat behind the big desk and asked, “How long do you think we should give them?”
Surprised that the judge would even ask for their opinion on this, Marc quickly blurted out, “One more day.”
“Two more weeks,” Heather said.
“I’m thinking it’s Monday today, we’ll give them until Friday. If they don’t come back with a verdict, we’ll see where they are. Have you two talked about a plea?” Carr said looking at Heather.
“My client maintains her innocence, your Honor.”
“I could probably go with first degree manslaughter with no sentencing recommendation,” Heather said. The statement regarding no sentencing recommendation was a clear signal to the judge to go easy to get a deal made. Heather was the one starting to worry about a hung jury.
“What’s her score?” Carr asked Marc referring to her criminal history score.
“Zero, your Honor,” Marc replied.
“I’d go thirty-six months,” Carr said. “She’d be out in twenty-four.”
“Shayla Parker okay with this?” Marc asked.
“I could sell it,” Heather said.
“I could talk to her also,” Carr interjected.
I’m sure you could, Marc thought.
“Does your client want to go through another trial?” Carr asked.
Marc held his tongue, afraid of what wiseass comment he might make. “I’ll talk to her,” Marc said. “Don’t hold your breath,” he said to Heather.
“Is she still in the courtroom?” Carr asked.
“Yes, I’ll talk to her right now if you want to give me a few minutes,” Marc replied.
As he headed for the courtroom he got the distinct feeling he had just been tag-teamed by Judge Carr and Heather Anderson. It annoyed him but he wasn’t surprised. Knowing how cozy Carr was with Shayla Parker this likely came about from a little pillow talk.
Marc brought everyone, including Butch and Andy, the two bodyguards, into the conference room. Maddy, Marc and Mackenzie sat down at the table while Butch and Andy stood along a wall.
Marc told Mackenzie what the offer was then waited for the question they always ask.
“What do you think?” Mackenzie asked Marc.
Marc hesitated for a moment before answering then said, “If they had offered this before trial I would have considered it a huge win. A hung jury is certainly in our favor. But they could decide to try you again. A different jury could…”
It was Andy Whitmore who said it, “Don’t take it. You’re winning by a lot. Sorry, I didn’t mean to…”
“No, it’s okay,” Marc said to him. “You think we’re winning?”
“Yeah, I do,” Andy said.
“Me, too,” Butch added.
“Right now the jury is hung up in your favor. The worst that can happen is the not guilty jurors won’t be able to persuade the two or three that are holding out for a guilty verdict. You’ll see. I’d bet my house, if I had one, on it.”
“Butch?” Marc asked.
“Yeah, I agree.”
“Maddy?”
“The more I think about it, the more I think he’s right.”
“They’re not coming back with a guilty verdict. It’s either gonna be not guilty or hung and I’d bet hung,” Andy said sounding quite sure of himself.
Marc was looking at Andy then he turned to his client and said, “Mac?”
She thought it over for ten to fifteen seconds then said, “I am not guilty and I’m not going to say I am at this point.” She looked at Andy, smiled and said, “Andrew, I hope you’re right. What are the odds that they want to try me again if it is a hung jury?” she asked Marc.
“I don’t know,” Marc shrugged. “It may depend on the vote count. If it leans in one direction, that may decide it for them.”
“I’m telling you,” Andy said. “It’s nine to three or ten to two for an acquittal. Maybe even eleven to one. I spent a lot of time watching them and I think I have them read pretty well.”
Andy stopped and looked over the people in the small room, all of whom were staring at him.
“And boy do I have my neck stuck out,” Andy said breaking the tension and bringing a laugh from everyone.
“Mac,” Marc said again. “I need to go tell them.”
“No,” she said almost defiantly. “We’ll win again if we have to.”
“Okay,” Marc told her while feeling a touch of disappointment at the prospect of trying the case again.
Barely two days later, Wednesday afternoon at 2:00 P.M., everyone was back in court, including the media and court watchers. Marc had received another call from Tyrone, Judge Carr’s clerk telling him the jury, once again wanted to see the judge. Nothing about a verdict.
Maddy and Mackenzie, despite periods of stress between them during the trial, were chatting amiably while they waited.
“I don’t know why, for some reason I’m not the least bit nervous. I should be but I’m not,” Mackenzie told her.
“That’s good,” Maddy replied. “No matter what happens, stay calm.”
“I’ll be okay,” Mackenzie said.
The jury was led in and Marc closely watched each of them for some sign or expression. A couple of them stole a quick glance at the defense table but offered nothing to indicate what they were thinking. Less than a minute after the jury was seated, Carr was in his big chair telling everyone
to be seated. Carr looked over the crowded room and sternly reminded everyone he would not tolerate any disturbances or demonstrations of any kind.
“Mr. Foreman,” Carr said to Stokes who stood to address the court. “Have you reached a verdict?”
“No, we have not, your Honor. I’m sorry but we all agree we are hopelessly deadlocked.”
Carr looked over the jury and asked, “Is that true?”
Twelve heads nodded up and down in concurrence.
He turned back to Stokes and asked, “No further deliberations will help?”
“Your Honor, we have been deadlocked since the very first vote. No one has moved an inch,” Stokes told him.
“What’s the vote?”
“Ten to two in favor of acquittal. Two holdouts for a guilty verdict and they won’t move,” Stokes said being careful not to look at the other jurors for fear he would give them away.
“And this has been true since you began?” Carr asked.
“Yes, your Honor,” Stokes said.
“Take your seat, sir,” Carr politely said. “I’m disappointed but I’m sure you did your best. I thank you for your efforts,” Carr said looking over the jury.
He swiveled his chair around to face the courtroom and said, looking at the lawyers, “I have no choice but to declare a mistrial. We’ll adjourn until 9:00 A.M. Monday morning. The lawyers will meet with me in chambers to set a date for a new trial.” With that Carr rapped his gavel and fled.
Heather and Danica left through the back hallway door. While Marc held off the media mob crowding the rail while Maddy, Mackenzie, Butch and Andy went into the conference room.
Marc faced the reporters and responded to their questions with simple, “no comments.” After a few minutes, the deputies began to herd them out through the exit.
“Does that mean they’re going to try me again?” Mackenzie asked when Marc joined them in the little room.
“I don’t know,” Marc said. “I’m going on Gabriella’s show tomorrow to talk about the expense and waste of time and taxpayer’s money. I can also make it look like this is a personal vendetta by Shayla Parker because it’s an election year. We’ll find out Monday if they are really going take another shot at this.”
Marc Kadella Legal Mysteries Vol 1-6 (Marc Kadella Series) Page 218
