As the prosecutors had anticipated, when Tammy Westbrook appeared at the grand jury in response to the subpoena, she refused to testify. To ensure that she understood that she was under subpoena and legally compelled to give honest testimony, and also to ensure that she understood she couldn't come before the grand jury and tell lies or claim that she didn't have any pertinent information, the attorneys took her through a two-step process.
On the first day, when she declined to testify, the prosecutors took her before a superior court justice, who told her she had an obligation to testify truthfully. He gave her the opportunity to consult an attorney about her rights and obligations and return the following day.
When she returned the second day, they sat her down with her attorney and played her the videotapes of their interviews with Mary Young and Father Basil. As a strategy, this was much more effective than saying to her, look, we know what you've told your friends. Here they were able to present actual visual evidence of what the police already knew, including the friends telling the police how heart-wrenching this knowledge was for Westbrook.
Ordered by the justice to cooperate, and told by her attorney she had no grounds to refuse, she went before the grand jury again on the second day. She was reminded that she had taken a sworn oath to tell the truth the day before and was still under oath. She was also reminded that if she failed to tell the truth, she would be subject to prosecution for committing perjury, making it clear to this mother with two small children at home that she risked being jailed if she didn't cooperate.
The decision to bring the suspect's mother before the grand jury was a difficult one. When calling members of the defendant's family before a jury, there is always a delicate balance to strike between the importance of any evidence the family member may have and the potential for creating animosity toward the prosecution or sympathy for the defense as a result of the family member's ordeal. Often prosecutors choose not to put family members on the stand even if their testimony has probative value, because of the problem of the jury seeing a family member in such conflict and pain. This was a consideration in the Gorman case, but the information Tammy Westbrook possessed was too central to the case. The state couldn't risk letting a murderer walk because calling his mother would cause her pain.
As her testimony began, Fern LaRochelle did the questioning, but once the testimony was under way, no prodding was necessary. Just as they had hoped, Westbrook decided to tell the truth. The story of the phone call from her son and their subsequent conversation came pouring out in a dramatic soliloquy. Fern stepped back and let her go without interruption. The grand jury sat mesmerized as Tammy Westbrook told the story of her son's confession. Don Mitchell, the court reporter, later told the prosecutors that it was the most dramatic thing he'd seen in more than twenty years of such proceedings.
On Friday, February 8, 2002, the Cumberland County Grand Jury returned an indictment. It stated that “On or about the 21st day of October, 2001, in the County of Cumberland, State of Maine, Jeffrey Gorman did intentionally or knowingly cause the death of Amy St. Laurent.”
Chapter Seventeen
In the eleven months between the time he entered his “not guilty” plea and the time that Chief Justice Nancy Mills began to empanel a jury at the Cumberland County Superior Court, Gorman was twice involved in significant violations of jail and prison rules. Not long after he was incarcerated, he was found to have acquired razor blades by substituting foil in a disposable razor. Because of that violation, he was transferred from the Cumberland County jail to the new Maine State Prison in Warren. A few months later, he was again in trouble for trafficking in controlled substances.
But detectives and prosecutors weren't worrying about Gorman's behavior. They were busy putting together an effective case to present at trial. As the principal prosecutor in the case, Fern LaRochelle would receive from Danny Young five notebooks of interview transcripts and activities summaries, each more than 4 inches thick.1 Along with the notebooks came boxes of audio- and videotapes of the many interviews in the case, as well as crime scene photographs, crime scene video, and reports from the state crime lab, the medical examiner, the forensic anthropologist, and a consulting entomologist.
Trial preparation would begin by reading all that material to get the story. The prosecutors’ challenge was to sift through those hundreds of hours of detectives’ interviews and thousands of pages of documents to identify the central story to be told and the best witnesses to tell it. It would involve extensive interviews with the primary detectives, followed by personal interviews with many of the prospective witnesses. All the documents and tapes had to be copied and given to the defense.
It was very important, LaRochelle noted, for the prosecutors to both read the witnesses’ statements thoroughly and also speak with potential witnesses. Often, a police officer will summarize the case and give you the good stuff but won't give you the potential bad stuff, the things about the witness that will trip you up at trial. Sometimes an officer's good relationship with a witness secures a level of cooperation that will fall apart under attack by the defense. The detectives are concerned with producing witnesses with probative information. The prosecutors’ challenge is shaping that information in a way that presents an effective story for the jury.
During the two months leading up to the trial, Fern would spend long hours reviewing testimony and then coming to Portland to interview witnesses at the police station or at their homes. An extremely careful and detail-oriented litigator, his policy was to conduct a face-to-face interview with any witness he was considering calling at trial. It is only by personally interviewing witnesses and running them through their stories that a prosecutor can decide who will be the most effective witnesses at trial. Who will hold up under cross-examination. Who seems like a credible person to bring before a jury.
Sometimes a witness who looked great on paper and had useful probative evidence to offer would prove to be someone who couldn't be shown to a jury, or someone who could easily be taken apart by a defense attorney, or someone who turned out to be so flaky, shaky, shifty, unreliable, or easily discredited because of his or her own history that the witness couldn't be used. Sometimes important witnesses would have become sketchy about important details. Gorman's roommates, for example, appeared infuriatingly fuzzy about timelines on the night Amy disappeared.2
During the trial prep period, Danny Young would come to work on a Monday morning and find a whole series of messages left by Fern over the weekend. Posing questions. Asking for clarification. Asking for Young to arrange for certain witnesses to be interviewed. Meanwhile, Young had been promoted to sergeant and had a new job in the Community Affairs Unit and a new caseload.
A couple months before the trial, the attorneys got a trial date from the court: January 10, 2003. They would need that lead time to read through the reams of documents, interview witnesses, make travel arrangements for witnesses coming from out of state, prepare exhibits, and develop a trial strategy. All the out-of-state witnesses had to be contacted, schedules had to be arranged, and they would have to be flown to Maine and put up in hotels.
Just as it had been difficult initially to get witnesses to come forward and give their statements, now it was difficult to get witnesses to respond in a cooperative manner to the state's need to bring them back to Maine for a trial. Eric Rubright, for example, had left Florida and returned to the Midwest and was being very uncooperative about returning to Maine for the trial. David Grazier and his nowwife, Dawn Schimrich, had moved from Maine to Texas and had job commitments that made returning difficult. To free Fern for other things, Bill Stokes took over that chore.
As the weeks wore on, it became clear that the prosecutors were going to have a problem with Tammy Westbrook. At about the time her son was transferred from the Portland jail to the new prison in Warren, she also moved to Warren. She had been served with a subpoena, compelling her to appear at the trial, but whenever the prosecutors contacted her about comin
g in for a pretrial interview, she would be vague and noncommittal and tell them she'd get back to them. Then she never would.3
This pattern of phone call, explanation, and no response went on for weeks. Finally Stokes called Westbrook and told her that while he recognized her dilemma, she was under subpoena. He told her that they would do all they could to minimize the inconvenience, but they had to speak with her before trial.
Two days later, Bill Stokes got a phone message from Portland attorney Dan Lilley, saying that he now represented Tammy Westbrook. Stokes returned the call on the speakerphone, so that Fern LaRochelle could hear the conversation. Lilley told them that Westbrook didn't want to testify at the trial. Initially, Lilley took the position that the prosecutors couldn't seriously be planning to call his client in Gorman's murder trial as she was the boy's mother. He also asked for a copy of the grand jury transcript.
Lilley was asking for something he didn't have a right to see. The grand jury proceedings were confidential, and he wasn't representing a party to the case. However, after discussion, Stokes and LaRochelle arranged a conference call with Justice Mills and Clifford Strike, Gorman's attorney, and got permission to give Lilley a copy.
After Lilley got the transcript, and after his argument that they couldn't call Westbrook because she was the boy's mother had failed, Lilley contacted the prosecutors again, this time with the news they had long feared. Lilley told them that it wouldn't be productive to call Tammy Westbrook as a witness at her son's murder trial because she didn't remember anything about the phone call in which her son had made his confession. Nor, he told them, did she have any memory of the grand jury process. It was a frustrating, infuriating, and not unexpected piece of news.
Westbrook's testimony about her son's confession was the centerpiece of the story of what happened on the October night that Amy St. Laurent disappeared. The rest of the testimony the prosecutors planned to present would create the factual setting into which her story nested. Stokes and LaRochelle then had to decide what they would do when Westbrook came into court and said she didn't remember anything.
Faced with the possibility that Westbrook's testimony might be a problem, they looked hard at the second witness Gorman had confessed to, Erika Walker. Walker had come up from Alabama to testify before the grand jury, although her testimony was ultimately not used; now she readily agreed to travel to Maine again and make herself available. She was informative and cooperative, and it seemed clear, from what she'd told Danny Young and Scott Harakles during their interviews in Troy including her detailed knowledge about the way that Amy St. Laurent had been beaten and killed, that Gorman had confessed to her.
After she was interviewed by Stokes and LaRochelle, along with Sergeant Young, however, they felt that Mamma E, a tough-talking, profane, hard-edged southern truck driver, wouldn't play well to a Maine jury and that her tendencies to embroider on the story would make her vulnerable on cross-examination.
Here we are, over a year later, heading for a trial. By the time the trial actually arrives, everyone is exhausted from the process, especially the family. I mean really exhausted. In all that time, there can be no closure. No putting it out of your mind. No getting away from the fact that your daughter, your sister has been murdered, and moving forward with the good memories.
I am now a captain in the Patrol Division, far removed from criminal investigation. I face a whole new world of problems, organizational change, and management of a large number of personnel. I feel awkward in my uniform at first. I've forgotten how heavy the equipment is, but in a few weeks, it all feels like old jeans.
I have been away from the case and the developments for a long time, but Amy and her family never leave my mind. I see Danny, Tom, and the others periodically in the building, but we're like ships passing in the night. Danny is having similar experiences in the Community Affairs Unit.
He is taken off that duty to prepare for and attend the trial. He spends hour upon hour of his own time after work getting ready. He understands what a trial means and moves along with hope and trepidation. I can see the worry in his face when he and Tom stop by my office to update me on strategies for the upcoming trial.
“Whaddya mean they're not using Mamma E?” I shout. “That's crazy. She's heard it all. What's Fern doing, Dan?” I blurt out a dozen other questions to them, frustrated because I'm so removed from it all.
“Joe, she's so unstable and unpredictable they're not willing to put her up there,” Tom explains. “Who knows what she'll do?”
“Well, so what! That's when the prosecutor controls her. Let the jury hear what she heard from that freak.”
I am pacing now, all my uniform and equipment bouncing noisily. I'm worried about Fern's quiet demeanor. Fern is brilliant but he's gotta get in there and fight. If there is a theatrical defense by Strike and God knows who else, I want it countered with passion!
Tommy shakes his head as he and Dan explain it will be a joint prosecution by Fern and Bill Stokes. I consider that and think, Yes! A perfect blend of intelligent men. Great team. Fern is soft spoken, methodical, erudite, and experienced. A gentleman. His careful, low-key style is comforting to a jury. They see him as someone they can trust. Stokes is the perfect counterpart—upbeat, animated, quick thinking, energetic, and ready to argue passionately for a point.
As detectives, we're cynical about trials. Pessimistic about the possibilities of justice, of a process that rarely approaches the truth. And we're competitive. We want to win. We've worked our butts off building a case against Gorman and now it's out of our control.
Then Tommy drops a bomb on me. Tammy Westbrook has retained Dan Lilley as her attorney and wants to be excused from testifying, claiming that she doesn't remember anything about her grand jury testimony or her son's confession.
I am angry and frustrated by this news but not surprised. It's par for the course. With trials. With people like Tammy Westbrook.
“Well, Tom, isn't that just magic, huh? What is this, a magic show? What a bunch of bullshit.”
Dan Lilley is a nemesis of our police department. He loves the “show” and I know that's what it will be—a show. I expect he will challenge the constitutionality of information presented by the prosecution and manipulate the whole process until everyone's head spins. A trial is never the entire picture. The jury doesn't hear most of our information. With Lilley involved, it will be even more theatrics and less truth.
With Mamma E deemed unreliable, the prosecuting attorneys were back to Tammy Westbrook, and now they had to consider the challenges they would face trying to get her dramatic grand jury testimony before the trial jury if she persisted in her claim of lost memory. They wanted to get her statements into the trial as substantive evidence of a past recollection recorded, rather than simply using them as prior inconsistent statements to impeach her current “I don't remember” testimony.
The summer before, Fern had done an evidence seminar for attorneys in the attorney general's office, and among his research he'd found the Disher case, which dealt with how to proceed if a witness doesn't remember and you've got it recorded. As part of his pretrial prep, he wrote up a memo on the subject, covering both state rules and the constitutional issues including the Confrontation Clause, to have ready if needed during the trial.
There was also discussion among the prosecutors about whether to call Tammy Westbrook to the witness stand despite her claimed loss of memory. They might simply have taken her claim at face value and introduced her testimony via the grand jury transcript as past recollection recorded. They decided they wanted her on the stand. That decision—to call her as a witness despite her claimed lack of memory—was made in part because the Maine rules of evidence appeared to require her presence. They also felt it was very important to give the jury a chance to observe Tammy Westbrook, understand her dilemma, and assess her credibility, judging for themselves whether she'd had a genuine memory loss or whether it was just a mother's attempt to avoid testifying against her son.
Thus all the detectives went through another holiday season deeply immersed in the Amy St. Laurent case, joined now by Fern LaRochelle and Bill Stokes. The call went out for jurors, and on Friday, January 10, 2003, fifteen months after Amy St. Laurent disappeared, approximately seventy-five citizens of Cumberland County assembled in the county courthouse to begin jury selection in the matter of State of Maine v. Jeffrey Russell Gorman.
Jury selection was scheduled for Friday, January 10. I was on the phone most of the week with Diane, Lucille, and others between my new duties. I promised that I would make arrangements to attend part of the trial. I reassured them about the case, telling them I was very confident with LaRochelle and Stokes trying it.
As the trial is set to begin, Gorman is quoted in the paper, “I did not kill anyone … the jury is going to see I am innocent.”
My stomach clenches as I read it, thinking about what lies ahead for the family. A jury trial is a peculiar, tedious process, a choreographed progression of information unlike anything that average citizens are ever exposed to. Unless you are exposed to society's true violence and horror, as we are, it's extremely hard to understand that human beings are capable of such hideous behavior as rape and murder, especially with the clinical and structured way they're presented in court.
It's not like in the movies or on TV. You never know what you'll get or what will happen. It's easy to plant “reasonable doubt” into the minds of a jury member, especially if there is a theatrical defense. I've seen the show many times over the years, all the things a jury never gets to hear. There's tremendous pressure placed on these ordinary people.
Finding Amy Page 23
