“You may call your next witness, Mr. Shepherd.”
One of the hardest things to do in a criminal trial is to rest. It's the prosecutor's burden to prove its case beyond a reasonable doubt. That means I was free to sprinkle doubt all over my cross-examination of their witnesses. Sometimes calling your own witness can do more harm than good and lead the jury to believe things that they might have doubted before. It's why I had decided not to call a scientist of my own since I'd gotten all the facts that I needed through Victoria’s. And it was why I thought the only thing I needed to do was show more positive evidence that Richard Phillips had been exercising his own free will on the night he died. I thought—I was pretty sure; I was almost certain—that we had done enough.
“Your Honor,” I said. “The defense rests.”
“Very well, Counselors. We are a little early, but this seems like a good time to break for the day and we can do jury instructions and closing arguments—”
Victoria stood. “Your Honor, we have a rebuttal witness.”
I really didn’t like where this was going, but I had a guess, and I couldn’t let the jury hear any of it. “May we approach, Your Honor?”
Judge French waved us up.
When we got there, I said quietly, “Rebuttal to what? All we put on were additional witnesses who saw Ms. Vila and Mr. Phillips at the wedding. The prosecution has literally called more than a dozen witnesses on that.”
“Who do you intend to call, Ms. Lance?” said Judge French.
“Your Honor, the prosecution will call Nick Heyward.”
I kept a straight face and it was honestly the best poker face I’ve ever given. Nick Heyward. Liselle Vila's high school boyfriend.
The one she had danced with until he almost died.
45
“Your Honor,” I said. “It's getting close to the end of the day. Perhaps we could have a discussion of this witness in chambers?”
Judge French raised his eyebrows. “What is this witness for, Ms. Lance?”
“He's a rebuttal witness, Your Honor.”
“I understand that. I didn't see much to rebut in Mr. Shepherd's case, though. What’s he testifying on?”
Victoria glanced sidelong at me before she said, “Mr. Heyward is going to testify about certain events in Ms. Vila's past.”
“You’re going to have to be more specific than that, Ms. Lance.”
Victoria turned and stared at me for a moment. “You know, don't you?” she said.
“Know what?”
Victoria turned back the judge. “Mr. Heyward is going to testify that Ms. Vila danced with him until he was hospitalized and almost died.”
“Go to back to your tables,” said Judge French.
As I returned, I saw Nick Heyward sitting in the back of the courtroom, a square-jawed, blond-haired man in an ill-fitting, blue sport coat with a checked shirt and a striped tie. From the rigid way Liselle was staring straight ahead, I guessed that she'd seen him too.
Judge French said, “Members of the jury, as I mentioned before, we’ve reached a place where I think that we will break for the day. We are coming close to the end of the case and I expect that we may have one more witness tomorrow and then we will conclude the case and you can begin your deliberations. I ask that you please refrain from speaking to each other about the case and wait until I have charged you to begin your deliberations. In the meantime, have a good evening and I will see you back here at eight o'clock tomorrow.”
Judge French banged his gavel and the jury rose and left. As they filed out, Judge French stood, looked at us, and pointed to his office.
I put a hand on Liselle's shoulder. “Are you okay?”
She nodded but didn't say anything.
“I don't want you to speak to him, do you understand?”
She nodded again.
“It's very important. Not a word.”
She nodded a third time.
“Danny, take Liselle back to the office now. Don't even stay here to collect your things. I'll get them and bring them back with me when we're done.”
Danny nodded and corralled Liselle and, together, the two of them left. I noted with approval that Danny stayed between her and Heyward on the way out.
I hurried into the judge's office and took a seat with Victoria in front of the judge's desk.
“Explain yourself, Ms. Lance,” said Judge French.
“Your Honor, Nick Heyward is going to testify that some years ago in Missouri, Ms. Vila kept him dancing until he ended up in the hospital and almost died.”
I started to speak but Judge French raised his hand. “You're going to have to be more specific than that, Ms. Lance.”
Victoria nodded. “I don't want to speak for him, Your Honor, but I understand that Mr. Heyward and Ms. Vila dated for a time. After they broke up, they ended up at a party together and took ecstasy along with a group of other teens. While there, they danced for hours and Ms. Vila gave Mr. Heyward so much water that he collapsed and almost died from water intoxication. He was taken to the hospital and, fortunately, they were able to adjust his electrolyte levels in time to save his life.”
“Why in the world would you think that I would allow that testimony in this case?” said Judge French.
“Two reasons, Your Honor. First, it shows a pattern of conduct. Second, Mr. Shepherd opened the door.”
“How?” said Judge French.
“When Mrs. Maddox told the jury that it was impossible to dance someone to death.”
I smiled. “Are you suggesting that Nick Heyward is dead?”
“No. I'm stating that if it were not for emergency medical intervention, he would be.”
Judge French nodded. “Mr. Shepherd?”
“There are all sorts of problems with this, Judge. First, if the prosecution was really seeking to enter evidence of a pattern, they should've done it in their case-in-chief, not try to shoehorn it in with an undisclosed witness after our case is done.”
Judge French looked at Victoria.
“The testimony of Beverly Maddox opened the door,” she said again.
“Beverly Maddox is a chatty gossip, not a forensic expert,” I said. “I wasn't using her as an expert to say it wasn’t possible to dance someone to death. It was an offhand comment.”
“Which I have a right to address,” said Victoria.
“You have other objections?” Judge French said to me.
“I do. This conduct supposedly happened in high school. I assume these are juveniles we’re talking about. That's hardly relevant to conduct some fifteen years later.”
“What else?”
“It's not at all the same situation. I believe the testimony will reflect that the kids had taken ecstasy and that all of them were worried about dehydrating and so all of them were taking steps to avoid it when Mr. Heyward accidentally overhydrated. Unless Ms. Lance is going to present evidence that Ms. Vila was convicted of some sort of crime related to this incident, it seems like awfully vague and unconnected evidence to be entering in this murder trial.”
“Was there a conviction, Ms. Lance?” said Judge French.
“No.”
“Were any charges filed?”
“No, Your Honor.”
“Anything else, Mr. Shepherd?”
“Even if this were relevant, which it is not, this evidence of an accident fifteen years ago is unfairly prejudicial and has to be excluded.”
“Ms. Lance?”
“Judge, before I took this case, I would've agreed with Mrs. Maddox that you can't dance someone to death. But this has happened to Ms. Vila not once but twice. It can't be a coincidence.”
“First of all, it's only happened to her once,” I said. “Second, that kind of haphazard linkage is exactly why this is prejudicial and has to be excluded.”
Judge French took his glasses between his thumb and his forefinger, straightened them on the bridge of his nose, and stared at us, expressionless. Finally, he said, “I'm going to consider this overnight. Be here at
eight o'clock and I’ll give you my ruling. Is there anything besides Mr. Heyward's proposed testimony that's left?”
“No, Your Honor,” we both said.
“Fine, then he will either testify or not and then we’ll move on to instructions and closing. Have you thought any further about a plea deal?”
“We’ll accept dismissal of all charges,” I said.
“We'll accept a plea to first-degree murder,” Victoria said.
Judge French sighed. “One of you is going to be disappointed. I still encourage you to see what you can do.” He waved a hand. “I'll see you both in the morning.”
We stood and walked out of the judge's office. I stood aside and let Victoria go through the door first. She stopped as soon as we were out of the judge’s hearing. “You know it can’t be a coincidence,” she said.
“Of course it is,” I said. “And you know you're stretching because you have no motive and no murder weapon.”
“And you know I'm not because she did it on purpose.”
“You’ve been talking to billionaires too much, Vicki. All that money clouds their perspective.”
And that was about as much conversation as we cared to share. The two of us gathered our things and headed out. I saw her associate standing with Nick, speaking to him softly. As I passed, I waved, and he looked at me and nodded. Victoria stared at me, hard.
I didn't care. I left.
A short time later, I was sitting at the conference room table eating an Arby's turkey club across from Danny and Liselle. “What do you think the judge is going to do?” said Liselle.
“I don't know so I have to be ready in case he testifies. Is there anything else you haven't told me?”
“What do you mean?”
“How bad was your break-up?”
“What?”
“I said how bad was your break-up?”
Liselle looked at me without a flicker of emotion. “No break-ups are good.”
“I understand that, but I need to know if Vicki is going to get anything out of Nick that would surprise me.”
“There might've been some late-night calls.”
“After you broke up?”
“Yes.”
“And?”
“I might've keyed his truck.”
“You're joking.”
“I was angry. But we were getting along better by the time of the party.”
“Anything else?”
“I told you everything. I was worried that he would dehydrate. Until you told me it was hyponatremia, I didn't know and just assumed that it was dehydration that made him collapse.”
“Danny—”
“I know. Research the admissibility of prior similar acts and put together a bench brief for why those acts should be excluded so that you can give it to the judge in the morning.”
I smiled. “I don't know who trained you but he did a damn fine job.”
Danny smiled. “Some jerk.”
“I need to get to work on this cross-examination and closing. Danny, can you call Olivia and arrange for a ride for Liselle?”
“I can wait until you’re done,” said Liselle.
“Not tonight, Liselle. It's going to be late.”
She looked down. “Okay.”
I left the conference room then turned around and came back in. “It's okay,” I said to her. “Get some rest.”
She nodded and that time I really did leave. From my office, I could hear Danny call Olivia and saw Liselle go into the spare office and work on her file for about half an hour until Danny hollered that Olivia was there. She turned off her tablet and waved to me as she left.
I spent most of my time fine-tuning my closing. In doing so, I came to one conclusion: if Judge French let Nick Heyward testify, we were fucked. No juror was going to believe that both incidents were an accident. We had to keep Nick Heyward out if we were going to win.
Danny gave me a copy of the bench brief before he left for the night. I looked it over and decided that the cases were enough to give the judge a reason to rule our way if that's what he was inclined to do. It seemed to me, though, that there were a couple of other cases that would allow him to rule against us too.
I finished the brief, finished the closing, and drove home.
The house was dark and it was quiet and just a little bit cold for early June. I went straight to my bedroom and slid into bed. The Nick Heyward issue didn’t help me sleep but, since it was trial, it didn't prevent me either and I closed my eyes.
A second later my alarm went off. Or at least it seemed like a second. I got ready and went straight to court. I arrived at seven o’clock and had to wait for the Judge French’s bailiff Marty to open the courtroom doors. As soon as they were unlocked, I handed Marty the brief Danny had written to exclude Nick Heyward from testifying. When Victoria showed up a short time later, I handed her a copy too. She smiled, handed me a copy of the brief she'd written last night, and gave a copy of hers to Marty. I leafed through it and saw that had she essentially cited the same cases as me but in reverse order.
“I guess we'll see,” I said.
“I guess we will,” she said. And the two of us sat down to wait.
At seven fifty-five, Judge French called us back to his office. The court reporter was poised next to his desk, ready to type. Once we sat, he nodded to the court reporter and said, “We are on the record here in the matter of State versus Vila. The State seeks to call a witness who will testify to an incident that happened approximately fifteen years ago in Missouri in which the defendant Liselle Vila danced with the witness and that witness collapsed and was hospitalized. The Court has reviewed briefs from both parties as to whether this testimony should be permitted. Having reviewed the cited cases and having conducted research of its own, the Court has determined that it will exclude the testimony of Nick Heyward. This witness was not disclosed by the prosecution but, more importantly, the incident he would testify to is remote in time, does not establish an unlawful pattern or practice on the part of the defendant, and frankly is far too attenuated to be of relevance to this proceeding. Even if it were relevant, the Court finds that it would unfairly prejudice the case against Ms. Vila. For that reason, Nick Heyward will not be permitted to testify today.”
“Your Honor, may I proffer his testimony for the record?” said Victoria.
“You may,” said Judge French.
Victoria then summarized for the court reporter the things she would have asked Mr. Heyward and what he would have testified to. I reiterated my objection that none of that would've been relevant to this proceeding.
When she was finished, Judge French said, “You've made your record. Do you intend to call any other witnesses?”
“I do not, Your Honor,” said Victoria.
“Very well then. Are you prepared for closing?”
“I am, Your Honor.”
The judge looked at me.
“Yes, sir.”
“Very well,” said Judge French. “Time for closing arguments.”
46
I whispered to Liselle and Danny that the Court had ruled our way, that Nick Heyward would not be testifying. I'm not sure which one looked more relieved and I didn't have time to figure it out since the judge immediately began to speak.
“Members of the jury, thank you for your patience this morning. We had to take care of a few housekeeping matters. I know that at the end of the day yesterday we said that there may be another witness but, due to some rulings from the Court, there will be no more testimony. You are not to make any assumptions based on the fact that this witness will not testify as we have ruled that his testimony is not relevant to either side of the case. At this time, the lawyers will present you with their closing arguments. Ms. Lance, is the State ready?”
Victoria stood. “I am, Your Honor.”
“You may proceed.”
“Thank you, Your Honor.” Victoria looked thoughtful as she walked up in front of the jury and her stance was easy and relaxed as
she said, “Liselle Vila killed Richard Phillips. She gave him a drug that blocked his medication. She gave him food and drink that spiked his blood pressure. And then she danced with him until he died. And she did all of it on purpose.”
She walked a little to one side. “This is an unusual situation. We don't normally see something this devious and so it took the police a while to figure what evidence to gather and then it took my office a little while more to put it all together but once we did, it all fit. The method she used was unusual, but it's no different than if Liselle Vila had pushed Mr. Phillips into the water and then stood by and watched him drown. It's no different at all.”
“You heard the evidence. Ms. Vila is a trained biologist. As part of her training, she took classes that specifically taught her about the effects of St. John's wort. You heard her professor say that Ms. Vila was a gifted student who learned that St. John's wort prevents beta blocker medications from working. And that's exactly the kind of medication that Mr. Phillips was taking when he was killed.”
Victoria clicked her remote and a picture of the medication bottle went up on the screen. “There it is sitting right next to the bathroom sink in the hotel room Ms. Vila shared with Richard Phillips. Right where Detective Pearson found it. Liselle Vila knew Richard Phillips was taking this medicine. She knew the St. John's wort would block it. So what did she do?”
Victoria paused then said, “She prepared a special tea for Richard Phillips that had fifteen times the normal dosage of St. John’s wort in it. Fifteen times.”
Victoria pointed at me. “Now, Mr. Shepherd might argue that Ms. Vila didn't know that Mr. Phillips was taking a beta blocker. That’s not believable. There it is, right there, right there on the sink next to her toothbrush. Right there in her hotel room where a police detective could see it from the hallway.”
“But even if you doubt that, we know what else she knew, what she knew for sure. Ms. Vila knew that there are certain things you can’t eat or drink when you take St. John's wort. You can't drink red wine and you can’t eat aged meats. Why? Because it'll spike your blood pressure like a rocket.”
True Intent Page 29
