by Ray Flynt
As had been his habit for much of the trial, Brad arrived early and went for breakfast at the Court House Diner. He studied the omelet choices that morning but felt his stomach churning and ordered only an English muffin and coffee.
Jurors had been told to expect to receive the case that day, and Brad wondered how long it might take to render a verdict. Most of the jurors seemed level-headed, but who knew what would happen when they were locked in a room for hours at a time?
Brad saw another TV truck arrive from his window vantage point—this one from the NBC affiliate station in Lancaster. Perhaps Lancaster was having a slow news day, or reporting on a murder verdict gave enough of a ratings boost to make up for their hour and fifteen-minute drive.
Also spinning in his head was the news that Sharon had texted him the night before about Maggie Tetlow’s responsibility for her husband Martin’s death. When Sharon asked if he had any advice about breaking the news to Rachel, Brad replied, “Gently.” In a separate message to Sharon he’d commended her on a great job, adding, “I think I’ll keep you around.”
Jurors entered Courtroom A at precisely 9 a.m. Brad thought the female jurors, in particular, had dressed a bit nicer for that day’s session. He wore his usual knit sweater and dress slacks. Only Jerry habitually donned a suit.
Once again, the gallery seemed packed, and it looked like a few folding chairs had been added to accommodate the reporters who sat in the gallery behind the prosecution table.
The court crier bellowed, “All rise,” as Judge Whitaker exited his chambers and took his seat on the bench.
“Good morning,” the judge said. “Mr. Asher, you may call your next witness.”
“Thank you, Your Honor, the defense calls Carmelita Diaz to the stand.”
The name of the missing housekeeper caused a bit of a stir in the courtroom. Asher had made her name his mantra in his quest to sow seeds of reasonable doubt.
As Ms. Diaz entered the courtroom, Diane Cunningham stood. “Your Honor, for the record, I would like to renew my objection to the testimony of this witness due to her last-minute appearance on the defense witness list.”
“Your objection is noted for the record,” Whitaker said, “and remains overruled.”
Carmelita Diaz stood to take the oath. Brad thought she looked about forty, with jet-black hair and a caramel-colored complexion. After she had been sworn, he noticed that she crossed herself before taking a seat.
Asher approached the witness. “Buenos dias. Good morning.”
Ms. Diaz smiled and said, “Morning.”
“Are you comfortable if I ask you questions in English?”
“I understand okay,” she said.
“Where were you employed on March 4th of this year?”
“At the Nesbits’ home. Genevieve and David.”
“Do you recognize David Nesbit in this courtroom?”
“Yes. He’s sitting there.” She pointed and smiled.
Brad noticed that David Nesbit grinned broadly in return.
“What were your duties—your work responsibilities—at the Nesbits’?”
“Housekeeper.”
“How long did you work for the Nesbits’?”
She stared at the ceiling as if trying to remember. “Two years.”
“Tell us about the last time that you saw Genevieve Nesbit alive.”
“It was on Friday before she died. She told me that she was going out, and not fix lunch.”
“Did she say where she was going?”
Ms. Diaz looked puzzled. “Landscapers, maybe. Yes, I think that’s it.”
“Did you work on the weekends?”
She shook her head. “No.”
“Do you remember what you found when you came to work on Monday, March 5th?”
“Ms. Nesbit left a note saying ‘out all day.’”
“Was it a hand-written note?”
“Yes.”
“And you recognized Genevieve’s handwriting?”
“Yes.”
“Did you keep the note?”
“I throw away.”
“What else did you see on that Monday?”
“Kitchen a mess. Glasses and bottles. Look like been a party. Drink spilled on counter.”
“Were there bottles of alcohol?”
“Yes. Tequila, whiskey, and margarita mix.”
“You cleaned up the mess?”
“Yes. Put glasses in the dishwasher, put away crystal… ah, licorera. How you say…?”
“Decanters?” Asher offered helpfully.
Cunningham stood. “Objection, Your Honor. Leading the witness.”
“I’ll allow it,” Whitaker said.
“Are you describing decanters?” Asher repeated.
“Yes. Decanters.”
“How many glasses did you find on the counter that morning?”
“Three,” Diaz said. “Two margarita and one whiskey.”
“Do you remember the day you found Genevieve’s body in the freezer?”
Diaz shuddered. “I never forget.”
“Can you tell the jury why you disappeared after that day?”
“Worry about my status. I had green card when I first come to this country, but it expire.”
“Where did you go?”
“My brother in Juarez.”
“That’s Juarez, Mexico, correct?”
“Yes.”
“When my investigator located you there, you agreed to come back willingly and testify?”
“Yes.”
“Thank you, Ms. Diaz. No further questions, Your Honor.”
Whitaker turned to the prosecution table. “Your witness, Ms. Cunningham?”
Cunningham stood. “Ms. Diaz, you testified that you did not work on weekends, is that correct?”
“Yes.”
“So you have no idea when the mess—with the bottles and glasses—that you found on Monday morning may have been made, is that right?”
Carmelita Diaz nodded before saying, “Yes.”
“No further questions, Your Honor.”
“Any additional witnesses, Mr. Asher?”
“No, Your Honor. The defense rests.”
“Ladies and gentlemen of the jury,” Whitaker said. “We’ll take a fifteen-minute break.”
Brad stopped to use the restroom. By the time he made his way toward the marble staircase, a commotion had broken out at the opposite end of the hall. He saw Francine Holt hurling accusations at Carmelita Diaz—the details of which he could not make out. The fracas drew the attention of tipstaff who tried to keep jurors at a distance. Brad noted that Eric had stepped between his wife and Ms. Diaz to quell their spat.
In a matter of seconds, deputies from the sheriff’s office also converged on the scene. A deputy took Francine Holt by the arm and pulled her away, directing her and her husband to a nearby elevator. By that time, tipstaffs were herding anyone with a juror’s badge toward the small conference room. As a result, Brad was denied his much-anticipated breath of fresh air during the morning break.
When court resumed, the first thing Brad noticed was that Francine and Eric Holt were not in their usual seats behind the prosecution.
Judge Whitaker explained that it was time for the prosecution and defense to make their closing arguments. The defense would go first, followed by the prosecution. “Please understand that what the attorneys say is not evidence and should not be taken as such. They are providing their views of the case and the testimony presented. As jurors, you will make the sole determination of what the facts are in this case.” Whitaker then said, “Mr. Asher, you may address the jury.”
Shane Asher approached the jury box. During their questioning of witnesses, he and Cunningham had been a study in contrasts. Cunningham built her case brick by brick, while Asher tended to be more dramatic—preferring to hit the occasional ace with power serves over the net, so to speak.
Asher stood directly in front of the jury box—making eye contact with each juror, Brad noticed. He
spoke without notes.
“Let’s talk about Sunday, March 4th of this year,” Asher began. “A man enjoyed an early supper with his wife at one of their favorite restaurants, after which she drove him to the airport for his week-long business trip overseas.
“When David Nesbit was contacted by the police, you heard the shock in his voice as he first learned of his wife’s death. In that unguarded moment—thanks to a police recording—David went on to describe the events of March 4th. He told of dropping off his luggage at Lufthansa Airlines and finding a place to work on his presentation for the conference.
“We produced a young woman who remembered him as a customer at the airport’s Wi-Fi Express. It turns out that was her last day there, and she remembered David Nesbit. She said he was at her store for more than an hour. She even knew what he’d had to drink, because she didn’t have much call for hot chocolate with cinnamon and raspberry syrup. She remembered him just as readily as you’ll be able to recall—six months from now—that witnesses’ odd combination of blue, orange, and green braided hair.”
This observation aroused a few snickers from the spectators.
“Let’s review. Genevieve Nesbit drops David at the airport at about 6 p.m. Let’s call it a half hour for him to make his way to Lufthansa and check his bag. By 6:30 p.m. he’s in search of an Internet café, where—thanks to Roberta Peshey—we know that he worked until at least 8 p.m. when she went off duty.” Asher held both hands up in the air. “Yes, I know. There’s that question of the 7 p.m. punch out on the time card. But Ms. Peshey’s response was very believable… a boss who doesn’t want to pay overtime…” Asher’s voice dropped to a stage whisper. “…and the details were more indelible in her mind because it was her last day on that job.
“David Nesbit reviewed his conference presentation at the Wi-Fi Express until sometime after 8 p.m. and passed through airport security at 8:58 p.m. He would not have had time to commit the horrible crime of which he has been accused.”
Asher seemed to lock eyes with Elaine, and Brad swore she dropped a stitch in her crocheting.
“What else did we learn from David’s police interview? He reported that his wife had ‘plans’ for the evening and could only take him to the airport if they arrived by 6 p.m. Thanks to the testimony of Carmelita Diaz, we now know that those plans included alcohol. Three glasses worth.” Asher held up three fingers. “Sounds like a party to me. And one that may have turned deadly, which sounds like reasonable doubt to me. We have no way of knowing how many times those glasses were refilled. But the coroner’s office informed us that Genevieve Nesbit’s blood alcohol level was 0.078—just shy of the .08 level for legal intoxication.
“Detective Cordes, in discussing the scene of the crime, wants you to believe that the defendant dragged Genevieve Nesbit’s body from the master bedroom to the garage. But he could not document any drag marks on the carpet in the bedroom. While Dr. Dirham told us—in her medical opinion—that injuries to David Nesbit’s back would have made it impossible for him to carry a 135-pound body and lift it into the freezer.
“Now, let’s talk about Heather Sanders, a woman whom all the king’s men and the Lower Merion Police Department have been unable to locate.”
Brad resisted the temptation of raising his hand to share his information.
“Sightings of Heather, allegedly with a man named ‘David,’ were from Holden Reed—a tenant with proclivities to spy on neighbors through the peephole of his apartment door. Mr. Reed’s description of the circumstances in which he saw a man in the elevator with Heather make it impossible to believe that he could have recognized David Nesbit.”
Asher gestured toward the defense table. “At every turn my client cooperated with the police. He is horrified by the murder of his wife. And the facts of this case stir enough reasonable doubt that I ask you to find the only fair verdict in this case—not guilty.”
Asher returned to his seat, and Brad noticed him pat David Nesbit on the back.
Judge Whitaker turned to the prosecutor. “Ms. Cunningham, you may give your closing argument.”
Diane Cunningham carried a yellow legal pad as she marched toward the witness stand and stood with her back to it. From that vantage point, she could see the jurors as well as the defendant and spectators. Cunningham wore a burgundy wool suit with a contrasting pink cotton blouse.
“Mr. Asher is a brilliant orator,” she began. “We’d all prefer to drive on straight highways when the sun is high in the sky. But real life isn’t like that. Our highways have rough patches and curves. And we have to think ahead when we travel. Sorting out information in a murder trial is a very similar process.
“Ladies and gentlemen, you have a solemn responsibility and a duty to bring justice in this case.” Her voice sounded intense. “On March 4th of this year, David Nesbit brutally murdered his wife in a pre-meditated attack, then dumped her body in a freezer to disguise the time of death. Afterward, he summoned a taxi for a return trip to the airport and fled the country. He hoped that when her death was discovered he would be thousands of miles away.”
Cunningham consulted her legal pad.
“The time required to commit the crime would not have been long. Death from asphyxiation would have occurred within a matter of minutes, with only a little more time required to wrap his wife’s body in a blanket and move it sixty feet to the freezer in the garage.
“In spite of David Nesbit’s efforts to disguise the time of her death, thanks to forensic science we know when Genevieve died.”
Cunningham signaled to her assistant, Holbrooke, who activated a PowerPoint presentation on the video monitor. The first slide was labeled, “Time of Death.”
Brad could now see why Cunningham had stood in front of the witness box, it positioned her between the jury and her visual aids.
“You’ve heard conflicting expert,” Cunningham made air quotes with her fingers, “opinions as to exactly when she died. One said ‘two to three hours’ after ingesting her final meal, while another said ‘three to four.’”
“Use your common sense. We know that the Nesbits’ paid for their meal at Porcini’s Bistro at 5:28 p.m. on March 4th. Allowing for after dinner coffee, it is reasonable to conclude that they finished their meals at 5:15 to 5:20 p.m. Three hours later a taxi was summoned to transport David Nesbit from One Feldman Place to the Philadelphia International Airport. Three hours, ladies and gentlemen! A time that fits within the estimates of both experts.” Cunningham pointed at the slide on the monitor that portrayed in graphic form what she had just described.
“And then you witnessed David Nesbit on video as he passed through the airport’s security gate at 8:58 p.m.”
A second slide showed a still photo of Nesbit at airport security.
“This was not a crime of passion, but well-planned to coincide with his business travel to Tripoli.”
“And what did Nesbit do in the months prior to the homicide? He secreted his girlfriend in an apartment paid for by his PayPal account. A computer expert testified that the payments were made from his computer. And, as we heard in testimony, David Nesbit was seen visiting his mistress while she stayed in that rented apartment.”
Other slides appeared as Cunningham worked her way through the essence of the Commonwealth’s case: The floor plan of Heather Sanders’ apartment, the 5:28 p.m. time stamp on the receipt from Porcini’s Bistro, the Nesbits’ extensive bank accounts, and the taxi dispatch request.
Briefly, a slide appeared of Genevieve’s blanket-wrapped body stuffed in the freezer. The image dissolved to the photo of Genevieve that Cunningham had first shown during her opening statement.
“Ladies and gentlemen, two weeks ago I told you that this case was about justice for Genevieve. In just a little while, you’ll be able to provide that justice by convicting David Nesbit of murder of the first degree in the death of his wife.”
Brad saw Layla, in the front row of jurors, dab her eyes with a handkerchief.
Judge Whi
taker gazed at the clock at the back of the courtroom. It read 11:40 a.m. To the jury he said, “Normally, we might take our lunch break right now. But I’m going to declare a ten-minute comfort break, after which I will give you my instructions for your deliberations. They will take about a half hour. We’ll arrange for you to have lunch once you’ve retired to the deliberation room. Jurors are reminded not to discuss the case or allow it to be discussed in your presence.”
When they returned from the break, Brad noticed that jurors’ notes had been collected.
The judge addressed this fact. “Ladies and gentlemen, we’ve collected your notes and they will be available to you for deliberations. There is no need for you to take notes regarding my instructions since a copy of those instructions will be provided to you.
“The defendant, David Nesbit, is charged with murder of the first degree in the March 4th death of Genevieve Nesbit. A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.”
It was clear that Whitaker was reading his instructions from a notebook. He went on to establish those elements required to find the defendant guilty. Whitaker flipped the page in his notebook.
“The Commonwealth has the burden of proving the defendant is guilty beyond a reasonable doubt. If it meets that burden, then the defendant is no longer presumed innocent and you should find him guilty. On the other hand, if the Commonwealth does not meet this burden, then you must find him not guilty.
“A reasonable doubt is defined in the law as a doubt that would cause a reasonably careful person to hesitate before acting upon a matter of importance in his or her own affairs. It’s not an imagined doubt or a doubt based on speculation.
“Therefore, it is not enough that the Commonwealth’s evidence merely casts doubt on the innocence of the defendant or that it leaves you believing that he is probably guilty. Rather, to find the defendant guilty beyond a reasonable doubt, you must be convinced of his guilt to the same degree you would be convinced about a matter of importance in your own life in which you would act with confidence.”
