by Ray Flynt
Brad was surprised by what Whitaker said next.
“In your deliberations in this case, you are not to consider the testimony of the cab driver, Jomo Oduya, since he was unavailable for complete cross-examination by defense counsel.
“As judges of the facts, you are also the judges of credibility of the witnesses and of their testimony. This means that you must judge the truthfulness and the accuracy of each witness’s testimony and decide whether to believe all of it, part of it, or none of it.
“After thinking about all the testimony, you draw on your own experience, your own common sense, and you alone, as the sole judges of the facts, should give the testimony of each witness such credibility as you think it deserves.
“When you retire to deliberate, your first order of business should be to select a foreperson. He or she will conduct your deliberations and announce your verdict.
“Your verdict must be unanimous, meaning that all of you must agree to it. You have a duty to consult with each other, to consider each other’s views, and a duty to deliberate with a view toward reaching an agreement.”
As the judge worked his way through the lengthy instructions, Brad was glad there would be a copy of them available to the jurors.
Whitaker concluded, “Ladies and gentlemen of the jury, you may now retire to consider the evidence in this case.”
26
Jurors found a tray of assorted sandwiches in the conference room, including a vegetarian option Alyssa had requested, along with a bowl of green salad, and assorted sodas and teas.
Brad couldn’t help but notice that Jerry had slipped into the seat at the “head” of the table—the one nearest to the door. Five seats were arranged on either side, with one final chair at the opposite end, near the water cooler and restrooms.
Brad selected a chair between Evie and Layla on the side of the table closest to the window. He sensed nervous energy in the room. They’d been instructed not to talk about the case for the past two weeks. As they munched on their sandwiches, no one seemed in a rush to start the conversation.
Except Jerry.
“I guess we should begin by picking a foreman,” Jerry said, during a lull in the lunch conversation.
Mary Ellen rolled her eyes, while Wendell and Carl looked at Brad plaintively. Carl appeared on the verge of nominating Brad, only waiting for a sign of affirmation.
Brad had no desire to lead the proceedings. He noticed Helen sitting in the chair at the opposite end of the table from Jerry. Brad pointed at her. “I’d like to nominate Helen to serve as our foreperson.”
“Great idea,” Mary Ellen said. Carl and Wendell blurted, “I second that” at the same time. Even Elaine—whom Brad had perceived as an ally of Jerry’s—said, “Sounds good to me.”
Jurors burst into applause, except for Jerry, and confirmed Helen’s selection. Not exactly according to Robert’s Rules of Order, but they’d reached their first decision. Amicably.
“Thank you, everyone,” Helen said. “I will try to be worthy of your trust. Frank and Evie, would you mind clearing away the food so that we have more room for our notes?”
They nodded and proceeded to move trays and bowls onto a side table.
“Jerry, if you’re willing,” Helen continued, “I’d like you to keep a copy of the judge’s instructions. We’ll call on you if we need a reminder of them.”
“Sure thing.” Jerry flashed an insincere smile, like a first runner up who thought she should have won the pageant.
Brad speculated that the skills Helen had learned while managing a ninth-grade math class would make her a great leader for their work.
Helen had flipped pages on her notepad until she revealed a blank page. “The judge told us to work together and apply our collective common sense when evaluating the evidence. Let’s start with questions any of us might have regarding the evidence.”
After an awkward silence, Chet raised his hand. “I’ll jump in. If I understood the prosecutor, they’re saying that David Nesbit was dropped off at the airport, and then he returned home to kill his wife. After which he allegedly called a cab to go back to the airport for his flight. But I didn’t hear any evidence about how he returned home. Did I miss something?”
“No,” Evie said. “They never presented anything about it.”
“I was on another jury once, and the stuff that doesn’t get presented drives you crazy,” Wendell offered.
“But we’re not allowed to factor in that cab ride back to the airport,” Jerry said. “Remember, the judge told us not to consider the driver’s testimony.”
Brad spoke. “Whitaker didn’t disallow the testimony of the dispatcher confirming a cab was sent to Nesbit’s home. And the police detective testified to the anonymous call about the taxi, so we can still consider evidence of the cab ride, just not the driver’s testimony.”
“Was anyone else troubled by all those anonymous sources?” Frank asked.
There were nods from Alyssa, Carl, and Evie.
Helen took notes as each person raised their points.
The discussion moved freely with various jurors commenting on or questioning testimony, from the Nesbits’ wealth to David’s porn-watching habits.
“Can we talk about Heather Sanders?” Alyssa asked.
“Go ahead,” Helen said, “Everything is open for our discussion.”
“It’s just, I’m not sure there was enough evidence to connect her with David Nesbit,” Alyssa said.
For the next half hour, their discussion focused on the mystery woman. No one mentioned that they thought they might have seen her in the video of Nesbit’s arrest. Brad wasn’t ready to open that can of worms. He agreed with Alyssa that the evidence didn’t connect Heather with Nesbit and waited to see what others thought.
Chet, the web designer, discounted the connection between Nesbit’s PayPal account and the rental of her apartment. “Sites like that get hacked all the time, especially when a guy leaves his passwords under his keyboard. It could happen to any of us.”
“I’m not sure I believe that neighbor’s ID of Nesbit from their brief ride together in the elevator,” Brad said.
“I ride an elevator every day downtown,” Evie said. “We’re always eyes front and no eye contact.”
“That neighbor was a little creepy,” Layla said, to a few titters.
Elaine glanced up from her crocheting long enough to observe, “He noticed Heather wore a wedding ring.”
“Yeah, or he’d have been hitting on her,” Carl said to a few more laughs.
“Wonder where Mister Sanders was all that time?” Chet mused, without expecting an answer.
Following a lull, Mary Ellen asked, “What did you all think of the doctor who testified about David Nesbit’s back problems?”
Helen looked at Mary Ellen. “Tell us what you think.”
“I’m a nurse. I work in a hospital ER,” she began. “I’ve seen lots of patients with lower back pain and the vertebral compression injuries Dr. Dirham described. I thought she was very believable. I’m not sure if Nesbit could have carried and lifted 135 pounds into that freezer.”
Several jurors jotted notes about what Mary Ellen had just said, while the conversation continued regarding the crime scene in Genevieve’s bedroom.
It was after 2:30 p.m. when Helen declared a break. There were still plenty of sodas and teas on ice, and jurors took advantage of the opportunity to refresh themselves and visit the restroom.
Helen tapped her pen on the tabletop to get everyone’s attention. “I’m sure we’ll continue to talk. But I’m wondering if we should take a preliminary vote of guilty or not guilty, just to get an idea of where we are on a consensus?”
“Good idea,” Wendell said. Others called out, “Sure” or “Okay.”
Helen tore squares of paper from her notepad and passed them around the table. “Take a minute and write guilty or not guilty, and then pass them back.”
It took more than five minutes before all of the ba
llots were returned. Brad saw pained expressions on the faces of several jurors—Layla and Evie in particular—as they struggled to make up their minds. Helen waited patiently, not rushing anyone.
Helen tallied all of the ballots and announced the results. “We have seven ‘not guilty,’ four ‘guilty,’ and one ‘question mark.’”
Brad wasn’t sure what to expect from the first vote nor was he comforted that his vote had been in the majority.
The school teacher added with a smile, “There’s always one person in the class who doesn’t follow instructions.”
“That was my question mark.” Elaine plopped her crochet project on the table. “I think Nesbit’s probably guilty, but I have a few doubts.”
“I voted guilty,” Evie said, “but I feel the same way.”
“Is there any way we can find him guilty of a lesser charge?” Frank asked. “Like second degree murder or manslaughter?”
Helen asked Jerry if there were any words of wisdom on that point in the judge’s instructions.
While Jerry hunted, Brad spoke. “I don’t recall any other possible charges. The prosecution believed that David killed his wife in a crime that was pre-planned. That’s consistent with their theory of him returning from the airport and freezing the body. A lesser charge might involve a crime of passion. I remember Cunningham saying, ‘This is no crime of passion.’”
Jerry hooked a thumb in Brad’s direction. “He’s right. There’s nothing in the instructions about a lesser charge.”
The others who think Nesbit is guilty aren’t admitting it.
Prior to deliberations, Brad worried that because his fellow jurors knew of his detective profession, they might lean on him more for his opinion. He appreciated that it hadn’t happened.
“I kinda believed that barista from the Internet café,” Carl said. “If what she said was true, Nesbit wouldn’t have had time to kill his wife.”
“She didn’t seem to have an ax to grind, except against her boss for not wanting to pay overtime,” Jerry said.
“I guess that’s what helped make her believable,” Alyssa said.
“I wouldn’t want my daughter wearing her hair like that,” Helen admitted, to groans and a few head bobs.
Chet flipped through his notepad, “If you believe Ms. Peshey’s testimony, that’s enough reasonable doubt right there.”
“I wish Nesbit would have testified,” Wendell said. “It would make this a lot easier.”
Brad wondered if Wendell was one of the first-round guilty voters.
Jerry raised his hand.
“Yes, Jerry,” Helen said.
“The judge talked about that in his instructions. Let me read it: A defendant has a constitutional right not to testify. You may not draw any inference of any kind from the fact that the defendant did not testify.”
Brad sensed a collective sigh in the room. Helen wisely declared a “stretch break.”
When they reconvened a few minutes later, Helen said, “To be fair in this deliberation process, I think we should find out what everyone thinks about the time of Genevieve Nesbit’s death. After all, we did hear two differing opinions.”
They batted the topic around for the next twenty minutes, with most people agreeing that she died about three hours after ingesting her meal. Several jurors noted that the time frame fit within the testimony of both forensic experts.
Helen looked at her watch. “It’s about twenty to five. How do you all feel about another round of voting, just to see how opinions may have shifted one way or the other? Then we can decide if we want to wrap up for the day or plow on.”
Following mumbles of approval, Helen once more passed out slips of paper. It took several minutes for all of them to be returned. Helen tallied the votes on her notepad. “I seem to be missing one,” she said. “I only have eleven votes.”
“I’m the holdout,” Wendell said. “Sorry.” He scribbled on his ballot and quickly passed it to Helen.
From the first time Brad had met him, Wendell struck him as a methodical man. He recalled that he drove a school bus for developmentally disabled children, which gave him an appreciation for the disadvantaged in the world. Whatever his vote, Brad knew it would be thoughtful.
Helen added the remaining ballot to her tally. “It looks like we’ve reached a unanimous verdict. I’d like us all to catch our breath,” she said, “and make sure we’re comfortable with this decision. I’ve seen enough episodes of Law & Order to know that we might be polled individually.”
“Should we tell ‘em how we’d like our steaks cooked for dinner before we announce we’ve got a verdict?” Carl asked, to a few chuckles.
Alyssa shook her head. “Oh, no. Dinner can wait until I get home.”
Helen walked to the door of the deliberation room, and tapped on it. When the door was answered, Helen said, “We’ve reached a verdict.”
“I’ll alert the judge,” the tipstaff responded.
Forty minutes later, the jurors returned to the jury box amid the sound of, “All rise,” from the court crier. Judge Whitaker entered the courtroom at the same time.
Brad noticed that only a few spectators remained in the gallery. Francine and Eric Holt had returned and sat behind the prosecution, David Nesbit’s parents sat in the row behind him, and reporters seemed present in full force. It also appeared that additional sheriff’s deputies had entered the courtroom and stood adjacent the defense table. Among the visitors in the gallery, Brad recognized staff from the Jury Commissioner’s office.
“You may be seated.” Whitaker turned to the jury. “Ladies and gentlemen, I understand you’ve reached a verdict.”
Helen stood. “Yes, we have, Your Honor.”
After a few moments during which the verdict sheet was passed from Helen to the court clerk, then the judge, and back to the foreperson, Judge Whitaker said, “Will the defendant please rise and face the jury.”
An anxious-looking David Nesbit stood alongside his counsel, Shane Asher.
“Madame Foreperson,” Whitaker said, “you may report your verdict.”
In a clear voice, Helen announced, “On the charge of criminal homicide, murder of the first degree, we the jury find the defendant not guilty.”
27
I had butterflies in my stomach.
I’d called Rachel Tetlow shortly after 9 a.m. on Tuesday morning and asked to meet with her to discuss “news.”
Rachel tried to press me for particulars, asking if I’d found information in the financial records. “It’d be best to go over this face to face,” I told her.
She said she’d get off work at 5, and we could meet at her apartment since her roommate was out of town. She gave me the address, which I’d be able to locate with GPS.
I could think of nothing else for the rest of the day. I pictured Rachel from our very first meeting—anxious to find answers to a question that had been troubling her for seventeen years. Now that I knew the truth, I wasn’t sure Rachel would want to know.
At mid-morning, Drew Decker returned my call. I no longer needed to speak with him, but my mention of Martin Tetlow had piqued his interest. I couldn’t tell him that he’d been on my list of murder suspects. I turned the call into an opportunity to tell him that Maggie had passed away and that her daughter had fond memories of his childhood visits and wanted him to know. I think he bought it.
I left about 2:30 that afternoon for the drive to Rachel’s. As I cruised down I-95, the words of The Rubáiyát of Omar Khayyam, one of my dad’s favorites, popped into my head:
The Moving Finger writes; and, having writ,
Moves on: nor all thy Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all thy Tears wash out a Word of it.
Rachel had set events in motion with her quest for the truth. I thought about all the bad news and heartbreak I’d endured in my lifetime, from crappy relationships to the pain of losing my mother at an early age, and my father’s suicide.
Rachel was a big girl; she could handle it.
Rachel lived in a two-bedroom apartment in the Seven Oaks section of Odenton, Maryland. I pulled into her parking lot shortly before 5 p.m. and found one of the un-numbered parking spots available for visitors. I didn’t see Rachel’s truck and decided to wait in my car. To kill time, I tuned to KYW and heard that a verdict had been reached in the David Nesbit murder trial. The announcer reported that court would reconvene at 5:30 p.m. to hear the jury’s verdict. Brad and I were both in the midst of busy days.
When I saw Rachel’s truck pull in a few minutes later, I stepped from my car and waved at her.
“Hi,” Rachel called out. “It’s this way.” She pointed toward the steps leading to the second floor.
“Could we put the banker’s boxes in your truck before we go up?” I asked.
“Sure.”
Rachel helped me heft the boxes into her truck, and then she covered them with a blue plastic tarp.
“I’ll return them to storage tomorrow,” she said.
When we finally walked up to Rachel’s apartment, she offered me a soda and we sat in her living room.
“What’s up?” Rachel asked.
“I have answers for you, but you’re not going to like what I’m about to tell you.”
She nodded silently.
“The other day I mentioned finding checks made out to Cassandra Charity. There were a lot of them,” I explained, “a $500 check to her from your mother each month for seventeen years. More than $100,000 total.”
Rachel’s mouth gaped in shock.
“Yesterday, I visited Sandy Charity. First, I found out that Herb died on Thanksgiving Day.
“Oh.” Rachel looked sad.
“I confronted Sandy about those checks and found out she’d been blackmailing your mother all of those years because of what she’d seen on the morning of your dad’s fatal accident.” I took a deep breath. “It was your mother who tampered with the car’s brake fluid line.”
Rachel blinked. “I wondered.”
