by Dan Morse
Greenberg and the attorneys returned to the back office to talk to individual juror prospects. The judge said it was becoming increasingly clear they wouldn’t find twelve people who didn’t know about the case.
“While I was lying awake last night, I thought about this issue, because, you know, it’s going to arise time and again,” he told the lawyers, saying they would just have to find people who could halt any preconceptions they’d formed. “I can’t remove what these people have read about the case.”
By Tuesday, word spread around the courthouse that Knepper was still in the running. Colleagues of McCarthy’s told him that Knepper could be aggressive when defending clients and urged McCarthy to use one of his strikes to bounce him. The prosecutor figured he probably would.
Wednesday morning, Greenberg had culled the 150 names down to 65 qualified candidates. He moved to the next phase, where the qualified jurors would be asked to stand in the jury box so prosecutors and defense attorneys could begin eliminating some of them. Under Maryland rules, prosecutors McCarthy and Ayres got ten strikes, while defense attorneys Wood and Griffiths got twenty.
Again, because of his low jury number, Knepper knew he’d be among the first in the box. He figured either side had about thirty to forty minutes to strike him as the process would unfold. At his table, McCarthy scanned his list of culled candidates, noting several who’d made bad impressions on him in the back office. He realized he might have to keep Knepper, whispering as much to Ayres, who wheeled around and whispered to their intern, Ashley Inderfurth, to hustle upstairs to their office to see Tomazic. “Go find out what kind of guy he is,” she said. Inderfurth rode the elevator up two floors and marched into Tomazic’s office. “John wants to know if your boyfriend will make a good juror,” she said.
McCarthy was starting to issue his strikes.
At the defense table, Wood sensed an opening. McCarthy had used three of his strikes on African Americans. Wood stood and asked for a private huddle in front of Greenberg’s bench, where he issued a “Batson challenge,” asserting McCarthy was eliminating jurors based solely on race.
McCarthy countered, giving his reasons for the three strikes. One of the prospects had been irate over juror responsibilities; another had seemed to downplay some trouble her attorney husband had gotten into; an older woman talked about lynchings of a century ago and said that another prospective juror had talked to her about the case.
“She was just very bizarre,” McCarthy said. “Her head was jiggling.”
The judge tended to agree, even if bizarre wasn’t the right word: “She was a loose cannon, in my view.”
McCarthy advanced his argument: although he was about to strike two more African Americans, including a twenty-year-old he considered an “airhead,” he also planned to keep the forty-seven-year-old African American human-resources worker with the British accent. “I want smart, intelligent people that are mature, that have made life decisions on this jury versus a twenty-year-old young girl who is unemployed, who appeared to be ditzy.”
Greenberg was swayed, agreeing that McCarthy was making “racially neutral” decisions in keeping five African Americans off the jury.
As for prospective juror Knepper, Wood and Griffiths seemed satisfied that his professional leanings—he’d previously worked in public defender’s offices and a legal-aid center before opening a private practice—outweighed his relationship with the prosecutors. McCarthy also had to figure out what to do with Knepper. Inderfurth had returned and delivered Tomazic’s reply, which was that although she was hardly unbiased, she thought Knepper would be fair and thoughtful throughout the process.
McCarthy and Ayres quickly and quietly discussed what to do.
“I think we can live with this guy,” McCarthy said.
CHAPTER TWENTY-NINE
Losing It
Prosecutors John McCarthy and Marybeth Ayres knew they were about to present a powerful case. Forensic evidence alone would allow them to paint a detailed picture of how Brittany Norwood had killed Jayna Murray. And the prosecutors had hours of video and audio records of Brittany they could play for jurors, convinced that doing so would brand Brittany a pathological liar in their eyes.
But as McCarthy readied himself to deliver his opening statement on October 26, 2011, he knew he had to leave out one important detail that might prey on jurors’ minds: he couldn’t tell them why Brittany killed Jayna.
But the prosecutor was a gifted orator, the result of having spoken in courtrooms for thirty years, and classrooms for thirty-five. He and Ayres had written a de-tailed statement covering nineteen key points, and they expected it to take an hour. McCarthy used all the tools of good storytelling—short sentences, varied pacing, foreshadowing—building to the end, when McCarthy would reveal two of the bloodied murder weapons, and he opened with a cliff-hanger.
“The story is tragic,” he began. “One young woman brutally murdered, allegedly sexually assaulted, a surviving victim left behind, and two unknown assailants loose in our community. The details are breathless, and they are brutal—most supplied by the surviving victim herself. The law enforcement community gathered around this case because those men who did this to these young women had to be found, and had to be held accountable for their crimes. One problem—the concocted boogeymen did not exist.”
The front of the courtroom where McCarthy spoke had an odd layout, the result of well-intentioned architects from three decades earlier who prized acoustics over right angles. The resulting courtroom “well” was a circle, defined by the judge’s bench, the defense attorneys’ table, the prosecutors’ table, and a two-tiered section of large, dark-green leather juror chairs. Everything felt squeezed together, and when attorneys delivered opening statements, they did so with jurors pressed close to them—at the best of times, it increased the attorneys’ feeling of connection with the jury; at the worst, it was oppressive.
McCarthy quickly identified the person who’d invented the boogeymen, pointing to the defense table behind him. “Jayna Murray’s killer is in this courtroom,” he said.
Jurors looked at Brittany, as did the more than 200 spectators who attended the trial, as well as members of both her and Jayna’s families, seated in the same row up front, though separated by the middle aisle. Brittany was dressed in civilian clothes—on this day a grayish-tan sweater—in contrast to the prison clothes she’d worn in pretrial hearings. Her hair was pulled back in a bun. She looked young and sad, displaying no reaction to what was being said, and for the most part looked downward.
McCarthy continued, punctuating his opening statement with a PowerPoint presentation and photographs. By law, he had to limit himself to walking jurors through the evidence they would hear, without arguing how it was connected or what it meant. But McCarthy knew how to make his opening statements vivid and real, not complicated and wordy.
He pushed a button on the wireless PowerPoint controller in his hand. Suddenly displayed across a large projection screen—across from the jurors and above the defense table—was a striking blonde, her broad smile illuminating the courtroom. “If I could spend a couple of minutes introducing Jayna Murray to you,” McCarthy said. “At the time of her death, this extraordinary young woman was working her way towards two additional master’s degrees at Johns Hopkins.”
Brittany’s lead defense attorney, Doug Wood, didn’t like where McCarthy was going. He stood up and asked Judge Greenberg if he and his partner, Chris Griffiths, could approach with the prosecutors for a bench conference. With all the evidence against his client, Wood wanted to keep McCarthy on a tight leash, and knew he’d have to work for every little victory. Wood whispered to the judge: “What she did three years ago, how many degrees she had, isn’t relevant to the manner of her death or what caused her death.”
McCarthy agreed to move on. He’d made his point.
He clicked to a new photograph, this one of a serious, exhausted-looking woman, a photo he’d recently selected over the sunny, smiling ph
otograph of the same person that had initially been part of the PowerPoint. “The defendant in this case is Brittany Norwood,” McCarthy said. “This is a photograph that was taken of her on March the 16th, during one of the multiple police interviews of her the week following the homicide.”
With the contrast between the two women cemented less than five minutes into his opening, McCarthy dialed back and began talking to the jurors as if he was in their living rooms. The prosecutor clicked to a large, photographic map of downtown Bethesda. He pointed to lululemon athletica, where both women worked, and oriented it among other familiar retailers. “Directly next door, and this will become relevant during the course of the trial, there’s an Apple Store that has adjoining walls to lululemon. They are directly next door. For some of you who might like cupcakes, Georgetown Cupcake is a couple of doors down. That’s where we are.”
He clicked to a diagram of the lululemon store itself, pointing out the different sections of the store—from the cash registers in the front to the stockroom in the back. “There also is a sink in the back,” McCarthy said, “where kitchen utensils and things like knives are kept.” The word knives, mentioned almost casually, hung in the air for a moment.
The prosecutor then spun a narrative that started with the morning the murder was discovered, a day with lots of buzz and foot traffic along Bethesda Avenue because of a hot new product Apple was introducing. Gradually, his relaxed, conversational manner gave way to stark details about what happened, illustrated by a crime-scene photo of a woman facedown in a narrow hallway, surrounded by blood-spattered walls, her pants obviously cut open. “This is Jayna Murray,” McCarthy said, adding, “There actually is some staging here by the defendant to make it look like she’s been sexually assaulted.” From there, he disclosed the autopsy results: more than 300 injuries to Jayna, including 107 wounds to her hands and arms as she tried to shield herself.
McCarthy used other PowerPoint slides to present a timeline of Brittany’s and Jayna’s movements on the night of the murder: how Jayna and Brittany left the store, went their separate ways, then returned to look for Brittany’s wallet. He said the attack started quickly and that Brittany used “seven, eight different weapons” retrieved from different parts of the store, including a hammer, a knife, and a wrench. He keyed in on one weapon in particular—something called a “merch peg,” or merchandise peg. The metal bars, about a foot long, have plates at one end that can be affixed to walls so garments can be hung from them. McCarthy noted that the merch pegs were stored in a bucket near where employees keep their personal belongings, a “logical” area to have gone to search for Brittany’s wallet.
McCarthy placed a cardboard evidence box on a table in front of the jurors, put on a rubber glove, and pulled out one of the bars in question, raising it to eye level. “You can see up there, there’s blood spatter on that merch peg,” McCarthy said, lowering his voice and setting up for a pause. “There are—catastrophic—injuries to Jayna’s head, where her skull is cracked time and time again, cracked with this and crushed with something else.”
McCarthy had planned to put the peg back in the box, but it occurred to him that the jury should hear something. He slammed the peg on the box. Whack! Whack! Whack!
In the jury box, Ron Harrington, a thirty-five-year-old nuclear engineer, leaned forward, gripped by what McCarthy was saying and how he said it. This guy’s going to be colorful, Harrington thought.
The prosecutor returned the peg to its box and reached for a new exhibit, pulling it out of a brown paper bag. “Jayna, when she was found, had a rope around her neck,” he said. He clicked to another PowerPoint slide, which showed four photographs: a differently shaped peg, a wrench, Jayna’s battered right hand, and something in the bottom-right corner that wasn’t immediately recognizable. Wood had had enough.
“Can we approach, your honor?” he asked.
“All right. Let’s take that down for a moment,” the judge said, indicating the photograph on the screen.
Too quietly for the jurors to hear, the defense attorney suggested McCarthy was going too far. “Your honor, it gets to a certain point where it’s not a statement, it’s a closing argument.”
Greenberg saw his point, turning to McCarthy. “A couple of times you said: ‘We already know such and such,’ as though it had already been proven.” He told McCarthy to stick to laying out what he believed his evidence would show, not whether it had been proved or what it meant.
The attorneys walked back to their tables. McCarthy was moving to wrap things up, but not before he had made his point about the fourth image, which reappeared on the screen. He said that different weapons left specific wound patterns, such as those in the image on the lower right. “This is a portion of Jayna’s skull,” McCarthy said.
It looked to be the top of Jayna’s head, with the hair shaved to reveal a series of deep gashes.
Leaving jurors with that final image, McCarthy had only one more point to make to complete his case. He said the state’s evidence would show that all the injuries, all the weapons, amounted to premeditation on Brittany’s part. “Think about how many times,” McCarthy said, “she could have chosen a different course of conduct.”
As if reflexively, several of the jurors turned their heads toward Brittany to observe her reaction—and they saw none, only a sad face cast toward the floor. She looks so sweet, juror Greg Lloyd told himself. The thirty-nine-year-old software engineer worked about ten blocks from the lululemon store. As a young man, he’d scraped with the law and didn’t think the system was always fair to defendants. He told himself not to be swayed by dramatic statements. And he wondered what Brittany’s lawyers would say.
“Good morning, ladies and gentlemen,” defense attorney Doug Wood began, thanking the jurors for enduring the long selection process. “As you can only imagine in a case like this, with the press notoriety, the sensationalism, it is so important to find people who are going to be fair.”
He spoke briefly about Brittany, how she was one of nine children, had been raised in Washington State, had played soccer in college. She had sisters living in the Washington area, one of them a doctor. At lululemon, she was called an “educator,” not a salesperson. He was beginning slowly, conversationally, outlining a perfectly normal life as he worked to reestablish the rapport he had developed with jurors during their selection.
From there, he built his statement on the very thing McCarthy had been forced to sidestep, taking full advantage of the fact McCarthy had not been able to offer a motive. When Wood described the evening of March 11, 2011, he noted that Brittany and Jayna had earlier worked in the store together with no problems. “There was no conflict between the two of them,” Wood said. “Nothing, nothing.”
Brittany left the store, Wood said, but she realized she forgot her wallet and called Jayna. Back in the store, something was said between the two that quickly escalated into a loud argument. Wood stressed that it was equally hot on both sides. “Two women’s voices were going back and forth, mutually, back and forth, back and forth. It caught the attention of the people inside the Apple Store.”
It seemed clear Wood wasn’t going back to the masked-men story. He had no choice but to connect Brittany to the murder.
“That’s when the fight ensued,” Wood told the jurors. “There was a fight between Brittany and Jayna.”
Wood used the legal term mutual affray to describe the fight, which conveyed that two people squared off with equal animosity. “It was during this mutual affray that Jayna was killed. Jayna was killed by Brittany—not with premeditation, not with deliberation, not with willfulness or malice. It occurred in a fight, ladies and gentlemen. It was a fight that occurred between the two of them. And during that fight, ladies and gentlemen, Brittany Norwood lost it. There’s no doubt about that. She lost it. She lost control.”
It was so unplanned, in fact, that in her rage Brittany made do with whatever implements she could find.
“There was a horrific argu
ment that occurred between the two of them in that store, and there was a horrific fight that occurred. And Brittany Norwood, not bringing any weapons to the store, she grabbed the stuff that was within her reach and, unfortunately and stupidly, caused the death of Jayna Murray. And she lost it during that period of time. And there’s no question about that, ladies and gentlemen.”
Wood had to work with what he had, which meant not downplaying Brittany’s cover-up, but embracing the more foolish components of it and asserting they were the actions of someone who had temporarily lost her mind.The skilled lawyer found himself having to reach for words and phrases. The actions, he said, “actually show someone who is the exact opposite of someone who had cunning and guile. It shows someone who, in fact, ladies and gentlemen, we submit, got involved in a nightmarish situation, a nightmare, a nightmarish situation and had this sort of imagination or this explanation of what happened.”
Brittany’s story was consequently full of holes and wrong turns, he said. “These were a series of inept steps taken by Brittany Norwood, because she knew there had been a nightmare, and she was lost. She was lost, ladies and gentlemen.”
Wood was not basing his case on an insanity plea, but this was a way to bring what he termed Brittany’s confused state into play. In conceding that she had killed Jayna, he had three goals. The first was gaining credibility with the jurors, and the second was stealing thunder from some of McCarthy’s upcoming forensic evidence. (“Of course,” Wood could say to the jury, “we’ve already acknowledged this.”) The third and most important was eventually to earn her a lighter sentence that could make Brittany eligible for parole in as little as fifteen years.
But Wood was paying a price for his strategy. The jurors would immediately see Brittany as a killer, and they would see everything in the trial through that prism.
In the middle of the trial’s second day, Detective Deana Mackie took the stand. Prosecutors played an audio recording of her interview with Brittany, who lay on a hospital bed less than three hours after she had been found tied up in the yoga store. The interview lasted forty-eight minutes—and everyone in the courtroom heard Brittany tell lie upon lie. It started with Brittany asking Mackie how her friend Jayna was doing. The detective deflected the question, and jurors heard Brittany slowly start telling her cover story about two men coming in and attacking her and Jayna. Audibly crying on the recording, Brittany said she tried to help. “I remember trying to help her. I tried to get away from him and tried to help Jayna, and, like, she was bleeding so much,” Brittany said.
