Shaking off his anxiety and pain, Tom focused on the witness stand. “Ms. Osborne, would you please introduce yourself to the jury?”
“Robin Jeannette Osborne.”
“Can you please tell the jury who you were employed by on May 7, 2012?”
Osborne turned her head and looked at the jury. “I was a paralegal for Greg Zorn.”
Powell shot off his chair. “Your Honor, may we approach?”
Judge Poe ushered the attorneys forward and, once they were all gathered in front of the bench, he looked at Powell.
“Your Honor, on Tuesday morning, the defense provided the prosecution with a copy of a change of beneficiary form, allegedly signed by Jack Willistone and dated on March 18, 2012, some six weeks before the murder, where the victim purports to change the beneficiary of his three-million-dollar life insurance policy from his wife, Kathryn, to his son, Danny.” Powell paused and glanced at Tom before continuing. “Your Honor, you previously ruled to exclude this form and any mention of it at the pretrial hearing last Friday. It is my assumption that Professor McMurtrie is about to go into questioning aimed at introducing this copied document to the jury, and we object.”
“McMurtrie, is that your plan? Are you planning to violate my pretrial order?”
“No, Your Honor,” Tom said. “I was planning to lay some foundation and then request a sidebar where I would ask you to reconsider your prior ruling.” He glanced at Powell. “The prosecutor beat me to it.”
“Well, we’re here now and the jury is waiting. Conrad, you first.”
“Judge, there is no way that Robin Osborne is qualified to testify regarding this form,” Powell began, his intensity palpable. It was obvious to Tom that Powell also knew what was riding on this ruling. “All the defense has is a copy, so the Best Evidence rule applies to bar its admission. The defense has no excuse for why it can’t produce the original. Further, it’s the state’s understanding that Ms. Osborne did not witness Mr. Willistone sign the form, nor did she see how her boss, Greg Zorn, came into possession of this form. Finally, the unauthenticated document is clearly hearsay. We would ask that the court exclude the form and any testimony by Ms. Osborne about it on these grounds.”
“McMurtrie?” Poe rasped.
“Judge, Robin Osborne was a paralegal in Greg Zorn’s office when Mr. Zorn brought the original of this change form back from the prison after visiting his client, Mr. Willistone. She can testify that she took the original and scanned it into the computer so that the firm would have a PDF copy. She can also testify to placing the original document in an envelope and giving it to her boss just minutes before Marcellus “Bully” Calhoun, the victim’s father-in-law and also a client of Greg Zorn’s, arrived at the office. Your Honor, Ms. Osborne can and will testify that the change form that we plan to introduce is a true and accurate copy of the original. And we do have an excuse for not producing the original. I have sent letters and served a subpoena on Mr. Calhoun, requesting the original, but the only response we’ve received is a letter from Calhoun’s lawyer saying that Calhoun has never seen such a document and doesn’t know what we are talking about.”
Poe rubbed his chin. “What about the hearsay objection?”
“Judge, we are not offering this document to prove the truth of the matter asserted, but rather to show the state of mind of both the victim, Jack Willistone, and his father-in-law, Bully Calhoun.”
“Why are the victim’s and Calhoun’s states of mind relevant?” Poe asked, looking down his bifocals at Tom.
Tom ground his teeth but kept his tone neutral. “As set out in our trial brief, it is the defense’s theory that Mr. Calhoun had the victim murdered to hide the fact that he had prevented this change form from ever being sent to New York Life, and to make sure his daughter collected on the three million in insurance benefits. Judge, the defendant in a capital murder case is allowed to present an alternative, and any evidentiary rulings that are close should be decided in the defendant’s favor.”
“I agree with that, McMurtrie, but you still have to abide by the Rules of Evidence.” Poe made a show of reaching under his desk to pull out a large leather-bound book. Tom knew what it was after only a second’s glance. McMurtrie’s Evidence, the fourth edition. “Is there anything in your book about ignoring the rules in favor of a capital defendant?”
“No,” Tom said. “But we’re not ignoring the rules. We’re just saying—”
“The prosecutor’s objection is sustained,” the Judge said, and Tom saw a victorious gleam in Braxton Poe’s eyes.
“Your Honor, I would respectfully request that you reconsider this ruling. I believe you are committing reversible error.”
Poe smirked. “I’ve already reconsidered, and the objection is sustained. If you don’t like it, then file an appeal. Now, do you still wish to ask this witness any questions?”
Tom looked at Robin Osborne, who had driven from New Orleans to be here. “Yes,” he managed.
Tom only kept Osborne on the stand for five minutes. He hoped to at least establish that she had seen Bully Calhoun meeting with Zorn on May 7, 2012. But when he asked her this specific question, Osborne replied, “I can’t remember.” Realizing that she was unwilling to expose herself if Tom couldn’t get the copy of the change form into evidence, Tom cut his losses. “No further questions, Your Honor.”
75
After Osborne left the stand, Judge Poe adjourned for the day. “What are the chances you’ll finish your case tomorrow, McMurtrie?” he asked once the jury had filed out of the courtroom.
“Pretty good,” Tom said, knowing that unless Wilma Newton were to take the stand, he didn’t have any other witnesses.
As he walked down the steps of the courthouse, Laurie Ann caught up to him. “She’s screwed, isn’t she?”
Tom didn’t immediately answer. When they reached the sidewalk, he pulled her aside. “We’ve scored some points with the lack of DNA evidence and prints at Zorn’s house and in Jack’s car. That’s something.”
“It’s not enough without that form, is it?”
Tom couldn’t lie to her, but he didn’t want to give false hope either. “I don’t know.”
76
After a sleepless night, Tom arrived at the courthouse Friday morning to find Happy Caldwell waiting for him at the defense table.
“Professor McMurtrie, do you have a second?”
“Not really, son,” Tom said, still working through his direct examination of Wilma Newton in his mind.
“We saw something else that night,” Happy said, his face pale, as if he were about to be sick. “Before we found the body, we . . . saw someone at the Cypress Inn.”
Tom put his briefcase down on the table and looked at Caldwell. “Tell me.”
77
“The defense calls William Henry Caldwell to the stand,” Tom said, peering across the courtroom at Powell, who was talking furiously behind his chair with Wade.
After being reminded of the oath he took earlier in the week, Happy took his seat at the witness stand.
“Mr. Caldwell, did you testify earlier in this trial?”
“Yes, sir.”
“And during your testimony, did you describe everything you saw and heard on the evening of May 8, 2012.”
“No, I did not.”
“Why not?”
“Because I was only asked about mine and Screech’s discovery of the body.”
“Mr. Caldwell, when you and Mr. Shuman arrived at the Cypress Inn in the wee morning hours of May 9, 2012, did you see anyone else there?”
“Not at first.”
“OK,” Tom said, pacing toward the back of the jury box so that Happy would have to look at the jurors when answering his questions. “Then when?”
“We were walking down the steps to the shore. Shuman was carrying the golf clubs and I had the beer. We . . . we saw a woman coming through the trees.”
“Describe her.”
“She was . . . kinda heavy I guess and
her clothes were dirty, as if she had been walking through the woods for a while.”
“Did you speak with her?”
“We probably would’ve just ignored her, but once we all saw each other, she came over and said something.”
“What did she say?”
“Well . . . that she had four joints in her purse, and she’d sell them to us for fifty bucks.”
“Did you buy them?”
“Yeah, but we talked her down to thirty-five.”
“Then what happened?”
“The woman left, and we started trying to hit balls over the Black Warrior. We discovered the body about an hour later.”
Tom made a show of nodding his understanding. “Mr. Caldwell, did you ever mention seeing this woman to Detective Richey during his investigation?”
Happy shook his head. “No, I was scared we’d get in trouble.”
“And why are you coming forward with this information now?”
“Because I don’t want an innocent woman to be put to death because I was too much of a pansy to tell the truth.”
“Objection, Your Honor,” Powell said. “Move to strike the witness’s reference to ‘innocent woman.’”
“Sustained. The jury will disregard Mr. Caldwell’s characterization.” He waved at Tom to continue.
“Mr. Caldwell, did you recognize the woman that sold you marijuana on the morning of May 9, 2012?”
“At the time, no.”
“How about now?”
Happy nodded. “Yes, sir. I saw her in this courtroom when I testified yesterday.”
“And do you see her now?”
“Yes, I do,” Happy said, turning his head to the right and looking directly behind the prosecution table. “She’s right there. She’s the last person on the end of the front row.”
Tom walked toward the woman in the gallery to whom Happy had just pointed. When he was a couple feet away, he pointed his own finger at her. “Is this the woman you saw who offered you four joints an hour before you and Mr. Shuman discovered the body of Jack Willistone?”
“Yes, sir, it is.”
“Your Honor, let the record reflect that the witness has identified Barbara Willistone.” Tom paused and made eye contact with as many jurors as he could. “No further questions.”
78
Barbara grabbed her son’s hand and tried to lead him out of the courtroom, but Danny wouldn’t budge. “Danny, let’s go. Now.” When he finally relented, she found Detective Wade Richey blocking her exit from the row.
“Just hold on now, Ms. Willistone,” Wade whispered, trying not to make a scene in front of the jury but also knowing he couldn’t let Barbara Willistone walk out of the courtroom after hearing the testimony of Happy Caldwell.
“Your Honor,” Powell said, “the state requests a short recess.”
“Very well,” Judge Poe said, looking taken aback by what he’d just witnessed. “The jury is excused for ten minutes.”
During the break, Barbara Willistone was taken into the custody of the Sheriff’s Office. In the interim, Rick drafted up a handwritten subpoena and served it on her in the empty office operating as a makeshift holding cell.
When the jury was brought back in, Powell cross-examined Happy for five minutes about the things he did not see. He did not see Barbara Willistone shoot Jack Willistone. He did not know where Barbara had come from or what she was doing. He himself was admittedly stoned and drunk at the time.
At 10:30 a.m., Happy Caldwell was excused from the witness stand.
“Call your next witness,” Judge Poe said, his voice tired. His Honor clearly wasn’t enjoying the direction the case had taken.
Winking at Laurie Ann Newton, Tom cleared his throat. “The defense calls Ms. Barbara Willistone.”
79
Barbara Willistone took the witness stand and glared at Tom like he might be Judas Iscariot. Before Tom could even ask a question, she spoke through clenched teeth. “I came to you for help. I gave you information, and this is how you repay me.”
“Judge—”
“The witness will refrain from making statements and will only answer the questions raised by counsel. Do you understand, Ms. Willistone?”
“I understand,” she said, her voice dripping with bitterness.
“Ms. Willistone, did you see your husband after his release from prison?”
“You know I did. I told you.”
“And did he say anything to you about the insurance policy that he took out on his life?”
“Objection, Your Honor. Hearsay.”
“Not offering for the truth, Judge. Only Ms. Willistone’s state of mind.”
“I’ll allow it.”
“Yes,” Barbara said. “He told me that he had changed the beneficiary on his policy from his wife”—Barbara glared at Kat Willistone on the front row—“to our son, Danny.”
“Did he say anything else to you?”
“No, but he showed me a copy of a change of beneficiary form that he had completed which made Danny the recipient.”
“Objection, Your Honor,” Powell said.
“Sustained,” Poe said, glaring at Tom and motioning for the attorneys to approach. Before he could scold him, Tom offered, “Judge I didn’t ask her about the form. She volunteered that information.”
The judge rubbed his eyes and finally peered at the witness over his bifocals. “Ms. Willistone, do not volunteer any more information about the change form. Just answer the questions that are asked.” Then he gazed at Tom with flat eyes. “Continue.”
Tom resumed his place in front of the witness stand. “When did this conversation with your ex-husband take place, Ms. Willistone?”
“Tuesday, May 8, 2012. About seven o’clock.”
“And when Jack Willistone left your house that night, did you believe that your son, Danny, was then the beneficiary of Jack’s three-million-dollar life insurance policy?”
She nodded, and her lower lip began to tremble. “Yes.”
Tom paused for a good five seconds. “Ms. Willistone, did you just hear the testimony of William Henry Caldwell?”
“Yes, I did.”
“Ms. Willistone, were you on the shore below the Cypress Inn restaurant in the wee morning hours of May 9, 2012?”
Barbara Willistone closed her eyes. Tears began to fall down her cheeks. She started to speak, but Powell Conrad’s loud voice overpowered her.
“Your Honor, as an officer of the court, I think it is only fair that I inform Ms. Willistone of her Fifth Amendment right not to incriminate herself.”
Judge Poe sighed. “Thank you, Mr. Conrad.”
“Ms. Willistone,” Tom continued, “did you understand my question?”
“I did.” She didn’t look at Tom. Instead she gazed at her son, Danny, in the front row. “I plead the Fifth.”
80
Braxton Poe had to bang his gavel for thirty seconds to get the gallery full of reporters to pipe down after Barbara Willistone pled the Fifth Amendment. When he finally had restored quiet and Barbara had been escorted out of the courtroom in police custody, he looked at Tom. “Call your next witness.”
Tom whispered in Wilma’s ear. “I don’t think we need to explain the saliva after what just happened. Agreed, or do you want to take the stand?”
“Agreed,” she whispered.
“McMurtrie?” Poe rasped.
Tom rose from his chair. As he scanned the faces of the twelve jurors, he saw the expressions that a criminal defense attorney craves: confusion, bewilderment, and curiosity.
A jury with unanswered questions won’t convict, he thought.
“Your Honor, the defense rests.”
81
“We’re in the honey hole,” Bo said as he, Tom, and Rick gathered around the conference room table and wolfed down turkey sandwiches. Bo, who had faithfully stayed away from the courthouse, had been briefed by Rick the second they arrived at the office after Judge Poe had adjourned for lunch.
“It’s
not over yet,” Tom said. “Powell still has an opportunity for rebuttal.”
“Ain’t no way he can rebut what the jury just heard from Happy Caldwell and Barbara Willistone,” Bo said. “The bottom line is Barbara Willistone had motive—if she kills Jack, then Danny collects the proceeds—and opportunity. Caldwell puts her at the scene of the murder.” He snapped his fingers. “You could move for a continuance and demand that the prosecution take DNA samples from Barbara Willistone and compare them to the other DNA found at the scene.”
Tom rubbed his chin. “I could . . . but I think that jury is about to acquit.”
Bo held out his palms. “Tough call, but you gotta trust your gut.”
“My gut is saying let it ride.”
82
It was a somber scene inside the district attorney’s office. Powell sat slumped in his chair, while Wade furiously paced around the long table. “We could recall Shuman. He might not agree with Caldwell.”
Powell just looked at him. “OK, that was stupid,” Wade said, shaking his head. “I can’t believe those pricks didn’t tell us about Barbara Willistone when we first interviewed them.”
“I can,” Powell said. “A druggie never reveals the identity of his dealer. That’s Criminal Law 101. You’re tired, Wade. I’ll tell you what I can’t believe. I can’t believe Caldwell came clean. Kid’s got brass balls.”
“I can’t think of anyone we can call in rebuttal who adds anything to our case or can subtract any of the damage that Barbara Willistone and Happy Caldwell just did.”
Powell slapped his hands on the table. “Agreed. No rebuttal witnesses and we’ll go straight to closing arguments.”
“It’s not over,” Wade said, and Powell heard the desperation in the detective’s voice. “If this were a boxing match, we’re way ahead on points.”
Powell smiled at his friend. “You know that’s not how a capital murder case gets decided. We don’t win on technical knockouts. It’s got to be a true, no-questions-left knockout.”
The Last Trial Page 32
