A Conflict of Interest (38 page)

“Think about how justice would have been better served if you had just admitted that you didn’t know at the outset.”

Robertson objects, but by now there’s no point. The question didn’t call for an answer, so the fact that Judge Rodriguez sustains it makes no difference.

“No more questions,” Broden says, turning his back to Brunswick and walking toward the counsel table. But then he wheels around again. “Actually, if I may, your Honor. One more thing, Sheriff.” He pauses, long enough that I’m sure he’s scripted this moment and the preface was all for affect. “Did your twenty-seven years of law enforcement experience provide you with expertise as to how you would force four sleeping pills down the throat of a woman to murder her?”

Brunswick’s eyes widen, as if he’s looking for Robertson to rescue him. “We believe that Mr. Ohlig put the pills into something she ate.”

“Can we conclude that the only evidence you have for that claim is your twenty-seven years of law enforcement experience?”

Judge Rodriguez puts an end to the massacre. “I think you’ve made your point, Mr. Broden.”

It didn’t require twenty-seven years of legal experience—or even twenty-seven minutes of it—to know that the trial had not gotten off to a good start for the prosecution. Robertson is going to have to step up her game if Ohlig is going to pay for what he did to my mother.

O
n the second day of the trial, the prosecution calls Gary Dillon, an employee of the Palm Beach Yacht Club where Michael Ohlig is a member. Dillon doesn’t seem old enough to vote and looks scared as can be.

“Mr. Dillon,” Robertson says, using her stern teacher voice, even though a more soothing tone would be more appropriate considering Dillon is her witness, “did you see the defendant”—and then she points at Ohlig—“on Thanksgiving morning of this past year?”

Broden motions for Ohlig to stand. It’s a nice touch, conveying to the jury that he doesn’t fear the identification, although why he doesn’t fear it is less clear. If Ohlig was with my mother on a boat that morning, it goes a long way to proving he drugged her and then threw her into the ocean.

“I did.”

“Approximately what time?”

“Early.”

“What’s early to you, Mr. Dillon?”

“I don’t know. Around seven. I start my shift at seven, and I saw him just after I got there.”

“How do you know it was Mr. Ohlig that you saw?” Robertson asks.

“I’d met him before.”

“How can you be certain the man you saw on that day was the same man you’d met before and knew to be Mr. Ohlig?”

“We had a nickname for Mr. Ohlig at the club—the Silver Fox. Some of the guys called him Foxie for short,” Dillon chuckles. “I remember thinking that it was funny that I was seeing a fox on Thanksgiving.”

“Was he alone?” she asks.

“No, he was with a woman.”

“Did you recognize the woman?”

“Not really.”

“Please describe her to the jury.”

“She had blond hair, really light like. She was tall.”

“How old was she?”

“Mid-fifties, I guess. ‘’

Of course, that description would cover a large portion of the female population of Palm Beach, but then Robertson hands Dillon a photograph. The jurors sit up, taking special notice of what is about to happen.

The picture that Dillon is studying is one I provided to Robertson. I originally gave her a photo of my mother with Charlotte, but Judge Rodriguez ruled that was gilding the lily. The photo Judge Rodriguez allowed was taken by my father the last time I saw him alive, which was when we visited over Passover.

Dillon is studying the picture as if he’s never seen it before. In actuality, he’s likely seen it more than twenty times, the last of which was probably right before Robertson called him to the stand.

“Mr. Dillon,” Robertson says, “is the woman in this picture the same woman you saw with Mr. Ohlig at the yacht club on the morning of Thanksgiving?”

Dillon swallows hard. “Yes,” he says, not quite as a question, but certainly not as emphatic as you want your witnesses to make identifications.

Robertson passes the witness, looking relieved to have finished the examination. As Broden stands to begin his cross, all I can think is that I’m glad I’m not Gary Dillon.

“Mr. Dillon,” Broden begins, “do you consider yourself someone who has a better-than-average memory?”

“No. I’d say it was average.”

“Me too,” Broden says, his smile suggesting that there’s no reason for Dillon not to trust him. “Mr. Dillon, do you recall what Foxie was wearing Thanksgiving day?”

“Not everything, but typical stuff to go sailing.”

“Was he wearing sneakers or boat shoes?”

“I don’t remember that.”

“But it was one or the other, right? I mean, he wasn’t wearing work shoes.”

“Yes. It was either boat shoes or sneakers.”

“And, Mr. Dillon, I assume you recall he was also wearing a hat, you know, because of the sun on the water?”

“Yes.”

“Did the hat on this person you think was Foxie hide his hair?”

“Oh no,” Dillon says, as if he’s proud of himself for anticipating the trap that Broden had been setting. “I remember very clearly that I could see his hair. That’s how I knew it was Foxie.”

“Mr. Dillon, about how long would you say that you looked at Foxie?”

“Not too long. I wasn’t staring, but long enough.”

“Maybe ten or fifteen seconds. Is that a fair estimate?”

“Maybe a little bit longer than that.”

“I assume that Mr. Ohlig is not the only member of the club with gray hair, correct?”

“Uh-uh,” Dillon says, beginning to sound much less sure of himself than he did during direct.

“In fact, I’m sure the only demographic in the Palm Beach club that’s larger than gray-haired men is bald men. Wouldn’t you say, Mr. Dillon?”

Laughter spills from the gallery, and even Judge Rodriguez seems amused. Dillon, however, looks like he doesn’t get the joke.

“Mr. Dillon?” Broden asks.

“I’m sorry, sir, but I don’t know what that word you used means.”

The gallery has a chuckle at Dillon’s expense, but Broden looks apologetic, despite the fact that I’m reasonably sure he used the word “demographic” to show the jury that Dillon isn’t the smartest tool in the shed.

“My apologies, Mr. Dillon. What I meant to ask is whether there are a lot of gray-haired individuals at the club.”

This time Dillon nods.

“And from time to time, is it the case that non-club members dock at the club? Just for the day?”

“Yes.”

“And, Mr. Dillon, do these people sometimes have gray hair?”

“Yes, sometimes.”

“And on a holiday, like Thanksgiving, is the dock more crowded with non-club members than on other days?”

“Yes. Non-club members will sail in for Thanksgiving or Christmas to visit family.”

“Mr. Dillon, you feel like you got a good look at that hat, right? Otherwise you wouldn’t have known it was Foxie, if you didn’t see that hat and the gray hair underneath, right?” Dillon is nodding as Broden says this, having no idea that Broden’s about to slam him. “So tell me. What color was the hat?”

Dillon gets the deer-in-the-headlights look that you dream about as a cross-examiner.

“Mr. Dillon, you saw Foxie for little more than fifteen seconds, and you’re certain he was wearing sneakers or boat shoes and a hat that hid his hair, but not so much you couldn’t identify him as Foxie—due to his gray hair—but you don’t recall the color of the hat?” Before Dillon can venture a guess, Broden cuts him off. “Let’s try something easier. What color hat were you wearing that day?”

Broden must know that Dillon wears different colored hats on different days or he’d never take such a gambit. “I’m sorry,” Dillon sputters, “I’ve got a bunch of hats and I just don’t remember which one I was wearing on that day.”

“It was Thanksgiving day,” Broden continues, now working at a rapid-fire clip. “What clothing were you wearing that day? Better yet, what was your mother wearing? How about anyone at your Thanksgiving dinner?”

“I think—”

“Mr. Dillon, please do not guess. I’m prepared to call your family members to testify whether you’re right or not, and if your family is anything like mine, I bet someone took a picture that day, so we can confirm your recollection.”

Robertson objects. “Your Honor, this witness isn’t here to test his memory on what people wore on Thanksgiving. He’s made an
identification of Mrs. Miller, and Mr. Broden’s questions should stick to the issues in this case.”

“Mr. Broden,” Judge Rodriguez says, “I think you made your point. Let’s move on.”

“Thank you,” Broden says. “Mr. Dillon, the prosecutor wants me to ask you about your identification of the woman on the boat, so that’s what I’m going to do next. You say that it’s the same woman as you saw in the picture. The woman we all now know is Barbara Miller. First off, you didn’t know it was Barbara Miller then, correct?”

“No.”

“And you’d never seen Barbara Miller before, that’s also correct, isn’t it?”

“Yes.”

“So are you absolutely sure that it was Barbara Miller you saw that morning—what, one, two, three, four, five, six, seven months ago? I mean, would you bet your life on it?”

“Objection,” Robertson says, this time with a world-weary tone, as if to convey to the jurors that this is a complete waste of time. Unfortunately, I suspect the jurors have the sense that Robertson doth protest too much.

There’s a silence in the courtroom as the lawyers wait for a ruling, but then Broden takes advantage of Judge Rodriguez’s hesitation to drive his point home. “Your Honor, he can just tell us if he’s certain or less than certain. So, I don’t really know the basis of Ms. Robertson’s objection.”

Rodriguez looks the way Elizabeth sometimes does when Charlotte has exasperated her. I’m half expecting him to call a time-out and send both of them to their rooms.

The judge finally lets out a heavy sigh and then turns to Dillon, craning his neck to see the witness beneath the bench. “Sir, how confident are you that the woman you saw is the same woman in the picture? Very confident, or is this a case where you think it was the same woman, but you’re not completely sure?”

“I don’t know,” Dillon says, and then, as if he’s just caught
Robertson’s eye, he clears his throat, and adds, “I think it’s her, which is why I said it was, but I’m not one hundred percent certain. I’m sorry.”

Broden got what he wanted, and now it’s time to rub salt into Robertson’s wounds. “No need to apologize, Mr. Dillon,” he says loudly. “All
I
want is your honest recollection,” and then Broden stares at Robertson, accentuating the point that the desire for honesty above all else is not mutual.

After the Dillon debacle, the prosecution calls a representative from the Canadian internet pharmacy where the sleeping pills were purchased, and then the store manager of the Palm Beach Post-Drop USA branch where the pills were sent. Robertson gets from each what she needs, laying the foundation that the pills in my mother’s system were purchased through the pharmacy and then shipped to the post office box under the name M. Ohlig.

On cross, Broden gets what he needs too—an admission from the pharmacist that anyone with access to Ohlig’s credit card could have placed the order for the pills, including Ohlig, his wife, or even my mother. The Post-Drop USA representative acknowledges that they don’t verify identity when someone opens a post office box. For the type of box that was opened under the name M. Ohlig, a key is given out at the time of purchase, which means anyone could have opened the box under that name, or any other, no questions asked.

As her last witness of the day, Robertson calls her expert, a shrink named Westwood. His testimony is brief, most likely because his opinion—that most people who commit suicide leave a note—is suspect, at least according to what I’ve read on the internet. Broden’s cross is twice the length of the direct, but all he can do is sound incredulous at Westwood’s testimony, because the psychiatrist doesn’t yield an inch.

“How do you think we’re doing so far?” Robertson asks as we’re leaving court at the end of the day. She often uses phrases like “we” to describe the prosecution’s case, her effort to give me some ownership of the mission, I suppose.

“You’re getting the evidence you want in, and the jury appears to be engaged,” I tell her, a little unenthusiastically. “The shrink was pretty good, and you did as well as possible with the pharmacy guy. I’m sure the jury believes that the pills my mother took were the same ones purchased with Ohlig’s credit card. But I don’t know if that’s enough to conclude he was the one who bought them, or that he gave them to her. And neither the sheriff nor Dillon helped the cause much.”

“Take it as a cautionary tale for you, Alex,” she says.

“How so?”

“Your testimony is going to make or break our case, and I don’t want Broden making you look like a monkey too.”

“I’ll be okay,” I say.

“And just so there’s no misunderstanding between us, I’m not asking you to lie. I don’t know what happened with Dillon, but I didn’t pressure him to make the identification, and the last thing I want is for you to think that I’m pressuring you. Understand?”

“Understood.”

“Are you sure? Because I get a weird vibe from you sometimes.” She stares at me, as if she’s trying to read my thoughts. “So far I’ve spared you the perjury lecture because I can only assume you know it by heart. But, believe me, victim’s son or not, if you lie up there I will prosecute you for perjury. Understood?”

“Yeah, sure. I understand.”

M
y “I do” upon taking the witness oath sounds like a squeak. I’m not too surprised that I’m nervous. Part of my apprehension is because I’ve never testified before, but that’s only part of it.

Robertson begins my examination the textbook way—asking questions about my educational background and work history. I tell the jury I’m unemployed, but quickly mention that I’d been practicing law for the past twelve years, in the hope that causes the jury to assume I’ve voluntarily taken time off. I know I shouldn’t care what they think, but I still do. So much so that I’ve asked Robertson not to inquire about the reasons I left Cromwell Altman. I’m assuming Broden will be smart enough not to do so. After all, there’s nothing in it for him to piss me off, especially concerning an issue that doesn’t help his case.