David Ellis - The Last Alibi

“He’s. . he’s not in the frame of mind right now for you,” I apologize.

“That’s fine, whatever.” Pete’s tan has diminished since he’s been in town for the trial. He owns a bar in the Cayman Islands, of all things, having received a healthy windfall of money under circumstances that are unclear-and therefore suspicious-to me. Where Jason inherited his mother’s length and features, Pete is the spitting image of his father, Jack, a devilishly handsome face and a quick, easy smile, a guy who could charm a shark out of its chum. He inherited his father’s penchant for substance abuse, too, though with Pete it was cocaine, not booze, and he promises that’s way behind him now.

Pete was basically the fuckup of the family, the difference between Jason and him being athletic ability. Jason wasn’t going anywhere good before the varsity football coach discovered him, but his prowess on the gridiron got him a scholarship to State, and even after he pissed that away by fighting with a teammate, he was away from home, away from some of the temptations and bad influences that had set him astray, and he ultimately thrived. Pete lived in Jason’s shadow and got himself into plenty of trouble before, a couple years ago, Jason bailed him out of some serious problems and got him out of town with the previously referenced windfall of money, source unknown.

“I just don’t get this, Shauna,” says Pete. “We’re getting crucified. Is it-is it too late for self-defense? I mean, this woman looks like a psycho, right? The idea that she came after him with a knife or even his own gun? I’d believe it in a heartbeat.”

“She was shot in the back, Pete, and she was unarmed,” I say, realizing I’ve made a misstep by joining the debate. It’s not that I don’t appreciate his point. I do.

Roger Ogren does, too. In fact, after discovering these e-mails, Roger expected us to plead self-defense. Whenever we’d talk to discuss details, he’d find a way to casually raise the point. So we’re still looking at a December trial? he’d ask. No continuances or affirmative defenses or anything like that? He didn’t think we’d stick to the speedy trial. He thought we’d come out with self-defense sooner or later. The fact that he was so worried about that defense, despite the fact that Alexa Himmel was shot in the back, from ten feet away, and unarmed, showed the power of those e-mails, not to mention the phone calls, which the jury hasn’t heard about yet.

It was the interview, wasn’t it? Roger asked me last week, when he finally confessed that he’d been expecting the self-defense argument all along. He brought up that Jim guy in the interview and lied about how things were going with Alexa. Hard to walk that back to “She came at me with my own gun and I had no choice.”

“Pete, you know I can’t talk to you about the case,” I say. “What’s done is done. This is what Jason wants. We’re going to have to trust him.”

Pete knows all of this. We’ve been over it time and time again. He’s come into town on and off since Jason was arrested, but he’s been clearly instructed about not discussing the case with Jason. Jason, for his part, has been very protective of his little brother, demanding that he go back to the Caymans (Pete refused) and rarely speaking to him at all.

“Tell him. . you know. .” Pete’s voice trails off.

“I’ll tell him you love him.” I put a hand on his shoulder. Then I head into the anteroom to see my client.

Jason

When court reconvenes, the prosecution tells the judge that they’d like to read a stipulation to the jury about cause of death. There’s no point in our denying that Alexa was shot through the back of the throat with a single bullet from my gun, and there’s no doubt that this gunshot was the cause of her death. The jury has already seen the grisly crime scene photos, so there’s little point, from Roger Ogren’s perspective, in putting the medical examiner on the stand. This was the point made by Judge Bialek, who, like any judge, would rather that trials move more quickly than slowly and who is always happy to embrace a stipulation that spares her precious courtroom hours.

“Members of the jury,” says Judge Bialek, “the prosecutor, Mr. Ogren, is going to read a stipulation to you. A stipulation means that the parties have agreed that the facts stated to you are, in fact, true. You may accept these facts as true. You may consider them as evidence every bit as much as you consider any other information you receive in this matter. Mr. Ogren, you may proceed.”

“Yes, Your Honor.” Roger Ogren stands before the jurors and reads from a piece of paper, as if he were unfurling a scroll and announcing first, Hear ye, Hear ye .

I take Shauna’s hand in mine. We’ve agreed that, during this one portion of the evidence, it is best that we hold hands, given that the jury’s eyes, not otherwise diverted by someone’s testimony or an e-mail on a screen, might likely move to the defense table.

“The parties stipulate that on Tuesday, July thirtieth of this year, Alexa Marie Himmel suffered a gunshot wound to the throat while in the living room of the home belonging to the defendant, Jason Kolarich. That gunshot was fired from behind her, from a distance of approximately ten feet. The bullet severed Ms. Himmel’s fourth cervical vertebra, and death was instantaneous. The county medical examiner has conducted an autopsy and routine toxicological examination and found no other evidence of any foul play, injury, or illness that would have caused Ms. Himmel’s death.

“The parties therefore stipulate that this single gunshot wound was the proximate cause of Ms. Himmel’s death, and that the manner of death was homicide.

“The parties stipulate that Ms. Himmel’s time of death occurred between the hours of nine P.M. and midnight on Tuesday, July thirtieth of this year.”

The stipulation was my idea. We let Roger write the first draft, and I added a couple of facts before letting Roger take another turn at it. We could have scrapped the whole thing and allowed witness testimony to cover this, but we had the judge on our side wanting to circumvent hours of testimony, and a prosecutor is always happy to have stipulated evidence. Why not? Even with rock-solid witnesses, you never know what might happen. A cop or coroner might have a car accident. They might slip up on the stand somehow, in some way, and open a door for an ambitious defense attorney. Fear of the unknown is what keeps trial lawyers up at night.

But more than the prosecutor or judge, the person who wanted this evidence down in writing most of all was me. I want the jurors to be able to take this information back with them during deliberations.

Because it highlights the first mistake the government made.

Jason

Officer Janet Brannon, another member of the County Attorney Technical Unit, takes the stand at eleven. Her testimony will be short and sweet. Katie O’Connor is hoping to get her in before lunch so the government can get their next witness, an FBI agent, on and off before the end of the day. Judge Judy is hoping for the same thing.

“As part of the investigation,” says O’Connor, “did you consider the possibility that someone other than the defendant shot and killed Ms. Himmel?”

“Yes, we did. We looked at many things.”

“Did that include fingerprinting the defendant’s home?”

“Yes, it did. I oversaw the process. We took prints from every surface on the first floor, including the door and doorknobs on each side. We took prints from the garage. We printed everything on the second floor, not only the living room area where the murder occurred, but everywhere. And for good measure, we printed the third story of the town house, as well.”