David Ellis - The Last Alibi

“And were you dealing with this alone, or did you have any help?”

“Alone,” Jason answers. His eyes remain fixed on Bradley, deliberately avoiding mine. This was the subject of a heated debate, to say the least, Jason wanting to remove me entirely from the equation, pretending that I wasn’t with him during those initial days of his withdrawal, not wanting to risk the possibility that I might become a witness. You can’t be my lawyer and a witness, he said to me, stating the obvious. I need you as my lawyer.

That was his stated reason, anyway. We both knew, I think, that his reasoning ran deeper. He didn’t want to put me in the position to have to testify under oath. He didn’t want to put me in a position where I would have to lie.

Or where I would tell the truth.

Shauna

“Jason,” says Bradley John, “I’d like to talk about another exhibit the prosecution admitted into evidence.”

Bradley puts on the screen the e-mail that Alexa sent, with the attached letter to the Board of Attorney Discipline. “Did you open and read this e-mail, Jason?”

“I did. Something like ten o’clock on Tuesday morning.”

“This is Tuesday, the thirtieth of July? The day Alexa died?”

“Correct,” Jason says.

Bradley puts the letter itself on the screen. “Did you read the letter?”

“I did, yes.” That’s already been established by the prosecution, anyway.

“What was your reaction, Jason?”

“More than anything, I was sad,” he answers. “It was spiteful. It wasn’t like Alexa to do something like that.”

Roger Ogren is maintaining appropriate courtroom demeanor, the stone face, but I see his lips twist up just a little. This is one of those times when you realize a trial is just a show, a performance, a competition, not the reflection of the truth it’s supposed to be. Roger Ogren knows about Alexa’s history, the doctor in Ohio and the restraining order. He fought like hell, successfully in the end, to keep any reference to it away from the jury. So the jury will never hear it. But Ogren himself, he knows all about it. And he knows we know, of course. And so Jason telling this jury that it “wasn’t like Alexa to do something like that” is, to the lawyers in the room, pure bullshit. An untrue statement taken from an artifice constructed by Roger Ogren and, ultimately, the judge, who agreed with his argument and kept Alexa’s past off-limits.

It is the first time during Jason’s testimony that Roger Ogren is certain that Jason is lying. And it has changed how he views him. Whether that will make a difference to us is anyone’s guess.

“Beyond that,” Jason goes on, “what she wrote was basically true. I’m not aware of any case I handled during that time period where a client of mine suffered as a result of my problem. But it’s no doubt true that I had that problem.”

“What did you do, Jason, after reading that e-mail and the attachment?”

“I went to see Alexa,” he says.

Roger Ogren, in spite of himself, rifles to attention. This would be news to him.

“When did that happen?” asks Bradley.

“Not long after I read the e-mail,” Jason says. “I packed up Alexa’s clothes and toiletries, whatever belonged to Alexa that was in my house, and then I drove them over to her house. I needed to return those things, anyway. And I wanted to talk to her.”

“Did you? Talk to her, I mean?”

“Yes. I drove to her house. I brought in the suitcases. We sat in her living room and talked. I told her that she could send that letter if she wanted to, that it was basically true and that I wouldn’t deny the charges.”

“What happened next?”

“She told me she’d never send that letter, that she’d never do anything to hurt me.”

“Objection, hearsay,” says Roger Ogren.

Bradley says to the judge, “It’s not offered for the truth of the matter asserted, Your Honor. Only to show the effect on Mr. Kolarich’s state of mind. This is all about motive, from the prosecution’s standpoint. They want to paint this picture of a man threatened, and we are offering this to show that he didn’t feel that way at all.”

“This is offered precisely for the truth of the matter asserted, made by someone who isn’t here to contradict this so-called truth,” Ogren snaps back.

The judge holds up her hand. “The objection is overruled.”

“Your Honor,” Ogren says, “I’d request this testimony be held in camera first so we can address these hearsay problems before they are simply tossed out in open court-”

“What hearsay problem? That objection was overruled,” Bradley says, his competitive juices flowing. He’d be better off shutting up. When you’re ahead, shut up. A young lawyer’s mistake. Some of the best decisions an attorney makes are when she keeps her mouth closed.

“We’re not hearing this testimony twice, Mr. Ogren,” the judge says. “And the two of you, I’m going to say this once: You do not talk over each other and you don’t talk at all unless I indicate that I want to hear from you. Is that clear?”

“Yes, Your Honor,” says Ogren, defeated, and says Bradley, satisfied.

“Jason,” says Bradley, “when Alexa told you she was never going to send that letter, and that she’d never do anything to hurt you, did you believe her?”

Borrowing a page from Ogren’s playbook, earlier in the trial, repeating helpful testimony in the form of a question. Ogren can hardly object.

“Of course I did. I was surprised she even sent that e-mail in the first place. Like I said, it really wasn’t like her to do something mean-spirited like that. So, I’m sorry-the answer to your question is, yes. I believed she would never send that letter to the disciplinary board.”

“And what happened next, Jason?”

He lets out a breath, a small courtroom victory accomplished. “Then I went back home, and I continued my recovery. I remember Tuesday as being a rough day, but honestly they all were.”

“You were home all day?”

This is a question the police and prosecutors have wanted answered since July thirtieth, when they found Alexa Himmel’s body. Where was Jason until sometime just after midnight, when he claims that he first returned home and found Alexa dead?

“No, I didn’t stay home the whole day. I went to the beach later that day. Can’t be sure when. Maybe-maybe mid-afternoon? It was a nice day. I sat on the beach and watched the waves. I did some power-walking, too. The adrenaline helped. It was kind of like a substitute for the drug.”

It’s a bit unsettling how well Jason can lie. He never went to the beach that day. He was lying on the couch, alternating between suffering and sleep, the entire afternoon and evening. He couldn’t even hold down the peanut butter toast I made him.

“You stayed at the beach for how long, Jason?”

“I can’t be sure. Until it got dark.”

“Do you recall, during that time in late July, when it got dark?”

“Oh, around eight.”

Getting close to that 8:16 P.M. phone call to his house. The call from Alexa, that sent him scurrying over to her place. If he’d never answered the phone, if he’d refused her pleas, if he’d just stayed home with me-

“And I stayed there in the dark for a while, too,” Jason goes on. “Sometimes that’s the best time to be by the lake. So maybe eight-thirty, maybe nine. I mean, it could have been nine-thirty, too.”

“And then what did you do?”

“I drove around,” he says. “All over, I guess. Everywhere and nowhere. I wasn’t traveling to a destination.”

“That sounds. . unusual,” Bradley says, faux confusion.

“Not if you consider why I was doing it,” he says. “I wasn’t going anywhere. I just needed time to pass. You have to understand, what you’re doing when you’re in withdrawal, when you get down to it, is simply killing time. Every minute you’re clean is a victory, another minute closer to not needing pills anymore. They’re horrible minutes, but necessary. So I was doing anything to distract myself, trying to ignore the cravings, trying to hold out. If watching a children’s cartoon would pass the time effectively, I’d do it. If suspending myself upside down would help, I’d do that. All I was trying to do was get my body and my mind accustomed to not having OxyContin.”