A Conflict of Interest (37 page)

“How did it go today?” she asks.

“It’s hard hearing the evidence laid out. And, no big surprise, during his opening Broden promised Ohlig’s going to testify.”

“Did he give any hint of what Ohlig’s going to say?”

“Broden didn’t come out and say it directly; I think he’s trying to keep all his options open. But when push comes to shove, he’s going to say that my mother killed herself.”

“Then it’s a good thing you’re there to tell them that didn’t happen.”

I move the topic away from my expected testimony. “Broden’s something to see. He’s really got them eating out of his hand.”

“And how’s the prosecutor, what’s her name, Morgan?”

“She’s fine. A little on the stiff side, but she makes up for it with absolute certainty that Ohlig’s guilty.”

“You say it as if you lack that certainty.”

“I think it’s more complicated than that.”

“What’s complicated about whether he’s guilty or innocent?”

I smile, which I know is lost on her over the phone. If only things were that simple, I think to myself.

R
obertson’s first witness is the sheriff of Palm Beach County, Richard Brunswick. He looks like a cop undergoing a makeover that’s still in progress. There’s a certain amount of polish to him, the snug-fitting suit and the pocket square that matches his tie, but they are at odds with the used car salesman mustache and large pot belly that hangs over an alligator belt.

His answer to Robertson’s first question—“Are you currently employed?”—clarifies the inconsistency.

“Since my election in 2007, I have served as the sheriff of Palm Beach County. Before that, I was a career law enforcement agent here in Palm Beach.”

I should have guessed. Richard Brunswick is a cop turned politician.

Just as Special Agent McNiven did during the securities fraud trial in New York, Sheriff Brunswick is going to lay out the prosecution’s case. Robertson has already told the jury in her opening statement that eyewitnesses and experts will follow, but Brunswick will give the narrative into which the evidentiary pieces will fit.

Brunswick has a confident air about him without being too smug, not an easy balance for either a cop or a politician to master. He recounts his rise through the department, during which he seems to have held every position in law enforcement from crossing guard right up to chief of police. When there was nowhere higher to climb within the department, he was elected sheriff.

This is Brunswick’s nineteenth murder case, he tells the jury, the fourth since he’s been sheriff. This seems like a lot to me, which I imagine is why Robertson sought to bring this issue to the fore, so the jury won’t think he’s a small-timer in over his head.

Robertson takes Brunswick through the investigation chronologically, careful to touch on each of the points she made in her opening.
Early on she plays tape 17, the one I first heard during Ohlig’s New York trial. The one that started all of this, at least for me.

Tapes are catnip for a jury. It’s the only time they get to hear the actual truth and not the testimony of well-coached witnesses. I understand from Robertson that there was a hearsay skirmish over this one, but because it’s Ohlig’s voice, the recording is admissable as a party admission.

Even though by now I’ve heard the tape at least half a dozen times, the sound of my mother’s voice pledging her undying love to a man who is not my father still touches the same nerve it did originally. I can feel the jurors looking at me as they listen, and I oblige them by wiping my eyes, even though there are no tears.

“It is the theory of the defense,” Robertson tells Brunswick as if he doesn’t know, “that Mrs. Miller committed suicide—”

Broden objects, rightfully. This was a poorly worded question on Robertson’s part.

“Your Honor,” Broden says, “the defense doesn’t have theories. The defense is only obliged to point out that the government’s theory of murder is not believable beyond a reasonable doubt.”

“He’s right,” Judge Rodriguez says to Robertson. Even he looks a little disappointed with her. “Try to rephrase.”

“Sheriff Brunswick, did you consider that Mrs. Miller committed suicide as a possible explanation for her death?”

Robertson actually looks over her shoulder at Broden, I assume to see if he’s going to object. When he doesn’t, she looks back at her witness.

“Believe me,” Brunswick says, “I’m in no hurry to declare something a murder if it isn’t. I know that the defense has claimed this might be a suicide, but that just isn’t consistent with the evidence.”

Broden could object and seek to strike Brunswick’s answer, but he’s smart enough to know not to dwell on this issue. He’s made his point that it’s not the defense’s burden to prove suicide, and he’s content to leave it at that.

“Why is that?” Robertson asks.

“For starters, there’s no suicide note.”

“In your experience, Sheriff Brunswick, do most people who take their own lives leave a note?”

Broden objects. This is an area in which the experts will fight it out later. Robertson has already told me that each side lined up a psychologist with differing views on the subject.

I expect Judge Rodriguez to leave the question for them, but he lives up to his reputation as a prosecution-oriented jurist. “Mr. Broden,” he says, “I believe that the experience of the county’s leading law enforcement official is relevant here, and so I’m going to allow it.”

It’s a nice feeling being on the other side for once. Judge Rodriguez’s ruling is probably wrong—after all, how many suicides has Brunswick actually dealt with, and how would he know how many he’s missed?—but it’s a tremendous boon to the prosecution.

“I’ve never seen a suicide that didn’t leave a note,” Brunswick says. Largely because I’m sure Robertson has informed him that statistically that’s not accurate, he qualifies his answer by adding, “I’m aware that some have existed, of course, but I believe that they are the narrow exception.”

After this detour into a subject matter he has nary any experience in, Brunswick goes onto sturdier ground, as Robertson focuses on the sleeping pills, which are a lynchpin of proving my mother was murdered.

“Sheriff,” Robertson says, “please tell the jury about the quantity of sleeping pills found in Mrs. Miller’s system.”

“Yes,” he says. “We found approximately 40 milliliters of a drug called Ambien. That quantity is inconsistent with Mrs. Miller voluntarily going swimming.”

“Objection,” Broden says again, although I can tell he knows it’s not going to fly. I suspect he’s trying to lay the groundwork for the jury to see what an uphill battle a defendant faces, a variant on the no water at counsel table theme.

“What is it, Mr. Broden?” Judge Rodriguez asks.

“Once again, this witness is a police officer. He has no training whatsoever in forensics or medicine, and therefore his views about sleeping pill quantities should be stricken.”

“No. No.” Judge Rodriguez says, shaking his head. Then he turns to the jury. “Ladies and gentleman, Mr. Broden is correct that Sheriff Brunswick is not a doctor or a scientist or, for that matter, an Indian
chief. He is, however, the sheriff of this county, and by virtue of that, he has been involved in more criminal cases than anybody else in this courtroom. It is for that reason, and only that reason, that I’m permitting him to testify about these subjects. The prosecution and the defense may call to the stand later other people who are more expert in these particular areas. If—and I’m not saying that this will happen, but
if
—any of those experts disagree with Sheriff Brunswick, then I leave it to your good judgment to decide whom you should believe.”

Broden should now know where he stands. The judge is going to allow Sherriff Brunswick to serve as the master of ceremonies for the prosecution’s case, and he’s telling Broden to back off.

“Is that what led you to believe that Mrs. Miller’s death could not have been an accident?” Robertson asks with the same wide-eyed expression she used for the question regarding how Sheriff Brunswick rejected the suicide angle.

“Your Honor, is it too much for the defense to ask that Ms. Robertson not lead her own witness to discuss what caused him to believe anything?” Broden asks with obvious contempt.

Broden scores with the gallery, if not the judge. “Mr. Broden, if you have an objection, please make it without playing to the crowd.” Judge Rodriguez waits a beat. “That’s only permitted for the judge.” This quip earns a larger laugh, which Broden acknowledges with an exaggerated bow of his head.

“Would you like me to repeat my question, Mr. Brunswick?” Robertson asks, looking only too eager to move away from the banter going on between the judge and the defense counsel.

“No, I remember it. You asked why we concluded that Mrs. Miller’s death was not an accident. As I previously testified, the amount of sedative—the sleeping pills—almost conclusively meant that her drowning was not an accident. These pills must have taken effect within an hour or two of her death. Our conclusion was that her murderer”—and then Brunswick points—“Mr. Ohlig, drugged Mrs. Miller so that he could later throw her overboard to her death.”

You could almost feel Robertson ticking off the points she wanted to present through Brunswick. First, establish that it wasn’t a suicide,
but murder. Then show that Ohlig did it. If that was her plan, she was halfway there.

“Did you consider any other possible suspects in this murder?” she says, emphasizing the last word.

“Of course. The first rule in law enforcement is that everyone starts off as a suspect, and then you eliminate the ones who couldn’t have done it. You don’t do it the other way around.”

“What ultimately caused the police to conclude that Mr. Ohlig was guilty of this murder?”

“There were several factors. First,” he touches his two index fingers together, as if he is counting the reasons on his hand, “we learned that the sleeping pills in Mrs. Miller’s system were purchased by Mr. Ohlig, which, of course, raised suspicions. Mr. Ohlig denied any involvement in the purchase of these pills, which we knew was untrue based on the credit card statements and the mailbox where the pills were delivered. That mailbox was the second reason,” he says, this time touching two fingers on his right hand against the index finger of his left. “Third, Mr. Ohlig was engaged in a long-running affair with Mrs. Miller that he had just ended, which apparently upset Mrs. Miller sufficiently that she demanded to see him at once.” Three fingers now touch his left hand. “Mr. Ohlig lied about the last time he saw Mrs. Miller, claiming it was weeks prior when, in fact, it was the morning of her death.” Just as Brunswick is running out of fingers, he says, “Finally, we had an eyewitness who put Mr. Ohlig at the scene of the crime with Mrs. Miller—on his boat shortly before the time Mrs. Miller went into the water. All in all, the evidence of Mr. Ohlig’s guilt is overwhelming.”

“Thank you, Sheriff Brunswick,” Robertson says. “No more questions, your Honor.”

I can tell from the outset that Sheriff Brunswick isn’t going to fare well against Clint Broden. There’s a swagger to Brunswick that you love to see when you’re a cross-examiner. It’s like someone pulling out a knife when you know you have a gun.

“Sheriff Brunswick,” Broden begins, “I’m going to ask you some questions that are a little different than the ones the prosecution just asked. In my questions, I just want to know what you know firsthand.
I’m not interested in what other witnesses told you—or what Ms. Robertson here told you. Okay? I only want to know what you know.”

The point made that Robertson overstepped, Broden proceeds to show Brunswick exactly who’s in charge. I have the sinking feeling that, despite the fact that the questioner always controls the examination, Brunswick might actually think he’s running the show.

“Sheriff, did I hear you correctly that the presence of sleeping pills in Ms. Miller’s system is what made you conclude Mrs. Miller was murdered?”

“That’s right.”

“Why didn’t you conclude that she took these pills herself, as part of a suicide?”

“Like I testified before, because there was no suicide note, and no evidence of her being in a suicidal state of mind.”

“You’re not a psychiatrist, are you, Sheriff?”

“No.”

“And you’re not a psychologist?”

“No.”

“Do you have any training whatsoever that gives you insight into recognizing when a person is in a suicidal state of mind?”

“As a law enforcement officer of twenty-seven years, I do.”

By sparring with Broden, Brunswick is only making it harder on himself. Robertson should have prepared him better, but it’s also possible that he was one of those witnesses who just wouldn’t take instruction.

“Did your twenty-seven years of law enforcement experience teach you that the sudden death of your husband of thirty-five years doesn’t make you depressed?” Brunswick doesn’t answer, but blinks uncomfortably. “Sheriff, you need to answer, so the jury can understand how your twenty-seven years of law enforcement experience prepared you to offer the psychological evaluation that even though Mrs. Miller’s husband of thirty-five years had just passed away, she wasn’t depressed.”

“Well, she was having an affair with Mr. Ohlig, so I don’t know how upset she was about her husband’s death.” Brunswick is smiling, and that only makes it a thousand times worse. It’s bad enough when the
defense puts the victim on trial, but at least that’s their job. No one wants to see the police impugn the dead.

Broden can probably smell blood in the water now. “And did your twenty-seven years of law enforcement training lead you to conclude that the death of Mrs. Miller’s husband while she was cheating on him was insufficient to cause her to take her own life out of remorse or guilt?”

Brunswick doesn’t answer at first, but at least he’s not smiling.

“Is that your expert psychological opinion,
Sheriff
?” Broden emphasizes the last word, telling the jury once again that Brunswick is a long way from having expertise in this area.

“I don’t know,” Brunswick finally says.