The Last Alibi (23 page)

I wasn’t kidding. If you don’t get in touch with me your going to be seriously fucked.

“At this time, Your Honor, I’d like to return to the video interview,” says Katie O’Connor.

She starts off right where she stopped. Back to Detective Cromartie asking me about the state of my relationship with Alexa at the time she died:

“So just to be clear, Jason, just so there’s no misunderstandings, you and Alexa were together as of today? You guys were still a couple?”

“Yeah, of course,”
I say.

“Had you been together for, say, the past week?”

“Yeah.”

“The past two weeks?”

“Yeah. We’d been together.”

“Your relationship was fine. At the time she died, your relationship was go
od?”

“Our relationship was fine,”
I say to Cromartie.
“Our relationship was good.”

Katie O’Connor stops the tape. I maintain my
I’m innocent
expression, staring straight ahead, trying to show no emotion. It isn’t easy. It isn’t easy to be caught in a lie in front of a roomful of people. Especially when twelve of those people are deciding your fate.

I’m a liar. No one in this room has any doubt. And why lie? Because I’m guilty, right? That’s how people think. As a prosecutor, I routinely relied on that bias. When I caught a defendant in a lie, I would harp on it in closing argument ad nauseam. But I never agreed with that presumption myself. There are many reasons that people lie. Why is telling a lie, in the heat of a criminal inquiry, limited to people who are guilty of the crime?

“Let’s go back to the e-mails, Lieutenant,” says O’Connor.

She is working in chronological order. Logically, the right decision.

But tactically, as well. She is saving the best for last.

58.

Shauna

“Lieutenant Krueger,” says Katie O’Connor, “did you recover any e-mails from Ms. Himmel to the defendant on the date of Tuesday, July thirtieth? The day of her murder?”

“I did. I recovered an e-mail with content and with an attachment.”

The prosecutor puts that e-mail on the board for the jury:

Tuesday, July 30, 9:01 AM

Subj: I REALLY wasn’t kidding

From: “Alexa M. Himmel”

To: “Jason Kolarich”

Hi, there. Hope you’re well. I’m really concerned about the attached letter getting out. Maybe we can put our heads together and figure out how to prevent it. But if you keep ignoring me then I guess there’s nothing i can do. . . . . .

< BAD.Letter.pdf >

“You said there was an attachment?”

“Yes,” says Krueger. “You can see at the bottom of the printout of the e-mail. A document entitled ‘BAD Letter,’ in portable document format, or PDF as most people know it, was attached to this e-mail.”

“Did you print out a copy of that PDF document?”

“I did.”

“People’s Fourteen,” says O’Connor. “Is People’s Fourteen a true and accurate copy of the document attached to that e-mail?”

“Yes, it is.”

The jury is now looking at the letter Alexa attached to that e-mail:

To: The Board of Attorney Discipline
Subject: Jason Kolarich, Attorney ID # 14719251

I am writing to report an attorney named Jason Kolarich, currently practicing at the law firm of Tasker and Kolarich. Jason has become addicted to a painkiller called oxycodone. It has hampered his ability to practice law, I fear to the detriment of his clients. He has lost a good deal of weight, and his behavior has become erratic. I am not a lawyer, so I don’t know if the drugs have stopped him from defending his clients properly. I don’t know if there are rules governing this, but I thought the state’s board that regulates lawyers should know about this.

More than anything, I think a client, before they hire a lawyer, should know if that lawyer is a drug addict.

I am afraid to sign this letter, but I hope you will look into it.

“Lieutenant, do you know whether this letter was ever sent to the state’s Board of Attorney Discipline?”

“I don’t know one way or the other,” says Krueger. “All I know is that, the following evening, Ms. Himmel was murdered.”

I could object, but I don’t. The jurors wouldn’t notice, anyway. Several of them, while stopping short of nodding enthusiastically or making throat-slashing gestures, indicate the impact this evidence has had on them. Eyebrows go up. Lips part. One of the guys in the front row, having craned forward throughout the showing of the e-mails, falls back in his chair, glances at his neighbor. I can imagine the bubble over his head:
Well, our deliberations won’t take long, will they?

I can hardly blame them. It doesn’t get more damning than this. Alexa had become more than just an ex-girlfriend with separation anxiety. Now she was someone who was going to ruin Jason professionally if he didn’t take her back. And roughly twelve hours later, she was shot in the back with Jason’s gun, while standing in Jason’s living room.

At the podium, O’Connor takes her time, flipping through her notes, pretending to locate her next line of questioning when, in fact, she just wants that letter to sit up on the screen for as long as possible.

“Lieutenant, sending an e-mail is one thing. It’s another thing whether the intended recipient of that e-mail actually received it. Did you investigate whether the defendant had, in fact, received or opened these e-mails we’ve discussed?”

“I did. The defendant gave us permission to access his laptop. In addition, we issued subpoenas to review the e-mails sent to and by the defendant on his e-mail account.” Lieutenant Krueger takes the jury through that process. It was a thorny one, involving Judge Bialek, because an attorney’s e-mails include many confidential communications with clients.

“We were able to determine the date and time that each e-mail was opened,” Krueger explains.

It gives Katie O’Connor the chance to put each of these e-mails back up on the screen. She pops up each e-mail and asks Lieutenant Krueger if and when Jason opened that e-mail. People’s Exhibit Seven, the July 27 e-mail at 8:43
P.M.
, was opened at 9:35 that evening. People’s Eight and Nine, in the early hours of Sunday, July 28, were opened on Jason’s laptop within minutes of each other on Sunday morning. People’s Ten, the How-to-Hurt-Alexa-101 e-mail, was opened an hour after it was sent, just after five
P.M.
on Sunday, July 28. Blow by blow, Lieutenant Krueger demonstrates that Jason was routinely opening these e-mails.

“People’s Thirteen,” says O’Connor, referring to the final e-mail, the one with the attached letter. “Sent at 9:01
A.M.
on Tuesday, July thirtieth. When, if ever, was that document opened on the defendant’s computer?”

“Three minutes after ten that same morning,” he says.

“And People’s Fourteen, the letter to the Board of Attorney Discipline? When, if ever, was that document opened on the defendant’s laptop?”

“Within the same sixty seconds,” he answers. “Ten-oh-three in the morning. Just over an hour after the e-mail and attachment were sent, the defendant opened it up on his laptop.”

O’Connor nods. “After that final e-mail with the attached letter, did you find any further e-mail communications between the defendant and Ms. Himmel, Lieutenant?”

“No, I didn’t,” says Lieutenant Krueger. “It was the last e-mail Ms. Himmel ever sent.”

59.

Shauna

The judge calls a midmorning recess. Jason heads straight to the anteroom where he’s able to confer with counsel. He doesn’t even turn around to acknowledge his brother, Pete, who seems eager for my attention.

“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.

60.

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.