PEOPLE VS. JASON KOLARICH
TRIAL, DAY 4
Thursday, December 12
73
Shauna
Judy Bialek hurries into her reception area, two work bags slung over her shoulder, looking just a bit disheveled as she nods to her receptionist and waves to the lawyers waiting for her. “Sorry I’m late, everybody, crazy morning,” she sings as she brushes past us into her chambers. She is a divorced mother of three kids, all in high school. It is somehow comforting, in the midst of the angst and stress of this trial, to see the judge coping with some stress of her own.
Not that a judge is ever late. The meeting starts when the judge says it starts. Judges make you wait all the time-I remember once Judge DeCremer, in the civil division, scheduled no less than four pretrial conferences for the same time and made us all wait for him. I showed up with my client at one o’clock and left at a quarter to five.
The receptionist’s phone buzzes. “You can go on in,” he says to us.
Inside her chambers, the judge looks a bit more composed, sitting behind her long black desk, everything neatly in its place, her hair pulled up in back now, her black robe hanging to the side on a coatrack.
“I want to talk schedule,” she says. “The government only has one more witness, is that correct, Mr. Ogren?”
“That’s correct, Judge. Her direct testimony won’t take half an hour.”
“Okay. And then the government will rest?”
“Yes, we will.”
The judge nods. “Ms. Tasker, I suppose the defense will move for a directed verdict.”
“Absolutely, Judge,” I say, but nobody in this room thinks the judge is going to toss the case for lack of evidence. This case is going to the jury.
“Assuming that your motion is denied, Ms. Tasker, can you give me an idea of whom you plan to call, and why, and how much time you need? Oh, and I forgot-you reserved your opening statement. How much time do you expect to use on your opening, too?”
I haven’t told them anything yet. The defense is entitled to considerable leeway in withholding its game plan in a criminal case. Jason, of course, has the right to testify and the right not to testify, and that gives me the right to leave everyone guessing. Beyond whether Jason testifies, I haven’t given a hint as to whom I may call in our defense, if anyone.
Don’t tell them, no matter how hard the judge pushes, Jason advised me. She’ll push you, but she can’t make you tell her. These aren’t the civil courts you’re used to. Don’t let them know until it’s time.
I’ve followed that advice, to the chagrin of the judge, until now. Now it’s time.
“Judge, we’ve decided to waive our opening statement.”
The judge is surprised. So is Ogren. His eyes have narrowed and he’s blinking rapidly, thinking it through. First, we asked for the right to reserve our opening statement until the defense’s case. Now we are forgoing it altogether. Why? He’s probably narrowing the reasons down to two. One possibility is that our case is so incoherent that I don’t have a story to tell. We’ll drop a few bombs and try to muddy the picture, but we don’t have a logical theory of what really happened, start to finish, so we won’t bother trying to craft a narrative.
The other possibility is surprise. We’ve been holding back our argument and we’re continuing to do so, because we want to spring it on the prosecution as late as possible.
I’m sure Ogren prefers the former theory to the latter.
“Very well,” says the judge. “Do you plan on calling any witnesses?”
“We reserve the right to call everyone on our list for the moment,” I say. “But we’re going to start, today, with my client.”
Roger Ogren and Katie O’Connor each stir just a bit, casting glances at each other, Ogren taking a deep breath. They never knew for sure. They didn’t know if, they didn’t know when Jason would testify.
“I see.” The judge falls back in her chair. “Would it be fair to assume that Mr. Kolarich’s testimony will take up the rest of this week, today and tomorrow?”
“I would assume so. At that point, Friday evening, I should have a good idea whether we’re going to call anyone else.”
“Judge,” says Ogren, “Ms. Tasker has named, as you said, the entire roster of Area Three detectives on her witness list. Including several detectives who didn’t work on this case at all, by the way. First of all, we’d request that Ms. Tasker give us a good reason why they have to be called, and second, Judge, these men and women don’t all work nine-to-five shifts. It’s going to take some work to bring them in. We need as much notice as possible. And again, I’d hope that we could get a good explanation as to the relevance of-”
“I understand, Mr. Ogren. It’s not my first trial.” The judge holds him up. Ogren has the tendency to talk down to people, and judges are not fans of condescension.
“Okay, everyone. Let’s put on your final witness, Mr. Ogren. Then, Ms. Tasker, I’ll give you fifteen minutes to argue for a directed verdict. I will tell you right now that you will face a tall climb, but of course I’ll hear you. Assuming we go forward from there, Ms. Tasker, do you think Mr. Kolarich’s direct testimony can be completed today?”
“I would think so, Judge.”
“So that would give Mr. Ogren tomorrow for cross-examination and then redirect and recross, and maybe we could get that done by then. Okay. Okay.” She nods. “Ms. Tasker, tomorrow, you will give me a smaller list of witnesses you’re going to call. It’s not going to be the entire Area Three squad room. You understand that?”
“Yes, Judge. It won’t be that long.”
“Very well. Let’s get out there,” says the judge.
74
Jason
“We call Detective Molly Hilton,” says Katie O’Connor.
Molly Hilton is a short woman with frizzy blond hair and a hard look about her. I’ve never met her, but Lightner apparently knows her ex-husband from when he was a cop in Marion Park. These cops are a whole community unto themselves.
“My assignment,” Hilton says, “was to piece together the sequence and timing of events on the day of Ms. Himmel’s death, for both Ms. Himmel and Mr. Kolarich.”
Oops, Katie forgot to tell her to call me the defendant.
“Anything else?” asks O’Connor.
“I also wanted to figure out where Ms. Himmel was staying at the time of her death, whether she was living at Mr. Kolarich’s house or her own.”
“In the course of undertaking this assignment, Detective, did you review phone records?”
“I did.”
Katie O’Connor refers again to Alexa’s phone records on the day of her death, Tuesday, July 30, previously admitted into evidence:
CALL DETAIL RECORDS FOR CELL PHONE OF ALEXA M. HIMMEL
Tuesday, July 30
Time
Destination
Length of Call (minutes)
Originating Cell Site
6:14 PM
555-0150
1
221529
8:16 PM
Kolarich Home
2
221529
“Detective Hilton, do you see the first line on this chart, a phone call made from Ms. Himmel’s cell phone at 6:14 P.M. on the day of her death?”
“I do.”
“Did you track down that phone number?”
“I did.”
“And whose phone number is that?”
She says, “It’s the phone number for Mario’s Pizzeria in Overton Ridge.”
“I see. And did you investigate this phone call any further?”
“Yes, I did. We subpoenaed credit card records to review any transactions that might have taken place on that date,” she says.