Death Trap (29 page)

56

By the end of January, Jessica got her sister involved in a new letter-writing campaign. This time the missives were sent to John Wiley, her attorney. The main thrust of the content focused on Wiley not doing exactly what Jessica McCord wanted. His integrity and honor were attacked. His concern for all his clients put under scrutiny. His ability to do his job severely strangled by the accusations and wild speculations of an alleged murderer. The guy had not said a word in open court and he was already being branded some sort of failure who clocked in and out of his professional life as though the freedom of his clients didn’t matter.

By February 9, 2003, Jessica had apparently settled her differences with John Wiley. On that Sunday, Wiley released a statement to the Associated Press citing his uncertainty as to whether Jessica was going to take the stand in her own defense. With Jessica’s trial days away, Wiley got busy getting ready. Jessica would have to put her dream of freedom on the back burner for now. No matter what she said, whom she wrote or complained to, Jessica McCord was scheduled to face a jury of her peers on matters that could put her on death row.

Roger Brown would not comment on his case.

Both sides agreed, however, that Jeff McCord was not expected to testify against his wife. His trial was still on the docket for an April gavel slap.

According to an Associated Press article, John Wiley released a statement saying prosecutors
lack[ed] conclusive evidence tying the couple to the murders,
adding,
We’re very hopeful we can show the jury how the state is unable to prove her guilty without a reasonable doubt.
Wiley claimed to be confident of his client’s innocence.

If nothing else, Jessica had an advocate in John Wiley—someone willing to fight for her alleged virtue, even if she had previously attacked the man’s credibility.

57

Jessica’s trial began at 8:53
A.M
., Tuesday, February 11, 2003. It was a partly cloudy day. The temperature was forty-one degrees. The wind, barely noticeable, blew gingerly south-to-southwest at 3.5 miles per hour. Room 375 of the Mel Bailey Criminal Justice Center in downtown Birmingham, on Richard Arrington, Jr. Boulevard North, buzzed with talk of this high-profile double-murder case. Three men and eleven women were chosen to sit and hear Jessica’s case. Jefferson County chief district attorney Roger Brown, who had been as quiet as a CIA agent, had given the press no indication where he was headed with his case, other than calling the murders of Alan and Terra “vicious and brutal.”

Brown had his boxing gloves on. He was ready for the opening bell. His witnesses lined up behind him.

The veteran prosecutor had a deep, serious vocal tone, but it simultaneously came across as clear, sincere and unlabored. In the courtroom was where Brown felt most comfortable. Early on, Brown had decided to try the case himself and not hand it off to one of his attorneys. He was there to represent Alan, Terra and their families. He was there to see that justice would be served. And he was also there to extend a hand of virtue and morality to the jury in the hopes that they understood the severity of these inhuman, savage murders. Lest no one forget, if you believe Brown’s version of his case, these murders were calculated, premeditated and carried out with an evil recourse that was rarely seen.

Brown first gave a narrative of what he called “that weekend.” Of course, he was referring to the evening when Alan and Terra were murdered. How much Alan had looked forward to giving his deposition and ending a battle with Jessica to see his kids. Brown built up the suspense of Alan and Terra walking into Jessica’s lawyer’s office and then leaving with smiles on their faces. He said Alan was confident the depositions had gone well—maybe even his way. Then Brown told the jury how Alan and Terra had stopped and ate at a nearby hot dog shop. How they drove to Hoover, probably discussing how great it was going to be to see the kids again, then slowly, as if they knew something was wrong, approached the McCord house in the rental car.

“So, Alan and Terra, who had never been allowed in this house before,” Brown said in a thunderous roar, “turned back down . . . the driveway, probably hand in hand, toward the fence that led to the back . . . completely unaware that, step-by-step, they walked closer to the brink of eternity in those last few minutes of their very too-short lives.”

The prosecutor waited a beat. Allowed the gravity of those words to sink in.

“How did we come to this?” Brown asked before embarking on what was a long, violent and emotionally tormented history between Alan and Jessica. All the fighting on Jessica’s part. All the visitations Alan never had with his kids. All the chaos “that woman over there”—pointing, raising his voice—had caused Alan Bates to endure throughout his adult life.

Something the media hadn’t discovered, a suggestion by Brown that was never made public, came out of the experienced prosecutor’s mouth as he approached the motive portion of his opening. He was talking about that particular lightbulb moment for Jessica.

“And while she was in jail [during that Christmas contempt charge in 2001] . . . she read the book
The Murderers.
Told her inmate friends there [in jail] she would do anything,
anything,
to keep her kids.”

The Murderers,
by W.E.B. Griffin, is a fictional exploration of corruption inside law enforcement. The plot involves the wife of a Philadelphia cop, who leaves her husband for another cop, after reporting his “dirty” tactics. The book is a Lifetime Television version of a team of murderers you’d least likely expect: cops. Roger Brown’s aim was to point out the fact that Jessica McCord was talking about how much better her life would be if Alan was gone, and also reading books for ideas on how to get away with murder.

“So she began to hatch this plot while in the Shelby County Jail,” Brown said, “because she not only was going to make his life miserable, she was going to end it! ‘Things would be a lot better if he was just dead,’ she said [to an inmate].”

Kaboom . . .
there it was: the meat and potatoes of Brown’s case.

From that point on, Brown went through the murder, step-by-step. Then the cleanup. The coverup. The lies Jessica and Jeff told and the missteps they took as they tried explaining their way out of what the evidence had actually pointed to.

Brown’s opening was short, only about fifteen minutes. Brown was all about getting to the heart of the matter—and here, in this case, Brown was certain that the evidence and his list of witnesses would speak to that. He didn’t need to add anything to the truth. From Brown’s point of view, the more sugarcoating you frosted on the facts, the less impact they would ultimately have.

 

 

John Wiley was a bit more reserved. He kept his opening even shorter, simply standing and explaining to the jury that his client would be freed by that evidence Brown had so haphazardly tossed around.

“Now, look here,” Wiley said, standing. “This is the time of the trial when the lawyers stand up and say what they expect the evidence to be. What lawyers say in a trial is
not
evidence, and Judge Vinson will tell you that later on.”

Wiley said that there would be a “great
lack
of evidence of Ms. McCord’s guilt in this case.” He went through what he thought was Brown’s weakest points: no murder weapon, no true motive, no smoking gun pointing to his client.

Many squinted their eyes at some of what the lawyer said:
No motive?
Was he talking about the same case?

“Under the law, Ms. McCord is presumed to be not guilty, and that is evidence in this case and must be considered by you along with all of the other evidence in this case.”

That all sounded good. But Roger Brown and his investigators, the cops who had shown up in solidarity with the Bates and Klugh families, knew that what Wiley was suggesting was absolutely absurd. The accused were judged on the way they acted in court. The things they said. Their facial expressions. Whether they testified, or chose not to testify. Their lack of remorse. The way they whispered to their attorneys. Smiled with family and friends. And, perhaps most important of all, hearsay and the media. It didn’t matter what a lawyer stood and said, Wiley was right about that. What mattered more than anything—when push came to shove—was how a juror felt about a witness, a piece of evidence, a suggestion by an attorney. As unbalanced and unfair as this might sound, a defendant
was
judged the moment she sat down—maybe even before—whether she committed the crime or not.

Prisons, after all, are not only full of guilty people.

Wiley used the word “doubt” in his final few sentences three times, throwing it out there, hoping the jury would grab hold of any part of it.

“The evidence and the lack of evidence,” Wiley closed, “goes in concert with the presumption of innocence.”

 

 

Brown called Philip Bates. Alan’s father talked about raising his children, moving the family, and that night he and Joan went through hell realizing that Alan and Terra, never late or no-shows, had disappeared. He told the jury how he called rental car agencies and that Avis told him to phone the GBI.

And that was when his heart sank. “I knew.”

Wiley kept Philip focused on the time frame of that night, which would come up again and again during this trial. Philip was clear—Alan and Terra were supposed to pick the kids up at 6:00
P.M
. and start heading to Georgia immediately.

Next witness.

 

 

Tom Klugh gave the jury memories of his daughter, accentuating the high note of how much she and Alan had loved each other. Then he talked about buying that new cell phone, calling his daughter and leaving Terra a voice mail she never heard.

“Thank you, Tom,” Brown said. “I believe that’s all I have.”

John Wiley did not stand. “No questions, Your Honor.”

Tom Klugh walked out of the courtroom, head bowed, shoulders slumped.

 

 

Brown had a representative from Avis prove to the jury that Alan had indeed rented the car his body was found in.

As Brown rolled his eyes, Wiley asked the Avis rep questions that seemed to be ridiculously unimportant. That witness was off the stand within fifteen minutes.

 

 

After a lunch break Alan’s longtime attorney, Frank Head, sat. At first, Head went through the extended explanation of the child custody matter at the center of the feud Jessica seemed to have with Alan. Head was clear and concise with his answers. There was no one in the room who knew the story of Jessica versus Alan better than Frank Head. He was obviously broken up by the deaths of Alan and Terra, unable to understand that a woman who did not want her ex-husband to see his children would go to such deadly lengths.

Written on Head’s face, and on the face of just about every witness Brown presented during this opening day, was the same, unanswerable question:
why?

These murders—perhaps more than others—seemed too darn senseless.

As Head talked his way through the afternoon under Brown’s direct examination, one theme became clear: Jessica McCord had done everything in her power to keep the children away from Alan Bates. But the true denouement to that story was that she had done it all for no apparent reason. Even when the court demanded she allow the children to see their father, Jessica disappeared, wouldn’t allow it. Took down her mailbox. Didn’t answer her phone. Asked friends and family to lie for her. Hid at the homes of those same people. She took the kids out of school. Became violent and threatened Alan repeatedly. The truth was there—
the evidence
—in the letters Head had written to Jessica and her attorneys. In the testimonials Alan had given. In the transcripts of the days in court Jessica refused to show up for. It was all
there.
In. Fact. Perfectly laid out for anyone to sit down and see. The truth—Frank Head made clear to Jessica’s jury—was undeniable.

Jessica sat with a stoic bearing about her, her demeanor mostly unchanged, as each witness came in and put another nail in the door to her freedom. She could do nothing about any of it. She wore glasses and appeared skinnier than normal. The obvious wear and tear of life in prison, not seeing her newborn, and preparing for trial, had worn her down.

What became a hot-button issue as Frank Head answered questions—both on direct and cross-examination—was that Head had brought out the fact that Jessica McCord had lied so much to so many different people, it was impossible to trust
anything
she said. The woman had even lied about things she didn’t need to, like the duration of a supposed separation she and Jeff had endured during the fall of 2001.

There just seemed to be no end to the lies she told.

 

 

As testimony wrapped up on the first day with Pamela Merkel Sayle, the girls’ dance instructor, the jury heard again—this time from a neutral witness who really had no stake in the outcome of the trial—that Jessica had a terrible grievance against Alan. She was consistently angry with him. And this attitude of Jessica’s, so hostile and nasty, only increased after Alan met Terra, Sayle suggested with her testimony.

“She made comments . . . that if he ever tried to get the girls, he would regret it,” Sayle told the jurors.

58

Day two picked up where the previous day had left off. Roger Brown built his case, brick by brick, each witness adding his or her blow to Jessica’s constant plea of innocence. Critics of Brown, however, might be quick to point out that if hatred toward an ex-spouse was motive for murder, coupled with things we said in the heat of anger and under our breath, we would not be able to build enough courthouses to prosecute the accused.

As Brown moved his case forward, he made that hatred Jessica had for Alan, which Brown believed had turned into a thirst for revenge and murder, the center point around which every witness pivoted. By the end of the day, Brown would send nineteen witnesses to the stand. Among them, few could describe that hatred in more depth and detail than Naomi Patterson, Jessica’s longtime friend.

Naomi was nervous, of course. But she was also there to tell the truth, as far as she knew it. She wasn’t looking for vengeance, as Jessica had implied by the look on her face when Naomi raised her right hand and sat down.

Naomi had been there since the beginning; she could offer the jury a complete portrait of Jessica and Alan’s married life before all the trouble started. She could show jurors how much Alan loved his pregnant young girlfriend and wanted to do the right thing by marrying her. And again, how Jessica, after she and Alan divorced, routinely abandoned her kids.

“Y’all were pretty close?” Brown asked.

“Yes.”

“After they divorced, did you continue to visit with her, to see her?”

“Yes, sir.”

Several questions later, “Did you have discussions with her . . . from time to time, about her living with this man [Brad Tabor] in his apartment, and her children being over there at her mother’s house?”

“Yes, sir. She knew that I didn’t approve of it.”

Brown was smooth in the way he was able to work in various facts surrounding—or leading up to—the point of no return he felt Jessica had ended up at. As she appeared more and more slighted, each man Jessica dated post-Alan saw through her greedy, malicious way of shunning her ex-husband. It was obvious in the way Jessica had pushed the brunt of her troubles on Alan: she blamed him for everything.

Yet the bomb Naomi dropped exploded after Brown asked her to talk about a conversation she’d had with Jessica not long before Alan and Terra were murdered.

“Did she say anything about Alan coming to the house [on February fifteenth] to pick up the children?”

“Yes, sir, she did.”

“What did she tell you . . . ?”

Naomi spoke with a likable earnestness. It was hard not to believe what she said. Her credibility was spotless.

“It got to the point,” Naomi began, “in the conversation, that she stated to me that when Alan came to the house to get the children, she was going to set him up for domestic violence and that she was going to—Kelley was going to hide the car so that Alan would feel that she was home alone with the children, and she was going to provoke him for the domestic violence so that it would help her in her court case.”

The courtroom let out a collective sigh as Naomi told her story. It wasn’t a stretch for most—including the jurors—to take a leap from setting Alan up for domestic violence to murder. If she was capable of planning and carrying out one, why not the other?

“And did she say what was then supposed to happen?”

Naomi paused. Cleared her throat. “And she also stated”—this was harder than she thought—“that if Alan were to touch her, that Kelley would
kill
him.”

 

 

After a few more questions, Brown handed Naomi over to John Wiley, who seemed eager to question the young mother.

“Well . . . you knew Alan, too, didn’t you?”

“Yes, sir. I did.”

“And you went to high school with him, too, didn’t you?”

“Yes, sir.”

“And y’all had been friends for many years?” Wiley’s inflection implied that there was something wrong with all of this. Or that he was perhaps leading up to a zinger of a punch line.

“Yes, sir.”

“But more recently, y’all hadn’t been as close as y’all had been before, right?”

“That’s correct.”

“And, in fact, you’ve never even been to the Myrtlewood Drive house, have you?”

“No, sir.”

“You never even visited there?”

“No, sir.”

“So you and Jessica were not nearly as close friends as you once were?”

“We were fading, yes.”

Brown looked at his coprosecutor, Laura Hodge, wondering where Wiley was going. Brown and Hodge had spent months preparing for trial, searching through documents, putting together witnesses, making sure they understood the custody case inside and out. They had spoken to Naomi themselves. What was Wiley’s strategy here? His questioning seemed to build up to nothing. Sure, Jessica and Naomi weren’t regularly having beers together anymore, attending Bible class or having tea and meeting at the park with their kids. But Naomi and Jessica had talked on the phone enough to be considered very close friends. Naomi was, after all, a sounding board for Jessica, who regularly called to dump her ex-hubby baggage on Naomi.

After a few more questions, Wiley broke a golden rule most defense attorneys will say you never, ever consider doing—unless you’re sure the case has slipped from your hands: attack the victim.

As casual as if he were asking about a shopping trip, Wiley said, “Okay, now, you know Alan used to beat her up when they were married, don’t you?”

A loud gasp filled the courtroom. Courtroom spectators looked at one another with shock. Had the man any evidence of such an accusation? Was he stomping on the grave of a dead man, who was unable to defend himself?

“No, sir.”

“She’s told you that, though, hasn’t she?”

“Not until recently.”

This was where Jessica was headed with her defense. She thought she had covered her tracks by telling Naomi that she’d had some important secret to admit—all that time she and Alan were together, Alan had been violent with her.

“Alan was the
last
person on earth who could have ever done such a thing,” Naomi said later, clearing up any confusion as to where she stood on the matter.

 

 

Jessica’s former attorney, David Dorn, testified later on that same afternoon. The problem for Jessica was that Dorn was an honest man who told the truth—and the truth was what began to hurt Jessica the most as each witness came forward and exposed another mean-spirited, hurtful, threatening remark or threat on her part toward Alan. No one was immune to Jessica’s arrogance and malicious mind-set. She spared no one around her the eruption of her wrath, most of which was focused on Alan. All because, Brown and Laura Hodge proved with each witness, Alan wanted his ex-wife to hold up her end of the divorce decree.

Jessica believed the rules did not apply to her, and each one of the state’s witnesses agreed.

 

 

By the end of the second day, Brown had shown the jury graphic photographs of what was left of the badly charred bodies of Alan and Terra. This as a slew of law enforcement witnesses took the stand to talk about what they hoped truly mattered in a court of law: hard evidence.

Brown and Hodge were determined to keep their case on a taut leash and not allow it to get out of hand with experts carrying on and on for hours. Juries tired easily from sitting all day. Attention spans became frayed. Attitudes easily touched off by a witness rambling on about this strand of DNA and that mitochondrial definition of blood. Brown didn’t want to alienate the jury by boring them with unneeded forensic nonsense, trying to make his case out to be some sort of hour-long television show that it was not. He had his experts explain the evidence in simple terms that the jury could wrap their minds around without too much added noise.

 

 

One of the state’s most impressive—if not substantial—pieces of evidence, Brown and Hodge knew going in, was the information the state had acquired from Terra’s and Alan’s cell phones. Jessica would have been better off leaving the phones alone, but she had to play with them. And that, the prosecution felt, was going to now come back to haunt her.

Brett Trimble sat. Brett was the custodian of records for Spring Communications Company. Here was one of those unbiased witnesses Hodge had brought in to talk about data. Pure, unadulterated information. Brett wasn’t sitting in for either side. The guy was there to talk about the information he had taken from cell phone records. This sort of evidence was ironclad. People lie. Cops sometimes leave things out for their own biased reasons. Friends can have an agenda. But records—documentation like this—speak to a truth no one can taint.

It is what it is, as they say.

Brett went through and described how he had looked at Alan’s and Terra’s cell phone numbers and matched them up to cell towers during that particular period of time the prosecution was interested in—between Friday night, at approximately six o’clock, and the next morning, very early. He did a search for “activations and locations.”

When you make a call on your cell phone, the signal hits the closest tower in the area where you make that call. That transfer of electronic information produces a record. A hit. The company who owns the tower knows which numbers are using which towers, where and at what times.

Brett called it a “cell site.” (Some may want to refer to it as one more addition to the Big Brother family.)

As you drive in your car, for example, away from, say, tower one, and come closer to tower two, your cell phone picks up that second tower site. From the time you start the call, Brett explained to the jury, until the phone call concludes, no matter where you drive or walk, each tower records all your moves.

Bad news for Jessica McCord.

Hodge showed Brett photographs of several cell towers, which covered a range, or radius, of about three miles, Brett said.

After the witness viewed several photographs, Hodge asked Brett to explain how those recordings—of the cell towers—are made.

“Well,” Brett said, “a call is made and it is entered into our computer system. Our computer system looks for the subscriber and locates it, and it is sent through the tower in to the customer.”

“So the subscriber and customer are the same thing?”

“That’s correct, yes.”

“How is a tower going to know where your cell phone is?”

“Well, towers are constantly in contact. They ping your cell phone.”

“What do you mean by ‘ping’?”

“Well, they send tiny bits of information to update your time and your date.”

“Is this like a sort of signal in a way?”

“Yes.”

Jessica was getting antsy in her chair. This information was adding up to a curtain-raiser of some sort, and there was no way that what was behind it was going to work in her favor.

Technology, a lifesaver. Computers are always looking over our shoulders. Recording everything we do. In this case that electronic information was proving to be one of the most powerful pieces of evidence Laura Hodge and Roger Brown had presented. If Alan and Terra were dead at six-thirty on that night, who could have been using their cell phones?

Only their killers.

Hodge asked a series of questions that walked jurors through a few phone calls made on Alan’s cell phone on the night of his murder. One was made at 5:57
P.M
., the other at 6:14
P.M
. Both calls pinged the same tower, Rocky Ridge Road at Patton Chapel, which is in Hoover, near Route 31.

“At Rocky Ridge Road,” Hodge queried, “. . . at five fifty-seven, we’ve got the north side. But then at six-fifteen, we’re moving to the southeast side. Is that correct?”

“That’s correct,” Brett said. The phone calls were made from different locations, Hodge had Brett point out. More than that, the 6:14 call, Brett explained after being asked, was made from Alan’s phone to Terra’s phone.

“Do your records also show a phone call made from Alan’s phone at eight-thirteen [
P.M
.] on Friday, February fifteenth?”

“Yes.”

Hodge asked what number Alan’s phone called.

Alan’s phone again called Terra’s phone.

“Did a cell tower receive a signal from Alan’s phone?”

“Yes.”

“Which tower was that?”

It was that same tower, Brett testified.

As they went back and forth, Hodge brought out the fact that at 8:58
P.M
. Terra’s phone called its voice mail system and then called Alan’s cell phone again. The tower that recorded those calls was located on Jackson Trace Road, in Lincoln, Alabama, a good forty miles east of Hoover/Birmingham. Thus, the calls were being made by someone traveling east, toward Georgia. That second call, in fact, ended, Hodge pointed out on a map she set up for the jury, in Easta-boga, Alabama, even farther east.

It seemed like compelling evidence—that is, if Hodge and Brown could prove who was using the phones. Because at this point all the evidence showed was that two people were communicating with each other via the Bateses’ phones and checking their voice mail.

After all, those people could have been Terra and Alan. No expert had testified to a time of death.