Death Trap (32 page)

“You didn’t have any problem with Terra?”

Jessica hesitated. “Not”—she started to say, then thought better of it and stopped midsentence before changing direction—“. . . we never had a fight, no.” The phrasing of her answer was obvious. It left things open-ended. Brown had some ammo in the chamber, though. The look on Jessica’s face spoke to how sure of it she was.

“Well,” Brown said, “how about explaining the incident when you went storming into the Alabama Theatre and said to Alan, ‘If you think you and that
slut,
Terra, are going to get my kids, it will be over my dead body!’ Tell the ladies and gentlemen of the jury about that occasion.”

Jessica shifted in her seat. “I have absolutely no idea what you’re talking about or who told you that, that was said. I don’t know what you’re talking about.”

“So you deny ever doing that?”

“I don’t remember ever making that statement to anybody.”

“Well, do you deny calling Terra a slut?” Brown queried.

“I don’t think I’ve ever called her a slut.”

“You don’t think?”

“I don’t think I have.”

“Well, you don’t think you have. Is that the best answer you can give me on that? You don’t
think
you have. Okay. That’s fine,” Brown stated.

“I answered you at least twice!”

“Yes, you certainly have. . . .”

After touching briefly on the various men Jessica had been with, in between Alan and Jeff, Jessica calling them all liars, Brown asked what she and Jeff bought at Home Depot that morning. She testified to purchasing a carpet knife.

“You bought some heavy plastic, didn’t you?” he asked. The Hoover PD believed they had used it to wrap up the bodies.

“No,” she said. “I bought a carpet knife. As a matter of fact, I think I offered the receipt to the police.”

Brown said, “Oh, you did, sure.”

“I think I did.”

“You did! Because they already had the records, didn’t they? They already had the records where you had bought some sheet plastic, and then you realized you had forgot something and then went back and got that knife!” Brown asserted.

“I didn’t buy sheet plastic that morning and—”

“Did your husband buy it?”

“Not that I am aware of, no.”

They next discussed the fact that Jessica could not deny that she and Jeff made a dump run that Saturday morning. So Jessica’s response to it was that they had made the trip to toss out some old toys. She claimed the call from Philip Bates about Alan being missing had upset her. But Brown was quick to make the connection that “rather than waiting there [at the house] for a phone call to hear anything, you took broken toys . . . to the dump, thirty miles away from your house.”

There was a dump site within a few miles, Brown let the jury know. Yet she and Jeff, Jessica testified, drove to a dump more than a half hour away.

“I waited for quite a while,” she said.

“Ma’am, is that true?”

“I waited for quite a while,” Jessica responded again.

“Ma’am?”

Finally, “A while later, yes, I went.”

Brown mentioned the bullet found in the garage. He wanted to know what Jessica thought about that little piece of damning evidence.

“What is your explanation for how it got there? Did the police plant it? Is that what you’re saying?”

“I don’t know how it got there. I don’t have an answer for that. I don’t know,” Jessica replied.

Brown introduced State’s Exhibit Number 94. He showed the photograph to Jessica. “Do you recognize that?”

Jessica played stupid, mumbling more than answering. “Do you mind if I look at it to see what—I recognize the author, but I don’t recognize the—I’m reading the summary on the back of the book. I don’t necessarily remember this particular book, but I recognize the author.”

“You don’t recognize it? So, is this another ‘I don’t think I read it,’ or ‘I don’t remember it,’ or ‘I don’t know’?”

The photograph was of W.E.B. Griffin’s
The Murderers.
It was taken from inside the McCord home. It was a brilliant move on Brown’s part. He wanted the jury to understand that Jessica might have gotten the idea from that book to murder Alan and cover it up.

Brown asked several more questions over a fifteen-minute blitz, for which Jessica would not answer with any type of accountability, no matter how insignificant or irrelevant to the case the question turned out to be. Finally, accusing Jessica of being a flat-out liar, Brown leaned down and whispered something into Laura Hodge’s ear.

Then: “No further questions, Your Honor.”

Mopping the floor came to the minds of most in the courtroom.

 

 

Wiley cleared a few things up over redirect and sat back down.

Jessica was released from the witness stand.

62

Since day one of the trial, the courtroom had been packed. There was a certain “energy” in the room, as one person later described it. It wasn’t “somber,” or terribly sad, “though there were definitely times that were more solemn than others.” Still, the subtle tone simmering in the background hummed with the feeling that everyone was present because two people had been brutally murdered. It was sometimes easy to forget there were victims—the dead. Trials become about suspects. Victims often get lost in the shuffle of testimony and evidence. Kevin and Robert Bates, as well as friends of the Bates and Klugh families, were there to remind everyone that victims should never be forgotten.

Even though Jessica had finished testifying, the day was far from over. The accused double murderer had spent upward of four hours in the witness-box. As she sat down at the table, with her family—including a brother dressed in his U.S. Navy uniform—there in the front row to support her, Jessica had to feel somewhat wounded. At times she had been impatient and argumentative with Roger Brown. At others, well, she sounded desperate and unwilling to tell the truth in spite of implicating herself. This was not going to sit well with the jury.

 

 

As Jessica settled in her chair, her mother, Dian Bailey, stood and walked toward the witness stand. What would soon prove to be an important part of the trial—something most everyone would overlook as a mere formality—Dian raised her right hand and swore to tell the truth.

“The whole truth and nothing but . . .”

Dian spoke in a low monotone. She was not comfortable in the witness stand, testifying at her daughter’s murder trial. What mother would be?

After Wiley had Dian talk about where she worked inside the court system of collecting money from deadbeat dads, she talked about Jessica moving into her house after Jessica and Alan had divorced. The point of it was to clarify that Alan’s kids—all of Jessica’s kids, for that matter—were frequent guests at the Bailey household.

The next several questions focused on how Dian and her late husband, Albert, had made a second home for Jessica’s kids. They had clothes for the children at their house. There was a bedroom “denominated” (Dian’s word) specifically as the children’s.

Some sat and wondered where this line of questioning was leading. But that was made clear when Wiley asked, “Had there ever been times, to your knowledge, that Alan was scheduled to pick up the girls for visitation and failed to do so?”

“Yes.”

“Few or many times?”

“There would be a lot of times that you would find out he wasn’t coming, yes.”

Another round of slapping a dead man across the face was under way.

“Would it be safe to say that it got to the point where no one was surprised that he didn’t show up?”

“Yeah. For me, yes.”

As she continued, Dian painted a gloomy and stressful picture of her life at the time Jessica and Alan were fighting for custody, saying, “My father was—we put him in a nursing home on Valentine’s Day, the day before [the deposition]. My mother was at home ill with pneumonia.”

Dian testified that she got home from work on Friday, February 15, 2002, at “five-thirty [
P.M
.] or so. . . . My husband and grandchildren were [there].” She said she understood Alan was going to pick the kids up at Jessica’s Myrtlewood Drive home that evening. But Alan had picked up the kids at her house in the past “many times.” He would also come by her house to “look for them.”

Wiley asked if Jessica came by that evening.

“Yes.”

“Did she tell you what she was doing or intending to do, or anything?”

“Yes.”

“What did she say?”

“She was going to go to dinner and a movie [with Jeff].”

Wiley asked about a phone call Dian had received from Jessica later that night. She said it was somewhere near eight o’clock (during the movie, when Jessica said she had stepped out for the Pepto-Bismol).

“She wanted to remind me to give [the youngest] his medicine.”

“Later on that night, did you have a conversation with Jessica?”

“Yes,” Dian answered.

“And do you know about what time that was?”

“It was after twelve-thirty.”

“And how do you know that?”

“Because I had just given [the youngest] his bottle. Just finished giving [him] his evening bottle.”

“And what was the gist of—was that a telephone conversation?”

Dian did not hesitate: “No. She came to the house and she was going to pick up the kids. And I told her, I said, ‘The kids are asleep—let them stay here.’”

Roger Brown whispered something to Laura Hodge. What Dian had just testified to was in stark contrast with the state’s findings. Dian was saying, in effect, that Jessica had stopped by the house
after
midnight. Brown and Hodge knew that was impossible if Jessica and Jeff were in Georgia, driving to Rutledge to dump the bodies and to torch Alan’s car. Either Dian Bailey had just committed perjury, or Jeff and Jessica
were not
responsible for the murders of Alan and Terra.

“Do you know whether or not her husband was with her?” Wiley asked.

“Yes, he was. He was in the car.”

Brown wrote something down on the legal pad in front of him.

“Would it be unusual for Jessica to ask you to let the kids just stay over like that?”

“Oh no, no.”

“Would it be safe to say, really, your house was just like a second home for those kids?”

“Definitely a second home for the kids.”

“That’s all I have, Your Honor.”

 

 

Roger Brown didn’t waste any time. “More like a
first
home, Mrs. Bailey?” the prosecutor said, standing, looking down at his legal pad.

“I’m sorry?” Dian asked.

“It was more like a first home,
wasn’t
it?”

“Yes, it was.”

Two questions later, “The evening Mr. Wiley asked you about when you said she came by your house or, excuse me, called you on the phone, I’m not sure which it was, and told you her plans were to go to dinner and a movie.”

“Right,” Dian answered.

“Was that on the telephone or at your house?”

“That was at my house.”

“What time was it?”

“I want to say it was sometime after six-thirty or so.”

“Sometime after six-thirty?”

“Yeah.”

After Dian said she believed Jeff and Jessica were driving the family van during that six-thirty visit, Brown asked what vehicle they were driving when they returned to the house early the next morning, at or around twelve-thirty.

“I didn’t get up and look.”

“You didn’t notice when they came inside?”

“No.”

Through extensive questioning, Brown made a point to the jury that while Jessica was hiding out from Alan and the court, Alan’s lawyer, Frank Head, had hired someone to serve Dian with an order to take a deposition, but Dian had lied to that man when he came to her door. She told him she was someone else. Then one day when the same man came upon her while she was outside at work, smoking a cigarette, she ran inside the building to avoid him.

“In fact,” Brown added, “he followed you into the building and tried to engage you in conversation, and you went into a secure employee area where he couldn’t come back there, right? Is that true?”

“Yes, it is.”

Brown wanted to keep his cross brief. Hit Jessica’s mother with the facts and let her fall on her sword.

“Finally, Mrs. Bailey, do you recall in the spring of 2002, I invited you by subpoena to come to the grand jury and tell the grand jury what you knew about the situation, didn’t I?”

“Yes.”

“And you did come to the grand jury, didn’t you?”

“Yes,” Dian replied.

“And when you came in there, when I began to ask you questions, you invoked your right against self-incrimination, didn’t you?”

“Yes.”

“And refused to answer my questions?” Brown asked.

“Yes.”

“Thank you. That’s all.”

 

 

Wiley concluded his case with one more witness, bringing the grand total to three. Brown called a few rebuttal witnesses. It was late in the day. After Brown had rested his case, and Wiley waved his hand indicating he was also finished, the judge said it had been a long day. It was a good time to end proceedings. But everyone was expected back in court the following morning—a Saturday—by nine.

The judge gave the jury its familiar warning regarding discussing the case among themselves. After all, each side still had closing arguments left to give.

63

First thing Saturday morning, a year to the day Alan and Terra were murdered, Roger Brown, looking confident and prepared, began his closing by paying homage to the jury. He said there was no way he could drive a forklift, work as an engineer, “manage” homes or be a nurse—all jobs held by the jurors—and yet, “Any one of you,” Brown said humbly, “can come down here and do what I’m about to do—argue this case on behalf of the state of Alabama, and Alan and Terra.”

Brown talked about the obvious: every murder was senseless. He spoke of the questions one might have when confronted with such horror: namely, why?

“What did they ever do to
her
?” Brown asked, pointing to Jessica. He went through the visitation and custody matters in brief, not spending too much time rehashing what his witnesses had testified to already. Just about every point Brown made hit on target to rebut what Jessica had said on the witness stand.

“It’s all about
her,
” Brown said in a loud voice.

He talked about how Jessica and Jeff got rid of the couch because it was likely covered with blood and bullet holes. Finally, just ten minutes later, Brown challenged Jessica’s defense team to “get up here and tell you what is a plausible, reasonable theory consistent with her innocence on these facts.”

Brown was done.

 

 

Bill Neumann had been part of Jessica’s defense team from the beginning of the trial. Yet Neumann had been invisible. Now he stood and made a point to note his absence in the case. “I know you haven’t heard my voice,” Neumann said, “since about Monday, and . . . I guess you were wondering if I had a voice left.” He explained how he had caught a cold that was “getting progressively worse.”

It took Neumann some time to get his thoughts in order. He apologized for anything “inappropriate” he might say in defense of Jessica—especially those things that the jury might consider an insult “to the memory of Alan and Terra Bates.” But it was his and John Wiley’s duty as officers of the court to defend their client’s rights. Part of such a defense, apparently, was going to include a walk over the graves of these two murdered people.

Regarding all of the fighting that went on between Alan and Jessica, Neumann said, there was one constant. “Do you remember what the attorneys said? That [Alan and Jessica] were moving toward an agreement . . . and she was going to likely keep custody.”

He disputed those witnesses who claimed Jessica had said she’d kill Alan before she let him have the kids. He talked about those witnesses’ arrest records. Their drug habits. He mentioned the lack of forensic evidence the state had, not giving a clear indication as to why Terra’s blood might have been found on the McCord coffee table—seeing that Jessica herself testified that neither Alan nor Terra had ever been inside her house and had even failed to show up on the night in question.

From there, Neumann beat the drum of circumstantial evidence and how one might think twice about convicting someone on it alone.

“It’s circumstances, and that’s all it is. There are many explanations for a set of circumstances. . . .”

Indeed, there were—and Brown had done a great job of pointing them out.

He then moved on to the bullet, which he believed to be the definitive piece of evidence of the state’s case. There was only one way to attack its credibility.

“But what [the scientist] said also was that the projectile was markedly deformed.” Setting that trap, Neumann explained that ballistics, in his opinion, was not the same as DNA. “Not quite at the same level as what you perhaps had some expectations of before you walked in here.”

For the next ten minutes, Neumann talked about speculative matters: Where was all the blood? he asked. If Alan and Terra were murdered inside the McCord home, why wasn’t there more blood? Then he called the murders an “elaborate scheme” the Hoover PD fit into a box wrapped around Jeff and Jessica. He said Jeff could have very well fired his gun in the house. But then gave no explanation as to how a matching bullet ended up underneath Alan’s body in the trunk of his rental car—that is, other than saying ballistic experts were wrong.

Did the fact that Jessica left the movies and went to a store two miles away make her a murderer?

Of course not.

What about presuming a suspect innocent? Where was the benefit of the doubt? In a facetious tone, mocking Brown’s assumptions, Neumann added, “You know, Mrs. McCord’s mother must be lying about Jessica coming by the house around, I believe she said, twelve-thirty. She must be lying about talking to her on the phone . . . and if she’s lying, Mrs. McCord is guilty of murder. They want you to take a lot of
little
things and, just for the lack of a better expression, make a mountain out of a molehill. . . .”

Neumann and Wiley did not have a lot to work with. In defending Jessica, their hands were not tied behind their backs, but practically severed. Jessica had not given her attorneys any tangible, clear explanation for the evidence against her. On top of that, she came across as arrogant and even taunting on the witness stand. It was a hard sell to come out and claim that she was telling the truth. But what else could Neumann and Wiley do? They had to fight.

“Circumstances, circumstances, circumstances. How good is it? Well, that’s for you to decide.”

Neumann went on for another ten minutes, repeating himself many times, then apologizing for repeating himself. Finally, “There’s so much at stake here. We’re talking about a lady who’s got five beautiful children who—well, I appreciate it, ladies and gentlemen. I’ll leave the rest of whatever I’ve missed to Mr. Wiley. . . .”

With that, Neumann passed the torch to his partner. It was quite common in Alabama courtrooms that when two or more lawyers defended a client, both gave closing arguments.

 

 

Wiley talked about the idea that it was a capital murder case and a woman’s life was at stake. He tried to play on the sensibilities of twelve men and women playing God with a person’s life. He cleared up the notion that it was the judge’s decision to sentence Jessica—if she was found guilty—to life without parole, or death. The jury was simply there to make recommendations in these matters.

“So, in your deliberations, you’ve absolutely got to think about your guilty verdict. You are
killing
Jessica McCord, just as surely as if you pulled that switch and electrocuted her, or if you open a little valve and let the lethal fluid into her veins. You have
got
to know that if you find her guilty in this case, you are
executing
Jessica McCord. You are
causing
her death.”

Silence.

Wiley was playing the guilt card in more ways than one.

The experienced lawyer carried on, beating the same drum Neumann had just completed, trying to bolster the argument Neumann had made about blood, DNA, ballistics. It sounded as winded and as weak as it did the first time around—only now the jury was tired of hearing it again.

And then Wiley mentioned Dian. “She’s telling the truth!” he shouted. “She saw Jessica and Kelley McCord there at twelve-thirty at her house! And because of that fact”—he paused a moment—“they couldn’t have been over in Georgia burning that car between one and two [in the morning].”

Exactly what Roger Brown and Laura Hodge had been saying all along.

Wiley continued for another fifteen minutes.

Then Brown got up and gave a rebuttal.

 

 

Brown made a great point—he said if the jury was to believe what Wiley and Neumann had argued during their closings, that would mean, simply put, that “everyone is a liar.”

Cops.

Doctors.

Scientists.

Every single expert the state presented.

They were the liars and—yes!—Jessica McCord and her mother were the truth tellers.