Beyond Suspicion

46

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At nine o’clock Monday morning, twenty-three grand jurors sat in a windowless room one floor below the main courtroom, waiting for the show to begin. Expectations were high. They’d seen the flock of reporters perched outside the grand jury room.

By law, grand jury proceedings were secret, no one allowed in the room but the jurors and the prosecutor. The constitutional theory was that the grand jury would serve as a check on the prosecutor’s power. In reality, the prosecutor almost always got the indictment he wanted.

“Good morning,” he said, greeting his captive audience.

Jancowitz was smiling, and it was genuine. This was a murder case with stardom written all over it. A sharp criminal defense lawyer in a scandalous love triangle. The victim his former girlfriend. Lots of grisly and salacious details, many of them corroborated by a highly respected physician. This case could be his break-out case, his ticket to the talk-show circuit, and he’d been waiting long enough.

At 9:35 he had his first witness on the stand, sworn and ready to testify.

“Your name, sir?” said Jancowitz.

“Joseph Marsh.”

“What is your occupation?”

“I’m a board-certified neurologist.”

With just a few well-rehearsed questions he led Dr. Marsh toward pay dirt, establishing him as Jessie Merrill’s physician and, of course, laying out the kind of professional credentials that commanded a certain level of respect and instant credibility.

Then he turned to the evidence.

“I have here what has been previously marked as state’s Exhibit 11. It is a letter from Jack Swyteck to me. It was written just days after Ms. Merrill’s lifeless and naked body was found in a pool of blood in his home.”

The prosecutor paused. The location of the body was a theme in his case, one that he gladly allowed the jurors a little extra time to absorb.

He continued, “In Mr. Swyteck’s letter, he explains an alleged scam that his client, Jessie Merrill, perpetrated on the investors of a company known as Viatical Solutions, Inc. Dr. Marsh, please take a moment to review this exhibit.”

The witness looked it over and said, “I’m familiar with this.”

“In the first paragraph, Mr. Swyteck states that, quote, Jessie Merrill admitted to me that she and Dr. Marsh falsified her diagnosis of amyotrophic lateral sclerosis, or ALS. End quote. Dr. Marsh, what was your diagnosis of Ms. Merrill’s condition?”

“Based upon the initial tests I performed, my diagnosis was ‘clinically possible ALS.’”

“Did you falsify any of the tests that led to that initial diagnosis?”

“Absolutely not.”

“Did you later change that diagnosis?”

“After further testing, I concluded that she had lead poisoning. Her symptoms mimicked those of ALS.”

“Does that mean your initial diagnosis was incorrect?”

“Not at all. As I said, based upon the tests I conducted, my diagnosis was possible ALS.”

“Now, Dr. Marsh, I’ve already explained to the grand jurors what a viatical settlement is. My question to you is this: Were you aware that, based upon your initial diagnosis, Ms. Merrill attempted to sell her life insurance policy to a group of viatical investors?”

“I was.”

“Did you at any time mislead those investors as to the nature of her illness?”

“Never. Their reviewing physician did press me for a more firm opinion. I told him that if I had to make a judgment at that particular moment I would probably bet on ALS, but by definition any bet is a risk. It was no sure thing.”

“Was there ever any collusion between you and Ms. Merrill in an effort to defraud the viatical investors?”

“Absolutely not.”

“Thank you. I refer you again to state’s Exhibit 11. In paragraph two, Mr. Swyteck states, quote, on the night before her death, Jessie met me outside my office in Coral Gables. She appeared to be under the influence of drugs. End quote. Dr. Marsh, in the six months that you acted as treating physician for Jessie Merrill, did you ever see any signs of substance abuse?”

“Never.”

“Next sentence. Mr. Swyteck states, quote: Ms. Merrill said to me in no uncertain terms that she was in fear for her life. Specifically, she told me that the viatical investors had discovered that she and Dr. Marsh had perpetrated a fraud against them. Ms. Merrill further stated to me that the viatical investors were thugs, not legitimate businesspeople. According to Ms. Merrill, someone acting on behalf of the viatical investors had warned her that she was going to wish she had died of ALS if she did not return the one-and-a-half-million-dollar viatical settlement to the investors. End quote.”

Jancowitz gave the jury a moment to digest all that. Then he looked at Dr. Marsh and said, “Are you aware of any threats Ms. Merrill received from anyone acting on behalf of the viatical investors?”

“No, sir. None whatsoever.”

“As her alleged coconspirator in this supposed scam, were you ever threatened by anyone acting on behalf of the viatical investors?”

“Never.”

“Were you ever threatened by anyone in connection with this matter?”

“Yes.”

“Who?”

“Jack Swyteck.”

“Tell me about that.”

“After Jessie was found dead in the Swyteck house, I went to his office.”

“How did that go?”

“Not well. It took him only a few minutes for him to realize that I suspected he had something to do with Jessie’s death.”

“What happened?”

“He went ballistic. Told me to get my ass out of his office before he batted my head across the room.”

“As best you can recall, what exactly were you talking about before he threatened you?”

“As I recall, we were talking about whether he was having an extramarital affair with Jessie Merrill.”

“What prompted that discussion?”

“I asked him about it.”

“Why?”

Dr. Marsh turned his swivel chair and faced the jury, just the way the prosecutor had coached him earlier in their prep session. “My wife and I are separated and we will soon be divorced. I was… vulnerable, I guess you would say. I felt sorry for Jessie and took a special interest in her case. That developed into a friendship, and by the time her lawsuit was over it had blossomed into romance.”

“So, when Mr. Swyteck states in his letter that he saw you and Jessie Merrill holding hands in the elevator just minutes after the verdict, that statement is true?”

“That is not true. I went over to congratulate her. Mr. Swyteck twisted things around to try to put a sinister spin on the whole episode. That was one of the reasons I went to his office to confront him.”

“Do you know why he made that up?”

“In a general sense, yes. Mr. Swyteck was extremely jealous of the relationship between me and Jessie. It was becoming irrational, to the point where he’d accuse her of things like this alleged scam on the viatical investors. Things that never happened.”

“Did you ever ask Mr. Swyteck if he and Ms. Merrill were involved in a romantic relationship?”

“Yes, in the conversation in his office, I asked him.”

“What was his response?”

“He denied it and became extremely agitated.”

“Is that when he threatened to bat your head across the room?”

“No. It’s my recollection that he didn’t actually threaten me until I asked him point blank whether he had hired someone to kill Jessie Merrill.”

Jancowitz checked his notes at the lectern, making sure that he’d set the stage properly for his big finish. “Just a few more questions, Dr. Marsh. You testified that you are not aware of any threats that Jessie Merrill may have received from anyone acting on behalf of the viatical investors.”

“That’s correct.”

“Are you aware of any threats that she received from anyone other than the investors?”

“Yes.”

“How did you become aware of those threats?”

“We talked on the telephone after it happened. She told me.”

“What was the nature of those threats?”

“She was told that if she said or did anything to tarnish the name and reputation of Jack Swyteck, there would be hell to pay.”

“Did she tell you who conveyed that threat to her?”

He leaned closer to the microphone and said, “Yes. A man by the name of Theo Knight.”

The prosecutor struggled to contain his excitement. It wasn’t the whole story, but it was more than enough at this stage of the game. “Thank you, Dr. Marsh. No further questions at this time.”