I'll Take Care of You (31 page)

Murphy also got Box to admit that if Mike Tuomisto said he only had one conversation with Eric, and it was about heavy traffic from the boat parade, then “that conversation didn't take place on the fifteenth, right?”

“If this document's accurate, that's right,” Box said, referring to the chamber record and essentially admitting that if Eric had been paged at all, it must have been two nights after the murder.

In addition, Murphy forced Box to reluctantly admit that, although he'd previously testified that he'd worked only for Bailey on this case, he'd actually fed information in conference calls to Nanette's attorney as well.

“You even wrote a memo to Barry Bernstein, saying, ‘She still owes me nineteen hundred dollars.' Do you remember that?” Murphy asked.

“No.”

“Are there ethical problems, sir, when you're working for two different people at the same time that might have conflicting defenses?”

“If the attorneys have worked out a conflict of interest, no.”

“It just seems to me, sir—and correct me if I'm wrong—you seem to be very sure about things when Mr. Pohlson's asking you questions and not so sure when I'm asking you questions. Is there any reason for that?”

Murphy's cross-examination of Box had decimated this witness, and Julian Bailey's subsequent testimony didn't help the defense recover all that much.

When the defense submitted a motion for a new trial a year later, it described Murphy's treatment of Box as follows:
Mr. Murphy savagely, unfairly and often sarcastically questioned Mr. Box to the point that would have been a rock-solid claim to an 8:52 phone call in 1995 . . . was now reduced to little more than a punch line.... As a result, every single item that Mr. Box testified on was tainted by this cross-examination and further prejudiced Mr. Naposki.

 

 

The same day that Box and Bailey testified, the Casey Anthony verdict of “not guilty” came down in Florida and shocked the nation. A couple of the Florida jurors said in posttrial interviews that they weren't persuaded by the prosecution's case of circumstantial evidence, as if it didn't count.

“Everyone was shitting bricks,” Sandy Baumgardner said, recalling that Murphy had stated that prosecutors couldn't get a win for months after the “not guilty” verdict in OJ Simpson's criminal trial came down.

 

 

Much of the defense's questioning of Eric's friends was geared primarily toward portraying Nanette as a lying manipulator who knew how to fire a gun.

Defense attorney MacDonald called Abbey Shilleh, the head valet at the Thunderbird, who routinely parked Eric's truck. Shilleh testified that he didn't remember whether he parked Eric's vehicle the night of the murder, but said Eric was “later than usual” when he got to work that night. He also said that Eric was considered a manager in charge of security and parking, so it made sense for him to attend the meeting between city and club officials about parking issues at eight o'clock that night, but Eric didn't make it.

Murphy proceeded to shred Shilleh's credibility, however, by forcing the valet to admit that he'd recently been convicted of paying a $50,000 bribe to the chief of an Indian reservation and that he'd started his home confinement just a month earlier.

After Shilleh left the witness stand, Murphy hammered the nail home. “Your Honor,” he said, “can I just put on the record, as the witness was leaving, he wished Mr. Naposki ‘good luck.'”

 

 

Leonard Jomsky, Eric's friend and off-and-on roommate, took the stand to recount a trip to the shooting range during which he, Eric, and Nanette shot at targets for an hour, after which Nanette teased him about being a better shot.

After defense witness Rob Frias was called, Murphy used him to poke holes in Eric's claim that he never moved in with Nanette after the murder, because he wanted nothing to do with her. When Frias claimed that he didn't know whether Eric was really “living” at Nanette's house on Foxhollow in Dove Canyon (a neighboring community to Coto de Caza), Murphy reminded the witness of statements he'd made in an interview two years earlier.

“After the murder, Naposki moved into Nanette's residence in Coto de Caza, and you recall visiting their house for a barbecue, and that they, in fact, lived together . . . and that when you visited them, they appeared to get along well. Remember making those statements?”

Confronted with his own words, Frias had to agree. “That sounds pretty accurate.”

“Wasn't Mr. Naposki living with her at the beach house for a time too?”

“He might have,” Frias said. “I might have heard that.”

 

 

Some of the prosecution's rebuttal witnesses testified out of order, before the defense had rested, which was a little confusing. These included Larry Montgomery, Tom Matsudaira, who talked about the ballistics testing, and Detective Scott Smith, who was unable to answer certain questions as MacDonald repeatedly tried to poke holes in the NBPD investigation.

But over the weekend, Smith took the initiative to do some research on his own so he could answer those questions when he retook the stand on Monday, which seemed to take MacDonald by surprise.

 

 

One nagging debate between the two sides was whether the traffic patterns for Tustin, Costa Mesa, and Newport Beach had changed significantly since 1995, as the defense tried to nullify or at least challenge the relevancy of the prosecution's recent time trials.

By presenting its contrasting time trials and cross-examining the prosecution witnesses, the defense tried to persuade the jury that the prosecution had left out important details that would have added precious minutes to that timeline.

“They'd never even looked at the phones,” Pohlson said later. “They'd never even checked this stuff. They didn't check records.” He added that the defense also highlighted the failures in the NBPD's original investigation, such as the failure to interview Mike Tuomisto, which wasn't done until 2009.

“[Eric] also mentioned ‘Teresmo?'” Pohlson asked Voth during cross-examination. “We now know it's Mr. Tuomisto. Your whole team never contacted him in 1994 to 1995, correct?”

“I think I left a message on his phone and didn't get a return call,” Voth said.

In an odd move, given that the defense had apparently scored on that point, Murphy and the defense attorneys entered into a stipulation that if Tuomisto was called as a witness, he would testify that he had no recollection of paging Eric the night of the murder, or any other night, and didn't know why he would have, because he was the alcohol manager and Eric was the security manager. Tuomisto would also say that he didn't recall speaking to Eric on the phone, or having any conversation with him before or after December 15, 1995, and that the club wasn't busy at 9:00
P.M.
The club had just opened that October, so he and Eric had worked together only a short time by then.

 

 

On July 7, out of the jury's presence, the defense lost a motion objecting to three areas of prosecution evidence: Joseph Stoltman Jr.'s testimony that Eric had been trained in the “double-tap” shooting method; testimony that Eric was present at all of Nanette's court hearings related to her 1995 forgery case (meaning that he had to be aware of all the charges against her); and the testimony of Investigator Larry Montgomery, for whom Pohlson coined the nickname “Saint Larry” for his role in resurrecting the cold case.

 

 

The defense asked for a recess around 2:45
P.M.
, which lasted about thirty minutes, during which Eric and his attorneys debated once more whether it was in the defendant's best interest to testify.

“It was just a question of what was a better strategy,” Pohlson said later. “We left it up to him. It was completely his call. We did tell him the pros and cons and everything in detail.”

By the time they emerged from the cell with Eric, the matter had been settled. He was not going to testify, and the defense rested.

Murphy figured that Eric must have realized that testifying would only hurt him. “There was too much he couldn't answer,” the prosecutor said, looking back later, adding almost remorsefully that he'd lost the opportunity to ask his twenty-two pages of questions. “It would have been fun to do.”

Instead, the prosecutor worked on incorporating those points into his closing argument.

 

 

Murphy immediately called rebuttal witness Joseph Stoltman Jr., who testified in detail about teaching the double-tap technique the day Eric was in training, which dovetailed with Box's recent testimony about the pattern of shots that Rosemary Luxton had heard the night of the murder.

Stoltman also testified that as part of the training, the SWAT members were taught to shoot to kill and to aim down toward a target's chest, not his head, so as not to block the shooter's view of the target's hands.

“Approximately how long before that was it that you had this session with Eric Naposki that you taught him about double taps?” Murphy asked.

“I would say probably about three to four months earlier,” said Stoltman, who had originally told police that the session occurred in late 1992, when Eric still worked at Metropolis.

On cross-examination, Pohlson tried to get Stoltman to say that he trained SWAT team members to duck back and pause when someone was shooting back at them, but Stoltman said that was not necessarily the case.

“Do you know what ‘stippling' is?” Pohlson asked.

“‘Stippling'? No, I do not,” Stoltman replied.

“You didn't train anybody in how you cause stippling, then?”

“No, I did not.”

Responding to Stoltman's testimony about training to shoot targets in the chest, Pohlson asked, “The ideal place, if you're going to shoot somebody trying to kill them, would be to shoot them in the head, right?”

“That's correct.”

But in the end, nothing could undue the damage caused by the testimony about Eric's training in the “double-tap” technique.

CHAPTER 40

Matt Murphy started his four-hour closing argument on the afternoon of July 11, and finished the next morning, using a pointillistic painting as a metaphor for connecting the dots of the largely circumstantial case to form the conclusion that Eric was guilty.

Murphy spent much of his time picking apart individual aspects of the defense's case, and asking the jury to consider why, if Eric were truly innocent, would he make questionable claims and commit incriminating acts? And why would witnesses, such as Suzanne Cogar, lie?

“There's no mind-f'ing the police when you're innocent in a murder investigation,” he said, referring to Eric's admission that he “mind-fucked” the police when he lied about loaning his 9mm Beretta to Joe David Jimenez.

Eric's motive for murder, he said, was greed—to share in Bill's money—as well as jealousy, so he could have Nanette all to himself. The killing was carried out in the couple's “evolving plan.”

But Nanette was still at the heart of this case for both the prosecution and the defense—a woman, Murphy said, who had a “motive on steroids” to kill Bill McLaughlin before he found out she was cheating on and stealing from him.

“She's got one gift. She's better at this than anyone I've ever seen,” he said. “She's good at the manipulation of men . . . at wrapping men around her little finger and getting them to do what she wants.”

If Eric did any one of the things that the witnesses claimed—told Cogar he wanted to kill Bill, made copies of the keys, or wrote down the license plate number for Bill's car before the murder—and “if any of these are related to the murder, he's good for it. I don't have to prove all of them. In fact, I don't have to prove any of them.”

Why was Eric so upset that the detectives had seized his notebook, which was just a bunch of lists and “gibberish”? he asked rhetorically. “Page three,” he said, using the laser pointer to circle the handwritten license plate number on the overhead screen for the jury. “This, ladies and gentlemen, is what he's so upset about.”

In comments that raised the ire of the defense team so much that they objected in a motion filed a year later, Murphy made a dismissive reference to MacDonald's out-of-town style and Pohlson's jovial courtroom presence as the prosecutor tried to win another round of gamesmanship in front of the jury.

MacDonald, he said, had the suit, the hair, the watch, the shoes, and the New York accent: “How could you not check that out?” he said. “Maybe that works in New York.” And Pohlson, he said, was a jokester, who made everyone laugh.

“Each one of them is a master at his own style, but it's a tactic,” Murphy said.

The prosecutor countered the defense's accusations that the NBPD had done a shoddy investigation by noting that the detectives had enough “heads-up” to copy the pages of the notebook, calling it “good police work.” He did acknowledge, however, that this wasn't “a perfect investigation, no investigation is,” and that the police made some mistakes.

“The big question is, so what? Is there an expiration date on evidence? . . . Naposki got the best benefit—he got fifteen years [out of prison] he didn't deserve.”

Even if Eric's license plate notation was the only piece of evidence, Murphy told the jurors just before they broke for the day, so they could ponder his points overnight, “you'll hold him accountable for what he did.”

 

 

The next morning, Murphy took up where he left off.

Given that the defense started its case claiming that Nanette was the actual shooter, Murphy reinforced his “aiding and abetting” conspiracy theory—that Eric was guilty of murder even if he'd just “helped” Nanette kill Bill.

“Is it Nanette who killed him or did
they
kill him?” he said. “Legally, under ‘aiding and abetting,' help is all it takes.”

Eric was either dropped off at his apartment or he rode with Nanette all the way to Newport, he said, where she left him within walking distance of Balboa Coves.

“I don't have to prove it. You don't have to figure it out. Either one is an option,” he said. “I think she dropped him off, because they were in it together.”

Eric's so-called “alibi” didn't even meet the definition of the word, he said, because the investigators had proved in numerous time trials that he still had time to commit the murder.

If Nanette was the shooter, as the defense suggested, then why would she make a copy of her own key?

“How do you plan to get a key stuck?” he asked. “Why take her pedestrian key off her key ring if it's not to give to somebody else? . . . All the evidence at the scene, none of it points to Nanette as being the shooter.”

Murphy stood with his arms crossed like a soldier, his voice rising from the soft, low tones with which he'd started to emphasize his disgust with the defendant's threatening call to Jenny McLaughlin.

“Not a single word of condolence, not a single word to her about the investigation, doesn't offer help of any kind. He wants the Infiniti. . . . It's all about him, the stuff that he wants,” he said, underscoring the evidence to support the special circumstance of “financial gain.”

“Him, him, him, him . . . the bully that is Eric Naposki. That is outrageous, and I submit to you totally inconsistent with an innocent man.”

After the murder, Murphy said, Eric moved in to the beach house, forcing the McLaughlins to evict him. Then he moved in with Nanette in Dove Canyon and started a movie production business with her.

“The money for this house is the direct result of the murder of Bill McLaughlin, and [Eric] has no problem with that,” he said.

But Murphy didn't just throw Eric into the liar's circle. He included his private investigator, James Box, as well.

“How dumb does Mr. Box think you folks are?” he asked. “It's rare when you see an investigator turn to the jury and lie to them, and that's what he did.”

In closing, he reminded the jury about the need to bring closure to the victim's family once again. “Justice in this case has been a long time coming.”

 

 

Billy McNeal had wanted to hear Murphy's closing, but he ended up missing it. He and his fiancée caught the defense's closing instead, and in the process, got a good look at Eric Naposki. Knowing that Nanette's upcoming trial would be somewhat similar, Billy wanted to get “a taste and feel for what the trial was going to look like.”

He never really had an idea of Nanette's “type,” because he hadn't seen any of her men but John Packard, who was quite a bit older than she was. When he saw Eric, he wasn't very impressed with the looks of him. Eric reminded him of Butterbean, the professional wrestler and super-heavyweight boxing champion. Billy thought Eric certainly fit the part, with his “tats, the shaved head, bouncer, tough guy.”

Billy had been following the trial in the news, and had learned a few things along the way, but he really just wanted it to be over so he could move on with his life. He was so sure that Eric and Nanette would be found guilty it was beyond him “how Rosie stuck around. That just blows me away.”

 

 

Gary Pohlson and Angelo MacDonald decided that Pohlson should do the closing argument because he seemed to have a good relationship with the jury. Also, when two attorneys work as co-counsels in a murder trial, one will often do the opening and leave the closing to the other.

Pohlson started his four-hour closing argument—his longest ever—right after lunch and finished the next morning, claiming that Murphy had switched his theory midstream to the “aiding and abetting” notion, which he'd never even mentioned in his opening.

Pohlson told the jury that after two hundred and forty minutes of talk, Murphy hadn't presented any real proof that Eric Naposki was guilty. All the instances Murphy presented about Eric's activities and behavior were simply just examples of how the prosecution
thought
Eric should have acted.

First of all, he said, Eric talked with the police without an attorney, and told them he had an alibi. “I would suggest to you that's exactly how an innocent man would respond.”

Pohlson tried to repair the damage Murphy had done to James Box during his cross-examination and again in Murphy's closing, switching the focus back to the NBPD's mistakes. Why hadn't the detectives talked to Mike Tuomisto back in the 1990s when he still remembered what happened the night of the murder?

“If Box could do it, then any of these police officers could do it,” he said. After working in law enforcement for so many years, on hundreds of murder cases, “you think he's going to come in here and lie? . . . Why? Why would he do that and perjure himself?”

The reason Box and Julian Bailey didn't show the prosecutor the phone bill in 1995, he said, was because prosecutor Debbie Lloyd wasn't being cooperative. And they didn't keep the bill all these years because they thought it was a moot point.

“They thought this thing was dead and gone,” he said.

Pohlson gave Murphy back some of his own, pointing out to the jury that the prosecutor also used tactics to try to weaken the defense witnesses' credibility in the jury's eyes.

“MacDonald is the New York bully, and Pohlson is the class clown. Mr. Murphy, help me out here. I'm kind of confused. ‘I'm not jumping on you, but you are lying, aren't you, Mr. Box?' Everyone has their style, it doesn't mean anything.”

Pohlson said he really did believe that his client was innocent. He joked that his wife thought he was shallow, but in reality, “I do care. I take this as serious as I take anything in my life. If the McLaughlin family thinks I don't take it seriously, then I apologize to them.”

Pohlson contended that Eric had never been violent before, so “why would he all of a sudden become a murderer? . . . Is he all of a sudden going to go from zero to ninety and blow [Bill McLaughlin] away six times?”

The defense was sticking with its theory that Eric wasn't the shooter, he said. They didn't have to prove that Nanette was the shooter. They were simply arguing that there was more evidence that she did it than Eric did.”

“She doesn't need Eric Naposki to commit a murder,” Pohlson said. “He's the perfect patsy, okay?”

Regardless of what Murphy and his investigators claimed in their multiple time trials, Pohlson said, “Minutes are important, but in terms of what's actually proven in this case is that there was an eight fifty-two phone call from the Denny's. There is no time trial in this case that gives Naposki time enough to commit this crime.”

Calling the prosecution's “double-tap” interpretation of Luxton's described pattern of shots “misdirection,” he said the killer got close enough to the victim to leave stippling marks because the shooter was someone he knew.

“Also, if you're a trained killer, you're going to shoot him in the head, like GI Joe told us,” he said, referring to Stoltman. “But that wasn't done because Nanette Johnston is able to walk up to Mr. McLaughlin, get up close to him, and shoot him.”

Pohlson said the prosecution's case had so many holes in it that he couldn't even understand why the DA had ultimately filed it. “It would be a horrible, horrible tragedy to convict a man for something he didn't do,” he said. “Mr. Naposki should absolutely be found not guilty. There's not one piece of evidence that conclusively shows that he committed this crime.”

In a particularly emotional moment, Pohlson told the jury that he'd never wanted anything more than to see this particular client acquitted.

 

 

During his hour-long rebuttal, Murphy pounded on Eric some more, and made fun of Pohlson for being melodramatic at the end of his closing. That day, Pohlson had brought in his young daughter, who was working as an intern in his office, to sit next to the defendant. Viewing this as a ploy to make Eric seem benign, Murphy decided he needed to expose these maneuvers for what they were.

When he heard Pohlson claim that he'd never wanted anything more than to get his innocent client off, Murphy believed that Pohlson had stepped over the legal line of what was allowed in court and had committed what is known as “vouching” for his client.

Rather than object, Murphy decided he would “fire back” and call him out. So, Murphy told the jury that he'd been moved the first time he'd heard Pohlson make this same remark during another trial, but he realized what Pohlson was up to when he heard him say it again in this courtroom.

When Pohlson heard the accusations that he was being disingenuous, he felt as if he'd been stabbed in the back, because he'd sincerely meant what he said.

“I've never said that before,” Pohlson said later. “Nobody has ever heard me say that.”

Outside of court, Pohlson told Murphy that his comment had been hurtful, and Murphy apologized. But Murphy later said he did so mostly as a way of saying, “Hey, I hope we can move on from this.”

“That said, I really did feel bad that Gary did have bad feelings about it because there really is no one I respect more than Gary Pohlson,” Murphy said.

The two men eventually smoothed things over.

“He has apologized to me,” Pohlson confirmed in late 2012 as the two of them were preparing for yet another match in court the following week. “We reconciled.”

 

 

The jury, which included several college students and a couple of teachers, began its deliberations at 12:05
P.M.
on July 13. And as soon as the jurors sat down, they took a straw poll: eight voted to convict, two voted not guilty, and two were unsure.