Chapter 22
“The prosecution calls Marcia Murphy,” Addison said.
Marcia had been a member of the Woodbridge County bar forever.
She’d actually tried to retire once but couldn’t stand the boredom.
She had the reputation as one of the toughest divorce attorneys in town and specialized in representing fathers during heated custody trials.
In their prime, she and Jeanie had an intense, but respectful rivalry.
She had an aura of cigarette smoke around her as she took the stand and swore her oath.
“Ms. Murphy,” Quick started. “Could you please tell me how you came to know Tom Loomis?”
“Sure,” she said. “I was his lawyer. I met him, I think it was, three years ago. He retained me to represent him. He wanted to put together an estate plan.”
“Was he married at the time?”
“No. He wasn’t. But at that time, we didn’t discuss his romantic life. It was a fairly straightforward representation.”
“What did you do for him?”
“Just a simple will,” she said. “I’d like to note that I advised him against that. Not the will. But I explained the benefits of a more nuanced estate plan, including setting up a trust and his advanced directives.”
“I take it he declined those?”
“Correct. He said …”
“Objection.” I rose. “Your Honor, I think we need to establish the ground rules here. While the court previously ruled to allow this witness to testify on what would otherwise fall under attorney-client privilege, she is still prohibited from providing hearsay testimony. So whatever Tom Loomis did or didn’t tell her is improper. ”
“She’s right, Counselors,” Castor said, addressing both Marcia and Addison.
“I understand,” Marcia said. “Should I continue?”
“Yes,” Addison said.
“Okay, then,” Marcia said. “Three years ago, I prepared a simple will for Tom Loomis. I didn’t prepare any other estate planning documents at that time.”
“Thank you,” Addison said. He moved to admit the will Marcia prepared. It was public record as Tom did indeed file that one with the probate court shortly after it was executed.
“For the record,” Addison said. “What was the primary distribution of Tom’s estate under that will?”
“Tom didn’t have kids or a wife at the time. His parents were deceased. He was an only child. He didn’t even have a life insurance policy then. So he directed his assets be sold off and the proceeds donated to St. Jude’s Children’s Hospital.”
“I see,” Addison said. “Was that the end of your representation of Tom?”
“You mean did I end up doing more work for him?”
“Yes. That’s exactly what I mean.”
“Sure. About a year after that, Tom came back to me wanting to do a new will. He’d just gotten married to the accused, Katy Loomis.”
“And what did you do for him?”
“At that time, he took my advice and we prepared a more robust estate plan. Tom had taken out a small life insurance policy valued at five hundred thousand dollars. He also had me prepare a new will naming Katy as his sole beneficiary. Same on the life insurance. He declined a prenup. But he named Katy as his patient advocate on all his advanced directives. We also did a simple trust and a durable power of attorney, again naming Katy as the agent.”
“In layman’s terms, what does that all mean?”
“It means at the time he wanted to …”
“Objection,” I said. “This witness can’t testify to Tom Loomis’s internal wants and desires. Only what she actually did for him.”
“Sustained.”
“Fine,” Marcia said. “What I prepared for Tom essentially left everything to his wife. It put her in the position of making decisions for him in the event he couldn’t make them for himself regarding his business and banking affairs and healthcare decisions.”
“Thank you.”
“Do you want me to tell you what I didn’t do?” Marcia said. This earned an eyebrow raise from me, the judge, and Addison.
“All right,” Addison said.
“He did not have me include Katy on the deed to his house or the title to any of his vehicles. Though in effect, with her as the main beneficiary of his trust, those items passed to her upon Tom’s death.
I then instructed him on how to deal with his banks in terms of account ownership.
Same with the life insurance, naming the trust as contingent beneficiary. ”
“Okay,” Addison said. “That all happened when again?”
“About a month after he married Katy.”
“Thank you. Now, Ms. Murphy, was that the last communication you had with Tom?”
“No, sir,” she said. “He made an appointment to see me last November. He instructed me … that is, at the conclusion of that meeting, I prepared new documents for him.”
“What were those?”
“I drafted a complaint for divorce, an amended trust, and a new will. Of note, Mr. Loomis had not yet, at that time, carried out some of my instructions from our previous meeting.”
“What instructions were those?”
“He never re-titled his bank accounts or his life insurance policies. The only thing that ended up properly titled in the trust was his house. That’s because I was the one who took care of filing that deed on his behalf.”
“So what was the effect of that?”
“Well, it meant those items would have been distributed under the terms of his will, not his trust. So probate would have to be opened.”
“I see,” he said. “So if I’m clear. You discussed Mr. Loomis filing for divorce from Katy?”
“Yes. Well, I mean, notwithstanding discussions which might be hearsay as defense counsel pointed out … I prepared the divorce complaint as well as the changes to his estate plan.”
“What changes did he want to make to that estate plan?”
Marcia leaned closer to the microphone. “He wanted to disinherit Katy.”
There was a gasp from somewhere in the courtroom. Katy stayed rigid. It was at least better than an outburst.
“Again,” I said. “This witness cannot testify about Tom Loomis’s wants. Just what she did for him.”
“The witness’s last answer will be stricken,” Judge Castor said, becoming annoyed.
“What changes did you make?” Addison asked.
“Well, the drafts I prepared essentially took his estate plan back to what it was prior to his marriage to Katy. He wanted everything to go to charity. I advised Mr. Loomis that under Michigan law, a spouse can’t be completely disinherited under a will.
Without going into the weeds too much, spouses have certain election rights.
So I advised him of the importance of changing the trust language and all of that.
Though, the effect of a divorce would of course negate spousal election rights and so on. ”
“Thank you,” Addison said, holding up a hand. She had, in fact, gone into the weeds. Several juror’s eyes began to glaze over. “Just so I’m clear, this appointment, these discussions took place approximately just four months prior to Mr. Loomis’s murder?”
“That’s correct.”
“And you were in continuous communication up until February of this year, correct?”
“Yes.”
“You prepared a divorce complaint. You prepared amended estate documents essentially cutting Katy out of any inheritance from Tom as well.”
“Essentially. Yes.”
“What about the life insurance policy?”
“Well, that’s outside probate. So I reiterated to him the prudence of changing that from Katy to the trust as primary beneficiary.”
“Thank you,” Addison said. “I have no further questions.”
“Ms. Leary?” Judge Castor said.
This would be quick. Damning as Marcia’s testimony was, I still had one path to reasonable doubt.
“Ms. Murphy,” I said.
Marcia smiled. “We’ve known each other a while, haven’t we? Marcia is fine.”
Both the judge and I frowned. Marcia had reached an age where she cared little about what people thought of her or certain conventions. But we were still in the middle of a trial. We weren’t sitting at a bar together. I ignored her comment.
“Your preparation of these documents for Tom. The divorce complaint, the amended estate plan. This happened four months prior to his death. That’s your testimony?”
“It is.”
“And in the course of your representation, as a general practice, what’s the next step once you’ve prepared those documents?”
“I send them to my clients so they have a chance to review them. If there are no questions, changes, or concerns, we set up a follow-up meeting where the documents could be executed.”
“Did that happen with Mr. Loomis?”
“Did he review them? Yes. I sent the draft documents to Tom by email on February 15th. So that was what, four weeks before he was killed?”
“Thank you,” I said. “Isn’t it true your office manager then contacted Tom to set up the follow-up meeting?”
“She did. Yes. We were supposed to meet on February 28th.”
“Right,” I said. “But Tom never showed up for that meeting, did he?”
“No. Well, he wasn’t a no-show. That’s not accurate.”
“What is accurate?”
“The appointment was canceled.”
“And you have no idea why, do you? He didn’t give you a reason.”
She shook her head. “No. Could have just been a scheduling conflict.”
“But he didn’t reschedule, did he?”
“No. And I didn’t take the call. My scheduler did. No reason given.”
“So it isn’t even accurate to say Mr. Loomis intended to reschedule. Because he didn’t. As you stated, he simply canceled the appointment.”
“You’re talking semantics, I guess. But yes. For whatever reason, the appointment was canceled.”
“By Mr. Loomis?”
“Yes!”
“So we’re clear, what is the legal effect of a drafted divorce complaint or drafts of an estate plan?”
“The legal effect?”
“Right,” I said. “In draft mode. If they’re not signed.”
She smiled. “There is no legal effect. Not until the client comes in and signs them. On the estate planning side, those also need to be witnessed.”
“Okay,” I said. “So you prepared drafts only. Then Mr. Loomis canceled the appointment you set up for him to fully execute them.”
“That’s right.”
“Clients change their minds, don’t they?”
“Excuse me?”
She seemed to be playing obtuse for no good reason I could think of. “Mr. Loomis could have changed his mind about getting a divorce or changing his will, right?”
“I suppose so.”
“And in this circumstance, if a client has you prepare certain documents then cancels the appointment to execute them, that would be a way of expressing a change of mind, wouldn’t it? At least one way.”
“Objection,” Addison said. “Calls for speculation. She can’t have it both ways. If Ms. Murphy can’t guess at Mr. Loomis’s intent in preparing these documents, she likewise can’t make assumptions about his actions or inaction afterward.”
“Sustained,” Castor said. “Ask it another way, Counselor.”
“Isn’t it true that as of the day that final appointment was canceled, your most recent representation of Tom Loomis amounted to nothing?”
“What do you mean?”
“I mean, even though he came to you to prepare those documents, nothing came of it. He never did anything to actually put those plans into place, right?”
“Objectively, that’s true. But as you said, I can’t assume his intentions.”
“No,” I said. “You can’t. I have no further questions.”
As soon as Judge Castor dismissed Marcia from the witness stand, Quick was on his feet. “Your Honor,” he said. “Before we proceed, I have a serious matter I’d like to bring to the court’s attention.”
Castor scowled. “Fine,” he said. “The jury could benefit from a short break, I suppose. We’ll take a thirty-minute recess.”
The bailiff ushered the jury out. Quick and I approached the bench.
“What’s going on, Counselor?” Castor asked.
“Your Honor,” he said. “It has come to my attention that Ms. Leary has engaged in some conduct outside of trial that could amount to jury tampering.”
I reared back as if he’d slapped me. “I’m sorry … what?”