Chapter 15
attire, even if they weren’t technically entering a courtroom. They waited on the wooden bench in the hallway outside the
closed door marked grand jury room.
“Are you nervous?” asked Elliott.
The question caught Jack off guard. Usually it was the lawyer asking his client that question, but he gave an honest answer.
“I’d have no nerves at all if you had taken my advice and agreed to take the Fifth. As it is, I’d say I have a touch of potted-plant
syndrome.”
“A touch of what?”
Jack explained quickly. “Years ago, a prominent criminal defense lawyer represented a witness from President Reagan’s National
Security Council at the congressional hearings on the Iran-Contra Affair. The lawyer was already well-known, but he became
a legal icon when the committee chairman basically told him to shut up, stop objecting to questions, and let the witness object
if he wants to. ‘Sir, I’m not a potted plant,’ he said. ‘I’m here as the lawyer. That’s my job.’”
“Good line. So, what’s potted-plant syndrome?”
“The state attorney is allowing me to go inside the room with you, but there’s very little I can do once I’m in there. I’m
damn close to being a ‘potted plant.’”
“Then why go in?”
“Look at me,” said Jack.
Elliott did, and Jack continued in a serious tone.
“I want you to do that if any question from the prosecutor gives you concern—before you answer.”
“Do what?”
“Look at me. If it’s time to assert your Fifth Amendment right, you’ll see it all over my face. If you don’t get my message, I’ll
tell the prosecutor I want to consult with my client, take you outside, and talk sense into you. Do you understand me?”
“Completely,” said Elliott.
The door opened. A junior assistant state attorney stepped into the hallway.
“We’re ready for you,” she said. “Please, come in.”
Jack entered first, with Elliott close behind him, and the junior prosecutor closed the door. The grand jurors watched attentively,
in silence, as she led Elliott to the witness table. Jack and the lead prosecutor, Julianna Weller, exchanged a purely professional
acknowledgment from afar, without words, as Jack took his seat on the opposite side of the room. Jack noticed that there were
no empty chairs in the grand jury seating area. Perfect attendance was neither a requirement nor the norm in grand jury proceedings.
Jack could only infer that Weller had told them not to miss today’s events—that this witness was important.
The junior prosecutor swore in the witness, and Weller approached.
“Good morning, Mr. Stafford. Would you please state your full name for the record?”
“Elliott Stafford.”
“Have you ever been known by any other names?”
It was one of the questions Jack and his client had covered in their prep session.
“Yes.”
“What is your current address?”
Jack was taken aback. He’d expected the prosecutor to ask the logical next question: What names have you formerly used?
But Weller had skated right past it, her focus for the next few minutes on Elliott’s education, employment, and other background—seemingly everything but Elliott’s dead name and former identity.
Jack knew that the lack of follow-up wasn’t due to incompetence.
A strategy was at work, which only exacerbated his “potted-plant syndrome.”
Finally, the prosecutor moved beyond the background questions. She placed an exhibit on the table before the witness.
“Mr. Stafford, I’m showing you exhibit twenty-seven, which has been previously identified by witnesses in this proceeding.
It is a handwritten list that Miami-Dade homicide detectives found in the kitchen on the night police recovered Owen Pollard’s
body.”
The junior prosecutor provided a courtesy copy to Jack, which was the first time he’d seen or heard of the “list.” A surprise
like that couldn’t happen at trial, but it was permitted under the secrecy rules of grand jury proceedings.
“Have you ever seen this document before, Mr. Stafford?”
“No.”
Jack cringed—not because the response was hurtful, but because he’d repeatedly warned Elliott how important it was to take
the Fifth if the prosecutor used exhibits that Elliott had never seen before.
“I’m sorry to interrupt,” said Jack, rising. “May I have a word with my client?”
The prosecutor paused. “Mr. Swyteck, let me remind you that you are not allowed to interrupt these proceedings for any reason.
You can advise your client if and when the witness requests it.”
She was right, and Jack knew he was risking ejection if he didn’t mind the rules. He hoped that his interruption had reminded
his client of the need to take the Fifth. The prosecutor turned her attention back to the witness.
“To be fair, let me ask the witness: Mr. Stafford, do you wish to consult with your lawyer at this point in time?”
Jack did everything short of standing up and screaming Yes!
“No,” said Elliott.
It was a watershed moment. Elliott’s decision to ignore his lawyer’s announced desire to speak with his client pushed Jack beyond the jitters of simple potted-plant syndrome.
“And just so the record is clear, Mr. Stafford, your answer to my question was ‘no,’ you’ve never seen this document before.
Correct?”
“That’s correct,” said Elliott.
A flood of follow-up questions came to Jack’s mind, but to his surprise, the prosecutor chose not to ask any of them.
“All right,” said Weller. “Please put that exhibit aside.”
This is one strange strategy, thought Jack.
“Mr. Stafford, how long did you say you worked for VanPoll Enterprises?”
“A little over a year.”
“In the course of your employment, you had occasion to see Mr. Pollard’s handwriting, did you not?”
“I did.”
“It’s my understanding that it was Mr. Pollard’s practice to use a stylus on his tablet to edit and mark up documents, correct?”
“Yes, he liked to work that way.”
“So, you had occasion to see documents marked up in his handwriting, correct?”
“Yes.”
“Hundreds of documents, no?”
“Yes. Probably hundreds.”
It wasn’t hard for Jack to see where the prosecutor was going with a line of questioning about Elliott’s familiarity with
the decedent’s handwriting. Look at me, Elliott.
“Mr. Pollard also used a whiteboard at team meetings, correct?”
“Always.”
“So, you’d see his handwriting in that setting too. Right?”
“Yes, that’s true.”
“Take another look at exhibit twenty-seven, the handwritten list. Would you say that this handwriting looks like Mr. Pollard’s
handwriting?”
Jack coughed. He was sending a message to Elliott to take the Fifth, but Elliott continued with his own plan.
“Yes, I’d say it looks like his handwriting.”
“Well, let’s be honest, Mr. Stafford. You’re more than saying it looks like Mr. Pollard’s handwriting. You’d like us all to believe it’s Mr. Pollard’s handwriting. Isn’t that so?”
Obvious objections came to Jack’s mind, none of which he could assert. But he needed to remind Elliott about their agreed-upon
plan to assert the Fifth Amendment, even at the risk of being asked to leave.
“Ms. Weller, it’s important that I have a moment with my client.”
“This is your final warning, Mr. Swyteck. Please do not interrupt.”
“It’s about his constitutional rights.”
“If your client would like to assert his Fifth Amendment right against self-incrimination, he can do so himself. Nobody is
stopping him. Mr. Stafford, would you like to decline to answer my question on the grounds that it might incriminate you?”
Jack locked eyes with his client. Elliott didn’t look away. It was as if he wanted to deliver his answer to his lawyer, not merely in the presence of his counsel.
“No. I’ll answer your questions, Ms. Weller.” Then he looked at the grand jurors. “It’s not my purpose to make anyone in this
room believe anything, other than the truth.”
“Then let’s get to the truth of the matter about this list of ‘Things Stressing Me Out,’ as it is labeled,” said Weller. “The
list includes multiple references to ‘BB’s mother.’ Do you see that?”
“Yes.”
“Can you tell us what ‘BB’ stands for, Mr. Stafford?”
Jack wanted to interrupt a third time, but he was certain it would have gotten him ejected.
“I have no idea what ‘BB’ means,” said Elliott.
“Well, as the grand jury will recall, a previous witness told us that ‘BB’ stands for Big Boy. It refers to Mr. and Mrs. Pollard’s
son, Austen. He was just ‘BB’ or ‘Big Boy’ before they decided on a name.”
“Okay. If you say so.”
“But here’s an interesting fact the grand jury learned in our last session. After Helena Pollard settled on the name Austen,
no one ever called him BB again. He was Austen. Did you know that?”
“No. I didn’t.”
Jack was nearing the point at which it was worth getting ejected, if in the process he could get his client to take the Fifth.
“I—I don’t see how I would know anything about that,” Elliott added.
“Here’s how,” said the prosecutor. “Austen was adopted. That means only three people ever called him BB. His adoptive parents,
Helena and Owen Pollard. And the biological mother, who brought him into this world without a name.”
Abe Beckham’s words outside his office came roaring back to Jack—There’s something you don’t know about your client—and it was obvious that Elliott had withheld even more critical information from his lawyer.
“Elliott, it’s time to invoke your rights.”
“Mr. Swyteck,” the prosecutor said harshly, “I’ve been very patient. One more word and I must insist that you leave the room.”
Jack held his tongue, but he spoke to his client through his eyes.
The prosecutor stepped closer to the witness, her gaze tightening. “You’re one of the few people on this planet who can identify
Austen’s biological mother. Aren’t you—Elle?”
Jack could see it all over Elliott’s face: Elle was his dead name.
The prosecutor’s attack continued. “Your name used to be Elle Carpenter, did it not? Elle Carpenter, the biological mother
of Austen Pollard. Big Boy? BB?”
Jack stepped forward. “Show me the door if you want,” he told the prosecutor, and then he faced his client. “Elliott, this
has gone far enough.”
Elliott appeared numb, shell-shocked even. Wisely, the prosecutor simply let the grand jurors observe, rather than lose the
moment by escorting Jack to the exit.
Elliott struggled to regain his composure, or at least some of it. He glanced in Jack’s direction and then looked at the grand jurors, using the words that Jack had impressed upon him so many times.
“I decline to answer based on my right to remain silent under the Fifth Amendment of the United States Constitution.”
“Is it your intention to assert your Fifth Amendment rights in response to my remaining questions?”
“Yes.”
“Very well,” said Weller, and then she turned to explain things to the grand jurors. “The witness is declining to answer any
further questions based on her right—I’m sorry, his right against self-incrimination. We must respect that decision. The witness is excused.”
Jack doubted that the pronoun slip was accidental, and he didn’t appreciate the prosecutor’s gratuitous repetition of a word—self-incrimination—that appeared nowhere in the Constitution. But he wasted no time in gathering his client and heading for the exit. The junior
prosecutor opened the door, Jack and Elliott stepped out, and the door closed behind them.
“I’m so sorry,” said Elliott.
Jack was too angry to answer. He took Elliott by the arm, led him away from the grand jury room, and didn’t stop until they
found an empty conference room at the end of the hallway. Jack closed the door.
“You’re Austen Pollard’s mother?”
“Was.”
“Do you not see how that changes everything?”
“It changes nothing. I had nothing to do with Owen Pollard’s death.”
“Which was a lot easier to prove before you testified.”
“The prosecutor knew I was the biological mother before I ever set foot in the grand jury room. I didn’t give her any ammunition
she didn’t already have.”
“Oh, you have no idea how much you’ve given her,” said Jack, and then he slipped into the role of prosecutor, launching a
mock examination of his own client:
“You were Elle Carpenter, correct? As the biological mother, Elle Carpenter had no way of knowing that the Pollards stopped calling their son ‘Big Boy’ after the adoption. That’s why Elliott Stafford wrote ‘BB’s mother’ in this phony list of ‘Things Stressing Me Out.’ You wrote it in Owen Pollard’s handwriting to make his
death look like suicide! Isn’t that true, Mr. Stafford?”
“I didn’t kill Owen Pollard,” he said, glowering.
“Then you should have listened to me, kept silent, and forced the prosecution to prove you did. Instead you lied to your attorney
and testified your way into a deep, dark hole that will probably get you indicted. The more you talk, the faster you dig your
own grave.”
“Fine,” he said defiantly.
“Fine?” Is that all you can say for yourself? What is fine supposed to mean?”
He stepped closer, then answered in a soft but firm voice that was filled with finality. “It means I will remain silent.”