Without Tears
Seth Mazzaglia’s defense attorney Joachim Barth prepared for his cross-examination of Kat McDonough thoroughly and intently. After reviewing her video statement and her testimony to the grand jury, his attack on the witness wasn’t just legal theatrics. Deep down, Barth truly felt Kat wasn’t telling the truth on the stand, and he hoped to convince the jury to feel the same way.
Barth used the French pronunciation for his first name and went by “Jacque” for short. Barth was married to Tina Nadeau, a respected former homicide prosecutor and legal advisor to the governor, and now chief justice of the state superior court system. Her father, Joseph Nadeau, was a retired state supreme court justice.
Statuesque and fit, Barth was a keen, professorial litigator, but he wasn’t bookish around the clock. At home he raised livestock, and before leaving for court each day, he would venture into his backyard to feed his pair of four-hundred-pound hogs. When asked by friends if he’d named the hogs, he’d answer, “Yes. Delicious One and Delicious Two.”
The defense’s decision to have Barth—rather than Melissa David—cross-examine Kat was risky. General wisdom dictates juries can be turned off if male lawyers are seen as antagonistic toward female witnesses. But as first chair on the team, it would’ve been hard for Barth to play spectator during Kat’s cross-examination. There was too much riding on what she might say.
Seth Mazzaglia, on the other hand, had no choice but to play spectator for this critical part of his defense. There was little to no expectation Seth would testify, lest he open the door for the prosecution to poke around and elicit threads of his suppressed confession. Throughout the trial he’d sat silently in his parade of rotating blue and white shirts and black vest, bouncing his leg under the table as if to expend his buildup of nervous energy.
The only time the media and gallery heard Seth speak was on the trial’s opening day, when in a surprisingly light voice that belied his gruff exterior, he’d acknowledged for the judge his understanding of the consequences of his legal defense.
There were certain things that Seth couldn’t make go away, such as his lies to police and his knowledge of Lizzi’s watery grave. At trial, his position was that Kat had smothered Lizzi, and all of the steps he took after that were to protect her. The rub was that by saying that, Seth was incriminating himself on a host of lesser hindrance charges. Even if the jury found him innocent of murder, he’d still likely be sentenced immediately for those crimes. It was a calculated risk: admit to being the accomplice instead of the mastermind.
—
Assistant Attorney General Peter Hinckley’s direct examination of Kat McDonough had lasted a day and a half. Joachim Barth began questioning her on June 5, day six of the trial, after the court’s lunch recess. He started jabbing at her right away, reminding Kat how she’d come to the public defender’s office two days after Seth’s arrest and told them Lizzi had died lying on the floor wearing a harness while Kat smothered her friend with her vagina.
“You described in detail that you were literally on her face for ten to fifteen minutes.”
Kat acknowledged that she’d said that.
Barth said, “You have since changed your story. You have changed your account of what happened. You made that change while actively engaged in your immunity agreement.”
He pointed out that Kat’s agreement to testify against Seth reduced her prison sentence by decades.
“I had no idea I was getting a one-and-a-half-year deal,” she said.
This would be the predominant theme of Barth’s cross: Kat McDonough was a habitual liar and was motivated only by saving her own skin.
“The police asked you for your integrity and your honesty, didn’t they?”
“Yes, I believe they did,” Kat said.
“And you continued to lie to them.”
“Yes,” Kat replied flatly. “And that’s why I’m now serving a prison sentence.”
“In fact, you told them that perhaps you had an explanation for what happened to Miss Marriott.”
“Um,” Kat looked down, as if taking her time trying to recall. “I believe Seth said something to me that maybe it could be blamed on a fraternity. I believe I may have said that.”
Barth spoke to Kat loudly, carefully, and pointedly, doling out each question in parts—one phrase at a time. In contrast, Kat was soft-spoken. It took her an eternity to answer each of his questions. After an “um” or an “I don’t know,” she’d pause, as if considering how each question was phrased, testing the likelihood she was stepping into a trap. Then she’d answer slowly, in fragments that sometimes didn’t fit together. Their exchanges were excruciating to follow, like an out-of-time duet between a tuba and a piccolo.
When Barth wanted to make a significant point during cross, he did what all lawyers do. He’d asked some basic, leading foundation questions, reestablishing the narrative for the jury’s sake: On this night you did this, correct? You said you were here, were you not? The next thing that happened was this, correct?
These questions were designed to lead to the actual point he planned to hit home, little queries that could be answered, Yes, yes, and yes. Kat, however, would pause and ponder each question, breaking Barth’s intended rhythm. In her halting style, she’d respond, It might have been that or the week before, or, That’s not what I said, or I don’t remember what happened after that.
Kat’s obfuscation required Barth to ask if reading her police statement or grand jury testimony would refresh her memory, prompting countless trips to the stand to present transcripts with the hope of moving things along. It seemed that if Barth were to ask Kat whether it were Tuesday, she’d likely take two minutes to explain that she didn’t own a calendar. Her reluctance to answer anything stymied Barth from creating a solid, damning story from her testimony.
“Did you have the capacity to look police officers in the eye and lie to them while you were projecting confidence?” he asked.
Kat seemed genuinely unsure of what he meant. “I don’t know.”
“Do you have the capacity to look these jurors in the eye and lie to them while you project meekness and submissiveness and remorse?”
Kat turned toward the panel. “I’m not lying to them.”
Later, Barth would state as a matter of fact, “You consider yourself a good liar.”
“Not necessarily,” she replied slowly, “seeing as I got caught lying.”
—
The swings at Kat’s character and credibility weren’t unexpected. In fact, AAG Hinckley had prepared the jury for that during his direct examination. He reminded his star witness again and again how she’d done nothing to render aid to Lizzi Marriott and had instead lied repeatedly to police, to friends, and to Seth’s defense team. Hinckley was attempting to inoculate Kat against the accusations he knew the defense would make in cross. The message to the jury was that they didn’t have to like Kat McDonough or approve of her actions to believe her testimony.
Like a prizefighter, Barth jabbed at Kat repeatedly to see if the challenger could stay on her feet. To the reporters in the gallery, Kat was hanging tough. The questioning had gone on for several days and she hadn’t yet lost her cool. She answered (if somewhat timidly) all of Barth’s queries about whether she’d lied and why she lied. She’d been figuratively bruised, but she hadn’t yet fallen away from one of his punches.
“Ms. McDonough,” Barth asked suddenly, as he removed his reading glasses, “do you believe in dragons?”
The courtroom was silent. It was obviously a question designed to make Kat look crazy, an easy enough trap for her to avoid. Yet she fumbled her answer.
“I can’t say . . . there has never been a creature that wasn’t a dragon. Or that the essence of such a creature never existed . . .”
Barth then asked Kat whether she believed in ghosts, and then whether she believed in aliens. There was an audible groan among the journalists. Barth had finally landed a punch that knocked Kat against the ropes, and the jury might be ready to see her in a new light.
Barth’s focus had shifted, and he was now singularly drilling down into the bizarre fantasy world that Kat claimed she and Seth shared.
He probed their sex life. Weren’t you the one, Barth asked, who wrote all of those online ads looking for a Slave? Isn’t it true that, as a bisexual woman, you couldn’t be satisfied by Seth the way you demanded? Haven’t you admitted to this jury that you were aroused by being tied up? Wasn’t it you who kept Post-it notes of new fetishes to research? How do you explain your letters in which you beg Seth to beat you for your own sexual pleasure? Isn’t that why you call yourself “The Willing”? Didn’t you identify yourself as a “Switch”—meaning you took turns being the dominant one? Would Seth have really let you carve an X into his back if you truly were a “Slave”?
The defense attorney then picked apart Kat’s personas. Hadn’t you already created Scarlet and James before you came to the relationship? he asked. And weren’t Seth’s “alter egos,” Wild Card and Cyrus, simply the names of characters that your boyfriend had been using in role-playing games and video games? Wasn’t Seth’s world domination plan just one of the fanciful short stories he had been writing on his computer? Isn’t it possible you took all of this fantasy talk too seriously? Weren’t you the one who really believed everything beyond the Veil was true?
Barth opened one of several three-ring binders filled with printouts of the couple’s Facebook instant messages. He turned to one of Kat’s messages to Seth, written on the day she’d described Skarlet, Anay, Violet, and Kitty fighting over her soul while she folded shirts at Target.
“At this point the voices in your own mind are literally arguing amongst themselves,” Barth said accusingly.
Kat replied in the same quiet voice she’d had on the stand all along. “I had created the characters, but I began to wonder. I was really confused at the time.”
Barth dug into the conversations Kat had with Roberta that were secretly recorded.
“Didn’t you acknowledge to Roberta Gerkin that on the night of October ninth, while you were in your apartment, you were affected by one of your inner voices?”
On the wire, Kat told Roberta she felt like Anay was taking over her body. On the stand, Kat said she didn’t remember saying that, but added that much of what she told Roberta was made up.
“You don’t remember,” the attorney said with disapproval, “but you do remember that it wasn’t true.”
Kat conceded again that almost everything she had said to Roberta was a lie.
—
As the cross-examination continued into a second week, Kat would rush past the hallway cameras each time she entered and exited the courtroom. For most of the fifteen-minute midday recesses, she was left to sit alone in the witness box while the judge, the jury, and most of the spectators left the room to stretch their legs.
On occasion, the witness advocate from the attorney general’s office would engage Kat in small talk. The rest of the time, Kat sat silently staring at her hands and taking care not to look at the defense table.
Seth wasn’t allowed to leave the room during the recesses either. He stood up and stretched his legs and browsed through his lawyers’ notes, also careful to avoid looking Kat’s way. The last time Seth and Kat had actually spoken, their conversation had been about jailhouse weddings and escape plans. It was clear now that neither of those things would ever happen.
The defense wanted to go over the timeline of October 9, 2012. Barth stated that the text message proved Lizzi arrived at Sawyer Mill at 8:51 P.M. Kat agreed to his assertion. They decided to play strip poker then? Yes. Seth explained the rules? Yes. Seth dealt out about twenty hands? Kat looked at Barth in puzzlement, and said she didn’t know if what he did was “give out hands.” Seth dealt hands, correct? Kat still claimed ignorance.
“My question is pretty simple,” Barth said, his patience wearing thin. “Seth dealt hands?”
Another searching pause. “I don’t know if it’s a ‘hand,’” Kat said. “Seth dealt out a pile of cards to each of us.”
Barth finally exploded in frustration.
“When you do this,” he almost shouted, “are you trying to buy more time to answer questions or are you seriously answering my questions in this way because you need to?”
Barth took a breath and got the questioning back on track. Kat slowly attested to the facts she had previously provided, and agreed that they’d played around twenty hands of strip poker. The game went quickly, she said, taking only half an hour.
When Lizzi refused to make out with Kat, the game stopped and they watched the movie for about ten minutes. Kat claimed Seth choked Lizzi for an estimated ten minutes, and then he ordered Kat to choke Lizzi for another ten minutes. After that, she called Roberta at 10:47 P.M.
“You are missing approximately an hour in the evening of October ninth at your apartment,” Barth pointed out.
“Um.” Kat remained speechless for a while. “I don’t know. Like I said, I wasn’t really looking at the clock. Those were just time estimates.”
“We have the benefit, Ms. McDonough, of knowing when she arrived by virtue of her text message at 8:51 and your phone call to Roberta Gerkin at 10:47. According to your claims of activity, you are missing an hour of activity on the night of October ninth.”
Barth circled the podium to provide this long-awaited coup de grâce.
“Do you remember how long the activity you described to us, the sexual activity, took when you made your statement to us?”
“No. I just made it up.”
Barth said, “You claimed the sexual activity took approximately one hour.”
—
The defense then played the video of the statement Kat made at the public defender’s office. Her devil-may-care demeanor on the screen was in stark contrast to the mousey court performance the jury had watched over the past week. The image of Kat getting on her knees and pantomiming queening, flatly describing how she’d smothered another human being, seemed particularly damning.
Building on the doubts about her credibility, Barth used the tape to show Kat’s lack of remorse over Lizzi’s death.
Barth flipped back through the pages of Kat’s grand jury transcript and pulled out a detail she’d omitted during her direct testimony. She told the grand jurors that, as she watched Lizzi float away, she said, “Welcome to Davy Jones’s locker.” Hearing this for the first time, reporters found the quote to be flip and uncaring and another example of damning details left out.
“You made a comment about her going to Davy Jones’s locker,” Barth said contemptuously.
“Yes, because . . .”
“Because of your affinity for pirates.” His voice was dripping with incredulity.
“Not just pirates. I like the ocean. I like sailors.”
Barth spun back to the many different ways Kat had told the story of Lizzi’s death, challenging her on why she seemed to so easily remember some details about that night and not others.
“Like right now, I can’t get it out of my mind,” Kat said, her voice quivering for the first time since Barth began his cross. “And the other details of the night are not easy to remember, ’cause all I can think about is what it was like for him to strangle her right next to me. It’s all I can think about. I’ll try to remember all of the facts the best that I can, but . . .”
Kat’s face contorted suddenly and turned red as she sobbed.
“Days after this event, you appeared in our office and you didn’t look this way,” Barth said.
Kat didn’t respond, so he continued, “You didn’t cry.”
“I’ve been crying for days straight.”
“You went through detailed claims,” Barth exclaimed. “You talked about taking her body out. You did not flinch.”
Kat’s voice cracked again. “It’s because I was making up a story. There were details, but a lot of it was just a story. It wasn’t real. I was able to push those images aside and just think about keeping up with the fake story I was telling you.”
Kat looked out into the gallery where the Marriotts sat.
“I mean, right now, it’s just, this is when it’s really being told. This is when everyone’s finding out. This is when her family really gets to find out. And this is when I’m sitting in the same room as him.”
Kat sobbed some more. Barth approached the stand briefly then walked away. With his back to the witness, he asked, “You cry without tears, Ms. McDonough?”
“What?” The question took everyone in the courtroom by surprise.
“You cry without tears?”
All eyes turned to Kat’s red face.
“I don’t know,” she said. “Sometimes.” Kat reached for a handful of tissues and wiped her face.
A moment later, Barth looked at her closely and said it again.
“You still do not have tears?”
“I do. I don’t know what you are talking about,” a perturbed Kat replied.
The exchange was the sound bite for the evening news. Whether it raised doubt in the minds of the jury that moment is unclear, but it certainly raised doubt about Kat’s sincerity in the court of public opinion.
—
Even before the “no tears” incident, there had been a growing public antipathy toward Kat McDonough. Despite extensive testimony that Kat had been in an abusive, manipulative relationship with Seth—that she was literally his sex slave and forced to do his bidding—there was a growing chorus of doubt as to whether Kat was in fact his unwilling partner. That doubt was amplified by the shared notion that Kat was unlikeable, something not aided by her flat and sometimes off-putting demeanor on the witness stand. For months, news reports had said Kat “lured” Lizzi to her death, that she’d presented her “gal pal” as an “offering” to her “master” for their “sexcapade.”
Kat’s plea deal had been light, perhaps too light, for someone who had at minimum pushed a dead body in the river and then lied to police about it.
The extent of the media’s and the public’s backlash against a cooperating witness was unprecedented in New Hampshire.
In more than one local newsroom, reporters argued as to whether the state’s star witness was a victim or a stone-cold liar. A local TV station ran an entire story posing the question: “Is Kat remorseful enough?” A newspaper printed a sidebar on whether Kat’s sweet plea deal could be invalidated. Trial coverage from online streaming services featured criminal profilers who dissected her body language and word selection on the stand—giving her failing grades across the board.
Plenty of accomplices had fingered a killer and confirmed for trial-watchers the presumed guilt of the man or woman on trial. Kat was not afforded the same trust.
The online comments were incendiary. She’s a liar. She’s a pervert. She’s faking her tears. Throw the book at her. She should register as a sex offender. She’s hiding something. You sex slave slut puppy #gotawaywithit. u r sum freaking creepy liar psychopath. And more than one commenter gleefully pointed out the worst of Kat’s character flaws: She was an actress.
To be fair, there was a lot about Kat’s story that didn’t add up for the average observer. The missing hour in the timeline was troublesome. Her conduct in the video was indefensible.
Kat’s flaky belief in dragons and spirits, tied together with her known history of lying, also did not instill confidence. The things she claimed about Lizzi also seemed hard to square. Why would Lizzi agree to play strip poker with virtual strangers? After firmly refusing multiple invitations to have sex, why would Lizzi then remain topless while watching a movie? Why would she stay at all?
At watercoolers and across dinner tables, the debate raged on. Many doubters skimmed over the evidence; instead, they said, there was something not quite right about Kat’s story, something they couldn’t put their finger on.
Some journalists even debated the veracity of Kat’s domestic abuse allegations against Seth.
“But she was only seventeen when they met,” argued one reporter, who’d been watching the live stream at her desk.
“I don’t care how old she is,” said her colleague, his computer also streaming video of the trial. “She’s clearly a pathological liar.”
One thing was clear: None of the Kat blowback translated into a groundswell of reasonable doubt for Seth Mazzaglia. There was debate about whether Kat was a coconspirator but next to none questioning Seth’s culpability.
In fact, as the trial went on, Seth became more a target of public ridicule than debate. There was even a parody Twitter account created for Seth’s vest, called Stretched to the Limit. The account’s writer live-tweeted along with the trial, creating posts in which Seth’s sweaty, bulging vest begged for mercy, cried for its popped buttons, and begged Seth to again play strip poker just to give it some relief.
Also posted online was this O. J. Simpson–inspired quip: “If the vest needs alteration, the defendant needs incarceration.”
—
Kat McDonough spent ten days on the witness stand, longer than any witness the New Hampshire legal community or press could remember. But ten days of Kat McDonough also meant ten days of Joachim Barth.
The public defender’s frustration with Kat as a witness became more and more apparent. It began to filter into the line of questioning, diluting what Barth had likely planned as a linear and more conventional cross. As the cross-examination wore on, the press began to wonder whom the jurors would be happier to cease listening to.
“Do you think there is a difference between the way you answer my questions and the way you answer questions from the state?”
“Some of yours have been a little open ended and confusing.”
“Isn’t it that you answer my questions differently from the state, because you are afraid to [admit] to a lie and then your plea deal would fall apart?”
“The way you talk confuses me sometimes.”
By all accounts, Barth made the trial about Kat McDonough and not about Seth Mazzaglia. He did everything he could to impeach Kat’s credibility and the notion that she had been a prisoner in her relationship. He framed the safety of her plea bargain as a driving motivator for her to lie, thoroughly ripping apart the version of events she gave on the stand and playing Kat’s videotaped statement for all it was worth.
He used her own words to illustrate her ideas about past lives and her fetish for kinky sex. He took every opportunity to present Kat as unfeeling and insincere and as a skilled liar.
At the end of his cross-examination, Barth said, “In addition to your challenges of truth and reality, you have no appreciation for Ms. Marriott’s life.”
Kat’s mouth opened, but nothing came out. Before she could form an answer, Barth showed her his back and said with disgust, “Ms. McDonough, I don’t have any further questions for you.”
That’s when Kat finally told off her inquisitor.
“I don’t see how you can say that. You don’t know me,” she said. “You don’t know what I have been through. You have your ideas, but I have spent so much time trying to understand this. I have spent all this time not being able to say anything to anyone because I had to keep quiet because this was before the trial. Of course I think about her, but I haven’t been able to say anything yet. This is just the beginning where I can actually explain what really happened to her.”