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After Tuesday’s dramatic turn with an embattled Michelle Hetzel holding forth on the witness stand, Wednesday, October 3, 2001, began in anticlimactic fashion. In chambers Judge Panella discussed the subject of whether the defendants would put on character evidence. It was an important issue, particularly in the eyes of the appellate courts, and Panella would be remiss if he overlooked it. He told the attorneys that he planned to talk to the defendants first thing, outside of the presence of the jury, about their right to call character witnesses—people who might testify regarding their reputation for truthfulness and nonviolence. In past cases this type of testimony alone had proven sufficient to create reasonable doubt.
DA Morganelli supported Panella’s decision to give special instructions regarding character evidence, noting that the state supreme court had overturned at least one first-degree murder conviction solely because defense counsel had not considered the use of such evidence. He conceded that if character witnesses were to testify that both Brandon and Michelle had been peaceful, nonviolent people, he’d have no evidence to refute that. In essence, the defense had nothing to lose by calling such witnesses, he said.
But putting on witnesses who’d be open to cross-examination, not only by the prosecution but also by an antagonistic codefendant’s counsel, could be a chancy proposition. For strategic reasons, neither defense team wanted to take the risk of calling such witnesses and having it backfire on them.
At the end of the conference in chambers, Michelle’s attorney Brian Monahan asked Bloss’s side if they would share how many witnesses they planned to put on the stand. Attorney Funk replied that it was going to be Brandon’s call to make, when the time came, but that the only witness who might testify would be Brandon himself.
When the trial resumed in front of the jury, Monahan called Lieutenant Jose Garcia, a supervisor with the county corrections department. Garcia presented a visitor log showing that Brandon’s mother and sister had gone to see him in jail. The inference Monahan was hoping jurors would draw was that it was possible that Brandon had conveyed information about the murder to his mother or sister, and that one of them in turn had relayed it to Cara Judd, who then incorporated it into her diaries as part of the aforementioned conspiracy to frame Michelle. It was probably a stretch to think they’d get the connection he was hinting at—a communication line between Brandon and Cara—but just in case they did, on cross-examination, Teresa Miranda clarified with Garcia that Cara Judd’s own name appeared nowhere on the visitor log.
Detective Barry Golazeski was called next. He testified that police had toured Brandon’s workspace at Ashland Chemical and received three types of rubber gloves used there. The implication was that Brandon, not Michelle, had obtained and used the rubber gloves found in Michelle’s car.
Panella called a recess at 10:17 A.M. While the jury was out, Monahan told the judge he was ready to rest his case. As a matter of course, he renewed a motion for Michelle’s acquittal based on the arguments made when the commonwealth rested its case. Panella denied the motion.
With the jury gone, the judge spent considerable time explaining to Michelle her right to call character witnesses who could vouch for her reputation in the community.
“In cases such as this, in which it’s word against word, credibility of the witnesses is of paramount importance, and character evidence is critical to the jury’s determination of credibility,” Panella said.
Panella sent her with her attorneys into a private conference room to review the decision of whether to call character witnesses. When they emerged, Monahan said they would stick by the decision not to. The reason was that if witnesses were put on testifying that Michelle was truthful, the DA would impeach that testimony with examples of untruthfulness. If they put on evidence that she was nonviolent, Brandon’s attorneys planned to counter with evidence that she’d been violent with certain members of his family.
When the jury was brought back into the courtroom, Monahan rested his case on behalf of Michelle Hetzel. Now it was Brandon’s turn. Judge Panella turned to his defense team. “Mr. Szachacz, we now turn to Defendant Bloss’s side of the case. I’ll hear from you.”
Szachacz replied that he had no testimony to present.
Unlike Michelle, Brandon had decided not to testify on his own behalf. No witnesses would be called on his behalf, either, which meant that he was essentially presenting no defense. He was counting on the jury to find that the evidence put on by the commonwealth was insufficient to convict him.
Judge Panella excused the jury again, and proceeded to reiterate to Brandon the character evidence instructions that he’d given Michelle, granting him the same opportunity to review the decision in private with his attorneys. He reminded Brandon that both Michelle Hetzel and her mother had testified that he’d confessed to perpetrating a murder, and suggested that his reputation for being a law-abiding, nonviolent person could be a critical issue for the jury. But when Brandon and his defense team returned from the conference room, Szachacz said they would stick by their decision not to call any character witnesses.
The jury was brought back in, and Szachacz rested his case before them.
Panella reminded the jury that under the Constitution, every defendant has the right to remain silent. “You must not draw any inference of guilt from the fact that Defendant Bloss decided not to testify in this trial,” he advised.
Before the evidentiary portion of the trial ended, Morganelli had the opportunity to present rebuttal evidence. He called Keary Renner to rebut Michelle’s assertion that Keary might’ve placed the green coat on Devon’s body at the canal museum.
Going to his crime scene photo exhibits, the DA asked, “When you looked in, did Miss Guzman have this green jacket on her as it’s shown in these photographs here?”
“Yes, she did,” Keary replied.
“OK. Did you at any time remove that jacket while you were trying to see whether she was OK or not?”
“No, I did not.”
When Keary stepped down from the stand, the evidentiary portion of the trial ended. All that remained now were closing arguments and jury deliberations. It was just before noon, but Panella didn’t want to squeeze in closing arguments today, because it would mean sending the jury into the deliberation room later in the day than he would like.
Before dismissing the jurors, he reminded them to heed the cautionary instructions they’d been given, such as to resist the urge to conduct investigations or visit the crime scene or other related locations on their own. It would be a shame if someone did something to jeopardize the trial at this late date. Thankfully, the run of bad luck that had depleted the pool of alternates at the start of the trial had ended. One more day and the case would be in the hands of the jury at last, provided luck held.