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Roger Brown was convinced Dian Bailey had lied to him while testifying during her daughter’s trial. A grand jury believed the evidence Brown had presented in relation to those charges. Now Brown was determined to prosecute Dian Bailey and the McCords’ friend, Michael Upton, who, the prosecutor’s office believed, had lied during his grand jury testimony. How dare these people think they can lie to the police and prosecutors investigating a double homicide? For what? To protect murderers? Reaffirming Brown’s contention that Upton lied about the storage facility, Brown got the results of Jeff McCord’s polygraph, and the examiner felt Jeff was telling the truth.
On Tuesday, August 5, 2003, Michael Upton was in court facing a jury on charges of hindering prosecution and perjury for his role in lying during the investigation into the deaths of Alan and Terra Bates. Upton was said to have told varying stories regarding that storage facility and the possibility of potential evidence Jessica had hidden.
Investigators never found the storage unit or the evidence. Still, Upton, a man in his early thirties, sat and listened as prosecutor Doug Davis explained to a jury the state’s case against him.
Davis said Upton repeatedly changed his story, which led police to believe he was lying. More than that, Davis was firm in his personal belief that Upton had “decided loyalty to his friends [was] more important than the truth. He chose to cross the line of criminality.”
Richard Poff, Michael Upton’s lawyer, explained that his client had no idea a storage facility existed; he only knew of a storage unit that Albert Bailey had rented. Apparently, Upton got mixed up in the fiasco when Jessica asked him to help her stepfather move some furniture from Bailey’s storage unit over to her mother’s house so the kids would have something to sleep on while she was in jail.
“It was a misunderstanding,” Poff argued. “This is all a tale of sound and fury signifying nothing.”
The star witness of the day, after Roger Brown and detective Laura Brignac testified, was one of Jessica’s former cellmates. She told police that Michael Upton knew of the “bloody stuff” in the storage unit.
The next day, August 6, Jeff McCord sat and, for the first time publicly, described how he and Jessica had murdered Alan and Terra Bates, and then went about an elaborate plan to try and cover up the crimes.
Listening to Jeff’s graphic, detailed descriptions of the murders, Michael Upton sat with a stoic flush of sadness written across his face. At times tears streamed down his cheeks. Upton later said that none of it seemed real until Jeff McCord illustrated the murders so vividly on the witness stand. Upton said that up until that moment, he still held “on to some hope that they (Jeff and Jessica) were still innocent.”
Upton took the stand himself and told the jury he had no idea Jessica had rented a storage facility. He also said he “suffered from memory loss” due to a car accident he was in years before. Because of the injuries he had sustained, Upton testified, he “easily [became] confused under stress, which may have led to a misunderstanding during grand jury proceedings.”
Shocking the courtroom, Upton then said that his wife, pregnant with his child, dropped dead of a heart attack just two months ago.
Closing arguments were heard later that afternoon; then the jury was asked to deliberate the case. Perjury, a Class C felony, was good for ten years in the state pen if a judge felt inclined to give such a stiff sentence.
The next morning, after three hours of discussions, the jury found Michael Upton guilty of perjury (the judge dropped an additional charge of obstruction).
Michael Upton was devastated, his attorney said after the trial.
A little over a month later, Upton was sentenced to “spend a year in a work-release program,” followed by five years of supervised probation. This meant Michael Upton would spend his nights in jail, but be allowed to leave during the day and work outside the prison.