She called Detective McGuire on the telephone. She was not happy. She said Kevin Kelly had promised her this wouldn’t come out. She said Kevin Kelly was a liar. She said she wanted Kelly to call her right away.
She called McGuire for the first time on Friday night. She called him again Saturday morning and then again Saturday afternoon. McGuire called Kelly, pleading with him to call her and calm her down. Kelly said she was getting what she deserved. McGuire reminded him that she was still his witness, facing additional hours on the stand, and that a loss of control on her part could conceivably jeopardize, or at least complicate, the case.
Finally, at 8 P.M. Saturday, Kelly called her. She wasn’t home. He left a message. She didn’t call back. From her point of view, it is probably a good thing she didn’t. Kelly was sick to death of Felice Rosenberg. To him, she and Marshall were exactly the same phony country-club type and it was the one type he most despised. Now she was frightened—well, too goddamned bad.
The first time he’d met with her, before the trial started, Kelly had been very frank. He’d said, after asking Gladstone and O’Brien to leave the room so he could talk to her privately, “I’ve heard all the rumors about the affairs. I really don’t care if they’re true and I don’t care who else might be involved. I don’t want to embarrass you up there and I want to assure you that I don’t intend to ask you about any affairs other than Marshall, and I’ll do my best to protect you if Seely starts.”
Now, according to McGuire, on the basis of Seely’s comment as reported in the papers, she was accusing Kelly of going back on his word.
He did reach her by phone late on Sunday afternoon.
She yelled at him. She called him a liar. She said, “You promised me this wouldn’t come out!” Then she put her husband, David, on the phone. David told Kelly that he had to prevent questioning about past love affairs. “There’s children involved,” David said.
That line proved too much for Kevin Kelly.
“Who the fuck do you think you’re talking to?” he said. “After all the bullshit that’s gone down around here for a year and a half, you’ve got the balls to tell me there’s children involved? You want to talk about children involved, pal, show up at the fucking courtroom one day and take a look at Marshall’s three kids sitting there like they’re still at their mother’s funeral. Don’t tell me about children involved. In fact, don’t tell me about anything. I told her I would protect her and I’ve been protecting her and I’m going to keep on protecting her next week. Now what the fuck else do you want to talk about?”
David put Felice back on the phone. “You’ve left me totally vulnerable,” she said.
“You could save yourself a lot of headaches,” he said, “if you’d just stop reading the fucking papers. You let me take care of what happens in court.”
Now, her tone shifted, the anger replaced by self-pity. “But you read that in the paper on Friday. You must have known how I’d feel. But you didn’t even call me. You didn’t even call to say, ‘Felice, it’s Kevin. I know you’re hurting.’”
“Hey!” Kelly shouted. “Who the fuck do you think I am? You think I’m David? You think I’m Rob Marshall?” He shifted to an imitation of Rob’s voice on the tape. “Hello, babe. This is Kevin. I know you’re hurting.” Then he went back to his regular voice, which at this point was close to a bellow.
“Listen! You be the witness and I’ll be the lawyer and we’ll get through the rest of this fine. But don’t even start with that ‘hurting’ shit. I’m not one of those ass-kissers from the country club. You just show up on time Tuesday morning!”
Felice was not the only nervous person Kelly talked to that long weekend. Other phone calls were received reporting that other people from Toms River had been equally startled by Seely’s comment about a possible public probe of the “fertile area” of Felice’s past romantic life.
More than once, Kelly was reminded that much was at stake. That it was essential that he stifle any attempt by Seely to introduce extraneous names into the public record.
In Toms River, it appeared, there were a lot of people with a lot to lose and many of them were acquainted with Felice.
And so it was that on Tuesday it was not so much what Felice said as what she didn’t say—what Seely was not permitted to ask her—that caused the sighs of relief that raised the air temperature from Mays Landing all the way to Trenton.
He did question her on her attitude toward Maria Marshall. “You didn’t like her, did you?” he said.
“I can’t say that,” she replied.
“You can’t say that?”
“No.”
“Does that mean that you did like her?”
“It means that she was not someone whom I needed to like or dislike,” she said with an edge to her voice. “She was an acquaintance.”
Her unnerving weekend had left Felice somewhat pricklier than she had been during her first day of testimony.
“When you say someone that you needed to like or dislike, is that how you determine whether or not you are going to like somebody, whether you need to or not?”
“No, what I was trying to say, Mr. Seely, is, we did not have enough contact for me to characterize our relationship as, in my opinion, my liking her or disliking her. We had contact on a very limited social level in such a way that our conversations were not extensive and it was not necessary for me to like or dislike her. She was not a close friend.”
“Well, just so I understand how you categorize your relationships with people, there are obviously people whom you like. There are people who are your friends, and then I gather there is another category, people who are your acquaintances. Is that how you define your relationships with people?”
“I’m not sure I can answer that broad a question,” she said, “because I suspect that there is going to be some follow-up that’s going to try and turn that around.”
“Are you anticipating I’m trying to trap you?”
“Yes, exactly.”
Seely began to grin broadly and to look around the courtroom as if expecting to see that everyone else was as delighted with him as he was delighted with himself.
“Can I assume then,” he said, still grinning, “that at least since Thursday, that you, in your own mind, have been trying to anticipate the little traps I may have been trying to lay out?”
“No,” Felice said coldly. “I have been much too busy for that.”
“So you have been at least busy enough in other matters, I guess with your video stores. Have you been busy with them?”
“Is that relevant?” Felice said.
Kelly jumped to his feet and pointed his finger at Felice. “Listen,” he said. “You answer the questions. I’ll do the objecting.”
“How did you learn that word, ‘relevant’?” Seely asked.
“Time out,” Kelly said. “I’m going to object.”
“Sustained,” Judge Greenberg said.
Seely, however, soon reached the two areas of inquiry that prompted Kelly’s most serious and energetic objections. The first concerned drugs; the second, sex.
At sidebar, out of the hearing of the jury, spectators and press, Seely said, “Based on information that I have recieved from my client, there was a time period when Felice was down in the Caribbean with her husband and she was detained and under arrest, from what I understand, with her husband, for carrying drugs and contraband out of the country and she was, at least as far as I understand—when she was down there, she was under detention by the authorities. And what ultimately happened was, they confiscated whatever drugs were in their luggage and then after a period of—I’m not sure how long, you know, an hour or so—they ultimately allowed the two of them to clear customs and enter the United States.”
Seely pointed out that Felice had said her questioning by Ocean County authorities in regard to the murder of Maria had been her first encounter with law enforcement personnel.
“I would like to be able to impeach her with
the fact that that was not her first encounter, because she had been, in fact, detained and she did encounter customs officials.”
“Where is your information?” Judge Greenberg asked.
“The information is based on what my client has told me about conversations she has had.”
“I would like to see something of a record,” the judge said. “Either a report—”
“I don’t have a report.”
“I have to see something. When did this happen?”
Seely left the bench momentarily to confer with Rob and returned to say, “My client says that it happened about three years ago, in the Caribbean, and there were drugs that were confiscated in the luggage.”
“Was there an arrest?” Judge Greenberg asked.
“From what I understand,” Seely said, “and, once again, I’m getting this from my client, because I wasn’t able to get records from the Caribbean, from what I understand she was detained by customs. In other words, they detained her and her husband. So, in essence, they were not free to leave. So, in a sense they were under arrest. They were certainly not free to go. They were in a custodial setting. I think they missed their plane. From what I understand, they then, through some type of an arrangement worked out with the customs officials that they would confiscate the contraband, they ultimately were released.”
“See,” Kelly said, “the problem is this is all coming from Marshall. He has nothing to back it up.”
“I would say this,” the judge said. “Your client, with all due respect, could say anything.”
“Well, Judge,” Seely said, “the problem is that he doesn’t have anything in the way of a document.”
“Even if this did occur,” the judge said, “what does it have to do with this case?”
“Well,” said Seely, “we have received information from our own defense investigation that there has been an ongoing federal investigation into the Toms River area involving conspiracy to possess and distribute various types of drugs. This includes people from an auto dealership in the Toms River area and there was a recent indictment of about thirty-some people from the Toms River area.”
“That’s true,” Kelly said, “but how was she involved in this and how are you going to establish that?”
“Well, from what—”
“She wasn’t even arrested,” Kelly said.
“She may not have been arrested,” Seely said, “but at least from what we have been able to find out on our end, she may at least be some type of subject of that investigation, if not a target of this crime, and I would like to know whether or not there were any understandings or agreements with her, either by state or federal authorities in that area in return for her coming in here and testifying.”
“Absolutely not,” Kelly said.
“Then,” the judge said, “I just don’t see how it has any relevance to any issue in this case.”
“It goes to credibility,” Seely said.
“It might,” the judge said, “if she had been arrested and charged with an offense, put in jail and convicted of that offense, yes. I agree with you. But what you have told me is so tangential it doesn’t seem to have any significance. She left within an hour, isn’t that what you said? She was free to leave in an hour?”
“She may be able to give you more detail,” Seely suggested. “She was detained and they searched all the suitcases and luggage and there was something worked out.”
“I don’t know what was worked out or what wasn’t worked out,” Judge Greenberg said, “but a mere detention, if somebody looks through your luggage, is innocuous. The same thing happened to me one time. I came through customs and I happened to be traveling light and I had one small bag with me and I think they were suspicious as to why a person would be going with one bag, so they detained me. They took that bag apart, and you could say that I was detained.
“It’s just so remote,” the judge concluded. “It seems to me it’s simply an effort to get something into the case to besmirch the witness with no legitimate objective.”
Seely then proceeded to his second area of potential besmirchment, which was the one that had caused most of the weekend’s dry mouths in Toms River.
“It deals with the prior affairs and relationships that the witness has had,” Seely said. “Based on our investigation and based on conversations that the witness has had with my client over the time period that they were together. It’s fairly obvious that she has had other meretricious relationships, which—”
“Not to interrupt you,” Kelly said, “but so has Marshall.”
“What is the relevance?” Judge Greenberg asked Seely.
“The implication now in front of the jury,” Seely said, “is that this was a relationship between two people who were going to leave their spouses and then live together. And the theory behind the killing of my client’s wife was to collect life insurance proceeds and also, in essence, to put her out of the way so my client could continue a life with this particular woman.
“The historical track record, if you will, of this particular witness over a period that goes back almost fifteen or twenty years is replete with a series of relationships outside of the marriage where they never resulted in her leaving her husband permanently. She always returned to him. And he, being the kind of person that he apparently is, was willing to take her back notwithstanding the fact she had done these things.
“I think it’s relevant to show the lack of seriousness with which she used this type of relationship. It is also relevant because it shows, I believe, clearly a course of conduct. It shows a scheme, a mode of operation, if you will, that she has engaged in over a very long period of time where she will engage in a relationship with someone for a lengthy period of time, she will get whatever benefits she can from that, and then she will break the relationship off in some fashion and return to her husband.
“Because over all these years, some twenty-odd years, she has never divorced him and he has never divorced her and yet she has continued in the Toms River area to engage in meretricious relationships with various people. She has been doing this for quite some time, and it certainly is probative because it goes to what her state of mind was and what my client’s state of mine was and what his intentions were.”
“How many liaisons, if that’s the word, would you say occurred?” the judge asked.
“I can tell you this, Judge,” Seely said. “I got a phone call yesterday in my office from a woman who demanded that she be allowed to come to court today. She said that almost twenty years ago the same thing happened to her, where her husband ended up in a relationship with this witness and gave her various things and almost ruined her marriage until she confronted her. It goes back over a number of occasions. This is not an isolated incident.”
“But we have to bear in mind,” the judge said, “that the issue here is whether Marshall, as to the murder of his wife, what he was thinking, what his actions were and why he took those actions. It seems to me in regard to this witness what you are offering is simply character evidence—that this person is of such character she shouldn’t be believed. Because the only issue here with regard to her is whether she is telling the truth or not. Not anything else.
“And it seems to me that if you allow this type of evidence to come in, you would be allowing evidence that’s going to distract from the issues of the case. What the jury would get from this type of evidence is simply that this is a bad character, a Jezebel, or whatever the word is, and whatever she says you can’t believe her.
“Therefore, it seems to me that the prejudicial impact and the capacity to distract the jury from the main issues in the case would substantially outweigh any probative value and I don’t, quite frankly, see any probative value to it. I’ll sustain the objection.”
Now that he’d lost both arguments at the bench, not much remained for Seely but some final sniping to cover his retreat.
“You mentioned Thursday,” he said, “among other things, that you and Rob travel
ed in the same social circles in Toms River. And you mentioned, among other things, that as a result of this you have suffered the loss of a number of friends and acquaintances, isn’t that true?”
“Yes.”
“You say ‘this.’ Does ‘this’ refer to the fact that your situation with regard to Rob Marshall has now become a matter of public record in your town, in Toms River, and thereby has subjected you to a certain amount of scorn and criticism?”
“Are you simply clarifying the pronoun ‘this’?” she asked. “Is that the point of your question?”
“Yes, I’m trying to clarify, to use your word—are you an English major, by the way?”
“No, I’m a math major.”
“What I’m trying to determine is this: did this disassociation by your friends and acquaintances occur because they heaped ridicule upon you because of the fact that you had an extramarital relationship with Mr. Marshall?”
“I really can’t read the minds of my friends,” she said. “I simply know the facts are that I found myself isolated once this became public.”
“Do you blame Rob Marshall for that?”
“No. I blame myself.”
“So, therefore, you have no bitterness towards him whatsoever, is that correct?”
“No, that’s not correct.”
“Well, then, you’re bitter towards him?”
“I don’t think ‘bitter’ is the best adjective,” she said. “Would you like me to explain?”
But even if she wasn’t an English major, Carl Seely had had enough.
“No,” he said.
And Felice’s testimony drew to its close, with just one final declaration about how she and Rob had hoped to handle the delicate matter of leaving their spouses and children.
“Part of our plan,” she said, “was that we would try to make it as—‘painless’ isn’t the right word, but we would try to minimize the amount of pain we were going to inflict on people.”
“Damned nice of her, don’t you think?” Roby whispered to Chris.
“She’s all heart,” he agreed.
Then they went back to their separate schools, while Felice—liberated from her schoolmarm pose—headed home to David so they could put a new message on their answering machine, this one promoting her video stores.