Close to Home (2005) s02e15 Episode Script
215 - Barren
Kimmy Johnson,32,stabbed once with a letter opener found on the scene-- severed a major artery.
Time of death between Victim's mother discovered her body the next morning.
Police arrested Tess Middleton,32, prints found on the doorbell,doorknob and the murder weapon.
Neighbors saw her car in Johnson's driveway around 7:00.
We sure it was hers? Vanity plate.
CONLON: "2CUTE4U".
Nice.
Relationship between Middleton and the victim? Up until a couple years ago, Kimmy Johnson worked for Tess Middleton's husband-- his personal assistant.
Ah.
Ah.
They were having an affair.
Everybody's first thought.
Police found no evidence of an affair,but Johnson was the Middleton's surrogate.
Excuse me,surrogate? She gave birth to their son Nicholas six months ago.
Unusual-- to have your former assistant be your surrogate? Who does that? Sounds odd to us, but what do we know? ANNABETH: Surrogates are usually strangers to the sponsoring couple-- younger,poorer.
BLACKWELL: She was definitely poorer.
The Middletons are rolling in it.
Tess Middleton and Kimmy Johnson were about the same age.
Weirder and weirder.
Did Mrs.
Middleton say anything when she was arrested? She lawyered up right away.
Cops think it might have been a custody dispute over the baby.
Victim's mother told them Kimmy was contemplating a lawsuit.
So which one's the biological mother? Tess Middleton-- her eggs, her husband's sperm.
Kimmy Johnson was strictly a surrogate, a womb for rent so to speak.
BLACKWELL: So if this was a fight over the baby, she wouldn't have much claim to him? Not necessarily.
Surrogacy contracts are unenforceable in Indiana.
ANNABETH: It's much more common for couples here to hire a surrogate in another state.
Yeah,but Middleton's the biolical mother.
Presumption is with the birth mother, though the biological mother may ultimately prevail.
So Kimmy Johnson would have had a strong claim for the baby? It's a very gray area.
It's also a motive.
What were these people thinking? How long had she been extorting you? She'd been erratic and demanding since the beginning.
But the blackmail only started a few months ago.
Why didn't you report her to the police? She said that if I told anyone,even Carl, she would just deny it, take us to court and go after custody of Nicholas.
I couldn't risk that.
I was afraid I'd lose him.
If the court even gave her temporary custody, who knows what she would do.
Take the child and flee? How did Kimmy Johnson come to be your surrogate? She offered.
She'd worked with Carl for years.
He trusted her.
He said she was the perfect person.
We knew her,she was smart.
She wanted to do it.
Why? To offer to carry your baby; didn't that seem unusual? She said she owed it to Carl.
He'd taken her under his wing, got her started at the firm.
He'd really been like a father figure to her, so she said.
So when she began threatening you? I was shocked.
I mean,if we had any idea what she was really like Tell her what happened that day.
She stopped by the house and asked for another $10,000.
On top of? The 20 I'd already given her.
I told her that I would go to the bank again on Monday.
But as soon as she left, I thought better of it.
So I went to her place.
Why didn't you just call her? I wanted to do it face-to-face.
I needed it to end once and for all.
I told her that I wouldn't pay her any more money, and if she threatened me again, I would go to the police.
What was her response? She lunged at me.
There was a letter opener on the table, and I picked it up only to scare her.
And that's when she went after Nicholas.
A mother protecting her child.
Really? Then why take Nicholas with you? By your own account, you put him in harm's way.
I thought if I had him with me and she could see how much I love him,that she would listen to reason and leave us alone.
And after you stabbed her? I went home,told my husband what happened.
Your behavior that night undercuts your story.
Why didn't you call the police or 911? I was scared.
The Middletons were frightened and confused and they were about to call the police when Mrs.
Middleton was arrested.
About to.
Protection of a third party is,as you know, a complete defense to murder.
You're planning to mount an affirmative defense? If we have to.
We were hoping you would listen to reason.
Let's call the bailiff and get my client released.
We still have time before we have to file charges.
She's not going anywhere until we investigate this further.
I need to go home now.
I have a baby who needs me.
You should have thought about that before you stabbed Kimmy Johnson.
< I got home from work about 8:30.
My wife was sitting on the couch crying,inconsolable.
She told me that Kimmy had attacked her and she'd killed her.
I can't tell you what a nightmare this has been.
Mr.
Middleton,how did your former assistant come to be your surrogate? She offered.
She knew how much we wanted a baby.
We tried everything else.
Surrogacy was our last option.
You know surrogacy contracts are unenforceable in Indiana.
Our lawyer told us.
But you went ahead anyway.
Kimmy was my friend.
I trusted her.
Did Kimmy Johnson ever tell you she wanted custody of the baby? Absolutely not.
If she'd even hinted at anything like that, I would've cut off all contact with her.
So you don't believe she wanted the baby? Not really.
Of course she was fond of Nicholas,but I think she just threatened a custody fight to extort money from Tess.
Your wife made several large cash withdrawals from her checking account, she says to pay off Kimmy Johnson.
Were you aware of these withdrawals? Tess had her own account.
Besides,I wouldn't have thought anything of it.
She paid for a lot of things in cash-- the housekeeper, the gardener.
So she never told you Kimmy was extorting her? Not before that night,no.
I guess she thought she could handle Kimmy on her own.
We both made terrible errors in judgment.
We should've gone out of state, hired a stranger, had an iron-clad contract and cut all contact with the woman after the baby was born.
So you don't think Kimmy was primarily motivated by frienhip for you and your family? I thought she was,but I think she was primarily motivated by money.
I should have seen her for who she was.
I thought I knew her, but I didn't.
I thought we were doing everything right.
Then it went wrong.
A woman protecting herself and her baby from a scheming surrogate.
It's a compelling narrative, and character evidence about the victim is admissible in self-defense cases.
Jury might buy it.
Well,I've heard less sympathetic stories.
There's no forensic evidence to support Tess Middleton's claim of self defense.
Coroner said Johnson had her back to her assailant.
She never saw it coming.
And Mrs.
Middleton has no marks or scratches, nothing to suggest Kimmy Johnson attacked her first.
The physical evidence is on our side, but it's hardly definitive.
What about the extortion claim? Several large cash withdrawals from Tess Middleton's checking account.
Could be consistent with somebody blackmailing.
But Kimmy Johnson's financial records don't show any significant deposits.
So she didn't leave a paper trail.
Cash is easy to hide.
We'll keep looking.
Yeah,what about the custody issues? A number of calls between the surrogacy lawyer and the victim in the days leading up to and including the day of the murder.
Ed's meeting with the lawyer.
Two women,each wanting the same baby.
It's biblical.
So how do you want to proceed? As you say, she's a sympathetic defendant and the underlying law is murky.
And Kimmy Johnson is dead.
Charge Tess Middleton with murder.
One count of murder.
How do you plead, Mrs.
Middleton? Not guilty, Your Honor.
The People oppose bail, Your Honor.
The defendant has ample resources to flee the jurisdiction.
My client is a new mother with no criminal history.
She poses no flight risk.
We ask that she be released on bond.
Your Honor, the defendant is accused of killing her surrogate to keep her from contesting custody of her baby.
If she would kill to keep her baby, certainly she would skip bail to do the same.
Agreed,Miss Scofield.
Defendant is remanded without bail.
(whispering): It's okay.
I'll see you in a second.
It's all right.
WOMAN: I don't care what Mrs.
Middleton said, she wouldn't have extorted anyone.
And she would never, ever have used Nicholas.
She loved that baby.
Deciding to carry her ex-boss's baby, didn't you find that a little? I know someone who donated a kidney for a friend.
I don't think it's much more unusual than that.
Kimmy worked for Carl for years.
He was very generous to her.
Helped her get her next job as a paralegal.
She knew he wanted a child, and she wanted to help them out.
The financial aspect must have played some part in her decision.
She would have done it for free.
But she didn't.
The Middleton's paid her $35,000 plus all her medical expenses.
She didn't need the money.
I did.
After Kimmy's father died, I couldn't make the house payments.
I needed $30,000 to stop the foreclosure.
So when the Middletons needed a surrogate, Kimmy thought it would be a way to help Carl and me.
You told the police your daughter wanted custody of Nicholas.
She bonded with that baby, felt him kick in her womb.
When he was born, she held him in her arms,nursed him.
Tess Middleton is his mother.
You have no biological tie to him.
Doesn't matter.
We felt he was ours as much as theirs.
The custody claim,why now? The surrogacy agreement said Kimmy had to provide pumped breast milk.
For the first six months, which were almost up.
She told me she was afraid when she wasn't doing that for them, Tess Middleton would shut her out and she'd never see Nicholas again.
That's how it works.
The surrogate gives up the baby.
It's still not right.
Yeah,Kimmy called.
She asked if the surrogacy agreement could be extended another six months.
I told her that the Middletons would never agree.
That they wanted to close the chapter on this and move on with their lives.
I suggested she do the same.
How'd she take that? Pitched a fit.
That was her M.
O.
You sure she just didn't want to stay connected to the baby a little longer? This had nothing to do with staying connected to the baby.
She manipulated Mr.
and Mrs.
Middleton throughout the pregnancy, demanded extra money through tantrums.
She was a complete pain in the ass-- manipulative, scheming You knew about the extortion? Kimmy was clever.
The demands escalated over time.
At first,they were reasonable, more or less.
Then they got more and more outrageous.
And the threats got less and less veiled.
You talking about a custody claim? Mm-hmm.
Yeah,I told Mrs.
Middleton immediately.
She wasn't pleased, but I talked her through it, assured her she'd prevail in court.
You didn't report the extortion as an officer of the court? I didn't want Kimmy to go to jail.
I thought we could work it out.
Plus,I know how fond Carl was of her.
Did you tell Carl Middleton about any of his? Mm-mm,no,Mrs.
Middleton begged me not to.
Including the extortion? Mm-hmm.
How could he not know? Kimmy wasn't going to tell him, and neither was Tess.
She just wanted to pay Kimmy off, have the whole thing go away quietly.
You were Kimmy's lawyer,too.
Why didn't you just tell her to back off? I tried.
Unfortunately, she didn't listen.
And look what happened.
Whose idea was the six-month provision anyway? Mrs.
Middleton's fertility doctor.
He's a breast milk freak.
I recommend that all my new mothers provide their babies with a breast-milk-based diet for at least the first six months.
And Kimmy Johnson agreed to the six-month arrangement? She agreed to provide pumped milk even longer, at least a year.
But the Middleton's wanted to switch to formula after six months.
Because? They just wanted the surrogacy to end as soon as possible.
Understandable.
I can see that.
It's a complicated situation, even under the best of circumstances.
Why did she choose the surrogacy route in the first place? She had no choice.
She wanted her own biological baby.
When she learned that her uterine wall was too thin to conceive, she tried fertility drugs, shots It's expensive and uncomfortable.
You have to really want it.
Mrs.
Middleton wanted that baby so badly.
Kimmy started at Broderick and Sons as a receptionist, right after college.
She and Carl hit it off right away.
She was like his protég? Everybody liked Kimmy.
Did you ever observe the Middletons and Johnson together during the surrogacy? They all stopped by the office one day after an ultrasound.
Carl and Kimmy were so excited.
And Tess Middleton? Mrs.
Middleton seemed distant.
What do you mean? Everyone was oohing and aahing over Kimmy because she was pregnant.
You know,trying to feel her belly, and telling her she was glowing.
I overheard Tess tell Carl, "It's my baby.
" Porter's gonna have to put Tess Middleton on the stand.
And when she does,we need to be able to discredit every aspect of her story.
We need to paint a positive picture of Kmy Johnson.
Joyce will corroborate Middleton's story.
He's a "disinterested party," who will testify that Johnson was a manipulative, money-grubbing con artist.
I'm not sure Joyce is so disinterested.
The Middletons were much more likely to refer wealthy clients to him.
He benefits from siding with them.
Well,we'll still need to counter his portrait of Johnson's behavior as a surrogate.
I'm convinced Carl Middleton can do exactly that.
He may be the only one,but he won't testify against his wife.
Anything in the financial stuff to suggest extortion? No.
But this is odd.
Two gynecologists billed Tess Middleton's insurance company during the same period.
Who,besides Dr.
Jewel? Uh,a Dr.
Diane Fernandez also billed her insurance.
Why would Tess Middleton have two gynecologists? Did you do fertility procedures with Mrs.
Middleton? I can confirm that Tess Middleton is a patient, but that's all I can say.
Tess Middleton is accused of killing her surrogate.
You don't want to impede a homicide investigation.
I also don't want a malpractice suit for violating doctor-patient privilege.
Now,if you'll excuse me, gentlemen.
I have patients to see.
Well,we tried.
What now? We could try for a subpoena.
On what grounds? She had too many doctors? Haven't talked with the nurses yet.
You know I can't talk to you about the patients.
I don't want you to.
I want to buy you lunch.
Where? The Grill.
You have to do better than that.
(laughing): Oh,you're killing me.
Marc? I'm off at 1:00.
I'll pick you up.
Great.
Now,about Tess Middleton.
I told you,I'm not allowed to talk I'm not asking you to tell me anything directly.
We know she went to another gynecologist.
I didn't know that.
So you don't need to tell me anything new.
Just confirm what that doctor told us.
Okay.
I guess I can do that.
He was treating her for infertility? Mrs.
Middleton didn't want to get pregnant.
Mrs.
Middleton couldn't get pregnant.
The other gynecologist told us her uterine wall was too thin.
Well,yeah.
And what does that mean? There are lots of reasons a uterine wall can be too thin.
Say,you're on oral contraceptives.
Are you saying Mrs.
Middleton was on the pill? Let me put it this way.
I don't think this is privileged.
She once told me,outside the office,woman to woman, that she never wanted to get pregnant, not in a million years.
Wouldn't her doctors have known? Oral contraceptives don't show up on blood tests.
Doctor wouldn't suspect she was on birth control unless she told him or her.
Why would Tess Middleton fake infertility? Don't know for sure,but she was on the pill the entire time.
So the fertility drugs, the shots,all a sham? Why would she go through so much trouble to avoid having a baby, but agree to the surrogacy? Must have been the pregnancy she objected to.
The weight gain? ANNABETH: The weight gain, the morning sickness,the labor.
Beautiful thing,but not for the faint of heart.
She lied to her doctor, her friends,her husband.
When she takes the stand, we can impeach her credibility with the birth control evidence.
Except we may not be able to use it at trial.
Why not? I got the information from a nurse.
Meaning it's privileged? WILLIAMS: That's what I'm asking.
How'd you get it? Offered to buy her lunch.
In other words, you charmed it out of her? Oh,Ellen Porter's gonna be all over this.
Want to bet we have a motion to suppress on our desk before the day's out? I won't take that bet.
WILLIAMS: We needed a lead.
I thought it'd be better to have it than not.
ANNABETH: A nurse isn't a doctor.
Maybe the privilege doesn't apply.
Let's hope the judge agrees.
I'll draft the answer to the motion we know is coming.
Annabeth,I finally filed the Bishop brief.
I have a copy here for you.
Thanks.
Still can't get my head around the fact that the guy who killed my husband may actually win this appeal.
I couldn't take all your notes.
You didn't take any of them, as far as I can see.
Well,I did what I could.
I did the research, I checked the case law.
I felt they were coming from you as the victim's spouse,not you as a lawyer.
I hope you're okay with what I've done.
I'll take a closer look at this after I finish dealing with the suppression motion.
Your Honor,Nurse Boiler is a nurse, she has no medical degree.
If the legislature intended doctor-patient privilege to cover nurses,they would have said so in the statute.
Nurse Boiler worked under the direct supervision of Dr.
Fernandez.
All nurses work under the supervision of a doctor.
Except that Nurse Boiler was working in the capacity of a doctor when she treated my client.
She dispensed medication.
I gave another prosecutor an aspirin yesterday, do I suddenly qualify as a physician? Well,the obvious difference, counselor, is that Nurse Boiler gave my client prescription medication.
I have an affidavit here from Dr.
Fernandez to this effect.
Miss Chase? Tess Middleton made statements off the cuff to Nurse Boiler that had nothing to do with her medical care.
Now she's trying to hide behind the privilege.
The State's investigators chatted up Nurse Boiler to get her statement.
She thought she was having a confidential conversation.
Is the defense suggesting we don't have a right to question potential witnesses? I agree with Miss Porter.
Dr.
Fernandez ordered Nurse Boiler to treat Tess Middleton.
Statement is suppressed.
Without the nurse's testimony We'll have nothing to impeach Tess Middleton with when she takes the stand.
Let's have Ed and Ray talk to everyone who's ever known her.
How'd she meet her husband? Thank you.
Oh,he was a member at the gym she was working at.
Kensington Sports Club, personal trainer.
Oh,I know that club.
Hot young trainers, out-of-shape investment bankers looking for trophy wives.
You can always get a treadmill.
(both laughing) WOMAN: She never wanted a baby until Carl came through the front door.
Why is that? Didn't want the weight gain, the stretch marks, the swollen feet.
Why'd that change with Carl? She said she was in love.
But you don't buy it? I don't like to gossip.
This is a murder investigation, hon,you got permission.
Tess was a trader-upper.
Trader-upper? She'd date a guy, and then dump him when she found someone richer.
Why stop at Carl Middleton? Who said she stopped? Tess Middleton's a piece of work.
When she met Carl, she was officially in love, and oh-so-reformed Couldn't wait to make meat loaf and start cranking out kids.
He bought her whole act.
And he wasn't the only one.
I bet a girl like that's got a few ex-boyfriends who'd be willing to dish.
I'll give you a list.
Tess left me for Carl Middleton.
You don't sound so broken up about it.
I knew what she was from the start.
I didn't care, 'cause she was hot.
What kind of girl was she? Ambitious is one word.
Hmm.
Gold digger another? Ah,she is what she is.
No hard feelings.
I got what I wanted.
I feel bad for Middleton,actually.
Why is that? He married her.
Poor guy hasn't got a clue.
You know that song, "You Call It Jogging,But I Call It Running Around?" That was Tess.
Listen,man, I saw her with another guy about a month ago.
You think it was a date? I think it was a hookup.
She tried to spin the whole just-a-friend angle when she saw me, but they were all over eh other.
All over each other? Public display of affection? The kind where you want to yell, "Hey,you two,get a room.
" Any idea who the guy was? I'd never seen him before.
I heard Tess call him by name.
One of those poofy, British names,you know, like Albert,or Aloysius, something like that.
Alistair? Like,uh,Alistair Cooke? Alistair,that was it.
Alistair Joyce.
???? ???? ddleton's credibility.
Not to mention Joyce's.
Representing both parties to a contract, sleeping with a client.
He's really racking them up for the Ethics Review Board.
Middleton and Joyce are the only witnesses who can testify to Johnson's alleged extortion.
Use the affair to impeach the testimony of both lovebirds.
What about Carl Middleton? Shouldn't we take another run at him? So far,he's standing by his wife.
Well,maybe the affair will make him reconsider.
I'm not going to testify against my wife.
I'm not asking you to do that.
I'm asking you to testify for Kimmy Johnson.
The defense is going to paint her as an opportunistic extortionist.
You trusted her to carry your child.
Kimmy Johnson lost that trust when she attacked Tess and tried to take Nicholas.
Are you aware your wife was having an affair with Alistair Joyce? I don't believe that.
We have an eyewitness who saw them together at Northside Park being intimate.
You have an eyewitness who claims she was on the pill,too.
My wife wasn't on the pill, she's not having an affair, and I'm not gonna testify against her.
I'm not gonna help you put my wife in prison.
Now if you'll excuse me, I have to go pick up my son at daycare.
You saw Tess Middleton and Alistair Joyce embracing at the park? If that's what you want to call it.
Well,what would you call it? Making out.
Getting it on.
Did that surprise you? Not particularly.
Why not? A married woman.
Tess has always had lots of boyfriends.
Including you? Yeah.
But that was before she was married.
People don't change.
She was a player.
How long did you go out with her? A few months.
And what happened? She dumped me for Carl Middleton.
Were you surprised by that? Not at all.
She told me point blank that she would dump a boyfriend as soon as she could trade him in for someone richer.
Did she ever mention wanting to have a child? She mentioned not wanting one.
Did she say why? She didn't want to get pregnant.
Tess was obsessed with her weight.
She barely ate,she worked out all the time.
A lot of women worry about their weight.
Tess was on the pill,too.
Having a baby would ruin her figure.
Did she say that? A few months before she got married,she told me that Carl wanted children.
Had that changed her mind on the subject? Hardly.
She said the idea of getting fat to have a baby turned her stomach.
No further questions, Your Honor.
My client dumped you for Carl Middleton? Yeah.
You sound a little defensive,Mr.
Borthwick.
Isn't it true that you were so angry when Tess Middleton broke off your relationship, that you repeatedly made calls to her place of employment? I might have called once or twice.
And when my client didn't return those phone calls, you waited outside the club until you had to be asked to leave? I belong to that gym.
Did that entitle you to lurk outside, waiting for employees to get off work? It wasn't like that.
I wasn't stalking her.
I just wanted to talk.
Isn't it true that you are so angry with my client for breaking up with you, that you would say anything to get back at her? Nothing further.
When Kimmy called me, she only wanted to know how much the Middleton's would owe her in child support if a court gave her custody.
But more child support would have been better for Nicholas.
Didn't Kimmy Johnson just want what was best for the baby? Definitely not.
Kimmy would accuse Mrs.
Middleton of bad parenting until she wrote a check.
Kimmy Johnson just wanted money.
All surrogates do.
Objection.
JUDGE: Sustained.
Nothing further.
Dan Borthwick testified that he saw you and Mrs.
Middleton making out in Northside Park.
Mrs.
Middleton and I have a strictly professional relationship.
All Dan Borthwick saw was simply a lawyer consoling his client.
Oh,is that what they call it these days? Objection.
JUDGE: Miss Scofield? Withdrawn.
Why were you consoling Mrs.
Middleton? She was upset about Kimmy's behavior.
The threats and demands.
We were discussing whether we should tell her husband about it.
How far is your office from the park? Um,it's about an hour,I guess.
Do you drive that far to make love to all your clients? Objection! Sustained.
An hour each way is a long way to drive to meet with a client,isn't it? There's a restaurant on the north side that I wanted to try.
Lobster flown in from Maine.
Because it was so far out of the way, you knew Mr.
Middleton would never see the two of you there.
Objection! Asked and answered.
Yes,it was.
No further questions.
So much for impeaching Joyce with the affair.
I don't think I laid a glove on him.
He's hiding something.
The jury must have seen that.
He still made Kimmy Johnson look like an aggressive, manipulative extortionist who acted in character the night she attacked Tess Middleton.
We need to counter.
We could put her mother on the stand-- a sympathetic witness.
A jury may feel for her, but they'll never see her as an impartial witness.
You want to take a final stab at getting Carl Middleton to testify to Kimmy's behavior during the surrogacy? We could call him as a rebuttal witness.
Maybe,if we could convince him with irrefutable proof of his wife's affair.
Joyce said he was meeting Tess Middleton for dinner the night Borthwick spotted them,right? Mm-hmm.
A lobster restaurant he wanted to try on the Northside.
How many lobster restaurants could there be in Indianapolis? They come in here a couple times a week.
Big tippers.
That lady Tess Middleton.
Mr.
Joyce's latest.
His latest? He's had a lot of girlfriends.
A ladies' man? He's in here with almost a different woman every night of the week.
And the moment she steps away, he starts flirting with the waitresses.
Were they intimate at dinner? Intimate? Smooching,touching,you know.
They just ate.
They must have saved the intimacy for after dinner.
Went someplace else for dessert.
Any idea where? Sure.
Right upstairs.
Mr.
Joyce always made a room reservation so he could spend some alone time after dinner with his lady of the evening.
How often would he book a room with her? Every Tuesday and Thursday night.
We all remember Mrs.
Middleton because she would always ask about all the ingredients in the food.
Never wanted anything made with butter or cream.
We called her "The Substitute.
" If you'll excuse me.
Thanks.
Quite the ladies' man.
No wonder Middleton was on the pill.
She got pregnant,he'd drop her like a hot potato.
Look,so she had lunch with Alistair Joyce.
He was our lawyer.
They rented a room every Tuesday and Thursday night.
We have affidavits from the waitresses, the concierge, the bellboy.
Everybody at the Pine Hill Inn knew they were sleeping together.
What is it you want from me? Mr.
Middleton, I know you're trying to protect your family, but please testify.
Your wife betrayed you.
She took oral contraceptives to prevent a pregnancy so she could keep her lover.
She was not taking birth control when she was trying to get pregnt.
We know that she was.
You can't prove that.
No,we can't,because of doctor-patient privilege, but we know that it's true.
Your wife's lover testified yesterday that Kimmy Johnson was an aggressive extortionist.
Is that the Kimmy Johnson you knew? No.
When she found out you were looking for a surrogate,she offered to do it.
I tried to talk her out of it, but she insisted.
You really think she did it for the money? Her mother said she would have done it for free.
I think she would have.
I really do.
Then stand up for her.
You're the only person who can testify about how she really behaved during the surrogacy.
I thought it was a little strange that she came home so late, but Tess said that she went out with the girls after class.
Did you ever ask her where she went? Yes,but she was always vague.
Did you suspect an affair? It crossed my mind.
I'd always been lucky in business and unlucky in love till I found Tess, or so I thought.
I guess I just didn't want to know the truth.
While your wife was cheating on you, Kimmy Johnson was carrying her child,your child.
Yes.
How did Kimmy Johnson behave during the surrogacy? She was responsible,caring.
Always so genuinely concerned about Nicholas, all through the pregnancy and after giving birth as well.
Did you ever witness anything that suggested she was extorting your wife? No,never.
When Tess told me that Kimmy was extorting her,I was shocked.
It just didn't compute with the person that I knew.
The night of the murder, how did your wife behave after she came home and told you she killed Kimmy Johnson? She was so calm that I thought she was in shock.
You told the police she was distraught.
I thought she was.
Crying,inconsolable.
I lied.
I was trying to protect my wife.
Thank you, Mr.
Middleton.
You told investigators that you found your wife crying over the killing when you got home from work that night.
As I said,I lied.
Or you're lying now.
Why should we believe anything you say? I love my wife.
I don't want to believe that she would cheat on me, or lie about her fertility or about Kimmy, but I need to tell the truth.
Kimmy Johnson was a good person.
You don't have any idea what went on in Kimmy Johnson's house that night,do you? No.
Mrs.
Middleton,why did you go over to Kimmy Johnson's house the day she died? Because Kimmy found out I was having an affair with Alistair Joyce.
Mrs.
Middleton, I asked you why you went to Kimmy's house that day.
Like I said, because Kimmy found out about my affair with Alistair.
Mrs.
Middleton,we discussed your self-defense claim and your defense of a third- party claim in trial prep.
I'm sorry, but now that my husband has turned on me, I need to tell the truth.
Your Honor, objection.
What is counsel up to? Your Honor,I have no idea what my client is going to say.
I'd like to make a request that she testify in the narrative.
Objection! Overruled.
Request is granted.
Mrs.
Middleton, you may continue.
When Kimmy stopped by that day, she caught us,Alistair and me, in a compromising position.
My husband had thrown Alistair a lot of business at my request, and he was terrified Carl would find out about the affair.
He wanted to go to Kimmy's house to talk with her, and I went with him.
JUDGE: Please,continue, Mrs.
Middleton.
What happened at Miss Johnson's house? Alistair beggeKimmy not to say anything about the affair, but she said she was going to tell Carl everything.
That Carl would be so desperate to keep testimony about the affair away from a custody judge, that he would pay anything, and that's when That's when what? That's when Alistair took the letter opener off of the table and stabbed her with it.
Defense counsel filed an affirmative defense, and is now trying to sandbag the prosecution by abandoning it at trial.
I had no idea Mrs.
Middleton would change her defense on the stand,Judge.
As her attorney, I can't tell her what to say.
A defense attorney has an ethical obligatiotH not to suborn perjury.
Which is why I requested she testify in the narrative, Your Honor.
I agree,Ms.
Porter, you acted appropriately.
Your Honor, the prosecution is now severely prejudiced.
The People have not had time to prepare a trial strategy to combat the defendant's trial stunt.
I'll grant you a continuance, Ms.
Scofield,two days.
So she waits until she's at trial to point a finger at the boyfriend.
Could be enough to create reasonable doubt in the minds of the jurors.
And if it's true? As soon as he heard about her testimony, Joyce denied any involvement and got a lawyer.
Right now we don't have anything against him other than Tess Middleton's accusations.
We need to check into her story.
I looked back at the murder book.
There was some blue cashmere fibers at the scene that were never matched with either Kimmy Johnson or Tess Middleton.
Lets see if they're a match for Joyce.
I'll get the search warrant.
I'll come with ya.
Tess Middleton is a desperate woman on trial for murder.
She'd say anything.
I assume your lawyer's on his way? Be here any minute.
Didn't he advise you not to say anything? Yes.
Follow it.
Nice pad.
I don't know.
Could use some doilies.
Doilies? Yeah,something to warm the place up.
e How about a blow torch? to Ooh,nice threads.
I'm a cashmere kind of guy myself.
Please be respectful of my property.
You always go for the same type,don't you? Young,beautiful,slender, emphasis on slender.
I'm not going to answer any more questions till my lawyer's present.
You keep saying that and yet you just keep talking.
CB Hey,Ray.
Blue cashmere.
I like cashmere, but it sheds.
Didn't realize you left some of this back at Kimmy Johnson's did you? Oh,yeah,I forgot.
He's not answering any questions.
You just have to nod your head,brother.
You have the right to remain silent, because as you very well know, anything you say can and most likely will be used against you in a court of law.
Nice Miranda.
Thanks.
Full immunity in exchange for my client's testimony against Mrs.
Middleton.
Not a chance.
We can prove he was there.
Fibers from his sweater match fibers found at the crime scene.
Even if he was there, there's no evidence to suggest he stabbed her.
At the very least, he helped cover it up.
What are you offering? Assisting a criminal, eight years.
Four suspended.
Tell me what happened.
We knew Carl wasn't going to be home for several hours.
You were at the Middleton house.
Yeah,downstairs on the couch.
What were you doing? Do I need to paint you a picture? Please,don't.
We were enjoying ourselves when we heard a knock at the front door.
Before we had time to react, the door opened and there stood Kimmy Johnson.
Did she see you were with Mrs.
Middleton? Oh,yeah in flagrante delicto.
and,uh,believe me, it was delicto.
Kimmy rushed out of the house.
I called her on her cell.
You thought you could talk her into keeping quiet? I thought we could work something out, but she was hysterical.
So what did you do? Tess and I argued.
Tess wanted to go over to Kimmy's house, try to pay her off.
And did you go? Tess drove.
What happened when you got there? Tess went inside.
I stayed in the car with the baby, until I heard them arguing inside.
Did you go into the house? Yes.
Did you bring the baby with you? No,I left him in the car.
What did you see in there? Kimmy was lying on the floor in a pool of blood.
Tess had just stabbed her and was still holding the letter opener.
Why didn't you call 911? Kimmy was already gone.
Did Mrs.
Middleton say why she stabbed her? She said that Kimmy threatened to expose the affair.
e said that she was going to sue for custody of the baby.
Why didn't you call the police? I was afraid that they would think I was involved.
Did you promise Mrs.
Middleton that you wouldn't call the poce? We were the only two people who knew what happened in that house.
We agreed not to sell each other out.
JUDGE: The State of Indiana v.
Tess Middleton.
The jury finds the defendant for the charge of murder guilty.
TESS: It's okay.
It's okay.
Thank you,Miss Chase.
You're welcome.
Mr.
Middleton, thanks again for testifying.
I know it wasn't easy.
It was the right thing to do, for Kimmy and for my son.
I'm sorry for your loss.
Our loss.
I know you cared for Kimmy.
I thought the world of her.
I hope you'll come see Nicholas.
I will,thank you.
You know,the funny thing is, I don't think Carl Middletondl would have left her if he just told him she didn't want to have a baby.
She didn't have to go through any of it.
People assume everyone's like they are.
Tess wanted Carl for his money.
She assumed he wanted her for equally shallow reasons.
He would have found her out eventually.
Not everyone has a prosecutor's suspicious mind,Annabeth.
About the Bishop case.
You're not used to sitting on the sidelines.
I'm not just the victim's spouse,Maureen.
I'm also a good lawyer.
Maybe it wasn't the best idea for me to take the appeal.
We can give it back to the Attorney General's Office.
No,I want you to handle the appeal.
Then I need you to trust me.
I do trust you.
I promise,I'm going to try to be more Zen about the whole thing,okay? More Zen? We'll see how that goes.
What are you saying? < >
Time of death between Victim's mother discovered her body the next morning.
Police arrested Tess Middleton,32, prints found on the doorbell,doorknob and the murder weapon.
Neighbors saw her car in Johnson's driveway around 7:00.
We sure it was hers? Vanity plate.
CONLON: "2CUTE4U".
Nice.
Relationship between Middleton and the victim? Up until a couple years ago, Kimmy Johnson worked for Tess Middleton's husband-- his personal assistant.
Ah.
Ah.
They were having an affair.
Everybody's first thought.
Police found no evidence of an affair,but Johnson was the Middleton's surrogate.
Excuse me,surrogate? She gave birth to their son Nicholas six months ago.
Unusual-- to have your former assistant be your surrogate? Who does that? Sounds odd to us, but what do we know? ANNABETH: Surrogates are usually strangers to the sponsoring couple-- younger,poorer.
BLACKWELL: She was definitely poorer.
The Middletons are rolling in it.
Tess Middleton and Kimmy Johnson were about the same age.
Weirder and weirder.
Did Mrs.
Middleton say anything when she was arrested? She lawyered up right away.
Cops think it might have been a custody dispute over the baby.
Victim's mother told them Kimmy was contemplating a lawsuit.
So which one's the biological mother? Tess Middleton-- her eggs, her husband's sperm.
Kimmy Johnson was strictly a surrogate, a womb for rent so to speak.
BLACKWELL: So if this was a fight over the baby, she wouldn't have much claim to him? Not necessarily.
Surrogacy contracts are unenforceable in Indiana.
ANNABETH: It's much more common for couples here to hire a surrogate in another state.
Yeah,but Middleton's the biolical mother.
Presumption is with the birth mother, though the biological mother may ultimately prevail.
So Kimmy Johnson would have had a strong claim for the baby? It's a very gray area.
It's also a motive.
What were these people thinking? How long had she been extorting you? She'd been erratic and demanding since the beginning.
But the blackmail only started a few months ago.
Why didn't you report her to the police? She said that if I told anyone,even Carl, she would just deny it, take us to court and go after custody of Nicholas.
I couldn't risk that.
I was afraid I'd lose him.
If the court even gave her temporary custody, who knows what she would do.
Take the child and flee? How did Kimmy Johnson come to be your surrogate? She offered.
She'd worked with Carl for years.
He trusted her.
He said she was the perfect person.
We knew her,she was smart.
She wanted to do it.
Why? To offer to carry your baby; didn't that seem unusual? She said she owed it to Carl.
He'd taken her under his wing, got her started at the firm.
He'd really been like a father figure to her, so she said.
So when she began threatening you? I was shocked.
I mean,if we had any idea what she was really like Tell her what happened that day.
She stopped by the house and asked for another $10,000.
On top of? The 20 I'd already given her.
I told her that I would go to the bank again on Monday.
But as soon as she left, I thought better of it.
So I went to her place.
Why didn't you just call her? I wanted to do it face-to-face.
I needed it to end once and for all.
I told her that I wouldn't pay her any more money, and if she threatened me again, I would go to the police.
What was her response? She lunged at me.
There was a letter opener on the table, and I picked it up only to scare her.
And that's when she went after Nicholas.
A mother protecting her child.
Really? Then why take Nicholas with you? By your own account, you put him in harm's way.
I thought if I had him with me and she could see how much I love him,that she would listen to reason and leave us alone.
And after you stabbed her? I went home,told my husband what happened.
Your behavior that night undercuts your story.
Why didn't you call the police or 911? I was scared.
The Middletons were frightened and confused and they were about to call the police when Mrs.
Middleton was arrested.
About to.
Protection of a third party is,as you know, a complete defense to murder.
You're planning to mount an affirmative defense? If we have to.
We were hoping you would listen to reason.
Let's call the bailiff and get my client released.
We still have time before we have to file charges.
She's not going anywhere until we investigate this further.
I need to go home now.
I have a baby who needs me.
You should have thought about that before you stabbed Kimmy Johnson.
< I got home from work about 8:30.
My wife was sitting on the couch crying,inconsolable.
She told me that Kimmy had attacked her and she'd killed her.
I can't tell you what a nightmare this has been.
Mr.
Middleton,how did your former assistant come to be your surrogate? She offered.
She knew how much we wanted a baby.
We tried everything else.
Surrogacy was our last option.
You know surrogacy contracts are unenforceable in Indiana.
Our lawyer told us.
But you went ahead anyway.
Kimmy was my friend.
I trusted her.
Did Kimmy Johnson ever tell you she wanted custody of the baby? Absolutely not.
If she'd even hinted at anything like that, I would've cut off all contact with her.
So you don't believe she wanted the baby? Not really.
Of course she was fond of Nicholas,but I think she just threatened a custody fight to extort money from Tess.
Your wife made several large cash withdrawals from her checking account, she says to pay off Kimmy Johnson.
Were you aware of these withdrawals? Tess had her own account.
Besides,I wouldn't have thought anything of it.
She paid for a lot of things in cash-- the housekeeper, the gardener.
So she never told you Kimmy was extorting her? Not before that night,no.
I guess she thought she could handle Kimmy on her own.
We both made terrible errors in judgment.
We should've gone out of state, hired a stranger, had an iron-clad contract and cut all contact with the woman after the baby was born.
So you don't think Kimmy was primarily motivated by frienhip for you and your family? I thought she was,but I think she was primarily motivated by money.
I should have seen her for who she was.
I thought I knew her, but I didn't.
I thought we were doing everything right.
Then it went wrong.
A woman protecting herself and her baby from a scheming surrogate.
It's a compelling narrative, and character evidence about the victim is admissible in self-defense cases.
Jury might buy it.
Well,I've heard less sympathetic stories.
There's no forensic evidence to support Tess Middleton's claim of self defense.
Coroner said Johnson had her back to her assailant.
She never saw it coming.
And Mrs.
Middleton has no marks or scratches, nothing to suggest Kimmy Johnson attacked her first.
The physical evidence is on our side, but it's hardly definitive.
What about the extortion claim? Several large cash withdrawals from Tess Middleton's checking account.
Could be consistent with somebody blackmailing.
But Kimmy Johnson's financial records don't show any significant deposits.
So she didn't leave a paper trail.
Cash is easy to hide.
We'll keep looking.
Yeah,what about the custody issues? A number of calls between the surrogacy lawyer and the victim in the days leading up to and including the day of the murder.
Ed's meeting with the lawyer.
Two women,each wanting the same baby.
It's biblical.
So how do you want to proceed? As you say, she's a sympathetic defendant and the underlying law is murky.
And Kimmy Johnson is dead.
Charge Tess Middleton with murder.
One count of murder.
How do you plead, Mrs.
Middleton? Not guilty, Your Honor.
The People oppose bail, Your Honor.
The defendant has ample resources to flee the jurisdiction.
My client is a new mother with no criminal history.
She poses no flight risk.
We ask that she be released on bond.
Your Honor, the defendant is accused of killing her surrogate to keep her from contesting custody of her baby.
If she would kill to keep her baby, certainly she would skip bail to do the same.
Agreed,Miss Scofield.
Defendant is remanded without bail.
(whispering): It's okay.
I'll see you in a second.
It's all right.
WOMAN: I don't care what Mrs.
Middleton said, she wouldn't have extorted anyone.
And she would never, ever have used Nicholas.
She loved that baby.
Deciding to carry her ex-boss's baby, didn't you find that a little? I know someone who donated a kidney for a friend.
I don't think it's much more unusual than that.
Kimmy worked for Carl for years.
He was very generous to her.
Helped her get her next job as a paralegal.
She knew he wanted a child, and she wanted to help them out.
The financial aspect must have played some part in her decision.
She would have done it for free.
But she didn't.
The Middleton's paid her $35,000 plus all her medical expenses.
She didn't need the money.
I did.
After Kimmy's father died, I couldn't make the house payments.
I needed $30,000 to stop the foreclosure.
So when the Middletons needed a surrogate, Kimmy thought it would be a way to help Carl and me.
You told the police your daughter wanted custody of Nicholas.
She bonded with that baby, felt him kick in her womb.
When he was born, she held him in her arms,nursed him.
Tess Middleton is his mother.
You have no biological tie to him.
Doesn't matter.
We felt he was ours as much as theirs.
The custody claim,why now? The surrogacy agreement said Kimmy had to provide pumped breast milk.
For the first six months, which were almost up.
She told me she was afraid when she wasn't doing that for them, Tess Middleton would shut her out and she'd never see Nicholas again.
That's how it works.
The surrogate gives up the baby.
It's still not right.
Yeah,Kimmy called.
She asked if the surrogacy agreement could be extended another six months.
I told her that the Middletons would never agree.
That they wanted to close the chapter on this and move on with their lives.
I suggested she do the same.
How'd she take that? Pitched a fit.
That was her M.
O.
You sure she just didn't want to stay connected to the baby a little longer? This had nothing to do with staying connected to the baby.
She manipulated Mr.
and Mrs.
Middleton throughout the pregnancy, demanded extra money through tantrums.
She was a complete pain in the ass-- manipulative, scheming You knew about the extortion? Kimmy was clever.
The demands escalated over time.
At first,they were reasonable, more or less.
Then they got more and more outrageous.
And the threats got less and less veiled.
You talking about a custody claim? Mm-hmm.
Yeah,I told Mrs.
Middleton immediately.
She wasn't pleased, but I talked her through it, assured her she'd prevail in court.
You didn't report the extortion as an officer of the court? I didn't want Kimmy to go to jail.
I thought we could work it out.
Plus,I know how fond Carl was of her.
Did you tell Carl Middleton about any of his? Mm-mm,no,Mrs.
Middleton begged me not to.
Including the extortion? Mm-hmm.
How could he not know? Kimmy wasn't going to tell him, and neither was Tess.
She just wanted to pay Kimmy off, have the whole thing go away quietly.
You were Kimmy's lawyer,too.
Why didn't you just tell her to back off? I tried.
Unfortunately, she didn't listen.
And look what happened.
Whose idea was the six-month provision anyway? Mrs.
Middleton's fertility doctor.
He's a breast milk freak.
I recommend that all my new mothers provide their babies with a breast-milk-based diet for at least the first six months.
And Kimmy Johnson agreed to the six-month arrangement? She agreed to provide pumped milk even longer, at least a year.
But the Middleton's wanted to switch to formula after six months.
Because? They just wanted the surrogacy to end as soon as possible.
Understandable.
I can see that.
It's a complicated situation, even under the best of circumstances.
Why did she choose the surrogacy route in the first place? She had no choice.
She wanted her own biological baby.
When she learned that her uterine wall was too thin to conceive, she tried fertility drugs, shots It's expensive and uncomfortable.
You have to really want it.
Mrs.
Middleton wanted that baby so badly.
Kimmy started at Broderick and Sons as a receptionist, right after college.
She and Carl hit it off right away.
She was like his protég? Everybody liked Kimmy.
Did you ever observe the Middletons and Johnson together during the surrogacy? They all stopped by the office one day after an ultrasound.
Carl and Kimmy were so excited.
And Tess Middleton? Mrs.
Middleton seemed distant.
What do you mean? Everyone was oohing and aahing over Kimmy because she was pregnant.
You know,trying to feel her belly, and telling her she was glowing.
I overheard Tess tell Carl, "It's my baby.
" Porter's gonna have to put Tess Middleton on the stand.
And when she does,we need to be able to discredit every aspect of her story.
We need to paint a positive picture of Kmy Johnson.
Joyce will corroborate Middleton's story.
He's a "disinterested party," who will testify that Johnson was a manipulative, money-grubbing con artist.
I'm not sure Joyce is so disinterested.
The Middletons were much more likely to refer wealthy clients to him.
He benefits from siding with them.
Well,we'll still need to counter his portrait of Johnson's behavior as a surrogate.
I'm convinced Carl Middleton can do exactly that.
He may be the only one,but he won't testify against his wife.
Anything in the financial stuff to suggest extortion? No.
But this is odd.
Two gynecologists billed Tess Middleton's insurance company during the same period.
Who,besides Dr.
Jewel? Uh,a Dr.
Diane Fernandez also billed her insurance.
Why would Tess Middleton have two gynecologists? Did you do fertility procedures with Mrs.
Middleton? I can confirm that Tess Middleton is a patient, but that's all I can say.
Tess Middleton is accused of killing her surrogate.
You don't want to impede a homicide investigation.
I also don't want a malpractice suit for violating doctor-patient privilege.
Now,if you'll excuse me, gentlemen.
I have patients to see.
Well,we tried.
What now? We could try for a subpoena.
On what grounds? She had too many doctors? Haven't talked with the nurses yet.
You know I can't talk to you about the patients.
I don't want you to.
I want to buy you lunch.
Where? The Grill.
You have to do better than that.
(laughing): Oh,you're killing me.
Marc? I'm off at 1:00.
I'll pick you up.
Great.
Now,about Tess Middleton.
I told you,I'm not allowed to talk I'm not asking you to tell me anything directly.
We know she went to another gynecologist.
I didn't know that.
So you don't need to tell me anything new.
Just confirm what that doctor told us.
Okay.
I guess I can do that.
He was treating her for infertility? Mrs.
Middleton didn't want to get pregnant.
Mrs.
Middleton couldn't get pregnant.
The other gynecologist told us her uterine wall was too thin.
Well,yeah.
And what does that mean? There are lots of reasons a uterine wall can be too thin.
Say,you're on oral contraceptives.
Are you saying Mrs.
Middleton was on the pill? Let me put it this way.
I don't think this is privileged.
She once told me,outside the office,woman to woman, that she never wanted to get pregnant, not in a million years.
Wouldn't her doctors have known? Oral contraceptives don't show up on blood tests.
Doctor wouldn't suspect she was on birth control unless she told him or her.
Why would Tess Middleton fake infertility? Don't know for sure,but she was on the pill the entire time.
So the fertility drugs, the shots,all a sham? Why would she go through so much trouble to avoid having a baby, but agree to the surrogacy? Must have been the pregnancy she objected to.
The weight gain? ANNABETH: The weight gain, the morning sickness,the labor.
Beautiful thing,but not for the faint of heart.
She lied to her doctor, her friends,her husband.
When she takes the stand, we can impeach her credibility with the birth control evidence.
Except we may not be able to use it at trial.
Why not? I got the information from a nurse.
Meaning it's privileged? WILLIAMS: That's what I'm asking.
How'd you get it? Offered to buy her lunch.
In other words, you charmed it out of her? Oh,Ellen Porter's gonna be all over this.
Want to bet we have a motion to suppress on our desk before the day's out? I won't take that bet.
WILLIAMS: We needed a lead.
I thought it'd be better to have it than not.
ANNABETH: A nurse isn't a doctor.
Maybe the privilege doesn't apply.
Let's hope the judge agrees.
I'll draft the answer to the motion we know is coming.
Annabeth,I finally filed the Bishop brief.
I have a copy here for you.
Thanks.
Still can't get my head around the fact that the guy who killed my husband may actually win this appeal.
I couldn't take all your notes.
You didn't take any of them, as far as I can see.
Well,I did what I could.
I did the research, I checked the case law.
I felt they were coming from you as the victim's spouse,not you as a lawyer.
I hope you're okay with what I've done.
I'll take a closer look at this after I finish dealing with the suppression motion.
Your Honor,Nurse Boiler is a nurse, she has no medical degree.
If the legislature intended doctor-patient privilege to cover nurses,they would have said so in the statute.
Nurse Boiler worked under the direct supervision of Dr.
Fernandez.
All nurses work under the supervision of a doctor.
Except that Nurse Boiler was working in the capacity of a doctor when she treated my client.
She dispensed medication.
I gave another prosecutor an aspirin yesterday, do I suddenly qualify as a physician? Well,the obvious difference, counselor, is that Nurse Boiler gave my client prescription medication.
I have an affidavit here from Dr.
Fernandez to this effect.
Miss Chase? Tess Middleton made statements off the cuff to Nurse Boiler that had nothing to do with her medical care.
Now she's trying to hide behind the privilege.
The State's investigators chatted up Nurse Boiler to get her statement.
She thought she was having a confidential conversation.
Is the defense suggesting we don't have a right to question potential witnesses? I agree with Miss Porter.
Dr.
Fernandez ordered Nurse Boiler to treat Tess Middleton.
Statement is suppressed.
Without the nurse's testimony We'll have nothing to impeach Tess Middleton with when she takes the stand.
Let's have Ed and Ray talk to everyone who's ever known her.
How'd she meet her husband? Thank you.
Oh,he was a member at the gym she was working at.
Kensington Sports Club, personal trainer.
Oh,I know that club.
Hot young trainers, out-of-shape investment bankers looking for trophy wives.
You can always get a treadmill.
(both laughing) WOMAN: She never wanted a baby until Carl came through the front door.
Why is that? Didn't want the weight gain, the stretch marks, the swollen feet.
Why'd that change with Carl? She said she was in love.
But you don't buy it? I don't like to gossip.
This is a murder investigation, hon,you got permission.
Tess was a trader-upper.
Trader-upper? She'd date a guy, and then dump him when she found someone richer.
Why stop at Carl Middleton? Who said she stopped? Tess Middleton's a piece of work.
When she met Carl, she was officially in love, and oh-so-reformed Couldn't wait to make meat loaf and start cranking out kids.
He bought her whole act.
And he wasn't the only one.
I bet a girl like that's got a few ex-boyfriends who'd be willing to dish.
I'll give you a list.
Tess left me for Carl Middleton.
You don't sound so broken up about it.
I knew what she was from the start.
I didn't care, 'cause she was hot.
What kind of girl was she? Ambitious is one word.
Hmm.
Gold digger another? Ah,she is what she is.
No hard feelings.
I got what I wanted.
I feel bad for Middleton,actually.
Why is that? He married her.
Poor guy hasn't got a clue.
You know that song, "You Call It Jogging,But I Call It Running Around?" That was Tess.
Listen,man, I saw her with another guy about a month ago.
You think it was a date? I think it was a hookup.
She tried to spin the whole just-a-friend angle when she saw me, but they were all over eh other.
All over each other? Public display of affection? The kind where you want to yell, "Hey,you two,get a room.
" Any idea who the guy was? I'd never seen him before.
I heard Tess call him by name.
One of those poofy, British names,you know, like Albert,or Aloysius, something like that.
Alistair? Like,uh,Alistair Cooke? Alistair,that was it.
Alistair Joyce.
???? ???? ddleton's credibility.
Not to mention Joyce's.
Representing both parties to a contract, sleeping with a client.
He's really racking them up for the Ethics Review Board.
Middleton and Joyce are the only witnesses who can testify to Johnson's alleged extortion.
Use the affair to impeach the testimony of both lovebirds.
What about Carl Middleton? Shouldn't we take another run at him? So far,he's standing by his wife.
Well,maybe the affair will make him reconsider.
I'm not going to testify against my wife.
I'm not asking you to do that.
I'm asking you to testify for Kimmy Johnson.
The defense is going to paint her as an opportunistic extortionist.
You trusted her to carry your child.
Kimmy Johnson lost that trust when she attacked Tess and tried to take Nicholas.
Are you aware your wife was having an affair with Alistair Joyce? I don't believe that.
We have an eyewitness who saw them together at Northside Park being intimate.
You have an eyewitness who claims she was on the pill,too.
My wife wasn't on the pill, she's not having an affair, and I'm not gonna testify against her.
I'm not gonna help you put my wife in prison.
Now if you'll excuse me, I have to go pick up my son at daycare.
You saw Tess Middleton and Alistair Joyce embracing at the park? If that's what you want to call it.
Well,what would you call it? Making out.
Getting it on.
Did that surprise you? Not particularly.
Why not? A married woman.
Tess has always had lots of boyfriends.
Including you? Yeah.
But that was before she was married.
People don't change.
She was a player.
How long did you go out with her? A few months.
And what happened? She dumped me for Carl Middleton.
Were you surprised by that? Not at all.
She told me point blank that she would dump a boyfriend as soon as she could trade him in for someone richer.
Did she ever mention wanting to have a child? She mentioned not wanting one.
Did she say why? She didn't want to get pregnant.
Tess was obsessed with her weight.
She barely ate,she worked out all the time.
A lot of women worry about their weight.
Tess was on the pill,too.
Having a baby would ruin her figure.
Did she say that? A few months before she got married,she told me that Carl wanted children.
Had that changed her mind on the subject? Hardly.
She said the idea of getting fat to have a baby turned her stomach.
No further questions, Your Honor.
My client dumped you for Carl Middleton? Yeah.
You sound a little defensive,Mr.
Borthwick.
Isn't it true that you were so angry when Tess Middleton broke off your relationship, that you repeatedly made calls to her place of employment? I might have called once or twice.
And when my client didn't return those phone calls, you waited outside the club until you had to be asked to leave? I belong to that gym.
Did that entitle you to lurk outside, waiting for employees to get off work? It wasn't like that.
I wasn't stalking her.
I just wanted to talk.
Isn't it true that you are so angry with my client for breaking up with you, that you would say anything to get back at her? Nothing further.
When Kimmy called me, she only wanted to know how much the Middleton's would owe her in child support if a court gave her custody.
But more child support would have been better for Nicholas.
Didn't Kimmy Johnson just want what was best for the baby? Definitely not.
Kimmy would accuse Mrs.
Middleton of bad parenting until she wrote a check.
Kimmy Johnson just wanted money.
All surrogates do.
Objection.
JUDGE: Sustained.
Nothing further.
Dan Borthwick testified that he saw you and Mrs.
Middleton making out in Northside Park.
Mrs.
Middleton and I have a strictly professional relationship.
All Dan Borthwick saw was simply a lawyer consoling his client.
Oh,is that what they call it these days? Objection.
JUDGE: Miss Scofield? Withdrawn.
Why were you consoling Mrs.
Middleton? She was upset about Kimmy's behavior.
The threats and demands.
We were discussing whether we should tell her husband about it.
How far is your office from the park? Um,it's about an hour,I guess.
Do you drive that far to make love to all your clients? Objection! Sustained.
An hour each way is a long way to drive to meet with a client,isn't it? There's a restaurant on the north side that I wanted to try.
Lobster flown in from Maine.
Because it was so far out of the way, you knew Mr.
Middleton would never see the two of you there.
Objection! Asked and answered.
Yes,it was.
No further questions.
So much for impeaching Joyce with the affair.
I don't think I laid a glove on him.
He's hiding something.
The jury must have seen that.
He still made Kimmy Johnson look like an aggressive, manipulative extortionist who acted in character the night she attacked Tess Middleton.
We need to counter.
We could put her mother on the stand-- a sympathetic witness.
A jury may feel for her, but they'll never see her as an impartial witness.
You want to take a final stab at getting Carl Middleton to testify to Kimmy's behavior during the surrogacy? We could call him as a rebuttal witness.
Maybe,if we could convince him with irrefutable proof of his wife's affair.
Joyce said he was meeting Tess Middleton for dinner the night Borthwick spotted them,right? Mm-hmm.
A lobster restaurant he wanted to try on the Northside.
How many lobster restaurants could there be in Indianapolis? They come in here a couple times a week.
Big tippers.
That lady Tess Middleton.
Mr.
Joyce's latest.
His latest? He's had a lot of girlfriends.
A ladies' man? He's in here with almost a different woman every night of the week.
And the moment she steps away, he starts flirting with the waitresses.
Were they intimate at dinner? Intimate? Smooching,touching,you know.
They just ate.
They must have saved the intimacy for after dinner.
Went someplace else for dessert.
Any idea where? Sure.
Right upstairs.
Mr.
Joyce always made a room reservation so he could spend some alone time after dinner with his lady of the evening.
How often would he book a room with her? Every Tuesday and Thursday night.
We all remember Mrs.
Middleton because she would always ask about all the ingredients in the food.
Never wanted anything made with butter or cream.
We called her "The Substitute.
" If you'll excuse me.
Thanks.
Quite the ladies' man.
No wonder Middleton was on the pill.
She got pregnant,he'd drop her like a hot potato.
Look,so she had lunch with Alistair Joyce.
He was our lawyer.
They rented a room every Tuesday and Thursday night.
We have affidavits from the waitresses, the concierge, the bellboy.
Everybody at the Pine Hill Inn knew they were sleeping together.
What is it you want from me? Mr.
Middleton, I know you're trying to protect your family, but please testify.
Your wife betrayed you.
She took oral contraceptives to prevent a pregnancy so she could keep her lover.
She was not taking birth control when she was trying to get pregnt.
We know that she was.
You can't prove that.
No,we can't,because of doctor-patient privilege, but we know that it's true.
Your wife's lover testified yesterday that Kimmy Johnson was an aggressive extortionist.
Is that the Kimmy Johnson you knew? No.
When she found out you were looking for a surrogate,she offered to do it.
I tried to talk her out of it, but she insisted.
You really think she did it for the money? Her mother said she would have done it for free.
I think she would have.
I really do.
Then stand up for her.
You're the only person who can testify about how she really behaved during the surrogacy.
I thought it was a little strange that she came home so late, but Tess said that she went out with the girls after class.
Did you ever ask her where she went? Yes,but she was always vague.
Did you suspect an affair? It crossed my mind.
I'd always been lucky in business and unlucky in love till I found Tess, or so I thought.
I guess I just didn't want to know the truth.
While your wife was cheating on you, Kimmy Johnson was carrying her child,your child.
Yes.
How did Kimmy Johnson behave during the surrogacy? She was responsible,caring.
Always so genuinely concerned about Nicholas, all through the pregnancy and after giving birth as well.
Did you ever witness anything that suggested she was extorting your wife? No,never.
When Tess told me that Kimmy was extorting her,I was shocked.
It just didn't compute with the person that I knew.
The night of the murder, how did your wife behave after she came home and told you she killed Kimmy Johnson? She was so calm that I thought she was in shock.
You told the police she was distraught.
I thought she was.
Crying,inconsolable.
I lied.
I was trying to protect my wife.
Thank you, Mr.
Middleton.
You told investigators that you found your wife crying over the killing when you got home from work that night.
As I said,I lied.
Or you're lying now.
Why should we believe anything you say? I love my wife.
I don't want to believe that she would cheat on me, or lie about her fertility or about Kimmy, but I need to tell the truth.
Kimmy Johnson was a good person.
You don't have any idea what went on in Kimmy Johnson's house that night,do you? No.
Mrs.
Middleton,why did you go over to Kimmy Johnson's house the day she died? Because Kimmy found out I was having an affair with Alistair Joyce.
Mrs.
Middleton, I asked you why you went to Kimmy's house that day.
Like I said, because Kimmy found out about my affair with Alistair.
Mrs.
Middleton,we discussed your self-defense claim and your defense of a third- party claim in trial prep.
I'm sorry, but now that my husband has turned on me, I need to tell the truth.
Your Honor, objection.
What is counsel up to? Your Honor,I have no idea what my client is going to say.
I'd like to make a request that she testify in the narrative.
Objection! Overruled.
Request is granted.
Mrs.
Middleton, you may continue.
When Kimmy stopped by that day, she caught us,Alistair and me, in a compromising position.
My husband had thrown Alistair a lot of business at my request, and he was terrified Carl would find out about the affair.
He wanted to go to Kimmy's house to talk with her, and I went with him.
JUDGE: Please,continue, Mrs.
Middleton.
What happened at Miss Johnson's house? Alistair beggeKimmy not to say anything about the affair, but she said she was going to tell Carl everything.
That Carl would be so desperate to keep testimony about the affair away from a custody judge, that he would pay anything, and that's when That's when what? That's when Alistair took the letter opener off of the table and stabbed her with it.
Defense counsel filed an affirmative defense, and is now trying to sandbag the prosecution by abandoning it at trial.
I had no idea Mrs.
Middleton would change her defense on the stand,Judge.
As her attorney, I can't tell her what to say.
A defense attorney has an ethical obligatiotH not to suborn perjury.
Which is why I requested she testify in the narrative, Your Honor.
I agree,Ms.
Porter, you acted appropriately.
Your Honor, the prosecution is now severely prejudiced.
The People have not had time to prepare a trial strategy to combat the defendant's trial stunt.
I'll grant you a continuance, Ms.
Scofield,two days.
So she waits until she's at trial to point a finger at the boyfriend.
Could be enough to create reasonable doubt in the minds of the jurors.
And if it's true? As soon as he heard about her testimony, Joyce denied any involvement and got a lawyer.
Right now we don't have anything against him other than Tess Middleton's accusations.
We need to check into her story.
I looked back at the murder book.
There was some blue cashmere fibers at the scene that were never matched with either Kimmy Johnson or Tess Middleton.
Lets see if they're a match for Joyce.
I'll get the search warrant.
I'll come with ya.
Tess Middleton is a desperate woman on trial for murder.
She'd say anything.
I assume your lawyer's on his way? Be here any minute.
Didn't he advise you not to say anything? Yes.
Follow it.
Nice pad.
I don't know.
Could use some doilies.
Doilies? Yeah,something to warm the place up.
e How about a blow torch? to Ooh,nice threads.
I'm a cashmere kind of guy myself.
Please be respectful of my property.
You always go for the same type,don't you? Young,beautiful,slender, emphasis on slender.
I'm not going to answer any more questions till my lawyer's present.
You keep saying that and yet you just keep talking.
CB Hey,Ray.
Blue cashmere.
I like cashmere, but it sheds.
Didn't realize you left some of this back at Kimmy Johnson's did you? Oh,yeah,I forgot.
He's not answering any questions.
You just have to nod your head,brother.
You have the right to remain silent, because as you very well know, anything you say can and most likely will be used against you in a court of law.
Nice Miranda.
Thanks.
Full immunity in exchange for my client's testimony against Mrs.
Middleton.
Not a chance.
We can prove he was there.
Fibers from his sweater match fibers found at the crime scene.
Even if he was there, there's no evidence to suggest he stabbed her.
At the very least, he helped cover it up.
What are you offering? Assisting a criminal, eight years.
Four suspended.
Tell me what happened.
We knew Carl wasn't going to be home for several hours.
You were at the Middleton house.
Yeah,downstairs on the couch.
What were you doing? Do I need to paint you a picture? Please,don't.
We were enjoying ourselves when we heard a knock at the front door.
Before we had time to react, the door opened and there stood Kimmy Johnson.
Did she see you were with Mrs.
Middleton? Oh,yeah in flagrante delicto.
and,uh,believe me, it was delicto.
Kimmy rushed out of the house.
I called her on her cell.
You thought you could talk her into keeping quiet? I thought we could work something out, but she was hysterical.
So what did you do? Tess and I argued.
Tess wanted to go over to Kimmy's house, try to pay her off.
And did you go? Tess drove.
What happened when you got there? Tess went inside.
I stayed in the car with the baby, until I heard them arguing inside.
Did you go into the house? Yes.
Did you bring the baby with you? No,I left him in the car.
What did you see in there? Kimmy was lying on the floor in a pool of blood.
Tess had just stabbed her and was still holding the letter opener.
Why didn't you call 911? Kimmy was already gone.
Did Mrs.
Middleton say why she stabbed her? She said that Kimmy threatened to expose the affair.
e said that she was going to sue for custody of the baby.
Why didn't you call the police? I was afraid that they would think I was involved.
Did you promise Mrs.
Middleton that you wouldn't call the poce? We were the only two people who knew what happened in that house.
We agreed not to sell each other out.
JUDGE: The State of Indiana v.
Tess Middleton.
The jury finds the defendant for the charge of murder guilty.
TESS: It's okay.
It's okay.
Thank you,Miss Chase.
You're welcome.
Mr.
Middleton, thanks again for testifying.
I know it wasn't easy.
It was the right thing to do, for Kimmy and for my son.
I'm sorry for your loss.
Our loss.
I know you cared for Kimmy.
I thought the world of her.
I hope you'll come see Nicholas.
I will,thank you.
You know,the funny thing is, I don't think Carl Middletondl would have left her if he just told him she didn't want to have a baby.
She didn't have to go through any of it.
People assume everyone's like they are.
Tess wanted Carl for his money.
She assumed he wanted her for equally shallow reasons.
He would have found her out eventually.
Not everyone has a prosecutor's suspicious mind,Annabeth.
About the Bishop case.
You're not used to sitting on the sidelines.
I'm not just the victim's spouse,Maureen.
I'm also a good lawyer.
Maybe it wasn't the best idea for me to take the appeal.
We can give it back to the Attorney General's Office.
No,I want you to handle the appeal.
Then I need you to trust me.
I do trust you.
I promise,I'm going to try to be more Zen about the whole thing,okay? More Zen? We'll see how that goes.
What are you saying? < >