By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
They're not with us," Scott Falater whispered moments before the prosecutor began his closing argument in the Sleepwalker Murder Case.
Falater gestured toward the jury box, soon to be filled with citizens who would decide his fate. The 43-year-old Phoenician reminded his listener about something he'd said during an interview months earlier.
"Remember, I didn't even believe it was sleepwalking at first," he said, strangely tranquil. "I know it's a hard one for people to believe. I just hope they're listening a little bit."
Falater then shrugged and smiled briefly, before sitting down between his attorneys, Michael Kimerer and Lori Voepel. He is a congenial man, this onetime Motorola engineer, with a wry demeanor and often glib manner that he maintained throughout his trial in spite of his dire circumstances.
Last Friday morning about 10 a.m., just about everyone in the Valley with access to a television or radio learned of Falater's legal fate at the same time he did. Court clerk Kelly Branding read the jury's verdict--guilty of premeditated murder in the vicious January 1997 death of his wife, Yarmila.
In the downtown Phoenix courtroom where they had practically lived for six weeks, nine of the 12 jurors spoke, often eloquently, about their decision. National media types chimed in from their sweat-drenched perches outside the courthouse.
County Attorney Rick Romley and prosecutor Juan Martinez held a victory press conference. The stakes had been enormous--anything less than a first-degree conviction would have made Romley's office a national laughingstock.
Defense attorneys Kimerer and Voepel chose to keep their thoughts to themselves, as did Falater's mother, Lois Wilcek, and stepfather Frank.
Falater himself was reportedly on "suicide watch" at the Madison Street Jail--a routine precaution.
The guilty verdict didn't surprise most veteran courthouse denizens. Almost to a person, they were adamant that the cards were stacked against anyone--even someone with Falater's unblemished reputation as a churchgoing family man and an excellent employee--who did what he did to his wife.
The jury had at least 44 reasons--the number of knife wounds in Yarmila Falater's body--to convict Scott Falater. A neighbor had described how he'd seen Falater roll Yarmila into the family's lighted swimming pool in northeast Phoenix, then hold her under water with gloved hands before retreating to his house. Police found Falater's neatly packaged bloody clothing and other items in his car trunk.
In the end, Falater's savage attack didn't weigh up as a pure sleepwalking case even for his esteemed expert witness, Dr. Roger Broughton of Toronto, Canada. Broughton--famous for his pioneering work in the field of sleep disorders--admitted on the stand that he hadn't known crucial facts about the case until prosecutor Martinez brought them to his attention.
Those facts, Broughton said, gave him pause about his conclusion that Falater had been sleepwalking--and unable to form the requisite "intent" to commit first-degree murder.
What complicated this bizarre case even more was the lack of a plausible motive for murder. In most homicide cases, the reason eventually becomes apparent, even though prosecutors legally don't have to provide one.
But the usual motives--money, jealousy--never emerged in this case, no matter how hard Juan Martinez tried to provide one.
A seasoned prosecutor with the courtroom demeanor of an adrenalized boxer, Martinez accused some witnesses of lying to protect Falater. In open court--sometimes with the jury present--he tossed out allegations that made headlines, but often weren't confirmed by testimony or evidence.
The effect was to distract the jury at times from the grisly facts, something that pleased Kimerer and Voepel to no end. Those facts were the stabbing, the drowning and a laundry list of things Scott Falater did after he'd murdered his wife.
Falater had one chance, and the veteran Kimerer--a practical, levelheaded man--had conceded privately that it was a long shot: to convince the jury that Falater had murdered his beloved wife in an unconscious sleepwalking state. Kimerer and Voepel depicted Falater as a pacific individual who was stressed over problems at work, had been sleeping poorly and, one tragic night, had unwittingly murdered his beloved wife.
It probably wouldn't have hurt the prosecution case if they'd conceded all of the above--minus the sleepwalking. Many people are stressed about work and sleep poorly, but don't butcher their loved ones.
But Martinez conceded nothing. Instead, he argued that Falater had stabbed Yarmila in a rage, then calculatingly drowned her. Falater had committed an almost perfect murder, Martinez told the jury. Unfortunately for Falater, he said, the drowning was committed in full view of a neighbor, Greg Koons.
Martinez derided the idea that Falater--a product engineer and unit manager at a semiconductor plant--had been stressed out at the time of Yarmila's demise. The prosecutor also alluded to Falater's own admissions that he'd been ingesting No-Doz for about a year, contrary to his Mormon faith's prohibition on caffeine. He pointed out that Falater had cursed during interviews with New Times.
Falater testified that Yarmila was the only person he'd told about his sleep deprivation.
"And she can't come in and testify, can she?" Martinez snapped at him.
Despite his tendency to go overboard with several defense witnesses in this trial--for example, he verbally attacked a clergyman who testified on Falater's behalf for wearing a clerical collar to trial--Martinez was sound technically, fast on his feet and, with inexplicable exceptions, on his game.
The 43-year-old Martinez's own story is inspiring: The seventh of eight children born to illiterate Mexican farmworkers, he immigrated to California when he was 6. He says he resolved as a youngster to learn English: "The people around me who were successful spoke and read English well. You didn't get far if you couldn't do that."
He managed a drugstore after earning his undergraduate degree, then entered law school. He finished law school at Arizona State University, worked for Community Legal Services helping tenants for a few years, did some defense work, then joined the Maricopa County Attorney's Office in 1988.
Martinez's courtroom foe was a veteran criminal-defense attorney with a reputation as one of Arizona's best. Kimerer is a bear of a man who's pushing 60. He has a resonating bass voice and a relaxed manner that belies his work ethic. He's disarmingly honest--especially for an attorney.
Kimerer's co-counsel, Lori Voepel, is a beginner in the courtroom (this was only her second trial). Like Kimerer, however, Voepel balances a solid understanding of criminal law with a keen feel for people.
Martinez is almost a foot shorter than Kimerer, and still looks like the distance runner he used to be in the high desert of rural Victorville, California. His high-pitched voice grates at times, and he has a short fuse with adverse witnesses. But he does seem to earn the grudging respect of juries.
Martinez's forte--he's now unbeaten in 14 murder trials--is his relentless passion for his cases and his attention to detail.
It also doesn't hurt to have an eyewitness to a drowning on your side.
Neither side would complain about the judge responsible for keeping the Falater case on track. No one on the Maricopa County bench is more universally respected and liked than Judge Ron Reinstein. The former prosecutor has an easygoing demeanor and a gentle sense of humor that defused many volatile moments during the trial.
Last October, Scott Falater strode into an interview room on the fourth floor of the Madison Street Jail, smiled, and shook his visitor's hand firmly.
It was the first time he'd agreed to speak with the media since his arrest almost two years earlier. Seemingly hungry to talk about his life, Falater presented a dignified front, even in his striped jail suit.
"I thought my brain had thrown a rod," he said then. "And I thought, 'I'm going to the State Hospital, or to the prison for life. . . .' Sometimes when I think about this, I wonder, 'What kind of Jekyll and Hyde am I?' . . . At first, I considered the sleepwalking defense bullshit, pure and simple."
As the day for jury selection arrived, most reporters were in the courtroom next door, for the trial of several south Phoenix youths accused of gang-raping a mentally handicapped teenage girl.
A tall, blond woman sat at the defense table next to Scott Falater and his two attorneys in Judge Reinstein's courtroom. It was Jo Ellen Demetrius, a famed California-based jury "consultant" who worked for O.J. Simpson's defense.
Demetrius was in town for one day, hired to help Kimerer and Voepel pick a jury. She wanted a well-educated panel consisting of as many women as possible. In the end, however, only one of the jurors--eventual foreman Michael Riley--had a college degree. And the eight women who decided Falater's fate expressed far more animus toward him after the verdict than the four men.
Reinstein presides almost solely these days at capital murder trials, and he's deft at this drill. He asked the assemblage if they belong to any organizations or groups.
One woman says she belongs to the YMCA.
"A subversive organization," the judge replied, drawing laughter.
Riley told Reinstein, "I'm a registered Democrat--that's pretty subversive." More laughter.
Mike Kimerer--a former college professor--gave a civics lesson to his potential jurors. He asked them as a group if they have any questions about any defendant's presumption of innocence. They didn't.
He then asked if they had any preconceived notions of Scott Falater's guilt. They didn't.
Kimerer asked if they realize that, at that moment, Falater was guilty of nothing. No one responded.
"If you believe in the presumption of innocence, then why wouldn't you have that idea?" he asked.
"If you were my client," the barrister continued, "would you like to be my juror?"
"We aren't going to be denying that Scott Falater stabbed his wife. It's an unusual defense. You think you'll all be objective in listening to the evidence?"
Kimerer retreated to his 21st-floor office near North Central Avenue and Indian School Road to ponder his enigmatic panel.
"It worries me," he said, acknowledging his understatement.
He said he believes that his client was sleepwalking when he killed Yarmila, which makes Falater innocent.
But he's been around far too long to even suggest that certainty equates with acquittal.
Everyone in the crowded fourth-floor courtroom knew what Scott Falater's defense was going to be before the attorneys delivered opening statements.
However, Juan Martinez could not "anticipate" the sleepwalking defense until after Mike Kimerer took his turn.
Instead, Martinez tersely presented the chilling, overwhelming evidence of Falater's culpability in his wife's awful death.
He suggested that Scott Falater had wanted Yarmila to have more children, but she'd resisted, and that she'd expressed unhappiness with the Mormon church. He mentioned the phrase "unforgivable sin," alleging that Falater had uttered those words during psychological testing after his arrest. Martinez insisted that Falater believed his wife had committed such an "unforgivable sin," and that's why he'd slaughtered her.
"This courtroom is not the afterlife," Martinez said, a reference to the Mormon tenets of "eternal marriage" and other post-death possibilities. "He baptized her into the afterlife."
Kimerer seemed nervous as he started his opening statement, but slowly reached his stride.
"This was a senseless crime," he said. "There is just no reason for Scott Falater to kill the woman he loved more than anything else in the world. . . . The real question was, why did this happen? What went wrong? There was no motive. In short, he was sleepwalking at the time this event occurred."
Kimerer spelled out why a sleepwalking defense was plausible: Falater had been a sleepwalker as a youth. The murder had occurred within the first three hours of sleep. Falater had been under great stress at work and was sleep-deprived. Finally, the attack had happened without apparent reason.
"There is no doubt that Scott Falater committed the acts, but he had no intention of committing this crime," Kimerer concluded.
The key prosecution witness was Greg Koons.
In January 1997, Koons lived next door to the Falaters with his girlfriend. The neighbors maintained a friendly if distant relationship.
Koons' testimony was compelling: In short, his girlfriend had heard something--at first, it sounded to her like the sounds of lovemaking--in the Falaters' backyard. Koons looked over his cinder-block wall and saw a woman--he didn't recognize her as Yarmila Falater--rolling on the ground, several feet from the pool.
"My impression was she was drunk," Koons testified. "I see no blood . . . no problem."
He said he then saw Scott Falater turning lights on and off on the second floor, and watched him wringing his hands in a sink.
Koons said Falater soon stepped outside through an arcadia door, motioning as he did to a family dog as if to quiet it. He saw Falater stand over the body for a few minutes, then return to the house.
Three or four minutes later, Falater returned to the body, this time wearing one canvas glove and putting on the other one. Falater stepped over his wife, dragged her backward toward the pool, then stepped back around and pushed her in.
Koons realized Falater was "pulling her head under the water." He made the first of two 911 calls at 10:57 p.m.
Koons never has explained why he didn't yell at Scott Falater to stop what he was doing. Falater's response, if any, might have settled the sleepwalking question.
Events as described by Koons served as unprecedented testimony in a sleepwalking case, and it would prove devastating. How in the world, jurors later wondered, could he seemingly recognize his dog and not his mortally injured wife? And how could he complete the many complex movements he'd undertaken in such a short time frame?
Phoenix homicide detective John Norman testified that the defendant didn't seem too upset by Yarmila's death during an interrogation after the murder, and did not weep.
But Norman had to admit that he couldn't come up with a motive for murder in the aftermath.
County medical examiner Dr. Philip Keen testified that Yarmila suffered two deep stab wounds to her chest from behind.
The cause of death was listed as "multiple stab wounds with drowning," though Keen said he wasn't sure whether Yarmila was alive when her husband held her head underwater.
Defense witnesses told the jury what a great guy Scott Falater is and what a great marriage he and Yarmila had had.
Most convincing was Liz Biggs, one of Yarmila's best friends. Biggs seemed highly credible, especially because she was the victim's friend, not Scott's.
The pair walked together often and, Biggs testified, "we talked about everything." Biggs said Yarmila never spoke of problems between her and Scott, though "she could be very vocal when she wanted to be. . . . Yarmila's focus was her family. Her church is geared around the family, and I felt it was a good match."
She said the Falaters' family life seemed like "the all-American dream."
Biggs said Yarmila had told her, probably a few years before the murder, that Scott Falater was a sleepwalker.
"It wasn't anything important or significant at the time," Biggs said, adding that Yarmila had described how Falater had rummaged for clothes in a closet in the middle of the night, seemingly asleep.
Prosecutor Martinez asked Biggs if Yarmila actually had used the word "sleepwalking."
"I don't know if she used the word 'sleepwalking'; she may have," Biggs said. "I just know that I just had the concept that he was sleepwalking."
The back-to-back testimony of Michael and Megan Falater brought the depth of the tragedy into sharp relief.
Looking very much like his father, 15-year-old Michael Falater testified in a white, short-sleeved shirt and a black tie.
"It was just like any other home," Michael said monotonally. "We were happy, being together and going places together."
"Michael, were you close to your mother?" Kimerer asked.
"Yes, I was."
"Close to your dad?"
"Love your dad?"
Michael testified that his father "was real stressed out about work" before his mother died. "He had a meeting that was gonna come up in the next couple of days."
He recalled Yarmila had asked his dad to fix the pool pump. He said he had kissed his parents goodnight sometime before 9:30 p.m., and had gone to bed.
"Did you see anything at all to give you the slightest hint that your dad would kill your mother?" Kimerer asked.
Under cross-examination, however, Michael said he'd never seen the murder weapon or a Tupperware bin that contained Scott Falater's bloody clothing and other items.
Michael also testified--contrary to what Scott Falater would say--that his father often locked the Volvo, and that, anyway, the hatchback was hard to reach in the cramped garage.
To buy the sleepwalking defense, the jury would have to believe that Falater had made at least two trips to the hatchback and placed his bloody clothes, work boots, gloves and other items in the trunk.
Michael barely looked at his father after he'd finished testifying. Scott Falater turned with a faint smile to watch his only son leave the courtroom.
In the lobby, Michael's sister, 17-year-old Megan, put her arm around him and kept it there. He seemed shell-shocked, and told her he wanted to leave.
Then the jury would hear from Megan, a pretty girl who earned valedictorian honors this year at North Canyon High. She's a fine pianist who plans to attend the University of Chicago this fall.
More outgoing on the stand than her brother, Megan said she'd seen her father angry before, "but I never saw him go into a rage."
Mike Kimerer asked what her mother was like.
"Wellll," she said, gathering herself, "she had a great sense of humor, and she spoke her mind. . . . We were best friends."
That comment brought tears to several jurors and spectators, but Megan persevered.
Kimerer asked her what would happen to Michael when she goes off to college: "We don't know for sure, yet. I'd like for him to be with Dad."
Juan Martinez was tougher on Megan than he'd been on Michael.
"Do you think that perhaps [your mother] might not have told you everything?" he asked, a touch of sarcasm in his tone.
"I don't know," she answered plainly.
Unlike Michael, Megan smiled sweetly at her father as she left the courtroom. Then grabbed her stomach and grimaced as she opened the door and stepped into the lobby.
The purpose of cross-examination should be to catch truth, ever an elusive fugitive . . .
--Francis Wellman, "The Art of Cross-Examination," 1903
Murder defendants testify in their own defense far less often than many people think--and with good reason: Most of the time they're guilty, and they'll have to lie under oath to try to save their skin.
But most criminals aren't as clever as they think they are, and can be easy pickings for a savvy prosecutor.
By law, it was the prosecution's burden to prove that Falater knew what he was doing when he killed Yarmila. As a defendant, he didn't have to prove he was sleepwalking, or prove anything, to be acquitted.
Despite this, his attorneys knew that the burden in reality was on Scott Falater to convince the jury that he had been sleepwalking.
Reinstein's courtroom was packed as Falater took the stand. His dark suit made his jailbird complexion appear even pastier as he adjusted his microphone. He looked about as nerdy and harmless as a grown man can.
Falater bore up well during direct examination by Mike Kimerer. He portrayed himself as a benign man whose life had been dominated by family, work and church.
Kimerer got to the point quickly: "If I'd been a fortuneteller and I had come to you on the morning of January 16, 1997, and told you, 'Scott, tonight you're going to stab your wife 44 times,' what would you have said to me in response?"
"You're out of your mind," Falater replied, his nasal voice breaking slightly. "There is just no way I would have done anything like this to my wife. I would never have envisioned something like this happening to someone like me, or especially to me personally. I don't know what I would do without her."
Kimerer tossed his client a deceptively simple question about how he was dealing with his wife's death, and that he killed her. Falater's answer was interspersed with sobs.
"It still happens where I'll wake up at night, frantic that I haven't called her," he said, looking at Kimerer and, at times, at the jury. "Then I open my eyes and I see the jail walls and I realize what happened. . . . I never saw her dead. It's like I led two lives--one on the outside, where she's always been there. I still dream about her constantly. Then, I have the jail life without her and the kids. It's like they're not connected. And I've tried to think about what it would be like if I'm freed."
But a few discordant notes oozed under the protective wall that the defense had constructed about his supposedly idyllic life with Yarmila.
For example, Falater testified that his wife was his true confidante, and he had "learned I could trust her advice completely."
But in the hours before he killed her, Falater had spoken to his family at dinner about an important meeting scheduled for the following day at Motorola. He'd explained that he'd have to tell his subordinates about the impending demise of a big project, or risk being labeled a phony when the roof finally did cave in.
"She actually advised a few times, 'Just smile and play the game, go ahead and go through the motions [at work],'" Falater testified. "I said, 'It's time for me to be honest about this.'"
In other words, Falater was dead-set against Yarmila's go-along, get-along suggestion.
Another surprising comment came after Kimerer's question about an athletic mouthpiece that investigators found in the large Tupperware container. Martinez had insinuated that Falater may have inserted the mouthpiece before his attack to protect himself. (DNA samples taken from the mouthpiece did not exclude the possibility that Scott Falater had put it in his mouth. But the tests weren't definitive.)
"I have no idea what that's about," Falater said, and should have left it at that. "It's very possible the thing was laying around in the garage and . . . I popped it into my mouth, I don't know."
Kimerer asked Falater if he had tried to fix the pool pump on the night of the murder. Falater said he had started to work on the pump after dinner, but gave up because he couldn't see well. He recalled putting his tools (a pair of pliers and screwdriver, he said) and large flashlight back into the Volvo. Then, he said, he had practically staggered to bed after kissing his wife goodnight, quickly fell into a deep sleep, then landed in a sleepwalking state within minutes. That's all he remembered, until police arrived at his house.
The defense scenario held that Falater, still asleep, had arisen, retrieved a knife and the flashlight from his car, went outside, and was at the pump when Yarmila startled him, prompting his violent response with the knife.
Martinez rose to cross-examine Scott Falater, wading into the center of the ring with both fists flailing.
"One of the things that you told us was that the woman in this photograph was your soul mate?" the prosecutor said, directing Falater's attention to an image of a smiling Yarmila on a screen.
"Yes," the defendant replied evenly.
"Somebody that was very, very important? And you loved her more than anything in your life?"
"Then how come it is that you don't even know her birthday?" Martinez blurted, his voice more shrill than usual.
"I know her birthday. February 5, 1955."
"What if I told you it was September 5, 1955? Would that refresh your recollection?"
"So the records from the police are wrong?"
It was an embarrassing start for the prosecutor, who had had more than two years to prepare for this moment.
(Martinez told the jury the next day that Yarmila's birthday is February 5, after all. "There may have been some confusion yesterday," he said.)
During cross-examination, Falater continued to blurt unintentionally ironic phrases such as:
"The last nail in the coffin," referring to a failing project at Motorola.
"Spilling engineer blood," again about the moribund project. "In order for Motorola to minimize the blood loss and the money loss . . ."
"Layoffs were coming to Motorola, and we were gonna end up on the chopping block."
Recovering from his birthday gaffe, Martinez got his prey to admit that he'd "misled" defense sleepwalking expert Roger Broughton about the presence of a second knife in his garage--the newer one with which he'd stabbed Yarmila.
"I guess I misled him on that point--I just had forgotten . . . ," Falater said. The word "misled" would stick with jurors.
Martinez invoked a "Yarmila as a dumpy wife" theme he'd tried to develop since a buddy of Falater's had mentioned it on the stand.
"Does that woman appear to you to be dumpy?" Martinez asked Falater, showing him a photo taken shortly before Yarmila's death.
"She is not dumpy, sir."
"That wasn't her pet name, was it?"
Martinez launched into the "unforgivable sin"--which an assistant to defense team psychologist Dr. Brad Bayless had jotted down next to a "sentence completion" sheet during testing at the Madison Street Jail.
"You uttered those words, didn't you?" Martinez asked Falater.
"Yes, I did."
"Was the unforgivable sin that she didn't want to go to Temple with you?"
"No," Falater said. Martinez cut him off before he could elaborate.
"That she didn't want to have more children? You know if the Mormon church wanted her to have more kids?"
"That is absolutely untrue."
At the defense table, Mike Kimerer's leg twitched as Martinez grilled Falater about his mouthpiece comment. Falater repeated that he probably had just stuck the thing in his mouth on a whim.
"I'm speculating about that," he said, "but that's something I would do . . . if I saw it laying around my work bench."
As for the knife--the new one, the murder weapon--Martinez asked an excellent question. Falater's experts had testified that he'd retrieved the knife from the Volvo in a sleepwalking state. But, Martinez asked Falater, why would he have gone to the Tupperware container for the knife when he'd said that he'd rarely used it in the two years he allegedly had owned it?
Falater didn't have much of an answer, deferring to the "sleep experts" whom he said know much more about sleepwalking than he.
During redirect examination, Falater said he hadn't intentionally misled Dr. Broughton, but just had forgotten about the new knife. When he finally had seen a photo of the bloody murder weapon, Falater said, "I said, 'Oh yeah, I remember that.'"
Kimerer also had his client revisit the "dumpy wife" theory.
"I kind of like large women," Falater said. "It [Yarmila's weight] only impacted me because she was upset about how large she was. It didn't bother me at all. . . . She might have been large, but she was always beautiful to me. Always."
Kimerer also asked Falater to address the concept of "unforgivable sin" that Juan Martinez had been so keen on selling as a possible motive. Falater said he'd been referring to himself, not to Yarmila when he'd used the phrase during the jailhouse psychological testing.
"My own salvation is gone and my chance to live with Yarm is gone because of this," he testified.
"You wouldn't see Yarm in the afterlife, is that right?"
"That is correct."
Questions from jurors came fast.
One asked Falater to clarify the two types of stress he'd referred to during his testimony. Falater replied that the stresses of being overworked didn't bother him, but that "playing the game, so to speak" with his bosses and subordinates (as Yarmila had suggested that he do) did.
Other questions from jurors were head-scratchers:
"What did you have for dinner on the night of the murder?" one asked. Falater said he couldn't remember.
"Do you always write with such a tiny pencil?" a juror asked Falater, referring to the golf pencils with which the defendant had taken voluminous notes.
"Uhhhh," Falater answered, then couldn't help laughing. The jurors and Judge Reinstein--who read the question with an almost-straight face--joined in the brief laughter.
The silly question allowed Falater to connect, at least for a moment, with his peers.
He finally explained that the sheriff's office issues only tiny pencils because of security reasons.
The jurors studied Falater as he walked past them back to his seat. He'd held his ground on many issues, and lost ground on others. But had he won them over?
In the end, jurors said they believed the prosecution sleep experts more than they believed the defense experts.
On paper, it would have seemed a mismatch--the esteemed Roger Broughton and Rosalind Cartwright against prosecution experts David Baratz and Mark Pressman. But Pressman, especially, did so well that Juan Martinez told another expert--his expected ace in the hole--that his testimony wouldn't be needed.
Pressman, director of two suburban Philadelphia sleep laboratories, was the antithesis of Broughton and Cartwright. The latter pair came across as kindly, esoteric doctors whose knowledge of key details in Yarmila Falater's murder would prove to be their--and Falater's, to some degree--undoing.
"I think the facts as described by [the Falaters' next-door neighbor, eyewitness Greg Koons] are the only important evidence about what happened that night," Pressman testified.
He continued, "The only way that sleep experts think that violence can happen with a sleepwalker is that somebody physically confronts them, gets in their way. That's clearly impossible on the second episode of violence [drowning]. The victim was lying there near death. Clearly she didn't get up and get in his way. She didn't grab him, she didn't stop him."
"How do you know that he just doesn't come back and rediscover the body?" Kimerer asked Pressman during cross-examination.
"Twice?" Pressman shot back. "How would he even know it's a body?"
Kimerer: "Well, we don't really even know what they know, and what they don't know in sleepwalking."
Pressman: "Are you here to suggest that all of these behaviors--just wandering around, and he just happens to wander out to stand over the body and stare at it, and moments later come back with gloves and drag the body into the pool?"
Kimerer: "I think we're suggesting that we don't fully know what happens in a sleepwalking state, and what is going on in a sleepwalker's mind, do we?"
Pressman: "I think we know what's in a wakened person's mind. I don't think he was sleepwalking."
Kimerer: "They wouldn't leave a body in a swimming pool, would they?"
Pressman: "I think if they had time to do something about it, they might not leave it."
Kimerer: "But you wouldn't put the body in the swimming pool for the children to find, would you?"
Pressman: "I have no idea. I wouldn't murder my wife, either."
Where Pressman was adamant that Scott Falater had not been sleepwalking, Roger Broughton became equivocal.
"To me, it is the best explanation of all the facts that I have," Broughton said in response to a juror's written question. "But it's not proof that he was sleepwalking."
Martinez got Broughton to admit that he'd never heard of a violent sleepwalking case in which someone changed his clothes even once, much less two and possibly three times, as Falater had.
"Putting the clothes back into the trunk, that bothered you, right?" Martinez asked.
"I thought it was unusual. . . ."
"And in fact, he not only put the clothes back into the trunk, but he also put the Tupperware back into the trunk inside of the trash bag, right?"
"And on top of that, you just told us that you didn't know he put the gloves . . . in the bag. That should bother you a little bit more, shouldn't it?"
Broughton also conceded it gave him "pause" when he learned late in the game about Falater's brief interaction with his dog.
Finally, Broughton agreed with Martinez that a sleepwalker almost always has to be provoked--usually physically--to get violent.
Cartwright told the jury that Falater's case offered the "purest" case of sleepwalking she'd seen in 30 years. But Cartwright's testimony proved she didn't know this case as well as Pressman.
"I believe [Scott] came home in an upset emotional state, but he had a perfectly ordinary night rather than coming home and kicking the dog and blowing up at his wife, which means he is not handling the stress. Those hormones were raging, as the kids say . . . ," Cartwright said.
Martinez told her, "That woman was about to die--she did nothing. If he was really sleepwalking, he would not have known that that body was there."
"That is not true," Cartwright countered. "He sees her. He does not recognize her. Mr. Martinez, you keep trying to make this a rational scenario, and it isn't rational."
Later, jurors would say with their verdict that Scott Falater's actions had made perfect sense.
One of Juan Martinez's best lines in his closing arguments came after he showed the jury a photograph of Yarmila Falater on Christmas Day 1996, three weeks before her husband killed her.
"Do you think that she deserved to die?" he asked. "Look at her. We've placed so much attention on him, everything's about him. Look at her!"
The prosecutor then showed a photo of Yarmila's butchered body on the autopsy table.
"Look at the indignity!" he screeched.
Falater looked down at his folded hands.
"Does it look like a peaceful death?"
Martinez gestured at Falater: "He's only a killer, plain and simple."
Mike Kimerer's task was Herculean, and he knew it. He'd been up to about 3 a.m. trying to piece together his closing.
"This is a difficult case, and it's been an extremely strange case," Kimerer began.
He then attacked Martinez, a tactic which he said later he's rarely used in three decades of trial work:
"A prosecutor in a case certainly has the duty to see that truth and justice is done. Unfortunately, there have been instances . . . when he mischaracterized the evidence. There have been some comments made that simply have not been supported by the evidence in this case."
Kimerer reiterated that Scott Falater is a nonviolent person by nature who had a wonderful marriage: "[Martinez] is going to have to have a motive, and he doesn't have one, and he's done everything to create one."
Where Martinez employed the fantasy-driven Man of La Mancha to make his point about the bankruptcy of Falater's sleepwalking defense, Kimerer invoked Franz Kafka's Metamorphosis.
He described how the story's protagonist turns into a cockroach (actually a beetle), "and he doesn't know how it happened . . . and he doesn't know why."
He was suggesting that Scott Falater was Everyman until he turned one night into a homicidal sleepwalker. For some in the spectator's gallery, the "cockroach" metaphor was apt.
Martinez's "hammer" argument--the prosecution gets the last word because it has the burden of proving a defendant's guilt--began tepidly. Instead of appealing to the jurors' heartstrings, he tried to refute Kimerer point by point.
Toward the end, he pulled it together.
"One of the things that you cannot get away from and he cannot get away from is the fact that when [Yarmila] was down, he . . . did a violent act. Never in the annals of sleepwalking has there ever been a case where two different types of lethal violence have been applied in one case. . . ."
The prosecutor admitted, finally, "we really don't know what happened in the household that night."
He walked to the front of the defense table and pointed to Scott Falater, who sat between his two attorneys.
"This guy here killed his wife," Martinez said, "and he's guilty of first-degree murder."
The jury agreed.
Contact Paul Rubin at his online address: firstname.lastname@example.org