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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
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IN AND FOR THE COUNTY OF GRANT
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JENNIFER RALSTON, individually and
)
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as personal representative of the
)
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ESTATE OF TIMOTHY PATRICK McNAMARA, )
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et al.,
)
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Plaintiffs, ) vs.
) No. 15-2-01064-2
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TRACY NESSL, a/k/a TRACY McNAMARA,
) (OPENING STATEMENTS)
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a/k/a TRACY NESSL McNAMARA,
)
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Defendant.
)
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EXCERPTED VERBATIM REPORT OF PROCEEDINGS BEFORE
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THE HONORABLE JOHN D. KNODELL
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March 10, 2022
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Grant County Courthouse
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Ephrata, Washington
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A P P E A R A N C E S
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FOR THE PLAINTIFFS:
KAREN KOEHLER
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FARHAD SULTANI
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Attorneys at Law
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FOR THE DEFENDANT:
JOHN HENRY BROWNE Attorney at Law
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
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P R O C E E D I N G S
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*
*
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(Jury present.)
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THE COURT:
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jury.
Okay.
*
Good afternoon, members of the
Please be seated. Members of the jury:
If you'll now please give
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your attention to Miss Koehler for opening statement
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on behalf of the plaintiff.
9 10 11
MS. KOEHLER:
Good afternoon, members of the
jury, your Honor, Counsel. Again, these are my clients.
You haven't been
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able to meet one of them, Mr. Caleb McNamara.
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stand.
His sister, Jennifer formerly McNamara, now
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Clark.
Please stand.
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plaintiffs' version of this case.
Together we present to you the
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Sometimes the wheels of justice --
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MR. SULTANI:
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Please
It's not up on the TV.
Your Honor,
can we bring up the PowerPoint?
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MS. KOEHLER:
Right now it's just a cover sheet.
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There we go.
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Sometimes the wheels of justice turn slowly, but
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yet still they turn.
And we have to go back in time
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to tell this story of this case.
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In 1971, Tracy Shannon Zerb was born.
She was a
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beautiful little girl and she would grow into a
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
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beautiful appearing woman.
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also named Zerb.
Little Tracy's mother was
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Now, she had a relationship with John McNamara.
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John was deemed to be Tracy's father in order to pay
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child support in the 1970s by court order.
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I'm not sure why I'm squeaking.
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MR. BROWNE:
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MS. KOEHLER:
9 10 11 12
That's just feedback. Maybe if -- I don't know.
That's
okay. John's brother, he had other siblings, but his brother was Tim McNamara. Tracy Zerb became Tracy Nessl in 1991 when she
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married the father of three of her children.
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three children were Keenan, Kaelen and Keiran.
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THE COURT:
Members of the jury:
And the
Can you all see
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the exhibit that Mrs. Koehler is presenting to you?
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Is there anybody who can't see Mrs. Koehler's exhibit?
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MS. KOEHLER:
I will, your Honor, show it around
after I'm done writing it. THE COURT:
I think everybody can see.
You
surely can do that if you want.
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MS. KOEHLER:
Thank you, your Honor.
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This marriage lasted until 1999 or thereabouts.
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During that time, Miss Nessl worked as a waitress at
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Ruby Tuesday, and she worked there from 1993 to 2012,
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
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in North Carolina. She had a second relationship that resulted in a
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child, and that child, the last name of that person
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was Craig, and the child born, and I hope I say this
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correctly is Cyra or Cyra.
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MISS NESSL:
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MS. KOEHLER:
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Tim McNamara had two children.
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Cyra. Cyra.
My apologies. And he had these
children with Vicky McNamara, who together -- they
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were together in marriage for 28 years, plus dating
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and divorce, 30 years.
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to Caleb and Jen.
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tree as we tell this story to you.
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And Vicky McNamara is the mom
And it helps to have this family
Now, John McNamara was not a willing father and
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had very limited interaction with his daughter who he
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did not acknowledge other than through the court
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decrees.
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Tracy Zerb.
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And over the years, this left a hole in
At some point as an adult, she began to look for
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her father and reach out to her father and was
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rejected.
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family who did not reject her.
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happy family that grew up together, spent a lot of
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time together.
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a little bit as a child, but primarily as an adult,
But she met other members of the McNamara So this was not a big,
As an adult, she was -- I think maybe
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
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she came occasionally to the United States, Soap Lake,
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in particular, for a few days out of the year.
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This is a story that is painful to this family,
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the McNamaras, in particular.
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there is embarrassment.
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There is shame and
When Caleb was 20 or 21, Caleb McNamara, in one
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of her visits back, Tracy Nessl, who was around ten
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years older, so closer to 30, if not 30, entered into
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a sexual relationship with him.
This did not bother
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her.
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said she wasn't sure that John McNamara was her real
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father.
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year old, he let that possibility lie.
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was not proud.
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of his biggest shames in life.
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The last time that Caleb McNamara had a sexual
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relationship with Tracy Nessl was the day before she
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fell in love with his father, supposedly.
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It bothered Caleb, who wasn't sure.
And it is without making any excuses, as a 20 Even so, he
He knew maybe this wasn't right.
One
And he'll admit it.
All her life she wanted to have happily ever
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after.
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accepted, she wanted to be in this family.
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was going to get her wish.
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But she
She wanted to be loved, she wanted to be And she
So on July 15 of 2012, the day after she had had
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sex -- the last time she had ever had sex with Caleb
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McNamara, her half brother was in town.
Apparently,
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
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John McNamara was divorced, they were living mainly in
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California.
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they were friends.
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their names right, but John McNamara's children, I
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believe, were Jesse and Johden, and I don't know how
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to spell that.
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was Jesse, one of them she was more friends with than
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the other.
But she came to know them and for a while I'm not sure if I'm going to get
And I think it was Johden, maybe it
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Late on that night, when it was already dark out
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in July of 2012, it must have been after nine at that
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time of the year, they wanted to go see their beloved
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uncle Tim.
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very long hours and he had come back from his farm,
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which we'll talk about, and his nephews wanted to say
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hi and had brought along -- at least one of the
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nephews, I think, and his girlfriend had brought along
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Tracy.
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And she went along with them.
He worked
She said there was an instant connection.
This
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was her soulmate.
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and girlfriend left, Tracy left with them, and then
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immediately returned that same night.
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the beginning of this relationship.
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from the beginning.
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beginning.
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And so when John's son, his nephew,
And that was
She pursued it
She pursued this family from the
It moved with lightning speed.
Mr. McNamara was
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
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in the middle of his third divorce.
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better than marriage.
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lasted more than 30 years.
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He did farm
Although his first marriage
On August the 2nd, so a little over two weeks
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later, Tracy and her youngest daughter Cyra, I don't
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know if she was eight or nine at the time, moved back
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and went to Montana with Mr. McNamara on a vacation.
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So now I'm going to pull this off.
We'll tape it
on the wall, but I want to make a timeline. And also I'd like to have this just marked as an exhibit for demonstrative purposes.
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MR. BROWNE:
No objection, your Honor.
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THE COURT:
Okay.
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THE CLERK:
Plaintiff's Exhibits 1 through 104,
It's being marked.
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Court's Exhibit 299, Defendant's Exhibits 300 through
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306, Plaintiff's Exhibit 105 has been marked for
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identification.
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MS. KOEHLER:
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The trip was only for a few days.
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Thank you. She flew back
to North Carolina. The next trip was in September of 2012.
I left
off the days, because I don't think it matters. I'm going to just abbreviate TMC for Mr. Tim McNamara. So this time Mr. McNamara went to North Carolina.
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
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When he was in North Carolina, having spent a total of
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less than a full week by then with Miss Nessl, he paid
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$20,000 down on her mortgage.
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bathroom and a closet in her property.
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He also built her a
In October 2012, Miss Nessl and her daughter, the
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youngest daughter again, flew back to Salt Lake
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City -- all of this was plane fare by Mr. McNamara --
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and went to Yellowstone.
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Mr. McNamara paid $10,000 down for a new GMC truck for
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During the Yellowstone trip,
Miss Nessl. When they returned, shortly after they returned,
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custody of Cyra was awarded to Mr. Craig and Miss
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Nessl was ordered to pay child support.
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Mr. McNamara paid her child support.
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And
In November of 2012, Miss Nessl stopped working
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at Ruby Tuesdays and moved to Soap Lake by herself to
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join Mr. McNamara.
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began to pay Miss Nessl's North Carolina mortgage.
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That same month, Mr. McNamara
He put her on his bank account.
He paid her
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credit card bills on her personal credit cards.
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added her to his own credit accounts.
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He
And he began depositing his Social Security
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payments into her separate bank account.
Because
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Mr. McNamara was of Social Security age.
Being that
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he was Mr. McNamara's father.
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
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But I need another page.
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Between December 12th --
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THE CLERK:
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Plaintiff's Exhibit 106 has been
marked for identification.
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MS. KOEHLER:
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THE COURT:
7 8 9 10 11 12 13
Thank you.
This is the page we just got finished
with? MR. BROWNE:
Your Honor, you need to use the
microphone. THE COURT:
Exhibit 106 is the page you just drew
for the jury? MS. KOEHLER:
Yes.
Exhibit 106 is entitled
Timeline.
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MR. BROWNE:
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MS. KOEHLER:
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THE COURT:
You're not offering these.
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THE CLERK:
You need to use the microphone.
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THE COURT:
I'm sorry.
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And these are demonstrative. Demonstrative purposes only.
I show my microphone to
be on. Okay.
Exhibit 106 has been marked.
It's not
being offered as evidence at this time. MS. KOEHLER:
It's a demonstrative aid, your
Honor.
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THE COURT:
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MR. BROWNE:
Are you hearing me now? No.
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
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THE COURT:
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MS. KOEHLER:
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Oh, I know what I did.
Never mind.
Your Honor, are you ready for me to
continue?
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THE COURT:
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adjust my mike.
Yeah, go ahead.
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Go ahead.
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MS. KOEHLER:
I just need to
Between December 2012 and January
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2013, Mr. McNamara transferred the following
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properties into Miss Nessl's name.
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Grant County --
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WEBEX VOICE:
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MR. BROWNE:
13 14 15 16
The first one was
Have a great day.
Listen --
I think somebody on Webex has not
muted themselves. THE COURT:
If you're on Webex and you're not
muted, you need to mute right now. MS. KOEHLER:
The first property was Grant County
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parcel number 13-1746-002, appraised value -- or
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assessed value, I'm sorry, $40,000.
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The second parcel was Grant County parcel number 31-3237-000, assessed value at $672,225. The third parcel was Grant County parcel number 31-3238-000, assessed value at $85,430. And the fourth parcel was Grant County parcel number 31-3239-000. In addition, two life insurance policies were --
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
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had their beneficiaries changed to Miss Nessl.
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first was a PruCo life insurance policy, that was
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valued at $300,000.
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life insurance policy, and that was valued at
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$200,000.
6 7 8 9
And the second was the Athene
I think I should make one more, have another timeline page.
So this will be page two timeline.
All right.
I'll take care of that one.
In January 2013 --
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MR. BROWNE:
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demonstrative exhibit?
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MR. SULTANI:
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THE COURT:
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MS. KOEHLER:
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THE COURT:
Is that being marked as a
It's the second page.
It needs to be marked. Yes, it needs to be marked.
Mr. Sultani, have the clerk mark it.
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It doesn't need to be offered.
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identify it for the record.
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MS. KOEHLER:
20
THE COURT:
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MR. BROWNE:
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Don't
worry, it's a short timeline.
10
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The
Yeah.
Go ahead. Your Honor, I have no objection to
demonstrative exhibits. THE CLERK:
We need to mark it and
Those, anyway.
Plaintiff's Exhibit 106, page two has
been marked for identification. THE COURT:
Have we identified what the exhibit
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
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is, apparently?
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MS. KOEHLER:
Yes.
It's Timeline, page two.
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In January of 2013, the couple went to Belize.
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Belize is on the Caribbean side of Central America,
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kind of below and east of Mexico on the coast.
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they loved it there and returned in February of 2013.
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They could not marry in the state of Washington,
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and so they looked at potentially doing so in Belize.
And
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In October of 2013, after having gone and figured
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these things out ahead of time, Mr. McNamara purchased
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50 acres in Belize, and for $75,000, and put
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Miss Nessl's name on it along with his own.
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And then Miss Nessl's dream came true.
On
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October 10, 2013 -- sorry, December, in a marriage
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ceremony, without explaining the relationship between
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the two of them, that was conducted by a neighbor,
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named Miss Bardalez, who was kind of the community
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counselor, marriage person, they were married.
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This relationship caused great distress on the
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McNamara side of the family.
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talk about their relationship with their father, but
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at this point in the story, you can be certain that
23
there was tension between Mr. McNamara and his
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children.
25
It still does.
We'll
Over the next year, Mr. McNamara primarily stayed
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
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on the property, but occasionally would go back to
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Soap Lake, and once, I think, to North Carolina, and
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Miss Nessl, who by then was calling herself
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Mrs. McNamara, would go back and forth.
5
longest they were separated was about two and a half
6
months, but they were separated from time to time as
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she would be going back and forth while he was there
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working.
9
I think the
And what he was doing over that year of 2014 was
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investing approximately -- oh, total.
11
to do some math.
12
right.
13
dollars into this acreage, property.
Hold on, I need
I don't know if I did this math
Somewhere around 155,000 or 160,000 more
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(Discussion off the record.)
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MS. KOEHLER:
16
What's happening in the fairy tale, all her
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dreams come true --
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MR. BROWNE:
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THE COURT:
20
Another $150,000.
Your Honor, that's argumentative. That's fine.
It's a characterization
of the evidence, Mr. Browne.
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MR. BROWNE:
22
MS. KOEHLER:
Okay. Mr. McNamara is building a
23
beautiful potential future bed and breakfast.
And
24
you'll hear, he is -- probably everyone will say the
25
hardest worker that anyone ever knew.
That's his
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
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life.
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the jungle of Belize over that year.
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workers helping him from around.
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monetary investment, but it cost a lot more than that
5
to build a house like that.
6
He's a worker.
And he built this basically in With other
So that may be the
But things are starting to fall apart.
Things
7
are starting to fall apart around the same time that
8
things are getting better between Mr. McNamara and his
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children.
10
Mr. Sonny Cortez is the mayor of Boston Village,
11
where the McNamaras lived.
12
call what his office is.
13
title.
14
describes Mr. McNamara as generous, always willing to
15
help, he had machinery, he would go wherever needed,
16
never saying no, working hard, being golden hearted
17
and helping the community.
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The mayor is what we would
I think he had some other
He says it's like being a mayor.
And he
And in December of 2014, and before then,
19
Mr. McNamara started to exhibit fear.
20
he was asked on multiple times, including when they
21
were arguing, and this is what -- these were his
22
words, what he told Mr. Cortez, that she would say --
23
ask him, when I die, where would you want them to bury
24
you?
25
MR. BROWNE:
Specifically,
Your Honor, that's hearsay.
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
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THE COURT:
2
MR. BROWNE:
3
THE COURT:
4
Pardon me? That's hearsay.
I'd object.
Well, Counsel, could you approach,
please?
5
MR. BROWNE:
Up there.
6
THE COURT:
7
(At side bar.)
8
THE COURT:
Yes.
You believe this is covered by a
9
motion in limine?
10
MS. KOEHLER:
11
MR. BROWNE:
12
MS. KOEHLER:
No, it's not. No. This is verbatim from his
13
deposition which we are playing directly after this,
14
verbatim.
15
THE COURT:
Mr. Browne, I don't know, but I
16
haven't heard the evidence, but what counsel is
17
telling me, I've told the jury several times that what
18
counsel says is not evidence.
19
MR. BROWNE:
20
THE COURT:
21
is going to be.
22 23 24 25
MR. BROWNE:
Right. So I'm not sure what your objection
Well, you shouldn't mention hearsay
if it's not going to be admissible. THE COURT:
Well, if that's the case, there's an
objection, the jury doesn't consider it.
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
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MR. BROWNE:
2
THE COURT:
Okay.
I guess I'm not going to repeat it at
3
this point.
4
do that, but there's not.
5 6 7 8 9
If there were a motion in limine, I would
MR. BROWNE:
Okay.
I don't usually make a motion
in limine on hearsay objections. THE COURT:
All right.
Okay.
Thank you,
Counsel. MR. BROWNE:
Thank you, your Honor.
10
(In open court.)
11
MS. KOEHLER:
12
needs to redo his will.
13
Yes.
And he tells Mr. Cortez that he
Mrs. Bardalez, the person who married -- and I do
14
put that in parentheses -- them, was very fond of
15
Mr. McNamara.
16
daily for lunch.
17
often by himself and rarely with Miss Nessl.
18
those lunches, they had many talks.
19
progressed, the talks became more concerning.
20
confided in Miss Bardalez that Miss Nessl had had an
21
affair already during the short term of their
22
marriage.
23
In fact, he went over to her house Sometimes with his workers, but During
And as time He
And he was devastated by that.
At the same time, he was thrilled with Belize.
24
He had a mango grove.
25
mangos.
He had great plans for the
And she was a very good cook and he was
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
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trying to get her to cook some recipes for his mangos
2
and other things.
3
wasn't just a woe is me kind of engagement all the
4
time.
5
negative.
6
So he had business plans, and so it
It was positive and then unfortunately a lot of
Mrs. Bardalez saw this with her own eyes.
One
7
day when she saw them both together in the vehicle and
8
watched as Miss Nessl slapped Mr. McNamara in the back
9
of the head.
10
Which brings us to Christmas Day, December 25,
11
2014.
12
days -- two days before the Athene life insurance
13
policy was set to expire.
14
Which, by the way, coincidentally, is two
Tim McNamara is dead.
This is the last picture
15
we have of Tim McNamara, at least from his family, and
16
this is August 31 of 2014.
17
How does he die?
Well, he dies by a gun.
And
18
where did this gun come from?
19
October 2014, Miss Nessl had flown back to North
20
Carolina.
Again, remember, they are not always
21
together.
She had flown back to North Carolina and
22
there at -- let me get the name of this place right, I
23
didn't write it down -- a gun shop, she bought a
24
Glock.
25
Two months before, in
This is the back of the beautiful house that
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
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Mr. McNamara was building, and it was almost done by
2
then.
It was pretty much almost all the way done.
3
Let me get my pointer.
Where is my bag?
4
This is the rear of the back door of the house.
5
Mr. McNamara is found, by the time the police get
6
there, lying here on the very edge of the deck with
7
his hand draped over it.
8
So I'm not going to be precise.
9
some generalities.
10
You'll see pictures later. I'm just giving you
The gun which -- there's a thing called 3-D
11
printing, and if you give them the specifications,
12
they can make a plastic gun.
13 14 15
And this will be the next exhibit, demonstrative purposes only.
There's no trigger.
MR. BROWNE:
Your Honor, just for the court's and
16
the jury's understanding, we moved back so the jurors
17
can see all of this.
18
THE COURT:
Yes.
19
THE CLERK:
Plaintiff's Exhibit 107 has been
20
Very well.
marked for identification.
21
MR. BROWNE:
That's a demonstrative exhibit?
22
MS. KOEHLER:
23
This gun is lying down in these rocks.
Correct.
24
Mr. McNamara's head is over here, his feet are over in
25
this area.
There is a huge pool of blood on his head
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
19
1 2
seeping down and on the rocks. The story, the story is that Miss McNamara heard
3
a shot while she was washing the dishes, and either
4
she did go out immediately or she didn't go out
5
immediately, there's a couple different versions, to
6
see what was going on.
7
she saw Tim and thought he was playing.
8
was no blood.
9
hand and he didn't move.
And when she got out there, Because there
And then she started shaking him by the
10
So -- I don't know if you can see me.
11
THE COURT:
12
MS. KOEHLER:
13
I'm sorry, Counsel, what did you say? She lies down on the ground with
Mr. McNamara --
14
Your Honor, permission for the jury to stand.
15
THE COURT:
16
MR. BROWNE:
17
THE COURT:
18
MR. BROWNE:
19
THE COURT:
Do you object? Whatever you decide. I beg your pardon? Whatever you decide. Yeah.
For the record, Mrs. Koehler
20
is lying down on the ground.
21
you want.
22
MS. KOEHLER:
The jury may stand if
Miss McNamara gets down on the
23
ground and spoons Mr. McNamara with her chest up
24
against his body, every part of her touching him and
25
her arm over him.
That's a story.
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
20
1
How long does she lie like that, you might
2
wonder.
3
hour.
4
We're not exactly sure, but it's at least an
At one point she says she doesn't know if he's
5
alive or not.
6
he was dead, regardless.
7
changes in that, she gets up.
8 9
Another time she says, oh, no, she knew Eventually, something
Now, in the house, because there's spotty cell coverage, there's a land line.
And then there's her
10
phone and Mr. McNamara's phone.
She uses no phone.
11
She doesn't call anybody.
12
the operator by hitting zero, she doesn't try to call
13
911, she doesn't pick up a phone.
14
She does not try to call
She then gets in the car and drives to
15
Mrs. Bardalez's home.
16
When she first went out, it wasn't all the way dark.
17
Now it's very dark.
18
It's late in the night by then.
And Mrs. Bardalez -- she comes running to
19
Mrs. Bardalez's home and says, something's wrong, you
20
need to come to my house.
21
yelling and screaming and Miss Bardalez is trying to
22
figure out what's going on.
23
And she's hysterical and
Mrs. Bardalez says, you need to call 911.
24
doesn't want to do that.
25
to the house.
Tracy
She wants her to go with her
This makes Mrs. Bardalez very
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
21
1
uncomfortable.
2
911.
3
her car and goes back to the house.
4 5
So she says no and she goes and calls
Miss Nessl at that time hauls out of there in
So it is hours after this shooting that any authority ever arrives.
6
Now, out of due respect to Belize, they do not
7
run themselves like the United States of America with
8
all of our resources.
9
uniforms and their investigators may not have Ph.D.
10
after their names.
11
professionals.
Their police don't have fancy
But they are trained
12
And Officer Henry, who you will hear from, was a
13
scene inspector, his whole job, his only job was just
14
to gather all the evidence, which he does.
15
tell you that all the evidence at the scene, he'll
16
tell you that all the blood on the rocks indicated
17
that Mr. McNamara had been moved up onto the deck.
18
He'll tell you that there was no gun residue in his
19
hand.
20
hand.
21
And he'll
In fact, there is no residue of anything on his
They don't have an easy time doing the
22
investigation.
Miss Nessl has Dobermans.
23
her to put them away.
24
They tell her to give them space.
25
she does.
They tell
She won't, and then she will. She won't, and then
It's a real battle to get this scene
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
22
1
investigated.
2
They take a ton of photographs.
3
But they do the best that they can.
Miss Nessl doesn't call the McNamara children
4
that evening.
5
and when he doesn't pick up, she texts him, your
6
father is dead.
7 8
There are other parts to this story.
We have a
week and a half to hear them.
9 10
The next day she calls Caleb McNamara
When Mr. McNamara dies, Miss Nessl gives three different stories to various people:
11
Number one, maybe he tripped and fell.
12
Number two, maybe there was some people in the
13
bush that shot him.
14
And number three, maybe it was suicide.
15
The stories change, the details change, and the
16
McNamara family becomes very concerned.
17
That was in 2014.
Ms. McNamara, now Clark, and
18
Mr. McNamara, Caleb McNamara, have been waiting for
19
this day.
20
their home, their family home, with everything that
21
their father worked hard for.
22
They have been watching Miss Nessl live in
I want to talk to you about their relationship
23
now.
Mr. McNamara was not a perfect man, but he was
24
an amazing person and a great father.
25
pride and joy was his farm.
He had -- his
Which he purchased with
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
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1
Vicky, their mother, and together this family created
2
something very special.
3
These -- I call them kids, I'm older now, way
4
older -- these kids grew up farmer's children.
5
mother gave them haircuts and patched their clothes.
6
They did chores and they worked hard on this family
7
farm in all ways, all ways.
8
was a generational farm to be passed on.
9
dispute.
10 11
Their
The expectation was it Never in
That farm is the love of their father's land
life. Jennifer Ralston, now Clark, I think was the
12
first one to really begin repairing the relationship
13
with her dad.
14
You may not disagree with your parents all the time,
15
but there's no way you can't love someone that's loved
16
you that hard for their entire life.
17
is their role model.
18
It was never any doubt that they would.
He was and still
The purpose of this trial is to get a civil
19
judgment finding more probably than not that Tracy
20
Nessl shot Mr. McNamara for financial gain.
21
I say shot, I don't mean this way, I don't mean this
22
way, I mean shot himself, according to them, in the
23
back of the head down, pointing up, which I cannot
24
physically do.
25
would be down and up and over, somewhere like that.
And when
There's a little bone back here and it
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
24
1
Now, I'm not quite big enough to show it.
2
The McNamaras want their legacy back and they
3
want a declaration as to truly what happened to their
4
father to be heard in this community.
5
Thank you very much.
6
THE COURT:
Mr. Browne, would you like to begin
7
your opening statement now or would you like to take
8
the afternoon recess?
9
MR. BROWNE:
10
break.
11 12 13 14 15 16 17
THE COURT:
JUROR ROBILLARD:
THE COURT:
MR. BROWNE:
THE COURT:
23
We're not picking you up.
Hold on
just a second.
19
22
Question, you wrote a date of
1-13 --
take the break.
21
Oh, I'm sorry, do you need a break,
sir?
18
20
I think one of the jurors needs a
I think it would be a good time to
I'll tell you, yes, sir, what's your
juror number, sir? JUROR ROBILLARD:
You wrote a date of 1-13, but
you didn't write anything after that on that timeline. THE COURT:
Okay.
Sir, yeah, that will probably
24
be explained to you during the evidence.
25
understands you had a question.
Counsel
We're not going to
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
25
1 2
deal with that right now. Okay.
Members of the jury:
I'm going to have
3
you retire to the jury room and take a recess until
4
let's say 20 till, and be back and ready to go at that
5
time, and after the recess you'll hear the opening
6
statement from Mr. Browne.
7
(Jury not present.)
8
THE COURT:
9
Okay.
The court will be in recess
until 20 minutes to the hour.
10
(Afternoon recess.)
11
THE COURT:
12
Okay.
13
THE CLERK:
The system has been disconnected.
14
THE COURT:
What's going on here?
15 16 17 18 19 20 21 22
Thank you.
Please be seated.
We've taken down your displays.
disconnected?
Source
What does that mean?
MR. BROWNE:
Are you back on Webex?
It doesn't
look like it. THE COURT:
Oh, I know what I did.
I'm going to
sign in one more time. Okay.
Are we on?
How do I know that I'm on?
I
must be on, right? I've muted everybody, I'm trying to figure out
23
how I can determine if I'm actually on.
I need to
24
make sure I'm actually on Webex at this time, but I've
25
muted everyone.
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
26
1
(Discussion off the record.)
2
THE COURT:
3
MR. BROWNE:
4
THE COURT:
Are we ready to start back? You bet. Okay.
I'm just going to let you
5
folks know that we had some squeaking and I think it
6
was because the mike settings, I raised, I thought I
7
was raising Miss Koehler's mike settings, and I've
8
tried to raise yours.
9
sure that everybody can hear.
10 11 12 13
THE JURY ADMINISTRATOR:
THE COURT:
Yeah, you have to talk into the mike
or the lapel. MR. BROWNE:
15
THE COURT:
I'm going to use that microphone. All right.
That's your microphone,
right?
17
MR. BROWNE:
18
THE COURT:
19
It's not always the
squeaking, you have to talk into the mike.
14
16
So keep an eye on us and make
Yes. I'm just saying I might have to
adjust this on the fly.
20
Okay.
Are we ready for the jury now?
21
MR. BROWNE:
22
THE JURY ADMINISTRATOR:
23
MR. BROWNE:
24
THE COURT:
25
MS. KOEHLER:
Yes, your Honor. Are we on?
I don't think we're on Webex. I'm not? You just have to change out the
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27
1
HDMI.
It's linked like there's a computer, but
2
there's no computer.
3
THE JURY ADMINISTRATOR:
4
THE COURT:
5
tell me I'm on.
Okay.
We are on.
Apparently we're on.
They
6
We don't want to stop the sharing, right?
7
MR. BROWNE:
8
THE COURT:
9
There you go. Okay.
There we go.
25 years and it will come to me.
10
Okay.
11
THE JURY ADMINISTRATOR:
12
THE COURT:
All right.
MR. BROWNE:
Line them up and bring
I'm not sure we're going to have
time to play any depositions today.
17
THE COURT:
18
MR. BROWNE:
19
I'll have Ed line
them in.
15 16
All right.
everybody up.
13 14
Probably another
Well, we'll see. Unless you want to just cut them
off.
20
THE COURT:
21
MR. BROWNE:
22
MS. KOEHLER:
Sonny Cortez is very short.
23
MR. SULTANI:
Twenty minutes.
24
MS. KOEHLER:
Yeah, 20 minutes.
25
Well, we need to stop by 4:30. Right.
So we'll see
what we can do.
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
28
1
(Jury present.)
2
THE COURT:
3 4
All right.
Members of the jury,
thank you very much, please be seated. Folks, please now give your attention to
5
Mr. Browne for opening statement on behalf of the
6
defendant.
7
MR. BROWNE:
8
I'm going to start by what I pretty much told you
9
Good afternoon, everybody.
the first time we met, that whatever I say, whatever
10
counsel says is not evidence.
11
be an opening statement -- excuse me, my mask keeps
12
fogging up my glasses -- this is to be an opening
13
statement, or not an opening argument.
14
tell you what I think the evidence will show based on
15
my reading thousands of pages and looking at hundreds
16
of pictures.
17
I am -- and this is to
So I can only
Just as an example of how what we say is not
18
evidence, I'm not sure how the plaintiff is going to
19
prove the value of any of these properties that she
20
mentioned without Ms. McNamara, Tracy, I'm not going
21
to -- I'm going to refer to my client as Tracy,
22
because there's too many names around here.
23
don't mean to be impolite, Miss McNamara, I'm sorry.
24 25
So I
The property transfers that counsel mentioned, the real property, was in 2012.
Counsel said
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29
1
something about Tracy's dream coming true.
2
not a melodrama, this is not a morality play.
3
all here, you particularly, to do one thing, and
4
that's to determine whether the presumption -- excuse
5
me, whether the plaintiffs have met their burden of
6
proof.
7
This is We're
That's why we're here.
Not to make morality judgments.
8
I may have different views on things.
9
to examine the facts.
I'm sure you and But you're here
10
The will in this case, Mr. Timothy McNamara's
11
will, which you will see, was dated December 2014.
12
And I'll get back to that in a minute.
13
You will learn during the course of this trial
14
that, for instance, Mrs. Bardalez, who was a neighbor,
15
lived 150 yards away, and you heard counsel talked
16
about Mrs. Bardalez a bit, right after Tim's death,
17
she gave a statement to the police, the police, that
18
was about one paragraph long.
19
Sometime about two years later, Jennifer Ralston
20
Clark went to Belize, plaintiffs, and talked to the
21
police and talked to the witnesses and had statements
22
written out for them.
23
know when you hear from the Belize witnesses.
24
don't know today whether there are going to be any
25
witnesses from Belize other than through a deposition.
And that's important for you to
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
I still
30
1
The toy gun we have here, Glock 19, I think,
2
replica.
3
one gun registered to one person.
4
purchased by the McNamaras.
5
Tracy's name.
6
was put in Tim's name.
7
In Belize, you'll learn, you can only have So the Glock was
The Glock was put in
The shotgun, which you'll hear about, And that was all legal.
So going back to my notes, as much as counsel
8
would like it to be, this is not a case about morals.
9
This is a case about the law and the facts.
10
Tracy and Tim moved to Belize to start a new
11
life.
December 10th, 2013, they were married.
12
was Tim's birthday, by the way.
That
13
Their relationship was not accepted by family and
14
friends even in the Soap Lake area, some did, some did
15
not.
16
They moved to Belize to start a farm and a bed
17
and breakfast.
18
this house.
19
cement work, can drive bulldozers, can drive backhoes,
20
she's running the 75-acre farm now here in Soap Lake,
21
which is, by the way, beautiful, by herself.
22
And Tracy, Miss McNamara, helped build
This young lady can sheetrock, can do
She helped build everything in Belize.
23
worked together.
24
man.
25
They
Tim McNamara was a very hard-working
And so was Tracy. Together they moved and purchased the farm in
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
31
1
Belize with the intent to make a bed and breakfast.
2
There was also a mango plantation.
3
And, interestingly enough, I believe the evidence
4
will show that the bed and breakfast would be up and
5
running within a week or two of Tim's death.
6
had, again, all kinds of paperwork and everything from
7
the Belize authorities.
8 9
That
They were both very happy in Belize, but they both missed their families.
They had children from
10
previous relationships.
11
called Kiki, and she was 12 at the time Tracy and Tim
12
moved to Belize.
13
and as I indicated, they were married on December
14
20th.
15
Tracy's youngest is actually
And they moved to Belize in 2013,
There's the photos. I don't see -- a lot of courtrooms have an
16
overhead projector, which is called an Elmo, so we can
17
put it on there, on an overhead, but we don't have one
18
of those.
19
The photographs will be admitted into evidence,
20
you'll see the photographs of the wedding, it was a
21
beautiful, beautiful wedding.
22
interestingly enough, was the person who did the
23
ceremony.
24 25
Mrs. Bardalez,
Tim and Tracy worked long hours building this beautiful place.
As I indicated, both were very good
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
32
1
at constructions, still are.
2 3
Tracy McNamara can skin a deer faster than anybody I know.
4
We're not talking about some rich person from
5
Seattle who lives in Magnolia.
6
farmer who put as much effort into the Belize property
7
and then subsequently the Soap Lake property as
8
anybody.
9
She lives there now.
We're talking about a
It was very obvious, the
10
evidence will show, she's not in Belize.
11
jail.
She's not in
She hasn't been extradited.
12
Together in Belize -- excuse me.
13
They purchased equipment, construction equipment.
14
A lot of it was actually purchased in the United
15
States and taken by ship to Belize.
16
is not an exhaustive list -- but this, all the
17
property -- by the way, the property in Belize was a
18
joint ownership.
19
wasn't you add -- Counsel said that Tim added Tracy to
20
the deed.
21 22
No.
But -- and this
Do you know what that means?
It
They both owned the property equally.
They purchased and had shipped a backhoe, tractors, trucks, an SUV.
23
After Tim's death -- and we'll talk about the
24
will.
In the will that Tim did, he left everything to
25
Tracy, real property and personal property.
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
Tracy
33
1
McNamara did not know of the existence of the will for
2
at least a year or two.
3
Jennifer McNamara swore under oath in this
4
courthouse that there was no will, and became
5
appointed the personal representative of Tim's estate.
6
She did that at least twice, maybe three times,
7
claiming there's no will.
8
that disposes of all your property, there is no
9
estate.
10
Because if you have a will
You'll learn that.
So what's important for you to know -- because
11
I'm trying to deal with the facts here and not the
12
morality of the whole thing, and I'm not going to lay
13
on the floor for any reason -- the will was -- and in
14
the will, which you'll see, he explained beautifully
15
why he was leaving things to Tracy.
16
his children very much and he had given them
17
everything he could during his lifetime, but he was
18
leaving all of his property, personal property and
19
real property, to Tracy.
20
will, that she would continue the McNamara legacy in
21
Soap Lake.
22
And that he loved
He felt, according to his
Which she has.
It's pretty obvious, but both Tracy and Tim were
23
estranged from their families because of their
24
relationship.
25
I'm going to get some water.
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
34
1
Once again, you'll have your own opinions as to
2
the morality of things, but it has nothing to do with
3
what goes on in court.
4
In Tim's will -- there were two of them actually,
5
but only one of them was admitted into probate here.
6
You'll see it, it's a separate cause number in this
7
county.
8
the will and was told there was not a will until
9
actually the first time she heard there was a will was
And Tracy did not learn of the existence of
10
when Caleb came to Belize shortly after Tim's death.
11
And when Caleb came to Belize, he told Tracy that
12
there was a will.
13
the will.
14
disinherited his children.
15
But did not tell Tracy what was in
And did not tell Tracy that Tim's will
By order of the court in Grant County, after it
16
was determined that when Jennifer said there was no
17
will, when it was determined that was simply untrue
18
and basically perjury --
19
MS. KOEHLER:
20
THE COURT:
21
MS. KOEHLER:
-- side bar, and I object.
22
MR. BROWNE:
Let me use different words.
23
MS. KOEHLER:
24 25
Your Honor, your Honor --
Yep?
Side bar and I object.
That was
inflammatory and I object. THE COURT:
Counsel, why don't you approach the
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
35
1
bench.
2
(At side bar.)
3
MS. KOEHLER:
4
He just told the jury she committed
perjury.
5
THE COURT:
I think opening statement is open
6
game.
What he's making is an assertion of fact, he
7
can either prove or he can't.
8
you can stand up and tell the jury, you know, he
9
didn't prove it.
10
MS. KOEHLER:
11
THE COURT:
12
MR. BROWNE:
13
different word.
14
THE COURT:
If he can't prove it,
This is so collateral.
What's your response? First of all, it's true, I can use a
The problem I've got, your remarks
15
indicate that you're going to introduce some sort of
16
evaluation to the court maybe.
17
MR. BROWNE:
There's a court order removing her
18
as personal representative.
19
it.
20
Who did that?
I don't know who signed
It's here. MS. KOEHLER:
Your Honor, perjury is a comment on
21
truthfulness of a potential -- using that word is a
22
comment on her truthfulness, which is not allowed.
23
a collateral proceeding.
24 25
THE COURT:
On
He's making an assertion of fact that
she committed perjury.
If he can prove that she
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
36
1
committed perjury as to a will, that has something to
2
do with her.
3 4 5
She's going to be a witness.
MS. KOEHLER:
That's never been asserted or
litigated. THE COURT:
Okay.
That's the question.
I'm not
6
going to evaluate that.
7
prove it, you'll be able to make a lot of hay with
8
that in closing argument.
9
MR. BROWNE:
If that comes up and he can't
Thank you.
10
(In open court.)
11
THE COURT:
12
MR. BROWNE:
Go ahead, Mr. Browne. The court or commissioner in Grant
13
County removed Jennifer as the personal representative
14
after it was found out that Mr. McNamara actually left
15
a will, which has been admitted into that case, the
16
probate case.
17
There were two life insurance policies.
Tracy
18
knew of them, but not the specifics.
19
correct, one of them was to expire within a few days
20
of Christmas Day 2014.
21
that Tim have a physical to continue the insurance.
22
And as he told his children and others, he had
23
prostate cancer and he wasn't going to pass that
24
physical.
25
And counsel is
And there was a requirement
Now, going -- let's try and focus on the facts
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1
and not the morals or whatever.
2
Dr. Sanchez, who I don't believe will be called as a
3
witness, but maybe.
4
Belize and who did the autopsy.
5
which has been relied upon by the plaintiffs' expert
6
and others, indicates, contrary to what counsel
7
demonstrated with a fake gun, Dr. Sanchez said that
8
the entry wound was two centimeters above his right
9
ear.
10
There's a
I hope he is.
Who was an M.D. in
His autopsy report,
That's what the doctor said. You'll see, and you'll probably not want to see,
11
but you'll see photographs of the autopsy.
12
officers -- it's not an officer, Mr. Henry, who is a
13
technician in Belize, actually stated that the bullet
14
hole in the top of Tim's head was the entrance wound,
15
when it's very obvious it wasn't.
16
bullet, which Dr. Sanchez traced, was from the right
17
side of the head and exited on the left side of the
18
head, which is very common for suicides.
19
One of the
The track of the
Another example of why what we say is not
20
evidence is counsel said there was no gunshot residue
21
on Tim McNamara's hand.
22
gunshot residue.
23
Nobody ever tested for
The evidence will indicate that the night of
24
Tim's death, it had been around the time of hearing
25
the gunshot, which Tracy heard, it was pouring rain.
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It was a tropical rain storm.
2
why there is something or not something on Tim's hand.
3
So that might explain
But nobody ever tested for gunshot residue, and
4
I'm sure the plaintiffs' experts will testify that,
5
first of all, nobody uses gunshot residue anymore,
6
it's not a valid test for anything.
7
require a test.
8
you may have gunshot residue on your hand, but you
9
won't be able to see it.
But it does
But it's not -- if you fire a gun,
Sometimes, but not much.
10
just another example of why what we say is not
11
evidence.
12
So
The evidence will indicate that on that fateful
13
Christmas Day, Tim was very depressed, even angry.
14
and Tracy had difficult conversations about their
15
children, particularly Kiki, Tracy's younger daughter.
16
He was concerned about his cancer and not getting life
17
insurance.
18
They were running out of money.
By the way, Tracy is not -- she owns a house in
19
North Carolina.
20
She wasn't before all of this.
21
working.
She did work for 12 years or so at Ruby
22
Tuesday.
But, you know, that's a so what?
23
owns her house in North Carolina.
24 25
He
I mean she's not a homeless person. She's very hard
She still
During that day, the dispute -- if you want to call it an argument, I don't know -- escalated to the
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1
point where Tracy was outside the house, you'll see a
2
lot of pictures of the place in Belize, and Tim
3
angrily drove the backhoe at her on two occasions,
4
almost hitting her.
5
discussions that they were having.
6
And this added fuel to the
On Christmas Day of 2014, both Tracy and Tim
7
worked at the farm -- at the bed and breakfast, let's
8
call it that -- at the property in Belize, ten hours a
9
day, that's what they did when she was there.
Because
10
the bed and breakfast was about to open soon.
So they
11
worked on Christmas Day.
12
work.
It was usual, it was hard
13
I talked to you already about the discussions
14
that were very difficult between the two regarding
15
Tracy's daughter Kiki, money problems and health
16
issues.
17
Tracy offered to go back to work as a flight
18
attendant, and that did not make Tim happy.
19
indicated, he almost ran over Tracy with the
20
backhoe -- or tractor.
21
And, as I
Just prior to hearing the gunshot, Tracy, she was
22
not doing the dishes, as counsel said, she will tell
23
you -- Tracy is going to testify, she doesn't have to,
24
but she's going to -- she'll tell you that she was
25
cooking dinner, which she did every night she was
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there.
2
didn't see it, Tim went to the bedroom, they kept the
3
Glock and the shotgun next to the bed.
4
will indicate Belize is a very dangerous place.
5
Because of crime.
6
jaguars and things like that.
7
She was cooking dinner and apparently she
The evidence
Because of, believe it or not,
So Tim and Tracy heard the dogs barking and
8
apparently Tracy didn't see it, she was cooking, Tim
9
went into the bedroom, got the Glock off the bed
10
stand, went outside, Tracy heard the door close, and
11
within very few minutes, she hears the gunshot, which
12
was not unusual.
13
shoot into the forest to scare jaguars away and very
14
concerned about criminals.
15
Because both Tracy and Tim would
And at some point you're going to ask yourself,
16
and it will be part of the evidence in this case,
17
would a younger, single woman want to live in a remote
18
area of Belize by herself?
19 20 21
There's one thing you don't leave at the door of the jury room is your common sense. So she heard a gunshot, she went outside, and she
22
did think Tim was joking to begin with.
Tim had
23
artificial knees, so there were times when he would
24
trip and do things.
25
mad worker, ten hours a day.
But it didn't stop him.
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
He was a
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1
She thought he tripped or that he was faking.
2
Then she saw some blood.
3
know that 911 worked in Belize.
4
countries, I think you probably know from your
5
personal experience, have 211.
6
didn't know that 911 worked in Belize.
7
laid and believed that Tim was alive, but barely, and
8
she laid and spooned with him.
9
And then she -- she did not Actually, most
But in any event, she She actually
And during that process --
10
Are you okay?
11
MISS NESSL:
Uh-huh.
12
MR. BROWNE:
-- during that process, she got a
13
blanket, brought it out, and she was hysterical.
14
Mrs. Bardalez's first statement to the police, not the
15
third one that Jennifer got out of her, the first
16
statement to the police, Mrs. Bardalez says that Tracy
17
came to the house and was hysterical, crying, and
18
Miss Bardalez hugged her.
19
religious lady, she's very involved in the Catholic
20
church -- is anybody having trouble hearing me?
21
you all hear me?
22
JUROR BALLARD:
23
MR. BROWNE:
24
one, two, three, four.
25
THE COURT:
And
Mrs. Bardalez is a very
Can
(Shakes head negatively.)
Can everyone else hear me?
I'm informed --
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198
Testing,
42
1
MR. BROWNE:
2
THE COURT:
3
Can you turn it up a little? -- that the plastic barrier makes it
difficult to hear.
Just a second.
4
MR. BROWNE:
You heard most of what I said?
5
JUROR BALLARD:
6
MR. BROWNE:
7
THE COURT:
Okay. Just a minute.
8
you're -- hold on.
9
see what --
10 11
MR. BROWNE:
(Nods head affirmatively.)
Try it again.
Testing.
Let me make sure Speak again, let's
That is a little louder, I
believe.
12
THE COURT:
13
MR. BROWNE:
Is that better? Okay.
Go ahead.
So Mrs. Bardalez's first
14
statement to the police was that Tracy was hysterical.
15
Mrs. Bardalez could not even understand -- by the way,
16
I don't even know if you know, the language in Belize
17
is English.
18
Mrs. Bardalez did not -- I believe it used to be a
19
British colony.
20
But with a very heavy accent.
So Ms. Bardalez didn't understand what Tracy was
21
saying.
That's what she said to the police to begin
22
with.
And she hugged Tracy and asked Tracy to calm
23
down.
And then at some point learned -- and you'll
24
hear a deposition of Mrs. Bardalez, maybe even today,
25
that was done within the last year and done after she
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1
had the statement prepared for her by Jennifer.
2
Anyway, Tracy was trying to get Miss Bardalez's
3
help.
4
said, I'm calling 911.
5
according to Mrs. Bardalez, leaves her house.
It's
6
only 150 yards away.
And
7
lays with him again until the police come.
8 9
Miss Bardalez said no in a kind way, and she So Tracy, still hysterical,
Back to Tim, finds Tim.
The evidence will indicate that the police did not arrive for an hour or an hour and a half.
The
10
coroner's report in this case said that Tim actually
11
passed away on his trip to the hospital in the back of
12
a pickup truck.
13 14 15
So Tracy laid with him, spooned with him and waited for the police to arrive. The police will also -- I don't know if they're
16
going to testify, because I don't know if they're
17
coming from Belize or not, but the expert, the
18
plaintiffs' expert will probably refer to some of the
19
police reports.
20
was still spooning with Tim.
21
crying.
22
circles, not knowing what to do.
23
That when the police arrived, Tracy And was hysterical and
And once they got there, running around in
A day or two after Tim's death, his son Caleb
24
comes to Belize with money, with money.
Sometime
25
after Tim's death, this gentleman named Henry, who
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1
counsel referred to as a police officer, he's not,
2
he's a police technician.
3
deposition, part of it you'll see in the video
4
deposition, and part of it you'll hear from me when I
5
put my case on.
6
You will hear his
Officer -- see there we go -- Mr. Henry, in a
7
room in the police department, this is the first
8
contact he has with Tracy, Mr. Henry's contact with
9
Tracy, after the night that Tim died, asked Tracy for
10
money.
11
completely upset, and this person asks her for money.
12
Such is the system in Belize.
13
You have a grieving widow here who is still
Now, the plaintiffs have an explanation for that.
14
You'll hear it.
15
didn't even know anything about there was a will.
16
knew there was a will because Caleb told her when he
17
came down to Belize, but he didn't tell her that the
18
will left everything to Tracy.
19 20 21 22 23
Tracy said no.
Keep in mind, she She
And then the evidence in this case will tell you that Caleb McNamara paid Officer Henry. Belize authorities originally investigated this case as suicide or undetermined. In the spring of 2015, I'm not exactly sure of
24
the month, but we'll find out, Jennifer, and I'm not
25
sure if Caleb was with her or not, Jennifer goes to
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1
Belize.
2
Caleb -- sell a tractor for $10,000 cash, a tractor
3
that belonged to Tracy and Tim.
4
police authorities and it wasn't until then that
5
police in Belize decided this might be a homicide.
6
Jennifer -- and if Caleb is there -- and
They then spoke to
Within a week of Tim's death -- I'm sorry, I've
7
got an allergy -- within a week of Tim's death, Tracy
8
returns to Soap Lake.
9
woman living in a jungle in Belize and survive.
You cannot be a younger, single She
10
returns to Soap Lake, and ever since then, she's been
11
running the farm beautifully.
12
One of the -- an important fact, I think, to you,
13
and it's actually facts, after Tim's death, and after
14
Tracy returns to Soap Lake, Caleb and Jennifer ask for
15
a meeting with Tracy at the farm.
16
During that meeting -- there were two of those
17
meetings -- Caleb and Jennifer say, let's just split
18
this stuff three ways.
19
Tim left everything to her.
20
like this between Caleb, Jennifer and Tracy.
21
twice Tracy said, I'm not going to agree to that until
22
I see what the will says.
23
Tracy says, fine.
Tracy still doesn't know that Twice there was a meeting And
Now, during these meetings, the first meeting in
24
particular was friendly.
It got a little unfriendly
25
from Jennifer, who was at one point arrested.
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At no time did Jennifer or Caleb suggest that
2
Tracy killed Tim.
3
money.
4
They just wanted a third of the
You've seen I think one picture now of Tim and
5
Tracy during their wedding.
You'll see a bunch.
6
is an extremely happy couple.
7
judgmental as to the relationship.
8
evidence.
9
wedding which appeared to be a blessed event.
10
Tracy McNamara -- and as counsel has now
This
That you may be That's not
You'll see a number of pictures of the
11
admitted, she actually is a McNamara; she was born a
12
McNamara -- would not, did not kill Tim and leave
13
herself alone in the jungles of Belize.
14
testifies she will say she did not kill Tim and she
15
would never kill Tim.
And when she
16
Contrary to what has been suggested to you --
17
Can you hear me now?
18
JUROR BALLARD:
19
MR. BROWNE:
(Nods head affirmatively.)
-- this is not a simple case.
Tim's
20
will wanted to give meaning to the continuation of his
21
legacy in Grant County.
22
person to take that responsibility.
23 24 25
And he felt Tracy was the
This case, as the evidence is going to show you, is very sad.
But it's about pride and money.
I'm hopeful, and I'm going to just repeat myself,
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1
if I say anything to you right now that is not
2
accurate, then ignore me.
3
You'll be able to take notes during the trial.
4
Do you know why you don't have note pads now?
5
what I'm saying is not evidence.
6
notes.
7
wrong, follow your own memory.
8 9
You may take notes.
Because
But you'll take
And if anything I say is
Thank you for your time.
I don't imagine this
case will last until the 25th, but that's a lot of
10
time for all of us, and I thank you in advance and I
11
thank you for listening to me.
12
Thank you, your Honor.
13
Thank you, Counsel.
14
Thank you, Miss McNamara.
15
THE COURT:
16
Members of the jury:
17
Note pads.
MR. BROWNE:
19
microphone.
20
you said.
Your Honor, you need to use the
I don't think any of us could hear what
21
THE COURT:
22
MS. KOEHLER:
I couldn't hear you. Your Honor, the plaintiff is going
to call their first witness.
24 25
Our bailiff is now going to
hand you each a note pad --
18
23
Do we have the note pads?
THE COURT: pads.
Okay.
I need to hand out the note
Just a second.
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1
MS. KOEHLER:
2
Are you set up to play it?
3
Your Honor, I do need a side bar, while we're
4
Okay.
I'll wait.
waiting.
5
(At side bar.)
6
MS. KOEHLER:
Your Honor, Mr. Browne violated
7
motion in limine number F, which required an offer of
8
proof before claiming that Caleb paid off the
9
officers.
10
It's a direct violation of a motion in
limine.
11
THE COURT:
12
MS. KOEHLER:
13
THE COURT:
14
MR. BROWNE:
15
You say it was F? It was F.
Isn't that true? Your Honor, do you want to hear from
me?
16
THE COURT:
17
MR. BROWNE:
I've got it. As I indicated to you previously, I
18
was never given a copy of that document until -- I
19
didn't even know it was signed.
20
It's going to be in evidence.
21
THE COURT:
22
MS. KOEHLER:
Okay.
So what do you want to do?
Your Honor, that should never have
23
been said to the jury, and so either I should be able
24
to rebut it now or you should give a curative
25
instruction that that should not have been said in
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1 2 3
front of the jury. MR. BROWNE:
trial that money was given to Mr. Henry.
4
THE COURT:
5
MR. BROWNE:
6 7
It's going to come out during the
Would you say that again? It's going to come out during the
trial that money was given to Mr. Henry. THE COURT:
So your preference -- I think you're
8
right, I think it was a violation of the motion in
9
limine.
10
MS. KOEHLER:
11
THE COURT:
12
MS. KOEHLER:
13
THE COURT:
15
MR. BROWNE:
17 18
Do you want to talk to the jury? Yes, I'd like to have one moment to
have a rebuttal statement on this one topic only.
14
16
It was.
I think she's entitled. Well, what's going to happen when
the evidence comes out that it did happen? THE COURT:
I told you, you can make a lot of hay
with it.
19
MS. KOEHLER:
20
(In open court.)
21
MR. BROWNE:
22 23
Thank you, your Honor.
I think there's somebody on Webex
again, or is that the witness? THE COURT:
I don't know who that is.
24
I've got everybody muted, don't I?
25
one more time.
I think
I'm going to try
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1 2 3 4 5 6
Okay.
Can everyone hear me?
still passing out the pads.
I'm sorry, we're
Just a second.
Actually, why don't we stop that for just a minute.
I don't want anybody to take notes right now.
I'm going to give -- Miss Koehler is going to address you briefly once more in opening statement.
7
Go ahead.
8
MS. KOEHLER:
9
Any insinuation that Mr. Caleb McNamara bribed
Yes.
Thank you, your Honor.
10
the police in Belize is false.
11
first and foremost.
12
I want that to sink in
Secondly, things are done differently in Belize.
13
The whole story of what happened was that for a period
14
of time one of Miss Nessl's children had been in
15
Belize, but was deported.
16
very friendly with one another and there were some
17
outstanding expenses associated with that, like $150,
18
something like that.
19
Mr. McNamara paid it.
20
sitting right next to him when it happened.
21 22
She didn't want to pay it. Not only did he pay it, she was
So I just want to make it clear, any evidence or claim that Mr. McNamara bribed an officer is false.
23
Thank you.
24
(Excerpt concludes.)
25
And these people are all
*
*
*
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51
1
STATE OF WASHINGTON )
2 3
) ss. COUNTY OF GRANT
4 5
) C E R T I F I C A T E
I, TOM R. BARTUNEK, do hereby certify under
6
penalty of perjury under the laws of the State of
7
Washington that I am a licensed Certified Court
8
Reporter, duly qualified and certified as such by
9
the State of Washington;
10
That the said proceeding was by me recorded
11
stenographically at the same time and place herein
12
mentioned, and the attached 50 pages constitute a
13
full, true, complete and correct record done to the
14
best of my ability, including any changes made by
15
the trial judge reviewing the transcript;
16
That I am a disinterested person, not being in
17
any way interested in the outcome of said action, nor
18
connected with, nor related to any of the parties in
19
said action, or to their respective counsel, in any
20
manner whatsoever.
21
DATED:
March 16, 2022
22
/s/ Tom R. Bartunek
23
Tom R. Bartunek
24
Certified Court Reporter #2205
25
(tbartunek@grantcountywa.gov)
Tom R. Bartunek, RPR, CRR, CCR, CSR #2205 Grant County Official Court Reporter P.O. Box 37 Ephrata, Washington 98823 (509) 754-2011 Ext. 4198