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