Judge Conrad cleared his throat and spoke with a bit of a rasp. “Forgive my voice. I’m a little under the weather today.”
Even sick, the man was still loud enough that Jason figured if there had been anyone in the back of the courtroom, they would’ve had no trouble hearing. “As I understand it, the parties have stipulated to all matters set out in their respective pretrial motions other than the defendant’s motion to prohibit the introduction of evidence of any alleged extramarital affair on her behalf because it would be a violation of Rule 404 （b）’s ban on character evidence. That sound right?”
“Yes, Your Honor,” Shay said, standing.
“That’s correct, Your Honor,” Jason said, also standing.
“All right then, my initial inclination was to grant the motion, but, as I understand the state’s argument, they believe that evidence of Ms. Waters’s illicit relationships goes straight to her motive for committing the crime of murder. That sound right, Ms. Lankford?”
“Exactly, Your Honor. The state’s theory is that Ms. Waters was unhappy in her marriage as evidenced by her affairs with multiple men, including the killer of Dr. Waters, Waylon Pike. Evidence of Ms. Waters’s unfaithfulness is relevant to motive and should come in as an exception to 404 （b）。 I’d also add that the state plans to introduce evidence of the victim’s affair with a coworker, which also shows motive on the part of the defendant. The unfaithfulness on both sides of this relationship goes right to the heart of why Ms. Waters hired Mr. Pike to kill her husband.”
Judge Conrad ran a hand through his hair and looked Jason’s way. “And I’m guessing your argument is that it doesn’t matter. That the state is trying to introduce evidence of these affairs to demean her character and to make the jury think that since she was cheating on her husband, she had to have murdered him.”
“Yes, sir,” Jason said. “That’s pretty much it.”
“Well, I think I’m going to split the baby. I’m obviously going to allow any evidence of a relationship between Pike and the defendant, as that is materially relevant to the state’s claim that she hired Pike to kill Dr. Waters. I’m also going to allow evidence of Dr. Waters’s affair as well as any nonhearsay related to the parties’ separation and impending divorce. As to other affairs with additional suitors, Ms. Lankford, what’s the nature of that evidence?”
Shay frowned. “We have evidence that Ms. Waters had an affair with a man from Sand Mountain named Tyson Cade.”
Jason flinched at the sound of Cade’s name. Was the prosecution actually planning to call him to the stand? And if so, was it fair game for him to cross-examine Cade? That wasn’t a violation of his promise but would certainly seem to violate the spirit of it.
Conrad smirked. “This Cade fella is the local drug lord, right?”
Shay glanced at Detective Hatty Daniels, then back at His Honor. “He’s never been convicted of any crime, but—”
“But he’s the guy,” Conrad said.
Shay nodded. “There’s video surveillance showing Cade and Jana Waters both at the Hampton Inn on the night of the murder.”
“Are they seen together?”
“Not on the video.”
Conrad grunted and rubbed his chin hard. “I’m going to grant the defense’s motion with respect to any evidence of an affair by Ms. Waters beyond Pike. If the state wants to make a proffer during the trial, I may change my mind.” He eyeballed Jason. “And I’ll certainly switch tunes if the defendant opens the door to character, so I’d be careful if I were you, Mr. Rich.”
“Yes, sir.”
“Very well,” he said, standing and looking out at them. “I’ve set aside next week to be in Guntersville. We’ll start picking the jury at nine a.m. sharp on Monday. Does everyone understand?”
“Yes, Your Honor,” Shay and Jason said in unison.
Once the judge had left the courtroom, Shay Lankford approached Jason. “Mr. Rich, this is normally the time where I’d offer my best plea deal, but I can’t do that in this situation or I’d be run out of town. We’ll still be seeking the death penalty.”
“Understood,” he said, feeling a tad sick to his stomach. “With a witness with the credibility or lack thereof of Waylon Pike, I would have thought life in prison would at least be an option.”
“Would Jana take that?”
He frowned. “No.”