Dr. Ken Kulig was a toxicologist in Denver, Colorado, whom investigators interviewed by phone. Almost immediately after reading the clinical records and the test results, he appeared to be on board with what Morgan already knew.
“One of the things that he did confirm for me in our very first conversation was that Eric Miller should, based on his clinical record, . . . have survived the arsenic poisoning that he got on the night of the bowling-alley incident, ” Morgan says. “You end up dead, or you improve—I mean, there’s very little middle ground.”
Given the direction that Eric Miller’s health took— plummeting twice after he appeared to be getting better— Kulig agreed with Morgan that the theory of multiple poisonings appeared to be correct.
“If anybody could weather the effects of this toxin, it should have been somebody like Eric because he had not only the strength to survive, but obviously, from everything in his clinical records, had an extremely strong will to survive and to overcome this poisoning,” says Morgan. “That sort of became a cornerstone of this case. Kulig said emphatically that something happened to Eric once he got home.”
In a report to Becky Holt dated April 14, 2005, Dr. Kulig wrote:
I reviewed the autopsy results very carefully to determine if Mr. Miller died from arsenic poisoning or from something else. The analysis of his clinical course during this time period, his arsenic levels in multiple tissue sites, and the autopsy findings, are unequivocal as to cause of death. I completely agree with the office of the chief medical examiner that the cause of death was arsenic poisoning, and that there were at least two and possibly more instances of arsenic dosing in this case.
In the third scientist, Alphonse Poklis, Morgan found a kindred spirit and possibly the savior of the entire case. He was a big, burly, bearded toxicologist at the Medical College of Virginia who reminded Morgan of Shakespeare’s Falstaff, a jovial, gruff man who in one moment was effortlessly gregarious and, in the next, a total curmudgeon. Poklis was also a well-known expert on the topic of arsenic poisoning who probed the investigators as hard as they probed him.
“He may be
the
definitive authority on arsenic poisoning in the world,” Morgan states with enthusiasm. “Essentially, poisoning and arsenic is his world. Very few people in the world know as much about it as he does because he has studied it so hard for so long.”
Not unlike Kulig, Poklis immediately realized that the plunge that Eric’s health took after he was supposed to be getting better could mean only one thing: that Eric had been poisoned
again
.
“[Eric] had taken a long time to get over it, but at his age, and in his [state of] health, he was on the road and he should have stayed on that road had not somebody am-bushed him with an avalanche of arsenic that ended up putting him back in the hospital and eventually killing him,” Morgan recalls Poklis’s take on the case.
In a letter to Becky Holt dated April 16, 2005, Dr. Poklis wrote:
I agree with the autopsy report that Eric Miller, a 30-year-old white male, died as the result of arsenic poisoning. Post-mortem toxicological testing of liver tissue demonstrated that the arsenic concentration was elevated beyond normal values.
Morgan and Holt visited Poklis in Virginia, and at one point he came to North Carolina to pay them a visit. Morgan remembers the day Poklis walked into the grand-jury room at the Wake County Courthouse with vivid clarity. Morgan says Poklis was dressed in a college letterman jacket, a well-worn ski hat, and had a scruffy beard that looked like it was in desperate need of a trim. He recalls District Attorney Colon Willoughby at first thinking he was being tricked, that certainly this husky, disheveled man couldn’t be the preeminent scientist Morgan and Holt had been speaking about. But when Polkis started talking, everyone listened. It was clear that he knew his stuff.
“He would have been a very powerful witness for us,” Morgan says wistfully.
Would have
. . . like many other witnesses in the case, Poklis would never get a chance to tell a jury what he believed.
’TIL DEATH DO US PART
One of the key unanswered questions as investigators and prosecutors prepared for trial was whether this case would be a death-penalty case. In every first-degree murder case the prosecutor must decide if the state will seek the death penalty, or simply ask a jury to sentence the defendant to life in prison. In North Carolina this decision is always made before a case goes to trial in what’s called a Rule 24 hearing in front of a Superior Court judge.
In Morgan’s estimation, the death-penalty issue was problematic for several reasons. Although he personally believed a poisoning case certainly warranted the death penalty, from previous discussions with Eric’s family, Morgan knew that the Millers were very religious and probably not in favor of this type of punishment. He also knew that it might be harder to get a conviction if a jury had to consider putting the only remaining parent of a young child to death. But ultimately, the decision was up to the Wake County district attorney. Colon Willoughby would make the final call, and as long as the judge agreed with the decision, that would be it.
In anticipation of this decision Willoughby asked Morgan to set up another meeting with the Millers. In November of 2004, Verus and Doris Miller, their two daughters, sons-in-law, and grandchildren, all traveled to Raleigh to participate in the discussion. Morgan didn’t purposely keep them in the dark about what Willoughby wanted to discuss, but he didn’t go into detail either. He figured no matter what he said, the outcome would be the same.
They met in a conference room one evening at the brand-new Raleigh Police Department District 23 substation. Morgan couldn’t help but compare these swank digs with the dingy cubbyholes that he’d worked in for most of his career. But despite the bright new conference room, the topic of discussion was still destined to be dark.
“[Colon Willoughby] was very truthful and up front with the Millers. ‘This is probably a death-penalty case, but you have input. I want to know what your thoughts are,’ ” Morgan paraphrases the district attorney’s words.
Morgan says Willoughby explained the options, the death penalty or life in prison, and listed the pros and cons of each. Then he gave the family time to confer among themselves before they gave him their decision. Morgan felt it was exactly the right way to handle this delicate situation. It was in these moments that he understood why some people became cops and others became prosecutors. He admired good prosecutors and increasingly, as Morgan watched Willoughby in action, he decided this D.A. was one of the best.
“They [the Millers] didn’t want to take Ann’s life regardless of what she’d done to theirs and to Eric’s,” Morgan says. “They didn’t want to take it, but I’m sure in some ways they did want to see her pay a heavy price.”
Morgan had no problem with Ann Miller being sentenced to death, but it wasn’t
his
decision. He respected the Millers and their beliefs and knew that Willoughby would do the right thing. In some ways he was disappointed that it wouldn’t be a death-penalty case, but the more he thought about it, the more Morgan realized that maybe life in prison would be the ultimate punishment for someone who relished control as much as Ann did.
“I kept thinking, ‘What is the greatest punishment for this woman?’ ” Morgan says. “I’ve always thought that hell for a psychopath probably isn’t death nearly as much as it is sitting in a prison cell.”
RULE 24
On November 16, 2004, Ann Miller entered a Wake County Superior Courtroom wearing a navy jail uniform. From what Morgan could see from his second-row seat in the audience, she looked teary-eyed and weary. Once again he felt like she was playing the martyr for everyone, including television news viewers. She waved at the audience, presumably at her family and husband, like a beauty queen in the backseat of a convertible during a small-town parade. Her hand stiffly turned back and forth in an awkward motion as if to say: “You will not break me with your accusations, I am still a winner.”
Judge Donald Stephens asked District Attorney Colon Willoughby to proceed with his decision on whether or not he would seek the death penalty.
“Do you believe there’s no evidence of any aggravating circumstance or do you simply in your discretion elect to proceed non-capitally?” Judge Stephens asked Willoughby.
“Your Honor, there may be evidence from which there could be an aggravating circumstance, but after reviewing it, I have elected in my discretion to not seek the death penalty upon my review of the evidence and the totality of the circumstances,” Willoughby replied.
After the hearing, two things struck Morgan. First, he witnessed Ann Miller, whose fair skin was blotchy and tearstained by this point, mouth the words
I love you
to her husband, Paul Kontz, on her way out of the courtroom. To Morgan it was as if Ann was still in denial that she’d killed one husband, and now she had another one panting at her feet like a puppy dog. Second, as soon as the hearing was over, Nancy Brier, Ann’s mother, turned and extended her hand to Verus Miller, Eric’s father. He took it politely. The whole exchange lasted maybe two seconds, but to Morgan it was further proof of the Millers’ graciousness.
In the hallway, after the hearing, the media crowded around the Millers as Morgan stood in the background like a sentinel protecting the perimeter. He wore his trademark white fedora with a brown feather peeking out of the brim and chewed gum as he stood just behind Verus’s left shoulder.
“We feel that Eric did die an agonizing death and we do want justice for our son,” said Verus, his voice cracking with emotion as Morgan looked on, his angry eyes peering out just beneath the brim of his white fedora. “But as a family, we just weren’t for the death penalty.”
“We need to represent our son, there’s no one here now to represent him, and we’re going to be down here representing Eric. That’s what’s been for the past four years and it will continue [until] it’s all over,” Verus went on to say, looking like he was going to break down at any moment. Morgan continued to stand stoically at Verus’s side in case he was needed to run interference and help his friend get away quickly. Morgan nodded as Verus talked about the case going in the right direction.
“You don’t know where you get the strength from, you just get up in the morning and you have it,” said Verus. “I give a lot of credit to our family and friends that are continuing to pray for us.”
THE PRICE OF FREEDOM
On December 10, 2004, Ann Miller’s attorneys returned to court to ask Judge Stephens to set bond so that Ann Miller could be released from jail pending trial. While most first-degree murder suspects are not offered bond, in North Carolina it is up to the discretion of the judge whether or not to do so in any case.
It was a chilly winter day and Morgan’s disposition was also somewhat chilly at the thought of seeing Ann Miller in person again. But he did want to see how jail was affecting her. He hoped not well. Morgan took his place in the row behind the prosecutors’ table so that he could get a good clear view of Ann as she entered the courtroom. Naturally he sat with the Millers to lend them support. Respectfully, he took off his white fedora in the courtroom and put it on his lap.
This time Ann wore the standard uniform of the Wake County Jail, a gray-and-white-striped number. But instead of looking woeful and dejected, at the bond hearing she had a bounce in her step and new curl in her hair. Unlike the day of her arrest, when her strawberry-blond hair hung limply around her drawn face, it was now as curly and bouncy as a shampoo advertisement. Ann seemed perky, even bubbly, as she entered the courtroom and took a seat between her attorneys. To Morgan, it was just one more bizarre twist in the life and times of Ann Miller. Even after all of these years he still didn’t know what to expect from her.
In the days leading up to the bond hearing, Morgan had sensed that Assistant District Attorney Becky Holt and District Attorney Colon Willoughby were planning something big. He couldn’t put his finger on what it was, but he felt strongly that he was being kept in the dark about some very important strategy that was about to unfold.
The detectives who had worked their hearts out for Morgan on the case had sent thousands of pages of case files to the district attorney’s office. The D.A.’s investigator, Bill Dowdy, was in turn spending his days copying the files to send them to the defense team as part of the discovery process. Morgan couldn’t help but feel a little helpless as he watched the boxes, amounting to four years of hard work, sent off. It was like giving a newborn baby up for adoption. He almost felt compelled to wrestle the boxes out of Dowdy’s hands and run for the elevator. But it was the law, and Morgan knew it had to be followed.
“It’s a terrible feeling. You do all this hard work, you get all this information, and then you turn it over to somebody who’s trying to shoot holes in it,” Morgan confesses.
The defense testimony at the bond hearing was strong. Witness after witness testified that Ann had a full life in Wilmington, North Carolina, with her daughter, Clare, and new husband, Paul, and her stepdaughter. They told the judge that Ann was not a flight risk or a danger. They testified that she would never leave her young daughter under any circumstances, not even to escape prosecution.
“I think that her love for God and Paul and Clare . . . that she would never hurt them,” said Dan Brier from the witness stand on his daughter’s behalf. “She would definitely not be a threat to herself or to anyone in any way whatsoever.”
Her family and friends said they would make sure she showed up for court. Her new employers at PPD, the pharmaceutical company, said they would allow her to continue working pending the outcome of the case. To Morgan, things did not seem to be going well at all. Defense attorneys were making an admirable case for Ann Miller getting bond. Something had to turn this train around or Ann was going to be free again, free after so many years of hard work to get her off the streets.