7 | Runaway Train

Summary

Lords of Death: Episode 7 | Runaway Train
Released December 23, 2024

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Introduction

In Episode 7 of Lords of Death, titled "Runaway Train," host Thrasher Banks delves deeper into the complex and harrowing case surrounding the 1995 murder of Cindy Kozad in Dayton, Ohio. This episode meticulously unpacks the legal battles, personal testimonies, and lingering questions that continue to haunt those involved. Against the backdrop of the 1980s and '90s satanic panic, the narrative explores themes of memory, perception, and the elusive quest for truth.

Background of the Case

The murder of Cindy Kozad in Triangle Park became a high-profile case that implicated two men: Timothy Terrell and Mick McWhirter. Both were arrested and charged with the brutal killing, which involved a series of gunshots that left Cindy partially clothed in a picnic shelter. The case drew significant media attention, setting the stage for a prolonged legal battle that would test the resilience of everyone involved.

The Trials of Timothy Terrell and Mick McWhirter

Timothy Terrell's Trial

Timothy Terrell's trial began in March 1996, with prosecutors presenting an overwhelming case against him. The prosecution's narrative was built around Terrell's written confession and the physical evidence linking him to the crime. As Carl Goreleski, Terrell's attorney, explains:

"[16:03] Carl Goreleski: But anytime you have more than one person charged in an offense, you run the risk of running into a situation in which the police have already played one person off against another. ... Tim was not a rookie in terms of facing the force, the course of tactics that police employed back then."

Despite the formidable evidence, Goreleski pursued a defense strategy that questioned the legality of Terrell's police interviews and alleged violations of his constitutional rights. However, delays in the legal process led to motions to dismiss based on the right to a speedy trial, ultimately resulting in Terrell facing the jury.

Mick McWhirter's Trial

Mick McWhirter's trial followed shortly after Terrell's conviction. Unlike Terrell, Mick's case lacked direct evidence linking him to the murder. His defense, led by Chuck Smiley and Isabel Cerrose, aimed to portray Mick as a man coerced into involvement by Terrell. As Isabel Cerrose recounts her initial reluctance to engage with the case:

"[06:21] Isabel Cerrose: We spent an evening in her office talking about the case and smoking a few too many natural American spirits. ..."

The defense strategy hinged on demonstrating that Mick acted under duress, fearing for his family's safety. This approach sought to humanize Mick and cast doubt on the prosecution's assertions.

Defense and Prosecution Strategies

Prosecution's Approach

The prosecution against both Terrell and McWhirter relied heavily on eyewitness testimony, confessions, and physical evidence. For Terrell, the cornerstone was his written confession and the blood evidence linking him to the scene. Similarly, in Mick's case, although lacking direct evidence, the prosecution presented testimonies from witnesses, including Thrasher Banks' mother, Carrie Shields.

"[22:46] Carl Goreleski: ... Ms. Shields testimony was inherently suspicious by virtue of her relationship with the co-defendant. ..."

Defense's Approach

For Terrell, the defense challenged the prosecution's methods, questioning the legality of his interrogations and seeking to suppress evidence obtained through potentially coercive tactics. In Mick's defense, the focus shifted to portraying him as a victim of Terrell's intimidation, emphasizing his fear for his family's safety.

"[10:37] Chuck Smiley: Tim is a scary dude, but Mick was not really open going deep into what made him fear Tim. ..."

Key Testimonies and Witnesses

Carrie Shields

Carrie Shields, Thrasher Banks' mother, served as a pivotal witness for both defendants. Her testimonies were crucial in shaping the narratives presented in court. Initially cooperating fully with law enforcement, her role became increasingly contentious as she found herself in the middle of both trials.

"[12:02] Carrie Shields: ... Matt Heck and I, we ended up getting into quite the argument because he just kept saying that I knew more and that I was hiding stuff. ..."

Juror Insights

To provide a unique perspective, Thrasher Banks interviewed a juror from Mick's trial. The juror's recollections highlighted the complexity and emotional weight of deciding another person's fate based on the presented evidence.

"[27:28] Juror: ... The story we heard from the prosecution is the story we're hearing from the defense. ..."

Verdicts and Sentencing

Timothy Terrell

The prosecution's robust case led to Terrell's conviction, resulting in a 15 to life sentence. Despite his attorney's efforts, the overwhelming evidence and strategic prosecution made the conviction inevitable.

"[24:39] Thrasher Banks: The Dayton man involved in the murder of a prostitute last summer has been found guilty. Timothy Terrell has been sentenced to life in prison for the shooting death of Cindy Kozad in triangle park last June."

Mick McWhirter

Mick McWhirter's trial was more contentious. Despite the defense's efforts to portray him as coerced, the jury found him guilty of murder, sentencing him to 30 years to life.

"[43:37] Thrasher Banks: As the jurors re-entered the courtroom, the reality of the situation took hold. Their decision meant that Mick could end up in prison for the rest of his life."

Aftermath and Lingering Questions

The convictions of Terrell and McWhirter left many questions unanswered. Thrasher Banks, driven by his discovery of the memory box and the ensuing investigation, continues to seek the truth behind the murders and their possible connections to other unsolved cases.

"[47:14] Thrasher Banks: I understand why Isabel feels this way. ... But as I dug through the remaining contents of the box, I found something that would bring more clarity to the situation than ever before."

Concluding Insights

"Runaway Train" underscores the intricate interplay between legal strategies, personal testimonies, and the pursuit of justice. It paints a vivid portrait of a family caught in the whirlwind of a high-stakes murder trial, highlighting the emotional and psychological toll on those involved. As Thrasher Banks continues his quest for truth, the episode leaves listeners contemplating the fragility of memory and the complexities of human perception in unraveling the mysteries of the past.

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Notable Quotes

• Thrasher Banks [00:08]: "Oh no, not before the holidays. Getting a cold is on no one's wish list."
• Carrie Shields [02:27]: "From the time that the murder happened until the time of trial, I cooperated 100% with the police and detectives."
• Chuck Smiley [05:25]: "Charles was cool about it. He was."
• Carl Goreleski [22:46]: "Ms. Shields testimony was inherently suspicious by virtue of her relationship with the co-defendant."
• Juror [27:28]: "The story we heard from the prosecution is the story we're hearing from the defense."
• Mick McWhirter [35:57]: "I blame myself so much for that. I wish to hell I never gave in to him on that."
• Juror [39:43]: "The question wasn't, was he telling the truth or was he afraid? The question was, were his actions directly engaged in the actions that resulted in this woman's death?"
• Thrasher Banks [45:38]: "It was my understanding that Carrie would be arrested and the kids would be put in Children's Services if I didn't cooperate with the investigation."

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Final Thoughts

Runaway Train serves as a poignant exploration of a family entangled in a web of legal battles and personal turmoil. Through meticulous storytelling and in-depth interviews, Thrasher Banks sheds light on the enduring impact of Cindy Kozad's murder on those left behind. As the investigation progresses, listeners are invited to reflect on the nature of justice, the reliability of memory, and the profound quest for truth that defines the human experience.

Transcript

[Carl Goreleski]

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[Thrasher Banks]

Oh no, not before the holidays.

[Carl Goreleski]

Your cold is coming. Your cold is coming.

[Thrasher Banks]

Thanks Revere. I really should keep Zycam in the house. Getting a cold is on no one's wish list.

[Isabel Cerrose]

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[Andy Sievers]

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[Thrasher Banks]

Death is released weekly every Monday and brought to you absolutely free. But if you want an exclusive ad free binge, sign up for Tenderfoot Plus. Check out the show notes for the link to subscribe.

[Payne Lindsay]

You're listening to Lords of Death, a production of Tenderfoot TV in association with Odyssey. The views and opinions expressed in this podcast are solely those of the individuals participating in the podcast. This podcast also contains subject matter which may not be suitable for everyone, including themes of murder and sexual violence. Listener discretion is advised.

[Thrasher Banks]

From the moment Tim Terrell moved in with us in Dayton, my mom, Carrie, found herself in a situation without an easy out. There didn't seem to be a way to get Tim out of our lives. Then the murder happened and her dreams of building a life with Mick vanished overnight. But given the circumstances of the murder, she believed Mick had a chance to beat the charges in court. Since she was the closest person to both defendants, she was set to play a major role in both Mick and Tim's trials. So once again, she'd find herself right in the middle of it all.

[Carrie Shields]

From the time that the murder happened until the time of trial, I cooperated 100% with the police and detectives. I would go downtown and they would go over like what questions they were going to ask me during trial and they wanted to know like how I was going to answer because they didn't want any surprises in court.

[Carl Goreleski]

I think Ms. Shields testimony was inherently suspicious by virtue of her relationship with the co defendant. The fact that part of her story was spun in a way to absolve a man that she cared for of responsibility.

[Chuck Smiley]

It's never just black and white. That's not how we, we operate. Maybe we're looking at the same flower but seeing a different color. That's when the truth becomes a more abstract idea.

[Juror]

Was he telling the truth? I think everybody in the jury room felt like a.

[Andy Sievers]

Yes.

[Juror]

Telling the truth. Was he afraid? I think everybody in the jury room felt like he was afraid. But the question wasn't was he telling the truth or was he afraid? The question was, were his actions directly engaged in the actions that resulted in the this woman's death?

[Thrasher Banks]

Mick's fate was in the hands of a jury. It was up to them to decide whether Mick's role in the murder of Cindy Kozad should put him behind bars for 30 years to life.

[Carrie Shields]

And I will never forget the look on his face when he turned around and looked at me. The verdict was red. And I don't think either one of us thought that that was going to happen.

[Thrasher Banks]

From Tenderfoot tv, I'm Thrasher Banks. This is Lords of Death. After Mick and Tim were arrested In June of 1995, we moved in with my grandparents in the suburbs a few miles north of Dayton. I was only six at the time, but could see how much it was affecting my mom. As much as I tried to be a normal kid and distract myself, it was hard to escape. Even though Mick was in jail, he was still a big part of our lives. He'd send us letters and we'd talk to him on the phone almost daily. We even went to visit him in jail. I still remember taking the elevator up and following a line of blue tape on the floor to the visitation room. Mick was behind glass, so we talked to him through a telephone and put our hands on the glass against his. He'd tell us not to worry, that he was going to win his trial and come home soon. He had good reason to believe this too. Since Cindy's murder was high profile in the local media, he got to choose from several attorneys who were willing to take on his case free of charge.

[Mick McWhirter]

That's when Charles Smiley came along and I told him what was up. He said, we'll tear him part on the stand. That's what he said. Charles was cool about it. He was.

[Thrasher Banks]

Charles Smiley was a well known attorney in the 1970s. He became the first black vice president of CBS Sports before moving to Hollywood in the 80s to broker movie deals. And manage musical acts like the Commodores. He was a Dayton native and moved back here in 1990 to raise his son Kier, who just happened to be in the same kindergarten class as me.

[Mick McWhirter]

And immediately. I don't know why, but I took a liking to him this way. He sounds sincere. He said, they're gonna screw you on this case. You know that, right? He said, I done talked to a few detectives and whatnot. He said, I already know the game. He said, they're gonna try to screw you. They don't like you. They don't like the fact that you didn't call the police that night. He pretty much told me. He said, I'm gonna do what I can to prove your innocence. But he said, I'm gonna tell you now, I don't look good. That's what he told me. And then Isabelle Cerrose. I met her later, maybe two days later.

[Thrasher Banks]

I first learned about Isabel when I found her business card in the box my mom gave me. I knew if I wanted to learn more about Mick's defense at his trial, I needed to get a hold of her. We spoke once on the phone, and after that, she stopped returning my calls. Until one day, to my surprise, she was ready to talk.

[Chuck Smiley]

And so after two years, when you called this morning and I was getting ready to go to court, I told you, let's do it today or never. I wasn't trying to avoid you personally, I think I was trying to avoid having to. My waters run very deep, and this case runs very deep in my conscious and subconscious, you know.

[Thrasher Banks]

We spent an evening in her office talking about the case and smoking a few too many natural American spirits. She told me about growing up in Cuba after the communist revolution before fleeing to the United States in the late 1960s. She graduated from the University of Dayton in 1984 and has practiced law here ever since.

[Chuck Smiley]

At the time of Meg's trial, I worked with Chuck Smiley, and I was second chair on the case. Chuck and I were just meant to be great friends. Chuck was a tremendous mind, and he had traveled a lot, and I've traveled quite a bit. So I think that was the first thing that united us. And we were both back in Dayton after being away for many years. It wasn't too long after that that we made a decision to work together and did so for many years. And as you know, he has passed now.

[Thrasher Banks]

How did you end up taking on Mick's case?

[Chuck Smiley]

I'm not sure at this point how that case came to our office. I was primarily responsible for knowing who make is within the context of his actions, but more importantly to me, who he was, what was his past, what brought him to the situation in which he found himself. So I was primarily the person that went to jail to see him and to have extensive conversations with them before.

[Thrasher Banks]

Taking on Mick as a client. Isabel had never worked a murder trial before. The gravity of the situation hit her when she went to interview Mick for the first time in the Montgomery county jail.

[Chuck Smiley]

It was the first time that I was in the old side of the jail where they kept the defendants accused of pretty heavy duty crimes. So you go through this elevator where you're escorted by a guard and they put you in a room. Soon after that, a guard brought Mick. Mick was tall, young, handsome, direct. I stood up when he entered. We shook hands, and I think it was the first time that hit me. My God, I'm talking to someone that potentially killed another human being. And they locked us in. But I think within 10 seconds of just seeing him eye to eye and feeling his hand shake, all my fears, if there were any, disappear. I felt completely comfortable, and we were able to engage very easily. There was something almost childlike about Mick. Like I said, I looked at him more as an unfinished man. Let's recall he has spent important growth years in prison. He became emotional primarily when we talked about what this was doing to his girlfriend. They were both twin souls in the sense of their commitment to each other. When he was talking about the case, it was stoic At a very visceral level. I felt he was telling me the truth.

[Thrasher Banks]

Isabel knew that the only chance Mick had of beating the charges was to make the case that Tim was the leader in the situation and that Mick was coerced and under duress. This type of defense uses a pattern of evidence to illustrate that a defendant's actions resulted from threats or intimidation.

[Chuck Smiley]

Tim is a scary dude, but Mick was not really open going deep into what made him fear Tim. But I certainly knew that there was, and it was primarily the potential consequences of harm to your mother. She was the closest to the two of them in terms of what transpired that night in the subsequent days day. So her opinion was very important to me. I was immediately connected with her, primarily my empathy. She was not well. She was devastated. It's that kind of situation where you want to hear every word because she needs to let go of everything that she's been holding. She, too, needed to be made whole. Throughout this whole journey that we were embarking upon.

[Thrasher Banks]

Nick and Tim's cases were set to be Tried separately by Montgomery county Prosecutor Matt Heck Jr. S office. Since my mom was close with both defendants, she played a major role in both trials. Even though she cooperated with law enforcement, she doesn't have fond memories of her interactions with Matt's office during the entire year.

[Carrie Shields]

From the time that the murder happened until the time of trial, I cooperated 100% with the police and detectives. Anytime they showed up at my house, I would let them take me downtown for more questioning. Or, like, as it got closer to trial, I would go downtown, and they would go over, like, what questions they were going to ask me during trial, and they wanted to know how I was going to answer because they didn't want any surprises in court. They kept harassing me. Like, Matt Heck was saying, we know you know more. And I kept telling them, you know, for a year, my story's never changed. Maybe timelines changed because I can't remember, like, maybe the order that something happened. But what happened and what I was told never changed. It was always the same because it was the truth as I knew it. Since I wasn't present when she was murdered, I could only tell them what I had been told. Matt Heck and I, we ended up getting into quite the argument because he just kept saying that I knew more and that I was hiding stuff. So I told him, you know, I'd cooperated from the beginning, that I was done cooperating, and I would see him in court. And I got up and walked out of his office. Office. As I was walking away, he kept yelling, make her a material witness. Make her a material witness. And I didn't even know what that meant at the time.

[Thrasher Banks]

A material witness is someone with information or evidence crucial to the prosecution giving a witness. This designation allows for a judge to put them in jail before the trial.

[Carrie Shields]

So I just ran to the parking garage where I was parked and called my attorney, Andy Sievers. And he told me to not go back to Matt Heck's office, to get to his office immediately. So I did, and he explained to me what a material witness was. That meant that Matt Heck wanted to put me in jail so I could have no further contact with the accused until after the trial.

[Thrasher Banks]

My mom's attorney talked the prosecutor's office out of this, so she avoided going to jail before the trials. Tim's trial was up first and set to begin in March of 1996, where he'd face charges for aggravated robbery and aggravated murder. He was represented by the Montgomery county public defender's office.

[Carl Goreleski]

My name is Carl Goreleski. I've been a lawyer since May of 1983, and in this case involving Tim Terrell, I was employed by the Montgomery County Public Defender's office when the case was indicted and I was appointed to represent him. There wasn't anything about my initial interview with him that struck me as being out of the ordinary or unusual. He seemed like a reasonably bright young man who was facing some very serious charges at that time. The crime of murder in the state of Ohio was, I believe, carried a sentence similar to today of 15 to life between the two. Between Tim and his co defendant. I would say that the co defendant was the follower in the situation as opposed to Tim. Tim just seemed to have his own path. McWhorter seemed maybe not as sure as the path that he wanted to go on. I'm talking about a path in terms of an approach to life in general. And I'm not suggesting that to that Tim's path of life was, you know, to break the law. But I think that he. When he went into a situation, he went into it with plans. Terrell seemed to be the more mature in a sense, than McWhirter. McWhirter seemed a lot more driven by fear.

[Thrasher Banks]

Carl realized they had a steep mountain to climb to beat the charges against him. For one, he knew Wade and Tom Lawson had a reputation for their effectiveness as homicide detectives. This was complicated by the fact that Tim wasn't the only person charged.

[Carl Goreleski]

But anytime you have more than one person charged in an offense, you run the risk of running into a situation in which the police have already played one person off against another. The information we have is from somebody else. We don't have to tell you who that is, but you better get your story out right now. I think to most people, that presents a very tempting opportunity to say, okay, I'll talk to you. That type of coercion was alive and well back in 1995. Tim was not a rookie in terms of facing the force, the course of tactics that police employed back then. So it was not exactly an unfair fight. On the other hand, we did challenge the legality of the interview that was done with Tim.

[Thrasher Banks]

Despite knowing that his client, Tim was more than capable of defending himself against the Lawson's aggressive approach, he still hoped to leverage the questionable tactics in Tim's favor.

[Carl Goreleski]

We filed what's called a motion to suppress. The motion to suppress alleges that in the course of the interview done by the police, there were certain constitutional rights that Tim had that everybody has that were violated. The value in doing that is to kind of hold the police's feet to the fire. The police officer's story about what happened during the interview is talked about in open court. And if it's talked about in open court, then that means it's talked about under oath.

[Thrasher Banks]

With all the delays following the initial motion, Tim's defense felt that enough time had passed that Tim's right to a fair and speedy trial was violated. So they filed a motion to dismiss the case entirely.

[Carl Goreleski]

It was Judge Dodge, I believe, who ruled on the motion to dismiss based on speedy trial. And I don't recall exactly whether he found that the delay was not unreasonable or if he found other reasons to overrule the motion. But he did, which meant that Tim was faced with the option he can either plead as charged or go to trial. I recommend to clients all the time go to trial. Trials are curious things. They're made up of an enormous number of variables that go into trials, certainly many, many more variables than are present when an individual simply says I'll agree to plead guilty to the charge. So Tim was faced with I can either go to roll the dice and go to trial. If I lose, I lose, but at least I will have the record of a trial.

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[Thrasher Banks]

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[Carl Goreleski]

The prosecution begins its case today on the burglary murder trial of Timothy Terrell. Prosecutors say Terrell gave police a written confection and the shooting death of Dayton prostitute Cindy Kozad.

[Payne Lindsay]

Timothy Terrell is one of two men.

[Thrasher Banks]

Accused in the fatal shooting of Cindy Kozad. The prostitute's body was found partially clothed in a picnic shelter in Triangle park last June. Terrell's attorney says his client admits to shooting Cozad, but he says it was not that bullet that took her life. Tim's trial began in March of 1996. The prosecution was led by attorneys Tom Schiff and David Franceselli.

[Carl Goreleski]

Tim, during the course of a trial was well behaved. He did not take the witness stand that I recall and I don't think that his co defendant was called either. I don't recall cross examining him. So the question that we had to answer, and we answered this talking to Tim as well was what can you add to the case? You know, you can get up there and say I didn't do it and whatever. What about cross examination? How well is that going to fare? What kind of harm could be done to the case? And we decided that it was not worth the risk to have him take the witness stand.

[Thrasher Banks]

The evidence against Tim was overwhelming. The murder was committed with his 357. Cindy's blood was all over his clothes and shoes. They had his written confession so the state based their argument on that account. Their story was that Mick shot Cindy twice and then handed the gun to Tim and he shot her once. After that, Tim stated that Mick took $20 out of her pocket, that there was really no way to dispute the aggravated robbery charge. On top of that, they had my mom provide a first hand account of the aftermath.

[Carl Goreleski]

I think Ms. Shields testimony was inherently suspicious by virtue of her relationship with the co defendant. The fact that part of her story was spun in a way to absolve a man that she cared for of responsibility even if you didn't believe a lot of what she had to say the bottom line. And what she had to say was it still put Tim in the case, Codefendant in a proximity to Ms. Kozad.

[Thrasher Banks]

After the state rested their case, it was the defense's turn to make a case to the jury for why Tim should be found not guilty. Despite the overwhelming evidence against Tim. Carl offered a logical explanation for why Tim wasn't guilty of aggravated murder.

[Carl Goreleski]

Our theory at that point in time was that he was shooting a dead body and that that would be abuse of a corpse, as macabre as that sounds. Coroner argued with me, I think, about whether or not she was dead at the time of the firing. I still think it's quite likely that she was dead if he was the one that pulled the trigger last.

[Thrasher Banks]

The coroner disputed this and testified that he was reasonably certain, Based on the hemorrhaging of the gunshot wounds, that Cindy was alive when she was shot all three times.

[Carl Goreleski]

The jury focused on the fact that he was a very sympathetic young woman who was obviously lost. She put herself at risk, and I think that made it possible for the jury to look upon her as these guys preyed on her, and hard to get sympathy for somebody in a situation like that. But I think the jury looked at the situation and said, look, she's dead. We have a dead body. We're certain of that. He was there as part of it, either as the guy that pulled the first shot or the second shot. Perhaps if we had tried the case to a judge, we might have gotten a different result, but nevertheless, we didn't. It was our choice to try it to a jury. And the jury came back and found as they did.

[Thrasher Banks]

The Dayton man involved in the murder of a prostitute last summer has been found guilty. Timothy terrell has been sentenced to life in prison for the shooting death of Cindy Kozad in triangle park last June.

[Carl Goreleski]

Once the jury came back and found Tim guilty, the next thing was the sentencing. A sentence of 15 to life. I have represented individuals who have been sentenced 15 to life and who have gotten out of prison. I don't know if that's the case with Tim or not. I've never heard from Tim since that time. I don't know whatever happened to him.

[Thrasher Banks]

After Tim was convicted for the murder of Cindy Kozad in. In April of 1996, the prosecutors were gearing up for mixed trial that was set to begin the next month.

[Carrie Shields]

Tim had already been convicted, and I cooperated with them to the fullest. They were trying to prep me for mixed trial. I've always said that our justice system is flawed. And this showed me firsthand how it is. Then they had, like, a script. This is the question we're going to ask you. This is what we want you to say. Well, I didn't like that because it was very misleading the way things were worded. And don't ask me for specifics because I can't tell you. But I wanted to be able to speak in my own words, not theirs.

[Thrasher Banks]

There was good reason for the prosecution to keep to a script. My mom was to be called as a witness for the state and the defense. And the state's narrative about the murder wasn't going to be the same story they told at Tim's trial. At Mick's trial, Brad. The state argued that Tim shot Cindy first and that Mick shot Cindy once after she fell on the floor. Mick was facing a murder charge. Tampering with evidence for burning Cindy's shorts and two counts of weapons under disability for possessing a firearm as a convicted felon.

[Carl Goreleski]

Opening arguments today for the second of.

[Thrasher Banks]

Two men charged with killing a woman in a Dayton Park. James McWhirter is accused of killing Cindy Kozad last summer in Triangle park apart. Prosecutors say the men took turns shooting the victim.

[Unknown]

And you're going to see pictures of her practically naked, totally defenseless. And after shooting her, they left her there to die.

[Thrasher Banks]

McWhorter's lawyer says his client was just.

[Juror]

In the wrong place at the wrong.

[Carl Goreleski]

Time, and he was just driving him.

[Thrasher Banks]

At the time this incident happened.

[Juror]

He witnessed it, but he claims that.

[Thrasher Banks]

He had nothing to do with the actual shooting, had did not know that.

[Carl Goreleski]

It was going to take place and didn't participate in it.

[Thrasher Banks]

Nick's defense decided against negotiating a plea deal with the prosecutors, so his fate was in the hands of a jury of his peers. I tracked down one of those jurors to get a firsthand account of their experience in the courtroom.

[Juror]

This all happened, what, 25 or so years ago, and memories have a tendency to fade and flow buzz over time. The question is, what am I thinking as I'm seeing the photographs of the actual murder scene? And there's a defendant here in front of me? Heavy is a good word for having to look at a live, if you will, murder scene. This isn't television. You've seen things like this your whole life. But when you're looking at the screen, you're realizing this is. This is a real human being. We've heard a story of how she and he, they got into this position. We haven't been told that he Specifically did anything. Although there's certainly a presumption here that he's involved somehow. The evidence that was presented to us pretty much matched a story that the prosecution told and ultimately that the defendant told. And I think that's really important.

[Thrasher Banks]

None of the direct evidence presented was damning to Mick's case, at least not for the murder charge. There was no blood found on any of his clothing, and he didn't write out a confession like Tim did. Mick's attorney, Chuck, even made the case that the investigation was biased against Mick because the detectives chose not to test Tim's.357 for fingerprints, which would have weakened their case if his fingerprints weren't present. Since the prosecution didn't have any direct evidence of Mick's involvement like they did at Tim's trial, they relied on witnesses to make their case. First up was my mom, Carrie.

[Carrie Shields]

At Tim's trial, they let me say whatever I wanted. They just let me talk freely. Mick's trial. As soon as the questioning started and they didn't like what I was saying, prosecution was telling the judge they wanted to make me a hostile witness. Like they would ask a question. Did Mick say he shot Cindy Kozad? Well, the answer is yes, he did say that, but this is why he said that. And then they would stop me, so they. They labeled me a hostile witness. So I could only answer yes or no, which was completely unfair because the fear couldn't be explained. Mixed fear couldn't be explained. Nothing could be explained.

[Thrasher Banks]

It.

[Carrie Shields]

It made it a very unfair trial.

[Thrasher Banks]

My mom's testimony confirmed that Cindy's shorts were found in her car, that Mick burned them, and also that he owned a P32 handgun. This account gave the state a solid case for three of the four charges Mick was facing. She also testified that Mick told her that he accidentally shot Cindy in the car. We know this isn't possible based on the evidence and the crime scene. Mick's defense decided against cross examining my mom because they planned to call her as a defense witness at a later date. The last two witnesses to testify for the state were Detectives Wade and Tom Lawson. They both testified that Mick confessed multiple times to shooting Cindy.

[Juror]

My recollection of the interrogation was they have the defendant, McWhirter in the room, and they're asking questions. At some point, fairly quickly in this, he wants to talk and explains that, okay, here's what happened. We were with the girl. She had finished her role in this process, and Terrell pulls out a gun, and he shoots her. And our guy, McWhirter is stunned. And then McWhirter or excuse me, then Terrell hands McWhirter the gun and says, okay, now you do her. And he doesn't know what to do. He's not really sure. Not facing a lot of choices. He says he shoots her in in the wing and satisfies his friend. And then they clear out and they head home. McWhirter's position throughout was that he was afraid for his life.

[Thrasher Banks]

After the Lawsons testified, it was now up to the defense to make a compelling case that Mick wasn't guilty of murder. Their strategy was to prove that Mick was afraid of Tim and under duress following the murder. To everyone's surprise, the witness they called to the stand was Mick.

[Chuck Smiley]

I do remember begging him not to take the stand, pleading with him, and went to Chuck and said, you must talk to Mick. And it wasn't because I was afraid that he wouldn't tell the truth. It's just that I think he was not and I don't know that anybody and sophisticated enough to withstand a good hearty cross examination. I was livid. I was opposed to it. It wasn't up to us to prove his innocence. And by doing so, it opened the door to things that that Joy should have never listened to.

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[Andy Sievers]

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[Carrie Shields]

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[Thrasher Banks]

Nick's testimony at the trial was almost identical to the video statement he recorded with Wade Lawson. When I sat down with him a few years ago, I looked at him directly and asked him to tell me exactly what happened that night.

[Mick McWhirter]

I blame myself so much for that. I wish to hell I never gave in to him on that. I gave in. That's where I fucked up. I felt sorry for him. I did Triangle Park. She mentioned that. I'm like, okay, make it quick. 20 minutes. That was the deal. I sat there and waited on him. Still another five minutes go by. I said, that's why I'm going down there. Just tell him, let's get out of here. Let's go. As I was approaching the shelter, I could hear, hear him talking. It got louder, louder as I approached and they were arguing. That's what threw me. I said, come on, man, we need to get out of here, so just give me a minute. And she was one money. So I'm thinking, they do this already, you know, perilous guy, you know? And she got to say, come on, man, pay me, motherfucker. Or that's all she got to say. And before I know it, two shots. Did two more shots.

[Thrasher Banks]

After this. Mick said he jumped out of the window of the shelter and ran back to the car. On the way there, he tripped over a metal chain near the parking lot and fell to the ground. He testified that Tim approached him with a.357 and threatened him. He wanted him to shoot Cindy, too, so he knew he would stay quiet. Mick claimed that he refused to do this. And after that, they left on their way home. Mick said Tim was irate and screaming. Then Tim turned around to see if Cindy left anything in the backseat while doing this. The.357 that was tucked in the back of his pants went off and struck the car door, shattering the window.

[Juror]

As we're listening to the defendant speak, I think most interesting or surprising or compelling, you know, pick your word, is that he's not changing the story. The story we heard from the prosecution is the story we're hearing from the defense. And because of that, there is a sense, a strong sense that he's telling the truth as it happened by the evidence, as he told the detectives in the interrogation.

[Thrasher Banks]

And to us, Mick's account wasn't just consistent. It also aligned with the details of the crime scene. After the first shot struck Cindy, he testified that she fell face first onto a picnic table. Moments later, Tim fired another shot, striking Cindy in the back of the head. There was blood on the picnic table to back up this claim. Mick said at that point, he heard two more shots. All three gunshot wounds had stippling. What that means is the shooter was less than a few feet away when he fired the shots from there. Nick describes what happened when they arrived back home and were confronted by my mom. He explained why. He told her that he was the one who shot Cindy. I felt scared for Carrie because Tim was agitated and she knew that a girl had died. So to keep Tim calm, I said, okay, I killed a girl tonight. I couldn't say we. If I said we, we probably would have both died immediately, end quote. But what about the fact that he told the detectives several times that he shot Cindy? The defense argued that he was coerced by Wade and Tom Lawson. Mick testified that, quote, it was my understanding that Carrie would be arrested and the kids would be put in Children's Services if I didn't cooperate with the investigation. So I was going to do whatever it took to protect the kids and Carrie. From this. End quote. Wade and Tom denied this during their testimony.

[Juror]

Was he telling the truth? I think everybody in the jury room felt like a. Yes. Telling the truth. Was he afraid? I think everybody in the jury room felt like he was afraid. But the question wasn't, was he telling the truth or was he afraid? The question was, were his actions directly engaged in the actions that resulted in this woman's death?

[Thrasher Banks]

After Mick left the stand, the defense called one more witness before resting their case. My mom. Rather than rehash the same details covered when she testified for the state, Mick's attorney, Chuck, had Carrie lay out the reasons why she knew Mick was afraid of Tim. On the night of the murder, after they took me and my sister into their bedroom, Mick barricaded the door and sat on the edge of the bed with a shotgun. She then detailed their plan for Mick and Tim to leave and go to Cambridge. She testified that, quote, mick and I had decided that he would come back from Cambridge. We would get the kids and go to police and tell them what happened, end quote. Mick echoed the same plan in his testimony.

[Juror]

Did the girlfriend's testimony influence or even resonate with me? My recollection sitting here was that a girlfriend testified but had no direct impact in the decisions we made.

[Thrasher Banks]

After my mom left the stand, the defense rested their case, and the judge instructed the jurors. They were told that to find Mick guilty beyond a reasonable doubt, the state had to prove that Mick had specific intent to cause the death of Cindy Kozed. If they found he was not guilty of that, they then had to consider if he aided and abetted Tim, knowing that he was facilitating the crimes. Being present at the scene of the crime wasn't sufficient to prove that Mick was guilty. He added, they also had to find Mick guilty if they determined that his failure to act caused the death of Cindy Kozad.

[Juror]

My recollection of going into the jury and how that played was the first hour or maybe hour and a half was just kind of weird. And we had a couple of early votes where we were at 8, 9. Here's the situation. Do you feel like he's telling the truth? Unanimous across the room. There really wasn't any hesitation there. Do you feel like he murdered this young woman? There were several people who said, well, no, his shot wasn't the kill shot. Okay, that's Great. But we went back to our instructions, and we weren't being asked to define if he killed. Killed the woman. Did his actions directly impact and result in the death of this woman? And there wasn't really any way to get past the framing of that question. So we would look at that and then we would talk about it. Regardless of who did what, a young woman was killed over 20 bucks with little remorse from either one. One of the things that kind of came out in our jury conversations was, you know, the fear factor. I was afraid he was going to kill me right there. But you know what? It was like three or four days later. You had a whole lot of time get things in order, make a phone call, protect people, and say, I need to talk to somebody right now. If that's all true, it was just another bad decision. And over the course of the next two hours or so, we get it down to one individual. And they were struggling with this. This concept of, but he didn't kill her. I can't convict this person when he didn't kill her. We're being asked if this happened. And by your own thoughts and comments, you've kind of agreed that, yeah, he's telling the truth. And, yeah, then this happened and he's shaking his head. So we talk about it a little bit longer, we get him comfortable, and we take another vote. And okay, so now we're unanimous. 12.

[Thrasher Banks]

As the jurors re entered the courtroom, the reality of the situation took hold. Their decision meant that Mick could end up in prison for the rest of his life.

[Juror]

There's a couple things that are going on, at least with me personally, at this time when we're coming back in and we've made our decision. The first is a genuine sense of sadness for this guy McWhirter. You feel like he felt like he had no options and you would like to have been able to toss him some sort of bone. And you hope the machine might find a way to. To mitigate those other circumstances or to take them into account. But that's not what we were asked to do.

[Thrasher Banks]

While the jury spent the better part of eight hours deliberating, my mom waited anxiously with Chuck and Isabel at a nearby restaurant. Finally, at close to midnight, they got the call to come back to the courthouse to hear the verdict.

[Carrie Shields]

So we went to the courthouse, and it was just us and the judge and a bailiff in the room and Mick, of course. And to the judge had Mick's stand. The verdict was read, and it was guilty. And I will never forget the look on his face when he turned around and looked at me. I don't think either one of us thought that that was going to happen.

[Thrasher Banks]

When you get the guilty verdict from the jury, what's going through your mind?

[Chuck Smiley]

Oh, my gosh. You just took me back there, didn't you? I was heartbroken. I was completely, completely heartbroken. I don't think I could think. I could only feel.

[Thrasher Banks]

I don't know.

[Chuck Smiley]

It was. But what if, through the course of a year, you are convinced of innocence and it just doesn't turn out that way? People didn't see the situation the same way.

[Thrasher Banks]

Before the judge decided what Mick's sentence would be, Isabel begged for leniency. Given the circumstances of Mick's case, she argued that the length of the jury deliberations suggested a close call or that someone caved despite thinking he was innocent. The judge then asked Mick if he had anything to say. Mick said, quote, I just ask that you spare me in the sentencing, your honor. I didn't kill Cindy Kozad or have anything to do with her death. The rest I am guilty of. I admit that I have three reasons why I would never participate in that. Carrie and her two kids, they mean everything to me. I would have never done anything to jeopardize them or my freedom to be away from them like that. After hearing Mick's plea for a lenient sentence, the judge began laying out how many years Mick would be sentenced for each charge. For his role in the death of Cindy Kozad. Mick was sentenced to 30 years to life.

[Chuck Smiley]

I felt numb. You questioned yourself. Did I not see what was in front of me? Was I wrong, believing that he was innocent?

[Thrasher Banks]

I understand why Isabel feels this way. I've been conflicted about Mick ever since my mom gave me the box. And for a while, I thought maybe this version of Mick we all remember as this man who sacrificed himself to save us from Tim was an abstraction we created over the years almost as a way to cope with the trauma we experienced. But as I dug through the remaining contents of the box, I found something that would bring more clarity to the situation than ever before.

[Payne Lindsay]

Lords of Death is a production of Tenderfoot TV in association with Odyssey. Your host is Thrasher Banks. The show is written, produced and edited by Thrasher Banks, with additional writing by Meredith Steadman and Dennis Cooper. Produced by Meredith Stedman and Dennis Cooper. Executive producers are Donald Albright and Payne Lindsay. Consulting producer and video production by George Miller. Supervising producer is Tracy Kaplan. Artwork by Byron McCoy. Original music by Makeup and Vanity set with additional music by Thrasher Banks mixed by Cooper Skinner. Thank you to Orin Rosenbaum and the team at uta, Beck Media and Marketing and the Nord Group. Special thanks to Tori Ross, Caitlin Kaboski and Thrasher's mom Carrie. For more podcasts like Lords of Death, search Tenderfoot TV on your favorite podcast app or visit us at Tenderfoot tv. Thanks for listening.

[Thrasher Banks]

Thanks for listening to this episode of Lords of Death. This series is released weekly absolutely free, but if you want an exclusive ad free binge, sign up for Tenderfoot Plus. Check out the show notes for the link to subscribe.

[Unknown]

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