We were going to have to put Bryce on the stand. I had prepared for this to be the worst possible case scenario, but that didn’t mean I thought we were ready. I picked up David from the room he was staying in and we went out to the Detention Center to see Bryce. Despite the fact he was on trial for 1st Degree Murder, he was still a juvenile and was being held at the County Juvenile Detention Center. The three of us crammed into the little office the staff had designated for us to meet in privately. It was around seven that evening when we sat down with Bryce to attempt to prepare him for his testimony.

Many think that witness preparation is some form of “coaching”. I have heard the more skeptical refer to it as that and even claim that the attorney must be crafting and shaping all of the witness’s answers. I cannot imagine trying to “coach” a witness or strategize on what answers to give. In fact, a defense attorney’s greatest weapon in any trial is the truth. This notion that lawyers lie or manipulate facts to get someone off is just wrong. Deception or even the perception of deception is toxic to any criminal defense, because a jury will pick up on it immediately. David and I would spend the next three hours talking and working with Bryce. However, we weren’t concerned with the story he had to tell, but how he told it.

Bryce was a seventeen year-old kid. He believed that he had figured out how the world worked, and everything else for that matter. Imagine yourself at seventeen. Think about that version of you. Focus on how much you thought you knew about the world. Can you fully visualize your seventeen-year-old self?

Now, come back to the current you. The current you has lived all those experiences and made all those mistakes that the seventeen-year-old version of yourself has not. Take a good long look at the seventeen-year-old version of yourself, and ask yourself this question: Would you want to depend on that seventeen-year-old version of you, when the rest of your life is on the line?

Remember what we know at this point, this is a story of a shooting with no witnesses, except the accused. He has claimed that he only acted in self-defense, but there are plenty of troubling facts. Bryce ran. Bryce lied at first to police and told them he wasn’t with Jaylen that night. Bryce picked up the knife. Add to all of that, a prosecutor that has proven she is focused on a particular result and “winning” more than actually seeking justice, and she has demonstrated that she is willing to stretch all of the ethical bounds necessary to achieve that goal. These are exactly all the reasons why Bryce shouldn’t be taking the stand and testifying. We believed that Jane would help us raise the self-defense argument to the jury with her testimony and the playing of the tape, but that didn’t happen. In order for the jury to be instructed and allowed to consider self-defense as a defense to the crime of Murder, he was going to have to raise it himself.

The task of leading Bryce through this was going to fall to me. The three of us spent most or our time talking about how we talked to each other. We talked about being in touch with our emotions and rather than trying to suppress them, instead accept them. Sitting all alone in a chair and speaking into a microphone, while a room full of people hang on your every word is unnerving. It’s scary as hell. The last thing a young man wants to do is admit he’s scared, let alone let the world know, but facing trial for murder is scary. David and I spent our time sharing about ourselves.

No, neither one of us had ever faced trial for murder. Neither one of us had ever taken a life. However, both of us had experienced fear. Both of us had experienced something that shook us, and made us consider our own mortality, many times. It was through this sharing, and empathy that we began to peel back the surface of Bryce and get to the real person inside. Buried under all that bravado, under all that angst, and hidden among the protection of anger and confidence was a frightened, vulnerable child that truly felt all alone. He had spent every day since that night running away from a trauma. When he began to describe for me what it was like to walk back to where Jaylen was laying after the shooting, I got chills.

As he would testify the following day, it seemed so loud. His ears were ringing and he felt almost deaf, despite the fact that it was dead quiet. The last report from his pistol had disappeared into the night, unnoticed by the rest of the world, but it continued to scream into his ears long after it had actually dissipated. He talked about how the noise was scary and he suddenly felt this panic. It took quite a while, but we did break through, we found Bryce, and he was now ready to tell his story himself. But before I left there was just one more thing.

As I mentioned earlier Ms. Hastings-Hughes had already conducted herself in manner that left no doubt she would do anything to win. I next took some time to teach Bryce how to speak to lawyers that cross-examine you. We practiced handling some of the more typical tricks employed by lawyers, given the combined experience of the two attorneys in that room, we had seen quite a bit. David and I both had spent plenty of time around prosecutors, and dirty tricks. I’m not going to go into everything here, but I’ll share one with you.

Tempo is one of the most common tricks. A lawyer will ask questions faster and faster until you don’t notice that you are in a fast paced back and forth. Then the lawyer will start hitting you with small inconsistencies, or complicated questions, or outright accusations, all of which is designed to get you to speak without thinking. I have a very simple technique that I teach to witnesses that I believe helps them save the truth from tricky lawyers. It is just simply a breathing technique that allows you to keep from getting in a fast paced back and forth. I taught Bryce this technique and he employed it the following day, and it worked just like it was supposed to.

Bryce told his story from the stand, and I could not have been prouder of him. He gave the facts and the feelings and he tried as best he could to show, rather than just tell the jury what he had went through that night. Then I had to sit down and let go. This is always the hardest part of any trial when the client takes the stand. You are helpless to do the one thing you have been tasked to do, protect your client. Instead, I could do nothing but sit and hope he remembered the things we talked about. I hoped he would look for the tricks.

Bryce’s cross-examination by Ms. Hastings-Hughes went well. All of my hand wringing and nerves were for naught. The “tricks” we well telegraphed and Bryce handled it all well. He did not get tripped up, lose his sense of time, or get baited into argument. Bryce allowed himself to be afraid, to be vulnerable, and that allowed his truth, his testimony to be heard. Our only goal was that we could hopefully prepare Bryce enough to be heard, and I felt that was met.

After that we rested and prepared for closing arguments.

David Smith would make our closing argument. Before we parted, only to reunite and go out to see Bryce the evening before, David and I had decided two things. First, I would take Bryce through his direct examination. Next, David would be responsible now for closing argument. Closing argument was going to be mine, but the sudden need to prepare and put Bryce on the stand would take my focus. David was going to write a closing argument to deliver the following day.

When we left the juvenile center that night, I don’t remember us talking until I got to where I was dropping David off. We had sat in silence for those minutes I think out of exhaustion more than anything. I know my whole body ached for sleep. I will never forget how we ended that evening though. David uncoiled his long slender frame from the passenger seat of my truck and stepped out into the black night beyond. As he grabbed his papers and things, he looked at me intensely and said, “Go home and get some sleep. I’m going to write this closing and do the same thing.” He paused for just a second and said, “Brecken, we are going to save this kid’s life tomorrow.” With that he told me he loved me and said goodnight. Deep sleep never really came through.

The state’s first closing argument was expected. Adam Scahrn delivered it for the government. It was fact driven, legalese heavy and for some sleepier members of the jury, a bit dry. Little did the state know, David and I had already made good, at least to some degree on that vow to save Bryce’s life the evening before. The government had made a critical mistake. The law requires certain procedures or filings be followed before a minor can be tried, convicted and sentenced as an adult. They had not done that here and we knew the time to correct their mistake had already long passed.

The possible punishment for Murder in the First Degree is either Life in prison (which is calculated at 45 years in Oklahoma) or Life Without the Possibility of Parole (LWOP). The death penalty is available in Oklahoma, but those procedures to qualify a jury to impose death had not happened in this case, and therefore the jury could not consider that. However, in our case the jury could not consider LWOP either, because the state had not put the proper language in their charging documents. They had the ability to amend that charging document all the way up until the jury was sworn in, but they never caught on to what David had noticed right before trial. As a result, we knew the state could not ask for LWOP, which meant the very worst-case scenario was guilty of Murder First Degree and life in prison. Life calculated at forty-five years was not want we wanted for Bryce, but at least we knew he would have a chance to be free again someday. His entire life would not be lost.

However, knowing that did not give me near as much comfort as I had hoped it would when David began to approach the jury to deliver our argument. All I could do is sit next to Bryce and watch David, and that ended up being something that Bryce and I will always share. We were both there together to listen to David Smith advocate for the life of Bryce Miller.

David is tall at slightly over six feet, and taller than that in his cowboy boots. He is slender and creates a presence that feels longer than he actually is. The age in his face is only noticeable in how it softens the sharp angles of cheeks and jaw. He has healthy mop of curly black hair on his head virtually untouched by gray, and his voice is powerful and soft at the same time. He never fades, and you don’t have to strain to hear him, but he never startles or feels loud either. David Smith is a master storyteller and he began his closing by going right into story. He had the entire courtroom in his grip for the next hour or so.

David began with what was now the familiar sequence of events as presented by the only eye witness, Bryce Miller. David was able to tell Bryce’s story as if he were a silent participant. He highlighted certain facts by verbal stimulus. You had the feeling something was important just by the way he changed his tone or inflection. “Ahh we’re coming back to that”, is what I imagined the individual jurors were saying to themselves as he would hit one of those facts.

David did come back. He circled around and came back to those things that were so important to the defense to establish that Bryce acted in self-defense. The state couldn’t threaten away the placement of the shell casings or the knife like they did Jane’s testimony.

“Look at the pattern. The story of what happened is written in those shell casings. Look at the arc they make, and now imagine a truck sitting there. Look, you can see how he ran around the truck to the driver’s side. Running away. Getting away from danger.”

David pointed out that the government had no answer to that other than to just keep pointing out there were so many shots fired.

“Of course, there were so many shots fired! If you think someone is going to kill you and you have a gun, then you pull that trigger until the threat stops moving or the bullets are all gone.”

David talked about the medical examiner’s report and how it backed up Bryce’s version of events. The report mapped out the different entry wounds and their trajectory. David showed the jury how those wounds could have happened. He explained how the wounds showed to be consistent with someone that was twisting down as they were shot. It was easy to understand how Jaylen could still have been the aggressor and coming toward Bryce, and still being shot in both the front and the back, and how all of that still lined up with the placement of the spent shell casings.

David went on to attack the state’s flimsy attempt at motive. The idea that Bryce was carrying out a killing for a girl was preposterous. It becomes even more glaringly so when you take into account that it was Jaylen that called Bryce to hang out, and that it was a last-minute thing. Couple that with the fact that Jane, the girl Bryce is supposedly going to kill for had no idea they were meeting up and Bryce did not send one text or call to let her know the crime was about to happen. Also, it was pointed out that this rift between Jane and Jaylen had occurred a couple of weeks before this night and Bryce and Jaylen had not had any hard words or discussion about it up to that point. No, all the state had to rely on was one text message that Bryce would “take care of it”, and both persons involved in that text conversation had testified that it just meant talk it out.

Why did Bryce run? Why did he throw the knife away? Why did he lie to police at first?

“Because he was afraid. He was sixteen years old and afraid,” David said.

David finished his closing by confronting the tragedy itself. The senselessness of the whole thing. This trial and everything about it was a tragedy. There would never be a happy ending. Bryce was forever changed that night when he took a life, and Jaylen Nelson is gone forever. He spoke more about that, and he asked the jury to follow the facts and know that they couldn’t right this tragedy, but only try to seek justice. David walked away from the jury when he was finished, back to the table and took his seat next to myself and Bryce. Several of the juror’s eyes were puffy from tears. One thing is for certain, the tragedy of all of this was not lost on them.

Ms. Hastings-Hughes next took up a marathon closing that was obviously from the hip and delivered as such. It was hard to follow, but appeared to contain mostly aspersions of both the Defendant and his attorneys. It was odd.

The state finally finished its closing argument shortly before 5:00P.M. But it would be the following day before we had a verdict.

The jury had more than just Murder 1st Degree to consider. Over our objection, the state had asked for the jury to be able to consider “lesser included crimes”. Specifically, the state wanted the jury to be able to consider 2nd Degree Murder even though they had never charged Bryce Miller with it. We objected because we felt that if the jury was offered an alternative to First Degree Murder, they might take it only because this was such an emotional case and this would allow them to compromise. It might be easier for those that aren’t willing to convict for first degree, may for something less. As a side note I think it shows even more a desire on the government’s part to “win” at all costs rather than seek justice.

Also, throughout the course of the trial, Ms. Hastings-Hughes had been making “offers of proof” and offering exhibits that were not allowed into evidence by the court. During a trial it is the court’s job to keep things fair. Some things are not appropriate for a jury. A jury is supposed to examines facts and make their decision from that. Some things are too prejudicial for a jury to know in order to make a just decision. For example, Ms. Hastings-Hughes wanted to introduce a picture of Bryce as he was being led to court for the first time. It’s commonly referred to as a “perp-walk”. She really wanted to introduce this picture because the attorney-less minor is caught making a pretty mean looking face. Despite the fact this picture has zero evidentiary value, the state wanted to introduce it because it “identified” the defendant. Remember…tricks…winning over seeking justice.

Of course, the argument was preposterous to the verge of becoming unethical, but the real problem (we would discover later) was the unexperienced judge was allowing Ms. Hastings-Hughes to make these “offers of proof” and then insisting that the picture or other documents were kept by the court reporter. This makes no sense because only things that are a part of the official record are to be kept by the court reporter. This is very important because it is the court reporter that keeps and hands over to the jury all of the exhibits from the trial which they can take with them in their deliberations.

And yes, every single picture and document that the court declared so prejudicial and unfair for the jury to see and consider was mistakenly given to the jury. This was something that the attorneys and the court would not discover until several hours later. When it was discovered, I was livid.

The jury was essentially tainted, and I was left in a terrible position. The jury was brought in and asked some questions by the judge. Most of the jurors claimed they could put aside what they had seen that they were not supposed to and make a decision, however one particular juror on the front row called out the others for already being too affected from what they saw. The jurors were excused back to their room and I was presented with an option by the court. I could request a mistrial and it would be granted. That means the trial would stop and we would all go home, except Bryce, he would go back to detention, and then in however many more months it took we would do it all over again with a different jury.

Remember earlier when I said that we had technically saved Bryce’s life? If a mistrial was declared, then the state could fix its mistake and the next time Bryce faced trial it could be for life without the possibility of parole. I knew this was going to be my decision, and I struggled with it terribly. In the end I decided to let the jury continue to deliberate. I could not place Bryce back in jeopardy of losing the rest of his natural life to the Oklahoma Department of Corrections before he was even old enough to die for his country or vote. I agreed to send them back, and they didn’t return until after one in the morning.

The jury found Bryce Miller guilty of Murder in the Second Degree and sentenced him to twenty years in the Department of Corrections.

David stayed at my house that night and the next morning we went to a restaurant here in McAlester for breakfast. To date it was the last time that I walked into a restaurant without wearing a mask over my face. During the course of the trial David and I kept hearing reports of this Coronavirus thing becoming like a pandemic. The whole world would end up shutting down the week following the trial. I had this strange feeling that I had awaken in a different time, like Rip Van Winkle or a coma patient opening his eyes to a world that had kept moving as he lay still.

“Tragedy” became more than just a descriptive word over the course of the Bryce Miller trial, and when I reflect now, I can think of no other words that captures the essence of everything that surrounded this case and this trial. David Smith’s closing argument both accurate and prophetic. There was no upside from this story. Bryce was forever changed and whether he was freed or incarcerated it would not remove the fact he had been solely responsible for taking another life.

I will always believe that Bryce Miller acted out of necessity, and therefore committed no criminal act. However, whether he did or did not will never be a comfort to those who loved Jaylen Nelson. It is not a comfort to me. I have every right to hate death, and the taking life, regardless of the circumstances, and I do. I did not represent Bryce Miller or advocate so strongly for him because I believed that Jaylen Nelson’s death was a good thing or even an acceptable thing. If God had put me in a position to use my talents, or in any other way to save Jaylen Nelson’s life, I would have done so without the slightest hesitation. God put me in the path to play a role in saving Bryce Miller’s life, and I accepted that.