by Paul Levine
“Solomon, how often do you let a defendant testify?”
“Seldom. But that’s because they usually have criminal records that will come out on cross-exam. Or they’re stupid. Or both. Doesn’t apply to me.”
“But there’s another reason to keep you off the stand,” I said. “Pincher has the recording of you being interrogated at the scene. On the tape, you say Nadia brought the gun, which she will have to admit when she testifies. You say she robbed the safe, which she will also admit. You say she shot Gorev, and here’s the beauty of it. Pincher can’t cross-examine a tape recording. What you said to the cops will be preserved for eternity in the jurors’ minds and Pincher can’t impeach it . . . unless you take the stand.”
“And you keep your virginity intact by not letting me lie.”
“That, too. But most important, I keep you from being cross-examined and screwing up.”
Solomon rubbed at a three-day growth of whiskers with the knuckles of his right hand, thinking it over. Then he shook his head and said, “I don’t like it. And Victoria will hate it. We should go with the truth. Accident. I’ll take the stand and explain I lied to the cops because I panicked. Nadia’s story will support accident, and your job will be to keep the jury from coming back with a manslaughter conviction.”
I looked at him in silence, fully appreciating the irony. Shyster Solomon insisting on the truth and my semiethical self pushing for a shady defense.
“Are we on the same page, Lassiter?”
I headed for the door. “Not even in the same book, pal.”
-49-
Bending the Law Like a Pretzel
Rain pelted the overhead canvas awning. The humidity was roughly a zillion percent. But Gerald Hostetler seemed to be enjoying his grouper sandwich and fried conch fritters, Victoria thought. He was not a difficult man to please.
“Freshest fish sandwich I’ve ever had,” Hostetler said, smacking his lips.
Victoria smiled and sipped her iced tea.
They were outdoors at Garcia’s, a fish joint on the Miami River in a seedy part of downtown Miami. Victoria couldn’t get near Nadia, who was in protective custody in a two-bedroom suite at the Hyatt. Gerald and Nadia had one bedroom, two federal marshals had the other. Assistant US Attorney Deborah Scolino left strict orders: no visitors.
Nadia was spending her third day testifying before a federal grand jury. Next week, she’d be the star witness in state court in the case of State v. Solomon. Today, while Solomon and Lassiter were meeting in the jail, Victoria was trying to find out just what Nadia would say on the witness stand. It had been Lassiter’s idea.
“Why don’t you just take Nadia’s deposition?” Victoria asked.
“I have my reasons,” Lassiter said.
“But without it, you can’t impeach her with prior statements.”
“And neither can Pincher.”
“She’s Pincher’s witness! Why would he want to impeach her?”
“Maybe he won’t like what she says. Talk to the Pretzel King and see if you can find out whether she’ll try to help us.”
Victoria slipped a tortilla chip into the fish dip and said, “Gerald, I’m very happy it’s working out for Nadia. And that she has you at her side.”
He shrugged. “I’m in love. What else could I do?” Then he looked at the bowl of fish dip. “They should serve pretzels with that.”
“I suppose you know why I asked to see you.”
“Of course. And we’re willing to help. Nadia blames herself for Steve being prosecuted.”
Hostetler began sharing everything he’d observed the last seventy-two hours in a hotel conference room, including the fact that the morning started with pastries that weren’t up to Pennsylvania Dutch standards. “Marcia Silvers, Nadia’s lawyer, was there every day, of course. She was tenacious. It took most of the first day, but she wouldn’t allow Nadia to speak to the grand jury until an immunity deal was hammered out. Nadia’s been testifying now for the last day and a half.”
“So it sounds like everything’s fine on the federal charges.” Victoria waited. She didn’t know how forthcoming Gerald would be when they got to Steve’s case. In the river, a freighter loaded with cargo containers steamed east toward open water, doubtless bound for a Caribbean island.
When Hostetler didn’t volunteer, Victoria asked, “And State Attorney Pincher?”
“Oh, of course! I’m sorry. We met yesterday on Solomon’s case. He allowed me in the room but ordered me not to reveal a word. Said it could be obstruction of justice.”
“So you won’t tell me what was said?”
Hostetler shot glances left and right. No one who remotely looked like a cop was nearby. Just a couple of ponytailed river rats, guys in their sixties in baggy shorts, T-shirts, and flip-flops, their skin sun-scorched the color of tea with the texture of old leather. The men were slurping down bowls of conch chowder.
“Pincher is a bully,” Hostetler whispered.
“Indeed.”
“He thinks I’m a pushover. Happens a lot. Being misjudged. Especially by city people. Maybe because I was always taught to have manners. ‘Yes, sir.’ ‘No, ma’am.’ A handshake is a contract; a man’s word is gold. It’s the way I was raised.”
“And . . . ?”
“I never shook Pincher’s hand. Never promised to keep quiet. He thought he’d bulldozed me. But he hadn’t.” There was a note of pride in his voice.
“Did he give Nadia immunity for the shooting and robbery of Gorev?”
Hostetler nodded. “As long as she testifies against Solomon. And she has to tell the truth or face perjury charges. That’s the only thing immunity doesn’t cover. Pincher was quite threatening about that. He repeated over and over that Nadia would go to prison if she lied.”
“What else did he say?”
“He did a practice question-and-answer session with Nadia to see how she would respond in court. And he kept interrupting. ‘Never use the word accident,’ he told her. ‘Never say he didn’t mean to fire. Not a word about Solomon’s intent. Only tell what you saw. Solomon took the gun and pulled the trigger. I’ll handle the rest.”
“Anything else?”
Hostetler dipped a piece of conch fritter into hot sauce and popped it into his mouth. “One thing I didn’t understand. Pincher asked Nadia whether Steve knew she had a gun, and she said yes. She had shown it to him. Then he asked if Steve told her not to bring the gun into the meeting with Gorev, and Nadia said no. Pincher seemed happy with that. He said it was consistent with what Steve admitted to the police. Then Pincher looked at Scolino and said, ‘Heads we win. Tails we win.’ ”
Victoria felt as if her heart were gripped in a vice. How would they ever defend the case?
“Do you know what he meant, Victoria?”
She took a breath and said, “Pincher isn’t going after manslaughter, except as a backup. He’s sticking with felony murder. The death of a robbery victim, even the accidental death, is first-degree murder with a mandatory sentence of life in prison without parole.”
“Jesus H. Christ. Pardon my French.”
“Pincher’s theory is that Steve was in on Nadia’s plan to take property from Gorev by force. An armed robbery. Then it doesn’t matter if Steve shot Gorev accidentally or purposely. Or even if Nadia shot him. They’re both guilty of murder. Only Nadia has immunity and Steve takes the fall. That’s the ‘heads we win.’ ”
“And the tails?”
“The judge will instruct the jury on lesser included offenses.”
“Manslaughter?”
“Exactly. If some jurors think it’s murder and some think it’s a pure accident and the verdict should be not guilty, they’re likely to compromise and convict Steve of manslaughter. Jurors don’t know the penalties. The ones who threw in the towel on innocence would probably be shocked to learn Steve could face thirty years for manslaughter.”
“I had no idea,” Hostetler said.
They were quiet a moment. In th
e river, a lone paddleboarder rode the current toward the open bay.
“Nadia says you love Steve very much,” Hostetler said. “That your relationship has withstood stress and outside pressures, just as ours has. She’ll do everything she can for you.”
“I appreciate that, Gerald.”
“But she can’t risk perjury.”
“I understand.”
Victoria’s mind drifted to Steve in that hellhole. She thought of her life with him and his life—if it could be called that—without freedom. She also thought of Jake, who had risked his life at Club Anastasia and had strapped on a gun to protect her that fateful night with Elena.
With all of this whirling through Victoria’s mind, she considered all those lofty notions engraved on marble pediments.
“Justice the Guardian of Liberty.”
That’s what it says high above one entrance to the Supreme Court building. And then on the opposite side of the building:
“Equal Justice under Law.”
And let’s not forget about those signs above the bench in Miami courtrooms.
“We Who Labor Here Seek Only the Truth.”
Maybe it was time to dispose of the pretty phrases. Maybe it was time to dive headfirst into the murky waters where Steve and Jake swam. She remembered one of “Solomon’s Laws.”
“If the facts don’t fit the law, bend the facts.”
“Gerald, maybe there’s something Nadia could do at trial to help us, but it’s not without risk.”
“Is it legal?”
“It’s not black-and-white.”
“Meaning what, Victoria?”
“What I’m asking Nadia to do is in the shadows. In the gray between light and darkness.”
“I’m really not sure what that means.”
“Sometimes, Gerald, people break the law so clearly you can hear it crack like a tree branch snapped in two. But other times, like a baker twisting a roll of dough into a pretzel, you only bend the law. You don’t tear it. You don’t break it. You end up with something better than the ingredients you started with. And the final result is beautiful to behold.”
-50-
The Vulture and the Chicken
It was our last visit to the jail before trial, and my client and my cocounsel were both furious with me.
“Lassiter, you two-hundred-thirty-pound sack of shit!” Solomon yelled at me.
“Two forty-five,” I corrected him.
“Whatever. You can’t do this,” Solomon said. “Vic and I have talked, and we think it’s a huge mistake.”
Victoria nodded in agreement. “If you make Nadia look like La Femme Nikita, the wicked assassin, she’ll never help us.”
“She can’t help us.”
“You don’t know that! I gave Hostetler a plan that might work.”
“Did he ever get back to you?” I asked.
Victoria shook her head, and her shoulders slumped. “He’s not returning my calls.”
“Then we have to assume Nadia can’t—or won’t—do what you asked. You took a helluva risk, Victoria, and I admire that. If Hostetler had ratted you out to Pincher—if he’d told him what you asked Nadia to do—you’d have been indicted for obstruction.”
“I’m always amazed by the actions you admire,” she said.
“Anyway, Nadia’s help is just whiskey under the bridge. Pincher’s going for felony murder, and if we claim accident, he’ll probably get a compromise verdict of manslaughter. We all know it. We have to go all in.”
“Which is? Say it aloud, Jake. Just the way you’ll tell the jury.”
“Solomon didn’t shoot Gorev. Nadia did. Pincher, the dumb ass, gave immunity to the murderer.”
“You might want to leave out the ‘dumb ass’ in your opening statement,” Solomon suggested.
“Jake, have you considered this?” Victoria asked. “If you don’t attack Nadia in opening, maybe she’ll walk into the courtroom, take a look at Steve and me, and—”
“What? Feel sorry for you? I can’t rely on that. Here’s the way it’s gonna be. I lay down a barrage of artillery on Nadia in opening. On cross, I force her to admit every crime she ever committed and a few she’s only thought about. Then we use Solomon’s taped statements to the cops to bolster our theory while keeping him off the stand.”
“Seriously, Lassiter,” Solomon said, “what are the odds that’ll work?”
I shrugged. Clients always want you to give a prediction like a meteorologist forecasting the chance of rain. “If I had to guess, I’d say we have one chance in four of acquittal.”
“One in frigging four! I told you from the beginning, Vic. This guy’s a loser. A burnout. Jesus, he told me he’s gonna take down his shingle and teach high school in New Hampshire.”
“Coach prep school football in Vermont.”
“You need a rest home, dude.”
Actually, I didn’t feel like a burnout. The adrenaline rush was starting. It always comes with a murder trial. Tomorrow morning, we would pick a jury. Today, I felt like a knight, slipping into my brigandine vest. Now, where the hell was my sword?
“Jake, have you thought this through?” Victoria asked calmly. “Your strategy is so risky. It’s all or nothing.”
“Exactly,” I said. “It’s just like life. Breathe it in.”
“Breathe what in?”
“The pure air of a windswept beach or a mountain peak.”
“You’re starting to worry me a bit.” Her tone was gentle, as if trying to coax a cat down from a tree.
“No worries. Jump off the bridge without a bungee cord,” I said.
She considered that a moment. “Okay, I get it. Take risks. Is that what you’re saying?”
“Face your greatest fears. Indiana Jones in a pit of rattlesnakes. Donald Trump on food stamps. Sugar Ray Pincher hitting you below the belt. It’s all the same thing. Win or die.”
“It’s my life, not yours!” Solomon snapped. “You said one chance in four, and I’m supposed to be happy?”
“Forget the odds! One in four or nine in ten. What difference does it make? They’re just numbers, Solomon. Meaningless predictions. Who can tell where lightning will strike?”
Victoria appeared baffled. To her, I must have looked like Tarzan, swinging on a vine, screaming like an ape.
Very softly, she said, “Do you feel okay, Jake?”
“Spectacular. Do you know those black vultures that fly circles around the courthouse?”
“Of course. They’re supposed to be the souls of lawyers doing endless penance. Or maybe it’s judges.”
“I saw one today. As ugly as sin, as dark as Dracula’s heart.”
“Not possible, Jake. The vultures don’t come until November, just like the tourists.”
“This one wasn’t flying. He was on the banks of the river by the Justice Building. Devouring a chicken.”
Victoria’s eyebrows arched. “A chicken on the river bank?”
“I figure it was a Santeria offering from a defendant’s family.”
“Okay, so you saw an out-of-season vulture . . .”
“It was a message, a sign.”
“So which one are you?” Solomon asked. “The vulture or the chicken?”
I shook my head. “It’s not that literal. The vulture represents a dragon, and that would be Pincher, who thinks you’re dead meat.”
Victoria and Solomon exchanged worried looks. After a moment, she said, “Jake, are you grounded enough to take on the pressure of a murder trial?”
“Relax, Victoria. When I walk through the swinging gate into the well of the courtroom, I’ll be wielding a sword in one hand and an axe in the other. Just like the Vikings in old Norse tales, I’ll either slay the dragon, or they’ll carry me out on my shield.”
-51-
The Collective Genius
I have a confession to make.
I hate voir dire.
I despise prying into other people’s lives because I wouldn’t want them prying into mine. Bu
t it’s damned necessary. If your client is charged with murder, you must ask prospective jurors if they have had any family members murdered. In every case, you have to ask jurors if they’ve ever been a victim of a crime. Essentially, you must force these poor schnooks—already peeved at having been summoned to the courthouse—to relive the worst moments of their lives.
Some lawyers think that jury selection is the most important part of trial. More than opening statement, cross-examination, or even closing argument. I don’t know if that’s true because jury selection is such a crapshoot.
Deep-carpet law firms hire psychologists to interview jurors after cases are over, and the results are scary. Most jurors forget about 70 percent of the judge’s instructions on the law. In deliberations, jurors spend about half their time discussing their personal experiences.
Jury consultants lay down all sorts of rules. If a blue-collar worker puts on a suit to come to court, it shows respect for the judicial system, which translates to a pro-prosecution juror. Aw, I don’t know. Maybe he’s just trying to con a lady juror into going out with him, a slick move that translates to a defense juror.
I often violate the unwritten rules about what kind of juror will favor one side over the other. Once, I left the wife of a cop on a jury—an absolute no-no—in a case I couldn’t win unless I proved that the arresting officer lied. I cross-examined the officer relentlessly until he sweated so profusely that his hands stripped the varnish off the rails of the witness box. The cop’s wife turned out to be the foreperson, and I won an acquittal. Why? I had sensed in voir dire that she was immensely proud of her husband, who had won a basketful of commendations, and I hoped she would be offended by a perjurious cop. It worked . . . that time, anyway. My point is, you just never know.
In Florida, we only have six jurors. The legislature wanted to save time and cut costs . . . and to hell with justice! The smaller panel makes my job tougher. It’s much easier to hang a jury with one holdout if you’re dealing with twelve citizens. Maybe you remember the stage play made into the hit movie about a jury that starts out eleven to one for conviction and ends up acquitting. Well, it wasn’t called Six Angry Men.
