Which is what Butch proceeded to do. For the next half-hour, with Marc interjecting the occasional question to clarify a point here and there, Butch told his lawyer what happened to the late Robert Corwin.
“You never touched him? Never hit him at all?” Marc asked when Butch finished.
“No, it’s not really my thing. I admit, I will if I have to, but the truth is I don’t really like to fight. Ike though, he’s a little bit psycho. He loves the rough stuff. He doesn’t even mind taking some of it himself just so he gets to dish it out.”
“Was Ike in Leo’s office, you know, maybe getting instructions from Leo, before he came out to the bar at The Blue Lady and you two left to find Corwin?”
“I assume he was but I can’t say for sure.”
“You didn’t hear Leo give Ike the order to rough up Corwin?”
“No, that’s not the way it works. Leo’s real careful. He never gives orders to anyone but Ike.”
“That’s what I thought,” Marc said. “Too bad. If you could give them Leo I could probably get you a total walk on this thing.”
He sat up straight in his chair, thinking about the situation for almost a full minute then leaned on the desk with his hands folded, stared directly at his client and said, “This whole thing is a set-up, isn’t it? The little drama they played to get you to make a deal. That comment by Ike in the courtroom when he asked about county time. All this is bullshit to get me to recommend copping a plea to you. It’s all to get reasonable doubt for Ike and to cover for Leo. The question I have is: are you in on it?”
Butch looked back at Marc wondering if he was joking. Another minute of silence passed between them and when Butch realized his lawyer was serious, he angrily said, “What the hell are you talking about? It’s a set up and am I in on it? What the hell kinda question is that for my lawyer to ask me?”
“That’s a legitimate question,” Marc responded. “I need to know just what the hell’s going on here. But I think I know.”
“Well tell me.”
“Okay,” Marc began. “You’re being set up to take the fall. Let me tell you how this is will go. Ike has no intention of going to the prosecutor to make a deal. That little slip of the tongue he made in the courtroom today was staged for the benefit of the two of us. But I think we can still make this work.”
“How?”
“You’re my client. Dolan must figure he can’t push me around so he can control everything to get Ike off to protect Leo and have the jury hang it on you. So they staged that little drama with Ike asking about how much time he would get in the county workhouse to prod you to make a deal and get me to advise you to do it.”
“Why? How does that help Ike?”
“The prosecution’s case is, in fact, a little thin. It has some problems. But here’s the deal, the jury can infer whatever it wants. They got a dozen or so witnesses to testify Corwin was running scared through the bar to get away from Ike and you knocked him on his ass. Then the two of you take him outside and a little later he’s found dead alongside the building. You don’t have to be a math wiz to add that up. The jury will want to hang this on someone.”
“I still don’t see how me testifying against Ike helps him.”
“Dolan’s a great lawyer, really good in front of a jury. You make your deal for I don’t know, say nine months in the workhouse. Ike then testifies that it wasn’t him that worked over Corwin. He claims it was you. Or even better, Dolan rips you to shreds on cross-exam to paint you as the out-of-control thug and Dolan uses that to create reasonable doubt and Ike walks. If it works it’s brilliant.”
“How about we get separate trials and point the finger at each other?”
“No. No way would the prosecution agree and at this point, I don’t think the judge would go for it, either.”
“What do you think?” Butch asked.
“If you go to trial together, the jury is likely to hang this on both of you. At the very least, first-degree manslaughter and you go to prison for years, not months. Maybe we can get a plea to one of the assault charges. Fifth degree would be nice but it won’t happen.”
“Why not?”
“That’s a misdemeanor. The maximum would be ninety days. No, the prosecutors will want a plea to a felony. But we can probably make the deal so it drops on your record to a gross misdemeanor or, if we’re lucky, a simple assault misdemeanor when you complete a probationary period.”
“Yeah,” Butch said with a sigh and a shrug. “That wouldn’t be too bad. I can even get someone to hook me up with a no-show job so I can get work release.”
“The work release facility is like a dormitory,” Marc said.
“I know. Well, what’s next?”
“I’ll call the prosecutor, the woman Susan Boyce, right now and set up a meeting. Maybe even today,” Marc answered as he picked up the phone handle, read Boyce’s direct number from her card in his case file and began dialing.
An hour after Marc called Boyce and while he and Butch were in fact meeting with her and her co-counsel in the county attorney’s office, Bruce Dolan turned off the recording device in his office and looked at Ike and Leo with a sly smile on his face.
“You were right about this Kadella guy,” Leo said. “I’m kinda impressed with him. He’s a pretty bright boy. Nobody’s fool.”
“I just hope you can make this work,” Ike said. “Or, it’s my ass.”
“Relax,” Dolan said. “I’ll get reasonable doubt. Besides, you heard him, the jury is going to want to hang this on somebody and they’ll be pissed at the prosecution for making such a sweet deal with Butch. Don’t worry, I’ll make the jury believe Butch did this and the prosecution screwed up.”
Three days later, Marc, Butch and Susan Boyce met with Judge Prentiss in the judge’s chambers to discuss the plea agreement with Prentiss and put it on the record. Boyce explained the terms to the judge that Butch would plead to first-degree assault and the prosecution would recommend a sentence of thirty-six months with all but nine months stayed. Additionally, he would be on probation for the remaining twenty-seven months at which time, if he remained law abiding, the conviction would drop to a misdemeanor. In exchange Butch had agreed to testify against the co-defendant, be honest and fully cooperative.
“Is that your understanding of the arrangement, Mr. Koll?” the judge asked Butch.
“Yes, your Honor,” Butch, who was dressed like a well-built banker, answered.
“All right, sounds reasonable to me if the prosecution and defense are both satisfied,” the judge said looking first at Boyce and then Marc.
“Yes, your Honor,” Boyce said for the court reporter.
“I’m satisfied, your Honor,” Marc said.
“Good . Well Ms. Boyce, go ahead and conduct your inquiry,” Prentiss said.
Which Boyce proceeded to do. She asked Butch a series of questions for the record to be sure Butch knew what he was doing, no threats or promises had been made and he was, in fact, as an accomplice, guilty of the charge to which he was pleading. All of which Butch answered affirmatively.
“Mr. Koll,” the judge began. “Do you understand that the sentence recommendation is just that, a recommendation? And if I decide otherwise I don’t have to agree to it. Such as, if I find out you’re not being honest or cooperative, I can give you a lot more prison time? Also, once you plead guilty the odds of you being able to withdraw that plea, even if I do not follow the recommended sentence are, for all practical purposes, about zero?”
“Yes your Honor, I do.”
“Your lawyer has explained all of this to you?”
“He has, your Honor.”
At that point, the judge read the charge, Butch pleaded guilty, the judge reserved sentencing until a later, indeterminate date, and they were free to go.
SIX
Ike’s trial began on schedule on the first Monday of June, precisely on time at 9:00 A.M. By this time, of course, Bruce Dolan and his client had been informed that Butch made a de
al and was going to testify for the state. In fact, Butch had given a detailed statement to the prosecution who, by the rules of evidence and discovery, was obligated to turn over a copy to the defense. Knowing exactly what Butch would say in his testimony gave Dolan ample opportunity to prepare his cross-examination of Butch and create reasonable doubt for Ike.
The trial itself had gone pretty much as scripted. Marc sat behind the prosecution on a couple of days when he decided to attend. Dolan had greeted him quite warmly during those sessions and had even taken Marc to lunch once just to let Marc know there were no hard feelings, at least from Dolan, for Marc having made the deal for Butch. Bruce Dolan was professional and certainly understood Marc’s obligation to take care of his client. And of course, although unknown to Marc, Dolan had known ahead of time that Butch was going to do it.
Normally, accomplice testimony alone is considered insufficient to convict a person of a crime. The law requires more evidence than just the testimony of the accomplice to obtain a conviction. The prosecution must have additional direct evidence to tie the defendant to the crime such as forensic evidence or more witnesses who are not themselves accomplices.
It was Ike’s bad luck that he got a little too close to Corwin when he was administering his beating. The crime lab was able to find eight very small fiber fragments that matched the material from the coat he had worn; an expensive coat that Ike foolishly had not thrown out and was discovered in his closet. Worse luck than that for Ike was a problem common to a lot of men. Ike was losing his hair and the lab found two of them on Corwin’s body. The prosecution believed this was enough to convict Ike, especially since there was no similar forensics from Butch found at the crime scene.
Bruce Dolan had argued long and hard that the fiber and hair samples were not enough to support the accomplice testimony and that Butch should not be allowed to testify at all. Judge Prentiss, surprising no one, ruled in favor of the prosecution and would allow Butch to take the stand. Dolan knew this would happen, but at the very least, his argument preserved the ruling for a possible appeal.
These items were not too worrisome to the defense. Ike had been seen with Corwin in the bar and the witnesses would testify that he had helped him get up off the floor. The hair and fibers could easily be traced to that event. It was enough to place Ike at the scene and avoid the problem of relying solely on accomplice testimony. The verdict would come down to the credibility of the co-defendants. Each was going to point a finger at the other as the one who had beaten and killed Robert Corwin in the alley alongside the Hermitage that warm March evening.
The prosecution went through its witnesses in a slow methodical sequence beginning with the man who had come upon the body and called the police. Next up were the bar patrons, including both bartenders, who all testified as expected, in great detail about the scene in the bar. When one of them tried to testify about Corwin’s obvious fear, the judge sustained an objection by Dolan that they were not mind readers and could only testify as to what they saw or heard and not speculate about his state of mind. The judge did allow one of the bartenders to say he knew who Ike and Butch were and that they worked for someone named Leo but he did not know who that was. Of course, the man was lying since he knew perfectly well who Leo Balkus is but his courage to testify only went so far. Identifying Leo Balkus was a very bad idea indeed.
The middle of the state’s case was filled with the testimony of the professionals. The police, forensics and medical examiners who had done the case work for the state. They would tie up the elements of each crime charged as to the damage Corwin sustained and from the M.E. how it must have been a severe beating that had caused his death by asphyxiation when his throat was crushed.
The final week of the trial, the second week in June, would begin with the testimony of the family members of the late Robert Corwin. It was at this point that the local media, which had been in full force in the beginning but had lost interest during the middle of the case, came back again. Apparently their voyeurism could not resist Corwin family members airing some dirty laundry in a public trial.
The prosecution initially insisted on allowing all of them who had been hit up for money by their late relative to testify, which would have been almost twenty. But the judge restricted them to the top nine, the nine who had actually given Corwin the most money to pay his debts. Each one testified to the same basic story. Bob would come to them broke, strung out and desperate, beg them for money to clear up his debts to someone named Leo and they would either give him the money, which was normally the case, or turn him away because they had done enough for him already.
The last of the family members to testify was the victim’s father, Robert Corwin, III. He spent an entire day on the stand telling the jury, and the public through the media parked in the gallery, about his son’s sad tragic life and how he had been unable to save him from the addiction demons that possessed him. He managed to avoid, even on cross-examination, admitting that the apple did not fall far from the tree and that the father had the same problems as the son, just more money to deal with them.
The last bit of testimony from the father, Bob III, would be his meeting with his son two days before his death. At that time the son had begged him for fifty thousand dollars and a promise to go to rehab again and this time take it seriously. Through a flow of tears and stifled sobs he told the jury that he would never forgive himself for not giving him the money immediately instead of putting him off.
Cross-examination of all of the witnesses was so simple the jury stopped paying attention. None of them could testify about what happened in the alley. None of them could tie Ike to Corwin to come up with a motive and none of them could identify the mysterious Leo whose name hung over the trial like a misty cloud.
Butch would be the last witness called by the prosecution. A general rule of trial practice is to save your best until last, to wrap up your case on a high note. Have the jury take back into deliberations with them the most supportive piece of evidence or testimony as the last thing they saw or heard.
On the day Butch took the stand Judge Prentiss, still unusually punctual, gaveled the day’s proceedings to begin promptly at 9:00 A.M. Butch was dressed in a light summer suit courtesy of the taxpayers, with a white dress shirt and matching silk tie. A fresh new haircut, the beginnings of a healthy looking tan and the women in the jury, in fact, all of the women in the entire courtroom including the judge’s elderly clerk were sitting up paying very close attention to the state’s star witness. He looked calm, relaxed and as honest as a priest as Boyce skillfully walked him through his direct testimony that they had rehearsed several times.
He willingly admitted his participation in the crime. Told the jury about his deal with the county attorney and truthfully admitted he did it to save himself. There was no point in denying it and Boyce would have been a fool not to bring it out and be totally upfront with the jury.
All the while his client was on the stand Marc sat in the gallery behind the prosecution’s table, the one closest to the jury, patiently listening to Butch tell his story. Butch told the jury everything, including his own background and employment, admitting to the jury who he worked for, what he did and how he did it. He even admitted to a few assaults on Leo’s behalf that no one knew about just to let the jury know how remorseful he truly was. He could admit to these things because the deal Marc had made for him gave him complete immunity for any crimes he admitted to while testifying. By testifying to these things, the idea being he would enhance his credibility in the minds of the jurors. Oddly enough, while he was telling them these things, Marc noticed several of the female jurors’ eyes light up even more. The “bad boy” thing that many women find too irresistible, Marc assumed as he shook his head and smiled.
The direct exam lasted a little over three hours which took them into the lunch break. Prentiss called a recess and as the crowded courtroom emptied, Marc stood waiting for Butch and wondered why Boyce had committed such a huge tactical mis
take. She had failed to go over in detail Butch’s arrest and conviction record to lay it all out for the jury so there would be no surprises when Dolan would try to use it to attack Butch’s credibility. It would have been far better for Boyce to bring it out as softly as possible to take away the impact it would have by allowing Dolan to do it. Now, Dolan could use it to hammer away at Butch and the jury would hear about these things the way Dolan wanted to present them.
A defendant’s criminal history is normally not allowed to be used against him. The idea being that the jury should not be allowed to convict someone for being a bad person. They should only be concerned with the facts presented regarding whether or not the defendant committed this crime. There are some exceptions to this rule for which a defendant’s criminal record can be used such as to prove motive, intent, plan and identity. These exceptions are supposed to be narrowly construed by the judge but are not always construed as narrowly as the law would seem to indicate. Since Butch was no longer a defendant but was now a witness, basically all bets are off as far as using his criminal background by the defense to attack his credibility. Boyce must have believed letting Butch talk about his background himself during her direct exam would be enough to deflate the impact of his past in the eyes of the jury. Dolan would get his turn in the afternoon.
SEVEN
The afternoon session could be used as a law school case study of how to conduct a cross-examination of an accomplice in a criminal case. Bruce Dolan spent all afternoon and into the early evening eviscerating Butch Koll in front of the jury. Normally Prentiss, as a law and order judge, would do all he could to limit a defense attorney’s attack on the state’s case. Dolan however, was allowed significantly more latitude and just about Butch’s entire life seemed to be fair game.
Dolan went over every detail of every problem with the law that Butch had ever had, even things that he had done when he was a juvenile which are normally totally off limits. In addition, he had been supplied with several more incidents from his client the police did not know about that he was able to use to discredit Butch. Butch was able to deny these, but all of it was like a Chinese water torture. Each drop added up so by the end of the day, the jury was clearly no longer impressed with the state’s main witness.
Desperate Justice Page 3
