by Paul Levine
“No, he won’t,” Willow fired back.
Judge Marjorie Cohen-Wang gave us a tolerant smile. “If you two want to take five minutes to hash out your situation, please–”
“I’m ready to roll, Your Honor,” I interrupted, a no-no in any courtroom.
“I can’t allow my client to take an action deleterious to his position,” Willow said, calmly.
“In Faretta versus California, the United States Supreme Court held that a defendant has a constitutional right to represent himself,” I said, proud as hell to have remembered the name of the case.
The judge pursed her lips and nodded, impressed with my off-the-cuff citation of the nearly 40-year-old case in which an alleged thief named Anthony Faretta insisted on defending himself. The Supremes said he could damn well do it. “Mr. Lassiter is correct, Ms. Marsh. So perhaps you should sit down, and let’s see what your client has on his mind.”
30
The Lure of Filthy Lucre
Facing Barry Samchick on the witness stand, I stood and buttoned my suit coat, noticing it was a little tight around the gut. Granny had been right. I’d gotten pudgy and soft. A guy who back in college used to hoist beer kegs – full, not empty – in each hand. But now…
Money had weakened me.
All those lean years of scrambling for fees in this very building, collecting sweaty wads of cash in the parking lot to handle arraignments and preliminary hearings. Some larger fees as I matured and hauled in bigger cases, but cash flow was always a problem. Then, along came Castillo. Easy money. A staff to process the real estate transactions, a banker and an accountant to oversee the accounts.
I’d gotten lazy.
Ah, the seduction of money. Somewhere in the Bible – don’t ask me where – is the admonition, “not given to wine, not greedy of filthy lucre.” Well, I’d violated both tenets. Expensive Champagne and expensive toys. There was my ludicrous Bentley, now under a tarp as much to hide it as to protect its shine. Sure, I could blame Pamela for the car. She’s the one who encouraged the purchase and financed it through the bank. The car wasn’t me. It was a reflection of a false me.
My thoughts turned to Samchick. That day I found him with his ears boxed. His red Lamborghini had been parked in front of his office bungalow. A ridiculous car for the middle-aged C.P.A., a far cry from the series of hybrids he’d driven for the past decade.
The lure of filthy lucre. I would use my own experience to question him. Just as Novak’s bottomless pit of Ponzi money had seduced Pam, Castillo’s money had been the kryptonite that had robbed me of my work ethic.
What seduced you, Samchick?
I decided to start conversationally. “How you doing, Barry? You don’t mind if I call you Barry?”
“Not a problem. Not so great right now, Jake.”
“Ears bothering you?”
“A little, thanks for asking.”
“Want to tell the jury how you got hurt?”
“Two guys beat me up and trashed my office.”
“Who were those guys?”
“I don’t know Jake. Never saw them before.”
“They stole the reports you prepared for this case, didn’t they?”
That made the jury sit up straight.
“Yes, they did.”
“You were going to be a witness for me, weren’t you Barry?”
“We’d talked about it, yes.”
“But after you were beaten up, you were called by the state?”
“The way it turned out, yeah.”
“Those guys who beat you up, did they say anything?”
“Not that I recall.”
Certainly a lie, but all I could do was suggest an answer.
“They didn’t say, ‘This is a message from Carlos Castillo?’”
“I don’t remember anything like that.”
“Did they ever say, ‘You mention Carlos Castillo in court you’re a dead man, or words to that effect?’”
“Don’t remember anything like that, either, Jake.”
I was trying to plant little seeds with the jury that might grow into the tree of reasonable doubt. And poor Barry Samchick was lying his cowardly ass off.
“Let’s talk about your Lamborghini.”
“What?”
“Your red Lamborghini. The two-passenger Aventador roadster, zero to 60 in 2.9 seconds, if you’re so inclined.”
“Objection, irrelevant.” Emilia didn’t know where I was headed and truth be told, neither did I.
“I’ll tie it up,” I told the judge confidently. That’s lawyer talk indicating that somewhere down the road, there’s a nexus between seemingly irrelevant questions about a snappy little roadster and the issue of Pam’s death.
“Overruled. But make your point quickly, Mr. Lassiter.”
“You do own such a car, Barry?”
“The Lamborghini, yes.”
“Which you bought after your divorce?”
“Yes. Last year.”
“What did that set you back, half a million?”
“Five hundred thirty-five thousand.”
The jurors exchanged glances. Just what was going on with this beaten up, spendthrift accountant?
“Did you buy the car for cash?”
“No, I financed it.”
“Let me guess. Pamela Baylins handled the financing at Great Southern Bank.”
“She did.”
“And what are the payments?”
“About $13,000 a month.”
Some jurors’ eyebrows arched toward the ceiling. I could swear I heard one whistle.
“Where’d that money come from, Barry?”
“Renewed objection!” Emilia said, getting to her feet. “I fail to see what this has to do with whether the defendant committed murder.
So kind of Emilia to remind the jury about all that.
“Mr. Lassiter?” the judge prompted me.
“Your Honor, just a couple more questions will clarify everything.”
Beside me, Willow stifled a feminine snort.
“For now, I’m giving you latitude, but please tie it up,” the judge said. “Mr. Samchick, you may answer the question.”
“The money came from my clients, of course.”
“You certainly weren’t making that kind of money from me.”
“Of course not. But I had other clients.”
“Like Eddie Novak, owner of Novak Global Investments.”
Samchick just sat there. I could read his mind: How much does Jake know?
Not everything. But when I saw the stack of Novak Global prospectuses in Samchick’s trashed office, fireworks started to go off. Not one prospectus, as if he’d been studying the figures to invest himself. No, a dozen or so, which could only mean one thing. Samchick was putting his people – his own accounting clients – into Novak’s fund.
Into a Ponzi scheme.
But did Samchick know about the fraud?
“Barry, should I repeat the question? Was Eddie Novak a client?”
“Mr. Novak, yes, in a way.”
“What does that mean?”
“I don’t do the accounting for Novak Global. Let’s be clear about that.”
Understood. Barry wanted to stay as far away from Global’s finances as he could. Meaning at some point, he knew!
“Do you do his personal accounting?”
“No, not that, either.”
“But he pays you fees?”
Samchick hesitated, and I filled in the space. “Or commissions, Barry? Does he pay you commissions for placing investors with his fund?”
A bashful “yes” from the witness.
“Let me guess again. You were introduced to Eddie Novak by Pamela Baylins.”
“That’s right.”
“And she suggested you could make commissions by sending Novak investors?”
“Yes.”
“What due diligence did you do on your clients’ behalf?”
“I relied on the public filings with the S.E.C. l
ike any other investor would do. Plus Pam’s personal recommendation. Based on all that, I put my own money into Global and guided some of my clients into the fund as well.”
“In return for those commissions you mentioned?”
“Yes, of course.”
“How much Barry? Five per cent? Ten per cent of the investments?”
He licked his lips before answering, “One-third. Thirty three and a third per cent.”
That stirred the courtroom.
“Helluva commission,” I said.
Judge Cohen-Wang waggled a finger at me. “Is that a question, Mr. Lassiter?”
“Sorry, Your Honor.”
I decided it was now or never. “Tell the jury, Barry. All this referring of clients you did to Novak Global. Was that before or after you discovered that Global was a scam? A pyramid? A Ponzi scheme?”
The judge sat straighter in her high-backed chair. The jurors stirred, and a murmur went through the gallery. Eddie Novak was a major philanthropist around town, and Novak Global had been the subject of glowing reports in the business section of The Miami Herald. To date, no one had publicly mentioned the possibility that the guy was a junior varsity Bernie Madoff.
“As I said, I relied on Global’s public filings.”
“C’mon Barry, you relied on that obscene one-third commission. You closed your eyes to the truth until Pam told you it was a Ponzi scheme. Maybe she even showed you the numbers. Either way, you must have crapped your drawers.”
“Mr. Lassiter,” the judge cautioned. “Please refrain from scatological references, and please ask questions without making speeches.”
“Sorry, Your Honor. Barry, did Pam Baylins tell you Novak was running a Ponzi scheme?”
“Objection. Hearsay.” Emilia didn’t seem to have her heart in it.
“Overruled,” the judge said, wanting to hear the answer.
“Pam did.” Barry sighed, took a breath, seemed to think it over, and then the floodgates opened. “Just a few days before she was killed. She’d somehow gotten the real financials. Novak wasn’t trading currencies and wasn’t making investments. None at all. He was just paying off earlier investors with later investors’ money. The books said Novak controlled about a billion in assets when there was barely 75 million that could be gathered when the end would come, as it surely would. And those monies would pretty much go to the lawyers and accountants.”
“Leaving you and Pam with similar problems, isn’t that right Barry? She had Carlos Castillo’s money invested with Novak and you had what, a couple dozen clients along for the ride?”
“Thirty-seven clients, plus $700,000 of my own money, which on the books was supposedly worth $3 million or so, but in reality, in the event of a run on the fund, was worth bupkes, nothing.”
“So why’d you call me that Saturday night about my trust accounts? They seemed to be the least of your problems.”
“I was putting out fires. The Florida Bar had an audit scheduled of your accounts. They would have discovered the discrepancies, and that would have led to Novak Global. I thought we could buy time with just a couple transfers to even the inflow and outflow on your accounts. I wasn’t ready for the axe to fall on Novak Global.”
“Five days earlier, which was the day after she learned that Novak Global was a Ponzi scheme, Pam got Castillo’s money out. But you didn’t take out yours or your clients’ investments. Why is that?”
Samchick slumped in the witness chair. “In this day and age, the news would have spread instantly. There’d have been a run. Global would have gone under in a day. Even if my clients got out some of their money, the trustee in bankruptcy would have filed clawback suits to get it back. I’d have been sued, maybe criminally prosecuted, even though I knew nothing of the fraud until it was too late.”
“So you and Pam tried to agree on a strategy?”
“I wanted to buy time. She wanted to make a whistle blower’s complaint to the S.E.C. She figured if the trustee could round up what was still in the accounts…”
“Seventy-five million.”
“Right. She’d get a reward in the five to seven million dollar range.”
“Whereas you wanted to wait, but for what, Barry?”
“I talked to Eddie Novak. Told him what I knew. He pleaded for time. He said he could always solicit new investors. They were falling all over each other to get in. He thought he could keep the fund going for 25 or 30 years, just like Madoff did. He told me that paying off Pam to keep her quiet would be no problem. He could go higher than any whistle blower fee.”
“But there was a problem, wasn’t there?”
“She was afraid of being charged with conspiracy. She wouldn’t go along.”
“Is that why you killed her, Barry?”
A collective gasp came from the jurors.
“I didn’t kill her.”
“C’mon, Barry. You just confessed to motive.”
“Jesus, Jake. You, more than anyone else, know that I’m not capable of that. I didn’t kill Pam. Eddie Novak did.”
31
Lobby Rats
“Objection! No foundation. Rank speculation. Invades the province of the jury. Move to strike the witness’s answer.” Emilia Vazquez was one unhappy prosecutor.
“Sustained on the ground of foundation,” Judge Cohen-Wang ruled quickly. “The jury shall disregard the last answer after the words, ‘I didn’t kill Pam.’”
Judge’s instructions to disregard are hard as hell for jurors to follow. Try, for example, at this very moment, not thinking of an elephant. Still, to get Samchick’s accusation into evidence, there were certain rules to follow, certain foundations to be laid. I would do my best.
“Barry, did you see Eddie Novak kill Pamela?”
“No.”
“Were you present when she was killed?”
“No.”
“Did Eddie Novak tell you he killed her?”
“No.”
Well, this isn’t going so hot.
“On what basis do you conclude that Eddie Novak killed Pam?”
“Objection to the form of the question. Assumes a fact not in evidence and calls for speculation.” Emilia was not going to take my cross exam sitting down.
“Sustained. Try again, Mr. Lassiter.”
That’s the thing about the so-called justice system. It’s not really a search for the truth as that cheesy sign above the judge’s bench says. It’s a narrow inquiry into whether the state can prove that a particular defendant committed a crime. Getting proof into evidence that someone else did the crime is a high wire act.
Let me admit something right now. I wasn’t doing a very good job. As the old saying goes about people who represent themselves, I had a fool for a client. I was also rusty. My newfound status as a real estate lawyer had kept me out of criminal court. But I had come this far and I wasn’t giving up. I needed to properly get into evidence Samchick’s statement that Eddie Novak killed Pam. Problem was…Samchick seemed to be simply assuming Novak did.
When a lawyer absolutely doesn’t know what to ask, the confused mouthpiece can always resort to a form of “What happened next?” And so I did.
“Barry, after you called me at the restaurant around 9 p.m. on Saturday night June 8, what did you do?”
“Like I told the prosecutor, I probed into more detail on your accounts and then emailed you.”
“Then what did you do?”
He paused a long moment. “I called Eddie Novak and told him about the problem. All the problems. The Florida Bar could uncover the whole deal with its audit. Pam could blow the whistle for the reward. You could find out and start punching people. A certain dangerous Latin American investor could find out, and Novak and me could disappear without a trace.”
“Did you come up with a solution to all these problems?”
“Novak said–”
“Objection, hearsay!” Emilia stayed on her feet, ready for her next objection.
“Sustained.”
&nb
sp; “Barry, without telling us what Mr. Novak said, did you come up with a plan?”
“Yes, sort of. But it didn’t involve killing anybody.”
“Okay, what was the plan?”
“Like I said, bribery. We were gonna pay Pam to keep her mouth shut.”
“How were you going to do that?”
“By moving quickly. Novak and I met in the lobby of the Fontainebleau around midnight. I called your suite from a house phone in the lobby. You answered. In the background, I could hear Pam screaming at you. I decided this might not be the best time for our meeting, so I hung up.”
“Then what happened?”
“We had a drink in one of the hotel bars. Around 2 a.m., we saw you get out of an elevator and stagger toward the doors to the beach. You never saw us. The way you looked, you barely knew where you were. As we’re trying to figure out what to do, in walked Mitch Crowder. Novak recognized him right away, and for the life of us, we couldn’t figure what’s going on. Crowder took the elevator, presumably to your suite. He’s not up there long. Maybe between 2:30 and 2:45, he leaves, and Novak says–”
“Objection, hearsay.”
“Sustained.”
“Without telling us what Novak says, what does he do?”
“We know you’re not in the suite, Jake, so we figure this is our chance. I stay in the lobby. Novak goes to the suite to talk to her. To offer her ten million dollars. At the time, he didn’t know she’d already written the email to her bosses at the bank and set the wheels in motion to notify the S.E.C. about the Ponzi scheme. Novak must have lost it because when he comes down, he says, ‘She won’t be spilling no beans.’”
“Objection, hearsay. Move to strike.” Emilia was still on her feet.
“Sustained. The jury shall disregard the witness’s last sentence.”
“Sorry, Judge,” Samchick said.
“When Novak came down from the suite,” I said, “without saying what he said, what was your impression of how things stood?”
“Well, Novak left me with the impression that our problems were over.”
“Because he’d paid off Pamela?”
“No. Because she wouldn’t be around anymore to blow the whistle.”
“Because she was dead?”
