by Mike Lawson
“Were there witnesses to the shooting?”
“I guess. There were probably a dozen people in the bar.”
“A dozen?”
“Yeah, maybe. Jesus, I don’t know why I—”
“Be quiet a minute, Toby. I need to think.”
Slade could see only one possible defense for Toby Rosenthal, and that would take a miracle. Actually, several miracles. But it was too early to worry about that.
“Toby, go get your father.”
Toby left the room and came back a minute later, following Henry like a whipped pup.
“Toby, I want you to go take a shower, a very hot shower. Scrub your hands and face very hard. Do you understand?”
“Uh, yeah, I guess.”
“And Henry, I want you to wash Toby’s clothes. All of them.” Then it occurred to Slade that Henry might not know how to operate a washing machine; he had a maid for that sort of thing.
Henry said, “Is that legal?”
Henry was bright enough to understand what Slade was doing. Slade was worried about gunshot residue and blood splatter on Toby’s clothes. But it was a stupid question to ask, especially for a lawyer.
“Of course it’s legal, Henry. They’re your son’s clothes. He’s been walking around in the rain, his clothes are wet and dirty, and if they need to be washed, he can wash them. Now, please, both of you, move quickly.”
Five minutes later—Slade assumed that Toby’s clothes were now in the washing machine and Toby was in the shower—Henry came back into the living room.
“Should Toby turn himself in?” Henry asked.
“Henry, if Toby turns himself in, and if the man he shot is dead, he’ll be convicted of aggravated manslaughter and probably spend at least ten years in jail. To complicate matters, your son disposed of the weapon he used.”
“Where the hell did he get a gun? He wouldn’t tell me.”
“It doesn’t matter. What matters is that Toby had the presence of mind to get rid of evidence, which will make it harder for me to argue that he had a mental breakdown and was in some state of diminished capacity.”
“But he was drunk. He’s still drunk.”
“Henry, half the people convicted of murder were drunk at the time they committed the crime. Being drunk is not a defense.”
“So what does he do?”
“Right now, I need to find out about the status of the investigation. I’m going to make a call and then we’ll talk some more.”
One reason David Slade was such a good defense lawyer was that he had numerous contacts in the NYPD as well as in the district attorneys’ offices in all five boroughs. He punched a number into his phone.
“Captain, it’s David Slade. I need some information and I need it right away. A man was shot this evening in a Manhattan bar called McGill’s. I need to know if the man is alive, his name, and what the police know about the person who shot him.”
As Slade was waiting for a call back, Toby came into the room, dressed in gray sweatpants, a Vampire Weekend T-shirt, and scuffed tennis shoes. He wasn’t wearing socks.
Slade said, “No, Toby. I want you to put on clothes that are similar to the ones you were wearing when I first saw you.”
“I don’t have anything like that here. I just keep a few things here in case I sleep over.”
“Toby, your father is about the same size as you. Go look in his closet. Henry, please help him. And hurry, Toby.”
Toby came back a few minutes later wearing a dark blue sport jacket, a blue shirt, and gray pants. The shirt was a lighter blue than the one he’d been wearing in McGill’s, but close enough. The pants were the correct length, but because Henry was twenty pounds heavier than his son, Toby had to tighten his belt to hold them up.
“That’s better,” Slade said.
“My dad’s shoes are kinda tight on me.”
Slade shook his head—the kid was a moron. “Just sit down, Toby. I’m waiting for a phone call, then we’ll talk some more.”
Slade walked over to a window and looked out at the city lights, thinking back on a conversation he’d had with his best friend, Scott Barclay, in Aspen two years ago. It was a good thing that Henry Rosenthal was incredibly rich. If he hadn’t been, there would have been no hope for Toby.
Slade’s phone rang. He glanced at the caller ID.
“Yes, Captain,” he said.
“The guy shot in McGill’s was Dominic Anthony DiNunzio. He was shot three times with a large-caliber weapon and he’s dead. About fifteen minutes ago, we identified the shooter. His name is Tobias Rosenthal.”
“How did you identify him?”
“He left his fingerprints on the glass he was drinking from, and his prints were on record because he got a DUI when he was eighteen. A SWAT team is on its way to Rosenthal’s apartment as we speak.”
“Thank you, Captain. You know, one of my partners has two season tickets for the Knicks and he hardly ever uses them. Would you like to use them sometime in the near future?”
“Courtside seats?”
“Almost courtside. Just two rows up, right behind the Knicks bench. I’ll send the tickets over in the next day or two. And thank you again, Captain.”
Slade turned to Toby and Henry. “Where’s Miriam?” he asked Henry.
“Lying down. She took a pill.”
“That’s good,” Slade said. He didn’t want to deal with any hysterics from Miriam. He was also relieved to see that Toby appeared to be a little more sober as a result of the shower.
“Henry, if you wouldn’t mind, please make a pot of coffee. And don’t forget to put Toby’s clothes in the dryer. Toby, I want you to drink the coffee and try to get some food into your stomach before the police get here.”
“The police are on their way here?” Henry said.
“They’ll be here soon,” Slade said. “Right now a SWAT team is breaking down the door to Toby’s apartment, and when they find out he isn’t there, they’ll start searching for him, asking his neighbors where he might be and so forth. But one of the things they’ll most certainly do is call here and ask if you’ve seen him.”
“They’ll call?” Henry said.
“Yes. And the reason they’ll call is they’ll be worried that if Toby is here and has a gun, he might be using you and Miriam as hostages. Or they might be concerned that he could be suicidal. At any rate, they’ll call. But when they call, there will be policemen out in the hallway waiting to apprehend Toby if he tries to run.”
“What do I say when they call?”
“As I said, they’ll ask if Toby is here, and you’ll say yes. And that’s all you’ll say. Then they’ll ask if he’s armed or if you’re in danger, and you’ll say no. If they ask anything else or ask to speak to Toby, give the phone to me.”
“But how do we explain Toby being here?” Henry asked. “And how do we explain you being here?”—and for a moment David Slade found it hard to believe that Henry Rosenthal was a lawyer.
“Henry, you say nothing. Nothing at all. And Toby, this is the most important legal advice I’m going to give you tonight: You say nothing to the police after they arrest you. The next time you speak will be at your arraignment, and the only thing you’ll say then is, ‘Not guilty, Your Honor.’ Is that clear?”
Toby nodded, but Slade wasn’t sure the message was getting through.
“The police are going to handcuff you, Toby, and read you your rights. You’re going to be scared. And as soon as they get you alone in the back of their car, they’re going to start asking you questions, questions like ‘Why did you shoot him?’ and ‘What did you do with the gun?’ They’re going to tell you that things will go better for you if you cooperate and confess to what you did. They’ll tell you that they’ll put in a good word for you with the prosecutor if you’re honest. They’ll be lying to you, Toby. If you say one word to anyone—to the cops, to the people in a cell with you, to the nice lady cop who brings you a Coke—you will go to jail for many, many years. Do you underst
and?”
“Yeah, I understand,” Toby said, and tears began to well up in his bloodshot eyes.
“I hope so, Toby. You and I are about to embark on a long, painful journey, and I am going to be with you every step of the way. But the journey will end before it even starts if you speak one word to the police without me present.
“And Henry, you need to get Toby’s clothes out of the dryer as soon as possible and hang them up in your closet. Wipe off his shoes very carefully with a wet cloth and put them with your shoes. When the police get here they are going to search your apartment.”
“They’d need a warrant,” Henry said, clearly unable to imagine the police searching his home.
“They’ll get a warrant, Henry. If they apprehend Toby here, they’ll get a warrant to see if the gun he used is here.”
For the next forty minutes, the three men sat in near silence, Slade thinking again about the conversation he’d had with Scott Barclay in Aspen, Henry most likely wondering how he’d sired an idiot. Toby, in spite of the coffee he drank, began to nod off, not having slept in days. When the phone rang, all three men jerked as if a firecracker had exploded.
Henry walked slowly over to the phone—as though he was approaching a dog that might bite him—and picked it up. Slade heard him say, “Yes”, then, “No, he’s not armed. And we’re not in any danger.” Then he handed the phone to Slade. Slade said, “This is David Slade, the Rosenthal family attorney.” Slade listened for a moment, then said, “Toby and I will be leaving the Rosenthals’ apartment in one minute, Detective. I need to have a few words with my client before we leave, but we’ll be right out.” There was a brief pause, and Slade said, “Not unless you have a warrant, Detective. But I can tell you that Toby isn’t armed and wasn’t armed when he came to his parents’ apartment. Like I said, we’ll be right out.”
Slade put down the phone and said to Henry, “As I expected, the police want to search your apartment to see if the weapon Toby allegedly used is here. I told them that you won’t allow them to search without a warrant, but they’ll obtain one in less than an hour. And while they’re waiting for the warrant, they’ll leave an officer outside to make sure you or Miriam don’t remove anything from the apartment. Do you understand, Henry?”
“Yes,” Henry said, “but—”
“There’s no time to talk, Henry. Keep in mind that in this matter, I’m not only Toby’s lawyer, I’m also your lawyer. Yours and Miriam’s. If the police attempt to question you, refuse to speak to them unless I’m present. When they conduct the search, make note of anything they take with them. We’ll meet again tomorrow, after the arraignment.”
“Will Toby be granted bail?” Henry said.
“I’ll do my best to see that he is, but you’d better put a lot of money in your checking account. Like two or three hundred thousand. Let’s go, Toby.”
Toby was visibly trembling. Slade hoped the idiot wouldn’t vomit.
Slade opened the door and shouted, “We’re coming out,” then he and Toby left the apartment. Down the long hallway, Slade could see two big men, partially out of sight in the alcove where the elevator was. They were wearing body armor and helmets with face shields, and holding automatic rifles. One of them screamed at Toby to lie down on the floor.
Slade said, “No. My client is unarmed. He’s going to raise his hands and walk down the hall toward you and you can place him under arrest.”
“Get down on the goddamn ground,” the SWAT behemoth yelled, but Slade told Toby to raise his hands and they walked down the hall together. As soon as they reached the elevator, one of the SWAT guys pushed Toby against the wall—not that hard, because Slade was watching—and frisked and handcuffed him. Then two heavyset men dressed in cheap suits—detectives, Slade assumed—stepped out of the elevator, which had been sitting stationary on the Rosenthals’ floor.
One of the detectives said they were arresting Toby for the murder of Dominic DiNunzio and read him his rights. David Slade introduced himself as Toby’s lawyer and asked to see the detectives’ identification. Their names were Coghill and Dent, a couple of NYPD dinosaurs.
Dent asked, “How did you happen to be here at the Rosenthals’ apartment when we called, Counselor?”
Slade said, “Seriously, Detective? And, Detective, I’m telling you now, in the presence of witnesses, that no one is to speak to my client without my being present. I’ll meet you at the precinct and will be there while you process Mr. Rosenthal.”
“No problem,” Dent said, and smiled—and Slade could see that the detective was supremely confident Toby Rosenthal was going to be convicted of murder.
4
Fifteen hours after Dominic DiNunzio was killed, David Slade attended a lineup in which five witnesses were separately asked to identify the man who shot him. Each witness identified Toby Rosenthal. Three of them did so without hesitation: old Esther Behrman; the barmaid, Kathy Tolliver; and the lady on the eHarmony date, Rachel Quinn.
When the bartender, Jack Morris, was asked to identify the shooter, he paused, then said, “I think it’s number four.” “You think?” Detective Dent said. “No, it’s him, number four,” Morris responded.
When Edmundo Ortiz was asked to make an ID, he said the same thing he said when Dent interviewed him at McGill’s: “He went by me pretty fast.” “But do you see the man?” Dent asked. “I only saw him from the side,” Edmundo said. Dent told the men in the lineup to all turn to the left; Edmundo would have seen the shooter’s right profile as he ran out the door. “I think number four,” Edmundo said. “You think?” Dent said, just as he’d done with Morris. Edmundo frowned and squinted at Toby Rosenthal’s face. “Si. Number four. He’s the one.”
As David Slade knew the lineup was being videoed, he didn’t bother to make notes regarding the exchanges between Dent and Morris and Ortiz.
The lineup was a joke, as far as Slade was concerned. There were five men in it in addition to Toby Rosenthal, and they were all Caucasians with short, dark hair. However, three of the men were several inches taller than Toby, two were several years older, and none of them really looked much at all like Toby. It had apparently been difficult to find short, handsome, young cops that day to participate in the lineup. But Slade didn’t complain; he did ask for a copy of the lineup video.
Following the lineup, Slade met briefly with Assistant District Attorney Justine Porter. Slade figured it was just simple bad luck that he’d ended up with Porter as the prosecutor; he really would have preferred someone else. He’d been up against her only once before—he won, she lost—but he knew ADA Porter was bright and competent, and considering the salaries ADAs were paid, competent was better than average.
Porter was in her early fifties—and she looked her age. She was about five seven, and thin, because she worked about fourteen hours a day and often forgot to eat. Her dark hair was streaked with gray, long and straight, not styled in any way; Porter didn’t have time to waste in beauty salons. She’d been married once, years ago, but was now single and had no kids. Slade suspected she didn’t even have a cat; her work was her life.
As far as ADA Porter was concerned, the case against Toby Rosenthal was, as Detective Coghill had said, “a slam dunk.” Four eyewitnesses saw him shoot Dominic DiNunzio, his fingerprints on a glass proved that he’d been in the bar, and all four had picked him out of a lineup. A fifth witness, Edmundo Ortiz, didn’t see him shoot DiNunzio, but did see him run from the bar with a gun in his hand, and he’d also picked Toby out of the lineup. There was no reason, Porter said, to waste the state’s time and money on a trial. More important, from ADA Porter’s perspective, there was no reason to waste her time. She already had a workload that would have broken the back of a Clydesdale.
“He’s been charged with second-degree murder,” Porter told Slade. “If he pleads guilty, I’ll agree to voluntary manslaughter. And I’d call that incredibly generous considering that Dominic DiNunzio was an outstanding citizen with no criminal record and the fathe
r of three, his youngest only eight.”
Slade waited for the other shoe to drop. “If he refuses to plead guilty at the arraignment, I’ll stick with the murder two charge, and if he’s found guilty at trial, which you know he will be, he’ll get fifteen to twenty years. He’ll be eligible for parole in maybe twelve, assuming he survives that long.” The implication being that a cute little guy like Toby was going to suffer miserably in prison.
Slade knew that when it came to charging his client, Porter had a dilemma. She couldn’t charge Toby with first-degree murder and expect to win at trial. By definition, first-degree murder requires “malice aforethought”—which basically meant that when Toby killed DiNunzio he’d committed a cold-blooded, calculated, premeditated crime. The eyewitness statements, however, didn’t support this definition. All agreed that Toby rushed out of the bar, then rushed back in and shot DiNunzio. Furthermore, and more important, Porter had not been able to find any motive for the killing, nor any prior connection between Toby and DiNunzio. Other than Toby Rosenthal and David Slade, no one knew what had happened in the hall outside the restroom door when DiNunzio shoved Toby and called him names. The bottom line, unless the state could find a motive, was that it would be impossible to prove Toby had premeditated or calculated in any way with regard to the death of Dominic DiNunzio. Consequently, the state had two choices: voluntary manslaughter or second-degree murder.
Although legal scholars will tell you otherwise, there really isn’t much difference between second-degree murder and voluntary manslaughter. Second-degree murder is an intentional murder, but is not premeditated or planned in advance. Voluntary manslaughter—often called a “heat-of-passion murder”—is also an intentional killing involving no prior intent to kill, but it’s committed under circumstances that would “cause a reasonable person to become emotionally or mentally disturbed.”
For example, say Bob finds his wife in bed with Tom and he pulls out his gun and shoots Tom. The law is willing to concede that Bob had cause to become emotionally disturbed, as Tom was boinking his wife. On the other hand, if Tom just pisses Bob off in a bar, and Bob pulls out his gun and shoots him, the law is less inclined to think that Bob had reasonable cause to shoot Tom.
