House Witness

by Mike Lawson

  So there was always a lot of hairsplitting when it came to the difference between voluntary manslaughter and second-degree murder, but the important thing was that voluntary manslaughter was considered to be the lesser of the two crimes and therefore the penalties were less. And that was the bone that ADA Porter was tossing Slade if his client agreed to plead guilty: ten years max for voluntary manslaughter versus fifteen or more for second-degree murder.

  Slade’s response to the bone was: “I’ll think about it, Justine, and get back to you.”

  “Well, you’d better get back to me before the arraignment,” ADA Porter said. “I won’t make the offer again.”

  He believed Porter when she said she’d stick to the charge of second-degree murder and take the case to trial if Toby didn’t plead guilty immediately—Porter didn’t make idle threats—but as David Slade had no intention at this point of taking any deal short of dismissal of all charges, he didn’t respond.

  As promised, at the arraignment that afternoon ADA Porter said that Tobias Rosenthal was being charged with murder in the second degree—to wit, the intentional killing of Dominic DiNunzio. Judge Albert Martinez—a heavyset, perpetually scowling man who reminded Slade of the late Supreme Court Justice Antonin Scalia—asked how the defendant pled. Slade wished they hadn’t drawn Martinez for a judge; he was fair, but extremely impatient, constantly prodding attorneys to speed things up, as if a trial were a race against the clock.

  In answer to Martinez’s question, Toby softly said, “Not guilty, Your Honor.”

  “Speak up!” Martinez snapped.

  Toby cleared his throat and again said, “Not guilty, Your Honor.”

  Toby was completely sober, for the first time in days, and so frightened he was trembling as he stood next to his lawyer.

  “Now as to the matter of bail,” Judge Martinez said.

  “Remand, Your Honor,” Porter said. “Mr. Rosenthal comes from a very wealthy family, and since five witnesses identified him as the man who killed Mr. DiNunzio, there is no doubt he will be found guilty at trial. The people, therefore, consider there to be a significant risk that Mr. Rosenthal, aided by his family, will flee before his trial, and most likely to a country with which the United States has no extradition treaty.”

  “Your Honor,” David Slade said, “I almost don’t know where to begin in responding to such an absurd statement. First, it should be noted that Mr. Rosenthal’s father is one of the most respected attorneys in this city, and no way would he aid his son in fleeing. Henry Rosenthal, in fact, wants a trial to clear his son of these false charges.”

  ADA Porter made an unattractive snorting sound, and Judge Martinez gave her an appropriately admonishing look.

  “More important, Your Honor, the state has offered no motive for my client having murdered Mr. DiNunzio. There is no motive because my client never met or spoke to Mr. DiNunzio. Nor does the state have any physical evidence that my client committed this crime, such as the gun that was used to kill Mr. DiNunzio. And the police, with my client’s consent, performed a gunshot residue test and there was no evidence that he had fired a gun.”

  ADA Porter opened her mouth to object, but Judge Martinez silenced her with a raised hand.

  “As for these so-called eyewitnesses,” Slade said, “four times in the last three years in the state of New York, men incarcerated as a result of eyewitness testimony have been released from prison when DNA evidence proved them innocent. Four times, Your Honor. As Ms. Porter surely knows, there is no testimony less reliable than eyewitness testimony. And in this case, and as will be demonstrated at trial, the police contaminated the witnesses. The witnesses were allowed to remain in the bar where the murder occurred for approximately half an hour before they were questioned by detectives, giving them plenty of time to talk with each other and reach some sort of consensus regarding what occurred. As for the so-called lineup in which these same contaminated witnesses identified my client, I would call it laughable were it not such a serious case of police incompetence.

  “In summary, Your Honor, the state has a weak case, in spite of Ms. Porter’s statements to the contrary. My client has no intention of fleeing, his respected family has no intention of helping him flee, and he’s willing to give up his passport, wear a GPS device, or take any other action the court considers appropriate to ensure he remains within this jurisdiction. And one final point, Your Honor. The state has charged my client with murder two when, if he’d actually committed this crime, the more appropriate charge would be voluntary manslaughter, and, as you know, it’s extremely rare that manslaughter defendants are not given the opportunity to post bail. We all know how full the court’s calendar is, and it would be a miscarriage of justice for my client to have to spend months in jail prior to his trial.”

  Porter again started to object, but Martinez raised a hand, signaling that he’d heard enough, then looked down as if he might be consulting a document. He was actually looking at a text message he’d just received from his wife, reminding him not to be late for a dinner party.

  “Bail is set at one million dollars,” Martinez said.

  As Slade was leaving the courtroom, he stopped to speak to Henry and Miriam. Henry immediately said, “When can we get together and talk about Toby’s defense?”

  “Not for a couple of days. I need to—”

  “If you have higher priorities than Toby’s case, David, I need to know right now.”

  “I don’t have a higher priority, Henry. Toby’s my only priority. But there’s a man I need to speak to about the case, and I may have to travel to talk to him.”

  “Who?”

  “I’m not going to tell you that—I can’t tell you. But as soon as I’ve spoken to this person, we’ll get together. I promise.” Then, looking directly at Miriam Rosenthal, he said, “Before I leave, there’s something I need to make sure you both understand. You cannot, under any circumstances, talk to anyone about what Toby told you the night he was arrested.” They both nodded, Henry looking grim, tears welling up in Miriam’s eyes.

  Slade was particularly worried about Miriam—and he made it clear that he was. “This is important, Miriam: I know you’re in pain right now and would probably like to talk to someone—a friend, your sister, your rabbi. But you can’t. You absolutely cannot do that. If you do, you’ll destroy Toby’s life.”

  That was unfair—Toby had destroyed his own life—but he had to make sure she got the message. “Do you understand, Miriam?”

  She started to say something, but then started sobbing, so Slade said to her husband, “You need to make sure she understands, Henry.”

  5

  Justine Porter crammed the case folder on Toby Rosenthal into her briefcase. Actually, it was more like an airplane carry-on bag—a small suitcase with wheels—because she was always working on a dozen cases simultaneously, running from courtroom to courtroom. She’d just zipped the bag closed when a man said, “Can I speak to you for a moment?”

  She looked over and saw a broad-shouldered, muscular guy. He was younger than she was and good-looking: thick dark hair, blue eyes, a prominent nose, a big square chin with a dimple in it. He was on crutches, but she didn’t see a cast on a foot or anything else, and she wondered what the crutches were for.

  “Who are you?” she said.

  “My name’s Joe DeMarco. Dominic DiNunzio was my cousin. Well, not exactly a cousin, but sort of.”

  “What’s that mean, ‘sort of’?”

  “Dominic’s mother is my godmother. I always called her Aunt Connie. And Dominic, being her son, I always thought of him as a cousin.”

  Aw shit, Justine thought. She had already spoken to Connie DiNunzio—when Connie called to threaten her. If you’d been around New York politics for any length of time, you knew that Connie DiNunzio was a major player up in Albany. As for the threat, Connie had said that if her son’s killer wasn’t sentenced to the maximum time in prison, she would do her best to get Justine fired. Normally, Justine would ha
ve lost her temper, but she restrained herself, as she knew she was dealing with a grieving mother. And now here was Dominic’s sort of cousin, and she assumed he was here for the same reason: to tell her she’d better make sure that rich, white Toby Rosenthal didn’t slip through some crack in the judicial system.

  “Look,” Justine said, “I have to get to another courtroom. I’m sorry about your cousin, and like I told your aunt, I’m going to make sure he goes to jail. The case is strong, and I’m going to get him. That’s a promise.”

  “That’s good to hear,” DeMarco said, “but you need to know something. I represent John Mahoney.”

  “John Mahoney?” Porter said. “Which John Mahoney?”

  “The one who’s the minority leader of the U.S. House of Representatives. Mahoney is a close friend of Connie DiNunzio, and I wanted you to know—”

  Now this was starting to piss her off, this guy telling her that a DC heavyweight was going to bust her balls. She interrupted him and said, “What did you say your name was again?”

  “DeMarco. Joe DeMarco.” Then he did a little balancing act on the crutches, pulled out his wallet, and handed her a business card. It read “Joseph DeMarco,” and there was a phone number with a 202 area code, but no job title or anything else.

  DeMarco said, “What I was starting to say was that John Mahoney is a man with a lot of influence and he has a very deep, personal interest in this case. So all I wanted to tell you was that if you need anything, anything at all, call me. Okay?”

  Justine said, “Well, I appreciate that, but you can tell Congressman Mahoney that I have this one under control. Now I gotta run.”

  DeMarco started back up the courtroom aisle, and one of his crutches hit a leg on the defense table. He wobbled a bit but didn’t fall. Fucking crutches. He’d be glad to be shed of them, which wouldn’t be for a couple of months.

  He wondered how good Porter was. He hadn’t had a chance to do much research on her before the arraignment—basically he’d just looked her up on his cell phone, and seen that she’d been an ADA for more than twenty years. And she looked over fifty, which made her older than most New York ADAs he knew, and this was worrisome. Landing a job as an ADA out of law school was a good deal, but the job didn’t pay that much, particularly considering the cost of living in New York, and most ADAs moved on if they were any good. On the other hand, with five eyewitnesses, the case against Rosenthal looked like a no-brainer, and Porter could probably handle it easily.

  What he’d told Porter about Mahoney having a deep personal interest in the case was true, but he didn’t really understand Mahoney’s relationship to his aunt Connie. All he knew was that Connie had something on Mahoney—which wasn’t necessarily surprising, considering Mahoney’s character. Connie had known him back in the early days of his congressional career, and when DeMarco was looking for a job after he graduated from law school and couldn’t find one, she called Mahoney and forced Mahoney to hire him. When he’d asked Connie why Mahoney had agreed to hire him, all Connie would say was, “Honey, I’ve got his big balls in the palm of my hand. He’ll do anything I want.”

  After having worked for Mahoney for years, and knowing him the way he now did, DeMarco assumed that his boss had done some sneaky, underhanded thing and Connie had found out about it. Whatever the case, she had some hold over Mahoney, and DeMarco was grateful that she’d been able to get him a job. However, the longer he worked for the man, the less grateful he was.

  As for Dominic DiNunzio, DeMarco hadn’t really known him all that well. Dominic was five years older than him, and DeMarco only saw him when Connie came down from Albany to visit his mom in Queens. Nonetheless, DeMarco had always liked him and felt terrible that he’d been killed. Mostly, however, he felt sorry for Connie and for Dominic’s wife—whom he’d met only a couple of times—and their three kids.

  DeMarco walked out of the courtroom, took a seat in the hall, and called Mahoney. He told him that the case against Dominic’s killer was a sure thing, based on what he’d heard at the arraignment. He also said that a date hadn’t been set for the funeral because the ME hadn’t released Dominic’s body.

  Mahoney said, “Tell Connie … Aw, never mind.”

  DeMarco walked outside the courthouse, gingerly descended the courthouse steps, and tried to wave down a cab to take him to his mom’s place in Queens. But it’s hard to wave gripping crutches. In fact, it’s hard to do almost anything on crutches.

  How he’d ended up on crutches—and he still couldn’t believe it—was playing golf, which nobody would ever call a contact sport. He’d gone to a public course in Arlington, planning to play a round by himself, because the men he normally played with were all working. He was actually supposed to be working too, but since Mahoney had been visiting his congressional district in Boston at the time, who would know if he played hooky? Anyway, he got to the course and was paired up with this old guy, who’d also shown up alone.

  The guy was in his sixties, potbellied, bandy-legged, and only about five six. DeMarco’s first reaction was: Shit. He was a decent golfer and he didn’t like playing with guys who were terrible, guys who would take a dozen shots on a par 5 hole, because then the game would go too slow. And the way this guy looked, and considering his age, DeMarco figured it was going to be a long eighteen holes.

  It turned out he was right—but not for the reason he thought.

  He’d let the old guy drive first, and he’d hit the ball only about 150 yards, confirming what DeMarco had feared. But DeMarco also noticed that the guy’s drive was straight as an arrow and landed in the middle of the fairway. DeMarco’s drive, by comparison, went maybe 240, but sliced into the high grass on the right side of the fairway.

  The guy’s next shot didn’t reach the green, but again was as straight as a laser-guided missile. DeMarco’s second shot sailed over the green. Then the old guy’s pitch landed three feet from the hole, and he made the putt: par for the old guy; bogey for DeMarco. And that’s the way it went for the next sixteen fuckin’ holes. The old fart kicked his ass.

  On the seventeenth hole, DeMarco’s ball landed in a sand trap that was deeper than a coal mine. Okay, it wasn’t that deep, but it was deep. Already pissed that he was losing, and then doubly pissed that his ball had landed in the trap, he jumped down into it—maybe only a three-foot drop—and landed weird. His ankle twisted, he slammed into the edge of the trap, his hip hit the head of a rake that was there for smoothing out the sand—and a pain shot through his leg as if he’d been shot with a musket ball.

  The humiliation continued. He tried to stand and couldn’t, and they had to call an ambulance. At the hospital he learned that he had a hairline crack in a bone in the hip socket called the acetabulum. The doctor said the injury was a total fluke, one he usually saw only in car accidents or in old people with brittle bones. They couldn’t put his hip in a cast, and the only cure was for him to stay off the leg for a couple of months, not put any pressure on it at all, and eventually the bone would heal. Hence the crutches.

  The only good news about the whole thing was that the leg injury gave him an excuse to avoid a job that Mahoney had tried to give him. Mahoney had wanted him to fly up to Boston and help out with his campaign there, which meant that he’d have to run around and lean on people who owed Mahoney favors and ask for money. So he’d told Mahoney that the doctor had told him to rest as much as possible, that the crutches were only so he could make it to the toilet and microwave his dinners, and if he didn’t … Well, who knows what awful things could happen. Like what if his leg got infected and they had to amputate. Mahoney, being Mahoney, wasn’t the least bit sympathetic, but he gave in when DeMarco whined hard enough.

  But when Mahoney had told him that Dominic had been killed, he didn’t try to dodge the assignment. He owed Connie too much.

  6

  What David Slade hadn’t told Henry Rosenthal was that he needed to talk to a man about a magician.

  Two years ago Slade had gone to a legal co
nference in Aspen. In other words, he’d taken a tax-deductible ski vacation, but the main reason he’d gone was that his best friend, Scott Barclay, was attending the conference.

  David Slade and Scott Barclay had both attended the University of Virginia and then gone to law school there. They roomed together, got drunk together, and took spring breaks together in Florida. After law school they went their separate ways, Slade returning to New York and Barclay to San Diego. But like David Slade, Scott Barclay specialized in defending criminals, almost all of them absolutely guilty. In the twenty years since law school they’d kept in touch, talking frequently on the phone. They emailed jokes to each other. Their wives got along, and their families had taken three vacations together.

  The last time Slade had seen Scott was at the Aspen conference, and truth be told Scott had annoyed him. He didn’t know exactly how much Scott made, but based on his California home and his lifestyle, Slade figured that they were in about the same income bracket. With the cost of living in Manhattan, however, Slade couldn’t afford property in Aspen, whereas Scott had spent part of his time there looking at chalets in the one- to two-million-dollar range. (You actually don’t get all that much of a chalet for a million in Aspen.)

  In addition to hunting for a chalet, Scott had mentioned several times—actually, crowed about—how he’d made a killing off one client, winning a case that had been virtually impossible to win. In fact, according to Scott, a prosecutor in San Diego had been fired because of the way Scott had snatched victory out of the jaws of defeat.

  Even though he kept bragging about the case—and how it was providing the down payment on his soon-to-be Aspen chalet—Scott wouldn’t share the details with Slade. The final night they were there they got roaring drunk, and Scott finally told him what had happened, but even then he didn’t share everything.