by Mike Lawson
He said the case involved a woman in her fifties, an heiress who was arrested for killing her husband, a handsome young man in his thirties. The husband played tennis at almost the professional level, could sail a boat and golf with the best of them, but had never had a real job in his life. All agreed he was basically a gigolo who had married the homely heiress for the several hundred million she was worth.
The night of the murder, the heiress and the gigolo had dinner at their county club—and got into a terrible row. Two people in the restaurant heard the heiress accuse her husband of cheating on her with a cocktail waitress in La Jolla. They also heard the heiress say that she was going to kill him. Then the heiress stormed out of the restaurant, leaving her embarrassed young husband behind, and he was forced to take a cab home.
At eleven that same night, the heiress called the police, crying hysterically, and said that a burglar had broken into her house and shot her husband. She claimed not to have been home when the shooting occurred. She did admit that she’d had an argument with her husband during dinner, after which she drove around in her cute little Mercedes convertible to clear her head. The police found a broken windowpane in the front door, which explained how the thief/killer had gotten into the house, but nothing had been stolen. The heiress assumed that her husband had confronted the thief when he broke in, and that the thief had then shot him and fled.
The cops suspected she was lying right from the get-go. They asked her to account for her time that evening, and she told them when she arrived at and departed the country club and when she got home. No, she hadn’t stopped for gas. No, she hadn’t seen anyone she knew. She had no way to prove that she’d spent two hours driving around—but then neither could the cops disprove that she had. Unfortunately—for the cops, that is—the heiress didn’t have live-in help who might have contradicted her statement. Her housekeeper/cook showed up at six every morning to prepare her breakfast and returned to Tijuana at seven each night.
When the cops asked if she would agree to a gunshot residue test and give them permission to search her house, she became shrill and indignant, outraged that they would think a person like her would lie, much less shoot her spouse. And that’s when she called her lawyer, a guy who primarily took care of her money, and he dispatched Scott Barclay.
A gunshot residue test was eventually administered to the heiress, but the results were negative. The technician who administered the test noted the woman’s hands and wrists were a startling red, as if she might have scrubbed them with a bristle brush. She had no weapon registered to her, and after a search that went on for days, no gun or bloodstained clothes were found.
On the other hand, the woman had a large estate with numerous outbuildings—toolsheds, a gazebo, a four-car garage, a greenhouse for her orchids—and, most important, she wasn’t stupid. They knew there were plenty of places on the property for her to ingeniously hide the weapon, but they never did find it. The diligent cops did, however, find two witnesses at the country club—a waiter and another diner—who heard the heiress accuse her husband of infidelity and threaten to kill him.
Lawyer Scott Barclay, at this point, was feeling fairly confident. With no murder weapon and no proof that his client had been home at the time of the murder, a conviction seemed unlikely. So what if a couple of witnesses heard her arguing with her husband? Husbands and wives argued, and the threat she’d made about killing him … Well, that was simple hyperbole.
Then Scott Barclay’s confidence in keeping the heiress out of prison dropped to zero.
The heiress stayed in her San Diego home about half the time. The other half she spent in Europe or Hawaii or wherever her fancy took her. Unbeknownst to her, a neighbor’s teenage son would sneak over to her place and go skinny-dipping with his girlfriend in her pool when she was gone. The night her husband was murdered, the kid came over to see if she was home, planning to call his girlfriend if she wasn’t. He saw the heiress walk out her door carrying something in a white plastic garbage bag at exactly nine forty-two p.m. The kid knew the exact time because he’d immediately called his girlfriend to tell her no skinny-dipping tonight, sweetie pie, and the time of the call was recorded on his cell phone. When the kid’s mom saw in the paper that the heiress claimed to have been taking a scenic drive the night her husband was killed, the kid said, “No way, Mom. I saw her.” And Mom, who had always despised the woman, called the police.
The heiress had now been caught in a go-straight-to-jail lie, since she’d told the cops she’d been tooling around in her convertible from nine until eleven p.m. The cops had two witnesses who provided a motive—the gigolo husband diddling a cocktail waitress—and a third witness who established that she was home at the time the murder occurred.
“Jesus,” Slade said to Scott that drunken night in Aspen. “How did you get her off?”
“With the help of a magician and his lovely lady assistant,” Scott said.
“What the hell does that mean?” Slade asked.
“Sorry, buddy, I can’t say more. But if you ever need a magician, give me a call.”
After David Slade returned from Aspen to New York, he took the time to research the heiress’s case—and found out that magic had indeed been involved.
The waiter who overheard the heiress accuse her husband of infidelity and threaten to kill him was Mexican. Before the trial, he scooted across the border, never to be heard from again. Slade concluded that this was fortunate but not all that surprising.
The second witness was a county club member who knew the heiress, and had been seated at the table next to her and her late husband that fatal night. She had been adamant before the trial about what the heiress had said—then, during the trial, developed amnesia. At the trial, she said she didn’t think the woman had said anything about killing her husband. It was very noisy in the restaurant. Yes, she may have heard some discussion about a woman in La Jolla but really couldn’t place the discussion in context. The San Diego papers quoted the frustrated prosecutor, in open court, screaming, “Are you shitting me!”
The prosecutor had a right to be frustrated. The most important witness was the teenage skinny-dipper. He was the one who could prove the heiress had lied about where she was the night her husband died. And if she hadn’t killed him, why would she lie? But like the Mexican waiter, the skinny-dipper disappeared before the trial. The boy’s mother was frantic, convinced that the vile heiress had paid someone to execute her randy young son.
A month after the trial, after the heiress had been acquitted—thank God for no double jeopardy—the skinny-dipper returned home, looking tanned, relaxed, and sexually sated. For the last month, he’d been having the time of his young life. He’d traveled to Thailand with a stunning young woman who was twenty-five years old and who worked for an escort service before falling madly in love with the pimply dipper. There was no record that the kid and his hooker girlfriend had left the United States using valid passports, and when the cops tried to make the boy tell them who had funded his journey to beaches in paradise, the kid—upon the advice of his lawyer—refused to tell them.
It was obvious what had happened, or at least it was obvious to David Slade. Someone had paid a gorgeous hooker to seduce a horny teenager, giving him the option of testifying at a trial or seeing the world and learning every position in the Kama Sutra. Slade supposed there were some young men who would have turned down the offer, although he doubted that he would have been one of them. The other thing that occurred to Slade was that it would have been much cheaper to put a bullet in the back of the kid’s head and drop him into a shallow grave than pay for his vacation. He couldn’t help wondering what might have happened if the kid had declined the hooker’s offer.
Following Toby’s arraignment, Slade called Scott Barclay in San Diego. After five minutes of how have you been, how are the wife and kids, Slade got to the point.
“Scott, when I saw you in Aspen a couple of years ago you told me that if I ever needed a magician I sh
ould give you a call. I need one now.”
This statement was greeted with silence.
“Scott,” Slade said.
“I was pretty drunk that night, David, and shouldn’t have said anything.”
“Scott,” Slade said again, the single word reminding Scott of their quarter-century friendship.
“Okay, but this is not a subject I’m willing to talk about on a telephone,” Scott finally said.
“You could email me,” Slade said. Before Scott could respond, Slade said, “That was a joke, Scott. Lighten up. I’ll see you tomorrow.”
The next day Slade flew to San Diego and took his good friend to dinner at Morton’s. Slade waited until they finished a meal that included two bottles of wine and center-cut filets mignons, at a cost of five hundred dollars. Over brandy, he finally said, “So, Scott. Tell me about the magician.”
“There’s a lawyer in Minneapolis named John Bronson,” Scott said. “I’ve known John almost as long as I’ve known you. He practiced in San Diego for years before he moved to Minnesota. He’d read about my case—it was all over the tabloids—and suggested I come see him. He said he knew some people who might be able to help, but he wouldn’t say more than that over the phone. So I flew to Minneapolis.
“John told me he’d had a case similar to mine. He wouldn’t share the details, but he said the prosecution’s case was based primarily on a witness, and that he’d used a team, referred to him by another attorney, to turn things around.”
“‘Turn things around’?” Slade said.
“Those were the words he used. John said this team only took on cases where the client had a lot of money, and where the prosecution was relying mostly on witnesses as opposed to hard evidence like ballistics or DNA. They charged John’s client two million.”
“Whoa!” Slade said.
“Yeah, whoa,” Scott said. “Can your client afford them?”
“No, but his daddy can. And I take it that after you talked to Bronson, you bought this team in to help with your case, with all those witnesses you had.”
“I’m not going to talk about my case,” Scott said. “And that’s final. But if you want to consult with them, call a lawyer named George Chavez in San Antonio.”
“Chavez,” Slade repeated.
“Yes. Tell him you need to hire an exceptional jury consultant. Use those exact words: ‘exceptional jury consultant.’ He’ll ask who referred you to him and you can give him my name, just like I gave him John Bronson’s name. These people apparently work on a referral basis. Chavez will ask you what the case is so they can do some research and decide if they want to get involved. Then you might hear from them or you might not.”
Scott finished his cognac and said, “David, I love you like a brother, and that’s the only reason I’m helping you. And unlike John Bronson, I’m not going to stick you with a referral fee. But, buddy, if you ever claim we had this conversation I’ll deny it, and then I’ll spend the rest of my life trying to find some way to fuck you.”
7
David Slade flew back to New York the next day and asked Henry Rosenthal to come to his office at five. He told Henry not to bring his son or his wife, that it wasn’t in their best interest to hear what he and Henry needed to discuss. He didn’t say that he didn’t trust Toby or Miriam, or that he didn’t want to listen to Miriam’s hysterics, but those were two more reasons why Slade wanted Henry to come alone.
Henry arrived promptly at five and Slade’s fifty-something secretary ushered him into Slade’s office. Slade understood his own nature well enough to know that hiring a pretty young secretary would not be good for his marriage. Slade had no way to know then that in the end, everything would almost unravel thanks to a middle-aged secretary.
Slade asked Henry if he’d like a drink. “I don’t know about you, but I could use one,” he said. He almost added, And after we talk, you’re going to need one.
Henry said, sure, a scotch would be good, and Slade poured them two Macallans.
“You did a good job at the arraignment,” Henry said. “I was terrified they weren’t going to grant Toby bail. And was it true what you said about the lineup being flawed and the witnesses’ statements being contaminated?”
“The part about the bad lineup was true. I have no idea, however, if the witnesses were allowed to talk to each other before they gave their statements to the police. It doesn’t really matter.”
“It doesn’t matter?” Henry said.
“Henry, as things stand right now your son is going to jail. He’ll be convicted of manslaughter as opposed to murder two, and spend at least seven years behind bars. And that, I’m afraid, is a best-case scenario. The state has four reliable witnesses who saw Toby shoot DiNunzio, and a fifth one who saw him running from the bar holding a gun.” Henry seemed to deflate. “I see,” he said. “So what did you want to discuss? Whether Toby should plead guilty and take a deal? Or did you call me here to discuss your fee, which you haven’t mentioned yet?”
“No, Henry, I did not ask to see you to discuss my fee; I trust you’ll pay me when I send you a bill. But since you brought the subject up, I imagine with a case this simple, my fee will be only about a hundred.”
He meant only one hundred thousand, which Henry understood.
“I mean,” Slade continued, “there really isn’t anything I can do other than argue that the charge should be reduced from murder two to manslaughter and then do my best to ensure they don’t give Toby an outrageous sentence. If Toby is sentenced to six or seven years in jail, and eligible for parole in four or five, I will consider that I’ve done an outstanding job on your son’s behalf. One problem we’ll have with sentencing is that the court will be inclined to demonstrate that a rich white kid like Toby is treated just as harshly as poor, minority kids. The other problem is that Dominic DiNunzio had three children. His oldest is fifteen and his youngest is eight. The court is not going to be inclined toward leniency.”
“Jesus,” Henry said. “Can you imagine what’s going to happen to Toby if he has to spend seven years with the animals in a state prison?”
“Yes, Henry, unfortunately I can imagine.”
For a moment, Slade was afraid that Henry Rosenthal was going to cry. But he didn’t. “So you’re saying that there really isn’t anything that can be done for my boy.” Then, looking defiant, he added, “Maybe I need to consult another attorney.”
“No, Henry, that’s not what I’m saying. At least not yet. You see, there is a defense I could mount. It means going to trial and not accepting a plea, and it will be risky. But if I’m successful, Toby will be found innocent.”
“What defense? I don’t understand.”
“My argument will be that Toby didn’t shoot Dominic DiNunzio. Toby was in the bar, there’s no debating that. Not only do the witnesses place him there, but his fingerprints on a glass prove he was there. But what the witnesses really saw was Toby leave the bar and another man, one who bears a strong resemblance to Toby, enter the bar immediately after Toby left and shoot Mr. DiNunzio.”
“Are you joking?” Henry said.
“No, Henry, I’m not. Maybe DiNunzio had a client who committed embezzlement and felt it necessary to silence Mr. DiNunzio. Maybe this Italian-American accountant worked for the Mafia. Who knows? But the point is, Toby didn’t know DiNunzio and therefore had no reason to shoot him. The only logical explanation is that somebody else shot DiNunzio, some person who did have a motive.”
“But the witnesses.”
“Yes, Henry, that’s the rub. The witnesses. If there were only one witness, and that witness was unreliable—say, for example, an old woman with poor eyesight or a bartender who drank on the job. But five witnesses … Five are going to pose a very knotty problem.”
“I don’t understand. What are you saying, David?”
“Let me freshen your drink before we proceed.”
Rosenthal looked understandably confused, but Slade ignored his confusion and poured him a second
scotch.
“Henry, what I’m about to say next must be said in hypothetical terms. If I don’t speak hypothetically, you and I could be accused of engaging in a criminal conspiracy. Or worse.”
“A conspiracy?”
“Yes, Henry, a conspiracy. You need to decide if you want me to proceed or not.”
“Yes, I want you to proceed! He’s my only son. So quit … tantalizing me. Spit it out!”
“All right, as long as you understand.” Slade paused, then said, “Hypothetically, if a team could be hired that could make all or some of these witnesses not testify against Toby, would you be willing to engage such a team?”
Henry immediately said, “Of course I would.”
“No, Henry, I will not allow you to do that. I will not allow you to say yes without really thinking about what I just said. This is no longer about Toby. This is now about you and me. If I proceed down this path, you and I could, hypothetically, go to jail ourselves.”
“When you say this team could make these witnesses not testify, are you saying …”
“I’m only saying what I just said, Henry. But think about it. There are many reasons why a witness might not testify. He might simply have a change of heart and decide the original statement he made to the police was incorrect. He might not appear in court to testify for some reason having nothing to do with Toby’s case. For example, a witness might flee the county because of a crime he’d committed, and thus not be available to testify. But that’s all I’m going to say. If we go down this path, I will have no control over the actions this team takes to assist Toby.”
Henry nodded. He understood. Henry Rosenthal hadn’t become an enormously wealthy man because he was stupid.
