by Mike Lawson
He took a seat at the bar and watched Jack Morris make a martini for a customer. DeMarco felt like having a martini himself—a little medication for the pain—but since he was supposed to be an investigator on duty, he decided not to.
This was the first time he’d visited the crime scene. Because of the lighting, it wasn’t an ideal place for a witness to identify a suspect, but DeMarco would have been able to identify Toby Rosenthal if he walked through the door. The bartender would certainly have had no problem identifying him, as Toby had been sitting two feet from Morris when Morris poured him a drink before Dominic was killed.
Morris finished making the martini, dropped in a lemon twist, and placed it in front of a heavyset, swarthy guy with a five o’clock shadow at the other end of the bar. DeMarco couldn’t help noticing that the guy looked a bit like Dominic—but then a lot of guys looked like Dominic. Off the top of his head, DeMarco could name three people that he knew personally who looked like Dominic.
Morris appeared in front of him and said, “What can I get you?”
“Nothing,” DeMarco said. He flipped open his badge case and showed Morris his credentials. “I work for the Manhattan DA. I need to talk to you about the Rosenthal case.”
“You do?” Morris said, going wide-eyed.
DeMarco figured that Morris had assumed he was a cop, and most people tend to become alarmed when a cop says he wants to talk to them. So DeMarco wasn’t surprised by Morris’s initial reaction—but he quickly became suspicious of the man.
“I wanted to ask if anyone has spoken to you about the testimony you plan to give at Toby Rosenthal’s trial. I mean, someone other than the detectives assigned to the case or the ADA.” DeMarco had been about to say more, but Morris immediately said, “Nope.”
Now that was wrong. Morris should have been surprised by the question. He should have said, What do you mean, talked to me about my testimony? Who would talk to me and why would they talk to me? He should have been curious, the way Rachel Quinn had been curious, but he wasn’t. His immediate reaction was to deny—quickly and casually—that anyone had spoken to him.
“Are you sure, Mr. Morris? That you haven’t spoken to anyone about the case?”
“Yep,” Morris said. “I haven’t said anything to anyone.”
DeMarco stared at Morris for a long beat, his expression conveying his disbelief. “It would be a pretty serious situation if anyone has tried to make you change your testimony, Jack, and you withheld that information from me. What I’m saying is, you could be in deep shit, like go-to-jail deep shit.”
Now Morris was offended—or pretended to be offended. “Hey, why would I lie about something like that? I’m telling you, no one’s talked to me.”
DeMarco had been thinking that he might show Morris Ella Fields’ passport photo as he’d done with Rachel Quinn—but decided not to. His gut had told him that he could trust Rachel; that same gut was now telling him that Morris was lying to him.
“Okay,” DeMarco said, sounding skeptical, which he was. “But if someone does talk to you, you need to contact me immediately.” DeMarco placed his card on the bar and Morris, after a moment, picked it up and put it in a pocket.
“Yeah, sure,” Morris said. “Now, if there’s nothing else, I need to see if that guy over there needs another drink.”
“Where’s Ms. Tolliver?” DeMarco asked. “I need to speak to her, too.”
Morris swiveled his head, searching the bar for Kathy. “She’s around here somewhere. She might have gone back to the kitchen to get appetizers for one of the tables. Oh yeah, there she is.”
DeMarco turned and saw a stunning young woman with long dark hair and wearing a short skirt enter the bar carrying a couple of plates. She took the plates over to where two young guys were seated. The guys tried to engage her in conversation and before she walked away Kathy smiled and said something that made them laugh. She knew her tips depended on being nice to the customers and that flirting was in her best interest.
When she reached the bar, she said to Morris, “Jack, two Heinekens for those jerks over there.”
DeMarco walked over to her and said, “Ms. Tolliver, my name is DeMarco and I’m an investigator for the Manhattan DA. I need to speak to you about the Rosenthal case.”
“What?” Kathy said. Like Morris, she looked shocked, and maybe DeMarco was reading too much into it, but she seemed even more shocked than Morris had. And she looked … Hell, “guilty” was the first word that came to mind.
“Can we sit down someplace to talk?” DeMarco said.
“Yeah, I guess, but can we go outside?” Kathy said. “I need a cigarette.”
“Sure,” DeMarco said, although the way his leg was aching, he would have preferred to sit at a table and ask his questions.
He waited while she told Morris to deliver the beers to the two guys who’d been hitting on her. Then he had to wait while she searched her purse for a pack of cigarettes and a lighter—and while she was searching, she was frowning, as if she was thinking hard about something.
Outside, she lit a menthol Marlboro and blew smoke over DeMarco’s head. In the streetlight, she looked tired and older than twenty-four. DeMarco could see the lines starting to form next to her mouth: stress lines, disappointment lines, the sort of lines a woman gets when she can’t ever seem to catch a break. He could imagine what Kathy Tolliver would look like when she was forty.
“So what’s this all about?” she said.
DeMarco said the same thing he’d said to Morris, to see if he’d get the same reaction: “I want to know if anyone has spoken to you about the testimony you plan to give at Toby Rosenthal’s trial. I mean, someone other than the ADA or the cops assigned to the case.”
“I don’t understand,” Kathy said. “What do you mean?”
“I mean what I just said. Has anyone asked about the testimony you plan to give at Rosenthal’s trial?”
Instead of answering his question, she said, “Why would anyone do that?”
“Please, Ms. Tolliver, just answer the question. Has anyone spoken to you?”
She took another drag off her cigarette and looked away from him as she did—which was one reason DeMarco hated questioning smokers. Taking a puff on a cigarette provided time for stalling and coming up with a lie. Finally, Kathy said, “No, no one’s talked to me, just those two old cops and that tight-assed prosecutor.”
“You’re sure?” he said.
“Yeah, I’m sure. What does that mean, Am I sure?”
“It means you need to understand that if you lie to me you could end up in serious trouble. And if you lie in court … You do not, under any circumstances, want to commit perjury.”
Kathy shook her head, as if she thought DeMarco was being an asshole. “I wish I’d never been here the night that guy got killed. I’ve got a kid to support, and I can’t afford to miss work to testify at some trial. And now I’ve got you here hassling me.”
“I’m not hassling you, Kathy. I’m just making sure that you understand the importance of telling me the truth.”
“I did tell you the truth. Now, can I go back to work?”
Again he thought about showing her Ella Fields’ passport photo—and again he decided not to.
“Sure,” DeMarco said. As he waited for a cab, he called Justine, and left a message when she didn’t answer. “I think somebody might have gotten to two of the Rosenthal witnesses.”
Justine called him back twenty minutes later. “Are you positive?” were the first words out of her mouth.
“Am I positive?” DeMarco answered. “No. I’m going off a guy being too quick with an answer and a gal taking a puff on a cigarette.”
“What?” Justine said.
“Never mind. Look, I’m almost positive, based on the way the bartender acted, that somebody talked to him about his testimony. I’m not as sure about the barmaid, but my gut tells me that somebody might have talked to her.”
“Well, shit,” Justine said. “Do you thi
nk they’re going to change their testimony?”
“I have no idea, but I wouldn’t be surprised if they did.”
Neither of them said anything for a moment, then Justine said, “Well, I gotta find out. I don’t want to get blindsided at the trial. I’m going to reinterview them, and I want you to be there.”
35
When Jack Morris was notified that the ADA was going to reinterview him, he called Ella to let her know. “What should I tell her?” Morris asked.
“I’ll let you know,” Ella said.
Ella sent David Slade a text message saying: Meet me at the place we met the first time at 8. Text me when you arrive and I’ll tell you which room I’m in.
Slade responded by texting: It’s about damn time.
Slade was upset because he’d texted her several times since their first meeting asking for another meeting so he could get an update on where she stood with the witnesses and each time she’d refused, telling him that a meeting was unnecessary.
Slade knocked on the door of Ella’s room at the Mandarin Oriental at exactly eight p.m. It was as though he’d been standing outside the door waiting for the hour to strike. He was wearing a dark blue suit, a light blue shirt, no tie. He was, Ella had to admit, a good-looking man. Before Ella could say anything, he said, “Your behavior is completely unacceptable. I don’t have a clue what’s going on with the witnesses and what you’ve been doing. I can’t prepare a defense if I don’t—”
“Would you like a drink?”
“No, I want to know …” He took a breath to calm himself. “Yeah, fine, a scotch would be good.”
Ella took two airline-sized bottles of Glenfiddich from the minibar. “I don’t have any ice,” she said. “We’ll have to drink ’em neat.”
She handed Slade his drink. “Relax, David. We’re in great shape. I told you when we first met that I wouldn’t be meeting with you often. We just can’t take the chance of anyone putting the two of us together. It’s bad enough that there are a string of text messages between us, even if the phones we’re using aren’t registered to us. You can just never be sure these days when it comes to the privacy of telephones.”
“Yeah, I understand that, but—”
“Here’s where things stand right now,” Ella said. “Mr. Ortiz, the busboy, is on a fishing boat in the Bering Sea. Nobody else knows where he is, and he won’t be coming back to New York for the trial.”
“Yeah, I’d heard he’d disappeared.”
“Mrs. Behrman has had a stroke and will be unable to testify at Toby’s trial.”
“That was fortunate, but then considering her age, maybe not unexpected.”
“Fortunate?” Ella said. “Do you really believe what happened to her was a matter of luck?”
“Oh,” Slade said, and he looked stunned, as if it had never occurred to him that by hiring Ella he could become an accomplice to murder.
“How did you—”
“I’m not going to discuss the details with you, David. All that matters is that Mrs. Behrman won’t be testifying at Toby’s trial. Now, regarding the bartender. Do you recall what Jack Morris said at Toby’s lineup?” Before Slade could answer, Ella said, “He said ‘I think it’s number four’, after which the detective said, ‘You think?’ and Jack said, ‘No, it’s him, number four.’ Jack, in other words, wasn’t sure that Toby was the man who shot Dominic until prompted by the detective. So at Toby’s trial, Jack will say that he’s sure Toby was the guy he served a drink to, but he can’t be positive, not really positive, that Toby was the shooter. He wasn’t positive at the lineup, and he won’t be positive at the trial. Jack, you see, has a rather significant gambling addiction, and I’m enabling his bad habit by giving him cash periodically so that he can continue to gamble.”
For the first time since entering the room, Slade smiled. “You’re good.”
“I had help,” Ella said, wanting to maintain the illusion that she had a partner.
“What about the barmaid?”
“Kathy Tolliver has a child, a darling little girl,” Ella said, “and she’s involved in a custody battle with her ex-husband’s parents. The basis for the custody battle is that Kathy has a history of substance abuse. Kathy has been clean the last nine months, attending NA meetings, but unfortunately she recently fell rather badly off the wagon. She OD’d on something, passed out on the street, the medics were called, and she had to be taken to a hospital. There’s a record of her stay in the hospital, of course. And because Kathy was in the hospital, she didn’t pick up her little girl from the babysitter’s until six the following morning. The good news for Kathy is that the only one who knows about her falling into her prior bad ways is me. Her kid’s grandparents won’t learn of her slip, provided she testifies to what she really saw at Toby’s trial.”
“And what did she really see?” Slade asked, now looking amused.
“Kathy can definitely say it was Toby sitting at the bar. She has no doubt about that. She was standing only five or six feet from him. But was it Toby who shot DiNunzio? DiNunzio was seventy feet away from her, in a dimly lighted bar, and now, months later, she just can’t be positive that he shot DiNunzio, although it was certainly someone who looked like him.”
“I like it,” Slade said. “What about the last witness, Quinn?”
“I haven’t figured out what to do with her. You may just have to live with her testimony.”
“That’s not good,” Slade said.
“David, right now there are two witnesses who are going to say that they can’t identify Toby as the shooter. So the only witness who will be able to identify Toby is a woman who says he ran past her table after DiNunzio was shot.”
Slade, being a lawyer, wanted to debate the issue—lawyers want to debate everything—but Ella kept going, “David, the killer was running. Do you recall what Rachel Quinn said to the detectives when they interviewed her in the bar?”
“No, not exactly. I’d have to look at her statement again.”
“Well, I know what she said. She said she never saw Toby sitting at the bar; she was too busy flirting with her date. She said she saw Toby—or the man she thought was Toby—walk over to a table and shoot DiNunzio. But Toby’s back was to her when she saw him shoot DiNunzio. Then she said she saw him run out of the bar. When the detective asked if she got a good look at the shooter’s face, she said, ‘A good look? Well, he ran past me, but I’m pretty sure I’d recognize him again.’”
“She picked Toby out of the lineup without hesitation,” Slade said. “She said she was certain he was the shooter.”
“Yes, but at this point, as I already said, she’s the only witness who’s certain, and she wasn’t certain when the cops first interviewed her. And since the other two witnesses will testify that they can’t be sure it was Toby, I’d say you have more than enough to create reasonable doubt.” Which made Ella think of Bill calling himself the Creator of Reasonable Doubt. Now she was the Creator.
“I don’t know,” Slade said. “I’d feel better if—”
“Let’s move on,” Ella said. “Let’s talk about the man who really shot DiNunzio.”
She opened the manila file folder that had been sitting on the coffee table between her and Slade, and placed an eight-by-ten photograph of Dante Bello on the table. Tapping the photo with one red fingernail, she said, “There’s your killer. His name is Dante Bello.”
Slade studied the picture and said, “He certainly looks like Toby. I mean, he’s not an exact doppelgänger, but—”
“Dante Bello is five feet six inches tall. Toby is five seven. Dante weighs only five pounds more than Toby, and he’s only three years older than Toby. He has Toby’s dark hair and regular features, and I believe he could be mistaken for Toby running out of a dimly lit bar. Furthermore, Dante Bello is a low-life hood employed by a Mafia boss named Vinnie Caniglia.”
“Caniglia? That name sounds familiar.”
“It should. Vinnie stole twenty thousand dollars’ worth of
Viagra, and the press here had a ball with the story.”
Slade laughed. “Oh, yeah, now I remember.”
“Dante Bello,” Ella said, “is a violent little thug, and a stupid one. He has one conviction for assault and multiple arrests for assault. There’s a pattern of him getting drunk and beating up folks who offended him for one reason or another.”
“But why would he shoot DiNunzio?” Slade asked. “How did DiNunzio offend him?”
“Before I answer that question, do you recall a shooting that happened in the Bronx at the Patterson housing project about two months ago?”
“No. Why would I?” Slade asked. People who lived in housing projects weren’t the sort he represented—or paid attention to.
“Well,” Ella said, “a young black man shot another young black man because the victim was wearing a gray hoodie and the shooter thought he was the guy in a gray hoodie who’d ripped him off in a drug deal. It was a case of mistaken identity. I did a very quick Internet search and easily found two other cases in the last year where men were killed by mistake. All three cases were gang-related. Two involved men connected to drugs, the one here in the Bronx and another on the south side of Chicago. The third case was in LA, involving a Hispanic gangbanger killing a student because the student looked like the guy who’d shot the gangbanger’s brother. I’m willing to bet that if I did more research, I’d probably find a dozen other cases where men were killed because they were mistaken for the wrong person.”
“And that’s what you’re saying happened with DiNunzio? That this Dante character mistook him for someone else?”
“Exactly.”
“So who was he mistaken for?”
“About a month before Dominic DiNunzio was killed, Vinnie Caniglia and some of his crew got into a brawl with another gang of thugs in Atlantic City. The leader of the other gang was a man named Carmine Fratello. Punches were thrown, Vinnie’s nose was broken, and witnesses heard Carmine and Vinnie threaten to kill each other. There’s actually a YouTube video of the fight. Anyway, according to the Daily News, there was a history of bad blood between Vinnie and Carmine. I have no idea if this is true, but it doesn’t matter, because the paper said it was so.”
