Longhorn looked at me with a satisfied smile.
Judge Morano said, “Miss Fox, you know better than this. You can’t ask Agent Longhorn to give hearsay testimony.”
“I don’t intend to, Your Honor. With the court’s indulgence, I only have a few more questions for the witness and they will not pertain to hearsay.”
Judge Morano let out a scowl and said, “A bow, Miss Fox. Tie it quickly, please.”
“Special Agent Longhorn, do you have in your possession tape recordings of the defendant discussing the death of his wife?”
The boom microphone recordings. That is why I believed our trip to Attica had been worthwhile. Hernandez said that Gonzales had bragged about killing Benita during their last conversation before the FBI had arrested them. As soon as he’d said that, I’d known their conversation would be on tape recorded by the FBI with the boom microphone. I didn’t need Hernandez to testify. If those tapes still existed, I had the killer himself being overheard discussing his wife’s death on tape.
Longhorn twisted in the witness chair and said, “With all due respect, the tapes that you are citing are the property of the FBI and are covered by Rule 6 and federal grand jury secrecy. I can’t discuss their contents.”
I had no intention of letting him wiggle free.
“Your Honor, the state contends that Agent Longhorn has in his possession certain investigative materials that are relevant to this case. I would now ask that the court order Agent Longhorn to surrender either the original or certified copies of any materials that apply directly to this trial.”
“We’re going to take a short recess,” Judge Morano said. “I want both counsel and Agent Longhorn to come into my chambers.”
Judge Morano’s office didn’t look any cleaner since the last time that I’d entered it and he’d blown cigar smoke in my face. Removing his robe and hanging it on a hook, he said in an irked voice, “Exactly what is going on here, Miss Fox?”
“Your Honor, I believe the FBI used a boom microphone to listen to and tape-record a conversation that was held between the defendant and two NYPD officers who are now serving time in prison on corruption charges.”
“What the hell is a boom microphone?” the judge asked.
“It’s a directional microphone that can listen to conversations from a long distance away without suspects knowing that they are being observed and recorded,” I said.
“And what makes you think the FBI tape-recorded the defendant in this matter?” the judge asked me.
“Both of the NYPD officers pleaded guilty after their attorneys were advised of the contents of the FBI tape recordings. I have been told that the FBI allowed these men’s defense attorneys to listen to the tapes so they could fully advise their clients. Obviously, if the tapes already have been used in other criminal matters, then they do exist.”
“Assuming these tapes exist,” Judge Morano said, “exactly what do you expect to hear on them?”
“I have been told that Carlos Gonzales bragged about killing his wife while the FBI was secretly tape-recording him and the two officers. I believe it is within the prosecution’s rights to have the portion of the tape-recorded conversations that are relevant to this case submitted in court and played to the jurors as evidence.”
Judge Morano said, “Are you telling me the FBI has tape recordings of this defendant discussing a murder that he committed and the bureau did not surrender them to you as a prosecutor?”
“That’s exactly what I’m telling you, Judge.”
Judge Morano gave FBI Special Agent Longhorn a puzzled and angry look. “I’ve heard of prosecutors hiding statements from the defense, but never heard of the FBI hiding damning information from a prosecutor. Is what she’s saying true, Agent Longhorn? Do you have information about this alleged murder that you are intentionally withholding?”
“Judge,” Longhorn said, “as you noted, the law is clear that the state must provide evidence to the defense that might help prove his innocence. That’s exculpatory evidence. But I do not believe there are any statutes that require the FBI to provide evidence, especially information protected by Rule 6(e) of the Federal Rules of Evidence, to a local prosecutor to help prove their case. That’s not exculpatory; in fact, that’s inculpatory.”
I noticed that Agent Longhorn had dropped his habit of using folksy homilies.
“Special Agent Longhorn,” the judge said, “that’s one of the worst excuses I’ve ever heard. If you have evidence that can help the prosecution, then why in the hell haven’t you given it to Miss Fox? For godsakes, you’re supposed to be on the same team.”
“I’m not required by law to assist her,” he said.
“Like hell you’re not!” the judge snapped.
“Judge, these tapes are the property of the U.S. government,” Agent Longhorn replied. “They involve sensitive investigative information and confidential informants. I would have to consult with the U.S. Attorney and the Justice Department and I am sure that they will oppose releasing this material.”
If Judge Morano was irritated before, he was now fuming. “Miss Fox just said the FBI had turned over portions of those tape recordings to defense attorneys in another case. I’m going to issue a court order, demanding that you surrender those tapes to me by this afternoon so that I can listen to them, in the presence of a representative from your office and the U.S. Attorney’s office. If I hear anything on those tapes that I believe is relevant to this trial, I will require those portions to be provided to Miss Fox and allow them to be submitted as evidence. If the tapes do not contain anything relevant, Miss Fox and I will have an unpleasant chat later.”
“I’m sorry, Judge,” Longhorn said, “but I’m not sure I can go along with your request.”
Judge Morano rocked back in his seat and said, “Agent Longhorn, I don’t seem to be making myself clear to you. This is not a request. You will either get those tapes to me by three p.m. today or you will be held in contempt of my court and jailed. Of course, you can attempt to get a higher court or a federal court to intervene and stay my order, but I’ve been on the bench a long time, son, and I know a lot of federal judges. If find out that you’re intentionally withholding information that can aid the prosecution in a murder trial—you’re going to run into legal skepticism and some extremely unfavorable publicity. You have until three p.m.”
Agent Longhorn looked to Pisani for help, but for once in his life, Mr. Invincible was at a total loss for words.
56
The first time jurors heard the voice of Carlos Gonzales was when the clerk flipped on a reel-to-reel tape recorder that had been brought into the courtroom. It was Tuesday morning. Judge Morano had spent much of Monday night listening to FBI tapes and had ruled that exactly three minutes of a conversation that Gonzales had held with Antonio Hernandez and his fellow officer, Andy Bravero, was relevant to our trial and could be played. After Judge Morano called court into session, I quickly moved through the legal steps necessary to get the snippet admitted as evidence. Once that was done, the court clerk had turned on the player.
The first voice was Gonzales’s.
“You don’t think I got big enough cojones for murder? Is that right? Well, let me tell you both something that might surprise you. I snuffed my old lady, man. I did her. And the cops—they’re so stupid they think she killed herself.”
Judge Morano had decided that the person who spoke next did not need to be identified by name but rather would be referred to during the trial simply as voice one. I recognized him. It was Antonio Hernandez.
“Okay, Carlos, tell us, how’d you snuff your old lady?”
“I used blow, man. I mixed it with milk and then had my kid take the glass up to her in our bedroom. The dumb bitch didn’t have a clue she’d been poisoned until it was way too late.”
“Why’d you do her?”
That question came from a different voice. I assumed it was Hernandez’s partner, Bravero.
“She was gonna take the ki
ds and leave me. She threatened to go to the cops. I put five grams in that milk, man. It took forever to dissolve.”
“She must have checked out higher than a kite,” voice one could be heard saying.
“Naw, she started vomiting. I was with her in the bedroom to keep her from going for help. I held her down. Looked right into that bitch’s eyes when she was dying. So don’t tell me I don’t have big cojones.”
The tape came to an end.
I announced, “I’m done with Agent Longhorn as a witness.”
Pisani knew he was in trouble. But he also knew that he had a friendly witness sitting in the chair who wanted to help him.
“Agent Longhorn, as an FBI agent, you could have charged my client with murder when you first heard his words on that tape. Isn’t that correct?”
“I could have.”
“But you didn’t. Why?”
“Shucks,” said Longhorn, falling back into his good ol’ boy voice. “I thought he was exaggerating to impress the other men on that tape. I thought what he was saying was hogwash.”
I stared at Longhorn with complete disgust. He was bending over backward to help Gonzales go free—and for what? He’d told me earlier it was for a “greater good,” but I knew that the true greater good was that Gonzales was going to help Longhorn’s career.
57
I rested my case.
Pisani announced that his client would not testify. He also said the defense didn’t need to call additional witnesses. “The defense rests,” he announced in a confident voice. He immediately asked Judge Morano to dismiss the murder charge, claiming that I had failed to prove the elements of the crime of murder beyond a reasonable doubt. Judge Morano declined.
After a short break, we returned to court for our closing arguments.
Having studied nearly all of Pisani’s performances in earlier cases, I was well familiar with his tactics. I suspected he would begin with a personal story so he would appear to be just an average fellow, just like the jurors. He would attack the evidence, submit an alternative theory, and finally talk about “reasonable doubt.”
Just as I’d thought, Pisani began with a short anecdote, hoping to touch jurors emotionally.
“I’m not married,” he said, and then, looking at me, he added, “Of course, neither is Ms. Fox there. But I have many friends who are, and while it may be hard for you to believe it, these married couples actually get into arguments on occasion.” He gave the jurors a smug smile and wink. “Sometimes these friends have dragged me into their arguments, and when I listen to them, I realize I am hearing two very different sides to a story. That is what we have here today.”
Pisani took jurors through the testimony just as I had, but he led them down a completely different path. Dr. Swante had ruled Benita’s death was a suicide until he was asked to change his opinion by the prosecution. There was no new evidence, no reason to switch, except for a request from Ms. Fox. Dr. Swante had testified that Benita wasn’t a frequent user and then had admitted that she might have been one. How believable was he? Dr. Treater had never met Benita Gonzales so how did she know whether or not the deceased was depressed? Dr. Treater had thought one of her own patients, whom she’d known well, was not suicidal and he’d blown his head off fifty-five minutes later. So much for her credibility.
Officer Whitey McLean had not seen anything suspicious on the night when the victim’s body had been found in her bedroom. He’d told the coroner that the death looked to him like a suicide. As for Yolanda Torres, she was an admitted alcoholic and proven liar who had once falsely accused her boyfriend, saying that he had beaten and threatened to kill her, only to admit later that she’d fabricated the charges. Maria Hildago had testified that she was high on drugs when she thought the defendant might have told her something about his wife’s death. Chances are she was simply hallucinating.
Having undercut those witnesses, Pisani attacked Carmen’s testimony. She’d told jurors that Carlos beat Benita that night, but the autopsy didn’t show any evidence that Benita had been beaten. How did the prosecution explain that inconsistency?
Carmen also had admitted that she was bitter and angry at her father. “She is not a credible witness. She is an angry witness.”
Finally, Pisani explained the tape recording of the defendant discussing his wife’s death. It was braggadocio, a man trying to appear macho. “Agent Longhorn, himself, said he didn’t believe Gonzales had murdered anyone.”
Having done his best to undermine all the evidence and the witnesses’ testimony, Pisani suggested an alternative theory about what had happened the night Benita died.
Benita was clearly unhappy in this marriage. That much was certain. Carmen had brought her a glass of milk. That much was certain. Depressed, unhappy Benita kissed her daughter good night, sent her to her bedroom, and then reached into the dresser where she and Carlos kept cocaine. It always had lifted her spirits before when she was feeling blue. Benita had always been careful to hide her cocaine use from her children and everyone else. She carefully sprinkled the particles into the milk and stirred it—perhaps with her own finger. She drank it. Her husband heard her cries later, raced upstairs, and saw her already dead on the bed. “This is not a murder. It is a tragedy. A suicide.”
Pisani added, “This is not just the defense’s theory about what happened that night. It is what the police and the coroner believed happened at the time. What changed their minds? Was it scientific evidence? No! It was an overzealous prosecutor named Dani Fox with an ax to grind.”
Pisani was now making me the villain—a bitter, unmarried woman.
One of the first lessons that I’d learned as a prosecutor was that oftentimes a subtle bond is created between a defendant and jurors during a trial. Sitting together through tedious testimony, hearing intimate details about a person’s life and personality, and knowing that another human being’s fate is in your hands can create the impression that a defendant is not so different from the persons judging him. There was a tendency for jurors to think that defendants were just like them. That they shared the same values. It was difficult, I’d learned, for jurors to look at someone so ordinary, so seemingly respectable, and think of them violently poisoning their spouse. Jurors wanted to believe the good in a person. Sadly, jurors tended to empathize with defendants without even realizing it.
Pisani was using that to his full advantage.
Continuing his attack, he said, “Look at what sort of witnesses Ms. Fox is asking you to believe. An assistant medical examiner who is so weak-spined that he changes his ruling just because she asked him to. A psychiatrist who discharged a young patient only to have him kill himself. An alcoholic best friend who is an admitted liar. A hallucinating stripper and the defendant’s own bitter daughter. Who would want their fate determined by such questionable testimony? If you look for cold, hard evidence, you will find that there is none. The only evidence is that this poor woman died from an overdose taken in milk. No one knows who put that cocaine there or why.”
Pisani ended in his traditional manner: by discussing reasonable doubt. “Your job is to determine whether the evidence proves guilt beyond a reasonable doubt. This means you must decide if the evidence is truthful and compelling. I know you’ve all seen photos of Lady Justice. She is wearing a blindfold and holding a scale. As jurors, you are required to put guilt on one side of that scale. On the other side, you put reasonable doubt. Under our legal system, if there is even the slightest bit of reasonable doubt—even the weight of a feather—on those scales, then the law requires you—it doesn’t really give you a choice—it demands that you to find the defendant not guilty regardless of what’s on the other side—no matter how heavy that side is.”
Continuing, Pisani said, “Every accused person in our society is presumed innocent until the state proves otherwise. The law demands that you begin your deliberations by recognizing that my client is innocent. It’s up to the prosecutor to prove him guilty. The defense doesn’t have to so
lve this case or explain loose ends. That is not our responsibility. The law says my client is innocent until the state presents such evidence that every one of you is convinced beyond a reasonable doubt that he committed this crime. When you retire, remember those scales, remember that if there is the slightest feather of doubt—and I promise you that there is plenty of reasonable doubt in this case—then you must acquit my client.”
I had to hand it to Pisani. He’d used every trick in the book: equating reasonable doubt with a feather, yelling at times and whispering at others, making his closing a call to justice that any law-abiding citizen would acquit this murderer. He was good.
58
As Pisani returned to his seat, I glanced at the notes I had been carefully scribbling during his closing, nervously reached into my pocket, and removed a Junior Mint that I had taken from my desk and stashed there. I waved my hand across my mouth to hide what I was doing and chewed it.
It was my job to counter his argument in my closing remarks. I took a deep breath and stood.
The prosecution goes last and I carefully and methodically went through the evidence that each witness had given. In doing so, I challenged each of the points that Pisani had just presented. Dr. Swante had testified the milk found in the victim’s body had been laced with cocaine. He’d assured the jury that there was no evidence that Benita had been a frequent user of cocaine as her husband had claimed. “Carlos Gonzales lied about that,” I said.
Dr. Treater had testified that in her opinion Benita had not appeared depressed or suicidal. “Carlos Gonzales lied about that.” Officer McLean testified that Gonzales had appeared nervous that night and had told him that Benita frequently chewed rock cocaine. “Carlos Gonzales lied about that.” The policeman also testified that the entire bedroom had been tidy. If Benita’s death had been a suicide, why had Gonzales cleaned the room before notifying the police?
Sly Fox Page 28
