The bailiff disappeared and returned minutes later with fourteen jurors, the twelve who were chosen to decide the case and two alternates-nine men and five women, the two alternates being a man and a woman. Jack liked those odds. Men were more likely to convict. In Jimmy DiCarlo’s mind, they were more likely to support law enforcement. Only time would tell who was right.
Jack normally liked to keep his opening statement short. Give the jurors enough to get them interested but leave them hanging a little so they’ll pay attention. In this case, however, it was more important to poison the well at the earliest possible moment. He decided to give them almost everything he had.
Jack walked to the podium empty-handed. He spent a moment pretending to situate himself. He was actually waiting for the jurors to become a little impatient and focus their attention on him. It was a tactic he’d learned many years ago as a young lawyer. When the time was right, he moved his eyes from the tips of his shoes and looked at each one of them individually.
He started by telling them about Rudy.
“Rudy Kelly was nineteen years old, liked by everybody. Never did a thing wrong. Rudy worked at the convenience store for a man named Benny Dragone. You’ll meet Benny. He’s going to testify.” Already he was having a conversation with them, as if nobody else was in the courtroom. “Now Rudy was, what you might say, ‘a little slow.’ His principal, Bill Yates, will tell you that young Rudy did not have the intellectual capacity to finish high school because he was so slow. He received an attendance certificate instead of a diploma. That is why he was working at the convenience store. It was the only job he could get. Mr. Yates will also tell you that Rudy was so friendly he would talk to anyone. That’s why Mr. Yates told Officer Brume, one of the defendants here-” Jack paused to point directly at Wesley Brume, who started squirming in his seat as if on cue. “He told Officer Brume that he should not talk to Rudy without his mother being present-something that Benny Dragone also emphasized to Officer Brume.
“Now I should tell you at this point that Rudy did visit Lucy Ochoa, the young lady who was murdered, on the night she was murdered. According to Rudy, Lucy invited him over to her trailer that evening. He slipped and fell while he was there and cut his hand. On that same evening, three men were down the street drinking beer. Their names were Raymond Castro, Jose Guerrero and Geronimo Cruz. The police interviewed two of those men, Raymond Castro and Jose Guerrero, soon after the murder. They never interviewed Geronimo Cruz. This is an important fact because within a couple of weeks of the murder, all three men disappeared, and Mr. Castro and Mr. Guerrero were never to be seen or heard from again.
“Based on a description given by a woman named Pilar Rodriguez and the two men I just mentioned who disappeared, Officer Brume decided to pick up Rudy for questioning. He went to the convenience store where Rudy worked and spoke to Benny Dragone. Benny did not want to let Rudy go with Officer Brume because he didn’t trust him. But Officer Brume threatened Mr. Dragone with the health department and he relented, a fact that still haunts him to this day. Brume took Rudy to the police department and, before he started to interrogate him, Rudy’s mother, Elena, arrived and demanded to see her son. She was kept in the waiting room while the interrogation proceeded. Elena died several years ago from breast cancer. You will hear her testimony about this event from an earlier proceeding.
“The Bass Creek police department at the time had very sophisticated audio and video recording devices they had purchased with taxpayer money specifically to record witness statements and confessions. The murder of Lucy Ochoa was and is the most gruesome and most famous murder that ever occurred in Cobb County. Yet, when Officer Brume sat down to interview Rudy, he neglected to sound-record or videotape the interview. Officer Brume wrote Rudy’s confession out in longhand on a yellow pad and had him sign it. And the confession was not really a confession at all. Rudy admitted that he was at the house that night and admitted that he cut his hand, but he told Officer Brume that when he left, Lucy Ochoa was still very much alive. Apparently there was some further prompting by Officer Brume because he wrote on his yellow pad that Rudy said he could kill Lucy if she made him mad enough and he may not have remembered it. ‘He could kill Lucy if she made him mad enough.”’ Jack repeated the words for emphasis. “That was the so-called confession of Rudy Kelly. They took a blood sample at that time and matched it with some blood at Lucy’s trailer, and eventually they arrested and charged Rudy with Lucy Ochoa’s murder.
“Now the police had some other very important evidence that they did not disclose. In fact, nobody knew about it until recently-ten years after the murder. There was semen in Lucy Ochoa’s vaginal cavity, which meant that she had had sex that night, and the blood type of the semen was different from the blood type of the blood on the carpet-Rudy’s blood. DNA testing was not available back then, so they could not even attempt to do a DNA match, but they knew someone else had been in the house! What did they do with that evidence? Well, they created a separate rape file and the semen evidence was never produced to Rudy’s attorneys. The fact that someone else had been in Lucy’s house and had sex with her that night was kept from the defense!” Jack felt that fact needed repeating as well. “And by creating this separate rape file, they kept this evidence hidden from everyone.
“The case that the prosecution-that Mr. Clay Evans-” Jack took the time to walk over and point Clay Evans out to the jury, “presented against Rudy Kelly was a lie because the basic premise was that Rudy Kelly was the only person in Lucy Ochoa’s trailer that night.”
Jimmy DiCarlo had had enough. He jumped to his feet. “Your Honor, I object. Counsel is now testifying. He is providing his own opinion to the jury when he knows that this conviction, with all these facts presented, was upheld by the Supreme Court of the State of Florida. That is improper.”
“Approach,” the judge said, motioning to the lawyers. When they arrived at sidebar, he proceeded to bite Jimmy DiCarlo’s head off. “Counsel, if you make a speaking objection in open court again, I will hold you in contempt. You stand up, you make your legal objection, and you ask to approach. Grandstanding in here will land you in jail. Do you understand?”
“Yes, Your Honor,” Jimmy replied. “But I had to do something. You can’t unring a bell.” The judge understood Jimmy’s point. Jack was testifying and Jimmy couldn’t let that statement stand without challenging it immediately.
“He’s got a point, Mr. Tobin. You know better than to pull a cheap stunt like that.”
“I apologize, Your Honor,” Jack replied. “I should have said that there will be testimony that the case they put on was a lie, because Charley Peterson, Rudy’s public defender, is going to testify to that fact.”
“Not in this court. That’s opinion testimony about an ultimate fact and I will not allow it. If you attempt to elicit that testimony, I’ll hold you in contempt! Do you understand me?”
“Yes, Your Honor.”
“Good. Now let’s proceed. I’ll give the jury a curative instruction. And Mr. Tobin, let’s wrap this up. This is opening statement, not closing argument.”
“Yes, Your Honor.”
The lawyers walked back to their respective positions, and Judge Stanton addressed the jury. “Ladies and gentlemen, I have sustained Mr. DiCarlo’s objection. You are not to consider Mr. Tobin’s last statement that the case presented by the prosecution in the Rudy Kelly case was a lie. The Supreme Court of the State of Florida has ruled on that issue.”
Jack was pissed. He didn’t think the judge’s curative instruction needed to go that far. But he had more pressing matters at hand. He was still standing in front of the jury.
“As I was saying, the prosecution’s case did not mention the semen found in Lucy Ochoa’s vagina and the public defender representing Rudy knew nothing about it.” He paused to see if Jimmy DiCarlo was going to shoot out of his seat again, but Jimmy was a little too smart to take the bait. “So Rudy was convicted of first-degree murder and sentenced to death.
/>
“That was 1986. In 1988, the Bass Creek police department received a letter from the Del Rio, Texas, police department. They had just arrested a suspect in a rape and murder case and he had a Florida driver’s license that listed an address in Bass Creek. It was just a general inquiry letter to see if the suspect was wanted in Bass Creek for anything or if the Bass Creek police department had any information that might be helpful to them. The suspect’s name was Geronimo Cruz.
“Maria Lopez was a secretary in the police department at the time, and she opened the letter from the Del Rio police. She brought it to the immediate attention of Wesley Brume, who in turn immediately called Clay Evans.” Jack pointed to each defendant as he said his name. “Ms. Lopez heard Mr. Brume tell Mr. Evans that he would be right over and she saw him leave for Mr. Evans’s office with the letter in hand. According to Ms. Lopez, the letter was never seen again-it certainly was never placed in Rudy’s file-and the Del Rio police department was never contacted.
“You will hear from Geronimo Cruz. You will see his videotape confession to the murder of Lucy Ochoa. In addition, you will learn that the DNA from the semen found in Lucy Ochoa matched that of Geronimo Cruz. There is no doubt that he murdered Lucy Ochoa.
“This case is about a police officer and a prosecutor who were so zealous to convict Rudy Kelly of murder that they wrote out their own confession, hid evidence from the defense and refused to contact the Del Rio police department for fear that their conviction would go south. As a result of their actions and intentional inactions, Rudy Kelly was executed in the Florida electric chair on October 22, 1996.”
As soon as Jack sat down, Jimmy DiCarlo was on his feet walking around the courtroom feigning outrage at the remarks Jack had made about his clients.
“Ladies and gentlemen, both my clients are lifelong public servants. Wesley Brume is now the chief of police of the Bass Creek community he has served so well over the years. Clay Evans was appointed to the federal bench after many years as a prosecutor in Cobb County. Rudy Kelly’s case is only one of thousands of cases these men have investigated and prosecuted successfully over the years.
“Were mistakes made in Rudy Kelly’s case? Yes. Did a tragedy occur? Yes. But that does not mean these honest public servants should be accused of a crime-and certainly not the crime of murder. There are some things Mr. Tobin did not tell you in his very lengthy opening statement. He did not tell you, for instance, that he was Rudy Kelly’s attorney before he became the state attorney, so he can hardly claim to be acting here as a disinterested prosecutor. He did not tell you that Rudy Kelly had no fewer than three appeals to the Florida Supreme Court, where all the facts he told you about were brought to the attention of the highest court in this state-and all three appeals were denied. He did not tell you that he personally argued the last appeal and made virtually the same argument he presented to you this morning-the separate rape file, all of it. And his appeal was denied. He did not tell you that he made a personal appeal to the governor of this great state and brought all these facts to the governor’s attention in a bid for clemency. And his request was denied.
“The fact is that Rudy Kelly was at Lucy Ochoa’s trailer on the night of the murder around the time of the murder. His blood was found there. She was killed with a serrated knife. A serrated knife was found in Rudy’s bedroom. And Rudy admitted that he could have killed her and not remembered it. That’s pretty incriminating evidence.
“This was a tragedy. And mistakes were made at every level of state government. But convicting these men of a crime would be another tragedy. Don’t make that mistake.”
It was a short, sweet counter to Jack’s very lengthy discussion of the facts, but it was very effective. Jimmy DiCarlo practically strutted back to his seat next to his two clients.
The judge dismissed the court for the lunch break as soon as Jimmy finished his opening statement.
They say that good trial lawyers can win a case with their opening statement, convincing the jurors of the merits of their case without presenting a scintilla of evidence. Jack had hoped to do just that, but he could tell by the gloomy faces on Pat and Dick, who were waiting for him outside the courthouse, that Jimmy DiCarlo might have turned the tables on him.
“He was pretty convincing, wasn’t he?” Jack said.
“It’s still early,” Pat said, reaching out to stroke his shoulder.
“It doesn’t matter,” Dick said.
“Your witnesses will convince them,” Pat reassured him, but he could tell that she didn’t believe her own words.
After lunch, Jack tried to start his case with none other than Wesley Brume. He approached the judge before the bailiff brought the jury in.
“I’d like to put Mr. Brume on the stand, Your Honor.”
“Mr. Tobin, I know you didn’t make your reputation as a criminal lawyer, but there are basic rules that you should know. The defendant doesn’t have to testify, and you can’t put him on the stand to prove your case.” Jimmy DiCarlo, who was standing beside Jack for this sidebar conference, chuckled out loud at the judge’s comments, which were made in jest.
Jack paused to let them have their fun. Then he proceeded to make his point.
“Your Honor, Mr. Brume already testified ten years ago at the suppression hearing. I believe I can read his testimony into the record as an admission. All I’m asking the court is for permission to put Mr. Brume on the stand and ask him to read his answers from ten years ago.” Jimmy wasn’t laughing anymore.
“Judge, I object. My client has the right not to take the stand.” Jack could tell by his expression that Harry Stanton appreciated the strategy. Jimmy was already starting to lose it.
“Well, Mr. DiCarlo, you don’t disagree that Mr. Brume’s prior sworn testimony is admissible, do you?”
“I do, Your Honor.”
“And what is the basis for your objection?”
“Relevancy, Your Honor. What Mr. Brume testified to in a suppression hearing ten years ago has no relevance to this proceeding where he is a criminal defendant and it may be prejudicial.”
“Prejudicial?” the judge said in a disbelieving tone. “His sworn testimony under oath as a police officer may be prejudicial, is that your argument, Counsel?”
Jimmy was a good trial lawyer because of his presence and his speaking voice and his aggressiveness. Logical analysis was not his strong suit.
“Maybe it’s not prejudicial, Judge, but it’s certainly irrelevant to any issues in this case.”
“How do you respond to that argument, Mr. Tobin?”
“Well, Judge, I think his testimony will take about ten minutes. We could do a dry run outside of the jury’s presence, and then you can make a decision on whether the testimony is relevant.”
“That sounds logical. Why don’t we do that? Mr. Brume, take the stand here. Mr. Tobin, do you have a copy of Mr. Brume’s testimony for him to read?”
“Yes I do, Your Honor, and I have a copy for you and for his counsel as well. As you can see, sometimes a question was asked and it took three or four more follow-ups to get the answer. I’ve tried to avoid that for purposes of time and clarity and have highlighted the relevant questions and answers. With your permission, Your Honor, I will read those questions, which were originally asked by Rudy’s lawyer, Ms. Tracey James, and then Mr. Brume will read his responses. I also anticipate that the court will instruct the jury beforehand that this testimony was given ten years ago in a separate proceeding and that Mr. Brume was a detective then investigating the murder of Lucy Ochoa and that he is simply reading his previous testimony.”
“I see,” the judge said as he studied the document. “Very good. Then let’s proceed.” Judge Stanton was starting to enjoy himself. It was obvious that Jack had anticipated this entire scene before the trial began. This was going to be a real battle.
Wesley Brume took the stand, and Jack proceeded to take him through his testimony at the suppression hearing ten years before. He first brought up Bill Yates
, Rudy’s high school principal.
“Did Mr. Yates tell you that Rudy was affable and that he would agree to anything you said and that, in all fairness, you shouldn’t question him without his mother or a lawyer present?”
Brume had tried to skirt the question even back then, but eventually he was cornered and gave a definitive answer. “He didn’t say anything like that.”
Next up was Benny Dragone, Rudy’s boss at the convenience store.
The question was asked whether Brume had threatened Benny with the health department in order to get Rudy to the police station for questioning. “That’s not true. I would never do that,” Brume had replied.
Jack established that Brume began his questioning of Rudy at 3:18 p.m. and had him read that portion of his testimony where he said he was almost finished questioning Rudy when his mother, Elena, arrived at the station. He then switched to the expensive video and audio equipment that the City of Bass Creek had purchased for criminal interrogations at the station.
“How long would it have taken you to walk down the hall, fetch the video or recording equipment, or both, and install them before beginning your interview?”
“Three to five minutes.”
“Is it accurate that when you brought my client in for questioning he was already a suspect in the murder?”
“Yes.”
“And he was your only suspect at the time?”
“Yes.”
“And is it accurate, Detective Brume, that in your twenty-plus years as a police officer in this department, this is the most heinous crime you have ever investigated?”
The Mayor of Lexington Avenue jt-1 Page 33
