Spencer ignored Milton Jeffries’s last sentence. “I have no further questions of this witness, your honor,” he said in as dismissive a manner as he could muster.
They broke for lunch after that. Under any other circumstances Jack would have wanted nothing more than to have lunch with Dick, Joaquin, Henry, and Charlie. He still had work to do, however, and lunch was a luxury he could not afford. Milton and Charlie’s testimony had presented the jury with an alternative theory about why Carl was murdered. But Spencer still had Benny at the scene and Benny with the gun. Jack could see him belittling the defense’s “conspiracy theory” during his closing: The defense has given you nothing but wild and unsubstantiated theories. You also have the facts before you, ladies and gentlemen, facts you can get your arms around. Jack knew he needed to deal a blow to Spencer’s facts. That was what he was hoping his final witness would accomplish, but it was a very, very risky move that could easily backfire.
When he was trying civil cases as an insurance defense attorney, he had a mantra that he followed religiously: Pigs get fat. Hogs get slaughtered. It meant that you didn’t try to go too far if you already had enough evidence to make your case. You never called a witness who could kill you-unless you were desperate.
Those were the rules for civil cases where, if you made the wrong decision, your client paid a lot of money. Here, the wrong decision could very well cost Benny his life.
Jack didn’t make his final decision until the jurors were seated and the court was ready to proceed.
“Call your next witness,” the judge told Jack.
“The defense calls Detective Nick Walsh.”
Nick followed the bailiff into the courtroom wearing a plain and rather undistinguished brown suit. He swore to tell the truth and took the witness stand, appearing to be as comfortable as if he were sitting in his own living room. Jack noticed and wondered if Nick was so relaxed because he knew he was going to blow the defendant out of the water.
“Detective Walsh, you were the lead homicide detective investigating the Carl Robertson murder, correct?”
“Yes.”
“And you made the decision to arrest the defendant for that murder, correct?”
“Yes.”
“And what is the standard to make an arrest?”
“Probable cause.”
“And that is a different standard from ‘beyond a reasonable doubt’?”
“Yes, it’s a much lower standard. We arrest when we feel there is a reasonable basis to do so.”
“Do you stop investigating when you arrest someone?”
“No. At least, not usually.”
“Now, I want you to recall your first interview with Angela Vincent, Carl Robertson’s mistress. Do you remember that?”
“Yes.”
“Ms. Vincent told you that Mr. Robertson got a phone call two weeks before his murder, is that accurate?”
“Yes.”
“Was there anything significant about that phone call to you?”
“Well, Ms. Vincent said that Mr. Robertson was excited about the call and he wrote down two words on a notepad, Gainesville and breakthrough.”
“Did you know at the time what those words meant?”
“I didn’t have a clue.”
“Did you think they were important?”
“Everything in an investigation is important.”
“Did you ever find out what those words referred to?”
“No.”
“In your second interview with Ms. Vincent, she told you about a woman named Lois Barton whom she’d met not long before Carl Robertson was murdered, correct?”
“Yes.”
“And is it correct that she was having an intimate relationship with this woman?”
“Yes.”
“What did she tell this woman about Mr. Robertson, if anything?”
“She basically told her everything-the days that he came to visit, the ten thousand dollars he brought her every month. She even told her when he brought it.”
This was the tricky part. This was where Walsh could go off on the supposition about Benny and the mysterious Lois Barton being partners. Jack had already gotten rid of the felony murder count, but any hint of a partnership and Benny was almost certainly sunk in the eyes of the jury.
“Was this Lois Barton a suspect?”
“Yes.”
“Did you ever find her?”
“No.” The crowd started murmuring. Judge Middleton rapped his gavel on the dais and, like trained dogs, they stopped.
“I assume, then, that your investigation continued after the defendant was arrested, is that correct?”
“No, that’s not correct.”
“No? Is there a reason why you stopped looking for this woman?” Jack was in that proverbial no-man’s land again. He had no idea what Walsh was going to say.
“I was told not to.”
Jack felt that statement was worth repeating. “You were told not to?”
“Yes.”
“By whom?”
“By my superior, Assistant Chief Ralph Hitchens.”
“What were the circumstances that caused Assistant Chief Ralph Hitchens to tell you to stop your investigation?”
“He just called me in his office.” Nick Walsh looked right at Spencer Taylor. Jack thought he saw a smile cross the detective’s face for a split second. “Mr. Taylor was there,” Walsh continued. “They told me I was off the case and that the investigation was closed.” Nick hadn’t been asked who was present: he didn’t have to offer Taylor’s name up, but he recalled the meeting in Hitchens’s office well. He remembered Taylor’s arrogance. Payback is hell, he said to himself.
His offer did not go unnoticed by Jack. Nick Walsh appeared to be helping him. He continued his questioning. “Mr. Walsh, you also investigated the murder of Sal Paglia, is that correct?”
“Yes.”
“Who was Sal Paglia?”
“He was the defendant’s lawyer before you.”
Spencer Taylor was on his feet. “Objection, your honor. Relevancy.”
“I was thinking the same thing, Mr. Tobin,” the judge said. “Where is this going?”
“I was just about to ask Mr. Walsh that question, Judge.”
“Ask it, then.”
“Mr. Walsh, are there any similarities between the murders of Sal Paglia and Carl Robertson?”
“Yes, there are. They were both murdered with a Glock nine-millimeter semiautomatic weapon, and they were both murdered execution-style with one shot to the head.”
“Did you ever determine who killed Mr. Paglia?”
Spencer was on his feet again. “Objection, your honor. Relevancy. We can only try one murder at a time.”
It was a speaking objection, but the judge let it go. “Overruled. He has established the relevancy, Counsel. Answer the question, Detective Walsh.”
“No, the murder of Sal Paglia is still unsolved.”
“Did you recover the slugs that were used?”
“Yes.”
“What type were they?”
“Nine-millimeter Parabellum, or Luger, standard grain.”
“Are they similar to the bullet used in Mr. Robertson’s murder?”
“They are the same.”
Jack now knew who had sent him Sal Paglia’s autopsy report. “Where were the slugs that you recovered?”
“One was lodged in a concrete column. That was the head shot. There were two other shots that were imbedded in the floor.”
“So there were three shots?”
“Yeah. The way we figured it, the initial shot was at point-blank range to the back of the head. That was the fatal shot. After that, the killer put two slugs into the body for insurance.”
“And you’re saying they all passed through the body?”
“Yes. You shoot a person with a Glock using that type of ammunition at close range and the bullet is going to pass through unless it hits a bone or something and shatters.” That statement dire
ctly contradicted the testimony of the coroner.
“The bullet in Carl Robertson’s murder was lodged in the back of his skull, is that correct?”
“Yes.”
“What does that tell you?”
“That he probably was not shot at close range. At close range the bullet would likely have passed through the skull.”
“Have you tested the slugs from Sal Paglia’s murder to see if they came from the gun that was recovered last week?”
“No. We really couldn’t because the slugs were too distorted.”
“How about the shell casings?”
“We never found the casings.”
“Did you look?”
“Oh, yeah.”
“What did you conclude must have happened to the shells?”
“The murderer picked them up. This was a hallway outside an elevator. If the murderer didn’t pick them up, we’d have found them.”
“Does that happen often that a murderer stops and picks up the shell casings?”
“No. It’s a sign that somebody is taking their time. They are very deliberate. It’s the sign of a professional.”
“Why would picking up a shell casing be important?”
“Because the shell casing can be matched to a gun. If the slugs are distorted, you won’t be able to match the gun and the slug. If you had the casing, though, you could.”
“Is that another similarity between Carl Robertson’s murder and Sal Paglia’s-the fact that no shell casings were found?”
“Yes.”
“Thank you, Detective. I have no other questions.”
“Cross-examination?” the judge asked Spencer Taylor. Jack wondered if Spencer had the balls to go after Nick. Of course, at this point he obviously had nothing to lose.
“Yes, your honor,” Spencer replied. He was livid. He wanted to rip Nick’s throat out. He had never seen a cop give that kind of testimony in a criminal case.
“Detective Walsh,” Spencer began, “you were the lead detective on this case, weren’t you?”
“Yes.”
“So it was your decision to arrest the defendant and charge him with the murder of Carl Robertson?”
“That’s correct.”
“This woman you talked about, is it accurate to say that you considered her an accomplice in this murder?”
“That was a possibility we considered, yes.”
There it was-the connection that Jack feared most.
“A possibility?” Spencer asked.
“Yes. We had no evidence linking the two. It was no more than a supposition.”
“I want to talk about the bullet for a moment. Are you telling this jury that the defendant could not be the shooter because the bullet did not pass through the skull?”
“No, I’m not saying that. I don’t have that kind of expertise. All I can say is that I would expect the bullet to pass through the skull if it was fired at close range.”
“That would be speculation on your part, then?”
“Yes.”
“And you would defer to the coroner’s opinion as to what occurred in this case?”
“Yes.”
Spencer had actually scored a point. He decided to quit while he was ahead. “No further questions, your honor.”
“Redirect?”
“No, your honor,” Jack replied.
Nick Walsh stepped down from the witness stand.
“The defense rests, your honor.” It was four o’clock in the afternoon.
“Do you have any rebuttal, Mr. Taylor?”
Spencer wanted to bring the coroner back on to rebut Nick Walsh’s testimony, but it was too dangerous. Besides, he had done okay with Nick on cross. “No, your honor,” he said.
“All right. I think we’ll adjourn for the day and have closing arguments in the morning.”
Luis left the courtroom immediately after Nick and caught up with him in the hallway by the elevators.
“Mr. Walsh,” Luis said. Nick turned and looked at him questioningly. “I just wanted to thank you for your honesty in that courtroom. It may have saved my son’s life.”
“It’s my job to be honest,” Nick replied.
Luis expected that would be all, but Nick lingered. Luis could tell he wanted to say something else.
“You know, my younger brother Jimmy died a few years ago,” Nick began. “He had his own war with drugs. There weren’t too many positive things in his life. That kick in that championship game was one of them. He took it with him always, talked about it all the time. He also talked constantly about a guy named Rico who made it all happen. So I guess I want to say thank you to you too.”
Luis was speechless. He hadn’t even realized Nick knew who he was. The two men shook hands warmly and then parted.
Jack took Dick, Joaquin, Henry, and Charlie out to a steak house that night. He invited Luis, but Luis was still too nervous about the outcome to eat. The trial certainly was not over for Jack either. The verdict was always in doubt until the jury delivered it. But these people had put their lives on the line for him and this cause, and he wasn’t letting them get out of town without showing his appreciation.
Even though Henry had just met Dick and Joaquin, they were all getting along famously.
“We’ve been talking, Jack,” Dick said, “and we’ve decided that being your friend is very dangerous to our health.”
“Yeah, I know,” Jack volleyed back. “But look at the benefits-a couple of weeks on a beautiful lake in the Virginia mountains, travel to Wisconsin and New York City, free steak dinner.” They all laughed.
“Next time we’re actually going to swim in the lake,” Charlie added.
They were seated in a private little spot in the back of the restaurant. Jack had ordered a couple of bottles of wine, and the waiter poured. Jack stood to offer a toast. He surprised himself by getting a little choked up.
“You all went beyond the limit for me, and for Benny and Luis. It’s something that words cannot do justice to. I cherish you all.”
“Hear, hear,” Joaquin added as they all clinked glasses.
The steaks were delicious. They drank and laughed until a little past midnight. Then they went their separate ways.
The courtroom was packed the next morning, and speculation was running rampant. Would Jack Tobin’s strong presentation be enough to carry the day, or had the jury already decided Benny was guilty before Jack even started his defense? There was a theory among lawyers that the first side to score a blow was usually the winner. Jack didn’t endorse that theory. He gave jurors a lot more credit than that.
Spencer Taylor was first up. The obvious frustration that he had displayed in court the day before had vanished. He was back to his old self, making eye contact with each juror and flashing that winning smile as he thanked them for their attention and service.
“You are the backbone of our system of justice,” he reminded them before jumping into the substance of his argument.
Spencer’s closing was no surprise to Jack. He took the jurors back to the night of September 1, 1998: “A shot rang out. Three people ran to their windows and saw Benny Avrile standing over the fallen Carl Robertson.”
It was at this point that Spencer diverged from the anticipated script.
“They say that a good lawyer can get you off even if you are standing over the body,” he told the jurors. “That’s what the defendant is banking on. He hired the best. And now you have heard a tale-a tale that takes you away from what happened on September first and strings together fractured pieces of information and forms a conspiracy, all designed to make the defendant a free man. Don’t get sucked into this fantasy, ladies and gentlemen. Stick to the facts. Stick to what you know. If you do that, you will find the defendant guilty of this crime.”
It was Jack’s turn now. He stood in front of the jurors and didn’t say anything for about thirty seconds, then began in a calm and even tone. “You all promised at the beginning of this trial to do several things. You pro
mised to keep an open mind until all the evidence was in. And you promised to follow the law, which means holding the state to its burden of proof. These are not arbitrary rules in a contest between two opposing parties. These are fundamental laws that come from our Constitution. We sometimes forget that part of the great American experiment was to protect the rights of the innocent at all costs. That is why a man is presumed innocent until he is found guilty in a court of law. It is here in this courtroom that truth is decided. Hype goes out the window. Blustering will not withstand vigorous cross-examination.
“So what has the evidence shown? It has shown that the defendant was at the scene. Period. It has shown that Carl Robertson was attempting to fundamentally change American life-to wean us off oil overnight. It has shown that Leonard Woods was his partner in that endeavor and that Mr. Robertson and Mr. Woods were killed nine hours apart. Mr. Paglia, Mr. Avrile’s former lawyer-who apparently learned about the plan while trying to defend his client-was killed execution-style with the same type of gun and bullets that killed Carl Robertson. These facts didn’t come from me, ladies and gentlemen. They came from that witness stand. The last witness you heard in this case was a twenty-year homicide detective who told you that Mr. Robertson’s murder, a bullet right between the eyes, was not done from close range because the bullet would have passed through the body. It had all the earmarks of a professional murder-the same as Sal Paglia’s.
“He also told you there was another suspect, a woman, who had an affair with Carl Robertson’s mistress and learned all about Mr. Robertson and his comings and goings. When the defendant was arrested, however, the investigation came to a screeching halt and the police stopped looking for this woman. She was never apprehended and, as you well know, she was forgotten. The prosecution never mentioned her.
“Mr. Taylor has asked you to ignore these facts and convict Mr. Avrile simply because he was there. You cannot do that and live up to the promises that you made.”
Spencer Taylor took advantage of the opportunity for rebuttal, but he didn’t say anything new. The judge then charged the jurors with the law they had to follow, and they retired to deliberate. As he watched the jury file out, Jack thought about Langford Middleton. The judge had kept control of the trial throughout. His rulings were dead-on. He had faced his demons and conquered them. Perhaps this would be the turning point for a man who still had the potential to be a great judge.
The Law of Second Chances jt-2 Page 37
