The Defense: A Novel

by Steve Cavanagh

  “You can keep that, sweetheart,” he said.

  He managed to read the oath on the card with one hand on the Bible and then sat down before the judge gave him permission to do so.

  “Mr. Geraldo,” Miriam began, “would you please explain to the jury your relationship with the victim in this case, Mario Geraldo.”

  Silence.

  “Mr. Geraldo?” asked Miriam.

  No response. Tony just sat there. The jury seemed to lean forward.

  I kept my head down. I could feel Miriam’s eyes boring into me like twin lasers.

  “Mr. Geraldo, please state your date of birth for the record,” she said.

  I couldn’t help but hang my head even lower as I heard the reply: the prearranged response that I’d written for Tony in Jimmy’s restaurant, the response that Tony had learned by heart.

  “I refuse to answer the question on the grounds that I may incriminate myself.”

  The jury looked at Miriam. Then they looked at me. Miriam shifted her weight onto one hip, her mouth slightly ajar. She appeared hurt and ready to deal out a reprisal the size of Hiroshima. A jury can always tell when something goes wrong, and when something goes this wrong, it’s as plain as watching a subway car derail right in front of you and just as messy.

  “May I remind you, Mr. Geraldo, that you’ve signed an immunity agreement with my office? If you breach that agreement by refusing to testify here today, you will go to jail.”

  Tony said nothing. In fact, he made a mistake. He started to smile.

  Miriam’s face flushed, and momentarily she became lost for words. She was about to say something when she caught her tongue just in time. The judge helped her out.

  “Ms. Sullivan, you may wish to make an application to treat this witness as hostile, but before you do so, may I suggest we take five minutes for you to consider that course of action?”

  And with that, Judge Pike left the courtroom.

  I stood up and sat on the edge of the defense table, my arms crossed, awaiting the inevitable tirade from Miriam. I didn’t have to wait long.

  “You bastard, Eddie. Are you even aware of what you’re doing? Interfering with a state’s witness? Are you crazy?”

  “No. I’m his lawyer. I happen to represent Tony Geraldo in relation to those drug charges. All I can say is that I got very recent instructions.”

  “How recent?”

  “I spoke to him this morning.”

  “Well, I hope he fires you and gets a better lawyer, because he’s going down for possession with intent to supply, trafficking, distributing, and whatever else I can think up. You know the way this works just as well as I do; it’s a two-way street, Eddie—no evidence, no deal. Why don’t you tell him that?”

  “Whoa, hang on. Can I see his agreement?”

  Miriam looked as if I’d just propositioned her. Before she could bite my head off, one of her clerks put a copy of the agreement into my hand. I knew the agreement by heart. It was the state’s standard immunity deal, and in the right lawyer’s hands, it could develop holes. Lots of real big holes.

  “This is your standard immunity agreement. It states that in exchange for giving evidence at this trial, my client will not face any charges. It does not detail what evidence he has to give. Nor should it. Coaching a witness will get you disbarred,” I said.

  At the phrase “coaching,” her eyes widened. Lawyers can prep witnesses for trial but what is absolutely off-limits is agreeing to precisely what answers the witness will give in evidence. The evidence can’t come from the lawyer.

  “You think I’m coaching a witness? Where did he get that little Fifth Amendment sound bite from, Eddie? Did you tell him to say that? And you’re going to lecture me about coaching a witness? He won’t get away with this, and you won’t either.”

  “He will. You know he will. No judge will allow anyone in the United States to stand trial because they exercised a constitutional right. The right against self-incrimination is fundamental and inalienable. It doesn’t matter that he may be breaching a contract by exercising that constitutional right. The Constitution supersedes all agreements or subordinate legislation. And I wouldn’t call him as a hostile witness if I were you. He won’t say a thing, and it will only damage your case further. The jury will think you’re scrambling for scraps of evidence because your case is so weak. Just move on. You got played by the Mafia. So what? It happens to the best of us. Call your next witness, Miriam.”

  You don’t get to be in Miriam’s position without being smart, tough, and ruthless. She knew Tony Geraldo was a lost cause, but she wasn’t going to let me off easy.

  “What was all that about yesterday? You talking about a bomb?” she said, folding her arms.

  “Your jury consultant is a lowlife. Either he made it up, or he misread me or took whatever I said out of context. You can’t rely on him. Why’d you hire a guy like Arnold, anyway? I always thought you played it straight.”

  “I didn’t know he lip-read juries. I just knew he got results. He’s like you, Eddie. You don’t care how you get your result. You just want to win. I think you did talk about a bomb. Not a real one. An imaginary one. I think you were playing for a mistrial.”

  “Bullshit. I’m just doing my job.”

  Miriam grabbed my arm as I turned to leave.

  “You’re the lowlife, Eddie. That’s your job, representing scum like that,” she said, nodding to Tony.

  The last of the jury filed out of court, and Tony stood up in the witness box.

  “Hey, lady, don’t be talkin’ about me like I’m some kind of criminal. I’m a good Catholic,” he said.

  Miriam gave Tony one of her vicious looks.

  “Leave it, Tony. Don’t get on your high horse about this. After all, you are a criminal. Otherwise you wouldn’t be in this mess. What does the Bible say about that?” I said.

  Tony grabbed the Bible and sprang out of the witness box. The security guards rushed forward, but I held up a hand and shook my head at them, letting them know it was all right. Tony thrust the Bible into my arms and said, “You should read the good book once in a while, Mr. Flynn. You might learn somethin’.”

  Tony resumed his seat, and I returned to the defense table and put the Bible down in front of me. Just as we’d arranged in Jimmy’s earlier that day, Tony was giving me a little religion. Volchek seemed amused at Tony’s outburst. I sighed heavily and remained standing, angled to my left so my back was to Volchek. Opening the case files, I removed the medical examiner’s report on Mario from the file and placed it on top of the Bible with both hands. With the Bible shielded from view by the document, my right little finger dipped beneath it and flicked through the good book until I found something lodged between the pages. I slid it out with two fingers and sandwiched it in between the front cover of the Bible and the last page of the medical examiner’s report. When I’d lifted the report, I’d made sure to put my fingers beneath it, so I could lift the envelope. I put the report, with envelope hidden beneath it, on the table and handed the Bible back to the clerk.

  It was called a beggar’s lift. The absolute perfectionists of the art mostly lived in Barcelona, the hustlers’ capital of the world. I’d seen the lift done myself in that great city when Christine and I had traveled there with Amy for a few days’ vacation. We sat outside a café, enjoying the sun, and I’d noticed a homeless guy wandering around with a laminated card around the same size as a magazine. He approached the middle-aged British couple at the table next to us. The husband was being a real dick to his wife, telling her she looked fat in her summer dress. It couldn’t have happened to a nicer guy, really. The homeless guy placed the laminated card on the table and left it there while he clasped his hands in prayer and said, “Please read. Please read. I have no English.” The British guy read the card. No doubt it was an elaborate sob story about the guy’s family, and at the very end it would ask the reader to give the man bearing the card some money. The British guy read the card, then waved him a
way and said, “No, no, no. Get out of here, you dirty little man.” The dirty little man then thanked the British guy and lifted his laminated card off the table and used the card to hide the lift. Along with the card, the hustler took the Brit’s cell phone and wallet from the table, having placed the card deliberately on top of those items in the first place to disguise the move.

  The same guy approached our table, and I whipped out some cash before he could put the card on top of Christine’s purse. I winked at him. He took the money and winked back. I wasn’t a hustler then, but I still admired talent when I saw it.

  * * *

  Miriam hunched over her desk while I flipped through my case file and removed all of the crime-scene photos. Swiftly, I flicked through the medical examiner’s report so that the folded pages hid the envelope from everyone’s view. I continued to hide the envelope with the report while my fingers worked underneath the pages—opening the envelope and setting the photographs among the crime-scene photos. I put the report aside and looked at the mass of photos on my table. A casual glance would not be enough to discern which photographs didn’t belong in the pile. Volchek paid no attention to me. Just in case he chanced a look, I piled the photos together and held them close to my face.

  These were the photographs that started this whole mess; they got Mario killed. Two photographs. The first showed Volchek sitting down to dinner with Arturas and a third man. The photo was taken in a dark restaurant, probably the Sirocco Club. Volchek must’ve seen Mario taking the shot and immediately threatened him. That’s what the nightclub dancer Nikki Blundell had seen.

  The third man in the photograph wore a navy suit and a white shirt. He had neat red hair, a thin, well-kept mustache, and a wide smile—Tom Levine. Volchek got papped having dinner with an FBI agent. Mario must have known Levine. I remembered Tony telling me in the restaurant that morning that Mario got busted by the feds and did five years in Rikers for it. Either he met Levine then or, more likely still, Levine was the agent who busted him. Volchek must have spent a lot of time and money buying Levine, and he wouldn’t want such a valuable asset exposed by an idiot like Mario. There was no doubt about it—anyone who tries to blackmail the Russian mob has to be an idiot.

  The second photo was taken at a different location. A parking lot at night. I saw Arturas, Levine, and three other men. Initially, I didn’t recognize them. Then I turned around, and I saw the same three men sitting in court. One was Japanese—the Yakuza. The other two were representatives of the cartels. The same men who had stood and applauded Volchek as he walked into the courtroom yesterday morning. Jimmy had told me Volchek hadn’t played well with others, that he had resisted making deals with other criminal organizations, that this resistance was costing him his business. Levine must have facilitated the meeting between Arturas and the three gang leaders. For what purpose, I didn’t yet know, but I was sure that this photo was part of the reason behind Arturas running a con on his boss.

  I could have kissed Tony. The photograph of Levine and Volchek together would seal the persuader on Kennedy and maybe save my life. I looked around the court and saw Kennedy sitting a few seats behind Miriam. I didn’t see Levine or Coulson beside him. That would make things easier for me, but I still had to find a way to talk to him alone and in private.

  My time was running out. I needed to make a move. I would have preferred to get a look in the suitcase before speaking to Kennedy, but there was no time to lose.

  Victor saw me looking at the suitcase. If I could have gotten a glance into it at that moment, I felt sure that I would find all the answers. At that time, it was still too risky: too many people around and Victor would not easily let me get near the damn thing.

  My watch read 10:05 a.m. Two hours until the warrant application. I turned and looked at Kennedy. He was checking his watch. I had a terrible sinking feeling that Kennedy might be lying. That AUSA Gimenez might be sitting down with Judge Potter right now. If that was the case, I had no more than an hour or so before they broke down my door. I thought it was more and more likely that the Russians had planted something in my apartment, something the FBI could use to nail me to the wall for trying to blow up Little Benny. I prayed I was wrong. Wrong about Kennedy, wrong about the Russians. Somewhere, on some deep level, I knew that at least one of those suspicions would be true.

  CHAPTER FIFTY-TWO

  Judge Pike and the jury came back into court. Miriam dismissed Tony Geraldo. Still no sign of Harry. I had no questions for Tony, and he walked confidently from the witness box like he was Frank Sinatra.

  “The people call Officer Raphael Martinez,” said Miriam.

  Miriam would be back on strong ground with Martinez. No overelaboration or theorizing in his statement. He just recounted the facts. I suppose in this case he didn’t need to get creative. He’d caught Benny red-handed in the dead guy’s apartment, and Benny gave up the head of the Russian mob for the murder.

  Martinez was a handsome Hispanic male in his late thirties, dressed in a well-fitting suit. He moved confidently but without swagger to the witness box. The file of papers in his arms was feathered with Post-it notes to mark important documents and to show the jury that he was well prepared. He held his head up and looked the jury members in the eye. Martinez had nothing to be afraid of.

  “Officer Martinez, would you tell the members of the jury your rank and experience on the job?”

  Not good again from Miriam, two questions at once. She was better than that. I thought that her nerves were affecting her. Lesser advocates might have thrown in the towel by then, but Miriam came back strong. Within ten minutes, she broke into a good flow, and Martinez rattled through Benny’s confession and plea bargain in under thirty minutes.

  Solid.

  As she got her last answer, she turned away from the witness and walked toward me on her way back to the prosecution table.

  She smiled as she said, “Your witness.”

  If I tried to shake Martinez, I’d lose. Sometimes there are witnesses who cannot be broken, and Martinez certainly belonged in that category. I decided to keep it brief and question him on topics that Miriam hadn’t touched upon in her direct examination.

  “Officer Martinez, please open the bundle and look at folder three, tab nine, page two,” I said. In cross-examination there is no “would you?” or “can you?” Everything, absolutely everything, should be a statement, not a question. They say good lawyers never ask a question unless they already know the answer. This is true, but it’s not because lawyers have any greater knowledge than anyone else. It’s because we give you the answer we want in the question.

  Martinez found the page, which he’d marked with one of his yellow Post-its.

  “Officer, this is a photograph of a picture frame, found smashed in the apartment?”

  “Yes.”

  I turned to the jury and smiled, deeply satisfied with the answer, and I paused briefly before turning to the witness again.

  “The description below the photograph states ‘broken photo frame,’ but it does not tell us how many photographs were in the frame, does it?”

  His eyes narrowed. He seemed slightly puzzled. “No, it doesn’t.”

  Beaming a satisfied and knowing grin, I turned again to the jury and repeated Martinez’s answer slowly and joyfully, “No, it doesn’t,” holding it before the jury like a prize won in hard-fought battle. The jury nodded. They weren’t sure what I’d won yet, but they seemed intrigued. Miriam didn’t react. She froze in a look approaching boredom, like any good attorney should when they think their opponent has just landed a blow. Best to look unconcerned and hope the jury follows your lead. In truth, those questions weren’t for the jury’s benefit—they were for Kennedy: I wanted him thinking about that photo frame.

  “Can I have a second to consult with my client, Your Honor?”

  “Yes, Mr. Flynn.”

  I leaned over and whispered to Volchek. “What did you have for breakfast?” I said.

  “Your favori
te, pancakes. Why?”

  “Just playing a game with the DA, letting her think I’m hatching a master plan and generally making her nervous. But there is something I need to know. I think you’re close to an acquittal and you won’t have to use the bomb. What I need to know is what Little Benny will say to the jury. The one thing the DA doesn’t have is motive. My guess is Little Benny provides the motive. So I need to know, why did you order the hit on Mario Geraldo? What was hidden in the photo frame that you wanted so badly?”

  Arturas wasn’t there to advise him and Victor didn’t appear to be too quick on the uptake.

  “Mr. Flynn, do you have any other questions?” asked the judge, but I pretended I hadn’t heard.

  “Come on. Give me the shot. I can destroy Little Benny, but I can’t do it if I don’t know what he’ll say in the witness box. What was in the photo frame?”

  Running his hands over this thighs and smoothing his pants, Volchek considered my question again.

  “Mario took a picture of me with someone. Someone that I work with in secret. Someone close to law enforcement. He is my biggest asset. I could not risk losing him. Mario wanted money for the picture. I sent Little Benny to kill him and destroy the evidence.”

  “How many photographs did he have?”

  “One, no copies. That’s what Arturas told me. I wanted to deal. Arturas wanted to send a message.”

  “And Arturas told you it was just the one photograph, the photograph Mario took in the Sirocco Club?”

  “Yes,” said Volchek, nodding. His eyes were natural, his facial muscles relaxed, his hands open and resting on his lap. He was telling the truth. That was all I needed to know.

  Arturas had dealt with Mario because Arturas knew Mario had another photo—of Arturas meeting the cartels and the Yakuza. If Volchek found out that Arturas had met the cartels and the Japanese in secret, then Arturas probably would have found his name on one half of a torn, one-ruble bill. Arturas had kept this meeting secret from Volchek, and Little Benny made sure it stayed secret by killing Mario and destroying the photos.