The Defense: A Novel

by Steve Cavanagh

  I got to my feet to object. I needed Miriam to hurry so I could get to Benny.

  “Your Honor, this is not going anywhere near the issues.”

  “Is it leading there?” said Judge Pike.

  “Yes, Your Honor. Just getting there now,” replied Miriam. “After you were arrested for this murder, what happened?” she asked.

  “I made a deal. I tell police who ordered the hit, I get discount on my sentence.”

  “Have you been in prison all this time?”

  “No. Once I made my deal, I went into FBI protection.”

  “Why did the FBI put you in protective custody?”

  Damn. Had to object again. “Objection. The witness doesn’t know the FBI’s motives.”

  Judge Pike made a circular motion with her pen to Miriam, telling her to rewind and rephrase.

  “Why do you think that you’re in protective custody rather than in jail serving your sentence?”

  Benny didn’t say anything. He looked at Miriam, then the judge, and then his eyes came to rest on Volchek. A look of purest hatred.

  “It is simple,” he began. “Olek asks other people to kill for him. He would have me killed if I was in prison. The FBI protects me from Volchek’s word because that is all it takes from him—one word and you’re dead. He knew I was testifying against him and he wants me dead.”

  Miriam knew it wasn’t going to get much better, and she bowed out. “No further questions.”

  The judge looked at me, waiting for my cross-examination. Court security, the FBI, and probably the NYPD were tearing the building apart right at that moment, searching for anything that might look like an explosive device. With a window broken in each van, the search team would definitely find the bombs this time. It would be only a matter of time. Maybe minutes. The crowd was silent, waiting for the murderer to be tested by the defense.

  “I have just a few questions,” I said. I stood eighteen feet from Benny, outside the kill zone. The lead in my limbs faded away as my heart rate went up.

  Everything that had happened in the last day and a half all came down to these final minutes, these final answers. I thought of my father and felt the cold touch of his medal against my skin.

  “How might Mr. Volchek kill you?” I asked.

  This seemed to amuse Benny. He laughed and looked around the courtroom, shifted in his seat, and wiped his face a few times.

  “The man you represent does not care how he kills.”

  “How do you know that?” I asked.

  “I know—I work for him for twenty years. He wants somebody dead, they’re dead. Doesn’t matter how.”

  “So give me an example.”

  Benny wasn’t laughing now.

  “Well, Mario Geraldo—Volchek sends me the other half of my ruble with Mario’s name on it. So I shoot Mario. He did not say shoot him, stab him, drown him. His name on the ruble means he must die.”

  “I just wanted a few other examples, say, the last three people he had killed. How did they die?”

  “How should I know that?”

  “You say you fear for your life; you say my client is a killer. Tell me about it. Tell me how he kills.”

  “I told you—he writes down their names…”

  “So tell me the names of the last three people he killed.”

  I saw a flash of anger on Benny’s face, there and gone in a second. I needed to build that anger in Benny. Amy’s life depended on it.

  “Tell me!”

  Little Benny leaned forward, clenched his fists. “I do not tell. I tell only this murder.”

  “You made a deal and you got twelve years to serve. Yet you could have told the DA and the FBI a lot more. You didn’t. Is that because you’re still loyal to someone in the organization? Or is there more to this?”

  Shifting in his seat, Little Benny pulled at his shirt collar, which must have suddenly felt tight around his throat. He ran his fingers around his neck before reaching for a glass of water.

  “I don’t know what the hell you’re talking about,” he said.

  “Oh, you do know, Mr. X. You were caught red-handed at the scene of a murder. You made a deal. You gave the FBI my client, Olek Volchek, for this murder, correct?”

  “Correct.”

  “But here you are today, under threat of death apparently, and you won’t give any evidence about any other murders this man has either committed personally or had carried out upon his instruction. You didn’t tell the police or the FBI about any other murders, and you’ve not done so today, correct?”

  “Correct.”

  “You did not tell the FBI about my client’s alleged drug empire?”

  Volchek didn’t react. I’d already told him where I was going with this.

  “Your client doesn’t face any drug offense charges, Mr. Flynn, but you’re stipulating that your client has a drug empire?” asked Judge Pike.

  “No, Your Honor. The prosecution has alleged that my client runs the Russian Mafia. It’s safe to assume they don’t sell cookies door to door.”

  Miriam had opened the case to the jury by alleging that Volchek was the head of the Russian mob. I hadn’t objected at the time, but that part of her opening wasn’t at the forefront of my mind; no, it was something else she had told the jury that gave me a shot. A long shot.

  “Mr. X, you did not tell the FBI about my client’s alleged drug empire, correct?”

  The whole plan could come crashing down around me if the alarm went off now. I pushed Benny, trying to build a repetitive rhythm with the “correct” answers, bouncing my case off him like a ball, getting him riled up so that he answered in anger, without thinking.

  “Correct … I—”

  I cut him off. “That’s right. You did not tell the FBI about my client’s alleged drug operation, and you didn’t tell the FBI about my client’s alleged prostitution rings, correct?”

  “Correct.” The answer came in fast, even before the lightning-quick Pike asked if I was stipulating for the record that my client runs the best little whorehouse in Little Odessa. Moving around the defense table, I fixed Benny with a stare. He looked away.

  “And you didn’t tell the FBI about my client’s alleged money-laundering operations, correct?” I said as I slowly walked toward Benny, cutting down the distance between us, building the confrontation, stepping into the kill zone.

  “Correct,” he said, his eyes skirting around the room.

  Moving closer, we locked eyes. Benny leaned forward, a scowl on his face.

  “You didn’t tell the FBI about my client’s alleged people-trafficking network, correct?”

  “Correct.”

  Three feet between us. Benny visibly tensed the closer I got to him, as if he was getting ready to leap over the rail of the witness stand and choke me to death.

  “You didn’t tell the FBI about my client’s alleged illegal arms dealing, correct?”

  “Correct.”

  “You didn’t tell them about these operations because if the defendant was running a criminal organization, the FBI would close it down and…”

  Gripping the rail of the witness stand, I pulled myself up close to Little Benny, so I could get right into his face when I blew his dirty secret wide open.

  “Then there would be no business for you and your brother to take over after this trial is finished, correct?”

  “Correct.”

  As soon as he said it, he came to and shook his head. Pike dropped her pen. Harry let out a gasp.

  “No. I mean, I don’t know what you mean, you lawyer prick!” said Benny.

  I whispered to him, “Volchek knows the truth,” and he stood. I turned and put my back to the gallery. Benny pushed me away, but just before he grabbed my shoulders, my hands reached out to him, fast, soft. I stumbled backward but managed to keep my balance.

  The guard put a hand on Benny, forcing him down into his seat. Pike started to bawl at Little Benny for getting physical with me. Miriam began protesting that I was inti
midating her witness. But I held up a hand, stopping both of them. Before I wound up the cross-examination, I chanced a glance at Kennedy; he was paying close attention.

  “My fault. I apologize. I have one last question. You’ve been in police and FBI protective custody since you got arrested. You’ve never been in public lockup. So when did you get word that the defendant put out a contract on your life?”

  He hesitated. The question was strange to him. He knew, as a lifelong member of the Bratva, what would happen to him if he ever betrayed his boss.

  “I didn’t get word,” said Benny, still a look of confusion on his face.

  “So you never received a death threat?”

  The question hung in the air. Benny sat back, snorted, and shook his head like I was the idiot.

  “No. I did not receive a death threat. That is not his way. We know what will happen if we betray the pakhan—the penalty is death.”

  “Who else has the defendant ordered to be killed for betraying him?”

  “I cannot say,” said Benny.

  That was it.

  The key to the whole damn thing.

  “Your Honor, in light of the witness’s last answer, I have to stop the trial,” I said.

  The crowds gathered in the gallery instantly began to murmur, whisper, and protest. I heard the rear doors of the courtroom closing and Agent Levine working his way along a busy row of people, making for an empty seat on the right. Before he sat down, he nodded in the direction of Arturas, who sat only a few feet from me. It was a quick signal; a nanosecond and you would’ve missed it.

  Kennedy missed it.

  Arturas shifted in his seat, putting his back to the judge, and I saw him make a call. I couldn’t hear the conversation, but the numbers he’d dialed were clear on the digital screen of his iPhone.

  He was calling 911.

  CHAPTER SIXTY-SIX

  Pike ordered the jury out. Like most juries, they were getting used to regular interruptions in proceedings. While we waited for the jury to move out, I thought about Arturas making that 911 call. My guess was that Arturas just tipped off the cops that there was a bomb in the building, and I would’ve bet that he’d given them the precise location of each van and how much explosive they contained. Emergency Services deal with tons of hoax calls every day. It wouldn’t take long for a flag to go up and the dots to be connected; the head of the Russian mob on trial for murder, the FBI protecting an important witness, the warrant out on my apartment, the explosives stolen from the Sacha. My best estimate gave me three, maybe four minutes before court security started evacuating the building. Arturas could’ve made that call earlier, but he’d waited until Levine gave him that nod. There could be only one thing behind that signal; Levine must’ve started the timer on the bombs in the basement. The next part of the plan relied on the NYPD being on the ball and calling for the emergency evacuation of the building. When the evacuation call went up and all hell broke loose, it would provide the perfect distraction for Arturas and his men to dive into the case, break out the automatics, and bust Benny free.

  Judge Pike cleared her throat—no doubt readying herself to deal with yet another unnecessary interruption from the defense.

  She took off her glasses slowly, put them on top of her notes, and folded her hands beneath her chin. As the last of the jury filed out, I winked at Volchek. He put his phone on the table, ready to use it.

  “Mr. Flynn, I want you to be very clear about what you’re asking. I suspect that you have a motion to nullify the anonymity of Witness X?”

  “I’m not arguing that motion. The issue here is not anonymity; the issue is mistrial,” I said.

  Pike’s eyebrows shot up. I slipped Kennedy’s phone into my hand, ready to call Jimmy. The crowd picked up the scent of drama, and the hushed murmur began to grow into a choir of excited voices. Miriam sat forward, ready to fight back, and both judges exchanged concerned glances.

  “You’re going to argue a motion to declare a mistrial?” said Judge Pike.

  “No, Your Honor.” I turned to Miriam. “The prosecution is going to do that for me.”

  Miriam got up, her face a mixture of astonishment and disgust. Her neck had instantly turned red, and she was so pissed off she threw her pen into the air and let it bounce onto the floor.

  “Your Honor,” I began, “you just heard the testimony from Witness X—his sworn evidence is that he hasn’t received a single death threat. Not one. The jury have been misled by the prosecution.” I picked up my notes. “In her opening statement, Ms. Sullivan told the jury that my client was the head of the Russian mob and that her witness had been threatened. She said, and I quote, ‘This man is living under a death threat.’ It’s here in my notes. I underlined it—twice. If the jury believed that Witness X was under a death threat because he was a witness for the prosecution in a trial where the defendant is alleged to be the head of the Russian Mafia, then the clear implication is that my client threatened him. We know now there has been no such threat, from my client or anyone else. I asked the witness directly if he received a death threat, and he said ‘no.’ The problem is that the prosecutor told the jury something very different, something that wasn’t true.”

  I heard a loud thump as Miriam punched her desk. “Your Honor, the witness will state that he was part of a vast criminal organization, that he was a hit man for the Russian mob. It’s abundantly clear what happens to snitches in such organizations.”

  “No, Your Honor, it is not. The witness has not given any evidence about this alleged organization. I made sure to cover that in my cross, and I gave him every opportunity to spell it out—drugs, prostitution, money laundering, murders. The witness told us nothing. He refused to give any evidence regarding the organization. There is no evidence before the jury of a death threat, and the witness denies receiving one. The prosecution has misled the jury and the court. Your Honor, we don’t make the case that the DA’s office deliberately misled the jury, but the misrepresentation by the prosecutor clearly prejudices the jury against my client.” I turned to Miriam. “We’re sure it was an innocent misrepresentation, and if the prosecution does the right thing and requests a mistrial, then I will encourage my client not to make a complaint of prosecutorial misconduct.”

  Miriam kicked her chair out of the way and stormed toward me, ignoring the judge’s plea for her to remain seated. She knew I was right, and it was killing her. As a seasoned prosecutor, she knew Pike wouldn’t risk letting the case go to verdict with a slam-dunk appeal point waiting in the wings.

  “You bastard. What’re you doing?” she said.

  “I’m doing this for you, Miriam. You’re going to lose this case. Pull the trial. Get a different handwriting expert and start over. I could’ve asked for the mistrial. But if you do it, you can sell it any way you want, make it look like the smart move because your expert got blown away.”

  She shook her head. “You’re finished, Eddie. I’m going to make sure your client goes down next time. I hope you enjoy this because you’re officially on the DA’s shit list for life.”

  If this played right, I didn’t want to have to answer questions about why I got my client a mistrial. By having the prosecution argue the motion, I’d created a little distance between me and the storm of violence to come.

  Miriam adjusted her blouse, and without another word, she returned to her desk and began to address the court through clenched teeth. “Your Honor, in light of Mr. Flynn’s point, I have no alternative but to ask the court to declare a mistrial.”

  She sat down heavily and folded her arms.

  Benny sat pensively in the witness box, his fingers drumming on the rail. Arturas shifted forward on the bench, ready to dive into the suitcase.

  Tilting his phone toward me, Volchek let me see the text message he’d typed. Let her go.

  “Send it,” I said as I called Jimmy, shielding the phone from view beneath the desk, waiting to see the indicator that my call had been connected. No one was looking at me
—all eyes were on the judge.

  Judge Pike closed her eyes for a moment and rocked back on her chair, oblivious to the reality that the life of my ten-year-old daughter rested on her decision.

  Sighing heavily, she said, “I don’t feel I have any other choice. Let’s have the jury back, please, and I’ll discharge them. I declare a mistrial,” she said and began whispering with Harry.

  The crowd boomed.

  Volchek pressed the send button.

  Jimmy answered my call. “Jimmy, he’s letting her out. Go get her.”

  “I’m going for it…”

  “Jimmy, wait until he sees the text…”

  We got disconnected. I instantly hit redial. Pike was too embroiled with Harry to notice what I was doing. Not that it mattered to her. As far as she was concerned, the trial just died, so they were off the record.

  The jury began filing back into court just as the room filled with the roar of an alarm.

  The rear doors banged open, and a security guard rushed into the courtroom, shouting to be heard over the alarm. “We have to evacuate now. Bomb squad’s orders.”

  The guard bent over and coughed before being swept up by the crowd. The screaming began, and the public gallery emptied in panic. People pushed and hit their way past one another, each person fighting for the doors. Miriam’s team left their files and ran. Miriam didn’t move. She was rooted to the spot, her eyes on me, her mouth open and her expression a mixture of horror and shock. One of her paralegals ran back, grabbed her arm, and dragged her toward the exit.

  Kennedy sprinted to the panting guard, trying to reach him, but he was already leading the first wave of reporters into the hall.

  Arturas dove into the suitcase.

  This was the perfect distraction for the Russians. The whole building just got dumped into chaos, people climbing over one another to get out. I watched Harry shepherd Judge Pike through the door to her chambers.

  Amid the panic, Volchek made his play; he climbed onto his seat, pointed at Little Benny, and screamed, “He’s got the detonator. It’s in his pocket!”

  For a second, the screaming intensified. The rhythm of the alarm seemed to slow to a heartbeat, and all eyes turned to Little Benny. Arturas lifted his head from the suitcase and looked at his brother in amazement.