by David Ellis
“No, that’s not what I’m asking. Let me ask it a third time, Mr. Espinoza. Did you not tell Senator Almundo that you wanted to take his seat in the senate if he were elected attorney general?”
The witness smiled at me, and at the jury. “Mr. Kolarich,” he said, as if exhausted, “I cannot sit here with certainty and say yes or no to that question. It is possible that I said that, and it is possible I did not. I don’t recall with any certainty.”
“A conversation concerning whether you would be the next senator from the thirteenth district—you aren’t sure whether you had that conversation or not? You’re telling this jury you wouldn’t remember that?”
It sounded ridiculous. Espinoza had ambition written all over him. There was no way that he would have discussed this topic with the senator and not recalled it. Best of all, it was clear that the jury was not buying it.
Appearing to recognize as much, Espinoza tried to recover. “Let me say it this way, Mr. Kolarich. It is possible that I said such a thing but only in jest. I’ve been accused of having a dry sense of humor. I may have made the comment but not been serious.”
I gave him my best poker face. Espinoza never really had a good answer to this line of questioning. You’re at your best as a defense attorney when the witness is damned either way he answers, but Espinoza had made matters worse with his rationalization. I did my best now to look confused, maybe flustered, even disappointed, all to embolden Espinoza, to make him think he had won this small battle. I wanted him to think that he’d just stuck a knife in me, so he’d be encouraged to plunge it deeper still.
Espinoza, after all, was a smooth talker who’d had great success in that regard. He’d probably been nervous about facing the famed Paul Riley in cross-examination, and no doubt let his guard down ever so slightly when a young guy like me stepped up instead. I discovered, at just that moment, that probably this had been Paul’s intention in tapping me all along—to sneak up on this guy.
“So you’re saying that you and the senator would have discussed such a thing in jest? An exchange of dry senses of humor?” My tone was far less confrontational than my previous inquiries. To Espinoza, in fact, it probably sounded like I was flailing, losing the argument.
“Certainly. We share that trait.”
“A dry sense of humor?”
“Yes, sir.”
I nodded meekly and sighed. “Well, would it surprise you to learn that the senator didn’t take the comment as humor? That he might have interpreted your comment as serious?”
Out of the corner of my eye, I saw the prosecutor, Chris Moody, stir. There would be a temptation to object to this question, but Moody decided against it. The reason was that the only way I could prove that the senator took this comment seriously was for the senator to take the witness stand and say so—something Moody was correctly assuming would never happen. So it would be left hanging, unproven, which Moody would be happy to point out in closing argument.
Neither Moody nor the witness seemed to recognize my ulterior motive.
“It would not surprise me at all that he might have misinterpreted it,” said Espinoza.
“Even someone who has known you for a long time, like the senator?”
“Yes, sir,” he said, gaining momentum now, going for the kill. “Most certainly. If Hector took a comment like that as serious, then he was simply mistaken. It happens.” Espinoza bowed his head. “That is the hazard of a dry sense of humor, sir. Sometimes you are taken as serious when you are not.”
I paused, to give the appearance that I was defeated, drowning, unable to counter his answer. This played directly into his ego. He was smarter than the high-priced lawyer. “But—if you were joking, being sarcastic as opposed to being serious, wouldn’t your voice change inflection or something?”
“That,” said the witness, entirely pleased with himself, “is the very definition of a dry sense of humor, Mr. Kolarich. You deliver the sarcasm with a straight face. With an even tone.”
“So it’s a joke, but it sounds serious.”
“Yes.”
“Or serious, but mistaken for a joke.”
The witness opened his hand to me. “Precisely. Sarcasm is sometimes harder to detect than we realize.”
Oh, Joey, I thought to myself. Thank you for that.
Joey had beaten me up pretty well on that point, and I wanted it to soak into the jurors’ minds for a bit. An awkward silence hung for a moment. I thought that some of the jurors were actually feeling sorry for me. Then I shrugged and said, “Government’s 108, Your Honor.” I walked past the prosecution table to the small table where the recorder sat. I’d cued it up during the last court recess, so it was ready to play right where I wanted it. For the fourth time in this trial, the jury heard a secret government recording between the senator and Espinoza, poring over a campaign finance report:ESPINOZA: At least fifteen thousand of the take from last month is from the Cannibals, Hector.
ALMUNDO: Great. Terrific. You know, ah, Flores, look at this guy. A lousy five grand after everything I did for him last time around. Five fuckin’ grand. And the carpenters didn’t exactly come through, either. Where the hell is all this union money I’ve heard so much about?
ESPINOZA: Hector, we have a problem.
ALMUNDO: Problem? Where the hell are my glasses? And where the hell is Lisa? What problem?
ESPINOZA: The Cannibals, Hector.
ALMUNDO: The Cannibals—
ESPINOZA: Some of the store owners are complaining, Hector. Should we tell the Cannibals to lay off them? Stop squeezing them for campaign money?
ALMUNDO: Hell, no. They’re performing a public service, right? Tell ’em I want double next month.
I turned off the tape. “I’ve lost my place, Your Honor,” I said. “Could the court reporter read back the witness’s last answer?”
Several of the jurors, who had been hit over the head with the government’s theory of the case throughout the trial, now stared at the recording equipment with furrowed brows. I would gain nothing from further debate with Espinoza on this issue. I had made my point: Senator Almundo hadn’t taken Espinoza’s comments about the street gang seriously; he’d thought it was a joke and his response was as sarcastic as he thought Espinoza’s comment was. Two of the jurors nodded as they listened to the court reporter read back Espinoza’s last bit of testimony:
“Sarcasm is sometimes harder to detect than we realize.”
It had come to me while listening to Paul and Joel Lightner give each other the what-for in Paul’s office. I could imagine the two of them having this very exchange, in jest. I just needed Joey Espinoza to confirm for me that he and Hector engaged in similar sarcastic jabs, and he’d been kind enough to oblige me.
I had nothing else to gain from further exploration of this topic. Paul Riley, in his closing argument, would dissect each of the four recorded conversations, making two simple observations: first, in each case, Joey Espinoza had forced the topic of the Cannibals into the conversation; and second, each of Hector’s responses could plausibly be interpreted as sarcasm. That, plus Joey Espinoza’s political ambitions, painted a nice picture: This had been the Joey Espinoza Show, from start to finish, and the only reason Hector Almundo was standing trial was that Joey had to finger someone to try to save his ass from twenty years in prison.
I smiled as the jury heard the read-back of Joey’s testimony. I looked over at Chris Moody, who apparently had failed to find the humor in it.
6
I SPENT THE REST OF THE AFTERNOON GOING AFTER Joey Espinoza a bit more aggressively, having sucker-punched him on the main point we wanted to make. It wasn’t hard, after that, to establish that Joey had actually spoken with several elected officials about assuming Hector’s senate seat if he became attorney general—Joey probably figured I would call those other officials to testify, so he couldn’t very well deny it. And then, of course, the obvious motivation that a man looking at twenty years had in cutting a deal that landed him only eightee
n months in Club Fed. The only thing he could give the feds, that they didn’t already have, was Hector, so he embellished and tried to manufacture carefully crafted conversations to make it look like his boss was part of the criminal enterprise.
Back at Shaker, Riley afterward, the atmosphere was subdued celebration. “I’d offer you lunch,” said Paul, “but I think you just ate Joey Espinoza’s.”
“Outstanding, Jason.” My client, Hector Almundo, nattily attired in an olive suit, was jubilant.
“The Joey Espinoza Show,” Paul continued. “They saw it today, Hector. They watched him and they saw him as manipulative. And the ‘dry sense of humor’ stuff? Priceless.”
“The cocksucker.” Senator Almundo, favoring a more concise summary in his own lyrical way, collapsed into a chair in the conference room. What angered him about Espinoza was not the criminal actions of Espinoza or the Columbus Street Cannibals; neither Paul nor I had much doubt that Hector had known exactly what was taking place on the west side. No, his anger toward his former aide was based on one thing, and one thing only—the betrayal.
“We still have a lot of work ahead.” I said, opting for the humble voice of reason.
“Maybe,” said Paul. “After today, I’m not sure we put on a case at all.”
Inside, I was doing leaps. I felt my new position in the private sector greatly enhanced with today’s events. My secretary had pulled up early Internet accounts of the trial on his BlackBerry and the verdict, pardon the pun, had been a knockout for the defense. When we walked back into the firm tonight, we’d been greeted by other lawyers at the firm, who had been reading about it blow-by-blow online, with the customary mix of congratulation: sincerity blended with envy.
But all I wanted to do was go home and see my wife and daughter, Emily Jane. I threw my notepad on the conference table and reviewed my checklist, to make sure I wasn’t missing anything. My big cross-examination was over, the jury instructions were done, the post-trial motions as ready as they could be for now. But there was one thing left.
Ernesto Ramirez.
One of those things, not slipping through the cracks exactly but never making the cut as the top priority. He’d told me to go scratch my ass when I’d visited him at the YMCA—what was that, three months ago now? I told him I’d keep his information anonymous, and he’d had a ready answer: They’ll know.
Right. It was the night Emily was born. I’d driven straight home from the Y and taken Talia to Mercy General, where she spent eleven hours in labor before our little gift showed up, red-faced and fussy.
I was feeling a surge of momentum. Things had gone perfectly today. If I could just pull this one last rabbit out of the hat—
I meandered to the corner of the conference room and dialed him on my cell phone. The phone rang twice before he answered.
“Hello?”
“Ernesto? Jason Kolarich. The lawyer who—”
“Yes, Jason.” Curt and hostile.
“I’m out of time here, so I’ll be blunt—”
“I don’t have anything to say to you. You understand? Nothing.”
“Wait. Just—hang on. I can protect you. I can have the government protect you as a material wit—”
“The government. Yeah, the government. Man, you don’t get it.”
“Then help me get—”
“Listen to me. Listen. Don’t ever call me again. I got nothing to say.”
A loud click followed. I sighed and closed up the phone. I turned to find Riley, Lightner, and Hector Almundo staring at me.
“Ernesto Ramirez,” I explained.
“Ernesto—oh, Jesus, kid.” Lightner chuckled. “Dead . . . end.” Hector looked up from his plate of chicken and rice that we’d catered in. He was looking better today than he had for a while. We’d taken blow after blow in the prosecution’s case-in-chief, but things had gone well today, and his expression seemed to reflect the turn of events. Hector generally liked to keep up a brave front. He was a stubbornly proud man who did not like to show weakness; it made our relationship with him difficult at times. He was quick to anger and seemed to hold grudges, which probably made him an effective politician. It also explained, in my mind, the reason for his divorce almost eight years ago, though Joel Lightner had favored another theory—that Hector’s true tastes didn’t run toward the female gender.
He had a good politician’s story. He’d grown up on mean streets and dropped out of high school but eventually returned and got a college and legal education to boot. He started at the bottom of city government but worked his way up quickly, having thrown in a few extracurricular hours on the mayor’s political campaign to win a few chits. He got fairly close to the mayor—as close as he could, probably more an alliance than friendship—and ultimately took a shot at the senate seat and won. He was a street fighter. He went after his opponents ferociously. He’d put Joey Espinoza’s head on a stick if he could. And yes, we figured he probably did engineer this extortion scheme with the Columbus Street Cannibals, though we thought the murder of Adalbert Wozniak was beyond even Hector’s capacity.
“Who’s Ernesto Ramirez?” Hector asked.
“Guy we met during the canvas,” said Lightner. “He runs a nonprofit called La Otra Familia or something. He was a mentor to Eddie Vargas. We asked him for information and he said he didn’t know nuthin-bout-nuthin. Like a hundred other people said. But this guy Ramirez, he must have scratched his cheek or averted his eyes or something when he answered, so young Jason here is convinced he holds information that could break the entire case wide open.”
Paul smirked. Lightner and Riley liked to point out my youthful vigor—read näiveté—from time to time.
But I had built up some additional credibility after today. Hector looked at me quizzically.
“The guy’s a former Latin Lord and he’s still close to them,” I explained. “Whatever it is he knows—”
“If he knows anything,” Lightner interjected.
“Whatever he knows, he probably knows from the Lords,” I said. “I think maybe the Lords shot Wozniak, not the Cannibals. Now wouldn’t that be a nice thing to share with the jury.”
“The Lords? Why would they do that?” Hector asked. “It’s not their turf. It’s not even La Zona.”
“I don’t know why,” I said. “But Ernesto Ramirez does. I just know it.”
“And how many times has Ernesto Ramirez told you to go fuck yourself?” Lightner asked.
“Only twice,” I conceded, to the amusement of the other lawyers. “But I haven’t turned on the charm yet.”
7
I DROVE HOME, MY EYELIDS HEAVY, EXHAUSTED FROM the comedown after an intense day but propped up on electricity. This had been probably the best day of my professional life. After today, I thought we had a great shot at an acquittal, which three months ago would have been unthinkable. It wasn’t lost on me what this could mean for my career, for my family. I’d never had money, and until a year ago served as a county prosecutor making shit for a salary. This case could make me. Driving home, I let it swim over me, ambition mixed with fantasy, fancy cars and a second home and an Ivy League education for Emily Jane, foreign things to me, all of them.
I found them both in the nursery when I came upstairs. We had done up one of our spare bedrooms into a nursery for a little girl, pinks and greens with bunny wallpaper. Talia was seated in the rocking chair that her mother had used for her. She had been breast-feeding Emily, and the little one seemed to have settled down for the moment. Talia managed a weak smile but didn’t speak, not wanting to wake the dozing munchkin.
“How’s she doing?” I asked.
Talia simply nodded. She looked beautiful and awful at the same time. The shape of her coal-black hair, which she had cropped in anticipation of Emily’s birth, still looked new to me, though tonight it was unwashed and flat against her head. Her eyes were puffy and lifeless. Maybe four hours, tops, of sleep over the last two days will do that.
“How are you doing?” I wh
ispered.
“I’m fat, tired, and my nipples are killing me.”
“Other than that, I meant.”
“We’re still on for my parents tomorrow?”
“Sure, yeah.” Tomorrow—Friday night, we were heading out of town to see Talia’s parents, who lived ninety miles south. Talia’s mother had MS, and it was hard for them to make the trip up to the city.
Talia managed herself out of the chair with Emily cradled in her arms and began the transition. Emily let out a soft moan, and those large, expressive eyes opened. When she saw me, she grimaced in that unsubtle way that babies possess. Pure horror might have described it better. She wasn’t in favor of the transfer from Mommy to me.
“She had a dirty diaper an hour ago and I just fed her,” she said.
“Okay. Hey, beautiful.”
Now safely in my arms, my bellicose beauty broke into a full-out cry, the tiny red face collapsing into utter revulsion. I bounced around the nursery, humming to her and bringing my face close to hers, but she wanted Mommy. I wasn’t good at this yet. I hadn’t developed a rapport with her, a rhythm. With the amount of time I’d spent at work these last ten days, I was hardly different from a guy off the street. I pulled out my bag of tricks I had developed to date. I changed my tone of voice. I closed my own eyes to see if she would mimic. I cited the preamble to the Constitution. I recited her a poem I’d memorized in junior high (“It was six men of Indostan to learning much inclined, who went to see the elephant though all of them were blind”). I held her up at my shoulder, in the crook of my arm, on my legs while seated. I tried a few songs I knew. “Catch” by the Cure. “The Riddle” by Five for Fighting. “Verdi Cries” by 10,000 Maniacs. All over the board, but all slow and soothing, at least when sung properly. If I was any kind of a vocalist, it might have worked, but I wasn’t, nor was my voice a source of calm to her. That, in the end, was the real problem. It wasn’t what I was saying or doing, but the fact that it was me, not Talia, saying and doing it.
