02 - The Guilty Plea

by Robert Rotenberg

  Raglan was right and they both knew it. What she didn’t know was that with the new evidence DiPaulo had in his back pocket, it would be worse for the family than she could imagine.

  “You’re a good lawyer and a good person, Jennifer,” he said. “I’m stuck. Client wants a trial.”

  “Is she going to testify?” Raglan was angry now.

  “I still don’t know.” Little white lies were sometimes necessary in the heat of battle.

  “Any other defense lawyer, and I’d say screw you.” Her eyes were blazing with fury.

  “We don’t choose our witnesses or our clients,” DiPaulo hissed back at her. He was pretending to get angry too. “You know that.”

  “Okay, if that’s how you want to play it. But don’t ever forget, I tried to settle this thing.” Raglan straightened up. “We’re ready for the judge now,” she said to the registrar with forced cheerfulness. “There was a technical matter my friend and I had to work out.”

  DiPaulo felt a flush of nervousness. This is going to be messy, he thought.

  “The last witness for the Crown will be Mr. Jason Wyler,” Raglan said once Norville and the jury were back in place.

  Wyler had been seated in the back row. Like everyone else in the court, DiPaulo turned to look. Cheap move, Jennifer, he thought, putting the disabled man as far away as possible from the witness stand. And a not-too-subtle message: make me fight this all the way and I’ll pull out all the stops.

  There wasn’t a sound in the courtroom as step by painful step Wyler shambled up the aisle, his canes squeaking on the polished floor. DiPaulo caught Samantha’s eye and looked down at his papers, silently instructing her to do the same. As Jason made slow progress to the witness-box, his breathing grew heavier. DiPaulo peeked at the jury. They were staring down, to the side, anywhere but at the man with the canes.

  At last Wyler was on the stand. The registrar tilted his head toward him, asking the judge: Shall I help him? Norville gave a firm shake of her head.

  “Ahh. Ahh,” Wyler said as he scaled the steps and steadied himself on the railing at the side of the witness-box.

  Once he was settled, Norville turned to the registrar. “Swear the witness,” she said, as if Wyler had run right up and stood beside her.

  “Mr. Wyler.” Raglan moved out from behind her counsel table once the Bible was put away. “Terry was your brother.”

  Nicely done, Jennifer, DiPaulo thought. Refer to the victim by his informal name. Sound real familiar.

  “I’m the second of three boys. Terry was the baby.”

  “Were you close?”

  This was a totally irrelevant question. But DiPaulo wouldn’t object and Raglan knew it. The jury would be angry at him if he interrupted poor Jason.

  “We’re a close family. We were raised to stick together. All three of us work at …” He closed his eyes and shook his head. “I guess I should say we worked together, before my brother was murdered.”

  Raglan strolled to the witness-box. “You know Samantha, the accused.” She was beside Wyler now, talking chummy, chummy. Raglan pointed to Samantha, just as she had in her opening.

  “Six years. Ever since she left the bank and came to work for our family.” He was glaring at Samantha. DiPaulo had expected this and had instructed her to look down.

  “I understand she met Terrance about a year after she joined Wyler Foods, when he came back to visit.”

  “Terry was living in the States. We have an annual barbecue at the house for our employees every summer, and he was back for a visit. I couldn’t work much anymore, so we needed him. He met Sam, and before we knew it they were together. My mother was planning a big wedding, and they eloped. Samantha’s idea of course.”

  “Why do you say of course?” Raglan asked.

  “She took over his whole life. Simon was born a year later, and we hardly saw him. Mom would make Sunday dinner and Samantha always found some excuse not to come. She made Terrance quit Wyler Foods and they started their own store. We all knew she wanted to alienate him from the family.”

  With a witness like this, DiPaulo would only object once. He made his move. “Excuse me.” He spoke slowly. “I don’t like to interrupt this witness. Perhaps Your Honor could instruct Mr. Wyler that he’s only permitted to tell this jury what he observed, and not to offer his or other people’s opinion.”

  Wyler shot DiPaulo an angry look. DiPaulo knew that juries learned the basic rules of evidence with remarkable speed, and they’d know his objection was reasonable. What ever sympathy they had for Jason Wyler, they wouldn’t like it that he was trying to embellish his evidence.

  “Ms. Raglan, Mr. DiPaulo has a point,” Norville said, not even asking her to respond to the objection. Raglan wisely didn’t put up a fuss.

  Norville pulled herself over to the witness-box and spoke to Wyler as if she were confiding a secret. “Mr. Wyler, we all appreciate that this is difficult. But please, tell us only what you saw and heard, and nothing else. Okay?”

  “Yes, Your Honor.” He didn’t look contrite.

  “Did you have a chance to observe them together very often, your brother and the accused?” Raglan asked.

  Wyler lifted his right arm. His elbow was badly deformed. He pointed at Samantha before he replied. “Almost every time I saw them together something happened.”

  For the next half hour Raglan led Wyler through a litany of explosive episodes: Terrance and Samantha having a fight at his parents’ house the first Christmas after they were married; Samantha walking out during their mother’s birthday party and Terrance running after her; Terrance and Samantha having a screaming match at the yacht club.

  “Did you ever see any physical violence between the husband and wife?” Raglan asked.

  “I never saw anything, no.” Clearly Wyler was dying to talk about how he felt. DiPaulo’s objection was the thumb in the dike, and barely holding.

  “Did your brother ever talk to you about his relationship with Samantha?”

  Wyler shook his head. His face was turning red. “My brother was an open book. We used to share a room as kids. But Samantha. You couldn’t talk to him about her.”

  Raglan nodded. Understanding.

  “How about the accused, Ms. Wyler? She ever talk to you about your brother?”

  DiPaulo felt as if the blood in his body had slowed down.

  “Once,” he said.

  DiPaulo glanced at the jury. They were eating up every word.

  “What did she tell you?”

  DiPaulo knew what was coming next. He’d read it in his disclosure and he couldn’t prevent this evidence from going in. It was the price he had to pay for goading Raglan into calling Wyler as a witness.

  “She said that sometimes she got so angry she was afraid she’d lose control.”

  “And when did she tell you this?”

  “The day before my brother was murdered.”

  “Did she tell you what she was so angry about?”

  “Everything. He’d left her for another woman. He never worked hard enough in her store. He was turning Simon against her. She hated my whole family.”

  “Did she say anything else?” Raglan asked.

  “She called. Asked me to talk to Terry. Try to get him to accept her last-minute offer.”

  “What did you tell her?”

  “I said I had tried, and would try again. But not to count on it. That he’d made up his mind.”

  “How did she react to that?”

  “She became angry.”

  “Did she say anything?”

  DiPaulo cringed. This testimony was going to hurt.

  “She said, ‘Fuck you and fuck your whole family.’ Then she hung up.”

  “Have you talked to her since?”

  Jason glanced back at Samantha. She had her eyes fixed on him. “They were the last words she ever said to me.”

  “Thank you, Mr. Wyler. Those are my questions.” Raglan walked back to her seat.

  Wyler reached for h
is canes. He turned, about to leave the stand.

  DiPaulo stood. “Excuse me, Your Honor. I have some questions for this witness.” He could feel the jury despising him because he was keeping this grieving, disabled man on the stand.

  Norville was swept up in the moment too. Content to have Wyler step down. She regarded DiPaulo with a cross look. Then she got it. “Of course,” she said. “Sir, I’m afraid you can’t leave quite yet. The defense may have a few questions.”

  How do you know it will only be a few? DiPaulo thought.

  Wyler’s body sagged. He looked spent. Without being asked, Norville poured some water and passed it over to him. Wyler took a long drink.

  DiPaulo walked out from behind the counsel table. Standing back there would make him seem distant, aloof. But where to go? If he approached the witness-box, he’d come off as aggressive, threatening. The only alternative was to sandwich himself between the jury and the Crown’s counsel table. It would be harder for the jurors to be mad at him if he was right in front of them.

  He took his time moving across the court. He had no notes in his hand. The trickiest part of any cross-examination was getting that first question right. But no matter how much DiPaulo prepared, the question always came to him at the last second.

  This jury would have no patience with him. He needed to make an immediate impact.

  62

  Ari Greene watched Ted DiPaulo place himself right beside the jury and look straight at Jason Wyler in the witness-box. DiPaulo was an imposing presence. Now he was stepping right into the lion’s den. The guy had guts.

  Greene always tried to be neutral in court. Keep his head down, be constant with his note taking, and project for the jury an image of his own objectivity. But he couldn’t resist watching. Witnesses never told Crowns everything. And DiPaulo wouldn’t cross-examine a man with two canes unless he had something up his sleeve.

  “Mr. Wyler, since my client’s arrest, she’s made no attempt to contact you. Correct?” DiPaulo was calm, matter-of-fact.

  “That’s true,” Wyler said.

  It was a good opening. Showed that Samantha had been respectful to the family since the murder.

  “This is unusual, isn’t it? For the last six years, the two of you have been in contact almost every day. That’s true, isn’t it?”

  Anger flushed across Wyler’s face. He cast a vicious look at Samantha before he clamped his mouth shut. Greene saw the jurors ease forward in their chairs.

  “You used e-mail and telephones. And once in a while you’d meet secretly on a secluded walking bridge over in Rosedale.” DiPaulo’s tone was tougher. “Right?”

  Wyler glanced over at Raglan, then at the jury box. He looked trapped.

  “It’s true, isn’t it, Mr. Wyler?” DiPaulo asked.

  “We were in touch sometimes,” he said.

  Greene put his head down and wrote out his notes. A vague answer like this made a witness look as if he had something to hide.

  “You set up an anonymous e-mail account for you and Samantha, didn’t you?”

  Without waiting, DiPaulo walked to his table, opened a file folder, and took out some papers. He dropped two of them in front of Jennifer Raglan, approached the registrar and gave him two copies for the judge, and gave copies to the court reporter before he made his way back to the witness-box. He stood square in front of Wyler and handed him one page.

  “The company’s called bigstring.com. This is their Web site. It says, ‘BigString Corporation has created a revolutionary new e-mail service that allows users to control their sent e-mail.’ And farther down, let me see, yes: ‘BigString gives you the advantage of private e-mail and secure e-mail.’”

  Wyler didn’t even look at it.

  “In other words, untraceable,” DiPaulo said.

  Wyler remained mute.

  “That’s correct, isn’t it?”

  Wyler nodded.

  “Your Honor, can the record please reflect that the witness acknowledged this by nodding his head?”

  “Okay,” Norville said.

  DiPaulo put the second sheet of paper in front of Wyler. “And you used covercalling.com to hide your phone calls.” He read, “‘Covercalling.com makes changing your caller ID simple.’ This is how you disguised your calls to Samantha.” He wasn’t even asking a question. He was stating a fact.

  Wyler stared off into space, afraid to look out into the courtroom, where his family was seated.

  Greene started taking notes again, but his mind was racing. After Samantha Wyler’s arrest he had had Daniel Kennicott go through her BlackBerry and laptop and all her other phone records. Nothing was recorded as being to or from her brother-in-law.

  Wyler finally spoke. “We e-mailed each other. I like computers. That’s what I do for our company. I can follow food prices all over the world. With BlackBerrys I’m in touch with my brothers—I mean, well, now, my brother—all the time.”

  A rambling answer like this was typical of a witness trying to change the focus of attention. Greene glanced at Raglan. She was putting on a brave face, looking straight ahead. But he knew she was churning up inside. DiPaulo had fooled her by putting on a big act and pretending he didn’t want her to call Jason Wyler as a witness. And she’d fallen for it.

  “If I told you there were one thousand and forty-nine e-mails between yourself and my client over a seventy-two-month period, you wouldn’t dispute that number, would you, sir?” DiPaulo spoke with no notes. It gave his words added authority.

  “That’s possible.” It was as good as saying yes.

  “And you were never out of touch for more than ten days. Sound right?”

  “I guess so. Samantha liked to talk too.”

  “And she did research for you, didn’t she?”

  “Samantha took an interest in my disease. She’s smart. Was always looking for new treatments, new medications.”

  Sitting beside Greene, Raglan wrote a note on a piece of paper and slid it to him under her palm so the jury wouldn’t notice. “Fuck,” it said. “Ted really conned me. When should I object?”

  Greene glanced at the jury. Their eyes were glued to the witness-box. “Don’t,” he wrote back. “Will look like you’re protecting him. Makes it worse.” He slid the note under her elbow.

  Raglan glanced down and gave a quick nod.

  “I’m not suggesting there was anything improper about you having contact with your sister-in-law,” DiPaulo said. “Just the opposite. You were supportive of each other. Kept in touch even after the separation.”

  “We did.”

  DiPaulo took a deep breath. “You had nicknames for each other. She called you B.B., which stood for Big Brain, and you called her B.N., which stood for Big Nerd.”

  Wyler’s head bobbed. There was something about a courtroom, a kind of alchemy that sent people back into their minds, their pasts. You could see it happening now. As hard as Wyler was trying to stay in his angry present, he was slipping into memories.

  “People misjudged Sam because she was nice-looking.” Wyler’s voice was surprisingly loud. “They didn’t want her to be smart.”

  Wyler’s hand slipped off one of his canes and he began to waver. He grabbed the railing. A small shudder had gone through the court, the shifting of the tectonic plates of this trial, knocking him and in turn the whole prosecution off balance. He held up one of his canes defiantly. “She didn’t see these, like everyone else. She listened, I mean really listened. I thought she was a real friend.”

  Judge Norville glared at DiPaulo, then at Raglan. Her look said, “Where are you going with this, Mr. DiPaulo, and when are you going to object, Ms. Raglan?” The courtroom was dead silent.

  “One moment, please. I think those are all my questions,” DiPaulo said.

  Wyler was clearly embarrassed. Now that his secret was out, he’d be a tougher witness.

  DiPaulo went behind his counsel table, bent down, and whispered into Samantha’s ear, careful to put his body between his client and th
e jury. From his angle, Greene saw Samantha nod. She glanced up at the witness stand. Wyler didn’t look back at her. It occurred to Greene that this was probably the last time in their lives these two people would ever see each other.

  Samantha slipped a piece of paper to DiPaulo. He read it and patted her shoulder.

  “Mr. Wyler.” DiPaulo looked down at the note. “I want to thank you for your courage and your honesty today.” His voice sounded stilted. Not his usual smooth and confident delivery. It was obvious he was reading the words of his silent client.

  He bent over, about to sit down. Samantha, who rarely moved a muscle in court, shot out her hand and pointed to the note again. She was insisting that he read something else.

  DiPaulo cleared his throat and tagged at his robes. “Ah, one more thing.”

  Samantha looked at the witness stand. This time Wyler looked back at her. Their eyes met for the first time.

  “Thanks for your courage and honesty not only today, but always,” DiPaulo said.

  Wyler held himself erect and nodded at Samantha.

  DiPaulo fluttered his hands in the air. “Sir, with these robes, and all the formality in this courtroom, sometimes we forget that a trial is really about people.” His voice was confident again. Back in rhythm now. “I’m sure everyone here understands that this has been most difficult for you and your family.”

  Greene was certain that Wyler didn’t hear a word of DiPaulo’s last off-the-cuff remarks. Instead, he was staring transfixed at the woman who was probably the best friend he’d ever had.

  63

  “As its first witness, the defense calls Ms. Samantha Wyler.” Ted DiPaulo fingered his thick notepad, which was filled with thirty-six pages of questions he planned to ask. His strategy was to get it all out in his examination in chief of Samantha—the good, the bad, and the ugly. Make it so the prosecution had nothing left to cross-examine her on.

  While Wyler was being sworn as a witness, DiPaulo could feel the jury’s hostility toward her. And their fascination. They’d been staring at Samantha since the first day of the trial and the only words she’d ever said were “not guilty.”