by David Ellis
“Probably the same thing I just got in my office.”
“Yeah? Like you don’t know anything about this?”
I didn’t respond to that. He was just doing this for show, anyway. He was part of the game. And my brain was too frayed to get creative with him.
“Okay, so maybe Mason was my CI,” he said. “We had a sting set up but it’s like the affidavit said, this scumbag J.D. called an audible. It started early and I barely got there in time. I just talked to Mason and I guess you were right—your brother was in the wrong place, wrong time.”
Sure, whatever. I didn’t see where I could add anything to the conversation. The ball was rolling down the hill and the best thing I could do was to simply get out of the way.
DePrizio sighed. “I guess your brother’s owed an apology.”
My brother was owed a lot more from this scumbag of a cop, but I just said, “No apology necessary. A dismissal of the charges would be fine. I want the charges dropped within twenty-four hours or we’ll sue.”
DePrizio groaned. “Let me see what I can do. Personally, I think it’s the least we can do for your brother.”
I rested my head against the glass wall, looking down at the passersby, lawyers and clients scurrying to court. My brother, Pete, wouldn’t have court to worry about anymore. He would walk completely from these charges. I took a moment to celebrate, to savor this victory in the battle.
Because that’s all it was—one small battle in a larger war. They had my brother, and they had no intention of ever letting him go. Whatever else they might tell me, as soon as Sammy’s trial was over, they’d kill him and then come looking for me. The trial started in thirteen days, and once it began, I’d be too tied up to find Pete.
I had thirteen days to find my brother. The only way I knew how was to locate Smith. And the only lead I had on Smith was the murder of Audrey Cutler. I was now sure that Smith’s client had been behind that murder. I had less than two weeks to solve a cold case.
“I’ll find you, little brother,” I promised.
48
I’D JUST RETURNED to my law office when Smith called again. “You withdrew the motion, I trust,” he said.
“I withdrew it, yes,” I said into my cell phone. “Now, we have to set a few more ground rules, Smith.”
“I still have your brother. Let’s not forget that.” Smith seemed calmer now, trying to reassert control. I’d spooked him good with the threat of that DNA motion, but he was getting his groove back.
“I want to hear from Pete every day. I want him to read that day’s headline from the Watch. And I want you to send me a photo every day that shows me that you aren’t hurting him.”
“If I think it’s to our advantage to let you hear his voice, I’ll do that,” he said. “If not, I won’t. But don’t forget what I said, Jason. You’ve pissed these guys off beyond belief, and they have a pincushion named Pete Kolarich to take out their frustrations. Do not fuck around, son. Not one inch off course. You keep your nose clean, they won’t hurt him any further.”
Further. My stomach sank.
“Oh, yeah,” he said, picking up on my hesitation. “You didn’t think your little stunt would go unpunished, did you?”
“Tell me what you did to him.”
“It’s nothing that would prevent him from fully functioning, if things go as we all hope.”
“Smith, you tell me—”
“Let’s focus on the future, Jason. Beginning with two days from now, this coming Thursday. The prosecution is contesting the testimony of Mr. Butcher.”
I struggled to control my emotions. He knew he was stinging me with his mention of what he did to my brother. But I had to keep the upper hand here. I made myself believe that he was bluffing, anything to stifle the images flooding my brain.
He was correct that this Thursday, the prosecution would be asking the court to bar the testimony of Tommy Butcher’s identification of Kenny Sanders as the black-guy-fleeing-the-scene. I’d told Butcher that this might happen—it’s what I would do, if I were the prosecutor—and I had agreed to the hearing this Thursday. I hadn’t yet seen the prosecution’s written motion, but yesterday, Lester Mapp had promised it was forthcoming. He told me yesterday he’d file it today, and I recalled a particularly disturbing comment—Your star witness isn’t such a star.
I went to the county Web site to pull up the notice of the motion. There it was, the line for “Contested Motion—Prosecution,” followed by, “Hearing—10/18/08, 9:30 A.M.”
“This will be a critical moment,” he said. “Mr. Sanders is crucial to this case. The jury must know that Mr. Butcher identified him as fleeing the scene. Don’t fuck this up, Jason.”
Your star witness isn’t such a star. “We’ll beat the motion,” I predicted, hoping they weren’t famous last words. “But Smith, if you want me to beat that motion, you won’t be sending any more goons like Nino and Johnny after me, will you?”
He didn’t answer.
“How are they doing, anyway?” I asked. “Last I saw, they’d taken some pretty good beatings.”
“Enjoy that, Kolarich. Have a good laugh. Because your brother certainly didn’t.”
With that, the line went dead.
AFTER TALKING TO SMITH, I put in a call to Kenny Sanders at the restaurant where he worked. The first time I did so, the phone was eventually hung up. I tried again and the second time was a charm.
“It’s Jason Kolarich, Mr. Sanders. The lawyer.”
“Yeah, okay.”
“You have to be in court this Thursday,” I said. “The prosecution is going to fight this evidence.”
“Gonna fight, okay. Yeah, okay.”
“Have you received a subpoena from them?”
“Haven’t got nothin’. No, sir. Didn’t know ’bout it.”
“Well, you will get a subpoena, probably today. You have to be there. Can you do that?” I gave him the time and location.
“So what do I gotta do?” he asked.
“Probably nothing except show up. But just in case, we should go over your testimony again before the hearing.”
I made some arrangements with Sanders to talk again.
Marie walked in with a copy of Lester Mapp’s motion to bar the testimony of Thomas Butcher, which would be heard in two days, along with a notice of the issuance of a subpoena to Butcher to attend the hearing. There was no subpoena issued to Kenny Sanders, though. That was interesting. The prosecutor didn’t want to question Sanders, only Butcher.
The motion to bar Butcher’s testimony was rather brief, but attached to it was the criminal history of Tommy Butcher. Butcher, it seemed, did not have a spotless record. He’d pleaded guilty to submitting fraudulent bid documents for a public construction job in 1982, for which he’d spent five months at a Club Fed. Then, in 1990, he pleaded to lying to federal prosecutors in an investigation into payroll-tax fraud and received a year and a day in a federal penitentiary.
Not just crimes, but crimes of dishonesty. I’d have vastly preferred a good old-fashioned assault and battery. Butcher had twice pleaded to what, in essence, was lying under oath.
Mr. Butcher’s history of perjury, together with his suspiciously last-minute identification of a man approximately one year after the occurrence, takes this matter beyond the traditional balancing of probity versus prejudice to a preliminary issue of the inherent unreliability of Mr. Butcher’s testimony . Lester Mapp was laying it on pretty thick, but he had to. He had to convince Judge Poker that the testimony was so wholly unreliable that the jury shouldn’t ever hear it in the first place. It was always a problem for me that Butcher had come forward over a year after the trial, and now we were going to ask a jury to believe that he could remember a man—Kenny Sanders—who he’d seen for all of a few seconds as Sanders ran past him on his way out of the apartment building.
I put in a call to Tommy Butcher but got his voice mail. He had to know that his criminal history would be a part of this, but he hadn’t mentioned
anything to me. Maybe a layperson doesn’t think about such things. Butcher struck me as someone who probably wouldn’t feel a whole lot of remorse for his prior actions, and maybe the whole thing hadn’t occurred to him.
My cell phone rang. It was about to die and I plugged it into the cord.
“Jason, it’s Denny DePrizio. I’ve got some good news for you.”
I didn’t speak.
“You said you’d be willing to waive any right to sue over this thing?”
“Yes,” I said.
“Then we can get this thing wrapped up tomorrow, like you wanted.”
“Good.” I listened to him as he gave me the details.
“You okay, Kolarich? You sound funny. Different.”
“I’m fine.”
I was anything but fine. But at least I would get Pete’s case dropped. A fresh start for him, if he could make it out of this whole thing in one piece.
49
PEOPLE VERSUS PETER KOLARICH, Case Number 08 CR 67782.”
“Good morning, Your Honor, Jason Kolarich for the defendant.”
Judge Bonarides raised his tired eyes to me. “The defendant is not present?”
“He’s not, Your Honor.”
“Well, I suppose under the circumstances,” the judge said. “Counsel?” The judge looked at the prosecutor, a young woman named Elizabeth Morrow.
“Motion State S-O-L, Your Honor,” she said. The prosecution, on its own motion, was asking that the charges against my brother be stricken with leave to reinstate.
Judge Bonarides cast another glance in my direction. He was probably wondering how some fairly significant drug-and-gun charges were being dropped straight out, without a plea deal. Himself a former public defender, he presumably had a narrow view of the prosecution’s willingness to forgive and forget. Their willingness, in this case, stemmed from my signing of a different sort of agreement only minutes earlier—my agreement not to sue the county for false arrest or wrongful prosecution. But that fell outside the purview of a criminal courts judge, and no one would ever know about it.
Or maybe the judge recognized me. He came out of the same west-side area that produced Senator Almundo. There was a good deal of resentment in the west-side Latino community over Hector’s prosecution, with claims of selective prosecution based on race, resentment that became justified after the feds lost the case. As one of Hector’s defenders, I had a few fans in that community.
“The defendant answers ready for trial,” I said, which started the clock on their time to refile the charges. But this was all just a formality. The drugs-and-guns charges were officially dead. And whatever curiosity Judge Bonarides might have, in the end, another case was disappearing from his docket, and he wouldn’t break out a hanky over it.
The judge was on to the next case only moments later. I shook the prosecutor’s hand. “Thank you,” I said.
“Don’t thank me. The cop and the CI went south.”
It wasn’t the most gracious acceptance, but I didn’t care. I’d at least closed one chapter of the book. Pete didn’t have a criminal case to worry about. Now he only had the small matter of staying alive.
As I walked out of the courtroom, I caught the eye of Jim Stewart, who was sitting in the corner of the courtroom, dressed in a sweater and a baseball cap over his crew cut. I acknowledged him and he nodded back. I thought I even caught the hint of a smile cross his sober face.
I MET TOMMY BUTCHER at the construction site where I last found him, directing traffic and conversing with people who appeared to be from the park district, the owners of the building he was constructing. He was tired and ornery by the time he made time for me. We found a spot at a table that had been set up inside the half-constructed building for the workers to eat lunch.
“Oh. Right,” he said, after I laid out for him a detailed recitation of his criminal background.
“You forgot to mention it.”
“I forgot, period. What’s the point? I still saw a colored guy running from that building. Nothin’ I did back in the day changes that.”
I sighed.
“Look, I got better things to do, Mr. Kolarich. I don’t need this shit.”
“No—”
“I’m tryin’ to come forward here and tell what I saw. Someone’s gonna turn me into a crook for sayin’ so, maybe I’ll take a pass on the whole thing. Get me?”
“I get you.” I raised a hand. “Look, I need you. My client needs you. I’m just saying, we need to be prepared for this. They’re going to go after you—”
“Everybody and their fuckin’ brother fudged bid apps back then,” he said, his face fully colored in anger. “I put down a subcontractor as minority-owned when they weren’t. So what? Then in ’ninety, yeah, I’m paying some people in cash under the table so Uncle fuckin’ Sam doesn’t bleed me dry. Maybe I don’t volunteer that info when the G comes around. So now, suddenly, I didn’t see a brother runnin’ out of that building that night?”
“See, this is precisely why I’m here, Tom. This is precisely how the prosecution’s going to want you to react. You just be forthright with your explanations, admit to whatever you admitted in terms of plea bargains, and act like it’s all behind you. Don’t fight with them. The judge is going to believe you if you keep your cool.”
“Keep my cool,” he said, shaking his head. “This sounds like it’s gonna be a world of fuckin’ fun. I’m startin’ to get real glad I volunteered for this.”
The attitude, Tommy, the attitude. This was going to take some serious work. This was going to take the afternoon. I’d have to beat him up so many times that he became immune to it, that he’d be ready for it when Lester Mapp came after him.
Because, at the end of the day, Tommy Butcher’s identification of Ken Sanders was one of only two things I had going for me in the case against Sammy Cutler. That, and Archie Novotny. I couldn’t deny that Sammy was parked just down the street from Perlini’s apartment, and I couldn’t deny that the window of time that his car was parked perfectly matched the time it would take Sammy to go to Perlini’s apartment, kill him, return to the car, and drive away. I couldn’t even speak to the witnesses who identified Sammy, all of whom were refusing to return my phone calls. And Sammy’s would-be confession—where he blurted out Griffin Perlini’s name before anyone even mentioned why he was being questioned—didn’t help, either.
No, all I had was two alternative suspects. I would give the jury Kenny Sanders, identified by Tommy Butcher as the black-guy-fleeing-the-scene, and I would give them Archie Novotny, who had motive and no alibi for the night of the murder. That was it. That was all I had. And Novotny would deny everything, of course. He would be an adverse witness.
Which made Tommy Butcher’s identification of Kenny Sanders all the more crucial. These were the only witnesses who were on my side. I had to make sure that Tommy Butcher held up under an intense cross-examination by Lester Mapp.
“Let’s take it from the top,” I said.
MY CELL PHONE rang at my office near eight o’clock that evening. When I answered it, I heard Pete’s voice.
“Jason, it’s Pete. I’m doing—okay. The headline of the Watch is ‘County Budget Assailed.’ Take care of yourself, man.”
The line went dead. It was a tape recording, not Pete’s live voice. That was smart. They couldn’t risk Pete blurting something out that would tell me where he was, or anything at all that might implicate them.
The cell rang again.
“Jason,” Smith said. “Best of luck at that hearing tomorrow, with Mr. Butcher’s testimony. A critical moment, obviously. Critical for Mr. Cutler. And critical for your brother. Y’know, I think these guys are almost hoping you’ll screw up, so they can get to work on Pete.”
He hung up before I could reply. I checked the county clerk’s Web site to be sure of the time of tomorrow’s hearing, a superstition of mine.
I called Kenny Sanders one more time to check in with him.
“Never did get one,”
he told me, referring to a subpoena from the prosecution.
“The prosecution didn’t subpoena you? Or call you?”
“No, sir. Only reason I know ’bout it’s ’cause of you tellin’ me.”
“Okay, well—show up anyway,” I said. I hung up with him. Then I looked back at the county Web site again.
There it was, just below the line for “Contested Motion—Prosecution,” without elaboration that it was the prosecution’s motion to bar testimony. “Hearing—10/18/08, 9:30 A.M.”
I picked up my cell phone again and dialed the number for Joel Lightner. “The name is Tommy Butcher,” I said. “I need his background and more, Joel. Starting as soon as you can.”
50
SAMMY WAS BROUGHT into the courtroom at a little after nine in the morning. The deputy removed his manacles and he took a seat next to me, wearing his prison jumpsuit. There was no jury, so no need to make him look more respectable in a suit.
Across from me, Lester Mapp was conferring with another attorney, a young woman. He carried that air of authority that accompanied his position. He wore it a little too proudly. I never felt comfortable with it, myself, the self-righteousness. The way I saw it, lots of people do lots of things they shouldn’t, and the ones hauled into court are just the ones who got caught. Unless we could be more consistent in how we enforced the law, the air of superiority didn’t fit.
I checked my watch for the fourth time when Tommy Butcher walked in. I’d told him to wear a suit, but the best he could do was a brown tweed sport coat, red tie, and slacks, which didn’t seem to fit him too comfortably. I nodded to him but didn’t approach, other than to make a calming gesture with my hands.
“All rise.”
Judge Kathleen Poker walked into court with her typical no-nonsense approach and got right down to business, looking over her glasses at the courtroom. “People versus Cutler,” she said. “Show Mr. Mapp present for the People. Show Mr. Kolarich and the defendant present as well. Mr. Mapp?”
