“What’s your plan?”
“We should finish the trial by tomorrow afternoon. The Tampa Bay Times is going to break the story, maybe on Sunday to get the most impact, but maybe as soon as the trial is over. Robin can break the story in the online version of the Observer before anybody else has it. She’s been the most objective reporter on Abby’s story. She deserves to be out front on this one.”
“Didn’t you tell the judge you’d keep this confidential?”
“Yes, but he’s the one who called in the press.”
The door to the judge’s chambers opened and the Sarasota police chief, the Sarasota County sheriff, and the state attorney walked out. J.D. went back to the witness room, and Jack Dobbyn stopped to say hello. “I understand you’re in the loop on this mess with the governor’s office.”
“I am.”
“Matt, I’ve got a feeling that there’s a lot more to this trial than the guilt or innocence of Abby Lester.”
“There is, Jack. A lot of stuff is going to start rolling out this afternoon. You might want to have one of your people sit in.”
“Bad?”
“It’s real bad. A lot worse than I would have thought. It involves the feds and, obviously, Tallahassee.”
“Can you link it all up?”
“I think so. I’m going to start this afternoon.”
“I think I’ll stick around myself. It’ll get me out of the office for a change.”
The court deputy stuck his head out of the courtroom and told us that the judge was ready to reconvene.
CHAPTER FIFTY-TWO
The jury was brought back in and the judge apologized to them for the delay, telling them that sometimes court business that he had to attend to intervened. He knew they’d been stuck in the jury room while they waited and assured them that he would take the afternoon recess as planned.
It was a little after two o’clock. The judge would take the fifteen-minute recess at about three. I was trying to time my witnesses so that I could end the day with a blockbuster. I didn’t want to let the day wind up as I was finishing my direct examination of Agent Wes Lucas. That would give Swann the evening to prepare his cross-examination. I needed enough time to examine Lucas and have room left on the clock so that Swann would have to cross-examine before the evening break.
Every trial acquires its own rhythm as the first days wear on, so that soon enough all the actors are in tune. But the lawyers always engage in a balancing act based on informed guesses as they try to line up the witnesses to fit the time frames set by the pace of the trial. It’s all part of the strategy, and it’s often concocted on the run. Sometimes a witness takes longer than expected, the recesses last more than the allotted time, or the judge has to tend to some sort of emergency matter not connected to the trial.
The goal of the lawyer is to call his witnesses in an order that makes some sort of chronological sense, but also in a way that a witness’s testimony will have the most impact on the jury. That’s why I wanted Lucas to end the day on the witness stand. I thought I would be able to do a lot of damage to him, and I thought most of the evidence I would evince would be a surprise to Swann. I didn’t want him to have time in the evening to go over the testimony with Lucas, and be fresh to start the next morning. Surprise is a powerful weapon in a trial. And so is timing.
I planned to call Lucas as an adverse witness, which meant that I could ask leading questions, something I normally couldn’t do with a witness I put on the stand. Since he was the lead investigator and therefore an integral part of the prosecution’s team, I didn’t think there would be a problem with the judge giving me that leeway.
I needed to kill some time. If I could get a couple of short witnesses on the stand in the next thirty minutes or so, it would take the clock to near a quarter of three. At that point, I’d tell the judge that my next witness would take the rest of the day and this might be a good time for the afternoon break. If the judge would call the fifteen-minute recess, I could start my destruction of Lucas at three. By the time I finished, Swann completed his cross, and I did my rebuttal, if any, it would be time to quit for the day. The jury would leave the courtroom with the image of Lucas’ earlier testimony lying in virtual tatters on the floor of the pit. They’d have the whole evening to think about it and cogitate on the weakness of the state’s case. And on the next morning, I’d slap them in the face with the evidence pointing to the real killer.
“Call your next witness, Mr. Royal,” the judge said.
“The defense calls Mr. Dan Kennedy,” I said.
A distinguished looking man walked into the courtroom. He took the stand and was sworn by the deputy clerk.
“State your name, please,” I said.
“Dan Kennedy.”
“Objection,” said Swann, right on cue. “Mr. Kennedy isn’t on the witness list.”
“I’m calling Mr. Kennedy for purposes of impeaching Mr. Swann’s witness, Victoria Madison.”
“Overruled,” the judge said.
“Your occupation?” I asked the witness.
“I’m the principal of Sarasota High School.”
“Was Mrs. Abby Lester employed by you?”
“She was a teacher in my school for many years, and hopefully will be back soon.”
“In what capacity was she employed?”
“She taught history.”
“Do you, as principal of Sarasota High School, keep attendance records of your teachers?”
“They’re kept under my supervision.”
“Have you reviewed the attendance records concerning Abby Lester at my request for the months of February and March of this year?”
“Yes, sir.”
“Was there any time during those two months that Mrs. Lester was absent from school?”
“She was not.”
“Not even for a short period of time during the mornings?” I asked.
“No. Abby had classes from eight o’clock in the morning right straight through until lunch at half past noon. If she had missed even one of those classes, I would have been notified and there would have been a record of it.”
“I have nothing further, Your Honor.”
Swann had no questions, which was a smart move. He wouldn’t be able to get anywhere with the principal, and Swann probably understood that Kennedy’s testimony was just another nail in Tori Madison’s coffin. She was already dead as a result of the hip scar debacle. But she had also testified that she’d seen Abby at Bannister’s condo on several occasions in the middle of the morning, but never on the weekend or in the evening. I’d hammer these points during my closing argument. Abby had been in school. She couldn’t have been at Bannister’s condo at the times Tori said she was.
I glanced at the gallery as I made my way to my seat. J.D. was there, sitting beside Sarasota detective Harry Robson. A joint task force, I thought. If I did my job right, the two of them would be making arrests before we left the courtroom for the day.
CHAPTER FIFTY-THREE
When Kennedy left the stand, Judge Thomas told me to call my next witness. It was a quarter to three and I told the judge my next witness would take up the rest of the day. I asked if he might want to take the afternoon recess now rather than break up the testimony. He agreed and the jury went out.
Swann came over to my table. “Who are you calling next?” he asked.
“Your buddy Lucas.”
“He’s not my buddy. He’s the lead detective on this case.”
“Okay.”
“I don’t see how you’re going to take up two hours with him. He’s already testified once.”
“Yes, but there’s a lot he knows that he hasn’t told us. I plan to peel him apart, layer by layer, right down to his lying core. When I’m finished, the jury is going to laugh both you and him out of the courtroom.”
“Bullshit,” Swann said, and walked away.
I knew, of course, that Swann would tell Lucas what I’d said. I didn’t think it would concern Luc
as a great deal, but it might just make him a little wary, more determined to keep hidden the information I wanted to pull out of him. That kind of defensiveness would become evident to the jury, and the longer it went on, the more likely Lucas was to make a mistake and let the jury and me inside his snake-filled head. As I said, a trial is, in part, a head game.
* * *
Agent Wesley Lucas took the stand, smiled at the jury, smiled at the judge, smiled at Swann, and completely ignored me. I think he was trying to hurt my feelings. The judge reminded him that he was still under oath. Lucas nodded and smiled some more.
“Good afternoon, Agent Lucas,” I said.
He looked at the jury, smiled some more, and said, “Good afternoon, Counselor.”
“How long have you been in the drug business, Agent Lucas?”
“Do you mean how long have I been apprehending drug dealers?”
“No, Agent Lucas. I mean how long have you been the button man for Mark Erickson?”
“Objection.” Swann was on his feet. “Mr. Royal is trying to impugn the integrity of a decorated police officer.”
“I certainly am, Your Honor,” I said, “and I didn’t hear any grounds for the objection, so I can’t adequately respond to it.”
“Your grounds, Mr. Swann?” the judge asked.
Swann was stumped. “Improper impeachment,” he said, finally, a completely useless objection.
“Overruled.”
That question shocked Lucas. I saw it in his eyes, a tightening around the corners. A slight flush crept up his neck. For a split second, I saw it in his face, the killer wanting to take me out. The whole thing didn’t take a second. If I hadn’t been looking for it, I would have missed it. I wondered if any of the jurors had picked up on it. Lucas was good. He was a man in control of his emotions and his expressions. He favored me with a quick smile. “I don’t know what you’re talking about.”
“A button man,” I said, “is a hired gun, a man who kills for money. A man like you. Or your buddy, Kent Walker.”
A stunned look momentarily clouded Lucas’ face. He was surprised by my use of Walker’s name. He thought Walker was an unknown heart attack victim on Longboat Key. He had to be wondering what I knew about Walker, but he was quick, and the stunned expression was fleeting. “I know what a button man is, Counselor, and I don’t know anybody named Kent Walker.”
“What about Mark Erickson? Do you deny knowing him, too?”
“Absolutely.”
“Who is Stan Strickland?”
“He’s the agent in charge of the Tampa office of the Florida Department of Law Enforcement. He’s my boss.”
“If there was testimony in this court that you met Kent Walker a couple of years ago while you were investigating a drug operation in Sarasota County, would you still deny knowing him?”
Lucas sat quietly, his face still as a statue. I could imagine the wheels turning in his brain. His boss at FDLE wouldn’t know about Walker, because Lucas had never turned in any reports on that case. Walker couldn’t have said anything because he was supposedly dead of a heart attack on Longboat Key. But even though he, Lucas, would have probably seen the sketch of Walker in the paper that morning, he would be aware that there was at least a remote chance that Walker had talked to somebody before he died.
Lucas made his decision. “I would deny it,” he said, finally.
“And you don’t know a drug dealer named Mark Erickson?”
“Never heard of him.”
“Objection, Your Honor,” Swann said. “Counsel is on a fishing expedition.”
“To the contrary, Your Honor. I’ll prove that Agent Lucas is not being truthful with us on each one of these issues.”
“Overruled. Proceed, Mr. Royal.”
“Why were you in Sarasota on April first of this year, the morning you were called in to investigate the murder of Nate Bannister?”
“I don’t remember what I was working on. That was several months ago.”
“You weren’t actually here on a case, were you?”
“My recollection is that I was here on a case.”
“You testified yesterday that you might have been here on personal business. Are you changing you testimony now?”
“No. What I meant was that my best recollection is that I was here on a case, but I might be mistaken. I might have been here on personal business.”
“But you don’t have any recollection of what that personal business might have been.”
“That’s correct.”
“When you testified yesterday, you were pretty adamant that your boss, Stan Strickland, called you about this case. Have you reconsidered that testimony?”
“No, sir.”
“So as you sit here today, under oath, your testimony is that you didn’t call your boss and ask him to assign you to the Bannister case?”
“Yes. I’m sure that Agent Strickland called me.”
“Let me show you some documents.” I walked to Swann’s table and dropped a copy and went on to the witness stand and laid a copy in front of Lucas.
“Where did you get these?” Lucas asked, his temper rising.
Swann was on his feet, objecting. “I haven’t seen these documents, Your Honor, and they’re not on the exhibit list.”
“Impeachment,” I said.
I hadn’t gone through the normal process of getting the records. That would have involved subpoenas and notice to Swann of what I was after. Jock worked his magic and retrieved the records with little effort and, of course, no subpoena. If the judge asked about how I got them, I would plead the work-product privilege, which probably wouldn’t go very far with this judge, but I was hoping Swann wouldn’t take time to think through the question of where the records came from. Maybe every one would assume they came from the agent in charge of the Tampa office of FDLE.
After I had telegraphed my approach regarding the records when I cross-examined Lucas the day before, I would have thought he might have been a little less confident when I broached the subject again. I was pretty sure that he and Swann had discussed this and came to the conclusion that since I had not subpoenaed the records, which would have required notice to Swann, that I had been bluffing when I asked Lucas about what the phone records would show.
“Approach the bench,” the judge said. When Swann and I got there, the judge said, “What are these, Mr. Royal?”
“Telephone records from the phone company that provides service for state agencies,” I said, “including the records of all calls between Agents Lucas and Strickland on the morning of April first of this year.”
“Your objection, Mr. Swann?”
“They’re not on the list. I’ve never seen these before.”
“Mr. Royal,” the judge said, “are you using these for impeachment purposes?”
“Yes, sir.”
“Your objection is overruled, Mr. Swann.”
“But, Your Honor,” Swann began.
“Sit down, Mr. Swann.” The judge’s voice was icy. Swann got the hint and went back to his seat. I went back to the witness stand and handed Lucas the documents.
“Repeat your question, Mr. Royal,” the judge said, “and you may answer, Agent Lucas.”
“Do you recognize these documents?”
Lucas had calmed himself. He looked at the documents. “They appear to be the record of phone calls.”
“Do you see any phone numbers that you recognize on the records?”
“Yes. These appear to be my cell phone records.”
“Do you see where you made a call at eight-fifteen the morning of April first?”
“Yes.”
“To whom was that call made?”
“My boss, Agent Strickland.”
“To his cell phone?”
“Yes, sir.”
“Was that call the only one you made to your boss that morning?”
Lucas looked closely at the document. “It would appear so.”
“Look at the second page of the
documents and tell me what that is, please.”
“That would appear to be the record of Agent Strickland’s cell phone.”
“Do you see the incoming call from your phone?”
“Yes.”
“Same time as your record shows you made the call?”
“Yes.”
“Are there any other calls between your cell and Agent Strickland’s on the morning of April first?”
“No.”
“Look at page three, please, and tell me what that is.”
“That would appear to be a record of calls from and to the FDLE office in Tampa.”
“Do you see any incoming calls from your cell phone on the morning of April first?”
“No, sir.”
“Do you see any calls from the agency office to your cell phone on that morning?”
“No, sir.”
“Are you aware that Detective Harry Robson of the Sarasota Police Department testified here that he arrived at the scene of the crime at eight-twenty that morning?”
“Yes.”
“Do you remember that you testified here in this courtroom that you were first called by Agent Strickland at about ten in the morning of April first?”
“Yes.”
“Then how do you reconcile that testimony with the phone records that clearly show the only call between you and Agent Strickland on that morning was the one made at eight-fifteen by you to Agent Strickland?”
“I don’t remember what that call was about, but he called me again at ten o’clock about this case.”
“And on what phone would you have received the call?”
“Probably my other cell phone. I carry two, the one supplied by the office and my own personal phone.”
“Did you own any other phones that day, April first?”
“No.”
“Do you still have that personal phone?”
Chasing Justice Page 28
