by David Ellis
22
Sunlight
ALEX BANIEWICZ HAD been indicted by a grand jury two days earlier on two counts of felony murder, which covered murder in the course of another felony—possession of cocaine—as well as murder of a peace officer. The prosecution was required to show probable cause to hold Alex over for trial and had two choices in doing so—they could go to a grand jury for an indictment, or have a preliminary hearing, at which the prosecution would present evidence to a judge and give the defense the opportunity for cross-examination. Shelly had hoped for the latter, not because she expected to beat the case but so that she could watch the witnesses testify against Alex, observe their demeanor, and begin to formulate strategy. The county attorney had opted, as he often did in high-profile cases, for a grand jury, where the likelihood of obtaining a true bill was about as strong as the sun rising in the morning.
Shelly got to court early for the arraignment. Alex was brought in and escorted to the seat next to her. He had been deteriorating on a daily basis, she thought, showing immediate and perhaps permanent wear from the incarceration and pending proceedings. She spoke words of encouragement to him, lawyer-client stuff, which remained the only basis on which she was able to conduct a conversation with the young man. It was ironic that, since Alex had shared the information with her, she’d grown more distant from him. It had been easier, apparently, to be his friend than his mother. She couldn’t make sense of such things, but she settled herself with the knowledge that beating this case was paramount, and her focus on that was excusable. Win the case, then figure the rest of this out.
Dan Morphew, the assistant county attorney handling the case, took his seat and nodded to Shelly. She left Alex and walked over to Morphew. He was a hearty man, large and round, middle-aged. No ring on his finger, so either single or divorced. He had the look of a big Irish drinker, she couldn’t help but think, washed-out pale as they came, with splotches of red dotting his long cheeks and his nose, flakes of dry skin on a formidable forehead. His hair was cut in military fashion, probably the best choice with a receding hairline and a bald crown, but she assumed he chose the style so he wouldn’t have to bother. His clothes were no different, inexpensive and not well pressed.
He got to his feet with some effort and offered a hand. “Dan Morphew.”
“Shelly Trotter.”
“Keeping busy?”
“Hasn’t been hard.” She handed him her new business card. She would be using office space at Shaker, Riley & Flemming. Paul Riley had offered her an open office. His idea. Another way he could help, without committing his own time. Shelly had found it difficult, somehow, to accept this arrangement gratis. So they worked out a deal. The young lawyers at Shaker, Riley were required to do pro bono work each year, yet there was little structure in place, no single lawyer supervising their work. So Paul, who had realized that Shelly was without a paycheck now, hired her as a pro bono consultant. She would be the lawyer to whom the associates would turn for advice on their public-interest work. “My temporary home,” she said.
Morphew’s reaction showed he recognized the firm. “Riley’s place. Impressive.”
“Oh, yeah, I’m really moving up.”
“Have a seat a second?” Morphew returned to his chair and grimaced. “Back problems,” he explained. “Two surgeries.” He shook the card in his hand. “You know Paul?”
She nodded, sitting next to him. “Tried a case against him.”
“Won or lost?”
“Lost.”
He chuckled. “Most people do. He’s as good as they come. I helped out a little on the Burgos case. Saw the guy in action.”
The Terry Burgos case was probably the most infamous case in the county in Shelly’s generation. She was in college at the time, but the case was covered throughout the nation. Burgos lived on the southwest side near a small liberal arts college where he worked odd jobs. He managed to lure six young women to his house—some of them students at the college, if memory served—murdered them, and performed various sex acts on them as they died or after they were dead. Shelly recalled the television coverage, the small home where Terry Burgos lived, the campus auditorium whose basement he had used as a personal graveyard, police cars and construction crews as they combed and excavated the house.
“I remember,” she said.
“Yeah, who doesn’t? All those girls. Women, I guess, some of them. I’ve seen plenty of crime scenes, but that one—” He shook his head. “Anyway, the whole thing was a circus. Burgos had this public defender, Jeremy Larrabie—remember that guy? Wanted to make a name for himself with the case. Had that big head of hair, and those crazy suits? Always ready to talk to the media, and they were everywhere. We always said he was crazier than Burgos.”
“Paul was kind enough to lend me some space for this case.”
“Yeah? Hell of a guy. God, was he cool in the face of all that. I mean, he had some serious pressure on him, but you wouldn’t know it.” He evened a hand in the air. “Cool as they come. Really made a name for himself after that case. Every damn law firm in the city was bidding for that guy. Instead, he goes in with Judge Shaker and starts his own firm. Good for him. So anyway.” He looked at her. “What do you think of Petey?”
“Who? Oh.” The trial had been assigned to Judge Pietro Dominici, a former assistant county attorney. Most of the criminal court judges were former prosecutors, because the presiding county judge would only assign judges with experience in criminal law to the criminal courts. It made sense, and yes, occasionally a criminal defense attorney would win a judicial election, but it seemed rather daunting that most of the jurists presiding over criminal cases used to be prosecutors themselves.
“Good draw for you,” she said.
“Yep. He’s tough.” He laughed. “Guy’s family comes over on the boat sixty years ago, from Sicily. They’ve got this real Italian name, right? So they change it. His dad’s got the same name—Pietro Dominici. He moves here, he changes his name to ‘Peter Dominic.’ You know, just drops a coupla vowels.” He jabbed a finger at the bench. “Petey here, he’s in our office, Peter Dominic, Jr., right? Real gunner. He runs for judge and loses. Peter Dominic loses. So he moves over to Brighton Village—you know, where all the Italians live?—and he goes back to his father’s original name. Yeah, now he’s ‘Pietro Dominici’ and he’s running in a subcircuit that’s at least forty percent Italian. He took it easily.”
Shelly looked at her watch as if she were unimpressed with Morphew’s familiarity with this judge. It was one minute to ten. “I better get over there, Dan. I don’t want the judge seeing me consorting with the enemy.”
“Aw, Petey’s never on time. We got at least five minutes.” He said it with the confidence of a man with power. This guy was her father without the polish or ego.
She wanted to ask him whether he ever worked with Dominici at the county attorney’s office, but the answer was probably yes. No matter how large the office was, Morphew was a lifer, a career prosecutor, and he supervised hundreds of prosecutors over the years. He slipped Shelly one of his business cards. “I’ll get discovery over to you today,” he said. “If you have any problems, you call me. Okay? Any problems at all.” He waved at the bench. “Make a motion to preserve your record but I’ll have it to you today.”
She thanked him and considered the unusually generous nature of the prosecutor. Could be he recognized the profile of the case and didn’t want any missteps. Prosecutors, to preserve their convictions, often had to do the defense attorneys’ preliminary work for them. But she assumed otherwise. The county attorney, Elliot Raycroft, was the political protégé of Governor Langdon Trotter, and Morphew was probably under orders to treat the governor’s daughter right.
“Who’d you use in the grand jury?” she asked Morphew.
“The partner. Sanchez. Did everything through him.” In probable-cause hearings, hearsay was permitted, so often the prosecutor would simply put on the investigating police officer—or in this
case, the dead cop’s, Miroballi’s, partner, Officer Julio Sanchez—and ask him what his investigation turned up. It obviated the need to bring laypeople before the grand jury, who were less practiced witnesses and who could be more easily tripped up at trial if they contradicted their previous testimony.
Shelly leaned back, looked behind herself at a sea of blue. There were approximately twenty uniformed police officers in the spectators’ seats. They had come out in force to show the judge that they were behind their fallen comrade. “Alex doesn’t deserve this,” she said.
“He shot a cop, Counselor. You had to expect this. But I’ll tell you what.” He leaned into her. “We might consider life. Just to get it done.”
“Won’t happen,” she answered as the door in the back of the courtroom opened. The bailiff, sitting in the corner, got to his feet.
“Don’t say I never offered,” Morphew whispered as Shelly walked away.
“The court will come to order,” said the bailiff. “The Honorable Pietro Dominici presiding.”
Judge Dominici walked with a purpose to the bench. He was a short man who filled out his robe. He had the face of a boxer, squarish, a pug nose, small but fiery eyes behind wire-rimmed bifocals, thick graying hair.
The court clerk, sitting to the right of and below the judge, a young heavyset man, called out the case—People v. Baniewicz.
“Good morning,” said the judge. His voice was softer than Shelly expected, free of emotion and almost difficult to hear.
“Good morning, Judge Dominici. Daniel Morphew for the People.”
The judge cast a furtive glance at the prosecutor, suppressed a smile. “Good morning, Mr. Morphew.”
“Good morning, your Honor. Michelle Trotter, for the defendant.”
“Good morning, Ms. Trotter.” The judge opened a file before him, adjusted his glasses.
“We’ll waive reading, your Honor,” she said, allowing the clerk to forgo an official reading of the indictment handed down against her client.
She’d been waiting for this moment ever since those two intruders left her house, left her wondering about the safety of her client as well as herself. Four nights now, sitting upright on her bed, watching the clock, listening for sounds. She had moved her couch in front of the front door. She had broken glass and sprinkled it on the patio next to the sliding glass door in back. She had placed a small glass full of marbles on the handle of the sliding glass door, where it loomed precariously and would fall with a rambunctious sound at the first hint of jarring. And as the hours of fitful sleep and meditation had passed, she found that she was angry with herself. She hadn’t given in right away. She had taken the first intruder and sent him headlong to the floor. She didn’t back away from the second one, she just couldn’t reach him, and he had a weapon trained on her. Yes yes yes, she could tell herself all of that. But she had been overtaken. Shelly Trotter, who had coached hundreds of pupils on the art of self-defense, had thought she was invincible herself. The moment had come and she had failed.
“Are you prepared to enter a plea at this time, Counsel?” the judge asked.
“Your Honor,” she said, “the defense pleads not guilty by reason of self-defense.”
A stirring behind her, mostly from the city’s finest sitting behind Dan Morphew. Morphew himself did not react, simply wrote something on a pad of paper.
This might, or might not, be Alex’s defense at trial. She could withdraw it, or ignore it—the state would have to prove guilt beyond a reasonable doubt, anyway. Based on what she knew so far, this was the best bet. But she could have waited to make this announcement. She wanted to do it in open court, which was not technically required, and she wanted to do it now. The intruders had wanted to push her in a closet, to keep her quiet about Officer Ray Miroballi’s off-duty work as a drug dealer, and now she was telling them, as much as she could, anyway, that she would not be quiet. Here it is, everyone. A cop wanted my client dead. It would make the papers. It would ruffle feathers. Should anything happen to Shelly or Alex now, the scrutiny would be unbearable. A little sunlight was just what Shelly and Alex needed right now.
The judge adjusted his glasses again, not, it seemed, out of surprise but by habit. Shelly’s words had an impact, no doubt, but he went a long way to show disinterest. “Very well. Mr. Morphew, you acknowledge notice.”
Morphew had been watching Shelly. Did he know any of this already? She assumed he might have. “We do, Judge,” he said. “And if we could handle the 311 notice now.”
Shelly nodded solemnly, sneaked a look in Alex’s direction. She wished that this could be handled in writing, but so many things these days had to be acknowledged on the record in open court. Several years ago, there had been a bit of a scandal when a defense attorney showed up for trial claiming to be entirely unaware that the state was seeking the death penalty against his client. If it had been something else, maybe it would have been chalked up to a snafu, but the anti–capital-punishment establishment had a field day with it. Will they at least tell them first before they try to execute them? So now such things had to be done in front of the judge. This had worked to her advantage today, allowing her to announce her self-defense plea to the entire city media.
“That’s fine,” said Shelly.
“Your Honor, pursuant to Section 311 of the criminal code, the People hereby give notice to the defendant of our intent to seek the punishment of death.”
“We acknowledge notice,” said Shelly, with another glance to Alex. He had fallen into a now-familiar look, his eyes set in a hard, unemotional stare. The thought hit her again—she might lose him before they got to trial.
“Very good,” said the judge. “Have you two discussed a trial date?”
“We haven’t had that chance, your Honor.”
The judge worked his lips while he read his calendar. “Ms. Trotter?”
“Yes, your Honor.”
“Is the defense waiving a speedy trial?”
“Yes, your Honor. We would seek leave to take the depositions of a number of individuals.” In criminal cases in the state, depositions—the questioning of witnesses under oath prior to trial—were rare. In civil cases, lawyers took depositions for months, if not years, to prepare for trial, and this typically came after written discovery, where each side answered questions in writing from the other side. The civil litigator’s creed was to know everything before a trial started, to know the answer to every question asked of a witness at trial, because the witness was already asked the question under oath at the deposition. The civil litigator’s other creed was to bill as much time as possible on a case, which made depositions still more desirable. In criminal cases, on the other hand, depositions were almost never used, despite the fact that the stakes were higher—a person’s liberty as opposed to money. It had always been a bitter pill for Shelly to swallow. How could it be that lawyers fighting over a contract dispute could employ endless resources to uncover information before trial, but a lawyer defending a boy accused of capital murder was not allowed to question witnesses under oath?
“You’re seeking leave to take depositions?”
“We are, your Honor.”
“Have you filed a motion?”
“No, your Honor.” Shelly had been kicked out of the law school before she could put it together. She had just moved into her temporary office. “We will be happy to do so.”
“Your Honor,” said Morphew. “If counsel will let us know whom she wants to depose, perhaps we could dispose of this now.”
“That would be fine.” Judge Dominici focused his small eyes on Shelly.
“Your Honor, we would like to depose Officer Julio Sanchez, the partner of the decedent. Officer Sanchez was present the night of the shooting. We would like to depose other police officers as well. We would like to depose the decedent’s wife. We would—”
“His wife?” said the judge. “Why do you want to depose his wife?”
Shelly had anticipated the question but had never come
up with a good answer. “Judge, it is our theory that my client was defending himself from an attack on his life.”
“I understand that, Counsel,” which was the judge’s way of saying she hadn’t answered his question.
“We’re trying to build a case for why the deceased officer wanted to kill my client.”
The judge was not pleased. Shelly imagined that a former career prosecutor, now on the bench, did not enjoy hearing such allegations, to say nothing of the fact that Shelly’s comments would shine the spotlight still brighter on this case.
“Judge,” said Dan Morphew. “If I could respond.”
The judge ignored the prosecutor. “Serious allegations,” he said to Shelly.
“Yes, your Honor. But they are true. We are entitled to explore them.”
Judge Dominici settled his hands before him. “The requests for deposition are denied.”
“Your Honor—”
“You have full subpoena power for documents,” said the judge. “And you can bring anyone into trial. The rules for criminal procedure do not contemplate free-wheeling discovery like the civil code. Mr. Morphew, other than telling me that these allegations are outrageous, do you have anything to add?”
Morphew paused a beat. He knew to shut up when he was ahead. “No, Judge.”
“Your Honor—”
“Ms. Trotter, I’ve made my ruling. Do you have anything new to say?”
“Yes, Your Honor.”
“Very well.”
“We withdraw our waiver of a speedy trial.”
The judge stared at her. He showed no indication of surprise, but he seemed to take the response as a rebuke. Shelly had settled on the decision last night. Clearly, option one was to depose witnesses before trial to build her case. But if she was not entitled to do so, she felt the advantage of surprise favored her. She had no control over when the federal undercover operation might come to an end—she assumed later than sooner, but she simply didn’t know. The best plan, then, was to go to trial, having pleaded self-defense without any elaboration, without any specificity to Dan Morphew. The F.B.I., of course, would have its hand forced by then, and would be announcing a major arrest of city police officers at precisely the time that jurors were being empaneled in the case of People v. Baniewicz.
