by David Ellis
Ronnie turned away from Shelly as he listened to his messages.
“Find out whatever you can,” she told Joel.
“We will. We’ll figure out this guy’s story.”
Ronnie put down his phone and looked at Shelly.
“That kid is acting weird, Shelly,” said Joel. “He’s up to something.”
“Good, that sounds great, Joel,” she said, watching Ronnie. “Keep up the good work. And, Joel? You’re just talking to me about this, right?”
“Yeah, of course.”
“Good. Keep it that way.”
She heard Joel Lightner laugh on the other end of the phone. “That prosecutor’s gonna have indigestion when he sees those photos of Ronnie hanging out with Eddie Todavia. Have you sent them to him yet?”
“Not yet,” she answered.
Not ever, she now knew.
She clicked off her phone and looked at Ronnie. He was looking at the list of police officers that Shelly had made, with their divisions into precincts, as well as the list of the others arrested in the sting.
“We have to talk,” she said to him.
PART THREE
Guilt
57
Subtraction
“THIS IS SHELLY,” she said into the phone.
“Shelly. Jerod Romero.”
“Hello, Jerod. Did you get the trial subpoena?”
“Sure did, Counselor.”
Shelly was in the conference room where she had spread out. She welcomed the chance to stand and stretch her legs. Her back and neck ached. She felt out of sorts physically and mentally. She had gone weeks without physical exercise, where normally she rarely went a day without breaking a sweat.
“Do you really plan on calling me?” Romero asked. “You’re calling Peters, too?”
She closed her eyes. Surely, this couldn’t be a surprise to the federal prosecutor. Which meant he had a different reason for calling. “You were the ones who grabbed Alex,” she said.
“I’m sure this guy Morphew will stipulate that we picked up Alex and flipped him,” he said.
Morphew. So Dan Morphew had contacted Romero. She would have loved to have been a fly on the wall for that conversation.
“I guess I was hoping for a little more detail than that,” she tried.
“Alex and Miroballi met a couple of times,” Romero said. “That’s about all I can tell you. That’s all we ever knew, besides what your client told us. I told you before—we hadn’t built a case against Miroballi.”
This wasn’t going well. Romero could add a little to that story if he were feeling generous. She thought she had left things with him on a positive note.
“Only, Ms. Trotter”—the tone in Romero’s voice, along with the formality, signaled a bit of tension in his attitude—“it seems that the county attorney has a different take on those meetings.”
“They’re going to say what they have to say.”
“Well, I was certainly interested,” said Romero. “Alex was an unregistered confidential informant working for Miroballi?”
“That’s not true.”
“No?” Romero cleared his throat.
“Surely,” Shelly said, “you don’t know that to be true.”
“I don’t know it to be untrue, either. And now I’m beginning to see why you wanted to get him immunity from us.”
“Jerod—”
“Your client lied to federal agents, Counselor. He made up a song-and-dance when we caught him with drugs. We spent time and resources on that kid. We redirected manpower on that kid. Your boy had us chasing our tails.”
“No,” she insisted. “That’s a load of crap. You don’t know that to be true.”
“I told you then, I’ll tell you now,” said Romero. “I knew that kid wasn’t being straight with us. The moment we grabbed him, suddenly there’s no more conversations with Miroballi. The pipeline goes dry, the moment we catch him.”
“That’s because Miroballi found out.” Now she was giving her closing argument.
“Well—that’s fine, Shelly. That’s your argument. Go with it and good luck. You ask me, was this kid being strong-armed to sell drugs for Miroballi, or was he Miroballi’s informant? I tell you, could be either one. You put me on the stand, I’ll say that. Peters will, too. These F.B.I. agents, Shelly, they don’t like being lied to.”
“Nobody was being lied to,” she responded, realizing as she did that Jerod Romero had hung up the phone.
“Well, great,” she said, holding the phone at her side. She would cross those witnesses off her list. It wasn’t a major loss. And thank God that she had gotten that immunity for Alex—his silence prior to the F.B.I. bust in exchange for a walk. That had been Ronnie’s idea, actually, she recalled, one of the few contributions the kid had actually made. Shelly was confident that the immunity agreement would hold, despite Jerod Romero’s bluster. He was free of the federal government’s reach. But if Romero’s reaction to Morphew’s argument were any indication, Alex Baniewicz might have a shade more trouble with the state’s case.
58
Peers
SHELLY SAT AT the defense table and maintained a pleasant expression as her stomach screamed out at her. Alex Baniewicz was seated next to her, in a blue suit, shirt, and tie. She’d given him more than one pep talk over the last week about his behavior in front of the jury. The majority of the conversation had come from Alex, questions about this or that. Should he smile? Should he look bored?
The most important thing, she had told him, was to maintain a firm belief at all times in his innocence.
She was absolutely exhausted, like she typically was as a trial began. She was not one of those who slept well before trial. It was not a lack of confidence in her abilities but the ever-present uncertainty that a trial brought. Especially a criminal case. She had spoken with every witness and tried to map out every contingency, but without the ability to question the witnesses under oath before trial, it was impossible to be fully prepared. Even when you could do that, as in civil cases, there was no getting around the fact that something would happen at trial that you didn’t expect.
She had tried in vain to interview each of the individuals arrested by the federal government in the drug sting. Each of them had retained counsel and there was no way they were talking. It was hardly surprising, but she had given it the old college try, nonetheless.
She also had named them all to her trial list and served subpoenas on them. Dan Morphew had objected to the late witness disclosures. Shelly had argued that she couldn’t identify any of these people until the arrests were made, so how could she have disclosed them? She also argued that Morphew’s inclusion of Eddie Todavia was just as tardy. At least be consistent, then, she urged. Morphew had argued that his people had just discovered Todavia and added that Shelly already knew about him, because she had interviewed him before they even knew who he was.
Judge Dominici had allowed Todavia to be called by the state but decided to reserve ruling on Shelly’s witnesses until the defense case, a common practice among judges. Leave some uncertainty out there, give the lawyers incentive to settle the case.
Judge Dominici did not allow counsel to question prospective jurors; he took that task upon himself. So Shelly had to sit and take notes. Her job would be to watch the potential jurors, whether they were being questioned at the time or not. She would keep an open mind, and look for facial expressions, body language, choice of words, to suggest any inclination toward or against her client. She had made columns on her pad of paper, one for jurors that she wanted, another for those she didn’t want, and a third for those where she wasn’t sure. She would write a few notes next to each juror number for a quick reminder. She had given Alex a similarly organized notepad so he would have something to occupy his hands. Plus, he seemed like he had pretty good instincts. A savvy client could be a useful asset.
They sat alone, the two of them. No team of lawyers here. The one person who had lent a hand administratively—Ronnie
Masters—was a potential witness, so he could not be at the trial until he was called, if he was called. Technically, he could attend jury selection, but he hadn’t been invited at any rate.
Nor would he ever be invited to the courtroom, at least not by Shelly. She put her certainty in that fact at about ninety-nine percent—allowing for the possibility that something could happen that she hadn’t predicted. Possibly Ronnie might corroborate Alex’s testimony that he was being squeezed by Ray Miroballi, but that was almost certainly inadmissible hearsay.
Each juror was provided a questionnaire seeking basic information—race, age, family, prior service as a juror, criminal record. Shelly and Dan Morphew had supplemented the questionnaire with certain other questions, mostly related to drug use and associations or encounters with the city police force.
First and foremost, however, Judge Dominici addressed the entire bunch on the question of the death penalty. This was a capital case, and people who were opposed to capital punishment on principle—who would never, under any circumstances, vote for death—could not serve on the jury because they were incapable of following the law, the weighing of aggravating and mitigating factors. That, to Shelly, was a considerable loss, not so much because of how these people would vote on the sentence but because of how they would vote on the verdict. People who opposed the death penalty typically carried with them a healthy suspicion of the criminal justice system overall. These were the people who would look for shades of gray in a black-and-white system. These were the ones who would prevent there ever being a sentencing phase.
She wished like hell she could do the questioning herself. She had trouble sitting still in the face of action, longed for the adrenaline of the fight. Instead, she sat with a nervous stomach, reassuring her client and making notes as to each juror.
Lawyers were given unlimited challenges to jurors “for cause”—reasons that justified their exclusion from the jury. Each lawyer was allowed five “peremptory” challenges as well, which were essentially freebies. A lawyer could kick out a juror for any reason at all, except for race or gender—the Supreme Court had ruled those two traits to be unconstitutional bases for excluding jurors. Race and gender were the obvious ones, but Shelly assumed that it wouldn’t be long before other characteristics—national origin, religion, sexual orientation—would join them. Ten years from now, she figured, there would be no such thing as a peremptory challenge.
None of those characteristics were particularly relevant in this case. White cop, white defendant. Most criminal defense lawyers never met a minority juror they didn’t like. The thought was, minorities suffer more abuse from law enforcement than whites and are therefore more skeptical of any prosecution. That was probably true, but Shelly had had enough experience with families in the minority community to pull back the reins on that notion. Some of the most conservative people she had ever met were African American or Latino. Yes, all things being equal, she’d rather have a minority than a white on the jury, but things were not equal. Especially here, where her client was Caucasian; a minority who felt that cops discriminated against them would tend to think that if they were prosecuting a white kid, there must be a good reason.
The jurors seemed like a mixed lot in every respect. Some seemed annoyed to be in the courtroom, others curious, if not impressed, by the spectacle. Some of them might even know that this was that cop-killer case they’d read about some time back. Shelly was undecided, as a generalization, whether she wanted city folk or suburbanites. City dwellers who had experienced unpleasant run-ins with the city police, of course, were more than welcome, but a lot of city residents got along just fine with police. Some suburbanites looked down on the city and would find it perfectly plausible that city cops were dirty. Others, especially those who considered the city as remote to them as Australia despite the fact it was only an hour away, probably hadn’t given the subject much thought. Again, there was no set rule, and the lawyers who relied on them were just being lazy. Go with your gut, was Shelly’s rule.
Still, she found herself recording the race of each of the first thirty jurors escorted into the courtroom: fourteen were white, seven black, five Latino, three Asian, and one Native American. That seemed to be an unusually high representation of minorities for a county that was still predominantly white. She assumed that this made Dan Morphew and his bunch—there were two other lawyers and what appeared to be a paralegal helping him—unhappy.
The publicity of the federal government’s arrest of the six city officers would help Shelly immensely. No doubt, the vast majority of the jury pool had read the accounts. Stories had been splashed on the front page of the Watch for a good three or four days, and follow-ups were still present now and then. The city’s police superintendent had been pressured to resign but resisted. He had appointed a task force to investigate corruption in the police department which, as far as Shelly could tell, had not yet done anything. Below the superintendent, some heads had fallen. None of these developments over the last week were directly relevant to her case, but they had served to keep the issue front and center in the media.
Jury selection began. Potential jurors always seemed to enjoy the questioning. Having people ask you about your life, your interests, and having the attention of a room was flattering to almost anyone. Shelly saw this in juries and she saw this in witnesses, whether at trial or in civil depositions. People liked being the center of attention.
That was not to say that a number of the potential jurors didn’t want out. A week out of one’s life, if not two weeks, could be taxing on anyone. One woman was over eight months pregnant and feared an early delivery. An attorney claimed he had a week’s worth of depositions next week. A woman who owned a small printing company, a man who managed a catering company, complained that their companies would suffer in their extended absence. Shelly put these jurors in her “Yes” column because anyone antsy to leave would resent the prosecution more than the defense. In a self-defense case, the prosecution would likely have a lengthy rebuttal to disprove the defense’s case, which would mean that they, not Shelly, would be blamed for dragging this out.
Judge Dominici paid considerable attention to the F.B.I. sting in his questions. Shelly intently followed how he handled this issue, because it gave insight to his opinion on the impact of that case. The judge noted that all of those people arrested by the feds were presumed innocent, and did they understand that the mere fact that they were arrested did not mean that they were guilty? What conclusions had they drawn from the media coverage? Did they understand that their judgment of Alex Baniewicz had to be based only on evidence that they heard in this courtroom? Were they capable of keeping an open mind?
The good news for Shelly, and the problem for Morphew, was that most people, if asked, would answer that they could keep an open mind. How many people would admit that they were so inflexible that they would take accusations of the U.S. Attorney as true without carefully considering the evidence in this case? Nobody would admit that, to a judge or to themselves. What was undeniable, however, was that this information influenced them. Shelly had instant credibility now accusing a cop of selling drugs and intimidating someone like Alex. Dan Morphew couldn’t just roll his eyes at the jury and say that’s-what-they-all-say. Not after a federal sting that netted six dirty cops.
Judge Dominici finished questioning the first panel of thirty citizens by three o’clock. Shelly had been putting the panel members into her three categories, and she had found thirteen of them acceptable and three others neutral. Sixteen were okay with her. Four jurors had been excused by the judge on the spot. That left ten she did not want. Those ten she would challenge for cause, which meant she would have to make an argument to the judge for why they were unacceptable. If the judge disagreed, she had the option of exercising one of her peremptory challenges. You had to use those sparingly, because they were not unlimited.
She exchanged her list with Dan Morphew during a ten-minute recess. Morphew found eleven citizens to be
acceptable, and Shelly quickly looked for overlap with her list. Eight, by her count. Yes. Eight of them had been found acceptable by both sides. That number was high, in her experience, and she was sure that this overlap hit Dan Morphew the same way it landed in the pit of her stomach—what were they missing, if the other side liked the person, too?
After all of their arguments to the judge for dismissal for cause, nearly all of which were rejected by the judge, the parties exercised their peremptory challenges. Morphew used them on four candidates, all of whom were minorities. Shelly objected and requested a Batson hearing, which meant that Morphew had to articulate a nondiscriminatory reason for rejecting these people. It was a game that had become standard since the Supreme Court outlawed race-based exclusions. If nothing else, Shelly was preserving her record here. If she lost this case, she wanted to have this issue for appeal.
The judge found Morphew’s reasons acceptable. By the time it was all said and done, the entire jury was chosen from the first set of thirty people. Morphew raised his eyebrows at Shelly. They both knew that this was unusual, but they each had to trust their instincts.
In the end, the jury consisted of seven whites—four women, three men—and five African Americans—four men and one woman. The two alternates were Asian and Native American men.
“Opening statements tomorrow,” said the judge. “Mr. Morphew, you expect to take about three days?”
“That’s correct, Judge.”
“Your Honor,” said Shelly, “the defense would like to defer its opening.”
Morphew looked at her. He had been curious, no doubt, about recent developments. She had pleaded self-defense from day one. Seasoned prosecutor that he was, that didn’t stop him from preparing to prove his case. Regardless of any affirmative defense the defendant pleaded, the prosecution still had to prove guilt beyond a reasonable doubt, and then disprove any affirmative defense beyond a reasonable doubt as well. So he might have expected this move by Shelly: stay quiet and make sure the prosecution could prove its case before arguing self-defense to the jury.
