by David Ellis
Shelly had been disappointed that Dan Morphew had not tried to re-engage her in plea discussions after she had dropped the bombshell about Alex’s involvement with the F.B.I. in its undercover sting. In her estimate, Morphew’s case had been substantially weakened with this disclosure—why hadn’t he thought so? Maybe he was worried. Maybe he was following the lawyer’s creed of not bidding against oneself—it was truly Shelly’s turn to come forward with a counteroffer. She wouldn’t do that, because she didn’t want to settle this case. She just wanted to hear Morphew ask again.
“The defense will defer its opening, okay,” said Judge Dominici. He wrote something down. “Ms. Trotter? What is the longest your defense case might take?” The question was asked with the understanding that there might be no defense, and that the defense could stop at any time. Or, she thought fleetingly, the judge could throw out the charges after the prosecution’s case.
“The longest is seven days,” she said. This was a high estimate. Shelly planned on calling every one of the sixteen people implicated in the drug sting. She would ask them several suggestive questions each. They would refuse to answer, invoking the Fifth Amendment. It would be like sixteen mini-closing arguments, because these witnesses wouldn’t fight her. She could ask the most self-serving question imaginable and they wouldn’t answer at all. Did you work with Raymond Miroballi to protect drug dealers on the street? I decline to answer. Did Ray Miroballi tell you that he had discovered that Alex Baniewicz was working for the feds and needed to be eliminated? I decline to answer.
Her job was to find some questions they could answer, something relevant that would give her an excuse to haul them into court. The jury would hear sixteen different witnesses taking five; they would have trouble not lumping Ray Miroballi in with them.
The twelve jurors and two alternates walked back in the room, one by one, and took seats in the jury box.
“Now for the bad news,” the judge told them. Some of them laughed. Some of them groaned. They had already figured, when they were singled out to return to the courtroom, that they had been selected. They would go home tonight and tell their families that they were jurors on the cop-killing case that made the headlines a few months back. Their family members would make comments about the case, offer their opinions. Each of the jurors would make arrangements at work to let people know they were out of service for a week or two. Some would be in a hurry for the proceedings to end. Some would embrace their civic duty and take their roles seriously. They would bring a lifetime of world experiences into their job. They would try to be impartial, try to remember and weigh all of the evidence.
Tomorrow, they would begin to sit in judgment of Alex Baniewicz.
59
Snitch
SHELLY TAPPED HER feet nervously before the jury entered. She had worked over the prosecution’s witnesses last night, with Paul Riley playing the witnesses and being an incredible pain in the ass about it. Which was exactly what she had needed.
Alex had been escorted into the courtroom at eight-thirty. He was in a gray suit—the one he already owned—and a white shirt and yellow tie. He looked right. Nothing flashy, and not the prison garb that implies guilt in the minds of the jurors. Subdued attire, highlighting Alex’s good looks. He looked like a nice young man, which he was.
Dan Morphew didn’t enter the courtroom until ten minutes to nine. His eyes were puffy and red but intense. He was in trial mode, like Shelly. Shelly hadn’t slept particularly well either, and hadn’t expected to, but she tried to lie still and close her eyes to at least get some rest. She was wearing a blue suit and cotton blouse, her hair pulled back into a clip.
The courtroom was full. There was only one color that filled the first three rows of the gallery. There were about forty uniformed police officers in their dress blue for the first day of trial. Reporters were present and camera crews awaited the proceedings outside the courtroom and in the lobby of the courthouse. The first day was always the biggest for the spectators and the media. Opening arguments were often the most dramatic moments of a trial, before settling into the tedium of witness questioning and admission of evidence, to say nothing of recesses and out-of-court arguments to the judge.
Shelly found herself searching through the rows, looking for someone. She made eye contact with a woman. She was somewhere in her late thirties. She was next to an older woman—her mother, it looked like. Their arms seemed interconnected such that, though it was out of her line of vision, she assumed they were holding hands. The woman was not classically pretty but there was a certain dignity about her, an inner peace that made her flat dark eyes come to life. Her brothers-in-law had been named as potential witnesses, so they would not be here. She had not brought her three children either, for obvious reasons. Sophia Miroballi did not direct hatred toward Shelly. It was more like resolve. She was here to see that justice was done for her husband.
And Shelly, with any luck, was going to rip her departed husband to shreds in front of her.
The Honorable Pietro Dominici entered the courtroom and called for the jury. They entered from an anteroom and took their seats. They seemed impressed with the full house, the rows of police officers showing their loyalty. Shelly smiled at the jurors, a subdued smile, nothing bright or whimsical. She would be pleasant but serious. Story of her life.
The judge instructed the jury that the opening statements were not evidence themselves but only predictions of what the lawyers expected to show. That was true, technically, but many lawyers believed that you won or lost a case in your opening statement. It was the jury’s first impression of your arguments. If you didn’t believe what you were saying with all your heart, then neither would the jury. If it didn’t make sense, even when presented in its best light by the advocate, then it wasn’t going to wash.
Shelly braced herself for the opening. She was accustomed to civil practice, where depositions and interviews were more plentiful, where a trial lawyer could predict virtually everything that would happen at trial. In the criminal setting, Shelly was divining the prosecution’s theory from its responses to written questions, from the brief conversations she had with witnesses, and from the evidence that the prosecution intended to submit. A more blunt way to say it was, Shelly was guessing. An educated guess, yes, but still nothing but an estimate. She had to expect that Dan Morphew would say things in the opening that would surprise her. This was why they called it “courtroom theater.”
“Mr. Morphew,” said the judge.
“Thank you, your Honor. May it please the Court? Ms. Trotter.” Dan Morphew was on his feet, nodding in Shelly’s direction. He carried a notepad with him, though he seemed to have notes written only on the first page. He did not use a podium as he stood before the jury, holding the pad of paper at his side. He might not score huge points for presentation, but he apparently didn’t care. Most prosecutors didn’t. They had the facts, truth, and justice on their side, and no one mistook them for the high-priced, expensively dressed trial lawyers that occasionally made their way into the courts for a client who could pay. No flash, all substance, would work just fine for a guy like Morphew.
He placed an enlarged photograph of Raymond Miroballi in full police dress on a tripod. The photo was from several years earlier, showing Miroballi with a proud expression, his thinning dark hair neatly combed, his mouth settled in contentment.
Morphew walked over to a large tape recorder and hit a button. A voice boomed out, the distressed voice of Officer Julio Sanchez filling the suddenly quieted room.
“Dispatch, we have an officer down. Officer down. Officer—we have an—oh, God, Ray.”
The jurors recoiled, some closing their eyes, others looking away, wincing as they listened to a police officer calling for assistance for his slain partner. It was the tape from Sanchez to dispatch, which had been premarked and approved as evidence in this case. Shelly couldn’t prevent Morphew from using it, even in his opening statement.
Morphew killed the recorder and sto
od before the jurors. He opened his hand to the photograph. “‘Officer down,’” he said. “Words that bring a chill to every police officer. Words that bring a chill to every member of every police officer’s family.” He opened a hand to the enlarged photo. “You’re looking at Officer Raymond Miroballi, a husband, a father of three, who lost his life on the evening of February eleventh of this year. What you just heard was his partner, running to him in a vain attempt to save him. He had no chance of saving him, ladies and gentlemen. Because Officer Miroballi, an officer who was trying to keep the streets safe from drugs and gangs, had been shot in the face by this defendant.”
Morphew opened up toward Alex with these last words. There was another adverse reaction from the jury, pained expressions, looks of disgust. Most people didn’t see violence like this up close. It was hard to imagine anyone being immune to the image of a bullet in the nose.
“Police Officer Raymond Miroballi grew up on the south side and lived there his whole life. He married his high school sweetheart when he graduated, and a few years later, he became a cop. He worked on the street. He worked in neighborhoods where cops aren’t so popular. On February eleventh of this year, he was killed in the line of duty. He was shot in the face by a drug dealer. That drug dealer is sitting right there.” He pointed at Alex. “We are bringing charges of first-degree and felony murder against that man, Alex Baniewicz.”
The defense table was on the left side of the courtroom, and Shelly had positioned herself to Alex’s left so that she could look at him as well as the jury. She looked at the jury but kept her eye on her client as well. Alex watched the prosecutor, then the jurors as if he had nothing to hide, and shook his head mildly.
She hadn’t told him to shake his head, only to look the jurors in the eye without being threatening or defiant. He had to show them that he was without guilt, not without sympathy.
“At close to eight o’clock on the evening of February eleventh, Officers Raymond Miroballi and his partner, Julio Sanchez, were patrolling the city. The west side of the commercial district, near the train station. Specifically, Bonnard Street. They spotted the defendant, holding a gym bag and stuffing drugs into his pocket. So they stopped. Officer Miroballi got out to approach the defendant. And when Officer Miroballi left his vehicle, the defendant ran. He ran on foot, heading south, and turned down an alley.”
The jury was taking notes. Morphew paused a moment.
“Officer Miroballi gave chase and found the defendant in the alley. Officer Miroballi told him to submit to arrest. He told the defendant to show his hands and submit. He didn’t draw his weapon, ladies and gentlemen. Didn’t pull out his gun. He wasn’t looking for a shoot-out. He told the defendant to submit.”
Morphew flapped his arms. “So what did the defendant do? He tricked Officer Miroballi. He pretended to submit. He dropped his gym bag, as the officer had instructed. He dropped the gun he had. Which meant that he had complied, right? Wrong. At that moment, the defendant pulled another gun from his jacket pocket and he shot Officer Raymond Miroballi in the face.”
That was far more detail than she’d heard before. This had to have come from the homeless guy, Slattery, because he was the only one who said that he saw the shooting. But he hadn’t said anything close to that to Shelly and Joel Lightner. Morphew had just explained the second gun. She had never played out this scenario in the way Morphew described it. And if it was true, it was smart. Alex had dropped his gun and made it look like he complied? Then he pulled out a second gun and shot him? If the person you want to kill is a cop, that’s not a bad idea at all. And at this point, as trial had begun, it didn’t matter if it was true. It mattered that it was believable.
Morphew turned to Alex again, wagging his finger with disdain. “Make no mistake. It was the defendant. You’ll hear from Officer Julio Sanchez, who will tell you that it was the defendant who ran from Officer Miroballi. You will hear evidence that traces of Officer Miroballi’s blood were found in the defendant’s hair and on his shirt. It was him.”
He strolled a step, not even peeking at the notepad he carried. “Now comes the why. Why did this happen? How did this happen?” He walked over to the blowup of Raymond Miroballi. “This was an officer who wanted to wipe out drugs on the street. He wanted to wipe out the people who made that happen. You want to catch drug dealers, you have to work with drug dealers. Sometimes they demand that you work with them confidentially. Confidential informants, you will hear, are an important part of the business of keeping the streets clean. The defendant was one of those confidential informants. The defendant sold cocaine.”
Morphew had made sure to allow the jury access to Alex at this point. Most of them looked in his direction with less than pleasant looks on their faces. Shelly had the instant feeling that maybe she should not have held back her opening statement. It had the effect of giving her the element of surprise, but maybe she had overestimated that advantage. Morphew got to make the first impression here and she had no response.
“So Officer Miroballi used the defendant. You will hear testimony that the two of them met on a few occasions. Officer Miroballi was getting information from the defendant. Information about a particular street gang. A gang called the Columbus Street Cannibals.”
Shelly had tried to exclude any mention of this gang prior to trial. Their horrific reputation would unfairly taint her client, she had argued. All Morphew had to do, however, was point to Eddie Todavia, who had admitted his affiliation and admitted that he supplied Alex with drugs. That was more than enough, even she had to privately concede.
Morphew shrugged. “Scary stuff. Officer Miroballi patrolled the neighborhoods where the Columbus Street Cannibals worked. Venice Avenue. The Andujar housing projects. The near west side. Part of his turf. He didn’t like having gangs selling drugs on his street. He wanted to stop it. So he used someone who worked with the Cannibals.” He pointed at Alex. “He used the defendant. He was going to use the defendant to infiltrate this gang. Maybe not take down the entire operation but put a dent in it. Do something.”
He looked over the jurors. Morphew had an effective delivery, a flair for drama that complemented his unaffected presentation. “What’s a cop’s worst fear in this situation, folks? You’re going after a major street gang and you’re using a confidential informant. What’s the worst thing that can happen?” He wagged a finger. “The worst thing that can happen is that your confidential informant turns on you. Tells the street gang about you.”
That comment seemed to buy something with the jurors. A couple of them gave slow, knowing nods of their head. Morphew let that simmer a moment as he slowly moved to the witness stand. He dropped a hand on the wooden railing. “I wish to God we could put Officer Miroballi in this witness stand and ask him what he was thinking. I really do. All we can know is what he told his partner. He told his partner that the defendant was being dishonest with him.”
“Judge, I have to object to the hearsay.” Shelly barely got out of her seat and kept her volume low. She didn’t want to seem discourteous and, more important, she didn’t want to lend added weight to the comment by appearing to be concerned. But she was concerned, and she had to make her record.
The judge looked over his glasses down at Morphew. “I suppose, when the time comes, you’ll have an argument on this point.”
“It’s offered only for state of mind, Judge.”
“Well—” The judge adjusted his glasses. “Ladies and gentlemen of the jury, I have already told you that what you are hearing in opening statements is not evidence. It is not. We are talking here about a point of evidence, and I have not ruled on that yet. Whether these things Mr. Morphew speaks of will ever come in as evidence remains to be seen.”
“Thank you, your Honor.” The prosecutor returned to the jury. “That’s what the night of February eleventh was all about. Officer Miroballi was concerned that his confidential informant was not telling him accurate information. That he was playing games with him. He wanted to tal
k to him. He wanted straight answers from this defendant.”
Morphew nodded to his assistant, who hit the tape recorder again. Shelly recognized the words from the transcript. She had heard the tape, too, of Officer Raymond Miroballi calling to dispatch, out of breath:
“Dispatch, advise all units that suspect is armed. I repeat, suspect is armed.”
Morphew pointed at the tape recorder. “Officer Miroballi knew that the defendant was armed. He knew it, and yet he still didn’t draw his own weapon. That was probably not smart, in hindsight. But the evidence will show that he didn’t draw his weapon on this armed boy because he wanted to reason with this boy. He didn’t want to lose his informant. He needed him.”
Morphew held out five fingers. “Five feet, ladies and gentlemen. Officer Miroballi was five feet from the defendant when he was shot. You will hear expert testimony on that point. Standing as close”—Morphew paced off the steps walking backward and stopped—“as close as I am right now to you in the front row. This close, and not holding his weapon. That, folks, is a man who wanted to talk to the defendant and only talk.”
Shelly wanted to object to the argumentative nature of his comments but held back. Morphew certainly was arguing, and effectively so. He was arguing against self-defense without ever mentioning the words. That was smart. He could not be absolutely sure Shelly was ever going to argue the defense, and he didn’t want to make a mark against his own case unnecessarily. So he couldn’t come out and say the words, but he had to cover that base.
