by David Ellis
Sanchez took a deep breath, then finished the story with his exhale. “Ray chased him into the alley. Few seconds later, I heard a single gunshot. I’d barely had the chance to get the car going. I—I got there too late.” He licked his lips nervously, as a single tear streamed down his cheek.
Morphew waited a moment out of respect, and to allow the jury to absorb the sorrow. He was starting with the emotional aspect of the testimony, trying to win the jury early and then pile on corroboration.
“You drove to the alley?”
He shook his head. “I got out and went over there on foot. I—I found Ray.”
“He was dead.”
“That’s right.”
“Your Honor.” Morphew had moved to the defense table. “I’d rather not have to show the officer these exhibits. But if I could publish.” They were the death photos. They had already been ruled admissible, so Morphew didn’t need anyone to authenticate them.
“Certainly,” said the judge.
Morphew passed them around, one by one, and the jurors passed them, wincing and holding their breath. Using them now had a good effect, probably a better impact than with the medical examiner who would testify later. The prosecutor gave the jurors all the time, and more, that they needed to go through the grisly pictures. Then he collected them and entered them into evidence, without objection from Shelly.
“What did you do next, Officer? Can you describe the scene?”
Sanchez was looking over everyone’s heads, into his memory. “I held him. I just held him and prayed for him. I don’t remember the scene.”
“Of course. Did you see the defendant?”
He shook his head. “No. He had left by then.”
“That alley. It ran all the way through from Gentry Street to the next street to the east?”
“Yeah. You can run all the way through to the next street.”
“Other than your partner, of course, did you see anything else in that alley? Can you remember anything at all?”
“Yes.” Sanchez cleared his throat. “Yes. I saw some drugs—what looked like a couple of packets of drugs, and a gun, a ways down. To the east. In the direction he had run away.”
That was objectionable, but there was little denying that Alex—or Ronnie—had run through the alley.
“And what about Officer Miroballi’s gun?” Morphew asked.
“Holstered.”
“His weapon was in his holster when you found him dead?”
“Yes.”
Morphew flipped through his notes to make sure he had covered everything. Shelly had forced him to go out of order by her objections. Morphew had covered the confidential informant testimony before he had planned. Finally, after flipping pages back and forth, he looked up at the witness.
“And, Officer, these events took place in the city, county, and state in which we are sitting today?” A basic jurisdictional question, to establish that this court had the right to be hearing this case. Morphew probably asked now before he forgot.
“Yes.”
“Okay, Officer. I’d like to move to another topic.” He waved a hand. “Was Officer Raymond Miroballi, to your knowledge, involved in illicit drug dealing in any way at all?”
Sanchez straightened his posture. “Absolutely not. No way.” His voice was suddenly stronger, his tone indignant.
“To your knowledge—”
“Ray hated drugs. Never took them, never put up with them. He used to talk about the damage they did to kids. We saw them, you know.” He was talking to the jury. “We saw strung-out kids every day. It made Ray sick. He always talked about wiping out the drug trade completely. He hated drugs, he hated gangs. He hated everything they represented. He used to, he used to point at kids running around in the projects, and he’d say, ‘That could be my kid.’” He shook his head. “Ray wanted to take down the street gangs. Not work with them.”
Shelly wanted to cut him off but opted not to. She was playing a popularity contest, in part, with the jury. Besides, with follow-up questions, Morphew could elicit this information, anyway.
Morphew approached the witness and extended his hand. “Officer Sanchez, thank you very much for doing your duty here.”
Many questions here. Some issues to explore. Shelly wasn’t sure where to start first. She calculated the damage, prioritized it, as she rose for cross-examination.
69
Dance
SANCHEZ REGARDED SHELLY with wariness, watching her out of the corner of his eye. That told her something. The last time they spoke, it was out of compulsion, due to the blackmail photos Shelly had. She still had them, of course. And Sanchez obviously hadn’t told anyone about it, at least not Morphew. So he still had something to lose. Then again, he wasn’t going to go overboard and sell out the case. He had probably figured, correctly so, that Shelly wouldn’t use the photos, unless perhaps he completely betrayed her. She could expect him, at a minimum, to stick to what he told her before. It would be a delicate dance.
“Good morning, Officer.” Shelly stood at the podium. She had a single page before her with bullet points. She wanted to go after him, but the emotional tone had to subside somewhat first. She would start easy. “Over the months that preceded this shooting, Officer Miroballi seemed troubled, didn’t he?”
“Maybe so.”
“He was upset about something. Something he wouldn’t share with you.”
“It seemed like that. I’m not a mind reader but it seemed like that.”
“He seemed stressed out.”
“Yeah, I’d agree with that.”
“He wouldn’t tell you why.”
“No.”
“He told you he was a good cop, right?”
“Uh-huh.”
“Yes?”
“Yes.”
“He made a point of telling you he’d never taken a payoff.”
“He said that.”
“You wondered why he was telling you that stuff.”
“Ray, he didn’t always open up. I figured he’d tell me if he wanted to.”
He hadn’t exactly answered the question, but he was doing fine. “You suspected that your partner was doing something illegal.”
“Objection,” Morphew said from his seat. “There’s no foundation for that.”
“Sustained.”
Shelly expected the objection and didn’t really mind. She had planted the seed with her question, and she wasn’t sure Sanchez would go along with it anyway.
“He started acting like this in November or December of last year,” she said.
“Yeah, that’s about right.”
“Ordinarily, your partner really enjoyed Christmas,” she said. “Last year, he didn’t.”
“Right.”
“And the day of February eleventh of this year. You partner was not in a good mood that day.”
He looked away from her. “I suppose not,” he conceded.
“He seemed nervous.”
“Maybe.”
“It was your partner’s idea to go to the City Athletic Club.”
“It was, yeah.”
“And as you approached the City Athletic Club, Officer Miroballi became more nervous, didn’t he? As far as you perceived it?”
Sanchez blinked, wet his lips. He was thinking. Shelly felt a surge. One of those things that defy description; something in the direction of his eyes, the twitch of his mouth. There was something there. She’d always suspected. But the officer’s decision to speak up would not come from her threats or compulsion. Shelly always had thought the guy was okay. A religious man. He was pitting department loyalty and friendship against the truth.
She didn’t know the answer to this question—she was violating a cardinal rule of cross-examination—but with each passing moment, she felt more confident of her guess.
“A boy’s on trial here, Officer.” She motioned toward Alex.
Sanchez looked at Alex, then back at Shelly. The jury was picking up on his hesitation.
“He asked you to back him up out there, didn’t he? Officer? He told you—”
“No.” Sanchez swallowed hard. “I don’t recall anything specific. Just same old stuff. Just talking about how the day went, that sort of thing.”
Shelly fixed her stare on him. “You sure about that, Officer?”
“Objection.”
“Sustained.”
She shook her head with disappointment, for the jury’s benefit.
“Let’s go the scene, Officer, on February eleventh.” She moved to the podium and placed on it a diagram of the crime scene, showing South Gentry Street, the alley running horizontally across the page, Donnelly Street to the east. A key in the corner showed the top of the page pointing north and showing a bracketed distance to represent one yard. It was drawn to scale by a trial graphics company—something else Paul had popped for—and Morphew had stipulated to its accuracy.
“This boy on the street,” she said, “he ran, after you and your partner got out of the car.”
“Yes.”
“Then you went back to the car.”
“Yes.”
The measurements couldn’t be exact. Nobody could precisely place Alex at a particular spot on the sidewalk when the car approached them, and nobody could precisely pinpoint the car, either.
“Your car was about, say, about twenty yards north of the alley.”
Sanchez looked into the air. “Something like that, yeah.”
“And you had walked about how many steps from the car when the boy started running?”
“Just a few, I guess. I stayed back. Maybe five or ten steps.”
“And it is stipulated that Officer Miroballi was nineteen feet into the alley, from the sidewalk on Gentry, at the time he died. You have no reason to disagree with that, do you?”
“No.”
“Okay. And—I’m sorry—when the boy started running, how far away from the vehicle was your partner?”
“He was, maybe—if I had taken five steps, he had taken more like ten.”
“So he was still a good, oh, ten yards from the alley.”
“Sounds about right.”
“Okay. And—the car was still running, right? You didn’t turn it off.”
“Yeah, of course it was still running.”
“So to get to the car, you just had to move a few steps.”
“Yeah.”
“And Officer Miroballi ran ten yards to the alley, plus another nineteen feet or so into the alley.”
The witness watched Shelly. “That’s right.”
“So you were in the car before your partner had even reached the alley.”
“Okay.”
She nodded and moved from the lectern, behind the prosecutors and toward the jury. “If I told you, Officer, that there has been testimony that your partner had some kind of a conversation in that alley with that boy—based on your memory of the timing of things, sir, would that surprise you? Would it surprise you that Officer Miroballi would have had time to have a conversation with that person before you arrived? In fact, before you even put the car into drive?”
Morphew objected, but the judge allowed it.
Sanchez had figured out where she was headed. Maybe everyone had. Officer Sanchez had ample time to get to his car and drive to the alley, or wherever, if he was helping in the chase. By the time his overweight partner made it to the alley, then traveled nineteen feet and had a conversation with Alex, Sanchez easily could have moved the car forward at least an inch.
“I gave them some privacy,” he conceded. “Ray said he wanted to talk to the boy. So I let him.”
“Okay. So you weren’t part of any ‘chase,’ were you, Officer?”
“No. You don’t come between a cop and his snitch.”
“So it was your intention to let your partner do whatever it was he was going to do. You were going to stay back.”
“He was going to talk to the boy.”
“That’s what he told you.”
“That’s—yes.”
“Sure. I mean”—Shelly placed a hand on the jury railing—“if you knew that Officer Miroballi’s real plan was to kill this boy, then you’d be in quite a lot of trouble for sitting back and letting that happen, wouldn’t you?”
“Objection.”
The judge had the court reporter read back the question, which was fine with Shelly. “Goes to bias,” she said, as if the point were elementary.
“The witness will answer.”
“That wasn’t what Ray was going to do.”
“And that’s what you have to say, isn’t it, Officer? Or you lose your badge.”
“It’s the truth, is why I’m saying it.”
“You said Ray kept to himself.”
The witness gathered himself. “Yes, I said that.”
“You couldn’t read his mind, could you?”
“I couldn’t. No.”
Shelly wasn’t done. This line of questioning had been scheduled for the finale of this cross-examination, the way she had planned to end things. That was the problem with her methods. She went with her gut, and sometimes a grander plan got lost in the process.
She took a deep breath as a segue. She was now standing next to the jurors. Generally speaking, on direct examination, you want the jury to watch the witness, so you stay out of the jury’s view. For cross-examination, the lawyer wants to be the center of attention, because it is her words, more than anything, that she wants the jury to hear. In a perfect world, the witness would simply answer “yes” or “no” to every question, such that the jury was really hearing a mini-closing argument from the lawyer.
She strolled away from the jury into the center of the courtroom so that the jury could look at both her and Sanchez. “You don’t know for a fact that my client was a confidential informant, do you?”
Sanchez played with the characterization. “Ray said he was.”
“Sure, Ray said he was. But you don’t know that, do you?”
He shrugged. “I saw them meet. He was giving Ray information.”
“You don’t know what was said when those two met, do you, Officer?”
“Well, not firsthand—”
“Ray told you what was said.”
He sighed. “That’s true.”
“So all of your reasons for thinking that my client was a confidential informant come down to what your partner told you.”
“I suppose so. But I saw them together. I don’t know why else they would be meeting.”
“Exactly,” she said. “You don’t know.”
“No, I don’t.”
“So you have to concede the possibility that Alex may not have been your partner’s confidential informant.”
“I—I suppose that’s possible.”
“And if that possibility were true—if Alex was not an informant for Officer Miroballi—that would make you reconsider the events that led to his death, wouldn’t it?”
“Objection, Judge,” said Morphew. “Argumentative and speculative.”
“I will—I’m going to allow that.”
Sanchez opened his hands. “I don’t know what you mean.”
She nodded. “Your partner reported that the boy he saw walking down the street had drugs in his possession, right?”
“Right.”
“You didn’t see those drugs, did you?”
“No. Doesn’t mean he didn’t have them.”
“Well, wasn’t your view of the boy as good as your partner’s?”
“Not really. I was looking around some. Checking out the street.”
“Oh. You didn’t get such a good look at the boy.”
“Not really.”
“I guess that makes sense,” Shelly said, as if to herself. “He had his back to you, right? Because he was walking southbound, away from you.”
“That’s right.”
“He had on a long coat.”
“Yes.”
“A cap on his head.”
“Yeah.”
“It was probably hard for you to see anything about this boy at all.”
“That’s right.”
She imagined that Sanchez was eager to say such things. He wanted to put some distance between himself and the events, for the sake of the Internal Affairs Division’s review of this case. The less he saw, the better.
“You didn’t see his pockets.”
“No.”
“Didn’t see his face.”
“No.”
“Didn’t really see—he had a cap on. You probably couldn’t see his hair, either.”
“No.”
“This thing was all your partner’s, wasn’t it? He wanted to see the boy. He’s the one who said he saw him with drugs. He’s the one who wanted some ‘privacy’ with the boy.”
“That’s right.”
“You didn’t see the drugs. You didn’t give chase. You didn’t even see his face.”
“That’s right.” Again, Sanchez was more than eager to comply. Shelly was surprised, frankly, that Morphew hadn’t worked with Sanchez more on this.
“And since you never saw his face, or his hair, or any part of him from the front, Officer,” she said, her heart drumming—because this could fall under the heading of one-question-too-many—“you can’t even sit here and say that it was this boy that you saw, can you?”
“I—” Sanchez cleared his throat. “Ray said it was his snitch.”
“Ray said.” Shelly knew now that she had the answer she wanted. “Ray said. You can’t say for sure that it was my client who you saw walking down that street, can you?”
“Ray saw his face. When he first came out on the sidewalk. We were about a block away to the north. I wasn’t looking. But Ray saw his face. He said, ‘There he is.’”
“Ray said,” Shelly repeated. “Please answer my question, Officer. You didn’t actually see my client, did you? You cannot sit here, under oath, and identify Alex Baniewicz as the person you saw, can you?”
Sanchez answered in a quieter voice. “It was my understanding that both Ray and another man on the street identified your client—”
“Move to strike—”
“—as the one who shot my—”
“Your Honor—”
“Stop.” The judge leaned forward with his hand out. “Everyone stop. The answer is stricken as unresponsive. The jury will disregard that testimony. Officer, answer the question, please.”
