“What time did you arrive at Honolulu Airport?”
“A couple hours after Shannon. I guess it was around four p.m.”
“Where did you go after leaving the airport?”
“I took a cab to my hotel in Waikiki, the Hawaiian Sands.”
Made up of two forty-floor towers with over twelve hundred rooms, the Hawaiian Sands is one of Waikiki’s bigger resorts. The towers, built around the time I was born, bracket a huge open atrium complete with a three-story, man-made waterfall. The Hawaiian Sands abuts Waikiki Beach approximately a mile from where Shannon’s body was discovered.
“What did you do when you got to the hotel?”
“I checked in, showered, grabbed some dinner downstairs, had a few drinks. Then I went out for the night.”
“Where did you go?”
Joey gives me the names and descriptions of the bars, a chronology of his solo pub crawl, as best he can. He was drinking T&Ts, Tanqueray and tonics. He won’t hazard a guess at how many, he leaves it at “a lot.” He asked some of the bartenders to hold the tonic. My kind of drinks. He puts himself at the last bar at approximately 3:00 a.m., which is around the same time the victim was last seen alive.
Fortunately, Joey was sensible enough to say nothing to the police, other than the magic words I want a lawyer. If the police have Joey’s timetable for that night, it’s from pounding the pavement. That’s right, Joey. Make them work for it. Let them earn their keep. Most clients serve up their damning facts on a silver platter, along with generous helpings of damning untruths.
“How did you know Shannon was coming to Waikiki?”
He hesitates, eyes darting up and to the left. I did pay attention in forensic-science class on that day. He’s looking for a lie.
“A mutual friend,” he says.
“Does this mutual friend have a name?”
“I’d rather not say.”
“Is it a male or female?”
“Female.”
“What’s her cup size?”
“What?”
“What’s her first name?”
“I’d rather not say.”
“Just the first name.”
“Cindy.”
“What’s her last name?”
“I’d rather not say.”
“Would you rather smell like this the rest of your life?”
“DuFrain. Her name is Cindy DuFrain.”
“Good. Now, that wasn’t so hard, was it? Wasn’t that fun? Don’t dick me around,” I bark at him. “Last time a client dicked me around, it turned out bad for him. Real bad. Now, did anyone else know that you were coming to Hawaii?”
“Just my father.”
“Did your father speak to the police before your arrest?”
“No.”
“And how did the police know you were here, that you were in any way connected to Shannon Douglas to begin with?”
I let him connect the dots and move on.
“What brought you here, Joey?”
He takes a deep breath, his eyes lifting to the ceiling as his mind travels back in time, to a period he wishes his body could join.
“Shannon and I were together a couple years. We’d been inseparable since law school orientation. We took the same courses. We studied together. We ate every meal together. The only time we were apart was when she was at work.”
“Where did she work?”
“Newark, New Jersey. The law firm of Carter, Backman and Knight. Personal injury lawyers.”
I’ve handled my fair share of personal injury cases, most of them against the New York City Police Department for kicking the shit out of my clients during arrest. It’s a fun practice. If I weren’t defending criminals, I’d throw on a pair Nikes and chase ambulances with the best of them.
“We had some rough spots,” he says, “some tough times, but we worked through them. Then out of the clear fucking blue last weekend, she tells me it’s over. My heart was ripped to shreds, and all I could think about was getting her back. I was so sure that if I could just talk to her, she’d realize her mistake and take me back. I hadn’t done anything wrong.”
Sorry, Joey. It’s when you haven’t done anything wrong that you know she just doesn’t want you, and it’s as over as over gets. If you cheated, it’s understandable her leaving, so you deny it and move on. If you don’t spend enough time with her, you simply promise to spend more. If you’re not good in the bedroom, you order Viagra online or take out some instructional books from your local library. But when she has no rhyme or reason, when she tells you, “It’s not you, it’s me,” then it’s you, you, you, and you’re done, done, and on to the next one.
“When I got to her apartment in Murray Hill, she was gone. I had a talk with her roommate, Cindy, who tried to convince me to forget about her and move on, that it was completely over. And I pretended to listen and understand. Finally, she told me that Shannon left for Hawaii. She never dreamed I’d go, but I went back to my place in Hoboken, packed a bag, and flew here hoping to find her, to talk to her, to fix whatever was wrong between us.”
Without realizing it, Joey is sitting before me plotting the prosecutor’s opening statement, carving up a delicious slice of motive, serving it with a heaping side of opportunity.
At this point, my file on State versus Joseph Gianforte Jr. consists of little more than a retainer agreement and a photocopy of the $50,000 check. Still, that Joey was charged with first-degree murder says a lot about the state’s theory of the crime. The term crime of passion and charge of first-degree murder mix like Klan members and Black Panthers at a bar mitzvah. A homicide committed in the heat of passion typically warrants a charge of second-degree murder, a crime of malice without forethought. The state in this case either theorizes that Joey flew to Hawaii with the intent to kill Shannon Douglas, or, more likely, that Joey observed the tryst between his ex-girlfriend and the local man on the beach, which fueled a homicidal rage, which he exhibited control over while lying in wait until Shannon’s lover left the scene, and perhaps then some, before acting on his violent impulse, thus establishing premeditation, the requisite ingredient for a first-degree stew.
Joey’s being shitfaced on T&Ts—what is legally termed voluntary intoxication—is a meritorious defense to the specific-intent crime of first-degree murder. But it’s a double-edged sword. While the drunkenness negates specific intent, it also makes it more likely that he committed the crime, thus at a minimum helping to establish the lesser included offense of second-degree murder. It’s a pitfall we must somehow navigate around.
“What time did you get back to the Hawaiian Sands hotel that night?”
“I don’t know,” he says, clearly frustrated and maybe even embarrassed at his blacking out.
I can sympathize with this. I drank my way through college and law school, and there were many nights I had to be told about the next morning. Still, I ask him to hazard a guess.
“Late. Maybe four or five a.m.”
I would bet the retainer that the police already have a copy of the video from the Hawaiian Sands’ surveillance cameras that shows precisely what time Joey strolled in, and I would also bet that the timing is not at all helpful to our defense.
“Joey,” I say, “did you see Shannon at all that night?”
“No, I didn’t.”
“Are you certain?”
“Yes, I’m certain.”
I study his eyes and I don’t know whether I am staring in the face of guilt or innocence. Before Brandon Glenn, it didn’t matter, not one single bit. Guilty or innocent, my job was the same: to manufacture reasonable doubt. But now things have changed, haven’t they? Brandon was innocent and Brandon’s dead, dead as dead ever gets. Joey will get from me what Brandon never did: the benefit of the doubt.
Still, one issue is particularly troubling me, one item that will make a prosecutor dance down the aisles like a ballerina on speed. There’s no room to dance here in the concrete cubicle, so I come right out with it.
> “Joey, tell me the circumstances surrounding your conviction on the domestic violence charge in New York.”
He sinks low onto his metal folding chair like a child who hasn’t done his homework. He squirms, uncomfortable on the metal, uncomfortable in his skin.
“You’re not gonna believe me if I do.”
“Why’s that, Joey?”
“Because I lived through it, yet I hardly believe what happened myself.”
CHAPTER 6
Late last year around Christmastime, Joey entered Shannon’s apartment with the key she’d given him on the fifth of December, their one-year anniversary. He found her drunk, completely smashed, he says, crying hysterically on the living room rug. He asked her what was wrong, what was troubling her, but she shooed him away, covering her face as if he were some sort of stranger. He kept asking, kept touching, kept trying to comfort to no avail. The more he spoke, the angrier she grew. The more he touched, the more she pushed away. The more he tried to comfort her, the more hysterical she became.
Finally she faced him, but with a face he had never before seen. She spat in his eyes, her rage raining down on him like a level-three tropical storm. She screeched at him, you bastard, son of a bitch, no-good low-life whore. He didn’t know what it meant and doesn’t to this day. He was neither a son of a bitch nor a bastard and has never, he assures me, whored.
Her rant, he says, turned quickly to violence, a fearsome attack on him for which he was ill prepared. She came at him with glasses, bottles, and plates. He ducked a few, batted a few more. They hit windows and walls and furniture, smashing all around him, before crashing to the floor.
Amid the bedlam and wreckage, he grabbed his leather coat and headed for the exit. She charged at him with a vase, a large, clear piece of crystal he had brought for her that night. He dodged her out of fear and watched her trip on the edge of the Oriental rug she so loved. She fell like a tree, smashing her head on the shelf of the cherry Pottery Barn bookcase they had selected together a month before.
She was bleeding, but not enough to stop her screaming. She cursed him, threatened him, threw things at him from her spot on the floor. She was alive and kicking, literally kicking, so he ran like the dickens out the door.
A nosy neighbor dialed 911 and brought the cops to Shannon’s apartment. Joey was long gone by the time police arrived, and his side of the story had left with him, leaving hers, only hers, and nothing more. Still drunker than drunk, Shannon told police Joey had attacked her, beat her, left her bloodied on the floor.
A detective called Joey’s home and invited him down to the station the next morning. Joey obliged, but sung nothing except the magic lyrics: I want a lawyer. He was booked on a domestic violence charge and spent a grueling night in the Tombs. He was released on $500 bail the following day.
Joey didn’t see Shannon while the case was pending. An order of protection was issued by the court, such that Joey couldn’t even go to school. Had he come within one hundred yards of Shannon, he would have been rearrested and charged with contempt for violating the court’s order of protection.
Joey had no choice but to take a leave from law school. He called it a leave, though he knew even then he would never go back. He became depressed and started drinking, but sometimes drinking just isn’t enough. So he experimented with drugs like a mad scientist. He snorted coke for a couple weeks until his nose bled and he could snort no more. He smoked pot for a month, but his lungs weren’t built for smoke, so he put the pipe aside and tried pills. Pills were just the thing. Narcotic painkillers by day, tranquilizers by night. He didn’t know, he says, until then that Shannon came in pill form.
Still, when the real thing finally telephoned, he took the call. Shannon told him that she tried, oh so desperately she tried, to rescind her story from that night. But the assistant district attorney assigned to the case was a hard-ass who threatened her with a charge for filing a false report. The assistant DA assured her that if she didn’t cooperate in the domestic violence case, Shannon and Joey would end up with criminal records, both of them. The DA’s office already had enough to prosecute Joey, what with the original police report and Shannon’s hospital records, which revealed that she needed nine stitches to close the wound on her pretty little head.
Joey told Shannon not to risk it. She wanted to work someday for the FBI, so she needed a spotless record. He cared about nothing but her, so for him it was no choice at all. He took a plea to a misdemeanor with a promise of probation and community service. But most important for Joey, the order of protection was lifted, and Shannon had agreed to see him once again.
Joey misreads the look on my face; he thinks it’s of disbelief, when it’s really of disgust and disdain. I believe every word Joey just told me. But only because I’ve represented clients charged with domestic violence in New York before. I know the zeal of the district attorney’s office in prosecuting such cases, the fervor with which convictions are pursued. I have known them to intimidate complaining witnesses who refuse to cooperate, threatening them with charges of perjury and filing a false report. I call their bluff and my clients walk. But Legal Aid lawyers, always looking to lighten their load, often advise their clients to plea, to throw up their hands in surrender to the state. Yes, I believe every word Joey just told me. But I know, too, that a jury here in Honolulu would not.
The interview is taking its toll on Joey. Hell, it’s taking its toll on me, too. I’ll want to see Joey regularly while he adjusts to life behind bars, so I tell him I have no more questions for today. I ask him if he has any of his own.
“Will you be able to get my bail reduced, so I can get out of jail until trial?”
Joey is a Grade A flight risk if ever I saw one. Charged with a crime that could keep him behind bars for the rest of his life, seven thousand miles from home. Without some changed circumstances since the time bail was initially set—some new evidence that weakens the state’s case or makes Joey a much lower flight risk—bail reduction is a practical impossibility. I tell him this and he takes it less than well.
I don’t carry a hankie, though right now I wish I did. Joey is breaking down before my eyes, streams of tears flowing down his cheeks, snot dripping steadily from his nose.
I’m losing my breath, suddenly dizzy, shaking like a leaf in fall. The shoe box we share is growing smaller, tightening around us like a vise. It’s suddenly hotter in here, his smell more pungent, like a public toilet that’s overflowed. My cheeks feel flush and my stomach wants to put my breakfast back on the table.
I focus on Joey, trying to soothe myself by soothing him. “Joey, look at me. You’re a long way from home, confined to a terrible place. But you are not alone. I’m here to help you. I’m here to learn everything I can about what happened that night. Regardless of what happened, my job is the same. To slice and dice the state’s case and see you walk. I’ll overturn every stone. I’ll try to tear apart every witness they put on the stand. I’ll give the prosecutor a fight like he’s never fought before. But in order for me to be effective, I’m telling you now, I need from you the truth no matter what that truth is. I need to know everything you know right down to the type of toothpaste Shannon used. If you don’t trust me enough to tell me everything, then tell me now. Because later will be too late.”
“Mr. Corvelli—”
“Kevin. Call me Kevin.”
“Kevin, I didn’t kill Shannon.”
“Then, Joey, I have to find out who did, or at the very least, who could have.”
Tears, tears, more tears. God, I hate to see a grown man cry.
“What do I do in the meantime, Kevin? What am I supposed to do?”
“You keep your mouth shut while you’re inside. You don’t discuss anything about your case or your relationship with Shannon with anyone. Not the guards, not your cellmates, not even your parents. The only person you speak to is me.”
I stand from my metal folding chair. My ass hurts. It hurts real bad.
“Mr. Cor—I
mean, Kevin, I have one last question.”
“Make it quick, Joey. My ass hurts. It hurts real bad.”
“Do you think we’ll win the preliminary hearing? Do you think maybe the judge will just toss the case, and I’ll be sent home?”
A preliminary hearing was scheduled at Joey’s initial arraignment. In theory, preliminary hearings are meant to determine whether there was probable cause for arrest, so that the defendant doesn’t sit needlessly in jail for an extended period while the prosecution tries to build its case. Prosecuting attorneys have the option of taking felony cases to the grand jury or to a preliminary hearing before a judge. They take most cases to the grand jury, where defendants lack the right to confront state witnesses. The right to confrontation is guaranteed in preliminary hearings. Thus, if the prosecutor drags his ass and a preliminary hearing must be held, the accused has a better shot at avoiding trial. Evidently, however, the Honolulu prosecutor’s office doesn’t run on aloha time.
“There’s not going to be a preliminary hearing, Joey. The Oahu grand jury handed down an indictment this morning.”
Another downpour of tears from his side of the table.
Poor son of a bitch. The accused is always the last to know.
CHAPTER 7
This morning Jake and I sit in the conference room with the contents of our growing file on the case of State versus Joseph Gianforte Jr. spread across the table. The Hawaiian sun peeking over our shoulders is no doubt wondering, like us, how the hell we’re going to knock down the house of cards the prosecution is quickly building. After meeting with Joey yesterday, I strolled over to the Office of the Prosecuting Attorney with a written request for preliminary discovery. I fully anticipated being met with dirty looks and leaving with empty hands. Instead I received a warm reception and was immediately directed to the Screening and Intake Division, or SID.
SID is responsible for screening felony cases brought to the department by the Honolulu Police Department and other state investigative agencies. Consisting of one division chief, thirteen screening deputies, seven support staff, and two para legal assistants, SID reviews search warrants and felony cases, deciding which ones to accept, which ones to reject, and which ones require follow-up work. SID also handles preliminary hearings in district court and presents cases to the grand jury.
One Man's Paradise Page 4
