by Sam Millar
Stith frowned at the question, but nodded.
“Is that a yes or a no, special Agent Stith?”
“Yes.”
“Thank you. No further questions for this witness … for now.”
* * *
As the days turned to weeks, speculation began to mount on which, if any, defendant would take the stand. Tom was already committed to testifying in his defence, as was Charlie. Only Pat and myself remained undecided, neither one of us allowing the other to peep over the fence to see if we had any aces up our sleeves.
“It never looks good if you refuse to take the stand,” said one of the lawyers during a much-needed lull in the proceedings. “Don’t pay any heed to what you see on ‘Matlock’, that you’re presumed innocent until proven guilty. A lot of bull. Each one of those twelve people is thinking the same: If he’s truly innocent, why the hell isn’t he up there telling us his side of the story? And you’ve got to admit, they do have a point.” He smiled, just as the trial recommenced. Danny Calemine, a New York City detective, took the stand and testified to having seen Pat and myself coming from a bar, drunk, and staggering up the street!
I couldn’t restrain myself. “That’s a lie,” I said to Tony, a bit too loud. Everyone knew Pat never touched a drop of alcohol, let alone staggered down the street, drunk. He had probably never been to a bar in his entire life, and certainly not with me.
“Just let me do the questioning,” Tony whispered. “Another outburst like that and the judge’ll have you removed.”
“But the bastard’s lying through his teeth. He’s making it all up. You can’t let him get away with this.”
Tony began his questioning of Calemine routinely enough, asking the usual mundane and predictable stuff, nothing dramatic. How many years had he served in the force? Any medals for bravery? Did he have any problems with his eyesight? And was he certain he had seen Pat and myself doing an Irish jig, drunk as two skunks, on a Saturday night?
It was about this moment when the judge intervened, pointing his finger at Tony and saying, “You know better, Mister Leonardo – you’re testifying.”
“Don’t point your finger at me!” exploded Tony, spinning on one heel, glaring as he walked towards the judge.
Mouths dropped open. No one said a word. Everyone in the court – lawyers, prosecution, jury and public – looked on in shock and amazement.
“You’re a better lawyer than that,” said the judge, red spreading across his face.
“Judge, I would think you would be a better judge than to interrupt me. I’m going to protect my client’s rights,” responded Tony.
“You’ll be held in contempt of court for being flagrantly abusive to this court. We’ll take a short recess,” said the judge, obviously shaken, scowling from the bench. “Mister Leonardo? I want to see you in my chamber.”
“Get a cell next to yours ready for me,” Tony whispered. “I might be over there tonight.”
Tony was already in trouble from a previous case. He had accepted $75,000 from a client without advising him to seek independent legal advice on the transaction.
“No court or jury should have to endure such rude, disrespectful conduct. It infects the integrity of the entire judicial process,” Judge Larimer said to Tony in his chambers. “When I admonished you … you exploded and engaged in a lengthy tirade against the court. You violated the state Code of Professional Responsibility, and federal rules. The reason I do not intend to hold you in contempt immediately is the possibility of your client not getting a fair trial. But your conduct was so unprofessional and offensive that some action must be taken at a later stage.”
Tony smiled as he emerged from the meeting, relieved, but still defiant. He would now have to await a response from the Appellate Division – he could be suspended from practising law, or worse, disbarred.
“You’ve got to calm down, Tony,” I advised as he sat beside me. “I don’t want to lose you at this late stage of the game.”
“Don’t worry.”
“Still think he’s a fair judge?” I asked, smiling, packing up to go back to the jailhouse.
“Hell, yes. He’s just doing his job. I wouldn’t have it any other way.”
* * *
The next day’s proceedings began with Tom’s lawyer questioning a representative from Brinks Incorporated. This man stated that between $40 million and $50 million dollars was sometimes kept in Brinks on a Wednesday. If this had been an inside job – as the prosecution charged – wouldn’t it have been more sensible to raid the place on that night, rather than the one in question?
Of course, I knew the answer to that better than the Brinks representative. I had known about the vast amounts of money held on a Wednesday, but what would I have done with it? We could barely take the almost eight. How on Earth could we have managed forty or fifty? Opting for the more conservative Tuesday was the most realistic option available to us.
The questioning of witnesses continued relentlessly for days. The judge, at the end of his patience with the constant repetitive evidence, finally demanded the prosecution speed up the process by eliminating all witnesses except those with new or vital evidence.
“Enough is enough, if we are to conclude this trial some time this year.”
“Yes, your honour,” mumbled the prosecution lawyer sheepishly, quickly leaving the room to inform the small army of agents, to their dismay, that they might not all get to testify.
* * *
The next day, shortly before noon, mixed news came for Pat’s attorneys. George Thompson, a private investigator for Pat’s team, informed them that he had been able to track down two people in New York who had worked at the casino, but that the INS had threatened one of them with checking if his Green Card was in order.
He quickly disappeared from the scene.
As for the other one, he would be willing to testify about the gambling, provided he received word from me via Tony that it would not harm my defence.
Tony was adamant. “No. We can’t allow this guy to testify. The jury will see it as a pattern. I’m trying to make you out as this poor guy whose only sin was to believe the American dream, and in walks this guy saying you were running illegal casinos in New York. Think about it, Sam. Maloney’s team has to get him out of this mess, but not at your expense.”
But I was just as adamant. Despite his underhanded ways, and doing nothing to discourage innuendo against me, I still wanted to see Pat get out of this.
“Who is the witness?” I asked, curious.
“Patrick Farrelly.”
The prosecutors were taken totally by surprise. Typically, both sides share documents before a witness testifies. This gives each side the chance to do its homework, to prepare to cross-examine the witness. This time it did not happen, and the prosecution let their frustration be known.
“Your honour, we have had no notes on this witness given to us.”
Over objections from the prosecutors, and outside the presence of the jury, Pat’s lawyers asked the judge to allow them to present evidence about my work in the casinos.
“We believe that our client thought any money that might have originated from Mr Millar may have come from the casinos, your honour.”
“Your honour, lawyers for the defendants can not present evidence about one defendant’s action to try to establish another defendant’s state of mind. It’s nonsense,” replied Buscaglia.
Larimer nodded, as if in agreement, but said, “The court has to be very mindful to allow him to put in his full defence. I’ll allow the witness.”
When Patrick took the stand, it was obvious he was anything but comfortable. He took a long drink of water, and waited for Pat’s attorney to commence the questioning.
“What is your occupation, Mr Farrelly?”
“I’m a reporter for the Village Voice.” Patrick would later become producer of Michael Moore’s Emmy award-winning NBC/BBC2 series “TV Nation”, and later Bravo/Channel 4 co-production “Awful Truth”. He was th
e founding editor of the New York-based weekly newspaper Irish Voice, and had also been features editor of the New York Post. He also worked for HBO, Discovery, PBS and Irish broadcasters RTÉ and TG4.
“Do you recognise any of the men sitting at that table, Mister Farrelly?”
Patrick looked at me, and then quickly glanced away before nodding.
“I’m sorry, Mr Farrelly, but you can’t nod. A simple ‘yes’ or ‘no’ will do.”
“Yes. Mr Millar.”
“And where do you know Mister Millar from?”
“I was a journalist covering a story about illegal casinos in the Irish community in New York. I managed to get a job in one of the casinos by way of a friend. I hoped my experience of working there would add authenticity to my article.”
“Could you please tell the court what role Mr Millar had in the running of this casino?”
Patrick looked at my impassive face before answering.
“He held the highest responsibility.”
“And what was that responsibility, Mister Farrelly?”
“He was the box manager.”
“The box manager? Could you explain to the court exactly what that means?”
“He had sole access to all the money that was dropped into the boxes. He was the only one with the key to open the boxes.”
“How much money would be in these boxes at any given time?”
“Thousands of dollars.”
“And what did Mr Millar do with all of this money?”
“Normally he would count it, along with the owner. Then it would be transferred out of the building by him, to prevent the police from confiscating it in raids.”
“Did you personally see Mr Millar counting the money?”
“Yes. On numerous occasions. Sometimes he’d send for a Coke or a coffee. I worked as a barman in the casino, and brought it to him quite a few times. He was always there with the owner. If the casino was having a tough night, losing a lot of money, he was the one to see. It could be noon or three in the morning, didn’t make any difference. He was the one that was sent to bring or take money. No one else.”
* * *
“That wasn’t the total disaster I thought it might turn into,” Tony said as we prepared to leave the courtroom.
“Could’ve been worse,” I agreed, standing up.
“We’re not going anywhere just yet. Clauss and Feldman are going to put a motion to the court.”
“What kind of motion?”
“To have all the charges dropped.”
I laughed. “You’re not serious, of course.”
“Just wait and see.”
It was almost 3pm when William Clauss and Jonathan Feldman, Pat’s lawyers, dropped the bombshell.
“Your honour. We move to have all charges against the defendants dropped.”
The prosecution seemed bemused.
“On what grounds?” asked the judge.
“There is no proof that money was moved in interstate commerce. The prosecution has not offered a shred of evidence to support this, your honour.”
“Mister Buscaglia?”
“Your honour, I believe we have brought more than enough evidence in to the court to support and justify the charges. It would seem to me that this motion is a waste of the court’s time. Why was it not brought at the initial stage of the trial, instead of now? I would strongly question the motive behind this motion.”
Judge Larimer fingered through some papers, peering intently at them.
“Well, it’s a bit late in the day to make a ruling, gentlemen. I’ll take these documents home with me, and hopefully I’ll have an answer for you tomorrow.”
“This isn’t going to work,” I said to Tony, before being escorted down the stairs. “So what’s the point?”
“Wait and see,” replied Tony, smiling. “You heard the judge. Hopefully, he’ll have an answer in the morning. Hopefully, it’ll be the one we want.”
That night, I tortured myself, hoping against hope that perhaps the judge would suffer a fit of madness, and drop the charges. It was almost farcical, the motion. But this was America, not the North of Ireland. Who the hell knows what could happen over here? You read about it in the newspapers all the time. Why couldn’t it happen for us?
I’ll not sleep tonight.
CHAPTER SIXTY
A Horseshoe up my Arse? An Entire Stable!
Life is bare, gloom and misery everywhere, Stormy weather, Just can’t get my poor self together, I’m weary all the time, So weary all the time, Don’t know why there’s no sun up in the sky, Stormy weather, Keeps rainin’ all the time …
Billie Holiday, “Stormy Weather”
… one must have the courage to dare.
Dostoevsky, Crime and Punishment
“Did you sleep last night?” asked a grinning Tony as we sat down at the table. The courtroom was full, mostly with media, all wondering what the judge would rule. The noise was intolerable. I was irritable through lack of sleep.
“Like a baby,” I replied, sarcastically.
As the judge entered, the noise died and everyone rose in a Mexican wave.
“I have looked carefully at the motion forwarded by the defence. After long hours and careful study of the Constitution, I rule in favour of the defence. The prosecution failed to prove that defendants O’Connor, Millar or Maloney possessed stolen money that moved in interstate commerce. Furthermore, prosecutors failed to prove that the defendants possessed stolen money in the Western District of New York. The money had been found in New York City, the Southern District. The right to be tried in the venue where a crime allegedly occurred is cited twice in the Constitution. Charges 2 and 3 are dismissed.”
The ruling was a disaster for the prosecution, and it showed clearly on their faces. In the belief that it would be easier to secure a conviction upstate, the prosecution had cut its own throat by removing us from New York City, violating our rights in the process.
Pat, Charlie and myself now faced the lone charge of conspiracy. Tom’s charge of actually committing the robbery remained.
I was thankful that Pat had not succeeded in having the trial held in New York for his own convenience. Had he succeeded, not one charge would have been dropped. I couldn’t help but rub it in a wee bit. “I hope you’re happy you didn’t get your wish,” I said. He could only look at me sheepishly, relieved a major hurdle had been cleared.
Back in my cell, I hovered from the ground, reading the front page of the local newspaper’s late edition:
Prosecution’s Case Fading in Brinks Trial
Earlier today, prosecutors took a major blow when possession charges against Millar and Maloney were dropped in U.S. District Court for lack of evidence.
By all accounts, The Brinks Inc. depot robbery case was one federal prosecutors here wanted.
Armed with a mountain of evidence, they lined up more than 100 witnesses, several flown in from as far away as Florida and California, not to mention the dozens of New York City FBI agents and detectives brought here to testify.
But there was a tug-of-war between the New York Feds and the local Feds … everyone wanted the glory … the prospect for glory, however, appears to be fading.
But there was still life left in the prosecution.
In his final summing up, the next day, Buscaglia urged the jury to, “Use the common sense that you have developed over your lifetime. Bring it into this courtroom.”
He seemed frail, as if the trial had taken its toll on him. He occasionally stopped for a tiny sip of water, giving the impression of someone deep in thought. His career was probably on the line, and he desperately needed this speech to sway any juror who might still harbour doubts as to our guilt or innocence.
“Does your parish priest have suitcases filled with money? Is this what your parish priest does? Is this man the pious priest we have been told about?” He glared at Pat. “Does Mr Millar look like a poor immigrant whose only crime – according to his lawyer – was to seek the Ame
rican Dream?” A cynical smile appeared on his face. “And remember Mr McCormack’s so-called spoof essay? Was it just a coincidence, the amount he claims he wrote in college just happens to be close to the amount stolen from the Brinks? Can you really believe he was just an innocent bystander? And what about O’Connor? He refused a polygraph.”
He shook his head, and for a moment, I thought he would laugh out loud, like a madman barking at the moon. “Can you buy his story that he had a paper bag placed over his head by the kidnappers, who were kind enough to drop him outside his favourite bar? Picture that, folks. A guy sitting in the front passenger seat with a bag over his head. Does that have a ring of truth to it? I urge you all to use your common sense …”
With these final words, the prosecutors rested their case. Everyone’s fate was now in the hands of the jury. All we could do was wait.
CHAPTER SIXTY-ONE
The Verdict
29 NOVEMBER 1994
No praying, it spoils the business.
Thomas Otway
We are all in the gutter, but some of us are looking at the stars.
Oscar Wilde, Lady Windermere’s Fan
The jury deliberated over the next three days, for a total of twenty hours, occasionally requesting some or other piece of evidence to be shown to them. We were, for the most part, relaxed. But sometimes the atmosphere became one of frayed nerves soothed by gallows humour. The look of anxiety on all our faces – defendants, prosecution, FBI and lawyers – was equal, each for a different reason.
Pat and myself were polite, but wary of each other. A fat sandwich of silence sat between us for most of the deliberation. Each of us had cut just a little too deep with our knives to pretend.
Sometimes I lost myself going over the litany of mistakes I had made, marking the miscalculations and questioning my judgments of trust. It was impossible to fathom retrospectively, but at the time, necessity dictated, clouding my judgment.
