A good defence lawyer (and one who’s perhaps a little open-minded) is pleased to have a lazy judge in a complicated court hearing, the kind in which you have to use complex arguments to establish your version of events beyond a reasonable doubt. Let it be clear that writing a ruling justifying an acquittal, in these cases, is much easier than writing one that irrefutably justifies a guilty verdict.
Valentini gave his summary off the cuff. In twenty minutes he effectively summed up the ruling, without forgetting any important detail and without getting lost in the unimportant ones. He ended by saying that the defence had presented a number of cogent requests for the submission of new evidence.
Judge Marinelli asked if the assistant prosecutor wished to make any observations on the requests presented by the defence.
Gastoni stood up and in a severe tone said yes, she had a number of observations. Her voice was nasal and quite low. Not pleasant to listen to in general, and decidedly unpleasant in the context of a court hearing.
“Your Honours, ladies and gentlemen of the jury, I want to specify in the first place that the Prosecutor’s Department objects strongly to every request of the defence that consists of a repeat of what was done at the original trial. In the absence of explicit, solidly based reasons for what seems a mere time-wasting repetition, all requests to submit new evidence, in parte qua, should be rejected. I refer in particular to the request to call Signora Delle Foglie, the defendant’s mother, and the police officers already examined. It is hard to see what they could add to the substance of their original testimonies. I also object to the calling of police officers not examined at the original trial – I refer in particular to the then head of the Homicide section of the Flying Squad – since it is not clear as to what is the evidential novum that would require calling this person as a witness.
“Essentially, then, the only request to which I do not object is that of calling as witnesses Sabino Arcidiacono, who is I gather the person met by the accused in a cafe just before the murder, and Gaetano Rafaschieri, an acquaintance of the victim. I consider such requests basically irrelevant, but I have no objection to them. Nor do I have any observation to make regarding the request to call the accused to the stand, since at his first trial his testimony was limited to statements.”
Judge Marinelli gave me the chance to speak, asking me to be concise. I was starting to feel nervous, but I forced myself not to adopt an adversarial tone towards Gastoni. I hoped Marinelli wasn’t going to go back on the promises he’d made me – promises he might not have told Gastoni about, judging by what we’d just heard.
“Thank you, Your Honour. Without wishing to be argumentative, I would say in the first place that suggesting there is time-wasting involved in the defence of someone in detention, without considering the length of that detention and with respect to court proceedings that would require three or four hearings at most, seems to me misplaced. As for the other points: the requests to re-examine certain witnesses already examined at the original trial arise from the need to ask them questions not asked during that trial, questions connected to what we expect to emerge from the testimonies of the new witnesses. If you wish, Your Honour, I can go further into the specifics of each request.”
“No, thank you. We’re fine as we are. We shall now retire to decide, and meet again in half an hour.”
When the judges disappeared behind the door of their chambers, Gastoni left, leaving the case file and her robe on her seat.
“Could they reject the request?” Lorenza asked me when we joined her in the corridor. “Didn’t they tell you they agreed to reopen the case?”
“That’s what Judge Marinelli told me.”
“Why did the prosecutor object?”
“Because she’s a bitch,” Consuelo answered before I could. “She objects regardless – she thinks that’s the right way to be a prosecutor.”
I shrugged. Basically, Consuelo was right and there wasn’t much to add.
I went back in and exchanged a few words with Iacopo.
“What happens now, Avvocato?”
“They should accept our requests and set a date to begin hearing witnesses. That said, the law is full of surprises, so let’s wait until they come out with their decision.”
Forty minutes later, Gastoni reappeared.
Another five minutes and the court returned. Marinelli read out the decree, agreeing to our requests, set the dates for the hearings, and adjourned until the following Friday, when the first three witnesses would be examined.
Gastoni stood up and left without saying goodbye to anyone.
“Nice, isn’t she?” Consuelo said, putting the case file back in the briefcase.
“Yes, like a bad toothache,” I replied.
17
For the first hearing we called the police officer Cardace had spoken to as he was being taken to Headquarters; the head of Homicide at the time of the Gaglione murder; and the forensics technician who had carried out the gunshot residue test.
We started with the witness who hadn’t been examined at the original trial. His name was Nicola De Tullio, and he was a sergeant. Above all, he was an old street cop. Twenty years in the Flying Squad, moving from the street crimes unit to Narcotics and finally Homicide. A bit aggressive, according to Tancredi, who knew him, but a decent person and also a good officer.
He came into the courtroom with the determined manner of someone who is often called to testify in court and knows, or thinks he knows, all the possible tricks defence lawyers can pull – an excess of self-confidence into which experienced police officers frequently fall. He was wearing a leather biker jacket, had a thick grey moustache and looked like someone you’d rather not quarrel with if you could help it. He refused the card with the text of the oath when the bailiff held it out to him and recited the formula by heart.
“Conscious of the moral and legal responsibility I assume with my testimony, I swear to tell the whole truth and not to conceal anything of which I have knowledge.”
“Please proceed, Avvocato Guerrieri,” Marinelli said.
“Good morning, Sergeant, can you tell the court in which department you work?”
“Bari Headquarters, Flying Squad, Homicide section.”
“Did you take part in the investigation into the murder of Cosimo Gaglione?”
“Yes.”
“Can you describe to us what your role was in the immediate aftermath of the crime?”
“Yes, together with my chief —”
“Sorry to interrupt. When you say ‘together with my chief’, to whom are you referring? To the head of the Homicide section or the head of the whole Flying Squad?”
“The head of the Flying Squad.”
“Wasn’t the head of Homicide there?”
“I don’t remember too well, but as far as I know he was on holiday. He came back the next day, I think.”
“Thank you. Go on.”
“Yes, anyway, together with the chief and other colleagues I went to Gaglione’s apartment. Officers from the patrol cars were already there, and Forensics arrived soon afterwards. The chief gave us our instructions: question the neighbours and the local shopkeepers, locate the security cameras and get hold of the relevant footage…”
“In other words, the normal investigative procedure that’s routine in such cases?”
“Definitely.”
“Did you get hold of the security footage?”
“I don’t know. Before we could head out, the chief received a call from the intercept room. Gaglione was under investigation by the Narcotics team and apparently he’d had an argument with an associate of his a few hours earlier.”
“How do you know it was an associate?”
“Narcotics told us, I think. Or maybe it was a client. Anyway, somebody who did business with Gaglione.”
“Was it the defendant in today’s hearing?”
“That’s right. Anyway, they told us that it was clear from the telephone calls between Gaglione and Cardace th
at there was some kind of … animosity between the two. The fact that the murder occurred so soon after his argument made us think right away that Cardace was involved in Gaglione’s death.”
“This happened when you’d just arrived on the crime scene? In other words, half an hour after the murder?”
“I can’t really be that exact. Maybe a bit more than half an hour. But an hour maximum.”
“And at this point, what did you do?”
“At that point, we dropped the other checks and went to Cardace’s home.”
“Did you find him?”
“No. His mother told us he’d gone out.”
“When had he gone out?”
“I don’t know.”
“I mean: when had he gone out, according to what his mother told you?”
“If I’m not mistaken, she said he’d gone out not long before, but I didn’t talk to her, the chief did.”
“And the rest of you?”
“We went looking for him.”
“How long afterwards did you find him, and where?”
“We found him almost immediately. We were told that Cardace was hanging around outside a bar in Poggiofranco, I don’t remember the name. We went to check, and he was there.”
“Did you already know Cardace?”
“Yes.”
“How come?”
“For a while we used to go to the same gym. But I didn’t know his surname, I only realized who he was when I saw him.”
“Did you take him to Headquarters?”
“We found some pills on him, or maybe he handed them over when we asked him if he had anything on him. I don’t remember exactly. Anyway, yes, we took him to Headquarters.”
“Were you in the same car as Cardace?”
“Yes, I was.”
“Did you talk during the ride?”
“Yes, of course.”
“Did you ask him anything?”
At this point, predictably, Gastoni got to her feet.
“Objection, Your Honour. The question is in violation of article 62, which I quote from memory: ‘Statements made by the accused in the course of police inquiries cannot be the object of testimony.’”
Marinelli turned to me. “What observation does the defence wish to make on this point?”
I stood up and arranged my gown, which as usual was tending to fall to one side. “Actually, Your Honour, sorry if I’m splitting hairs, my question was about what the witness asked the defendant, not the substance of the answer. But this, I agree, is indeed splitting hairs, because in fact I really am interested in knowing what Cardace said on that occasion and I don’t think article 62 can be invoked to deny me this chance, for two reasons. Firstly, we have to ask ourselves what the ratio is for the rule. Its aim is to protect suspects and defendants from the possible use against them of statements made in the absence of legal guarantees. So it’s not possible to make use of this rule for different purposes, purposes actually opposed to the principle of favor rei. Whenever testimony about statements made by the accused can offer evidence useful to the defence, evidence that may introduce an element of reasonable doubt, it must be admitted. The rule of article 62, which is there to safeguard the defence, cannot be transformed into a trap for the right of the accused to defend themselves with evidence. The second reason follows naturally. The things said on that occasion, in that police car on its way to Headquarters, are not important for their substance as a statement, their narrative significance. They do not prove the truth of what was said. Their importance is purely factual. Basically, we’re interested to know if a certain fact, the fact that Cardace stated certain things, happened at a particular moment. What makes this event important to us, what makes it a declarative event, as we might so call it, is that it happened at that particular moment in time.”
Gastoni tried to reply. “This argument is unacceptable. I don’t think —”
Judge Marinelli interrupted her. “All right, Dottoressa Gastoni, you’ve already stated your objection. Let’s not stretch this out.”
He turned towards the associate judge, and they conferred for a few seconds. Then he turned to the stenographer and dictated.
“The court, having considered that article 62 of the code of practice should be interpreted in conformity with its ratio and therefore according to the principle of favor rei, and having heard and approved the arguments of the defence, overrules the objection and orders that the matter may be pursued further. You may answer, Sergeant De Tullio.”
“I’m sorry, Your Honour, I’ve lost the thread.”
“Did you ask Cardace something when you were both in the car on the way to Headquarters? And if you did, what was the question and what was the answer?”
“I asked him when he’d last seen Gaglione, and he told me he’d seen him that afternoon.”
“Did he tell you where they’d met?” I asked.
“He said they’d had a coffee in the afternoon. I don’t recall if he told me where.”
“Did Cardace want to know why you were asking him that question?”
“I don’t remember, Avvocato. Everyone was in a state. As far as we knew, Cardace was the prime suspect in a murder, and we were in a hurry to get to Headquarters to do tests. What he told me didn’t really matter – unless he’d confessed to the murder.”
“Did you ask him that?”
“What?”
“If he’d murdered Gaglione and if he wanted to confess?”
“No. Maybe I asked him if they’d quarrelled, if anything had happened. I kept things vague.”
“Did you make a written note of this conversation anywhere? In a duty report, maybe.”
“Avvocato, you know as well as I do that it’s forbidden to write down this kind of conversation.”
“You’re right.” I threw a glance at Consuelo, who gave me a sign as if to say: I also think that’s as far as you can go.
“Thank you. I have no further questions, Your Honour.”
Marinelli turned to Gastoni, who was sitting with her head down, ostentatiously making notes. She hadn’t appreciated the hasty overruling of her objection.
“Does the prosecution wish to cross-examine?”
Barely raising her head, she made a gesture with her hand. “No questions.”
“Then the defence may call its next witness.”
18
The next witness was Montesano, the former head of Homicide. He hadn’t been called to testify at the original trial, probably because he’d left Bari and because giving an account of the investigation had been entrusted to the head of the Flying Squad.
“Good morning, Signor Montesano, I’m Avvocato Guerrieri and I’m representing Signor Iacopo Cardace. Can you indicate to the court your job and your rank?”
“Assistant commissioner, working with the Flying Squad in Rome.”
“Can you tell us what your job was at the time of the Gaglione murder?”
“I was working with the Flying Squad of Bari, I was head of the Homicide section.”
“So you dealt with that particular murder, is that correct?”
“Yes. I drew up the final report.”
“Don’t worry, I’m not going to ask you to recap the whole of the investigation. I’ve only asked you here today to clarify a few details.”
“All right.”
“Were you on the scene soon after the murder?”
“No, I was on holiday outside Bari. I was immediately informed and brought forward my return from Rome. I got here the next day.”
“And took charge of operations.”
“Under the coordination of my chief, the head of the Flying Squad, and the examining magistrate. But the crucial checks had all been carefully carried out in the immediate aftermath of the crime.”
“Did you conduct a search of the victim’s apartment?”
“No.”
“Why not?”
“There was no need. It had already been done by the forensics team.”
“So
– correct me if I’ve misunderstood – you were never at the scene of the crime.”
“I think I’ve already answered that.”
First sign of irritation. It’s never a good idea to get irritated while on the witness stand. It isn’t a good idea for the witness and it isn’t a good idea for the defence or the prosecution. The next step is that you lose your cool and the final (and potentially lethal) step is that you lose your head. Sometimes it’s necessary to get a witness rattled, even though as time passes it’s a practice I like less and less. And when a witness gets rattled, the best way to get them even more rattled is to ignore their bursts of irritation.
So I ignored the resentful tone of his answer, thinking Tancredi was right: Montesano wasn’t particularly pleasant and the court wouldn’t like him.
“Did you reconstruct the way the murderer got in and the way he got out?”
“In what sense?”
“I’m not sure how to make it any clearer. I repeat: did you reconstruct the way the murderer got in and out?”
He heaved a sigh of frustration. “There was nothing to reconstruct. This wasn’t a murder committed in an open space, where there could have been various ways of getting to the scene of the crime and leaving it.”
“Do you know what floor the apartment then occupied by Gaglione is on?”
“No, I don’t think —”
“You don’t know the apartment is on a mezzanine?”
“It’s not a detail I bothered with.”
“So am I to assume you don’t know there’s a balcony looking out on the inner courtyard of the building?”
“No, I don’t.”
“And you don’t know what height the balcony is in relation to the courtyard?”
“Avvocato,” Marinelli cut in, “let’s avoid superfluous or pointlessly provocative questions. The witness has already said he doesn’t have direct knowledge of the place.”
“The avenue I’m trying to pursue, Your Honour, is whether or not the witness was informed by his subordinates —”
The Measure of Time Page 15
