Mistaken Identity

by Lisa Scottoline

  “I don’t know what you’re talking about,” Connolly said evenly. Her expression betrayed nothing, but Bennie didn’t need confirmation.

  “You told Harting to come forward during the trial. You told her to call the D.A.’s office and offer herself up. You fed her enough information to make it credible to the jury and to me. You knew Hilliard would see a slam-dunk surprise witness. You knew when Harting recanted it would screw up the prosecution’s case.”

  Connolly smirked. “Don’t try to guess how cons act, Rosato. You’re an amateur. Shetrell was trying to kill me, why would she make deals with me?”

  “Because you made it more profitable to side with you than kill you. What did you offer her? A cheaper supply? You in business on the outside and her in business on the inside?”

  Connolly’s eyes narrowed. “Why the fuck are you here? Shouldn’t you be working on my defense?”

  “What defense? My associate thinks you don’t need one.”

  “I agree,” Connolly said quickly, and her reaction clarified Bennie’s thoughts.

  “Oh, really? Most defendants in a capital murder case would be shocked if their lawyer was considering not staging a defense. Something about lethal injections makes a defendant hedge his bets.”

  “I’m not most defendants.”

  “Yes, you are. You just anticipated that I’d think of it. You knew that when Harting recanted, we’d have a shot at taking it straight to the jury.”

  Connolly laughed. “More than a shot. I watched the jury when Harting flipped. If you harp on it in your closing argument, I’ll get off.”

  “I gather I have your permission to rest, then. Legally it’s your call.”

  Connolly paused. “If you think it’s the right thing to do, sure.”

  “It certainly suits my needs.” Bennie stood up. “I don’t want to defend you anymore.”

  “You’re not trying to kill me, are you?” Connolly laughed again, and for the first time it sounded nervous, but Bennie felt too furious to reassure her.

  “It’s settled, then. We go right to closing arguments. By the way, make sure you listen to my closing. I couldn’t control you getting to Harting, but I sure as hell can control what I do about it.”

  “What’s that supposed to mean?” Connolly asked, but Bennie was already out the door.

  86

  Judge Guthrie was reading the pleadings index as the jury resettled into its numbered seats. “Call your first witness, Ms. Rosato,” he said, and Bennie rose to her feet at defense table.

  “Your Honor, the defense has chosen not to present any witnesses because the prosecution has not proven its charge of capital murder. The defense moves for a directed verdict of acquittal.”

  Surprise crossed the judge’s refined features, and the lid of his pleadings index dropped closed. “Ms. Rosato, are you saying the defense is resting at this point?”

  “Yes, Your Honor.” Bennie watched a ripple of excitement run through the jury, and she knew that behind her the gallery would be reacting, too. “My motion is outstanding, Your Honor.”

  “Denied,” the judge ruled. Judge Guthrie looked at Dorsey Hilliard, who was hustling to his feet on his crutches. “Mr. Prosecutor, are you prepared to proceed to your closing argument?”

  “Of course, Your Honor,” Hilliard said, too quickly to be credible. He collected some papers hastily, either for show or security, since Bennie doubted he’d have written his closing already, and he walked to the podium.

  “Ladies and gentlemen,” Hilliard began, “this is sooner than I expected to be speaking to you, but just the same, I’m delighted with the opportunity. You have been attentive and responsive throughout our testimony, and I thank you on behalf of the Commonwealth of Pennsylvania. We thank you also for your common sense and your sound judgment, which is what you will need when you go into the jury room to deliberate today.

  “You heard the defense attorney tell you in her opening argument that the prosecution case against the defendant is circumstantial, as if ‘circumstantial’ is a dirty word. I beg to differ. Murders are rarely committed in broad daylight, in full view of an array of witnesses. In fact, most murders take place without an audience and between people who know each other. People who loved each other, and who fight.”

  “Objection, Your Honor,” Bennie said. “None of those facts are in evidence in this case.”

  “Sustained,” Judge Guthrie ruled, unexpectedly to Bennie, though he knew the bell couldn’t be unrung.

  “The circumstances of a murder can easily and, quite reliably, point to the killer. Officer Sean McShea and Officer Arthur Reston caught the defendant running from the scene of the crime, and she confessed and attempted to bribe them in order to avoid being brought to justice. Mrs. Lambertsen saw the defendant running from the scene, after she heard the defendant fighting with her lover and after she heard a gunshot. The fact that Mrs. Lambertsen may have been somewhat unsure as to which exact minute she saw the defendant run by is of no legal or factual significance.

  “You also learned from Dr. Liam Pettis that the blood spatter on the sweatshirt was consistent with the officers’ testimony, and Dr. Mark Merwicke told you, over defense counsel objection, that previous defense counsel had prevented the Commonwealth from testing the defendant’s hands for residue from firing a gun.”

  “Objection, Your Honor,” Bennie said, rising, and Judge Guthrie shook his head discreetly.

  “Overruled.”

  Hilliard held up a finger. “A word about the murder weapon. The gun. Judge Guthrie will charge you that you’re not to speculate in the jury room as to the facts of this case, and so I suggest to you that the fact that the murder weapon was not recovered is not the result of mysterious scheming of a cabal of police officers. The truth is simpler than that: we aren’t perfect. We’re not TV cops. We don’t always find the murder weapon. It happens more than we care to admit and certainly we wish it were not so.”

  “Objection, Your Honor,” Bennie said. “Again, assumes facts not in evidence.”

  Judge Guthrie shook his head. “Overruled. The Court can take judicial notice of the fact that murder weapons are not always recovered.”

  Hilliard glanced at the dais, then focused on the jury. “You will hear much, when defense counsel addresses you, of conspiracies and cabals. Of plots and schemes. Of drug deals, of crooked cops. It reminds me of Alice in Wonderland. Remember the walrus, scamming the oysters? “The time has come, the Walrus said, to talk of many things; of shoes and ships and sealing wax, of cabbages and kings.’ ”

  The jury smiled, and the librarian in the front row mouthed the passage with Hilliard.

  “The defense has to say something to respond to the wealth of state’s evidence, so they say what they think you’ll respond to, a buzzword. Conspiracy! Conspiracy? Are we talking UFOs and little green people? Are we talking grassy knolls and lone gunmen? Are we talking Washington bigwigs and sleazy payoffs?” Hilliard paused. “The defense underestimates you, my friends. I have every faith, and every prayer, that when you retire to the jury room to deliberate, you will see through the stories of cabbages and kings and find the defendant guilty as charged, of capital murder. Thank you.”

  Hilliard left the podium, and Bennie stood up, feeling the full onus of the risk she had taken in not presenting a defense. There was no buffer between her and the verdict; no testimony to point to, not even physical evidence. It wasn’t between her and Hilliard anymore, or her and Judge Guthrie, or even her and Connolly.

  It was between Bennie and the jurors. It was a relationship, a compact between them. It would happen now or it wouldn’t happen at all. She felt a shiver shoot up her spine and approached the jury.

  87

  To Lou, nothing was right about the scene. The sun shone too brightly. The afternoon was too pretty. The cop was too young, and he was killed trying to murder a citizen. The Eleventh was at the cemetery in force, a blue square of dress uniforms, but the inspector hadn’t made his typical c
ameo and neither had the mayor. Lou stood with the press about fifty yards away from the flag-draped casket; even the reporters looked second-string. Lenihan’s death wasn’t front-page news anymore, and Lou would have missed the obit if he hadn’t been looking for it.

  It made Lou feel sad, like he’d lived too long. He didn’t want to see a world where drug dealers did business in the open and cops murdered their own partners. His eyes hurt suddenly, it was so goddamn bright, and he looked at Lenihan’s mother and father, crying behind their son’s casket. Then he spotted Citrone standing behind Lenihan’s mother and his heart hardened. The cop was in full dress uniform and the badge on his hat caught the sun; he reminded Lou of a toy soldier, tin on the outside and hollow on the inside. Lou wondered if Citrone had gotten the call from Brunell yet.

  Standing beside Lou, a young reporter coughed, then lit a cigarette. The acrid cone of smoke disappeared into the fresh air. Lou scanned the rest of the uniforms and found Vega the Younger. He was hoping to see either McShea or Reston, but they were too smart to show up. Crap. He wanted to get them so bad he could taste it. Not for Rosato, not even for himself, but for reasons that had to do with the way things used to be, with Stan Getz behind “Quiet Nights of Quiet Stars” and bakeries that put cellophane hay on the cookies.

  The reporter beside him coughed again, louder this time, and Lou looked over. “You gotta quit smoking, kid,” he said. “Now they got the patch, they got gum. I had to do it with one of those plastic cigarettes, like a smacked ass.”

  “What do you know?” the reporter snapped.

  “What do I know?” Lou repeated slowly. He considered spanking the kid but then got a better idea. “Let’s see, I know that cop over there, his name is Joe Citrone.” Lou pointed, and the kid followed his fingers. “He’s filthy as the day is long. He’s buddy-buddy with two other cops, named Sean McShea and Art Reston—”

  Another reporter turned around at the names. “Did you say something about McShea and Reston? Those cops who testified in the Connolly case?”

  Lou nodded. “The very same. McShea and Reston aren’t from the Eleventh, but they and Citrone, that tall cop behind the family, they’re all in business together, running a drug business.”

  “Drug business?” asked another reporter, turning around, joining the group forming around Lou.

  “They take and sell the drugs from busts and protect dealers like Pace Brunell, down in the projects. Wait, it gets better. Citrone is responsible for the murder of his partner, named Bill Latorce, who was supposedly killed in the line of duty. One of you smartasses oughta be looking into why a domestic got an experienced cop dead, you ask me.”

  The reporters started interrupting, but Lou put up his hands. “My advice to you is to get on this story right away. It’ll be the story of the decade. Probably win a Pulitzer. Does anybody say ‘scoop’ anymore?”

  Then Lou turned to the kid next to him, whose cigarette hung by its paper from his open mouth. “Put that in your pipe and smoke it,” he said, and walked away.

  88

  Bennie stood in front of the jury and paused before she began her closing, to calm her nerves and gather her thoughts. Again, she decided to go with the truth. It was all she had.

  “Ladies and gentlemen, I made the highly unusual decision not to put on a defense case for Alice Connolly, because I do not think the Commonwealth proved its case of murder beyond a reasonable doubt. I do not share the prosecutor’s lofty regard for circumstantial evidence, especially in death penalty cases. The prosecutor soft-pedaled that fact in his closing, but I stand here to remind you: the Commonwealth ultimately seeks the death penalty in this case. Keep that in mind at all times. Let it inform your judgment. How sure do you have to be to send a human being to her death? Sure beyond any reasonable doubt.”

  Bennie paused to let it sink in, and the faces of the jurors were properly grave. “Yet the Commonwealth hasn’t provided you with anywhere near that quantum of proof. Nobody saw the crime being committed, and contrary to the prosecutor’s assertion in his closing, there are many murders that take place in front of witnesses. You can read in the newspaper every day accounts of drive-by—”

  “Objection, Your Honor,” Hilliard barked. “There is no record evidence of such shootings.”

  “Sustained,” Judge Guthrie ruled, but Bennie didn’t break stride.

  “There are no witnesses to this killing, at least the Commonwealth could not produce one, and there are many other facts that the Commonwealth didn’t prove, all of which add up to more than reasonable doubt. First, the Commonwealth didn’t produce the murder weapon. The prosecutor wants you to forget about the gun, but can you, fairly?” Bennie stepped closer to the jury rail. “Remember their theory of what happened that night. They posit that Alice Connolly shot the deceased, changed her clothes, and threw them in a Dumpster to get rid of the evidence. If that’s the truth, why wasn’t the gun in the Dumpster with the other evidence? Are you supposed to believe that Alice kept the gun with her? Why would she do that, when she had disposed of far less incriminating evidence? And if she did keep it, why wasn’t it found on her?”

  Bennie paused, hoping her words had an impact. “It doesn’t make sense because it isn’t the truth. The truth is that Alice Connolly never had the gun. The real killer had the gun and kept it because it would show his fingerprints, and not Alice Connolly’s. As you heard Dr. Liam Pettis testify, the gun could prove that Alice did not kill Anthony Della Porta—”

  “Objection, Your Honor,” Hilliard said. “Ms. Rosato misstates Dr. Pettis’s testimony.”

  “Sustained,” Judge Guthrie ruled, before Bennie could argue, but she had too much momentum to stop now.

  “Let’s consider the laundry list of other facts the Commonwealth didn’t prove. One, the Commonwealth didn’t prove motive. A fight? Every couple has rough patches. I myself haven’t spoken to my boyfriend in days, but I’m not killing him.” The jury smiled, and Bennie forced one, too. “Secondly, the Commonwealth didn’t prove how the blood spatter got on the sweatshirt. Third, the Commonwealth didn’t prove what time Alice ran by Mrs. Lambertsen’s door. Fourth, the Commonwealth didn’t prove it was Alice who ran by Mr. Munoz’s window. Who can forget Mr. Munoz?”

  The videographer laughed, as did the young black man in the back row. It was Mr. Speaker, the talkative one. Bennie smiled in spite of the tightening in her chest.

  “Unlike the prosecution, I don’t think conspiracy involves little green people. You know that there are many crimes that take more than one person to commit. Think of the Mafia. Think of the Oklahoma bombing. Those are criminal conspiracies, and you don’t have to believe in little green people to know that conspiracies are real.” Bennie made eye contact with the jurors, and an inquisitive tilt to the librarian’s chin encouraged her, so she went for the jugular. “Ladies and gentlemen, the defense believes there is a police conspiracy behind this murder which included Officers McShea and Reston, and that members of this conspiracy murdered Anthony Della Porta—”

  “Objection, Your Honor!” Hilliard shouted. “There’s no evidence in the record to support these allegations! The only evidence in the record is that Officers Reston and McShea were the arresting officers. Anything else is an unfair inference from the record and pure conjecture on the part of defense counsel!”

  Bennie pivoted angrily on her heel. “Your Honor, this is proper argument in a closing. The jury may draw reasonable inferences from the Commonwealth testimony, including what the defense elicited on cross-examination. If I can give the jury an alternative scenario—”

  “The objection is sustained.” Judge Guthrie’s mouth closed firmly, setting his jowls like a French bulldog. “Comment no further on the arresting officers, Ms. Rosato, and resume your argument.”

  Bennie was dumbfounded. “Your Honor, is it your ruling that I can’t present my theory of the way I believe this murder was committed? I’m not bound to the prosecution’s theory. That denies the defendant the right to
a fair trial.”

  Judge Guthrie frowned deeply. “You may present an alternative scenario, counsel, but there is no record evidence that any specific police officers were involved in Detective Della Porta’s death. You may not confuse or mislead the jury in closing argument. You can present your theory without mention of any purported role of the arresting officers. Please proceed.”

  Bennie swallowed her anger, thought on her feet, and faced the jury. “Consider this, then. Consider that someone — we don’t know who — comes to Detective Della Porta’s apartment about fifteen minutes before eight o’clock on the night of May nineteenth, fights with Detective Della Porta, and shoots him point-blank. The killer wants to frame Alice Connolly, so he runs to the closet, which he knows is in the bedroom, grabs one of Alice’s sweatshirts, and dips it in Detective Della Porta’s blood in a typical spatter pattern he has learned something about. Somewhere. Then he leaves, unseen, and plants the bloody sweatshirt in a nearby Dumpster, knowing it will incriminate Alice.”

  Bennie spoke urgently to the jury now. She had to make them understand. “Picture that Alice comes in and discovers Detective Della Porta lying dead on the floor. Terrified that the killer is still in the apartment, she panics and runs for her life. Remember, there are ten to twelve minutes between the sound of the gunshot and the time Mrs. Lambertsen sees Alice run by. That’s more than enough time, isn’t it?”

  The videographer inched forward on his seat, but the librarian hung back.

  “Think about what I’m saying, ladies and gentlemen. If you can understand how someone else could have killed Detective Della Porta and framed Alice for it, then you cannot, under the law or in good conscience, convict Alice Connolly. And I suggest to you that Alice is being framed — by a police conspiracy.”