Jury of One (36 page)

The good news for Shelly, and the problem for Morphew, was that most people, if asked, would answer that they could keep an open mind. How many people would admit that they were so inflexible that they would take accusations of the U.S. Attorney as true without carefully considering the evidence in this case? Nobody would admit that, to a judge or to themselves. What was undeniable, however, was that this information influenced
them. Shelly had instant credibility now accusing a cop of selling drugs and intimidating someone like Alex. Dan Morphew couldn’t just roll his eyes at the jury and say that’s-what-they-all-say. Not after a federal sting that netted six dirty cops.

Judge Dominici finished questioning the first panel of thirty citizens by three o’clock. Shelly had been putting the panel members into her three categories, and she had found thirteen of them acceptable and three others neutral. Sixteen were okay with her. Four jurors had been excused by the judge on the spot. That left ten she did not want. Those ten she would challenge for cause, which meant she would have to make an argument to the judge for why they were unacceptable. If the judge disagreed, she had the option of exercising one of her peremptory challenges. You had to use those sparingly, because they were not unlimited.

She exchanged her list with Dan Morphew during a ten-minute recess. Morphew found eleven citizens to be acceptable, and Shelly quickly looked for overlap with her list. Eight, by her count. Yes. Eight of them had been found acceptable by both sides. That number was high, in her experience, and she was sure that this overlap hit Dan Morphew the same way it landed in the pit of her stomach—what were they missing, if the other side liked the person, too?

After all of their arguments to the judge for dismissal for cause, nearly all of which were rejected by the judge, the parties exercised their peremptory challenges. Morphew used them on four candidates, all of whom were minorities. Shelly objected and requested a
Batson
hearing, which meant that Morphew had to articulate a nondiscriminatory reason for rejecting these people. It was a game that had become standard since the Supreme Court outlawed race-based exclusions. If nothing else, Shelly was preserving her record here. If she lost this case, she wanted to have this issue for appeal.

The judge found Morphew’s reasons acceptable. By the time it was all said and done, the entire jury was chosen from the first set of thirty people. Morphew raised his eyebrows at Shelly. They both knew that this was unusual, but they each had to trust their instincts.

In the end, the jury consisted of seven whites—four women,
three men—and five African Americans—four men and one woman. The two alternates were Asian and Native American men.

“Opening statements tomorrow,” said the judge. “Mr. Morphew, you expect to take about three days?”

“That’s correct, Judge.”

“Your Honor,” said Shelly, “the defense would like to defer its opening.”

Morphew looked at her. He had been curious, no doubt, about recent developments. She had pleaded self-defense from day one. Seasoned prosecutor that he was, that didn’t stop him from preparing to prove his case. Regardless of any affirmative defense the defendant pleaded, the prosecution still had to prove guilt beyond a reasonable doubt, and
then
disprove any affirmative defense beyond a reasonable doubt as well. So he might have expected this move by Shelly: stay quiet and make sure the prosecution could prove its case before arguing self-defense to the jury.

Shelly had been disappointed that Dan Morphew had not tried to re-engage her in plea discussions after she had dropped the bombshell about Alex’s involvement with the F.B.I. in its undercover sting. In her estimate, Morphew’s case had been substantially weakened with this disclosure—why hadn’t
he
thought so? Maybe he was worried. Maybe he was following the lawyer’s creed of not bidding against oneself—it was truly Shelly’s turn to come forward with a counteroffer. She wouldn’t do that, because she didn’t want to settle this case. She just wanted to hear Morphew ask again.

“The defense will defer its opening, okay,” said Judge Dominici. He wrote something down. “Ms. Trotter? What is the longest your defense case might take?” The question was asked with the understanding that there might be no defense, and that the defense could stop at any time. Or, she thought fleetingly, the judge could throw out the charges after the prosecution’s case.

“The longest is seven days,” she said. This was a high estimate. Shelly planned on calling every one of the sixteen people implicated in the drug sting. She would ask them several suggestive questions each. They would refuse to answer, invoking the Fifth Amendment. It would be like sixteen mini-closing arguments,
because these witnesses wouldn’t fight her. She could ask the most self-serving question imaginable and they wouldn’t answer at all.
Did you work with Raymond Miroballi to protect drug dealers on the street? I decline to answer. Did Ray Miroballi tell you that he had discovered that Alex Baniewicz was working for the feds and needed to be eliminated? I decline to answer.

Her job was to find some questions they
could
answer, something relevant that would give her an excuse to haul them into court. The jury would hear sixteen different witnesses taking five; they would have trouble
not
lumping Ray Miroballi in with them.

The twelve jurors and two alternates walked back in the room, one by one, and took seats in the jury box.

“Now for the bad news,” the judge told them. Some of them laughed. Some of them groaned. They had already figured, when they were singled out to return to the courtroom, that they had been selected. They would go home tonight and tell their families that they were jurors on the cop-killing case that made the headlines a few months back. Their family members would make comments about the case, offer their opinions. Each of the jurors would make arrangements at work to let people know they were out of service for a week or two. Some would be in a hurry for the proceedings to end. Some would embrace their civic duty and take their roles seriously. They would bring a lifetime of world experiences into their job. They would try to be impartial, try to remember and weigh all of the evidence.

Tomorrow, they would begin to sit in judgment of Alex Baniewicz.

S
HELLY TAPPED HER
feet nervously before the jury entered. She had worked over the prosecution’s witnesses last night, with Paul Riley playing the witnesses and being an incredible pain in the ass about it. Which was exactly what she had needed.

Alex had been escorted into the courtroom at eight-thirty. He was in a gray suit—the one he already owned—and a white shirt and yellow tie. He looked right. Nothing flashy, and not the prison garb that implies guilt in the minds of the jurors. Subdued attire, highlighting Alex’s good looks. He looked like a nice young man, which he was.

Dan Morphew didn’t enter the courtroom until ten minutes to nine. His eyes were puffy and red but intense. He was in trial mode, like Shelly. Shelly hadn’t slept particularly well either, and hadn’t expected to, but she tried to lie still and close her eyes to at least get some rest. She was wearing a blue suit and cotton blouse, her hair pulled back into a clip.

The courtroom was full. There was only one color that filled the first three rows of the gallery. There were about forty uniformed police officers in their dress blue for the first day of trial. Reporters were present and camera crews awaited the proceedings outside the courtroom and in the lobby of the courthouse. The first day was always the biggest for the spectators and the media. Opening arguments were often the most dramatic moments of a trial, before settling into the tedium of witness
questioning and admission of evidence, to say nothing of recesses and out-of-court arguments to the judge.

Shelly found herself searching through the rows, looking for someone. She made eye contact with a woman. She was somewhere in her late thirties. She was next to an older woman—her mother, it looked like. Their arms seemed interconnected such that, though it was out of her line of vision, she assumed they were holding hands. The woman was not classically pretty but there was a certain dignity about her, an inner peace that made her flat dark eyes come to life. Her brothers-in-law had been named as potential witnesses, so they would not be here. She had not brought her three children either, for obvious reasons. Sophia Miroballi did not direct hatred toward Shelly. It was more like resolve. She was here to see that justice was done for her husband.

And Shelly, with any luck, was going to rip her departed husband to shreds in front of her.

The Honorable Pietro Dominici entered the courtroom and called for the jury. They entered from an anteroom and took their seats. They seemed impressed with the full house, the rows of police officers showing their loyalty. Shelly smiled at the jurors, a subdued smile, nothing bright or whimsical. She would be pleasant but serious. Story of her life.

The judge instructed the jury that the opening statements were not evidence themselves but only predictions of what the lawyers expected to show. That was true, technically, but many lawyers believed that you won or lost a case in your opening statement. It was the jury’s first impression of your arguments. If you didn’t believe what you were saying with all your heart, then neither would the jury. If it didn’t make sense, even when presented in its best light by the advocate, then it wasn’t going to wash.

Shelly braced herself for the opening. She was accustomed to civil practice, where depositions and interviews were more plentiful, where a trial lawyer could predict virtually everything that would happen at trial. In the criminal setting, Shelly was divining the prosecution’s theory from its responses to written questions, from the brief conversations she had with witnesses, and from the evidence that the prosecution intended to submit.
A more blunt way to say it was, Shelly was guessing. An educated guess, yes, but still nothing but an estimate. She had to expect that Dan Morphew would say things in the opening that would surprise her. This was why they called it “courtroom theater.”

“Mr. Morphew,” said the judge.

“Thank you, your Honor. May it please the Court? Ms. Trotter.” Dan Morphew was on his feet, nodding in Shelly’s direction. He carried a notepad with him, though he seemed to have notes written only on the first page. He did not use a podium as he stood before the jury, holding the pad of paper at his side. He might not score huge points for presentation, but he apparently didn’t care. Most prosecutors didn’t. They had the facts, truth, and justice on their side, and no one mistook them for the high-priced, expensively dressed trial lawyers that occasionally made their way into the courts for a client who could pay. No flash, all substance, would work just fine for a guy like Morphew.

He placed an enlarged photograph of Raymond Miroballi in full police dress on a tripod. The photo was from several years earlier, showing Miroballi with a proud expression, his thinning dark hair neatly combed, his mouth settled in contentment.

Morphew walked over to a large tape recorder and hit a button. A voice boomed out, the distressed voice of Officer Julio Sanchez filling the suddenly quieted room.

“Dispatch, we have an officer down. Officer down. Officer—we have an—oh, God, Ray.”

The jurors recoiled, some closing their eyes, others looking away, wincing as they listened to a police officer calling for assistance for his slain partner. It was the tape from Sanchez to dispatch, which had been premarked and approved as evidence in this case. Shelly couldn’t prevent Morphew from using it, even in his opening statement.

Morphew killed the recorder and stood before the jurors. He opened his hand to the photograph. “‘Officer down,’” he said. “Words that bring a chill to every police officer. Words that bring a chill to every member of every police officer’s
family.
” He opened a hand to the enlarged photo. “You’re looking at Officer Raymond Miroballi, a husband, a father of three, who lost
his life on the evening of February eleventh of this year. What you just heard was his partner, running to him in a vain attempt to save him. He had no chance of saving him, ladies and gentlemen. Because Officer Miroballi, an officer who was trying to keep the streets safe from drugs and gangs, had been shot in the face by this defendant.”

Morphew opened up toward Alex with these last words. There was another adverse reaction from the jury, pained expressions, looks of disgust. Most people didn’t see violence like this up close. It was hard to imagine anyone being immune to the image of a bullet in the nose.

“Police Officer Raymond Miroballi grew up on the south side and lived there his whole life. He married his high school sweetheart when he graduated, and a few years later, he became a cop. He worked on the street. He worked in neighborhoods where cops aren’t so popular. On February eleventh of this year, he was killed in the line of duty. He was shot in the face by a drug dealer. That drug dealer is sitting right there.” He pointed at Alex. “We are bringing charges of first-degree and felony murder against that man, Alex Baniewicz.”

The defense table was on the left side of the courtroom, and Shelly had positioned herself to Alex’s left so that she could look at him as well as the jury. She looked at the jury but kept her eye on her client as well. Alex watched the prosecutor, then the jurors as if he had nothing to hide, and shook his head mildly.

She hadn’t told him to shake his head, only to look the jurors in the eye without being threatening or defiant. He had to show them that he was without guilt, not without sympathy.

“At close to eight o’clock on the evening of February eleventh, Officers Raymond Miroballi and his partner, Julio Sanchez, were patrolling the city. The west side of the commercial district, near the train station. Specifically, Bonnard Street. They spotted the defendant, holding a gym bag and stuffing drugs into his pocket. So they stopped. Officer Miroballi got out to approach the defendant. And when Officer Miroballi left his vehicle, the defendant ran. He ran on foot, heading south, and turned down an alley.”