Leader of the Pack (Andy Carpenter) (22 page)

Based on all this, if I were a fair-minded, impartial individual, which I thankfully am not, I would probably not let the evidence in. I think the probative value is limited, and the chance of prejudice of the jury is great.

But there are two factors working in our favor, and one leads into the other. First, judges have substantial discretion over matters like this, and appeals courts are very respectful of that discretion. It is only when “abuse of discretion” is found that appeals courts will intervene, and that is very unlikely to happen here.

The other factor helping us is that judges like to bend over backward to help the defense in evidentiary matters, and this time that will be even more true than usual.

Once Hatchet granted us a new trial based on Dylan’s withholding the threat information from the Montana police, it would seem unlikely that he would then prevent the jury from hearing about it. And if the Montana information comes in, then the rest should follow.

The issue is far more important to us than to Dylan. Dylan probably thinks he can survive it, but it pretty much represents our entire case. We need to muddy the water, and this is the only mud at our disposal.

So with the jury tucked safely away in the jury room, Hatchet convenes the hearing to discuss the potential admission of the evidence. Dylan is about to wrap up his case, and we will then immediately start presenting ours. If Hatchet turns us down on this evidence, it will be a short presentation.

Hike has filed a persuasive brief, and Dylan has responded in kind. Hatchet has had a week to familiarize himself with them, so he’s up to date on the facts. This hearing is to present oral arguments, though it’s certainly possible that Hatchet has already made his decision.

“Your Honor, for six long years, while my client sat in a prison cell, the state failed to follow a crucial track in their investigation. They were aware of this obvious line of inquiry, as has been made clear. But whether or not they were aware of it, the relevance of that evidence is obvious. We need to be allowed to pursue it and the jury needs to be allowed to see it.”

Dylan stands to respond. “It is a fishing expedition, Your Honor. That line of inquiry has now been investigated, and proven fruitless. There is absolutely no evidence that Richard Solarno was the target of the killers, or that those he did business with did him any harm.”

“Your Honor,” I respond, “Mr. Campbell has used as a lynchpin of his case that my client had issued a comparatively veiled threat aimed at Mr. and Mrs. Solarno. We dispute that he did, but if Mr. Campbell felt that went to motive and supported his case, then a threat from someone else is equally relevant. If other people, people with guns, had a motive to kill Richard Solarno, then it is obviously something the jury should hear about in detail.”

“Many people have enemies,” Dylan says. “Murder victims have them as well. But for threats to become admissible, there needs to be independent, corroborative evidence that the threats were acted upon. That evidence exists in the case of Mr. Desimone; it does not exist elsewhere.”

“The state did not look elsewhere,” I say. “Just because they made no effort to find it does not mean it doesn’t exist.”

Hatchet obviously feels this subject has been beaten to death, because he says, “What about the organized crime connections that Mr. Solarno had?”

“That has almost no probative value,” Dylan says, “and would be extremely prejudicial. Mere association with criminals, if true, is completely insufficient in the absence of other evidence.”

I shake my head. “Mr. Campbell has turned mentioning my client’s family into a cottage industry, as if an accident of birth made it more likely that he was guilty. Clearly, having done illegal business with these people, as we will demonstrate Mr. Solarno did, is far more significant.”

We go back and forth for a while, and I have the feeling that Hatchet is tuning us out. I’m nervous about this; if he rules against us we’re going to have a very short defense case to present.

“I’m inclined to allow the evidence,” Hatchet says. “With the caveat that if it goes too far afield, I’ll stop it immediately.” He turns to me. “It will be your responsibility to make sure that doesn’t happen.”

I take a quick look at an annoyed Dylan before I say, “I’m on the case, Your Honor.”

I am unsuccessfully trying to discipline myself. I’ve been spending a great deal of time focused on the Desimone crime family in general, and Simon Ryerson in particular. The problem with that, although I think something major is going down with that group, is I have absolutely no concrete evidence that it has anything to do with the Solarno murders and Joey Desimone’s trial.

I certainly have circumstantial evidence of it, at least in my own mind. My reopening the case has provoked major repercussions; Edward Young and I became murder targets, Nicky Fats and probably Carmine became murder victims, and Sam was kidnapped.

But in the eyes of the legal system that information has no chance to be admissible in this trial. I have as much chance of telling our jury about Simon Ryerson as I have of telling them about UFOs.

I am a lawyer defending a client; I am not Columbo. It might be challenging to find out what Ryerson is up to, and certainly rewarding to somehow thwart it, but it’s not my job. Unless I have some reason to believe that following that trail could impact this trial, it’s simply not something I should be spending my time on.

Unfortunately, discipline has never been my strong suit. My instincts tell me that if people are going to such great lengths to stop me, I should go to even greater lengths to persevere. I would describe that as admirable, yet strangely most people consider it annoying and obnoxious.

Among those who’ve used those words to describe me is Cindy Spodek, with an occasional “irritating” and “maddening” sprinkled in. When I call at her FBI office in Boston, it takes almost ten minutes for her to come to the phone.

When she finally picks up, I say, “I’ve been on hold for ten minutes.”

“And?”

“What if I had an imminent terrorist attack to report?”

“Do you?”

“No.”

“Whew,” she says. “We dodged that bullet.” Then, “What do you need, Andy?”

“This time I’m calling to help you.”

“I’m sure.”

“No, really. I’ve got some information that I believe is important, and I want to share it.”

“So share.”

“I want to meet with a local agent. Your top local agent, tomorrow after court. Seriously, Cindy, it’s important, and I believe it’s time sensitive.”

I do have an advantage here. Cindy trusts me, and knows that I would not be wasting her time. “Tell me what it’s about. I’ll need something to get someone down there to see you. You may not believe this, but I’m not in charge of every agent’s schedule.”

I don’t want to tell her too much, because although she’s a friend, I’m going to want to trade, which means I need to keep stuff to trade with. “It’s about Simon Ryerson and Carmine Desimone.”

“Who’s Simon Ryerson?”

“I’ll hold that for the meeting.”

She sighs, loudly for effect, letting me know I’m not playing the game. “And what about Carmine Desimone?”

“There is no Carmine Desimone.”

“That’s a little cryptic for me.”

“I’ll make it clearer at the meeting.”

She pauses a moment to absorb this. Then, “Stay by the phone.”

Twenty minutes later, the meeting is set.

Lieutenant Chris McKenney didn’t want to go over his testimony in advance. He said that they didn’t do it that way in Montana, that he would just get up and tell the truth. “I don’t really need to practice telling the truth,” he said.

I had explained that it wasn’t so much to practice the truth, as much as it was to make sure the testimony went smoothly, with no surprises.

“I won’t be surprised,” he promised, before telling me that he didn’t want to come in for that long; his duties in Montana were too pressing.

I’m a little concerned about his approach, especially since as a police officer he is rarely called on to testify for the defense. He might not be thrilled to be in that position.

“Lieutenant, how did you come to hear the name Richard Solarno?” is my first question once he’s sworn in as a witness.

He takes the ball and runs with it, and it’s all I can do to keep up. He speaks accurately and concisely, describing the arrest of the militia group in Montana, the investigation that led to the discovery that Solarno was providing arms to them, and their threats when they thought he cheated them.

“These threats concerned you?” I ask.

“Well, sure. They weren’t getting the guns to hunt possum; these were dangerous people. If they say they are going to kill a person, it has to be taken seriously.”

“So you took action to protect Mr. Solarno?”

“I was about to, when I found out he had been murdered, and someone else was arrested. Although I had no evidence that anyone from Montana had done it, I certainly had a duty to report it to the investigators.”

He goes on to explain that he wrote a letter to Dylan, and followed it up with a phone call. He reads the letter, as well as his notes from the call. There could be no doubt that he is telling the truth.

“Do you know if your report was ever followed up on?” I ask, even though the jury already knows it wasn’t.

“I don’t know,” he says. “I know I was never contacted again about it.”

I turn him over to Dylan, who asks, “Lieutenant, did you have any information then, or do you have any information now, which would lead you to believe that someone from the militia group in Montana ever did anything to cause Mr. Solarno any harm?”

“No, sir.”

It’s the only question Dylan asks, and it’s a damn good one.

I get up for redirect and ask one question of my own. “Lieutenant, you said you didn’t find any evidence that anyone from Montana murdered Richard Solarno. Did you look for any?”

“No, sir. I figured that was being done on this end.”

Nice job, lieutenant, you definitely didn’t need to practice.

Different lawyers have different styles in presenting their cases. Most prosecutors like to build them brick by brick, starting at the beginning. They often tell the story chronologically, as it transpired in real life, and in the subsequent investigation.

Defense attorneys can have differing approaches. Sometimes they attack the prosecutor’s case in the same order it was presented, or sometimes they might go after the lesser evidence first, and the bigger stuff last. Or vice versa.

I have no set way that I do it; I go by instinct, and often it depends on the way I feel the jury reacted to the prosecution’s evidence. In that sense for me it’s more art than science, though in real life I usually pick science over art ninety-nine times out of a hundred. The only exception is when I’m pretending to be touched by art so that Laurie will think I’m sensitive.

In this case I’ve decided to take a scattershot approach, to bounce around from place to place, exposing holes in the prosecution’s case wherever I can find them. So my next witness is completely different from my first. I call Father Thomas Manning of the St. Johns Episcopal Church in Elizabeth.

First I take Father Manning through the story of his life. He has pretty much spent all of his sixty-two years serving his religion and his community, and for the last eleven years has run a community outreach program for troubled teenagers.

If that résumé doesn’t make him likable and believable to the jury, he also has a completely charming way about him. He employs self-deprecating humor, and clearly doesn’t take himself too seriously.

“How long have you known Joey Desimone?” I ask.

“Nine years.”

“How did you meet each other?’

He proceeds to describe how Joey came in one day and volunteered to help out with the kids in the program. It was at a time that the program was understaffed and underfunded, so his help was welcome.

“What did he do there?”

“Anything we asked. Washed dishes, played ball with the kids, taught them to read, you name it. There was nothing he wouldn’t do to help, but mostly he was a mentor to the kids.”

“Did the kids know who his family was?” I ask.

“Yes. And Joey would help them understand what was right, and what was wrong. I never heard him say anything bad about his family, but he showed the kids there was another way. And that the other way was better.”

“Did he donate money as well?’

Father Manning nods. “Ten thousand dollars every New Year’s Day. Still does it to this day. It keeps us going.”

“How did you react when Joey was arrested for these two murders?”

“Well, I was shocked, of course. And I felt for the victims, and I prayed for them. And I also felt for Joey, and prayed for him as well. But…”

He stops, as if not sure whether he should finish the thought. Since I know what the thought is that he might not finish, I press him on it. “What were you going to say?”

“But I guess most of all I felt outraged, that this could happen to an innocent man.”

“So you don’t believe Joey to be guilty of this crime?”

“No, sir. I would trust Joey Desimone with my life, and the lives of my family.”

Dylan stands to question Father Manning, a task I don’t envy. This is not the guy you want to attack in front of a jury.

“Father Manning, first of all, I think I speak for everyone when I thank you for your service to the community,” Dylan says, an obvious attempt to make me nauseous.

“You’re welcome.”

“Father, do you know the details of the murders, and the investigation that the police conducted?”

“No, I don’t. Well, just what I read in the papers.”

“So you’re not aware of the evidence that has been presented so far during this trial?”

“No, sir.”

“Do you know where Mr. Desimone was at the time of the murders?”

“I do not.”

“You weren’t with him?”

“I was not.”

“Father Manning, during the time that the defendant was helping you with your program, were you aware that he was having an affair with Karen Solarno?”