Sly Fox: A Dani Fox Novel (45 page)

Pisani was leaning against the edge of the prosecutor’s table with a smirk on his face when I arrived in court Monday morning.

“I heard,” Pisani said as I approached him, “that you and Detective O’Brien made a little weekend jaunt.”

I assumed Antonio Hernandez had contacted him, too, from the prison. We’d gone up Saturday. Pisani had probably been there on Sunday.

“Nothing like a trip upstate to help clear your mind,” I said.

“Ms. Fox, I know all about your conversation with Antonio Hernandez and I can only hope you’re going to call him today as a witness. I can’t think of anything more pleasing at this moment than to cross-examine that piece of shit.”

Placing my briefcase on the table, I said, “If that’s the most pleasing thing that you can think of this morning, the clerk’s office must have run out of interns.”

“Please don’t concern yourself with what pleases me. Of course, it would be easy to please you. But then, you’re too naive for my tastes and a bit of a bore. Like this trial’s become a bore. Despite all your bravado, you’ve not built a credible circumstantial case and deep down you know it. You’re going to lose this case.”

I realized that I shouldn’t respond, but I couldn’t help myself. “Maybe I can liven up things today. As you just suggested, I am planning on calling a witness who’s not on my original list.”

Pisani gave me a sickening smile and said, “Oh goody, you’re going to bring Antonio Hernandez in as a surprise witness. I can’t wait.”

As soon as Judge Morano called court into session, he asked if I had any more witnesses.

“Your Honor, the prosecution wishes to call a witness who was not on our original list.”

“And why wasn’t this witness on your list?” the judge asked.

“Because until this weekend, I wasn’t aware that he could provide important testimony in this matter.”

I could practically see Pisani salivating.

Judge Morano asked Pisani, “Have you been informed that the prosecution intends to call a new witness?”

“Ms. Fox and I just spoke a few moments ago. If she wishes to call this witness, I will not object. In fact, I will be delighted!”

“Then call your witness, Miss Fox.”

In a loud voice, I said, “The state calls FBI Special Agent Jack Longhorn.”

Pisani’s smug expression vanished. “Your Honor,” he said, leaping to his feet, “this is not the witness Ms. Fox and I were discussing.”

“You just told me that the two of you had talked about this,” Judge Morano said, waving us forward for a sidebar conference. “Which one of you wants to tell me what’s going on here?” he asked.

“The witness we discussed this morning is a prisoner at Attica prison,” Pisani said.

“With all due respect to Mr. Pisani, I never said I was going to call that prisoner. Before court started, Mr. Pisani told me that he hoped I’d call him. He mentioned his name. I simply said I was going to call a witness who was not on the original list. I didn’t say who.”

In a weary voice, Judge Morano said, “I don’t know what sort of semantic games you two are playing and quite frankly I don’t care. Miss Fox, are you planning on calling a prisoner from Attica, because it will take time to get him here.”

“Not at this time, Your Honor. FBI Agent Longhorn, who is seated in the back of the courtroom gallery, will suffice.”

“You have any objections to Agent Longhorn testifying?” the judge asked Pisani.

Being cautious, Pisani said, “Quite frankly, I do. The FBI did not investigate this case so I don’t see how having Agent Longhorn testify is relevant. Also, the FBI currently has criminal charges pending against my client. I suspect this is an attempt by Ms. Fox to prejudice my client’s reputation by having Agent Longhorn testify.”

“Miss Fox,” the judge said, “are you trying to get information about those pending drug charges in through a back door?”

“No, Your Honor, the state wishes to call this witness because he has important testimony about this murder—not because of the federal charges.”

“What the hell does he know about this murder?” Pisani said.

“Well, if I can get him on the witness stand, then we’ll know, won’t we?”

“Okay, Miss Fox,” Judge Morano ruled, “you can call him, but you’ll need to tie all this together in a nice bow for me rather quickly, and don’t make me regret this by trying to get those federal charges into the record.”

As Pisani and I were returning to our respective tables, I said, “You wanted some excitement, here it comes.”

He didn’t reply.

Agent Longhorn did not look pleased while he was being sworn in. I began by asking him a quick series of questions that established who he was and his credentials as a federal agent. Then I got to the point.

“Agent Longhorn, do you know the defendant?”

“Yes.”

“Have you ever heard the defendant talking about the death of his wife, Benita Gonzales?”

Longhorn looked directly at me and said, “I have never had a conversation with the defendant about his wife’s death.”

“That was not the question. I asked you if you’d ever heard the defendant talking about his wife’s death.”

Still trying to outmaneuver me, Longhorn reluctantly replied, “He may have talked about her death, but I was not present.”

Pisani was on his feet. “Your Honor, Agent Longhorn is correct. If he did not personally have a conversation with my client, then anything that he might say is hearsay and not admissible.”

Longhorn looked at me with a satisfied smile.

Judge Morano said, “Miss Fox, you know better than this. You can’t ask Agent Longhorn to give hearsay testimony.”

“I don’t intend to, Your Honor. With the court’s indulgence, I only have a few more questions for the witness and they will not pertain to hearsay.”

Judge Morano let out a scowl and said, “A bow, Miss Fox. Tie it quickly, please.”

“Special Agent Longhorn, do you have in your possession tape recordings of the defendant discussing the death of his wife?”

The boom microphone recordings. That is why I believed our trip to Attica had been worthwhile. Hernandez said that Gonzales had bragged about killing Benita during their last conversation before the FBI had arrested them. As soon as he’d said that, I’d known their conversation would be on tape recorded by the FBI with the boom microphone. I didn’t need Hernandez to testify. If those tapes still existed, I had the killer himself being overheard discussing his wife’s death on tape.

Longhorn twisted in the witness chair and said, “With all due respect, the tapes that you are citing are the property of the FBI and are covered by Rule 6 and federal grand jury secrecy. I can’t discuss their contents.”

I had no intention of letting him wiggle free.

“Your Honor, the state contends that Agent Longhorn has in his possession certain investigative materials that are relevant to this case. I would now ask that the court order Agent Longhorn to surrender either the original or certified copies of any materials that apply directly to this trial.”

“We’re going to take a short recess,” Judge Morano said. “I want both counsel and Agent Longhorn to come into my chambers.”

Judge Morano’s office didn’t look any cleaner since the last time that I’d entered it and he’d blown cigar smoke in my face. Removing his robe and hanging it on a hook, he said in an irked voice, “Exactly what is going on here, Miss Fox?”

“Your Honor, I believe the FBI used a boom microphone to listen to and tape-record a conversation that was held between the defendant and two NYPD officers who are now serving time in prison on corruption charges.”

“What the hell is a boom microphone?” the judge asked.

“It’s a directional microphone that can listen to conversations from a long distance away without suspects knowing that they are being observed and recorded,” I said.

“And what makes you think the FBI tape-recorded the defendant in this matter?” the judge asked me.

“Both of the NYPD officers pleaded guilty after their attorneys were advised of the contents of the FBI tape recordings. I have been told that the FBI allowed these men’s defense attorneys to listen to the tapes so they could fully advise their clients. Obviously, if the tapes already have been used in other criminal matters, then they do exist.”

“Assuming these tapes exist,” Judge Morano said, “exactly what do you expect to hear on them?”

“I have been told that Carlos Gonzales bragged about killing his wife while the FBI was secretly tape-recording him and the two officers. I believe it is within the prosecution’s rights to have the portion of the tape-recorded conversations that are relevant to this case submitted in court and played to the jurors as evidence.”

Judge Morano said, “Are you telling me the FBI has tape recordings of this defendant discussing a murder that he committed and the bureau did not surrender them to you as a prosecutor?”

“That’s exactly what I’m telling you, Judge.”

Judge Morano gave FBI Special Agent Longhorn a puzzled and angry look. “I’ve heard of prosecutors hiding statements from the defense, but never heard of the FBI hiding damning information from a prosecutor. Is what she’s saying true, Agent Longhorn? Do you have information about this alleged murder that you are intentionally withholding?”

“Judge,” Longhorn said, “as you noted, the law is clear that the state must provide evidence to the defense that might help prove his innocence. That’s exculpatory evidence. But I do not believe there are any statutes that require the FBI to provide evidence, especially information protected by Rule 6(e) of the Federal Rules of Evidence, to a local prosecutor to help prove their case. That’s not exculpatory; in fact, that’s inculpatory.”

I noticed that Agent Longhorn had dropped his habit of using folksy homilies.

“Special Agent Longhorn,” the judge said, “that’s one of the worst excuses I’ve ever heard. If you have evidence that can help the prosecution, then why in the hell haven’t you given it to Miss Fox? For godsakes, you’re supposed to be on the same team.”

“I’m not required by law to assist her,” he said.

“Like hell you’re not!” the judge snapped.

“Judge, these tapes are the property of the U.S. government,” Agent Longhorn replied. “They involve sensitive investigative information and confidential informants. I would have to consult with the U.S. Attorney and the Justice Department and I am sure that they will oppose releasing this material.”

If Judge Morano was irritated before, he was now fuming. “Miss Fox just said the FBI had turned over portions of those tape recordings to defense attorneys in another case. I’m going to issue a court order, demanding that you surrender those tapes to me by this afternoon so that I can listen to them, in the presence of a representative from your office and the U.S. Attorney’s office. If I hear anything on those tapes that I believe is relevant to this trial, I will require those portions to be provided to Miss Fox and allow them to be submitted as evidence. If the tapes do not contain anything relevant, Miss Fox and I will have an unpleasant chat later.”

“I’m sorry, Judge,” Longhorn said, “but I’m not sure I can go along with your request.”

Judge Morano rocked back in his seat and said, “Agent Longhorn, I don’t seem to be making myself clear to you. This is not a request. You will either get those tapes to me by three p.m. today or you will be held in contempt of my court and jailed. Of course, you can attempt to get a higher court or a federal court to intervene and stay my order, but I’ve been on the bench a long time, son, and I know a lot of federal judges. If find out that you’re intentionally withholding information that can aid the prosecution in a murder trial—you’re going to run into legal skepticism and some extremely unfavorable publicity. You have until three p.m.”

Agent Longhorn looked to Pisani for help, but for once in his life, Mr. Invincible was at a total loss for words.

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