"Devin Wallace did not die, even though he was shot twice in the back. But the defendant fired a full six shots, and one of those four bullets that missed Mr. Wallace went into the head of a college student named Seth Lipton, killing him instantly. That is the murder in this case.
"The People do not believe that the defendant set out to kill Seth Lipton that night. There is no evidence that the defendant had ever seen Seth Lipton before. We believe that Seth Lipton was simply in the wrong place at the wrong time. The reason that Seth Lipton was there, as strange as this might seem, was for his studies. Now, perhaps the defense will try to put a more sinister spin on it, but the fact is that Seth Lipton was studying sociology in school, and he was doing his senior honors thesis on life at the Glenwood Gardens housing projects.
"Devin Wallace, on the other hand, was the intended victim, hunted down and shot because of a debt. You will hear testimony from Devin's sister, Latrice Wallace. Latrice Wallace lives with her brother. She will tell you that a few hours before the shooting, the defendant came knocking on their door. She will tell you that the defendant was looking for her brother, that he was looking for his money, and that when she said her brother wasn't home and hadn't left any money, the defendant made a threat.
"Now, as I said, Mr. Wallace was shot in the back, so he did not see who shot him and Mr. Lipton. But there was a witness, a woman named Yolanda Miller.
"Ms. Miller, who also lives in Glenwood Gardens, was on her way to a deli to get some milk for her child. She had just stepped out of her building and had spotted Mr. Wallace, who she was dating. Ms. Miller will testify she was starting to approach Mr. Wallace and the deceased, Mr. Lipton, when the shooting started. She will testify that she saw the defendant run right by her with a gun in his hand, and that she was able to identify him by his street name, which is Strawberry, because she had seen him on several occasions prior to the shooting.
"The evidence will show, beyond a reasonable doubt, that the defendant shot and killed Seth Lipton, and shot and attempted to kill Devin Wallace. We will ask you to find him guilty on all counts. Thank you."
O'Bannon had given his entire opening while standing in front of the small podium placed a few feet in front of the jury box, occasionally glancing at notes. Myra had written out her entire opening, which she had then gone over with me before boiling it down into a page's worth of bulleted trigger phrases. Myra stood at the podium for a moment, looking from face to face, making sure she had fully gathered the jury's collective attention to her.
"I'd just like to clear a few things up," she began. "To begin with, nobody knows who the intended victim of this crime was. Two people were shot. One was killed, but the police and the prosecutor assumed that the actual murder victim just happened to be in the wrong place at the wrong time. We're going to present some evidence suggesting that Mr. Lipton's death might not have just been a matter of bad luck. That perhaps it wasn't just bad timing, but that something else was going on.
"It's true that Lorenzo Tate came looking for Devin Wallace that night, but that in no way makes Lorenzo Tate a murderer. Lorenzo Tate was friends with Devin Wallace. Lorenzo Tate often spent time at Mr. Wallace's apartment. That Mr. Tate had stopped by looking for Mr. Wallace earlier that night is simply not evidence that he had anything to do with the shooting.
"The prosecution talked about a motive in this, that motive being that Devin Wallace owed Lorenzo Tate money. But dead men don't pay debts. And as you will learn, Mr. Wallace was almost certainly in the midst of getting a significant amount of money at the very time he was shot.
"The assistant district attorney also told you they had an eyewitness, Yolanda Miller, who claims that she saw Lorenzo Tate do the shooting in this case. He told you that Ms. Miller was dating Devin Wallace at the time of the shooting. But there're a few things the DA didn't mention about that eyewitness. He didn't mention that she'd had a child with another man, Malik Taylor, not long before starting her relationship with Mr. Wallace. He didn't mention that this other man, Malik Taylor, had fought—physically fought—with Mr. Wallace just a couple of weeks before the shooting took place. He didn't mention that, despite the fact that Ms. Miller claimed to recognize my client, Lorenzo Tate, because she knew him from around the neighborhood, Ms. Miller failed to identify Mr. Tate when shown a photo array the day after the shooting. He didn't mention that Ms. Miller has herself been arrested for drugs since the night of the murder.
"The prosecution also told you that the victim who was killed, Seth Lipton, was just an innocent bystander, a college student. But like just about everything he said, the truth is a little more complicated than what he told you. Seth Lipton was a college student, and he was studying drug dealing at the Gardens as his senior thesis in sociology, but that wasn't all he did down there. The truth is that Seth Lipton was in business with Devin Wallace. You will hear testimony regarding the fact that Seth Lipton himself dealt drugs on campus, drugs that Devin Wallace furnished him with."
There was a stir in the courtroom as Myra spoke. I resisted the urge to turn and look at Lipton's parents, who were seated directly behind the prosecutor's table.
"As will become clear to you over the coming days, perhaps any one of these facts would suffice to create a reasonable doubt of Lorenzo Tate's guilt in this case," Myra said in conclusion. "Taken together, they go much further than that. Thank you."
"SO, JOEL," Adam Berman said, sliding up to me as we filed out of the court for our lunch break. "You happy with my story?"
The sight of Berman made me feel awkward, even a little guilty. I forced myself to be civil, recognizing that he might continue to be useful, if not in this case then in future ones. I assumed the story had caused some shift in the public perception of Seth Lipton, transforming him from college student to drug dealer. But I hadn't been prepared for how grubby it'd made me feel. I saw ADA Williams watching us from down the hall. I stared back at her until she looked away. "Sure," I said to Berman. "You got pretty deep into it, I thought."
"That's what I do," Berman said. "I'm a dog with a bone when you give me a lead."
"I believe it," I said. "Anyway, I've got a lot of work to do."
"Listen," Berman said, leaning forward conspiratorially. "A lot of the reporters you're going to meet in this building, they just take what the prosecutors give them. The tabloids mostly just want to demonize a defendant. I try to get the full story across, which is why defense lawyers generally talk to me when they're going to talk to someone. I hope that's how you'll feel."
"I hear you," I said.
"Great," Berman said. "Anything I should know?"
"Not just now," I said.
"But if you're going to take something to the press, you'll bring it to me?"
"Who else?" I said with a smile.
29
THE PROSECUTION began their case slowly. Any criminal prosecution had to establish the elements of the crime in question, even when they weren't in dispute. So here they had to establish that Seth Lipton and Devin Wallace had in fact been shot, and that Lipton had been killed, even though such evidence shed no light on who had done the shooting. So the prosecution put on the offduty emergency services worker who'd been on his way home when he'd heard the shots and had been the first person with any medical knowledge to arrive at the scene, as well as the medical examiner who had conducted the autopsy on Lipton, and a doctor who had treated Devin Wallace at the hospital. Myra and I took turns conducting cursory cross-examinations, but there wasn't anything here that we really took issue with.
It was late afternoon when the prosecution called their first important witness, Latrice Wallace. Latrice was dressed well, and looked as composed and attractive as she had when we'd interviewed her at her apartment.
ADA Williams took Latrice's direct testimony, establishing that she was Devin's sister and that she'd been home alone the evening of the shooting.
"Turning your attention to around seven p.m. that evening," Williams continued. "What, if anyt
hing, happened?"
"Somebody knock on our door," Latrice said, glancing over at Lorenzo as she said it. We'd talked to Lorenzo about the importance of his not showing emotion when hearing the evidence against him, and I was pleased to see how calmly he met Latrice's gaze.
"Did you recognize the person who was knocking?"
"It was Lorenzo Tate."
Williams took her time asking the next question. "And how were you able to recognize Mr. Tate?"
"He been over at our house, time to time."
"Do you see Lorenzo Tate in this courtroom today?"
Latrice dutifully pointed him out. These in-court IDs were an empty, offensive ritual. Identifications based on a lineup or photo array were one thing, but I hated that the prosecution could ask a witness to pick out the defendant in open court. Lorenzo sat at the defense table between two white lawyers in suits—how was anybody going to fail to identify him as the accused? We had dressed him up, putting him in a dark blazer and striped tie from the office's ragtag wardrobe of dress clothes that we kept for our clients' court appearances, but the clothes didn't look convincing on him: they looked more like a costume than an outfit.
"And what did you do after you recognized Lorenzo Tate as the person who was knocking on the door?"
"The door was on the chain. I opened it a little bit, but I didn't take the chain off."
"If you knew Lorenzo Tate, why didn't you just open the door all the way?"
"I know he gonna be looking for my brother, not me."
"What, if anything, did the defendant say to you once you'd opened the door a little?"
"He asked if Devin be home," Latrice said. "I told him I ain't seen him."
"And then what did the defendant say?"
"He ask if Devin left some money for him."
"And what did you say to that?"
"I said I didn't know nothin' about no money."
"And what, if anything, did the defendant say to that?"
Myra was quickly back on her feet. "Objection. Hearsay."
"Statement against penal interest, Your Honor," Williams replied.
"Overruled," Ferano said.
"He say that Devin don't know who he's fucking with, but he's going to get his," Latrice said, again glancing quickly over at Lorenzo.
"And then what happened?"
"Then he was out."
"Thank you, Ms. Wallace," Williams said, returning to her seat.
By the time the direct was finished it was just a few minutes before five. We didn't bother to protest when Ferano declared that we were finished for the day, as we knew it was no use. Myra was doing the cross on Latrice, and at least this way we'd have the night to look for any weaknesses in her direct testimony.
"SO WHERE are we so far?" I asked Myra. We'd walked over to Dumbo to review the day and preview tomorrow over a quick dinner. We were at Superfine, a couple of blocks from the East River, just steps out from under the Manhattan Bridge. The bar fit the neighborhood: stylish but quiet, underpopulated and well designed. It was just a block or two from Paul's apartment, but I did my best to push that last visit to Dumbo out of my mind.
"They haven't hit us too hard yet," Myra said. "But they haven't brought out their big guns yet, either."
"How about Latrice's testimony?" I said. "Think we survived that okay?"
"I do," Myra said.
"Lorenzo was talking to me about how he wants to testify, explain away his visit to the apartment that night, what he said to Latrice."
Myra's laugh carried little trace of amusement. "That's not going to happen," she said. "Not if we're earning our fees, anyway."
"Earning our fees?"
"It's an expression I understand real lawyers use," Myra said. "Lorenzo's one of those people thinks he can charm a jury all the way to an acquittal. It never happens. A defendant gets up on the witness stand, no jury ever sees the nice guy. They see a guy who's been called a killer."
"But it's Lorenzo's right to testify, isn't it?" I said. "I mean, if he wants to, don't we have to let him?"
"Technically," Myra said. "Which just means it's our job to make sure he doesn't want to. One of the victims owed our guy money for drugs? Please. Lorenzo wanders off the trail in his direct, he opens the door for this to come in. No way can we let him get crossed on that. It'd be game-over."
"So how do we explain that to Lorenzo?" I said.
"Pretty much like that," Myra said. "Sugarcoating things isn't going to help us with him."
I smiled.
"What?" Myra said, tilting her head quizzically.
"Nothing."
"What?" she repeated.
"I just . . . I was just thinking that I like watching you work."
"Oh, no," Myra said in mock horror. "No compliments."
"Hey," I said. "That was an entirely professional compliment."
"As compared to what?"
"I mean, it's not like I said something about how I like your perfume."
"Did you actually notice my perfume?" she said.
"Sure," I said. "I mean, I was sitting near you in court all day."
"That's what you were doing in court all day?" Myra said. "Smelling me? No wonder you're still on the market."
30
DID YOUR brother have a cell phone or pager?" Myra asked Latrice Wallace to begin her cross-examination the next morning, the question having its intended effect of catching the witness off guard. Myra was standing behind our table, barely having moved out of her chair before asking the question.
"He got a cell," Latrice said.
"So after Mr. Tate allegedly said this supposed threat about Mr. Wallace to you, you must have called your brother right away to warn him, right?"
"No," Latrice said. "I didn't call him."
"You didn't?" Myra said, feigning surprise as she walked slowly over to the podium. "That was because you weren't actually worried that Lorenzo Tate posed a threat to your brother, were you?"
"Not just then I wasn't, no. Now—"
"Thank you," Myra interrupted. "Did you call the police after Mr. Tate's visit that night?"
"No."
"I see. Ms. Wallace, do you recall testifying before a grand jury regarding the same events you've just testified about here?"
"I got up at that thing before this."
"And at the grand jury, you testified about when Mr. Tate came to your door looking for your brother that night, didn't you?" Myra asked.
"That's right."
"And what you then claimed Mr. Tate said that night was: 'Oh, shit, he think I'm fucking with him'?"
"If that's what it say."
"That's what it says because that's what you said, right?"
"I went to that other jury and told the truth, same as I'm telling it now."
"But that statement is pretty different from what you just told this jury, isn't it?"
"No."
"No?" Myra said, appearing genuinely surprised by the answer. I doubted the jury could tell the difference between when she was pretending to be surprised and when she actually was, but I was pretty sure I could. Even I wasn't entirely sure: Myra was a pretty good actress. "You don't think 'Oh, shit, he think I'm fucking with him' is pretty different from 'He don't know who he's fucking with, but he's going to get his'?"
"No."
"Isn't it true that the second one sounds like a threat but the first one doesn't?"
"Don't know about that."
"To you, those two comments, they mean the exact same thing?" Myra pressed, wanting to make sure this got through to the jury.
"Asked and answered," O'Bannon said by way of objection.
"Sustained," Judge Ferano said. "You've made your point, Counsel," he said to Myra.
"I suppose I have, Your Honor," Myra said. "Now, you gave a physical description of Lorenzo Tate to the police, correct?"
"Yes."
"And in the description you described what Mr. Tate was wearing that night, right?"
"I can't remember eve
rything I say."
"According to the police report, you said that Mr. Tate was wearing a bright-colored T-shirt, blue jeans, and a Yankees baseball cap; do you remember that?"
"If that's what it say."
"Ms. Wallace, do you know Yolanda Miller?"
"We know each other some."
"How do you know her?"
"We both come up in the Gardens. And she used to come 'round to see my brother."
"Ms. Miller used to come to your apartment to see Devin Wallace?"
"Sure."
"Are you aware of the fact that Ms. Miller used illegal drugs?"
"Objection," O'Bannon said.
"I'll allow it," Judge Ferano said. "The witness can answer if she has actual knowledge."
"I know she get high," Latrice said.
"You've seen her get high?"
"I see her when she be high."
"How many times have you seen Ms. Miller under the influence of drugs?"
"Objection," O'Bannon said. "The witness is not an expert in recognizing drug impairment."
"The witness grew up in our city's projects," Myra shot back. In addition to being comfortable as a performer, Myra also had the most important tool for any trial lawyer: she was quick on her feet.
"Objection overruled," Ferano said.
Latrice shrugged. "Few times maybe. Ain't like she high every time I seen her."
"When was the first time you ever saw Ms. Miller under the influence of drugs?"
"Didn't write down no date."
"Was it before the night your brother was shot?"
"Before then, uh-huh. I remember her coming over to our place all messed up."
"Thank you, Ms. Wallace," Myra said, turning quickly and taking her seat.
ADA O'Bannon did a brief redirect, focusing on the fact that Latrice was absolutely certain that it was Lorenzo Tate who'd come looking for her brother that night, and that he'd said words she now took to be threatening to her brother. After that the prosecution was ready to bring out its next witness.
A Cure for Night Page 17