The District Attorney also had eyewitness evidence that the defendant had been drinking at the NRA party at the Hideaway that night. The witness will testify that the Defendant was so inebriated he was unable to leave the premises without assistance. McQuiston concluded his opening by raising two questions. Why did the Defendant delay reporting that his vehicle was missing until late the next day? Why did he need representation of an attorney to report such a routine matter?
In my opening, I emphasized the weaknesses of the Commonwealth’s case. None of the eyewitnesses could identify my client as the driver of the vehicle involved. Nor could they provide evidence that conclusively proved the Suburban that was involved in the hit and run was Wallander’s. There was no evidence that anyone saw the license plate of the vehicle, there was no DNA that matched the victim’s on Wallander’s Suburban. I concluded by asking my own questions. Why, absent evidence beyond the model of his car did the Commonwealth arrest Wallander? Did it have anything to do with the fact Wallander was an elected official?
As Solomon and I had planned, the opening was the very first opportunity to plant a seed of doubt in the jurors’ minds; a seed that I would hopefully nourish throughout the trial.
As I reviewed the day’s events with the group I thought about the task that lay ahead. Although the Commonwealth’s case had some holes in it, so did Wallander’s. Phil had been drinking the night of the incident and could not account for his actions when he left the NRA’s party that night. Phil wanted to testify and convince the jury that he was innocent. Joel was adamantly opposed to such a dangerous strategy. I was still undecided.
Our attempts to locate the mysterious Mona or Monica, the woman who left the Hideaway with Wallander that night had been unsuccessful. It was as if she had disappeared from the face of the earth. Were it not for the statement of the bartender that he saw Wallander leaving the bar with a woman, there would be absolutely no way to corroborate at least that part of Wallander’s story. There was, however, no evidence that explained how Phil had gotten from the Hideaway to his motel room, and how his Suburban had ended up at a garage in West Derry Township.
When we finished for the day Joel reminded me that I was scheduled to appear before the Grand Jury in two days. The U.S. Attorney refused to agree to any further postponements. “Blackburn doesn’t give a crap about Wallander’s trial. He called the judge and told him the U.S. Marshall would come into the courtroom and remove you if the judge didn’t recess the trial.
Do you have any idea what he’s going to question you about?”
“I haven’t got a clue.”
I had not told Solomon about the mysterious contact from a colleague of Samantha Binnager who told me that Binnager was out of town and was unable to return my calls. Unable or unwilling I wondered. I believed there was some connection between Robert Worthington and the Dunlap Group and Phil Wallander’s case. Worthington was the head of the NRA. Worthington had hired Binnager to lure me into some kind of trap. Wallander’s mess started at the NRA party. There were just too many connections to Worthington for me to ignore.
I called home to check in with Nicky.
“How’s the trial going?” she asked.
“OK, I guess. How are you and Bobby getting along without me there to referee?” I had not realized how mothers and daughters competed with one another.
“We’re managing to survive. Serge is a great help.”
Ever since the night Nicky’s father had warned her about my impending indictment and of my alleged infidelity, and my refusal to tell her what was really bothering me I could feel the barrier between us grow. And the fact that Serge Paullo was around hadn’t helped things, at least from my perspective. “You OK?”
“I’m fine. I guess…when are you coming home? Bobby really misses you.”
“I’ll be home tomorrow night for a few days. The judge is going to recess the trial because I have to appear before the Grand Jury on Thursday.”
“OK.”
“Everything will be all right. You’ll see.”
“If you say so.”
As I hung up I felt the throbbing in my leg intensify.
CHAPTER FIFTY
One Question Too Many
The second day of the Wallander trial was unremarkable until my cross-examination of the arresting officer. District Attorney McQuiston was a deliberate and low-key litigator. He lacked the flash and style I had become accustomed to from my limited experience in Philadelphia. Joel Solomon cautioned me to be wary of McQuiston, he reminded me we were playing an away game, and this was McQuiston’s home court.
Most trials, even criminal trials, start out slowly. It’s not like a 100-meter race where the prosecutor leaps out of the starting blocks and streaks to the finish. Trials are like marathons, races of endurance and strategy. Jurors are often frustrated with the initial pace. So far, this trial was no different.
The Commonwealth’s first witness was Detective Alfred P. Reese, the arresting officer. Reese was a small man, about fifty years old; he was balding and completely unassuming. He had an avuncular look, like someone you could trust. He told the jury that he was investigating a hit and run fatal accident that had occurred during the early morning hours of June 8th near the intersection of Front and Dauphin streets in Harrisburg. Three eyewitnesses had provided statements that included identical descriptions of the vehicle involved as an older model station wagon/SUV type vehicle with wood panels. According to the witnesses’ accounts, the vehicle never stopped.
The victim, John Morris, 56, was pronounced dead at the scene of the accident.
Unfortunately, none of the witnesses saw the operator, or whether there were any passengers in the vehicle.
Reese testified that at 3:30 pm on June 9th, the defendant accompanied by his counsel went to the 3rd District to report the defendant’s vehicle, a 1990 Chevrolet Suburban, Pennsylvania license plate LVM-2079, was missing. The description of the vehicle the defendant provided the desk sergeant included a reference to wood panels. According to Reese, initially the 3rd District report of the missing vehicle did not attract his attention since there were probably a dozen SUV type vehicles with wood panels in the area. However, later that day when the Desk Sergeant told him the owner of the vehicle, the defendant, had been represented by counsel, it peaked Reese’s interest. He put the information out to Harrisburg and surrounding townships’ police. Within an hour, the West Derry Township Police Department notified him that a vehicle matching the description had been located abandoned at a garage in the township. The license plate had been removed but the VIN number matched the defendant’s vehicle.
Forensics failed to provide a match to the victim; however, the dents on the front fender of the vehicle matched the description of the accident the eyewitness’ had provided.
According to Reese when the defendant was unable to provide a credible account of his activities for the night of the accident, he became suspicious and his investigation ultimately resulted in the defendant’s arrest and indictment.
Throughout the Commonwealth’s case, including the detective’s testimony, the District Attorney and the witness used the term defendant instead of using Philip Wallander’s proper name. This was a tactic all prosecutors used. It was designed to get the jury to consider the person on trial as already guilty. He is the DEFENDANT, not someone who is entitled to the presumption of innocence. I always refer to my client as Mr. Wallander, or Representative Wallander, a person who, like the members of the jury, is entitled to be treated with respect.
My cross-examination of Detective Reese revealed the obvious admissions of the Commonwealth’s case. No eyewitness had identified Wallander. The detective did not know how or when the dents got on the vehicle. Reese conceded that the evidence did not even conclusively establish that the vehicle involved in the hit and run was the vehicle owned by Wallander.
The Detective acknowledged that the Pennsylvania Department of Transportation, Motor Vehicles Division records revealed tha
t there were 27 1990 Chevrolet Suburbans registered in the Commonwealth, 7 of which were within 100 miles of Harrisburg. Detective Reese had not contacted any of the registered owners of those vehicles to question their whereabouts on the night of the accident.
I should have stopped while I was ahead, but of course I asked one question too many.
“Detective Reese, you testified that there was no forensic evidence, or eye witness evidence linking Representative Wallander to the accident, is that correct?”
“Yes sir.”
“You also testified that Representative Wallander told you he had left the Hideaway the night of the accident with the assistance of a companion and woke up the next morning in his hotel room, and that he did not have any recollection of how he got back to his hotel, is that correct as well?”
“Yes sir, that’s what I told the jury.”
“You also testified that you believed the Representative, you said that didn’t you?”
“Uh-huh,” he nodded.
“So if you believed Representative Wallander’s explanation, why did you arrest him?”
“Well counselor, I’ve been a Police Officer for twenty-five years and a Detective for the last ten years. I’ve arrested probably over 300 individuals in DUI cases. People from all walks of life, nuns, teenagers, grandmothers, even a couple judges and some elected officials. And you know something? Just about every one of them told me they could not remember getting behind the wheel and driving. Not a one of them had any recollection of being involved in an accident, and I believed every one of them. But the thing is, drunks, have really bad memories, they are simply not reliable.”
“Thank you Detective.”
“Are you ready for tomorrow?” Joel asked as we packed up for the day.
“I guess so.”
“I’ll pick you up at your hotel in an hour, and stop beating yourself up over Detective Reese.” Solomon said as we left the courtroom. We had planned to drive back to Philly that night so that I would be well rested for my Grand Jury testimony the next morning.
“We saw the Commonwealth’s evidence. If that’s the best they have you’ll be fine. Just try to relax and concentrate on the task at hand.”
I managed a smile. If it were only that simple I thought. I had noticed that my friend had that rare ability to focus on whatever he was doing, preparing for a trial, examining a witness, writing a brief, to the exclusion of everything else. That almost unique talent made him an effective litigator, like a gifted athlete who could slow down the action around him and make the play. I simply did not have that ability. My mind was constantly searching for solutions to the many problems, both personal and professional that confronted me.
Joel pulled up in his new BMW 532 sedan. The car was the gift he had given himself when he made partner at Brinkley Smoot.
“Sweet ride,” I said as I got in. “I guess it’s time for me to replace the Cobalt. I don’t think the constituents of the 127th District would appreciate my trading it in for something quite as grand as this,” I remarked as I slid my hand along the black leather upholstery.”
“Probably not,” Solomon agreed. “I think you might do better getting yourself something a little less flashy.”
“Ya think?” I said feeling just a tad of envy.
We spent the rest of the ninety-minute ride discussing my Grand Jury testimony. By the time Solomon dropped me off in front of the Parc at Rittenhouse Square, I felt I could handle anything the U.S. Attorney had in store for me.
“Lucy, I’m home,” I said using my best Ricky Ricardo imitation, as I entered the apartment.
Toto followed closely by Bobby charged towards me.
“Bernie, you’re late!” Bobby said as she jumped into my arms.
“Late for what honey?”
“For Mommy’s surprise.”
I looked past her and saw Nicky standing at the kitchen entrance holding a serving dish with what appeared to be a half collapsed soufflé.
“You should have seen it a half hour ago,” she said. “It was beautiful.”
“You’re beautiful,” I replied.
It’s good to be home. Nicky and I had unfinished business to attend to. I loved her for giving me some time, but I knew that my time was running out.
CHAPTER FIFTY ONE
The Grand Jury
I took my seat at the witness chair at the front of the room and waited as the First Assistant U.S. Attorney for the Eastern District of Pennsylvania and one of his assistants searched through a stack of documents. I figured the paper shuffling was a tactic designed to make me uncomfortable while I waited for the interrogation to begin. As I waited I looked out at the 27 jurors who comprised the Grand Jury. For the most part they were older than jurors in regular civil and criminal trials. Grand Jury investigations could take up to six months, or longer. As a result, Grand Juries were often comprised of retired individuals who were available the one or two days a week for the several months the juries convened.
All juries, like families or clubs, evolved over time into units that took on the personality of their leaders, in this case Robert Blackburn. I had seen Blackburn in action at the opening of the Cinaglia trial. The trial had been interrupted by the senator’s dramatic heart attack on the opening day two months ago and the proceedings were still in recess. Blackburn was apparently using the time to his advantage trying to obtain additional ammunition to bring Cinaglia down, assuming the senator would survive his ‘brush with death’ as had been widely reported in the press. I also suspected the senator would miraculously recover and courageously assist in his defense. I didn’t buy the governor’s theory that Cinaglia would actually leave this mortal coil in order to avoid conviction.
For reasons that eluded me, Blackburn had decided that I could provide him with evidence material to his prosecution. No matter how hard I tried, I could not come up with exactly what Blackburn had in mind. I was actually relieved that the Grand Jury questioning was finally taking place so that the prosecutor’s strategy would be revealed.
After Blackburn’s terse introduction he turned his face to me.
“Mr. Green, you understand that as a witness in these proceedings you are subject to certain restrictions and obligations that do not apply to regular criminal proceedings. You do not have the right to have counsel present during your examination. You do, however, have the right to request a recess at any time to consult with counsel. Do you understand that?”
“Yes Mr. Blackburn I understand.” I noticed that for some reason the prosecutor seemed annoyed that I referred to him by using his proper name. Since this apparently irritated him, I decided to continue to do it.
“Mr. Green, do you understand that this proceeding is subject to strict rules of secrecy and that you can be prosecuted for disclosing anything that you observe or hear to anyone other than your attorney.”
“Yes Mr. Blackburn, I understand my obligations in that regard.” Once again I detected Blackburn’s irritation.
“Very well then Mr. Green, let’s begin.”
Blackburn asked a series of questions that provided the jurors with my background leading up to my employment at the Governor of Pennsylvania’s Philadelphia Regional Office.
“So Mr. Green, your mother told you she had arranged for an interview at the Governor’s office and when you arrived the governor himself interviewed you and hired you on the spot? Is that correct?”
“Yes Mr. Blackburn, that’s correct.” Blackburn turned and faced the jurors.
He turned halfway to me and said, “Mr. Green, your mother must be a pretty persuasive advocate to get the Governor of the Commonwealth of Pennsylvania to drop everything and interview her son.” He smiled and several of the jurors smiled.
“Mr. Blackburn, if you ever met my mother you would understand just how persuasive she can be.”
One of the jurors laughed and was rewarded with a swift look of disapproval from the prosecutor. Apparently, no one other than Blackburn was permitted to cra
ck a joke.
“Really, Mr. Green, do you expect the jurors to believe your mother could convince the Governor to hire you?”
“Mr. Blackburn, looks to me like there are several women in the jury who probably have children and would do their best to help them. I really do not know how my mother arranged for my interview with the governor. You can ask her, or ask the governor. All I know is my mother told me I had an interview at the governor’s office and it turned out to be with the governor himself.”
Blackburn gave me a look that evinced both disbelief and disgust simultaneously. I just stared back waiting for the next question. I assumed these questions that were of no apparent significance, were designed to both damage my credibility and lull me into a comfort zone so the prosecutor could trap me with a sudden change of direction. One of the jury members yawned, obviously bored with this line of inquiry. Blackburn, the experienced litigator that he was, sensed that it was time to move on.
“So Mr. Green, how did you decide to run for elective office?”
“The governor suggested that I consider running for the vacant seat in the 127th District. After I consulted with Congressman O’Grady and some close friends and advisors, I decided to throw my hat in the ring, Mr. Blackburn.”
“Did the governor also arrange for your position with the Brinkley Smoot law firm?”
“He did get me an interview.”
“So Mr. Green, the governor, who you never met before he hired you, got you elected to the state legislature and a high paying job with one of the most politically connected law firms in the city, just like that. Did your mother play any role in your meteoric success?”
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