by David Ellis
“Shelly, really.” He was blocking the doorway. “The sum total of postcoital time you’ve spent with me”—three times, so far, they’d been together—“I wouldn’t have time to fry an egg.”
She gave him a look. “I thought we discussed this.”
“Look, I’m not talking about a lifetime commitment. Or even a one-week commitment. But”—he looked down at himself—“am I nothing but a piece of meat to you?”
She stared at him. They laughed at the same time.
“You know, Riley, a lot of guys would think they hit the gold mine here. No-strings sex?”
Paul threw his hands up. “Yeah, I’m starting to feel like the girl in this relationship.”
“That’s ‘woman,’ not girl.”
“Whatever. I can’t keep up anymore.” He shook his head. “So can we eat?”
“I really have to get back to work,” she said. She ran her hand along his shirt. With a presumptive pat, she left the office.
45
Questions
TO ARGUE SELF-DEFENSE or not to argue self-defense. That was the question.
Technically, she could argue both at trial. Alex didn’t shoot the officer, but if he did, it was in self-defense. That was a ridiculous position, practically speaking, but it did allow her to wait out the prosecution’s case before making her decision. That would be a walk through a mine field at trial, but she might be able to pull it off. She had already begun to draft examinations of witnesses. She had written two closing arguments, one arguing that Alex was the wrong guy, the other that he acted with legal justification.
The “innocence” argument was straightforward. There was no credible witness that put the gun in Alex’s hand. The other cop, Sanchez, didn’t see the shooting. The architect, Monica Stoddard, didn’t see who shot Miroballi. The homeless man says he did, but he was not credible. The gunpowder residue test was negative. Alex was there, but he didn’t pull the trigger.
If Alex didn’t shoot Miroballi, then she had to have some explanation that someone else did. The Cannibals? She had to admit that she would never be able to prove that. She was trying to shake the trees but nothing was falling out, and she couldn’t very well march onto their turf and demand that they confess. She needed to point the finger at someone, but she wasn’t exactly full of ideas.
The self-defense argument looked something like this: (1) Alex was being forced by Officer Raymond Miroballi to sell drugs and kick back some money. We know that from Alex’s testimony and from the photographs of them together, taken by the F.B.I. (2) Alex was picked up by the federal government, which was investigating a drug ring run by police officers, and Alex agreed to work for them and against Officer Miroballi. That can be shown from Alex’s testimony and from the F.B.I. agents she would call. (3) Miroballi found out that Alex had flipped. And what did she have to prove that fact? That Miroballi seemed nervous, according to Alex. That he was willing to go along with Alex’s “demand” of a smaller kickback—that he “must” have known because he was never so agreeable in the past. Yeah, that was a real winner.
Supposition laid upon supposition. She couldn’t decide which case was weaker. There were so many holes. Defense attorneys, in theory, didn’t need to fill in all the blanks, because they didn’t have the burden of proof. But the more implausible your story, the more you had to provide corroboration.
Her cell phone rang. “Shelly Trotter.”
There was no response on the other end. In the background of the caller, there were noises. It was busy. She heard a car horn. People yelling in Spanish.
“Hello?” she said.
Then she heard a click. With a cell phone, it was sometimes hard to tell if she had hung up on the caller or vice versa. She looked at the antenna icon on her phone and the signal appeared to be strong. “Hello?” she tried again, but the call had been terminated.
She picked up her land line and dialed the numbers. She looked at her watch. It was past eight o’clock on Sunday.
“You’ve reached Joel Lightner’s cell phone. Please leave a message.”
“Joel, it’s Shelly,” she said. “I need a trace on a call. As fast as you can.”
46
Searches
SHELLY SPENT THE day preparing for her afternoon argument to the state court of appeals that she should be allowed access to the city police department’s internal investigation. She had sought an expedited appeal, which was allowed for in cases such as this. She had made sure that various members of the city’s media were aware of the hearing—political pressure, in the end, might be the best way to get to these records—and some of them had shown.
The hearing had gone about as she expected. The judges—three of them, all political types from the city—had focused on the fact that the internal report had not been completed. The city’s Freedom of Information Act exempted preliminary internal investigations from disclosure. “Do you contest that this report is still preliminary?” one of the judges asked before Shelly had barely said her name. And of course, she could not dispute it. Her principal argument was that Alex Baniewicz’s right to a fair trial trumped a nondisclosure law on general policy grounds. “But if the report is preliminary, how do we know it contains accurate, complete information?” asked another judge. “Isn’t that the reason FOIA exempts it? Because the information is not yet reliable.”
“I don’t care so much about their conclusions as their underlying facts,” Shelly had said. “And even if they’re not reliable, proven facts, that’s up to me to investigate. Let me take the ball and run with it. But if they can throw a blanket over this and drag it out until after my client has gone to trial—”
“Do you have any evidence that the police department is stalling?” asked the same judge.
Of course she did not.
The third judge piped in. She had been in front of this one before; he had a reputation for dozing off on the bench. “Why can’t you discover the same information that the police department can discover?”
“They have power I don’t have,” Shelly had argued. “They tell a police officer to talk, and the officer has to talk. I can’t depose these officers, and they don’t want to talk to me.”
“But you can subpoena them for trial.”
“For trial?” Shelly had thrown up her arms. “Then I have to interview these officers for the first time in front of the jury.”
After the half-hour argument, Shelly knew she had lost. When the police department’s attorney went through his presentation, the judges hardly touched him. She would make a request to the state supreme court, but they wouldn’t agree to hear this case.
Shelly, dressing for an ordinary day in mid-May, was cold standing with two reporters, arguing her cause outside the courthouse. The sun was out but it was just over forty degrees. When she left them, she turned on her cell phone and called Joel Lightner.
“I think it was ‘Manuel,’ Joel. The kid who helped the cops break into my house.”
“What did he say?”
“Nothing. He didn’t say a word.”
“So how can you possibly make that assumption?”
Shelly almost walked into an oncoming car. She stepped back to the curb but got a splash from the tire. “I think he was checking up on me,” she said. “He was worried about what had happened to me. He felt bad.”
“And he waited two months to call.”
“Just check it out, Joel. Okay?”
“I will. I’ll get a consent form to you. This is your phone, so we don’t need a subpoena.”
“Great.”
“And, Shelly? If this kid is calling you now, maybe that means there’s a reason to worry.”
“Wonderful.” She hung up the phone and braced herself against the wind. Ronnie was coming to her office today to help manage the growing pile of material for her. He would make photocopies, organize and catalogue files, run any errands she needed. Shelly probably could have used the firm’s paralegals, but she felt like a bit of a freeloader
as it was—the deal she had worked out was rather lopsided in her favor—and Ronnie seemed so eager to lend a hand in whatever way he could.
She saw him. He was walking north on Donnelly toward her. He stopped as he got to the alley and looked in. She turned and walked toward him, but he didn’t see her. He was looking into the alley. And then he disappeared into it.
She quickened her pace, once again narrowly avoiding an oncoming vehicle. It was after four o’clock now, so the streets were just beginning to fill with people. She walked up to the alley and peeked in. Ronnie Masters was squatting down near the west end. Slowly, he got up and looked around. Then he turned in her direction and began to pace.
She had pulled back in time, she thought, so Ronnie didn’t see her. Now she turned and walked into the alley.
Ronnie stopped. “Oh, hey.”
“Hey yourself.” She gestured behind her. “Saw you back there.”
Ronnie had already turned back around. He pointed back at the area where he had been on his haunches. Shelly saw a piece of the pavement that had splintered badly, a fragment that had popped up.
“That must be where Alex tripped,” he said.
“Tripped.” She didn’t know anything about Alex tripping.
“Yeah, when he messed up his knee.”
“I didn’t know Alex messed up his knee,” she said. “I didn’t know he tripped.”
Ronnie looked at her. This meant that Ronnie had been talking to Alex about the case. She had already warned him that their conversations could be recorded, legally, by the authorities. She assumed that this particular talk had taken place before her warning to him. And she wasn’t up for scolding at the moment; she was more concerned with why everyone seemed to know more about this case than she.
“He fell while he was running?” Shelly asked.
“You don’t know this?”
“No, as a matter of fact, I don’t. I didn’t notice a limp or anything.”
“Well, you know how it is when you bang up your knee. For five minutes, you think you’ll never walk again, then it’s fine.”
They walked to her office. Ronnie was still wearing that ratty hooded sweatshirt for warmth. She dearly wanted to buy him something warmer, but she knew he would not react well to the offer. He was a proud young man, she could see. And besides, it would warm up soon enough.
She could see the weight of the last two months in Ronnie’s eyes, which were puffy and dark. He seemed like a boy who kept a lot to himself—like his “brother,” Alex, but in a different way. Alex, at least before the shooting, radiated an optimistic glow. Ronnie seemed darker. Two boys who essentially grew up together but were different.
They reached the office, and Shelly put him to work. He sat on the floor of her office and began to place things in their proper places, which was no small chore. Shelly was no neat freak. Quite the opposite. Her office typically was chaotic. She had made a point to do better this time, with this case, but there were only so many new tricks she could teach herself.
“Christ, you’re messy,” he said, as if she needed the tip.
She smirked at him and poured over her notes again. She thought of the alley, of the fact that Alex had apparently fallen and hurt himself. Why hadn’t he mentioned that? What else didn’t she know? No, it was not exactly a crucial detail, but it made Shelly wonder about the completeness of her own understanding of events that night.
“You two got a communication problem,” Ronnie said, as if he were reading her mind.
“Tell me about it. I have to learn information from you.”
He stopped what he was doing and looked at her. “You don’t plan on—after this is over. You don’t really plan on being a part of things, do you?”
“That’s not true.” She felt her hair rise. “That’s not true at all.”
“Well, you’re treating him like a criminal, Shelly. It’s like you find out you’re related to him and you like him less.”
She sighed. “Ronnie, I’ve told—”
“You know he used to talk about you? When he was younger? He used to wonder what was wrong with him. He wondered what was so bad about him that made you give him away.”
She set down the report.
“I know it must’ve been tough, Shelly. But it hasn’t been easy for him, either.”
She brought her hands to her face. “What do you want me to say, Ronnie?”
He looked up at her. “I want you to act like he wasn’t an accident. Or a mistake.” He got up from his work, wiped at his hands. He left under the guise of needing some things from the supply room.
Shelly had a headache. She was, she realized, getting tired of apologizing. If Alex didn’t beat these charges, it wouldn’t matter whether she accepted him into her life, or she into his. She had every right to be focusing on his defense.
Her phone rang. It was Dan Morphew, the prosecutor.
“Seventy years, Counselor. Let’s make this go away. I need to get back to all that paperwork they give me these days.”
“I can’t buy that, Dan. Not even close.”
“Think on it,” he said. “Let’s keep talking.”
Shelly stared at the receiver a moment before hanging up.
47
Break
WHILE SHE WAITED to see Alex, Shelly opened the small package delivered from the prosecution. The prosecution had to go first and disclose its witnesses. Shelly had two days thereafter to disclose hers. Neither party was required to accurately predict whom they would call as the trial evolved, but each party had to identify potential witnesses or risk having the judge exclude their testimony. So the rule was, throw in everyone who could even conceivably touch upon the case; leave out witnesses at your peril.
The prosecution would call Officer Julio Sanchez, Miro’s partner, as a witness to the crime. The two eyewitnesses, Monica Stoddard and Joseph Slattery, were listed. The prosecution listed Dr. Mitra Agarwal, the county’s chief deputy medical examiner, to testify as to cause of death and the distance between Miroballi and Alex at the time of the shooting. Detective Alberto Montes, with whom Shelly had spoken at the police station that night, would testify about the investigation and about some of the testing performed on the suspect. Other than that, Morphew would only call people to testify as to chain of custody to show that various pieces of evidence were properly handled and preserved.
It would be a straightforward prosecution, which was exactly how Assistant County Attorney Dan Morphew wanted it. Nothing fancy or complicated. No doubt that Alex was there, no doubt that Alex was the shooter. Morphew would have the opportunity to supplement this list once she disclosed her witnesses, because Shelly was pleading an affirmative defense, but he probably could do all he needed to do with Officer Sanchez.
What would happen, she wondered, when the F.B.I. closed in on the dirty cops, when the sting became public? Morphew would be caught flat-footed. Or did he have some inkling now? Had he discussed things with the federal prosecutors? Is that what prompted his offer of seventy years?
That was a possibility. And not one that the F.B.I. would confirm, even if she bothered to ask.
Shelly also would identify Officer Sanchez. She would disclose Officer Brian O’Sullivan, the officer who first arrived on the scene after Miroballi was shot and who had canvassed the crime scene. She disclosed Ronnie Masters but kept the description of his testimony deliberately vague, which she found interesting about herself, because she realized that Ronnie would probably say just about anything to help Alex. She might consider naming the man who supplied drugs to Alex, Edward Todavia, but the jury was still out on that one; by doing that, Morphew would go to Todavia immediately, read his sheet, and figure out that he was probably connected to the cocaine that Alex had that night. She did the boilerplate as well, identifying any and all witnesses mentioned in any of the materials produced by the prosecution or before the grand jury.
And for the heck of it, she would throw in the names of Ray Miroballi’s brothers, Tony an
d Reggie.
She wished she could trade sides with Dan Morphew. He had cops, good eyewitnesses, an accomplished forensic pathologist. She had a hostile cop, a kid who was obviously biased (and probably wouldn’t testify, anyway), and down the road, perhaps, federal prosecutors and special agents who were not exactly friendly to her cause, who in fact had told her informally that she would never be able to prove that Miroballi was forcing Alex to work for him.
Alex was brought in. He needed a haircut, she realized, which made her think of his appearance at trial. He would need a couple of suits, or at least sport coats, and clean shirts and at least two ties.
The guard locked Alex’s wrists down to the table and patted his shoulder. “Thanks, Joe,” said Alex. It was the same old story now with Alex. She was beginning to forget the Alex she had first known, the sunny disposition and wry sense of humor. This was Alex now. One part scared, two parts hardened, bracing himself for every day that he spent inside and preparing for a long stay. She couldn’t even fathom the erosion to one’s psyche from being confined, from wearing shackles whenever one consorted with outsiders. He would never be the same, she realized with a pang of regret. No matter what happened next. He would never get this time back, and he would never get this time completely out of his system.
“How’s your knee?” she asked.
“My knee?”
“I didn’t know you had tripped, Alex. When you were running from Miroballi that night.”
“Oh. Well, yeah. I guess it didn’t seem too important.”
“Oh, it probably isn’t,” she said. “But you shouldn’t be making those judgments. You have to tell me everything. This might not be such a big deal, but it makes me wonder what else you have left out.”
“I haven’t left anything out.” He played with his fingers. “So tell me how things are going.”
Shelly had always been honest to a fault with her clients. She remembered feeling, as a child, that she wasn’t given enough credit by adults. So she gave Alex her best assessment of the self-defense case and the “innocence” case. Alex seemed distressed as he listened, and Shelly thought that maybe he could use a dose of that emotion. He needed to hear her say, in a coherent presentation, how weak his case looked.