by David Ellis
“We have people who will come into this courtroom and sit on this witness stand”—he moved to the witness railing again—“who will tell you that the defendant ran from Officer Miroballi. Who will tell you that he ran into an alley. That Officer Miroballi chased him in there but only wanted to talk. Never drew his weapon. That the defendant pretended to comply with the officer’s wishes by dropping the gym bag he was holding and by dropping the gun he was holding. That the officer then approached him, and as he did so, the defendant removed a second firearm from his jacket pocket and fired on the officer. Shot him in cold blood. And then fled the scene.” He walked over to the center of the jury panel. “We will ask you to return a verdict of guilty of murder in the first-degree. We will ask you to return a verdict of guilty for the offense of felony murder. We will ask you to deliver justice for Raymond Miroballi and his family.”
Shelly pretended to write a note on her pad. She knew a lot of this beforehand. Some of the details of the shooting were new. But that didn’t stop her from making a fresh assessment of the case, now that the words had been spoken, the reactions on the jurors’ faces seen. Morphew had done well here. He was off to a strong start.
“Is the state prepared to call its first witness?” the judge asked.
She looked at Alex. He was following her instructions as best he could, which was to say that he remained quiet and rather void of emotion. But his face was ashen. Hearing someone say such things about you could be devastating. If they weren’t true—and he had steadfastly denied that he was Miroballi’s informant—then it would be utterly terrifying. But what bothered him the most, she assumed, was what bothered her the most. Everything Morphew had said had the ring of truth. Now that it had begun, Alex Baniewicz was feeling the weight of the world in a way previously unknown to him. It was worse than the arrest. Worse than the months of confinement. Now it was happening, the legal mechanism that would determine the rest of his life. She had tried to prepare him for it. She had told him that Morphew would state matters in the most damaging way possible. It won’t get any worse than the opening statement, she had told him.
“The People call Edward Todavia,” said Morphew.
She sensed that she was about to be proven wrong.
60
Sing
THE WITNESS WAS escorted into the courtroom by armed sheriff’s deputies. That was interesting. Shelly had thought that Morphew might ask for a recess and have the witness brought in outside the presence of the jury. Dress him up, remove the shackles and armed escorts, then bring in the jury. But Morphew didn’t ask for the jury to be excused. He let them see the deputies haul in this criminal.
Yeah, she probably would have done the same thing, now that she thought about it. What better way to taint a defendant than to show, in very real terms, that his associates are criminals?
Eddie Todavia was wearing a blue jumpsuit. She didn’t know the different colors the Department of Corrections used for inmates, but she knew that he was not placed in general population. He still had the shaved head but it looked like he’d had a few days’ growth, which made his head look dirty. Still the goatee. He wasn’t a big guy but he had a menacing stare, a flat inflection to his voice that amplified the effect. A kid like that knew how to look tough. It was part of his job description.
He said his name for the record. Morphew fronted the arrest and plea agreement, the reason Todavia was here. The questions and answers provided ample detail. He was caught selling ten grams of crack cocaine to a sixteen-year-old boy on Green Street, south of Venice Avenue. City police officers and sheriff’s deputies had converged on him. Todavia showed no hint of remorse or hesitation in describing these things. It wasn’t pride in his actions but he probably saw something heroic in his arrest. She had seen that before in the kids she helped. There was a drama to the whole thing that captivated them. A badge of pride, to some of them.
He turned a little more reticent when he testified about the plea agreement. That, most definitely, was not a source of pride. Cut to the bone, this kid had gotten scared and narced.
“You’re not happy to be here, are you, sir?” Morphew asked. He was at the podium placed between the defense and prosecution tables, back just enough so that Shelly’s view of the jury was not blocked.
“Nope.”
“You understand that if you don’t tell the truth here, your plea agreement will be ripped up.”
“Yeah, I got that.”
“If you don’t tell the truth, you could go away for ten years.”
He nodded.
“You have to give an audible answer, sir. You have to answer out loud.”
He cocked his head. “Yeah, I got that.”
Morphew pointed at Alex. “Do you know the defendant, Alex Baniewicz?”
“Yeah, I know him.”
“Stipulate to identification,” Shelly called out in a bored tone. She didn’t need Alex to stand up and be singled out.
“Thank you, Counsel.” The judge wrote something down.
“How is it that you know the defendant?”
“He’s a customer of mine.” They looked at each other. “I sold him coke.”
“Cocaine.”
“Right.”
“When?”
“When,” Todavia said, as if the question annoyed him. He opened a hand. “Like, ’bout January, maybe, last year.”
“January of this year? Or of 2003?”
“2003.”
That was about right. It was just after Alex’s daughter had been born, in late 2002, that Alex had decided to supplement his income through illicit means.
“How did this come about? How was it he came to you?”
“We go back. We went to high school together for a while.”
“What school?”
“Southside. I’s livin’ with my mom then. Now I’m on my own.” He shifted in his seat. He was slouching, going out of his way to seem unaffected, but it was hard to do so in the unforgiving wooden chair. “Alex comes to me, see. He says he needs some blow. He says he wants a hundo.”
This was not hearsay, technically, because hearsay wasn’t hearsay when it came from the mouth of the accused. State law exempted the admissions of a defendant from the hearsay rule, and that rule had been extended by the courts to apply to basically any word uttered by the defendant. In any event, she was likely to admit all of this anyway, when Alex took the stand.
“A hundred grams,” the witness elaborated at the prosecutor’s prompting.
“Did you give him a hundred?”
“No, man. Didn’t have no credit with me, know what I’m sayin’? I gave him fifty. He gave me enough for about half that and he owed me.” He nodded. “Boy paid me, though. Few months later. We started an arrangement.”
“Tell us about the arrangement?”
He threw up a hand. “Boy wanted it all at once. I told him, keep it slow. But he wanted it all at once. I don’t think”—he laughed—“don’t think he liked comin’ out to my ’hood.”
She thought of moving to strike the testimony but kept quiet.
“So he would purchase one hundred grams of cocaine at a time from you?”
“Right. ’Bout every six months, he pays me for what he couldn’t at first.”
“So how often did he purchase this amount from you?”
“Twice, man, is all. First time, like I say, it was fifty then another fifty. Second time, I give him all hundred at once.”
And he was caught with 74 grams of it. The cops had never found it, in their searches of his house and automobile, because it was sitting in a federal warehouse.
“When was that?”
“September or October, seems like. Last year.”
That was also accurate. It was in November of last year that the feds caught Alex.
“Did you and the defendant ever talk about cops? Law enforcement?”
“Once.”
“Where was this? When?”
Todavia rolled his neck. He was doin
g his best to look bored. He pursed his lips and looked up at the ceiling. “January,” he said. “Six months ago.”
Shelly froze. This was new, too. She looked at the state’s disclosure of Todavia as a witness. It said that the witness would testify about Alex’s relationship as a confidential informant with Miroballi. She had no basis for objecting to this, other than her general objection that the witness was disclosed too late, which she had made again before the witness even entered the room.
“January of this year?”
“Yeah. He comes to my house. Says he’s got a problem.”
“Judge.” Shelly got to her feet, which she normally preferred not to do unless she wanted to be noticed, but she had an extended objection. “I don’t want to keep interrupting. I want to make a running objection to the hearsay.”
“Fine, Counsel. That will be overruled. Mr. Morphew?”
“What was the problem, Mr. Todavia?” Morphew asked.
“He says he’s got a cop on his tail,” said the witness. “Says this cop is tryin’ to put a hole in the Cans.”
“The Cans. The Columbus Street Cannibals?”
“Right.”
“That’s a street gang.”
“Right.”
“Are you a member?”
“Yeah, I’m C-Street.”
“So go on, Mr. Todavia.”
“Man, he says he’s got this cop lookin’ to be a hero, y’know? Says this cop is puttin’ a pinch on him.”
“Explain that to the jury, Mr. Todavia. A ‘pinch,’ if you would.”
Shelly looked at the jury. She hadn’t been watching them, entranced as she was by the witness’s testimony. That had been a mistake. Always watch the jury with one eye. Theirs was the only opinion that counted.
Hard to read them, as always. Other than the high points, it was hard to know what was going through someone’s head. She could say this much—they did not appear to be on the verge of inviting this kid over for tea. They saw him for what he was. Part of the problem. But that didn’t mean he wasn’t believable.
“He says to me, this cop has busted him. I say, okay, then take the hit and keep your mouth shut. But Alex, he says no, no. ‘This guy wants me to help him,’ he says.”
“He’s lying,” Alex said to her, his volume somewhat above a whisper. She saw two of the jurors turn toward him.
“He says this cop is looking to take down the Cannibals. Y’know, make a name for hisself. He says this cop wants him to be, like, an informant or some such.”
Morphew put out his hands as if framing the perfect summation. In doing so, he was highlighting the importance of the question. “The defendant told you that a certain police officer was trying to get his help to make a drug bust against the Cannibals?”
“That’s what I’m sayin’. He was all upset and shit. He kept sayin’, ‘What am I gonna do? The guy’s got me pinched.’”
“What did you say to him?”
“Told him to keep his mouth shut. Don’t do it. Take the hit.”
“And can you tell the jury what the defendant said to that, Mr. Todavia?”
Shelly steeled herself. Morphew had told Todavia to “tell the jury” for a reason. It was a device to get the jury’s attention; this was something he wanted to be sure they heard. She could guess what was coming at this point, more or less.
Todavia wet his lips and looked at the jury. “This boy Alex, he says to me, ‘I gotta get rid of this cop.’”
The gallery reacted to that. The jury did, too, scribbling in their notebooks.
“‘I gotta get rid of this cop.’ That’s what the defendant said?” Morphew asked.
Shelly didn’t write the words down, because she didn’t want the jury to see her giving them any credence whatsoever. She rolled her eyes, in fact, but she knew the jury wasn’t watching her. She noticed Alex was sweating.
“It’s okay,” she whispered to him, and nodded for emphasis. She was hoping to convince herself as much as him.
61
Diversion
“OBJECTION, YOUR HONOR,” Shelly managed, but there was enough noise in the courtroom that the judge didn’t even hear her. So she stood. This was the last thing she wanted to do. Eddie Todavia had dropped a bombshell, and now she was highlighting that fact. The judge finally brought the courtroom back to order and nodded at Shelly.
“Unfair surprise,” she said. “We were never given any notice of anything remotely like this—this so-called statement. The fact that we were never told about this statement is a disgrace. We have been ambushed.”
“It’s all there, your Honor.” Morphew was referring to the witness disclosure. He was probably right. There was nothing specifically listed about this particular comment, but he was on good paper. There had been much talk around the state of changing the law and requiring every alleged admission by a defendant to be specifically listed before trial by the prosecution, but the legislation had stalled in the state’s House of Representatives. So Morphew was under no requirement to list the words, “I gotta get rid of this cop” to Shelly.
They went back and forth with the judge. Shelly hoped, somehow, that she could distract the jury, but they weren’t really listening. After a few exchanges, the judge called for a sidebar—a conversation outside the jury’s presence but on the record. The court reporter picked up her transcription machine and met the judge and lawyers in the far corner of the courtroom behind the judge’s bench, the corner opposite the jury. In hushed tones, the lawyers barked back and forth about the adequacy of the disclosure. The judge was not unsympathetic to Shelly. The disclosure had not been particularly forthcoming. But she had had the opportunity to talk to Todavia, even if he had refused to talk. She had talked to him prior to that, in fact.
“I’ll be willing to give you a short recess before you cross, Counsel,” the judge said. “Which is more than fair. But I’m not striking the testimony. Let’s go back on.”
All things considered, it had been about ten minutes since Todavia had testified to Alex’s statement. She hoped in vain that the jury had focused their attention elsewhere during that time. She would have done a circus trick right there in the courtroom, if she could, to distract them. Juggling. Cartwheels. But the fact was, the jury had probably taken those ten minutes to let that testimony sink in nice and good.
I gotta get rid of this cop. If those words were spoken, they were not spoken by the boy that Shelly had come to know. Maybe he’d lied to her a time or two, but she couldn’t fathom that Alex could speak so casually about committing homicide.
“All right, Mr. Todavia.” Morphew resumed his position at the podium. He seemed energized now, and small wonder. “Before this break, you said that the defendant told you he needed to get rid of this cop.”
“Yeah.”
“Did he elaborate on that? Explain that at all?”
“Naw, man. I knew what he meant.”
“Move to strike,” Shelly said from her chair.
“That comment will be stricken,” the judge said. He then asked the jury to disregard the statement, which was like telling someone to disregard that they had just been punched in the stomach.
Morphew walked over to a tripod and placed the photograph of Officer Raymond Miroballi on it. “Do you know this person?”
“Nope.”
“Ever seen him?”
“Nope.”
“Did the defendant mention the name Raymond Miroballi?”
“Nope.”
“Have you ever heard that name?”
“Just when that chick axed me,” he said, motioning toward Shelly. Actually, it had been Joel Lightner who had “axed” the question.
“Right before she kicked me in the stomach,” he added.
The judge looked at Shelly. So did the jury. She felt all of the eyes in the courtroom on her, the lawyer who apparently had physically battered a witness.
She got to her feet. “Your Honor, to be fair,” she said, “I was aiming for his crotch.”
<
br /> Two of the jurors snickered, then some people behind her, and in that small space of time within which such things happen, the courtroom had erupted in laughter. Even the judge smiled. Courtrooms were often the place for some of the greatest releases of tension, because they were also the sources of the greatest tension. Jurors loved to laugh during a trial. It was such an odd scene, an utterly incriminating bit of testimony placed next to a moment of high comedy. It was a dumb thing to say, her comment, but it was better than cartwheels or juggling and it might buy her something with the jury.
The judge finally settled his look on Shelly, telling her that he had enjoyed the moment but that she had behaved improperly.
“I’ll be here all week, your Honor,” she said, which sparked some more laughter, but then she held up her hand. “I apologize for the interruption.”
The judge settled things down, admonishing Shelly and striking the statements made by both Shelly and the witness. But the smile remained on his face. What was more important to Shelly was that the smiles remained on the jurors’ faces.
Morphew had regarded her during the spectacle with some admiration, demonstrated by the soft upturn of one side of his mouth. He had bowed his head to her at one point.
“Well, it sounds like you got lucky,” he said to Todavia.
So score one for him. He got his share of laughter as well. The judge probably felt like Morphew was owed one, but this was a trial that was heavily covered by the press, and he did not want to be a judge who lost control of his courtroom.
“Let’s move on, Counsel.”
“Mr. Todavia, after the defendant told you that he had to get rid of this cop, did you ever hear from him again?”
“Nope.”
“And Mr. Todavia, do you have any personal animosity toward the defendant? Any grudge or anything against him?”
The witness looked at Alex. “Nope. Me and Alex is all good. We all good.” He nodded at him.
Alex nodded, as well, without looking at the witness.
“Thank you. Judge, that’s all I have.”