Jury of One

by David Ellis

  Shelly hoped that the comedy stood out more than the drama. But she knew better. Todavia had damaged her self-defense case. He had damaged every part of her case, regardless of which theory she had pursued. Alex was a drug dealer, pinched by a cop, who decided to resolve the problem by killing the cop. All of this, if you believed Eddie Todavia. She had to see what she could do about that.

  “Ms. Trotter,” said the judge. “Do you want that recess?”

  “Why don’t we get started and see how it goes,” she suggested.

  She got to her feet and looked at the jury. Several of them smiled at her. She was their buddy now. The comedienne. She’d been called worse. And you had to work with what you had. She wanted to keep a favorable impression with this jury if she could. That, of course, was where the double standard came in. A man could be nice and charming but still rip a witness’s throat out. A woman could only be sweet or tough, not both.

  “Hello, Mr. Todavia.”

  He was openly hostile toward her, especially after he’d been the butt of some courtroom humor.

  “You sell drugs, don’t you?” She gestured around the room. “I mean, that’s why you’re here. You sell drugs.”

  “Yeah.”

  She wanted to pore over his brushes with the law over the last few years, but he had been a juvenile at the time, and the law did not allow her to impeach Todavia with his juvenile convictions. The judge had ruled, prior to trial, that this area of inquiry was closed. She only had one incident to which she could refer.

  “Powder cocaine?”

  “Yeah.”

  “Crack?”

  His head inclined. “Yeah.”

  “Heroin?”

  “Time to time. Not much.” He scratched his cheek.

  “Same was true eighteen months ago. When you claim you sold cocaine to Alex for the first time. January 2003. You were a drug dealer.”

  “I s’pose so.”

  “You suppose so, or yes?” She reached for a file and looked back at him.

  “Yesss,” he hissed with cold eyes.

  “You turned seventeen on September sixteenth, 2001, right?”

  “Right.”

  “And on February fourteenth, 2002, you were arrested for selling crack cocaine.”

  “Yeah.”

  Seventeen was the age of majority in this state for most drug-related crimes. Which meant Todavia had been tried as an adult. This was when Todavia left high school.

  “You served ten months in prison and got paroled at the end of 2002.”

  “Yeah.”

  The irony here was that Todavia’s incarceration ended just before Alex’s first visit to him. She believed in her heart that if Todavia hadn’t been around, Alex would not have entered into this trade. It was one thing to go to someone he’d known in high school. She couldn’t imagine him hitting up a stranger on the street. Not a kid like this.

  “You’ve been on parole since then, right, Eddie?”

  “Right. Well—parole ended—I got twenty months.”

  “Your parole ended some time this year. January of this year.”

  “Right.”

  “So this first time, when you tell us you sold Alex drugs, you were on parole at that time.”

  “Yeah.”

  “In fact, both times, you were still on parole.”

  “Right.”

  “Part of the condition of your parole, obviously, is that you do not sell drugs.”

  “Yeah, lady.”

  “And you have to meet with a parole officer.”

  “Saw my P.O. every month, at least.”

  “And he asked you, every month, if you were selling drugs.”

  Todavia smiled a worldly smile. “Right.”

  “And you lied to him.”

  “Guess I did.”

  “You lied to him in January 2003.”

  He waved at her. “Yeah.”

  “You lied to him in February 2003.”

  “Okay, lady.”

  “Every month, you lied to your parole officer about your involvement in narcotics trafficking.”

  “I’m saying yeah, lady. Yeah.”

  “Ten straight times, once a month, you lied.”

  Morphew objected; the question had already been answered. The judge sustained. Through the exchange, Todavia held his stare on her, then slowly smiled. If he was trying to creep her out, he had succeeded. If he thought that this would stop her from questioning his credibility, he had failed.

  “You lied because you didn’t want to go to prison. Right, Eddie?”

  “Yeah.”

  “And when you got busted for selling cocaine just recently, you knew that it would mean more prison time for you, didn’t you?”

  “Yeah, I figured.”

  “And you didn’t want to go back to prison, did you?”

  “Nope. I sure didn’t.”

  “And for testifying in this case, you get to walk out of jail a free man, don’t you?”

  “Yes, ma’am.” The prosecution had obviously instructed Todavia to be forthcoming on this issue.

  “And you also have immunity for any drug dealing that you’ve done in the past. Right?”

  “Correcto.”

  She crossed her arms and looked over his head. “What about immunity for this thing here, Eddie? For the shooting of Officer Miroballi? Did you get immunity for that?”

  “Objection, Judge,” Morphew said.

  “I want his understanding, your Honor. For bias.”

  The judge took a moment with that. He didn’t seem to get her point, but probing a witness’s bias was a sacrosanct arena in cross-examination. “Proceed, Counsel.”

  She looked at the witness. He held up a hand like a waiter holding a tray. “This here crime, I don’t know.”

  “So as you understand it, it’s possible that you could be prosecuted—you don’t have immunity—if you had something to do with this officer being shot.”

  The witness studied Shelly. His eyes moved beyond her. Maybe he was looking at his lawyer, but she doubted it. He’d had a public defender who probably wasn’t here. For the first time, he sat up in his chair.

  “I didn’t have nothin’ to do with this here cop gettin’ shot.”

  “Well, that’s not what I asked you. What I asked you is, if you did have something to do with it, do you think you’re covered here?”

  “Man, I don’t know. You telling me I can be in trouble for this?”

  It was notable that Morphew wasn’t objecting. As Shelly understood the plea agreement, Eddie Todavia was not immune from prosecution for this shooting. That was probably because he had nothing to do with it, and it hadn’t occurred to Todavia’s lawyer to cover him for something that was only tangentially related to the drug bust. Really, all that he was testifying to, in the end, was that Alex had made an obscure reference to killing Miroballi. That didn’t put him in the soup in any way, shape, or form. His immunity deal didn’t cover him for the Miroballi shooting any more than it covered him for the Kennedy assassination.

  But that didn’t mean that a kid couldn’t get caught up for something, even if he didn’t have anything to do with it. And if Shelly believed that, then a kid who grew up and lived like Todavia believed that even more. She had already seen, firsthand, that Todavia had a general fear of law enforcement; she saw him defer to a former cop, Joel Lightner.

  She read the uncertainty in his eyes. He hadn’t expected this. He hadn’t expected to be accused of playing a role in the shooting, and he was beginning to think that Shelly was pointing a finger at him.

  “Man, no one said nothin’ ’bout me bein’ up for this,” he said.

  “Well, let me ask you this.” She had to play this right. She didn’t want to get his lawyer involved, because in the end, Todavia’s lawyer would assure him that he had nothing to worry about. She didn’t want that. She wanted the witness thinking he was on the hook. She wanted to scare him enough, but not so much that he started shouting out words like Fifth Amendm
ent and lawyer.

  “Didn’t you tell us, Mr. Todavia—your words, certainly not mine—but didn’t you tell us that Alex all but told you he was going to kill a police officer? And you never reported that information?”

  “Judge.” Morphew stood. “I think the witness—”

  “Sidebar, your Honor?” Shelly quickly interrupted. She absolutely did not want the witness to hear this conversation. The judge waved them forward. They all met in the corner, far from the jury and witness.

  “Judge, he should be allowed to confer with his P.D.,” said Morphew.

  “He doesn’t need his lawyer,” Shelly answered. “I’m just asking him if it’s true that he never reported what my client supposedly said to him. That’s no crime.”

  “But she’s giving the appearance that it is a crime, Judge. He should be allowed to confer with counsel.”

  “To tell him what?” Shelly asked the judge. Always direct your comments to the judge or risk his ire. “That he has nothing to worry about? He isn’t going to incriminate himself, your Honor. He hasn’t done anything wrong.”

  “I’m not going to tell a witness he can’t confer with counsel,” said the judge.

  “I haven’t heard him ask, Judge.”

  “Thank you, Ms. Trotter. If you had let me finish, I would have said that very thing.”

  “Sorry, your Honor.” She raised her hands.

  “Do you mind if I continue?”

  “Of course not, your Honor. I apologize.”

  His Honor adjusted his glasses and spoke to the court reporter. “The witness is not in jeopardy with regard to the question of whether he failed to report a vague reference to a future crime. If he wants to speak with his lawyer, I’m going to allow that. But I’m not going to stop these proceedings for a needless exercise until that time.” He looked at the prosecutor, almost as an aside. “She can play this game, Mr. Morphew.”

  They all returned to their places. Todavia was in distress. He seemed to be hoping that, following this sidebar, someone would tell him he didn’t have to answer the question. He could lawyer up at any time, so she had to move fast.

  “I’ll ask you again, Mr. Todavia. If I heard you right before, I thought you said that my client told you of a plan to kill a cop. You said you ‘knew what he meant.’ And yet you never reported that to the authorities, did you?”

  “Man, what am I gonna report?”

  “Well, did you really, truly believe that Alex was going to kill a cop?”

  He studied her a moment, or he was studying the entire situation. He was doing what they all do, trying to find a middle ground. Shelly was serving it on a silver platter. “No, couldn’t a said that for sure,” he said.

  “Oh.” She tried to seem relieved for him. “Okay. So that’s why you didn’t report it. Because you didn’t think he meant that he was going to kill a cop.”

  “No, ma’am.” He was gaining momentum now, buying into this position.

  “It was possible, for example, that he was kidding.”

  “Could be.”

  “Alex, you’ve known him for a few years, right?”

  “Yeah.”

  “He’s been known to joke around, yes?”

  “Yeah. Funny guy.”

  “Funny guy,” she repeated. “Alex, you mean.”

  “Yeah, kid makes lots of jokes. Always joking around, that guy.”

  Always joking around. Maybe he and Shelly could tour together. A laugh a minute.

  “You didn’t really take him seriously, did you? Whatever it was he said to you?”

  “Nope.” Todavia shrugged. “What do I know? Guy says something. Never know.”

  “In fact, since we’re talking here”—she gestured between the two of them—“it was about six months ago now, and you said you didn’t take it seriously. Could be, maybe you don’t remember word for word exactly what Alex said. Right?”

  Todavia squinted at her. She saw immediately that she had overplayed her hand. One question too many, the failure of a lawyer falling too much in love with her own performance. Of course. Todavia could dance around the edges here, but if he came off that statement, he ran the risk that Morphew would pull his plea agreement. She wanted to reach out and grab the words out of the air.

  “Well—”

  “Tell you what, Mr. Todavia. I’ll withdraw that question. Let me—”

  “Judge, can the witness finish his answer?” Morphew requested.

  Damn. Shelly wanted to kick herself, but she could show no hesitation whatsoever. “Of course.” She extended her arm to the witness.

  “Man said what he said, is all.”

  “Okay.” She exhaled. That could have been worse. She had been lucky there. Now was the time to scare him. “Mr. Todavia, in this time that you say you and Alex had an ‘arrangement,’ did you ever introduce Alex to any members of the street gang? The Columbus Street Cannibals?”

  “Lady, I told you before. I didn’t introduce nobody to Alex.”

  He told her before at his house, he meant. “As far as you knew, did Alex know any of the other members of your gang?”

  He laughed. “Alex? No, lady. Alex didn’t know none of my friends. Look at that boy.”

  She couldn’t have scripted a better answer. It was more or less the same thing he’d said at his house. “Okay, Eddie. You told us that Alex said he had a cop on his tail who wanted to take down the Cannibals. Remember you told us that?”

  “Yeah.”

  “According to your testimony, this cop wanted to use Alex to help take down the Cannibals.”

  “Right.”

  Shelly had slowly moved toward Todavia. “If Alex is going to help take down the Cannibals, and you’re the only Cannibal he knows, that meant he was going to have to take you down. Isn’t that right, Eddie?”

  Morphew rose to object. “Assumes facts not in evidence. Speculative.”

  “I just want his state of mind,” Shelly said calmly, as if it were a no-brainer.

  The judge slowly nodded. “I’ll hear the answer.”

  Having turned to the judge, she saw in her peripheral vision that Alex was squirming. She looked at him and he summoned her with his eyes. “A moment, Judge?” she asked. When she reached Alex, he stood and leaned over the defense table.

  “Shelly, what are you doing?” he whispered urgently. “You can’t accuse this guy of murder.”

  “I’m not. Relax.” She motioned him down and turned back to the witness. “You know what? I’ll rephrase.” It gave her a chance to say the whole thing again for the jury’s benefit. She moved a step closer to the witness, whose demeanor had turned decidedly sour again. This was about as unexpected to Todavia as the kick to the abdomen. She ticked off points on her hand. “You said you believed Alex when he said that this cop wanted to take down the Cannibals, and that he was going to use Alex to do it. You said that as far as you knew, Alex didn’t know any other Cannibals besides you. So from your standpoint, Eddie, didn’t that mean that this cop had become a threat to you?”

  Todavia sat back in the seat and folded his arms. “Now you sayin’ I had somethin’ to do with this here beef. I ain’t talkin’.” He directed an emphatic finger downward. “I got my rights.”

  Perfect.

  The judge turned to the witness. “Sir, you do, in fact, have a Fifth Amendment right to refuse to answer this question. Is that your intention?”

  “Nobody said nothin’ ’bout this thing here.” He continued to point downward. He could have punched holes in a can with that finger.

  “Sir. Are you choosing to remain silent?”

  “That’s right. I’m remainin’ silent.”

  “Okay,” Shelly said. This was a freebie for her, if she handled it right. That was a big if. She hadn’t really expected to be here. She hadn’t known precisely what Todavia was going to say, and she had done her best to twist his words. Now she had him in a vulnerable spot. She could run off a series of incriminating questions that he would refuse to answer—and
look bad for doing so. Didn’t you plan the murder of Raymond Miroballi? Isn’t that gun sitting there on the table yours? He would probably refuse to answer, which would be the next best thing to admitting them. But this kid was unpredictable. He might shout out a denial, too.

  She liked her odds on that score, but there was a very real danger of being too cute here. She was planning a self-defense argument. If she proceeded down the present course—suggesting that Todavia had something to do with this murder—she would be telling the jury the defense was pleading a straight not-guilty, that Alex didn’t do it. And then later, she would tell them that Alex did do it but had legal justification. The jury would lose their trust in Shelly. They would think the defense was saying anything and everything. Morphew would crucify her in closing arguments. No. She had to make the call right now, go forward here and abandon self-defense, or shut the hell up. She would have loved a continuance, but Morphew would grab Todavia and talk some sense into him. She had to make this decision now.

  Oh, she had his jugular exposed and she was going to let him go. But it made sense. Sure. Morphew was going to have the chance to clean this up, anyway. No matter what kind of misdirection she tried here, Morphew would set the record straight with a more confident Eddie Todavia this afternoon.

  So if she wasn’t going to make the jury think Eddie Todavia was a killer, she could at least make them think he was a liar.

  “Mr. Todavia, tell me if you agree with this statement. If my client said that he was being forced by a cop to help him go after the Cannibals, and if you were the only Cannibal he knew, wouldn’t that give you a motive to want to eliminate that cop? Or Alex?”

  “Object to the form.”

  “Sustained.”

  She didn’t agree with that ruling but she didn’t really care. She just wanted Todavia and the jury to hear the question. She was approaching the witness again. “And Alex, quite obviously, is still with us, isn’t he? Whereas a certain police officer is dead.”

  The witness had curled into a ball. “Man, I ain’t sayin’ nothin’.”

  “If Alex really said all those things to you about a cop being on his tail and wanting to take down drug-dealing Cannibals like you, then I don’t blame you for taking the Fifth.”