[Damien Harrington 01.0] The Alibi

by Rachel Sinclair

  “Self-defense, huh?” Ally said when I cornered her after the arraignment to tell her of my plans. “Why is this the first I’m hearing about self-defense?”

  “I wasn’t required to disclose any affirmative defenses before this date,” I said. “I’m disclosing it now.”

  “Why didn’t she tell the cops that she killed him out of self-defense?”

  “She didn’t tell the cops anything. She asked for a lawyer right away.”

  “Okay, then,” Ally said. “Self-defense.” She looked at me for a few minutes. “Anything else you need to tell me?”

  “No, not at the moment.” I hesitated. It looked like Ally wanted me to say something more to her. I think that I knew what it was. “Listen, Ally…”

  “I hear that you’re getting back with your ex-wife,” she said, tears in her eyes. “That’s what I hear.”

  “Who told you that?”

  “Somebody in my office. I won’t tell you who. But that person saw you and your ex-wife out at dinner one night with your kids.”

  Was I going to lie again? It worried me that I was finding lying for Gina easier and easier as time went on. I was just able to come right out and tell Ally that I was going to plead self-defense for Gina, and I didn’t even hesitate. I just came right out with it. Could I lie to her about Sarah? I could certainly try to claim that we were out with Nate and Amelia just because we were trying to be good co-parents. That might placate her enough that she didn’t hate me for the rest of this trial.

  No, I decided that it was better just to tell her the truth. “Ally, Sarah and I aren’t getting back together. Yet. We’re in marriage counseling, though, and we’re seeing each other once a week. With the kids. I can’t trust her after all that she has done to me. But I’m not going to say definitively that we won’t get back together eventually, either. The divorce is on hold at the moment, although the papers are ready to go. I have to do all I can to try to make it work with her. I owe the kids that much. I owe me that much, too.” I took a deep breath. “I’m sorry. I should have told you.”

  “Yeah, you should have,” Ally said, shaking her head. “So, all that bullshit about spending more time with your kids, that was all just crap, then?”

  “No, I mean, that was the truth, too, I guess. You have to understand that I do need to spend time with my kids, and I couldn’t bring you around them. I was raised by a woman who had a revolving door of men coming in and out of the house all the time, and that kind of thing is very unstable for a kid. I couldn’t bring you around them, so-“

  “But you don’t mind spending time with Sarah.”

  “That’s different. She’s their mother, so I spend time with her and my kids at the same time. I couldn’t do that with you. So, yeah, it wasn’t a total lie that I told you. It just wasn’t the whole truth.”

  “I guess I should have expected to be treated like that by you. After all, you’re an ex-con.”

  The fact that I had served time in prison was well-known in the Public Defender’s Office. After all, my attorney in that office, Colleen Sutton, was still working there when I got a job with the PD’s Office. I knew, then, that the prosecutors probably also knew my story. I wasn’t surprised that Ally knew, but I was somewhat surprised that she kept from me that she knew. “I’m not an ex-con,” I said.

  “Maybe not. But you were in prison. You learned to lie in prison, I’m sure. That’s what you gotta do in prison to survive. Don’t think that I don’t know that. So, yeah, I should have known that you were going to find lying as easy for you as breathing. I just hoped that you would be different. I guess you really weren’t after all.”

  Her words stung me. Was she right? Was that why I was finding it so “easy” to lie about Gina? Was I really, in the end, no different from my clients who lie to me? Here I was, so up in arms about Gina lying to me, so angry about it, when, in reality, she wasn’t all that different from me. When it suited me, I was going to lie. When my back was up against the wall, I was going to lie. I lied to Ally about Sarah, and I was going to lie to the court about Gina.

  I really was no better than my criminal clients. I always thought that I had the moral high ground, but did I really?

  “Don’t judge me by my record,” I said. “Listen, you now know what our affirmative defense is going to be. You can go ahead and proceed on that basis.”

  “Okay. I will go ahead and proceed on that basis. And I’m going to prove to the court that your defense is bullshit. Your client killed her husband in cold blood, and I think that we all know why she did it. This is going to be one of my easiest cases to win.”

  “I wouldn’t count on that. Vittorio was a violent man. He beat on my client, and she called the cops on him twice. Vittorio also was raping women. One of the women that he raped went to the cops and the cops questioned him about it. They didn’t arrest him, though, probably because they didn’t have the chance. He was killed only days after he was questioned about raping Coretta Taylor. We have plenty of evidence to show his violent propensity. So, yeah, go ahead and keep thinking that this is going to be a slam-dunk for you. A cake walk. I think that it’s going to be harder than you think to convince the jury that my client killed Vittorio in cold blood for no good reason.”

  “No good reason? Are you serious? You don’t think the fact that your client had a boyfriend in prison, a boyfriend that she told witnesses she was going to marry, had anything to do with it? You don’t think the fact that Vittorio was worth more dead than alive had anything to do with it? You’re incredibly naïve.”

  I straightened my back and looked her in the eye. I had no clue that Gina was interested in marrying Joey Caruso. Nor did I have a clue about how Vittorio was worth more dead than alive. I didn’t even know what Ally was talking about when she said that. “You think what you want, and I think what I want. I have my story, and you have yours. We’ll see who the jury believes.”

  “Yeah, we’ll see alright. Look, your client apparently needed money. I know all about Joey Caruso and his son Antonio and Antonio’s problems. I know all about how Antonio’s life is in danger from some mobsters that he stiffed. So, what happens? Vittorio ends up dead. I’m sorry, but if your client is telling you that she killed Vittorio in self-defense, she’s lying. Plain and simple.”

  We got to the elevator and I turned to her. “I’m not going to try this case out here in the hallway. I gave you the notice about my affirmative defense, and that’s all that I’m going to give you for now. If you need anything more from me, make a formal discovery request, as usual.”

  “And you do the same. Now, if you will excuse me, I’m going to take the stairs. I need the exercise.” At that, she walked down the hall and disappeared through the doorway that went to the stairwell.

  Vittorio is worth more dead than alive. I obviously was missing something. I was going to have to ask Gina about that.

  In the meantime, I had to continue my search for the perfect attorney to take on my mold clients. And then I was going to have to tell them, one by one, that I was not going to be their attorney after all. That broke me.

  I had assigned Heather the job of finding another attorney, and she had called me a few times to tell me that she was looking high and low. “It’s hard,” she said. “Most of those big firms are too goddamn big, you know? Your clients will be just a number to them. I’ve interviewed a few of those attorneys, and I don’t think that they’re quite right.”

  My luck changed that evening, however, when I was driving home. I called Heather and she informed me that she had found just the right attorney for the case. “Her name is Patricia Pence. She was a partner with one of the mid-sized personal injury firms in town. She’s now in a smaller partnership with a couple of other attorneys in the River Market. I told her about the case, she’s done her own investigation, and she just called me today to tell me that she wants it. I like her, too, Dami. She’s a social justice warrior, very smart, and she’s outraged about what happened. She’s really angr
y with Robert Weismann, especially when she found out why Weismann got involved with those properties in the first place. Did you know that he just bought those apartment buildings because he thought that some large investors wanted that land, and he wanted to buy before those other investors made a bid?”

  “Oh? No, I didn’t know that.” Again, I was lying, but I couldn’t betray Gina’s confidence. She told me about why Robert Weismann wanted the property in confidence. I was already committing so many ethical violations, I would be lucky if I had a license to practice law next year if this all went sideways. “But that makes sense. It makes sense that a greedy bastard like that would buy property that he had no interest in, just so that he could sell it for an inflated price to a large firm.”

  “Yeah. So, anyhow, Patricia is angry about all of that. I think that she’s going to be a fighter, but I also think that she’s going to treat those people like they matter. Just like you say – they have to matter. She’s going to make them matter.”

  “Well, good.” I sighed. “I’ll meet with her, and maybe we’ll meet with the mold clients together. They’ll know that they’re in good hands. That’s what is most important.”

  And that’s what Patricia and I did for the next few days. We went to the apartments of the mold clients and spoke with them, reassuring them that Patricia was going to go to the mat for them. I felt better when it was all said and done, because Patricia won them over. I was also happy that most of them were in their new apartments and the ones who had moved were already feeling better.

  “I’m feeling 100%,” Mercury said, “and my boyfriend is back with me. I finally got tested for AIDS and HIV, and I’m not positive. When I got those test results back, I got Michael back too.”

  Juanita informed me that her two boys, Marcus and Jamal, were also feeling much better, although their symptoms were lingering a bit. “The doctors are treating them, though, and they’re getting stronger every day. I can’t thank you enough.”

  Candace Kaine told me that she was able to go back to work dancing at the club, and she was hopeful for the first time in a long time. “I was desperate and on my ass,” she said. “Now I’m not, thanks to you.”

  Aurelia could never be made whole – she lost her son, Manuel, and there was no bringing him back. But she was relieved that she was out of that apartment, and so was Enrique.

  Mariana and Josh also were feeling better and were much happier than when I saw them.

  In all, I knew that I did good for these people. I got them a doctor, I got them a new apartment and, because of that, they had a new lease on life. Plus, I liked Patricia. As Heather said, she was a fighter and she was outraged by what had happened to those people. She was excited to get into this case, and she thanked me profusely for bringing it to her.

  While I was happy that things were working out on that end, I was sad that I couldn’t see it through. But it was what it was. I couldn’t stay on their cases as long as Gina was my client.

  And Gina was going to be my client until her trial.

  Unfortunately.

  Chapter 18

  May 13 - The Day of the Trial

  “Here we go,” I said to Gina. She had met me in front of the courthouse, looking extremely nervous. “Don’t worry. I got this.”

  I did have it, too. At least, I thought that I did. I had witnesses lined up that would testify about what kind of person Vittorio was in life. I had the police reports regarding the incidents where Vittorio beat on Gina. I had the prosecutor’s witness list, and I was ready for all of them.

  The only problem was that I couldn’t bring Harper in on this. She had offered to help. She even offered to second-chair. I had to keep a distance from her on this case, though. I didn’t tell her why. I just told her that I was going to have to try this case on my own, and prepare it on my own. There were no brainstorming sessions with her, no war room strategy meetings. There was only me and my client doing our usual pre-trial prep.

  Harper repeatedly asked me why I didn’t want her help, and I didn’t know what to tell her. She eventually stopped asking.

  We got into the courtroom, and Ally was already there with her second chair, Sheldon Hatch. The judge was also already on the bench. He was early, for once.

  “Counselor,” he said when I walked in. “Good to see you. I see your client is here, too. I was just asking Ms. Hughes if there was any pre-trial motions that I need to listen to, and she said that she had none, and she thought that you probably would have none, either. I hope that she’s right about that.”

  “No, your honor,” I said. “We’re ready to go and there’s not anything that I need to hash out before trial.”

  “I understand that you’re going for self-defense,” he said. “I wish you luck on that.” He chuckled. “The last few self-defense cases I’ve tried didn’t go so well. One of them was your partner, Harper. Boy, that was heading for a mess, but she pulled it out at the last second. You should ask her about that.”

  I nodded my head, thinking that asking Harper about her self-defense case would make her curious about why I was asking about it. I couldn’t tell her the truth, so I just didn’t go there. “Yeah, I should,” I said to Judge Reiner.

  “Well, I guess that we’re ready to bring in the jury panel,” he said. “You guys ready for this?”

  “We are, your honor,” Ally said.

  “Okay, then,” Judge Reiner said, and then he nodded to the bailiff. In a matter of minutes, the first batch of potential jurors came through the door. The took a seat in rows of chairs behind the barrier between the lawyers and the audience.

  I knew exactly what I was looking for in my jury. I was looking for at least one woman who was unhappily married to a violent man. Perhaps this woman had fantasies about killing her own husband. I was a good student of human nature, and I could see beyond the façade. I was also looking for other women who were unhappily married. Maybe their husband wasn’t violent, but perhaps they were simply trapped in a loveless marriage. In short, I wanted women who would see my client and know what she was going through. They could feel the pain that she felt in living with a man who would beat on her regularly.

  That was what I was looking for in a juror. I knew the power of just one juror who felt passionately about an issue – they were the ones who could turn everything around. Even if the others wanted to find my client guilty, just one passionate, articulate and persuasive juror could be the person who would be the one changing everybody’s minds.

  I just had to get beyond the guilt that I was feeling about using this defense and really lean into it. That was the only way that this gambit was going to work.

  Ally went through her voir dire of the jury. She asked the usual questions – did anybody know the defendant, had anybody read about the defendant’s case on-line or in the paper, did anybody know her or me, had anybody been a victim of a crime, etc. After she asked each of her questions, if somebody raised their hand, she followed up and asked them if they could still judge the case on its merits and without prejudice. Everybody answered yes, so she was finished with her questions.

  I stood up and walked over to the panel. “You heard all the questions that Ms. Hughes asked you,” I said. “And you all answered that you could set aside any kinds of emotions and misgivings and judge this case on its merits. I appreciate your responses.” I paced around a bit. “I have a few more questions to ask. You’re going to hear a story about a marriage that has gone horribly, horribly wrong. I would like to know, with a show of hands, who can relate to this scenario? Perhaps some of you have had physical, violent fights with your significant other. Maybe some of you are in the middle of a divorce. If you don’t feel comfortable talking about this issue in front of everyone else, that’s fine. I can meet with you during the break, and you can tell me about it in private.”

  Nobody raised their hands, but I saw a couple of women look like they wanted to speak with me. I figured I probably would be speaking with some of them during the b
reak, just like I asked them to do.

  The next question was similar to the first, but, because it dealt with somebody that they knew, not themselves, I figured that I might get some more open responses. “Does anybody here know of somebody who might be in the middle of an abusive situation?”

  A man raised his hand.

  “Yes,” I said, pointing to him.

  “My sister is being abused by her husband,” he said. “She’s in a battered woman’s shelter right now.”

  “Can you judge the case on its merits and not let your sister’s predicament prejudice you?”

  “Yes,” he said, solemnly. “I can.”

  Several more women raised their hands, and told their stories. They all said that they could judge the case on the merits, and I made a mental note of each of them. I wanted all of them on the jury. I knew that I would get at least some of them, as there wasn’t a reason to strike any of them for cause. Ally would probably use her peremptive strikes on some of them, and I was prepared for that. But if I could just get a few of these people, then I would be in decent shape.

  I asked several more questions, and then it was time to dismiss this batch and call in the next. During the break, I talked to women who confided in me that they were in an abusive relationship, and some women who said that they had been in an abusive relationship in the past.

  Several more hours, after Ally and I dickered over this person or that, we had our panel. I was satisfied, because I was able to seat three of the women who had either been in an abusive relationship in the past or were in one right now. I knew that they would all be sympathetic to my client, so that was a good thing.

  The other good thing was that the trial wasn’t going to be terribly long. Because I had decided that I wanted to try for self-defense, Ally and I agreed, in our first pre-trial conference, to stipulate to certain facts. One was that my client killed Vittorio. That meant that there wasn’t a need to put on evidence regarding the ballistics and fingerprints and all of that. There wasn’t a need to present evidence from the crime scene, either, although I knew that the prosecutor was going to anyhow. Ally was going to go for the gruesome, because that was one way to stir the emotions of the jury – show the dead body. Blow it up, show the blood, show the victim’s face looking lifeless and still. I was going to go ahead and not object to Ally showing the crime scene photos, even though they weren’t relevant in this case, and they contributed little to the case except inflammation of the jury.