A Killer's Alibi (Philadelphia Legal)

by William L. Myers Jr.

  “Why not just poke holes in the prosecution’s case?” Nunzio says. “Bring up all the questions they can’t answer.”

  Mick nods. “Throw everything against the wall and hope something sticks. That’s what I’m planning to do because it’s all I’m left with, but I can tell you it’s nothing more than playing for fumbles, hoping the prosecution screws up. Problem is, Pagano’s not going to screw this up. It’s the biggest case of his career, and he’s going to bring his A game. I need to know what our theme’s going to be.”

  Nunzio leans back, looks at the ceiling, thinks for a few seconds. “How about, ‘He hit me first’?”

  He stares hard at Nunzio, unsure how to take the mobster’s suggestion. Is he being serious or cute?

  “You’re planning on offering up a self-defense excuse?”

  Nunzio shrugs, smiles.

  He shoots to his feet, calls the guard to unlock the cell, then turns back to Nunzio.

  “This is bullshit.”

  Mick and Pagano agreed to hold jury selection before a commissioner because the judge, Frances McCann, doesn’t allow the lawyers to ask questions—she conducts the voir dire herself. Pagano refused to relinquish that amount of control to anyone, and Mick didn’t want to lose his first chance to make a good impression on the jurors.

  Mick stands and turns toward the benches as the panel of sixty prospective jurors is ushered in. They all have miserable looks on their faces, and why not? No one wants to serve on a jury. It’s a week out of their lives, and they’re not even being paid enough to cover parking. He looks down and sees that Nunzio is still facing the front of the courtroom. He leans down and whispers for Nunzio to stand and face the panel. It’s a sign of respect every attorney has his client make. Nunzio does so, and the panel’s demeanor is instantly transformed. Faces that were bored, annoyed, or half-asleep a second earlier are now wide with astonishment, alertness, and even fear.

  The commissioner waits until everyone is seated, and then spends fifteen minutes explaining the process. In the meantime, Mick, Vaughn, Lauren Zito, and Max Pagano review court questionnaires that the jurors have completed. The top block of questions covers past and present occupations, marital status, education, and race. Below, another set of questions asks whether the prospective jurors have ever served on a jury before, have ever been the victim of a crime, witnessed a crime, or been arrested or charged with a crime themselves. The questions also ask whether the potential juror is more or less likely to believe a police officer because of his job and whether the juror could follow the instruction about the presumed innocence of the defendant. It also asks whether there is any reason the person could not be a fair juror. The questions are well known to the attorneys and jury consultant, and it takes little time for Mick and his team to identify potentially problematic panelists.

  Before the attorneys get to their oral questioning, the commissioner runs through the tedious process of soliciting excuses from panel members who claim it would be a hardship to serve. The excuses run the gamut from the patently legitimate—I have surgery tomorrow or My husband is coming back from a tour of duty in the Middle East—to the patently frivolous—I just got engaged and need to make wedding plans or The dog can’t be left home by itself all day. It takes about thirty minutes to address the hardship claims, after which the commissioner excuses twenty of the prospective jurors.

  Once that is finished, the commissioner and attorneys question the prospective jurors who affirmatively answered questions on the questionnaires indicating that their beliefs would prevent them from sitting in judgment in a criminal case, or that they could not abide by the jury instructions or otherwise would not make fair jurors. This takes another hour, and fifteen more people are released.

  With twenty-five panelists remaining, the commissioner calls for a midmorning break, after which the attorneys begin their own questioning. Pagano goes first. He begins by introducing himself and telling the panel that if they know him, or know of him, to raise their hands. No one does. He gives the same direction with regard to James Nunzio, and every hand goes up.

  Mick and Vaughn exchange glances: this is going to be a long slog.

  It’s just after 11:00 when Piper checks into the Holiday Inn on Hamilton Street in Allentown. The hotel is only five blocks from the Lehigh County Courthouse, where the hearing on the petition for a new trial for Darlene Dowd will be held. Piper had expected it to take much longer to get the hearing, but the judge—the Honorable Katherine Iwicki—is new to the bench and eager to make a name for herself. Piper also suspects that the fact the judge is a woman helped move things along.

  Piper checks her watch. Susan is due to arrive in an hour. They’ll have lunch in the hotel restaurant, joined by Melvin Ott, whom Susan is planning on calling as a witness. Susan will use the time to prep him for his testimony. Judge Iwicki signed a transfer order, and Darlene Dowd was moved earlier that morning from the women’s prison in Muncy to the Lehigh County Jail, where Piper and Susan are going to meet her later that afternoon to get her ready for the hearing. Around dinnertime, Special Agent Lance Newton will check in to the hotel, and the three of them will meet to go over his testimony. Last but not least, Susan and Piper are going to meet with Megan Corbett, a.k.a. Lois Beal, who is flying in today. Tommy is supposed to join them. Former police chief Sonny Foster has been subpoenaed, but they haven’t heard from him.

  Piper opens the door to her room. It has only one window, but it provides a lot of light. The white bedcover, light-cherry end tables and bureau, and beige-and-brown carpeting add to the room’s cheeriness. The real lightness to her mood, though, of course, is that she’s only hours away from winning freedom for an innocent young woman.

  She unpacks her clothes and lies down on her back, her hands behind her head on the thick pillows. She takes a deep breath and closes her eyes. The Dowd case has been a roller-coaster ride like no other, from the mother’s deathbed letter to Lois Beal’s gravesite unearthing of the murder weapon.

  All that remains is the hearing tomorrow. The current Lehigh County district attorney is fighting the petition for a new trial, but Susan believes he’s doing it for form’s sake rather than because he feels passionately about the case. Susan says the chances are excellent that Judge Iwicki will grant their petition.

  As for Susan . . . Originally Piper assumed that they’d drive to Allentown together, but Susan said she wanted to come up a little later, claiming she had a motion that had to get filed in the morning. The real reason, Piper suspects, is that Susan doesn’t want to talk about the Martin Brenner fiasco. Mick told Piper what happened in Susan’s condo and about Susan’s twisted history with Brenner. She was stunned that Susan—one of the strongest women she’s known—allowed herself to be victimized for so long by Brenner, especially since her supposed reason was her desperate desire not to be seen as a victim.

  Jesus, it’s crazy how people can be so . . . crazy. More and more, it seems the “normal” ones turn out to be screwed up the most.

  The thought causes her mind to skip to Darlene’s parents. A father so evil he’d abuse his own daughter. A mother so weak and selfish she’d allow her daughter to be abused, and then let her daughter take the rap for a murder the mother committed herself. That Cindy Dowd opened the escape hatch from her grave does not, in Piper’s mind, redeem her for sending Darlene to waste away in prison for fifteen years. Nor has she been able to find forgiveness for Lois Beal, who knew for years that Cindy was the real killer. With all the politically correct tripe the talking heads and politicians blare about the need for equality between the sexes, it’s still a man’s world. Men still get away with doing terrible things to women. Women have to protect each other, and yet those two women let down an innocent teen.

  She gets out of bed and walks to the window.

  “Well, it’s my turn now,” she says aloud, envisioning Darlene Dowd sitting in her jail cell. “And I won’t let you down.”

  Tommy stands in the back of the courtroom,
watching Mick and Pagano take turns questioning potential jurors. But his mind isn’t on the Nunzio case. He’s thinking about Darlene Dowd—about the suspicion that rose in his mind as he watched Lois Beal hesitate about which grave to dig. A suspicion confirmed when Ray Thorne called with the fingerprint results.

  He’s supposed to go to Allentown tonight to help Susan and Piper prepare Lois Beal for the hearing. Except . . . how can he do that without spilling the beans and wrecking everything for Piper?

  Christ, what a schmuck I’ve been to her these past couple years.

  And what about Darlene Dowd? She shouldn’t be in prison; she deserves to be free, just as she deserved to have a normal childhood, go to college, get married, and have kids.

  How can I fix this? he asks himself for the hundredth time. How can I make this right?

  Jimmy Nunzio watches the two lawyers parry with the jury panel, each of them doing his best to slip subliminal cues into their questions consistent with the goods they plan to sell to the jury during trial. Pagano’s questions seem designed to remind everyone how afraid they all are of the opioid crisis and resultant rise in the crime rate. He must use the phrase “organized crime” a dozen times. Mick’s questions highlight the constitutional principles often cited as the bedrock of freedom, saying things like, “presumed innocent” and “prosecutor’s burden” and “beyond a reasonable doubt.” They’re following the scripts used by all prosecutors and defense attorneys. McFarland’s spiel, though, includes some pointed questions no doubt suggested by Lauren Zito. Once a cute little girl from his neighborhood, she’s grown up into a beautiful, strong woman with a razor-sharp mind. A real asset to his trial team—more so than McFarland will ever know.

  Lauren is the one who explained to Nunzio years ago what really goes on during jury selection: “Any experienced trial attorney would tell you that ‘jury selection’ is a misnomer. Lawyers aren’t choosing jurors, they’re rejecting them. It’s really more like jury deselection.”

  Each attorney gets a certain number of “peremptory” strikes that they can use to boot someone for any reason at all, so long as it isn’t based on race, while the judge has the unlimited authority to remove a juror “for cause” if they’re convinced the person is strongly biased in some way.

  Nunzio sits facing the panel, his hands folded on the table, his face a blank slate, as ordered by McFarland. He’s bored by the process, though there are some amusing parts, like when one potential juror says she’s clairvoyant. Max Pagano struggles with how to deal with her, not wanting to insult the woman in front of others but needing to get the loon out of the courtroom. McFarland, faster on his feet than the prosecutor, pretends to take the woman seriously and asks her, “If you were chosen for the jury, could you promise to base your decision solely on the evidence available to all of the other jurors as well?” She says no, she can’t make that promise, and the commissioner banishes her.

  On and on it drags—Pagano asking questions, McFarland asking questions. One panelist after another is told to leave the courtroom and return to the jurors’ assembly room. Every now and then, he catches one of the panelists staring at him, trying to figure him out. They turn away as soon as they see he’s looking back at them. Except for one woman in the first row, who holds his gaze. She looks to be in her early forties and is attractive—wide-set eyes, long dark hair, and a shapely figure. She’s Italian, he can tell. He studies her as she does him, and he decides she could be an asset. He’ll make sure McFarland doesn’t give her the boot.

  It’s 8:00 p.m., and Mick is seated at the war-room conference table with Vaughn, Lauren Zito, and Rachel Nunzio, who insisted on being present to help review the jury-selection results thus far. As Mick and Vaughn predicted, picking a jury was proving to be a long process. The commissioner kept the pool past 5:00 p.m., and only five jurors were selected. Given the goal of twelve jurors and four alternates, that leaves eleven to go.

  While jury selection went on in the courtroom, Lauren Zito had her team research the remaining panelists on various databases on the internet, giving the Nunzio trial team considerably more information about the panelists than was provided on their official jury questionnaires. Photographs of each of the remaining candidates, along with a detailed history—including where they were born and raised, job history, current address, and political affiliations—are spread out on the table.

  Using this information, the trial team divides the remaining panelists into three piles: definitely, definitely not, and maybe. The only major argument involves Dianne Galante, the Italian American woman Nunzio noticed sitting in the front row. Galante is well educated and holds a high-level administrative position with the University of Pennsylvania. During questioning, she came across as highly intelligent, well spoken, and strong-willed. Lauren pressed Mick to strike her but interestingly was overruled by Nunzio, who insisted he pass on her. Since Pagano didn’t object, she made it onto the jury. But that hasn’t ended it for Zito.

  “I’m going to have my people keep looking into her,” Lauren says.

  “I think she’s good,” Rachel argues. “She’ll be an asset because of her heritage; she’ll identify with Jimmy and the rest of our family. She obviously identifies strongly as an Italian. Your team’s research shows she belongs to two Italian American organizations. She’ll be looking for a reason to acquit. If it’s a close call, she’ll come down on our side.”

  Lauren shakes her head. “It’s not that simple, Rachel. Her high position, education, and personal strength mean she’s going to be a leader on the jury. Her status as an Italian American—and Rachel, let’s be frank, she looks more like a mobster’s wife than you do—will give the other jurors another reason to follow her lead. Which means that if you’re wrong and she comes down against you, she’ll lead the rest of them straight to a guilty verdict.”

  Watching them argue, Mick believes he was right about the jury being Nunzio’s ace in the hole. It’s why he made Mick hire Lauren Zito and why Rachel is sitting in tonight as his proxy as they review the remaining panelists. As the evening progresses, the idea enters his mind that the Nunzios’ focus on the jurors may not end with jury selection. Given the data Lauren’s amassed on the remaining jurors, it would be a simple matter for Nunzio to have his henchmen approach the jurors or their families with threats, bribes, or both.

  He glances at Rachel Nunzio as she studies the portfolio on panelist Kenneth Kraugh, a violinist with the Philadelphia Orchestra. Kraugh is a young, small-framed man with a high forehead and a soft voice. Mick can imagine a seemingly chance meeting on the street between Kraugh and Johnny Giacobetti. Nunzio’s enforcer bumps into the violinist, apologizes loudly enough for anyone nearby to hear, then leans in and curdles the juror’s blood with a detailed description of how he’ll lose his fingers and never play again unless he votes for an acquittal.

  He’s pulled from the vision by Rachel’s dark eyes staring at him.

  “Penny for your thoughts?” she says.

  33

  MONDAY, JUNE 17–TUESDAY, JUNE 18

  It’s 10:00 p.m. Piper sits on the bed, enjoying an ice-cream sundae. The Holiday Inn has no room service, so she drove to Friendly’s to pick up the dessert, rewarding herself because the witness preparations have gone so well.

  Melvin Ott is ready to testify to Lois Beal’s telling Chief Foster about seeing Darlene, unbloodied, walking toward her house the morning of the killing, as well as to Foster’s threatening Lois away from court, the coercive nature of the confession wrung out of Darlene Dowd, and the poker game at which Lester was accused of cheating.

  Lance Newton will testify to digging up the hammer and the test results showing it carried Cindy Dowd’s fingerprints and Lester Dowd’s DNA.

  Lois Beal will testify to everything she shared with them in Georgia, including Cindy’s bringing the hammer to her and Cindy’s later admission that it was she who killed her husband.

  Finally, Darlene herself will testify that she wasn’t home the nig
ht her father was killed, and that the blood on her clothes was from tripping over him and slipping in the blood puddle on the kitchen floor.

  The only thing missing is Tommy. She’s called him half a dozen times, but has been put through to his voice mail. When she spoke to Mick earlier in the evening, he told her that Tommy was present for jury selection until just before 5:00. He didn’t show up for the meeting afterward and hasn’t called in. As Mick said, “Tommy is Tommy. Who knows what the hell he’s up to? He’ll call or show up just in time, as always.”

  “Come on, Tommy,” she says aloud. “Just in time” is coming fast.

  Tommy paces his room. He knows what he has to do, but he just doesn’t want to do it. “Fucking Lois,” he says aloud. He paces some more, checks his email, sits on the bed, and runs his hand through his hair. Then he glances down at the canvas bag holding the metal box with the blue-handled hammer inside.

  “To hell with it,” he says, getting off the bed and reaching for the bag. He leaves his room, walks to the end of the hall, and knocks on the door. It’s quiet on the other side; he expects she’s sleeping. He knocks again, harder this time. After a few moments, the door slowly opens until the security chain is taut. Lois Beal peeks through the opening.

  “It’s Tommy,” he says, seeing her trying to place his face. “I work with Piper and Susan.”

  “I already met with Piper and Susan. We went over everything.” He sees her clutching the top of her robe.

  “I know. But you and I have to talk, too.”

  “I wasn’t told anything about having to meet with you.”

  He hesitates, not sure how to broach the subject. Then he steps back, lays the bag on the floor, unzips it, and lifts out the metal box.

  She gasps and takes half a step back.

  “Like I said, we have to talk.”