A Killer's Alibi (Philadelphia Legal)

by William L. Myers Jr.

  The final problem in selecting a jury was that on Wednesday and Thursday morning, Team Nunzio appeared in court with a motion to remove two or more of the already-chosen jurors, based on information gathered by Lauren Zito and her team. Pagano hadn’t put up much of a fight when Mick requested the removal of Dianne Galante. But he fought hard against the other disqualifications, demanding the commissioner call each of the challenged jurors to the stand for detailed questioning. The result was that four jurors were removed and the process delayed.

  No one was more frustrated than Mick himself. He’d fought with Zito over three of the jurors she targeted for removal. He believed she was seeing bias that wasn’t there. But Zito was insistent. Rachel Nunzio, present every evening for the posttrial meeting as her husband’s proxy, demanded that he abide by Zito’s recommendations.

  The ultimate result, he feels, is a jury no more or less fair than the one that would have been seated without all the ballyhoo. The twelve jurors and four alternates come from every area of the city. Some are professionals, some blue-collar workers, some students, some retirees. There are seven blacks, five whites, three Asians, and one Native American. The person sitting in the first seat of the first row, the presumptive foreman—Aaron Burnett—is a well-dressed, well-spoken African American. He’s the CEO of a company that owns sixty-five Applebee’s restaurants in Pennsylvania, New Jersey, Delaware, and Maryland. Freshly divorced from his wife, Burnett recently moved with his teenage daughter to the Ritz-Carlton condominiums, directly across from City Hall. Mick is terrified of him. Even if he hadn’t ended up in the foreman’s seat, Burnett would be a leader on the jury, a powerful voice that, if speaking against Nunzio, will carry the others along. Mick would have stricken Burnett, but Zito was adamant he not do so. She wouldn’t explain her reasoning in the courtroom, but she did in the office afterward.

  “Burnett is an alpha male,” she told Mick after the rest of the staff had cleared out of the conference room. “He’ll identify with Jimmy. He’s also a father—”

  “So am I! And I think a father who slays his daughter’s lover right in front of her is beyond redemption.”

  “Really? Why did he do it, Mick?”

  He stared at her, and then it hit him. “You know,” he said. “You know what Nunzio’s narrative is going to be.”

  “We all have our roles to play in this, Mick. We’ve been given the information we need to play them and no more.”

  “This is insane. I’m Nunzio’s attorney. I have to know where the story is headed! I’m the one directing the show!”

  She threw her head back and laughed. “You? You’re just an actor reading his lines. We both are.”

  “So that’s how it is? Nunzio is the Wizard of Oz, and the rest of us are just dancing down the Yellow Brick Road?” He was so angry he was pounding the table with his fists.

  Lauren didn’t rise to meet his ire. Instead, she lowered her voice, softened her eyes. “Oh, Mick,” she said, “you have no idea what’s going on here.” She studied him, asked him to give her a minute, and left the conference room. A few minutes later, she returned and sat.

  “All right, you want something to work with? Here it is. The theme of your opening, of your defense, is that the prosecution has no idea what happened in the warehouse leading up to Antonio Valiante’s death, and no idea why Jimmy allegedly killed him.”

  He stared at her. “So this is what it’s come to—my jury consultant is telling me what the case is about?”

  She opened her palms.

  “But it’s not you telling me at all, is it? You went out into the hall to talk to Rachel, to get her permission.”

  Again, she didn’t answer.

  He sat back. “You want me to imply that the prosecution has it all wrong. But that only works if we come through with what really happened, and why. And only if the real scenario either clears Jimmy outright or provides a legal justification for the killing.”

  He waited.

  Finally, she spoke. “When the time is right.”

  Thinking back on their discussion now, he is only a little less furious than he was at the time. He looks past Nunzio, who is seated to his right, to Vaughn. This morning he told Vaughn about his exchange with Lauren. Vaughn, an experienced trial attorney, feels as uncomfortable as Mick does going into a trial with only the vaguest idea of what the defense will be. He catches Vaughn’s eye and follows it to Zito, seated just behind them in the first row. To the jury consultant’s left is Rachel Nunzio, dressed conservatively in an off-white pantsuit with a white blouse and a string of small pearls. Gone are her five-carat engagement ring and diamond earrings from N D Reiff Company.

  Behind them all sits a packed courtroom. The press is present in full force, along with a cabal of curious criminal-defense attorneys, mob-o-philes, and if the rumors are true, some Hollywood types scouting the trial as a possible basis for a future film. Mick also knows that three teams of shadow jurors are present—Lauren Zito’s trial barometers, handpicked to hold demographic mirrors to the real jurors as the trial proceeds.

  Mick casts a sidelong glance at Pagano. The DA’s normal practice for a case of this significance would be to man the prosecution table with at least a second chair. But Pagano sits alone, sending the message that he doesn’t need any help.

  Shortly before the judge took the bench, Pagano approached the defense table and told Mick and Nunzio that he’d subpoenaed Christina for trial. “My detectives served the subpoenas at both of your houses,” he told the mob boss.

  “You’re not getting Christina,” said Nunzio.

  Pagano smiled. “That’s all I needed to know.”

  When he walked away, Mick whispered to Nunzio that he shouldn’t have said that. “Now he knows he can paint the picture of what happened that night without fear of being contradicted by your daughter.”

  Nunzio didn’t answer, only stared straight ahead.

  Judge McCann finishes her initial instructions to the jury, then turns her attention to the prosecution table. “Mr. Pagano,” she says.

  Pagano rises and buttons his jacket. But instead of walking toward the jury, the bald, bowlegged bulldog walks away from them and positions himself directly in front of the defense table. Pagano stares at the jury for a long moment, then extends his left arm and points at Nunzio. “James F. X. Nunzio is a vicious, cold-blooded murderer.”

  Mick shoots to his feet. “Objection!”

  “Counsel to the bench, right now.”

  Once they are in position, Frances McCann leans down, her jaw clenched. “No,” she says quietly. “Not in my courtroom. This is going to be a trial, Mr. Pagano. Not a carnival. Do you hear me?”

  Pagano grunts.

  “Not good enough. I said, Do you hear me?”

  “Yes.”

  McCann glares at Pagano. Then she sits back. “Proceed.”

  Mick returns to the defense table. He knows why Pagano started that way. He wanted to send a message to the jury: I’m not afraid of this guy, and you shouldn’t be, either. Pagano sent the same message by packing the courtroom with uniformed police. Mick has never seen a larger law enforcement presence in a single courtroom. He wonders whether Pagano hasn’t overplayed his hand, inadvertently sending the opposite message—Nunzio is so dangerous that it takes an army to guard against him.

  Pagano positions himself in front of the jury box.

  “This is a case about sending a message,” Pagano begins. “You see, what you and I think of as the city of Philadelphia, the defendant thinks of as his personal territory. The mob has it all mapped out, this whole country of ours, and Philly belongs to Jimmy Nunzio.”

  Mick stands. “Objection. Speculation.”

  The court sustains the objection.

  “The Commonwealth will present a witness, an FBI agent by the name of Ryan Wood, who will lay it all out for you—how the mob has divided the country into different turfs. And how, for the past few years, Frank Valiante of the New York–based Savonna crime fami
ly, through his son Antonio, has been making inroads into Philadelphia and South Jersey, which have historically been run by the Giansante crime family, of which James Nunzio is a powerful underboss.”

  Mick glances at Nunzio. He’d told the mobster to keep his face free of expression, an easy task for Nunzio, who usually carries himself with features set in stone, except, of course, when he is seized by one of his legendary paroxysms of rage.

  “What Agent Wood will tell you about the Valiantes’ inroads into our city will be corroborated by the fact that Antonio Valiante’s murder took place in a warehouse located on undeveloped grounds once part of the Naval Yard. A warehouse filled from floor to ceiling with heroin and fentanyl destined for our streets, key drugs in the opioid crisis claiming so many young lives.”

  Pagano’s opening is laced with all the right buzzwords: our city, our streets, opioid crisis. He couldn’t incite the Philadelphia jury any more skillfully than if he flashed pictures of Nunzio urinating on the Rocky statue.

  “A message had to be sent, not just to the Valiantes, but to anyone who might think about horning in on Jimmy Nunzio’s territory. But, of course, geography wasn’t the only thing the Valiantes were horning in on.”

  Mick steels himself. Here it comes.

  Pagano walks partway back to the defense table and half turns toward it. “Mr. Nunzio isn’t just a crime lord, he’s a father. His daughter’s name is Christina Nunzio, laughingly referred to in our city as the Queen of Clubs—”

  Mick clamps his right hand on Nunzio’s forearm, but he is too late. The mobster is already up out of his chair. Pagano notices it and waits for Nunzio to sit back down, making sure the jury also catches Nunzio’s emotional reaction to the derisive characterization of his daughter.

  “So, you see, there were two messages Jimmy Nunzio had to send that night.”

  “Objection.” Mick is on his feet again. “This is all wild speculation. And counsel’s tone is more appropriate to closing argument than to opening statements.”

  “Sustained,” the judge rules. “Mr. Pagano, these are opening statements. The place for facts, not conjecture. Statements, not speeches.”

  Pagano glares at the court. Then he forces a smile and turns to the jury.

  “Fact: at exactly 9:22:15 p.m. on Wednesday, April tenth, of this year, James F. X. Nunzio received a call on his store-bought burner phone from another anonymous burner phone. Fact: a little more than two minutes later, at 9:25 p.m., he was seen racing from his office at the Naval Yard toward the parking lot, accompanied by his bodyguard, John Giacobetti. Fact: from exactly 9:58:22 to 10:02:28, defendant James Nunzio placed a call from his burner phone to another burner phone.

  “Fact: at 10:05 p.m., two Philadelphia police officers, Jake Trumbull and Louis Piccone, having seen a car parked outside what was supposed to be an abandoned warehouse, approached the warehouse and heard a woman crying inside.”

  Mick’s heart pounds as he listens to Pagano run down his list. Some trial attorneys persuade jurors by weaving seamless narratives around unspoken themes laced with argument inserted so cleverly that the jurors don’t even know they are being persuaded of something. What Pagano is doing is the opposite: He’s slapping everyone—judge, jurors, and Nunzio—in the face over and over again with the brutal realities of the case. He’s playing the courtroom thug, the perfect counterpoint to Jimmy Nutzo.

  It really was a brilliant move for Emlin Fellner to assign Pagano to this case.

  “Fact,” Pagano continues: “Officers Trumbull and Piccone entered the building, where they found Christina Nunzio on the floor, cradling the body of Antonio Valiante. Fact: the detectives also found plasticuffs that had been used to bind Valiante’s hands and feet. Fact: Antonio Valiante’s throat had been slashed by a knife. He’d bled to death through the gaping wound.”

  Pagano pauses and walks up to the jury box.

  “Fact: not fifteen feet away from Valiante’s bloody body, the police found James Nunzio hiding in the shadows, holding the knife. Fact: Christina Nunzio was so traumatized by what she’d seen that she had a complete mental breakdown. A breakdown so severe she had to be hospitalized and even now is not mentally competent to attend these proceedings and testify.”

  Pagano turns toward the bench, looks up at Judge McCann. “Facts, not conjecture. Statements, not a speech.”

  Pagano turns back to the jury and stands without speaking, giving them time for it all to sink in. Time to envision Jimmy Nunzio skulking in the shadows after slitting Tony Valiante’s throat while his daughter wept. Time to look over at Nunzio and hate him.

  Eventually, Pagano starts up again. He does his best to convince the jury that Nunzio went to the warehouse that night with premeditation—the specific intent to kill Antonio Valiante, justifying the death penalty. He downplays the many holes in the case, including why Nunzio killed Valiante with a knife rather than with the pistol he was carrying, what happened to Johnny Giacobetti, the identity of the person who called Nunzio’s cell phone and that of the person Nunzio called from the warehouse. He characterizes these as “nothing more than typical examples of unanswered questions that exist in any homicide case.”

  Finally, he concludes: “There were at least three eyewitnesses to what went down in the warehouse that night. One of them is dead. One is mentally unable to talk to the police.” He turns to Nunzio. “The other refused to talk to the police.”

  Mick sees Pagano glance at the defense table, mirth in his eyes. Pagano knows from Nunzio himself that Christina isn’t going to appear as a witness. And there’s no way Nunzio himself could take the stand. The prosecutor would crucify him, not just about the crime at hand but about his nefarious history. The message the prosecutor’s sending the jury is clear: Don’t buy a pig in a poke. If the defense suggests there was a reason for what happened, make them prove it; if they can’t, then there’s no possible justification for what Nunzio did.

  Pagano makes a few closing remarks, then takes his seat.

  Judge McCann looks down from the bench. “Mr. McFarland.”

  He rises. “Thank you, Your Honor.” He turns to his left, toward the jurors, and places his right hand on Jimmy Nunzio’s shoulder. “I am proud today to be representing Mr. James Nunzio. Mr. Nunzio is a husband. His wife, Rachel, is sitting right behind us.”

  Rachel smiles at the jurors. It’s a shy smile—demure, spiced with sadness and fear. They rehearsed it four times at the office this morning.

  “Mr. Nunzio is also a father. You know about his daughter, Christina. You may also know he had a son, Alexander, who was killed in the tragic crash last year of Amtrak Train 174.”

  Mick pats Nunzio’s shoulder. Then, the humanizing-of-the-client phase of his opening concluded, he walks to the jury box, stands before the jurors.

  “Good morning, ladies and gentlemen.”

  He pauses, takes the time to look each juror in the eye.

  “Things are not always as they appear. Anyone who reaches the age of adulthood knows this. And it is certainly true in this case. The prosecutor has described only the aftermath of what happened in the warehouse the night Antonio Valiante died. He said nothing about what led up to it, or why. That’s because the prosecutor only knows half the story.”

  Pagano is on his feet.

  “Objection. And that’s because the defendant wouldn’t talk to us!”

  Judge McCann glares at Pagano. “No speaking objections, counselor. If you have an objection, simply say the word. I’ll call counsel to the bench and hear you out.”

  Pagano glowers, takes his seat.

  Mick continues. “There’s a very good reason Mr. Nunzio wouldn’t talk to the prosecutor, and I expect everyone in this town can guess what it is. There is only one place James Nunzio could ever hope to get a fair shake, and it’s not at the Roundhouse. It’s right here, in this courtroom. Rather than trusting his story to law enforcement, in whose eyes he’s been guilty for years, Mr. Nunzio chose to share his truth with you, a panel of hi
s peers who swore to listen to the evidence—all of the evidence—and reach a decision based on that evidence, rather than on preconceptions and prejudice.

  “While we’re on the subject of preconceptions and prejudice, let’s talk about the victim, Antonio Valiante. Mr. Valiante was as well known to law enforcement as Mr. Nunzio. He was the reputed lieutenant and eldest son of New York crime boss Frank Valiante, and together they were making a huge play to become the largest sellers of illegal opioids in our city. But unlike those who would have you condemn Mr. Nunzio based on his alleged background, I’m not going to suggest that you acquit Mr. Nunzio just because every parent and member of law enforcement is happy that Antonio Valiante is off our streets.”

  “Objection,” Pagano says. “It sounds like that’s exactly what he’s doing.”

  Of course it is.

  Judge McCann looks down from the bench. “Mr. McFarland, you know better. Stay within the lines. First warning, and last.”

  Apologizing to the court, he steals a quick glance at the jurors. A few have their arms crossed, but others, he can tell, accepted his point. What happened in the warehouse was something between mobsters. Who cares if one wiseguy offs another? The world’s a better place for it.

  Foreman Aaron Burnett, however, is unreadable.

  “Now, let’s turn to what the evidence in this case will be. Or, more accurately, what it won’t be. Question: Who placed the call to Mr. Nunzio’s cell phone, and why? The prosecutor implies that it was someone tipping Mr. Nunzio off to the whereabouts of Antonio Valiante. The reason the prosecutor implies this without saying it is that there is no evidence to support it. As to the call placed from Mr. Nunzio’s cell phone, the prosecutor doesn’t even venture an answer. The court has provided each of you with a yellow legal pad on which to make notes. I suggest you write the words phone calls and place a question mark next to them. If, by the end of the case, the prosecutor hasn’t given you the information you need to cross off those critical questions, he will have failed to meet his burden of proof.”