A Killer's Alibi (Philadelphia Legal)

by William L. Myers Jr.

  Mick’s voice is confident, but inside he knows the jurors would never find against the prosecution because of its failure to resolve the phone mystery, for one simple reason: Nunzio knows the identities of the people who placed and received the calls. It’s his burden—not in law, but in fact—to tell the jury if it helps exonerate him. Whether Nunzio will deign to explain the calls, including to his own lawyer, remains to be seen.

  “This leads us to the next question the prosecution must answer: premeditation. The prosecutor would have you send Mr. Nunzio to his death based upon the prosecutor’s assumption that Mr. Nunzio’s intent in going to the warehouse was to kill Antonio Valiante. Question: What, in fact, was Mr. Nunzio’s intent? Antonio Valiante was a dangerous organized-crime figure, and as both Mr. Pagano and I have told you, Mr. Nunzio is a father. Did Mr. Nunzio rush to the warehouse to harm Mr. Valiante, or did he race there to save his daughter? If, by the end of the case, the prosecutor hasn’t given you the answer to this question, he will have failed to establish premeditation.”

  He’s playing fast and loose here. Criminal premeditation—the intent to kill—can be formed in a matter of seconds, as the judge will instruct the jurors at the end of the trial. Mick wants to distract the jurors from that point from the outset—get them thinking that the key point at which to measure Nunzio’s intent was when he left his office to go to the warehouse, not once he was there.

  “The next question: If it really was Mr. Nunzio’s intent from the outset to kill Antonio Valiante, why did he not run into the warehouse with his gun blazing? The evidence will be that Mr. Nunzio was carrying a pistol, a Sig Sauer P938. Yet Valiante died from a knife wound. When the police forensic experts tested the gun, they found it hadn’t even been fired. Consistently, there was no gunshot residue on Mr. Nunzio’s hands or arms. The police will admit all of this to you on the stand.

  “Some more questions: Why the plasticuffs? Again, this is something the prosecution’s own witnesses will admit to you. At some point that night, Valiante had been bound with plastic zip ties. When the patrolmen arrived that night, the cuffs had been cut off. Why were they cut off? Why was Valiante cuffed in the first place? How does any of this reconcile with the idea that Mr. Nunzio planned to kill Valiante? Additional questions the prosecutor must answer before you can fairly convict Mr. Nunzio of premeditated murder.”

  As he’s speaking, he looks at each of the jurors in turn. They’re doing their best not to reveal their thoughts, but he expects he’s not convincing anyone of anything. And no wonder—he’s not offering them an alternative narrative, a story counter to Pagano’s highly believable tale of Mobster 1 executing Mobster 2. How could he? Nunzio has so far refused to give him the story.

  He steals a quick glance at Lauren Zito and realizes that she’s the key to salvaging the case. Surely, the Nunzios’ trusted jury expert can see that he’s not getting through to the jurors. After openings, he’ll ask her to convince Nunzio that their defense lawyer needs to know their endgame.

  He winds up his opening by hammering the same themes he touched on during jury selection: that all defendants are presumed innocent, and that it’s the prosecutor’s burden to prove a defendant guilty, not the defendant’s burden to prove his innocence. He thanks the jury and sits. He takes a breath, then looks past Nunzio to Vaughn, who nods unconvincingly. It was a weak opening, and they both know it.

  36

  FRIDAY, JUNE 21, CONTINUED

  When Mick finishes, Judge McCann calls a midmorning bathroom break and tells everyone she wants them back in fifteen minutes. “Sharp.”

  The deputies take Nunzio to the holding cell off the courtroom, and Mick waves Lauren Zito and Rachel Nunzio to cross the bar and join Vaughn and him at the defense table.

  “Your assessment of openings? The jury?” Mick asks Zito.

  “Pagano is a brute, and that’s how the jury sees him. You came off as a strident but sincere advocate. The jurors like you, and they don’t like Pagano. But they believe what he’s told them is the truth.”

  “Do you want to ask your shadow jurors what they saw?”

  “They saw the same thing I did.”

  He furrows his brow. Zito remained seated as the jurors left the courtroom; she didn’t go back to her team.

  Apparently reading his confusion, she smiles, reaches up to her right ear, and removes an earbud.

  “The shadow jurors slip notes to their handlers, and the handlers whisper to me.”

  He grimaces.

  “Like it or not,” she says, “the twenty-first century has found its way to the courtroom.”

  “Uh-huh. Is there something you’d like to say to Mrs. Nunzio?”

  Zito looks confused. “Like what?”

  “Like the reason the jurors are believing Pagano is that he’s the only one offering up a story as to what happened in the warehouse. Like it’s time the Nunzios armed me with the same power by sharing their narrative.”

  Rachel Nunzio merely offers him a sphinx’s smile. “When the time is right.”

  Vaughn steps forward. “That’s a nice saying, Mrs. Nunzio. Here’s another one, given to me by your husband in the Amtrak 174 case, when he was poised to kill my cousin: ‘Sometimes soon isn’t soon enough.’”

  Rachel’s smile widens. “You are a clever one. Tell me, are you still driving the Porsche? I’m the one who picked that out for you.”

  Mick turns to Zito. “Lauren, this is crazy. Please get through to them on this.”

  But the jury-whisperer ignores him. “Come on,” she tells Rachel. “Let’s powder our noses. We only have five minutes left.”

  Mick watches the two women leave the courtroom.

  “I can’t believe how they’re just laughing it all off,” Vaughn says.

  Mick nods. “Which tells me that I’m right: they have an ace in the hole. One or more of the jurors are in their pocket, or the Nunzios believe they are.”

  “You think Nunzio had his people approach them? Scare them?”

  “The idea has crossed my mind.”

  “What should we do?”

  “What can we do? Try the case, and hope that Nunzio’s cards don’t flip on him. If they do, the stink will attach as much to us as to him.”

  Many of the spectators know that Frances McCann is a ruthless timekeeper, so almost everyone is back in their seats before she resumes the bench. Mick hears a stirring in the courtroom behind him and turns around. His attention is immediately drawn to a tall, well-dressed figure moving confidently down the center aisle. It’s Emlin Fellner, the district attorney himself.

  “I was wondering when he was going to make his appearance,” Nunzio whispers to Mick.

  Ever the politician, Fellner nods and smiles to people he knows in the benches. Then he walks up to Max Pagano, leans over the bar, and shakes his hand before sitting down. The show is Fellner’s signal to the press that Pagano is “my guy,” meaning that when Pagano sends Nunzio to prison, the credit belongs to Fellner.

  The court crier announces the judge’s return to the bench. Everyone stands.

  After a few preliminaries, Frances McCann looks down to Pagano and says, “Call your first witness.”

  “The Commonwealth calls Matthew Arcangelo,” Pagano announces.

  Mick leans across Nunzio to Vaughn. “I don’t recognize the name.”

  Vaughn begins leafing through the prosecution’s witness list. “He’s the junior medical examiner who helped Ari Weintraub perform the autopsy.”

  Normally, a prosecutor would start his case with the arresting officers, then move to the crime-scene guys, followed by the lead detective, who would give his opinion about the crime. Finally, he’d put on the ME and rub the gruesome body in the jurors’ faces, get them good and sick at what the defendant’s done. Pagano has apparently decided to start with the gore, helping the jurors hate Nunzio from the outset.

  Mick takes his seat and watches Arcangelo pass through the bar and walk toward the witness stand. The pathologist
looks to be in his early thirties, of middling height, but with thick arms, showing Mick that he works out. He has dark hair, swarthy skin, and a friendly face. Something about him makes Mick uneasy, but he can’t put his finger on it.

  Pagano waits for the witness to be sworn in, then runs through his résumé. He has Arcangelo tell a quick story or two about his upbringing, and the young doctor’s easygoing manner endears him to the jury. Once that’s accomplished, Pagano asks him to relate the autopsy findings to the jury.

  Arcangelo turns to the jury box.

  “The postmortem examination was performed by the medical examiner, Dr. Weintraub, and I. The body was sixty-nine inches tall and weighed one hundred and eighty-five pounds. The decedent had dark hair and dark eyes.”

  Arcangelo discusses the weight and health of the internal organs, then raises a remote control that brings a photograph up on the large video screen Pagano has set up in the courtroom.

  The jurors—and everyone else in the courtroom—visibly recoil at the picture, which is a close-up of Antonio Valiante’s throat. Although the wound has been cleaned, it is still graphic, showing a gaping slash stretching from one side of the throat to the other. In pretrial motions, Mick objected to virtually all the autopsy and crime-scene photos of Tony Valiante’s wounds. As expected, the court shot him down.

  “What we’re seeing,” Arcangelo explains, “is a deep wound extending laterally the entire width of the throat. It severed the decedent’s left sternomastoid muscle and partially severed the same muscle on the right. Also dissected completely were the left internal and external jugular veins and the left common carotid artery, as well as the same structures on the right.”

  “Can you show us where exactly on the victim’s throat these wounds were?” Pagano asks.

  Arcangelo raises his remote again, and the screen fills with a photograph taken from a little farther back. It shows not just the throat, but Antonio Valiante’s whole neck and head and face. The head is tilted back, the jaw relaxed, the eyes open.

  Studying the picture, Mick realizes what it is about the pathologist that made him uneasy: He looks just like Valiante.

  “Your Honor, I’d like a sidebar,” he says.

  Once he, Pagano, and the court reporter are assembled on the side of the bench farthest from the jury, he tells the judge, “This is outrageous. The prosecutor’s witness looks like he could be the decedent’s twin.”

  Frances McCann turns and glances first at the video screen, then at the witness box.

  “Dr. Arcangelo, please turn off the video while we’re at sidebar,” she says. Then, to Pagano: “Defense counsel has a point. Couldn’t you have called Dr. Weintraub?”

  “Your Honor, I was going to, but his calendar would not allow it.”

  She leans across the bench. “Dr. Weintraub’s unavailability has nothing to do with the fact that his replacement is the decedent’s doppelganger?”

  “I don’t think they look at all alike,” Pagano says. “The doctor is taller, and—”

  “Stop,” she says. Then to Mick, “Mr. McFarland, do you have a motion to make?”

  “I move for a mistrial,” he says, his tone making it obvious that he doesn’t really want one.

  “Your record is protected for appeal. But I’m going to deny the motion. Mr. Pagano, you may proceed. And don’t drag it out. Everyone’s lunch is already ruined.”

  Mick turns away from the bench and catches Pagano smiling at him.

  Once everyone is back in position, Pagano has the pathologist pull up the picture again. Mick catches several of the jurors looking from the photo to the pathologist, then back. There is no doubt in Mick’s mind that the body the jurors see on the proverbial slab isn’t that of a vicious wiseguy, but of the friendly doctor. He wonders whether Pagano knew about Arcangelo’s resemblance to Valiante and somehow arranged to have him assist Weintraub, or whether it was merely dumb luck.

  Pagano continues his direct examination.

  “Doctor, were these wounds consistent with a quick slash or thrust of a knife?”

  “Oh, no. That type of assault would have resulted in more superficial lacerations.”

  “So, what type of cutting would be consistent with these wounds?”

  “These very deep and symmetrical wounds would have been caused by a slower, more methodical motion.”

  “Can you be more specific?”

  Arcangelo pauses. “The attacker wasn’t just lashing out or swinging from a distance, he was sawing at the decedent’s throat, from very close.”

  Mick hears gasps and sees several of the jurors cover their mouths. One man, juror four, places his hand to his own throat.

  Pagano slowly reaches to a pitcher on his table and pours himself a glass of water. Mick knows he’s doing it to give the jurors plenty of time to consider the vision he’s conjured up. When Pagano continues his questioning, he gives them something even more graphic to think about.

  “Dr. Arcangelo, what is your opinion as to what caused the death of Antonio Valiante?”

  “He died from massive exsanguination—blood loss—from the wound in his neck.”

  “What would have been the rate of the blood loss—how long would it have taken the victim to die?”

  “Not long at all. The dissection of the carotid artery, in combination with a rapid heart rate and elevated blood pressure—which you’d expect given that the victim would have been terrified—would have resulted in arterial jetting. The blood would have literally been spraying out of the decedent.”

  Mick is on his feet before Arcangelo is even finished. “Objection.”

  “Sustained. Doctor, we can do without the commentary. You were asked how long it would have taken for death, nothing more.”

  “I’m sorry, Your Honor.”

  Pagano turns to the defense table, away from the court and jury, and winks at Mick. Then he turns back to the witness.

  “Doctor, let’s switch gears. Were there any wounds on the body other than those on the throat?”

  Arcangelo uses his remote to pull up three photos, side by side, showing Valiante’s ankles and each of his wrists.

  “Yes. There were lacerations and bruising on both ankles and wrists.”

  Pagano lifts a clear bag, asks to approach the witness, and hands it to the pathologist.

  “Doctor, I’m handing you Commonwealth Exhibit 17-A. This bag contains two zip ties. Have you seen these before?”

  “Yes. I met with you yesterday evening and looked at them.”

  “Do you have an opinion whether the wounds you observed on the decedent’s hands and wrists were consistent with having been restrained by zip ties?”

  “Yes, and with trying to break them.”

  “Please explain.”

  “The lacerations—cuts—were very deep, and the bruising was extensive. The decedent was fighting to break free. Fighting hard.”

  Pagano turns toward the jury and looks from one to the next, nodding and making sure they’re seeing what he wants them to see: Tony Valiante, on his knees, arms and legs bound behind him as Jimmy Nunzio stands over him, slowly sawing open his throat.

  “A few more questions, Dr. Arcangelo,” Pagano says, lifting the evidence bag containing the knife and walking it to the witness stand.

  “Commonwealth Exhibit One—have you had a chance to see it before now?”

  “Yes. You showed it to me last night, at your office.”

  “Could the decedent’s throat wounds have been caused by this knife?”

  “Yes. The length and thickness of the blade, and the serrated edge are consistent with the decedent’s wounds.”

  “How does the serrated edge play into it?”

  Arcangelo displays a close-up of the throat wounds on the video screen.

  “The lacerations to the throat involved a lot of shredding, which I would expect, given the serrated edge. A knife with a straight blade would have produced a . . . a cleaner cut.”

  When it’s Mick’s turn to q
uestion Arcangelo, he sees Lauren Zito subtly signaling him. He stands and leans over the bar.

  “Get in and out of cross as quickly as possible,” she says. “Make your points and sit down.”

  He casts her a hard look. He was planning to do exactly that. He steps toward the witness stand.

  “Doctor, you testified the decedent was cuffed at the wrists and ankles. Was the wound to the throat inflicted before the decedent was cuffed, while he was cuffed, or after the cuffs had been removed?”

  “I don’t know.”

  “So it’s possible that the decedent was free of restraint when the wound to the throat was inflicted?”

  “Yes.”

  “You testified that, at some point, the decedent was on his knees. Was he on his knees when the wound to the throat was inflicted?”

  “I can’t tell you that, either.”

  “So it’s possible that the wound to the throat was inflicted while the decedent was on his feet.”

  “I guess so.”

  “Doctor, there’s nothing from the autopsy that discounts the possibility that, when the wounds to the throat were inflicted, the decedent was on his feet and unbound, isn’t that true?”

  “That is true.”

  “And nothing from the autopsy to disprove that while the decedent was on his feet, unbound, he was fighting with whoever inflicted the throat wound.”

  “Well—”

  “Objection.” Pagano is on his feet. “Defense counsel is asking the witness to speculate.”

  “I’ll sustain the objection, and I instruct the jury to disregard the last question.”

  Mick doesn’t care whether the doctor answers the question or not. The jury has gotten the message.

  “Doctor, isn’t it true that the wounds you’ve shown the jury don’t tell you who inflicted them?”

  “That’s true.”

  “They could have been inflicted by anyone with the knife.”

  “It would’ve taken some strength—”

  “The strength of a giant mob enforcer?”

  “Objection!” Pagano strides out from behind the prosecution table to stand beside Mick. “There’s no evidence whatsoever that the wounds were inflicted by anyone other than Mr. Nunzio himself. Defense counsel’s question is based on rank speculation.”