A Killer's Alibi (Philadelphia Legal)

by William L. Myers Jr.

  The judge calls counsel to the bench. When they are in position, she addresses Mick.

  “Mr. McFarland, do you have any evidence that the decedent was killed by Mr. Giacobetti? That is who you were referring to, isn’t it?”

  “I don’t have any evidence as to who actually inflicted the fatal wounds, and neither does the prosecution. That’s the point I’m trying to make, and it’s a fair one.”

  The judge takes a minute. “I’m going to sustain the objection. And, Mr. McFarland, I’m instructing you not to ask questions for which there will be no evidence on the record.”

  “Yes, Your Honor,” he says, wondering whether Nunzio is planning on throwing Johnny G. under the bus. If that turns out to be the case, the last series of questions will mesh perfectly with the Nunzios’ endgame.

  He walks back to counsel table as the judge tells the jury to disregard the last question. When she’s done ruling, he addresses the bench.

  “I have nothing further on cross, Your Honor.”

  “Redirect, Mr. Pagano?”

  “No, Your Honor.”

  The court dismisses Arcangelo and tells Pagano to call his next witness.

  “The Commonwealth calls Special Agent Ryan Wood of the Federal Bureau of Investigation.”

  Mick watches Wood take the stand. He’s a tough-looking man in his midfifties with iron-gray hair and a pockmarked face.

  Pagano leads the agent through his background, establishing Wood as an expert on organized crime. It quickly becomes clear to Mick that Wood is a “push-button expert,” the type of witness with so much experience testifying that an attorney can simply push the button—ask an open-ended question—and let the witness run with it. Pagano does precisely that, and Wood expounds for twenty minutes on the history of organized crime in America, zeroing in on the rivalry between the Savonna and Giansante crime families and the bitter enmity between Jimmy Nunzio and Frank Valiante. Wood identifies both of them as top-tier underbosses in their respective families. Wood devotes the last five minutes of his speech to Nunzio’s “ownership” of the Philadelphia and South Jersey territories and Valiante’s invasion of those regions.

  “That Valiante would set up a large drug-storage warehouse on the Naval Yard, just a mile from Nunzio’s personal office, would have been a blatant affront to Mr. Nunzio,” Wood says.

  “You’re referring to the warehouse where Antonio Valiante hooked up with Mr. Nunzio’s daughter?” Pagano asks.

  “Yes, I am.”

  Pagano doesn’t ask whether Valiante’s relationship with Nunzio’s daughter would have been an even larger affront than the warehouse; everyone in the courtroom already gets that.

  Pagano and Wood hit the ball back and forth a few more times; then the prosecutor walks back to his table and, with a smug look, tells the court he has no more questions on direct.

  Judge McCann tells Mick he’s up to bat, and he rises and walks toward the witness stand.

  “So the Nunzios and the Valiantes were competitors?”

  “More like blood enemies.”

  “Blood enemies. I like that. Did someone tell you to use that phrase?”

  Wood glances at Pagano, and Mick sees the jury catch it.

  “The Nunzios and the Valiantes aren’t the only houses on the block, though, are they?” asks Mick.

  “I don’t understand.”

  “There are three other large organized-crime families besides the Giansantes and the Savonnas, and other underbosses working for them. And, of course, there’s also the Russian mob, the Mexican cartels, and the Dominicans, right?”

  “Okay.”

  “It would be to all of their benefit for Valiante or Nunzio, or both, to end up dead, wouldn’t it?”

  “Objection,” Pagano announces. “Calls for speculation.”

  “Overruled. You presented Special Agent Wood as an expert on all things organized crime.”

  Wood looks up at the judge, then back at Mick, shifting in his seat.

  “I suppose.”

  “Did one of the rival mob families set the whole thing up? Or the Russians? Did they make the call to Nunzio, to make sure he and Valiante ended up in the same place at the same time? Hoping that one or both would end up on ice?”

  “How could I know that?”

  “You can’t, can you?”

  “No.”

  Mick walks back to the counsel table, takes a drink of water.

  “Did you bother to investigate whether the other mob families were involved, or the Russians, or the Mexican cartels?”

  “I didn’t investigate anything. This wasn’t a federal case. I was just brought in for background on the territorial divisions among the five families.”

  “Brought in by the DA?”

  “Yes.”

  “Well, when Mr. Pagano brought you in to give the jury its history lesson, did he ask the FBI to get involved in the case?”

  Wood shifts in his seat again. “Well, no. There’s a jurisdictional issue.”

  “You mean the Philly police and the DA’s office ‘owned’ the case and wanted to prosecute it by themselves, not let you have any of it?”

  “Well . . .”

  “The FBI’s failure to get involved here was a ‘turf’ thing, like with the Nunzios and Valiantes?”

  Wood’s face turns red. Pagano is on his feet objecting. Mick turns away from the witness and smiles at the jury. Some smile back at him. Foreman Aaron Burnett is one of them.

  Mick withdraws the question and tells the judge he is finished with the witness.

  She calls to Pagano to do his redirect, but he says he has none. This surprises Mick. There were a couple of bits of his cross that he would have smoothed over if he were Pagano. And Pagano is the type to always want the last word.

  Judge McCann glances at the clock on the rear wall.

  “It’s 12:30. We will take our lunch break now. I want everyone back in the courtroom at 1:45.”

  The reporters are the first to flee, wanting to get back to their offices and post the morning’s developments to the online versions of their newspapers and television networks. The rest of the crowd takes its time, knowing the elevators will be jammed anyway. The deputies approach Nunzio to take him back to his holding cell. He winks at Mick, pats him on the shoulder.

  “You’re doing a good job,” he says.

  “All I’m doing is blowing smoke and hoping the jury will inhale it.”

  “Isn’t that what reasonable doubt is all about?”

  He shakes his head and watches the deputies take Nunzio out of the courtroom. Vaughn says he’ll fetch Mick a hot dog and Pepsi and bring them back to the courtroom. Mick sits down to prep for the afternoon’s lineup of witnesses. Once Vaughn leaves, Lauren Zito walks through the gate to the defense table. Rachel Nunzio stays back and waits.

  Zito leans into Mick and speaks quietly. “That thing you did with Giacobetti and the knife—it got some interesting reactions with both our shadow jurors and the real jurors. See if you can develop that story line a little more in your cross-exams. We’ll see how it plays.”

  He knows she’s right about the Giacobetti narrative, and he’s already decided to move forward with it. There are problems with that scenario, of course. Like, if Giacobetti were the killer, why did Nunzio have blood all over him? And why wasn’t Johnny G. in the warehouse when the police arrived? He has to come up with answers to these and other questions to make the Giacobetti narrative fly with the jury.

  “Mick, I’m not done talking,” Zito says behind his back.

  “Well, I’m done listening,” he says over his shoulder.

  He hears her huff and walk away.

  This really is getting to be too much. Jury consultants telling me what roads to lead the jury down. My client sitting on the story that he’ll ultimately demand I peddle to the jurors, giving me no chance to evaluate it for weaknesses.

  Mick knows there’s nothing reasonable about what’s going on here. And there will be no doubt in anyone
’s mind, ever, that Jimmy Nunzio killed Tony Valiante.

  37

  FRIDAY, JUNE 21, CONTINUED

  Judge McCann retakes the bench at exactly 1:45 and tells Pagano to call his next witness. “The Commonwealth calls Rodger Carey.”

  Mick watches the man take the stand. He’s short and wiry, and his blue security guard’s uniform looks two sizes too big. Carey looks nervously around the courtroom as the bailiff administers the oath.

  Pagano quickly establishes that Carey works as a second-shift security guard at the building next to the one in which Nunzio keeps his office, and that he was on duty the night of Antonio Valiante’s murder. Carey testifies that he saw Nunzio running from his office building that night, at 9:25. He’s sure of the time because he thought it odd to see James Nunzio running, so he made sure to glance at the clock. The whole direct examination takes just ten minutes. No doubt a deliberate choice by Pagano, based on Carey’s nervousness.

  When Pagano finishes, Mick begins his cross. He has only one point to make. He doesn’t even bother standing in order to make it.

  “Did you tell the police that you saw Mr. Nunzio running from the building?”

  “Yes, I told the detective the same thing I just said here.”

  “But you told the detective there was someone running with Mr. Nunzio, didn’t you?”

  Carey glances at Nunzio, then out into the courtroom. “Yeah, the giant. Everyone knows who he is.”

  “State his name, please.”

  Carey mumbles the name. It’s obvious to Mick that he’s afraid.

  “Louder, please.”

  Carey glances at the spectators’ section. “Giacobetti.”

  “John Giacobetti?”

  “Yes.”

  “Also known as Johnny G.?”

  “Yes.”

  “He was running with Mr. Nunzio? Heading toward the parking lot?”

  “Uh, yes.”

  “Why didn’t you bring this up on direct examination?”

  Mick already knows why: because Pagano told him not to. Carey glances at Pagano, broadcasting that very fact to the jury. Mick wonders why Pagano didn’t bring it out on direct that Giacobetti was with Nunzio. His choice not to do so—and getting caught at it—only serves to emphasize the point, something that Pagano had to have foreseen. It’s not like Pagano to make such a rookie mistake. Mick decides that Pagano’s rushing the testimony wasn’t only because of his nervous witness. Something else is going on.

  The witness hedges, but Mick doesn’t push him. His point has been made. Johnny Giacobetti is now in the case.

  He tells the judge he’s finished cross-examination, and Pagano declines the chance to redirect.

  “We call Officer Jake Trumbull,” Pagano says, summoning his next witness to the stand. Trumbull is in his twenties and just finishing up his first year as a patrolman. He has blond hair, blue eyes, and a friendly, clean-shaven face. The traditional all-American-boy look.

  Mick sits back as Pagano begins his questioning. It’s obvious to Mick that the young officer has little experience testifying. Pagano gives him space to work out his jitters, having the patrolman begin by telling the jury where he’s from—Northeast Philly, where all the cops live—and describing his first year on the force. Once Trumbull’s comfortable, Pagano turns to the meat and potatoes.

  “Officer Trumbull, please tell the jury what you were doing on the night of April tenth, around 10:00 p.m.”

  “I was with my partner, Lou Piccone, in our patrol car. We were in a part of the Naval Yard that hasn’t been developed yet. We were on Admiral Peary Way, and we had just passed that big airplane hangar—at least I think that’s what the building is—and I saw there was a car parked outside this other building that was supposed to be vacant. I thought, What’s going on here? and we turned onto the access road that led up to the building.”

  Trumbull describes pulling up, looking over the Escalade. “Then we noticed that the door to the building was smashed in. The doorframe was bent, and the door was splintered along the left side. Lou—Officer Piccone—said it looked like someone kicked the . . . kicked it in. There was light coming from inside the building, and we heard a woman crying.

  “Officer Piccone took point and pushed the door open. I was right behind him, and we both had our weapons pulled.”

  “When you entered the building, what’s the first thing that caught your attention?”

  “It was a weird setup. The whole back of the building was filled with shelves stacked with plastic bags of white powder. The front part, though, was set up like an apartment. There was furniture and a kitchen and . . .”

  The officer pauses in midsentence. Mick guesses that Pagano is sending him a signal—something trial attorneys do when a witness gets off track.

  “But the first thing I noticed”—Trumbull corrects course—“was the woman. She was sitting on the carpet and was, like, rocking this dead guy. I mean, he turned out to be dead. She was crying and saying, ‘Why, Daddy, why?’ and ‘I loved him.’ I moved toward her, and out of the corner of my eye, I saw a guy. He was standing in the shadows with a knife in his hands. a knife in his hands. And I yelled to him to drop the knife. Officer Piccone saw him then, too, and shouted for him to drop the knife, kick it away, and put his hands behind his head.”

  “What did you and your partner do next?”

  “Officer Piccone covered me while I holstered my weapon and went up to the guy, put his arms behind his back, and cuffed him. He had a gun tucked into the back of his pants, and I relieved him of it.”

  “What did you do with the weapon?”

  “Since the perp was secured and the gun no longer posed a threat, I simply laid it on the ground so it could be retrieved and examined by CSU.”

  “Did Officer Piccone say anything to you at that point?”

  “He told me to watch out for the blood, because the perp was covered in it. I mean, he was soaked.”

  “What happened next?”

  “After the perp was cuffed, Officer Piccone came up to him and recognized who it was. I didn’t know until then.”

  “Is the man you found holding the knife and covered in blood in the courtroom today?”

  “Yes, he’s right there,” Piccone answers, pointing.

  Pagano turns to the judge. “Let the record reflect that the witness has identified the defendant, James Nunzio.”

  Pagano has Trumbull describe walking Nunzio out to the patrol car as Piccone called it in to dispatch, asking for a CSU team and detectives and the medical examiner’s office. Pagano then shows him the knife in the plastic bag, and Trumbull says it looks like the one Nunzio was holding.

  “What about the woman? What happened with her?”

  “She was a mess. Couldn’t stop crying. We had to pry her from the body, lift her up. Some more squad cars had pulled up by then, and we were going to put her in one of them, but she collapsed on the ground as soon as we got her outside. We called for an ambulance, and I sat with her until it arrived. By then, she was just sitting on the ground, all spaced out. She’d stopped crying and I tried to talk to her, but I don’t think she even heard me, she was so far away . . . mentally, I mean.”

  Pagano walks up to the witness stand and hands the patrolman a photograph. He asks if it depicts the woman in the warehouse. Trumbull says it does, and Pagano asks that the record reflect that the witness identified a photograph of Christina Nunzio.

  “What, ultimately, was done with Mr. Nunzio?”

  “The detectives arrived, Tredesco and his partner, and they took Nunzio from the patrol car and put him in their car and drove him away.”

  Pagano pauses to pour himself some water.

  “Did you see anyone in the warehouse other than the defendant and Ms. Nunzio?”

  “No.”

  “Did you see anyone holding a knife other than the defendant?”

  “No.”

  “Thank you, Officer Trumbull. Nothing further, Your Honor.”

  “M
r. McFarland,” the judge says. “Your witness.”

  In the month before trial, Mick had filed a pro forma motion asking the court to exclude all the evidence found inside the warehouse and dismiss the case on the grounds that there had been no probable cause. It was a no-chance motion, and the court denied it, as Mick had expected. For purposes of appeal, he has to revisit the issue at trial, and he does so now.

  “Officer Trumbull, please explain to me why you felt you had probable cause to enter private property and drive up to the warehouse.”

  “There was a car parked outside the building.”

  “Have you never seen that before? A car parked outside a building?”

  The question garners a few chuckles, but Trumbull ignores them.

  “Not that building. It was supposed to be abandoned. I mean, we pass by there every night, and I never saw a car parked there, or lights on inside.”

  Mick knows why there would never appear to be lights inside; the factory windows had been painted black. As for the absence of obvious vehicles, the Valiantes would always park behind the building. That’s where Antonio Valiante’s Porsche was found. There was also a Chevy van backed up to a loading dock that ran into the back of the building.

  Switching gears to rattle the young officer, Mick asks, “You say Mr. Nunzio had a gun?”

  “Yes, tucked into the back of his pants.”

  Mick walks to the prosecution table and picks up a pistol with an evidence tag tied to the trigger guard.

  “Is this the gun?”

  “Looks like it.”

  “A Sig Sauer P938 Nitron?”

  “I don’t know the model.”

  “Didn’t that seem strange to you? Mr. Nunzio had a gun, but the decedent was killed with a knife?”

  “Well, he had the knife, too.”

  “But didn’t that strike you as odd? Why kill someone with a knife if you have a gun?”

  Trumbull shrugs, opens his palms. “I don’t know. I mean, I don’t run the mob. You’d have to ask him,” he adds, nodding to Nunzio.