When my meeting with Steven is over, an FBI agent, as promised, is waiting for me with a typed copy of my statement from last night for me to sign. I do so, and then make him wait while I have the court clerk make a Xerox of it for me.
Before the morning session begins, Richard informs me that he will be finishing his case today. That case is basically done, and the witnesses he calls will simply dot his I’s and cross his T’s.
His first witness is a prime example. A representative of the Metropolitan Transportation Authority named Helene Markowitz, she is merely there to testify that Steven’s car went through the Lincoln Tunnel at seven forty-five that evening, thirty minutes after he received the phone call from his father.
“How can you be so precise about the time?” Richard asks.
“He has an E-ZPass chip on his car, so that tolls are automatically paid by his credit card without his having to stop. It records the time he goes through the tollbooth.”
For some reason, her answer causes me to think of something I hadn’t registered before. I quickly write a note and slide the paper over to Kevin. It says, “How did Walter Timmerman get to the murder scene?”
Kevin looks confused by the question and writes back, “The killer drove him there.”
That is most likely true, especially since Walter Timmerman’s Lexus was destroyed at the house. But something bothers me about Kevin’s answer, something I can’t quite place and don’t have time to wonder about now.
Richard calls two more uneventful witnesses and then announces that the prosecution rests. I immediately request a meeting in chambers with Hatchet and Richard, so that I can present our request to have Corvallis come in and testify.
I lay out the entire situation for Hatchet, making my point that I need to be able to do the same for the jury. If I can demonstrate that Walter Timmerman was involved with very dangerous people, and in fact those people killed his friend and partner, Robinson, the jury would very likely find reasonable doubt as to Steven’s guilt.
“Mr. Wallace,” Hatchet says, “I assume you don’t agree?”
“We certainly do not, Your Honor. It is a classic fishing expedition.” Richard then goes on to give a response that is predictable and mostly correct. He points out that I have made no tangible offer of proof; instead I have presented a series of suppositions and theories. Even the one fact I can cite, Robinson’s murder and my tangential role in it, is not relevant to this case, since I can make no real connection between that murder and Timmerman’s.
“Your Honor,” I say, “Mr. Wallace would be correct if I were arguing to take the information I currently have before the jury. I agree that I am not ready to do that, and I am not asking you to allow it. What I am simply asking is that you direct the FBI to testify to these facts, and to detail how their own, separate investigation relates to this trial. Then, if the relevance is proven, I would call him before the jury.”
I take out the copy of my signed statement. “Here is a statement I gave to the FBI about last night’s events. I signed it, and as you certainly know, if I was untruthful in this statement then I have committed a felony. It includes the negotiations I had with the FBI leading up to my visit to the Robinson house last night. The operation was conducted under their supervision, and certainly should be enough to compel their testimony.”
Hatchet and Richard read the statement, which in typewritten form is six pages. When they are finished, Hatchet says, “Mr. Wallace?”
“Your Honor, this is an interesting story that changes nothing.”
“With respect,” I say, “it changes everything. And I would submit that your calling Agent Corvallis to court for a closed hearing presents absolutely no risk. If he testifies under oath that I’m delusional, then all you’ve done is waste a few minutes of the court’s time. But if I’m correct, then my client has a right for the jury to hear what he has to say.”
I expect Hatchet to take the matter under advisement, but instead he says, “I will order that Agent Corvallis appear before this court at the earliest possible time, hopefully tomorrow morning. At that point I will decide whether or not to compel his testimony.”
THE MOST IMPORTANT DECISION of any trial is getting close. That, of course, is whether to have the defendant testify on his own behalf. While it is a crucial decision, it is usually an easy one for a lawyer to make. I can’t remember the last time I wanted a client to testify in his own defense. Too many things can go wrong, even when the defendant is innocent.
But it is also the one decision that the client must absolutely make on his own, albeit with advice from his attorney. If he decides not to testify, the judge will go so far as to question him in open court as to whether he was presented with the option, and declined voluntarily.
Kevin and I arrange to meet with Steven in an anteroom. Before we can even talk about his possible testimony, I tell him of our success in getting Corvallis into court.
“Will he tell the truth?” Steven asks.
“He won’t lie. Whether we can get him to tell the truth is another matter. He will try not to say anything at all.”
I bring up the matter of Steven testifying, and like most clients, he wants to do so. This is that rare time that I am leaning in the same direction. He is really the only person who can testify about his actions the night of his father’s death. He can also talk about their relationship, and he comes off as likable and credible.
The other reason I am inclined to support his decision to testify is that the way this trial has gone, we need a Hail Mary pass. We have to do something to shake things up, or we are going to lose. Juries generally want to hear a defendant testify, and this might be the time to give them what they want.
Kevin tells Steven that he agrees as well, which is a surprise to me, since we haven’t talked about it. I can’t ever remember Kevin being in favor of a client testifying in his own behalf, and it’s a sign that he thinks the situation is as dire as I do.
“But we don’t have to decide this now,” I say. “If you take the stand, you’ll be the last one to do so, and a lot is going to happen before then.”
“Are we losing?” Steven asks.
“We haven’t had our turn at bat yet.”
“I had this fantasy that the prosecution was going to present their case, and it would be so weak the judge would just end the trial right there.”
“It’s called a motion to dismiss,” I say. “I’m going to make one tomorrow morning, but the judge will turn us down. We need to make our case.”
“And can we effectively do that?”
“I don’t know.”
He smiles, but it’s not exactly a happy smile. “I was hoping you’d tell me what I wanted to hear. You should learn to bullshit more, you know?”
“I know,” I say, “it’s one of my weaknesses.”
Kevin and I head home to finish preparations for our defense case. We need to go over every detail, even though we’ve been over the same ground many times before, so that we are completely prepared for any eventuality.
It’s basically an issue of confidence for me. If I feel completely sure of the subject, then I can more comfortably freewheel, and thus be more effective. If I am in any way unsure of the details, I have a tendency to get more conservative.
Conservative is not what we need now.
The focus of the evening is altered when the court clerk calls to say that Agent Corvallis will be in court tomorrow morning at nine. We now have to turn our full attention to that argument, since if we fail we have no real hope of getting anything about Walter’s work or Robinson’s murder before the jury. And without that, we are in deep trouble.
So we work until midnight, pausing only to have dinner with Laurie. She’s made my favorite, pasta amatriciana, and in the face of that, preparation will have to wait. I have my priorities.
I arrive at court at eight thirty in the morning, and I learn that Hatchet has summoned Richard and me into his chambers for a pre-hearing chat.
“I have been told by FBI attorneys that there are serious national security implications involved in what Agent Corvallis is doing. I have turned down their request to withdraw my order for him to appear, but I have agreed that the hearing this morning will be closed, and the transcript will be held under seal,” he says.
“That’s fine with me, Your Honor.” I say.
“I’m so relieved,” Hatchet says. “You know how I covet your approval. Mr. Wallace?”
“Obviously we believe that Agent Corvallis should not be compelled to testify at all, but since we have for the moment lost that argument, we have no problem with it being closed and the transcript kept under seal.”
When we get back into the courtroom, Agent Corvallis has already arrived with four FBI attorneys. He gives me a big smile and handshake when he sees me, then introduces me to the smiling attorneys. Everybody’s so happy; you’d never know they were there to try to bury Steven Timmerman.
Steven is brought in, since defendants have the right to be present for every aspect of their trial. Hatchet then enters and convenes the hearing, spending a few minutes setting the ground rules. I will question Agent Corvallis first, and Richard will follow.
I am in an unusual situation here: The truth is I know very little about the FBI’s investigation of Walter Timmerman. I have theories, many of which have been mostly confirmed, but I don’t know the meat and potatoes of it. Thus, I can wind up doing that which lawyers religiously try to avoid, asking questions I don’t know the answer to.
“Agent Corvallis, have you been leading an FBI investigation focused on Walter Timmerman?”
“Yes.”
“When did that investigation begin?”
“About six months ago,” he says.
“What motivated it?”
“Walter Timmerman was doing some work that was potentially significant to the national security of the United States.”
“What was the nature of that work?” I ask.
“I’m not at liberty to say.”
“Are you aware if he enlisted the help of his friend Charles Robinson in connection with that work?”
“Yes. He did.”
I ask Corvallis to confirm that I approached him with my suspicions about Timmerman and Robinson, and he acknowledges that I did.
“Did I tell you the kind of work I thought Walter Timmerman was doing?”
The FBI lawyer objects, in an effort to preempt me from mentioning what the actual work was. Hatchet sustains and instructs me not to do so, then lets Corvallis answer the question.
“Yes, you did. I did not indicate whether your theory was accurate or not.”
“But you know what he was doing in the last months of his life?” I ask.
“I do.”
I then take him through the events of the other night, starting with my being fitted for a wire, our planning of the confrontation, and then finding Robinson dead in his house. He completely confirms the truth of my narration.
“Do you believe that Charles Robinson’s death was related to my upcoming meeting with him?”
“I do.”
“And he was aware that my meeting related in some way to Walter Timmerman’s work?” I ask.
“Yes.”
“And Charles Robinson was killed by dangerous people?”
Corvallis smiles. “Most certainly.”
“And Walter Timmerman was involved with the same people?”
“Perhaps indirectly, but yes.”
It’s time to ask the key question. “Is it conceivable that those same people played a role in Walter Timmerman’s death?”
“No.”
Of all his possible answers, no is my least favorite. I sense a disaster looming, but I press on, mainly because I have no choice.
“It’s not conceivable?”
“That is correct, to the best of my knowledge.”
“Is it conceivable that different people murdered Walter Timmerman than murdered Charles Robinson, but that Timmerman was killed because of his work?”
“No, it is not conceivable,” he says.
I’m getting frustrated; I sincerely doubt that Corvallis would lie under oath, but his answers are hard to believe.
“Do you know who murdered Walter Timmerman?” It’s a dangerous question, but with the jury not present, I feel I can take the chance, especially since I know that Jimmy Childs committed the murder.
“I have no personal knowledge of it, though you have presented me with your account of it.”
“Then how can you be so sure it was not work-related?”
Corvallis looks over at his attorneys, and then speaks to Hatchet. “I would like to alert my attorneys to intervene if I start to say too much.”
“That’s fine, but not necessary. Attorneys are born with that instinct,” Hatchet says.
Corvallis nods and turns back to me. I can feel the bomb about to go off. “The bureau has devoted substantial resources to this investigation, in concert with other agencies,” he says. “We have people in place who have therefore accumulated significant information, though I can’t say how, or what much of that information is.”
He pauses, probably for effect. “But I can tell you with certainty that the people whom Walter Timmerman was dealing with, who murdered Charles Robinson, were not involved in Timmerman’s death. I can further say that it would have been totally counterproductive for them to have killed him; they were in fact extraordinarily upset when he died. I am close to certain that Walter Timmerman did not die as a result of his work.”
I’m finished; there is nothing left for me to ask, no other avenues to probe. Hatchet turns Corvallis over to Richard, who mercifully has no questions for him.
Hatchet also seems to understand that the only kind thing to do is to quickly put us out of our misery. After a brief preamble, he says, “The defense had requested Agent Corvallis’s testimony in the stated belief that it would implicate one or more other possible perpetrators, and would therefore be crucial testimony to present to the jury.
“Agent Corvallis has testified, under oath in these proceedings, that he is aware of no other possible perpetrators, and that the theory of the defense, to the best of his knowledge, is incorrect.
“It is therefore the ruling of this court that the testimony of Agent Corvallis will not be required nor permitted. Agent Corvallis, thank you for appearing here today.
“The defense will begin presenting its case tomorrow morning.”
KEVIN, LAURIE, AND I are all realists. It is one of the key reasons we work so well together. When things are going bad, we recognize it and confront it if we have to. And right now this case has gone world-class bad.
We were counting on Corvallis testifying; it was essentially our only way of getting our theory of the case before the jury. Now we know that we won’t have him, and we have to change our plan of attack. Unfortunately, we have nothing decent to change it to.
The only approach left to us is to attack the details of the prosecution’s case at the edges, to find minor inconsistencies and make them seem like major flaws. Jurors will want to look at the big picture, and we will be giving them nitpicks, because we have no other bullets in our gun.
Our case will open on the night of Walter Timmerman’s murder, and our plan tonight is to dissect it, moment by moment, and show holes in the prosecution’s case. We take out every document and piece of information that we have and spread it out on the dining room table, in case we need to refer to any of it.
“Okay, so let’s start at the beginning,” I say.
Kevin nods. “Good. Steven is at home in New York, and his father calls him and asks him to meet him in Paterson.”
Laurie, who has been reading the transcripts on a daily basis, nods and says, “And there’s testimony that he went through the toll-booth about half an hour later. He went to Mario’s, waiting to meet his father.”
“Wait a minute. Kevin, remember that note I passed you the other day? I asked how Walter got to
the murder scene.”
Kevin nods. “And I told you the killer brought him there.”
“Then where did he meet the killer?”
“What do you mean?” he asks.
“Well, he didn’t drive to where the killer was; the documents show his car was in the garage when the house was destroyed. He sure as hell didn’t take a bus to downtown Paterson. So how did the killer get to him? When and where did they meet that night?”
“Maybe he took a cab.”
“Why would he?” Laurie says. “He had a car. And if a cab picked him up a couple of hours before he was murdered, it likely would have come out already. The media coverage the day after the murder was substantial, I assume?”
“Very substantial,” I say.
“I admit it’s an interesting question,” Kevin says. “But what does it ultimately mean? We know that Jimmy Childs killed him, so what’s the difference how he got to him?”
“Because maybe he had help,” I say. “Maybe it’s a way to get Robinson back into the case. Let’s get the security guard logs at the house gate from that night. Maybe Robinson came there at the time in question and drove off with him.”
“We should be so lucky,” Kevin says, but promises to subpoena the records first thing in the morning.
Unfortunately, the morning comes way too quickly. I was hoping we could skip it entirely, along with the next few months. But that’s not how it works out, and before I know it Hatchet is taking his seat on the bench.
I make the obligatory yet pathetic motion to dismiss, and Hatchet immediately denies it. He tells me to call our first witness, and I call Jessica Santorini, a bartender at Mario’s.
After establishing that she was at the restaurant that night, I ask her if she remembers seeing Steven there.
She nods. “I do. He was sitting at the bar.”
“About how long was he sitting there?”
“I’m not sure of the exact time, but it was quite awhile. I remember because all he had was one or maybe two drinks, and I kept asking him if he wanted something else. He said no, and I think he said he was waiting for somebody.”
New Tricks Page 21