Mistaken Identity

by Lisa Scottoline

  “Sustained.” Judge Guthrie peered over his glasses. “Mr. Hilliard, the Court understands that you are trying to clarify the record, but please use care in how you phrase your questions.”

  “Yes, Your Honor.” Hilliard squared off against the witness from the podium. “Mr. Munoz, just so the record is clear, would you identify the woman you saw running by your window?”

  “Identify? What’s that mean?”

  “Point her out in the courtroom,” Hilliard snapped, but Munoz was already squinting at Bennie and Connolly. His thick arm rose and he pointed a stubby index finger at the defense table, but his aim wavered.

  “I saw one of them, I don’t know which one,” he said. “They look like twins.”

  Bennie sat bolt upright in her seat, realizing what would happen the split-second before it did. Munoz couldn’t make the ID of Connolly, not with them dressed and looking so much alike.

  “Mr. Munoz,” Hilliard said hastily, “you’re pointing at the defendant and not her lawyer, correct?”

  “Objection!” Bennie said, rising to her feet. “That’s not what the witness did or said, Your Honor. Mr. Munoz testified he could not identify the defendant as the woman he saw running that night.”

  “Your Honor!” Hilliard fairly shouted from the podium. “For God’s sake, the witness pointed right at the defendant.”

  Bennie approached the bench. “Your Honor, Mr. Munoz pointed between me and my client. He said he couldn’t identify the defendant.”

  Crack! Crack! Judge Guthrie banged the gavel, his brow creased with concern. “Order, please. Counsel, please, and in the gallery. This Court has previously admonished you, you must maintain order!” Judge Guthrie swiveled his high-backed leather chair to face the witness. “Mr. Munoz, permit me to clarify the record. Did you identify, by that I mean point to, the defendant?”

  “I don’t know what the defendant is, I pointed at those ladies. They look like each other. The one I saw had red hair, anyway. Neither of them have red.”

  “Move to strike as unresponsive and prejudicial,” Hilliard barked, and Bennie couldn’t restrain herself.

  “Your Honor, there’s no grounds to strike the answer! The witness’s testimony is clear and he just confirmed it. Mr. Hilliard just doesn’t like the answer he got.”

  Munoz pumped his head. “She’s right! He don’t like the answer, so he tells me I’m wrong. I know what I’m sayin’, Judge. I know what I saw. I saw a redhead.”

  “Your Honor, please,” Hilliard said, scrambling for his crutches and shoving them under his elbows. “Let me rewind the tape a moment. Mr. Munoz, do you remember being shown a photo array by the police and picking out the defendant’s picture?”

  “Objection, Your Honor!” Bennie said, but Judge Guthrie waved her into silence.

  “Overruled.”

  Munoz looked confused. “Photo what?”

  Hilliard plucked an exhibit from the podium, hustled with it to the stand, and set it down in front of the witness. “Let the record show that I am supplying Mr. Munoz with Commonwealth Exhibit 21, a photo array. Now, Mr. Munoz, have you seen this set of photos before?”

  “Yeah.”

  “And when you were shown it, didn’t you pick out the left middle picture as the woman who you saw running past your window?”

  “So what?” Munoz tossed the photo array to the side, and Bennie couldn’t have done it better herself. “You asked me who is the lady I saw out my window. You said answer yes or no. You said point to the lady in the courtroom. I can’t do that and swear to God. You don’t like my answer, that’s too damn—”

  “Your Honor,” Hilliard interrupted, “may we continue this discussion in chambers?”

  “Objection, Your Honor.” Bennie stood as if rooted to the spot. “The prosecutor interrupted the witness’s answer. Mr. Munoz was in the middle of completing his answer.”

  Judge Guthrie slammed the gavel to its pedestal. Crack! “Silence! In chambers, now, Ms. Rosato! Mr. Deputy, dismiss the jury! Mr. Hilliard, the Commonwealth’s outstanding motion to strike is granted. This colloquy is not for the record.”

  “Place my running objection on the record, please,” Bennie told the court reporter, a young woman who had lifted her hands from the keyboard. “I want the record to show that Mr. Munoz’s testimony is being silenced by prosecutor Dorsey Hilliard and the Honorable Harrison Guthrie.”

  “Ms. Rosato!” Judge Guthrie shouted, whirling around in his leather chair. “Don’t you dare give orders to my court reporter! Court is in recess! Counsel, in chambers! Deputy, move!”

  75

  Judge Guthrie stood behind his desk chair, his black robe unhooked at the top and his starchy white shirt exposed. His lined hands clutched the top of his leather chair, and Bennie wasn’t surprised that his fingertips made deep indentations in its buttery burgundy hide. The trial had veered out of his control and any guilty verdict he’d guaranteed hung in jeopardy. He didn’t look at Bennie as he spoke and he could barely keep his tone civil.

  “Ms. Rosato,” he said, “I was shocked by your conduct this morning. The accusations, the innuendo, in open court!” The judge glanced at the court reporter. “But my personal feelings are of no consequence at this juncture. We must settle a legal issue of grave importance. Please state your position, Mr. Hilliard.”

  “Your Honor, Ms. Rosato is intentionally confusing and manipulating the jury. She came to court today dressed identically to her client, in a gray suit with gray shoes, and she looks exactly like her client. Her scheme has succeeded in confusing a vital fact witness. Ms. Rosato cannot continue as defense counsel, Your Honor. The Commonwealth is requesting she be removed.”

  Bennie almost exploded. “There’s no grounds for—”

  “Quiet, Ms. Rosato!” Judge Guthrie ordered.

  Hilliard edged forward on his seat. “Ms. Rosato’s conduct has been outrageous and unethical. She should be replaced by one of her associates. There would be no prejudice to the defendant, because Ms. Rosato’s associates have been in the courtroom every day.”

  Judge Guthrie faced Bennie, his expression cold. “Ms. Rosato, what do you have to say for yourself?”

  “Judge, I did not plan to dress like my client today. I had no idea what my client would wear. I look like my client, that’s true, but it’s unprecedented to remove me as trial counsel merely for my physical appearance. There’s no case law that holds that a client on trial for her life may not retain her lawyer of choice because that lawyer looks like her.”

  Hilliard’s smooth pate snapped around. “There’s no precedent because it’s never happened. How many times you think a twin represents her twin, in a murder trial?”

  “Excuse me.” Bennie talked over him, directly to Judge Guthrie. “In addition, if the Court recalls, I did attempt to withdraw my appearance in this matter after my mother’s passing, partly because of my difficulty in representing Ms. Connolly, and the Court denied my motion.”

  Judge Guthrie stiffened. “This Court did not, and could not, have anticipated that you would attempt to so boldly exploit the situation.”

  “I didn’t do that, Your Honor. The courtroom ID was requested by the prosecutor and the testimony was given by Mr. Munoz, the Commonwealth’s own witness. I merely acted to protect the record and the witness’s testimony, and was under a legal and ethical duty to make a mistaken identity argument at that point. The record is clear that Mr. Munoz could not make a positive ID of my client in court. The jury is entitled to weigh that testimony, as any other, and we should all be back in court right now, starting on my cross.”

  “What?” Hilliard was so frustrated he banged his crutches into the soft rug. “After that stunt you just pulled? You should be held in contempt!”

  “There’s no basis for a contempt citation,” Bennie shot back. “I haven’t violated a judge’s ruling.”

  Judge Guthrie held up a cautionary finger. “Not so fast, Ms. Rosato.” He paused and sighed. “The Court finds itself between a
rock and a hard place, counsel. The question is where we go from here. My law clerks tell me that Ms. Rosato may stay on as counsel regardless of the physical similarity between her and her client. The cases suggest, and they are scant indeed, that if the Court were to sua sponte, or on the Commonwealth’s oral motion, ask her to withdraw in these circumstances, at this point, it could constitute reversible error and create a colorable issue for appeal.”

  Hilliard addressed the judge. “But going forward with Ms. Rosato prejudices the Commonwealth. We can’t do redirect on Munoz and we can’t put up the other neighbors to say they saw Connolly running from the scene, because they’ll be confused by Ms. Rosato’s appearance. It eliminates my afternoon witnesses.”

  Bennie edged forward. “Your Honor, if his witnesses can’t make the ID, they can’t make the ID. If his people can say only that they saw a woman who looks a lot like me running by, then that’s not proof of identity beyond a reasonable doubt.”

  “Save your closing for the jury,” Hilliard snapped, but Bennie was speaking for the record.

  “Your Honor, the prosecution already has Mrs. Lambertsen’s ID. The rest of the witnesses are cumulative, and there’s no prejudice to the Commonwealth.”

  “They were corroborative witnesses!” Hilliard shouted. “Don’t tell me how to try my case!”

  Judge Guthrie walked around to the front of his chair and sat down slowly, his eyes avoiding both lawyers. “Mr. Prosecutor, I understand your frustration, but there are no other options at this point. We find ourselves in a quandary. The only alternative is a mistrial, and the Court doubts the Commonwealth will request that.”

  “Absolutely not,” Hilliard said. “The Commonwealth can’t take the chance on double jeopardy attaching. Then we couldn’t retry Connolly.”

  Judge Guthrie nodded slowly, his gaze straying from both lawyers to the window. “Then we must go forward, after lunch. Court resumes, at one-thirty.”

  “Thank you, Your Honor,” Hilliard said, almost sarcastically, hoisting himself to his feet, and Bennie followed him to the door, without a word to Judge Guthrie. The judge’s mood mirrored Hilliard’s. They were both trapped and hated her for it. It gave Bennie no satisfaction. She hadn’t acted to confuse Munoz, Connolly had, and Bennie no longer wanted to cheat to win. Worse, the victory she’d gained was only temporary, and the forces behind the conspiracy would redouble their efforts.

  Having a tiger by the tail wasn’t all it was cracked up to be, especially in a murder case.

  76

  Lou glanced at the sky through the windshield of his Honda. The sun struggled through the thick gray clouds that blanketed the red-brick skyline in this part of town. At least it wasn’t raining; he’d worn his good loafers again. He was parked catty-corner to the parking lot in back of the Eleventh, waiting for Citrone to report back. So far he’d had more luck waiting for the sun to come out. The girl at the front desk told him Citrone was expected around ten in the morning, but that was two hours ago.

  Lou drained his coffee cup and bided his time, watching the uniforms come and go. No sign of Citrone or Vega. He went inside the precinct house and checked, but the girl kept saying Citrone should be coming in soon. Lou tried calling him at home from a pay phone on the corner, but Citrone’s phone was unlisted. There were two other Citrones in the book and Lou called both. One never heard of Joe Citrone and the other no speaka de English. Nobody bothered to learn the language anymore. Even the immigrants were better in the old days.

  Lou considered it, watching the uniforms and looking for Citrone’s patrol car. Number 98, the girl said it was. America was full of people who didn’t want to be American. Lou’s parents never felt that way. They were proud of being German Jews, but they came to America because they wanted to become Americans. They didn’t want Lou and his sisters to speak Yiddish like the other Jewish kids, or God forbid, like Russian Jews. They were looking to the future, not the past.

  Lou checked the clock again. 12:18. Anybody else woulda been antsy, but not Lou. Careful police work, step-by-step, would pay off. Sometimes you just had to wait. Not everybody had the patience for it, but he did. It wasn’t always a good thing. It kept him in a bad marriage for way too long. Like a cup of coffee, it just turned cold, and nobody knew where or when.

  Lou’s stomach growled. It was lunchtime. Another patrol car pulled into the last space left in the lot. He squinted to read the number. 32. A single uniform got out of the car and started examining the side door, like he’d caught a dent there. Lou scanned the lot. More cars would be coming in now, checking in around lunch.

  Another car pulled into the lot, and Lou looked for its number. 10. Son of a bitch! The car parked sideways behind the row in front, blocking them in, and two uniforms got out, talking. They walked over to the cop looking at the dented door and started talking to him, standing around the car. It looked like they were razzing him about the dent. Lou looked at the clock. 12:32. When he looked up, patrol car 98 was turning into the lot. At the wheel was Joe Citrone, with Vega beside him.

  Hot damn! Lou waited until Citrone pulled up and parked sideways next to the last patrol car. After Citrone had cut the engine, Lou got out of the Honda. He crossed the street, keeping an eye on Citrone. Citrone had stopped at the threesome gathered around the dent, and Lou hustled onto the lot and made his way between the parked patrol cars. Vega saw Lou coming before Citrone did, and Lou caught Vega warning Citrone by touching his elbow.

  “Joe,” Lou called out. “Joe Citrone.”

  The tall cop didn’t respond, just stayed cool as Lou approached.

  “Remember me? I’m Lou Jacobs, from yesterday.”

  “No.”

  “We met on the steps, you don’t remember?”

  “No,” Citrone said with a poker face, and Lou laughed, taken aback.

  “Come on, sure you do. We met. I was with Ed here.” Lou looked at Ed Vega, who was shifting his feet as he stood in front of the other cops. “Hey, kid, tell him.”

  “I don’t know you, pal,” Vega said coldly, and Lou’s mouth went dry. They had gotten to Carlos’s kid.

  “You kiddin’ me, Ed? We went to Debbie’s, you don’t remember?”

  “I don’t know what you’re talking about.” Vega shook his head and his eyes turned hard. “You must have me mixed up with some other guy.” The three cops behind Vega looked Lou up and down, then backed off like he had a disease.

  “Come on, Ed.” Lou considered pressing him, but didn’t want to get the kid in dutch with Citrone. If Vega ended up dead, Lou would never forgive himself. He turned to Citrone. “Look, Citrone. Stop dickin’ around. We both know you knew Lenihan. You’re senior in the same district, for Chrissake. You want to talk to me about it in private or you want to do it in public?”

  “I’m not talking to you at all.” Citrone turned his back and walked away, as did Vega. They passed through the group of cops to the back door of the station house.

  “Citrone!” Lou called out after him, on impulse. “Where’s that half a mil? You got it stashed somewhere safe?”

  Citrone didn’t stop moving, though Lou thought he saw Vega freeze, then move on. The other three cops looked shocked, which was just what Lou wanted. Get them all asking questions. Talking. Whispering. More shit got traded in the locker room than the New York Stock Exchange. Lou felt suddenly inspired.

  “Citrone!” he shouted again. “You were in business with Lenihan and we all know it. You, Lenihan, and God knows who else, making a fortune, pushing drugs. You sent Lenihan to kill Rosato, Citrone. You’re worse than the scum you bring in, Citrone!”

  Citrone and Vega disappeared inside the station house, but Lou’s audience wasn’t Citrone anymore. It was the other cops in the district and there were more of them pulling up by the minute. One by one, they got out of their cars and listened. “You’re made, Citrone! Your cover is blown, baby!”

  The three cops stood rooted to the spot, and Lou couldn’t tell from their expressions whether they were c
rooked or clean. The clean ones would agree with him. They would be tired of the shit Citrone was pulling, disgracing them all, for dough. The clean cops were the only weapon Lou had, and he had to reach them before more people got killed. So much for slow and steady police work; somebody had to blow the lid off these crooks. Who better than him, Lou Jacobs from Leidy Street?

  “You’re goin’ down, Citrone!” Lou bellowed, making a liver-spotted megaphone of his hands. “You and every single crook in this house! Because you’re dirty, Citrone! You’re dirty as they come! You ruin it for all of us! You give good cops a bad name! You’re a disgrace to the Eleventh, you sack of shit!”

  Lou’s words echoed in the chill air. Every cop standing around heard them. Cops on the second floor of the precinct house gathered at the windows.

  “I served in the Fourth, where crooks like you didn’t exist, Citrone! Crooks like you weren’t tolerated! Any cop in this house, any cop here who won’t tolerate this shit, should call me, Lou Jacobs! I’m in the book, in town!” Lou had to catch his breath. “You hear that, Citrone? You hear me? I’m gonna take you down! I’VE HAD ALL I CAN STANDS AND I CAN’T STANDS NO MORE!”

  With that last shout, Lou stopped and looked around. The parking lot was stone silent. Cops stood like statues between the cars. One stared, stricken, but a relieved smile spread across the face of another. Lou figured it wouldn’t be long before he got a call from one of them. Or from Internal Affairs. Or from Citrone himself. Whatever it would be, Lou would be ready for it. He turned on his best loafers and walked back to his Honda like a much taller man.

  I yam what I yam.

  77

  “The prosecution calls Shetrell Harting to the stand,” Dorsey Hilliard announced to the waiting courtroom, and Connolly emitted a low moan.

  “Here comes trouble,” she said under her breath.

  “What?” Bennie whispered, vaguely remembering the name buried in the Commonwealth’s lengthy witness list, disclosed before trial. There’d been so many witnesses, Bennie hadn’t had time to run them all down and she figured Harting wasn’t important since she hadn’t testified for the Commonwealth at the prelim. Now Bennie worried she’d called it wrong. “Who’s she?”