The Plea, page 29
part #2 of Eddie Flynn Series
“We disagree. That’s why we’re here, Your Honor. That’s why we have preliminary hearings, so that the defendant can challenge weak and insubstantial evidence…”
“I know the basis of criminal procedure, Mr. Flynn. I don’t need a lecture from you,” he said. Already his palette had changed to a sun-ripened red.
“The prosecution will call their first witness.”
With a thin bundle of papers in his hand, Zader got up from the prosecution table and handed the papers to the clerk.
“Your Honor, might I be permitted to make a short opening statement, to frame the evidence and assist the court?”
“By all means, Mr. Zader.”
“Thank you, Your Honor. This will be a short but thorough presentation of the evidence preserved to date in respect to this murder. The state firmly believes that the evidence establishes a strong, circumstantial, and forensically sound case against the defendant, Mr. David Child.”
Zader spoke slowly, never taking his eyes from the judge’s pen as it skittered across the pages of his notebook. Rollins wrote down every word as best he could. Zader knew this and moderated the speed of his delivery to make sure the judge got it all down in his notes. It also meant that the reporters, and whichever paralegal he’d brought from his department, could get a word-for-word note of his speech. He stood with his feet wide apart, his hands lightly pressed together so that he could gesture naturally as he spoke. Zader was a seasoned litigator, and he knew exactly how to portray his own confidence and authority in court.
“Your Honor, we shall call witnesses to prove that probable cause exists here in abundance. This case will show that David Child was alone with the victim when she was murdered. No one else was present, and it is impossible for anyone other than the defendant to have perpetrated this crime. Two witnesses will establish this evidence. Mr. Gershbaum, who heard the shots, and the building’s security officer, Mr. Richard Forest, who discovered the body of the victim.
“The crime scene investigator, Rudy Noble, will speak to the cause of death and reveal the violence inflicted upon the victim as one that can only be described as a crime of passion. A lover’s murder.
“Then, in relation to the defendant’s capture, Mr. Woodrow will testify that he had a car accident, which was his fault, where his vehicle hit the defendant’s two-million-dollar Bugatti Veyron. Mr. Woodrow saw a weapon in that supercar. He called the police, and Officer Phil Jones retrieved that same weapon, a small pistol, from the footwell of the defendant’s car.
“Your Honor, we have recently received ballistics evidence that proves the weapon found in the defendant’s car is indeed the murder weapon. Mr. Peebles, our ballistics expert, will testify that the markings on the rounds that were retrieved from the victim match the weapon found in the defendant’s possession minutes after the crime was committed. We are reserving our right to submit this expert report without calling Mr. Peebles.”
The DA had learned his lesson from the Porter fiasco. This evidence would go before the judge without giving me a shot at cross-examining Peebles. Rollins would accept this evidence verbatim; the gun in David’s car was the murder weapon, and I couldn’t challenge a word of that. There was one thing that nagged at me about Peebles’s report: He couldn’t find a serial number on the murder weapon, even using their metallurgic retrieval technology. Basically, every gun in America has a manufacturer’s serial number; if that number is filed away, experts can still bathe the weapon in a form of acid that allows them to trace, on a microscopic level, the imprints made when the gun was stamped with the number. Peebles said that even after attempting this method, no serial number had been retrieved.
“Finally,” continued Zader, “Detective Morgan will testify regarding the CCTV images from the defendant’s apartment, which confirm beyond any doubt that he is the killer.
“Unless there is anything else, the people call their first—”
Rollins turned his attention to me with a puzzled expression on his face.
“Mr. Flynn, I would ask you to consider, once again, in light of the prosecution’s opening statement, whether your client wishes to waive this hearing. This court’s time is precious. My time is precious.”
David’s leg bounced up and down under the table, the anxiety pumping through his system like caffeine. I looked at Cooch. He was reading the morning paper; he hadn’t listened to a word the DA had said. Zader looked like a winner. I became conscious that I was wearing the same suit, shirt, and tie I’d worn yesterday, I still hadn’t shaved, my nerves were shot to all hell, my wife was about to be charged with federal offenses, and I’d slept in my suit.
All of these things ran through my mind as I said, “Your Honor, we are proceeding with this hearing.”
Judge Rollins sighed, shook his head. A sea of mumbling erupted from the gallery, and Rollins let the noise pass without comment. He appeared to be too pissed at me to notice.
“I’m not impressed, Mr. Flynn. Surely this case has to go before a jury,” said Rollins.
I had two choices: ignore the asshole and press on with the hearing, or send Rollins a message and risk alienating David further. The safe option was to ignore the remark and get the first witness on the stand.
But I was all about risk. If it paid off, it gave me a way to handle Rollins.
“Your Honor, may I approach the bench?”
“No, you may not. I don’t see any need for a sidebar. This is a public hearing. If you have something to say, then say it.”
I’d known he wouldn’t grant me a sidebar. He wasn’t interested in anything I had to say. Fair enough, I thought.
“Very well, Your Honor. The defense would like to submit a motion for your recusal.”
It was Zader’s turn to chuckle with surprise.
Rollins placed his pen on his desk, folded his arms, and seemed to rise up a little in his seat.
“On what grounds do you seek my recusal, Counsel?”
“For bias, Your Honor. My client can’t get a fair hearing from you. You’ve listened to Mr. Zader, and it’s clear from your remarks that you’ve already made up your mind in this case. You’re biased in favor of the prosecution.”
“In my office, right now,” said Rollins.
As I got up, I felt my phone vibrate. I let Rollins turn his back before I checked my phone. It was a text message from Kennedy.
I’VE GOT SOME INTERESTING READING. I’LL BE THERE SOON.
CHAPTER SEVENTY-SIX
“I have never been so insulted in my life,” said Rollins as he paced up and down behind his desk. “I should hold you for contempt,” he said.
Zader shook his head. “I can understand how upset you must be, Your Honor, but wouldn’t that be a little extreme? It might also throw fuel on Mr. Flynn’s argument.”
I took my hands from my pockets and studied Zader. He was on to me. I had to be a lot more careful. This was a dangerous opponent.
Tapping his index finger on the desk, Rollins fought to hold on to his temper, his collar straining at the bloated veins in his neck.
“How dare you make such an accusation in my courtroom. This is about respect, Flynn…” said Rollins. He’d dropped the formal address. “You will withdraw this scurrilous accusation right now, in open court, and you will apologize to me personally. If you do that, I will consider whether I need to send a letter of complaint to the Bar Association. Do you understand me?”
“I understand, perfectly. Which judge do you propose to replace you?”
“Excuse me?”
“Well, obviously, if you’re going to complain about me to the Bar Association, you can’t continue to hear my client’s case until that complaint is adjudicated. You’ll have to recuse yourself. So who is your replacement?”
He caught his tongue just in time. I could tell Rollins was thinking he’d underestimated me. He wasn’t the first to do that, not by a long shot.
“I cannot believe you have the audacity to stand there—”
“Your Honor, with all due respect, you asked me twice, in open court, to lean on my client to waive the prelim. You even said that this case should go to a jury, and you haven’t heard a word of evidence yet. All you’ve got is the DA’s opening statement. In my mind, you’ve already decided this case in the prosecution’s favor.”
“Of course I haven’t decided yet.”
“But you can see where I got that impression.”
He moved to his chair and sat down, cautiously, behind his desk. His extra chin flopped over his collar, his fingers folded across his stomach, and he considered his position. The anger faded—replaced by doubt.
“My comments were strictly obiter, Mr. Flynn. Nothing more. I was merely considering the possibility of moving this trial forward. Your client has the right to a speedy trial.”
I didn’t reply. Instead I inclined my head and kept my eyes on the judge, who couldn’t match my gaze for more than a second.
“You have no cause for bias, really,” said Rollins, opening his hands, splaying his fingers. He was asking me, not telling me. Since he’d cooled, he was replaying his request to waive the prelim over and over in his mind—wondering if he really had overstepped the mark.
I said nothing and let him worry.
Rollins looked at Zader, inviting his cooperation. Zader didn’t want to get involved in case it looked like he was backing up his pal the judge. He avoided the judge’s look by leafing through the evidence file.
“I’m not biased against your client, Mr. Flynn. Can you accept that?”
Hands on my hips, I nodded and said, “Your Honor, your word is good enough for me, but I’m mindful of my duty to my client. I will not pursue a recusal at this time, Your Honor, but I will reserve the right to raise it again, should the need arise. I’m sure it won’t.”
The judge rose from his seat, nodded, and waved us back into court. With his back to the judge, Zader gritted his teeth and shook his head as we left the chambers. He knew he’d lost the edge with Rollins.
Now I had leverage. As a new judge, Rollins didn’t want to make a ruling on recusal, because he was afraid I’d appeal his decision not to recuse himself. The last thing a baby judge needs is a senior member of the judiciary examining his conduct when he’s been in the job only five minutes. Instead Rollins would now make sure that I didn’t have the opportunity to raise bias again—by giving me some leeway, being a little friendlier to the defense. And Zader had guessed the exact same thing. I couldn’t resist the urge to antagonize Zader.
“Two can play at the bias game,” I said.
A fake smile was all he managed in reply.
Sounds from the crowd dissipated as Zader and I returned to the courtroom, Rollins following. I took up my position at the defense table. Zader returned to the lectern.
“Your Honor, we call the prosecution’s first witness to the stand, Mr. Gershbaum.”
Cooch gave me the thumbs-up.
We were on.
CHAPTER SEVENTY-SEVEN
9 hours until the shot
After he took the oath, Mr. Leopold Maximilian Gershbaum stated his full name for the record in an accent that was pure Borough Park. His voice rattled in his chest, like too much grease on an old, wheezing engine. He unbuttoned his tweed jacket and sat down. I guessed he was pushing sixty. His salt-and-pepper–colored hairpiece looked to be in its early twenties. The reddish brown mustache made the ill-fitting wig look even more ridiculous. It didn’t look like he cared. With thirty million in the bank, four divorces behind him, and the future ex–Mrs. Gershbaum, a platinum-blond former Playmate of the Month, sitting in the audience for moral support, Leo Gershbaum could afford to slacken on appearances.
I could hear the sound of pages being turned in Zader’s file, the muted tapping of Gershbaum’s anxious feet, and the swish of my pen moving through my fingers; this was the moment of calm before Zader filled the blank page of the hearing with the prosecution’s story.
“Mr. Gershbaum, what is your profession?” said Zader.
He’d been prepped for this: Gershbaum turned and gave the judge his full attention as he replied.
“I’m a major motion picture director.”
The judge’s eyes widened as a smile invaded his usually sour face.
“Would I have seen any of your movies?” asked Judge Rollins.
“Possibly, Your Honor,” said Gershbaum, rising slightly in his seat. “A few years ago I directed a picture called Little Creek Scout.”
Putting his pen down, Rollins leaned back in his chair.
“Well, Mr. Gershbaum, may I say that’s one of my favorites. A great American story. Well, well. You may continue, Mr. Zader.”
And with that sickening display, Zader had made Gershbaum more or less bulletproof. If I went in hard against the man who directed the judge’s favorite movie I would be pancaked.
Cooch leaned over and whispered some words of advice. “Go easy on Gershbaum. Rollins is a big movie buff and he loves this guy.”
“Don’t worry. I’m going to flip him,” I said.
A pair of unruly but distinguished eyebrows shot up close to the top of Cooch’s head. When you have a prosecution witness that the judge or the jury loves, you can’t attack them without damaging your case. There’s only one option—flip them; the testimony that the judge liked, that he believed, well, you just make that testimony favor your case instead of the prosecution’s. The trick was to flip the witness without the prosecutor or the judge even realizing.
“Thank you, Your Honor,” said Zader. “Now I want to discuss the events of the evening of March fourteenth. Where were you on that night, Mr. Gershbaum?”
“I was in my apartment in Central Park West, watching dailies.”
“Your apartment is on which floor?”
“The twenty-fifth. The tower, Central Park Eleven. Only two apartments are on each floor of the tower. The lower floors share three apartments per floor.”
“And what are dailies?”
“Oh, forgive me. Dailies are the collated footage from the previous day’s shooting. We’d been filming a gun battle in an alleyway. I was looking over the footage and making notes for the editor.”
“Was anyone else with you in your apartment?”
“No. I was alone.”
“And what time did you begin watching the dailies?”
“Around seven thirty. Right after dinner.”
“And did anything unusual happen that evening?”
“Yes. Just before eight o’clock, I heard a series of loud bangs. Sounded like gunfire. At first I wasn’t sure what I’d heard. There was a small amount of noise from the weapons used in the take. But then I turned down the volume on the TV and I heard a series of cracks. They were loud and very fast.”
“How many did you hear?”
“I’m not sure. The shots were rapid. Maybe five? Maybe more.”
“What did you do after you heard these shots?”
“Well, I still wasn’t sure what it was. The apartment is pretty well insulated against noise, so I didn’t think it came from the street, but I thought to myself that it could only have come from below. So I opened my balcony doors and went out to take a look.”
“And what did you see?”
“I leaned over the balcony, maybe expecting to see smoke from a car backfiring. Or maybe somebody in the park with fireworks. It was close to Saint Patrick’s Day, so it’s not unusual for some people to start their celebrations a little early. You know what the Irish are like…”
“Did you see any of those things?”
“No, sir. I took a good look, and then the explosion happened. Glass just went everywhere. It came from the apartment windows next door. I glanced at them as I ran back inside.”
“Go on, please.”
“Well, I was pretty shaken up. I didn’t know what happened. I thought it could be somebody shooting at the building with a rifle, or maybe somebody shooting in the apartment next door. I grabbed my cell and ran for the panic room.
“I tried calling 911, but I couldn’t get a signal from in there. I didn’t want to step outside the room in case I needed to close the door real quick. So I used the phone in the room, called straight down to security and told them what happened.”
“Did you lock yourself in your panic room?”
“No. I’m a little claustrophobic. I was only gonna close that door if I really had no other choice.”
“This next question is very important, Mr. Gershbaum. How much time passed between you seeing the window explode and you making the call to security?”
Like all good, honest witnesses, he took a little time to think about it.
“I called security right away. I mean, I was scared. So, probably within, say, ten seconds I was on the phone.”
Producing a document with a flourish from his file, Zader approached the judge with a copy.
“Your Honor, at this time we’d like to refer to prosecution exhibit TM-One. Detective Morgan will formally prove this exhibit in due course. With the defendant’s permission it might be appropriate to refer to it now?”
“No objection,” I said.
Nodding his consent, Rollins accepted a copy of the document and asked the clerk to log it.
“Mr. Gershbaum, this is a security log from your building. It records, electronically, the timing of emergency calls from residents. As you can see, the log records an emergency call from your apartment at twenty oh two on the night of March fourteenth. Is that correct?”
“Yes.”
“You will see toward the bottom of the page that security officer Richard Forest radioed the security station when he reached the door to your apartment. That time is recorded on the log as twenty oh six. Again, would that fit with your recollection?”
“I believe so.”
“How did the security team gain entry to your apartment?”
“I can buzz them in via the control panel in the panic room. That’s what I did as soon as I saw them on the security camera outside my front door.”
