Bad Lawyer (31 page)

“How ’bout I skip to the chase,” he responded. “Go into Thelma’s house, give it a toss? That be okay?”

“It’d be better if you hadn’t told me.”

That brought a phlegmy, choked laugh. “Hey, Sid, you know the story. If I get taken down, the first thing I’m gonna do is cut a deal.” He laughed again, then moaned. “I gotta go. I think I’m gonna throw up.”

The jury was barely seated when Detective Shawn McLearry began his testimony. Carlo, as he’d done with Alfonso Rodriguez, used McLearry as an excuse to wave a series of bloody photographs at the jury. This time we had Byron from the front, staring up at the camera through blank eyes that seemed only a bit more empty than those of his living wife. There were several photos of the blood trail as well, and a stark closeup of the murder weapon lying on the table. Finally, like a schoolboy at the climax of a show-and-tell project, Carlo had Byron’s chair brought out by two of the biggest court officers I’d ever seen.

After putting the chair into evidence, he pushed it up to the jury box, had the jury leave their seats to examine the small hole in the tightly woven green fabric, the circular bloodstain surrounding it. Then he let McLearry speculate that Byron was fully seated when he was shot. I might have objected, but I let it go, more than satisfied that McLearry had opened a door through which Dr. Kim Park would eventually drive.

On the other hand, I objected vigorously, demanding a sidebar, when Carlo asked McLearry if Priscilla had shown remorse.

“The fact, your Honor,” I said, “that my client exercised her Fifth Amendment rights cannot be used as evidence of guilt.”

Delaney agreed, then made it worse by allowing Carlo to pose specific questions relating to Priscilla’s demeanor.

“Was,” Carlo asked, “the defendant crying when you arrived at the Broome Street apartment?”

Again, I objected, only to be again overruled.

“No,” McLearry replied.

“Did she appear agitated?”

“No.”

“Was she hyperventilating?”

“No.”

That was enough for Delaney. “Move on, Mr. Buscetta,” he demanded. “You’ve made your point.”

Carlo took a deep breath, nodded once, then asked McLearry to estimate the length of time it had taken Byron to crawl from his chair to the place where he collapsed. The question was clearly without foundation and my objection was immediately sustained, but it was a victory for Carlo nonetheless. Not only had he introduced Priscilla’s failure to call for help, he had me objecting to nearly every question.

“No further,” Carlo said after tossing a final glare at Priscilla.

I pushed myself up, strolled over to Byron’s green chair, then casually plopped myself down. The assembled multitudes let out a collective gasp which I studiously ignored. I also ignored Carlo’s angry objection, leaning forward slightly to slide my right index finger between my suit jacket and the bullet hole. As I rose and approached McLearry, I kept the finger pressed to my back.

“Detective McLearry,” I said, pointing at a photo of Byron tacked to a display board, “you were kind enough to circle the wound on the deceased’s back for Mr. Buscetta.” I turned to let the jury see the exact position of my finger. “Would you point out that spot again?”

Carlo rose to his feet. “Your Honor, can we dispense with the theatrics? The defense is asking the jury to make a comparison that assumes facts not in evidence.”

Delaney sustained the objection, a ruling that offered no surprises. That was why I’d covered the tip of my index finger with white chalk, why I’d worn a charcoal gray suit. Standing as I was, with my back to the jury, the white dot on my jacket was invisible to both the prosecution team and the judge.

I let my hand drop to my side, then repeated the question. “Would you please indicate the wound on the deceased’s back. In fact, would you approach the photo and actually touch the spot?”

“It’s right here,” McLearry said.

“Now, the place you’re touching, it’s in the exact center of the wound, right?”

“Yes.”

The exit wound on the left side of the victim’s back was several inches above the rise of his buttocks. And well below the dot on my suit jacket. I gave the jury a moment to comprehend the obvious, then continued.

“You’re quite sure?”

“That’s it, counselor.” The best cops are able to feign cooperation when they’re fighting you tooth and nail. The worst make no effort to conceal their bias. McLearry was definitely (and defiantly) among the latter.

“And it’s your opinion, Detective, that the deceased was fully seated when he was shot?”

Carlo objected. “Lacks foundation,” he declared, even though he’d established these same responses on direct. Delaney overruled before I could argue.

“Yeah, he was sitting down.”

“Tell us, Detective, are you absolutely certain that the deceased could not have been rising?”

“I’m ninety-nine percent convinced,” McLearry said, as if the surrender of a single percent rendered his testimony less absurd.

I walked quickly back to the defense table, leaned over my notes while Janet Boroda casually wiped the dot off my back, then took McLearry through the same set of hoops Rodriguez had negotiated the day before. I gradually forced him to admit that Priscilla had made no attempt to remove the body, to conceal the gun, or to flee, and I made him describe the bruises on Priscilla’s face. Finally, I gave him back to Carlo who soon had him repeating much of his original testimony. Delaney took it until Carlo began rapping his fingernails against the crime scene photos.

“Mr. Buscetta, despite my advancing years, I haven’t lost my memory. It seems to me we’ve heard this before.” Delaney allowed himself a quick smile, in recognition, perhaps, of his own wit. “If you have nothing to add, then wrap it up. I believe it’s time for lunch.”

A
FTER SPENDING FORTY MINUTES
trying to make small talk with Thelma Barrow while I worked my way through a stringy corned beef sandwich and a soggy knish, I was more than glad to get back into the courtroom. Thelma was sure the jury hated Buscetta and took every opportunity to repeat her insight. Priscilla kept silent, for the most part, though she favored her mother with an occasional fond glance. They even went so far as to exchange a quick kiss before Thelma went to her place in the gallery.

Inside, after a five-minute delay while Delaney attended to the needs of a lawyer involved in another case, Isaiah Hazleton called Dr. Gideon Fitzgerald, the assistant medical examiner who’d performed Byron’s autopsy. I waited until Fitzgerald was sworn, then requested a sidebar. Once out of the jury’s hearing, I formally objected to any testimony relating to Byron’s inebriation or his liver disease, declaring both irrelevant at this point in the proceedings.

“If,” I conceded, after a few minutes of back and forth argument with Isaiah, “we open the door when we present our case, Byron’s condition might become relevant as rebuttal. But for now, your Honor, its only purpose is to rouse sympathy for the deceased in the minds of the jurors. Byron Sweet’s death resulted from a bullet wound, not alcohol poisoning or cirrhosis of the liver.”

“The state,” Carlo declared, leaning over his cocounsel’s back, “is prepared …”

Delaney waved him to silence. “This isn’t a tag team match, counselor. Whoever examines the witness argues the objections. No exceptions.”

“Your Honor,” Isaiah said before Carlo could further piss Delaney off, “the prosecution believes the defense introduced a claim of self-defense, first in their opening statement, then by having both Officer Rodriguez and Detective McLearry describe the bruises on the defendant’s face at the time she was arrested. Surely, a claim of self-defense makes the victim’s ability to mount an attack relevant.”

Delaney still wasn’t convinced. “The cirrhosis, Mr. Hazleton, the liver disease. Do you intend to maintain that the victim was unable to rise from his chair as a direct result of his disease? More to the point, are you prepared to make this court an offer of proof?”

Isaiah danced around the questions for a moment before Delaney cut him off, ruling the liver disease out, the intoxication in. I took this back to Priscilla as a victory. She rewarded me with a smile, laying her hand on my shoulder for a moment before turning to face the jury. As per my instructions, she’d been making brief eye contact with individual jurors, absorbing their suspicions (and sometimes their outright hostility), projecting her own vulnerability.

Gideon Fitzgerald’s testimony was direct and to the point. Byron Sweet had died from a bullet that entered the upper part of his chest, proceeded on a downward path through his heart, finally exiting his back. At the time of his death, his blood alcohol level had been .42. This in addition to the presence of cocaine in his system.

“A blood alcohol level of .10,” Fitzgerald explained in response to Isaiah’s gentle questioning, “is considered sufficient to render an individual legally impaired. A level of .40 will be marked lethal by hospital laboratories.”

“And would,” Isaiah asked, “a level of .42 be incapacitating?”

The question called for a conclusion well beyond the expertise of a forensic pathologist, but I didn’t object because I believed the whole line of testimony to be easily rebutted. The only person who could accurately testify to Byron’s condition immediately before the shooting was sitting next to me. In that light, the prosecution’s attempt to render Byron harmless smacked of desperation, a point I intended to make to the jury in the course of my closing argument.

“Almost certainly,” Fitzgerald equivocated.

“Dr. Fitzgerald,” I asked when my turn came, “did Byron Sweet die of alcohol poisoning?”

“No.” Fitzgerald looked at Carlo for a moment, then back to me. When he spoke again, his voice was a good deal stronger. “No, he didn’t.”

“You’ll excuse me, Doctor, but I seem to remember you telling the jury that his dose was fatal?”

Isaiah was on his feet, explaining, accurately enough, that I’d completely mischaracterized Fitzgerald’s testimony. Delaney sustained the objection, but it gave the jury a starting point from which I could, step by step, force a retreat.

Actually, Fitzgerald admitted when I rephrased the question, the word fatal, written on a lab report, only indicated a potentiality and the need for immediate treatment. It did not mean that the person testing .40 was actually dead. It didn’t even mean that he or she was necessarily unconscious. Yes, the presence of a central nervous system stimulant, such as cocaine, would mitigate the effects of a depressant, like alcohol. No, he could not be certain that Byron Sweet was incapacitated when the bullet that actually ended his life actually entered his body.

“Dr. Fitzgerald, have you ever done an autopsy on an individual with a blood alcohol level of .50?”

“Yes, I have.”

“Ever do a six?”

“I once,” he told the jury, “did an autopsy on a woman who registered a level of .62.”

“And was alcohol poisoning the cause of the woman’s death?”

“No, Mr. Kaplan, it wasn’t.”

“If she didn’t die of alcohol poisoning, Doctor, how did she die?”

“She walked off the edge of a roof.”

It was almost 3:00 when I let Fitzgerald go. Isaiah (wisely, I thought) didn’t attempt to rehabilitate the doctor’s testimony. Instead, he called Sergeant Benjamin Fish, who’d supervised the crime scene unit. I had no questions for Benjamin Fish and he was off the stand by 3:30. Delaney looked at the clock, then asked, “Mr. Buscetta, is your next witness ready?”

“Yes, your Honor,” Carlo said. “She’s waiting outside.” He glanced back over his shoulder as if he could see through the wall. “Lieutenant Grushko has obligations in Part 33 tomorrow afternoon. If we can get her direct testimony in today …”

The reason for Carlo’s eagerness soon became apparent. Lieutenant Lena Grushko had been working in the NYPD’s Fingerprint Division for nearly ten years, and had testified hundreds of times. She would (and did) tell the jury that on January 18, two days after Byron Sweet was murdered, she’d gone to the lab armed with a set of Priscilla Sweet’s fingerprints. Once there, in the presence of Detective Shawn McLearry, she’d first dusted the pistol seized at the Sweet crime scene, lifting an identifiable partial print from the barrel of the gun. Then she’d removed the cartridges, dusted them one at a time, discovering still another print. The fingerprint on the barrel matched Priscilla’s left ring finger (nine points of comparison); the print on the cartridge her right index finger (eleven points of comparison).

When Lena Grushko told the jury that Priscilla Sweet’s fingerprint had been found on one of the bullets in the gun, her tone was so matter-of-fact that it took them a moment to realize the implications. Then, one by one, they shifted in their seats as each turned to look directly at Priscilla.

Juries are hard to read, but I took those looks to be reevaluations. Up to this point, we’d been winning the little skirmishes; now, all of a sudden, they were imagining Priscilla dropping those cartridges into the chambers, pushing the cylinder up into the frame. And maybe they were also imagining Byron Sweet in that chair, drunk and helpless, unable to offer the least resistance. Albert Wong, follower of the gentle Christ, seemed almost disappointed. He held his mouth in a little circle, cleaned his glasses with a handkerchief before fixing his gaze on Priscilla.

By the time Carlo finished, it was after five o’clock and Delaney quickly recessed the jury, allowing each member to carry home Grushko’s uncontested testimony. That was why Carlo had been so anxious to get Grushko on the stand, why he’d strung out her testimony until he was certain Delaney would call it quits for the day. Tomorrow, on cross-examination, I would open up a line of doubt that Priscilla would define when she finally testified. But for this one night, the prosecution’s theory would stand by itself, a reality to be discussed at dinner, perhaps over a good stiff drink.

For once, Priscilla seemed a bit off center. Maybe she realized that I’d made a mistake, that I should have cross-examined Benjamin Fish, kept him on the stand until Delaney was ready to call it a day. In any event, she resisted briefly when a court officer took her arm, then rose to her feet. Her eyes remained on mine for a moment and I believe I saw, just below their flat gray surface, a hint of fear.