Bum Rap (24 page)

“I wasn’t thinking along those lines.”

“Actually, this reminds me a bit of the O. J. Simpson case.”

“What! How?”

“The second one. In Las Vegas. Where Simpson and some pals go into this guy’s hotel room. O. J. said the guy had some sports memorabilia that had been stolen from him. So they take it back by gunpoint. Never shot the guy. Never even really hurt him. But O. J. got thirty-three years.”

-55-

Using the Scalpel

I
didn’t want to cross-examine Detective Barrios. He hadn’t lied or misled. The tape, as lawyers like to say, spoke for itself. Still, I was like a boxer who’d just been hit several dozen times without ever throwing a punch. I needed to score a few points . . . without getting knocked on my ass with a counterpunch.

So, my cross was not intended to bring Barrios to his knees, weeping and begging forgiveness for his deception. I couldn’t do what the great trial lawyer Louis Nizer called “taking a scalpel to the hidden recesses of a man’s mind and rooting out the fraudulent resolve.” No, this was just an exercise in unearthing the hidden tidbits of helpful information that were buried beneath the topsoil of direct examination.

“Good morning, Detective,” I began.

“Counselor,” he replied with a nod and the faintest of smiles that said, “Take your best shot.”

The trick on cross is to ask leading questions that can only be answered yes or no.

“Mr. Solomon told you he’d fired twice into the office door, correct?”

“Yes.”

“And the techs found two slugs that matched the Glock, just as he’d said.”

“That’s true.”

“And just as Mr. Solomon said, you also found slugs the Russians had fired into the outside of that door, correct?”

“Yes.”

“The door to the safe was open, corroborating Mr. Solomon’s story, isn’t that right?”

“Well, someone opened it, yes.”

“And Mr. Solomon was cooperative with you in all respects, was he not?”

“Yes.”

“Did he ever refuse to answer a question?”

“No.”

“He’s the one who called the police to report the shooting, correct?”

“He called the police. I suppose we could quibble over whether it was to report the shooting or to rescue himself from the dead man’s brother.”

“Your Honor, would you advise the witness to just answer my question without embellishment?” I asked.

“I shall. Detective, you know the rules.”

“Yes, Your Honor,” Barrios said politely.

“No matter how you characterize it, Detective,” I continued, “Mr. Solomon did, in fact, call the police and report the shooting, correct?”

“Yes.”

“Whereas Ms. Delova fled the scene.”

“That’s true.”

“And as you later learned, she fled to another state, where she was hiding out?”

“Yes.”

“A fugitive from both state and federal charges?”

“Yes, she was.”

“Until arrested and brought back to Florida by federal marshals.”

“That’s my understanding.”

Those little morsels were about all I expected to get, but there was another seed I wanted to plant. I’d already been warned about attacking the character of the deceased, but I thought I could do it in a roundabout fashion.

“Anything else, Mr. Lassiter?” the judge asked.

“Just a couple more questions, Your Honor.”

Judge Duckworth raised her eyebrows, her move-it-along-if-you-know-what’s-good-for-you look. I couldn’t tell if she was bored with cross or just wanted to recess for lunch.

“Mr. Solomon apparently told the truth about Ms. Delova taking Mr. Gorev’s gun, didn’t he, Detective?”

“I couldn’t say. There’s no way to know if there was even a gun in Mr. Gorev’s desk to begin with.”

“Well, your men inventoried the contents of the desk, did they not?”

“Of course.”

“Did they find any firearms?”

“No.”

“Now, this was an office with a heavy steel-lined security door, a hidden wall safe, and a secret back door, correct?”

“Yes.”

“Apparently, Mr. Gorev’s brother had a firearm, which he shot into the door?”

“Yes.”

“And both Gorevs were gangsters with extensive criminal records in Russia, correct?”

“Objection!” Pincher shot from his chair. “Irrelevant. Mr. Gorev’s character is not on trial here. Move to strike.”

“Sustained. Motion granted. The jury shall disregard defense counsel’s last question.”

“Thank you, Your Honor,” I said meekly. Telling a jury to disregard anything only emphasizes it, so I’d already accomplished my mission. “I’ll rephrase. Detective, based on what you know of Mr. Nicolai Gorev’s background, would you have expected him to keep a firearm in his heavily secured office?”

“Objection, Your Honor.” Pincher was still on his feet. He knew where I was going and hadn’t bothered sitting down. “Calls for speculation.”

“Your Honor, I would agree, but for one thing,” I said. “Mr. Pincher took half an hour detailing the detective’s extensive experience until he sounded like a combination of Sherlock Holmes and Columbo. Twenty-five years solving the most difficult homicide cases in the history of Florida. For all practical purposes, the state established the witness as an expert qualified to give opinions on matters involving crime and criminals. I think the question falls within the penumbra of the detective’s expertise.”

I’ve always loved the word
penumbra
, though I’m not entirely sure what it means.

The judge peered at me over her reading glasses and allowed herself a little smile. The state can’t appeal an acquittal, but the defense can appeal a conviction. So, in close cases, it’s always safer for a judge to let a defense lawyer ask an iffy question on cross.

“Objection overruled. But, Mr. Lassiter, I’m keeping you on a tight leash on this issue.” She turned to Barrios and said, “Detective, based on what you know of Mr. Nicolai Gorev’s background, would you have expected him to keep a firearm in his heavily secured office?”

Barrios shot a glance toward Pincher. He wasn’t looking for instructions. More like saying, “Hey, what can I do?”

“Based on my experience, yes, I would have expected Mr. Gorev to have a gun either on his person or within his reach . . .”

I knew there was a
but
coming.

“But I learned a long time ago that my expectations about people, based on prior experiences, often turn out to be wrong.”

Half a loaf. But that was okay. I’d take it, because it would surely get worse as I sat down and Pincher announced, “The state calls Nadia Delova.”

-56-

“Boom! Right in Head”

G
ucci knockoff,” Victoria whispered at the defense table.

S
he was referring to the outfit Nadia Delova was wearing as she walked down the central aisle, through the swinging gate, and toward the bench. A pin-striped charcoal-gray suit, white silk blouse with a bow, and black pumps with two-inch heels. Her face was scrubbed of makeup, her dark hair pulled back and up into a bun.

If they were casting Marian the Librarian for
The Music Man
, she’d have a shot at the role. Not that I could complain. Once I had my client, an alleged Ponzi schemer, order a doctor of divinity degree by mail. My conscience was then clear when I dressed him in a clerical collar for the trial. As I wouldn’t let him near the witness stand, the state never had a chance to cross-examine him on his outfit, though the prosecutor winced every time I referred to the guy as “Reverend Slocum.”

Back in the gallery, I saw Gerald Hostetler perched in the first row of the gallery. He was biting his lower lip as he watched the woman he loved take the oath to tell the truth, the whole truth, and nothing but the truth.

After his introductory questions, Pincher wisely defused my basic areas of attack before I had a chance to cross-examine. He had Nadia admit that she lied to enter the country, that she smuggled diamonds through customs, that she worked as a Bar girl, that she’d been convicted of petty crimes in Europe, that she stole diamonds from Gorev’s safe, and that she fled to Pennsylvania after the shooting and robbery.

“What happened to those diamonds?” Pincher asked.

“I return them to USA government as part of my deal,” she said in her fetching Russian accent.

In the broadest sense, that was true. But more precisely, US Marshals found the diamonds hidden in a drawer when they searched Hostetler’s house. A small piece of ammo for cross.

“Tell the jury about your deal, as you call it.”

“I testify before grand jury against smuggler named Benny Cohen, and government drop all charges.”

“What instructions did the federal prosecutors give you?”

“Only one. To tell truth.”

“And did you?”

“Every word.”

“
And a result of your truthful testimony, Mr. Cohen was indicted just days ago on multiple federal charges, was he not?”

“So I am told. Nicolai Gorev’s brother, Alex, too.”

“Now, in this case, what arrangement did you make with my office?”

“I testify. No charges against me.”

“With what proviso?”

“Pro . . . ?”

“What instructions did I give you?”

“Same thing. Tell truth. All will be good.”

Pincher turned his back to the jury, glanced at me, and gave me his irritating smile. Then he took Nadia through “the day in question,” as he put it. He started with Nadia seeing Solomon’s television commercial, where he wore cowboy garb and brandished a pair of six-shooters. To get the point across, Pincher played a video of the commercial for the jury.

And there was Solomon in living color, blasting away at some blowup dolls. A baritone voice-over intoned, “If you need a lawyer, why not hire a gunslinger?”

Solomon didn’t so much look dangerous—as Pincher would have the jurors believe—as idiotic. But I still could have done without the video image of him firing pistols with both hands.

Once the video was finished, Pincher said, “Take us now to Nicolai Gorev’s office . . .”

I said something like that to a witness once.
“Let me take you back to the crime scene . . .”
And the witness, not the brightest bulb in the chandelier, stood up and said, “Okay, let’s go.”

“And please tell the jury what happened in that office,” Pincher continued.

Nadia recounted how Solomon asked Gorev for her passport and back wages and was rebuffed. How Solomon threatened a lawsuit and Gorev said he would wipe his ass with the papers.

“Then I make mistake,” Nadia testified.

“I use words I heard from the federal lawyer.
Racketeering
and
money laundering
and
wire fraud
. I could see suspicion in Nicolai’s eyes.”

“What did he say?”

“He accused me of wearing wire. I said I was not. I work for him only, not government.”

“Was that true?”

“No. I was wearing wire for USA.”

“And the wire, the recording. What became of it?”

“I destroyed it. I am sorry.”

“Pity. What happened next?”

“That’s when Nicolai pulled the gun and told us to strip.”

Pincher opened his mouth to ask the next question but froze in place, as if zapped by a paralyzer gun in a sci-fi movie.

After a moment, he said, “I’m sorry, Ms. Delova. For a moment, I thought you said Mr. Gorev pulled a gun.”

“From drawer in desk. His Beretta. I’d seen it many times. But this was first time he pointed it at me.”

“Now, Ms. Delova, you recall giving a statement in my office?”

“
Da.
Yes.”

“Isn’t it true you told me Mr. Gorev had no gun?”

“Objection! Counsel is both leading his own witness and attempting to impeach her.”

Just where the hell was she going with this? I didn’t know, and clearly, neither did Pincher. I just knew I loved the last answer and didn’t want her to contradict it. Sure, she was lying. But she wasn’t my witness, and I didn’t give a damn. Why should I? She was trying to help us.

“Sustained,” Judge Duckworth announced.

P
incher, an old pro, stayed calm. No gaping mouth or fluttering eyelashes. I’d bet his blood pressure hadn’t gone up a point. “All right, Ms. Delova, just tell us what happened next and let’s see where it goes.”

“I tell Nicolai I will leave now and forget everything about passport and money, but he points gun at me and says, ‘
Nyet!
Sit.’
Threatens me. Says if either of us is wearing wire, he will kill us both. Mr. Solomon says he does not work for government and starts to take off shirt to show he had no wire. While Nicolai watches him, I take gun from my purse. Nicolai must see me, because he quickly turns gun back toward me, and I shoot him. Boom! Right in head.”

The courtroom went silent. But it was the silence of pealing bells. In my mind, at least, I heard the bells of Saint Mary’s, accompanied by the bells of Notre Dame, and the cowbell Hilda Chester rang in the Ebbets Field bleachers. Or maybe it was just my tinnitus.

I
turned on the instant replay in my mind. Rewatched the last minute of Nadia’s testimony. She appeared and sounded credible. And why not? She was an accomplished actress. Telling all those men how handsome and sexy they were while picking their pockets.

Oh, bless you, Nadia Delova.

Now I had to run a double reverse with a flea-flicker pass at the end of the play. Instead of attacking Nadia, I had to protect her.

The only sound in the courtroom was the whir of the air-conditioning. And, oh yes, next to me, Solomon was hyperventilating. He had just listened to the state’s star witness back his defense, and he appeared close to passing out.

After gathering his thoughts—which must have ranged from terror to fury—Pincher, as steady as a seventy-ton battleship, said, “Ms. Delova, do you remember taking an oath to tell the truth?”

“Yes. Just few minutes ago.”

“And you remember your arrangement with the state of Florida?”

“Same thing. Tell truth.”

“And even though you cannot be prosecuted for the shooting of Nicolai Gorev or the theft of his property, you can still be charged with perjury. You know that, right?”

Nadia nodded. “You tell me that many times. Five years in prison for one false statement. Ten years for two. And so on. Which is why I tell truth.”

“Did anyone promise you anything for your testimony today?”

“Only you. Immunity.”

“Well, did anyone threaten you?”

“
Again, only you. Prison for lying. But I tell truth, so no problem.”

Still unruffled, Pincher turned toward the bench. “Your Honor, permission to treat Ms. Delova as a hostile witness.”

“Objection.” I bounced from my chair so quickly, I nearly retore the ligaments in my left knee.

“In my chambers, now, all of you!” the judge ordered. “We stand in recess.”