The Defense: A Novel (35 page)
“This article?” I said, holding up a copy of the
New York Times
article that I’d read the night before in one of the files. The page was folded in half, and I let the witness and the jury see the masthead, the picture of Mario, and the headline. M
OB
L
INK TO
M
URDER.
“Yes. That’s the article.”
“You said in your direct examination that at the precinct you picked out a photo of the defendant and identified him as the man who had a fight with the victim, but you had no other reason to pick him out other than your memory of what you saw on April fourth at the club, right?”
“Right.”
“You had never seen a photograph of the defendant before?”
“No. Of course not. I’d never seen a photograph of him before.”
I flipped the newspaper, letting the witness and the jury see the photo below the fold: the photograph of Volchek coming out of the courthouse, having been arraigned for the murder.
“Let the record show that the article the witness accepts that she read before contacting the police carries a photograph of the defendant, Olek Volchek,” I said, careful not to actually ask the witness about this directly and give her a chance to explain herself.
Holding a photo taken at the crime scene in my hand, I asked, “When you saw the defendant in the huge crowd, in the dark, eighty feet away, with four spotlights aimed at your face, did he have a beard, like he has today, or was he clean shaven?”
My dad’s old trick again. She saw the back of the photo in my hand and bit her lip. For all she knew, I had CCTV images of Volchek leaving the club that same night. She didn’t know if he was clean shaven or not, and who could blame her? Details like that escape most eyewitnesses, even honest ones. She had to be careful, as I’d already caught her out with the newspaper article.
“I don’t know. I was too far away.”
I bent over and made a note of the answer on my legal pad, repeating it loudly and slowly, for the jury’s benefit, as I wrote it down. “
I—don’t—know—I—was—too—far—away
. Just one more question, Ms. Blundell. After you finish law school, will you be applying for a position at the district attorney’s office?”
“I haven’t thought about that,” she said.
Even if that were true, it wouldn’t stop the jury thinking about it.
“Thank you, Ms. Blundell.”
Some members of the jury looked sternly at Miriam, like she’d just wasted their time.
“Redirect?” said Judge Pike.
Miriam shook her head. As Nikki left the witness box, she gave Miriam a half smile. The prosecutor didn’t return it.
“Your Honor, we call Witness X,” said Miriam.
The court guard opened the side door on the right-hand wall, about six feet behind the witness stand. A security guard wearing a black flat cap waited outside the door. He came in, followed by a man in a good-looking suit. The guard unlocked the handcuffs and took them from the wrists of the witness.
Volchek held the detonator in his hand, making sure Arturas saw it there. Witness X was a small, well-presented man. As he came forward onto the witness stand, I took a long look at him, at his eyes and his mouth. I recognized that face. Although smaller and younger than Arturas, he bore his brother’s harsh features. I looked over my shoulder and saw Arturas smiling at his little brother. The smile was different from the cold grin that Arturas usually wore. I got the sense that it was a knowing smile.
Benny was in on the plan.
The court clerk offered the witness a choice: to swear an oath on the Bible or to affirm. Benny chose the Bible, took it in his right hand, and began reading from the card. Benny finished the oath and sat down with Her Honor’s permission.
I checked my watch: twenty minutes till noon.
If I let Miriam take Little Benny through his direct examination, my time would run out before I’d even asked a question. I’d had a couple of ideas on how to handle this problem, but that one little word—“camera”—in Nikki Blundell’s direct examination had given me the best idea.
All I needed was for Miriam to give me a way in. If I was lucky, she might give me a chance with her first question, her settler. Then she would do the rest of the work for me.
Miriam stood and asked her first question, an innocuous hello-and-welcome-to-the-trial kind of question. I held my breath as she put down her notes, looked at the witness, and popped it right out.
“Is it okay if I call you Mr. X?”
I got to my feet fast, my hand in the air. “Objection, Your Honor.”
Miriam recoiled in confusion and then quickly replaced that with anger. Her voice took on a thick staccato rhythm, and each syllable made her loathing for me abundantly clear.
“Your Honor, I have until now put up with Mr. Flynn’s behavior, but this is inexcusable. He can’t possibly object to me asking that question.”
Judge Pike, who until that outburst from the prosecutor looked at me like I’d just pissed on the floor, suddenly flashed a silent rebuke at Miriam by tipping her glasses to the end of her nose and gazing over the rims at her, as if to say,
I handle the assholes in this court, thank you, Ms. Sullivan.
“Mr. Flynn, what’re you doing? You can’t object to that question. Overruled. Please sit down and keep quiet unless you have a valid objection,” said Judge Pike.
I wasn’t finished.
“Your Honor, I can object to this question, and if Your Honor will permit me, I would like to explain why.” I needed a little time to let the judge understand. Before she could object again, I went straight into it.
“Your Honor, a man or woman, in a United States court, has the right to know and face their accuser. This is enshrined in the Sixth Amendment. I have a motion for the court in respect of this issue.”
A look of sheer incredulity spread over Gabriella Pike’s face. She turned to Miriam as if asking for help, for somebody to have a little bit of common sense.
“I cannot understand why Mr. Flynn is only bringing this up now, Your Honor. This witness has been on the list for months. Mr. Flynn had ample time for legal argument on objection. I invite Your Honor to dismiss this motion.”
She was getting better, “inviting” instead of “demanding.”
“I think, Mr. Flynn, that you should’ve raised this point earlier. But, as you have raised the point at this crucial stage, I shall have to rise and let my clerk find the relevant case law. I’ll sit again in five minutes. The jury will not be required to listen to this legal argument. We’ll send for the jury when we’re ready to resume the evidence. I presume, Ms. Sullivan, considering the heart of this issue is whether or not Witness X will be able to maintain his anonymity, that you wish Mr. Flynn’s motion to be heard
in camera
?”
“I do, Your Honor,” said Miriam.
They had to deal with this
in camera
. This old legal term means that the court sits in private, without a jury and without the public.
The judge rose and said, “Clear the court,” then made her way to her chambers.
I heard Volchek laughing behind me.
“I knew you had something,” said Volchek.
The court officer ushered everyone out of the courtroom except the lawyers and the defendant.
Arturas lifted the suitcase.
“Hey. I’ll need the files,” I said.
He hesitated and then began walking away with the case.
“Arturas, wait. He said he needed them,” said Volchek.
As far as Arturas was aware, neither Volchek nor I had any clue what the suitcase really contained. He tapped his finger on his watch as he stared at me before dropping the case and leaving the courtroom.
This short adjournment cut into my time with Benny, but I needed one more try with Volchek.
When I was sure that we were alone and out of earshot of the prosecution, I placed Kennedy’s cell phone on the table. I’d told Volchek I would get us some alone time to set up the exchange. Secretly, I’d hoped he would have seen enough already to let Amy go.
“I got my shot at Little Benny. Let’s do this now. Call your guy and tell him to release Amy.”
“No. We stick to the plan. I need the decision first. We set up the exchange now, like we agreed.”
He dialed and waited on an answer. I did the same.
Jimmy picked up first.
“It’s me. You see the car?”
“Got it. It’s about thirty feet away from me. The driver is on the street, leaning against the rear door of the car. You can’t trust Volchek. He’ll screw you and kill Amy,” said Jimmy.
Cupping my hand and keeping my voice low, I said, “I don’t think so. Right now I’m the only one he can really trust. I’m gonna save his ass, so he needs me. But if it all goes to shit, I need you to do whatever it takes … Amy is…”
“You don’t need to say it. I might be able to take her now. Wait. The driver’s answering his cell,” said Jimmy.
Volchek began his conversation in Russian.
“English,” I told him.
“Uri, wait until I give you signal. It will be a call or a text. Either you let the girl go, or … well, you know what to do,” said Volchek.
“Eddie, the driver’s carrying. He just flashed me a pistol from his coat pocket. There’s no way I can get to her in time. He’s standing right beside the door. If Amy’s in the back, he’ll only need a second,” said Jimmy.
“Wait for the exchange. I’ll call you. If I don’t call … If something happens to me, promise me you’ll get her out. Tell her … tell her Daddy’s so sorry. Tell her I love…”
My throat gave up, strangled with the thought of losing my daughter.
“She knows. I’ll get to her. Good luck, bub. The Lizard is on his way to you.”
The chambers door opened; Judge Pike appeared.
Volchek and I hung up our calls and put the phones away.
As soon as I put the phone in my pocket, I felt it vibrate. Pike stared at me. I couldn’t check the message. Not yet.
“What is your motion, Mr. Flynn?” asked the judge.
“Your Honor, no doubt you’ve read the People v. Stannard and the related authorities.” This case law set out what the DA had to prove in order to keep the identity of a witness a secret. If you were a criminal attorney with a half-decent practice then you would have come up against this problem at least once. I’d done two cases where this had been an issue before. Both were buy-and-busts: An undercover police officer poses as a buyer for drugs; the buy is recorded, and when the matter comes to court, the undercover cop usually keeps his or her identity hidden and they’re identified in court only by their shield number.
“My client’s defense is prejudiced by this witness remaining anonymous; it adversely affects our ability to conduct an effective defense. Your Honor, I request permission to cross-examine the witness on the issue. I will not seek to reveal his identity. I only wish to test the strength of his evidence on why he feels his life is in danger. If you rule that evidence is insufficient, then there is no need for his identity to be protected and he should be named.”
“That’s agreeable. We can do a quick direct examination,” said Miriam, “on the condition that the jury get to hear that evidence.”
Miriam was coming back at me strong and smart. She wanted me to give Little Benny hell in front of the jury so that they would feel sympathy for him and begin to think that I was a real hard-ass.
“Agreed,” I said. I needed Benny on the stand as soon as possible.
“Fine. Let’s have the witness and the jury back. If the jury is to hear this, then is there really any objection to the court proceeding in public?”
Miriam and I shook our heads.
“I’ll rise until the jury is reseated,” said Pike and went back into chambers. That bought me some time. The court security guard disappeared through a side door to collect Witness X.
The court officer opened the doors and the gallery filled up again. Arturas, Victor, and Gregor came back into court. As Arturas made for his seat, he punched out commands on his cell phone, held the phone to his ear for a few seconds, then, with a
tut
, he brought the phone before his eyes again and repeated the process. When he reached the top row of seats, he put his phone away in case the judge saw it. Before sitting down, he looked longingly at the courtroom doors. He sat and folded his arms. I thought he was trying to reach someone on the phone, someone he was expecting through those doors any second. Whoever he was expecting hadn’t shown up.
I felt Kennedy’s phone vibrate again. Arturas had taken a seat closer to me. I couldn’t take the phone out of my pocket and check without Arturas catching me. I whispered loud enough for Volchek and Arturas to hear me, “I have to talk to the prosecutor, see if there are any judgments she wants to refer to.”
Volchek considered it for all of a second and said, “Fine.”
Miriam scowled at me as I approached her table. I remained standing, leaning over the desk, shuffling papers. I put my back to Volchek. The phone stopped vibrating.
“You want to take a look at this,” I said to Miriam as I took her copy of the crime-scene photos.
“What? You going to show me a photograph that isn’t there … No. Show me why the jury should give a shit about a missing photo,” she said.
“Come here,” I said, and she got up and stood to my left, giving me good cover from the Russians. As I chatted a little with her about the broken photo frame, I could feel Kennedy’s phone vibrating again. Two short bursts of vibration, then nothing. He must have been receiving a mixture of calls and texts.
I slipped the phone out once I got Miriam to look again at the photos.
Kennedy’s cell phone registered two new texts and four missed calls.
I looked at the missed calls. The first two were from somebody called “Ferrar,” and then two from “Weinstein,” and I guessed they were agents. I checked the texts.
First text was five minutes ago from Ferrar.
We’re at the lawyer’s apartment. Are we still good? We’re going in 60 seconds unless you say otherwise.
I opened the last text, sent two minutes ago. I’d underestimated Arturas, badly.
Found a suicide note from Eddie Flynn. He’s going to blow up the whole building. We found a shipping manifest for the
Sacha
and a schematic of the courthouse. Get him and search the building.
