The Mayor of Lexington Avenue (40 page)

“Gotcha. Thanks, Harley!”

“One other thing,” Harley continued. “Don’t blow smoke up his skirt. He hates that. Give it to him straight. Tell him what you got. Let Jimmy toss the cowshit, because you know he will.”

“Is Jimmy really a gangster like everybody says?”

“Nah, he’s worse. He’s a gangster wannabe. But he’s dangerous, son. There’s nothin’ he won’t do for a client if the money’s right. You keep that in mind.”

“I will. Thanks again, Harley.”

“Hell, call me anytime, son. I’m lookin’ forward to seein’ you gut old Jimmy there.”

Jack just sat by the phone chuckling for a few minutes. That Harley was a character—and a fountain of knowledge.

Forty–four

Jack didn’t have an opportunity to see Judge Stanton until the hearing on the Motion to Dismiss. It was strange: This was one of the most important moments in the entire case and he wasn’t nervous at all. He had prepared his legal memorandum even before he called the grand jury into session. All he had to do now was review his research and strategize. His strategy leaned heavily on incorporating Harley’s tips into his overall approach.

As for Jimmy DiCarlo, he had a new love, besides himself: television. In the week leading up to the hearing on his motion, he managed to get himself on a major station every night and at least one cable channel. The press was enjoying itself as well. A good story like this was fodder for the cable talk shows and made easy headlines for the newspapers. On the morning of the motion hearing, the area around the courthouse was teeming with news trucks, talking heads, television cameras, reporters and throngs of ordinary people.

Jack understood the media presence, but he didn’t understand the people. What was their stake in this? Did they really want to see justice done? The most surprising thing was that when he and Jimmy DiCarlo walked up the courthouse steps, they cheered Jimmy as if he were a movie star, while all he heard were catcalls and boos. Jack couldn’t miss the opportunity to take advantage of the situation, however. He sidled close to Jimmy as they reached the top of the steps.

“They love you, Jimmy. But if you win today, it all goes away. This crowd is nothing compared to what it will be at trial.” He didn’t wait for a response. He headed straight for Judge Stanton’s chambers.

So far, Jimmy was telegraphing all his punches nicely. Jack hoped it stayed that way. Jimmy had filed a second motion the week before asking to have the hearing in open court, but Judge Stanton denied the request the next day. He wasn’t going to allow the press to make a circus of his courtroom, at least not yet. He allowed one reporter in his hearing room after instructing her in so many words to sit down and shut up and if she did anything to disrupt the hearing in any way, she would be removed by the bailiff.

As a normal practice, clients did not attend motion hearings held in chambers. Although Clay Evans wanted to attend and offer his legal expertise during the argument, he decided against it. Even though he was one of the accused, he was still a sitting federal judge and the possibility existed that Judge Stanton might resent his being in chambers and offering his legal opinions. It was an unnecessary risk. Jimmy could handle the proceedings himself.

Once inside the hearing room the lawyers sat on opposite sides of a long table that jutted out from the middle of the judge’s desk. The clerk was seated to the judge’s left and the court reporter was at the far end of the table in a position where she could watch all the lawyers and the judge as he spoke. The only other person in the room was the news reporter, and she was seated in a chair in the corner clearly trying to be very quiet. At 9 a.m. sharp, Judge Stanton entered the room from a side door and sat at his desk.

“Are we ready to proceed?” he asked without acknowledging anyone in the room.

“The defense is ready, Your Honor,” Jimmy said.

“The state is ready, Your Honor.”

“Very well. Mr. DiCarlo, it is your motion, you may proceed.”

Jimmy spent the next half hour outlining the facts, referring to the transcript of the grand jury testimony as necessary and then discussing points of law. Jack noticed that Jimmy’s fiery rhetoric was completely absent. He was going through the motions! Apparently he didn’t want his day in the sun to end just yet, even though it exposed his clients to a murder trial. The seed Jack planted had sprouted. And Clay Evans had made a tactical mistake letting his lawyer appear alone at this hearing. Jack chuckled to himself. There was a certain delicious irony in the thought of a crooked judge being sold out by a crooked lawyer.

“I agree with most of what Mr. DiCarlo says, Your Honor,” Jack told the judge when it came his turn to speak. “The prosecutor does enjoy absolute immunity in the prosecution of his case regardless of his motives. But this case is about what these men did two years
after
the prosecution of Rudy Kelly was over. They were presented with evidence of someone else’s guilt and they hid that evidence. As a result, Rudy Kelly, an innocent man, died in the electric chair. That fact alone takes this case outside the zone of immunity that a prosecutor normally enjoys.”

“But is there enough evidence that their actions were criminal?” the judge asked. Jack jumped on the question.

“The court is absolutely right to focus on that issue. This court already knows from the facts admitted in the motion that Lucy Ochoa had sex with someone other than Rudy Kelly the night of her murder
and
that on the night of her murder a man named Geronimo was down the street having a beer when Rudy left Lucy’s trailer. The police never talked to this Geronimo fellow
because he disappeared right after the murder.
Two years after Rudy’s conviction, the Bass Creek police department receives a letter from the Del Rio, Texas, police department stating they have just arrested a man named Geronimo Cruz for rape and murder and he has a Florida driver’s license listing an address in Bass Creek. They want to know if the Bass Creek police department has any information on this individual that might help them in their prosecution. I have a witness who says Wesley Brume called Clay Evans as soon as he received this letter and immediately went to his office with the letter in hand. After that, the Del Rio police department was never called back and the letter disappeared. Is that enough to convict? I’m not going to make that argument now. Is that enough to send the case to the jury? I’m not even going to make that argument now. Is it enough to let the case go to trial? Well, the law favors a trial on the merits whenever possible. Only in the rarest of circumstances should a case be dismissed before trial. If you allow this case to go to trial, Your Honor, the public’s interest will be served, the law will be followed—and you can still give counsel the same relief he is asking for by granting a Motion for Acquittal during the trial itself. Besides, we may hear some new information. Something always happens at trial that you don’t expect. Perhaps somebody in the Del Rio police department can shed some light on this mysterious letter. I don’t know.”

It was a very brief argument but it gave the judge options, which is what Harley had suggested.

“Do you have any rebuttal, Mr. DiCarlo?” Jimmy was ecstatic over Jack’s argument. He could have a trial and have that national exposure for another month or so and still have the case decided by a Motion for Acquittal. It was perfect—but of course he couldn’t tell the judge that.

He could have argued very forcefully that it was unfair to put his clients through the trauma of a trial when there wasn’t enough evidence to convict them. He could have—but he didn’t.

“Not at this time, Your Honor.”

Judge Stanton put his head down and started rubbing the sides of his temples pretending he was thinking hard. The truth was that Jack’s argument made sense. You never decide a case before trial unless it is a total sham. And he could still dismiss the case after the trial began on a Motion for Acquittal, which is exactly what he planned to do.

“All right, I’m not going to dismiss this case at this time. I agree that the same relief can be provided through an acquittal motion. In making this decision, I am by no means indicating that there is enough evidence to send this case to a jury. Do I make myself clear?” Both attorneys stated that they understood. “While we’re here, why don’t you gentlemen take out your calendars and let’s talk about setting this case for trial? How long do you think it will take?”

“A week,” Jack said.

“Two weeks,” Jimmy countered.

“Two weeks?” the judge scoffed. “What do you need two weeks for, Mr. DiCarlo? There’s no forensics. We know how the death happened. Hell, we know who did it. Do you want to bring the state’s executioner in to testify
how
he did it?”

“No, sir,” Jimmy replied rather sheepishly. He really didn’t have an answer for the judge. He just wanted to keep the trial going for two weeks.

“The way I see it, it’s real simple,” the judge continued. “The question is, did your clients intentionally let Rudy Kelly die in the electric chair? Now Mr. Tobin here, he’s got to put on a circumstantial evidence case, so he might take a few days. The only decision you’ve got to make is whether to put your clients on the stand or not—that is, if I don’t dismiss the case after Mr. Tobin rests. Now is my analysis accurate?”

“Sounds about right to me, Judge,” Jack replied.

“Yes, sir,” Jimmy answered meekly. He was starting to wonder if maybe he rolled over on the motion a little too quickly.

“All right then, let’s say a week. It will probably take a day to pick a jury. I don’t see a big problem there. If we need to we’ll go into the next week, but let’s not plan on it. The sooner we get this circus over with, the better. Now, how much time do you need to get ready for trial?”

“We’re ready, Judge,” Jack offered. “I’ll need a week to get my subpoenas out but that’s it.”

“How about you, Mr. DiCarlo? Do you need a few more months to hit every show on television?” The judge clearly meant it as a joke, and everybody took it as one. Even Jimmy laughed.

“I can be ready in two or three weeks, Your Honor. I need to check some things out.” Jack knew exactly what he was talking about. He’d stuck in that little teaser about the Del Rio police department to send Jimmy on a wild goose chase. If Jack kept him occupied, Jimmy wouldn’t see the real surprises in store for him.

“Fine. We’ll set it for three weeks from today. And let me say this, you two gentlemen are fine lawyers. I’m not going to put a gag order on you. But see if you can control the personal barbs and let’s not try our case in the press, okay?” He looked right at Jimmy as he spoke.

“Yes, sir,” Jack replied.

“Sure, Judge,” Jimmy chimed in, hardly paying attention. There were cameras out there waiting for him.

Forty–five

An amazing thing happened shortly after the motion hearing, much to Jimmy’s disappointment. The press went home and the crowds dispersed around Jack’s office and the courthouse.

“Where did those people come from?” Jack asked the group at dinner one night. “They weren’t from Bass Creek.”

“Maybe there’s a group of sensation seekers out there that go from event to event,” Pat offered.

“Yeah, or maybe the press pays them to show up,” Dick added. “There’s no hype if there’s no crowd.”

“You’re getting awful cynical in your old age, honey,” Joaquin said, punctuating it with a tsk-tsk and a wagging finger. Dick whacked him on the shoulder.

“Don’t ‘honey’ me. I’m not your sweetheart.”

“Thank God,” Jack said. “I don’t know if Maria’s ready for that yet.” They all had a good laugh, really enjoying themselves for the first time in a long time. “I think we can actually relax for a while,” Jack added. “With the crowds gone and Jimmy getting his trial, I think the heat’s off.”

Dick and Joaquin suddenly turned serious and looked at each other. No words passed between them but each knew what the other was thinking. Joaquin answered Jack for both of them. “The heat’s not off, Jack, just because the crowds are gone and Jimmy DiCarlo has his trial.”

“I don’t understand,” Jack felt he was saying for about the hundredth time. He prided himself on being a canny strategist, but these two operated in a world with which he was totally unfamiliar.

Dick coached him along. “Think about it, Jack. Jimmy DiCarlo wasn’t involved in Tracey or Nancy’s murders. Just because he’s happy he has a trial doesn’t mean the heat’s off.”

Jack thought about it for a second. “You mean Evans or Brume might not be happy with what happened at the motion hearing, and either of them or both might take action on their own?”

“Precisely!” Joaquin exclaimed. “We have to stay prepared for that possibility.” The brief euphoria was gone, replaced by the familiar tightness-in-the-chest feeling they’d been living with for weeks.

“I’ve thought about that,” Jack said. “I wonder if the two of them acted in concert or if one of them committed those murders on his own.” Nobody had an answer.

In spite of Dick and Joaquin’s foreboding, the next few days were sunny and relaxing, and everybody started to feel better again. Jack and Maria continued their same old routine but left work early—Jack to go home and take long runs with Pat, and Maria to join Joaquin in the sanctuary of his fishing boat. Dick found solace in the exercise room, which had a weight bench, a stationary bike and a treadmill. Dick had been a weightlifter in his active days, and he enjoyed reacquainting himself with the bench. He liked the bike too, but he avoided the treadmill like the plague.

Three days into their semi-vacation, Joaquin made an announcement at dinner. “Maria and I are going to take a vacation if that’s okay with you, Jack. I’m going to take her home with me.”

Jack was a little surprised but realized it was a good idea. Why should they all suffer while they were waiting for the trial to begin? “That’s a great idea. Just make sure you get back here three or four days before the trial so I can prep Maria.” He looked at Maria, who couldn’t hide the smile on her face. It wasn’t hard to figure that she was looking forward to some extended time alone with Joaquin.