The Mayor of Lexington Avenue (43 page)

“As I was saying, the prosecution’s case did not mention the semen found in Lucy Ochoa’s vagina and the public defender representing Rudy knew nothing about it.” He paused to see if Jimmy DiCarlo was going to shoot out of his seat again, but Jimmy was a little too smart to take the bait. “So Rudy was convicted of first-degree murder and sentenced to death.

“That was 1986. In 1988, the Bass Creek police department received a letter from the Del Rio, Texas, police department. They had just arrested a suspect in a rape and murder case and he had a Florida driver’s license that listed an address in Bass Creek. It was just a general inquiry letter to see if the suspect was wanted in Bass Creek for anything or if the Bass Creek police department had any information that might be helpful to them. The suspect’s name was Geronimo Cruz.

“Maria Lopez was a secretary in the police department at the time, and she opened the letter from the Del Rio police. She brought it to the immediate attention of Wesley Brume, who in turn immediately called Clay Evans.” Jack pointed to each defendant as he said his name. “Ms. Lopez heard Mr. Brume tell Mr. Evans that he would be right over and she saw him leave for Mr. Evans’s office with the letter in hand. According to Ms. Lopez, the letter was never seen again—it certainly was never placed in Rudy’s file—and the Del Rio police department was never contacted.

“You will hear from Geronimo Cruz. You will see his videotape confession to the murder of Lucy Ochoa. In addition, you will learn that the DNA from the semen found in Lucy Ochoa matched that of Geronimo Cruz. There is no doubt that he murdered Lucy Ochoa.

“This case is about a police officer and a prosecutor who were so zealous to convict Rudy Kelly of murder that they wrote out their own confession, hid evidence from the defense and refused to contact the Del Rio police department for fear that their conviction would go south. As a result of their actions and intentional inactions, Rudy Kelly was executed in the Florida electric chair on October 22, 1996.”

As soon as Jack sat down, Jimmy DiCarlo was on his feet walking around the courtroom feigning outrage at the remarks Jack had made about his clients.

“Ladies and gentlemen, both my clients are lifelong public servants. Wesley Brume is now the chief of police of the Bass Creek community he has served so well over the years. Clay Evans was appointed to the federal bench after many years as a prosecutor in Cobb County. Rudy Kelly’s case is only one of thousands of cases these men have investigated and prosecuted successfully over the years.

“Were mistakes made in Rudy Kelly’s case? Yes. Did a tragedy occur? Yes. But that does not mean these honest public servants should be accused of a crime—and certainly not the crime of murder. There are some things Mr. Tobin did not tell you in his very lengthy opening statement. He did not tell you, for instance, that he was Rudy Kelly’s attorney before he became the state attorney, so he can hardly claim to be acting here as a disinterested prosecutor. He did not tell you that Rudy Kelly had no fewer than three appeals to the Florida Supreme Court, where all the facts he told you about were brought to the attention of the highest court in this state—and all three appeals were denied. He did not tell you that he personally argued the last appeal and made virtually the same argument he presented to you this morning—the separate rape file, all of it. And his appeal was denied. He did not tell you that he made a personal appeal to the governor of this great state and brought all these facts to the governor’s attention in a bid for clemency. And his request was denied.

“The fact is that Rudy Kelly was at Lucy Ochoa’s trailer on the night of the murder around the time of the murder. His blood was found there. She was killed with a serrated knife. A serrated knife was found in Rudy’s bedroom. And Rudy admitted that he could have killed her and not remembered it. That’s pretty incriminating evidence.

“This was a tragedy. And mistakes were made at every level of state government. But convicting these men of a crime would be another tragedy. Don’t make that mistake.”

It was a short, sweet counter to Jack’s very lengthy discussion of the facts, but it was very effective. Jimmy DiCarlo practically strutted back to his seat next to his two clients.

The judge dismissed the court for the lunch break as soon as Jimmy finished his opening statement.

They say that good trial lawyers can win a case with their opening statement, convincing the jurors of the merits of their case
without presenting a scintilla of evidence.
Jack had hoped to do just that, but he could tell by the gloomy faces on Pat and Dick, who were waiting for him outside the courthouse, that Jimmy DiCarlo might have turned the tables on him.

“He was pretty convincing, wasn’t he?” Jack said.

“It’s still early,” Pat said, reaching out to stroke his shoulder.

“It doesn’t matter,” Dick said.

“Your witnesses will convince them,” Pat reassured him, but he could tell that she didn’t believe her own words.

After lunch, Jack tried to start his case with none other than Wesley Brume. He approached the judge before the bailiff brought the jury in.

“I’d like to put Mr. Brume on the stand, Your Honor.”

“Mr. Tobin, I know you didn’t make your reputation as a criminal lawyer, but there are basic rules that you should know. The defendant doesn’t have to testify, and you can’t put him on the stand to prove your case.” Jimmy DiCarlo, who was standing beside Jack for this sidebar conference, chuckled out loud at the judge’s comments, which were made in jest.

Jack paused to let them have their fun. Then he proceeded to make his point.

“Your Honor, Mr. Brume already testified ten years ago at the suppression hearing. I believe I can read his testimony into the record as an admission. All I’m asking the court is for permission to put Mr. Brume on the stand and ask him to read his answers from ten years ago.” Jimmy wasn’t laughing anymore.

“Judge, I object. My client has the right not to take the stand.” Jack could tell by his expression that Harry Stanton appreciated the strategy. Jimmy was already starting to lose it.

“Well, Mr. DiCarlo, you don’t disagree that Mr. Brume’s prior sworn testimony is admissible, do you?”

“I do, Your Honor.”

“And what is the basis for your objection?”

“Relevancy, Your Honor. What Mr. Brume testified to in a suppression hearing ten years ago has no relevance to this proceeding where he is a criminal defendant and it may be prejudicial.”

“Prejudicial?” the judge said in a disbelieving tone. “His sworn testimony under oath as a police officer may be prejudicial, is that your argument, Counsel?”

Jimmy was a good trial lawyer because of his presence and his speaking voice and his aggressiveness. Logical analysis was not his strong suit.

“Maybe it’s not prejudicial, Judge, but it’s certainly irrelevant to any issues in this case.”

“How do you respond to that argument, Mr. Tobin?”

“Well, Judge, I think his testimony will take about ten minutes. We could do a dry run outside of the jury’s presence, and then you can make a decision on whether the testimony is relevant.”

“That sounds logical. Why don’t we do that? Mr. Brume, take the stand here. Mr. Tobin, do you have a copy of Mr. Brume’s testimony for him to read?”

“Yes I do, Your Honor, and I have a copy for you and for his counsel as well. As you can see, sometimes a question was asked and it took three or four more follow-ups to get the answer. I’ve tried to avoid that for purposes of time and clarity and have highlighted the relevant questions and answers. With your permission, Your Honor, I will read those questions, which were originally asked by Rudy’s lawyer, Ms. Tracey James, and then Mr. Brume will read his responses. I also anticipate that the court will instruct the jury beforehand that this testimony was given ten years ago in a separate proceeding and that Mr. Brume was a detective then investigating the murder of Lucy Ochoa and that he is simply reading his previous testimony.”

“I see,” the judge said as he studied the document. “Very good. Then let’s proceed.” Judge Stanton was starting to enjoy himself. It was obvious that Jack had anticipated this entire scene before the trial began. This was going to be a real battle.

Wesley Brume took the stand, and Jack proceeded to take him through his testimony at the suppression hearing ten years before. He first brought up Bill Yates, Rudy’s high school principal.

“Did Mr. Yates tell you that Rudy was affable and that he would agree to anything you said and that, in all fairness, you shouldn’t question him without his mother or a lawyer present?”

Brume had tried to skirt the question even back then, but eventually he was cornered and gave a definitive answer. “He didn’t say anything like that.”

Next up was Benny Dragone, Rudy’s boss at the convenience store.

The question was asked whether Brume had threatened Benny with the health department in order to get Rudy to the police station for questioning. “That’s not true. I would never do that,” Brume had replied.

Jack established that Brume began his questioning of Rudy at 3:18 p.m. and had him read that portion of his testimony where he said he was almost finished questioning Rudy when his mother, Elena, arrived at the station. He then switched to the expensive video and audio equipment that the City of Bass Creek had purchased for criminal interrogations at the station.

“How long would it have taken you to walk down the hall, fetch the video or recording equipment, or both, and install them before beginning your interview?”

“Three to five minutes.”

“Is it accurate that when you brought my client in for questioning he was already a suspect in the murder?”

“Yes.”

“And he was your only suspect at the time?”

“Yes.”

“And is it accurate, Detective Brume, that in your twenty-plus years as a police officer in this department, this is the most heinous crime you have ever investigated?”

“No question about that.”

“Did you have Rudy make a written statement?”

“No, but I had him read my notes and sign them.”

“Did you tell him to sign them?”

“Yes, of course.”

“Was he allowed to make changes?”

“I don’t understand.”

“It’s very simple, Officer Brume, did you let him edit your notes?”

“Of course not.”

After that answer, Jack turned to the bench.

“That’s it, Your Honor. I’m obviously using this testimony to show in Mr. Brume’s own words the circumstances under which the initial investigation took place. It’s exactly what I told the jury in my opening statement.”

The judge didn’t even look at Jimmy DiCarlo for a response. “Well I think it’s relevant. Let’s bring the jury in. Mr. Brume, you can stay where you are.”

Clay Evans bolted from his chair. “Judge, you can’t be serious. This is not relevant to the charges against us.”

“Sit down, Mr. Evans,” the judge shouted. “This is my courtroom and you are a defendant. If you have a point to make, whisper it to your lawyer. I don’t want to have to hold you in contempt.” The judge motioned to the bailiff to get the jury.

The jury filed in and the judge instructed them just as Jack had requested, telling them that this testimony had originally been given ten years ago in a separate proceeding and would be read by the prosecutor and defendant Brume. “But remember, ladies and gentlemen,” Judge Stanton said looking at the jurors, “this was the sworn testimony of Officer Brume at the time.”

They repeated their reading of the transcript word for word, with Jack enjoying every second. If Jimmy DiCarlo hadn’t been so flustered by the outbursts of his own clients, he could have suggested that Jack alone read the transcript to the jury, keeping his client off the stand, and Judge Stanton would doubtless have agreed. But the whole thing would have been far less effective that way, and as they went through the little dramatic reading, Jack was secretly enjoying the fact that he’d gotten away with it, forcing Wesley to look just as duplicitous now as he must have looked ten years ago.

Jack followed Wesley Brume’s performance with live testimony from Principal Bill Yates.

Yates told the jury he was now retired but that he remembered talking to Wesley Brume about Rudy ten years before. Rudy’s death had obviously had an effect on him. There were tears in his eyes as he testified. He and Jack had spent some time preparing for this moment. As they’d discussed and, indeed, practiced, Jack asked almost exactly the same questions Tracey James had asked ten years before, and the principal gave almost exactly the same answers.

“Mr. Yates, you were Rudy’s high school principal for all four years he was at Bass Creek high school, is that correct?”

“Yes.”

“And did Officer Wesley Brume come to see you ten years ago to interview you about Rudy?”

“Yes.”

“And could you tell the court the reason for the visit?”

“He wanted to find out about Rudy, how he had been as a student.”

“And what did you tell him?”

“I told him that Rudy was a very nice, motivated young man but that he was slow. Not retarded but slow. If I recall correctly, I think his IQ was somewhere around seventy-five. Bass Creek was a small school. We didn’t have special programs for children like Rudy, so we did the best we could. After two years we put Rudy in a vocational program. He never received a high school diploma, just an attendance certificate.”

“Did Detective Brume tell you why he was inquiring about Rudy?”

“Yes. He said Rudy might be a suspect in the murder of Lucy Ochoa.”

“And how did you respond?”

“I believe I told him he must have been mistaken. I knew Rudy very well back then, and I never believed he was capable of anything like that.”

“Did Detective Brume tell you that he was going to bring Rudy in for questioning?”

“Yes.”

“How did you respond to that?”

“I remember telling him that Rudy’s mother should be with him for that, or that he should have a lawyer in there. I told him how friendly Rudy was, and how naive he could be. I told him Rudy wouldn’t know how to protect himself. He would respond to every question he was asked even if it wasn’t in his best interests.”