David Ellis - The Hidden Man

“Yeah, okay.”

“You have to be in court this Thursday,” I said. “The prosecution is going to fight this evidence.”

“Gonna fight, okay. Yeah, okay.”

“Have you received a subpoena from them?”

“Haven’t got nothin’. No, sir. Didn’t know ’bout it.”

“Well, you will get a subpoena, probably today. You have to be there. Can you do that?” I gave him the time and location.

“So what do I gotta do?” he asked.

“Probably nothing except show up. But just in case, we should go over your testimony again before the hearing.”

I made some arrangements with Sanders to talk again.

Marie walked in with a copy of Lester Mapp’s motion to bar the testimony of Thomas Butcher, which would be heard in two days, along with a notice of the issuance of a subpoena to Butcher to attend the hearing. There was no subpoena issued to Kenny Sanders, though. That was interesting. The prosecutor didn’t want to question Sanders, only Butcher.

The motion to bar Butcher’s testimony was rather brief, but attached to it was the criminal history of Tommy Butcher. Butcher, it seemed, did not have a spotless record. He’d pleaded guilty to submitting fraudulent bid documents for a public construction job in 1982, for which he’d spent five months at a Club Fed. Then, in 1990, he pleaded to lying to federal prosecutors in an investigation into payroll-tax fraud and received a year and a day in a federal penitentiary.

Not just crimes, but crimes of dishonesty. I’d have vastly preferred a good old-fashioned assault and battery. Butcher had twice pleaded to what, in essence, was lying under oath.

Mr. Butcher’s history of perjury, together with his suspiciously last-minute identification of a man approximately one year after the occurrence, takes this matter beyond the traditional balancing of probity versus prejudice to a preliminary issue of the inherent unreliability of Mr. Butcher’s testimony . Lester Mapp was laying it on pretty thick, but he had to. He had to convince Judge Poker that the testimony was so wholly unreliable that the jury shouldn’t ever hear it in the first place. It was always a problem for me that Butcher had come forward over a year after the trial, and now we were going to ask a jury to believe that he could remember a man-Kenny Sanders-who he’d seen for all of a few seconds as Sanders ran past him on his way out of the apartment building.

I put in a call to Tommy Butcher but got his voice mail. He had to know that his criminal history would be a part of this, but he hadn’t mentioned anything to me. Maybe a layperson doesn’t think about such things. Butcher struck me as someone who probably wouldn’t feel a whole lot of remorse for his prior actions, and maybe the whole thing hadn’t occurred to him.

My cell phone rang. It was about to die and I plugged it into the cord.

“Jason, it’s Denny DePrizio. I’ve got some good news for you.”

I didn’t speak.

“You said you’d be willing to waive any right to sue over this thing?”

“Yes,” I said.

“Then we can get this thing wrapped up tomorrow, like you wanted.”

“Good.” I listened to him as he gave me the details.

“You okay, Kolarich? You sound funny. Different.”

“I’m fine.”

I was anything but fine. But at least I would get Pete’s case dropped. A fresh start for him, if he could make it out of this whole thing in one piece.

P EOPLE VERSUS PETER KOLARICH, Case Number 08 CR 67782.”

“Good morning, Your Honor, Jason Kolarich for the defendant.”

Judge Bonarides raised his tired eyes to me. “The defendant is not present?”

“He’s not, Your Honor.”

“Well, I suppose under the circumstances,” the judge said. “Counsel?” The judge looked at the prosecutor, a young woman named Elizabeth Morrow.

“Motion State S-O-L, Your Honor,” she said. The prosecution, on its own motion, was asking that the charges against my brother be stricken with leave to reinstate.

Judge Bonarides cast another glance in my direction. He was probably wondering how some fairly significant drug-and-gun charges were being dropped straight out, without a plea deal. Himself a former public defender, he presumably had a narrow view of the prosecution’s willingness to forgive and forget. Their willingness, in this case, stemmed from my signing of a different sort of agreement only minutes earlier-my agreement not to sue the county for false arrest or wrongful prosecution. But that fell outside the purview of a criminal courts judge, and no one would ever know about it.

Or maybe the judge recognized me. He came out of the same west-side area that produced Senator Almundo. There was a good deal of resentment in the west-side Latino community over Hector’s prosecution, with claims of selective prosecution based on race, resentment that became justified after the feds lost the case. As one of Hector’s defenders, I had a few fans in that community.

“The defendant answers ready for trial,” I said, which started the clock on their time to refile the charges. But this was all just a formality. The drugs-and-guns charges were officially dead. And whatever curiosity Judge Bonarides might have, in the end, another case was disappearing from his docket, and he wouldn’t break out a hanky over it.

The judge was on to the next case only moments later. I shook the prosecutor’s hand. “Thank you,” I said.

“Don’t thank me. The cop and the CI went south.”

It wasn’t the most gracious acceptance, but I didn’t care. I’d at least closed one chapter of the book. Pete didn’t have a criminal case to worry about. Now he only had the small matter of staying alive.

As I walked out of the courtroom, I caught the eye of Jim Stewart, who was sitting in the corner of the courtroom, dressed in a sweater and a baseball cap over his crew cut. I acknowledged him and he nodded back. I thought I even caught the hint of a smile cross his sober face.

I MET TOMMY BUTCHER at the construction site where I last found him, directing traffic and conversing with people who appeared to be from the park district, the owners of the building he was constructing. He was tired and ornery by the time he made time for me. We found a spot at a table that had been set up inside the half-constructed building for the workers to eat lunch.

“Oh. Right,” he said, after I laid out for him a detailed recitation of his criminal background.

“You forgot to mention it.”

“I forgot, period. What’s the point? I still saw a colored guy running from that building. Nothin’ I did back in the day changes that.”

I sighed.

“Look, I got better things to do, Mr. Kolarich. I don’t need this shit.”

“No-”

“I’m tryin’ to come forward here and tell what I saw. Someone’s gonna turn me into a crook for sayin’ so, maybe I’ll take a pass on the whole thing. Get me?”

“I get you.” I raised a hand. “Look, I need you. My client needs you. I’m just saying, we need to be prepared for this. They’re going to go after you-”

“Everybody and their fuckin’ brother fudged bid apps back then,” he said, his face fully colored in anger. “I put down a subcontractor as minority-owned when they weren’t. So what? Then in ’ninety, yeah, I’m paying some people in cash under the table so Uncle fuckin’ Sam doesn’t bleed me dry. Maybe I don’t volunteer that info when the G comes around. So now, suddenly, I didn’t see a brother runnin’ out of that building that night?”

“See, this is precisely why I’m here, Tom. This is precisely how the prosecution’s going to want you to react. You just be forthright with your explanations, admit to whatever you admitted in terms of plea bargains, and act like it’s all behind you. Don’t fight with them. The judge is going to believe you if you keep your cool.”