David Ellis - Jury of One

“So he was still a good, oh, ten yards from the alley.”

“Sounds about right.”

“Okay. And-the car was still running, right? You didn’t turn it off.”

“Yeah, of course it was still running.”

“So to get to the car, you just had to move a few steps.”

“Yeah.”

“And Officer Miroballi ran ten yards to the alley, plus another nineteen feet or so into the alley.”

The witness watched Shelly. “That’s right.”

“So you were in the car before your partner had even reached the alley.”

“Okay.”

She nodded and moved from the lectern, behind the prosecutors and toward the jury. “If I told you, Officer, that there has been testimony that your partner had some kind of a conversation in that alley with that boy-based on your memory of the timing of things, sir, would that surprise you? Would it surprise you that Officer Miroballi would have had time to have a conversation with that person before you arrived? In fact, before you even put the car into drive?”

Morphew objected, but the judge allowed it.

Sanchez had figured out where she was headed. Maybe everyone had. Officer Sanchez had ample time to get to his car and drive to the alley, or wherever, if he was helping in the chase. By the time his overweight partner made it to the alley, then traveled nineteen feet and had a conversation with Alex, Sanchez easily could have moved the car forward at least an inch.

“I gave them some privacy,” he conceded. “Ray said he wanted to talk to the boy. So I let him.”

“Okay. So you weren’t part of any ‘chase,’ were you, Officer?”

“No. You don’t come between a cop and his snitch.”

“So it was your intention to let your partner do whatever it was he was going to do. You were going to stay back.”

“He was going to talk to the boy.”

“That’s what he told you. ”

“That’s-yes.”

“Sure. I mean”-Shelly placed a hand on the jury railing-“if you knew that Officer Miroballi’s real plan was to kill this boy, then you’d be in quite a lot of trouble for sitting back and letting that happen, wouldn’t you?”

“Objection.”

The judge had the court reporter read back the question, which was fine with Shelly. “Goes to bias,” she said, as if the point were elementary.

“The witness will answer.”

“That wasn’t what Ray was going to do.”

“And that’s what you have to say, isn’t it, Officer? Or you lose your badge.”

“It’s the truth, is why I’m saying it.”

“You said Ray kept to himself.”

The witness gathered himself. “Yes, I said that.”

“You couldn’t read his mind, could you?”

“I couldn’t. No.”

Shelly wasn’t done. This line of questioning had been scheduled for the finale of this cross-examination, the way she had planned to end things. That was the problem with her methods. She went with her gut, and sometimes a grander plan got lost in the process.

She took a deep breath as a segue. She was now standing next to the jurors. Generally speaking, on direct examination, you want the jury to watch the witness, so you stay out of the jury’s view. For cross-examination, the lawyer wants to be the center of attention, because it is her words, more than anything, that she wants the jury to hear. In a perfect world, the witness would simply answer “yes” or “no” to every question, such that the jury was really hearing a mini-closing argument from the lawyer.

She strolled away from the jury into the center of the courtroom so that the jury could look at both her and Sanchez. “You don’t know for a fact that my client was a confidential informant, do you?”

Sanchez played with the characterization. “Ray said he was.”

“Sure, Ray said he was. But you don’t know that, do you?”

He shrugged. “I saw them meet. He was giving Ray information.”

“You don’t know what was said when those two met, do you, Officer?”

“Well, not firsthand-”

“ Ray told you what was said.”

He sighed. “That’s true.”

“So all of your reasons for thinking that my client was a confidential informant come down to what your partner told you.”

“I suppose so. But I saw them together. I don’t know why else they would be meeting.”

“Exactly,” she said. “You don’t know.”

“No, I don’t.”

“So you have to concede the possibility that Alex may not have been your partner’s confidential informant.”

“I–I suppose that’s possible.”

“And if that possibility were true-if Alex was not an informant for Officer Miroballi-that would make you reconsider the events that led to his death, wouldn’t it?”

“Objection, Judge,” said Morphew. “Argumentative and speculative.”

“I will-I’m going to allow that.”

Sanchez opened his hands. “I don’t know what you mean.”

She nodded. “Your partner reported that the boy he saw walking down the street had drugs in his possession, right?”

“Right.”

“You didn’t see those drugs, did you?”

“No. Doesn’t mean he didn’t have them.”

“Well, wasn’t your view of the boy as good as your partner’s?”

“Not really. I was looking around some. Checking out the street.”

“Oh. You didn’t get such a good look at the boy.”

“Not really.”

“I guess that makes sense,” Shelly said, as if to herself. “He had his back to you, right? Because he was walking southbound, away from you.”

“That’s right.”

“He had on a long coat.”

“Yes.”

“A cap on his head.”

“Yeah.”

“It was probably hard for you to see anything about this boy at all.”

“That’s right.”

She imagined that Sanchez was eager to say such things. He wanted to put some distance between himself and the events, for the sake of the Internal Affairs Division’s review of this case. The less he saw, the better.

“You didn’t see his pockets.”

“No.”

“Didn’t see his face.”

“No.”

“Didn’t really see-he had a cap on. You probably couldn’t see his hair, either.”

“No.”

“This thing was all your partner’s, wasn’t it? He wanted to see the boy. He’s the one who said he saw him with drugs. He’s the one who wanted some ‘privacy’ with the boy.”

“That’s right.”

“You didn’t see the drugs. You didn’t give chase. You didn’t even see his face.”

“That’s right.” Again, Sanchez was more than eager to comply. Shelly was surprised, frankly, that Morphew hadn’t worked with Sanchez more on this.

“And since you never saw his face, or his hair, or any part of him from the front, Officer,” she said, her heart drumming-because this could fall under the heading of one-question-too-many-“you can’t even sit here and say that it was this boy that you saw, can you?”

“I-” Sanchez cleared his throat. “Ray said it was his snitch.”

“ Ray said.” Shelly knew now that she had the answer she wanted. “ Ray said. You can’t say for sure that it was my client who you saw walking down that street, can you?”

“Ray saw his face. When he first came out on the sidewalk. We were about a block away to the north. I wasn’t looking. But Ray saw his face. He said, ‘There he is.’”

“ Ray said,” Shelly repeated. “Please answer my question, Officer. You didn’t actually see my client, did you? You cannot sit here, under oath, and identify Alex Baniewicz as the person you saw, can you?”

Sanchez answered in a quieter voice. “It was my understanding that both Ray and another man on the street identified your client-”