James Sheehan - The Mayor of Lexington Avenue

“No, sir,” Jimmy replied.

“No, Judge,” Jack added.

“All righty then. Mr. Tobin, how many witnesses do you have left?”

“Three, Your Honor. The last is a video.”

“Good, good. Then you should finish up today. Mr. DiCarlo, have you made any decisions about who you’re going to put on?”

Jimmy had seen Geronimo Cruz’s video deposition. It was powerful and he didn’t want the jury to see it. Now was probably the time to make the objection.

“Not entirely, Judge. I know I’ll have at least one witness, but Your Honor, I do have an objection to Mr. Tobin’s video-the Geronimo Cruz confession. We can stipulate that Mr. Cruz killed Lucy Ochoa. We don’t need the video.”

Judge Stanton looked at Jack. It was heating up already. He loved it.

“What do you say about that, Mr. Tobin?”

“I’d like the jury to see it, Judge. It removes any doubt.”

“I’m sure you would, Counsel, but if Mr. DiCarlo is stipulating to its contents, I don’t see why it’s necessary.”

“It’s the specifics, Your Honor. He tells exactly how he did it, and the jury will be able to evaluate that evidence in light of what evidence the police had not only before the trial but two years after when they learned Cruz was in a jail cell in Texas.”

The judge turned to Jimmy DiCarlo.

“He’s got a point, Mr. DiCarlo.”

“We’ll stipulate to the facts. He can read a factual summary to the jury. It will save a lot of time, Judge.”

“It’s not the same, Your Honor. A stipulation won’t have the impact.”

“I understand that, Mr. Tobin, but we’re not looking for emotional impact here, we’re looking for facts. If Mr. DiCarlo’s clients are willing to stipulate to those facts we don’t need the Cruz videotape.”

“Judge, I think I have the right.”

“I don’t think so. I think it’s within my discretion. I’m not going to rule right now. I’ll give you some time to come up with a better reason than the one you just proposed, but I want it by the time you present Mr. Cruz’s deposition and I want you two to work out a stipulation of the facts in the event I rule against you, Mr. Tobin. Is that understood?”

Jack felt like he had been dealt a body blow to the gut, one that he hadn’t anticipated and should have. He had no case law to support his argument and no time to do any research. He needed that video for its emotional impact. The jury had to see Geronimo Cruz-to understand what he did and how he did it-in order to understand what happened to Rudy and just how malicious the defendants’ actions had been. Reading a stipulated statement of facts would not suffice.

“Is that understood, Mr. Tobin?” Stanton repeated in a firmer tone.

“Yes, Your Honor.”

“Okay, let’s go into the courtroom.”

The judge walked into the courtroom with them. There was no formality today. When everyone was seated he admonished the spectators as he had done the day before. Then he told the bailiff to bring in the jury.

Jack was out of sorts for another reason as well. He had checked with the bailiff and Maria had not arrived. He was going to have to start the day with Charley Peterson as his first witness.

Charley was wearing an olive green suit and he looked perfectly calm as he walked forward, stood in front of the clerk and took an oath to tell the truth.

“Would you state your name for the record?” Jack began.

“Charles Nickleby Peterson.”

“And Mr. Peterson, where are you employed?”

“Carolina Christian Teachers’ College.”

“And what do you do there?”

“I’m a professor of political science.”

“And do you hold any professional degrees?”

“Yes, I have a bachelor’s degree and a law degree from Georgetown.” Jack hoped those credentials impressed the jury because what was coming wouldn’t.

“Now, Mr. Peterson, you at one time were the public defender here in Cobb County, is that accurate?”

“Yes, I was.”

“And you, in fact, represented Rudy Kelly in his trial for first-degree murder, is that correct?”

“Yes, I did.”

Jack picked up the rape file that had already been stipulated into evidence, approached the witness and handed him the file. “Mr. Peterson, I’ve just handed you the state’s composite exhibit number two, and I ask you to take a look at it.” Charley perused the file and looked up at Jack when he was finished.

“Have you seen that document before?”

“Yes, I saw it for the first time when I testified before the grand jury.”

“Do you know what it is?”

“Yes. It’s a rape file. Apparently, the police found semen inside Lucy Ochoa after she was murdered and for some reason created a murder file and a separate rape file.”

“Did you know anything about this rape file when you were representing Rudy Kelly?”

“No, I did not.”

“Did you file a request for the state to produce all evidence relating to the murder of Lucy Ochoa when you were representing Rudy Kelly?”

“Yes, I did.”

Jack handed him another document. “Can you identify exhibit number three?”

“Yes, that’s my demand for discovery or, to put it in layman’s terms, my request for all the evidence.”

“Did the state ever inform you that semen was found inside the victim, Lucy Ochoa?”

“No.”

“Would that have been significant for you?”

Jimmy DiCarlo was on his feet in a heartbeat. “Objection, Your Honor. Calls for speculation.”

“Overruled. You may answer the question, Mr. Peterson.”

“Oh yes, especially because the blood type was different from Rudy’s, which meant somebody else was in her trailer that night. It literally was the difference between a guilty and an innocent verdict.” Jack couldn’t believe the judge allowed that statement in, but he asked another question quickly before Jimmy could move to strike the answer. He handed Charley the state’s exhibit number four.

“Have you seen this document before, Mr. Peterson?”

“Yes, this is the coroner’s report that was introduced by the state at Rudy Kelly’s trial.”

“Who was the coroner at the time?”

“Harry Tuthill.”

“And where is Mr. Tuthill now?”

“He’s dead.”

“Is there anything unusual about this coroner’s report?”

“Yes.”

“Can you tell the jury what that is?”

“For one, there’s no lab analysis in there at all. There’s no mention of the semen found in the body. No mention of the blood type.”

“Had you ever seen a coroner’s report from Mr. Tuthill before Lucy Ochoa’s murder?”

“Plenty. I had been the public defender at the time for fifteen years. Harry had been the coroner for twenty-five. Murder was not a common occurrence in Cobb County but it did happen, and Harry always did the report.”

“Well, when he did the reports in the past were the toxicology results always in there?”

“Always.”

“Did you work as a public defender before you took over the job as the public defender in Cobb County?”

“Yes, I worked as an assistant public defender in Miami for ten years.”

“So your total experience in this field is twenty-five years?”

“That’s correct.”

“Have you ever seen a coroner’s report in a murder investigation that excluded a major piece of evidence such as semen in the vagina from its findings?”

“No.”

“Was there any advantage to the state in creating this separate rape file other than what we’ve already discussed?”

Jimmy DiCarlo was up again. “Objection, Your Honor. Speculation.”

“Overruled. The witness can answer the question.”

“Well, by creating a separate case that nobody knew about, they kept the semen evidence from being discovered by, say, a public records request. It’s a way of keeping everything secret.”