Mistaken Identity (52 page)

“Mr. Munoz, do you know what time it was when you heard the noise you mentioned? As I said, please face me and answer yes or no.”

Munoz stared at the prosecutor. “No.”

“You didn’t look at your watch?”

“No. How’m I doin’, counselor?”

“Fine, Mr. Munoz,” Hilliard said, consulting his notes. “Now. There came a time when you looked out the window. Mr. Munoz, do you know how long after you heard the shot that you looked out the window?”

“I’m suppose to answer yes or no?”

“Yes. Answer yes or no, please.”

“Yes.”

“How long was it between the time you heard the noise and the time you looked out the window?”

“Yes or no?”

Hilliard inhaled audibly. “Obviously not.”

“Okay, you gotta tell me how you want my answer, or I don’t know. I’m not as brilliant as you. For the record.” Munoz smiled, and so did two of the jurors, but Hilliard gripped the podium and stood straighter.

“Mr. Munoz, how long was it between the time you heard the firecracker noise and the time you looked out the window?”

“A little while.”

“Mr. Munoz, can you describe the time any better than ‘a little while’?”

“You want me to answer yes or no?”

“Yes, please!”

“No.”

The jury stifled smiles, and Hilliard wiped a hand over his lumpy scalp. If he had hair, he’d be pulling it out. “Mr. Munoz, tell this jury exactly what you saw when you looked out your window.”

“I tol’ you, I saw a lady runnin’ by. I saw her face and her hair, goin’ right by my window.”

“So you got a good look at her?”

“Objection,” Bennie said, half rising. “The prosecutor is testifying, Your Honor. The witness didn’t say he got a good look. In fact, the witness hasn’t even said who ‘her’ is.”

“Sustained.” Judge Guthrie peered over his glasses. “Mr. Hilliard, the Court understands that you are trying to clarify the record, but please use care in how you phrase your questions.”

“Yes, Your Honor.” Hilliard squared off against the witness from the podium. “Mr. Munoz, just so the record is clear, would you identify the woman you saw running by your window?”

“Identify? What’s that mean?”

“Point her out in the courtroom,” Hilliard snapped, but Munoz was already squinting at Bennie and Connolly. His thick arm rose and he pointed a stubby index finger at the defense table, but his aim wavered.

“I saw one of them, I don’t know which one,” he said. “They look like twins.”

Bennie sat bolt upright in her seat, realizing what would happen the split-second before it did. Munoz couldn’t make the ID of Connolly, not with them dressed and looking so much alike.

“Mr. Munoz,” Hilliard said hastily, “you’re pointing at the defendant and not her lawyer, correct?”

“Objection!” Bennie said, rising to her feet. “That’s not what the witness did or said, Your Honor. Mr. Munoz testified he could not identify the defendant as the woman he saw running that night.”

“Your Honor!” Hilliard fairly shouted from the podium. “For God’s sake, the witness pointed right at the defendant.”

Bennie approached the bench. “Your Honor, Mr. Munoz pointed between me and my client. He
said
he couldn’t identify the defendant.”

Crack! Crack!
Judge Guthrie banged the gavel, his brow creased with concern. “Order, please. Counsel, please, and in the gallery. This Court has previously admonished you, you must maintain order!” Judge Guthrie swiveled his high-backed leather chair to face the witness. “Mr. Munoz, permit me to clarify the record. Did you identify, by that I mean point to, the defendant?”

“I don’t know what the defendant is, I pointed at those ladies. They look like each other. The one I saw had red hair, anyway. Neither of them have red.”

“Move to strike as unresponsive and prejudicial,” Hilliard barked, and Bennie couldn’t restrain herself.

“Your Honor, there’s no grounds to strike the answer! The witness’s testimony is clear and he just confirmed it. Mr. Hilliard just doesn’t like the answer he got.”

Munoz pumped his head. “She’s right! He don’t like the answer, so he tells me I’m wrong. I know what I’m sayin’, Judge. I know what I saw. I saw a redhead.”

“Your Honor, please,” Hilliard said, scrambling for his crutches and shoving them under his elbows. “Let me rewind the tape a moment. Mr. Munoz, do you remember being shown a photo array by the police and picking out the defendant’s picture?”

“Objection, Your Honor!” Bennie said, but Judge Guthrie waved her into silence.

“Overruled.”

Munoz looked confused. “Photo
what
?”

Hilliard plucked an exhibit from the podium, hustled with it to the stand, and set it down in front of the witness. “Let the record show that I am supplying Mr. Munoz with Commonwealth Exhibit 21, a photo array. Now, Mr. Munoz, have you seen this set of photos before?”

“Yeah.”

“And when you were shown it, didn’t you pick out the left middle picture as the woman who you saw running past your window?”

“So what?” Munoz tossed the photo array to the side, and Bennie couldn’t have done it better herself. “You asked me who is the lady I saw out my window. You said answer yes or no. You said point to the lady in the courtroom. I can’t do that and swear to God. You don’t like my answer, that’s too damn—”

“Your Honor,” Hilliard interrupted, “may we continue this discussion in chambers?”

“Objection, Your Honor.” Bennie stood as if rooted to the spot. “The prosecutor interrupted the witness’s answer. Mr. Munoz was in the middle of completing his answer.”

Judge Guthrie slammed the gavel to its pedestal.
Crack!
“Silence! In chambers,
now,
Ms. Rosato! Mr. Deputy, dismiss the jury! Mr. Hilliard, the Commonwealth’s outstanding motion to strike is granted. This colloquy is not for the record.”

“Place my running objection on the record, please,” Bennie told the court reporter, a young woman who had lifted her hands from the keyboard. “I want the record to show that Mr. Munoz’s testimony is being silenced by prosecutor Dorsey Hilliard and the Honorable Harrison Guthrie.”

“
Ms
.
Rosato!”
Judge Guthrie shouted, whirling around in his leather chair. “Don’t you
dare
give orders to my court reporter! Court is in recess! Counsel, in chambers! Deputy,
move
!”

J
udge Guthrie stood behind his desk chair, his black robe unhooked at the top and his starchy white shirt exposed. His lined hands clutched the top of his leather chair, and Bennie wasn’t surprised that his fingertips made deep indentations in its buttery burgundy hide. The trial had veered out of his control and any guilty verdict he’d guaranteed hung in jeopardy. He didn’t look at Bennie as he spoke and he could barely keep his tone civil.

“Ms. Rosato,” he said, “I was shocked by your conduct this morning. The accusations, the innuendo, in open court!” The judge glanced at the court reporter. “But my personal feelings are of no consequence at this juncture. We must settle a legal issue of grave importance. Please state your position, Mr. Hilliard.”

“Your Honor, Ms. Rosato is intentionally confusing and manipulating the jury. She came to court today dressed identically to her client, in a gray suit with gray shoes, and she looks exactly like her client. Her scheme has succeeded in confusing a vital fact witness. Ms. Rosato cannot continue as defense counsel, Your Honor. The Commonwealth is requesting she be removed.”

Bennie almost exploded. “There’s no grounds for—”

“Quiet, Ms. Rosato!” Judge Guthrie ordered.

Hilliard edged forward on his seat. “Ms. Rosato’s conduct has been outrageous and unethical. She should be replaced by one of her associates. There would be no prejudice to the defendant, because Ms. Rosato’s associates have been in the courtroom every day.”

Judge Guthrie faced Bennie, his expression cold. “Ms. Rosato, what do you have to say for yourself?”

“Judge, I did not plan to dress like my client today. I had no idea what my client would wear. I look like my client, that’s true, but it’s unprecedented to remove me as trial counsel merely for my physical appearance. There’s no case law that holds that a client on trial for her life may not retain her lawyer of choice because that lawyer looks like her.”

Hilliard’s smooth pate snapped around. “There’s no precedent because it’s never happened. How many times you think a twin represents her twin, in a murder trial?”

“Excuse me.” Bennie talked over him, directly to Judge Guthrie. “In addition, if the Court recalls, I did attempt to withdraw my appearance in this matter after my mother’s passing, partly because of my difficulty in representing Ms. Connolly, and the Court denied my motion.”

Judge Guthrie stiffened. “This Court did not, and could not, have anticipated that you would attempt to so boldly exploit the situation.”

“I didn’t do that, Your Honor. The courtroom ID was requested by the prosecutor and the testimony was given by Mr. Munoz, the Commonwealth’s own witness. I merely acted to protect the record and the witness’s testimony, and was under a legal and ethical duty to make a mistaken identity argument at that point. The record is clear that Mr. Munoz could not make a positive ID of my client in court. The jury is entitled to weigh that testimony, as any other, and we should all be back in court right now, starting on my cross.”

“What?” Hilliard was so frustrated he banged his crutches into the soft rug. “After that stunt you just pulled? You should be held in contempt!”

“There’s no basis for a contempt citation,” Bennie shot back. “I haven’t violated a judge’s ruling.”

Judge Guthrie held up a cautionary finger. “Not so fast, Ms. Rosato.” He paused and sighed. “The Court finds itself between a rock and a hard place, counsel. The question is where we go from here. My law clerks tell me that Ms. Rosato may stay on as counsel regardless of the physical similarity between her and her client. The cases suggest, and they are scant indeed, that if the Court were to
sua sponte,
or on the Commonwealth’s oral motion, ask her to withdraw in these circumstances, at this point, it could constitute reversible error and create a colorable issue for appeal.”

Hilliard addressed the judge. “But going forward with Ms. Rosato prejudices the Commonwealth. We can’t do redirect on Munoz and we can’t put up the other neighbors to say they saw Connolly running from the scene, because they’ll be confused by Ms. Rosato’s appearance. It eliminates my afternoon witnesses.”

Bennie edged forward. “Your Honor, if his witnesses can’t make the ID, they can’t make the ID. If his people can say only that they saw a woman who looks a lot like me running by, then that’s not proof of identity beyond a reasonable doubt.”

“Save your closing for the jury,” Hilliard snapped, but Bennie was speaking for the record.

“Your Honor, the prosecution already has Mrs. Lambertsen’s ID. The rest of the witnesses are cumulative, and there’s no prejudice to the Commonwealth.”

“They were corroborative witnesses!” Hilliard shouted. “Don’t tell me how to try my case!”

Judge Guthrie walked around to the front of his chair and sat down slowly, his eyes avoiding both lawyers. “Mr. Prosecutor, I understand your frustration, but there are no other options at this point. We find ourselves in a quandary. The only alternative is a mistrial, and the Court doubts the Commonwealth will request that.”

“Absolutely not,” Hilliard said. “The Commonwealth can’t take the chance on double jeopardy attaching. Then we couldn’t retry Connolly.”

Judge Guthrie nodded slowly, his gaze straying from both lawyers to the window. “Then we must go forward, after lunch. Court resumes, at one-thirty.”

“Thank you, Your Honor,” Hilliard said, almost sarcastically, hoisting himself to his feet, and Bennie followed him to the door, without a word to Judge Guthrie. The judge’s mood mirrored Hilliard’s. They were both trapped and hated her for it. It gave Bennie no satisfaction. She hadn’t acted to confuse Munoz, Connolly had, and Bennie no longer wanted to cheat to win. Worse, the victory she’d gained was only temporary, and the forces behind the conspiracy would redouble their efforts.

Having a tiger by the tail wasn’t all it was cracked up to be, especially in a murder case.

L
ou glanced at the sky through the windshield of his Honda. The sun struggled through the thick gray clouds that blanketed the red-brick skyline in this part of town. At least it wasn’t raining; he’d worn his good loafers again. He was parked catty-corner to the parking lot in back of the Eleventh, waiting for Citrone to report back. So far he’d had more luck waiting for the sun to come out. The girl at the front desk told him Citrone was expected around ten in the morning, but that was two hours ago.