Collision Course (A Josh Williams Novel) (22 page)

"I'll tell you what Robert, you dismiss the case right now and I can assure you we will not seek to sue your office, your pathetic political campaign chest, and your friends at the FBI for Malicious Prosecution." Hawk caught Collucci’s eye, holding the gaze.

Then turning to Josh, "My boy, I think he believed we would seriously entertain such discussion. Now that I think of it he's perfect for Washington, chronically delusional."

Hawk and Josh walked out followed by a red-faced Collucci and a distraught looking Fleming.

Hawk
sat in his office, writing notes, and listened as the phone rang, two, three, four times.

"Can you answer the damn phone, Tiffany? Please!" Hawk pleaded.

"Oh, ah, I just did my nails. They'll call back I'm sure," came the voice from the reception area.

Sometimes I wish I were gay, Hawk thought, then I'd hire male models, they must be less high maintenance.

Reaching for the phone he answered, "Law offices, how may direct your call?"

"Mr. Bennett, please, wait, Hawk? You answer your own phone. Alternatively, Jesus Christ Hawk, you're not getting ah, research assistance are you?" the caller asked. "Never mind, don't want to know."

"Why, it's my good friend from the Public defender's office, to what may I attribute this phone call?" Hawk answered, “and as a point of order, were there research being done, no one would be answering the phone." Leaning back in his chair and smiling.

"Well, I believe I have something you can use in your case, something I suspect the government conveniently failed to provide you."

"Please continue, Councilor, you have my attention."

"How about I come over there? I can be there in 45 minutes or so," Harris replied, "one never knows the depth to which our learned brother Mr. Collucci would sink to know our strategies."

"By all means, come on over," Harris agreed and hung up the phone. "Tiffany," he yelled, "get in here. I need some quick research."

Harris arrived slightly prior to the 45-minute estimate and was amused by the disheveled, but remarkably unembarrassed, Tiffany walking from Hawk's office, retrieving her purse, and walking out the door.

"Ah, Hawk?" Harris called out. "I am announcing myself since your receptionist seemed in a hurry to leave."

"Well, the research was successful, so she was granted an early out as a reward." Hawk smiled as he came to the office door, “come on in."

Harris walked in, sat on the couch, and then jumped up suddenly, looking at Hawk, "that's not the scene of the research is it?"

"No, of course not," Hawk smirked, "I sleep there sometimes."

Harris looked at the couch, back at Hawk and said, "I'll stand, so how is the trial going?"

"First couple of days, not much to it. Crime scene and M.E. testified. They are hanging their hats on the experts on racial profiling, that comes next. I still can't believe that asshole took this to trial and expects to win."

Harris handed Hawk a file.

"What's this?"

"Read it, I think you'll see the value."

Hawk sat on the edge of his desk and began to read. Turning through the pages, his eyes narrowed and face reddened.

The forensic report from the FBI Crime lab described the various tests and procedures done to the numerous items of evidence recovered from the scene of the robbery/homicide. The one that caught Hawk's eye, as Harris knew it would, was the fingerprint analysis done on the shotgun recovered from the dumpster.

The examination found a number of prints. Most were inadequate to provide positive identification, lacking adequate points of comparison. However, the report noted there were partial matches to two individuals. In addition, they examiner recovered two identifiable prints. Both prints were positive matches for Anthony "JoJo" Machado. One print contained nineteen matching points, the other twenty-two. In the United States, there are differing opinions of what constituted a "positive" match, but the more the better. The two partial matches were likely David Anthony Ventraglia.

"That motherfucker Collucci never produced this in discovery for me," Hawk fumed, fanning the reports in the air. "I will move for production of this tomorrow and file a motion for directed verdict."

"Hawk, he isn't using this in your trial. He will argue it is not germane. He did not want to give it to me but had no choice. He buried it within records of the stolen cell, hoping I wouldn’t notice until after this trial."

"Germane? Of course it is," his voice rising. "It adds more foundation to the legitimacy of the shooting. It is something the jury should know. It's...It's...."

"It's in your hands now," Harris interrupted, "use it as you see fit."

Hawk walked to his chair and sat. "Oh, I will open the day with this discovery by the defense," looking at Harris. "What do you want from me?"

"I want your guy to testify at Ventraglia's trial about the shooting, and Ventraglia will testify at Williams's trial about the robbery being Machado's idea."

"Was it?" Hawk questioned

"Who's to say?" Shrugging his shoulders. "There is only one participant in the plan that is around to tell us."

Harris smiled.

Hawk looked up, stunned. "Are you fucking crazy? I do not mind pushing the envelope to thwart the government's advantage, but suborning perjury is a line even I do not cross. Besides, trial started. The Judge will never let me add to the witness list. Hell, I just finished arguing for a dismissal for incomplete discovery."

"Look, my guy knows he's screwed. However, life in the can is a fulfillment of his wise-guy fantasies. Death by lethal injection is not. He will give the jury a glimpse of the ugly world inhabited by Collucci's victim. It will show the jury his warts and defects. It will make it a cinch to overcome the inevitable Marine hero, minority-victim-of-police-profiling portrait Collucci will paint."

Harris paused, gauging Hawk's reaction. "I'll use this in negotiations to get Collucci to take the death penalty off the table, put it out there we've discussed the possibility of his testifying, and agree to have my guy invoke his 5th amendment privileges if you do subpoena him."

"He'll never go for it, Steve. He is a first class asshole, but he is not stupid," Hawk argued. "He'll see through this. He'll keep the death penalty on because it buys more publicity."

"He's also, deep down, a fucking coward. Juries are funny creatures. Their record of accomplishment, even with slam-dunk cases, is spotty at best. He wants a positive result, not justice.

He can spin a plea that eliminates the death penalty to the liberal sector of the district, and spin it to the right as salvaging a case, plagued by the poor investigative efforts of the local police, because of his bringing in the FBI.

Hell, he can even take a shot at the local office of the bureau. Tout his influence in Washington, his ability to produce for the district, justifying his qualifications for Congress."

Hawk smiled "You know Steve you missed your calling. You should be his campaign adviser."

Hawk looked over the file once more. He stood up, walked to the window, gathering his thoughts. "Okay, how do we do this?"

"Are you going to talk to your client first? He may not like this, coming from me. I am not on his favorites list." Steve quizzed.

"My client pays me to do what is in his best interest. In particular, when he doesn't realize it himself," Hawk replied. "I am a firm believer in the philosophy of seeking forgiveness rather than asking permission. He'll get over it."

"Well," Harris smiled in reply, "I will request a meeting with Collucci. He already refused one to discuss a plea. I’ll tell him I have a forensic psychiatrist I want to evaluate Ventraglia for an Insanity defense."

Hawk smiled.

Harris nodded. "He'll lose his mind and want to try to dissuade me. I'll let him and then lay this on him."

"Why are you doing this?" Hawk asked

"I let that son-of-a-bitch Collucci bully me into something I am not proud of. If I can help out Josh and derail his political career it will be some consolation."

Hawk raised his eyebrows.

"That's the other part of the story," Harris continued, "you're not going to like this, but you need to know..."

When Harris finished the story, Hawk just stared at him for several moments. "So you really are screwing Lieutenant Hamlin, how can that be?"

"Hawk, are you nuts?" Harris was incredulous. "Collucci is going to put her on the stand and turn her into the world's biggest liar. If your client even dreams of testifying, he'll be dead on arrival, and all you are concerned with is me sleeping with Hamlin."

"Look, Steve, right after Chris decided to terminate your relationship with extreme prejudice she came here and told me the story. I was worried at first, but as I think about it, I believe I can use this to make Josh even more human to the jury. It is easy to convict a cop. Everyone has a bad cop story. It's hard to convict someone you've come to know as a human being."

"I don't know, Hawk. Collucci is good at destroying people. He will turn this into a circus of police cover-ups and lying."

"But he is planning this as a surprise. We are not surprised, but he will be." Hawk sat down, reached into his desk, and pulled out a bottle of Johnny Walker Red.

"So, Mr. Harris, are you the type to kiss and tell?" Smiling as he poured two glasses.

Judge
Rodericks entered the courtroom and was halfway to the bench before the Marshal could say, "All rise."

"Good morning," Rodericks announced, "are there any matters we need to address before I bring in the jury. Ms. Fleming?"

"Nothing your honor, we're ready to call our first witness."

"Not so fast, my honorable sister at the bar, not so fast." Hawk rose and stood at his seat, "I have a matter of two motions, the second of which will not be necessary in the event the court grants my first motion."

"Proceed, Mr. Bennett."

"Your honor, based on new information available to the defense, I move for a directed verdict in this matter."

Collucci looked at Fleming shaking her head, pleading ignorance of what was coming.

"Your Honor, as is customary, we held several pre-trial conferences regarding discovery. As you know, the government is required to provide all evidence, lists of witnesses, experts, and other information it intends to introduce at trial. It is also required to provide all items that may be exculpatory in nature as to the defendant."

Turning to look at Collucci, "The government, in this matter, has failed to do so. It has failed, intentionally and maliciously, to provide my client with a key piece of evidence.

If counsel been aware of this information before trial, we would have made significant changes to our approach to this case. The government's actions jeopardized the whole judicial process."

Retrieving the report from his briefcase, "Your honor, there exist a report of an examination by the FBI Crime laboratory, regarding the shotgun recovered at the scene of the robbery.”

Fleming leaned over to Collucci, “That report was in the discovery package I prepared. Did you remove it?”

Collucci just smiled, “It’s not germane, argue that.”

“You argue it, I complied with discovery”

Hawk noticed the discussion between Fleming and Collucci.
Perhaps I am spreading some fear, uncertainty, and doubt here. Fragmenting the team, he thought.

Continuing his argument, “This report indicates that positive matches were made on two prints recovered from the shotgun. Those prints belong to Mr. Machado. This information is critical for the jury to have a true picture of the circumstances surrounding this matter. However, the government has chosen to withhold the information from the defendant.

The case has started. Defense developed its theory based on the reasonable assumption that the government fulfilled its obligation for complete discovery. Double jeopardy has attached. It is impossible for the defendant to receive a fair trial because of this revelation. The whole basis of the government's case was frail at best, now we find they have stooped to a new low of intentionally withholding exculpatory evidence.

For these reasons, defense moves for a directed verdict in light of the government's failure to comply with the full intent of discovery, thus denying the defendant an opportunity for a fair trial."

Hawk turned toward Fleming and Collucci, "under these circumstances, it is the proper thing for the court to do."

Rodericks wrote down some notes and then looked to Collucci. "How does the government respond to this allegation, Mr. Collucci?"

Collucci looked at Fleming, his eyes directing her to deal with this. Fleming started to rise, Rodericks motioned for her to sit, "I prefer to hear from the person responsible for the US Attorney's Office. Mr. Collucci, would you be so kind as to illuminate the court in this matter?"

Collucci attained his current position by avoiding situations like this. He bore all the pedigree and appearance of a brilliant lawyer, but it was all show. All wretch and no vomit as Hawk liked to say.

He did not perform well when forced to think on his feet. He preferred the orchestrated, choreographed environments he could control. "With the court's indulgence, I think it best Ms. Fleming respond. She was more involved in the discovery process and can best answer this matter." Collucci pleaded.

"The court is not in an indulgent mood, sir. Your office handles these matters on a routine basis. Assistant United States Attorneys litigate cases here every day. However, you have never sat at the governments' table. You've taken a personal interest in this matter, have involved yourself in pre-trial motions and argument, so Mr. Collucci, I ask you again, how does the government respond to the defendant's motion for directed verdict?"

Collucci went on a rambling, embarrassing, illogical diatribe basing his argument primarily on the fact that the government never intended to introduce this particular report in this trial, thus making it unnecessary to include in discovery.

He argued that it was not germane. Whether or not Machado, at some point, handled the shotgun was irrelevant. He held no weapon when Sergeant Williams shot him. The prior handling of any weapon by Machado was not an element of the allegation, was prejudicial to the jury, and not exculpatory in any stretch of the imagination to Williams.

It was painful to watch.

Hawk wished they allowed cameras in Federal Court. He would get the tape and pass it out as Christmas presents to everyone Collucci stepped on over the years.

Rodericks was practically salivating on the bench.

"So let me see if I understand your argument, Mr. Collucci," Rodericks countered.

"The government's position is that the document is not relevant, but if it is relevant, it's not exculpatory, and if it is exculpatory, it's not fatal to the defendant's ability to receive a fair trial, and the jury shouldn't be allowed to hear this evidence as it is prejudicial. Is that it? There's been no harm, let's just continue our merry way?"

"Your honor, my point is..."Collucci struggled to reply.

"Mr. Collucci,” the Judge interrupted, “that’s what I am trying to determine, you've made several points, few of which are persuasive. However, I disagree with all your contentions except, that a directed verdict may be too extreme a remedy. At least I thought you raised that issue. Perhaps I was just hoping you would, or I imagined it." Rodericks looked over to Hawk and back at Collucci.

"Mr. Bennett is it safe to assume your second motion is to compel the government to make the report available to the defense?"

"It is your honor, but I wish to reaffirm the defendant's contention that it is impossible for him to receive a fair trial."

"Yes, yes," Rodericks motioned for him to stop, "the court fully recognizes your argument and motion for a directed verdict. I need some time to consider this. We will stand adjourned for one hour." Rodericks stood up and left the bench.

The reporters in the courtroom stampeded out the door to be the first to report Collucci's evisceration.