The Wrong Man (35 page)

“No, sir, he did not.”

“Detective, you’ve had some experience with homeless people as both a beat cop and later a detective, yes?”

“Yes.”

“And isn’t it fair to say that homeless people are often possessive of their things?”

“They can be. It’s not a hard-and-fast rule, but I take your point.”

Nice of him. “So isn’t it possible that when Tom said, ‘That’s my gun,’ that he had only possessed that gun for an hour before he was arrested?”

“That would surprise me.”

“But it’s possible.”

“Possible, I suppose.”

“So it’s possible that someone dumped that gun over the fence—the closest fence to the crime scene—and Tom was there. He picked it up, and in his mind,
voilà
, it was now his gun.”

“Objection. Calls for speculation.”

“It’s no more speculative than the prosecution’s theory,” I protested. That wasn’t a valid response to the objection, and every lawyer in the room knew it. It was my closing argument.

The judge sustained and admonished me.

Good enough. I wanted to get back to my larger point. “Did you talk to Kathy’s co-workers about whether anyone had a problem with Kathy or would want to hurt Kathy?”

Danilo looked up and sighed. “I don’t believe we interviewed them, no.”

“What about her friends?”

“No, sir. As I indicated—”

“It wasn’t necessary. Yes, Detective. So you would have no way of knowing whether Kathy Rubinkowski had expressed some fear for her life? Fear that someone wanted to hurt her. You would have no way of knowing that?”

“Objection.” Wendy got to her feet. “This is all rampant speculation.”

“Your Honor, I’m simply inquiring into the depth, or lack thereof, of the investigation.”

Judge Nash paused, then overruled the objection.

“We had our guy, Counselor,” said Danilo.

“So you can’t tell
this jury, one way or the other, whether Kathy sent e-mails to friends or co-workers that she was afraid for her life.”

“He said he didn’t review her e-mails, Counsel.” This from the judge.

I glared at him and then moved on. “And as the lead investigator on this case, Detective, that would be kind of an interesting thing to know, wouldn’t it? That the victim thought her life was in danger?”

“Objection. Argumentative and speculative, Your Honor.”

“Overruled. The witness will answer. But Mr. Kolarich,” said the judge, peering down at me over his glasses, “don’t belabor this.”

“Yes, Judge.” I looked at Shauna, who nodded back at me. She was right. It was probably time.

“Detective,” I said, “isn’t it true that Kathy Rubinkowski was about to blow the whistle on what she believed to be serious criminal activity only days before she was murdered?”

“Objection!” That was the quickest I’d seen Wendy leap up. “May we have a sidebar, Your Honor?”

The judge waved us up. I’d thought about going to the judge first, showing him everything I’d come up with to date, and begging him to let me introduce this evidence. But I liked springing it better. No matter how Judge Nash ruled on this, the jury heard it at least once.

The judge stepped down from the bench. We met him off to the side.

He gave me a long look.

“This better be good, Mr. Kolarich,” he said.

The prosecutors, Wendy Kotowski and Maggie Silvers, were speechless. Judge Nash, sitting behind his desk in his ornate chambers, was likewise dumbfounded. My client, Tom Stoller, sat quietly without showing any reaction.

Wendy Kotowski said, “Judge, I have to assume this is some kind of a joke.”

“I know it’s late, Your Honor,” I said. “Believe me, I know. But this is the first time I’ve had something concrete to show you. If I’d come to you before now, I don’t think I would have had much chance at succeeding.”

“And you think you have a chance now?” asked the judge. Out of his robe, his bony shoulders and stooped posture made him appear frail. But he still had that cannon of a voice.

“I would hope so, Your Honor. I know all about procedural rules, and I take them seriously. I’ve been working around the clock to compile this evidence so that I could give you something more than speculation.”

“It’s
still
speculation,” said Wendy. “This company—Global Harvest—sold fertilizer to one of its subsidiaries? Another company sold another product, also perfectly legal, to that same subsidiary? Kathy Rubinkowski came up with a theory that this meant someone is building a bomb, and she was murdered to silence her?”

The judge pointed at Wendy but looked at me. “Beyond the fact that all of this information is untimely, it’s also unconvincing,” he said. “If you
think these individuals are up to something like you’re saying—some kind of terrorist activity—then you should talk to the FBI.”

“I have,” I said.

“All right, you have.”

“Judge, the victim in this case stumbled upon the information and ended up dead less than a week later. And when she sent an e-mail to her boss at the law firm, that e-mail never made it to him. We just spoke with the individual, Tom Rangle. He never got the e-mail. Which means that someone at the law firm was monitoring Kathy’s e-mails and deleted them. And then killed her only days later. I have more than enough to take to a jury on this.”

“Putting aside the timeliness. Or lack thereof.”

I gripped both arms of the chair in which I was seated. “If Tom were convicted, and I came up with this information months or years later, I could get a post-conviction hearing on newly discovered evidence. I’m doing better than that. I’m discovering it right now and asking for the chance to get this into the record before a verdict. Give me that chance, Judge.”

“Your Honor—” said Wendy, but I cut her off and kept going.

“The end here is justice, Your Honor,” I said. “I mean, that’s what we’re all doing here, right? We have rules and protocols, but at the end of the day, nobody—not you, not me, not the prosecutor—should try to stop the truth from coming out. That’s why you wanted to wear a robe on day one. That’s why Wendy and I became prosecutors. We wanted to do the right thing. And I’m telling you that, even if it took me a while, I’ve come upon information that I believe in my heart will exonerate my client. I’m telling you that the state has the wrong man. And I can’t believe some deadline is going to prevent me from showing the jury that.”

The judge was actually considering my argument, which was more than I’d expected.

“Your Honor, I’m not looking to sandbag anybody. If the prosecution wants some time to digest what I have to offer, that’s fine with me. My client will stay locked up. She can have all the time she wants. Hell, I’d
welcome
her involvement. It might lead us to the right result. And it might prevent a terrorist attack. I don’t want that on my conscience. Do you?”

The judge was taken aback by that last comment. But that was my very
point. I needed a little shock value, because while I’d been living with this information for a few weeks, this was the first either of them had heard of it.

I didn’t know how any of this was going to sit. Truth and justice, ironically enough, were words seldom uttered in this courthouse, filled with lawyers whose idealism had been eroded over decades of experience. No practitioner—judge, prosecutor, defense lawyer—mistook what happened in this building as justice. It was simply the closest anybody could come. The old line was that the United States had the worst system of justice in the world, with the exception of every other one.

In some ways, I sounded like an idealistic, first-year law student. But Judge Nash knew me well enough to know that I wouldn’t give this speech without some basis.

“Judge,” said Wendy. “Judge, this is absurd. And if, by some stretch of the imagination, it’s not, then Mr. Kolarich has alerted the authorities. It’s possible to take him seriously
and
proceed with this trial. And if by some chance he is ultimately right, then he has correctly pointed out his remedy of a posttrial motion.” I began to answer, but she raised a hand and, for good measure, her voice as well. “If trials were halted midstream every time a lawyer said he thought maybe, just maybe, he was about to connect some dots on a theory of innocence he has never
once
given us a hint about, then nobody could run a courtroom.”

I looked over at the court reporter and had one more thought. “I’d like to say one more thing for the record, if I could, Judge. Only days before we went to trial, you barred my insanity defense. I know you think you made the right decision, but regardless, you left me in a very difficult position. I was planning on asserting an affirmative defense and you took it away. You left me with nothing to argue but innocence, with only days to do so. So that’s what I did. And I’ll admit, at first I was clutching at straws, but for the love of God, it turns out that we’ve uncovered evidence that exonerates my client. I was as surprised as anyone. But here it is. I followed your instructions and came up with this evidence and now, if you bar
that
evidence, too—how can we possibly say this was a fair trial? Every avenue I turn, you shut me down?”

For the first time, I was stretching. The truth was, I was considering a dual defense all
along—insanity and innocence, figuring I might settle on one eventually, most likely innocence, but keeping both options open. But Judge Nash would never know that. The story I just laid out was unassailable, and as Judge Nash watched the court reporter type these words, he was thinking about the appellate court reading this transcript.
You took away his insanity defense, then he came up with an innocence defense and you barred that, too?

My plan had always been to put my case together airtight and then present it to the judge. I knew that if I convinced him of its viability, he’d have no choice but to allow it. That hadn’t happened. I just wasn’t quite there. But I was out of time. The prosecution would rest today and come Monday morning, I’d have to have a defense. So I had to do this now. I had to lay out my cards now, even if they weren’t a full deck.

Judge Nash leaned back in his leather chair and bobbed for a moment. A great mind at work, or something like that. I glared at Wendy, who glared back at me. I had to admit I would probably have the same initial reaction as she, were I the prosecutor, but I’d like to think I would give it more thought and reconsider.

“Okay,” said the judge. “Here’s what’s going to happen. We’re going to go in there and finish this witness examination. We’re going to finish that today. And then, Ms. Kotowski, I take it the People will rest?”

“That’s correct, Judge.”

“All right. Come back Monday morning. Mr. Kolarich, I’m going to think about this and reserve ruling for now. But understand me, Mr. Kolarich, and understand me well.” He wagged a bony finger at me. “You better be prepared to start your case on Monday. If you assume I’m going to reopen discovery and let you add all these witnesses, you are flying without a net. Don’t act surprised if I deny your request and expect you to call your first witness.”

Those comments, too, were for the transcript the appellate court would read.

“And as long as we’re making a record,” he added, “we should all be clear that this information has been made known to this court and to the prosecution for the very first time this afternoon. Now let’s get back in there.”

“Thank you, Judge.”

All things considered, it was the best I could hope for. The judge was giving me one chance, one forty-eight-hour period to put all of this together.

“Better than I expected,” Shauna whispered to me as we left the judge’s chambers. “Now we have two days to connect those dots.”

I completed my cross-examination in another hour. It was pretty predictable stuff, taking the prosecution’s theory of the case and stretching it and poking holes in it wherever I could. If Tom shot her first and then robbed her—the theory which made the most sense—how did he manage to steal her purse, her cell phone, and a chain off her neck without getting any of that pool of blood on himself? And if he robbed her first and then shot her—well, first of all, why did he move south of her before shooting her, when his ultimate escape was to the north? And why would he move ten feet away from her before shooting her? If he robbed her and for some reason wanted her dead, a close-up shot would have made the most sense.

That was, in essence, my closing argument, cloaked in a cross-examination. It was broken up in pieces and asked out of order, but I’d be sure to put those pieces together for the jury in my summation.

Still, I couldn’t shake the feeling that there was an overarching
so-what
feeling to this last hour. There was no blood on him because he shot from a long distance, and he was simply careful when he stole her things. And as for the sequence of events,
so what
if nobody knows exactly which came first, the robbery or the shooting? Nobody saw it happen. But that doesn’t mean it didn’t happen. Those precise details weren’t crucial to the prosecution’s theory.

These were all points that Wendy Kotowski made on her redirect. I didn’t recross, and the prosecution rested. The jury went home for the
weekend with a pretty strong feeling, I thought, that Tom Stoller was guilty of murder.

I spoke briefly with Tom before they carted him back to Boyd. Aunt Deidre thought my cross went well, but she wasn’t exactly unbiased. I gave it a solid B-plus but the score was still Prosecution 4, Defense 0.

I spent Saturday morning with Tom and Deidre, running through a direct examination in theory, but in practice trying to get Tom to open up to me about the events of January 13. To the extent I could get him to focus, he continued with his insistence that he didn’t remember. It was doubly frustrating because my client wasn’t helping me and because I was wasting my time that could have been spent tracking down the Global Harvest angle.

At eleven o’clock that morning, I made a decision.

“I can’t put him on,” I told Deidre outside the Boyd Center. “He’s no use to us. He won’t deny he killed her. And we can’t explain his lack of memory on mental illness. The judge shut us down because Tom wouldn’t cooperate with the prosecution’s shrinks.”