Tragic (40 page)

Earlier that morning, Antonia came to his office to thank him for his efforts. Her words had humbled him. Reminded of her reactions to other witnesses, he’d then asked her how she felt about the upcoming testimony of Frank DiMarzo. “I feel sorry for his family,” she’d said. “I’ve watched them during jury selection. They seem very close and remind me of my family back in Italy. I’m sure this has been devastating for them. But I don’t know how to feel about him. I’m glad he’s testifying now, but he could have stopped the whole plot by going to the police. Or at least he could have confessed instead of pretending he was innocent during that first trial. He was a coward when he helped kill my husband, and he was a coward after he got caught. I guess I’ll see how I feel when today is over.”

Antonia saw him looking at her and nodded. He nodded back and then turned to begin his questioning by asking DiMarzo to describe his friendship with Gnat Miller and then how he’d become acquainted with Alexei Bebnev. He’d then moved on to “the job” Bebnev recruited him for and the promised payment of fourteen thousand dollars to be split between him and his friend.

“You agreed to help murder a man you didn’t know for money?” Karp asked.

“Yes,” DiMarzo replied. “That’s all it was, just a lousy seven grand.”

“Did you know the name of the man Bebnev intended to murder?”

“No. Just that two guys he met in Hell’s Kitchen named Joey and Jackie paid him to kill a union big shot who lived in New Rochelle.”

“Who introduced Bebnev to Joey and Jackie?”

“A Russian gangster named Lvov.”

“Did Alexei Bebnev tell you that he overheard one of these men say who wanted Vince Carlotta murdered and when it was to happen?”

DiMarzo’s ability to answer that question represented a prime example of how carefully every detail in a trial needed to be considered, prepared for, and laid out in the proper order. If Jackie Corcione had not come forward and already testified that Barros told Lvov that “Charlie wants this to happen as soon as possible,” and that Bebnev was in a position to overhear the statement, DiMarzo could not have answered him, as it would have been hearsay and inadmissible.

In fact, Kowalski had fought tooth and nail at a pretrial hearing to keep it out on those grounds. But Corcione’s testimony established the predicate upon which DiMarzo’s testimony could be admitted into evidence. It was deemed part of the overt acts of the conspiracy—the defendants acting in concert—to kill Vincent Carlotta.

So now when Kowalski objected for the record and was quickly overruled by Judge See, DiMarzo was allowed to answer, “Yeah. He said he walked up on those guys at the restaurant and heard one of them tell Lvov that ‘Charlie wants it done as soon as possible.’ ”

Watching the jurors as DiMarzo answered, Karp saw the piece of the puzzle linking Corcione’s testimony and DiMarzo’s click together in their heads. “Why did you ask your friend William Miller to help?”

“We needed a car,” DiMarzo explained. “And I knew he needed money so that he and his girlfriend could move out of her parents’ basement.”

The answer, of course, mirrored Gnat Miller’s own testimony about his reasons for committing the crime, and again Karp saw pieces fall into place and noted this in the eyes of the jury. The comment about living in the basement of Nicoli Lopez’s parents
wasn’t a big deal on its face, just a small detail that could have gone unnoticed if DiMarzo hadn’t repeated it. But sometimes the connectivity—the linkage—of small details remembered by multiple witnesses carried more weight than any one “significant” item on its own.

Karp walked over to the prosecution table and picked up the plastic envelope containing the magazine photograph from the
Dock.
“Mr. DiMarzo, you testified that you didn’t know Vince Carlotta, correct?”

“That’s right.”

“Did you know what he looked like before the night you went to New Rochelle with Alexei Bebnev and William ‘Gnat’ Miller to murder him?”

“I’d never seen him before.”

“Were you given some way to identify him so that you’d know you were killing the right man?”

“Yeah. Bebnev gave me a photograph from a magazine.”

“Where’d he get the photograph?”

“From one of those guys, Joey, I think, that night he went to Hell’s Kitchen and met those guys.”

“Could you describe the photograph?”

“Yeah, there was four guys in it,” DiMarzo said. “They were standing on a boardwalk.”

Karp handed the photograph and envelope to DiMarzo. “Can you identify the contents of this envelope?”

DiMarzo looked at it and immediately nodded his head. “Yes, this is the photograph from the magazine that Bebnev gave me.”

“How do you know that?”

“I recognize the picture, and it’s got the same writing on it. My initials and the date I handed it over to you are also on the back.”

“What did you do with the photograph after Mr. Carlotta was murdered?”

“I put it in my Bible.”

“Why? Why not get rid of it?”

“I don’t know, really,” DiMarzo replied, and then thought about it for a moment longer before adding, “Maybe for this reason.”

“Which is?”

“To help prove that what I’m saying is the truth.”

“Do you recognize anyone in the photograph now?”

“Yeah, Mr. Carlotta,” he said before nodding at Vitteli, “and that guy over there, Vitteli.”

Walking over to the defense table and staring down at the defendant, Karp pointed. “This man right here?”

“Yeah.”

Breaking off his eye contact with Vitteli, Karp turned toward the court reporter and judge’s dais. “Let the record reflect that the witness identified the defendant as one of the men pictured in People’s Exhibit Twenty-Eight, which I now ask the court to receive into evidence.”

“Without objection so accepted,” Judge See ordered.

Looking back at the witness, Karp asked, “Why did Bebnev give you the photograph? If he was going to do the shooting, why didn’t he use it to identify the victim himself?”

“One thing was, Bebnev’s eyesight wasn’t so good,” DiMarzo replied. “He needed glasses, but he thought they made him look weak. But it was probably so that I would be more involved in the whole thing, too.”

“Did you use the photograph?”

“Yes, the night we went to his house in New Rochelle,” DiMarzo said. “They weren’t home when we drove by, so we waited up the block. After they drove past us and Mr. Carlotta got out of the car, I knew it was him from the photograph. He was a good-looking guy, pretty distinctive. As a matter of fact, Bebnev asked me if he was the guy. He kept saying, ‘Check the photograph.’ ”

“Did you use the photograph again?”

“No. We didn’t need it. Lvov called Bebnev and told him—”

“Objection,” Kowalski said, rising to his feet. “Whatever, if anything, this Lvov character said to Bebnev would be hearsay.”

“Sustained,” Judge See said.

Karp rephrased. “Did Bebnev tell you about a new plan to murder Vince Carlotta?”

“Yeah. He said that Carlotta was going to the restaurant where Bebnev had met Lvov and the two other guys, Joey and Jackie, and that Carlotta would be coming out of the restaurant with three other guys,” DiMarzo said. “We were supposed to wait in the alley and then pretend it was a robbery, only Bebnev was going to shoot Carlotta.”

“But you didn’t need the photograph, because you’d already met Mr. Carlotta when he came to the door of his home in New Rochelle?”

“That’s right.”

Retrieving the photograph and returning it to the prosecution table, Karp moved on to the night of Carlotta’s murder by asking DiMarzo to recall what happened after he and Miller picked Bebnev up in Little Odessa and drove to Hell’s Kitchen. DiMarzo described how they’d waited for an hour in the alley, with Bebnev nervously smoking Belomorkanal cigarettes while DiMarzo kept his eye on Miller sitting in the car across the street watching for their victim to appear. They’d slipped farther into the shadows when sometime after midnight two men, one of them very large, walked past. A few minutes later, they got the signal from Miller, who waved and pointed, that their quarry was approaching.

“We waited until their voices were close; then we jumped out,” DiMarzo said. “Bebnev pointed his gun at Mr. Carlotta and demanded their wallets. He was supposed to pull the trigger right away, but he hesitated, and that’s when Mr. Carlotta went for his gun.”

“What were you supposed to be doing at this time?”

DiMarzo shrugged. “I guess looking out for cops. But I think mostly Bebnev didn’t have the nerve to do it on his own.”

“Did the defendant do anything at that time?” Karp asked.

“Yeah, he had his hands up in the air,” DiMarzo said, demonstrating, “then reached down and grabbed Mr. Carlotta’s arm.”

“Did Mr. Carlotta say anything then to the defendant?”

“He said something but I didn’t hear what it was,” DiMarzo replied. “I had the ski mask pulled down over my ears that kind of muffled the sound, and to be honest, I think I was just sort of freaking out myself. I couldn’t believe it was all happening.”

“Did the defendant say anything to Bebnev?”

“He yelled, ‘Shoot!’ Something like that. He told Bebnev to shoot.”

“What happened then?”

DiMarzo sighed. “Bebnev shot him in the chest. It knocked Mr. Carlotta down. He was trying to get up, but Bebnev shot him in the head.”

“Did the defendant say anything then?”

“Yeah, Bebnev and I were just kind of standing there, so Vitteli,” DiMarzo said, again nodding toward the defense table, “told us to take their wallets and watches so it would look like a robbery. Then we took off across the street and peeled out of there.”

Karp walked back to the prosecution table and glanced briefly at his notepad before turning back to the witness. “When did you get paid?”

“I got some of it from Bebnev the next day,” DiMarzo said. “Seven thousand bucks for the two of us. But I had to bug him for the rest. That’s when he told me to meet him at a bar in Little Odessa and he’d give me the rest. Lvov showed up—”

“How did you know it was Marat Lvov?” Karp interrupted.

“Bebnev called him by his name when he walked into the bar,” DiMarzo said. “Lvov came over to our table. He wasn’t too happy to see me and told me to get lost. I was like ‘no problem’ and went across the street to wait for my money.”

“Did you get your money?”

“Not all of it. Lvov or one of his goons hit Bebnev in the bar, so he said he was keeping some of our share because he had to do the tough stuff,” DiMarzo said. “At that point, I just wanted nothing more to do with Bebnev, so I took it and left.”

Crossing his arms, Karp walked slowly over to stand in front of DiMarzo. “How did you feel after the murder and you got your money?”

DiMarzo’s mouth twisted as he considered his answer. “You know, at first it felt good to have a roll of dough in my pockets,” he said. “I don’t know. I kept telling myself that these guys—Mr. Carlotta and Vitteli and Joey and Jackie—were caught up in mob stuff and who cared if they wanted to kill each other. Then I read a couple of newspaper articles and people were saying all these good things about Mr. Carlotta, about how he cared for his union guys and was a . . . what was the word they used . . . a reformer. Then I watched the funeral services for him on television and I saw his wife and his baby and . . .”

For the first time since he’d taken the stand, DiMarzo’s voice faltered. “I saw her face and how much she loved him and what pain she was in. I started thinking about Mom and how she’d feel if Dad got killed. . . .”

In the gallery, someone in DiMarzo’s family cried out, but the judge ignored them as DiMarzo continued. “And I felt like shit. I hardly slept, and when I did all I did was dream about her face, and I kept hearing Mr. Carlotta’s voice saying, ‘You son of a bitch.’ Only he wasn’t saying it to Vitteli, he was saying it to me, and I knew he was right, I was a son of a bitch.”

“So why didn’t you turn yourself in?” Karp asked.

DiMarzo considered the question and shook his head. “I was scared. I didn’t want to go to prison for murder. But mostly I didn’t want my family to know I’d done this terrible thing. I just kept hoping it would all go away.”

“But after you were arrested and indicted, you pleaded not guilty and decided to go to trial with Alexei Bebnev,” Karp noted. “If you felt so bad about all of this, why not plead guilty then and take responsibility for what you’d done?”

“The same reasons—I was scared and didn’t want my family to know—and also after I got arrested, my family got a photograph in
the mail,” DiMarzo said. He scowled and looked at Vitteli. “It was a picture of my mom getting in our car and somebody drew a black mark across it. Some piece-of-shit coward was threatening my mom.”

“Were you convicted of acting in concert to murder Vince Carlotta?”

“Yes.”

“Were you indeed guilty of acting in concert to murder Vince Carlotta?”

“Yes.”

“Was that conviction later vacated by my office?”

“Yes.”

“Would you please explain to the jury why?” Karp asked.

“Evidently you found out there were some shenanigans with my court-assigned lawyers,” DiMarzo replied.

Karp left it at that without explaining that during the Q&A statement he’d taken from him, Jackie Corcione had mentioned that Vitteli had paid the freight on Clooney’s legal fees but also for DiMarzo’s court-appointed private counsel. Vitteli basically called the shots on the defense and paid off DiMarzo’s counsel to let Conrad Clooney, ostensibly Bebnev’s lawyer, run the whole show. In effect, DiMarzo was denied effective assistance of counsel, compromising his Sixth Amendent rights.

Prior to Vitteli’s trial, Karp had disclosed all of this on the record,
in camera,
with Kowalski present, indicating that DiMarzo would give the jury a very abbreviated, precise answer with respect to the vacating of his first conviction. Pointedly, he was directed to leave out any of Vitteli’s misconduct. Both parties agreed and the court so ordered.

A less ethical prosecutor might have let the whole issue pass; after all, the defendants were guilty, as Miller and, later, DiMarzo had admitted. But not Karp. He’d immediately filed to vacate the verdicts and then explained to DiMarzo what it meant. “You are entitled to another trial with a competent attorney to truly represent you,” he said.