In The Plan - 10. Chapter 10

10

The first day of the trial went pretty much as expected. Jenkins's first witness, Jyoti Patel, the co-owner of the liquor store, said just what was anticipated. She's seen the accident because she'd been facing the front window of their store, but their own van prevented her from seeing the completion of the crash. The loud noise that got her attention was the sports car hitting the light pole, not the car hitting their van. That actually caused minimal damage because the force of the car had dissipated when it landed and skidded to a rest.

Jenkins slowly worked Jyoti Patel through his questions, and her testimony was slowed because of the many police photos she needed to review. Lee let her speak without objection and asked very few questions afterward because there was no damage she could do to his case.

Mid-afternoon, Jenkins's second witness, Joseph Muraro was called. He was the driver who'd been stopped, waiting for a traffic light to turn green when Brad Coghlan's car nearly smashed head first into his. "I thought he had me," Muraro said. "He came up to me and at the last second swerved to my left. If he hadn't had a sports car, he never could've done what he did - missed me by maybe an inch - a half inch. I thought the back end of his car was going to hit mine for sure."

Muraro continued to testify about things both Jenkins and Lee had expected until he was just about finished with his testimony. Then he gave everyone a huge surprise. All Jenkins had asked him was, "What do you remember about the driver?"

"He was like laughing or something," Muraro replied. "I remember his face."

"Do you remember any specific details of his face?," Jenkins asked. "His body? Anything?"

In his police statement, Muraro had remembered "light, longish hair and the driver being younger than the passenger." That was what Jenkins wanted the jury to hear.

Instead, Muraro said, "That's the man over there. I remember his face. I'll never forget his face."

"Have you seen that man before today?" Jenkins quickly asked. "Other than that night?"

At that moment, Lee interrupted. "Excuse me, judge. May we approach?"

"Yes, counsel."

And Lee asked for a mistrial. That came out of nowhere for Jenkins. "We just had a in-court identification," Lee explained. "On someone without any notice to me. I would have been entitled to some kind of hearing before this. I'm shocked. I'm just stunned."

The judge asked him to go on.

"I only have the statement from the gentleman as it was given," Lee insisted. "He never identified the driver. He said that he only saw him a split second. He could see his hair."

The judge turned to Jenkins, for explanation.

"I didn't anticipate that answer," Jenkins admitted. "That's for sure. No one has made any efforts over time to show Mr. Muraro any photographs, at least, not that I'm aware of."

"Are you certain?" the judge asked.

"To the best of my knowledge," Jenkins assured him, "Mr. Muraro has never seen Mr. Coghlan before today - other than assuming that Mr. Coghlan was driving on the night of the accident."

"You understand Mr. Lee's dilemma?" the judge asked.

"Yes. It's obviously a surprise. But there's no police process involved, so Mr. Lee isn't entitled to a hearing."

"I don't believe he's complaining about the lack of a hearing," the judge said. "He's complaining about the surprise."

"I understand that. But surprises happen in the courtroom all the time."

"I think we're talking about something very different," Lee objected. "I can't tell you what I would have done - but I certainly haven't prepared my case anticipating an in-court identification. Also, we don't know if Mr. Muraro only recently saw Mr. Coghlan in the hallway - maybe just this morning. Innocently pointed out by someone as the defendant."

The judge thought for a moment, alternately looking at each attorney. "Well, I'm going to deny a mistrial at this point. Let's explore and see what comes of this."

Jenkins was pleased, but Lee had another consideration.

"Maybe we should excuse the jury," he suggested, "and have a short clarification hearing. I might be a little freer than in the questions I'd ask before a jury."

The judge also had a suggestion. "Maybe we should let Mr. Jenkins continue with his questioning, conclude, and then see if you want this hearing."

"That is an alternative," Lee agreed.

"I think a more feasible one," the judge concluded. And the trial resumed.

"Mr. Muraro," Jenkins asked, "had you ever seen the driver of the sports car before? I mean before the accident?"

"No," Muraro replied.

"Did you see where he went after he passed you? Did you track him in your rearview mirror?"

"Just as far as I could go. There was a big cloud of smoke behind his car. It looked like it was ready to blow up."

"Did you see the car later in the evening?"

"Yes. I saw it crashed in the lot, like in this picture."

Joseph Muraro still had the folder of police photos in his lap, with one of the crash photos on top. He held it up for everyone to see.

"Did you just drive on, or did you stop?" Jenkins asked.

"I stopped."

"Why?"

"To find out if they killed themselves. I wanted to see if they killed themselves before they killed somebody else. I went over to a police officer and asked what condition they were in. He said they were both in the hospital."

"Did you identify yourself?"

"Yes. I said I saw them go by at a light, and the officer asked my name and if I would be a witness."

"Other than that, was that the extent of your involvement with the car and with the people who were in it that night?"

"Yes."

Jenkins nodded and turned to the judge. "I have no further questions."

The judge acknowledged this, then glanced at the clock at the back of the courtroom and turned to the jury. "Ladies and gentlemen, since it's nearly four o'clock, let me excuse you for the afternoon. We'll resume at 9:15 tomorrow morning."

After the jury left, the judge addressed the witness.

"Now, Mr. Muraro, Mr. Lee has requested that we have a hearing in regards to your testimony. And I've decided - based on these developments - to allow that. So he's going to ask you some questions."

"Fine," Muraro said. And Lee began.

"When was the last time you had any contact with anybody from either the Nassau County police or with the prosecutor's office, prior to today?"

"The prosecutor's office called me this week," Muraro replied. "To let me know when I had to be here to testify. The only time I ever had anything to do with the police otherwise was the day I put in the complaint."

"You say that somebody from the prosecutor's office called you Monday or Tuesday, telling you to be here this morning?"

"They called me a few times this week. I was out working."

"You only spoke with someone on the phone? How many times?"

"A couple of times - three times. With Sergeant Benedict and Mr. Jenkins."

"Within the last two months, did you have a chance to sit down with either of them to discuss your testimony?"

"No. Only on the phone."

"When you spoke with Mr. Jenkins on the phone, did you discuss what you remembered happening?"

At this point, Jenkins gently interrupted by signaling that he had something to say. Lee and the judge nodded.

"I was never sure I was going to get to Staten Island," Jenkins explained. "To get to see Mr. Muraro. So I basically did a telephone interview."

Lee accepted that and turned back to Muraro.

"Way back when the accident happened," he asked, "did anyone from the police or the prosecutor's office talk to you about the fact that one of the people in the car was a police officer?"

"No," Muraro said. "I found that out later by reading a newspaper."

"Did it have pictures of Mr. Coghlan?"

"No. Only of the wreck." Muraro again pulled one of the photos out of the file. "I think it might've been this one. But fuzzy and in black-and-white."

The 8 x 10 police photos were all clear and in color.

"Did you ever tell anyone in the police department," Lee asked, "or in the prosecutor's office that you were very upset over the fact that a police officer was involved in this accident?"

"They never told me it was a police officer," Muraro persisted. "I found that out later on."

"So who told you..."

"I know what you're trying to do," Muraro interrupted, perhaps a bit too defensively. "I have friends who're cops. Don't try and make me say that I picked on a cop."

"Let's go back to the simple question," Lee asked, still not letting go. "Who told you that it was a police officer involved in the accident?"

"I told you" - Muraro was getting angry - "I found it out in the paper."

"Forgetting whether you saw it in the paper or were told by a police officer..." Lee calmly continued, "...once you learned that it was an officer, did you ever discuss it with Sergeant Benedict or Mr. Jenkins?"

"No," Muraro said, relaxing a bit. "That wasn't the concern."

"Did you tell anybody that you were personally upset that it was a police officer?"

Muraro smirked. "I think it's a damn shame that it was a police officer that conducted himself that way."

Lee ignored the grin. "Did you talk with either Sergeant Benedict or Mr. Jenkins about what the driver looked like or what he did for a living?"

"I remembered what he looked like. I didn't have to ask them."

"I didn't ask you that. Let me rephrase the question. 'Did you talk to them about it?'"

"Yeah," Muraro admitted. "I stated what he looked like."

"What did you tell them?"

"That he looks like how he looks like right now. His hair was that color. But it was longer."

"Did you tell the police that in your statement?"

"I think so."

"Did you tell the police that you'd recognize him again?"

"Yeah. I'd recognize him if I saw him. I think I said that. But it was a year ago. I don't remember exactly what I said."

Lee nodded. "That's fair," he allowed.

"I was wrong," Muraro went on, quickly correcting himself. "It was two years."

Lee did the math. "Yes. Yes, you're right. It was." He paused for a moment, to check his notes. "Now when you gave your statement right after the accident, did the police tell you that they wanted you to see any photographs? Were you ever shown any photographs?"

"No," Muraro said.

"Not of what the people looked like in the car?"

"Were there any? I've never seen them." He gestured with the police folder.

"Now, as we approached this trial," Lee continued, "did you tell Mr. Jenkins that you could identify who the driver in the car was?"

"I might have." For a second, he turned to Jenkins and asked, "Did I?"

Jenkins smiled reassuringly. "You're not allowed to ask me that."

"Oh. Sorry." Muraro grinned.

Lee pushed on. "Did Mr. Jenkins ask if you remembered what you told the police two years ago?"

"I'm sure he did," Muraro answered. " But as I said, it's very hard to remember word-for-word what I told the police. I remember what I remember." He shrugged.

"Do you think that it's an important fact that you remembered exactly what the guy looked like?" Lee asked. "The guy who passed you at a hundred-miles-an-hour back two years ago?"

"I remember his face coming at my face."

At this point the judge needed to interrupt. "Mr. Muraro, please. You're not listening to the question."

Muraro turned to the judge. "Then maybe I don't understand the question."

"You're arguing with Mr. Lee."

"But I don't understand..."

"Stop. Now you're arguing with me."

Muraro looked to Jenkins for help. He again smiled encouragingly. But he couldn't give help.

"Mr. Muraro, please," the judge went on. "We're trying to get this straightened out. Mr. Lee's question was, 'Did you think that it was important that you could identify who this individual was who almost hit you at a hundred-miles-an-hour?'"

"Did I think it was important? Yeah."

"Believing that it was important," Lee continued, "would you have told the police who were questioning you about the description of the driver that you could identify the person?"

"Yes," Muraro assured him. He was calm again.

Lee turned to the judge. "For the purpose of this hearing, I have nothing else."

The judge noted that, then turned to Jenkins and asked, "Do you have anything for the hearing?"

Jenkins replied, "Yes. I really should make a representation."

"In terms of the witness?" the judge asked.

"No. Not in terms of the witness."

The judge considered that, again glancing at the courtroom clock. "I think we've got to ask Mr. Muraro."

Both attorneys agreed, and the judge continued.

"Mr. Muraro, I'm sorry we've held you over. We've had this hearing, and we're going to have to bring you back tomorrow. I realize it's inconvenient."

Muraro suddenly looked very uncomfortable. He looked at Jenkins, then at Lee, then at the judge. He didn't know who to address. Finally, he blurted it out.

"I can't do it tomorrow. I cannot. It's impossible. I have a mortgage that has to be paid, and I have a job that has to come in tomorrow. I have to work tomorrow and Friday. I can't stop my business. You chose the time to have this hearing, and I made an excuse today. I could have been here at nine o'clock this morning. I took the day off purposely to come in. I cannot make the same excuse tomorrow."

The judge looked surprised but sympathetic. "Well, Mr. Muraro," he said. "Let me let you step down, and I'll talk to Mr. Jenkins before we go any further."