In The Plan - 11. Chapter 11

11

As soon as Muraro left the courtroom, the judge turned to Jenkins and said, "I think you understand that if he doesn't subject himself to cross-examination, then we have to start from scratch."

"I understand."

"I don't want to get involved in a dispute with Mr. Muraro," the judge went on, "and he seems to be having a problem. I want to have you clarify the witness relationship, and then we'll have to decide what we do."

"I will."

"And I'm in a little quandary as to what to do. I don't want to order Mr. Muraro back if he's not going to come. It would just create a problem. So, perhaps, you want to talk to him."

"Give me five minutes."

When Jenkins left the court room, he found Joseph Muraro pacing in the hallway. Jenkins motioned to a nearby bench, but Muraro wouldn't sit, so Jenkins sat as an example. When that didn't work, he simply explained how complicated the situation was now and apologized if he'd made any of it worse.

Muraro stopped pacing and stared at him. But he said nothing.

"I really didn't mean to do that," Jenkins went on. "You're a very strong witness, and I don't want - in any way - to damage that."

Muraro thought about that. "I want to do what's right," he finally said.

"I appreciate that and want to make this as easy as possible - for you and for the rest of us."

They talked about that for another few minutes and worked out a possible schedule. "I'll have to talk with the judge and Mr. Lee about this," Jenkins explained. "But you don't have to wait. I'll call you when this is confirmed. And thank you very much."

Muraro simply nodded. He didn't feel like thanking the dofus lawyer for something that wasn't his fault. So he left.

Jenkins went back to the courtroom and began to explain. "Not in the most streamlined way possible, but given the pace we've been going at, my case may very well go through Tuesday morning. Mr. Muraro is willing to come back Tuesday at 9 AM, but he can't realistically come back earlier than that, financially. Now what that does to my case is a different issue, and what my options are is different. In the interim, I can keep putting witnesses on, and Mr. Lee's request for a mistrial is still hanging out there. Like both of you" - he looked at each of them - "I'm trying to balance everything. And we must have let twenty jurors go because of financial hardships. I'd hate to treat a victim significantly differently."

He looked at the judge, then at Lee, and getting no disagreement, went on.

"This may not be the best possible compromise, and I know you're in a position by virtue of your authority to simply order something that's not a compromise. But I think this sounds doable."

The judge seemed to think for a moment then said, "You're asking me not order Mr. Muraro to come back at 9:00 tomorrow - to get this presumably completed by 9:30 or 10:00 and let him go back to his work - but rather carry his testimony till Tuesday morning, when he can come back?"

"Yes. That's just what I'm asking."

The judge frowned. "Now stick with me a minute... My question is - from a legal standpoint - is that a defensible situation? This is a different hat you're wearing now. You're the trial attorney, but it's a little different question."

Jenkins considered then said, "I don't know if it's defensible. I understand the risk - that we're going to spend a week of trial time and on Tuesday have to conclude this hearing, and you're going to rule that Mr. Lee's entitled to a mistrial. But if you don't declare a mistrial, then yes, I think it's a perfectly defensible ruling."

He looked to Lee for approval, but the defense lawyer said nothing.

"If Mr. Muraro's testimony is going to stand," Jenkins went on, "then he'll get cross-examined, and whatever Mr. Lee can do, he can do. Whether he does it tomorrow or next week, it's easy for me to say it doesn't make a difference. I'm sure Mr. Lee would take a different position. The impact was now, and I'm sure he'd like to nullify it tomorrow as opposed to waiting until Tuesday."

The judge smiled. "Well, Mr. Lee's an experienced trial attorney, and I preliminarily denied the motion for a mistrial pending this hearing to see what would become of this testimony. Now Mr. Lee is, I'm sure going to renew it - but he may want the time to investigate. Mr. Lee, what's your position?"

Lee shook his head. "I can't imagine any amount of investigation is going to help. I…"

The judge interrupted. "Absolutely none?'

Lee seemed undecided. "I don't know if that's true or not," he admitted. "This in-court ID certainly raises a lot of issues. That would certainly suggest - as a responsible attorney - that I, at least, think about investigating. But I also think this delay would be extremely prejudicial. It almost devastates everything I'm trying to accomplish to prevent the jury with being left with Mr. Muraro's testimony unquestioned between now and next Tuesday."

The judge didn't deny that. But he didn't seem ready to change his mind.

"The witness surprised me," Lee continued. "He surprised Mr. Jenkins - identified point blank my client as the driver of that car. You sat through the openings, and you know that we're both arguing circumstantial evidence to some extent. I can't permit the jury to be left with that thought for the next four or five days while I proceed to attack Mr. Jenkins's case. I'd have no credibility. If I were a juror, I don't know how I'd view what I'm doing. I'd be looking at me, thinking, 'What's he trying to pull here?' And then we start next Tuesday? They may think that I'm fishing - you know, just grasping. That's what it would look like."

The judge considered this, too, and said, "Unless I simply explained to them that the reason we're continuing this way is Mr. Muraro is temporarily unavailable to come back."

Lee shook his head and said, "How about looking at it this way? This is a novel issue for all of us. We picked for jury. We opened. We heard Mrs. Patel and a half of a second witness. Grant the mistrial, and we start over. Don't grant it, and if something goes wrong, we create an issue which is going to utilize a whole lot more resources than merely picking a new jury, opening, and going through one witness again. We've got Thursday. We've got Friday. We've got Monday and maybe Tuesday. Even with your instructions to the jury, they're here, and they'll remember what Mr. Muraro said - 'That's the guy. I'll never forget him.' And we both know from experience, curative instructions only go so far."

At this point, Mr. Jenkins stepped forward. "I have to add something - I really do. It's my... I don't know... my self-destructive honesty."

Lee at the judge both looked at him, interested.

"The first time I talked to Mr. Muraro," Jenkins explained, "was on the phone." He hesitated, looking at the judge. "And I trust that you and Mr. Lee will accept what I'm about to say as though it were under oath."

Both men nodded.

"When I first talked to Mr. Muraro," Jenkins repeated, "it was on the phone. I called him from my house on a Sunday night because he's on Staten Island, and I really didn't know if I'd get there. You have to understand that I got this case twenty-five days before the trial. I've been working private practice hours and earning public practice money."

"You've still got your hair," Lee joked, and Jenkins smiled.

"Anyway, I wasn't sure I'd be able to get to Mr. Muraro. So I called him, and talked, and kind of went through his statement. And he told me that he'd never forget the face - he could identify the guy. And I didn't say anything to Mr. Lee, because, quite frankly, I didn't think Mr. Muraro was telling me the truth. I thought it was a figure of speech. So I didn't intend to ask him to identify anybody. I didn't build my case around it. I figured, look, I'm not on a mission."

The judge and Lee seemed sympathetic.

"I know people can remember things for a long time," Jenkins continued, "but I'm an experienced trial lawyer, and I didn't expect that the witness could actually do it. I didn't. I thought it was a figure of speech. 'I'll never forget that face.' You know. So maybe I'm at fault here for not passing this knowledge along. But I didn't take it at its value. I took it with a grain of salt. If you want to throw that into the mix, that's fine."

Lee interrupted the prosecutor to assure the judge of something. "Just for the record, I don't think for one split second that Mr. Jenkins did anything improper. I really don't. If he thought there was any truth to it, I know he would have told me about it."

The judge was also reassuring, pointing out, "And Mr. Lee hasn't accused you of anything."

"I'm not even suggesting it," Lee confirmed. "I don't even want that to be reflected in the record. It's not an issue."

Jenkins said he appreciated that. "Still," he added, "as you said, we don't know what the jury thinks. Whether Mr. Muraro is telling the truth or not, I can't say. I'm not God. But I know if I were Mr. Lee how I'd cross-examine him. It's almost two years from the accident - a handful of weeks away. This car went by at a hundred-miles-an-hour. Went by like this - zip! How could anyone remember a face? I'm hardly giving anything away, but I worked that all into the soup and said, 'There's no way. It's a figure of speech.'"

"There's also a real fact here," Lee interjected. "The gentleman has a mortgage. He has financial responsibilities, and we have to respect that. But standing here, if you order him to court and he refuses - if something goes wrong - he goes to jail. So who's got a lot more to lose right now?"

Jenkins agreed, and Lee turned back to the judge.

"So if you favor going in this direction - if you want to continue the trial with the thought that after my cross-examination, you can always declare a mistrial - then I support that. And I have tomorrow, Friday, Monday and the weekend to investigate - to have my associates explore - so I'm not entirely defenseless. Again, I appreciate the situation. I appreciate Mr. Jenkins's, yours, and mine."

Jenkins thanked Lee, and the judge agreed to let things go as they stood. Jenkins confirmed that he'd call Muraro immediately and tell him to be in the courtroom at 9 AM on Tuesday. Meanwhile, the trial would continue as planned.

The whole development certainly wasn't what Jenkins had expected, but he knew it put him in an even stronger position. At the same time, Lee was thinking, "How can I work around this? What can I find? What can my investigators find?" The answer was... he really didn't know. But he did know he'd have to get them on the phone as quickly as Jenkins was going to speak with Muraro.