“Yes.” Declan set down the paper, stony-faced.
“Mr. Mitchell, did Mr. Grusini place a call to you at 11:04 P.M., on the night in question?”
“Yes.”
“Did he reach you?”
“Yes.”
“In fact, it appears from these records, and is consistent with your testimony, that Mr. Grusini called you immediately upon leaving the bar after the fight, isn’t that correct?”
“Yes.”
“Mr. Mitchell, let me direct your attention to the second highlighted call after the call that Mr. Grusini made to you. Would you please read that entry to the jury?”
“It says 11:09 P.M., incoming call, 215-555-2873.”
“Mr. Mitchell, those are the only two calls after eleven o’clock, correct?”
“Yes.”
“Mr. Mitchell, you were present in the courtroom when Ms. Zimmer testified about her conversation with Mr. Grusini, were you not?”
“Yes, I was.”
“Mr. Mitchell, isn’t it clear from this phone record that you spoke to Mr. Grusini before Ms. Zimmer did?”
“Yes.”
“Yet the prosecutor did not summon you to the stand to testify to the fact, did he?”
“No.” Declan frowned, and so did the jury, collectively. Bennie knew she had made her point, and it had scored. She guessed from Declan’s expression that he hadn’t wanted to hide the call, but Martinez must have. The cover-up was always worse than the crime, but if prosecutors ever got that message, there would be no such thing as prosecutorial misconduct.
“Mr. Mitchell, you heard Ms. Zimmer testify that Mr. Grusini’s state of mind after the bar fight was ‘happy and upbeat,’ did you not?”
“Yes.”
“Mr. Mitchell, you also heard her testify that Mr. Grusini was not angry or unhappy in any way, did you not?”
“Yes.”
“When Mr. Grusini called you that night, where were you when he reached you?”
“I was driving home from my office.”
“The conversation took five minutes, is that correct?”
“Yes.”
“Mr. Mitchell, when you spoke with Mr. Grusini that night, he wasn’t happy and upbeat, was he?”
Declan met Bennie’s eye, momentarily letting his guard down, and Bennie saw pain flicker behind his eyes. He was hurt that she would put him on the stand, and ultimately that she would use him in a way that benefited Jason’s defense. But there was nothing to be done about it now, and she pushed the past back into the past.
“Mr. Mitchell?”
“No.”
“Mr. Mitchell, so we’re clear, it is your testimony that Mr. Grusini was not happy and upbeat when you spoke with him, directly after the bar fight?”
“Yes, that’s my testimony.”
“Mr. Mitchell, what did Mr. Grusini say to you when he called you after the bar fight?”
“Objection, hearsay, Your Honor.” Martinez jumped to his feet, which Bennie anticipated because it was rank hearsay, but that didn’t stop her.
“Your Honor, the prosecutor will go to any lengths for the jury not to hear this information, which he intentionally omitted from his case—”
“Ms. Rosato.” Judge Patterson waved Bennie into silence.
“Your Honor, I’ll rephrase the question.” Bennie turned to Declan. “Mr. Mitchell, without telling us what Mr. Grusini said to you, what did you say to him during that phone call?”
“I told him that he should calm down.”
Bennie glanced at the jury and saw the reaction she wanted. Two of the jurors in the back row looked at each other, and eyes rounded in the front row. The grandmother wheeled her head around to look at Martinez, her disapproval plain. Bennie addressed Declan, softening her expression. She’d known he wouldn’t lie to her, and he hadn’t, and, somehow, it broke her heart.
“Mr. Mitchell, isn’t it true that you said that to Mr. Grusini because he was upset and angry after the bar fight?”
“Yes.”
“Thank you.” Bennie approached the witness box and took the phone logs from the ledge. “Mr. Mitchell, without telling us what Mr. Grusini said, did he speak to you with a raised voice?”
“Yes.”
“Without telling us what he said, did he use profanity?”
“Yes.” Declan swallowed, his Adam’s apple tight against his cutaway collar.
“Mr. Mitchell, did you do anything or take any action as a result of your phone conversation with Mr. Grusini?”
“I called Richie’s mother, my sister, Doreen, and I told her that I was concerned about Richie. Later that night, I tried to reach Richie, but it was too late.”
Ouch. Bennie hadn’t seen that coming, but she let it go. She had already made her point and she could see the impact it had on the jury, from their collective frown. Still, as good as it was, it wasn’t a homerun. She would have to go forward with her next witness. She looked up at Judge Patterson. “I have no further questions, Your Honor.”
Judge Patterson turned to Martinez. “Mr. Martinez, cross-examination?”
“No, Your Honor,” Martinez said, half-rising.
Judge Patterson turned to the witness box. “Mr. Mitchell, you may step down.”
“Thank you, Your Honor.” Declan rose stiffly, left the box, and on the way back to his seat, shot Bennie one last look. She caught the expression on his face and wished she hadn’t.
Bennie took a deep breath. “The defense calls Jason Lefkavick to the stand.”
CHAPTER SIXTY-ONE
Bennie crossed back to counsel table, where Jason remained seated as if glued to the chair. His eyes had gone wide with disbelief, and his palms lay flat on counsel table.
“What, me?” Jason asked, his voice a whisper. His head wheeled from Bennie to the judge and back again.
“Jason, please take the stand.” Bennie walked over to him, then touched his arm, trying to guide him from the seat.
“I don’t want to, I don’t want to take the stand.” Jason shook his head. “You didn’t tell me I had to go. You didn’t say you were going to put me up there.”
“Jason, please take the stand.” Bennie lifted him bodily out of the seat. She would have warned him that she was going to call him, but she wanted him unawares. Only if he was off-balance did she have a fighting chance of getting the truth out of him.
Meanwhile, Martinez eased back in his chair, a finger to his lips, his expression nonplussed, and the jurors looked equally astonished, with Brooklyn Girl lifting an eyebrow. The reporters in the gallery whispered to each other, and the courtroom artist grabbed his entire box of chalk.
“But I don’t want to.” Jason snapped his head around to Judge Patterson. “Judge, do I have to go up there?”
“Oh, my,” Judge Patterson faltered. “Mr. Lefkavick, your attorney could subpoena you if need be, but that will only result in delay of these proceedings. You are protected by the Fifth Amendment right against self-incrimination, so you have the right to refuse to answer whatever questions are asked of you, but you are nevertheless compelled to take the stand.”
“Bennie, no.” Jason turned to her, his eyes pleading, but Bennie took him by the arm and led him to the witness stand.
“Jason, please go sit down. Don’t be nervous, just answer any questions I ask you honestly and directly, okay?”
“But—”
“Go, now.” Bennie pointed, and Jason climbed into the witness box and held up his right hand, his eyes darting anxiously around as he was sworn in, then he sat down and perched on the edge of his seat. The jury watched his every move and gesture, their lips parted and eyes wide open. They were smart enough to understand they were seeing something out of the ordinary, if not downright crazy, and Bennie tried not to think what a massive risk she was taking, with Jason’s life.
“Jason,” she began, intentionally using his first name, “you’ve just been sworn in, and so, as you heard, you have to tell the truth, the whole truth, and nothi
ng but.”
“I did already, I told you the truth.”
“Then you have nothing to worry about, do you?” Bennie needed to get him settled because she didn’t want the jury to misconstrue his nerves as evasion. “Jason, take a look at the jury. They’re just regular people like you and me, and they want to hear what you have to say.”
Jason turned to the jury, his eyes wide as he scanned the first and second row. The grandmother smiled at him in a reassuring way, which encouraged Bennie. Jason wasn’t acting like a hardened criminal, but a scared kid, which was the truth, and so far, it was working.
Martinez rose, shaking his head. “Your Honor, objection. Is this a civics lesson or murder trial?”
Bennie faced the judge. “Your Honor, nobody in this courtroom is more aware than Jason Lefkavick that this is a murder trial. If Mr. Martinez would stop objecting, which is only making Jason more nervous, then perhaps we can get the truth about what happened in the alley that night. Unless, of course, Mr. Martinez is going to hide the truth, like he did with Mr. Mitchell’s phone call and—”
“Ms. Rosato, you can stop testifying.” Judge Patterson held up a manicured hand. “You must admit this is rather unorthodox. As for Mr. Martinez’s objection, it’s overruled.”
“Thank you, Your Honor.” Bennie nodded, and faced Jason. “Jason, let’s begin simply. You grew up in Mountain Top, isn’t that right?”
“Yes.”
“Do you have any brothers or sisters?”
“No.”
“How old were you when your mom passed away?”
“Eleven.”
“Would you mind telling us how she died?”
“She had a heart attack.” Jason flushed under his thin skin, but Bennie was relieved to see that he was more sad than angry.
“How did you get along with your mom?”
“Good, really good.” Jason nodded in a jittery way, his fingers knitting in his lap.
“That must’ve been very hard for you, when she passed.”
“It was. My dad, too.”
“After she passed, how did you get along with your dad?”
“Yes, good, it was just him and me, and the dog.” Jason glanced at the jury. “I mean, sorry. But we really, I mean, she was a great dog. I guess me and my dad, we both, kind of, put the wagons in a circle.”
Bennie waited until Jason finished talking, noticing that his nervousness was making him talkative, which was fine with her. Soon Martinez would object to relevance again, so she switched up the order of her questions, on the fly. “Now Jason, let’s fast-forward to the night of Mr. Grusini’s murder. Was there any significance to that date, in your mind?”
Jason hesitated. “It was the anniversary of my dad’s death. He died, his heart got him.”
“And how did it impact your state of mind that night, when you went up to Mr. Grusini in the bar?”
Jason blinked. “I was just feeling sad, really sad that night, and I know my dad always blamed Richie, like going way back, for what happened to us, going to jail and getting stuck in Kids-for-Cash.”
Bennie could see Martinez roll his eyes, but there was no basis for an objection, so she continued. “Jason, why did your dad blame Mr. Grusini for you both getting incarcerated? If you know.”
“It was because we got into that fight in the cafeteria, when Richie said my mom got a heart attack because she was fat—”
“Objection,” Martinez said, on his feet. “Move to strike the answer as hearsay.”
“Your Honor.” Bennie faced the judge. “It’s only hearsay if it comes in to prove the truth of the matter asserted. We’re hardly discussing whether Jason’s mother was overweight or why her heart attack—”
“I see your point, Ms. Rosato, but I still think it’s hearsay and I’ll strike it.” Judge Patterson turned to the jury. “Ladies and gentlemen, as I reminded you earlier, during the testimony of Ms. Molloy, you are once again instructed not to consider the previous answer provided by Mr. Lefkavick and you are instructed not to consider it under any circumstances when the time comes for you to begin deliberations.”
“Thank you, Your Honor.” Bennie knew it was impossible to unring the bell anyway. “Jason, without going into what Richie said in the cafeteria that day, what did you do?”
“I pushed him, and that’s when the principal told the cops, and the cops came and arrested us both and we went to River Street.”
“Please explain to the jury what River Street was.”
“It was juvie hall. Really, jail.” Jason’s face fell, and he averted his eyes. “I did push him, but it just got me mad, thinking about my mom, and I wanted to stand up for her.”
“Okay.” Bennie seized the moment. She slipped her hand into her pocket, pulled out the plastic figurine of Richard the Strong, and set it on the ledge. “Your Honor, I would like to move into evidence as Defense Exhibit 25, one of Jason’s childhood toys.”
“What’s that?” Judge Patterson leaned over the dais, squinting.
“Objection, relevance!” Martinez leapt to his feet. “Your Honor, this is a blatant attempt to gain sympathy for the defendant by introducing his childhood toys! Should I begin to introduce Mr. Grusini’s toys? He had toys, too!”
Judge Patterson shot Martinez a warning look. “Mr. Martinez, I won’t have you grandstand in my courtroom.” Then the judge turned to Bennie. “Counsel, what possible relevance does this have?”
“Your Honor, it is completely relevant, and I was just about to connect it to the murder at issue. Perhaps if I could first authenticate it, then move it into evidence, I could make its relevance plain.” Bennie noticed that the jury leaned forward, peering at the toy, and Computer Guy’s face lit up with animation, evidently a fellow Lego fan.
“Please do.” Judge Patterson leaned back in her chair.
“Jason, would you please identify this toy for the jury?”
“That’s Richard the Strong.” Jason picked up the toy, turning it this way and that in his hands.
“Why was Richard the Strong important to you as a child?”
Jason hesitated, blinking. “I don’t know, I just liked him.”
“He was a protector, wasn’t he? Isn’t that why you identified with him?”
“Objection!” Martinez shouted, his tone newly snarky. “She’s leading the witness, and are we really going to discuss the significance of a childhood toy, in a murder trial?”
“Your Honor.” Bennie faced Judge Patterson. “I’m entitled to explore Jason’s state of mind on the night of the murder. I think this toy is key to his state of mind at that time. If Mr. Martinez would let me ask one more question, I think I can explain the relevance of this exhibit.”
“One more question, Ms. Rosato.” Judge Patterson kept her eyes narrow, but Bennie changed tacks, improvising out of necessity.
“Jason, please tell the jury what happened on the night in question, from the moment you went into the alley.”
“I went in the alley because I admit, I was mad at Richie and I wanted to talk to him. That’s why I went to him in the bar, too. I wanted to tell him it was the anniversary of my dad’s death and he didn’t even care, he didn’t care about anybody but himself.”
“So what was Mr. Grusini doing when you entered the alley?”
“He was, well, he was just done urinating against the wall.”
“Then what happened, Jason?”
“I went up to him to tell him what I thought of him and all of a sudden, he hauled off and hit me, he punched me in the face, and I fell backwards, and when I woke up, he was lying there in the alley, and Richie’s throat was all cut and bleeding.” Jason grimaced, his horror clearly authentic. “There was a knife in my hand and blood all over me, on my forehead, and my eye was killing me where he hit me, and I don’t know what happened.”
“Jason, you didn’t kill Mr. Grusini in self-defense, did you?”
“No, I didn’t kill him, at all,” Jason answered, as the jurors blinked or shook
their heads in confusion, and the packed gallery burst into loud chatter.
“Order, please!” Judge Patterson banged her gavel on the desk, trying to settle everyone down.
“Objection, Your Honor!” Martinez’s voice rang out, angry. “What is going on here? Did defense counsel just change her theory of the case?”
Bennie moved quickly, taking advantage of the chaos. She crossed to her laptop, hit a button, then grabbed the TV remote on the fly, coming back to the dais. “Your Honor, there’s no basis for objection. I’m merely eliciting from my client the facts—”
“Hold on, Ms. Rosato.” Judge Patterson fixed her glare on Bennie. “I agree with you, there is no basis for objection. But I also agree with Mr. Martinez, that you appear to be changing your theory of the case.”
“Your Honor, I was wrong about my initial theory, and I am now attempting to elicit what really happened.”
“I knew it!” Martinez threw up his hands, making the most of the moment for the benefit of the jury. “I knew that was a lawyer’s theory! Your Honor, she misrepresented her case to the jury and Your Honor should—”
“Your Honor!” Bennie broke in. “I learned the truth only late last night, and if the prosecutor would allow me to ask a question—”
“Counsel, quiet, both of you!” Judge Patterson grabbed the gavel and banged it again. “Ms. Rosato, we will proceed with your case, but only in an orderly manner. First, are you seeking to move the admission of the Lego toy into evidence? Mr. Martinez is objecting to its admission, on relevance grounds.”
“No, Your Honor, I’ll withdraw my request to admit it into evidence.” Bennie didn’t really need it admitted, only shown to Jason, to bring those emotions back to him.
“Second, are you changing your theory of the case and abandoning your self-defense claim?”
“Yes, and what really happened in the alley will be proven right now.” Bennie was determined to get at the truth, and the only way to do it was through cross-examination, even if it was of her own client, in open court.
“Thank you.” Judge Patterson faced Martinez. “Mr. Prosecutor, please take your seat.”
“Thank you, Your Honor.” Martinez sank into his chair.