Breach of Trust

5

Assistant U.S. Attorney Christopher Moody, lead prosecutor in United States v. Almundo, stood at the prosecution table, leafing through some papers. He had about five years on me-roughly forty-and his tightly cropped reddish blond hair and boyish features struggled against the sober demeanor required of any federal prosecutor. He had the look of someone who had just finished a stressful assignment.

In fact, the government was all but done with their case now. They’d put on more than thirty witnesses. Eleven members of the Columbus Street Cannibals, each of whom had pleaded guilty, had testified to shaking down local businessmen. Nine intermediaries, “straw” contributors who pocketed the extorted cash and then wrote a check in the same amount (minus a small fee for their troubles) to Citizens for Almundo, all had taken pleas and testified as well. There was no doubt about the extortion; the defense, in fact, had agreed to stipulate to it, but the federal government, in its typical flair for overkill, had scorched every last plot of earth, calling many of the shopkeepers as well and providing all kinds of colorful, fancy charts and PowerPoint presentations matching up the extortion payments to contributions to Hector’s campaign fund.

As for the Wozniak murder, the government showed that Wozniak refused to pay the street tax and introduced plenty of forensic evidence linking the fine young Cannibal, Eddie Vargas, to his murder.

But the government had a problem. For all this evidence, none of the witnesses could point the finger at Senator Almundo himself. None of those witnesses would testify that they ever spoke to Hector. And it wasn’t a crime to accept a contribution that was the product of extortion unless you knew the source of the money was illegal. If we could detach Hector from this criminal enterprise, he would walk free.

Enter Hector’s chief of staff, Joey Espinoza, the sole witness who could tie Hector to all of this, and who wore a wire to help the government do so. A polished, well-groomed man in his early forties, Joey Espinoza had just spent the last three days testifying that the entire neighborhood shakedown was orchestrated by his boss, the senator, from the comfort of his district office.

Finally, after conferring with his fellow assistants-other white Irishmen-Christopher Moody unbuttoned his blue suit jacket, signaling he was about to take his seat. I felt the familiar adrenaline spike.

“Thank you, Mr. Espinoza,” Moody said. “The United States has no further questions, Your Honor.”

“Cross-examination?” asked the judge, looking at Paul Riley, not me.

I felt the courtroom brim with fresh energy as the prosecution passed the witness to the defense. Espinoza had been on the stand for the government for three full days, so the buzz had subsided. But now the defense was going to get its shot, and expectations were high. We had to be aware of that from the outset. After Espinoza’s testimony, the jury would be expecting us to put a big hole in his testimony, or Hector Almundo would be convicted.

Paul Riley gave a very curt nod in my direction, a vote of confidence. I rose from my seat and felt a hushed surprise behind me. I assumed almost every spectator had anticipated that Paul, a celebrated lawyer, would handle the cross-examination of this witness. I’d been surprised myself when Paul tapped me. It certainly wasn’t charity on his part. There was no way that Paul would let me cut my teeth in a situation where the stakes were so high. Something had told him that I was the better choice. I think he wanted to stay “clean,” so to speak, for the closing argument. He wanted to remain the good guy, the earnest advocate, and not the one who tore a hole in the prosecution’s chief witness.

In any event, all that mattered now was that I took this witness down.

“Good afternoon, Mr. Espinoza. My name is Jason Kolarich.”

“Good afternoon,” said Espinoza.

The witness was inherently unlikeable: dressed too immaculately, bountiful dark hair styled just so, overly impressed with his careful enunciation-slick was my preferred term.

“If Senator Almundo had been elected attorney general, he would’ve had to resign his state senate seat mid-term, isn’t that true? He’d have two years left on his four-year term.”

“Yes, of course,” said the witness.

“And you wanted to be appointed to fill that vacancy.”

The witness angled his head ever so slightly.

My eyes moved to Chris Moody, who was scribbling a note. This would be a surprise to Moody, I assumed. Espinoza had said nothing of this in the direct examination, and he probably hadn’t volunteered this information to the feds. Espinoza had cast himself as the faithful aide, the loyal servant acting at the behest of his master. The obvious point I wanted to make was that Espinoza had an independent motivation to engage in the extortion plot; Hector’s move up the ladder would leave a rung open for Joey. And given that Espinoza probably hadn’t shared this information with the prosecutors, they hadn’t had the chance to prepare him for this line of inquiry.

“I don’t know about that,” said the witness.

“Well-” I looked at my client, Senator Hector Almundo, then back at Espinoza. “Didn’t you tell Senator Almundo that you’d want to be appointed to his seat? That you wanted to be the next senator from the thirteenth district?”

Espinoza restrained himself from looking in the senator’s direction. He took the whole thing like it was amusing. “I might have expected to serve as his chief of staff at the attorney general’s office, but senator? I don’t know about that.”

“That’s not what I asked you, sir.” Always a favorite line of a defense attorney-pointing out a witness’s evasion. It puts a small dent in his credibility and also highlights the importance of the question. “Did you not tell Senator Almundo that this is exactly what you wanted? To take his place in the senate?”

The witness, I thought, was calculating. Would Senator Almundo take the stand and testify to such a conversation? Had anyone else heard him utter this desire?

“Mr. Kolarich, the senator and I spent a great deal of time together. Often sixteen-hour days. Many things came up from time to time. If you are asking, did we ever discuss my future, the answer is probably yes.”

This was going well. The witness was giving a political answer, but this wasn’t a press conference. A chance for another indentation in his facade of credibility. If a witness is a brand-new car on direct examination, you want him to look he was in a head-on collision by the time you’re done crossing him.

“No, that’s not what I’m asking. Let me ask it a third time, Mr. Espinoza. Did you not tell Senator Almundo that you wanted to take his seat in the senate if he were elected attorney general?”

The witness smiled at me, and at the jury. “Mr. Kolarich,” he said, as if exhausted, “I cannot sit here with certainty and say yes or no to that question. It is possible that I said that, and it is possible I did not. I don’t recall with any certainty.”

“A conversation concerning whether you would be the next senator from the thirteenth district-you aren’t sure whether you had that conversation or not? You’re telling this jury you wouldn’t remember that?”

It sounded ridiculous. Espinoza had ambition written all over him. There was no way that he would have discussed this topic with the senator and not recalled it. Best of all, it was clear that the jury was not buying it.

Appearing to recognize as much, Espinoza tried to recover. “Let me say it this way, Mr. Kolarich. It is possible that I said such a thing but only in jest. I’ve been accused of having a dry sense of humor. I may have made the comment but not been serious.”

I gave him my best poker face. Espinoza never really had a good answer to this line of questioning. You’re at your best as a defense attorney when the witness is damned either way he answers, but Espinoza had made matters worse with his rationalization. I did my best now to look confused, maybe flustered, even disappointed, all to embolden Espinoza, to make him think he had won this small battle. I wanted him to think that he’d just stuck a knife in me, so he’d be encouraged to plunge it deeper still.

Espinoza, after all, was a smooth talker who’d had great success in that regard. He’d probably been nervous about facing the famed Paul Riley in cross-examination, and no doubt let his guard down ever so slightly when a young guy like me stepped up instead. I discovered, at just that moment, that probably this had been Paul’s intention in tapping me all along-to sneak up on this guy.

“So you’re saying that you and the senator would have discussed such a thing in jest? An exchange of dry senses of humor?” My tone was far less confrontational than my previous inquiries. To Espinoza, in fact, it probably sounded like I was flailing, losing the argument.

“Certainly. We share that trait.”

“A dry sense of humor?”

“Yes, sir.”

I nodded meekly and sighed. “Well, would it surprise you to learn that the senator didn’t take the comment as humor? That he might have interpreted your comment as serious?”

Out of the corner of my eye, I saw the prosecutor, Chris Moody, stir. There would be a temptation to object to this question, but Moody decided against it. The reason was that the only way I could prove that the senator took this comment seriously was for the senator to take the witness stand and say so-something Moody was correctly assuming would never happen. So it would be left hanging, unproven, which Moody would be happy to point out in closing argument.

Neither Moody nor the witness seemed to recognize my ulterior motive.

“It would not surprise me at all that he might have misinterpreted it,” said Espinoza.

“Even someone who has known you for a long time, like the senator?”

“Yes, sir,” he said, gaining momentum now, going for the kill. “Most certainly. If Hector took a comment like that as serious, then he was simply mistaken. It happens.” Espinoza bowed his head. “That is the hazard of a dry sense of humor, sir. Sometimes you are taken as serious when you are not.”

I paused, to give the appearance that I was defeated, drowning, unable to counter his answer. This played directly into his ego. He was smarter than the high-priced lawyer. “But-if you were joking, being sarcastic as opposed to being serious, wouldn’t your voice change inflection or something?”

“That,” said the witness, entirely pleased with himself, “is the very definition of a dry sense of humor, Mr. Kolarich. You deliver the sarcasm with a straight face. With an even tone.”

“So it’s a joke, but it sounds serious.”

“Yes.”

“Or serious, but mistaken for a joke.”

The witness opened his hand to me. “Precisely. Sarcasm is sometimes harder to detect than we realize.”

Oh, Joey, I thought to myself. Thank you for that.

Joey had beaten me up pretty well on that point, and I wanted it to soak into the jurors’ minds for a bit. An awkward silence hung for a moment. I thought that some of the jurors were actually feeling sorry for me. Then I shrugged and said, “Government’s 108, Your Honor.” I walked past the prosecution table to the small table where the recorder sat. I’d cued it up during the last court recess, so it was ready to play right where I wanted it. For the fourth time in this trial, the jury heard a secret government recording between the senator and Espinoza, poring over a campaign finance report:

ESPINOZA: At least fifteen thousand of the take from last month is from the Cannibals, Hector.

ALMUNDO: Great. Terrific. You know, ah, Flores, look at this guy. A lousy five grand after everything I did for him last time around. Five fuckin’ grand. And the carpenters didn’t exactly come through, either. Where the hell is all this union money I’ve heard so much about?

ESPINOZA: Hector, we have a problem.

ALMUNDO: Problem? Where the hell are my glasses? And where the hell is Lisa? What problem?

ESPINOZA: The Cannibals, Hector.

ALMUNDO: The Cannibals-

ESPINOZA: Some of the store owners are complaining, Hector. Should we tell the Cannibals to lay off them? Stop squeezing them for campaign money?

ALMUNDO: Hell, no. They’re performing a public service, right? Tell ’em I want double next month.

I turned off the tape. “I’ve lost my place, Your Honor,” I said. “Could the court reporter read back the witness’s last answer?”

Several of the jurors, who had been hit over the head with the government’s theory of the case throughout the trial, now stared at the recording equipment with furrowed brows. I would gain nothing from further debate with Espinoza on this issue. I had made my point: Senator Almundo hadn’t taken Espinoza’s comments about the street gang seriously; he’d thought it was a joke and his response was as sarcastic as he thought Espinoza’s comment was. Two of the jurors nodded as they listened to the court reporter read back Espinoza’s last bit of testimony:

“Sarcasm is sometimes harder to detect than we realize.”

It had come to me while listening to Paul and Joel Lightner give each other the what-for in Paul’s office. I could imagine the two of them having this very exchange, in jest. I just needed Joey Espinoza to confirm for me that he and Hector engaged in similar sarcastic jabs, and he’d been kind enough to oblige me.

I had nothing else to gain from further exploration of this topic. Paul Riley, in his closing argument, would dissect each of the four recorded conversations, making two simple observations: first, in each case, Joey Espinoza had forced the topic of the Cannibals into the conversation; and second, each of Hector’s responses could plausibly be interpreted as sarcasm. That, plus Joey Espinoza’s political ambitions, painted a nice picture: This had been the Joey Espinoza Show, from start to finish, and the only reason Hector Almundo was standing trial was that Joey had to finger someone to try to save his ass from twenty years in prison.

I smiled as the jury heard the read-back of Joey’s testimony. I looked over at Chris Moody, who apparently had failed to find the humor in it.