Fool Me Twice

Paul Levine
Chapter 1

Louis “Blinky” Baroso squirmed in his chair, tugged at my sleeve, and silently implored me to do something.

Anything.

Clients are like that. Every time the prosecutor scores a point, they expect you to bounce up with a stinging rejoinder or a brilliant objection. This requires considerable physical and mental agility, something like prancing through the tires on the practice field while reciting Hamlet.

First, you’ve got to slide your chair back and stand up without knocking your files onto the floor, and preferably, without leaving your fly unzipped. Next, your expression must combine practiced sincerity with virtuous outrage. Finally, you have to say something reasonably intelligent, but not so perspicacious as to sail over the head of a politically appointed judge with a two-digit IQ. For me, the toughest part is simultaneously leaping to my feet and veiling “objection” while buttoning my suit coat. Sometimes, I slip the top button into the second hole, giving me a cockeyed look, and probably distracting the jurors.

Blinky’s eyes pleaded with me. Do something.

What could I do?

I patted Blinky’s forearm and tried to calm him, smiling placidly. The captain of the Hindenburg probably displayed the same serene demeanor just before touching down.

“ Chill out and stop fidgeting,” I whispered, still smiling, this time in the direction of the jurors. “I’ll get my turn.”

Blinky puffed out his fleshy cheeks until he looked like a blowfish, sighed and sank into his chair. He turned toward Abe Socolow, who was strutting in front of the jury box, weaving a tale of deceit, corruption, greed, and fraud. In short, Honest Abe was telling the life story of Blinky Baroso.

“ This man,” Socolow said, using his index finger as a rapier aimed directly at Blinky’s nose, “this man abused the trust placed in him by innocent people. He took money under false pretenses, never intending to perform what he promised. He preyed on those whose only failing was to trust his perfidiously clever misrepresentations.”

Socolow paused a moment, either for effect, or to round up his adjectives. “What has the state proved this man has done?” Again, the finger pointed at my presumably innocent client, and the cuff of Socolow’s white shirt shot out of the sleeve of his suit coat, revealing silver cuff links shaped like miniature handcuffs. In prosecutorial circles, this is considered haute couture.

“ The state has proved that Louie Baroso is a master of deceit and deception,” Socolow announced, answering his own question as lawyers are inclined to do. “Louie Baroso is a disreputable, manipulative, conscienceless sociopath who gets his kicks out of conning people.”

I thought I heard Blinky whimper. Okay, now Socolow was getting close to the line. Still, I’d rather let it pass. An objection would show the jury he was drawing blood. But then, my silence would encourage him to keep it up.

“ This defendant is so thoroughly corrupt and completely crooked that he could stand in the shadow of a corkscrew,” Socolow said with a malicious grin.

“ Objection!” Now I was on my feet, trying to button my suit coat and check my fly at the same time. “Name-calling is not fair comment on the evidence.”

“ Sustained,” said the judge, waving his hand in a gesture that told Socolow to move it along.

Unrepentant, Socolow shot his sleeve again, fiddled with one of the tiny handcuffs, and lowered his voice as if conveying secrets of momentous portent. “A thief, a con man, and a swindler, that’s what the evidence shows. Both Mr. Baroso and his co-defendant, Mr. Hornback, are guilty of each and every one of the counts, which I will now review with you.”

And so he did.

My attention span is about twelve minutes, a little more than most jurors, a lot less than most Nobel prizewinners. I knew what Abe was doing. In his methodical, plodding way, he would summarize the evidence, all the time building to a crescendo of righteous indignation. While I was half listening, scrupulously not watching Socolow so that the jurors would think I was unconcerned with what he said, I scribbled notes on a yellow pad, preparing my own summation.

I am not invited by Ivy League institutions to lecture on the rules of evidence or the fine art of oral advocacy. Downtown lawyers do not flock to the courthouse to see my closing arguments. I am apparently one of the few lawyers in the country not solicited by the television networks to comment on the O. J. Simpson case, even though I am probably the only one to have missed tackling him-resulting in a touchdown-on a snowy day in Buffalo about a million years ago. I don’t know the secrets of winning cases, other than playing golf with the judges and contributing cash to their re-election campaigns. I don’t know what goes through jurors’ minds, even when I sidle up to their locked door and listen to the babble through the keyhole. In short, I am not the world’s greatest trial lawyer. Or even the best in the high-rise office building that overlooks Biscayne Bay where I hang out my shingle, or would, if I knew what a shingle was. My night law school diploma is fastened by duct tape to the bathroom wall at home. It covers a crack in the plaster and forces me to contemplate the sorry state of the justice system a few times each day, more if I’m staring at the world through a haze induced by excessive consumption of malt and hops.

I am broad-shouldered, sandy-haired, and blue-eyed, and my neck is always threatening to pop the top button on my shirts. I look more like a longshoreman than a lawyer.

A dozen years ago, I scored straight C’s in torts and contracts after an undistinguished career as a second-string linebacker earning slightly more than league minimum with the Miami Dolphins. In my first career, including my days as a semi-scholar-athlete in college, I had two knee operations, three shoulder separations, a broken nose, wrist, and ankle, and turftoe so bad my foot was the size and color of an eggplant.

In my second career, I’ve been ridiculed by deep-carpet, Armani-suited, Gucci-briefcased lawyers, jailed for contempt by ornery judges, and occasionally paid for services rendered.

I never intended to be a hero, and I succeeded.

On this humid June morning, I was slumped into the heavy oak chair at the defense table, gathering my thoughts, then disposing of most of them, while my client kept twisting around, whispering snippets of unsolicited and irrelevant advice. Each time, he leaned close enough to remind me of the black bean soup with onions he had slurped down at lunch. Nodding sagely, I silently thanked him for his assistance, all the time staring at the sign above the judge’s bench: we who labor here seek only the truth.

Sure, sure, and the check’s in the mail.

Philosophers and poets may be truth seekers. Lawyers only want to win. I have my own personal code, and you won’t find it in any books. I won’t lie to the judge, bribe a cop, or steal from a client. Other than that, it’s pretty much anything goes. Still, I draw the line on whose colors I’ll wear. I won’t represent child molesters or drug dealers. Yeah, I know, everybody’s entitled to a defense, and the lawyer isn’t there to assert the client’s innocence, just to force the state to meet its burden of proof. Cross-examine, put on your case, if you have any, and let the chips fall where they may.

Bull! When I defend someone, I walk in that person’s moccasins, or tasseled loafers, as the case may be. I am not just a hired gun. I lose a piece of myself and take on a piece of the client. That doesn’t mean I represent only innocent defendants. If I did, I would starve. My first job after law school was in the Public Defender’s office, and my first customers, as I liked to call them, were the folks too poor to hire lawyers with a little gray in their hair. I quickly learned that my clients’ poverty didn’t make them noble, just mean. I also got an education from my repeat customers, most of whom knew more criminal law than I did. Nearly all were guilty of something, though the state couldn’t necessarily prove it.

These days, I represent a higher grade of dirtbag. My clients are too smart to pistol-whip a liquor store clerk for a hundred bucks in the till. But they might sell paintings by a coked-out South Beach artist as undiscovered works by Salvador Dali, or ship vials of yogurt as prize bull semen, or hawk land on Machu Picchu as the treasure trove of the Incas. All of which Blinky Baroso did, at one time or another. Sometimes twice.

But back to ethics. I’m not interested in the rules made up by bar association bigwigs in three-piece suits who gather in ritzy hotels to celebrate their own self-importance. Their rules are intended to protect clients and industries with the most money. It’s just like my old game, which they sissified to protect the lah-de-dah quarterbacks. To me, a late hit is just a reminder that football is a contact sport.

Anyway, as far as I could tell, no one in courtroom 4-2 of the Justice Building was zealously engaged in truth seeking at the moment. My client had a more elementary quest. Blinky Baroso merely sought a not-guilty verdict (“Gimme a big N.G., Jake”) so he could resume his career of shams, swindles, and sleight-of-hand business deals.

Judge Herman Gold, peering at us over his rimless spectacles, just wanted a verdict-any verdict-in time to play a couple of quinielas at the jai alai fronton.

Chief Prosecutor Abe Socolow, looking appropriately funereal in his black suit, wanted another slam-dunk guilty verdict to add to his ninety-six percent conviction rate.

The jurors gave no indication of wanting anything at all, although number five, a female bus driver, looked like she had to pee. It was a fairly typical jury by Miami standards. Besides the bus driver, we had a body piercer (noses, nipples, and ears), a shark hunter, a lobster poacher, a county kosher meat inspector, and a self-proclaimed show girl, who was telling half the truth, since she was a he who performed at a cross-dresser’s club on South Beach.

The jurors sat, poker-faced (except for the squirming bus driver), occasionally shivering in the air-conditioning, usually staring into space, once in a while smiling at an inadvertent witticism. Trials are usually so stultifyingly boring that the slightest glimmer of humor is nearly as welcome as the mid-afternoon recess. When I was a newly minted lawyer, having just passed the bar in what was most likely a computer glitch, a judge asked my first client, a repeat offender car thief, if he wanted a bench trial or a jury trial.

“ Jury trial,” my client responded, somewhat hesitantly.

“ Do you know the difference?” the judge asked.

“ Sure, Judge. A jury trial is six ignorant people instead of one.”

Ah, from the mouths of babes and felons.

Abe Socolow was still droning on about the evil deeds of Blinky Baroso, whose eyes fluttered three times whenever he was nervous, or whenever he told a fib. His eyes had been flapping like Venetian blinds the last four days.

“ You have heard the testimony,” Socolow said, his long, lean frame hunched over the podium. “Louie Baroso and Kyle Hornback are con men, pure and simple.”

Blinky leaned close and gave me another whiff of his partially digested sopa de frijoles negros. “Nobody calls me Louie,” he protested, as if we could use that point on appeal.

“ These unscrupulous men used what is known as affinity fraud,” Socolow continued. “By pretending to be born-again Christians, they ingratiated themselves into the lives of decent, God-fearing citizens at the West Kendall Baptist Church. They conned hundreds of thousands of dollars from their victims, who were taken in by promises of huge returns on their investments. These criminals wove a clever web of deception, promising both profits and holy redemption. The parishioners, honest citizens all, were induced to spend their retirement funds on diamond investment scams only to learn that Mr. Baroso and Mr. Hornback never bought the diamonds. Where did the money go? Into the pockets of Louie Baroso and his underling, Kyle Hornback.”

Blinky whispered something in my ear that sounded like caveat emptor.

“ Next, you heard proof of the real estate scam. Su casa, mi casa . Your house, my house. You heard how Mr. Baroso was a regular visitor in the real estate deed room of the courthouse…”

“ Is that a crime?” Baroso grumbled.

“…where he researched titles on various expensive homes. Then Mr. Hornback, armed with a fake driver’s license and the legal description of the property, persuaded banks that he was the owner, and secured loans on other people’s property. Again, honest citizens were shocked to learn that second and third mortgages were recorded on their properties.”

“ So what, the title insurance company paid,” Blinky whined. “The owners didn’t get hurt.”

At the far end of the defense table, Kyle Hornback, a handsome young man whose clean, chiseled features disguised a reservoir of guile, was scratching furiously on a legal pad. If the jurors looked at his lawyer, H. T. Patterson, they would see a smile so confident, it stopped just short of smugness. H.T. had been around long enough to know the first rule of the trial lawyer: Never let them see your fear.

“ Now, when I sit down,” Socolow continued, removing his eyeglasses and pinching the top of his nose, “Mr. Lassiter is going to tell you that there is no direct evidence against his client, Louie Baroso. He is going to tell you that all the victims dealt with the salesman, Kyle Hornback.”

I just love it when the opposition makes my closing argument for me.

“ But you are entitled to use your common sense. Who was the boss? Whose name appeared on all the fraudulent paperwork? Who gave Kyle Hornback his marching orders? You all know who.”

Or was it whom? I never know the difference.

“ Louie Baroso, that’s who,” Socolow announced, cranking up the volume.

Just then, the ornate wooden door to the courtroom opened with its usual squeak. Three of the jurors looked that way, and three didn’t. One of the alternates sneaked a peek, and the other didn’t. Okay, so half were paying close attention. About average.

I swung around, too. A tall young woman walked through the door and down the aisle that split the nearly empty gallery. She sat down at the end of one of the church pews in the first row.

Josefina Jovita Baroso. I used to call her Jo Jo, although I suppose the correct pronunciation would be Ho Ho. And we did have some laughs, as well as tears.

“ Why’s your sister here?” I whispered.

Blinky shrugged. “To wish me bad luck. Maybe you, too. Too much history.”

History.

Blinky was right. How many years since we had met? I was still playing ball, Blinky was a small-time bookie who hadn’t yet Americanized his name by adding an “o” to Luis, and Jo Jo was a poli-sci major at Florida State. Blinky asked me to Christmas dinner at his mother’s home on Fonseca, just a block off Ponce de Leon in Little Havana. Why not? I’d blown five grand with him during the last season alone, without once betting on a Dolphins game. I’ve got ethics, you know.

Senora Baroso was cooking a whole pig, lechon asado, in the backyard when Josefina Jovita walked through the wrought-iron gate past the lawn statue of the Virgin Mary. Jo Jo was toting her books and laundry in an army-green duffel bag, and she looked at me with bright, dark, fearless eyes. We sat outside at a redwood picnic table, telling our life stories while sharing the juca con mojo, and over espresso and flan, I asked whether she’d like to be my guest at the Jets game Sunday, maybe come over to the house afterward. She didn’t say no.

History.

We became friends, then lovers. Looking back, I cared more for her than she did for me. To her, I was a project. Mature beyond her years, Jo Jo encouraged me to apply to law school when my demi-career was fading. My other choices were tending bar or becoming the assistant to the regional vice president of a beer distributor. I went to law school, and so did she. But we headed down different paths. I always rooted for the underdog, so the P.D.’s office was a natural. She was less forgiving of human failings, so the prosecutor’s office was a second home.

Josefina Jovita Baroso was attractive and bright and combative, and seemed to enjoy all three. We debated politics, religion, sports, and her brother. We didn’t agree on anything except the virtues of hard pretzels and cold beer. She voted straight Republican, and like most Cuban Americans, viewed Ronald Reagan as a combination of Jose Marti and Teddy Roosevelt. I always thought of him as a Notre Dame running hack, and I never liked Notre Dame.

Eventually, we broke up. Okay, so I broke up with her, but there were no major explosions, just a disengagement of lives going different directions. Blinky kept me informed of major events in her life. On a ski trip out west, Jo Jo met a man and had a whirlwind romance. She took a leave of absence from the state attorney’s office, spent six months with the guy on his Colorado ranch, but came back alone. On the few occasions we would run into each other, she never referred to the relationship. To this day, I don’t know what happened, though Blinky says it’s simple. “She busted his chops, like she did to you, to me, to everybody. Nobody measures up to Josie.”

I caught another glimpse of her over my shoulder. She wore a beige cotton dress that stopped just above the knee. Her dark hair was pulled back in a pony tail, emphasizing the strong bone structure of her face. It wasn’t her trial uniform, and because of the conflict of interest, she couldn’t be assisting Socolow with the case.

I must have been staring at her.

“ Hard to believe she’s my sister, isn’t it?” Blinky whispered, reading my thoughts.

I glanced at Josefina Baroso and then at Blinky Baroso. My client resembled a sausage stuffed into an Italian silk suit. A green Italian silk suit that shimmered under the fluorescent glare of the courtroom lights. Jo Jo was tall and slim and in an earlier age would have been called elegant.

I turned my attention back to Abe Socolow, who was prattling on about the utter depravity of preying on the virtuous. He reminded the jury of the witnesses he had brought before them, a retired airline mechanic, an Amway distributor, a widowed schoolteacher. Abe believed in swamping jurors with testimony. As Charlie Riggs, the retired coroner, likes to say, “ Testis unus, testis nullus.” One witness, no witness.

When the victims are likable, the prosecutor’s job is easy. Put ‘em up there, extract a tear or two, and get a guilty verdict in time for everyone to get home to watch Roseanne.

Socolow seemed to be winding down now. “You folks are contributing to a sacred function of government.’’ Abe was not a naturally down-home guy, but he was getting into his flag-waving, Fourth of July, you-folks shtick, and it sounded pretty good. “As envisioned by our Founding Fathers, you folks from the community, not some wigged and robed judges, are to determine what is true and what is false, who is innocent and who is guilty. And when you look at this man…” He pointed at poor Blinky again. “What do you see?”

I couldn’t help myself. My eyes darted to my client, just as did the jurors’. I didn’t know what they saw, but to me, he looked like a big, fat crook.

“ You see a thief, a con man, a deceiver,” Socolow said, lest there be any mistake. He was dying to mention Baroso’s criminal record but he couldn’t get it into evidence because I had kept Blinky off the stand. A prior conviction can only be used for impeachment, and that was enough reason to keep Blinky at the defense table during the trial. So was the nervous twitch that made Blinky look like a pathological liar when he was giving his name and address.

“ So on behalf of the people of the state of Florida…”

All of them, I wondered?

“…I ask that you convict both defendants on each and every count of grand theft, fraud, racketeering, and conspiracy. Thank you and God bless you.”

Socolow gathered his notes from the podium, took down his Technicolor charts that detailed various feats of grand larceny, and lowered himself majestically into his seat at the prosecution table. I stood up, cleared my throat, and thanked the jurors for their rapt attention to the case, but I left God out of the equation. Then I pointed to the U.S. flag behind Judge Gold and started talking about the Constitution, Mom, and apple pie. I wasn’t about to let Abe out-folks me.

“ Our great democracy depends on citizens like you, leaving your homes, your jobs, your loved ones and serving as the last bastion of protection for your fellow citizens…”

I always try to make jury service sound like joining the Marines.

“ We have the greatest legal system in the world…”

Excluding trial by combat, of course.

“ Now Mr. Socolow and I have other cases to try, other fish to fry…”

Other fish to fry? Did I say that? Sometimes the mouth moves faster than the brain.

“ But Louis Baroso has only one case…”

Pending, that is.

“ It is here and it is now. This is Louis Baroso’s case. This is his life, his fate, and it’s in your hands.”

I shot a look at my client. He blinked at me. Thrice.

“ Our Constitution provides certain rules that protect men and women accused of crimes. Anyone accused is innocent until proven guilty, innocent until you say otherwise, innocent until and unless you conclude after considering all of the evidence, after searching your conscience, after using all your powers of common sense and intelligence and fairness, that the state has proven guilt beyond and to the exclusion of every reasonable doubt. A jury’s job is not to presume evidence where there is none. It is not to assume evidence, to fill in evidence, to believe there must be evidence just because the prosecutor says so. We don’t guess people into jail. We don’t assume people into jail.

No, the jury’s job is to look critically at the evidence and ask, ‘Did the state prove its case beyond a reasonable doubt?’

I blathered on for a while about reasonable doubt. That’s what you do when you don’t have much of a defense. When I have favorable evidence, I use it. Hell, I hoist it up the flagpole and salute it. Lacking a defense, I tap-dance around the state’s evidence and say it just isn’t enough.

“ Now, Mr. Socolow told you the evidence indicates that Mr. Baroso conspired with Mr. Hornback. The evidence implies that Mr. Baroso profited from Mr. Hornback’s endeavors. The evidence suggests that Mr. Baroso knew what was going on. Well, there’s a phrase for that kind of evidence, and you’ve all heard it. It’s called circumstantial evidence

…”

The jurors nodded en masse. Good, they’d heard the phrase on Larry King.

“…And I’m going to tell you a story about circumstantial evidence. A mother bakes a blueberry pie and puts it on a shelf to cool. She tells her little boy not to touch that pie, but he climbs up on the shelf and digs in anyway. Now he hears his mom coming into the kitchen, so he grabs his pet cat and rubs the cat’s face in the pie. The mother walks in and yells for the boy’s father. The father takes the cat out to the barn, and then, boom! There’s a shotgun blast. The boy is still there in the kitchen licking off his fingers, and he says, ‘Poor Kitty. Just another victim of circumstantial evidence.’ “

I paused just long enough to let the jurors chuckle. Then, becoming serious, I lowered my voice and said, “I’m pleading with you not to let Louis Baroso be another victim of circumstantial evidence.”

This time, only two jurors nodded, and one of them might have been asleep. I wrapped it up with an appeal to the basic decency of the American people, then sat down. Blinky gave my arm a good squeeze and patted me on the back.

I looked into the gallery again at Jo Jo Baroso, who avoided my gaze.

“ We were never close,” Blinky said, watching me. “I was hot-wiring cars when Josie was still making mud pies. She always thought she was better than me.”

Which didn’t exactly put her in an exclusive club. “So what’s she doing here?” I asked for the second time.

“ She hates me,” Blinky answered, as if that said everything.

Looking back now, I know that wasn’t it at all.