Mystic wind, p.20
Mystic Wind, page 20
“I froze. Didn’t know what the hell to do.” Nolan looked at the judge. “Excuse me, Judge.” He cleared his voice. “I could hear myself yell—I don’t even know what I said—but just as I did, there was a loud crack.”
Sears let the answer linger. “A crack?”
“Yeah. You know. A gunshot.”
“And then what happened?”
Nolan looked grave. “I saw Tommy go down.”
To Jack, this was preposterous. Could the jury possibly believe that Tommy Regan was murdered because of the petty resentments of a coworker?
As if Sears had read Jack’s mind, he looked at Jack, their eyes meeting momentarily before he turned to the witness again. “You say you yelled. Did you think the defendant heard you?”
“Oh, yeah. He turned immediately. Had a wild look in his eyes. As soon as he saw me, he walked over to me, put the gun to my head, and said, ‘Do you want to die too?’”
“What did you do?”
Nolan took a quick, shallow breath. “I freaked out.” Nolan paused and shook his head slowly, his voice beginning to weaken. “I said, ‘I didn’t see anything.’”
“Did the defendant respond?”
Nolan shot Lamb a look. “He said, ‘That’s right. You didn’t see an eff’n thing.’”
“That’s bullshit,” David screamed.
Judge Stone wasted no time. “Mr. Marino, I would have expected you to have educated your client on the rules of decorum. Another outburst and he’ll be removed from the courtroom.”
“I’m sorry, Your Honor,” Jack said.
“What happened then?” Sears continued.
“Dave ordered me to help him drag the body into the bushes.”
Sears rested one hand on the prosecutor’s table. “Was the defendant still pointing the gun at you?”
“Right at me.”
“What hand was the gun in?”
“Ahh—it was his right hand.”
“What happened next?”
“Dave told me to come with him to get Tommy’s car from the lot.”
“Where did Lamb get the keys?”
Nolan shook his head. “No idea.”
“What happened then?”
“We got Tommy’s car and drove it up to where we left him.”
“Who drove?”
“Dave drove.”
“And then what?”
“Same thing. Dave and me dragged the body back out of the bushes.”
Beneath Nolan’s testimony, Jack could feel the subtle force of hours of preparation, the practicing and coaching Sears usually did with his witnesses. Which wasn’t surprising—every prosecutor and defense attorney coached key witnesses—but Nolan’s testimony was perjury. Unfortunately, as the ex-prosecutor knew too well, even that wouldn’t matter unless Jack could prove it.
“Did the defendant say anything to you at that point?”
“Once we got Tommy to the back of the car, Dave just said …” Nolan turned to the judge and jury and apologized. “‘Grab his fuckin’ legs and we’ll put him in the back of the wagon.’” Nolan’s voice grew louder.
“What did he do with the gun while you lifted Tommy?”
“He put the gun in his waistband while we lifted him into the car.”
The prosecutor took several steps toward the witness. “What was your state of mind at that time, Mr. Nolan?”
The witness cleared his throat again. “To be honest, I was shakin’ head to toe. I remember thinking he was gonna kill me because he knew I saw everything. Then I figured he was keepin’ me alive just long enough to get Tommy’s body back into the car and then he’d shoot me.”
“After the body was placed in the car, what happened?”
“He came over to me. Told me to kneel down.”
Lamb let out a low moan, his head bowed. “Lies,” he said in a whisper barely audible even to Jack. Jack felt himself tense. The faces of the jurors had turned hard.
“Did you?”
“Yes.”
“Then what happened?”
Again, Nolan looked at Lamb as if Jack’s client were a caged animal. The jury, Jack saw, had begun to follow Nolan’s gaze. “He put the gun in my mouth and said, ‘I’ll fuckin’ kill you and your whole fuckin’ family if you ever say a word.’ He said, ‘Tommy was an asshole and had it comin.’”
Sears paused long enough to allow the jury time to visualize the terror Nolan must have felt. He stepped forward. “How were you feeling at that point, sir?”
“All I kept thinking about was my wife and kids.”
Sears let a moment pass. “Mr. Nolan, could you tell us what happened next?”
“We walked back to The Treasure Chest. The place was empty. Dave told me that if the police asked me anything, all I knew is that Tommy took a break and never came back.”
“He told you to say that?”
“Yeah. That Tommy took a break and never came back.”
“And is that what you told the police?”
“The cops interviewed all of us, and I told them exactly what Dave told me to tell them.”
“Why?”
“Look …” Nolan straightened. “I saw the guy kill someone in cold blood. I got family, too.”
“Why did you finally come forward some two years later?”
Nolan glanced at Lamb, the jurors following his stare like a beam of light.
Lamb sat rigidly, the knuckles of his folded hands bleached white.
“I thought about it a long time before I could bring myself to do it. They told me they wouldn’t let anything happen to me or my family. And I knew, it was just a matter of time before Dave was going to come after me or one of my kids.”
“Who did you call?”
“My lawyer. And she called your office.”
Sears paused. “Mr. Nolan, one more question. Do you keep a firearm behind the bar?”
“Sure. We keep one there—in case of trouble.”
“Did the defendant have access to the handgun behind the bar?”
“Didn’t need it.”
“And why’s that?”
“He had his own.”
“Own what?”
“Gun. I saw him with it about a week before the murder. Semi-automatic, too.”
“Objection,” Jack shouted, startling the jury. “This is outrageous.”
“Come up here now,” said Judge Stone, waving the attorneys toward him.
Reaching the sidebar, Jack seethed, “Judge, the prosecutor is purposefully and irreparably prejudicing this jury. This court excluded Mr. Lamb’s prior convictions, and the defendant has relied on that ruling. And the Commonwealth ignores it? He was coached to say that. The Commonwealth is introducing through the back door what it can’t get into evidence through the front door.”
“Your Honor,” Sears said. “Mr. Nolan said nothing about a conviction. Massachusetts law states that evidence of prior unconvicted bad acts is admissible to show, among other things, a common scheme, identity, intent, motive, or state of mind.”
Jack snapped back. “It’s admissible only during impeachment of a witness. This isn’t impeachment. Nolan is his witness. This is reversable error. The danger of prejudice clearly outweighs the probative value of the evidence.”
“Mr. Marino, I’m going to allow the question and the answer to provide a context for the shooting, without which the killing might appear to the jury as an inexplicable act of violence.”
“Judge, this is a naked attempt to paint the defendant as someone who carries a gun in a case where the Commonwealth can’t connect the defendant with any gun—much less the gun used to shoot the victim. You can’t do this.”
“Counsel, I just did. In point of fact, the evidence is highly probative of the defendant’s familiarity with and access to firearms. Not to mention it demonstrates a logical relationship between the prior bad act and the crime charged. In a few moments and at the conclusion of the trial, I will instruct the jury on the limited purpose for which they may consider it. Your objection is noted.”
Jack placed his arm on the side bench. “I’m demanding a mistrial, Judge. The defendant can’t get a fair trial after a remark like that, and you know it.”
“First, you’ll address the Court appropriately. Second, remove your arm from my bench. And third, your motion for a mistrial is denied.”
Sears turned away, but not before Jack saw a prosecutor who was absolutely convinced he’d destroyed any chance David Lamb had for an acquittal.
The courtroom fell silent, Jack acutely aware of everything and everyone around him. Judge Stone, his wild white brows knitted, stared at Lamb in condemnation. Lisa Regan, sitting alongside a victim witness advocate, could be heard sobbing. The jurors seemed to stop breathing, several of them appearing overwhelmed by the eyewitness account of the murder of Tommy Regan.
Jack sat limp, his palms moist. Looking at his client, who sat helpless beside him, Jack could only imagine the fear that was engulfing him.
Jack took a breath. To expose Mickey Nolan as the liar that he was, Jack’s cross-examination would have to be perfect.
CHAPTER FIFTY-FIVE
“You say you witnessed a murder firsthand, Mr. Nolan. That you were the only eyewitness who saw Tommy Regan shot. Yet you refused to speak to the police in this case?”
Jack stood scant steps from Nolan, crowding him much closer than he had any other witness.
The Commonwealth’s chief witness shot Jack a cool look. “I was afraid.”
“So, instead of telling the truth, you retained one of the most experienced criminal attorneys in the Commonwealth. Do I have that right?”
Nolan continued to appraise Jack. “I hired an attorney. Yeah.”
“And you paid her fifty thousand dollars so you wouldn’t be prosecuted, didn’t you?”
Before Nolan could answer, Sears was on his feet. “Objection, Your Honor! Attorney-client privilege.”
“Your Honor,” Jack said, “the prosecutor doesn’t have standing to raise attorney-client privilege.”
“Then I’ll raise it, Mr. Marino,” growled the judge. “I have all the standing I need to protect one of the oldest common law privileges. Next question.”
Jack resumed his questioning of the witness as if there’d been no interruption.
“Mr. Nolan, isn’t it true that you agreed to tell the truth only after the DA guaranteed that you wouldn’t be prosecuted?” He didn’t wait for the witness to respond. “And as a result, the investigation in this case stalled out for about two years?”
“I told you, I was scared.”
“Instead of telling the police what you knew about the murder of Tommy Regan, you waited until your lawyer struck an immunity deal with the prosecutor’s office, didn’t you?”
“I did what my lawyer told me to do.”
Jack turned briefly to Lisa Regan, making eye contact with her before facing the witness again. “So, for two years, because you wouldn’t speak, Lisa Regan and her children had no idea who murdered Tommy, isn’t that fair to say?”
“I told you I was frightened.”
“Maybe I’m just a bit naive,” Jack said, “but why would you need a criminal defense lawyer like Ms. Smith if you didn’t commit a crime?”
Nolan’s eyes were chilly. “I got a right to a lawyer.”
Jack stood straighter. “So I understand you correctly, what you’re telling us is that you were simply present when Mr. Regan was killed, is that it?”
“That’s right,” Nolan said with a smirk.
“Just the three of you out there that night?”
“You got it.”
“And it’s your testimony that you didn’t aid or encourage the crime?”
Nolan shifted in his chair. “No way.”
“In fact, more than that,” Jack continued, turning to the jurors, “you want the members of the jury to believe you’re a victim in this case?”
“I am.”
“But you didn’t need a lawyer as a victim. You only need a criminal lawyer if you’re a suspect, right?”
“I was being threatened,” Nolan said loudly, his eyes slits, the smirk gone.
“By him?” Jack gave a short laugh and pointed to his client, who seemed anything but a threat. “You’re the owner of a strip club that outlaw bikers frequent. You’ve got bouncers the size of tree trunks. And you were afraid of him?”
David Lamb stared at the jury, looking gaunt in his oversized suit.
Nolan looked defiantly at Jack, without answering.
“Since you were so terrified, did you ask the police to protect you from the frightening threat that’s sitting over there next to me?”
Again, no answer.
“I’m asking you, sir, did you ask for protection?”
“No.”
“But wouldn’t you agree that a person who’s being threatened would ask for protection, not immunity?”
Nolan swallowed. “If you say so.”
“Mr. Nolan, it’s not what I say, it’s what you say. You would agree that immunity doesn’t protect you from threats?”
A stabbing glance. “I don’t know.”
Jack stepped closer. “Are you telling this jury that you don’t know that a grant of immunity protects you from prosecution, not threats?”
“I told you I don’t know.”
“You keep saying ‘I don’t know,’” Jack said, “but you heard Judge Stone explain immunity to the jurors, didn’t you?”
“I heard the judge.”
“So, you know that immunity means you can never be prosecuted for the murder of Tommy Regan?”
“I guess.”
“Mr. Nolan, you wouldn’t guess about something like that, would you?”
“Well, I’m not a hundred percent on the details.”
“But you know that you’re in the clear as long as you testify, correct?”
A look of suspicion flashed across his face. “I don’t understand the question.”
Jack glanced over at the jury. “Sure, you do,” he said, leaning forward. “The DA gave you a free ride—absolute immunity—and because of that you sit here without fear of prosecution for the murder of Thomas Regan?”
“Ask my lawyer.”
Jack’s voice rose considerably. “I’m asking you, sir.”
“I don’t know how I’m supposed to answer that question.”
Jack threw up his hands. “How about truthfully.”
“Objection, Your Honor,” Sears said.
Jack didn’t wait for a ruling. “You want this jury to believe you sought absolute immunity for protection from threats, when in fact the only protection you wanted was protection from the consequences of what you did out by the railroad tracks that night?”
Sears was on his feet. “Objection, Your Honor. He’s arguing with the witness.”
“Mr. Marino,” Judge Stone said, “keep your voice down and ask another question.”
Jack looked over the yellow notepad he held in his left hand. After a short silence, he resumed. “Now you say you hired Attorney Theresa ‘Teddy’ Smith to cut your immunity deal with the government, is that right?”
“I hired her as my lawyer to protect me,” Nolan said, as if repetition equaled credibility.
“So, I see.” Jack pointed to the rear of the courtroom. “And she’s here today at the back of this courtroom, still protecting you?” Marino asked.
The witness didn’t answer.
The jurors stirred, turning to appraise Attorney Teddy Smith sitting in the gallery at the rear of the courtroom.
“Just so we all understand, Attorney Smith is supposedly here to protect the only witness who cannot be prosecuted for any crime arising out of the murder of Thomas Regan, right?”
“I don’t know how to answer your question.”
“Mr. Nolan, you were scheduled, along with David Lamb, to testify before the grand jury in this case, weren’t you?”
Nolan squinted. “We were scheduled to testify on the same day.”
“You didn’t have your attorney with you when you arrived to testify that morning, did you?”
Nolan seemed puzzled. “I don’t remember when my attorney arrived.”
“But you drove to the courthouse that morning with Mr. Lamb, didn’t you?”
“I may have.”
Jack pushed harder. “But during that ride you didn’t tell Mr. Lamb that you had an attorney, did you?”
The color seemed to drain from Nolan’s rugged face. “My attorney told me that was private.”
“And you never told David Lamb that you had called your attorney from the pay phone at the courthouse a number of times that morning?”
“I don’t recall.”
“And after one of those calls, you told David you’d testify, but that he should testify first, correct?”
“I didn’t care who testified first.”
“And you told David to lie and say the same thing you would say when you testified after him: that neither of you knew anything about the murder, right?”
Nolan’s anger flashed. “That’s bull.”
Jack bore in. “So, it’s your testimony that Mr. Lamb just happened to go into the grand jury room first?” He paused. “And while Lamb was in there testifying,” he continued, “Attorney Smith just happened to waltz into the same courthouse where you were waiting to testify. Is that what you want this jury to believe?”
“That’s what happened.”
“And after David testified, you just happened to refuse to testify, is that right?”
“I testified.”
Striding to counsel table, where David sat scowling at the witness, Jack scooped up one of the thick black binders that held the grand jury minutes. “Oh, you testified all right.” Jack fanned through Nolan’s sworn grand jury testimony. “You testified long enough to invoke your Fifth Amendment right not to incriminate yourself in response to every question asked of you except your name, age, and address.”
Nolan eyed Jack with intense suspicion. “I did what my attorney told me to do.”
“And was that because you and your attorney sat down with Mr. Sears prior to your appearance before the grand jury?”
“I did what she said to do,” Nolan repeated.
“Mr. Nolan, had you ever met First Assistant District Attorney Bradford Sears before you testified before the grand jury?”
