Breach of Trust (4 page)
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.
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?”
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 façade 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?”
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?”
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.
, 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.
6
I SPENT THE REST OF THE AFTERNOON GOING AFTER
Joey Espinoza a bit more aggressively, having sucker-punched him on the main point we wanted to make. It wasn’t hard, after that, to establish that Joey had actually spoken with several elected officials about assuming Hector’s senate seat if he became attorney general—Joey probably figured I would call those other officials to testify, so he couldn’t very well deny it. And then, of course, the obvious motivation that a man looking at twenty years had in cutting a deal that landed him only eighteen months in Club Fed. The only thing he could give the feds, that they didn’t already have, was Hector, so he embellished and tried to manufacture carefully crafted conversations to make it look like his boss was part of the criminal enterprise.
Joey Espinoza a bit more aggressively, having sucker-punched him on the main point we wanted to make. It wasn’t hard, after that, to establish that Joey had actually spoken with several elected officials about assuming Hector’s senate seat if he became attorney general—Joey probably figured I would call those other officials to testify, so he couldn’t very well deny it. And then, of course, the obvious motivation that a man looking at twenty years had in cutting a deal that landed him only eighteen months in Club Fed. The only thing he could give the feds, that they didn’t already have, was Hector, so he embellished and tried to manufacture carefully crafted conversations to make it look like his boss was part of the criminal enterprise.
Back at Shaker, Riley afterward, the atmosphere was subdued celebration. “I’d offer you lunch,” said Paul, “but I think you just ate Joey Espinoza’s.”
“Outstanding, Jason.” My client, Hector Almundo, nattily attired in an olive suit, was jubilant.
“The Joey Espinoza Show,” Paul continued. “They saw it today, Hector. They watched him and they saw him as manipulative. And the ‘dry sense of humor’ stuff? Priceless.”
“The cocksucker.” Senator Almundo, favoring a more concise summary in his own lyrical way, collapsed into a chair in the conference room. What angered him about Espinoza was not the criminal actions of Espinoza or the Columbus Street Cannibals; neither Paul nor I had much doubt that Hector had known exactly what was taking place on the west side. No, his anger toward his former aide was based on one thing, and one thing only—the betrayal.
“We still have a lot of work ahead.” I said, opting for the humble voice of reason.
“Maybe,” said Paul. “After today, I’m not sure we put on a case at all.”
Inside, I was doing leaps. I felt my new position in the private sector greatly enhanced with today’s events. My secretary had pulled up early Internet accounts of the trial on his BlackBerry and the verdict, pardon the pun, had been a knockout for the defense. When we walked back into the firm tonight, we’d been greeted by other lawyers at the firm, who had been reading about it blow-by-blow online, with the customary mix of congratulation: sincerity blended with envy.
But all I wanted to do was go home and see my wife and daughter, Emily Jane. I threw my notepad on the conference table and reviewed my checklist, to make sure I wasn’t missing anything. My big cross-examination was over, the jury instructions were done, the post-trial motions as ready as they could be for now. But there was one thing left.
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