Poison Candy: The Murderous Madam (15 page)

Finally, I wanted there to be no extralegal ploys or procedures to circumvent the established evidence: no random comments by any witness on anyone’s credibility, psychiatric history, or character; no mention of witnesses who didn’t testify, evidence that wasn’t presented, experts that weren’t qualified or coconspirators who remained uncharged; and no use of jury pardons (basically asking the jury to walk the defendant in spite of the evidence because they disagree with the law or are sympathetic to her plight), no “voluntariness” defense (claiming that the defendant was coerced to act by another party), and no hypothetical questions
in voir dire
(jury selection) that might contaminate the jury through misdirection.

Some of this may have been to send a strong message that just because I felt confident in my evidence, it didn’t mean I wasn’t going to present an
aggressive case. Salnick agreed to many of these motions, since the law supported each issue. The rest were granted by the court.

I was also presented with a hurdle I had not anticipated that took a bit of legal maneuvering to get around. I had planned to call to the stand Todd Surber, the lawyer who executed the quitclaim deed to transfer the house into Dalia’s name the week before she was arrested. Although this was a simple clerical procedure, I thought it important to highlight it for the jury’s benefit, preferably linked to someone besides Mike. But when I contacted Surber at Independence Title to get copies of the documentation and arrange for his deposition, his response was, “I’m sorry, that’s attorney-client privilege.” Since he had technically represented both Mike and Dalia in the transaction, he didn’t think it appropriate that he answer any questions, much less testify in court against either one of them. Mike could always waive his right to attorney-client privilege, and in fact did so in the case of Michael Entin, the other attorney he had met with in this case. But that wouldn’t help with Dalia, who also enjoyed attorney-client privilege with Surber. So I filed a motion to override attorney-client privilege based on the crime-fraud exception. This says that there is no such privilege when the services sought or obtained constitute fraud. A lawyer can advise his client on the consequences of committing a crime; he cannot participate in a crime himself. Under the statute, it was immaterial whether Surber knew this to be a crime at the time fraud was committed, which he most certainly did not; it only mattered that the client knew their actions constituted fraud.

The motion necessitated a separate evidentiary hearing to establish Dalia’s intent. The standard of proof was whether she could show with a preponderance of the evidence—meaning just enough evidence to make it more likely than not that the fact that what we are seeking to prove is true—that there was a reasonable explanation for her conduct. This effectively put Dalia in a position where the only way she could explain her actions was to take the stand, and I knew Salnick would never allow that to happen. Once she took the stand, I could ask her practically anything I wanted related to the alleged fraud, which would have been an entire trial in itself. Instead, I argued that there was no attorney-client privilege here,
but even if there was, Dalia’s only reason to transfer the property into her name was to defraud her husband.

I cited her text messages to Michael Stanley: “The sooner his shit gets fucked up the better,” and afterward, “Did the transfer, but he said because we’re married I can’t sell it without his signature, even though it’s in my name.”

Mike had told me this was the advice he’d gotten from Surber, so I called him as a witness at the hearing to say as much. Since there was no evidence to contradict him (Surber wouldn’t testify until made to do so; Dalia knew better), the judge ruled the quitclaim deed had been created for fraudulent purposes, attorney-client privilege was overridden (if it even existed—he never said), and Surber could be deposed and testify at the trial.

Salnick also filed a number of motions of his own. Soon after Dalia was arrested, he claimed that a leather-bound journal seized during the execution of a search warrant at her mother’s house was protected under attorney-client privilege. Salnick claimed that in it, Dalia had taken three pages of notes during their initial meeting that were important to their defense. The motion was granted, the pages were photocopied and placed in a court file under seal, and the notebook was returned to the defendant. Salnick filed a motion to compel Mike to turn over his bank records and business and personal tax returns, as well as his own Motion in Limine to prevent the prosecution from referring to the defendant as an escort, prostitute, or call girl, which was granted, even though the subject was now a matter of public record.

In the end, there were three major topics that I did not address at trial, which I labeled the Three Ps and instructed witnesses not to mention: Prostitution, Poison, and Pregnancy. Both Dalia’s alleged prostitution and her claimed pregnancy were off the table due to the judge’s rulings. On the issue of Dalia and the poisoned iced tea, I consulted a doctor and did a lot of research online, and the potential side effects experienced by someone who has been poisoned with antifreeze were not consistent. Mike claimed in an early police interview and in his discussions with me that he had developed mouth ulcers afterward and suffered from diarrhea for two weeks straight, but the research was inconclusive as to whether these were recognized
symptoms. The court had ruled it admissible as one of Dalia’s many Prior Bad Acts, and I had multiple witnesses offering circumstantial evidence, but in the end, I felt that it might offer her an appellate escape hatch if she could convince a higher court my claim was a stretch. The prostitution and the poison both figured heavily in press accounts, and were widely discussed outside the courtroom. As far as I know, Dalia’s aspirational pregnancy has remained a secret until now.

In Florida, a capital crime, which this was not, merits a twelve-person jury. All other cases, including first-degree felonies like the one Dalia was accused of, are decided by a jury of six. As a prosecutor, I’ve seen juries do a lot of crazy things, and as far as defenses go, from the hints I was picking up from Salnick, this would be among the wildest I had ever personally witnessed. My biggest concern in selecting a jury was that any thinking person was already inundated with the facts of the case and would be tempted to disqualify themselves. TV outlets used any pretext to rehash the case history and rerun the videos, and between the
Palm Beach Post
, the
Sun-Sentinel
,
Broward and Palm Beach New Times
, and
Nancy Grace
, it was a constant drumbeat leading up to the trial. This was the single biggest case to hit the Palm Beach County Courthouse since the William Kennedy Smith rape trial in the early nineties, and that was before the omnipresence of the Internet.

Consequently, Salnick filed motions requiring a bigger-than-usual jury pool—sixty instead of the usual forty—based on our pretrial publicity, and a specialized
voir dire
protocol to guard against the “media blitzkrieg” presenting what he termed “the prosecution’s version of the case.”

This included Mike’s appearance on
The Today Show
, which he says he only did to get the rest of the media to stop calling him. I disagreed that we were the source of any of this pretrial publicity, since reporters were simply harvesting morsels from pretrial motions on both sides, which is what reporters do. But I did agree that we needed a modified voir dire process in this case. Traditionally, the lawyer singles out a potential juror from the panel (those citizens of voting age under consideration) and asks specialized questions to determine that individual’s sympathy or susceptibility to his case. If those questions include sensational aspects of the case outside
the purview of the court, then they’ve just tainted the jury pool. Perhaps it would make more sense to question jurors individually at the bench, where the judge has a button labeled “white noise,” or one at a time in the jury room. But the judge denied Salnick’s motion for individual voir dire.

Jury selection is my least favorite thing to do in a trial. People say I’m good at it, since I can usually talk to anyone and make them feel comfortable. But if trying a case is surveying the evidence, selecting that which is most conducive to your argument, and controlling the story, then jury selection is the place where you have the least control. It’s not just that juries are automatically a tough audience, it’s that you have to explain to them how to be an audience, since very few of them have ever done it before. I’ve learned over the years that jurors will lie to you: they’ll either tell you what they think you want to hear, or else they’ll lie to get out of jury service. Either way, you have to shepherd them toward what you need from them. You have a very short period of time to make a judgment about a person based on limited information and interaction; you have to study their body language while taking into account their life experiences, employment history, family situation, and expressed opinions to determine whether they’re right for your case. I want to ask the right questions and explain the legal principles I need to, but mainly I want to let them do most of the talking. The more they talk, the more I learn.

So I start by telling them I’m simply looking for someone who is fair and impartial. It’s not a contest, so they shouldn’t take it personally if they’re not selected. Not everyone is right for every case: if this was a DUI case and their sister had been killed by a drunk driver, that wouldn’t be fair to the defendant for them to be placed on the jury because of their obvious feeling about DUI drivers. I want people who are able to make decisions. Someone’s life or liberty hangs in the balance, and a lot of people can’t pull the trigger. So with women, I ask, How easy is it for you to decide what dress to buy? Do they make their purchase and then continue looking in other stores or do they buy what they like and never look back? Or for guys: When you go out to a restaurant, how long does it take you to decide what to eat? Do you change your mind when you hear other people at the table order? The analogies may be trite, but it humanizes the question, and it gives me a
snapshot of them as a person. I need a person who can make an informed decision and stick with it.

I also have to deal with what I call the CSI Effect. So many people are familiar with the legal system through its portrayal in courtroom dramas, especially on television with the latter-day procedural dramas that rely heavily on forensic science. They’re primed for high drama, courtroom reveals, and magic-bullet DNA evidence, and if they don’t get it, they’re disappointed. It’s something you actually have to address in the courtroom. For instance, I had them fingerprint the money that Dalia is seen giving to Mohamed on tape to pay the alleged hit man. My lab techs told me it was a waste of time, since fingerprints rarely register on money, but again, I didn’t want the defense bringing it up and making a nonissue into an issue. It also pointed up the difference between reality and what you see on TV, no matter how skilled the professionals have become at confusing the two, which helped me address the defense strategy.

For the Dalia Dippolito jury, I needed to know if anyone was offended by graphic language, because they were going to hear a lot of it on tape. I asked them if they could rely solely on the evidence presented in the courtroom and refrain from speculating about inadmissible testimony or evidence. I didn’t want them getting frustrated whenever I objected to a particular line of inquiry. Could they believe testimony from a witness who was unlikable, or one who had lived a less than admirable life? Could they believe the testimony of a convicted felon, or believe that he could be the victim of a crime? Would they accept the testimony of an admitted drug addict? This was all designed to head off attacks on a witness’s credibility. For his part, Salnick spent a great deal of time finding out what reality shows the jurors and their families watched.

In the end, I felt like I got the jury I needed. I wanted as few men as possible. You could argue that no one would be more sympathetic to Mike as a victim, or more appalled at his wife from hell, than a man. But as far as I could tell, Dalia had successfully manipulated every man she’d ever met. I didn’t want the spectacle of her batting those giant palm-frond eyelashes at the jury box and having my jurors keeling over with the vapors. Of the six, four were women. (One of them was the wife of a chief of police I knew. I
think Salnick kept her on the jury because she said
Dancing with the Stars
was her favorite show.) And one of the two men was a Marine, which is as close to law and order as you can reasonably get.

The trial lasted two weeks, with a week off in between. Here is how I began my opening statement: “I know what you’re thinking: ‘What a cute little girl.’ But I’m not. I’m a lot tougher than I look.”

I could see confusion in the jury’s eyes. Was I talking about myself?

“That’s what the defendant—Dalia Dippolito—said to the undercover police officer from the Boynton Beach Police Department on August 3 of 2009. She meets undercover agent Widy Jean because she wants to kill her husband, Mike Dippolito. He asks her, ‘Are you sure you want to kill him?’ Without hesitation, as if she had ice running through her veins, she says, ‘There’s no changing. I’m determined already. I’m positive. I’m 5,000 percent sure. When I say I’m gonna do something, I’m gonna do it.’ And then she laughed. She laughed when agent Widy Jean asked, ‘Is this someone you’re married to?’ She laughed because she’d been married for exactly six months. She laughed because she was good at manipulating her husband, Mike Dippolito, and he had no idea of what she had planned. She laughed because she thought she could fool him, and she thought she could fool everyone else and she could get away with having him murdered.”