This might, or might not, be Alex’s defense at trial. She could withdraw it, or ignore it-the state would have to prove guilt beyond a reasonable doubt, anyway. Based on what she knew so far, this was the best bet. But she could have waited to make this announcement. She wanted to do it in open court, which was not technically required, and she wanted to do it now. The intruders had wanted to push her in a closet, to keep her quiet about Officer Ray Miroballi’s off-duty work as a drug dealer, and now she was telling them, as much as she could, anyway, that she would not be quiet. Here it is, everyone. A cop wanted my client dead. It would make the papers. It would ruffle feathers. Should anything happen to Shelly or Alex now, the scrutiny would be unbearable. A little sunlight was just what Shelly and Alex needed right now.
The judge adjusted his glasses again, not, it seemed, out of surprise but by habit. Shelly’s words had an impact, no doubt, but he went a long way to show disinterest. “Very well. Mr. Morphew, you acknowledge notice.”
Morphew had been watching Shelly. Did he know any of this already? She assumed he might have. “We do, Judge,” he said. “And if we could handle the 311 notice now.”
Shelly nodded solemnly, sneaked a look in Alex’s direction. She wished that this could be handled in writing, but so many things these days had to be acknowledged on the record in open court. Several years ago, there had been a bit of a scandal when a defense attorney showed up for trial claiming to be entirely unaware that the state was seeking the death penalty against his client. If it had been something else, maybe it would have been chalked up to a snafu, but the anti-capital-punishment establishment had a field day with it. Will they at least tell them first before they try to execute them? So now such things had to be done in front of the judge. This had worked to her advantage today, allowing her to announce her self-defense plea to the entire city media.
“That’s fine,” said Shelly.
“Your Honor, pursuant to Section 311 of the criminal code, the People hereby give notice to the defendant of our intent to seek the punishment of death.”
“We acknowledge notice,” said Shelly, with another glance to Alex. He had fallen into a now-familiar look, his eyes set in a hard, unemotional stare. The thought hit her again-she might lose him before they got to trial.
“Very good,” said the judge. “Have you two discussed a trial date?”
“We haven’t had that chance, your Honor.”
The judge worked his lips while he read his calendar. “Ms. Trotter?”
“Yes, your Honor.”
“Is the defense waiving a speedy trial?”
“Yes, your Honor. We would seek leave to take the depositions of a number of individuals.” In criminal cases in the state, depositions-the questioning of witnesses under oath prior to trial-were rare. In civil cases, lawyers took depositions for months, if not years, to prepare for trial, and this typically came after written discovery, where each side answered questions in writing from the other side. The civil litigator’s creed was to know everything before a trial started, to know the answer to every question asked of a witness at trial, because the witness was already asked the question under oath at the deposition. The civil litigator’s other creed was to bill as much time as possible on a case, which made depositions still more desirable. In criminal cases, on the other hand, depositions were almost never used, despite the fact that the stakes were higher-a person’s liberty as opposed to money. It had always been a bitter pill for Shelly to swallow. How could it be that lawyers fighting over a contract dispute could employ endless resources to uncover information before trial, but a lawyer defending a boy accused of capital murder was not allowed to question witnesses under oath?
“You’re seeking leave to take depositions?”
“We are, your Honor.”
“Have you filed a motion?”
“No, your Honor.” Shelly had been kicked out of the law school before she could put it together. She had just moved into her temporary office. “We will be happy to do so.”
“Your Honor,” said Morphew. “If counsel will let us know whom she wants to depose, perhaps we could dispose of this now.”
“That would be fine.” Judge Dominici focused his small eyes on Shelly.
“Your Honor, we would like to depose Officer Julio Sanchez, the partner of the decedent. Officer Sanchez was present the night of the shooting. We would like to depose other police officers as well. We would like to depose the decedent’s wife. We would-”
“His wife?” said the judge. “Why do you want to depose his wife?”
Shelly had anticipated the question but had never come up with a good answer. “Judge, it is our theory that my client was defending himself from an attack on his life.”
“I understand that, Counsel,” which was the judge’s way of saying she hadn’t answered his question.
“We’re trying to build a case for why the deceased officer wanted to kill my client.”
The judge was not pleased. Shelly imagined that a former career prosecutor, now on the bench, did not enjoy hearing such allegations, to say nothing of the fact that Shelly’s comments would shine the spotlight still brighter on this case.
“Judge,” said Dan Morphew. “If I could respond.”
The judge ignored the prosecutor. “Serious allegations,” he said to Shelly.
“Yes, your Honor. But they are true. We are entitled to explore them.”
Judge Dominici settled his hands before him. “The requests for deposition are denied.”
“Your Honor-”
“You have full subpoena power for documents,” said the judge. “And you can bring anyone into trial. The rules for criminal procedure do not contemplate free-wheeling discovery like the civil code. Mr. Morphew, other than telling me that these allegations are outrageous, do you have anything to add?”
Morphew paused a beat. He knew to shut up when he was ahead. “No, Judge.”
“Your Honor-”
“Ms. Trotter, I’ve made my ruling. Do you have anything new to say?”
“Yes, Your Honor.”
“Very well.”
“We withdraw our waiver of a speedy trial.”
The judge stared at her. He showed no indication of surprise, but he seemed to take the response as a rebuke. Shelly had settled on the decision last night. Clearly, option one was to depose witnesses before trial to build her case. But if she was not entitled to do so, she felt the advantage of surprise favored her. She had no control over when the federal undercover operation might come to an end-she assumed later than sooner, but she simply didn’t know. The best plan, then, was to go to trial, having pleaded self-defense without any elaboration, without any specificity to Dan Morphew. The F.B.I., of course, would have its hand forced by then, and would be announcing a major arrest of city police officers at precisely the time that jurors were being empaneled in the case of People v. Baniewicz.
“The defense demands a speedy trial,” she said.
The judge held his look on her a moment longer than necessary, before looking at his calendar. “Very well,” he said evenly. He chose a date in mid-May and did not ask either side if it was workable. “Anything else?” he asked.
“One more thing, Judge,” said Shelly. “I request protective custody for my client.” She couldn’t come out and discuss the real reason that police officers might want to harm her client, due to her promise to the federal government, so she focused simply on the fact that Alex was accused of killing a cop. The judge was not receptive. If anything, Dan Morphew noted in response, being a cop killer would elevate Alex to some level of acclaim. In the end, the judge denied the request but left the matter open for reconsideration if circumstances warranted it.
Shelly heard the voices of the lawyers for the next case, issuing their “good mornings,” as she moved to the table where they kept the orders, to be filled out by the lawyers and handed to the judge for his signature. Dan Morphew shot her a glance, something subtle yet hostile, and over his shoulder Shelly could see a number of reporters gathering and heading outside, where they would await her for more tidbits into this case. She inhaled deeply and looked at the press gathering at the door. For the first time, she would have some choice words for them today.