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  “No objection,” Bennie said, having no grounds. Martinez’s calling Emily as a hostile witness enabled him to question her as if he were cross-examining her.

  Judge Patterson nodded. “Proceed, Mr. Martinez.”

  Martinez faced the witness. “Ms. Ratigan, please tell the jury how you came to be friends with the defendant.”

  “I wait tables at Eddie’s, and he comes in there to eat dinner.”

  “Ms. Ratigan, isn’t it true that he comes in to eat dinner almost every night, that he sits at the same table?”

  “Yes, he’s a regular.”

  “Isn’t it also true that his table is out of the way and is not easily visible from other areas of the bar?”

  “Yes.”

  “Ms. Ratigan, isn’t it true that the restaurant is divided from the bar by a wooden divider that also conceals the defendant’s table from view of the bar area?”

  Emily pursed her lips. “I wouldn’t say it conceals it, but it makes it hard to see the table.”

  “Fine, I stand corrected.” Martinez paused. “Isn’t it true that defendant, when he sits at his table, always sits at the seat on the right, which gives him an unobstructed view of the bar?”

  “Yes.”

  “And isn’t it also true that the defendant has been in the dining area a number of times when the victim in this case has been sitting at the bar, alone or with friends?”

  “Yes, that’s true.”

  “Ms. Ratigan, you said you consider yourself friends with the defendant, yet he did not tell you that he knew the victim in this case, did he?”

  “No,” Emily answered, after a moment. “But I don’t think that means anything. There’s a lot about his life he didn’t tell me. He didn’t tell me that he was in Kids-for-Cash—”

  “Move to strike as unresponsive.” Martinez whirled around to face the judge.

  Bennie rose. “Objection, Your Honor. There’s no reason to strike that from the record. It was completely responsive, and Mr. Martinez just didn’t like the answer he got.”

  Judge Patterson arched an eyebrow. “Ms. Rosato, spare us the editorializing. Still, there’s no reason to strike the witness’s answer. Please proceed, Mr. Martinez.”

  “Ms. Ratigan, moving on to the night this murder occurred. You were there that evening in the bar, were you not?”

  “Yes.”

  “Ms. Ratigan, how did the fight in the bar start?”

  “Objection, Your Honor.” Bennie stood up. “This has been asked and answered. We provided for this by stipulation, and I would stipulate to Ms. Ratigan’s testimony as well.”

  Martinez looked over. “Then I have no further questions, Your Honor.”

  Judge Patterson turned to Bennie. “Ms. Rosato?”

  “Yes, Your Honor, I have a few questions.” Bennie approached Emily with a smile. “Thank you for coming today. We’re interested in hearing the truth, so you don’t have to feel bad about being here.”

  “Thank you.”

  “Ms. Ratigan, please tell the jury, since you’re a friend of Jason’s, what kind of person is he?”

  Martinez rose, frowning. “Objection, Your Honor. Is defense counsel turning the witness into a character witness, as we speak?”

  Bennie addressed the judge. “Your Honor, as a matter of fact, I am. Evidence Rule 404(2)(c) is an exception to the general rule and provides that in a homicide case, the prosecutor may offer evidence of the victim’s so-called ‘trait of peacefulness’ to rebut evidence that the victim was the first aggressor. That applies as well to the defendant.”

  “Correct, counsel. Overruled, Mr. Martinez. Proceed, Ms. Rosato.”

  “Ms. Ratigan, please tell the jury what you think of Jason’s nature, in this regard.”

  Emily tilted her face toward the jury. “Jason is a definitely peaceful, very nice man. We always talked when he came in for dinner and he was always very kind. He never raised his voice or made any fuss at all. Everybody on the staff likes him, and he always tips us really well, even though he doesn’t make a lot of money. He left me a—”

  “Thank you, Ms. Ratigan.” Bennie preempted the testimony about the hundred-dollar tip. “I have no further questions.”

  CHAPTER FORTY-NINE

  Detective Mike Gallagher looked every inch the big-city homicide detective on the stand, dressed up in a light gray suit and shirt with a gray tie. His demeanor was more professional than the night Bennie had met him, and his affable grin was in check. He sat comfortably in the witness box and knew to adjust the black stem microphone upward, and Bennie predicted he would be a formidable witness for the Commonwealth.

  After Detective Gallagher was sworn in, Martinez took him through the preliminaries, eliciting his twenty years of service on the force and ten as a homicide detective, the many cases he had investigated and cleared, then bringing him to the night of the murder, when he interviewed Jason in the Roundhouse.

  Martinez stood before the witness box. “Now, Detective Gallagher, you were the primary detective assigned to this case, isn’t that correct?”

  “Yes.”

  “Detective Gallagher, you interviewed the defendant on the night in question, did you not?”

  “After I gave him his Miranda warnings, yes, I did interview him.”

  “Detective Gallagher, at that point, had he asked for a lawyer?”

  “No.”

  “And what did the defendant say to you at that time, with regard to the victim?”

  Bennie listened without objection, since it wasn’t hearsay because it wasn’t coming in for the truth of the matter asserted. However, something else had drawn her attention. Karen Engstrom, the veteran reporter who had been sitting behind her on the defense side of the courtroom, had moved to the Commonwealth side of the courtroom next to Doreen.

  Detective Gallagher was testifying, “He told me that he and Richie had had bad blood since they were children, and that he was glad that Richie was dead.”

  Martinez paused to let it sink in. Even though the jury had already heard it from the arresting officer, the detective’s corroboration reinforced the cold-heartedness of the statement, and Marathon Mom made a note in her blue booklet. Bennie found herself distracted again by Karen, who leaned over to Doreen and whispered something.

  “Detective Gallagher, in your capacity as the detective on the case, did you have occasion to find trace evidence, such as hair, fiber, blood, and DNA that will be relevant to this matter?”

  “Yes, I did.”

  “Detective Gallagher, let’s begin with the results of your investigation, mainly with respect to blood evidence.” Martinez returned to counsel table, collecting the flurry of exhibits that Bennie expected, so she raised no objection as he showed them to Judge Patterson, entered them into evidence, had them marked as Commonwealth exhibits, then began his line of questioning. Detective Gallagher testified knowledgeably, explaining to the jury that his investigation had found Richie’s blood on Jason’s hands and clothes and vice versa, samples of Richie’s hair on Jason and vice versa, and fibers from Richie’s black down parka on Jason’s dark green winter coat, and vice versa.

  Bennie listened during the testimony, though she knew all of it already because the Commonwealth had turned it over to the defense, constituting the so-called Brady materials required by law. She knew the testimony would be damning, and she kept an eye not only on the jury, but on Karen and Doreen. The two women’s heads were bent close together, and they seemed to be passing notes, Karen writing on her skinny pad, then handing the pen back to Doreen.

  Bennie felt her gut tense, losing momentary concentration. No good could come of Doreen’s talking to reporters, especially Karen. The media always needed an angle and would always pick the low-hanging fruit. If Doreen was talking to Karen and Bennie wasn’t, the story would be that Richie was the tragic victim of a brutal murder.

  Martinez finished with the line of questioning about hard evidence and made a great show of retrieving a set of surveillan
ce videotapes from a box, and Bennie didn’t object as he moved them into evidence, because she knew what they were, as well. She kept an eye on Karen and Doreen, who had begun whispering to each other in a way that ratcheted up her concern. Bennie tried not to look over for fear of catching Declan’s eye, but even he inclined his head toward Doreen and Karen.

  Martinez cued up the videotape on a TV cart that he had rolled over. “Detective Gallagher, can you please explain what Commonwealth’s Exhibit 15 is?”

  “Yes, it is one of the surveillance videos taken the night of the murder, for the relevant time period.”

  “Why do you say one of the surveillance videos?”

  “There were approximately seven surveillance videos, all of which showed the same thing at the same time. This one had the best resolution, and also the time counter and correct date, which not all of them had. The quality of surveillance videos tends to be variable, depending on the source. Convenience stores have the best resolution, but there wasn’t one of those in the vicinity.”

  “Detective Gallagher, where did this surveillance video come from?”

  “From the traffic camera at the intersection of Pimlico and Dunbar.”

  “And that would be here, this corner at the head of Dunbar Street, which leads to the alley where the murder took place?” Martinez stepped to Commonwealth exhibit showing the orientation of Eddie’s Bar.

  “Yes.” Detective Gallagher nodded.

  “Thank you.” Martinez turned on the TV, and the monitor showed gray static, then he picked up the remote control and froze the image on the screen. The film was black-and-white, and the resolution good enough to show a man with a light jacket standing at the corner of Pimlico and Dunbar Streets. “Now Detective Gallagher, would you explain what this video shows, while I put it on play?”

  “Yes, of course.”

  “Thank you.” Martinez pressed PLAY, and the image sprang to life, with a man walking toward the alley.

  Detective Gallagher testified, “Our investigation identified the man on the screen as the victim, Richie Grusini, and as you can see, he’s walking toward the alley, which is on Dunbar Avenue.”

  Bennie glanced over to check on Karen, who still had her head bent with Doreen. Declan was looking at the video monitor, and Bennie turned away quickly, to not catch his eye.

  Detective Gallagher continued, “You can see the victim enter the alley, where his pickup truck was parked, at approximately 11:10. Then, you don’t see anything else for about the next five minutes.”

  The courtroom fell silent, with the jurors riveted to the TV monitor, and the reporter and Doreen had stopped talking, too. Jason watched in utter stillness, and Bennie felt the same way that she did whenever she saw surveillance video on the TV news. It was horrifying to see someone walking down the street, talking blithely on the phone, not knowing it was his last moments alive. The video had an impact all its own, and Martinez didn’t overplay his hand, so Bennie had nothing to object to and was powerless to dispel the mood.

  Detective Gallagher continued, narrating the video, “Now you can see the defendant appear in the frame, walk down Dunbar Street, and enter the alley.”

  Jason lowered his head and didn’t watch his image on the screen. Bennie could hear him emit a quiet sigh that she prayed was sadness, even if he would never admit as much.

  Detective Gallagher testified, “Now, the surveillance video continues, but neither the victim nor the defendant come out of the alley. Nothing happens at the alley until approximately 11:45 P.M., after 911 has been called and police arrive at the scene and arrest the defendant.”

  “Detective Gallagher, who called 911?”

  “A couple who was walking past. You will see them cross in front of the alley and stop at approximately 11:37.”

  Martinez asked, “So if I fast-forward, that’s what we will see?”

  “Yes.”

  Martinez fast-forwarded the video, then set it on PLAY again. The video showed the police arrive on the scene, their lights flashing, though there was no audio to hear their sirens. Bennie didn’t object because she couldn’t, so she remained impassive during the video, which was as damning as the hard evidence of blood, hair, and fiber had been. The video didn’t even show the wound on Jason’s forehead, because it was taken from too far away, so he looked every bit the guilty party, handcuffed and pressed by the head into the back of a waiting cruiser. She told herself this was the worst it was going to get for the defense and prayed that she was correct.

  Detective Gallagher continue testifying, “There you can see the defendant, as he is being taken into custody.”

  “Thank you, Detective. I have no further questions.” Martinez snapped off the television, for emphasis.

  Judge Patterson looked at Bennie, her expression newly grave. “Ms. Rosato, I assume you have cross-examination?”

  “Yes, briefly.” Bennie rose and approached the witness. “Detective Gallagher, good to see you again.”

  “You, too, Ms. Rosato,” Gallagher said, though he probably knew what Bennie was up to. One of her tricks was to befriend the expert when possible, because it established her as an authority, but Gallagher was experienced enough to play her game. In any event, her goals with his cross-examination were modest.

  “Detective Gallagher, let me take you back a moment to the trace evidence that is Commonwealth Exhibits 15 through 27.”

  “Fine.”

  “Your testimony was that you found evidence of Mr. Grusini’s blood, hair, and fibers on my client, isn’t that correct?”

  “Yes.”

  “Detective Gallagher, isn’t it true that the same trace evidence would have been found if Jason had killed Mr. Grusini in self-defense?”

  “Objection.” Martinez rose. “Calls for speculation.”

  Bennie faced Judge Patterson. “No it doesn’t, Your Honor. It’s a reasonable question about this evidence and its probative value, that is, what it proves.”

  Judge Patterson motioned them forward. “Counsel, approach the bench.”

  Both lawyers walked quickly to the dais, but Bennie didn’t delay, whispering. “Your Honor, we’re asserting claim of self-defense in this case. We’re entitled to ask the one-and-only detective on the case to interpret the probative value of this evidence. It’s undisputed that these men had at least one altercation, which took place in the bar, and that’s when any of this trace evidence could have been transferred—”

  “Not the blood,” Martinez interjected, gripping the dais tightly. “There’s no testimony that there was blood in the bar fight.”

  “Fine, not the blood.” Bennie had to concede something, if she wanted Judge Patterson to go her way. “But the fact is, my question is completely within the realm of this expert witness’s knowledge, and it’s not speculative at all.”

  Martinez whispered, louder than before, “Of course it’s speculative. She’s asking what-if. What-if is inherently speculative.”

  “Your Honor, it isn’t what-if a spaceship landed.” Bennie whispered loudly, just like Martinez had, because they were both really arguing to the jury. “It’s what-if my client killed to defend himself, how would that change the evidence, and that question goes to the heart of my defense.”

  “I’ll allow it,” Judge Patterson ruled, pursing her lips.

  “Thank you, Your Honor,” Bennie and Martinez said, but only one of them meant it. Martinez went back to his seat, and Bennie returned to the witness stand. She didn’t love that Detective Gallagher had had time to consider his answer, and he was looking at her with his bald head cocked slightly.

  “Could you repeat the question, Ms. Rosato?”

  “Yes.” Bennie willed herself to stay calm. She was betting he was professional enough to tell the truth. “Detective Gallagher, isn’t it true that you would’ve found the same trace evidence if Jason had acted in self-defense?”

  “I wasn’t aware the defendant was claiming self-defense.” Detective Gallagher lifted an eyebrow, and B
ennie acted unfazed, though she wasn’t.

  “My question remains, Detective Gallagher. Wouldn’t you have found the same trace evidence if the defendant had acted in self-defense?”

  “Yes.”

  “I have no further questions.” Bennie turned, worried because Martinez was already on his feet, heading back to the witness box.

  “I have redirect, Your Honor.”

  Judge Patterson nodded. “Go right ahead, Mr. Martinez.”

  Martinez turned to the witness. “Detective Gallagher, you testified that you questioned the defendant about the murder in question, did you not?”

  “Yes.”

  “Detective Gallagher, you testified that, after you warned the defendant of his Miranda Rights, he agreed to speak with you about the murder in question. Is that correct?”

  “Yes.”

  “And Detective Gallagher, after you warned the defendant of his right to have an attorney he agreed to waive that right and chose to speak with you freely. Is that correct?”

  “Yes.”

  “Did he have any hesitancy whatsoever in speaking with you?”

  “No.”

  “And he had the opportunity to tell you what happened in the alley that night. Isn’t that correct?”

  “Yes.”

  “And at no time did the defendant ever mention the word self-defense. Is that correct?”

  “He did not.”

  Martinez shrugged. “I have no further questions.”

  Bennie stayed standing, but didn’t go over to the witness box. “I have recross, Your Honor.”

  “Go ahead, counsel.”

  “Detective Gallagher, how long did you interview my client for before he asked for a lawyer?”

  “Not long.”

  “Is ‘not long’ more than ten minutes or less than ten minutes?”

  “About ten minutes.” Detective Gallagher nodded, tight-lipped, and Bennie felt as if she was crossing swords with a pro, which actually got her juices flowing. A trial lawyer liked nothing better than a worthy opponent.

  “Detective Gallagher, you testified earlier that you had investigated many, many murder cases, isn’t that correct?”