CHAPTER FORTY-EIGHT
Before court the next morning, the judge’s clerk motioned to Nora and Butler and they approached her desk, situated just below the front of the judge’s bench. “Judge Whitney would like to see counsel in the robing room, with the court reporter.”
When they walked in, Whitney was already in his robe, sitting behind the big wood desk. “I’ve received a communication from the marshals that one of the jurors has asked to speak to the court, urgently. I intend to invite the juror in here now, and wanted counsel present and a record made. Only I will communicate with the juror, is that clear?”
The lawyers all nodded.
“Which juror?” Butler asked.
“He is currently juror number twelve.” Whitney replied.
Belmont guy, Nora thought. What the hell?
The door opened and the juror entered, his eyes nervously sweeping the room. The judge directed him to a chair placed in front of the three set out for the lawyers, so he would see only the judge when he spoke.
Whitney spoke first. “Welcome, Juror Twelve—and I again remind everyone that we are not to know the names of our jurors. I understand you wished to speak with me. Of course, I need to have the lawyers present to do so, but please relax and tell me what’s on your mind.”
The juror’s voice was shaking. He lifted his hands as he started to speak. Nora could see that they were shaking as well. “Judge,” he began, “I need to get off this jury.”
“That’s a very unusual request,” the judge said. “Can you tell me why?”
“Twice this week, including last night, my wife was approached by people from the neighborhood who tried to talk to her about the case. Once in the beauty salon, last night in the grocery store. People she knows, but only from seeing them in the store and whatnot. Not quite pushing her, but trying to make conversation—send a message. Twice. These people may be dangerous and they know I’m on this jury, people near me, they know who my family is, and I can’t be on this jury anymore.”
“And why does that make you believe you can’t be on the jury any longer?” Whitney asked.
“Because I’m not going to let it get to a place where there is an ask. I’m just not. I won’t put my family in that position. Because I would say no to any ask—I’d have to, ’cause I took an oath—but that would put me in a bad spot, put my family in a bad spot. And I’m not gonna do it to them.”
Whitney kept pushing. “But, as you said, there have been no improper contacts to this point—”
The juror cut him off with the magic words. “Judge, I can no longer live up to my promise to be fair and impartial. I just can’t, given what’s happened. I’m sorry.”
“Very well, then let me ask you to go with the clerk to the other room, just for a moment, while I confer with counsel.”
When he was out of the room, the judge turned to the lawyers. “Well, any objection to my excusing this juror?”
Butler gave it his best shot. “Judge, it’s all theory. What’s really happened here? Couple conversations in a store. That’s it. He’s an honest person who will tell us if anything improper happens. And I’d also note that he appears frightened by the government’s constant harping on organized crime and violence. My client wanted this fair-minded juror, and his departure will operate to her substantial detriment.”
Nora wanted to say, “Are you serious right now?” Instead, she said, “The man is frightened. His wife has been approached, when honest people would have no reason on earth to know of his connection to this case. On top of that, he’s told you—he can’t be fair and impartial—and for good reasons. He can’t stay.”
Belmont guy was excused and Juror 13 moved to his seat. Butler’s objection was noted.
Back in the courtroom Nora leaned toward Benny’s ear to tell him what had happened in the robing room.
“That must be why Butler was so full of himself,” Benny grumbled. “The motherless fuck figured he was gonna hang the jury. Big mistake leavin’ Belmont on.”
“You really want to relitigate that?” Nora asked sharply.
Carmen cut it off as the door next to the bench opened. “Hey, hey, everybody to their corners.”
Benny sat up and nodded to Gina as she was brought into the courtroom and had her handcuffs removed by the federal marshals. She was dressed in a pink turtleneck sweater and black dress pants with her hair pulled back in a ponytail. Benny thought she looked exhausted and much older than when the trial began. She pursed her lips and slowly nodded back before taking her place at the defense table. Butler stood up to hold her chair and leaned over to whisper in her ear.
Then the judge and jury entered the courtroom and Conor was back on the stand.
“We’ll go right into cross-examination,” Judge Whitney said. “Mr. Butler?”
“Thank you, Judge.” Butler got up from the table holding what looked to be a pile of pages torn off a yellow legal pad. He laid them on the podium, smoothed the stack with the palm of his hand, and began questioning—reading a series of assertions.
“You’ve been in love with Kyra since college.”
“That’s not true.”
“You’ve always loved Kyra.”
“Not true.”
“In your eyes, she was a high-class woman, especially compared to your high school girlfriend from the Bronx.”
“She was a fine person, but so was—so is—Gina.”
“Twice a week during your senior year of college, you used to meet Kyra at—”
Butler paused, then carried the top yellow sheet to the defense table and leaned down to Gina, pointing. She whispered something and he returned to the podium.
“—the Yankee Doodle Coffee Shop at the corner of Elm and York.”
Benny watched this entire exchange. Holy shit, she wrote out a bunch of questions last night and Butler has to read them.
“That’s actually true,” Conor answered. “I studied at Sterling Library and she took a class at the law school. We would meet at the Doodle for coffee after her class because it was right there. It was never romantic. Ever.”
“Joey Cufaro was very good to you.”
“He was.”
“In fact, Joey Cufaro made you.”
“Not in the Mafia sense, but I owe him my education for sure, if that’s what you mean.”
“That actually is Kyra in the videos, just as the DA thought.”
“No.”
“You and Kyra conspired to frame Gina for Burke’s death.”
“We did not.”
“Gina has loved you nearly her entire life and you repay that by lying about her and stabbing her in the back.”
Nora considered objecting to the form of that question but let it go. The entire thing was too painful.
“That’s not true,” Conor said. Turning his head to look directly at Gina, he added, “It’s really not.”
Now Butler looked up from the yellow sheets and the tone changed. It was time for his own questions.
“You a good liar, Mr. McCarthy?” he asked with a snarl.
“I don’t know what you mean.”
“You don’t know what I mean,” Butler echoed. “Let’s take the romance thing. You told the people closest to you something about you that wasn’t true for years and years—that you were not interested in a relationship—am I right?”
“I did.”
“I know you said you did it because you had to if you were gonna keep your girlfriend, which makes no sense whatsoever, but it was still a lie and nobody made you lie, right?”
Nora was close to jumping up, but let it go; she didn’t want the jury to think Conor was on the government’s team.
Butler didn’t let him answer anyway, instead asking a new question. “So you lied about one of the most important parts of being human, is that right?”
“I suppose it is. People throughout history have felt like they had to lie about their love lives. They all had their own reasons and I had mine.”
“And the people you told, including the people who knew you best, they believed you, didn’t they?”
“I think they did, yes.”
“Because even those who knew you best, even the woman who carried you in her womb and brought you into this world, they couldn’t tell you were lyin’, correct?”
“I think you’re correct. And I’m deeply sor—”
Butler cut him off, his tone sarcastic. “Yeah, I can’t speak for the jury, but I’m not real interested in your expressions of regret.” Then he raised his voice almost to a shout. “The point is, people can’t tell when you lie, even if it’s about important stuff, right?”
“I suppose that’s true.”
Now he simply yelled. “So why are you wastin’ this jury’s time with these fairy tales?”
Nora was on her feet but Judge Whitney didn’t wait, his own voice just below a shout. “Mr. Butler, you will conduct yourself like a member of the bar of this court. Do not make me speak to you again about it. The objection is sustained and the jury will disregard the question.”
Butler’s tone came back to earth, as if the whole thing never happened. “Certainly, Your Honor. I have no further questions.”
Not bad, Benny thought. Not much more he could do with a guy who’s been with his client forever.
“Redirect, Ms. Carleton?” Judge Whitney asked.
“Briefly, Your Honor. Mr. McCarthy, did you tell the truth at Kyra Burke’s trial?”
“Yes.”
“Did you tell the truth in this court?”
“Yes.”
“Because I’m under oath and I take that seriously. I lied in my personal life—for love,” he added, looking at Gina, “but a court of law is different.”
“Nothing further, Your Honor. The government rests.”
After sending the jury to lunch early, Judge Whitney invited Sal Butler to make his Rule 29 motion for a judgment of acquittal, which a judge could only grant if, drawing all inferences in favor of the government, no reasonable jury could convict. It was a steep hill for the defense to climb, but the motion had to be made if they wanted to argue on appeal that the evidence was insufficient. Butler’s heart wasn’t in it but his mood was still sunny, even after the loss of Belmont guy.
“Your Honor, at this time,” he said, “I’d like to make the usual motion under Rule 29.”
“Very well, Mr. Butler, that motion is denied. Be prepared to begin any defense case immediately after lunch.”
“I’ll be ready, Judge,” he said with smile. “We should finish today given how cooperative the government has been in stipulating to the testimony of various witnesses. They’ve been complete professionals.”
“Glad to hear it,” the judge said. “The court will stand in recess until two p.m.”
As they packed up, Nora and Carmen exchanged looks. “Sal’s still on happy pills after losing his hanging juror?” Nora whispered. “Makes no sense.”
“Yup,” Carmen answered. “Something else has him all giddy. Just wish we knew what it was.”
The defense case began with Maybelline Rocco, the owner of the Florida realty company that employed Gina Cufaro. Rocco was of an indeterminate age between fifty and seventy-five, with long straight platinum blonde hair, drawn-on eyebrows, ruby red fingernails, and heavy makeup on her deeply tanned skin. She walked very carefully up the stairs to the witness box on four-inch red heels, her movements further limited by her sleeveless knee-length body-hugging red dress.
Gina had been one of her “stars” for the last eighteen years, she said, moving people in and out of the white-hot South Florida residential real-estate market. She was diligent, trustworthy, hardworking, and efficient, and her clients loved her.
At this point, Butler interrupted the direct examination to read to the jury from stipulations between the defense and the government. If called as witnesses, the agreements said, in substance, five former customers of Gina’s would testify that she was an amazing realtor. The details were all in the stipulations, which Butler read loudly while facing the jury.
He then turned back to Maybelline Rocco. “Do you have an opinion as to Gina’s reputation for honesty in your community?”
“I do,” she replied, the New York accent of her youth still very fresh.
“And what is that opinion?”
“People find her honest, hardworking, and law-abiding.”
“Ms. Rocco,” Butler asked, pausing to increase the drama, “do you believe Gina is a professional killer?”
“That’s crazy, no,” she answered.
“I have no further questions, Your Honor.”
“Any questions, Ms. Carleton?” Judge Whitney asked.
Nora stood quickly. “Just one, Judge, and I can ask it from here, with your permission.”
When he nodded, Nora asked, “Who is Mildred Jamison?”
The witness answered quickly and honestly—as near as Nora could tell. “I don’t know anybody by that name.”
“Nothing further,” Nora said, sitting in her chair. Carmen scribbled a note and slid it to her. Thin to win, baby! it read. Nora flipped the note and wrote: I could have gone into all the financial stuff, but there’s so much power in the one question. Carmen nodded her agreement.
Next, Butler and a paralegal acted out the state-court testimony of Tony Burke’s doorman, Ivan Ramirez, who thought it was Kyra Burke who passed through the lobby that night. Butler wanted to avoid live testimony because he feared Ramirez might compensate for his role in Kyra’s prosecution by now nailing Gina. For her part, Nora could have insisted Ramirez testify live, but agreed to the transcript because there was always the possibility Butler would push him into saying more if he were on the stand. And she wasn’t worried about what was in the transcript. Of course he thought it was Kyra. Duh. That was the point of Gina’s disguise.
When the transcript reading was done, Judge Whitney asked, “Mr. Butler, is there further defense evidence?”
Butler paused and then answered with exaggerated solemnity. “Yes, Your Honor, there certainly is. At this time, the defense calls . . . Mildred Jamison.”
Nora thought she must have misheard. She turned her head slightly to look at Carmen, who was squinting. Musta misheard the same thing, Nora thought. She glanced at Benny, who was facing backward, eyes fixed on the back of the courtroom, the same place all the jurors were looking.
Through the public doors came a woman who bore a resemblance to Gina, escorted by one of Butler’s assistants. She walked through the swinging half doors separating the gallery from the well of the courtroom, navigated around the tables, and stepped up to the witness stand. Following the clerk’s instructions, she remained standing, raised her right hand to take the oath, then sat in the chair and stated her name. “Mildred Jamison.”
Feels like a bad dream, Nora thought, her face a mask.
Whatever was happening, Butler was loving the moment. “May I proceed, Your Honor?”
“You may,” Judge Whitney answered.
“Ms. Jamison, where do you reside?”
“Loxahatchee, Florida.”
“And can you tell the jury where that is?”
She turned to the jury box. “Palm Beach County, the far west side, long way from the ocean. Think dirt roads and alligators.”
Mildred Jamison then told her story. She was a forty-one-year-old Florida native who worked at an IT consulting company in Palm Beach County. She handed Butler her driver’s license, which he displayed on courtroom screens. She said she traveled quite a bit for work and preferred to fly out of Miami because it offered more flight options. She owned a cell phone, which she had brought with her, and she recited the phone’s number for the jury. It was the number of the “burner phone” the prosecution said was Gina’s, although the government had never found that phone.
On the courtroom monitors, Butler displayed a listing of the air travel the prosecution associated with Gina’s murders.
“Did I ask you to look at your travel records before coming to court today?”
“You did.”
“And what did you conclude with respect to the flights listed on Government Exhibit 29?”
“I took all those flights, to client jobs or conferences.”
“Now let me show a collection of airport surveillance photos that the government has put into evidence. Would you take a look at those and tell me if you know who that is in those pictures?”
“Yes, it’s me. On those trips.”
Butler left the podium and walked to stand behind Gina, putting his hands on her shoulders. “Ms. Jamison, do you know this woman?”
“I do not.”
“I have no further questions,” Butler said and walked to his seat.
Nora’s world was spinning. “We’ll go right into cross-examination,” Judge Whitney said.
The spinning slowed enough for Nora to ask, “May we approach, Your Honor?”
At sidebar, Nora spoke first, trying to sound only mildly irritated. “Judge, we were given absolutely no information about this witness and the government will need time to prepare.”
The judge turned his head to Butler.
“That’s rich,” Butler began, “given the chicanery”—again chai-caneerie—“with Conor McCarthy. But we have no information to provide. I have no prior statements of this witness, who has never been in trouble with the law. I don’t know what it is Ms. Carleton thinks she’s entitled to.”
Judge Whitney turned back to Nora, who said nothing. Maybe some advance notice that a witness is going to tell a lie so massive I can’t figure out what to do about it? How ’bout that?
“Very well,” the judge said, “I see no basis for the court to act here. We’ll go right into cross-examination. Please step back.”
Nora was working hard not to look panicked in front of the jury. She returned to the government table to retrieve her notebook. Carmen was affecting the same nonchalance as she reached over and put a sticky note in front of Nora. Great, Nora thought, an idea. Nora palmed the note and walked slowly to the podium glancing down at her hand as she positioned her notebook. The note read: Now we know why Sal was so happy.
As Nora pretended to look for the correct section of her trial notebook, a strange calm washed over her, a peace that often came to her in moments of stress. In a flash, she could see what to do. She stopped searching in her book and looked up.
“Ms. Jamison?” she asked. “May I call you that?”
“Well, it’s my name,” the witness replied.
“So you said,” Nora answered. “Do you drink coffee?”
The witness seemed confused. “I’m sorry?”
“Coffee. Do you drink it?”
“No, I like tea.”
Now I got you. Nora paused and took a deep breath, just as Carmen rose from her chair at the government table and walked quickly out of the courtroom.
“Do you know what a Grande Biscotti Frappuccino is?”
“No.”
“Well, it’s from the Starbucks secret menu, so a lot of people don’t, I guess especially tea drinkers. How about a Grande Biscotti Frappuccino with one pump of white mocha syrup in it? Ever order that at the Miami airport?”
The witness looked more confused than irritated. “As I said, I don’t drink coffee, so no, I never did.”
“But the woman who flew to all those places as Mildred Jamison did—are you aware of that?”
“No.”
Nora turned and pointed at Gina as she asked the next question. “Are you aware that it’s Gina Cufaro’s favorite Starbucks drink?”
“No.”
“And that she bought one every time she pretended to be you at the Miami airport?”
“I have no idea.”
Turning her head to the government table, where Jessica sat at the laptop controlling the exhibits, Nora said, “Government Exhibit 37K, please.”
All around the courtroom, a picture appeared of the blonde woman with the Jackie O sunglasses and Hermès scarf in Tony Burke’s lobby.
“Is that you?” Nora asked.
The witness hesitated.
Oh, now I really got you, Nora thought. They didn’t tell you that you’d have to confess to a murder to help Gina, did they?
“Ma’am,” Nora said, raising her voice and hammering her words, “Is. That. You?”
The witness answered quietly. “No, I don’t think so.”
Nora was feeling it now, so she took her voice up another notch. “Did you walk from the Lucerne Hotel in Manhattan to Tony Burke’s penthouse, murder him, and then walk back?”
“I did not,” she answered.
Now Nora shifted to a concerned tone, worried for the witness. “Your name really is Mildred Jamison, right?”
“Yes.”
“But you didn’t do the traveling we’ve talked about in this courtroom, did you?”
The witness’s eyes darted for just a moment to Gina, but Nora caught it, and she wanted to make sure the jurors didn’t miss it.
“Don’t look at the defendant, ma’am, just answer the question. You lent your identity to Gina Cufaro, didn’t you?”
Now the witness looked terrified, her face pale. And she was no longer trying to conceal her effort to look at Gina. She turned her head to the defense table, her eyes almost pleading to be released from whatever had brought her to this place.
At that moment, Nora decided to save her life. Most prosecutors would savor the chance to tear the witness apart with question after question she could not answer. Maybe the payoff would be some dramatic confession implicating Gina. But Nora was different from most. She didn’t need it and didn’t want it. She had shown the jury this was a fraud; anything more and this woman might end up sleeping with alligators.
“Judge, I’m going to withdraw that. I have no further questions for this witness.”
Judge Whitney seemed confused as Nora took her seat, but he pressed on. “Is there redirect, Mr. Butler?”
Butler didn’t even try to stand for the answer. “No, Judge.”
“Very well, the witness is excused.”
The jurors watched her retrace her steps, with the addition of a very slight shrug of her shoulders in Gina’s direction as she passed through the swinging half doors.
Butler had used the moment to regroup. He rose, buttoned his suit, lifted his chin high, and announced, “That concludes the defense case, Your Honor.”
Judge Whitney excused the jury and then looked at Nora. “Is there rebuttal?”
She stood and paused, looking at the door next to the judge’s bench. “I think so, Judge. Ms. Garcia went to see if—”
The door opened and Carmen appeared, walking quickly to Nora’s side. “If I could just have a moment, Your Honor,” Nora said, leaning her head down to listen as Carmen whispered, “The Starbucks guy is still at his hotel. He’s coming over now.”
Nora whispered back. “You think we should ask for time to investigate this Mildred Jamison? Maybe get some agents to check out her address in Florida? Like they should have done months ago when we saw the license Gina used?”
“No,” Carmen answered into her ear. “Judge’ll never give us enough time, and you ended it with the coffee thing anyway. Now we close it off completely and move on. Look at Mildred for perjury down the road.”
Judge Whitney cleared his throat. “I don’t mean to rush you, Ms. Carleton, but . . .”
Nora stood up straight. “Yes, Your Honor, sorry, we were checking to see if a Starbucks witness we had subpoenaed was still nearby. He is, and can be here in twenty minutes. We would propose in rebuttal to present his testimony and the record of the defendant’s purchases, on her Starbucks loyalty card, at the Miami airport. Should be quick once the witness gets here.”
Judge Whitney looked over her head toward Butler. “Perhaps even fertile ground for a stipulation, Mr. Butler? The court will stand in recess while counsel confers.”
Butler knew, or should have known, what the Starbucks records showed because he got them from the government in pretrial discovery. When the judge was gone, he agreed to a stipulation essentially putting a Grande Biscotti Frappuccino with one pump of white mocha syrup in Gina’s hand at the Miami airport shortly before each Mildred Jamison flight departure.
The government rested after reading the stipulation to the jury. Whitney excused the jury for the evening, heard and denied Butler’s obligatory renewal of his Rule 29 motion, and set summations for the morning.