The list of other motions that needed to be filed was seemingly endless. Among them was the motion to have the Statewide Grand Jury indictment dismissed, based on the lack of jurisdiction. In layman's terms, I was trying to get the case thrown out because there was confusion about which state entity actually had the right to bring the case to trial.
“Counsel, let's proceed with the defense motion to dismiss the Statewide Grand Jury indictment,” Tyson beckoned. “Mr. Contini, proceed with your argument.”
“Thank you, Your Honor,” I began. “The defense moves to dismiss the indictment because from the very inception of this case the Statewide Grand Jury lacked the requisite jurisdiction to indict. This is based on information we received from reliable sources in the homicide unit of the Broward State Attorney's Office. We were told this case was rejected by both the Dade and Broward State Attorneys’ Office homicide units.”
Although one of the counties in question was officially named “Miami-Dade,” everyone around the courthouse just called it “Dade.” This was how you could tell the insiders from the outsiders.
“But did they let it go, Your Honor? No. BSO shopped it to statewide prosecutors, who accepted this wannabe case and presented it to their very own Statewide Grand Jury because no one else wanted it. That's why we're here.
“This is the ultimate case of forum shopping, Judge. It's not unlike selling door-to-door until someone buys. You know the old saying, ‘You can indict a ham sandwich’? You can indict anybody for anything. Judge, you know more than anyone that just because an indictment can be issued, doesn't mean it should be.”
“Your Honor,” Molloy interrupted, “Mr. Contini is simply speculating, based on what he thinks he heard. Prosecutors always have had the discretion to present evidence of crimes to a Grand Jury. In this case, it was the Statewide Grand Jury. If the Grand Jury determines there's probable cause to believe these murders occurred, and that these men probably committed them, then the Grand Jury is charged with the responsibility to indict. That's exactly what happened here.”
Doug then said with emphasis, “That’ s why we're here. And that's the only reason we're here, contrary to what Mr. Contini suggests.”
“Your Honor,” I retorted, looking over at Molloy. “Mr. Molloy knows that murder always has been a local crime handled by the State Attorney's Office in the county where the murder occurred! And in this case, it was Dade County. According to the medical examiner, the victims were alive and present in Dade County before their murders. That makes it a local and not a statewide homicide.
“The Dade County State Attorney's Office has jurisdiction over local homicides in their county. Since the murders were committed in Dade, only a circuit court in Dade County would have jurisdiction, assuming a Dade County Grand Jury were even to indict. That never happened. So, now they're trying to force a square peg into a round hole, Your Honor, forcing jurisdiction…”
“What square peg?” Doug asked, ridicule apparent in his face. Even though he was the consummate gentleman, Doug apparently had reached the end of his patience with me.
“Judge, Mr. Contini is imagining things…”
“Imagining things?” I repeated, only louder. “Am I imagining that the applicable statute states unequivocally, under Statewide Grand Jury jurisdiction, that the crime must, and I repeat must, ‘affect two or more judicial circuits’?”
Molloy jumped back into the pool. “No, now you're not imagining. Your Honor, that's precisely the way the statute reads, and that's precisely why there is jurisdiction in this case. Two or more circuits were affected by the crimes committed by these defendants. The victims were kidnapped in Broward County, which is one judicial circuit. And in one continuous criminal episode, they were murdered in Dade County, another judicial circuit. Under the felony murder rule, if men die during the commission of a felony, whether armed trafficking, kidnapping or whichever felony, then…”
I just had to interrupt him. I couldn't take it any longer. “Judge, these defendants were never indicted for armed trafficking or kidnapping in Broward County, or anywhere else for that matter. We're not talking about the felony murder rule here. The indictment charges them with murder, period. Mr. Molloy is trying to distract you from the only fundamental issue, which is the condition precedent for Statewide Grand Jury jurisdiction in this case.
Molloy tried to interrupt right back, but I kept muscling out the rhetoric by raising my voice and moving closer to Tyson, completely ignoring Doug.
Voice rising, I exclaimed, “The real issue is, how does a murder in Dade County's 13th judicial circuit affect Broward County's 17th judicial circuit? It doesn't, which is why they fail to meet that necessary condition precedent for Statewide Grand Jury jurisdiction. Without that requisite Statewide Grand Jury jurisdiction, the resultant Statewide Grand Jury indictment is no good and must be dismissed. It was literally returned by a body of folks with no jurisdiction to indict! And the prosecutors don't have the right to proceed if their Grand Jury had no jurisdiction to indict.
“How does a local Dade County homicide, which can be likened to that square peg, fit into the round hole of two or more judicial circuits? It doesn't. I know it, he knows it and respectfully, I would submit that Your Honor now knows it.”
We ran our mouths for a while longer before Tyson finally shut us down. “Gentlemen, I've heard enough. I will defer ruling and take it under advisement. You will receive my ruling in due order. Until then, we're adjourned.”
Although the relatively new Office of Statewide Prosecution appeared similar in name and purpose to each county's State Attorney's Office, it was an altogether different animal. Originally established to prosecute complex, statewide white-collar and organized crime activities affecting multiple counties, the focus of the Office of Statewide Prosecution had been adulterated over time by aggressive law enforcement folks who forum-shopped their cases in pursuit of an agency willing to indict.
The jurisdictional goal posts defining the turf of the Office of Statewide Prosecution were moved significantly during this case. The office accepted the case not only to appease the victims’ families in Broward but also to advance the agenda of an agency run by competitive people who wanted to get ahead.
There was another important factor in play, too. Broward Sheriff Nick Navarro was under tremendous pressure to wrap up all unsolved Broward homicides. Even though the triple-murder case involved Dade homicides, it was alleged that the victims were kidnapped in Broward—by people accused of being responsible for the supposedly related, unsolved homicides in Broward.
The statewide die was cast on the heels of these Machiavellian inter-agency political machinations. The indictment, by all rights, should have been dismissed. But Judge Tyson wasn't about to invite that level of public wrath, for the same reasons he denied the speedy trial motions for discharge.
“Motion denied,” was the way his order read when he returned it a few days later. I'll always believe Tyson knew he was wrong to deny the motion, but the political realities were just too obvious. How many judges would have had the courage to stand up to the pressure, especially with all those Broward victims’ families in his face every day. “Let an appellate court deal with it later,” I imagined him saying.
Gil and his family didn't even need me to confirm what they already knew in their hearts: that Tyson would rule against us. Gil's family members were strong people, every one of them. The emotional battle scars were almost visible, though, as they tried in vain to encourage one another. That's why it was easier for me to tell them the latest ruling over the phone instead of in person.
Before and after these larger battles over the issues of jurisdiction, speedy trial and gag orders, and in between the evidentiary hearings over the church tapes, collateral crimes and other murder investigations, I also set hearings to argue for the removal of Gil's shackles while in court. These heavy chains could be seen and heard everywhere Gil went, promoting the perception of guilt and impending danger. When that motion was denied, I argued it again a bit differently.
This time, I argued that Gil's shackles should be removed for slightly similar but more indirect reasons. The defense table was skirted with wood for the very purpose of hiding the shackles. The prosecution table wasn't skirted, I argued, which would only cause the jury to draw the impermissible inference that the defendants must be shackled, and therefore dangerous. Otherwise, why would there be a need for the massive wall of wood around our table? The jury had to be smart enough to figure something was up.
Tyson got to use his favorite word, yet again: “Denied.”
Along with all these other motions, I argued that Gil should be allowed to attend his own depositions. My disingenuous reason for requesting his presence was that I needed Gil to assist me with details and help me to frame additional questions for each deponent.
“Your Honor, he has an absolute right under his Sixth Amendment right to counsel, and that means he ought to be able to assist his counsel at the depositions. The law is clear, as Your Honor knows, that he should have the assistance of counsel, which means I ought to get his assistance, just as he gets mine. Otherwise, how's he going to aid in his own defense?”
Tyson got to do his Pavlovian thing once again that day. “Denied,” he said without emotion.
But everyone knew the real reason for the request: Giving testimony in front of Gil would have caused the deponents to clam up. It would be very difficult for someone to say anything incriminating about Gil while sitting in the same room with him.
In truth, what I was trying to do was shameful. Any defense lawyer who didn't just fall off the turnip truck would know that I was complicit in playing a very inappropriate game of intimidation. On this motion, I really couldn't argue with Tyson's denial.
There seemed to be no end to the motions. Louie and I filed several related to “severance,” in an effort to separate Gil's trial from Bert's. Deserved or not, Bert Christie had a reputation as a mobster and I didn't want Gil to be tarred with that same broad brush. Besides, Bert's lawyer Louie not only had a reputation for being a mob lawyer; he was driving us nuts. I knew it wouldn't do our case any good to have to sit there next to Louie for the entire trial. Louie was loveable at times. Other times, however, I'd get so frustrated and angry with him that I worried about becoming a defendant myself.
“Denied,” was Tyson's predictable response to our severance requests.
“Gee, something different for a change,” I thought sarcastically.
Now Gil and his family were still stuck with Bert and Louie—and so was I. You could almost hear the Christie family thinking the same thing about us. The denial of our respective severance motions made the road ahead that much rockier for all of us.