4

Fifteen hours after Dominic DiNunzio was killed, David Slade attended a lineup in which five witnesses were separately asked to identify the man who shot him. Each witness identified Toby Rosenthal. Three of them did so without hesitation: old Esther Behrman; the barmaid, Kathy Tolliver; and the lady on the eHarmony date, Rachel Quinn.

When the bartender, Jack Morris, was asked to identify the shooter, he paused, then said, “I think it’s number four.” “You think?” Detective Dent said. “No, it’s him, number four,” Morris responded.

When Edmundo Ortiz was asked to make an ID, he said the same thing he said when Dent interviewed him at McGill’s: “He went by me pretty fast.” “But do you see the man?” Dent asked. “I only saw him from the side,” Edmundo said. Dent told the men in the lineup to all turn to the left; Edmundo would have seen the shooter’s right profile as he ran out the door. “I think number four,” Edmundo said. “You think?” Dent said, just as he’d done with Morris. Edmundo frowned and squinted at Toby Rosenthal’s face. “Si. Number four. He’s the one.”

As David Slade knew the lineup was being videoed, he didn’t bother to make notes regarding the exchanges between Dent and Morris and Ortiz.

The lineup was a joke, as far as Slade was concerned. There were five men in it in addition to Toby Rosenthal, and they were all Caucasians with short, dark hair. However, three of the men were several inches taller than Toby, two were several years older, and none of them really looked much at all like Toby. It had apparently been difficult to find short, handsome, young cops that day to participate in the lineup. But Slade didn’t complain; he did ask for a copy of the lineup video.

Following the lineup, Slade met briefly with Assistant District Attorney Justine Porter. Slade figured it was just simple bad luck that he’d ended up with Porter as the prosecutor; he really would have preferred someone else. He’d been up against her only once before—he won, she lost—but he knew ADA Porter was bright and competent, and considering the salaries ADAs were paid, competent was better than average.

Porter was in her early fifties—and she looked her age. She was about five seven, and thin, because she worked about fourteen hours a day and often forgot to eat. Her dark hair was streaked with gray, long and straight, not styled in any way; Porter didn’t have time to waste in beauty salons. She’d been married once, years ago, but was now single and had no kids. Slade suspected she didn’t even have a cat; her work was her life.

As far as ADA Porter was concerned, the case against Toby Rosenthal was, as Detective Coghill had said, “a slam dunk.” Four eyewitnesses saw him shoot Dominic DiNunzio, his fingerprints on a glass proved that he’d been in the bar, and all four had picked him out of a lineup. A fifth witness, Edmundo Ortiz, didn’t see him shoot DiNunzio, but did see him run from the bar with a gun in his hand, and he’d also picked Toby out of the lineup. There was no reason, Porter said, to waste the state’s time and money on a trial. More important, from ADA Porter’s perspective, there was no reason to waste her time. She already had a workload that would have broken the back of a Clydesdale.

“He’s been charged with second-degree murder,” Porter told Slade. “If he pleads guilty, I’ll agree to voluntary manslaughter. And I’d call that incredibly generous considering that Dominic DiNunzio was an outstanding citizen with no criminal record and the father of three, his youngest only eight.”

Slade waited for the other shoe to drop. “If he refuses to plead guilty at the arraignment, I’ll stick with the murder two charge, and if he’s found guilty at trial, which you know he will be, he’ll get fifteen to twenty years. He’ll be eligible for parole in maybe twelve, assuming he survives that long.” The implication being that a cute little guy like Toby was going to suffer miserably in prison.

Slade knew that when it came to charging his client, Porter had a dilemma. She couldn’t charge Toby with first-degree murder and expect to win at trial. By definition, first-degree murder requires “malice aforethought”—which basically meant that when Toby killed DiNunzio he’d committed a cold-blooded, calculated, premeditated crime. The eyewitness statements, however, didn’t support this definition. All agreed that Toby rushed out of the bar, then rushed back in and shot DiNunzio. Furthermore, and more important, Porter had not been able to find any motive for the killing, nor any prior connection between Toby and DiNunzio. Other than Toby Rosenthal and David Slade, no one knew what had happened in the hall outside the restroom door when DiNunzio shoved Toby and called him names. The bottom line, unless the state could find a motive, was that it would be impossible to prove Toby had premeditated or calculated in any way with regard to the death of Dominic DiNunzio. Consequently, the state had two choices: voluntary manslaughter or second-degree murder.

Although legal scholars will tell you otherwise, there really isn’t much difference between second-degree murder and voluntary manslaughter. Second-degree murder is an intentional murder, but is not premeditated or planned in advance. Voluntary manslaughter—often called a “heat-of-passion murder”—is also an intentional killing involving no prior intent to kill, but it’s committed under circumstances that would “cause a reasonable person to become emotionally or mentally disturbed.”

For example, say Bob finds his wife in bed with Tom and he pulls out his gun and shoots Tom. The law is willing to concede that Bob had cause to become emotionally disturbed, as Tom was boinking his wife. On the other hand, if Tom just pisses Bob off in a bar, and Bob pulls out his gun and shoots him, the law is less inclined to think that Bob had reasonable cause to shoot Tom.

So there was always a lot of hairsplitting when it came to the difference between voluntary manslaughter and second-degree murder, but the important thing was that voluntary manslaughter was considered to be the lesser of the two crimes and therefore the penalties were less. And that was the bone that ADA Porter was tossing Slade if his client agreed to plead guilty: ten years max for voluntary manslaughter versus fifteen or more for second-degree murder.

Slade’s response to the bone was: “I’ll think about it, Justine, and get back to you.”

“Well, you’d better get back to me before the arraignment,” ADA Porter said. “I won’t make the offer again.”

He believed Porter when she said she’d stick to the charge of second-degree murder and take the case to trial if Toby didn’t plead guilty immediately—Porter didn’t make idle threats—but as David Slade had no intention at this point of taking any deal short of dismissal of all charges, he didn’t respond.

As promised, at the arraignment that afternoon ADA Porter said that Tobias Rosenthal was being charged with murder in the second degree—to wit, the intentional killing of Dominic DiNunzio. Judge Albert Martinez—a heavyset, perpetually scowling man who reminded Slade of the late Supreme Court Justice Antonin Scalia—asked how the defendant pled. Slade wished they hadn’t drawn Martinez for a judge; he was fair, but extremely impatient, constantly prodding attorneys to speed things up, as if a trial were a race against the clock.

In answer to Martinez’s question, Toby softly said, “Not guilty, Your Honor.”

“Speak up!” Martinez snapped.

Toby cleared his throat and again said, “Not guilty, Your Honor.”

Toby was completely sober, for the first time in days, and so frightened he was trembling as he stood next to his lawyer.

“Now as to the matter of bail,” Judge Martinez said.

“Remand, Your Honor,” Porter said. “Mr. Rosenthal comes from a very wealthy family, and since five witnesses identified him as the man who killed Mr. DiNunzio, there is no doubt he will be found guilty at trial. The people, therefore, consider there to be a significant risk that Mr. Rosenthal, aided by his family, will flee before his trial, and most likely to a country with which the United States has no extradition treaty.”

“Your Honor,” David Slade said, “I almost don’t know where to begin in responding to such an absurd statement. First, it should be noted that Mr. Rosenthal’s father is one of the most respected attorneys in this city, and no way would he aid his son in fleeing. Henry Rosenthal, in fact, wants a trial to clear his son of these false charges.”

ADA Porter made an unattractive snorting sound, and Judge Martinez gave her an appropriately admonishing look.

“More important, Your Honor, the state has offered no motive for my client having murdered Mr. DiNunzio. There is no motive because my client never met or spoke to Mr. DiNunzio. Nor does the state have any physical evidence that my client committed this crime, such as the gun that was used to kill Mr. DiNunzio. And the police, with my client’s consent, performed a gunshot residue test and there was no evidence that he had fired a gun.”

ADA Porter opened her mouth to object, but Judge Martinez silenced her with a raised hand.

“As for these so-called eyewitnesses,” Slade said, “four times in the last three years in the state of New York, men incarcerated as a result of eyewitness testimony have been released from prison when DNA evidence proved them innocent. Four times, Your Honor. As Ms. Porter surely knows, there is no testimony less reliable than eyewitness testimony. And in this case, and as will be demonstrated at trial, the police contaminated the witnesses. The witnesses were allowed to remain in the bar where the murder occurred for approximately half an hour before they were questioned by detectives, giving them plenty of time to talk with each other and reach some sort of consensus regarding what occurred. As for the so-called lineup in which these same contaminated witnesses identified my client, I would call it laughable were it not such a serious case of police incompetence.

“In summary, Your Honor, the state has a weak case, in spite of Ms. Porter’s statements to the contrary. My client has no intention of fleeing, his respected family has no intention of helping him flee, and he’s willing to give up his passport, wear a GPS device, or take any other action the court considers appropriate to ensure he remains within this jurisdiction. And one final point, Your Honor. The state has charged my client with murder two when, if he’d actually committed this crime, the more appropriate charge would be voluntary manslaughter, and, as you know, it’s extremely rare that manslaughter defendants are not given the opportunity to post bail. We all know how full the court’s calendar is, and it would be a miscarriage of justice for my client to have to spend months in jail prior to his trial.”

Porter again started to object, but Martinez raised a hand, signaling that he’d heard enough, then looked down as if he might be consulting a document. He was actually looking at a text message he’d just received from his wife, reminding him not to be late for a dinner party.

“Bail is set at one million dollars,” Martinez said.

As Slade was leaving the courtroom, he stopped to speak to Henry and Miriam. Henry immediately said, “When can we get together and talk about Toby’s defense?”

“Not for a couple of days. I need to—”

“If you have higher priorities than Toby’s case, David, I need to know right now.”

“I don’t have a higher priority, Henry. Toby’s my only priority. But there’s a man I need to speak to about the case, and I may have to travel to talk to him.”

“Who?”

“I’m not going to tell you that—I can’t tell you. But as soon as I’ve spoken to this person, we’ll get together. I promise.” Then, looking directly at Miriam Rosenthal, he said, “Before I leave, there’s something I need to make sure you both understand. You cannot, under any circumstances, talk to anyone about what Toby told you the night he was arrested.” They both nodded, Henry looking grim, tears welling up in Miriam’s eyes.

Slade was particularly worried about Miriam—and he made it clear that he was. “This is important, Miriam: I know you’re in pain right now and would probably like to talk to someone—a friend, your sister, your rabbi. But you can’t. You absolutely cannot do that. If you do, you’ll destroy Toby’s life.”

That was unfair—Toby had destroyed his own life—but he had to make sure she got the message. “Do you understand, Miriam?”

She started to say something, but then started sobbing, so Slade said to her husband, “You need to make sure she understands, Henry.”