David Slade flew back to New York the next day and asked Henry Rosenthal to come to his office at five. He told Henry not to bring his son or his wife, that it wasn’t in their best interest to hear what he and Henry needed to discuss. He didn’t say that he didn’t trust Toby or Miriam, or that he didn’t want to listen to Miriam’s hysterics, but those were two more reasons why Slade wanted Henry to come alone.
Henry arrived promptly at five and Slade’s fifty-something secretary ushered him into Slade’s office. Slade understood his own nature well enough to know that hiring a pretty young secretary would not be good for his marriage. Slade had no way to know then that in the end, everything would almost unravel thanks to a middle-aged secretary.
Slade asked Henry if he’d like a drink. “I don’t know about you, but I could use one,” he said. He almost added, And after we talk, you’re going to need one.
Henry said, sure, a scotch would be good, and Slade poured them two Macallans.
“You did a good job at the arraignment,” Henry said. “I was terrified they weren’t going to grant Toby bail. And was it true what you said about the lineup being flawed and the witnesses’ statements being contaminated?”
“The part about the bad lineup was true. I have no idea, however, if the witnesses were allowed to talk to each other before they gave their statements to the police. It doesn’t really matter.”
“It doesn’t matter?” Henry said.
“Henry, as things stand right now your son is going to jail. He’ll be convicted of manslaughter as opposed to murder two, and spend at least seven years behind bars. And that, I’m afraid, is a best-case scenario. The state has four reliable witnesses who saw Toby shoot DiNunzio, and a fifth one who saw him running from the bar holding a gun.” Henry seemed to deflate. “I see,” he said. “So what did you want to discuss? Whether Toby should plead guilty and take a deal? Or did you call me here to discuss your fee, which you haven’t mentioned yet?”
“No, Henry, I did not ask to see you to discuss my fee; I trust you’ll pay me when I send you a bill. But since you brought the subject up, I imagine with a case this simple, my fee will be only about a hundred.”
He meant only one hundred thousand, which Henry understood.
“I mean,” Slade continued, “there really isn’t anything I can do other than argue that the charge should be reduced from murder two to manslaughter and then do my best to ensure they don’t give Toby an outrageous sentence. If Toby is sentenced to six or seven years in jail, and eligible for parole in four or five, I will consider that I’ve done an outstanding job on your son’s behalf. One problem we’ll have with sentencing is that the court will be inclined to demonstrate that a rich white kid like Toby is treated just as harshly as poor, minority kids. The other problem is that Dominic DiNunzio had three children. His oldest is fifteen and his youngest is eight. The court is not going to be inclined toward leniency.”
“Jesus,” Henry said. “Can you imagine what’s going to happen to Toby if he has to spend seven years with the animals in a state prison?”
“Yes, Henry, unfortunately I can imagine.”
For a moment, Slade was afraid that Henry Rosenthal was going to cry. But he didn’t. “So you’re saying that there really isn’t anything that can be done for my boy.” Then, looking defiant, he added, “Maybe I need to consult another attorney.”
“No, Henry, that’s not what I’m saying. At least not yet. You see, there is a defense I could mount. It means going to trial and not accepting a plea, and it will be risky. But if I’m successful, Toby will be found innocent.”
“What defense? I don’t understand.”
“My argument will be that Toby didn’t shoot Dominic DiNunzio. Toby was in the bar, there’s no debating that. Not only do the witnesses place him there, but his fingerprints on a glass prove he was there. But what the witnesses really saw was Toby leave the bar and another man, one who bears a strong resemblance to Toby, enter the bar immediately after Toby left and shoot Mr. DiNunzio.”
“Are you joking?” Henry said.
“No, Henry, I’m not. Maybe DiNunzio had a client who committed embezzlement and felt it necessary to silence Mr. DiNunzio. Maybe this Italian-American accountant worked for the Mafia. Who knows? But the point is, Toby didn’t know DiNunzio and therefore had no reason to shoot him. The only logical explanation is that somebody else shot DiNunzio, some person who did have a motive.”
“But the witnesses.”
“Yes, Henry, that’s the rub. The witnesses. If there were only one witness, and that witness was unreliable—say, for example, an old woman with poor eyesight or a bartender who drank on the job. But five witnesses … Five are going to pose a very knotty problem.”
“I don’t understand. What are you saying, David?”
“Let me freshen your drink before we proceed.”
Rosenthal looked understandably confused, but Slade ignored his confusion and poured him a second scotch.
“Henry, what I’m about to say next must be said in hypothetical terms. If I don’t speak hypothetically, you and I could be accused of engaging in a criminal conspiracy. Or worse.”
“A conspiracy?”
“Yes, Henry, a conspiracy. You need to decide if you want me to proceed or not.”
“Yes, I want you to proceed! He’s my only son. So quit … tantalizing me. Spit it out!”
“All right, as long as you understand.” Slade paused, then said, “Hypothetically, if a team could be hired that could make all or some of these witnesses not testify against Toby, would you be willing to engage such a team?”
Henry immediately said, “Of course I would.”
“No, Henry, I will not allow you to do that. I will not allow you to say yes without really thinking about what I just said. This is no longer about Toby. This is now about you and me. If I proceed down this path, you and I could, hypothetically, go to jail ourselves.”
“When you say this team could make these witnesses not testify, are you saying …”
“I’m only saying what I just said, Henry. But think about it. There are many reasons why a witness might not testify. He might simply have a change of heart and decide the original statement he made to the police was incorrect. He might not appear in court to testify for some reason having nothing to do with Toby’s case. For example, a witness might flee the county because of a crime he’d committed, and thus not be available to testify. But that’s all I’m going to say. If we go down this path, I will have no control over the actions this team takes to assist Toby.”
Henry nodded. He understood. Henry Rosenthal hadn’t become an enormously wealthy man because he was stupid.
“The other thing you need to understand, Henry, is this defense will cost a considerable amount of money—much, much more than a hundred thousand.”
“I don’t know for sure, but at least three million. I was told that this team charged one client two million—but the client was exonerated. I do know that my fee will become one million.”
Henry raised an eyebrow to convey his shock.
“Henry, the reason I’m charging that amount is that A, I’m taking a significant personal risk, and B, I’m now going to have to work considerably harder to ensure Toby is found not guilty.
“The first thing I’m going to have to do is delay Toby’s trial as long as possible. If I can delay the start of the trial by one or two years, I will do so, because a lot can happen in one or two years; for instance, one of the witnesses is eighty-six years old, and she might die before the trial starts. The other reason I have to delay is to give this team time to do their job.
“In addition to delaying the trial, I also have to present an alternative suspect for Dominic DiNunzio’s murder. I’m going to have to tear DiNunzio’s life apart to show he had enemies and that one of those enemies killed him.
“Last, I have to convince this team to do the job, which is not a sure thing. They don’t take every case, and they charge so much they can choose not to work if they’re so inclined. So, before I proceed further, I need to know if you want to do this and agree to pay whatever is asked.”
Henry didn’t hesitate. “Yes, I agree. Toby’s a spoiled brat and he got drunk and killed a man, but I won’t have my son brutalized for years.”
“That’s all I needed to know,” Slade said.
The next morning, David Slade called the law office of attorney George Chavez in San Antonio, Texas. He told Chavez he needed an exceptional jury consultant to assist on the case of Tobias Rosenthal versus the State of New York. He said he’d been referred to Chavez by Scott Barclay. Chavez said he’d pass on the message and if Slade didn’t hear back from anyone in a couple of weeks, he could assume the people he represented had declined.
“A couple of weeks?” Slade said.
But Chavez had already hung up.