Last Witness, p.23Jilliane Hoffman
If he allowed in the Lourdes Rubio affidavit as evidence, he would have no choice but to grant the motion for a new trial. The facts were clearly damning, and once he made that affidavit official – once he made it legal and part of the evidentiary record – he could not then legally ignore its content. Neither could the appellate courts. And there would be a ripple effect – the reverberations of his reversal on Prado would overturn the other ten convictions, he knew. A new trial was the remedy, the outcome of which would be a lot less certain than the first.
However, if he kept the affidavit out, unless the defendant could show an ‘abuse of discretion by the trial court’ – an almost impossible legal feat – it was never coming in and it was never coming back.
In other words, the ball was entirely in his court.
Despite Lourdes Rubio’s last-minute effort to help her former client, Judge Chaskel had been in that courtroom and had heard the evidence, and there was no denying that Bantling was guilty. That was what was so damn frustrating. Even if everything she had said in her affidavit were taken as true, that the stop was predicated on a bad tip – a tip not recognized by a black and white reading of the law – he knew that legally it might take Anna Prado’s body out of that trunk, but not factually. Her tale of a vengeful prosecutor seeking retribution for a decade-old crime was an eyebrow raiser as well, but then again, he was certainly having his doubts about C. J. Townsend lately. He used to be able to depend on her, take every word she told him as true. No more. She had been less than forthcoming regarding her prior assault and Bantling’s absurd allegations, and that was one thing he did not appreciate in his courtroom – a lack of candor. It was something he might have expected from the defense bar, but not from a Major Crimes prosecutor. Obviously he had set the bar too high.
Now she had left him with a mess. They both had – she and Rubio – but only Townsend was around to pay the penalty.
He tapped his pen against his desk, wiped his eyes again and took a final sip of his cold coffee. He rose and put his black robe back on, his shoulders suddenly old and heavy under the weight of it, and walked out of chambers.
And as he slowly made his way down the quiet back hall to take the bench and confront the circus, he said a silent prayer that what he was about to do was the right thing. And that God would forgive him if it was not.
The door from the judge’s hallway opened without warning, and Judge Chaskel swept to the bench. He surprised Hank, who stood chatting with one of the FSP sergeants by the box. ‘All rise!’ seemed rather pointless by then, so Hank just barked a flustered, ‘Be seated!’ even though most of the courtroom still was.
The media was officially back now in all its glory. With boom mikes and cameras and satellite trucks, every station had staked its claim as soon as the courtroom doors opened that morning. It was now late Tuesday afternoon, and even though the wait had stretched to seven and a half hours, no one was about to give up their hard-fought seat. They had hung around the entire day, ordering in lunch and hooking up live feeds from the courtroom. The legal arguments that would be made, C.J. had thought, would have put even the most diehard of Court TV fans to sleep in a matter of minutes.
The feeds alternated back and forth between the courtroom in sunny downtown Miami and outside Lourdes Rubio’s office building in Breckenridge, Colorado. The cameras focused in dramatically on the small, white and black FOR RENT sign that sat now in the front window. It was supposed to look ominous and chilling and abandoned, but occasionally the cameras would inadvertently catch the other reporters doing the exact same thing, and the effect was lost.
Then there were the shots of the Breckenridge Police Captain, trying to look somber, but equally as excited as the reporters, at a crowded press conference in police headquarters. Relishing his fifteen minutes, he said in a loud and surprisingly confident voice, ‘It’s still an open investigation. We have approached this as a robbery to date, but we are not discounting any theory. Lourdes died under very violent circumstances. We’re asking the public to call in with any information they might have.’ The use of the victim’s first name was supposed to bring a hometown, ‘we’re all dealing with the loss,’ feel to the investigation, but he pronounced Lourdes’ name wrong. That clip ran every twenty minutes or so, or whenever the courtroom drama became too legal to be called exciting, spliced with old footage of Lourdes at Bantling’s trial three years back.
Manny had shown up with Chris Masterson and Steve Yanni at about ten past nine, listened to the legal arguments for two minutes, yawned and, in a note passed to C.J., vowed to come back with reinforcements when the legal wrangling was officially over. C.J. had left a message for Marisol to beep him and tell him to come back this afternoon, realizing after the fact that was probably not the best of ideas. Now Marisol herself stood in the rear of the courtroom, sandwiched between the Bear and half the police force in Miami, a big toothy grin on her fuchsia-colored lips. C.J. looked, but of course Dominick was not there. He couldn’t be, given who the defendant was.
Now the cameras were devoted solely to an obviously tired and troubled Judge Chaskel. He had announced at 1:00 p.m. that a ruling would be pronounced at 3:30, and he had made it to the bench, of course, right on time. It was 3:31 and even with the courtroom jammed to its paneled walls, you could hear a pin drop.
C.J., along with the rest of the courtroom, tried to read the heavy lines that crossed the judge’s face, weighing down his brow and pulling at the corners of his mouth. Her head pounded and her hands were wet with sweat. Maybe she would be able to get a head-start out the door if he threw a scowl her way, one that told her his ominous warning to her was about to come true, that things would indeed be getting sticky for her. But his seasoned face divulged no clue. He looked out at his courtroom, like a king on a small throne, but focused on no one, no camera, in particular. Then his eyes dropped onto the prepared order he had in front of him.
C.J. had done her best that morning, and had made what she thought was a good, sound argument. Once she sat down, Rose stood up and made it all again. Neil Mann was no match for the two of them, or Judge Chaskel’s quick hypothetical ‘let’s play devil’s advocate for a moment’ questions. He delivered a weak argument, his bottom lip shaking so badly at one point that C.J. thought he might actually cry.
But the law was a funny profession. Oftentimes even the strongest of arguments lost to the most emotional of cases. Judges in criminal cases were supposed to be impartial, looking only to the law, but C.J. knew that Chaskel could not just ignore a death sentence. So she crossed her fingers under her folder and dropped another prayer to St Christopher that the judge would finish this now.
‘The defendant has made a motion for postconviction relief pursuant to the Florida Rules of Criminal Procedures, Rules 3.851 and 3.850,’ the judge continued, his words carefully chosen, not for the cameras but for the court reporter. ‘He had asserted two grounds for which he seeks relief. The first is an ineffective assistance of counsel claim, where he alleges that the performance of his attorney of record, Lourdes Rubio, was so deficient that it deprived him of a fair trial. The second ground for relief is a newly discovered evidence claim. The defendant alleges that there is newly discovered evidence, only recently obtained, that if introduced at retrial would probably produce an acquittal. In support of these two claims, the defendant has attached a notarized affidavit from Lourdes Rubio.
‘In this affidavit, Ms Rubio admits to coming into possession of certain evidence, namely a 911 tape, after Mr Bantling had been arrested and after she had been retained as counsel, but before his trial began. This 911 call, allegedly recorded on the emergency line by the Miami Beach Police Department on or about September 19, 2000, the night Mr Bantling was arrested, was allegedly placed just a few minutes before the defendant was pulled over by Miami Beach Police Officer Victor Chavez for traffic violations. The substance of the call is as follows:
‘Operator: “911. What’s your emergency?”
‘Operator: “What’s your name, sir? Where are you calling from?”
‘After that, the line goes dead.
‘Trial testimony from the arresting officer supports that Mr Bantling was driving a 2000 black Jaguar XJ8 when he was first seen driving recklessly on Washington at approximately 8:15 that evening. In her affidavit, Ms Rubio alleges that the anonymous 911 call formed the basis for the illegal stop of his vehicle, and in support thereof points to an out-of-court conversation that she had with the arresting officer, Victor Chavez, wherein he stated as such. She alleges that the tip was legally insufficient in detail to provide probable cause to pull over Mr Bantling. As such, the subsequent search of his vehicle was also illegal, and the fruits of that search – namely the discovery of the body of Anna Prado and then the physical evidence gathered from a search of Mr Bantling’s home – were poisoned and thus inadmissible. Ms Rubio, in her affidavit, states that, because of compromised personal feelings of sympathy she had for the prosecutor, C.J. Townsend, who was herself a victim of a sexual assault years before, she purposely withheld this information from her client and the court. She asserts that she did not present this evidence, failed to effectively cross-examine witnesses and did not zealously defend her client.
‘The defendant, through the affidavit of Ms Rubio, presents a very interesting, very disturbing theory, and one that certainly requires further examination. This court thus duly ordered an evidentiary hearing to be held to explore both the truth and the scope of Ms Rubio’s allegations. Ms Rubio was to testify before this court, and be subject to vigorous cross-examination by the State. Any evidentiary attorney—client privileges that had once existed between her and Mr Bantling would be waived.
‘The factual problem for the court is this: Between the time Mr Bantling’s Rule 3.850 was filed and this evidentiary hearing, Ms Rubio has died. In legal terms, the witness is now unavailable. In addition, the arresting officer, whose testimony and motives she wishes to call into question now, is also deceased. However, his statements in Mr Bantling’s trial are legally admissible as evidence in this hearing, and would be in a retrial, under the rules of evidence as former sworn testimony. And finally, the 911 tape which serves as the root of both grounds of the defendant’s motion cannot be produced by either the defense, or the State, as the Miami Beach Police Department routinely destroys their 911 master reels thirty days after recording.
‘The legal problem for the court is this: The allegations of Ms Rubio are serious and troubling and, if true, most certainly would constitute grounds for a new trial. But Ms Rubio’s affidavit, while duly sworn and attested, is still an out-of-court statement sought to be admitted by the defense for the truth of its content. In other words, it is hearsay. Ms Rubio is unavailable to testify as a witness, to be cross-examined by the State, the veracity and reliability of her statements questioned, her credibility confronted in a court of law. The legal question then, that I have asked the State and defense counsel to research and have heard argument on all morning, is this: Can this hearsay be admitted in a post-conviction evidentiary hearing where the defendant is under a death sentence?’
The judge paused, and the courtroom air trembled with anticipation. He looked up at his kingdom once again, surveying the cameras that watched him for a moment, as if making one final, last-second mental check of his words before he released them. His brow furrowed and he looked back down at his notes, his eyes catching for a single, split second not on the cameras, not on the defendant, but on the State. On C.J. The look he gave her lasted only a moment, but its impact would be forever. She stood before him then, stripped of her status as a litigator, as an esteemed Major Crimes prosecutor. And he condemned her. For what she had done, and what he was now forced to do as a result.
‘The admissibility of evidence in a post-conviction hearing lies in the sole discretion of the trial court. No exception to the hearsay rule exists to admit Ms Rubio’s affidavit. The 911 tape cannot be produced, and as such, does not exist in the eyes of the law. That leaves this court with the undisputed testimony of Officer Victor Chavez, and the same issues it confronted and dismissed in the defendant’s prior Rule. The circumstances, legally, are the same, given the unfortunate and untimely demise of Lourdes Rubio. There is no general catch-all hearsay exception in the state of Florida. If a statement does not fit into a recognized hearsay exception, it is inadmissible. This court has explored issues of fundamental fairness to the defendant, as the penalty is death, but in the end, it must consider that should it grant the defendant’s motion and grant a new trial, his newly discovered evidence would probably not produce an acquittal at trial because it is inadmissible.
‘The ineffective assistance of counsel ground must also fall for the same reasons. The State has the right to cross-examine Ms Rubio on issues concerning motive, preparedness and effectiveness. They are unable to do so, so the statements in the affidavit are not admissible for this purpose either.
‘Therefore the defendant’s motion for postconviction relief is hereby denied. The sentence of death shall stand. This hearing is adjourned.’
Then the judge sailed off the bench just as quickly as he had come. And C.J. knew he would never look at her quite the same way ever again.
The courtroom seemingly exploded around him, cameras focused on his face, questions shouted at him across the room, reporters tripping over each other to run out into the hallway.
‘I’m sorry, Bill,’ was all Mann could manage to say, avoiding his client’s eyes.
‘Sorry? What the fuck just happened, Neil?’ Bantling hissed.
‘He denied it. It’s over, Bill. I’m sorry.’
‘What do you mean it’s over?’
‘Rubio’s statements aren’t coming in.’
‘You said airtight, Neil. So I’ll get another trial, right? One with a new lawyer?’
Neil hated this part. He really did. Telling a client that they had lost, that he had lost it for them. Usually it was a written opinion he had to translate over the phone, and he was able to soften harsh words a bit in his favor, but this had just happened live. Didn’t this guy just hear the goddamned judge speak? ‘No, Bill. The judge denied the whole motion. He ruled her statements can never be heard, that the tape can never be heard. They’re hearsay. They died with her.’
‘So what does this mean?’ The FSP sergeants were untangling a set of leg irons. Through the noise of the courtroom, he could still hear their distinctive clang.
Neil sighed and shuffled papers in front of him. ‘It means you go back to death row. It means another appeal from this order, but I frankly wouldn’t hold out much hope.’ At least not with him, anyway. Bantling’s money was running out and, after today, it didn’t look as if the phone at the law office of Neil Mann would be ringing off the hook with new clients or lucrative CNN legal correspondent offers, for that matter.
‘The fuck I’m going back there. I want a hearing.’
‘You just had it.’
‘My own bitch attorney set me up and now that doesn’t matter, Neil?’
‘She’s dead, Bill. Dead witnesses can’t speak from the grave, they can’t be cross-examined. It’s a problem for a case. That’s why the Mafia always wants to get rid of them in movies. Without witnesses, there can be no case.’
That was when a light snapped on somewhere in Bill Bantling’s head. His eyes darted around, like a crazed animal in a cage. ‘I need to speak with the detectives,’ he said quickly. He watched as a CO in a brown uniform inspected a pair of shackles ten feet away, obviously waiting the appropriate few minutes necessary for Bill to finish up with his attorney before they packed the bus. ‘Falconetti and Alvarez. The FDLE team police
Mann looked at him quizzically. ‘Agent Falconetti is under suspension because of what happened with you. He’s not on the task force anymore. What do you need to talk to them for?’
‘Alvarez then, the big one who was with Falconetti. Any of those task force detectives. I want to talk to them.’
‘What’s this about, Bill?’ Neil Mann’s curiosity was raised. ‘You know anything you say to them can be used against you, should you get another hearing.’ Then again, a last-minute repentant confession of how he killed those girls would surely get the cameras rolling again.
‘Set it up,’ Bantling said. ‘Down here. They’ll want to hear what I have to tell ‘em. Don’t let them move me back up to Raiford today.’
His eyes caught then on C.J. as she made her way past the bench to the door the judge had just left from, leaving her boxes and briefcase and press interviews behind with that other bitch prosecutor. Hoping, he was sure, to escape the press and to avoid one final confrontation with him. That maybe he would just get shipped back to hell by the time she was done hiding out in the bathroom, and she wouldn’t have to watch it get ugly. It would all just go quietly away in a prison bus. But, unfortunately for her, the door was in lockdown now that the judge was gone and the proceedings over. She waited with her back to him, trying to blend quietly into the scenery, for the bailiff to open it. Doubly unfortunate, was that the bailiff was not quick enough.
‘There’s still one more monkey left,’ he called to her. She didn’t turn, but Hank did. So did the court reporter and the clerk.
Last Witness by Jilliane Hoffman / History & Fiction have rating 4 out of 5 / Based on32 votes