Eric Dinnocenzo - The Tenant Lawyer (30 page)

“No.”

Anna and I were maintaining good eye contact which, combined with her directly addressing Judge McCarthy, made me feel good about her as a witness. She had gotten into sort of a groove.

“Did you know what he was doing that day?”

“No, I hadn’t seen him for a while at that point.”

“How long?”

Anna shrugged.
“Probably a week or two.
You know, I don’t really know. Miguel never saw me regularly or
nothin
’. He does what he does.”

“Had you ever observed Miguel with drugs before the arrest?” I asked.

“No. Not me.”

“Do you have any knowledge of your son using drugs?”

“No.”

“He was arrested for marijuana when he was younger, right? You heard that testimony?”

“That was in high school. It was like three years ago or something. Yeah, I knew about it when it happened. It was a small amount, they told me. But I never saw him with that stuff.”

I told Judge McCarthy that I had no further questions and took a seat. I felt pretty good about Anna’s testimony. Her personality didn’t completely shine through, but she had done well, giving all the right answers, and that was what counted most. When
Merola
rose from his seat and took a moment to appraise Anna, I felt myself tense up. Just get through this, I silently prayed. We’re almost done.

“Ms. Rivera, we’ve established that Miguel was on your lease at the time of his arrest. You have to get recertified for your lease every year, right?”

“Yes, I do,” Anna replied curtly.

“When you recertify, you’re supposed to tell of changes in household composition, too, right? Who lives with you?”

“I don’t remember that being asked.”

“But isn’t that was you’re supposed to do?”

“I mean, I guess. I don’t know. I just do what I’m told there. I don’t know what their rules are.”

“Ms. Rivera, I want to show you your lease.”
Merola
approached the witness stand and handed it to her. “That’s your signature on the last page, isn’t it?”

Anna examined it and then looked up. “Yes, it is,” she replied in a business-like manner.

“Now when you signed that lease, you agreed to its terms, didn’t you?”

Anna looked confused.

“Didn’t you?”
Merola
repeated, this time more sharply.

“Yes,” she agreed.

Merola
flipped through the pages of the lease. “And here doesn’t it say that tenants, household members and guests are not to engage in drug activity on or near the premises?”

Anna looked at the page that
Merola
was showing her. It took her a little while to read it. Finally she looked up and said, “Yes.”

Merola
paused for a moment to collect his thoughts. “Ms. Rivera, I want to ask you about your son’s arrest. We established that he was arrested for marijuana when he was in high school, right?”

Anna nodded.
“Yeah.”

“Did you ever ask him afterwards if he used illegal drugs?”

“No.”

“Do you have evidence that afterwards he stopped?”

I objected to the question.

“Withdrawn,”
Merola
told the judge. “No further questions.”

Judge McCarthy looked over at me and I announced that I had a brief re-direct. I showed Anna the recertification form and asked her if the parts filled out aside from her signature were in her handwriting. I had wanted to ask her that during direct but had forgotten. She said they weren’t, and I concluded my examination. Although I knew Judge McCarthy would ultimately determine that Miguel was on her lease, it was nonetheless a point I wanted to make.

“You’re excused, ma’am,” Judge McCarthy told Anna.

She walked back to our table and I whispered to her, “You did a good job.”

In a way I was surprised that
Merola
had conducted such a short cross-examination of Anna, but then again, there was not much he could accomplish with her. She couldn’t testify about the arrest since she wasn’t there, and she had been firm that Miguel didn’t live in her apartment. He had no evidence to impeach her with on that issue.

Lawyers typically did not deliver closing arguments to Judge McCarthy in eviction cases. After the testimony was concluded, his customary practice was to announce, “Parties waive closings” in a tone that clearly and
unmistakably indicated it was much more a command than a question; yet on the trial transcript it would come out as a question. He would then wait for the parties to say yes before ending the case, making it impossible for a party to claim on appeal that he had denied them the right to make a closing argument.

I rose from my seat and asked if I could make a brief statement to the court. I used the word “statement” instead of “closing” because Frank Green had advised me that Judge McCarthy had a negative reaction to the word “closing.”

Merola
followed suit by also expressing an interest in making a statement.

Judge McCarthy seemed put-out by the request, but with a weary nod decided to indulge us.

Because he represented the plaintiff,
Merola
went first. Watching him in the brief moment before he began to speak, I realized that I didn’t feel inferior to him with regard to my legal ability as I had in the past. This particular trial had been a game-changer for me. It was kind of like being in a fight with someone you’re scared of, but then after trading a few blows and realizing you can stand toe-to-toe with the guy, your fear suddenly evaporates.

Merola
said, “Your Honor, the evidence clearly shows that Mr. Rivera was involved in the drug deal. His friend, Joe Sanchez, was under surveillance, and when called to make a deal, the first thing he did was pick up Mr. Rivera. It was the first thing he did. Then they drove straight to make the deal. Sanchez picked up Mr. Rivera because they were both involved with the deal. That’s the only reasonable explanation for it. Otherwise, why else bring him? Why else go straight to make the deal? This excuse that they were going to the mall
to buy a hat
just strains credulity, as does Mr. Rivera’s claim that he didn’t know Sanchez was a drug dealer. The police knew Sanchez was a drug dealer, since they had him under surveillance. But are we to believe Mr. Rivera didn’t know? And keep in mind that these two men were good enough friends, apparently, to go shopping at the mall together in the middle of the day, if we are to believe Mr. Rivera’s testimony. Yet he didn’t know? It’s just not believable. He doesn’t know how Sanchez, a known drug dealer, came to have a new Lexus, either? It’s just not believable.

“At the Rite-Mart the heroin deal goes down, which there is no dispute about, and drugs are found in the car. Mr. Sanchez has the marked bills and Mr. Rivera has two hundred dollars on him.
Two hundred.
That’s drug dealer money, plain and simple.

“All the housing authority has to show in this case, by a preponderance of the evidence, is that Mr. Rivera was engaged in illegal drug activity at the Rite-Mart. I submit that’s been done. Furthermore, it doesn’t matter if Ms. Rivera was ignorant of her son’s activities, which Mr. Langley has been trying to show. She had him on her lease, and as a legal resident of George Washington, he engaged in drug activity. According to the lease, this warrants an eviction. It’s that simple. It should also be noted—and this is significant—that while Mr. Langley has tried to show that Mr. Rivera didn’t live with his mother, there has been no real evidence introduced that he has another address.

“Also, as has been established in the motion to dismiss hearing, the Rite-Mart is on or near the premises of George Washington. I won’t go over those details again with the court, so as not to waste time, and I know the testimony of the witnesses didn’t address it—”

Judge McCarthy interrupted, “You can move on Mr.
Merola
. I’ve already made my ruling on that particular issue.”

Merola
touched the tips of his fingers together. “The housing authority is in the business of trying to provide safe and decent housing for the low-income people in Worcester. Drugs tear public housing projects apart and destroy communities. It’s a battle for the housing authority to keep drugs out of public housing projects.
A battle.
By having Mr. Rivera on her lease, the tenant here makes the public housing complex a more dangerous place. It makes for a tougher battle. If the housing authority doesn’t bring eviction cases in these situations, it sends a message that it’s okay to be involved with drugs. It says it’s okay to have drug dealers in your apartment or on your lease as long as you turn a blind eye. The housing authority simply cannot permit people who engage in drug activity to live there. It simply can’t.”

Merola
sat down and placed his folded hands in front of him on the table. In my opinion he gave a masterful performance. His analysis of the issues was very sharp, and he ended by highlighting the emotional appeal of his case which up until that point had largely been ignored. Now it seemed to suddenly cast a large shadow over the proceedings.

I rose to my feet knowing I would have to deliver a really good closing if I wanted to stay in the game with
Merola
. Like
Merola
I wasn’t using any notes.

“The housing authority has not proven that Miguel Rivera was involved in the drug deal. He was just in the wrong place at the wrong time. Mr.
Merola
has to prove it—it’s his burden of proof—but the facts are clear that Miguel was never seen with drugs in his possession, nor did he have the marked bills used in the deal on him. There’s been no witness testimony that he was part of the deal or otherwise had advance knowledge of it. Even Sergeant
DelVecchio
said that Miguel was not a target of his operation. He was in the wrong place at the wrong time, and Mr.
Merola
has not met his burden of proof of showing otherwise.

“Mr.
Merola
claims that it’s not credible that Miguel was going to the mall with Sanchez who was going to buy a hat. But people go to the mall just to hang out, to shop,
to
do whatever. People go to the mall with a lot less purpose than Miguel Rivera did that day. If we think about it, if the story about going to the mall is a fiction, wouldn’t it sound better if Miguel at least testified that he had plans to buy something, especially given that he had money on him? If it’s a manufactured story, it wasn’t manufactured very well. Miguel could have said he was going to shop for something, but he didn’t say that because it wasn’t the truth. And he is telling the truth—that a friend asked him to go to the mall and he said yes. Again, he was in the wrong place at the wrong time.

“The two hundred dollars that he had—he testified that it was from work. It’s not like he was carrying a thousand dollars. He had been paid and he doesn’t have a bank account, so he had the money on his person. Carrying two hundred dollars doesn’t make someone a drug dealer. If we infer that someone committed a crime because he has two hundred dollars in his pocket, well, then, we’ll have a lot of criminals out there.

“Another important fact here is that the drugs were concealed in the center console of the car. They weren’t out in the open, so there’s no evidence that Miguel saw the drugs at any point before the deal happened. Again, Mr.
Merola
hasn’t met his burden of proof here. Rather, guilt by association is the theory he’s proceeding under. I would also like to point out that one thing we know for sure is this: whether or not Miguel was a participant in the drug deal, Anna Rivera—” I pointed directly at her—“and her son, David, did nothing wrong. They did absolutely nothing wrong. There is no evidence that Anna even knew where Miguel was that day. Yet they will be evicted here, and public housing is very important to them. It’s the difference between having a roof over their heads and being out on the street.

“Mr.
Merola
calls this a battle against drugs. I
ask,
if there is a battle, why target innocent people in that battle? This one-strike law is so very harmful when used without discretion. It leads to collateral damage that irrevocably harms the lives of innocent people. Anna Rivera and her son, David, are real people who will face severe consequences if they are evicted. Evicting them won’t hurt Miguel, since he doesn’t live in the apartment, and it won’t make George Washington a safer place. Mr.
Merola
talks about sending a message. What kind of message is an eviction here? An eviction is just collateral damage. If this is a battle, then why do Anna and David have to be the casualties?”

I took my seat and gazed downward at the grainy pattern in the wood table top. It swirled around in my vision, coming in and out of focus. A moment later I was back on my feet when John commanded us to rise when Judge McCarthy left the bench. I watched him lumber out of the courtroom with the court file in his hand. It felt strange to realize that the case was over, and it was now up to the judge to decide the result. It also made me feel uneasy that one man could have that kind of power over others. But I had created the situation by withdrawing the jury request.