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This week finds Peter Grimaldi -- a retired insurance salesman from Italy -- being helped into a cab by a young man in midtown Manhattan. The cab driver discovers Grimaldi dead on arrival at his destination, apparently from a stab wound. As I have noted before, this incident accurately portrays the frequency with which someone is killed in a public place in broad daylight without witnesses to the murder.

The police learn that just before getting into the cab, Grimaldi had closed out his safe deposit box at his bank. The briefcase he had been carrying at the time is missing. In an effort to find the man who put him in the cab, the police fingerprint the taxi. On the door they find the fingerprints of Roland Dell -- on parole for a knifepoint robbery. Dell matches the physical description of a man seen with Grimaldi on an ATM security film taken outside the bank. They learn Dell lives with his brother in law, Reggie Hollis.

The arrest of Dell presents an interesting search issue. When the police arrive at Hollis' apartment and ask to speak to Dell, Hollis tries to put them off by saying the family is about to sit down to dinner. The police nevertheless blow right past Hollis with guns drawn. They charge through the apartment, find Dell and arrest him. In doing so, the police absolutely violated Dell's Fourth Amendment rights and his arrest is therefore void. Even where the police have probable cause to make an arrest, they cannot enter a suspect's home without an arrest warrant, consent or exigent circumstances, such as the suspect's flight. In this case there was no arrest warrant and Hollis did not consent to having the police enter the apartment. Nor were there exigent circumstances. When the police entered the apartment, they were not chasing Dell. When they found him in another room, Dell tried to run away. But because there were no exigent circumstances at the moment the police entered the apartment, Dell's flight upon discovery cannot save the bad arrest.

Back to our story: the police conduct a search of Dell's home. They don't find the briefcase or a knife, but they do find a green baseball cap matching the one worn by the man next to Grimaldi on the security film. Dell refuses to confess to the murder and the police properly stop questioning him when he demands his attorney.

The police place Dell in a lineup shown to customers who'd been at the bank machine as Grimaldi got in the cab. Only one witness identifies Dell as the person she "thinks" helped Grimaldi into the cab. Assistant District Attorney Abby Carmichael refuses to indict Dell on the basis of the equivocal identification; a decision with which I disagree. It's a close call because the case against Dell at this point is rather thin, but in my opinion, the presence of Dell's fingerprint on the handle of the cab, his physical similarity to the suspect on the ATM film, and the fact that a green baseball cap was found among his possessions, is sufficient evidence to support an indictment for murder.

At this point, the report of the Medical Examiner changes the complexion of the case dramatically. She advises the police that, in addition to the stab wound, she has found a bullet lodged in Grimaldi's left armpit. When asked which wound killed him, the Medical Examiner replies "take your pick," indicating that either wound was a substantial contributing factor to Grimaldi's death.

Now the police are looking for two killers instead of one, and confronting the fact that Dell stabbed a man who had already been fatally shot.

The plot thickens when the police learn Grimaldi had recently been subpoenaed by the Italian government to testify about his sale of life insurance policies to Jewish families in Eastern Europe during World War II. Grimaldi apparently capitalized on the Holocaust to convince his customers to buy life insurance. He later refused to pay on any of the policies because the survivors of policyholders killed by the Nazis had neither proof of the policies' existence, nor copies of death certificates with which to establish death. The company for which Grimaldi sold the policies -- Federale Insurance -- was a subsidiary of All Atlantic Insurance Co., which had employed Grimaldi since his arrival in the United States after the war. Federale's records in Eastern Europe had disappeared after the Communist take-over. According to Grimaldi's son Jordan, the only record of these policies was a handwritten log secretly kept by his father. Grimaldi had shown this book to Jordan ten years earlier.

Recognizing the importance of the book, Assistant District Attorney McCoy turns his attention back to Dell, who likely stole it and might know of its location. He learns Dell was hired by a security company that was in turn hired by All Atlantic. In exchange for a plea bargain on the homicide, Dell tells McCoy he'd been hired by the security company's owner -- Donald Burton -- to rob Grimaldi and take the book. So when Grimaldi grabbed onto Dell's jacket as Dell snatched his briefcase (since, unbeknownst to Dell, he'd just been shot) the hired thug "did what he needed to." He exceeded his instructions and stabbed the dying man. Dell knows nothing about Grimaldi's shooting, however, so the police are still looking for the first murderer.

McCoy next turns to Burton, who in exchange for a plea bargain tells McCoy that Alan Bresler -- a lawyer for All Atlantic -- told him the victim tried to sell the company his log book. Burton gives a general description of a man he saw arguing with Grimaldi just before Dell took Grimaldi's briefcase and stabbed him. Presumably, this was the shooter.

Still with me? At this point, the police learn from the bullet found in Grimaldi's body that the gun used to shoot him was a 9 millimeter 1934 Italian Baretta. (As a point of interest, ballistics experts do this by examining the marks left on a bullet by the rifling, or grooves, on the inside of a gun barrel, thus isolating the type of gun from which the bullet originated. The ability to do so turns on whether the gun manufacturer made the rifling unique, usually in an effort to stabilize the bullet in flight). According to my ballistics expert, a 9 millimeter 1934 Italian Baretta is not as rare as its name suggests. The gun was made for many years after the end of World War II. Unlike cars, a gun manufacturer can make a gun long after the model year has passed.

On the strength of Burton's description of the man seen arguing with Grimaldi and the fact that Jordan Grimaldi had registered a 9 millimeter 1934 Italian Baretta fifteen years earlier, the police arrest the victim's son. In my opinion, this is not enough evidence to support an arrest for murder. There were no eyewitnesses to the shooting and there's no apparent motive for Jordan to kill his father. Indeed, Jordan had revealed the existence of the book to the police, an admission he would be unlikely to make had he shot his father for it.

Having indicted Jordan, McCoy and Carmichael have a ridiculous discussion with the District Attorney, lamenting the fact that going after Jordan for murder will guarantee reasonable doubt in their homicide prosecution of Bresler (All-Atlantic's lawyer) and Hamilton Stewart (head of All Atlantic). Their discussion ignores several fundamental points. First, in cases such as this one, where the Medical Examiner has opined that there are two separate and substantial causes of death, a prosecutor can charge both perpetrators with murder and obtain convictions on both. Second, a prosecutor probably would not indict Bresler and Stewart for the murder in the first place. While Bresler instructed the security company to steal the book -- and did so doubtless on Stewart's orders -- there is no evidence they intended to cause Grimaldi's death or even knew Dell would be armed or ready to wield a knife to get the book. Even under New York's felony-murder law (holding a co-perpetrator of certain crimes, including robbery, responsible for any homicide occurring during the crime even if he himself did not harm the victim), an exception exists where the co-perpetrator has no reason to believe another participant was armed or intended to kill anyone.

The prosecutors settle on charging Bresler and Stewart with grand larceny for the theft of the book, but do so under a peculiar theory that would be unacceptable to most prosecutors. In an effort to pile on as much consecutive jail time as possible, they charge the two men with 1136 counts of grand larceny -- with each count corresponding to a policy listed in the book. In sum, they charge the defendants with stealing information regarding 1136 separate policies. I disagree with this approach. Most prosecutors would view this case as a single theft of a book and charge the defendants with one count of grand larceny. The likelihood of getting consecutive time on so many separate counts is slim. And in charging one count of grand larceny, the prosecutors could always consider the total value of the policies in selecting the charge. In the (likely) event the total value of the policies is over one million dollars, the defendants could be charged with grand larceny in the first degree -- as opposed to a number of separate counts of a lower level felony. It's likely the defendants would serve more time if the value of the policies is aggregated and the higher count is charged.

Realizing his case against Bresler and Stewart is in trouble without the book, McCoy speaks to Jordan Grimaldi, the only person who has seen it. Appropriately, McCoy tells Jordan he can make no promises in exchange for his cooperation at the trial of Bresler and Stewart. This is because the defense could impeach Jordan's testimony by arguing he would have testified to anything in order to reduce his sentence. Apparently a man of conscience, Jordan waives his Fifth Amendment privilege at the trial and admits he killed his father, although he maintains the gun went off during a struggle. Jordan says he confronted his father because the elder Grimaldi intended to sell the book to All Atlantic rather than tell the Italian authorities the truth about the policies. His claim makes absolutely no sense. There were other ways for Jordan to stop his father -- including calling the police and reporting his father's attempt to sell the book, or advising the Italian government of his father's intentions.

A final improbability. After Jordan's testimony, Bresler approaches McCoy and Carmichael and asks to speak to them. When McCoy correctly points out that Bresler is represented, Bresler says he is himself an attorney. The prosecutors then speak to him outside the presence of his attorney. This would never happen. When a defendant attempts to speak to a prosecutor, the prosecutor generally declines to speak to him and instructs the defendant to speak through his attorney. In this case, just because the defendant is an attorney and therefore qualified to represent himself, the prosecutor would -- as a precautionary measure -- at least consult with the judge and obtain the protection of court approval before speaking to a defendant outside the hearing of his counsel of record.

In the end, the book finally sees the light of day -- four defendants and numerous charges later.

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