Tainted Evidence

by Robert Daley

  Her secretary came in at nine AM and shortly after that announced the arrival of Detectives Muldoon and Barone, both of whom were some minutes late.

  Karen's door was closed by then. "Send for Mr. Coombs, please," she directed her secretary. "I'll take Detective Muldoon first.” This was proper; Muldoon was both the senior man and more central to the case.

  Karen came around her desk smiling, and stuck her hand out. "Good morning, how are you?”

  Muldoon no more responded to her smile than to her greeting. He wore a plaid sports coat that was mostly green and a striped shirt that was mostly blue, and a flowered red tie with stains on it. Her hand was out there and he looked at it. Finally he gave it a brief shake. His hand was fat and moist. He was not used to shaking hands with women, apparently. Karen frowned. Muldoon was her principal witness and already she was put off by him.

  She sat down behind her desk and looked at him, noting his bloodshot eyes, and the red veins in his nose.

  Coombs came in.

  "This is Mr. Coombs," said Karen. "He was working with Mr. Harbison, so you know each other already, I believe."

  A brief nod by Coombs. No reaction whatever from Muldoon who looked at him, then away. Coombs took the chair in the corner.

  Muldoon had not yet made eye contact with anyone. This man may only be nervous, Karen tried to encourage herself. Some cops distrust lawyers. It's automatic with them. Muldoon doesn't know me after all, probably doesn't know what I want from him.

  If he was nervous then her first job was to put him at ease, and so she began to speak of past cases he had worked on--this was information out of his file. She asked questions, tried to sound admiring. He answered with grunts or monosyllables, and continued to avoid eye contact.

  Karen kept smiling, stayed outwardly cheerful.

  Muldoon interrupted her. "Would you mind telling me what this is all about."

  "I want to go over the Epps case with you. Jury selection starts next Monday and--"

  "I've been all over that with you people."

  "Well, not with me personally--"

  "A hundred times."

  "Well, once more won't hurt, then."

  "Norm Harbison knows all about it."

  "Yes, I've talked to Norman. He's busy on something else, I'm afraid."

  "Look, lady, I got homicides I'm investigating."

  "I'm sure," said Karen.

  "See Harbison. It's in his notes.”

  Karen had inherited no notes. Harbison had apparently made none, nor would she make many herself, perhaps none. The case folders contained official police reports, the defendant's police record, minutes of his previous trials, hospital reports and photos and diagrams, the grand jury indictment, copies of the various briefs and motions, and no notes, plans, or strategies by Harbison. This seemed to her normal. Unwilling to provide the defense with foreknowledge of his strengths and weaknesses, he had determined to keep his Rosario material to an absolute minimum. Which was all to the good, though hard on anyone else inheriting the case.

  She began asking Muldoon specific questions. Though she was stubborn about it she got back little more than grunts and monosyllables, plus a few bored sighs. There was still no eye contact. Certain details Muldoon claimed to have forgotten. Or else he answered:

  "Ask Harbison."

  "I need to have some idea how you are going to respond to these questions on the stand," Karen explained politely.

  "On the stand I'll tell exactly what happened."

  "Yes, and exactly what was that?"

  "You don't have to worry about me on the stand, Lady."

  But she was already worried.

  "Do you know how many trials I've testified at?"

  "I'm sure it's a great many.” Be calm, Karen ordered herself, you need this man. "You'll be cross examined--"

  "I been cross examined before. About a thousand times. I laugh at those guys."

  I can't afford to antagonize my chief witness, Karen warned herself.

  "The defense lawyer is very good," she said, "he's--"

  "Those jokers don't worry me."

  A silence fell between them. Finally Karen said: "Are you feeling alright?”

  "Fine."

  "You're not ill?"

  "If I was ill I wouldn't be here.”

  "I thought you might be ill."

  "Do I look ill to you?"

  "No," said Karen bluntly, "you look hungover."

  Muldoon gave a derisive snort. "What would you know about hangovers, Lady?"

  "Well," said Karen, studying him, "I've had a few."

  "Me, never."

  "I doubt that, somehow."

  "You don't know a goddam thing about it."

  If he is this hostile on the stand, thought Karen, he will certainly lose the jury, and he may lose me the case.

  "Can I ask you a favor?" she said, wearing a forced smile.

  His impatient gaze flickered across hers. Then he was staring out the window again.

  "I'd like you to wait in the anteroom a short time, while I meet your partner."

  No response from Muldoon.

  "After which I'll want to talk to both of you together.” She came around the desk. "It will only be a few minutes.” She ushered him out with the best grace she could muster, and invited the second detective to enter.

  She stood in the doorway as Barone moved past her. It was a wide enough doorway, but he came through it closer to her than he should have. He almost brushed her breasts with his arm. She looked up sharply. Though it might have been an accident, she was in a mood to consider it deliberate. These men, she thought angrily, who are they? Nothing but cops. They were subordinate to her in this situation, and she resolved to make them know it.

  When she turned Barone was standing behind her, his hand outstretched.

  "Mike Barone," he said cordially.

  Calm down, she told herself. Maybe it wasn't deliberate at all. Maybe you're only imagining things.

  His smile seemed pleasant, and compared to Muldoon he seemed to want to be friendly. Karen had no choice but to smile back, to declare a truce in a war he did not know had been declared.

  "Karen Henning," she said, and as she shook hands with him she realized she knew him. She remembered him on the witness stand some years back: a tall young man with dark eyes and nice hands.

  "We've worked together before," Barone said.

  She went behind her desk and he took the chair facing it. "We have?" she said. She was not looking for a friend but for a cooperative witness. "When was that?"

  "About six or seven years ago.”

  "Remind me."

  A series of robberies of midtown jewelry stores. As he described the case now, he downplayed the investigation and arrest, which were extremely skillful on his part, accentuating instead the prosecution and trial, which were extremely skillful on hers. A not so subtle dose of flattery. He used the word "we" a lot. We did this. We did that.

  "Do you remember?" he asked her.

  It had been her first major trial, her first important conviction, which he hadn't needed to know then, nor now either. "Vaguely," she answered. "There have been so many cases since."

  She remembered that he had made an excellent witness, but that his presence had made her a bit uncomfortable. There had been something too ingratiating about him. He wanted to be liked and worked hard at it. He had exuded understanding and warmth. She had put him on the stand the first day, and he was so good the defense attorney did not bother to cross examine him, and after three hours he was finished and she had sent him back to his command.

  "After I testified, I came to the trial on one of my days off just to watch you work. You were terrific."

  This too was flattering, if true. It made warning bells go off. Karen was cynical enough to ask: "What day was that?"

  "The alibi witness was on the stand. Did you dismantle that guy! Did you ever!"

  Remembering, Karen grinned.

  "He claimed the defendant was
unknown to him," Barone continued. "You got him to admit they had been in juvenile hall together. You had the papers to prove it. Then you asked him if they were not perhaps even related to each other. You had the papers to prove that, too."

  Karen laughed. "Married to cousins but they didn't know each other."

  "You had the courtroom in stitches."

  "He was such a jerk."

  There was no way Barone could know all this unless he had been there. Karen found that she accepted the flattery. To break down the alibi witness that day was fun, and she had done it beautifully, and now Barone had given the experience back to her.

  They beamed at each other. But after a moment she looked down at his folder, pretending to study it while preparing to get this interview back onto a businesslike plane.

  But when she looked up at him he was smiling at her, so she said: "I didn't see you there that day.”

  "You were busy."

  "Why didn't you come up and say hello afterwards?"

  "You didn't need me bothering you."

  If true, this was extremely thoughtful.

  She glanced down at the folder again, seeing the details of his life printed there, the names of his wife and children, his date of birth. Michael K. Barone. He was three years younger than she was.

  "Well," she said, "let's talk about the Epps case, shall we?” And she began to ask questions.

  Barone answered freely, or seemed to, seemed entirely forthcoming, had no difficulty remembering details most cops didn't notice, or else had forgotten: exact time and sequences of events, direction of movement, degree of available light, number of shots fired. As the interview continued she felt almost elated, for she imagined she had found a witness the jury would believe and that she herself could rely on, and against whom the memories of other witnesses could be cross checked.

  Thirty minutes passed. Although she toyed with a pencil throughout, she wrote nothing down. Finally she ceased questioning him and sat back in her chair.

  "Your partner is a hard man to interview," she said.

  "Danny? Why do you say that?"

  "It's like pulling teeth."

  "He's just doesn't feel he knows you yet."

  "I was wondering. Were the events of that night traumatic to him? Some cops after shootouts can remember nothing. When they try their minds go blank.” Karen had encountered this syndrome before. "Is it something he just can't talk about?”

  "Nothing shuts up Danny. You got the wrong guy. Try him again. I'll help you."

  A few minutes later she invited Muldoon back into the room, and this time it went better. In the presence of his partner, he was somewhat more voluble, though still basically surly. He was often impatient with her and her questions, and as she took him through the night of the shootout he did not bother to hide it. Sometimes he could not remember details, or did not want to, and when this happened Barone prompted him. It was clear to Karen that Barone was the leader, though probably if you asked, Muldoon would claim the opposite. And probably Barone would listen and say nothing.

  Finally she dismissed the older detective but held Barone, who sat expectantly in his chair as she paced her small office, and tried to decide how to proceed.

  "Danny's going to make a great witness," said Barone, "what did I tell you!"

  If Detective Barone wanted to help as much as he pretended, there was an unusual area she could lead him into. It would save her a lot of time. But she didn't know how he would react. Abruptly she made her decision. "I want to ask you about the other cops involved," she said. "I'd like you to tell me what you know about them."

  "No problem, fire away."

  She decided to mention the wounded cops first. "Police Officer Pierce?"

  "Excellent cop."

  She waited for him to say more, but he did not.

  "Police Officer Boylehart."

  "Another excellent cop."

  "Police Officer Wiendienst."

  "A great cop also."

  "All right, Detective Barone. I suggest you sign out and go back to your command."

  Barone, who remained in his chair, grinned up at her. "Ask me something hard."

  "I'll phone the precinct, advise them you're on your way."

  "I'd really like to help you," said Barone. "But I don't know what kind of information you're looking for."

  "Look, detective, I've been handed this case with very little time to prepare. I go to trial on it in a few days. There are twenty officers involved, I have to interview them all, and apart from their names I don't know who they are or what part they played, or what questions to ask them. You could save me a lot of time, but if you're unwilling, fine, go back to your command."

  Barone glanced at his watch. "It's past lunchtime," he noted. "Why don't we go out to lunch and discuss it?"

  "No thank you. You may go."

  "You have to eat."

  "On the contrary, I rarely eat lunch."

  Barone nodded understandingly. "In that case, let's go through those names again."

  "You mean that?"

  "Yes."

  Perhaps it was best just to get rid of him. Then she thought: why not test him? See if he really wants to be cooperative. Ask him the hardest question first. "Let's start," she said, "with Detective Daniel Muldoon."

  "This is off the record, right?"

  "Yes," said Karen. "What can you tell me about him?"

  "Danny's not a lush exactly, but he drinks a lot of beer. He's been divorced many years. And he's lonely and he's a slob. But he's an extremely astute investigator.” Barone paused. "If anything I say ever gets back to him, I'll consider it a terrible betrayal of confidence."

  "Is he honest?"

  "You mean did Danny ever accept a free cup of coffee? Probably. Anything worse? I don't know. Not since I've been there."

  Karen, nodded. Barone had become truculent in the telling, a reaction she both understood and admired. The loyalty of a cop toward his partner was, to them, more sacred than the marriage oath, and she knew this. To them it represented a more perfect love, and who was to say they were not right. It was a love she had never experienced herself and did not entirely comprehend, but she knew it was there, and she respected it.

  "Why don't you ask me the same question about myself," Barone said truculently. "Or don't you dare? Am I honest?"

  They stared at each other, and then Barone's expression softened and he grinned up at her again. "Give me the Miranda warning first, of course."

  Karen turned away to keep from smiling. "We'll come back to Detective Muldoon in a moment," she said. "Tell me first what you know about the other men: Pierce, Boylehart, Wiendienst? I don't want to be surprised in court. What will Justin McCarthy know about them, or be able to find out about them, that I should know?"

  The prospective jurors, some of whom had been collecting in the corridor for some minutes, began to enter the big room at nine AM as ordered. The clerk came along the corridor wading through them as he neared his door, which he opened with a key. They followed him inside where, one by one, they handed over the summonses they had received in the mail, and he inscribed their names in his ledger and asked them to take a seat. Some of them wanted to know what the procedure was, how long they would be here, but the clerk only kept repeating:

  "Please take a seat. You will be notified."

  The newspapers came out onto laps, the crossword puzzles, the books, the knitting. Some, who had thought to bring none of these things, stared at the floor or ceiling, or paced up and down, or tried to strike up conversations with neighbors, provided the neighbor seemed to come from the same ethnic or economic background or was the same sex or age. For most people this was as close as they had ever stood to crime and corruption, so conversations were rare. It was as if, in talking to someone, one risked becoming a suspect, or perhaps even convicted.

  It was large room containing about 200 chairs in rows, but by nine thirty it was overcrowded, the air a bit close. People stood or sat in boredom and discomfo
rt in the equivalent of a schoolroom for which there was no textbook and no teacher. Prospective jurors, were still trickling in, summonses in hand, to the great irritation of those who had come on time and who saw by now that there was much more boredom and discomfort ahead. They had known this when the summons had arrived in the mail, but then it was only theoretical. Now it was real. They saw now that they would be waiting it out minute by minute for some days.

  After about an hour the clerk stood up and called for their attention.

  Since this was the most exciting thing to have happened so far, the silence was both immediate and total.

  "Those whose names are called," he announced, "will go out in the hall and line up by twos."

  He called about sixty names. Those called acted as if they had won something. They grinned, became sprightly, gathered belongings and made for the door. For them the wait was over, at least temporarily. For the others it began again.

  In the hall the sixty prospects were led like schoolchildren to the elevators, where most of them pushed and shoved to get aboard the first car, though this was impossible. Eventually they piled into several.

  On the fourteenth floor they were led two by two along the corridor and into a courtroom where they were told to take seats in the spectator section. The jury box was empty and there was no one on the bench. In the well sat Karen and Coombs at one table, McCarthy and an assistant--and Lionel Epps--at another. All were facing forward, did not turn around, and it was not clear to any of the newcomers whether they were important or not. The two tables, it was noted, were piled with dossiers.

  But presently a door behind the bench opened, everyone was ordered to stand, and the judge in his robes strode out and onto his dais.

  Attention now shifted to this man. When he had sat down, he looked them over like specimens, while nodding his head slightly. It made them look around at each other. They saw what he saw, though perhaps did not attach to it the same significance. As many faces were black or Hispanic as white. Their overall numbers would now get reduced, and in the process the proportion of whites would diminish and that of minorities would increase.