Tainted Evidence

by Robert Daley

  The judge began to make a speech. He spoke of the Constitution, of the bill of rights, of due process of law, of the historical significance of trial by jury, of the right of every man to a swift and impartial trial before twelve of his peers. The judge's name was Birnbaum. He was about 60, white haired, somewhat stout, and there was a slow and ponderous weight to his words. He fancied himself an orator, which he was not. He liked to make this same speech each time, which his listeners did not know, and the reaction was the same each time too. They soon stopped listening. They began to fidget, to stare at their hands.

  "The purpose of jury selection," the judge intoned, "is to insure as far as possible an impartial trial.” He paused and surveyed the sixty faces, most of whom avoided his eyes. "This is a case of attempted murder of police officers by the accused. Here I must emphasize that the accused has only been accused. He has not been found guilty yet. It is up to you men and women to decide if he is guilty or not. Your word goes.” This declaration was followed by a theatrical chuckle. "It is you men and women who are the decision makers, it is not the lawyers, it is not me."

  He paused again. "Now we will interview you in small groups to see whether you are suitable to sit in judgment in this case. The interviewing will be done by the prosecutor, Mrs. Henning. Mrs. Henning, will you please rise and face the prospective jurors? This," the judge said, "is Mrs. Henning. And the defense lawyer is Mr. McCarthy. Will you please rise and face the jurors, Mr. McCarthy?"

  Karen had simply looked out over their heads, her face expressionless. McCarthy grinned, bowed, gave them a friendly wave.

  "Thank you, Mr. McCarthy," the judge said, cutting the lawyer's performance somewhat short. "You may sit down."

  He waited until McCarthy was back in his chair. "And this is Mr. Lionel Epps," the judge said. "Please stand, Mr. Epps."

  Epps wore a well cut blue suit and horn-rimmed glasses. He looked an upstanding young black businessman. Or a young black lawyer, perhaps, indistinguishable from Coombs who was seated nearby..

  "Mr. Epps is the defendant in this trial," the judge said. "He has only been accused, not convicted. His guilt or innocence will be decided by you the jury after you have heard the evidence.”

  When Epps had sat down, the judge continued his speech. Karen at her table was doodling on a legal pad--she had heard it all before.

  "Not all of you here will serve on that jury. Some of you will be disqualified for cause--maybe you're a friend or relative of the defendant or of one of the lawyers--and others by peremptory challenges--maybe one of the lawyers thinks you'd be too sympathetic to the other side.” He gave another theatrical chuckle.

  "Each side has 20 peremptory challenges. If you are rejected you won't know which side challenged you or why--the clerk will simply send you back to the central jury room. Now would those of you seated in the first row please file into the jury box. Just fifteen of you. That's all. That's enough. You, sir, please return to your seat. You'll get your turn next.” Several people laughed. "We won't forget you."

  Judge Birnbaum turned his swivel chair so as to address the jury box specifically. He looked the prospects over, perhaps making the same head count Karen was making from her table. Eight whites, seven blacks.

  "This will be a long trial," Judge Birnbaum said, "perhaps two months. Those who would find this an impossible burden please raise your hands."

  All the white jurors raised their hands, and most of the blacks.

  The judge, who could not have been surprised, decided to show irritation early. "I'm not going to excuse people who just want to get out of jury duty," he said. "You have a civic responsibility. Juror No. 1, what fairy tale are you going to tell me?"

  "I'm a computer salesman, your honor. I work on commissions. Two months--"

  "Come up here."

  Judge Birnbaum questioned him for some time. He wanted details of the man's employment, expenses, financial status.

  But finally he seemed satisfied. "Excused," he said. "You may go back to the central jury room and wait for some other trial that may not inconvenience you so much.” He managed to impart considerable sarcasm to the word "inconvenience."

  Again the judge swiveled toward the jury box. "And you madam?”

  She was a white housewife. "I have pre-school children, your honor and no help."

  He questioned her too. How many children, what were their ages, where did her husband work, how much did he earn, what relatives might be available to help.

  But finally: "Excused."

  To the next man he said: "What is your profession, sir?"

  The prospective juror was white, middle-aged, and wore a conservative--and expensive--business suit. He was, he said, a stock broker. "I won't be able to serve, Judge."

  "A stock broker. I see. You are, I take it, a man of means."

  "Not really."

  Fixing him with a baleful eye the judge began one of his backup orations. "Justice--our entire system of government--depends on each of us serving as jurors if called. Do you hear me, sir? I am not going to entertain frivolous excuses."

  For a moment the juror remained silent. He did not wish to serve and, whatever the law said, had no intention of serving.

  "I know the case," he said. And he added truculently: "The guy is definitely guilty."

  The judge gave him a hard stare, but the juror stared back just as hard. The judge had no choice. "Excused," he said with a sigh.

  Hours passed, and after that days. New batches of sixty people entered the courtroom, filed into the spectator section, listened to the judge's unchanging speech, then moved in groups into the jury box and were examined. But the results remained distressingly similar.

  A few of the prospective jurors made no protest, or their protests were overruled, and these were then examined singly by Karen Henning for the prosecution, and Justin McCarthy for the defense. Karen wanted people who seemed to be upright citizens. She wanted no one who had served time in jail or in drug treatment centers, or who spoke poor English, or who seemed to have a short attention span.

  McCarthy's questioning was eclectic, and at first his strategy was not clear.

  "Tell me, my good man, who do you feel commits the most crime in this city?”

  The man he was addressing was white, a retired postal worker. "Well, er, young black guys, as I understand it."

  "May we approach the bench, your honor?" said McCarthy.

  The conference at the bench lasted nearly ten minutes, even though McCarthy, who was whispering, made his point at once.

  "Challenged for cause, your honor. Obvious prejudice against young black defendants like my client."

  "Wait a minute--" said Karen.

  Their heads were close together but they kept glancing over at the juror they were discussing.

  "I'll allow it," decided the judge finally.

  "That should cost him one of his peremptories, Judge," said Karen.

  "You're excused, sir," said the judge to the prospective juror. "Continue, Mr. McCarthy."

  McCarthy moved back toward the jury box.

  The first juror that both sides agreed upon was a female welfare clerk; she would become forewoman of the jury. The next two were men, a sanitation truck driver and an elevator starter. Since all three were municipal employees, their salaries would continue for as long as the jury sat. All three were black.

  It took a week to empanel these three. Since for a trial of this length two alternate jurors would be necessary, making fourteen in all, the process of jury selection obviously had a long way to go.

  Karen was in court until it closed each day, then went to her office. In addition to selecting a jury she had her division to run. There were always subordinates waiting for her for decisions, however late in the day it might be, plus reports to study, memos to read and to write, and phone calls to return. Cops who had taken part in the Epps shootout would be waiting too. She tried to interview at least two superior officers each night too, men who had reached the scene a
fter the shooting stopped. What had they seen or heard that was not in their brief, cryptic official reports? By the time she got to them each night the normal working day was long over. The offices along her corridor were all empty, the entire building still.

  She reinterviewed Muldoon and Barone separately. Muldoon this time was a little less taciturn, a little less surly than before, though still plenty of both. But the details he provided remained the same in the retelling, which to say the least was heartening.

  Barone was as forthright, as accommodating as ever, or so it seemed. She took him over the events in chronological order, and then in reverse order, as if she were only trying to understand better. This was a technique she sometimes used, a kind of disguised cross examination, which Barone perceived at once. It made him laugh. Muldoon had never noticed, whereas Barone twitted her about it in a good natured way.

  They worked very late on that particular night, which caused Barone to suggest dinner again, but she refused.

  "All three of us," Barone said, for Coombs sat on his usual chair in the corner.

  "No, thank you."

  "You can't speak for Larry," Barone told her. "Larry's hungry, aren't you Larry?”

  "The defendant," Karen said, "is coming across the rooftop shooting. Then what happened?"

  When Barone suggested he go out and get sandwiches and something to drink, she rejected this idea too. But a few minutes later she cut the interview short. Annoyed at Barone and at herself, she announced she was going home, stood up and started stuffing papers into her briefcase.

  Barone said goodnight and moved to the door but when she came out into the corridor he was waiting there for the elevator. They waited together. She kept glancing around hoping Coombs would make it a threesome, but he was in the men's room or somewhere and did not appear. In the elevator Barone said nothing all the way down. I'm being foolish, Karen told herself.

  Then they were out on the street together and Karen was looking for a cab.

  "I have my car," Barone said. "I can drive you up to Grand Central, if you like."

  Which meant he had taken the trouble to find out that she took the train each night. Did he know her address too?

  "No thank you, I'll take a taxi."

  "I go right by it."

  She gave him a kind of half smile. "Thanks anyway."

  "Well, good night, then."

  There was an idea Karen had been mulling over for an hour. She had only a moment now or he would be gone, not enough time to decide properly.

  "I'd like you to report here tomorrow evening," she said. "In fact each evening this week.” The other patrol officers in the case, men she had not yet met, would speak more freely, she told herself, if Barone were present too. She did not have time to make small talk with each one, to be friendly, to handle them casually. Alone in a room with two lawyers they might freeze up. Lawyers to cops were not thought of as natural allies, but as natural enemies. She knew this. Lawyers were capable of putting cops in jail. With Barone present it would be better.

  "So will you come in?” The moment this question was spoken Karen was angry at herself. Of course he would come in; she didn't have to ask his permission, just request him through channels. He would have no say in the matter.

  "What time do you want me?" Barone asked.

  As he went off to get his car Karen stepped into the street. Peering downtown she tried to spot an approaching taxi, but she knew there would not be many in this area this late. She was afraid she would still be standing here when Barone came by in his car--but to her relief a taxi appeared, and she waved to flag it down.

  She got home nights later and later, and her husband began to grumble about it. He had to make the beds mornings, clean the house, do the shopping, cook for the children every night. He had no time to prepare his classes, he said, or to work on the monograph he was writing. He had not complained for the first few weeks, but enough was enough, it wasn't fair.

  She mollified him as best she could.

  One night she left the building late as usual, and rain was pouring down. She stood at the curb under an umbrella and the few cabs she saw went by full, their splashes sometimes coming up onto her shoes, and then a dark car pulled up in front of her, not an expensive car, a Toyota or something, not new either, and the driver, reaching across, threw open the door.

  "Get in," Barone said. "You'll get soaked standing there.”

  She hesitated a moment, then furled her umbrella and entered the car.

  "What time is your train?"

  She told him.

  "Don't worry, we'll make it."

  "I hate to impose on you this way.” To ride to the station with him was not a good idea.

  The wiper was sweeping back and forth, but with two of them in the car the windshield fogged over. Barone was driving with one hand, clearing the glass with the other. Karen produced a handkerchief. "Let me do that for you."

  She had to lean across him.

  "That's much better. Thanks."

  They said little more until he had pulled up in a bus stop in front of Grand Central.

  "You have about fifteen minutes to spare," he said, glancing at his watch.

  She grasped the door handle. "Well, thanks again."

  "Why rush?" he said. "You're more comfortable here. It's full of perverts and homeless in there."

  "Lots of commuters too."

  "More panhandlers than commuters at this hour."

  "I want to make sure I get a seat.”

  Their breathing had fogged up all the windows. They were alone in a kind of opaque cocoon. No one could see in. She was surprised at how intimate it felt.

  "How old are your children?”

  She told him.

  "You got pictures of them there?"

  "You can't possibly be interested in my children."

  "We're friends, aren't we?"

  What was she supposed to say to that?

  "I want to know everything about you."

  She looked at him sharply.

  He laughed. "You know you want to show them to me.”

  Finally she drew them out of the wallet in her handbag. He studied the photo of her daughter for some time.

  "She's a beautiful girl," Barone said, handing the photo back. "It's very unusual for a beautiful mother to have a beautiful daughter."

  The compliment registered. It was a nice thing to say but not very subtle. She sat breathing inside the opaque windows. She heard traffic go by in the street, people go by on the sidewalk. They couldn't see her, nor could she see out. She was extremely conscious of the man beside her, and supposed he was conscious of her. It felt as if something were about to happen, which was absurd. She was in a car parked on 42nd Street in the rain.

  "I have to go.” She opened the door and got out and Barone rolled down the window and called to her, saying she had forgotten her umbrella. He handed it out. "Good night," she said. "Thank you for the ride.” The rain had stopped, she saw. They were under an overhang anyway. She went into the station and down the ramp and boarded the train.

  When she came into her house it was late and she was terrifically hungry so she went into the kitchen and Hank came downstairs and immediately wanted to know how long this would go on.

  "How long will what go on?"

  "Your coming home this late."

  "I'm trying to unload these other two cases I was working on," she said. "Once I get them out of the way, and once the trial starts, it will be better, I promise."

  She stood in the kitchen eating a bowl of cereal. Her dinner.

  She was shortchanging her children, Hank told her, not to mention her husband. She nodded contritely, but it didn't stop him, and when he continued to press her she got angry.

  "I didn't ask for this case."

  "You could have refused it."

  "That's ridiculous."

  "You took the case because you wanted to."

  "I took the case because I was ordered to.”

  "You c
ould have said no. I'm sorry, no.”

  "I'd have lost my job."

  "Then you'd have lost your job."

  "May I remind you who brings in half the money around here."

  "Right."

  "More than half."

  "You like being in the spotlight, that's why you took it. Your name is in the paper. You get interviewed on television."

  "I've been interviewed on it exactly twice. I'm stuck with this case. There was nothing I could do."

  "All you think about is your career."

  "That's not true."

  "Your career is more important to you than your children, more important than me."

  "That's an outrageous thing to say."

  "You're teaching me more about career women than I ever wanted to know."

  "I never wanted this case."

  "You never do anything you don't want to do."

  She said: "Why don't you stop before you say something that's completely unforgivable.”

  It ended there, both of them speechless, glaring at each other. "I'm going to bed," snapped Karen, and she did.

  She heard him come to bed later. She lay facing the wall, and as the mattress sagged on his side she did not budge. It was her own words that still rang in her ears, not his. She was the one who had said something unforgivable, not her husband. She could patch this up, but it would have to wait until morning, she was too angry to do it now.

  The sixty mile drive home took Barone under sixty minutes. Most of it was on superhighways, but by no means all. One good thing about being a cop, you could drive as fast as you wanted. The Toyota was four years old with close to 100,000 miles on it, but he had it up to eighty five most of the way. He kept the engine in good shape.

  He lived in a small house on a small piece of ground two blocks behind Main Street in a town that was too far out of New York ever to have been called a suburb. It had been a farming town once, dairy farmers apparently, who also grew corn for the animals and for the summer visitors. The village itself was very small, only a few shops. Some of the families had been there since the Revolution, or even before. The Presbyterian Church had a graveyard beside it that was the oldest Barone had ever seen, the stones worn smooth by centuries of rain, but you could read dates from the late 1600's, and the same few names appeared over and over again, the Hoyts, Meads, Keelers, Benedicts--the families that had founded the place and kept it going for hundreds of years. The history of the town was buried there beside the church. But after World War II--perhaps before--the farming had become uneconomical and had died out, and it had been a depressed place at the time Barone came into it and bought his house after the birth of his first daughter. He had been living in Queens at the time. He had come to this town because other New York cops lived there already.