Tainted Evidence

by Robert Daley

  The town was rising in the world now. Too much so. More and more major corporations had been moving their world headquarters north out of New York City into the near and even the not so near suburbs. They moved them within commuting distance of the more distant towns, Barone's and others. Real estate developers had not ignored the trend. They had moved into Barone's town and begun building houses. The town was becoming a bedroom community at last. It had had to build a new school, and had even hired a five man police force--Barone had met them, a bunch of shitkickers who knew nothing and who looked up to him as if he were a ballplayer or an actor, or some other star. The town taxes had gone up too, in fact up and up and up, and now totaled almost ten percent of Barone's salary. He had a floating mortgage and with the interest rates, that kept going up too.

  He had been short of money for as long as he could remember, but as he came in the door, singing out: "I'm home," his wife started in on him right away, and the subject she had in mind was of course money.

  "You don't give me enough.”

  He was standing in the hallway, had not even taken his overcoat off yet. One of his little girls was clinging to him. He lifted her and nuzzled her neck until she giggled.

  His wife was not going to let it lie. "I need more money."

  He put the child down and off she ran, back to the TV most likely, which was not such a wonderful idea, the kids watching so much TV, but what could you do.

  "I can't make ends meet on what you give me."

  It was not an argument yet because Barone chose not to argue back. Instead he moved to embrace her. "What's for dinner?" he said. He liked to soothe people, calm them down, make them forget whatever was bothering them.

  "Spaghetti," his wife said truculently.

  It was best to avoid confrontations altogether, if possible, or at least as long as possible.

  "No problem, I like spaghetti."

  "It's all we can afford," his wife said, "on what you give me."

  "I give you every dime I can spare," he said.

  "You don't give me enough."

  "How much do you think detectives get paid?"

  "I need more."

  "I don't have more."

  "I went and got a job.” Her eyes glanced off his and away.

  "What?” He didn't think wives should work, not his wife anyway, and she knew it.

  "In the stationary store in the village."

  She would not meet his eyes.

  "It's only mornings while the kids are in school," she said defensively.

  "How much are they paying you?"

  She told him.

  "That's minimum wage," he said, at the last moment trying to get the derision out of his voice. He took both her hands. "You're worth more than that."

  "Well that's all the job pays."

  He was silent a moment.

  "Can we eat now?" he asked gently.

  "You expect dinner to be ready as soon as you come home, but half the time you don't."

  "Don't what?"

  "Don't come home."

  Now we're getting close to what this conversation is really about, Barone thought. To Barone it was still just a conversation, not an argument. He said: "I always phone you when I'm not coming home. When I have to go to court or something I always tell you."

  "You tell me stories."

  "If I get off work at one AM and have to be in court at nine, it doesn't make sense to drive all the way out here."

  "This is your home."

  They still stood in the hall just inside the front door. He had not been able to advance any further into the house. He said: "If you think I prefer a sleeping bag in that airless little room off the squad room, instead of cuddling up with you in our bed, you're mistaken. Come on," he said, moving again to embrace her, "I showed you that room, remember. When you were in the stationhouse that time. Of course I'd rather be home if possible."

  She shook him off. "You keep rubbers in your wallet."

  He looked at her.

  "You think I don't look?" she said.

  The expression on his face had not changed, he believed. No start of surprise, no guilt. "I keep those for you," he said, and gave her a leer. "In case you want to do it unexpectedly sometime."

  "Huh," she snorted. "When did that ever happen?”

  "What about in the parking lot in the back of the car that time?"

  "That was years ago."

  "If the mood suddenly takes you, I want to be ready."

  "I don't believe you."

  He said gravely: "And I don't want to leave them around the bedroom for the kids to find."

  He saw she wanted to believe him. Wanting to believe was not very different from the real thing, and just as good usually.

  "They're too young for learning about rubbers," he said gravely.

  "True," she admitted.

  "And you won't go on the pill--"

  "They make me bloat."

  "--Or get fitted for a diaphragm."

  "It's always my fault," she said. "Everything's my fault."

  "Of course it's not your fault."

  His daughters were going to be pretty girls, but his wife was a plain woman, and he had chosen her in part for her plainness, and also because she had been born into the same tradition as himself.

  "No one is accusing you of anything," he said.

  She was small and dark, with a big nose and thin lips, and he put his arms around her and kissed her on the forehead. He had understood in advance what kind of woman she was and what marriage to her would be like. Not exciting perhaps, but solid. She would make a home for him and for his children, and be grateful for the opportunity.

  He took some bills out of his wallet and gave them to her. "I'll try to give you more money," he told her. "How about fixing dinner now, and then tonight maybe we can--” He gave her another leer, and watched her go obediently toward the kitchen.

  He went out the side door into his yard. There was not much grass underfoot. One of the trees had a swing hanging off it. There was a concrete barbecue he had built, and a redwood table he had built that they ate picnics at sometimes when the weather was warm, and some other trees, and no room for much else.

  Still in his overcoat he sat down on the swing and waited for dinner. Marriage was serious, he had been taught. A man flirted with the good looking women and bedded them if he could, but women like his wife made better wives and mothers because they were not tempted in other directions. That was the tradition. Also, other men would be less likely to go after them and you would not have to worry if you left them home alone from time to time.

  He found himself comparing his wife to Karen Henning. A career woman, not a housewife, and with a high powered New York job, not part time in a stationary store in the sticks. And of course far better looking and better dressed. Good figure too. She seemed to him as exotic a creature as he had met recently. In fact he had never known anyone like her. Except that all women were women first, and differed from each other only in small ways. If you touched the right button they all reacted the same. The difficulty was to find which button it was.

  He looked at his house, which was bigger now than when he had bought it. The family room had been added on. He had built it himself, with the help of two other cops. The trouble was, you build a nice addition because you need the space, and the town raises your taxes on you.

  He could certainly use some extra money.

  When the alarm went off Karen reached over and silenced it, then lay for a moment unmoving in the dark. Hank was awake too, she could tell, though he did not move either. She had much to do today and wanted only to dress quickly and catch the early train, but instead she reached out and stroked Hank's thigh. When he did not respond she reached a little higher and noted that he was responding after all. When his arms came around her she broke loose and peeled his pajama bottoms down. Off came her nightgown. She really didn't want this, but it had to be done, she did love him though he wasn't being fair, and it was her job (i
t was always her job or so it seemed) to make this marriage whole again, and after a time she got on top of him and began to rock gently back and forth. Presently his arms pulled her down and he cried out.

  "Why don't you make the coffee and toast," she whispered into his neck, "while I get dressed.” And she kissed him briefly and got off.

  When she came into the kitchen the coffee was perking, the toast was buttered and on the table, and Hank was smiling happily. He even kissed her on the nose as he served her. She was much relieved, but also somewhat puzzled by him--by men in general who could be bought off so easily. She ate quickly, and left the house.

  But as she rode into the city she began to think about her late nights, her taxicabs to Grand Central, and about Barone waiting around for her with his car, and she became increasingly disquieted. As soon as she was advised that the DA was in his office she went in to see him and asked that a car be assigned to take her to the station on nights when she would be working late.

  "I'll have them assign a car to you," the DA told her.

  But she continued to press her explanation. At present she was dependent on taxis which were rare some nights, she said. Or else she had to catch a ride with anyone going in her direction.

  "I understand," the old man told her.

  "It makes me very uncomfortable."

  "You were right to come to me."

  "So if you could have a car for me--"

  "I'll take care of it right away."

  "Thank you.” She turned to go.

  "How's jury selection going?" he asked her.

  "Everything's going very well," she told him, and they smiled at each other, and she left the office.

  She took his question to mean he hadn't looked at any of that yet. Good, she thought.

  Chapter 11

  In court Karen interviewed a prospective juror: name, age, marital status, education, employment: she who was a secretary in a midtown ad agency. Karen's questions were brisk and brief, and the woman's answers were the same. She seemed intelligent, unbiased and most of all she was willing to serve. Instinctively Karen trusted her. After a few additional questions she decided to accept her as a juror.

  McCarthy in his turn asked the same preliminary questions again. It was as if he had not even been in the room until now. At her table Karen doodled impatiently on her pad. McCarthy took his time. He had all the time in the world.

  By then six jurors had been seated, three men, three women, all of them black. The secretary whom McCarthy was addressing at present was white, and Karen waited to see what would happen. So far none of the white men or women she had accepted had been approved by McCarthy.

  "And have you ever been arrested, Madam?" he asked.

  "You have to be a criminal to get arrested."

  "Any speeding tickets?"

  "One, once."

  "Cop nice to you, was he?"

  "He gave me a ticket."

  "Cost you some money?"

  "I think it was $50."

  "Make you hate cops, did it?"

  "On the moment."

  "On the moment. I see. Any police officers in your family?"

  "No."

  "Ever know any police officers personally."

  "Well, I once dated a cop.”

  "Yes. And how well did you get to know him?” McCarthy had turned his back on the woman. He was looking straight at Karen, and he was almost leering.

  Karen stood up. "I must protest this line of questioning, your honor."

  The judge looked thoughtful. "No, I think it's fair in a trial like this. Please answer the question, Madam."

  Karen sat back down.

  "I think we went to the movies three times."

  "Come now, Madam," said McCarthy.

  "What are you insinuating?"

  Karen stood up again, and Judge Birnbaum nodded at her. "I would ask you to be careful here, Mr. McCarthy," he admonished.

  "He's wasting our time, Judge," Karen said.

  "Continue, Mr. McCarthy."

  For a moment McCarthy was silent. "Your friend the police officer," he said to the woman, "honest, was he?"

  "I went to the movies with him three times."

  "Yes, you said that. Let me rephrase my question. If you learned about someone who had fired shots at policemen, would you say that made him a bad person?

  "Are you kidding?"

  Another conference at the bench. Again McCarthy spoke in what was almost a whisper. "Excused for cause, your honor," he said urgently.

  "There is no cause whatsoever," said Karen.

  "Obviously a law and order fanatic," said McCarthy.

  "If you ask questions like he asks, those are the answers you are going to get."

  The judge looked from one of them to the other.

  "Your honor, I protest," cried Karen. "This is what he always does. He's systematically excluding white jurors."

  It was a protest she expected to lose. The Supreme Court had ruled that the prosecution could not exclude jurors by race. The defense, however, was permitted to do so.

  "That will have to be one of your peremptory challenges, Mr. McCarthy," Birnbaum ruled finally. "You have six left."

  Content with her small victory, Karen started back to her table, but McCarthy, although the judge's ruling had gone against him, remained at the bench, arguing for what he called "fairness.” Peremptory challenges were the defense's only weapon against the awesome power of the state, he declaimed. The defense could not afford to spend one of its few peremptories here. With flowery eloquence he argued, and although Karen and even the judge attempted to interrupt he could not be shut off. As soon as one line of argument ended, he started another. He used up an enormous amount of time, as he had done on nearly every prospective juror so far. Only when Birnbaum got angry did he stop.

  "You have six peremptories left, Mr. McCarthy. Now get on with it, please."

  The next prospective juror was a retired textile manufacturer, Jewish, a donor to liberal causes, who admitted to an abiding distrust of the police, but who had no valid excuse not to serve. Although a less than perfect juror from the prosecution's point of view, Karen decided to accept him too, for there were, relatively speaking, so few whites in the juror pool at all, and even fewer able, as this retiree was able, to accord this trial two or more months out of their lives.

  However, in his lengthy questioning McCarthy managed to badger the man to the point where he muttered something that was not understood and that he would not repeat but that McCarthy was able to categorize as a possibly racist remark against blacks.

  "Excused for cause, your honor," said McCarthy at the bench, and though Karen protested vigorously, Judge Birnbaum let him get away with it. The Jewish juror was excused and it did not even cost McCarthy one of his remaining peremptory challenges.

  One month and two days after jury selection started, the box was filled.

  "Ladies and gentlemen," Birnbaum announced with a pleased smile, "we have a jury."

  Karen's eyes panned from face to face. Six men, six women. A subway motorman, two receptionists, a tow truck operator, two postal workers, an elevator starter, a bus driver, a welfare clerk, a sanitation worker, two secretaries. Ten blacks, two Hispanics.

  The two alternates were white women, but they would not become part of the jury unless one of the others fell ill or died.

  Of course Karen had watched as the jury was put together day by day. She had known what the final result would be. But that was theoretical. Now it was official, could not be changed. It was a legally constituted jury. It sat as constituted, as solid as a slab of cement. It stared back at her, and it was so racially unbalanced that she feared its opinions, its prejudices. She feared what it might decide, and she twisted her wedding band with her fingers and muttered: "How did I let this happen?"

  "It is against the law to exclude jurors for racial reasons," said Coombs beside her, "and you obeyed the law."

  "The trial begins at 9 A.M. tomorrow morning," int
oned the judge on his bench.

  "All rise," called the bailiff.

  The judge left the courtroom.

  The jurors filed out of the box, and Karen watched them go. "Those people are just as capable of rendering an honest verdict as anyone else," she said grimly. She said this not so much to Coombs as to herself. She told herself she believed it.

  Her opening statement to the jury would come in the morning, and she stayed late at the office to work on it. Several drafts existed--she had been putting it together off and on for days. It had to be immensely strong. And clear. It had to be clearer than clear. She had to make the jury see Lionel Epps shooting down cops. She had to make the jury see what her case would be, and believe she could prove it.

  She was writing on a yellow legal pad. As she worked she worried about Justin McCarthy, and his possible tactics, and she kept crumpling pages and throwing them away. It took hours before the final draft satisfied her. It never satisfied her, but ultimately she got so groggy she could hardly focus her eyes, which made that particular draft the best she could do, and she put all the lights out and left the office. At Grand Central she caught a local train home--the expresses had stopped running.

  Hank had the car today. She had to take a taxi home from the station. When it pulled up in front of her house she saw that every window was dark, her house was dark. She crossed the lawn and had just put her key in the door when a car pulled into the driveway and stopped and she looked and saw her daughter Hillary get out. Hillary, who was supposed to be doing her homework, or else in bed asleep.