Tainted Evidence

by Robert Daley

  Karen came out of the shadows and marched toward the car. She passed her daughter in the middle of the lawn and continued on.

  "Hi, Mom," said Hillary to her back.

  The driver saw Karen coming. In a squeal of rubber he backed out of the driveway, spun the steering wheel and was gone.

  "That's just Greg," said Hillary.

  Karen had returned to the doorstoop. "I saw who it was. In the house."

  "What's the matter, Mom?"

  "What's today?"

  "Thursday."

  "What time is it?"

  "About ten o'clock."

  "Eleven thirty. Your father and your brother are at a basketball game. Who gave you permission to go out?"

  "Greg called and--"

  "Who said you could go out?"

  "Well, no one."

  "Right."

  "You weren't here," the girl said guiltily.

  "You know what the rules are."

  "I called to ask you," Hillary said, "but your switchboard was closed."

  It was Karen who felt guilty now, but she ignored it. "You're not allowed out without permission, you're not allowed out school nights at all and before you get into a car I want to know who's driving it.” She felt guilty enough to add: "I thought we could trust each other."

  "You know Greg. What's the problem?"

  "Greg's l6 years old. When did he get his license?"

  "Yesterday," said Hillary. "But he's a good driver."

  "I won't have you in a car with him when I'm not here."

  "That's not fair," Hillary accused, "because you're never here."

  The girl went sullenly past her into the house. As Karen was about to follow, their station wagon pulled into the driveway. Hank got out on one side, Jackie on the other.

  "We won, Mom," Jackie cried out.

  By the time Hank reached her side Jackie was already inside the house.

  "Just getting home?" her husband said, gazing at her briefcase. This too made her feel guilty. She found herself trying to hide it behind her skirt.

  "Hank," she said, "Hillary was out on a school night."

  Hank looked puzzled. "She was doing her homework upstairs when I left."

  "She went out without permission."

  Hank nodded.

  "In a car driven by a 16 year old boy.”

  Hank said: "I shouldn't have left her alone tonight."

  "You had Jackie's basketball game to go to."

  "No, it's my fault."

  "It's not your fault?"

  "Whose fault is it, then?"

  "All right, I was late," Karen said. "I couldn't help it."

  Hank said nothing. He didn't accuse her of anything. But he didn't look at her either, much less touch her or kiss her, and they went into the house.

  They got ready for bed. Hank in pajamas carried some magazines across the room. He got in on his side and began reading.

  Karen said: "Do you think I was too hard on her?"

  "No. Was she too hard on you?"

  Their eyes locked. Karen's mouth hardened, but Hank said nothing further. Presently he returned to his magazine.

  Karen put a bathrobe on. "I'm going to talk to her."

  She padded down the hall to Hillary's room, knocked and went in. Hillary lay with her hands behind her head in the halo of light that spilled in from the hall. Karen sat down on the edge of the bed.

  "I know you tried to call me," she began.

  There was no response from the girl who, instead of looking at her, stared at the ceiling.

  "I get home as early as I can, but some nights--"

  Still no response.

  "Supposing something had happened to you?" said Karen.

  "Nothing happened to me."

  "But suppose something had?” She could imagine her daughter crushed to death under a car--or disfigured or maimed. After what had happened to Jackie it was easy--her fault because she had not been home. It was all too vivid and brought tears to her eyes.

  "If anything happened to you--"

  Karen turned away and began silently weeping.

  "Oh, Mom."

  Her daughter sat up and embraced her. "I'm sorry, Mom."

  Because she was so tired and overstressed, and because children never understood how much you loved them, Karen wept. "You don't see, you can't imagine--" she said. "If anything ever happened to you--to you or Jackie. I would die."

  Chapter 12

  The jurors were in the box, the spectator section was filled, as were the lawyers' tables, and there were courtroom guards standing about. Karen from her table looked over at Lionel Epps, the reason everyone else was here. He wore his usual three piece suit--he seemed to own a great number of them. During jury selection he had worn a different one every day. He wore his usual horn-rimmed glasses as well. He looked as studious and responsible as anyone could wish.

  "Look at him," Karen murmured to Coombs beside her.

  "Straight out of the pages of GQ."

  It made Karen smile.

  "Who pays for them?"

  "McCarthy, I suppose. Maybe he bought them himself with some of that drug money he earned."

  Coombs said: "He should have been made to come to trial in his shootout clothes: sneakers, jeans and a dirty T-shirt.”

  Karen had prosecuted cases where the defendants, represented by legal aid lawyers, did come to court in their shootout clothes; the juries usually convicted such men in fifteen minutes.

  "Here we go," she said to Coombs, and she rose to begin her opening statement.

  She was dressed in a navy blue suit that brought out the blue of her eyes and set off her blond curls. Her skirt came to her knees and she wore matching blue shoes with medium heels in which it would not be uncomfortable to pace back and forth in front of the jury. She had thought a long time about what to wear this first day of the trial. The jurors would soon be familiar with her entire wardrobe. They were mostly familiar with it already, though not with this suit which she had not worn until today. It was well made, fit her well, and the choosing of it was deliberate. The jury had not seen it. She wanted her appearance to seem as careful and as thought out as the evidence she was about to present. She believed that the image the jury would have of her this first day was important. These past weeks of jury selection had been preliminary. There was a new Karen before them. The past did not count. The trial started today.

  "This is a very simple case," she began. She stood in front of the box making eye contact with each juror in turn. "The defendant is a violent, dangerous young man. He was heavily armed. He fired on police officers who had come to arrest him on suspicion of other crimes. He intended to murder them so as to make his escape. He wounded five, and you will meet them. There were no extenuating circumstances..."

  The jurors listened. She paid strict attention to their reactions. She outlined the entire case clearly, concisely. Though focused on the jury, she was aware that there were spectators in the courtroom too, rows of them behind her, and she glanced that way from time to time. Up front sat a number of newsmen, some of whose names she knew. This was not unexpected; they had been interviewing her, or trying to interview her for days. She knew they could turn it into a circus if they chose. She hoped they wouldn't, but Justin McCarthy might see to it that they did.

  About half the remaining spectators were black. This was unusual--a full courtroom was already unusual--and they were so silent and intense that they seemed to her threatening. The black congressman from Harlem was in attendance. Probably he was just showing solidarity and would be gone tomorrow. But the Reverend Johnson was there too, and might intend to come every day. His expression was somber. Sitting up straight he looked as tall and cadaverous as ever, and around him sat his claque, grim faced men and women. No one of them cheered or hissed or made any noise at all, their deportment was entirely correct, but to Karen they constituted something menacing of which she was half afraid. Later, if the trial seemed to be going badly for their side, their number might
swell day by day. It might overflow into the halls outside the courtroom, they might picket the building outside in the street. It had happened during other trials.

  She spoke for thirty minutes, then sat down and Justin McCarthy rose in his turn, and she watched him.

  "...These sad events took place in the 32nd precinct in Harlem, which most years leads the city in murders," McCarthy began. "Which most years, if the truth be known, leads in police corruption as well. Some of you may live there. If so, I'm not telling you anything new."

  "Objection," Karen said. She had risen immediately to her feet.

  It was unusual for one side or the other to object during opening statements, and to do so was not always wise. After days or weeks of boredom the jurors wanted only to hear what the case was about; they could be angered by interruptions that might seem to them trivial. But Karen had decided to put McCarthy on notice at once: she would not tolerate carelessness with facts, but would call it to the jury's attention every time.

  She spoke loudly and clearly. "These sad events, as Mr. McCarthy terms them, did not take place in the Three-Two at all, but across the border in the Two-Five."

  McCarthy gave a dismissive wave of his hand. "I stand corrected."

  "As for if Mr. McCarthy's characterization of the level of corruption in the thirty-second precinct, his statement is not true. He has no statistics to back it up."

  Another dismissive wave of McCarthy's hand. He simply went on with his opening statement. During the exchange between the two lawyers, Judge Birnbaum did not speak at all.

  Now McCarthy strode along in front of the jury box. His bow tie was theatrical. So was his white suit and his wild white hair and his gestures. So were his words.

  "Let me talk about police corruption for a moment."

  Sometimes he was difficult to track, as if his thoughts wandered, but he seemed to be building toward something. He maintained a certain tension. The jurors felt this. Karen felt it herself. He never came near the subject of Lionel Epps, or the five wounded police officers, or the evidence of the case that was to be tried. Instead for more than an hour, mostly in quiet, understated tones, he contented himself with denouncing the New York Police Department.

  "Do the policemen who move among you seem honest to you? Or do they watch drug deals going down on door stoops and street corners and do nothing? Do they seem like gentlemen to you? Do they seem caring? Or do they barge into your apartments on any pretext or none, supposedly seeking some suspect you never heard of who isn't there? Do they repeatedly and willfully violate your homes? Do they jump out of cars and make honest citizens spread-eagle themselves against walls and search them, for no legitimate reason, and sometimes steal what they find in their pockets?"

  At the prosecution table Karen squirmed. These were only rhetorical questions. A lawyer was allowed great latitude in an opening statement. For the most part there was nothing concrete she could object to, and an outburst on her part risked turning this nearly all black jury against her. And so she kept silent while McCarthy continued.

  "What are your true feelings," he asked rhetorically, "about this army of occupation that patrols your streets? This white army?"

  Not only did the jurors seem to listen attentively, but certain of them nodded agreement at one or another of his points, and Karen observed this, and as a result became worried anew about how this jury would be see her witnesses, about whether such a jury would believe her witnesses.

  At long last McCarthy focused on the crimes of which his client was accused: "This trial is about a bright and loving young man--no previous convictions--who found out about a certain area of police corruption. He found out about it and he hated it and protested against it, and he sought to find a way to stop it. As a result he became a victim of police harassment. He was made to sell drugs for police officers. It made him sick to his stomach. He sought to expose this corruption, these corrupt police officers, he wanted to send them to jail. But he never got the chance, for a horde of them descended on the place where he was peacefully sleeping, intending to murder him in his bed. But he is young, alert. He woke up, appraised the situation, and quite properly defended himself..."

  He went on in this vein. His client was innocent by reason of self defense, he declared. This white-haired white lawyer actually told the jury that Epps had had a perfect right to shoot down five cops. As the jury received this astonishing statement Karen studied their individual faces, but was unable to read them. The faces were blank. But certainly no one looked away. No one seemed to reject the argument outright. No one reacted with obvious disagreement, much less with disbelief.

  "And so at the end of this trial you will acquit my client of the charges of which he is accused on the grounds that he acted exactly as you yourselves would have acted--he fired on those police officers only to save his own life. He acted in legitimate self defense."

  And there you have his case, thought Karen: self defense. The schemes and rebuttals she had prepared against other possible arguments could be discarded, all that work into the garbage. She knew now what her opponent's case would be, and had only to arrange her own case to fit it.

  "And what was your post that night, Doctor?"

  "The emergency room."

  "And were any emergency cases brought to you that night?"

  "Yes."

  "A gunshot victim?"

  "Yes."

  Karen's first witness was one of the surgeons who had worked on the wounded cops. She intended to examine all five, one after the other, two from Harlem Hospital, three from St. Luke's.

  "Who was that victim?"

  "A cop."

  "He had been shot, Doctor?"

  "Yes, shot."

  Her questions were as short and low-keyed as possible. It did not pay this early in any trial to seem overly dramatic. "Can you describe his wound or wounds?"

  The surgeon did so.

  "And can you describe the procedure you performed?"

  He did so. Karen wanted the jurors to hear the sirens, the shouts and panic, but not from her. They should see cops on stretchers being run into operating rooms, but as described by the surgeons who were there. They should see cops bleeding, their uniforms being cut off them, the instruments probing for bullets. But she thought it essential that the blood, bullets, agony be brought into the courtroom by this surgeon and the ones who would follow, not by herself.

  "No further questions."

  McCarthy rose, slowly approached the witness box and there hesitated, as if searching for the exact information that needed to be elicited.

  "Tell me, Doctor, were you asked also to treat the defendant, Mr. Epps?"

  "No I was not."

  "Wasn't he wounded too?"

  "I don't know."

  "You don't know.” McCarthy made a show of trying to digest this information. "Twenty cops firing shots at him, but you don't know."

  "No."

  "Wasn't the defendant a human being?"

  "Yes of course."

  "Don't human beings have a right to medical attention if they are hurt?"

  "Yes of course."

  "But he was black, so that made him less of a human being."

  "Not at all."

  "But you didn't treat him?"

  "No."

  "You didn't even think to ask about his condition?"

  "No.”

  "Why was that?"

  The surgeon watched McCarthy pacing, and did not answer.

  "Of course you were busy," offered McCarthy.

  "Yes, I was busy."

  "Too many cops to take care of?"

  "Yes."

  "And they take precedence over ordinary human beings."

  The surgeon did not answer.

  "Especially in Harlem they do?" said McCarthy. "Is that not correct?"

  Again no answer.

  "Answer me." shouted McCarthy. "Is that not correct?” Feigning enormous disgust, he returned to his table. "No further questions," he said as he sat down.
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br />   Karen tried always to be home for supper, and to spend time with her children before and after. She would ask about events at school, help them set the table or put the dishes in the dishwasher. But as soon as they were in their rooms she would curl up on the sofa to study reports, motions, transcripts, minutes. It all had to be committed to memory. She had to be able to come out with the vital fact or detail at a moment's notice. She was like a violinist preparing a concert piece; she had to get the notes out of her head and down to her fingertips. She had to be able to play them instinctively, without conscious thought, and she had not had nearly enough time to prepare. For a perfunctory case, yes. A habitual offender in ragged clothes and a legal aid defense lawyer who hadn't had time to prepare either, yes. But this was not a perfunctory case, and McCarthy was not a perfunctory opponent.

  She would work very late, until finally her husband would come down in pajamas.

  "You owe the city eight hours a day, no more."

  "I'll be up in a few minutes."

  He would leave her. Each night she sat on, studying, memorizing, considering her strategy, revising it and then re-revising it, the light over her chair the only one still burning in the house.

  Afterwards she had trouble sleeping. The physical tension became so intense that she took up jogging again. She hadn't jogged in years. She got up an hour earlier, put on a sweat suit and sneakers and jogged through the still dark streets. When Hank protested she invited him to join her, but he refused. She ran and ran.

  The streets were narrow. There were no sidewalks. The jogging ended when a car came around the corner too fast and in the dark sent her sprawling into the bushes.

  Without telling Hank she joined a health club off Wall Street, the same one to which Jill Herman, her former college roommate, belonged. After court, after her other duties were taken care of, she pumped the stationary bike, rowed, walked the treadmill. And talked with Jill. Sweating and red faced she listened to Jill's marital problems; Jill listened to her frustrations and worries about court.