Tainted Evidence

by Robert Daley

"This should have been a three day trial," Karen railed. They were in adjacent shower stalls by this time, the water pouring down. "McCarthy then decides that the only way to win is to make it into a crucible of black-white relations. He's going to turn up the heat until there's an explosion.” Sometimes Karen had her head outside the shower curtain. Sometimes, trying to be heard through the partition, she was almost shouting. "It's infuriating what he's doing. And according to the rules there's almost nothing I can do to stop him."

  "I'm sure you're worrying needlessly," said Jill as they were drying themselves off.

  "Am I the only one who sees how important this trial has become, how much is at stake? What the reverberations might be? It's not just Lionel Epps who's on trial. Blacks are on trial, whites are on trial, the NYPD is on trial, women are on trial, I'm on trial--Lionel Epps is the least of it.” Karen had wrapped the towel around herself. "Nobody sees it yet. They will before it's over."

  "You're exaggerating," Jill suggested.

  "Am I?" said Karen.

  But as she rode the train home she was in a good mood. It had been a vigorous workout. She felt purged of physical and emotional tension both. She gazed out the window at the streets of Harlem, and then at the dark countryside rushing by, and all her muscles tingled and she felt full of confidence. Of course she'd beat McCarthy, how could she not? She was just as good a lawyer and had a stronger case.

  "...You crept along the hall, Officer Wiendienst, kicked open the door and then--"

  "He had a shotgun. He blasted us. Me and two other guys went down. An inch to the right and--"

  Although she had Muldoon and Barone standing by each day, she had decided to present three of the five wounded cops next, saving the final two until the end of the trial. The first of these men was Wiendienst, who sat on the stand wearing what looked like a brand new, beautifully pressed uniform.

  "No further questions."

  As McCarthy approached she noted how warily the witness watched him.

  "Officer Wiendienst," McCarthy began, "isn't it the case that you went there that night not to arrest Lionel Epps, but to murder him?"

  Wiendienst was more than surprised. He was almost speechless. He spoke only one word, but it took him some seconds to get it out. "No.”

  Karen was on her feet. "Objection," she cried. "No evidence has been introduced to support this line of questioning."

  "--to silence what he knew of police corruption in the 32nd precinct.

  "Sustained," said Judge Birnbaum.

  "Absolutely not," gulped the witness.

  "Whose idea was it to murder him?"

  "Objection!" said Karen.

  "Mr. McCarthy, please," admonished the judge.

  As the questioning continued Wiendienst began to avoid eye contact, to display the evasiveness people associate with guilt. He began to look like a dishonest cop. To Karen this was a manifestation of his anger, of the contempt of most cops for lawyers. But the jurors might see it differently.

  McCarthy: "Tell me, officer, have you ever engaged in corrupt acts as a policeman?"

  "No, sir."

  "No? But other cops have?"

  "Not that I've ever seen."

  McCarthy turned away from the witness. He was grinning at the jury and nodding in disbelief. "I need new glasses, Officer," he said. "Who is your eye doctor--so I'll know not to go to him.”

  In the jury box this caused a certain nervous laughter, which evidently embarrassed Wiendienst. In any case, he blushed.

  "No corruption, Officer?" continued McCarthy. "Not one teeny weeny bit?” He became suddenly angry. "Come now, Officer, some of these jurors live in the 32nd precinct.”

  The jurors' laughter this time was more sustained.

  "I've heard about corruption," answered Wiendienst stubbornly, "but I've never seen any."

  "Was the defendant, Lionel Epps, running drugs for corrupt police officers in the 32nd precinct?"

  "I doubt it," Wiendienst said.

  "Was he forced to run drugs for them from the age of l5 to avoid being arrested? And now he wanted out. He wanted to testify against the 32nd precinct. Is that why you and your friends went there that night to murder him?"

  Karen, who had been raising objections all along, was again on her feet. "Objection, your honor. This is outrageous."

  Judge Birnbaum: "Sustained."

  But McCarthy was playing for effect, not answers, and the judge's ruling did not immediately stop him, though the rules said it should have. "To murder him so as to silence him forever?" snarled McCarthy, as he made his way to his seat. "No further questions."

  So Karen rose for redirect. "Did you know who the defendant was, Officer?"

  "No."

  "You had never seen him before?"

  "No."

  "Or heard his name before?"

  "No."

  To her dismay the traumatized Wiendienst would no longer make eye contact with her either. She feared he seemed just as evasive now as when questioned by McCarthy.

  "Then you could not have been part of a plot to murder him, could you?"

  "No."

  "And the other uniformed officers, did they know who he was? So far as you know?"

  "No."

  "You were there to help arrest him?"

  "Yes."

  "And that's all."

  "Affirmative."

  "There was no plot to murder him?"

  "None that I knew about."

  "There was no plot to murder him?"

  "No."

  From there she went over much the same ground she had covered the first time. She was obliged to do this to blunt, or attempt to blunt, whatever effect McCarthy's charges may have had on the jury. Her questioning had to take time. It had to occupy space. It had to have weight so that weeks from now, when considering the verdict, the jury would remember it. But for her and for the jurors it made for a tedious afternoon.

  At the health club later she sounded off to Jill. "Do I simply assume the jury will disregard McCarthy's tactics on their own? Or do I go after him--at the risk of boring the jury to death? There are constant decisions to be made. I can never be sure what's best."

  "One of the girls in my tennis group just discovered she's pregnant," Jill interrupted. "Do you want to fill in for her?"

  Karen started to say no. If she accepted then on one night a week she would get home even later than at present. She felt guilty about what Hank was going through, and his resentment made her feel even more guilty. But each night after court her neck and shoulders were stiff and she had a headache. She blamed McCarthy, but she blamed Hank too. To play tennis would be to work those tensions off. Tennis would free up her body, free up her mind. She preferred mindless physical activity to facing the complications at home.

  "Sure, which night?" she told Jill. Let Hank carry the load for a while, she thought. Let him see how he likes it. She had needs too, and for once she was going to give in to them.

  Karen: "Were you present in the stationhouse when the raid was being planned?"

  The second wounded officer, Pierce, was on the stand. He said: "In the stationhouse, yes."

  "What, if anything, was said about the defendant?"

  "That he was wanted for questioning in connection with something in the Bronx."

  "Anything else?"

  "That he was probably armed and probably dangerous."

  "Was anything said about killing him?"

  "No."

  "Nobody said: let's murder him, or let's silence him."

  "No."

  Karen went on with it, hammering just as hard as McCarthy but in the opposite direction. "Nothing about shoot to kill, or shoot first and ask questions later?"

  "No."

  "You were present from beginning to end?"

  "Yes."

  "You're certain? Maybe some of the cops were off to the side plotting to kill the defendant but you didn't notice."

  "There wasn't time. We had just come out of the stationhouse to go on pa
trol. Five or six different cars. There was almost no planning. The meeting lasted about two minutes."

  Karen walked away and McCarthy came forward. Under cross examination, the witness became immediately wary, and after that so obviously hostile that he began to seem, or so Karen imagined, less and less credible to the jury.

  McCarthy: "Why the haste, Officer?"

  "Detective Muldoon was afraid he'd get away. He said he was slippery and had got away before."

  "He called him a slippery black bastard, is that it?"

  Already Pierce was avoiding eye contact. "A slippery something. I don't remember what."

  "Slippery black bastard sound about right?"

  "I don't remember."

  "Slippery nigger, maybe?"

  "No."

  "Let's murder him, or let's get him? So he can't tell what he knows about police corruption in the 32nd precinct. You didn't hear that?"

  "No."

  "How about assassinate him. Let's assassinate him?"

  At the prosecution table Coombs leaned over to Karen: "McCarthy has discovered the word assassinate."

  "And he will now beat us to death with it," Karen responded.

  McCarthy had turned to the bench. "Would the court please order the witness to respond to the question?"

  "Assassinate is not a cop word," muttered Pierce. "I never heard a cop say assassinate in my life."

  McCarthy nodded as if with understanding, and then paced for a moment. Pierce's eyes never left him. The witness resembled a man tracking the movements of a snake.

  "I suppose," McCarthy said conversationally, "you're still another cop who has never witnessed police corruption in the 32nd precinct?"

  "If you mean personally, no, I never have."

  Again McCarthy nodded. "Have you spent your entire police career in that precinct, Officer? Would you say your loyalty is entirely to the 32nd precinct and the men assigned there. Would you testify to whatever lie was necessary to uphold the "honor" of the 32nd precinct?"

  Karen was once more on her feet. "Objection, objection."

  "Sustained," said Judge Birnbaum. "Save that kind of thing for your summation, Mr. McCarthy."

  Karen remained standing. "Would your honor please instruct the jury that Mr. McCarthy's questions are not evidence, that only testimony counts as evidence, and that no testimony whatsoever has been advanced to support any of the supposed crimes Mr. McCarthy may be alluding to."

  "Ladies and gentlemen of the jury," murmured Judge Birnbaum, "the prosecutor is correct. Mr. McCarthy's questions are not evidence. The jury is entitled to consider them, as, shall we say, whimsical."

  "Whimsical, your honor?" sputtered McCarthy. "Whimsical?"

  "Well, yes, whimsical."

  When she got back to her office during the noon recess Barone was there seated in her anteroom reading a book. "What's happening?" he cried, jumping up. "How's it going?"

  She looked at him. "McCarthy is accusing you all of intending to murder Lionel Epps."

  Barone started to laugh.

  She said: "A ridiculous charge perhaps.” She watched him. "Unless he can prove it.

  Barone was still laughing.

  "It's not funny."

  "I know it's not funny."

  "He says he ran drugs for you."

  "Me personally?"

  "All of you."

  "He's got balls, doesn't he. But don't worry, no one's going to believe him."

  "Oh no?"

  She glanced around and saw no sign of Muldoon. Both of them were supposed to be standing by. "Where's your partner?”

  "Danny went out for sandwiches. He'll be back in a minute. Tell me really, how's it going?"

  "Fine.” What else was she supposed to say?

  Karen's secretary handed her a message from the DA and she glanced at it: he wished to see her as soon as possible.

  About what? Karen wondered.

  "So when do you think you'll put me on the stand?" said Barone.

  "I'm not sure," said Karen vaguely. "Soon.”

  "Sitting here all day is hard."

  She looked at him--really looked at him--for the first time that day. The nice suit that fit him properly, which was rare among policemen. He must spend all his money on clothes, she thought. She liked his dark eyes. The white teeth. The smile. His smile was quite appealing. He had a way of focusing in on her--on whoever he was talking to probably. She didn't flatter herself, he must do it with everyone. But unless she wished to be rude, the warmth he exuded, and his apparently sincere interest in her, were difficult to resist.

  "Are you really so anxious to get back to Harlem?"

  "Yes."

  "Why?"

  "It's a fascinating job. Harlem is a fascinating place."

  She became preoccupied with the telephone message in her hand: she worried about what the DA might want.

  "I'm interested in the people," Barone continued, "there's something new every day. Crazy things, sometimes.” Seeing that she was not listening, he stopped.

  "I'm sorry," said Karen. She gave him a smile. "I have something here that I have to attend to immediately."

  She went out and crossed the hall and went into the DA's office and stood before his desk with her hands crossed in front of her skirt. She felt--and imagined she looked--like a school girl who had been called on the carpet. The DA was eating a sandwich.

  "Have you had lunch?" he asked her cordially.

  "Not yet, no.” In fact there would be no time for lunch today, had been no time for lunch since the trial began.

  The DA finished his sandwich and wiped his hands on a paper napkin. "I've been reading the minutes each night," he said then. "You've been doing a fine job. I have no complaints on that score at all."

  "Thank you."

  The DA hesitated a moment, then said: "There's a lot of pressure on me to accept a plea."

  "Political pressure?"

  The DA gave a half nod, conceding this.

  "From where?" asked Karen.

  "That should not be one of your concerns."

  She tried not to see him as old. But he was old. She didn't think he looked well either. Was he worried about his health? He doesn't care about right and wrong anymore, she told herself. He just wants to be reelected one more time.

  "I've tried about thirty murder cases to verdict," she said. She had decided to fight for her point of view from the start. "I've won all but two. I can make the jury see this case clearly."

  "Are you sure?" asked the DA with a smile.

  "I can make them see through McCarthy's tactics."

  "I asked if you were sure."

  "Of course I'm not sure."

  She looked at him. He was tall and thin. His white hair was thin. Strands of it hung over his ears. He needs a haircut, she thought.

  "Would McCarthy plead to first degree assault?" he asked her. "A five year sentence, perhaps."

  "His client shot five cops," she said.

  "You have a nearly all black jury. Your jury is an unfortunate one."

  "There was nothing I could do about that."

  "Probably not. I'm not accusing you of anything. Just stating the facts."

  Karen watched him carefully "We have to believe in the jury system," she insisted. "I know it's not perfect, but it's the best we have."

  "Sometimes it's not good enough."

  "The correct thing to do," said Karen stubbornly, "win or lose, is to try the case to verdict."

  The old man frowned, then became suddenly decisive. "We don't want to lose this case. It's as simple as that. Will McCarthy plead to assault?"

  "I don't know," said Karen in a voice that could hardly be heard. "I could ask him."

  "Five years," the DA mused. "Maybe more. It would be an acceptable result."

  To Karen it wouldn't be acceptable at all. "I can win this case."

  "Try for more, but accept first degree assault."

  "We can't abandon a case every time we get a jury not to our liking."
r />   "A good theme when speaking to a seminar of young lawyers."

  "You should give me credit for the ability to read a jury. I've read this one."

  "Have you?"

  "I can make this jury see through McCarthy."

  "It's turned out to be a bigger case, and also an uglier one than I ever thought. The racial thing. We don't want demonstrations in the street. And it's come at a bad time. I'll have to ask you to give in to me on this one. Talk to McCarthy."

  She went back to the courtroom. The jury box was empty, the judge not yet on the bench. People were milling around. She forced herself to go over to the defense table and lean over McCarthy.

  "Can I see you in my office later?” It was the most she could make herself say. The end of the day would be soon enough to end the trial. She could not bear to end it immediately. She would carry it forward as far as she could. If she could keep going until the end of the day she could perhaps talk to the DA again, plead with him, beg him. Perhaps something would happen to change his mind.

  But McCarthy's face had brightened. "I sense that you wish to discuss a possible plea."

  Without answering she started back to her place. But McCarthy, all bow tie and teeth, came after her.

  "We can talk now," he said. "Why subject all these people--” He waved his hand in a dramatic gesture. "--to a long, uncomfortable and possibly unnecessary afternoon?"

  Karen felt as she imagined men must feel on such occasions. She wanted to punch him in the middle of his grinning face. "After this afternoon's session will be soon enough, Mr. McCarthy," she said, and sat down.

  He stood over her grinning triumphantly but she did not look up. He had just turned back to the defense table when Coombs came dashing down the aisle. The noise of running, unaccustomed in a courtroom, caught her attention. She wondered why he was running. Reaching her, he whispered urgently in her ear.

  "The boss has had a seizure of some kind."

  Karen jumped up and, together with Coombs, rushed out of the courtroom.

  Once in the hall she too started to run. The elevators leading to the DA's floors were at the other end. It was a long hallway and there were people in it who glanced at the two running figures in surprise. Coombs had his key out and they got into the elevator and started down.

  On the DA's floor everyone was out in the hall. Assistant DAs in shirtsleeves mingled with secretaries. Everyone was moving, gesticulating, talking excitedly. With Coombs close behind her, Karen ran past people who tried to speak to her, one of them Barone, and into the DA's anteroom, which was empty, and then into his inner office, which was overcrowded. She recognized Norman Harbison, and the old man's secretary, Betty, who stood with her knuckles at her mouth, and a number of others.