Tainted Evidence

by Robert Daley

  Muldoon in the witness box knew sarcasm when he heard it, but thought it too subtle for a degenerate like McCarthy. It was too subtle for the jurors too. Those people would see what they wanted to see: that the cops had tried to shoot down one of their innocent young black boys without provocation. In this city everyone dumped on cops.

  Muldoon watched the two lawyers go at each other.

  "I certainly did not wish to seem inflammatory," said Karen sarcastically.

  "I accept your apology," said McCarthy.

  "Inflammatory," Karen cried. "You've taken every opportunity for the past month to inflame the jury with every prejudice known to man."

  They were shouting at each other.

  "Let me explain to you, Mrs. Henning, under the law--"

  "Don't you lecture me on the law, Mr. McCarthy.”

  "I am defending an innocent man."

  She walked away from him. "Inflammatory, huh!" she snorted.

  "That's enough by both of you," said Judge Birnbaum mildly.

  At the end of the day Muldoon was told to return the next morning. He and Barone had dinner in a place in the Bronx that was half bar, half restaurant.

  "You've got to try harder with your attitude," Barone said.

  "He never laid a glove on me. I wiped him out."

  They were eating hamburgers, french fries and sliced tomatoes, and were drinking beer. This owner liked cops too. Every cop in the city knew such places.

  "He's a good lawyer," Barone said, "and tomorrow you're still on the stand.”

  "That white-haired fuck."

  Barone was trying to decide how to proceed. From the other side of the partition came the noise of glasses, of loud conversation.

  "Listen, Danny--” He hated to lecture his partner each night, and so far it hadn't done any good.

  Karen, meanwhile, had reported to Harbison, as requested. She found him in the late DA's big office. There were cartons on the floor. The flaps were all laid back and he was unpacking them. As she watched he carried an armload of stuff to the DA's desk.

  "You moved in here pretty quickly, didn't you?" she said, glancing around the office. "He's not cold yet."

  "Until the governor appoints an interim DA I'm in charge."

  "Yes, I know that.” She handed him a sheaf of papers. "Here are the minutes of today's action as you requested. Runs, hits and errors."

  "Not too many errors, I hope.” Harbison gave a weak smile, as if he had meant this to sound amusing. But Karen did not find it so.

  "The trial is not going as well as I hoped," he commented as he placed books on shelves.

  Karen was focused not on him but on her trial. McCarthy's game, obviously, was to rouse the jury to a racist fever, and she was trying to think of a way to stop it and him. Unfortunately, the bar association's Rules of Professional Conduct permitted nearly all of what McCarthy was doing, or at least did not expressly forbid it. It was a grey area. She could complain to the court, but presumably Judge Birnbaum had already decided in favor of McCarthy, for he had done nothing to stop him up to now. Her complaint would be taken as criticism, and judges did not like to be criticized. It would make him angry, and if it made him angry enough all his decisions would start going against her--a sure way to lose the trial.

  All these thoughts were going through her head. Harbison said: "As soon as I get straightened out here, you and I will have to have a talk.”

  Karen gave him a look. "Sure," she said, and nodded to him and went out.

  Across the table at dinner Karen's daughter was beaming about something.

  "I went out for cheerleading, Mom.”

  The girl looked around as if everyone should greet her news with excitement.

  But this did not happen. Although Hank said dutifully: "That's wonderful, Sweetie," Karen chose to remain silent.

  "Hilda and Sharon are going out too," Hillary added. Hilda and Sharon were usually identified as her best friends.

  "Why would you want to be a cheerleader?" asked Karen, keeping her tone amused. She wanted what was best for her daughter, wanted her to set her sights high, find a goal that appealed to her and go for it. Almost anything in life was possible for her daughter. There were no limits today. Hillary did not, as in the past, have to be satisfied with cheerleading.

  "Cheerleading is fun, Mom."

  "Why don't you go out for the girls' gymnastics team or the volley ball team," Karen suggested.

  "Because she's boy crazy," said Jackie.

  "Shut up," Hillary said. "You twerp. Because I don't like gymnastics or volley ball," she told her mother.

  "Isn't cheerleading, well, rather passive?"

  "Cheerleading is hard. You have to learn a lot. It's really very hard."

  At the head of the table Hank watched and said nothing.

  "Well, is that the way you see yourself?" asked Karen. "As a girl who--as someone--who stands on the sidelines and cheers for boys?"

  "You were a cheerleader in high school, weren't you?" asked Hillary.

  "No. In high school I was interested in my grades, in college, in--"

  Hillary jumped up and performed the school cheer. Her feet hopped, her fists punched the air.

  "Go green, Go white

  Go Bronxville, Fight, fight--"

  The others stared at her.

  "I guess I'd feel better," Karen said, "if you went out for something more, you know, active."

  "Cheerleading is fun, Mom. Fun, fun, fun."

  Karen looked at her.

  "Why does everything have to make a statement with you?" the girl cried. "It's fun."

  She ran out of the room and up the stairs.

  "She's in the attic," said Jackie, after a moment. Everyone listened to the noise she was making.

  "Eat your dinner," said Karen.

  "What's she doing up there?" said Hank.

  "Sounds like she's rummaging through trunks."

  "I thought you told me you were a cheer leader in high school," said Hank.

  "Well, I wasn't."

  She resumed eating, and after a moment the others did too. The noise from the attic stopped and they heard Hillary running down the stairs again.

  As she reentered the dining room, she was holding her mother's old cheerleading sweater to her chest.

  "What's this, Mom?"

  After staring at the sweater in surprise, Karen started to laugh. "That was in junior high school."

  No one was conceding her the distinction, which only made her laugh harder.

  "It was a different world then," she said when she could speak. "Women didn't have the opportunities they have now."

  She saw that this explanation was not accepted either.

  "You're right," she said, gazing fondly at her daughter. "It was, well, fun.”

  Rikers Island lies in the East River between the Bronx and Queens, a flat sand dune of an island, an almost perfect oval about a mile long, half a mile wide. In an earlier age its shores were equidistant from adjacent land at all four points of the compass, but La Guardia airport's north-south runway was pushed out further and further into the water, until one end abutted and nearly touched the island. This is as close as the island or anyone on it gets to the mainstream of the American dream.

  Nothing can be seen from the air to disclose the island's function. Arriving and departing passengers look down on a number of substantial buildings, some roadways, and a bridge across from Queens. All this where once only sea grass grew. The whole resembles an apartment house complex, which it is not, even though it is "home" to 20,000 people, none of them there because they want to be. Rikers Island is a conglomeration of prisons, nine in all.

  There are no guard towers or enclosing walls, only a series of chain link fences topped by barbed wire; the different prisons seem to have been separated into compounds. The roads are as wide as boulevards, and here and there attempts have been made to plant trees, hedges and even flowers but in the sandy soil nothing much grows. Most days, depending on the wind
, the adjacent runway is in use every thirty seconds for takeoffs and landings, and the noise in the cells under the planes is stupendous, and virtually constant. When the tide is right, the island and its prisons crouch under the stench given off by the mud flats and by the raw sewage floating by.

  This is not a nice place, but it is not Devil's Island. The skyscrapers of Manhattan are visible from some of the cells. Offshore there are no violent currents to sweep men away, no ravenous sharks to prevent escapes, of which there have been a rather large number, more than the Corrections Department likes to admit. Men have been released by mistake too. The wrong papers are presented and out they go. It happens. These are prisoners who come and go frequently in any case. Sometimes detectives or district attorneys come out and drive away with some individual. The blue and white Corrections Department buses load up groups of inmates each day and drive them to courtrooms. The buses are heavily reinforced with steel mesh windows, they are locked up tight, and of course all have been trashed inside.

  The men on Rikers have been arrested but not yet tried; or tried but not yet sentenced; or have pleaded guilty to reduced charges and are waiting to be released; or have been sentenced and are awaiting transport to one of the heavy penitentiaries upstate: Attica, Greenhaven--one of those. Rikers has its share of fights, beatings, riots, knifings, homosexual assaults, overdoses, same as all prisons, but the men incarcerated here are not doing what cons call hard time.

  Or rather, most are not. About sixty percent live in dormitory rooms, only about forty percent in cells. The racial breakdown is 57% black, 35% Hispanic, 7% white, 1% "other". Of course whites and Asians who get in trouble with the law are more likely to be able to make bail.

  The nine prisons are known euphemistically as "facilities," of which Facility No. 1 is the oldest and the worst. No. 1 is all cells, and that is where the most violent or notorious of the inmates are kept, sometimes in punishment cells.

  It was where Lionel Epps had been held for the ten months since his arrest and was being held during his trial, and that same night at about the time Hillary Henning performed her school cheer for her mother, Epps was on the telephone trying to call his lawyer.

  Inmates were allowed one phone call a night. There was only one phone in Epps' section of Facility No. l. It was on the wall in a corridor and the men were lined up waiting to use it. To call their lawyers, to call a loved one. One phone call each. They had looked forward to this call all day.

  Epps seemed to be taking an inordinately long time. The men on line behind him were jostling each other and shouting at him to hurry up.

  The guards, who supposedly kept order but in fact did nothing, noted that no one dared jostle Epps himself.

  There is a hierarchy in all prisons, and it is based on fear. There were violent criminals on Rikers, career criminals too, but they did not stay there long. Anyone sentenced to more than a year got moved upstate, leaving behind the many burglars and petty drug dealers who came and went. Epps had been arrested the previous spring and now it was almost spring again. He had been there longer than most or the other inmates, time enough to establish himself at the top of the food chain.

  He was not a big man. If a boxer he would have been a middleweight. He worked out with weights every day. He rarely spoke and had no intimates. His eyes seemed to smolder and he would sometimes stare at one of the other inmates for a minute or more. There seemed to be an invisible line around him. Step across the line and he would lash out with his fists, or with whatever weapon came to hand. No one knew where that line was. Cut into a line ahead of him, tell a joke he did not understand, accidentally invade what he counted as his personal space--do this and he would beat you senseless, or until pulled off by guards, after which he would retreat to his cell and stare out, saying not a word.

  No one knew what caused the violence, or when it would erupt.

  Tonight Epps had dialed McCarthy's office number. He had asked for his home number but the lawyer had refused to give it to him. Now the phone rang many times in what sounded like an empty office. But despite the lateness of the hour, someone finally answered. Epps gave his name, and was put on hold. With increasing impatience he waited, while behind him in line the jostling and yelping increased, until Epps turned with the phone at his ear.

  "Shut the fuck up," he shouted, and for two or three minutes the jostling stopped and the others fell silent.

  At the time that this call came in McCarthy was seated at his desk with his chair tilted back and his feet up, sipping from a glass of the Irish whiskey which he favored, and which was as much one of his affectations as his bow tie or his flowery manner. Present in the office were two law students from NYU, both 23 years old, who worked for him as interns. They worked without pay and were glad at the chance, for it made possible nights like this which they treasured, nights when the great man would pour out whiskey for himself and for them and sit back and pontificate on the tactics that had made him famous.

  "Success is all in getting the jury you want," he was saying as the phone rang in his secretary's office. He felt quite mellow by then and the noise of the ringing made him frown. "Don't answer it," he said, and then continued his line of thought. "If you can empanel the jury you want, you'll get the verdict you want, you can count on it."

  "There's nothing in between but the trial," said one of the law students.

  "An extremely astute observation," said McCarthy.

  The phone continued to ring.

  "And once the trial starts, what do you concentrate on?" asked McCarthy rhetorically. After taking a long pull at his whiskey he said: "One of you answer that thing, or it will never stop."

  Both law students jumped up but it was the tall one with the thick glasses who went out to the secretary's desk and spoke into the phone.

  In a moment his head came back into the room. "It's your client."

  McCarthy's feet were still up on the desk. "When the trial starts, what do you concentrate on?" he repeated.

  "Well, the evidence, obviously," said the other student, who was short with big ears.

  "That may be what they teach you in law school," said McCarthy, "and if you prefer an entirely undistinguished career, that's exactly what you should do."

  The young men looked confused.

  "You have to understand that nearly all of your clients are guilty. The evidence will only convict them. Sometimes overwhelmingly so. No, you stay as far away from the evidence as you can."

  "But--"

  "On the other hand, if you want to win verdicts--"

  The two young men waited for the wisdom that was to come.

  "Once you empanel the jury you want," said McCarthy, "you have only to play to their prejudices, their preconceived ideas. For instance, most people are only too willing to believe all policemen to be sadists and crooks. If your client looks respectable enough, most juries, the kind of jurors you want, are perfectly willing to believe your client didn't commit the crime at all, the cops did. And not only that. What did those dastardly cops do next but try to pin it on that honorable young man who is your client, on trial now for one reason and one only, because the police framed him."

  McCarthy was nodding his sagacious white head and staring into his glass.

  "Speaking of clients," suddenly remembered the tall student, "your client is still on the line."

  "I have nothing to say to him," said McCarthy with a dismissive wave of his hand. "Tell him I'll see him in court."

  The law student went out to the secretary's phone.

  "You have to know when to hang up on your clients," said McCarthy to the other one. "That's very important for a lawyer.

  They heard the phone go down in the other room.

  "Leave it off the hook so he can't phone us back," called McCarthy. And then, when the student reentered the office: "and how did my client respond when obliged to contemplate his relative standing in this relationship, his and mine?”

  Evidently the law student did not want to answe
r.

  "Do not be embarrassed," said McCarthy. "You may repeat what he said word for word.”

  The student hesitated. "He said: you tell that fuck--"

  McCarthy laughed. "Tell me what?"

  "I don't know, I hung up."

  "You'll make a lawyer yet," chortled McCarthy, and he poured more whiskey into all three glasses.

  On Rikers Island the enraged Epps had dialed again. When he got a busy signal, ripped the phone box off the wall, and the receiver on its cable out of the box. There would be no more phone calls for anyone that night or even that week probably, perhaps longer. The prisoners in line behind Epps became as angry as he was, and without a word spoken rushed him.

  Epps began swinging the receiver on the end of its cable. It was a vicious weapon and men went down. Other men reached out for it and ripped it out of his hands. Epps drove his fists into faces, broke out of the melee and ran for the latrine where he ripped a sink off the wall and began flailing away.

  In court the next morning an angry McCarthy approached the bench. Karen joined him. The spectator area was full as usual, and Muldoon was already seated in the witness box, but the defendant was not in court, nor were the jurors in the jury box.

  "During the night," said McCarthy, "my client was assaulted in jail by other inmates--the police appear to be behind it."

  "Come now, Mr. McCarthy," said Judge Birnbaum.

  "They're trying to kill him even in jail," declared McCarthy. "Release him on bail so we can arrange guards to protect him from the police."

  "Can we get on with the trial please, Judge?" said Karen.

  "No we can't," raged McCarthy. "I haven't told you the half of it yet. Not only was my client assaulted, but all of his court clothes have been slashed and are unwearable--six Brooks Brothers suits."

  "A pity," said Karen, laughing.

  "What's so funny?" demanded McCarthy, turning on her.

  "They were nice suits," said Karen.

  "Judge," continued McCarthy, "he certainly can't come to court in prison garb."

  "The jury might get the wrong idea about him," said Karen.

  Muldoon watched all this.