Tainted Evidence

by Robert Daley

  "That was in Brooklyn," Karen said defensively. "I'm not really familiar with it."

  "In your case it was the black kid who shot the cops. You get my meaning?"

  "No, I'm not sure I do."

  "There are parts of this city in which McCarthy's charges do not seem farfetched."

  The group around Karen seemed only to increase in size, but the questioning was dominated by the black professor. For the most part the others only listened. Pleasance seemed genuinely concerned about where the truth lay, but skeptical about Karen's answers. At times she found herself making what amounted to short speeches.

  A little apart from the group stood Henry Henning. Seeing that he was alone, Professor Kuhn came over. "They've abandoned you, I see," Kuhn said, and gave a chuckle. "That's what comes from having a famous wife."

  "Yeah," said Henry Henning.

  The result was that Hank, staring out over the wheel, did not speak to her all the way home.

  "Henry--" she said once.

  But he did not answer.

  The car pulled into the Hennings' garage which was cluttered with bicycles, lawn mowers. Getting out of the car Henry stumbled into a garbage can. He reacted angrily.

  "This place is a pig sty," he snarled. "I thought you were going to get the kids to clean it up. Get someone to clean it up."

  Karen, knowing the quarrel was not about the garage, went around the car to him.

  "Hank, I didn't do anything. I wasn't responsible for what happened.”

  "That was my chance to make an impression on those people. I hardly even got to talk to them. I want that appointment."

  "It wasn't my fault, Hank."

  "I deal with the minds and souls of young people. That's important too. You're beginning to overwhelm me. I feel half suffocated."

  "Hank, Hank."

  She embraced him. After a moment his arms went around her. They embraced amid the garage clutter, under a cone of light.

  In Albany in the Governor's office a conference was in progress. His two top aides, the same two Karen had met, were present, but they had moved up much closer to the governor's desk. One was a boyhood chum of the governor, the other a political crony since early in his career. Neither had ever been elected to anything, and their names were scarcely known outside of Albany.

  "Harbison seems to have been the choice of the late district attorney," said the boyhood chum.

  "Who's dead," commented the governor.

  "He's the mayor's choice as well."

  "The mayor is not a friend of this administration."

  "There are some other possibilities we could interview.”

  "What about the woman?" said the governor.

  The two aides looked at each other. "Well, she's qualified, I guess," said the second aide.

  "You guess?"

  "Can a woman manage all those ambitious young prosecutors?”

  "Can a woman deal with cops and criminals on such a high level?" said his partner. "Successfully, I mean?"

  "Come on, come on," the governor said impatiently. "We have women mayors now, a woman on the supreme court, we have women police commissioners."

  "Mayors are elected," the mayor's boyhood chum said. "A woman mayor fucks up, no one gets blamed. It's the electorate's fault."

  The second aide said: "A woman on the supreme court does not have to manage a multi million dollar budget and an office that size. All she has to do is give her opinion once in a while."

  "Which women like to do," the boyhood chum said, and they all laughed.

  The second aide said: "It's true that there have been one or two women police commissioners or police chiefs in your smaller cities. Usually it didn't work out."

  "Law enforcement is an all male club," said the other man. "In New York it is, anyway. A woman might not have the authority necessary."

  "You appoint a woman and she fucks up," said the second aide, "guess who gets blamed?"

  "A man might fuck up too," said the governor.

  There was a long, thoughtful silence.

  "I don't know," said the governor. "Somehow I lean toward the woman. She impressed me more than Harbison and--"

  More silence.

  "Her name is in the papers every day," said the governor.

  "True, she's had a lot of ink."

  "And we need someone who can win in November," the governor said.

  "You're saying she'd make an attractive candidate," commented his boyhood friend. "Whereas Harbison--”

  He stopped there, and no comment derogatory to Harbison was ever made.

  "Yeah," said the governor, "exactly."

  The discussion went on a long time, but the governor's men saw the way he was thinking and without a word accepted it and encouraged it until at the end the governor may have imagined that to appoint Karen Henning was their idea, not his, and in any case a much stronger idea than he had thought at first.

  "My gut feeling--" the governor said.

  The outcome became inevitable.

  "And one half of the electorate would stand up and cheer," said the governor. He had said this, or something like it, several times in the past hour, and his aides saw that he had almost decided.

  "True," one said.

  "Women, Gentlemen, that's the trend," the governor said.

  "Alright, when do we announce it?"

  The governor hesitated. "This Lionel Epps case--any chance she'll lose it?"

  "None whatever."

  "You men have studied it much more than I have," the governor said uncertainly.

  "The guy shot five cops," said his boyhood chum.

  Any second thoughts the governor may have harbored evaporated, and he sighed with relief. The decision was made at last. "As soon as possible, then," he said.

  It was a risk to put Rastar Williams on the stand, but an even greater risk not to, Karen decided. Above all, given the composition of her jury, she must seem to be holding back nothing, hiding nothing.

  And so the door at the corner of the courtroom opened and Rastar Williams shambled in, took the stand and was sworn. Since the district attorney's office had no funds for outfitting witnesses in Brooks Brothers suits, he was wearing the clothes in which he had last been arrested: frayed chinos and a dirty sweater. He had a short attention span, and as Karen began to examine him his concentration wandered.

  She had his arrest record in her hand and began there--better that she bring it to the jury's attention than McCarthy later.

  "Mr. Williams, were you convicted of assault with a deadly weapon as a teenager? And of four counts of burglary at the age of twenty? And of two counts of armed robbery two years after that?”

  Williams seemed proud of his arrest record: "Ain't many people been in as many jails as I have."

  "After which you moved into drugs, I see.” Karen began reading from the pages in her hand. "Possession, possession, sales to an undercover officer, sales, sales--"

  "Liquor stores was getting too dangerous."

  Karen's face was impassive but inside she was squirming, convinced that putting Williams on the stand was the right, but worried about what such a man was likely to say under cross examination by McCarthy.

  "Are you awaiting trial on charges of rape and sodomy at this time?"

  "I'm up here listening to you at this time.”

  The courtroom broke into laughter that caused Judge Birnbaum to begin banging his gavel.

  Karen waited until the courtroom was silent again. "And do you know a man named Lionel Epps?"

  "I knows him."

  "Do you see him in this courtroom?"

  "That's him over there."

  "Indicating the defendant," said Karen. "Now Mr. Williams, please tell the court how you happened to make the acquaintance or the defendant?"

  "We dealt dope together. He would get it, I would sell it."

  "And how long did this last?"

  "Until I went to jail the time before this. When I come out, I go looking for him. I need some money r
eal bad."

  "And did you find him?"

  "In that building where he was holed up. He send me out to get some food."

  "And in the street, did you run into someone you knew?"

  "Detective Muldoon. Last person in the world I wanted to run into. He grab me. I say: how you like it I tell you something you like to know?"

  "Meaning the whereabouts of the defendant?"

  "He want that Lionel Epps worse'n he want me."

  "Mr. Williams, have you been promised anything--a lighter sentence, for instance, in exchange for your testimony today."

  "No, but I'm, you might say, hopeful."

  Williams, as McCarthy approached, was grinning vacantly at the ceiling.

  "You say you dealt drugs with the defendant," McCarthy began. "These drugs were furnished to him by the police, I believe."

  "Could be."

  Karen: "Objection."

  But McCarthy plunged ahead with his next question. "He was being forced to deal drugs for corrupt police officers, was he not?”

  Judge: "Objection sustained."

  "Could be," said Williams.

  "Answer will be stricken," said Judge Birnbaum.

  Karen on her feet cried out with outrage. "Will your honor please instruct the jury once again that Mr. McCarthy's whimsical questions do not constitute evidence."

  Judge: "The jury is so instructed."

  Unabashed, having turned back to the witness, McCarthy continued: "According to this rap sheet you're a dangerous criminal, Mr. Williams, is that not correct?"

  "I don't know why I'm so bad."

  "Yet you say the police wanted the defendant more than they wanted you. Why is that? Is it because they only wanted to arrest you, whereas they wanted to murder him, silence him forever?"

  "Objection," shouted Karen.

  Judge: "Sustained."

  McCarthy ignored them both: "Would you say you're in such trouble that you would do anything the police told you, in hopes of a lighter sentence--perjure yourself, give false testimony, "

  But Karen was still on her feet, still shouting. "Your honor, I demand to know his reasonable basis in fact for the wild allegations he is making in this courtroom.”

  Reasonable basis in fact is a legal term, and a long one to shout without taking a breath, but in her fury Karen got it out.

  "I am defending my client," McCarthy.

  "Allegations that are wild beyond belief."

  "The prosecutor is completely out of bounds. I demand an immediate mistrial," shouted McCarthy.

  "Wild, wild, wild," shouted Karen.

  McCarthy must have thought he was losing ground. "Your honor," he said in a milder voice, "this is a matter to be discussed at sidebar."

  Both lawyers approached the bench and a conference began, but when their voices began to rise, perhaps carrying as far as the jury, Judge Birnbaum led them out the door behind them into his chambers.

  There Karen repeated her demand. She wanted McCarthy ordered to disclose his reasonable basis in fact.

  "If he has one," she said.

  "Of course I have one."

  "I think the court has a right to hear what it is, don't you, Judge."

  "I've been concerned myself as to what your reasonable basis in fact may be," said Birnbaum mildly.

  "All in good time, Judge."

  "That's a non response, Judge," Karen said, "you can't let him get away with it."

  Birnbaum looked from one of them to the other.

  "Give me a chance to present my witnesses first," said McCarthy reasonably.

  "He's got no reasonable basis in fact," cried Karen. "None at all. I want him put on the stand under oath to be questioned by you and cross examined by me."

  This was an extreme solution. It could happen. It did not happen often. The jury would not be present in the courtroom and would never know it had taken place. But McCarthy, if he gave the wrong answers or no answers, could be cited for criminal contempt. Which at the very least might slow him down for the rest of the trial.

  Birnbaum appeared to be considering such a hearing.

  McCarthy said: "May I advise your honor that if ordered to respond to questions under oath I would refuse to obey, citing the attorney-client privilege, the work product doctrine--"

  Birnbaum was nodding his head.

  "And perhaps one or two other doctrines I might ask my students look up for me.” And he grinned all around.

  Impasse.

  Karen knew it was an impasse. Birnbaum would duck today's confrontation with McCarthy, and also any other confrontation that came before him for as long as he served on the bench. To Karen, judges were gutless. There were exceptions, but Birnbaum was not one of them. Judges in her experience were motivated not by notions of justice, but by fear of being reversed on appeal. The audience they played to were the law journals and the judgment of their peers. No one else was looking at them, and no one except prosecutors, defense lawyers, defendants and a handful of courtroom habitués--an extremely small group--ever knew what went on in their courtrooms. Most judges preferred verdicts of acquittal. An acquittal meant they were in the clear, the case was over, there could be no appeal. A guilty verdict, on the other hand, would be appealed. The judge's decisions and conduct of the trial would scrutinized, and if the appeals court found error by the judge, it would reverse the conviction.

  Karen said: "I want him forewarned that if he goes on with his present tactics he'll be held in contempt."

  McCarthy gave her a bland smile. He had defied many judges in the past, as Karen knew, and Birnbaum also knew. He had gone to jail several times, and had appealed, and in a day or a week had come out more notorious, and in certain quarters more of a hero, than ever. It was the judges who looked bad because he had proven publicly that they couldn't hold him.

  Karen knew very well that Birnbaum was not going to be very stern, would not forewarn him about anything.

  "I suggest you try to curb your--your enthusiasm a bit, Mr. McCarthy," Birnbaum said. "Now let's go back to court, shall we.”

  The first person to learn of Karen's appointment was the governor's driver, a New York City detective who prided himself on his big ears, he sometimes said, and who happened to be waiting in the governor's outer office. The detective excused himself to the governor's secretary, hurried down the hall until he found an empty office, and dialed Police Commissioner Malloy in New York. In the NYPD information is power. The detective knew this; he succeeded in getting the PC on the line, and he passed on what he had.

  "Are you sure?" said Malloy.

  "They called in the press officer. I heard them do it. They told him to schedule a press conference for an hour from now.

  "Alright," said the PC. "Thank you. I owe you one.” And he hung up.

  Information could be power for the PC as well. The problem was knowing how to use it, and he sat for some seconds drumming his fingers on his desk. Then he jumped up, called for his driver, ordered some subordinates to join him in the garage, and took the private elevator down to his car. Malloy may have been a rough man, but he was not stupid nor was he always impolitic. If Karen Henning was to be DA, even on an interim basis, then she had become important in his life. He assumed she did not like him--had she not thrown him out of her office some weeks before? Was there some way he could make use of this hour's information to rectify the situation at least partly?

  Together with his entourage he set out for the Criminal Courts building.

  By then court was over for the day, and Karen and Coombs had returned to her office where she dropped her dossiers on the desk and sank wearily into her chair.

  A moment later Norm Harbison came in. It was time for a conference, he told her, but they waited in silence as Betty brought in three coffees in styrofoam cups, and passed them around.

  As soon as she had gone out, wasting no time on idle preliminaries, the acting DA said: "I've been reading the minutes each night. In my opinion you could lose this trial."

 
"One can never be sure how juries will decide," said Karen. She realized what was coming, realized she was in for a fight with Harbison, and so sat up straighter, trying as best she could to throw off her fatigue. "Juries do crazy things sometimes," she conceded.

  "Furthermore, it's attracting far too much press. I've been getting some phone calls.”

  "Phone calls?"

  "Phone calls, right."

  "Influential people?" said Karen.

  "People who tell me it's polarizing the city."

  "Like who, for instance?"

  "People tell me they're planning a demonstration in Harlem, for instance. Reverend Johnson. It could turn into a riot."

  "So what you're saying is that we should do away with trials out of fear of riots," said Karen, and she added hotly, "and I say that's ridiculous.”

  They glared at each other.

  "And in addition, you are no match for McCarthy."

  This statement made Karen so angry that for a moment she was unable to speak.

  "He's too good for you. It shines through the minutes."

  "I always knew you didn't know how to read."

  "The bottom line is, I'm ordering you to shut the trial down. Work out a plea with McCarthy, and let's get on to something else."

  He was interrupted there. The door was thrown open and in walked Police Commissioner Malloy. He was surrounded by police commanders even bigger and burlier than himself, and he was beaming.

  The PC had realized that he had only a few minutes in which to use the information at his disposal. Once the Albany press conference started the news would be out and it would be too late. The best he could do with it, he had decided, was to serve as the messenger who bore glad tidings, which was what he was doing. He wore his grin as wide as it would go, and played this role to the hilt.

  "Let me be the first to congratulate you, Carrie."

  Karen grimaced at this. No one had called her Carrie since she was a girl. "The trial's not over yet," she said.

  She assumed he was talking about the trial. She was so angry at Harbison she was scarcely paying attention, and she looked across at Coombs who, like herself, was focused on Harbison's order to shut the trial down. She was trying to marshal arguments against Harbison even as this grinning buffoon of a PC tried to monopolize her attention.