Tainted Evidence

by Robert Daley

When play ended she apologized again. The other women only laughed, insisting they had had fun, this wasn't the U.S. Open after all. Still hot and sweaty, they sat in the lounge and drank coffee, and talked about their husbands, and about sex.

  "Last night I dreamt of my wedding again.” It was a woman named Pearl talking. She had two sons, worked in a fashion design house, and Karen liked her more each week.

  "I'm in church in my bridal gown. My husband-to-be has his fly open and I'm leading him up to the altar rail by a string around his dong."

  It made the other women giggle.

  "It's a recurring dream," Pearl said.

  "That's about what weddings are," said Jill, who had been married three times and who worked for a company that managed apartment buildings.

  "They ought to make it the official ceremony," said Pearl.

  "We can petition congress to make it the law," said Jill.

  "I can just see myself," said the fourth woman, Marcia, who was personnel manager for a department store. "I'm getting ready for my wedding, and I can't find my string, and I say to my mother, Mom, lend me the one you used on dad."

  To Karen it was like conversations in dormitories late at night long ago. Funny, raunchy. She had not had any such conversations since and must have missed them more than she realized. She was enjoying herself.

  She said: "On my honeymoon I had my hand on it and I said to Hank, that's what I'm married to, not you."

  "How'd he take it?"

  "He thought it was the sexiest remark he'd ever heard. Within seconds I was on my back."

  The other women were laughing. It was a pleasure to make people laugh.

  But what had made her reveal such an intimate detail of her marriage when she never had before?

  "Sexually, men never get over being teenage boys," said Jill. "When they're over forty they're still voyeurs and masturbators at heart."

  "Men never don't want to," said Pearl.

  "The trouble with sex," said Jill, "is that it becomes a battleground."

  This remark sobered Karen. "I must say that since I became DA I haven't been much in the mood."

  "How does Hank take that?" said Jill.

  She felt she had to defend Hank. "Oh, very well. He's very understanding.” But she blushed as she spoke.

  Pearl said: "Honey, they never understand."

  "I've got an office to run, a trial to run," said Karen. "I wish I could just move out for a few days."

  Pearl said: "If you want to move out, move out. He won't die."

  "My children--"

  "They won't die either."

  "Move where?" said Karen.

  "I have a suggestions to make," said Jill.

  In bed, waiting for his wife to come home, Hank brooded about his marriage--and about his career too. No word had come from NYU. Meanwhile his wife seemed to have become a different person; somehow their marriage had gone terribly wrong. He didn't know what to do about NYU, or about his marriage either, and he searched his memory for something he might have done to Karen, or said to her, some explanation. But there was nothing he could see. He had done nothing wrong--nothing he had done any differently in the past. It was Karen who had changed. Her appointment as DA. That damned appointment.

  In pajamas and bathrobe he went down to the living room to wait for her there, but fell asleep in a chair with the newspaper open on his lap. Only one light was on in the room. With the sound of the front door opening, he came awake. Karen, still in her coat, entered the room and they looked at each other.

  Although Hank said nothing, the accusation must have been in his eyes, for he saw that she felt it.

  "I don't have a grip on it yet, Henry," she said apologetically.

  "You get home later and later."

  "I'm trying. It will take time."

  "The plumber was here this afternoon. Evidently you called him. I didn't know what you wanted."

  "I'll call him tomorrow."

  Henry nodded. They started up the stairs.

  "I'll just look in on the kids," said Karen.

  "They're asleep, Karen."

  The spectator section was full, the well was full, but the jury box was still empty. At the bench McCarthy was addressing the judge, his voice low, almost hissing with anger. Karen listened with a bored expression on her face.

  "They're trying to kill him again, your honor. Last night in jail they slashed his throat. They were trying to get his jugular.”

  "The defendant's neck was slightly cut on the edge of a chair," said Karen in a bored voice.

  "He was beaten, his face is a mess. The guards did it. On orders from the police, no doubt."

  "It was a fight with another inmate, your honor."

  "Free my client before they kill him."

  "I sent a detective up there as soon as I heard.” She had phoned Barone at home. He had driven straight to Rikers Island, and within ninety minutes she had her report. She had Barone in the witness room in case he was needed. "The detective in question is standing by if you should care to talk to him, Judge."

  Birnbaum high on his bench, looked from one of them to the other. He did not ask to see Barone, but he was clearly waiting for more information.

  "The fight was with an inmate named Willy Roper," Karen said.

  "A sworn enemy of my client," charged McCarthy. "An obvious setup, your honor. A man who has attacked him before, who has sworn to kill him."

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

  "What was such a man doing in an adjacent cell, if it was not a setup?" demanded McCarthy.

  "Are you asking for another recess, Mr. McCarthy?" asked Judge Birnbaum.

  "Bring in the jury," cried McCarthy. "Let them see what's been done to my client."

  Karen perceived McCarthy's tactic and moved to forestall it.

  "Maybe we better take a look at him first, Judge."

  "There's no need to look at him," said McCarthy. "Let the jury look at him."

  "No," said Karen, "I want to see him first."

  Birnbaum peered at her over his glasses.

  "I really must insist, Judge," said Karen firmly.

  "Your honor--" said McCarthy.

  "Judge--" said Karen firmly.

  Birnbaum looked from one of them to the other. At last he spoke to the bailiff: "Bring in the defendant, please," he said.

  They waited while Epps was brought in handcuffs. The jurors had never seen him in handcuffs, but they were not in the courtroom. His appearance was as Karen had expected. He looked like a man who had barely survived a plane crash. Though wearing the usual Brooks Brothers suit his face and neck were swathed in bandages, and in places blood appeared to have soaked through. Only his eyes, mouth and hair showed. Over these bandages he wore his usual horn-rimmed spectacles, but with one star-burst lens.

  "Can we have a doctor look at him, please, your honor?" said Karen. "I'd be curious to know if his wounds are as nearly mortal as we are meant to believe."

  There was a long delay while they waited for the doctor to reach the courtroom. Karen spent it doodling on a legal pad. The jury box was still empty. The spectator section was now half empty, perhaps more. The people were out in the corridor or in the rest rooms.

  The doctor finally arrived and was led to a side room where in the presence of the prosecution team, the defense lawyers, and the stenographer and four guards he examined the defendant. Working with extreme slowness, it seemed to Karen, he unraveled the various bandages. For Karen there was no suspense. Barone had described Epps' slight injuries to her, and she had believed him. At the end she saw what she had expected to see: a few small cuts and bruises.

  "Very impressive makeup job," she said to him. "Who did it for you?"

  Epps, his face now bare, looked at her with smoldering eyes.

  Meanwhile, ignoring her and Epps both, McCarthy was staring out the window. It was as if the whole procedure was, and always had been, beneath him. She went over to him. "I think the judge should see this, do
n't you Mr. McCarthy? I mean before we bandage him up again.” She turned to one of the guards. "Will you ask the judge to come in here, please?”

  But when she turned back McCarthy was gone.

  "I think Mr. McCarthy should be reprimanded," said Karen as soon as Birnbaum had appeared. She had decided she had best treat Birnbaum gently; he wasn't going to do anything anyway. "I think you should threaten him with a contempt citation."

  "I'll run my courtroom as I see fit, Mrs. Henning," said Birnbaum huffily. "You just worry about conducting your case.”

  For the moment Karen backed off, but when Epps was brought into the courtroom a second time, wearing much less prominent bandages, she went forward to the bench. McCarthy followed, and a colloquy ensued.

  "Would you advise the jury that the defendant's injuries, such as they are, are extraneous to this trial," said Karen. She was putting pressure on the judge again, and knew he would not like it. "The jurors are not to make inferences, suppositions, guesses--you know the formula, your honor."

  "The press--" said McCarthy darkly.

  Karen said: "Would you also admonish Mr. McCarthy that he is not to give inflammatory interviews about this to the press."

  Birnbaum hesitated, looking from one to the other, but finally nodded his head. "So ordered, Mr. McCarthy.”

  "The press has its own way of finding things out," said McCarthy.

  More juicy articles that the jurors are not supposed to read, Karen reflected.

  "Maybe you better threaten him with contempt of court if he speaks to the press, your honor."

  "I hardly think that will be necessary, do you, Mr. McCarthy?"

  Karen went back to her table.

  "You won that one, anyway," said Coombs.

  Karen bent over her papers: "Did I?”

  At lunchtime she went back to her office where Tananbaum waited. He and his task force had found no precedent that would enable Karen to call McCarthy as a witness for the prosecution.

  "In fact," said Tananbaum, "our research shows the opposite."

  "I see," said Karen.

  "We researched it pretty thoroughly."

  Karen nodded.

  "I wouldn't advise you to try calling him," Tananbaum said. "Without a precedent to go on, Birnbaum will never permit it, and just to make the attempt in open court is probably grounds for either a mistrial, or a reversal later."

  "Thanks for trying," said Karen.

  "The rule exists to protect the defendant. Legal theory holds that the defendant is on trial, not his lawyer, and a man should not be convicted because his lawyer fucked up."

  Karen said nothing. Tananbaum's report, though only what she expected, left her bitter and depressed. If she committed a procedural error, even asked the wrong question, she might win a guilty verdict, but could be reversed on appeal. To avoid such error, she had to be incredibly concentrated, incredibly careful at all times. Whereas the defense attorney--McCarthy--could do or say anything he liked. If he won, he won. A verdict of not guilty could not be reversed. If he lost, he would appeal on the basis of her errors, or the judge's errors. His own conduct would not be considered by the appeals judges, it didn't count.

  Karen went back to court.

  Beside her in the big bed, Henry was asleep. From time to time a snore escaped him. But for Karen sleep would not come. Her mind churned, her stomach too, she was exhausted, and she reclined against the headboard in the dark, and sleep felt as distant and unreachable as it had an hour ago.

  She had been trying not to move, to stifle her sighs, trying not to awaken Hank, but something woke him, for suddenly she was aware that his eyes were open and looking at her.

  "What time is it.”

  "About three thirty," she told him.

  "Try to sleep."

  "I can feel it getting away from me, Hank."

  "Things always seem worse in the dark."

  "I don't know what to do."

  "The guy shot five cops. Believe me, you got nothing to worry about."

  "The jury doesn't believe my witnesses. McCarthy keeps coming back to his single-minded argument, they were trying to murder Epps."

  Henry put his arms around her as if to shield her from the dark. Then he began kissing her.

  "It will help you sleep," he explained.

  Without turning on the light they wrestled around for a few seconds. But then Karen broke away.

  "I can't Hank. I'm sorry. I can't."

  She hoisted herself against the headboard again, and sat in the dark staring at nothing. Henry growled something unintelligible, then turned on his side facing away from her.

  Presently she went downstairs and put the coffee on. The clock on the kitchen wall read 4:45 AM. In bathrobe and slippers she paced back and forth, the coffee in one hand, sipping from time to time. She had become obsessed with the notion that she might lose the case, and it made her frantic. In all the previous cases she had tried, none had ever kept her awake like this. She had no idea what her jury might believe or not believe--which in itself was a bad sign. Surely if the jurors found her witnesses credible, or McCarthy's arguments incredible, there would have been some indication. She would have seen something, felt something.

  At the edge of panic, pacing, she resolved to change her strategy. A number of cops from the shootout had still not testified. Barone was one. Toole, who had been shot, was another. She would call none of them, she decided. To call them would expose them to McCarthy's brand of cross examination. He would ridicule them, insinuate that they were corrupt, turn them into would be murderers. She did not know how they would stand up to it. Badly, probably, like all the cops so far. The jury did not need to see it. The jury had seen too much of it already.

  So she wouldn't call the remaining cops and detectives at all but would call instead the men who had commanded the various police investigations. There had been three that she knew of. She visualized the three commanders parading to the stand one after the other, older men in uniform with gold braid on their caps. Men who had not been involved personally in the shootout but who had investigated it thoroughly, who had found nothing illegal or corrupt and who would so testify. McCarthy would not be able to accuse them of crimes or otherwise shake them. It would be testimony, she believed, that no jury could disregard.

  She took her coffee into Hank's study, got the three signed reports out of her briefcase and reread them. They were as she remembered. Next she paged through her police department phone book and, early though it was, called the three commands. She wanted the commanders telephoned at home or wherever they were. "At once," she said. "Wake them up if necessary.” She poured herself another cup of coffee and waited.

  The precinct commander called back within the hour. He sounded groggy with sleep.

  "You're up early," he said.

  She wasn't interested in what time it was. "Do you stand by the report you signed having to do with the Epps case?" she asked him.

  "Yes of course."

  "You found no evidence of corruption or illegality of any kind?"

  "None whatever."

  "All right. Be prepared to testify later today."

  She had barely hung up when the phone rang again: the borough commander. She asked him the same questions and got back the same answers. He too was told he would testify later in the day.

  She was dressed and ready to go out the door before the chief of detectives called.

  "If you were writing your Epps report today," she asked him, "would you write it any differently?"

  "No. What's this about?"

  But she ignored the question. "Nothing new has come up, no new details? No allegations of any kind?"

  "No."

  She was about to hang up when she thought to ask him the final question, the one McCarthy was certain to ask on cross examination. "There were just the three police department investigations, right? Yours, precinct and borough. There were no others?"

  "Internal affairs had one too, I think," the chief of detect
ives said.

  "You think?"

  "I know. Very hush-hush."

  "You saw the report?"

  "There may not even be one. I heard about the investigation is all. Pommer is supposed to have done it personally."

  All of the air seemed to go out of Karen. "I'll call him," she said. "I'll call you back later."

  She had taken this call too in Hank's study, and when she had hung up she sat for a time with her head in her hands. After that she phoned internal affairs and ordered the sergeant on duty to have Chief Pommer report to her office at 8 AM. Then she went out to her car and was driven to work.

  "We haven't seen each other in a while," Pommer said, as if they were old friends. He sat in uniform opposite her, his cap in his lap.

  "No we haven't."

  "Those two ace detectives from the Three-Two," he asked, "when will you be finished with them?"

  She had been right to dread this meeting. "Which two?”

  "Your chief witnesses, Barone and Muldoon."

  Already on the defensive, Karen said cautiously: "I'm not sure I understand what you're asking me."

  "When will they be finished testifying?"

  He's got something on them, Karen told herself. What does he have on them? She said: "You've been conducting a secret investigation having to do with my case, I believe.”

  There followed a short heavy silence.

  "We do have a little inquiry going," Pommer conceded.

  "Into the shootout?”

  "More like into the two hotshots."

  She did not want to ask anything more, or know anything more. She wanted only to remain ignorant. Unfortunately this option was not allowed her.

  "I want a copy of your report. Immediately.” A copy would have to be given to the defense too, that was the worst of it.

  "There is no report. Not yet.” Pommer must have known that his investigation could sabotage the trial. He had been a cop thirty or so years. He couldn't be that stupid.

  "Nothing on paper?"

  "No."

  "At all?"

  "Not really, no."

  Probably this very meeting ought to be reported to the defense. "Alright, what has your investigation turned up?"

  "It doesn't really concern your case. It concerns some past cases. A few minor discrepancies here and there."