Tainted Evidence

by Robert Daley

  But she knew she couldn't. Wouldn't or couldn't, she was not sure which.

  "His mother made an official complaint against you, did she not?"

  "Yes."

  "For threatening violence?"

  "No."

  "For using racial epithets against her?"

  "Yes."

  "Did the police department investigate her complaint?"

  "Yes."

  "And the result was?"

  "I took a rip."

  "A rip?"

  "I got docked two days pay for it."

  Karen in front of the jury let her eyes move from face to face. To Muldoon she said: "You seem to have known the defendant pretty well."

  "He was a regular informant."

  "Which means what, Detective Muldoon?”

  "He gave us information that resulted in the arrests of some very bad people."

  "But I thought you understood him to be a very bad person himself."

  "Not at first."

  "You let him operate because he gave up more important wrongdoers than you thought him to be?"

  "That's right."

  "You talked to him once a week?"

  "No. Not nearly that often. Once a month, maybe."

  "You went to his house for this?"

  "No. Usually I found him on the street. I'd make him a sign. We'd park around the corner, he'd come around and I'd talk to him for five minutes in a doorway or an alley. We weren't making conversation. Five minutes was more than enough."

  "But you did go to his house on occasion?"

  "A few times. If something important suddenly came up that I thought he might know about. There was a triple homicide in a bar, for instance, and--

  Karen cut him off. The jury did not need to hear about extraneous cases. "How many times over the last three years did you go to his house?"

  "Five or six times. He was a pretty good informant. His brothers were informants before him, but he was the best."

  "His brothers?"

  "By this time they were all in jail."

  "He was a registered informant?" said Karen.

  "Registered, yes."

  "With the police intelligence division. Is this a record of his registration?” Karen waved the card at the jury before handing it to Muldoon, who looked it over.

  "That looks like it, yes."

  "Did you pay him?"

  "Regularly."

  "With Police Department money?”

  "I have paid him with Police Department money, yes."

  "Money that was vouchered, Detective Muldoon?”

  "Money that was vouchered."

  Karen walked back to her place and picked up a number of vouchers. Like the informant card she had them marked for identification, and afterwards entered into evidence.

  She began reading out dates and sums. "On Dec. l8, two years ago, did you pay the defendant $50?"

  "Yes I did."

  "And vouchered it?"

  "Yes I did."

  "And again on May, 30 of the following year?"

  "Yes I did."

  Karen went through the rest of the vouchers, only two more in all, not many for such a long period. She decided she'd best continue along this same line of questioning, rather than risk McCarthy doing it on cross examination.

  "Sometimes you used your own money, is that correct?"

  "Yes."

  "Why is that, detective?"

  "Getting money out of the department was too much of a hassle."

  "Are you a rich man, detective?"

  "No."

  "But you paid an informant with your own money?"

  "It was easier that way."

  "Money is money."

  With downcast eyes Muldoon said: "I'm divorced, I have no kids. It was only five dollars, ten dollars here and there. What else was I going to do with the money?” He became truculent. "It was my money. I could do with it what I liked."

  He looked so abject, so hangdog, so alone in the world, that Karen felt a great outpouring of sympathy. Hoping the jury felt the same, she walked back to her place saying: "No further questions, your honor.”

  From her chair at the defense table she watched McCarthy move forward.

  "What about the other money, Detective?"

  Muldoon looked immediately wary. Once again he would not meet McCarthy's eyes. "What money is that, Counselor?"

  "Money from the drugs you cops forced him to sell for you. That's the real reason you went to see him once a week, isn't it?”

  "Objection, objection," cried Karen. "He's doing it again, Judge."

  But McCarthy simply overrode her. "To collect your money. That's what we're talking about here, isn't it, Detective?”

  "Sustained," said Judge Birnbaum.

  But McCarthy ignored the judge's ruling. His harsh voice was almost shouting. "He wanted out, Detective, so you decided he would have to be killed. Isn't that the truth of the matter, Detective?"

  Karen was shouting too. "Mr. McCarthy continues to pollute this courtroom and to slander witnesses with accusations that are totally wild and without any basis in fact whatsoever."

  Henry Henning was having dinner with Jackie and Hillary. Karen was not there.

  "What do you think Mom is doing right now?"

  "Writing her summation, I imagine. The case goes to the jury tomorrow."

  "Can I light the candles, Daddy?" asked Hillary.

  "Sure."

  There was a candelabra in the center of the table. The girl lit each of the four candles in turn, then walked over and switched out the overhead light. After hesitating a moment, she went to the head of the table and sat down in her mother's place and grinned at her father and the three of them started to eat.

  Harbison had that day called a press conference at which he announced that he was resigning as chief assistant so as to set up an office to run for district attorney in the fall; it would have been unethical, he declared piously, to continue to accept a salary when spending most of his time campaigning. He expected to be the candidate for district attorney on both the republican and conservative lines. If elected he would bring to the job both vast experience and unchallenged integrity. Without mentioning Karen by name he declared that the office of Manhattan district attorney was too important to be left in the hands of a political appointee whose credentials were meager and whose competence was doubtful.

  In her borrowed apartment Karen watched part of this press conference on the television newscasts. I made a mistake, she acknowledged to herself. I should have just fired him. It was too late, she had missed her chance. No one would believe anything she might say now.

  Well, she thought, I don't have time to worry about that. Alone in the apartment, she sat down on the sofa under a single lamp and began filling page after yellow page with what would be her summation.

  But it was McCarthy's turn to sum up first, and he spoke for hours. He was quite eloquent, and the jury, from Karen's point of view, listened with too rapt attention. Mostly she doodled on pad, only looking up from time to time, her glance moving from face to face as she tried to appraise the reactions of the jurors, of Judge Birnbaum, of Lionel Epps, even Coombs.

  "How many police officers--white police officers--would you send to arrest one black youth?" demanded McCarthy rhetorically. "Would you send twenty? Does that seem normal to you? Or would you send that many only if the object was to kill him? Lionel Epps didn't want to die. He fired back, out of self defense. Who else would defend his life? The police? The police wanted to close his mouth forever."

  Nodding vigorously, McCarthy marched up and down in front of the jury.

  "Twenty white cops. Would they lie to protect each other, to hide their own crimes? I don't have to answer that question. You will answer it as you see fit. There is no documentary evidence against Lionel Epps--excuse me, one piece: his registration card as a police informer. Are the police capable of inventing evidence like that? Of backdating records? Ha!"

  McCarthy's arguments, to Karen
, were preposterous. Did the jury find them so?

  "No, they went there to kill him," continued McCarthy. "And he knew it. At the last extremity young Lionel Epps availed himself of the God given right of all of us, the right to self defense. He defended himself, and on that grounds you will acquit him.”

  McCarthy spoke so long that Judge Birnbaum adjourned the trial for the day. Karen went back to her office and after that to her borrowed apartment where she worked over her summation still again.

  In the stationhouse Muldoon and Barone went up the stairs to the fourth floor and pushed through the door. The lockers were in rows with benches down the middle. Muldoon's locker was in the third row about half way along.

  "What do you make of this?" he said. He held the ruined lock out from the door, then let it bang back.

  "Somebody cut it open with a bolt cutter," said Barone. "What else am I supposed to make of it."

  "IAD," said Muldoon.

  Barone nodded.

  "IAD guys come in the stationhouse," Muldoon said. "Middle of the fucken night. Fuckers had to go down and get the bolt cutter out of their car."

  The locker room served 250 cops. During shift changes it was alive with boisterous, milling men. Most other times it was empty. Apart from Barone and Muldoon it was empty now.

  Barone said: "If you'd had a combination on it like you're supposed to, they wouldn't have had to ruin your lock.” In theory all 250 combinations were on file in the captain's safe in case the brass had to get into your locker for something. If you got shot and killed maybe. Or indicted for corruption.

  "The desk sergeant mentioned it to nobody," Muldoon said. "So you know he was in on it. I mean, he had to have seen them. They walked right by him, three cops and a lieutenant.”

  "A lieutenant?" said Barone. A lieutenant was a lot of rank for something like this.

  "How we found out about it," Muldoon said, "one of the radio car cops was out on the stoop waiting for his partner."

  To send a lieutenant they must be serious, Barone thought.

  "His partner was in the can the whole time taking a shit."

  They meant business, Barone thought.

  "I called you as soon as I found out," said Muldoon.

  "How many lockers they go through?"

  "I'm told about a dozen."

  "Whose?"

  "Random, it looks like."

  "Those guys don't do much that's random," Barone muttered. He went over to his own locker, worked the combination and pulled the door open. Inside was his uniform in a plastic bag, and his holster and gun belt hanging from one of the hooks. He unzipped the bag and examined the uniform, then took out and studied the big service revolver, his eyes asking it questions. Anybody been checking you over lately? He hadn't used this gun in years. He hadn't worn a uniform in years but was obliged to own one in case he was assigned to riot duty or a parade. Or got flopped back to patrolman, he thought. On the shelf above was a box of rubbers. Had it been moved? He couldn't tell. He couldn't remember where on the shelf he had placed it, or even when. The seal was unbroken and he put it back where it was.

  Had his locker contained anything else? Something that was not supposed to be there for instance? That was not there now? But he rarely came up here and could not remember.

  "So what do you think?" said Muldoon at his elbow.

  Barone said: "Captain give you a complaint for using a hard lock?” Though he made his voice sound casual, this was not the way he felt.

  "Fucken captain," said Muldoon.

  "So you take another rip," Barone said, watching his partner carefully. He sensed an agitation in Muldoon--much more agitation than actually showed. He had sensed it on the phone. He had been at home working on a stopped up toilet. He had got into his car and driven the sixty miles back to the stationhouse. "A rip won't hurt you," he said. "Couple of vacation days. You don't go anywhere on vacation anyway."

  But he saw that Muldoon was suddenly unwilling to meet his eyes. He knew what this meant, and it unnerved him. He said: "So what did you have in there you shouldn't have?”

  There was a rather long silence. "Lotta crap," Muldoon said finally.

  "Crap?” Barone was afraid he knew what was coming. "What kind of crap?"

  "I think there may have been some stuff from old cases in there."

  "From old cases?"

  "Maybe."

  "Evidence from old cases?"

  "Yeah, maybe."

  Like hypodermic syringes taken off junkies, Barone thought. Like vials of pills picked up at crime scenes and never carried to the lab to be analyzed. Like expended bullets handed over by the surgeon outside the operating room after he cut them out of some guy. Like knives or tire irons with blood on them.

  "Stuff that didn't mean shit," said Muldoon vehemently. "Cases where the mutt pleaded out," he said defensively.

  But evidence was to be vouchered and handed in to the property clerk, according to regulations, not kept in some detective's locker.

  "Did you have any junk in there?" Barone demanded. "What about junk?”

  It happened. Detectives who arrested junkies would sometimes hold back a packet of two of heroin, a vial or two of crack. You could pay off informants with drugs. It was easier than getting department money, and cheaper than using your own.

  "I don't think so, no."

  "You're sure?"

  "Yes."

  "That's a relief," said Barone. "For a minute there I saw myself visiting you in jail."

  "There may have been a gun, though."

  "Jesus," said Barone.

  Muldoon said nothing.

  "A gun," said Barone.

  "Yeah, I think so."

  "Where'd you get it?"

  "Some crime scene. Five years ago, ten years ago. How the fuck do I know?"

  Cops confiscated guns every day, so it was possible honestly to mislay one, or forget about one. Also, guns required paperwork, followed by a trip to the ballistics lab, and then to the property clerk's office, both of them downtown, with usually a long line at the window at one place or both. Arresting officers were sometimes overworked or lazy, and sometimes they waited too long to turn in the gun, and the case went forward without it, and then it was too late. If they turned it in now they'd be brought up on departmental charges.

  And then there were the cops who liked to keep an unregistered gun around to drop on the body in case they shot somebody and he turned out to be unarmed. Throwaway guns they were called. These were the cops--and the guns--the police brass worried about.

  "You really are stupid," said Barone shaking his head, not bothering to hide his disgust. "Don't you know better than to keep such things in your locker."

  Muldoon said nothing.

  "You got problems, you know that. You got real problems.”

  "What the fuck," said Muldoon.

  Barone might have problems himself, but wasn't sure yet what they might be. If internal affairs was coming after them for the shootout fiasco, which was what he supposed, he was not going to be as easy to nail as Muldoon.

  Muldoon said: "There's a UF 49 on Pommer's desk right now. He's waiting to sign it. They're bringing me up on eighteen specifications."

  Barone looked at his partner: at the protruding belly, at the soiled sports coat, the soiled tie. "How do you know that?"

  "I called this guy I know."

  "Who?"

  "A friend."

  Barone managed a grin. "I didn't know you had any friends."

  Muldoon looked away.

  "Except me of course," said Barone.

  "He said they're going to try to fire me off the job."

  "What are the other specifications?"

  "Missing memo book entries. Failure to file some DD-5s. Missed court appearances. You name it."

  If they were looking at memo books, then Barone's was a mess too. Every cop was guilty of paperwork discrepancies. And most cops now and then failed to appear in court, Barone included. They were busy on another case, or s
ick, or just forgot.

  Muldoon said: "Even drinking on the job."

  Barone looked at him.

  "Fucken Ritter."

  "You don't know that."

  "Had to be."

  "Everybody knows you get thirsty now and then."

  They looked at each other in silence.

  Muldoon said: "They went back six or eight years on me."

  How far back would they go on Barone? "You'll take a rip," Barone said. He was worried about himself, but more worried about Muldoon. If their object was to dismiss Muldoon outright, they could do it. "A bigger rip than I said, but only a rip.”

  The fat man shook his head. "Listen, Mike--"

  Muldoon prided himself on needing no one. Which was ridiculous, Barone thought. Everybody needed other people. Life was too tough. No one could get through it alone. The guy didn't even have any friends. All he had was the department. His life was the department. He had nothing else.

  "Maybe," said Muldoon, "you could--” He stopped, and Barone saw that asking favors was not easy for him even from his partner. But then he got the sentence out all in a rush: "Maybe you could talk to someone about me.”

  "Who'd you have in mind?"

  "The DA, maybe."

  "Her?” Barone visualized Karen Henning seated in his car, seated in her kitchenette, seated at her desk.

  Muldoon waited anxiously.

  "I don't know if I could do that," Barone said.

  "Listen Mike," said Muldoon, "Maybe you've been fucking her, maybe you haven't, that's not my affair, but I know she likes you."

  "How do you know that?"

  "It shows," said Muldoon, nodding earnestly. "The way she looks at you."

  Barone hadn't seen it, but chose not to say so.

  "If it was the district attorney put in a good word for me, the department would have to go easy. If you could ask her, Mike. Could you ask her?"

  Barone looked into his partner's beseeching eyes. He saw such suffering there that he had to turn away.

  "Could you ask her, Mike?"

  "I don't know," he said, "I'll have to think about it."

  "For weeks you have listened to Mr. McCarthy's charges, slurs, innuendos," said Karen in front of the jury. "His accusations couched as questions. He has slandered every cop who appeared here without offering a shred of evidence. He would have you believe that twenty police officers formed a secret conspiracy to murder. That's quite a secret. A secret shared by twenty men. A secret guarded so closely that not one word leaked out. Is that possible? Could twenty men possibly keep so deadly a secret? Would you trust such a secret to nineteen other people, and imagine it would stay secret? With your career, your very life riding on it?"