Tainted Evidence

by Robert Daley

  Karen winced."

  "They threw their bloody gloves into the bushes outside the house," said Schroeder, "then went up to 105th Street to buy heroin--"

  "Heroin or cocaine?" asked Karen.

  "Heroin. This is not your most modern up to date slasher. So they buy the junk, and then go to a hotel where they meet the old lady's granddaughter, who is the lover of both of them, by the way, and everybody shoots up."

  The tale was becoming grotesque and around the table the smiles had come on.

  "Next they go to an Irish bar to celebrate, where the Slasher decides that his prints might be all over the old lady's pocketbook. So he returns to her apartment--walking in an out past the tenant patrol."

  Everyone laughed, even Karen, though this day she would not have imagined herself able to laugh at much.

  "After putting the old lady's pocketbook and jewelry into a plastic bag and dropping the bag into the river, where it was later found by police divers, the happy trio returns to the same hotel and they shoot up again. After they were arrested, each of the defendants accused the other of being the actual killer. Both were apparently trying to protect the granddaughter."

  "What's the granddaughter like," someone asked.

  "She's everyone's ideal of what a granddaughter should be," Schroeder said. "Sweet, fragile--what can I tell you."

  When the laughter ended this time, Schroeder said: "The question is, what do I do now?"

  The question was not addressed to Karen, nor to Tananbaum either. Schroeder didn't know whom to address it to, apparently.

  It was Karen who answered. "As overloaded as we are," she decided, "we have to have two trials.” It's not your bureau anymore, she told herself, let Tananbaum decide. "The irony is that it makes no legal difference who the actual killer is," she said. "They are both guilty of felony murder under the law."

  She said: "I want no plea bargaining in this case.” The killing was too vicious. "Take this one all the way to trial," she ordered.

  To Schroeder it was obvious that Karen had taken over the meeting. "Do you want me to indict them jointly, Karen?”

  "My preference is separately. I don't want the two defendants talking to each other."

  There was a buzz of talk around the table. Such indictments might puzzle the juries involved, someone suggested. Yes, someone else said, each jury would hear testimony about the accomplice, but the accomplice would not be on trial and would be nowhere mentioned in the indictment.

  "Juries get confused easily." Tananbaum suggested.

  It brought Karen's own jury to mind. You're telling me, she thought.

  "Is indicting them separately worth the risk?" said Tananbaum.

  Karen threw the matter to a vote. All but two of the lawyers sided with her. Well, what had she expected? She was the boss and if you voted with the boss you couldn't go wrong. Even the two who had voted against her quickly added that they really had no strong opinion.

  "All right," said Tananbaum, "call it unanimous."

  Was irony intended? Karen didn't know and didn't care. For as long as she was in charge they would do it her way. "Who's next?" she said.

  The meeting lasted all morning, relentless descriptions of outrageous crimes, followed by discussions of the legal problems they engendered.

  Karen's mind wandered. She became fixed on herself again, on the jury that did not come in, on her still unexamined conduct last night, on what her conduct would be this night to come. She sat with a blank, expressionless face, contributed nothing, and Tananbaum, surprised that she allowed it, took over the meeting once more.

  "The murder took place in the apartment of the deceased and his common law wife, with whom he had been living for the past five years, except for the eighteen months he was in jail."

  The speaker was Assistant DA Ron Murphy, the newest and youngest of these elite prosecutors.

  "During the time he was in jail," Murphy said, "his common-law wife and the defendant had been, as they say, seeing each other."

  Deceased, defendant? What did any of this matter to Karen? Really matter?

  "The three adults are in one bedroom, and the three children of wife, all by different men, none of them present, are in the other bedroom."

  Karen tried to force herself to pay attention.

  Murphy said: "The three adults get into an argument, during which the common-law husband punches his common-law wife in the stomach.

  "She says: you shouldn't hit me in front of company.

  "That's alright, the other man says, I'm leaving anyway."

  Tananbaum murmured something Karen didn't catch, and everybody laughed.

  "Well," Murphy said, "the common-law husband walks the other man to the door, at which spot the other man shoots him. Pulls out a revolver and shoots him. Not once but many times. The children heard much of this, and saw some of it. They saw the bullet flashes. They ran past the body of their common-law father into their aunt's apartment in the same building."

  After a pause, Murphy said: "The common-law wife later told the detectives she didn't see anything, didn't hear anything and didn't know anything. The only witnesses I have are the kids."

  "The kids are going to take the brunt of this one," someone said.

  No one was laughing now. "The defense lawyer is asking to get at them," said Murphy. "I don't think I can prevent him from talking to them."

  "No, you can't," said Tananbaum. "Where was this?”

  "Lenox Avenue in the Thirty Second Precinct. The detective who has the case was terrific with the kids. I watched him work. You know him, Karen, he's part of your case too, the big fat guy, Muldoon."

  Karen had looked up.

  "He had them up in the stationhouse," Murphy said. "He calmed them down, fed them ice cream, got a coherent story out of them. He did a good job."

  Karen, who was in no mood to hear about Muldoon, excused herself and left the room.

  During the afternoon she interviewed a succession of young men and women who wished to become assistant district attorneys. Their credentials had been scrutinized at a level much further down, they had survived a number of previous interviews, and it was her job to talk to them now because her predecessor had always done so for thirty two years. It had become the tradition of the office.

  Allocating a minimum of fifteen minutes to each candidate, she put forth her questions, watched how they responded, made notations in their folders, walked them to the door, thanked them, told them they would be notified, and asked her secretary to send in the next name on the list. The final decisions must not seem to come from her. The bureau chiefs would do it. As district attorney she must cultivate a certain aloofness. She could not afford to seem any future employee's friend or sponsor.

  From time to time there were interruptions, one of them a phone call from her husband. He had had a call from NYU, and wanted to share the news.

  "Hank, that's wonderful," she told him.

  "They asked if I could come in and talk to them a week from Monday. Dean Blake, the president, everybody."

  "What do you think it means?"

  "I know what I hope it means."

  "I have someone in the office," she said.

  "I didn't mean to disturb you. Are you coming home tonight?"

  She told him she was not: "I have so much work to do.” The jury would deliberate until ten P.M., she said. "I better stick around.”

  When this left a glum silence on the other end of the phone, she added: "that's really terrific news, Hank. I'm so happy for you and proud of you."

  At six P.M., however, instead of sending out for dinner, the jury asked to be returned to the hotel, and the notification went out that deliberations were over for the day. With four unexpected hours in hand, Karen could well have gone home. Instead she had herself driven back to her apartment, where she dismissed her car, telling Detective McGillis she would not need him anymore that night.

  She made herself a sandwich and drank a bottle of beer, and after that she
paced, and waited for Barone. Though nothing had been said last night and they had not communicated during the day, she knew that he would come, and her whole body was tense with waiting. She knew approximately when to expect him, for he was working a two to ten P.M. tour. The drive downtown would take him about twenty minutes. Say ten twenty. Ten thirty at the latest. McGillis was gone. There would be no one to witness whatever happened next. Of course Barone might leave work early. It was not impossible that the doorbell would ring at any moment, and she had begun to jump every time she imagined she heard movement in the corridor outside.

  After about an hour of this her mood turned to acute nervousness, and an hour after that to irritation. By then she had broken out a deck of cards, was playing solitaire on the coffee table, and was brooding about herself uninterruptedly. There was no way she could condone her recent conduct, or consider herself an honorable person. She was not an honorable person. She had betrayed her husband, her family, herself, her station as district attorney. She had behaved like a cheap slut with a man far below her in rank, and was waiting around in this dismal little apartment for it to happen again.

  Her body tingled nonetheless, and she could see Barone's shoulders, his hands, and wished he would come through the door quickly, make it happen quickly, because her revulsion with herself was getting out of control, and she worried about it turning into a greater force than any of these others that for so many days had been battering her psyche.

  It wasn't self revulsion that got her finally to her feet, that sent her into the kitchen to the phone on the wall. Rather it was the habits of a lifetime reasserting themselves. If she were here when Barone showed up, then what would happen would happen, she would be unable to help herself. Her only hope was to be somewhere else.

  She called her office and when the duty officer came on the line asked that McGillis be contacted, that her car be sent around to take her home. After that, she said, if the office needed to reach her, home was where she would be.

  It was then quarter to ten. "Ask McGillis to hurry," she ordered. "Tell him I'll be waiting out front."

  Pacing, she waited ten minutes inside the apartment, then went downstairs and out onto the stoop where she peered up the street for the car that was not there and that for an eternity did not come. She kept checking her watch. She was biting her lip too, as nervous as she had ever been. Now it was after ten P.M. Barone would be here any minute. Suppose Barone got here first, then what? Suppose the two cars arrived simultaneously? She saw herself, with McGillis as a witness, striding back into the flat with Barone.

  That she would ever do such a thing was not possible. But she might do it. She didn't know what she'd do. As far as Barone was concerned she felt a total weakness of will. However much she told herself that she wanted only to go home, Barone had only to show up to stop her. Or so she feared.

  At last she saw headlights coming down the street. She went down the steps to the sidewalk, and it was McGillis, and she tugged open the door of the car.

  A second car had come into the street. It stopped a short distance behind McGillis. The streetlight fell on the windshield and she saw that the driver was Barone. They stared at each other, and for a moment she froze where she was. Then she gathered herself and stepped into the car assigned to the district attorney of New York County. She didn't know what Barone thought, what he would do. But she was free of him, at least for tonight. She slammed the door and settled back in the seat. Had McGillis seen him?

  "Take me home to Bronxville," she ordered, and made herself small in the corner so that not even her head showed in the rear window.

  An hour later McGillis pulled up in front of her house. She thanked him, got out. She had her key ready. She got the door open and went in. She had already forgotten McGillis, remembering him only as she heard him drive away. She went up the stairs.

  Henry was sitting up in bed reading a magazine. Karen came into the room and they gazed at each other.

  "Come to bed, Karen," Hank said.

  "Just let me look in on the children first."

  She went into Hillary's room. During the time she stood looking down at her the girl slept soundly, and did not move. The door to the hall was closed all but a crack. Karen glanced around in the dim light. The room was a mess, clothing strewn everywhere. She gave a rueful smile and went out.

  Jackie, when she bent over to kiss him, came sleepily awake. Though he did not speak, his arms came up and went around his mother's neck, and he clung to her even as he slid back down into sleep again. She remained bent over him, breathing on him, for some time, then disengaged the small arms and left the room.

  She lay against her husband in the dark and said: "I'm sorry, Hank."

  "There's nothing to be sorry about."

  "You must be sex starved, I've been gone so long."

  "You too."

  "Intellectually I want to, but my body just won't respond."

  "The jury's been out how long, five days? You're under terrific strain, that's all."

  "I feel like such a flop. The case is lost. You know it and I know it. And now I'm not even any good as a wife."

  "You haven't lost the case. Not yet, you haven't. And you're a wonderful wife, and I'm happy to have you home and to be in bed with you."

  For some reason this made her start to cry. She lay in his arms sobbing, and he kissed the tears away. He kept saying: "hush now, hush, go to sleep, hush."

  Chapter 23

  The jury returned its verdict late the next afternoon.

  There was the inevitable delay as the lawyers were notified and the prisoner was brought in from Rikers Island. Word that the verdict was coming had spread through the halls of the courthouse and through the district attorney's floors. People gathered outside the courtroom, mostly lawyers working in the building, and hurrying newsmen, but also Reverend Johnson's civil rights group, which had kept a vigil in relays on the courthouse steps during the six days the jury was out, and very soon Reverend Johnson himself. All these people began to file through security inside, and after them came others, and the courtroom was full as the forewoman of the jury stood up in her place and the judge addressed her, intoning his words into a kind of religious hush.

  "On count No. 1, attempted murder of Police Officer Wiendienst, how say you?

  "On count No. 1 we find the defendant not guilty."

  A shout went up. Religion went out the window. There were gasps, moans, squeals. Someone cheered. Someone else burst loudly into tears. Judge Birnbaum was already banging his gavel for order. The liturgy would continue, had to continue. There were four more counts of attempted murder to come, and lesser charges after that, judge and jury were not finished. But to the multitude the suspense was over, the trial was at last over, the remaining parts of the verdict as obvious to all as if known in advance. Those stupefied by what they had heard remained in their places. The rest spilled toward the door, and Judge Birnbaum on his bench banged repeatedly for order.

  Finally, with the courtroom more empty than full, order was restored.

  "How say you as to count No. 2, attempted murder of Police Officer Schwartz?"

  "On count No. 2, we find the defendant not guilty."

  The judge and the forewoman carried their ritual to the end, but the solemnity was restricted to the two of them.

  At the prosecution table District Attorney Karen Henning stared at her hands and did not once raise her eyes. Justin McCarthy was grinning and slapping Lionel Epps on the back, but she did not see it. Reporters were pushing their way out of the courtroom to get to the phones, or else were pushing forward to interview the principals as soon as the judge would have left the bench. She did not see that either.

  At the pay phones in the corridor a reporter had got through to Norman Harbison in his campaign office, asking for a comment. "What?" said Harbison. "What?” To the reporter Harbison's voice sounded gleeful. But it quickly became dolorous. "I am of course very disheartened by such a verdict. However, it goes a
long with what I have been saying about incompetence. Well, the voters will have a chance to change all that in the fall."

  The reporter as he broke the connection did not see the big grin that came onto Harbison's face, did not see him stand up, come out from behind his desk and clap his hands together with pleasure. But he imagined it and he thought: that will be tomorrow's story, Harbison would be worth talking to tomorrow.

  Though the courtroom had almost completely emptied out, Karen and Coombs sat in stunned silence at their table.

  "It was an open and shut case," Coombs said. "Open and shut."

  Karen, who was close to tears, shook her head. She said: "Let's go.” They gathered up their papers and made their way up the aisle.

  Outside the courtroom they saw that the mob of newsmen had surrounded McCarthy who was giving an interview in the grand manner. A little ways off Reverend Johnson was giving another.

  "I find it the obvious verdict, the only fair verdict," they heard Johnson say.

  "Justice, being destroyed, will destroy," McCarthy said. "Being preserved it will preserve.

  "The jury has proven its wisdom," said Johnson, "and the perfection of the democratic way."

  The reporters around McCarthy began all shouting at once so that no single question could be heard. The lawyer cupped his ear as if straining to hear, though why, Karen wondered bitterly. He wasn't answering questions, he was making an oration.

  "Justice is the soul of the universe," he said. "Justice alone satisfies everybody."

  "Is this your sweetest success?" a reporter shouted.

  This question McCarthy heard. Or else he had a speech ready on the subject and had been waiting to get it in: "Success is a good thing," he declared. "Honor is better. But justice excels them all."

  "What does this verdict mean?" a voice shouted.

  "Does it send a message?" shouted another.

  "The message," said McCarthy. "Is that white cops can no longer shoot down black youths without a response. Write it down. It is a message you must broadcast to the world. No more black power. From now on black firepower."