by Adam Mitzner
“This is your last chance to get out in front of this thing,” Lieutenant Velasquez continued. “Admit what you did. Accept responsibility. Explain how it happened. Show some remorse. All of that will help you, come sentencing time. But if you keep quiet, once your blood matches the blood found at the crime scene, there’ll be no coming back from that.”
Wayne wanted to say something like he imagined they would in a movie: You’re way off base, maybe. Or, You don’t scare me.
But neither of those really applied, so he kept silent.
They were on the right track. And he was scared. Petrified actually.
Goddamn cousin Howard.
After the indignity of being booked and processed, Wayne was told his lawyer was here to see him. He was brought to a small room where Alex Miller was waiting.
Alex was Wayne’s age and looked like a lawyer in that he had a certain Atticus Finch vibe, mainly because he was tall and thin and wore round wire-rimmed glasses. Wayne had retained Alex a few weeks earlier. Now he was awfully glad that he had.
It had been Alex who emphasized that Wayne must invoke his rights to counsel immediately upon his arrest. More importantly, Alex had predicted it would unfold exactly as it had. First, they’d find the link in the DNA to Wayne somehow, he’d explained. Then they’d arrest him. Once he was in custody, they’d get a warrant to confirm his DNA matched the blood at the crime scene.
“Here’s how it’s going to work,” Miller said. “Tomorrow morning you’ll be arraigned. That’s like on TV. Thirty seconds. You say ‘not guilty.’ The prosecutor will say that given the severity of the crime, bail should be high. I’ll ask for a bail you can afford. Then the judge imposes some amount. After that, a trial judge is selected. That’s important because we’re going to go straight to the trial judge’s courtroom from the arraignment to fight out the DNA request.”
“Any chance I won’t have to give the DNA?” Wayne asked.
“None,” Miller told him.
22
Jessica came to the hospital early the next morning. She wanted to tell Owen about his father’s arrest before he read about it online.
She knew from the look on his face that she was too late.
“I’m sorry,” she said.
“Dad didn’t kill James,” Owen said, a pleading sound to his voice.
“I know he didn’t. He’s got a good lawyer. Hopefully, he’ll be able to convince the judge of that.”
“What if he can’t?” Owen asked.
“Let’s take things one step at a time, okay?”
Wayne was wearing the prison jumpsuit, which was as uncomfortable as it was ugly. He also hadn’t showered, which made his skin itch that much more.
Alex Miller stood beside him behind the table for defendants. Across the room was a young woman who barely looked older than Owen. Alex had explained that she was the arraignment ADA but wouldn’t be the prosecutor on the case. The same was true of the arraignment judge. Wayne thought that was good because he doubted the man would live to see the trial. He looked to be the age of everyone else in the courtroom combined.
“What’s the People’s position on bail?” the judge asked.
“Remand,” the young woman said. “This is a murder indictment, and while Mr. Fiske does have a teenage child, we believe he nonetheless remains a flight risk.”
“Mr. Miller, what say you?”
“Your Honor, we request bail that this defendant can post, which is somewhere in the neighborhood of a hundred thousand dollars.”
“On a murder indictment?” the judge asked incredulously.
“He’s not a rich man. Which also means he’s unlikely to be a flight risk. Mr. Fiske has never been arrested. He’s a teacher at the Sheffield Academy in New York City. He lives in Queens. Most importantly, the son that the ADA mentioned is in the hospital at Sloan Kettering, having just undergone a very serious operation to treat leukemia. Mr. Fiske very much wants to be able to continue to visit his son. Not for himself, but for his son. This is a situation that demands the court’s leniency and compassion.”
“The most compassion I can summon on a murder indictment is two million dollars,” the judge said. “Roll the wheel.”
Wayne winced at the number. It might as well have been two trillion. But even two hundred thousand wouldn’t have mattered. He wouldn’t be able to raise bail, which meant prison would be his home for the foreseeable future.
The law clerk did as requested, turning a crank that looked like the kind used in a retirement home bingo tournament. He then reached inside the cage and pulled out a tile.
“The Honorable Margaret A. Martin,” the law clerk yelled out.
Wayne was still lamenting his predicament when Alex whispered in his ear, “The trial judge is a good pick for us. I’ll meet you in her courtroom.”
For the hearing to obtain Wayne Fiske’s DNA, Gabriel and Asra had to hand the reins over to Joe Salvesen, the Assistant District Attorney assigned to the matter.
Gabriel had asked his wife, Ella, about Salvesen. Ella had spent much of her legal career in the Manhattan DA’s office, and as a result, she knew just about every prosecutor there.
“He’s okay,” she’d said.
Gabriel knew that meant he was well below average. Ella rarely criticized her fellow ADAs. But like they tell kindergarteners, when the assignment of an ADA is made, you get what you get and you don’t get upset.
Gabriel had assumed as much about Salvesen even before asking Ella. The man had crossed fifty and was still a line ADA. By the time you reached the downslide of middle age, you either had been given management responsibility or should have moved to the defense side to make real money. Those who stayed without advancement were, by and large, lazy lawyers.
It was therefore completely on brand when Salvesen claimed he didn’t have time for a proper meeting with Gabriel and Asra before the hearing. “I’ll try to get to court a few minutes early, and you can give me the skinny then,” he said.
And it was also no surprise that Salvesen didn’t get to court early. Luckily, Judge Martin was also late, so Gabriel had a few minutes to debrief Salvesen before the case was called.
He tried to explain the facts of the case in that limited time. If Gabriel had to guess, Salvesen grasped 25 percent of it. If that much.
“No, I got it,” Salvesen said when Gabriel suggested they go over it one more time.
It didn’t matter. The clerk was cutting short their opportunity with her three knocks on the doorframe to the judge’s chambers. Then she said, “All rise! The Supreme Court for the State of New York, County of New York, Criminal Division, the Honorable Margaret A. Martin presiding. Come forward and you shall be heard.”
Gabriel and Asra sat in the gallery’s first row. They’d be spectators for this event, unless Judge Martin wanted to hear from witnesses. If not, it would all be up to Salvesen.
Wayne Fiske was wearing the prison orange, with his back to the gallery. The man hadn’t even looked back at Gabriel yet. He had been brought in wearing handcuffs, and the court officers and prison guards stood close by as soon as he was uncuffed, per courtroom protocol.
Judge Martin was relatively new to the bench. Gabriel’s phone Google search had revealed that she was a former ADA, which generally boded well for the good guys, but her tenure as a prosecutor had ended a long time ago. The bulk of her legal career had been spent doing immigration work for a nonprofit. That cut the other way: do-gooder types tended to be more suspicious of law enforcement than cops preferred.
The court clerk said: “Counsel, please state your appearances.”
“Assistant District Attorney Joseph P. Salvesen, on behalf of the People, Your Honor.”
“Alex Miller of Peikes Schwartz, representing Wayne Fiske.”
“Thank you both,” Judge Martin said. “And my sincerest apologies for running a few minutes behind this morning. Mr. Salvesen, are the People prepared to present witnesses today?”
Salvesen came b
ack to his feet. “Good morning, Your Honor. Present in the courtroom are the two detectives that have been handling this case. They are the experts here, not me. So the answer to the court’s question is yes. I would very much like to call Gabriel Velasquez to the stand. He can explain to Your Honor precisely why execution of the warrant is critical to apprehending a murderer.”
Gabriel was pleased that he’d be telling the judge what was going on instead of Salvesen. He was less pleased that Salvesen had set it up to suggest that the DNA results alone would solve the case.
“Good,” the judge said. “I’m ready to hear from the witness now, unless you have something you want to address before then, Mr. Miller.”
Gabriel had never met Alex Miller before today. That was not uncommon. Most of the people prosecuted in Gabriel’s cases were too poor to have private lawyers. Ella had told him that Miller was “good . . . very good, in fact.” The same way he knew that his wife’s “okay” regarding Salvesen was unqualified shade, her review of Alex Miller was an absolute rave. As rarely as she criticized her colleagues in the DA’s office, Ella was even stingier in her praise for members of the defense bar.
“Thank you, Your Honor,” Miller said, coming to his feet. “I’m as interested in hearing the People’s evidence as everyone else. For the life of us, we don’t understand why they have come to the conclusion that Mr. Fiske murdered Mr. Sommers. As far as we know, there is absolutely no evidence supporting that position.”
“Then I guess we’ll all find out together,” the judge said. “Mr. Salvesen, call your first witness.”
Gabriel stepped to the witness stand and raised his right hand before the request was made by the clerk. He knew the drill. This wasn’t his first rodeo.
Once he had sworn to tell the truth and nothing but the truth, so help him God, Salvesen said, “Before I ask you about the reason we’re all assembled today—the request for a DNA sample from Wayne Fiske—please give the court a brief description of your background with the NYPD so the judge knows a little bit about you, Detective.”
“First of all, I’m a lieutenant, not a detective, with the NYPD. I’ve been on the force for about twenty years now and assigned to major cases since 2014. In my career with the NYPD, I would estimate that I have handled two dozen homicide cases. Probably more.”
“Thank you, Lieutenant,” Salvesen said. “Please explain to Judge Martin the nature of the crime that has brought us here today.”
“The crime is the homicide of a man named James Sommers. He was involved in an altercation at his place of business, and died when he was punched and fell, sustaining a blow to the head. Blood not belonging to Mr. Sommers was found at the crime scene. We believe that the person who left that blood is responsible for Mr. Sommers’s death.”
He came to a stop, as Gabriel was told long ago that a good witness did when he was about to change subjects. The equivalent of a paragraph break in a story.
“There were no matches in the police database for the blood at the crime scene,” he continued. “We therefore submitted the blood to a private genealogy database. The result was a partial match indicating that the blood at the crime scene was left by someone related to a man named Howard Fiske, who lives in Portland, Oregon. The defendant, Wayne Fiske, is a cousin of Howard Fiske and the ex-husband of Jessica Sommers, the wife of the victim. Mr. Fiske’s fingerprints were also found at the crime scene. We learned in the course of our investigation that Jessica Sommers’s relationship with James Sommers began when she was still married to Mr. Fiske, so jealousy is one motive. We later learned that Mr. Fiske’s son was undergoing a very expensive experimental medical treatment, and the cost of that treatment was well beyond the means of Mr. Fiske or that of his ex-wife. However, after James Sommers was murdered, his wife, Jessica Sommers, collected half a million dollars through an insurance policy on Mr. Sommers’s life, and those proceeds were used to pay for the lifesaving treatment for their son. We believe that Mr. Fiske killed Mr. Sommers in order for his ex-wife to collect on that life insurance policy because he knew that she would use the proceeds to save their son.”
Gabriel glanced up at Judge Martin when he was finished. She nodded back to him. As far as Gabriel was concerned, this one was in the bank. There was no way she wasn’t going to order Wayne Fiske to provide his DNA. And once that happened, they had him dead to rights on the murder.
“Thank you, Lieutenant,” Salvesen said. “Did you ask Mr. Fiske to provide DNA voluntarily?”
“We did. He refused.”
“Was there anything else that caused you to view Mr. Fiske as a potential suspect, aside from what you have already testified?”
“Yes. Based on the forensics, we believe that Mr. Sommers’s murderer struck Mr. Sommers in the jaw. As a result, we suspect that the murderer scratched the knuckles on his fist, consistent with delivering such a blow. Mr. Fiske refused to allow us to inspect his hands upon request.”
Salvesen wore the smug expression of someone who had just killed it, even though all he’d done was ask Gabriel to provide a narrative. He turned to look up at the judge and said, “Your Honor, I have no further questions.”
“Let’s recess for fifteen minutes,” Judge Martin said. “When we resume, Mr. Miller, you can conduct your cross-examination.”
23
The court officers would not allow Wayne to leave the courtroom during the recess. Instead, he was permitted to caucus with Alex in a room designated for witnesses, which adjoined the courtroom. The court officers waited outside to give Wayne and Alex some privacy but wouldn’t unlock Wayne’s handcuffs.
“Having fun so far?” Alex said.
Wayne knew it was to break the ice. Still, he couldn’t even smile in response.
“I don’t expect the cross to last more than half an hour,” Alex said. “Probably less.”
“And you’re not going to call me to the stand?”
“Not a chance.”
They had discussed this several times, the night before being the last. Alex had never wavered that it would be a serious mistake for Wayne to testify.
“The DNA hearing is a one-way street,” he had said. “They’re going to put on some evidence, so we’ll learn what they have. Then the judge will order you to provide DNA, and we’ll take it from there. Remember, this is not the war. This is just the first battle.”
Wayne knew that was true. Still, he wasn’t eager to lose this battle or wage the war to follow.
He wished that Jessica had been in the courtroom. He understood why she wasn’t, of course. But her absence made him feel completely alone.
Gabriel liked cross-examination. He viewed it as a battle of wits. Of course, he always had the advantage. Not because he was smarter than his inquisitors, although that was often true, but because his job was simply to tell the truth, and their job was to make it seem as if he weren’t, and that was never the case.
Alex Miller stepped up to the lectern some ten feet away from the witness box. “Good morning, Lieutenant. I do not have a lot of questions for you, but the ones I will pose are very important. Let me start with the biggest one. How confident are you that Mr. Fiske killed Mr. Sommers?”
Gabriel was surprised by the question. Open-ended queries were rarely used on cross-examination. Most good questioners tried to maintain control over the witness, trying to ask questions that could be answered with only a yes or no.
“Extremely.”
“And you make that assertion based on your . . . I think you said twenty years as a New York City police officer?”
“And the evidence present in this case.”
“Ah, the evidence. What evidence do you think points to Mr. Fiske’s guilt?”
“DNA doesn’t lie, counselor.”
“But this hearing is for you to obtain Mr. Fiske’s DNA. Isn’t it a bit circular that you’re asking for Mr. Fiske’s DNA because you are already convinced that his DNA will prove his guilt?”
“Not at all. As I explained, we are a
sking for his DNA to confirm the match. The evidence we’ve already obtained all points to Mr. Fiske. Fingerprints also do not lie, and they place Mr. Fiske in Mr. Sommers’s office. His biological cousin’s DNA is a partial match for the blood left at the scene, which causes us to believe that Mr. Fiske’s blood will be a complete match. We further believe that Mr. Fiske spilled that blood when he struck Mr. Sommers’s jaw, which directly led to Mr. Sommers’s death. And finally, Mr. Fiske has not cooperated with our investigation and has a very strong motive, as I previously testified.”
“Let me ask you a little about your testimony, Lieutenant. There are some things that . . . well, let’s just say that they would benefit from some context.”
Gabriel looked over to Salvesen. He should have objected to Miller’s editorializing, but he didn’t.
“First, you said that Mr. Fiske didn’t cooperate with your investigation. But that’s not entirely true. When you first spoke with him, he told you where he had been at the time of the murder—which was at his home. Didn’t he?”
“He said that but—”
“No need for buts, Lieutenant. Just answer my question, please. If there’s more context you want to provide, I’m sure the ADA will ask you to provide it. So Mr. Fiske told you that he had gone straight home after work that day?”
“That’s what he told us, yes. We didn’t believe him.”
“Not quite a shocker, is it? The police not believing the person they ultimately arrested.”
“No need for the sarcasm, Mr. Miller,” Judge Martin said. “There’s no jury here.”
“Apologies, Your Honor,” Miller said, then turned his attention back to Gabriel. “And the fingerprints at the scene . . . Didn’t Mr. Fiske tell you that he visited Mr. Sommers’s office at certain times?”
“Yes, he said that, but he would not tell us when he had last been there.”
