There were two defendants. Scott Hyman was small-fry, the retail front end who’d sold a few films to an undercover cop and was supposed to connect him with the wholesaler for the big purchase. He was young, even vulnerable looking, showing up for court every day with the same oversized sweater hanging on his scrawny frame. When I learned that his own parents had run an adult bookstore, I wondered what kind of a childhood he’d had. His partner Clemente D’Alessio cut a much less sympathetic figure, stocky with slicked-back hair and a pockmarked face, a garish gold crucifix hanging on his chest. If he wasn’t the brains of a bigger operation, he was at least smart enough to stay out of sight. Everything we had on him was circumstantial and hinged on identifying his voice in a single recorded phone call. My plan was to implicate them both in the same transaction, focusing on the link between retail and wholesale.
The case had its weaknesses. The wholesale deal—selling up to three hundred films to the undercover agent—was never consummated, because the police couldn’t come up with the cash fast enough. They tried to stall, but D’Alessio got spooked and backed off. Then it took them six months before they got around to arresting him. They hadn’t made my job easy. In a case where police credibility was essential, where so much rested on the testimony of the undercover cop, a lot had actually been bungled. Even the crucial phone call—Hyman calling D’Alessio on tape—was arguably tainted, the call having been placed minutes after Hyman was in custody, before he’d had access to counsel. On the other hand, the sloppiness of the investigation didn’t mean those guys weren’t guilty, only that I would have to work that much harder. Fortunately, I got plenty of able help from my second seat, Karen Greve Milton, and it was a relief to share the emotional weight of the case as well as the workload.
The first day and opening arguments were more nerve-racking than any I had experienced in a while. I remembered how a bureau chief had advised another female ADA. “Handle it like a man,” he told her. “Go to the bathroom and throw up.” The laugh was sufficient to quell my stomach. I’ve since accepted that all trial lawyers get nervous, even some judges, and the day you find being in court routine enough that you feel relaxed will probably be a day you’ll regret.
D’Alessio’s attorney was a high-priced criminal defense lawyer with more than twenty years of trial experience, often on high-profile cases. A large man with surprisingly quick reflexes and a nose for publicity, he was intimidating on many levels. He poured on his rhetoric liberally and dripped condescension. Condescending to the prosecutor might be a tactic, but he was sloppy with it, and it sloshed onto the jury sometimes, which can be very damaging. I made a mental note to be extra polite to the panel and acknowledge the inconvenience we were putting them through.
The defense might have argued entrapment, but they chose not to. Instead, Hyman’s attorney went for “diminished capability.” Apparently, Hyman was addicted to quaaludes, and in exchange for them he supplied a pharmacist with child pornography. It was the pharmacist who, after the police had picked him up for another crime, turned informant, initially setting up Hyman with the undercover cop. The defense contended that Hyman only supplied the porn to keep the drugs flowing, and the drugs had in turn impaired his judgment.
Diminished capability is always a flimsy argument at best. It has no legal standing, and I could see maybe five different ways to knock it down. But the attorney dragged it out into an endless distraction, ordering the federal prescription records and bringing the pharmacist in to testify. As it happened, the pharmacist was under federal indictment on so many other charges that he had trouble keeping track of what his immunity covered. He couldn’t say much at all. Another witness the defense had lined up was arrested on a completely separate charge while waiting outside the courtroom. It was hard to imagine a sleazier bunch of characters.
D’Alessio’s attorney decided on a mistaken-identity strategy: there was another Clem who worked in the same building, and he, the defense claimed, was obviously the one Hyman was speaking to in the incriminating phone call. So D’Alessio had found a way to remain invisible, even as he sat there at the defense table. I would have to find a way of using to our advantage that cloak of secrecy he’d wrapped around himself. That he’d evidently taken such pains to keep his hands clean despite a mountain of circumstantial evidence was entirely in keeping with our view that we had netted quite a big fish.
I presented my evidence over six long, methodical, painstaking days. There was so much stuff—piles of films, tapes, documents—that we had to wheel it into the courtroom on carts. I mapped the locations in detail, painting a scene of seedy storefronts with names like Peep-In, Show Palace, the Roxy Burlesque Theatre. This wasn’t just atmosphere. I needed the territory laid out clearly so as to lead the jury along the disjointed trail of evidence that came from the surveillance teams: Hyman coming and going between D’Alessio’s office and the vault where the films were kept; the brown paper bag seen here, seen there, seen going in and not coming out; the locations where conversations were caught on hidden mics …
Was I pushing the jurors too far by subjecting them to the tedium of listening to the undercover cops’ recordings? They had to suffer through long silences, incongruous music from the car radio while the clock hand swept slowly, and wait for a few damning words. But the tapes left no doubt about the nature of what was happening. You could hear Hyman boasting about other sales he’d made, about the quality of the films he was offering, and explaining how films with younger kids, “kiddie porn,” were easier to come by; older kids got wise to the business and wanted their cut. He also talked about the wholesaler’s concern for secrecy. And then, finally, we get the link between Hyman and D’Alessio: “Just like the last time, yeah, same guy.”
The films were the very last piece of the puzzle I was helping the jury put together before I could rest my case. They were scratchy and grainy, the colors having shifted from having been copied too many times. They were silent: no sound, no dialogue, no plot. A bare bedroom was the set. The children appeared to be as young as seven or eight, no older than ten or eleven. Their little limbs were scrawny, bruised, and grimy. The lens zoomed in ruthlessly on genitals, probing and thrusting. Though you never saw or heard an adult presence, the awkward unmotivated action left no doubt about the ghost that gave orders from behind the camera.
I had thirteen films screened in all, each around ten or fifteen minutes. As the previous one rewound, the police officer would recite the litany of identification for the next one, and we all braced ourselves. Midway through the screenings, I noticed the journalist who had been sitting in the gallery every day, following the case for a book she was writing. She had taken off her glasses in a quiet refusal to see more and was staring sadly into space. The members of the jury didn’t have that choice.
My summation didn’t need rhetoric. The facts were damning enough. All I needed to do was to show how they were connected with relentless logic, step-by-step, leaving no piece out. I tried to put myself in the jurors’ shoes and anticipate any possible misgiving or misunderstanding. Would they balk at the circumstantial nature of the evidence against D’Alessio? Words like “circumstantial” carry an exaggerated load when you consider the degree to which most of us live our lives by inference. Keep it simple, straightforward, I reminded myself. This was a panel of citizens, not legal scholars. Having exposed them to enough horror, I addressed them with a bit of humor. How did your mother know it was you whenever you raided the cookie jar? I asked them. Only one of her kids was too short to reach it without the stepladder. And say you forgot to put the stepladder away, left it out there covered with cookie crumbs—it was a pretty safe bet the culprit was you and not one of your bigger siblings.
My closing ran two and a half hours. The judge took another two hours to charge the jury, reviewing all the elements of the law. It was early evening by the time they began their deliberations. But by the end of the next day, the jury forewoman was reading the verdict, pronouncing “guilty” eighty-
six times—forty-three counts for each defendant. Hyman and D’Alessio had expected this; they had bail on hand.
But there remained the matter of the sentencing. I had seen cases in which defendants found guilty on all counts had evaded the full weight of justice because a single jurist was, for one reason or another, unwilling to impose it. In the conversations we had taped, when Hyman bragged about other crimes—drug deals and credit card scams—he said he never worried about getting caught. When it came time for sentencing, he said, you just had to keep postponing until you got the right judge. I could not let that happen. When we reconvened a month later, I pressed for the maximum. And when D’Alessio’s attorney offered a profoundly offensive analogy—the maximum here, he said, would be like twenty years for possession of a single joint—my answer came with a fury so controlled that I doubt it registered as fury, but I felt it.
“In those films you see children about the age of seven and eight engaged in activities which are normally reserved for an adult bedroom,” I said, hoping now to make the moral case that I had the films make for me to the jury. “But it was more than that, Your Honor. There was an eight-year-old girl in one of the films, a small girl depersonalized to the extent that we don’t even know her name or who she is, but she is a human being. An eight-year-old girl on a film was directed offstage to engage in acts which I am not sure she fully understood. That young girl was robbed and she was raped. She was raped of her virginity and her innocence by the individuals who produced those films. In a sense, her innocence was murdered … That is not the equivalent, when we request our sentence, of selling a stick of marijuana. When you sell a stick of marijuana, the buyer and the seller can make free choices. The children could not.”
D’Alessio got three and a half to seven years; Hyman got two to six.
Earlier, Bob Morgenthau had offered me a promotion to head the Juvenile Office. My work on this trial had got him thinking that this might be a specialty area for me and asking himself whether the office needed a dedicated unit for child pornography. My refusal of his offer was instantaneous, an instinctive gesture of self-preservation. I knew I couldn’t witness that much sorrow and depravity without drowning in it. It was time for me to move on.
WHEN THE CHILD PORNOGRAPHY CASE was wrapped up, I took a brief vacation in Puerto Rico, but my mind was back in New York, and in particular on my cousin Nelson, who had reentered my life. After disappearing for about eight years through the worst of his addiction, he had somehow managed to join the military and clean up. There would still be ups and downs, but he didn’t lose touch with the family again, and so gradually we had been able to reestablish our connection. The worst had seemed long past when he married Pamela. She had a daughter that he cherished as his own. They had just learned that a second child was on the way when Nelson was diagnosed with AIDS. His was one of the very first cases linked to needle use, just before awareness of the disease exploded in the public consciousness.
Nelson, like me, had had a special connection with Abuelita, and it didn’t end when she died. His old premonitions of an early death were haunting him now. He told me he could hear ghostly trumpets. “Abuelita is calling me, and I’m telling her I’m not ready. I want to live to see my child born.” He would, but not much longer than that, the end coming before his thirtieth birthday. In his last weeks, we would have many talks for hours at a stretch, slipping into the transparent ease we’d had in childhood, as if making up for lost time. I hadn’t understood until then that one could be addicted to drugs and yet function normally in the world, holding a job and supporting a family. Nelson wasn’t robbing people to get his fix; he wasn’t shooting up in stairwells. He managed his addiction like a chronic disease, not unlike my diabetes.
I told him how I had been dazzled by his brilliance and his limitless curiosity about how the world works. And how I despaired of ever matching up to him. He looked at me and shook his head. “You really don’t understand, do you? I’ve always been in awe of you. There was nothing you couldn’t learn if you set your mind to it. You would just study until you figured it out. I can’t do that; I never could. That’s why I couldn’t finish college, why I couldn’t stick with a job. I didn’t have the will. That determination that you have is special. It’s a different kind of intelligence.”
One day after little Nelson had arrived, we talked about his happiness at his son’s birth and his sadness at the prospect of not being there for his children. We talked as well about the time a couple of months earlier, before his condition had gotten really bad, when he’d asked me to give him a ride to run an errand. He could no longer get around easily, and there was someone he needed to see, just for a little while. He asked me to wait, and so I sat in the car, parked outside the run-down tenement in Hunts Point, just a few blocks from where Abuelita used to live. I figured this was an old friend to whom he wanted to say his good-byes while he still could. But as he now confessed, inside he’d been scoring heroin. I wanted to kick myself—how could anyone, let alone an assistant district attorney who’d seen everything I’d seen, be so naive? I recited that essential lesson of Papi’s, simplistic but also simply true: Good people can do bad things, make bad choices. It doesn’t make them bad people.
As he begged me to forgive him, there was a hint of delirium fueling the shame and sadness in his voice. But I knew forgiveness was beside the point. I myself was carrying a load of survivor’s guilt. Who was going to forgive me? Why was I not lying in that hospital bed? How was it I had escaped when my soul’s twin, my smarter half, once joined to me at the hip, had not? His request only made the load heavier. My God, what a waste.
JULY 1983, I’m at the house on Fire Island. I wake very early from a deep sleep. It’s still dark out, but I’m completely alert, even though I was up late last night. The clock says four thirty. I throw on jeans and a T-shirt and walk out to the bay. I sit on the dock and watch the deep blue draining from the sky in the early dawn. The sun is still hidden behind the island. It’s probably just breaking the edge of the Atlantic. Nelson is here, I can feel him. He’s come to say good-bye. Morning erases the last stars and dissolves the remaining night.
I walked back to the house to find the phone ringing: Nelson’s dad. “Sonia, it’s Benny,” he started. I knew how difficult it was for him to make this call.
“Yo ya sé. I already know. I’ll be on the first ferry home.”
Twenty-Six
IF I TRY TO understand in my heart how it could happen that two children so closely matched could meet such different fates, I enter a subterranean world of nightmares—the sudden panic when Nelson’s hand slips from mine in the press of the crowd, the monster I evade but he cannot.
Reason seems a better defense against the pain. Let me understand in my logical way what made the difference between two children who began almost as twins, inseparable and, in our own eyes, virtually identical. Almost but not quite: he was smarter; he had the father I wished for, though we shared Abuelita’s special blessing. Why did I endure, even thrive, where he failed, consumed by the same dangers that had surrounded me?
Some of it can be laid at the door of machismo, the culture that pushes boys out onto the streets while protecting girls, but there’s more. Nelson had mentioned it that day at the hospital: the one thing I had that he lacked. Call it what you like: discipline, determination, perseverance, the force of will. Even apart from his saying so, I knew that it had made all the difference in my life. If only I could bottle it, I’d share it with every kid in America. But where does it come from?
Good habits and hard work matter, but they are only the expressions of it, an effect rather than the cause. What is the source? I know that my competitive spirit—my drive to win, my fear of failure, my desire constantly to outdo myself—bubbles up from very deep within my personality. It’s rarely directed at others; I compete with myself. But if ambition only feeds the ego and self-regard, what does it avail? The urge to win might serve to accumulate life’s material pleasures, but th
ose pleasures can be no less ephemeral and addictive than Nelson’s high and often just another way of becoming the biggest and baddest on the block.
What Nelson saw driving me arises from a different kind of aspiration: the desire to do for others, to help make things right for them. Strange ambition for a child? Some might say so, but I’ve been aware of it for as long as I can remember. Self-aggrandizing? I’ve never felt such release from the awkward hold of ego as when helping others. Reaction to early years in a house of pain? Perhaps, but at some point I let go of my compulsion to please: it’s my own standard of character that I need to meet. In any case, I’m sure of having learned it from others, my examples. And very good ones.
IF I TRY to imagine my most immediate examples of selfless love, instinct leads me first to those who were closest: Abuelita, healer and protector, with her overflowing generosity of spirit; and my mother, visiting nurse and confidante to the whole neighborhood.
My understanding of my survival was bound up in every way with the fact of my grandmother’s protection. It amounted to more than a refuge from the chaos at home: my sense of being under safekeeping, physically and metaphysically. It had given me the will to manage my illness, to overcome my insufficiencies at school, and ultimately to imagine the most improbable of possibilities for my life. And that feeling of Abuelita’s protection would only grow after her death, made manifest in countless ways, from bizarrely fortuitous interventions that would save my life in diabetic crises to strange alignments of circumstances that have favored me unreasonably. Things that might easily have happened to me somehow did not; things that were not likely to happen for me somehow did. This seemed like luck with a purpose.
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