A Matter of Conviction

by Ed McBain

  Bud is on his feet now. There is no anger on his face. All rage has been replaced by the cold deadening logic of the battle. He knows now that Danny is not a pushover. He knows, too, that he is being watched by the other boys in the gang, and that his honor is at stake. Without hesitation, moving intuitively and economically, he reaches into his pants pocket, takes out a switch blade and snaps it open.)

  BUD: Okay, pal.

  DANNY: You better put that away before I ram it down your throat.

  BUD: We’ll see who’s gonna ram what where!

  (He charges at Danny, the knife extended. He is kicked instantly and excruciatingly in the groin, the impetus of his rush adding to the power of the blow. He doubles over, the knife still clenched in his hand. Danny reaches down, seizing him by the collar, jerking him to his feet and slamming him up against the snowbank. The knife drops from Bud’s hand. Danny hits him once, a short sharp blow that drops Bud to the pavement again. He lies there very still as Danny picks up the knife, steps on the blade and snaps it off at the handle. He reaches down for Bud then, rolls him over and counts out twenty-seven cents in change from his pocket, no more, no less. The other boys watch. Danny gets to his feet and faces them.)

  DANNY: Anybody else want to settle this now? Or do I wait for some dark night to get stabbed in the back?

  DIABLO: What’s your name, kid?

  DANNY: Danny Di Pace. What’s yours?

  DIABLO: I’ll ask the questions.

  DANNY: Yeah? Ask some to your crumby friend on the sidewalk. I got better things to do than stand around with you. (He starts off down the street.)

  DIABLO: Hey! Hey, Danny!

  DANNY (stopping, turning): Yeah?

  DIABLO (grinning): My name’s Diablo Degenero. (He pauses.) Why don’t you come have a hot chocolate?

  DANNY (pausing, then returning the smile): Okay, I think I will.

  “Why’d you let him get away with it?” Hank asked.

  “I don’t know,” Diablo said. “Maybe ’cause Bud’s got a hot head, and the kid wasn’t really looking for no trouble. Ain’t that right, Bud?”

  Sitting in the booth alongside Diablo, Bud nodded and said, “Yeah, I got a hot head. Danny’s all right. We got no bad blood between us.”

  “But he beat you up,” Hank said.

  “So? I tried to con him out of his butts, didn’t I? He had a right to get sore. I’da done the same thing.”

  “Did he come in here for the hot chocolate?”

  “Sure,” Diablo said. “We had a long talk. He told us all about where he was from.”

  “Then what?”

  “Then he went home. And that night we waited for him, and we beat the crap outa him. Just to let him know where he stood.”

  “But I thought—”

  “Oh, sure,” Diablo said, “we didn’t give it to him that afternoon. But this was a different thing. I mean, what’s right is right. Bud stepped out of line, and Danny had the right to clobber him. We only beat him up that night so he wouldn’t get the idea he could go around slamming a Thunderbird whenever he wanted to.”

  “What did he do?”

  “When? When we nailed him?”

  “Yes.”

  “Nothing. What could he do? He fought like a bastard, but we were twelve guys. We nailed him good. We almost busted his arms for him.”

  “And then what?”

  “Then the next day I went around to see him. I asked him to join the club. He said he didn’t want to join no club that was full of japs. I told him we were only trying to show him what was what in the neighborhood. I told him we realized he was a good man with his fists, and we’d like him on the club now.”

  “What did he say?”

  “He said we should shove the club. He also said that if ever we jumped him again, we’d better kill him. Because if we didn’t, if we only for example sent him to the hospital, he’d come around as soon as he could and kill the first Thunderbird he met on the street. You know something?”

  “What?”

  “I believed it. I told Dominick—that’s our president. Dominick said he sounded all right. He said we shouldn’t bother him again. So we never did. And, like I said, lots of times Danny’s come along with us when we go gang-busting. He’s all right.”

  “Then, in effect, it’s true that he’s not a member of the Thunderbirds.”

  “Yeah, that’s true. I suppose.”

  “Then what was he doing with two of you on the night of July tenth?”

  “You better ask him that, Mr. Bell,” Diablo said. “I guess he’s the only one who’d know.”

  “I see. Thank you.” Hank rose and started to go.

  “Ain’t you gonna wait for your coffee?” Diablo asked. “I ordered coffee, Mr. Bell.”

  “No, thank you. I want to get back to the office.”

  “A real game kid, Danny,” Diablo said. “Twelve of us beat the crap outa him. Twelve of us. And we were using bottles and everything. You know many guys who could take a beating from twelve other guys with bottles?”

  “No, I don’t.”

  “Think about it, Mr. Bell. It’s enough to give you the shivers. Twelve guys with bottles. Just think of it.”

  “I will.”

  “And you might start thinking about how innocent them three kids are. You might start thinking about that, too.”

  “Might I?”

  “Yeah.” Diablo paused, smiling. “It’s a shame you can’t stay for your coffee. I enjoyed the chat. It reminds me of the chat I had with Danny that afternoon—when I bought him the hot chocolate. You remember me telling you about that, don’t you, Mr. Bell? About buying him hot chocolate? And then about the twelve of us beating him up that very same night?” Diablo’s smile widened. “Boy,” he said, “it’s enough to give you the shivers.”

  Their eyes met. Hank said nothing. Without haste, he walked out of the candy store.

  Behind him, still smiling, Diablo said, “We’ll be seeing you, Mr. Bell.”

  SIX

  Holmes came into the office the moment Hank returned.

  “How’s it going?” he asked.

  “Fine,” Hank said.

  “Got a few items of interest for you. Want to hear them?”

  “Sure. Have you had lunch yet?”

  “No. Are you going out, or shall we send for something?”

  “I’d just as soon have a sandwich in the office. There’s a menu in one of the drawers there.”

  Holmes found the menu while Hank took off his jacket, rolled up his sleeves and loosened his tie.

  “I’ll just take a ham sandwich and a chocolate malted,” Hank said.

  Holmes nodded and began dialing. “I understand you’ve had some cops assigned to your house. How come?”

  “I got a threatening letter the other day. I’m not looking for reprisals against my family.”

  “Mmm,” Holmes said, and he gave the lunch order into the phone. When he hung up, he asked, “Still think we’ve got a good case?”

  “Yes.”

  “Heard anything further from the boy’s mother?”

  “No. But I found out one of the things she’d told me was true. Di Pace wasn’t actually a member of the gang.”

  “That won’t help him much.”

  “No, I don’t see how it will. Besides, he was closely enough allied with the gang so that he can really be considered a member. His nonmember status is more a mental trick than a fact.”

  “How do you mean?”

  “For reasons of his own, Danny Di Pace preferred to think of himself as a loner even though he engaged in gang activities and was, for all practical intents and purposes, a member of the gang.”

  “I see. What do you suppose the line of defense will be?”

  “For Reardon and Di Pace, they’ll attempt to justify the homicide. For the Aposto boy, mental incompetency.”

  “You ready to fight them?”

  “As for the self-defense, we still haven’t turned up the knife Morrez was suppose
d to have pulled. And his blindness would seem to eliminate any foolish theories about his being the attacker. As for the Aposto boy, I’d like him examined by Bellevue. Would you arrange for his remand, Ephraim?”

  “Be happy to. What’s your next move?”

  “I’m going up to Spanish Harlem tomorrow. I want to track down this knife thing. If they’re going to use it, I want to be prepared. What’d you have to tell me, Ephraim?”

  “First of all, Judge Samalson is going to try the case.”

  “What?”

  “I thought you’d be surprised. Defense counsel raised a hell of a stink. Claimed he was a friend of yours, claimed you studied under him at N.Y.U., claimed he was prejudiced in your favor.”

  “That’s nonsense.”

  “Of course. But it didn’t stop them from asking for a change of venue.”

  “That must have sat very well with Abe.”

  “Abe Samalson is the fairest judge we’ve got on the bench. In words of one syllable, he denied the motion by telling the defense to go straight to hell.”

  “Good for Abe!”

  “This didn’t stop them. They insisted on a change of venue. Claimed the local press had made prejudicial and inflammatory statements about the case. Abe still told them to go to hell. He recognized their motion for just what it was. Another dilatory tactic. This makes the third. First they made a motion to examine the grand-jury minutes on the grounds that the indictment was handed down without proper legal evidence. The motion was denied. Next they asked for a bill of particulars identifying the witnesses, the place, the weapons—but this only gained them a week. The trial is still set for next month, and Samalson will still be hearing it. Are you pleased?”

  “Yes. I like Abe. He’s a good man.”

  “Seen him recently?”

  Hank suddenly laughed. “I think he’s coming to dinner this weekend!”

  “Oh, great,” Holmes said. “I’d advise you not to discuss the case.”

  “Thanks. I didn’t plan to.”

  The phone on Hank’s desk buzzed. He picked up the receiver.

  “Yes?”

  “Hank, this is Dave on the desk. Two people here for you. One’s got a carton full of lunch.”

  “Who’s the other?”

  “Guy named Barton. Claims he’s a reporter. Ever hear of him?”

  “Mike Barton?”

  “Yes.”

  “I’ve heard of him. What does he want?”

  “Wants to talk to you.”

  “Tell him we’re just about to have lunch. If he doesn’t mind my mumbling around a sandwich, he’s welcome to join us. And send it in, Dave. I’m starved.”

  The lunch and Mike Barton came into the office together. Barton was a tall man with the shoulders and chest of a truck driver. His lips were thick, and attention was drawn to his mouth by a heavy black mustache which sat under his nose like a smear of printer’s ink. He extended his hand immediately.

  “Mr. Bell?” he asked.

  “How do you do?” Hank said, and he took the hand. “Ephraim Holmes, chief of the bureau. Ephraim, Mr. Barton.”

  “We’ve met,” Holmes said dryly.

  “Having a tête-à-tête with your star prosecutor, Sherlock?”

  “Just having lunch with him, Mike,” Holmes said, taking the sandwiches and drinks out of the cardboard box. He paid the delivery boy and then made himself comfortable in one of the chairs, spreading the food out on the desk top.

  “What’s on your mind, Mr. Barton?” Hank asked.

  “Good question,” Barton said, smiling. When he smiled, his teeth were startlingly white against the black mustache. His eyes, too, seemed to gleam with reflected pinpoint light, a deep brown against the wide expanse of his face. He has a very big head, Hank found himself thinking. It’s too bad he’s not in the theater. “What’s on everybody’s mind these days?” Barton continued.

  Hank unwrapped his sandwich and began munching on it. “Well, I’m not qualified to speak for everybody. Only myself.”

  “And what’s on your mind?”

  “The Morrez case.”

  “The very same thing that’s on my mind, Mr. Bell.”

  “Is that why you’re here?”

  “That’s exactly why I’m here. Have you been reading our paper lately?”

  “I’m sorry,” Hank said. “I don’t read the tabloids.”

  “Snobbery in a public official?”

  “Not at all. I just never got into the habit.”

  “Our tabloid happens to be a good one,” Barton said.

  “What are you running this week?” Holmes asked dryly. “An exposé on Park Avenue call houses?”

  Barton chuckled, but there was no humor in the laugh. “We fill a public need,” he said. “And we also perform a public service.”

  “Sure. You tell the average citizen where he can go to get laid. You give the Vice Squad extra headaches.”

  “We also ran a series on the Vice Squad,” Barton said.

  “Your paper stinks,” Holmes said flatly. “It’s a cheap, sensational, yellow tabloid which poses under the banner of liberalism to sell extra copies and advertising. What do you want here?”

  “I came to talk to Mr. Bell,” Barton said, his brows pulling down darkly.

  “I’m chief of the bureau,” Holmes answered, picking up the implied challenge. “I can hear anything you’ve got to say to Mr. Bell.”

  “Okay,” Barton said. “How does it look so far?”

  “How does what look?” Hank asked.

  “The case. Do you think they’ll burn?”

  “I’m prosecuting for murder in the first degree,” Hank said. “That’s what the indictment read.”

  “What about this story they’ve concocted about the Morrez kid carrying a knife and attacking them?”

  “I haven’t investigated it thoroughly as yet.”

  “Well, when do you plan on starting?”

  “I’m afraid that’s my business, Mr. Barton.”

  “Is it? I thought you were a public servant.”

  “I am.”

  “Then it’s the public’s business, too.”

  “If the public were capable of trying this case, I might agree with you, Mr. Barton. Unfortunately, the public hasn’t been trained in the law, and I have. And I’ll investigate and prepare the case as I see fit.”

  “No matter what the public wants?”

  “How do you mean?”

  “The public wants those three kids to die in the electric chair. I know it, and you know it, too.”

  “So?”

  “So what are you doing about it?”

  “What would you like me to do, Mr. Barton? Personally transport them to Sing Sing and throw the switch on them tomorrow? They’re entitled to a fair trial.”

  “No one’s denying them their right to justice. But there’s only one justice in this case, and it’s apparent to everyone. They killed a defenseless kid in cold blood. The public demands retribution!”

  “Are you speaking for the public, or for yourself?”

  “I’m speaking for both.”

  “You’d make a good foreman of a lynching party, Mr. Barton,” Hank said. “I still don’t know why you came here.”

  “To find out how you felt about this case.”

  “This isn’t the first murder case I’ve ever tried. I feel about it the way I’ve felt about every other one. I’m going to do my job the best way I know how.”

  “And does that job involve sending those kids to the chair?”

  “That job involves prosecuting for first-degree murder. I don’t deliver the sentences in this county. If the boys are convicted by a jury, Judge Samalson will determine the sentence.”

  “The death sentence is mandatory, and you know it.”

  “That’s true.”

  “Then if you succeed in prosecuting for first-degree murder, you will also succeed in sending those kids to the chair.”

  “The jury may ask for and receive lenien
cy, in which case a life sentence may be decided upon. It’s been done before.”

  “Is that what you’ll be trying for? A life sentence?”

  “That’s out of order!” Holmes snapped. “Don’t you answer that, Hank!”

  “Let me set you straight, Mr. Barton,” Hank said. “I’m going for a conviction in this case. I will present the facts as I understand them to the jury and the court. The jury will decide whether or not those facts, without any reasonable doubt, add up to first-degree murder. If they convict, Judge Samalson will determine the sentence. My job is not to seek vengeance or retribution. My job is to show that a crime was committed against the people of this county, and that the defendants I’m prosecuting are guilty of that crime.”

  “In other words, you don’t care whether they die or not?”

  “I’ll be prosecuting for—”

  “You haven’t answered my question.”

  “I wouldn’t dignify it.”

  “What’s the matter, Bell? Are you afraid of capital punishment?”

  “I’ve sent seven men to the electric chair since I became a public prosecutor,” Hank answered.

  “Have you ever sent any kids to the chair?”

  “I’ve never tried a murder case involving boys of this age, no.”

  “I see.” Barton paused. “Ever hear of a girl named Mary O’Brien, Mr. Bell?”

  Hank hesitated a moment. Holmes caught his eye.

  “Yes,” Hank said.

  “I spoke to her yesterday. I understand you played footsie with her when you were both kids.”

  “I think you’d better leave, Mr. Barton.”

  “Is Mary O’Brien—now Mary Di Pace—the reason for your reluctance to …”

  “Get out, Barton!”

  “… prosecute this case the way the public wants it prosecuted?”

  “You want me to throw you out, Barton?”

  “It’d take a bigger man than you, Mr. District Attorney,” Barton said. He grinned. “I was leaving anyway. Don’t miss tomorrow’s paper. It’ll curl your hair.” He turned to Holmes. “So long, Sherlock,” he said, and he left the office.