by Ed Gaffney
Now Zack stood up and walked over to a file cabinet. “Yeah, but then the detective wrote again about a different case she was working on.” He began to look through the correspondence folder in Babe’s case. “Here it is,” he said, pulling out the letter. “She’s trying to track down some fugitive. This guy had a part-time job at the same place Babe worked. He disappeared around the same time as the robbery.”
Terry put the magazine down. “What?” Zack could almost see his friend wrestling his attention away from the bathing suits and back to what Zack was saying. “Wait a minute. How does talking to a cop help Babe? I mean, good luck to the police finding their fugitive, but I’m sorry—please do it without interrogating our so-much-of-a-loser client.”
Normally, Zack would agree with Terry. But this was an unusual case.
“Yeah, I know what you mean, but I was wondering.” Zack sat back down in his chair and reached over for the Nerf football that was resting on his desk. Justin loved playing catch with Zack, but even for a six-year-old, he was amazingly bad at it. So far, the Nerf football had caused no injuries to the little guy, and had proven relatively easy for him to catch.
“Wondering what?”
Zack tossed the ball to Terry, who caught it with one hand. “I was just thinking that the way things stand right now, if we go to trial, we have basically nothing. We have no alibi, we have no explanation for how or why Babe might have been misidentified by the clerk, we have no explanation for how Babe’s hair was found with the victim’s body.”
Terry snorted. “Yeah, and that’s before our secret weapon starts testifying. As soon as the Babinator opens his mouth, it’s a lock that the jury will hook him for murder.”
“That’s why I was wondering if we should let him talk to this detective. The guy she’s looking for disappeared around the same time as the robbery. So far we haven’t been able—”
“You cannot be serious,” Terry interrupted, throwing the ball back to Zack. “Let this asshole talk to a cop? That’s all we need. This is Babe Gardiner here. The facts can only hurt us. Besides, how do you think this detective is going to handle it when Babe starts in with his ‘Maybe they’ll think I’m a liar’ routine? I’ll tell you one thing. I’m not going to be the one trying to cross-examine her.”
“I’m not saying we let him talk about this case,” Zack said. “I’m just thinking that we let him talk to her about the missing persons thing. Especially since it’s around the same time as the robbery. I don’t know.” Maybe Terry was right. Letting any client talk to the cops was pretty crazy. And letting Babe talk to the cops…
“Of course, we’ve got absolutely nothing to lose,” Terry said. “For all we know, Babe knows this guy did something and is protecting him. But still, letting that idiot start to babble—”
“That’s the thing,” Zack interrupted. “I’m not sure, but I thought maybe if Babe actually started talking about things around that time that he was confident wouldn’t get him in trouble, maybe he’d say something, or remember something, or, shit.” He shrugged and turned to Terry’s nephew. “I don’t know. This is all so crazy. What do you think, Sean?”
The young man had been following the conversation like a tennis match, doing little more than pivoting his head back and forth to watch whoever was talking. The question startled him, and he lost hold of the book he had been reading. It snapped shut abruptly in his lap, which startled him again.
“I, uh—” He cleared his throat. “It’s not a trap, is it? I mean, the cops. They aren’t trying to trick Babe into saying something they could use in the trial, are they?”
“I suppose they could be,” Zack responded.
“No freakin’ way.” Terry got up to pace. “I mean, don’t get me wrong. I wouldn’t put it past them to try anything to nail a defendant. But remember. This is Babe.” He shook his head as he reached up and straightened a row of books on the highest shelf in the bookcase opposite the chair he normally occupied. “The case they’ve got against him is so solid, I can’t see them wasting their time. And besides, that moron O’Neill has the whole county buying into his ‘Case Closed’ bullshit. They think they’ve got our guy cold. They are so done with this thing.”
Hampshire County District Attorney Francis X. O’Neill had made headlines several months ago with the announcement of his “Case Closed” program. It was a new philosophy of law enforcement purportedly designed to ensure that prosecutors and police were rededicated—whatever that meant—to getting quick and final resolution to all criminal cases. According to F.X., the public deserved such a system, because it gave them “the most efficient and effective criminal justice system that their tax dollars could buy.”
O’Neill was only a district attorney, so he had no official authority over anyone but assistant district attorneys, but the local cops had all bought into the plan anyway because what was good for F.X. was probably good for them, too. The cops knew that, in theory, the “Case Closed” program was supposed to be a revolutionary way to bring criminals to justice; but, in reality, it was nothing more than a publicity stunt to get O’Neill on the front pages so he had more momentum behind him when he announced that he was running for governor.
In practice, all it meant was that as soon as the police thought they had enough evidence to convict someone of a crime they were investigating, they passed the case on to the prosecutor’s office and moved on to another investigation. That was fine with the police. And as soon as the assistant district attorney handling the case got a conviction—either through a trial or a guilty plea—he or she was directed to never look at the case or the facts around it again. “Let convicted dogs lie,” declared F.X. He’d probably worked on that line for a long time.
“Case Closed” wasn’t so much about getting the guilty man. It was about getting any man. Quickly. And forever.
“So what do you think?” Zack asked his partner. Letting Babe talk to anyone was a gamble, but going forward with what they had was a sure bet—that he’d get convicted.
“I guess so,” Terry said, dropping himself back into his chair. “It can’t get much worse, can it? And maybe Detective—what’s her name?”
Zack picked up the letter again. “Demopolous.”
“Right. You never know. Maybe Detective Demopolous will make a scary face, Babe will confess, and we can all go home.”
TWELVE
MCI–WAKEFIELD INMATE DISCIPLINARY REPORT
Date:
June 1, 2004
Reporting Person:
Sergeant Fernau
Inmate Charged:
Rufus Gardiner
Rules Violated:
3, 4, 16
Charges:
Fighting, refusal to obey direct order, conduct dangerous to institution
Report: On May 31, 2004, while monitoring inmates at the basketball court, I and C.O. Yellen observed Inmate Roderick Rolle approach Inmate Gardiner and begin to speak to him. Gardiner began to walk away, and Rolle grabbed him by the front of the shirt.
Gardiner tried to pull away from Rolle, but while still speaking to Gardiner, Rolle began to slap Gardiner in the face. Gardiner began to struggle with Rolle, and slap back.
At that time, I reported the fight on my radio, called for backup at the basketball court, and initiated a lockdown. At that time C.O. Nucci was already responding, and I approached the inmates with him and C.O. Yellen, instructing them both to stand down. Rolle and Gardiner ignored our orders and continued to fight.
We then pulled the two apart. Gardiner was escorted to health services pending treatment for injuries received in the fight. Rolle was placed in segregation pending a hearing on this matter.
Recommendations: Rolle—major infraction—instigating a fight, refusal to obey orders, conduct dangerous to the safe operation of the institution. Gardiner—minor infraction—fighting, refusal to obey orders, conduct dangerous to the safe operation of the institution.
MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO SUPPRESS
This
matter came before the court on defendant’s Motion to Suppress evidence on grounds that it was obtained by police as the result of an unconstitutional search of the defendant’s premises….
The testimony of the police officers was not fully credible. Recognizing this, the Commonwealth advances a novel argument: the volume of drugs seized by the police establishes the severity and the extent of the criminal activity of the defendant, and public policy demands that this case establish an exception to the exclusionary rule, such that the evidence may be used at trial against the defendant.
The Commonwealth’s argument, however, ignores the fact that the exclusionary rule was established by the United States Supreme Court with full recognition that, occasionally, defendants who committed serious crimes would not suffer successful prosecution….
Accordingly, it is the order of this court that the defendant’s Motion to Suppress evidence is ALLOWED, and in accordance with the representations of the Commonwealth, the case against the defendant is to be dismissed….
By order of the Court,
Robert K. Park, Justice of the Superior Court
(Commonwealth v. Tippett, Trial Paper Number 12)
August 2, 2004
Five weeks before the Babe Gardiner trial
ASSISTANT DISTRICT ATTORNEY LOUIS LOVELL had just logged on to do some research at the exact moment that his boss, District Attorney Francis “F.X.” O’Neill, learned of the outcome of the Tippett case.
“Goddammit!” bellowed F.X. from down the hall. “Is he in his office? I told him this is exactly what I did not want to happen. Where is he?”
Warren Tippett was a drug dealer who had been caught with a huge stash of cocaine in his apartment. But the cops who had found the drugs had been about as bad as cops could be, and that virtually guaranteed the drugs couldn’t be used as evidence in a trial.
Knowing that the case was likely to be thrown out because of the bad search, Tippett’s attorney had told Louis that she’d accept a guilty plea, but only to a reduced charge—straight possession, instead of possession with intent to distribute—and with a ludicrously inappropriate sentence.
So Louis was faced with a dilemma. He could accept a deal that was a mockery of justice. Or he could push forward and try to make some argument that even though the cops had probably violated the Constitution, the nature of the crime was so serious that the drugs should be admitted as evidence anyway.
Against what he knew his boss would want, Louis rejected the plea bargain. Because bargains like that were just wrong.
But at the suppression hearing, where Louis hoped to convince the judge that the case should go forward, it became clear that the cops not only violated the federal and state constitutions in ridiculously blatant ways when they searched the place for the drugs, but they were shamelessly lying about what they did.
It was beyond embarrassing.
Thank goodness Judge Park had seen through their baloney. It would have been awful if one of Louis’s witnesses had fooled a judge into getting a totally false picture of what had happened.
But predictably, Judge Park had also recognized that what the cops had done had effectively guaranteed that the Commonwealth would be unable to use the drugs as evidence against Tippett. He rejected all of Louis’s arguments to the contrary.
Good-bye drugs, good-bye case.
Hello screaming F.X. O’Neill.
Even when he was calm, F.X.’s natural skin tone and prematurely gray hair made him look a little red in the face. But when he was angry, he looked like a human fire truck.
And he was angry now.
“Didn’t we talk about this?” F.X. raged as he barged into the crowded office. “Didn’t I tell you that it would be much better if you took a plea than if this case got kicked because of some stupid suppression motion?” He was holding a copy of Judge Park’s decision in his hand. Crushing it, actually. “This is really going to screw me in the press, you know. I can’t wait until I start to see the headlines.” He shut his eyes. “They’re going to say ‘Case Closed.’ I just know they are.”
F.X. was probably right.
Of course, any mocking in the newspapers that he got, he probably deserved.
It was hard not to be cynical about a boss who was obviously more interested in convicting anyone of any crime than in convicting the right person of the appropriate crime.
It wasn’t that F.X. was out to put innocent people in jail. Far from it. He wanted to lock up the bad guys just as much as the rest of them.
It’s just that convictions were so important to the politically motivated district attorney that he didn’t seem particularly worried when, during the course of a case, doubt arose as to the guilt of a defendant. Nor did he seem overly concerned with things like the Canons of Ethics that supposedly governed all lawyers’ actions, or even ethics in general. For F.X., the ends pretty much always justified the means. And in the world of district attorneys, the ends were convictions.
“I like you, Louis, I really do. But if this is the way you’re going to handle your files, I think you and I might begin to have a problem. In fact, we already do have a problem with the Gardiner case.”
Louis should have realized that he was going to run into such problems right from the start of his employment with the District Attorney’s Office. His very first meeting with his new boss had been highlighted by a strange mix of small talk—gossip about judges and lawyers whom Louis had never heard of—and a fatherly recitation of F.X. O’Neill’s twin philosophies of criminal law:
—In the language of prosecutors, the word “guilty” has only one translation: job well done. So you can guess what “not guilty” means.
—An assistant district attorney’s job is simple: do whatever it takes to convict the defendant. Leave the rest to somebody else.
It wasn’t that Louis had ignored F.X. It was just impossible to accept that the man really believed exactly what he had said. That kind of language only made sense if you looked at criminal trials like high school football games. Because if you truly understood criminal justice, what F.X. had said to Louis in that first meeting was flat-out wrong.
A prosecutor’s duty was not simply to get convictions. Some of the most eloquent words ever uttered by American judges dealt with the vital role that prosecutors played in ensuring juries and judges learn the truth—whatever it might be—surrounding an alleged crime. In fact, Louis’s favorite quote of all time was from former Supreme Court Justice Felix Frankfurter, which had been inscribed into a beautiful curved wall on the first floor of the new federal courthouse in Boston: Justice is but truth in action.
Not exactly one of the foundations of the F.X. O’Neill school of criminal law.
Instead, with the “Case Closed” program now in full swing, it was almost like F.X. had taken a major step toward institutionalizing a complete disregard for the truth in the criminal justice system. What difference did it make what really happened? The cops did what they were supposed to do—they arrested somebody. Now it was time for the District Attorney’s Office to finish the job and get that somebody behind bars.
Louis was extremely proud of his role as an assistant district attorney. But he was not just a hired gun hoping to notch his belt with a gaudy number of guilty verdicts. He was a part of a great system that was, in turn, a part of the greatest country in the world. And if the system produced a certain number of acquittals, that did not necessarily mean that prosecutors were failing to do their jobs.
In some cases, it might mean that the police failed to do theirs—say, when they completely trampled someone’s constitutional rights when they searched his apartment without a warrant.
“I understand, F.X., but the best plea deal I could make was eighteen months for simple possession under twenty-eight grams. The guy had over thirty pounds of cocaine in his place. I just couldn’t in good conscience put your office in the position of accepting that kind of a deal. It would have made you look terrible.” It would have made the whole
system look terrible, in fact, but F.X. was pretty exclusively worried about how he would look, so Louis decided to focus on that, and see what happened.
“Look terrible? Are you kidding? How do you think I’m going to look when this decision is pasted all over the front pages?” F.X.’s volume knob was still up to ten, and his face still looked like he had spent the last week and a half on a sunny beach in Florida. “Do you think they’re going to blame the cops for this? Absolutely not. This is going to land right on me.…” His voice trailed off, and his eyes narrowed a bit. “Who was the judge on this one again?”
“Judge Park.”
F.X. pursed his lips, looked over at the framed diplomas that Louis had on his wall, and took a noisy breath. “Where’s he from? Korea, right? Didn’t he hand out that three-to-five for that rape thing last year? Maybe we can drop this on him,” he said, in a much more controlled voice. “I’ll call Denny Garrity over at the Post and see what he thinks.”
Then he walked over to the office door, closed it, and turned back to Louis, meeting his gaze directly. “I’m going to tell you something now, Louis, that you had better remember.” Although the district attorney had lowered his voice, a vein in his florid forehead was frighteningly visible. He was still extremely angry.
“When I heard that you rejected that guilty plea and went ahead with the suppression hearing, I thought that you were going to lose. So I decided to take the Gardiner case away from you.”
Louis inhaled deeply. He had been afraid that it was going to come down to this.
He had worked on misdemeanors and low-level crimes for five years and had just started to take on the most serious felony cases. He was good at his job, and he loved the fact that by being a part of the criminal justice system, he was helping make his society safe and fair, and his country strong.
But there was no way he was going to be able to keep working, at least in this office, if he was going to be demoted for refusing to accept a plea bargain that served nobody’s purposes except his boss’s personal political one. But before he got a chance to respond, F.X. kept talking.
