“Yeah, I know that, but Waley mentions the dissent in his points and authorities, so we have to look at it. Why he mentioned it, I have no idea. It’s a dissent, Whizzer White sticking up for the prosecution as usual, and getting creamed, but Waley uses it to make a general point about the use of interpersonal confidence to draw out a confession. It’s all part of the weave here; he’s spreading a net to catch the attention of the judge, tilt him his way.” Karp tapped his teeth with a pencil, a habitual gesture. Then he looked up at Collins and said, “You ever read a pair of motions like this?” He indicated the actual motion documents, sitting alone on one side of his desk, festooned like barbaric brides with torn strips of yellow bond indicating legal references.
“They’re pretty good,” admitted Collins. “Dense argument, the guy knows the law.”
“Pretty good? Terry, you’re pretty good, I’m very good. This”—he tapped the motions—“is fucking Mozart. I’m reading this, and I’m thinking, yeah, he’s right, we don’t have much of a case. Peoples is eating this up, I know it. Do you know him at all well? Peoples, I mean.”
“Just by rep,” said Collins, settling himself on the edge of the desk. “He’s real smart, a little arrogant maybe. No nonsense in the courtroom. Hates to be reversed on appeal. In general, a prosecutor’s judge; I mean, you present a decent case, he’ll support you, he’ll resist the usual defense scams pretty well.” He shrugged. “That’s about all I know. All in all, I think it was a good break getting him for Rohbling.”
“Maybe,” said Karp. “I notice you left out the first thing an average person would mention about him.”
Collins wrinkled his brow for a second or two. “You mean that he’s black? Jesus, Butch, the guy’s to the right of Reagan. He hates affirmative action, he never gives any credence to race-based exculpatory arguments …” He checked himself and then added, “Oh, I get it. The bend over backward to be fair to the white kid accused of killing black women. You think that’s going to be important?”
“I don’t know, but I would bet on Peoples taking the concept of fairness to its extreme limit. If we win one on the merits, it’s going to take twice as much to win the next one, because Peoples is going to want to keep the score even. On the other hand, we won’t get any freebies; we can forget the ‘prosecutor’s judge’ business, especially with Waley in there. Not a cheap-trick guy, Waley.”
Karp massaged his chest and took several deep breaths to relieve the tension he felt growing in his chest. Then he stretched and said, “My head’s too full of details. I need to step back and see how it’s fitting together. Why don’t you tell me the case?”
“Tell you … ?”
“Yeah, tell me the case. Why do we have this mutt behind bars? Tell me a story. Amuse me.”
Collins smiled and got to his feet. As he spoke, he paced back and forth, four feet in one direction, four in the other, as if he were in court.
“Okay. Saturday evening, April 20, a disturbance is heard by neighbors of Jane Hughes, age sixty-eight, of 1718 St. Nicholas Avenue. A witness sees a slightly built, short-haired, neatly dressed black man leaving that building at around ten-thirty. He’s carrying a blue fabric suitcase. The following day Mrs. Hughes’s son arrives to take his mother to church—”
“Right, cut to the evidence at the scene.”
“Okay, Hughes is found lying in the wreckage of a coffee party—she was entertaining someone, two cups and so on. Stuff is smashed, she put up a struggle. She was a good-sized woman, by the way, a retired practical nurse. Gordon Featherstone catches the case, and right away he notices that Hughes has long nails and some of them are broken off, and he makes sure the hands get bagged. Autopsy shows she died from being smothered by an object made of heavy blue cotton canvas. She’s got the fibers way up her tubes. No sexual assault, by the way, but forensics finds blue fibers, skin, blood, and body hairs under the nails. Skin is brown in color, but the hairs and the blood ID as Caucasian. They analyze the skin fragments, and they find commercial brown dye. So we have a white man disguised as a black man.”
“Stop a minute. You talk to Featherstone yet?”
“On the phone, not face to face.”
“You ask him was he surprised it was a white guy?”
Collins smiled and nodded. “As a matter of fact, I did. He was amazed. Never happened before.” Collins seemed to share the detective’s feeling.
“Okay, go ahead.”
“Well, Featherstone does the usual canvass, the vic’s friends and relatives. Turns out she was a church lady, her life tended to revolve around the Zion Baptist Church up there at 125th and Lenox, and Featherstone found people who had seen Hughes leave a social on Saturday night with a slight young black man carrying a suitcase. The guy said he was a stranger in the neighborhood. He offered to walk Mrs. Hughes home, which everyone thought was real nice of him. Nobody got his name. So, Featherstone smells a wacko—I mean, what else could he be?—and he figures wackos repeat; this guy is going to try to prey on older church ladies. Okay, lots of churches in Harlem, but he puts the word out to the ministers, we’re looking for a white man in disguise, maybe with a suitcase, a stranger.”
“But he didn’t get a tip,” said Karp. This was the crux of the problem.
“He did not. What happened was, this was around three weeks after the Hughes murder, Featherstone was cruising along 125th, late afternoon, when he saw this kid at the bus stop at Twenty-fifth and Seventh. He just happened to stop for a light, and there the kid was, waiting on line there. And there was the suitcase, blue cloth. So the picture flashes in his mind: slight kid, suitcase. He checks the kid out—this is in the minute or so the light’s red. The kid looks … wrong somehow.”
“He didn’t articulate how the kid was wrong.”
“No. Just a feeling. He parks and walks over and studies the kid at close range, and he has to make a decision right away because here comes the bus and the kid’s going to get on it and disappear. So he goes over to the kid and identifies himself as a police officer and asks him, ‘Is that your suitcase?’ And the kid says, ‘No.’ And then Featherstone asks a couple of people standing there on line if it was theirs and they all say no.”
“And no one, of course, volunteers that they saw this kid walk up to the bus stop carrying the suitcase,” said Karp.
“No, this being Harlem, no, they didn’t. And here comes the bus and Featherstone says, quote, ‘Sir, I would appreciate it if you didn’t leave right now. I think you could help the police with an investigation.’ And he grabs the suitcase.”
“But not Rohbling physically?”
“He says not. Rohbling doesn’t, in fact, get on the bus. That’s the focus of their motion to suppress the physical evidence. The police had no reasonable suspicion to stop the suspect. There was no Terry v. Ohio activity on Rohbling’s part—he wasn’t acting in a suspicious manner, wasn’t casing a jewelry store. He was just waiting for a bus.”
“Cortez,” said Karp, half to himself.
“Yeah, we would argue Featherstone met the Cortez test of a quote particularized and objective basis for suspecting. Anyway, the legal stop took place when Rohbling did not get on his bus. They say. He felt he could not leave. Under Mendenhall that’s a stop. Featherstone takes the suitcase over to a bench and zips it open.”
“We’re, of course, saying this is a McBain situation here,” Karp put in.
“Right, U.S. v. McBain: when a suspect when questioned about ownership denies ownership, he surrenders possessory interest in the property, and has no Katz privacy rights to be violated by police. Although, of course, they maintain that what Featherstone actually said was ‘Can I take a look at that suitcase?’ and when Rohbling said no, he meant ‘No, you can’t look in it.’ Do you want me to cover the suppression-of-evidence case points here?”
“No, skip it for now,” Karp replied. “Just run through what happened.”
“Okay, in the suitcase Featherstone finds a number of fascinating items: an old bl
ue baby blanket, a ceramic candy dish, a white orlon cardigan sweater, a doily, a glass tumbler with a picture of a steamboat on it, a plastic hair ornament, and a Mammy doll.”
“I saw that. What the hell is a Mammy doll?”
“A cultural artifact. They don’t make them anymore. It’s a cloth doll about ten inches long. On one end it’s a white lady with blond hair, and when you flick the skirt the other way, it’s a black servant in a kerchief and apron. They used to be pretty popular. Not among black folks, of course.”
“Okay, I got it. Go ahead.”
“So Featherstone asks him for some ID, and Rohbling says he doesn’t have any, and then he asks for his name and the guy says his real name, Jonathan Rohbling. And then Featherstone checks out his neck, and he sees it’s the guy.”
“The hairs there.”
“Yeah. Black women call it the kitchen. Whatever you do to your hair, the first place it’s going to go back to natural is the base of the neck. Rohbling should have had little kinky hairs back there, and what he had were dyed Caucasian hairs. So Featherstone arrests him, Mirandizes him, and takes him to the Two-Eight. Do you want me to go through the interrogation stuff?”
“I read the transcript,” Karp said. “Smart guy, Featherstone, taping the whole thing. He figured this was going to be a tricky one, I wonder why. No, right now just give me your sense of how it all relates to the motion to suppress the confession.”
“Okay. Rohbling got the Miranda warnings at the time of arrest, at the bus stop. At the precinct Featherstone asked him if he wanted to help out the police. Yes. Would he waive his right to silence? He hesitates. He wants his medicine. Featherstone tells him he’ll get his medicine after they finish their chat. Rohbling signs the waiver. Featherstone confronts him with the candy dish. It’s a handmade ceramic candy dish, and on the bottom it’s inscribed, ‘Happy Birthday, Grandma, from Serena.’ Featherstone has already found that Hughes has a granddaughter named Serena and that the dish was a gift on the victim’s sixty-fifth birthday. So how did you get the dish, Mr. Rohbling? She gave it to me. Back and forth. How did Mrs. Hughes die? I didn’t hurt her, she was my friend. You pressed your suitcase over her face until she was dead, didn’t you? Then he says, I’m confused. I want to see Erwin Bannock. Is Bannock your lawyer? Yes. They let him make a phone call. He calls Bannock. The interrogation stops, they feed Rohbling. But then Featherstone gets suspicious. He checks and there’s no lawyer named Erwin Bannock. And then they find that Bannock is Rohbling’s psychiatrist. Naughty boy, telling us he was your lawyer, they say—words to that effect. Then the interrogation resumes—still on tape—in the course of which he admits that he was trying to ‘snuggle’ with Mrs. Hughes and he’s sorry she got sick and died. Featherstone gets an inspiration and shows him the other objects in the suitcase. He got these from other ladies he was snuggling with and they died, right? Right, he says, and he gives them the names and when he killed them. As you know, none of the others was listed as a homicide. They draw up a confession and he signs it; he’s been in custody six hours. They book him for five homicides, and then Waley shows up with the parents. End of story.”
“Legal points?” asked Karp.
“On the confession? All right, one: waiver of right to silence has to be voluntary, knowing, and intelligent, Moran v. Burbine. The case law is a little murky here. In Colorado v. Connelly the Supreme Court held that voluntariness under the Miranda doctrine pertained entirely and exclusively to the issue of police coercion. In the absence of coercion there was no flaw in the confession obtained, even though the suspect was mentally ill. Since Connelly, on the other hand, lower courts have held that mental incompetence voids a waiver—it can’t be knowing and intelligent if the suspect is wacky. The motion claims that the waiver is void because of Rohbling’s mental state, using Smith v. Zant.”
“Asserting mental disease or defect at the time.”
“Demonstrated by the reference to medication,” said Collins. “They point out Rohbling was on a course of antipsychotics at the time. He asked for his pills and didn’t get them. No pills, he’s crazy.”
“And, of course, they want to also define the deprivation of medication as coercion under Connelly,” said Karp. “Good point, actually. Continue.”
“Point two: he asked for a lawyer—”
“But he didn’t,” Karp interrupted. “He asked for a shrink. Fare v. Michael: request to see a third party is not an invocation of the right to counsel.”
“No, but the cops thought he was asking for a lawyer and should have terminated the interrogation. The motion claims. Also, when he was on the phone with Bannock, Bannock said he was going to call a lawyer and Rohbling agreed, and Bannock did call Waley, so they’re claiming Fare doesn’t operate. Counsel was invoked through a third party and the interrogation should have stopped, especially if, as they’re claiming, the suspect was mentally incompetent at the time.”
“Yeah, but that third-party stuff is stretching it. I’m thinking that our best response is to lean on the resumption of questioning after right to counsel was invoked, using Michigan v. Mosely. The criterion is, did the cops, quote, scrupulously honor the right to silence. It’s permissible for the cops to requestion the suspect on a crime different in nature and time and place from the crime they arrested him for. The other four murders—”
“Not different in nature,” said Collins, “but different in time and place.” He frowned. “But that kills the Hughes confession.”
“We can afford to let it go if we have to,” said Karp. “We don’t need the confession on Hughes. We have solid forensics on Hughes. We have Happy Birthday Grandma on Hughes. But I’m not that worried about the black-letter law.” He tapped Waley’s thick memorandum brief. “No, what we got here is much denser than that. He’s got appellate rulings for a dozen states, federal appeals cases, waiting for cert from the Supremes. He knows Peoples thinks of himself as a scholar, and this is a fat carrot he’s dangling. Let’s make some new Miranda law together, Your Honor.”
Collins was still frowning. He had started to worry his little mustache too. “It’s thin, Butch. Mosely, I mean.”
“Yeah, maybe, but thin is what we got to work with. Look, we have to get started on drafting. I’ll take the confession, you handle the suitcase.”
Collins looked at him, surprised. “Solo? Just draft it?”
Karp grinned at him. “Sure. You’re as good as Waley.”
Collins smiled back. “I thought he was Mozart.”
“So be Beethoven. Be Fats Waller. I’ll do the Miranda stuff.”
“Better you than me, boss,” said Collins, standing up and flexing his knees. “A week, say?”
“Sounds good. Just watch yourself in traffic. By the way, you know the difference between Carmen Miranda and Ernesto Miranda?”
“No, what?”
“One is fruit; the other is nuts.”
Collins snorted a laugh, waved and left.
Leaving Karp alone with the beautifully crafted motion to suppress a confession to five homicides. He got up, stretched, opened his office door, and looked into the bureau’s outer office. Two of his junior people were there, and when the door opened they put on the eye and body language, hoping to catch his attention. Connie Trask glowered at him and wiggled a stack of yellow message slips. Karp put on a stone face, ignored the A.D.A.’s, and went back inside.
He pulled the motion brief into the center of his desk and began to scribble notes about the point raised in the first of the bookmarks he had inserted. The real world faded away.
Every prosecutor in the United States has good reason to wish that Ernesto Miranda had never been born, or that once born, he had not grown into a kidnapping, raping scumbag, or that having chosen that mode of life he might have avoided the attentions of the Phoenix police department, or that once arrested and justly convicted for his nasty crime, or, and especially, that the Supreme Court of the United States had been a mite more lucid when they ruled that the Fifth Ame
ndment privilege against self-incrimination applied to custodial interrogation, and Ernesto got his long-sought walk.
Karp was personally a good friend of the Fifth, but he also knew, as all prosecutors knew, that the vast, vast majority of criminal cases are cleared not by the clever clues beloved of lady detective story writers but by confessions. Confession (with its less respectable brother, the plea bargain) made the horrible old system work. Because of this every cop and every prosecutor in the country pushed the limits of Miranda every day, and Miranda, naturally, pushed back, the result of this shoving being a mass of case law so tortuous and recondite that even academic legal scholars, with plenty of time on their hands, could barely master its intricacies. Karp, of course, had hardly any time at all, and Waley had insured that he would have to sweat blood to answer the motion without embarrassment. Nuts, indeed, thought Karp as he scratched away.
Marlene entered her office and passed Marlon Dane going out at a run.
“Where you running to?” she called after him.
“Miller,” Dane said over his shoulder as he passed through the door.
Marlene looked inquiringly at Sym, who explained, “Mary Kay Miller called. Friend of a friend called her, says her loved one got a gun, got his load on, says he’s going to whack her. She calls here, Dane happened to be here typing up his time sheets. He went to pick her up at work.”
“Did he have his machine gun?”
“Not that I saw. We ever kill any of these bastards yet?”
Marlene hesitated. “Not as such. Not since we started the business. We haven’t lost but one client and we haven’t killed a loved one, and that’s exactly how I’d like to keep it. Anything else going on?”
“Some messages on your desk. Harry’s out. Tranh helped me with the IRS stuff.”
Irresistible Impulse Page 14
