Felony Murder

by Joseph T. Klempner

  “I got my phone and called the police. I told them what I’d seen. They asked me where it was, what were the cross streets, stuff like that. Then we got disconnected. Then the man who had taken the money left. I called the police again. It was a different operator this time. They wanted to know which way the man went. I told them he went to the right, toward Seventh Avenue. They asked me what he looked like. I described him as best as I could, like how tall he was and what he was wearing. I remember he was short and had a dark jacket and cap.”

  “Anything else?” Dean asked.

  “They asked me for my name and phone number, and I told them. That’s all I can remember.”

  “What did the knife look like?” Dean asked.

  “It had a silver blade and a dark handle,” she said. “Maybe dark blue.”

  “What did he do with it?”

  “He held it at the man’s throat.”

  “No,” said Dean, “afterward. What did he do with it afterward?”

  “I don’t remember.”

  Rasmussen coughed loudly. “Anything else, Counselor?” he said pointedly.

  But Dean was a defense lawyer, and “Anything else, Counselor?” was a question he heard from judges all the time and had come to ignore almost automatically.

  “Did the guy walk away or run away after it was over?”

  “I’m not sure,” said Janet. “I don’t remember. I was very frightened, and it was several months ago.”

  “Remember what we said about no cross-examination, Counselor?” said Rasmussen. “Remember we’re doing you a favor here, and I think the favor is about over.”

  “One more thing,” said Dean. “Then I’ll get outa here.”

  “One means one,” said Rasmussen. He would’ve made a pretty good judge, thought Dean.

  “Are those prescription glasses you’re wearing?” Dean asked. “I mean, do you wear prescription glasses and did you have them on that night?” If he was down to one question, he was going to make it count.

  “These are just sunglasses,” Janet said. “I have twenty-twenty vision.” And she lowered her head, took off her sunglasses, and handed them over the backseat to Dean. As she did so, she turned to face him more fully and smiled. Dean held the glasses up and looked through them. They were plain sunglasses. Looking just above them, he could see that Janet Killian was pretty, though there was a certain hardness to her looks. He handed her the sunglasses, and she put them back on.

  Walking away, Dean felt as if he had just struck out with the bases loaded and two out in the ninth. Janet Killian was a devastating witness. She completely put the lie to everything Joey Spadafino had told Dean about not pulling out his knife and not saying anything to the man. She was pretty, she was intelligent, she was articulate, and - unlike Joey Spadafino - she had absolutely no reason to lie about what had happened that night. This case was over.

  In the second week of April, Dean went to trial on a minor drug case. The defendant, a Rastafarian named Dexter Churchwell, had a pleasant smile and a singsong voice that made him easy to like. He had been accused of selling two vials of crack cocaine to an undercover police officer. When the backup team had arrested Churchwell, they had found four more vials in his right rear pocket. Churchwell readily admitted that the four vials were his. He said he had bought them ten minutes earlier to share with his woman, a 300-pounder named Tanya. But he vehemently denied selling the two vials, or anything else, to anyone, and Dean was inclined to believe him.

  Luckily enough, upon close inspection, it turned out that while the four vials in Churchwell’s pocket were “redcaps,” so called because the tops were made of red plastic, the two vials bought by the undercover cop were not only “bluecaps,” they were also “jumbos,” larger vials that contained more crack and went for more money. Dean put Churchwell on the stand, and the jury seemed to like him as much as Dean did. In summation, Dean argued long and hard that the discrepancy cast tremendous doubt on Churchwell’s being the seller. When it was her turn, the prosecutor suggested that Churchwell had simply sold his last two bluecaps to the officer, and had nothing but redcaps left when arrested fifteen minutes later. But the jury was not buying it. They found the defendant guilty of possession, but not guilty of sale. Which was fine with Dean, since the possession was a misdemeanor and carried a maximum sentence of a year. The sale, a felony, could have cost Dexter Churchwell eight-and-one-third to twenty-five years.

  The Spadafino case came on once again in Part 56 just after Dean had finished trying Dexter Churchwell’s case. But Judge Rothwax was busy trying a rape case and adjourned all other trials to May.

  Upstairs on the twelfth floor, Dean faced Joey through the familiar mesh of the counsel room. He confronted Joey with Janet Killian’s version of the incident.

  “She’s lying, Dean,” Joey said. “On my mother’s honor, she’s lying.” Dean wondered if this was the same mother who hadn’t been out to visit Joey in the three months he had been locked up. He didn’t say anything, though. You had to be careful when it came to people’s mothers. A defendant who would sit passively while you called him a liar to his face could suddenly lash out at the first suggestion that you were putting down his mother. And many a prison stabbing was attributed to the careless use of the epithet “motherfucker,” where some other equally profane term might not have drawn a glance.

  Dean turned instead to the subject of alcohol. How drunk had the guy really seemed to be, he asked Joey, remembering the .04 percent reading from the serology report and how it contrasted with the account of the bartenders at Chandler’s.

  “Man, he was smashed,” said Joey.

  “What makes you say that?”

  “What makes me say that is that’s why I thought about takin’ him off in the first place, that’s why. He was so drunk he was beggin’ to be a vice.”

  Interesting, thought Dean. But then again, it was Joey Spadafino talking.

  The brisket at his mother’s seder was overcooked and falling apart, the way Dean liked it, and the reading of the Passover Hagadah was abridged enough to be tolerable. The Four Questions were answered by Dean’s nine-year-old nephew, who did well enough but had a bit of trouble explaining why on this night it was necessary to eat reclining.

  Then, four days later, Dean’s father, not to have his god upstaged, cooked both a turkey and a ham for Easter. The holidays were a rather schizophrenic time for the half-Jewish, half-Catholic Abernathy family, but they got through them in good enough humor. And they provided a good break for Dean, who had come to realize that he had spent far too much time and effort on Joey Spadafino, who, it turned out, deserved neither. “He shouldn’t’ve been robbing the schvartze in the first place,” scolded Mrs. Abernathy, and Dean had to admit she had a point there, after all. By Sunday night, Dean was back at his apartment, five pounds heavier, his refrigerator uncharacteristically full of little plastic containers and foil packages of brisket, matzoh brei, turkey, and ham.

  * * *

  Easter Sunday is observed at Rikers Island, too. In place of the usual menu, the inmates are served ham, mashed sweet potatoes, and green beans, in addition to the ever-present white bread and containers of milk.

  Joey Spadafino has never liked meat or potatoes that taste sweet. He tries to eat a piece of ham, but it is covered with sticky raisin sauce. He has to chew it a long time before he is able to swallow it. He ends up trading the rest of it, along with his sweet potatoes, for an extra portion of green beans. The beans are overcooked and gray, and water comes out of them when you stick a fork into one or bite into it, but they taste okay.

  Easter Sunday is also a big visiting day, but, as always, Joey has no visitors. He tells himself that’s the way he prefers to do his time, alone. He’s made no friends to speak of on B Block. He keeps to himself as much as possible. His lawyer has told him he may not under any circumstances discuss his case with anybody, explaining that there are many inmates who would gladly say he admitted his crime to them and testify against him i
n exchange for a reduced sentence on their own cases. But it’s not just that. C-93 is a detention facility, which means that everybody here is waiting to go to trial or cop out. The average stay is nine weeks. So as soon as you get to know somebody, they’re outa here.

  Of course, Joey himself has been here for about three months already. But some of the older inmates tell him that’s not unusual. In the old days, you used to have to lay up a year before getting a trial on a murder case.

  It isn’t the waiting that gets to Joey, however. It’s that his lawyer doesn’t believe him. With no visitors, no friends in Population, and a lawyer who doesn’t believe him, Joey feels completely cut off from the rest of the world. He now knows he’s going to blow trial. His lawyer has explained that the DA’s got a witness who’s going to testify she saw him pull his knife and hold it at the guy’s throat. Joey isn’t stupid, after all. He knows that the jury will believe her, knows they’ll convict him. But he also knows he didn’t kill the guy, and there’s no way he’s going to cop out and say he did.

  So Joey Spadafino spends Easter Sunday waiting, as he spends every other day waiting, for the trial he knows he will lose, and the life sentence he knows it will bring him.

  Dean had a habit of downplaying his chances as a trial approached. To colleagues and friends and family, he had been quick to say that the case against Joey Spadafino was overwhelming, that he didn’t have a prayer, that he didn’t even have a theory of a defense to work with. And in most respects, he believed all this to be true. But in quieter moments, he knew he was deliberately painting a picture somewhat more hopeless than the facts themselves warranted, if indeed that was possible to do in this case.

  He recalled his days as a student, walking out of a classroom where he had just taken a written exam. Dean had not been one of the theatrical moaners and groaners who consistently insisted that they had failed, but if anyone had asked him how he thought he had done, he would have bent over backward to avoid any appearance of confidence. “Terribly” would have translated into a C, “not very well” suggested a B, and “not too bad, I hope” meant he had absolutely aced it, though he never dared say so.

  Old habits died hard. Now years later, Dean the lawyer continued to paint bleak pictures to the rest of the world, and in doing so, avoided the sin of hubris and protected his ego at the same time. If the case he was trying was impossible, losing it would be no disgrace. Winning it, on the other hand, would be nothing short of miraculous.

  The weekend over, Dean sat at his desk now, wondering just how much ego-protecting he was doing with respect to the Spadafino case. To be sure, he knew that the prosecution had a devastating witness in Janet Killian. They also had the physical evidence: the money, the money clip, the knife, the clothing. They had the statements. And Dean had a defendant who was homeless, not too smart, and had a criminal record.

  On the other hand, there was the little matter of the duplicated signature of Joey Spadafino on the written statement to the detectives, which strengthened Joey’s denial of the robbery to Walter Bingham on the videotaped Q&A. And there was the discrepancy between Commissioner Wilson’s apparent intoxication and the low blood alcohol reading on the serology and toxicology reports. It wasn’t much, but it was something.

  So Dean forced himself to get out the file again. He began going through it, document by document, page by page, paragraph by paragraph, line by line. Every time he came across something even slightly helpful, or something that he thought merited further investigation, he made a note of it on a yellow pad. It was tedious work, and he had to will himself to concentrate. More than once he was tempted to put a marker in the file and put it away, but he stayed with it to the final page. It took him an hour and a half.

  He looked at the yellow pad. He hadn’t even had to tear the front sheet off, so little did he have to work with. One page had been more than enough to list every positive lead he had developed in more than three months of work on the case.

  Good Stuff

  1. Forged signatures on written statement

  2. Denial of robbery during Q&A

  3. Alcohol: Bartenders/Joey (drunk) v. Serology (.04%)

  4. Toxicology: (a) aspirin (b) dibenzepin

  5. Knife: difficult to see dark handle @ night

  And that was it. One end-justifies-the-means instance of cheating by overzealous detectives, one self-serving denial of guilt by the defendant, one discrepancy in how drunk the Commissioner had been that night, two drugs to check out, and an otherwise credible witness who exaggerated what she had been able to see on one minor point.

  Dean closed the file, tossed the yellow pad onto a cabinet in the corner, and called it a day.

  Most of that week was spent on Nathan Ramsey’s stabbing case in Harris Park in the Bronx. With Ramsey’s help, Dean located two witnesses who corroborated Ramsey’s version that the Hispanics had chased him home and beaten him at his doorway, and that that had occurred at two o’clock in the afternoon, not seven o’clock in the evening, when the victim claimed Ramsey had stabbed him. It didn’t make sense; somebody had stabbed the guy. Finally, Dean confronted Ramsey and asked him point-blank if he had in fact stabbed the victim at the doorway in self-defense earlier that afternoon. Ramsey put his head in his hands and started crying softly. It was true, he said. But his first lawyer had told him to deny it since he had an alibi for seven o’clock, the time when the victim insisted he had been stabbed.

  It was suddenly all too clear to Dean. The victim, stabbed once in the belly, had walked away from the scene and gone about his business, not reporting the incident because he himself had been one of the aggressors. But as the afternoon wore one, he began to feel weak, and around seven o’clock, in some distress, he had walked into the hospital, insisting the stabbing had taken place only minutes earlier, in the park.

  So Dean went to the assistant district attorney handling the case and suggested to him that both the complainant and the defendant had been lying. He agreed to look into it further.

  It was Thursday by the time Dean came across the yellow pad on the corner filing cabinet in his office. He looked again at the list of leads he had made. Of the five items listed, he had done about all he could on four of them. The only one he had not checked out was the fourth, the traces of aspirin and dibenzepin noted in the toxicology report.

  The aspirin was easy. Everybody took aspirin, whether for a headache, a toothache, a sore back, or arthritis. Besides, Edward Wilson was known to have had a heart condition, and Dean knew that an aspirin a day was often routinely prescribed as an anticoagulant for people with heart problems. It was the dibenzepin, whatever that was, that he needed to check out.

  Larry Jacobs, one of the laywers in the suite, specialized in personal injury law, and the shelves in his office held as many medical treatises as they did law books. It was to him that Dean went now. Dibenzepin turned out to be something Jacobs had never heard of, but he handed Dean his Physician’s Desk Reference and Merck Manual and said, “If it’s not in these, it doesn’t exist.”

  Back in his own room, Dean thumbed through the books. Each one ran nearly 3,000 pages, including life-size, full-color photographs of virtually every prescription and over-the-counter medicine available in the country, under brand names and generic listings.

  But no dibenzepin.

  Dean dialed the number he had for the New York County Medical Examiner’s Office and asked to speak to Dr. Mustafa, the pathologist whose signature appeared at the bottom of the toxicology report.

  “I’m sorry,” the secretary said. “Dr. Mustafa has taken a leave of absence and cannot be reached.”

  Great, thought Dean. Next, he tried his own doctor, Larry Davidson. He was a family practitioner in his late sixties who was as much Dean’s friend as his physician. His office was in Hackensack, New Jersey, but when Dean needed to see a doctor, he would make the drive. He liked Davidson because he was low-key and not overly impressed with himself. Even now, during office hours, he took time to
talk to Dean.

  “So, what can I do for you?”

  “You can tell me what dibenzepin is.”

  “That’s what you think.” Davidson laughed. “Dibenzepin? Never heard of it.”

  “Neither has the PDR or the Merck Manual,” said Dean. At Davidson’s request, he spelled out the name of the drug to make sure Davidson had it right. Then he explained that it had shown up in toxicology samples in a murder case he was working on. Davidson knew the case, even knew that Dean was representing the defendant. Unlike some physicians, he read the newspaper.

  “Can you give me a day or two?” Davidson asked.

  “You can have a week,” said Dean. “My client’s not going anywhere in a hurry, I’m afraid.”

  That night Mark Wexler called to report to Dean that a mutual friend, Angelo Petrocelli, was getting married upstate in a couple of weeks. Mark was trying to organize a bachelor party and wanted Dean to help out.

  “What do you have in mind?”

  “The usual,” Mark said. “Sex, drugs, rock ‘n’ roll.”

  “Good luck with the sex and drugs,” said Dean. It was widely believed that Angelo, who at twenty-eight still lived with his parents in Rhinebeck, New York, was a virgin who was “saving himself” for marriage. As for drugs, he would not take an aspirin for a headache, insisting that proper diet, meditation, and pure thoughts were all the medicines the body required.

  “I’m working on getting a couple of hookers,” said Mark.

  “Forget about it. He’ll never come.”

  “Very funny.”

  “I meant he’ll never show up.”

  Larry Davidson called back on Wednesday, which was unusual in itself. Doctors in New Jersey recognize Wednesdays much the same as Christians recognize Sundays. The few that see patients work at most a half day, and it is a foolish person indeed who has the misfortune to pick a Wednesday to fall ill. Precisely what the medical establishment does while the rest of the world toils remains a mystery to many. But it is no secret, and probably no coincidence, that the parking lots of golf courses and motels experience no dearth of M.D. plates on these midweek holidays.