Felony Murder

by Joseph T. Klempner

  He could win this case.

  And, What was going on here?

  Years of being a trial lawyer - of battling to win, of fighting desperately to avoid losing, of being an adversary, a competitor, a gunslinger - made the first reaction almost instinctive and inevitable, but he struggled to get past it, to get to the second one. And realized even in the process that he was afraid to ask the question. So he stalled.

  “You never saw a knife in my client’s hand?”

  “No,” Janet said firmly. “I never saw a knife at all. Why?”

  “Because they had your stand-in say you did.”

  “Why would they do that?” Janet asked.

  There it was again, stated in slightly different terms. The Question. Why was it so important that they put a knife in Joey Spadafino’s hand? Dean knew now that Joey had been telling the truth all along, that the knife had been in his pocket the whole time. Having a folding knife in your pocket wasn’t illegal; it became a crime only when you did something with it that demonstrated an intent to use it unlawfully against someone else. But it meant more, it meant that Joey was to be believed about everything. He had taken the money from the fallen body of Edward Wilson, taken the money clip. He had run when he realized he had been seen. He had gotten rid of the money clip and been caught with the money. He was guilty of larceny, grand larceny if he had taken the money while Wilson was alive, because then it had been “from a person.” If Wilson was already dead, he was no longer “a person” in the eyes of the law, and it was only petit larceny, a misdemeanor that carried a maximum of a year in jail. But whichever it was, without the knife, without the threatening words that Joey had always denied saying - a denial that Dean finally knew was honest - there was no robbery in a legal sense. And without a robbery, there was no felony murder. Joey Spadafino was absolutely innocent of every charge in the indictment. But that still didn’t explain why someone was willing to go to great lengths to make it look like Joey was guilty. Who, after all, was Joey Spadafino, and why should anyone want to frame him for something he hadn’t done?

  “Mr. Chang didn’t see a knife, either.”

  “What?” said Dean, snapped suddenly out of his mental wanderings.

  “Mr. Chang, from Four-B.” Janet pointed toward her ceiling. “He didn’t see a knife, either.”

  The other witness, thought Dean. He moved to the edge of the sofa. “How do you know he didn’t?” he asked.

  “I talked to him the next day. He saw the whole thing, even more than I did. From when the Commissioner was first coming up the block.”

  “Are you serious?”

  “Of course I’m serious. And the detectives were much more interested in him than they were in me.”

  “What makes you say that?”

  “Because they were,” Janet said. “Mr. Chang told me they had him downtown three separate days, for hours at a time. They said they knew he had seen more than he was telling them. They kept insisting that he must be too frightened to tell them everything. But he swore to me he told them everything he had seen.”

  “Where is he now?” Dean asked. “Is he home?”

  “Nobody seems to know. He disappeared about three weeks ago. He doesn’t have any family here, as far as anyone can tell. Mr. Novacek said he thinks he’s in the hospital, but nobody seems to know for sure.”

  “We’ve got to find him,” said Dean.

  “What you mean, we, Paleface?”

  “I mean we,” said Dean, “because you’re involved in this whether you like it or not. Janet, someone went to a lot of trouble to make sure I would never meet you, would never speak with you, that I would never find out that you could clear my client. People have lied under oath, falsified reports, and forged signatures. They’ve even hired an actress to play your part. Mr. Chang probably told them the same things that you did. They tried to get him to change his story, but he wouldn’t. Now he’s disappeared.”

  “You’re frightening me,” said Janet.

  “I’m sorry,” said Dean. “But until we figure out what’s going on here, you’ve got good reason to be frightened. And you better watch yourself.”

  Joey Spadafino, also with good reason to be frightened, has been watching himself, too. But Joey’s precautions prove to be his undoing. Somebody - Joey doesn’t know who, but he’s got a pretty good idea it’s the two Dominicans that continue to menace him - drops a dime on him, snitches on him, and on the way to breakfast, he’s stopped by two COs and searched. From the thoroughness of the search, Joey knows right away it’s not routine. Which means they’ll find his shiv.

  They pull him out of the mess line and into a small office that contains a desk, a chair, a computer, and a telephone. They have him extend his arms and spread his feet. One of the officers pats him down while the other sits on the desktop and smiles. When the one patting him down finishes, he tells Joey to drop his trousers. Joey does so.

  “Your undershorts.”

  Joey lowers his undershorts, trying as he does so to keep the upper parts of his legs together. But with his feet spread it’s impossible, and the sharpened piece of coat hanger falls from his crotch and lands incriminatingly between his sneakers.

  “Whatdowegot here?” says the CO, seeming to enjoy every minute.

  Whatever he could say would only get him into more trouble. So he says nothing.

  The two officers walk Joey back to his cell. He knows he’ll get written up for this, but he can deal with that. He long ago decided it was better to take a chance getting caught by the COs with a weapon than it was getting caught by the Dominicans without one. At the moment, he’s annoyed with the fact that he’ll miss breakfast, which is the only meal where he can ever find anything to eat. It means he’ll go nearly two days without food, instead of one.

  Back at his cell, Joey’s made to stand outside the bars with the same CO who sat on the desk earlier, while the other CO tosses the cell. This is because there’s a rule that gives an inmate the right to be present when his cell is searched. Before there was such a rule, inmates were all the time getting told that contraband was found in their cells, and they had no way of arguing that it was found under another inmate’s bunk or in another inmate’s stuff.

  Joey feels pretty secure about the search. The only thing he has is some oatmeal cookies he palmed from the mess hall at last night’s dinner and a couple of photographs of some inmate’s girlfriend putting a bottle up her twat. The inmate had broken up with his girlfriend and didn’t want the photos anymore, and was about to throw them out, so Joey took them. Both food and pornography are contraband, but neither is a big deal. Joey has heard inmates say it’s a good thing to have some sort of minor contraband for the COs to find, so they don’t get too pissed off when they can’t find anything, and trash your belongings. In this case, Joey figures they’ll just eat the cookies and take the photos, anyway. He even knows an inmate who keeps Ex-Lax in a Hershey wrapper, so if anyone swipes it and eats it, they’ll get a good case of the runs.

  So Joey’s surprised when the officer tossing the cell ignores Joey’s bunk and personal items, and instead goes straight to the commode. He reaches around behind it and comes up with something that looks like an envelope with tape on it. Joey’s never seen it before.

  “Lookie, lookie,” he says as he walks over to Joey and the other officer. Standing in front of them for both to see, he pulls out several small glassine bags containing a white powdery substance.

  This time Joey, who knows he’s been flaked, says something.

  “Fuck.”

  Thursday came, and with it another call from Walter Bingham.

  “I’m going to make you my final offer,” he said to Dean. “Five to ten. As the beer commercial goes, it just doesn’t get any better than that.”

  “What’s going on here, Walter? Why all this sudden compassion for my client?”

  “Two reasons,” said Bingham. “For one thing, I realize Spadafino never intended to kill Wilson. Or even harm him, for that
matter. It was just his dumb luck to pick a victim who goes and has a heart attack on him and drops dead, and who happens to be the Police Commissioner. But I have no reason to believe he knew who his victim was, either, so how much more can I penalize him for that? But that’s only part of it, Dean. I might as well level with you.”

  Dean found himself counting his fingers. He had long ago learned that when an adversary said, “I might as well level with you,” it was time to get ready for the Big Lie.

  So he braced himself and said, “By all means, Walter. Level with me.”

  “My people want to wrap this thing up,” said Bingham in his most confidential tone. “Between you and me, rumor has it the Mayor wants to name a new Police Commissioner. He’d rather the Spadafino case be out of the way before he does it. So they’re telling me to give away the store if necessary. What they really wanted me to do was to offer you ten to twenty, see if you’d take it. Then seven-and-a-half to fifteen if you wouldn’t. Finally five to ten, take it or leave it. But I told them I’ve got too much respect for you, that I didn’t want to play games.”

  “And if I leave it?”

  “You won’t,” said Bingham. “You can’t.”

  “My client might.”

  “Then I’ll convict his stupid ass, and Rothwax’ll give him twenty-five to life.”

  Thinking about the conversation later, Dean had the peculiar sensation that Bingham had had other people in the room with him on his end of the phone. Maybe that’s who he had been referring to when he had said “my people.” Then again, maybe Dean was imagining the whole thing.

  Dean had asked Janet Killian to call him that afternoon. She had agreed to ask Mr. Novacek, the superintendant, what hospital Mr. Chang was in. When Dean had asked her the second part of the question - if she would go with him to talk to Mr. Chang - Janet had hesitated. He had found it hard to blame her.

  But she did call, promptly at one.

  “They took him to St. Vincent’s,” she said, and Dean thought he detected a note of pride in her having completed her assignment. “At least that’s what Mr. Novacek says, and he’s into everyone’s business around here. We call him ‘Nosey Novacek.’“

  “Good work.”

  “Only he’s not there anymore. I called.”

  “Where is he?”

  “They’ll only tell me he was transferred,” she said. “They say they’re not allowed to tell me where unless I’m immediate family.”

  It had been raining that morning, and Dean had left his bike home and driven to work. But by late afternoon, the sun was out and the temperature reaching toward ninety. Knowing he would get stuck in traffic on the way uptown, Dean decided he might as well enjoy it, and he put the top down on the Jeep. He liked the fresh air, fresh being a relative term in the city. He also liked the increased visibility it gave him. His convertible top was six years old, and the plastic windows were so scratched that he could barely see out of them. With the top down he rediscovered his rearview mirror, which actually allowed him to see the traffic behind him for a change.

  He first became aware that he was being followed around Fortieth Street. He was heading north on what would eventually become the West Side Highway, and had just changed lanes to make a light before it turned from yellow to red, when he noticed that a dark red sedan behind him, with two men in it, also went through the intersection. Dean watched in his mirror as the sedan pulled over to the curb and stopped. He would have given it no more thought, but several blocks later he looked in the mirror, and there it was again. It was one of those generic American cars, a Chevy or a Ford or a Plymouth or a Pontiac - he could not make out which. And to Dean, the two occupants had “cop” written all over them.

  At Fifty-seventh, instead of getting onto the elevated highway or turning right toward Eleventh Avenue, Dean threaded his way through traffic another two blocks. His right turn took him up a little-used street. He was halfway up the block when he saw the red sedan turn into it behind him. He toyed with the idea of pulling over to force the sedan to drive right by him, but decided against it. He had made the tail; there was no reason to let them know he had done so.

  At West End Avenue, he made a left and continued uptown. The red sedan kept going straight, its occupants apparently not wishing to “burn” or reveal themselves, or perhaps simply content to assume that Dean was headed home.

  That evening, Dean phoned a college classmate, David Leung. It was a somewhat uncomfortable call to make, because Dean had not spoken to David in several months, and now he was calling to ask a favor.

  “I need you to call St. Vincent’s Hospital,” Dean explained after they had caught up on news. “Your brother Po Wen Chang was admitted there about three weeks ago. He’s been transferred to another hospital, and you need to know where.”

  David was an eager accomplice. He made his living as an accountant and envied the excitement that seemed so present in Dean’s work and so totally lacking in his own. When Dean had worked as a DEA agent after college, it had been almost too much for David to bear, and he would routinely corner Dean and make him tell stories of undercover buys and Midtown stakeouts.

  David phoned back twenty minutes later. He had had no luck. “They say they can’t give out any information over the phone,” he reported. “I’ve got to go down there and bring proof that I’m Chang’s brother. What is this guy, an international terrorist or something?”

  “You’d think so,” said Dean. “But he’s really just a guy who happened to be looking out his window one night.”

  “I guess I’ll stick to watching TV.”

  “Good idea,” said Dean.

  David promised to go St. Vincent’s in person after work Friday, even though Dean told him to forget it, he’d try to locate Mr. Chang some other way.

  Some other way turned out to be a burglary.

  Dean called Janet Killian on Friday morning. He told her he needed to talk to her again and asked if he could stop by on his way uptown after work. She agreed. She didn’t question him as to why he couldn’t ask her whatever he needed to know on the phone, which was fine with Dean. The truth was he was beginning to feel very paranoid. If someone was following him, they could also be listening in on his telephone. He preferred not having to share such thoughts with Janet, however, since if they were listening in on his phone they were probably doing the same with hers. Whoever they were.

  He took the bike this time. And he made sure no one was following him. He watched carefully in his mirror, so carefully that at one point he almost rode into a cab stopped in front of him. Rather than taking Broadway uptown, he zigzagged through the maze of downtown streets. He deliberately went the wrong way on several one-way streets, and at one point even walked his bike into the lobby of a large office building and out the side door. No one seemed to be following him.

  Janet buzzed him in, and Dean took the elevator to her third-floor apartment, bike and all.

  She was bathing her daughter, and he watched while she finished. When she had dried and powdered and diapered Nicole with cloth diapers (“They’re cheaper,” she explained, “and not as bad for the environment”), she handed her to Dean while she did things with baby food in the kitchen. Dean managed not to drop the child, despite the fact that she squirmed and seemed intent on pulling his nose off. She had apparently never been around someone with a full-sized nose and was not about to miss her chance.

  Over mashed banana and applesauce, Dean explained that his Chinese connection was having difficulty locating Mr. Chang. It was Janet who suggested breaking and entering.

  “I bet Novacek will give us the key,” she said. “He’ll do anything for money.”

  “How much money?” Dean asked. “They tend to frown on reimbursing lawyers for expenses incurred in committing major felonies.”

  “Twenty bucks might do it,” Janet said, her blue eyes shining with the excitement of a life in crime. “I’ll chip in half.”

  “You sure you’re up for this?”

&nbs
p; “Absolutely,” she said, smiling. “How much time could they give us, anyway?”

  “For a first-degree burglary? Not more than eight-and-a-third to twenty-five.”

  “Piece a cake,” said Janet.

  So when Nicole had been fed and nursed and put to bed, Dean played babysitter while Janet, armed with two crisp $10 bills, went downstairs to find Mr. Novacek. Dean paced the living room while he waited for her, trying to digest the idea of suddenly having a partner in his investigation. He was so used to working alone, so accustomed to calling the shots without having to consult anyone else, that his first reaction over this new development was mixed with uncertainty. For example, in addition to his strip of Venetian blind, Dean had a full set of lock picks, and at one time in his DEA career, he had been pretty good with them. His preference would have been to leave Mr. Novacek out of things, to try to get into Mr. Chang’s apartment on his own. If, in fact, he had decided he wanted to get in there at all.

  But here he was, waiting in a strange apartment with a six-month-old child for a woman he barely knew, who had not only decided that they needed to get into Mr. Chang’s apartment, but was at this very moment out in pursuit of the burglar tool of her choice, while in the process alerting the general public to their criminal enterprise in what he was reasonably certain would prove to be a futile attempt to get the key, anyway. He would set her straight as soon as she returned.

  It took her about fifteen minutes. When he let her back in and saw that she was empty-handed, he tried to hide any trace of smugness from his voice. “No luck, huh?”

  Janet said nothing. She closed the door behind her, kicked off her shoes, and looked straight at Dean. Then she reached down the front of her blouse and, to a triumphant “Ta-dahhh!” extracted a set of keys. “And,” she said, opening her fist and revealing a neatly folded $10 bill, “I saved half our bribe money. I figured we might need it for bail.”

  “You’re unbelievable,” Dean said, in spite of himself.