Felony Murder

by Joseph T. Klempner

  “Why are you telling me that?”

  “Because to tell you the truth, I don’t give a shit about him or any of the rest of his pals,” Bingham said. “They stepped way over the line on this thing, and they had no right to do that.”

  “Who’s Leo Silvestri?” Dean asked.

  “His real name is Vincent Nomelini. He’s a lieutenant assigned to the Organized Crime Strike Force.”

  “And Bobby McGrane?”

  “Bobby is Detective Robert Gervaise. Earned his gold shield working four years as an undercover in Narcotics.”

  “They had me going for a while there,” Dean admitted. “So what do you want from me, Walter?”

  “I want you to think about keeping the lid on this whole business.”

  “Why should I do that?” Dean loosened his tie and swung his feet onto the desk.

  “Certainly not to protect Childress and his people. They don’t deserve your protection - or mine, for that matter.”

  “So why, then?”

  “Because when it comes down to it,” he said, “it happens to be the right thing to do.”

  Dean said nothing.

  “As quietly and discreetly as I’ve been able to,” Bingham said, “I’ve begun to review files in our office from the past ten years. So far, I’ve come up with a little over 1,400 cases where inmates currently serving life sentences for murder would have to be retried or released if the Brady File is made public. Of those, we could retry maybe 100, convict half of them if we’re lucky. The remaining 1,350 hit the street. That’s only the murderers, Dean, and that’s just New York County, just Manhattan. There’s got to be an equal number in Brooklyn and the Bronx. Throw in Queens and Staten Island and you’ve got to figure 5,000 killers walk out the doors of the prisons and come back to the city to resume doing what they do best.”

  “Killing people.”

  “Right,” said Bingham, rising to his feet. “Killing people. Forget the robbers and burglars and major drug dealers that are also going to get cut loose, the so-called quality-of-life criminals. Just imagine what adding 5,000 murderers does to the city. And these aren’t suspected murderers, or accused murderers. These are goddamn certified convicted murderers! I even came across a couple of your own clients.”

  “Who?” Dean asked.

  “Remember David Billups?”

  Dean nodded. David Billups had provided Dean with a first-hand introduction to the world of the serial killer. In the space of three and a half weeks, Billups had murdered six people, starting with someone whom Billups had a “feeling” intended to rob him, and ending with gay men he would pick up while cruising Christopher Street in the West Village, because by that time, Billups had discovered he was capable of killing and rather enjoyed it. The experience had all but converted Dean to a begrudging accepter of the death penalty, and shortly after hearing his client sentenced to prison for a term of 125 years to life, Dean had readily admitted that Billups should at very least spend the remainder of his life locked in a cage.

  “He’d walk?” Dean asked softly.

  “Absolutely,” Bingham said. “The search of his apartment was illegal. The cops went in before the warrant was signed. And their discovery of the sawed-off shotgun under the mattress was what led Billups to confess, remember? Throw out the shotgun and out goes the confession. The confession was the whole case; without it Mr. Billups goes home.”

  Dean swallowed hard.

  “Johnny Casado?” he heard Bingham say.

  Johnny Casado had been a Dominican hit man for a heroin and cocaine ring operating out of the Washington Heights section of upper Manhattan. Casado had been convicted after trial of shooting a rival drug dealer and sentenced to twenty-five years to life. At the time, he’d been suspected of at least fifteen other killings.

  “Richard Spraigue?” Bingham was pacing pack and forth.

  Spraigue and his brother had taken a young woman to the rooftop of a building in Harlem. She had been high on crack and had accompanied them on the promise of more to smoke. When the brothers were finished taking turns raping and sodomizing her in every orifice they could find, they threw her off the building to her death.

  Dean fixed his gaze on the horizon, unable to meet Walter Bingham’s eyes. “They’d go home?” he asked.

  “They go home.” Bingham nodded. “Turns out Casado asked for a lawyer at his lineup, and the detectives didn’t bother to get him one. Spraigue was never read his rights before he confessed.”

  “Jesus,” Dean muttered.

  “That’s three cases,” Bingham reminded him, lowering himself into a chair across the desk from Dean. “Try to visualize 5,000.”

  Dean tried but found it impossible. The three specific instances from his own cases were overwhelming in their impact upon him; 5,000 was just an abstract number that he couldn’t begin to absorb in the same way, no matter how hard he tried. When he spoke finally, he was surprised by the crack in his own voice. “What am I supposed to do, Walter?”

  “I don’t know. For starters, maybe you oughta try to stop looking at this thing like a defense lawyer for a minute or two.”

  “But I am a defense lawyer.”

  “You’re also a citizen, Dean.”

  They sat in silence for several minutes. Dean’s thoughts whirled slightly out of control. “You want some coffee or something?” he asked Bingham, not even certain if there was any.

  “No, thanks,” Bingham said, standing again. “I gotta get going.”

  “What about Childs - or Childress - and his buddies? They walk free?” Dean asked.

  “I’ll have their jobs,” Bingham said. “I’ll see to it that everyone involved in Wilson’s killing will be out of the department within six months. You’ve got my word.”

  “That’s it?” he asked. “They murder the goddamn Commissioner, fry the brain of one innocent witness, and kidnap another, and run a decent cop into a truck, and all that happens to them is they get to resign?”

  “Think about it, Dean. These guys are career cops, the ones who’ve made it almost to the top and the ones who are headed there. Their jobs are everything to them. It’s like you or me getting our tickets pulled, suddenly being told we can’t practice law ever again, anywhere. What would we do, go out and drive a fucking cab, for chrissakes? Only it’s even worse with these guys. You’ve been on the Job, Dean. You know what it’s like to be a cop. Your whole fucking life revolves around the Job. You’ve got no friends on the outside. Your closest buddies are your partner and your bottle. Your marriage sucks if you’re lucky enough to still have one. Your own kids treat you like some kind of an ogre. Half these guys will eat their guns before a year is out. You’ll see.”

  “You make them sound like victims.”

  “They are, in a way,” Bingham said. “Try to remember they thought they were doing the right thing.” He moved toward the door.

  “I’ll let you out,” Dean said, starting to stand.

  “No need.”

  “Yeah, I guess not.” Dean forced a laugh. “Am I supposed to let you know, or what?”

  “Just see that you do it, tomorrow or Thursday. Your man cops to the petit larceny, stealing less than $500 from a corpse. A fucking misdemeanor. Time served. Or” - and here Bingham took a deep breath and faced Dean square on - “I’ll be ready to start picking a jury. ‘Cause if we have to, we can slug it out, Dean, and throw open the Gates of Hell. It’s your call.”

  Bingham had reached the doorway. Just before letting himself out, he stopped.

  “And Dean?”

  “Yeah?”

  “Be careful.”

  It sounded more like genuine concern than a threat.

  Joey Spadafino’s among a group of inmates awakened at five-thirty Wednesday morning. Despite groans from other inmates that it takes only thirty seconds to walk the length of the Bridge from the Tombs to the courthouse, it seems a Department of Corrections regulation requires that all inmates signed out to court must be up before six, whether they
’re coming by bus from Rikers Island or walking from the Tombs next door, and whether they’re due in court first thing in the morning or not until the afternoon. “Equal opportunity for all,” explains a corrections officer.

  Around nine o’clock, Joey’s led to the holding pen. Because Wednesday’s Judge Rothwax’s calendar day, the pen is jammed with inmates who’ll be going into court to cop-out, get sentenced, or have their cases adjourned, and Joey does well to find a corner of the floor to sit in. Other inmates fill the benches; still others lie sleeping on the floor, obstacles to steer clear of. Accidentally brush your foot against one of them while trying to step over him to get to the toilet, and the guy’s liable to jump up and attack you before he’s even awake - Joey’s seen it happen more than once. So he stays in his corner, holding his side to fight the pain and breathing through his mouth to avoid the stench. At one point he counts thirty-seven men in the pen, which he figures is maybe twelve-by-twelve feet at most.

  Every time a lawyer comes to the bars, Joey looks up to see if it’s Dean, but each time he’s disappointed. He spends the entire morning waiting like this. At noon, he gets on a line and is handed two bologna sandwiches on white bread and a container of coffee. He gives away all of the bologna and two slices of the bread. He eats two slices of bread for lunch, slowly, and drinks the coffee. He’s gotten to the point where he can drink anything the color of coffee.

  On Wednesday afternoon, Judge Rothwax interrupted his calendar day to call the Spadafino case. With the parties in place and the press in attendance, the judge read his decision. It took less than fifteen minutes from start to finish, and denied all of the relief Dean had sought. None of the challenged evidence would be suppressed; all of it would be available to the prosecution at trial.

  Next the judge took up the issue of to what extent Walter Bingham would be allowed to bring out Joey Spadafino’s record if he was to take the stand. That decision went no better for the defense, as the judge ruled that Bingham could go into all of Spadafino’s many convictions, except for one marijuana possession when Joey had been under eighteen and received Youthful Offender treatment.

  Finally, a little after two, Joey hears his name called. He’s brought into court and seated next to Dean, who tells him the judge is ready to render his decision in the hearing. “Render” sounds like a funny word for Dean to use. Joey has a cousin who once worked for a couple of months in a meat-processing plant on Fourteenth Street, way over on the West Side, who told him they used to render the fat they cut off the meat by boiling it down in these huge vats he showed Joey. He lets his imagination wonder if that’s what they’re about to do to him now.

  The judge reads a lot of stuff that Joey can’t understand, except the part where he says he’s not going to suppress any of the evidence.

  “This is bad, huh?” he whispers to Dean.

  “No,” Dean whispers back. “I told you he’d do that. Don’t worry about it.”

  Easy for him to say.

  When the judge is finally finished reading, he talks to Dean and the DA about Joey’s past record. They argue for a while, but Dean seems to lose this one, too. The judge rules that if Joey takes the stand at the trial the DA will be allowed to ask him about his past record. That’s a fucked-up rule if ever there was one, thinks Joey. After all, he did his time for those things. They shouldn’t have nuthin’ to do with this case.

  The case was adjourned to Thursday. “Make sure we have a panel of 150 jurors,” the judge told his clerk. “The first 100 should be here promptly at ten.”

  Dean comes upstairs to the pens after court to explain to Joey what’ll happen next in the trial. Since the interview room is full, they have to talk through the bars of the pen, but Joey doesn’t mind - most lawyers don’t even come in to talk to their clients. Besides which, they’ve put Joey in the go-back pen (not too far from obsos and homos), since he’s finished in court, and there’s only a handful of other guys with him.

  Joey notices that Dean’s got both his hands around the bars, something inmates learn not to do the first time a CO walks by and slams a book or a clipboard as hard as he can against their knuckles. But he guesses it’s different with lawyers, so he doesn’t say anything about it. Anyway, Dean’s on the same side of the bars as the COs, so he wonders why he was even thinking about it. Sometimes he thinks he’s going fucking nuts with all this.

  “So what’s next?” he asks.

  “You tell me,” Dean says. “We’re ready to start picking a jury tomorrow morning. It’s up to you. I can still walk you out of here. You can’t really want to go through with this.”

  “What’re they offerin’ you, man?” one of the other inmates asks. He’s a big black guy, looks like an ugly Shaquille O’Neal.

  When Joey doesn’t answer, Dean answers for him. “Petit larcency and time served. Time served on a murder case.”

  “You for real?” Shaq asks in disbelief, his voice squeaking real high on real.

  “I’m for real,” Dean says.

  “Take it, chump!” a Puerto Rican kid says.

  “Jump on it, man!” someone else chimes in.

  But Joey ignores them all. “I want a trial, man,” he says. “Can’t you unnastand that? These guys here, maybe they did their crimes. Me, I didn’t - I’m innocent. I’m bein’ framed by the police. You know it, I know it, an’ they know it. Am I right, or am I right?”

  Dean nods and says, “You’re right.”

  “So you guys shut the fuck up, hear?”

  Nobody says anything more to Joey. Not even Shaq. The conversation is over.

  Dean lay awake and listened to the sounds of the city at night, the tire noises and the beeping of horns, and the noisy brakes of the garbage trucks that he imagined were elephants trumpeting in the jungle. A car alarm wailed somewhere off in the distance.

  His thoughts wandered back to his conversation with Walter Bingham. Stop looking at this thing like a defense lawyer, Bingham had told him after bringing up three of Dean’s own cases to prove his point. Bingham had stacked the deck, to be sure. The cases had been among the very worst Dean had ever handled: a serial killer, a hit man for drug dealers, and a rapist-murderer. Dean would be the first to agree that none of them should ever walk the streets again. Now Bingham was telling him that Dean held the power to keep them locked up where they were, or the power to turn them - and thousands just like them - loose on a helpless city.

  Dean had never asked for that power. He’d asked only to practice his profession, to be permitted to represent a single client to the best of his ability. If he did that, no matter what the final result might be - win, lose, or draw - justice would be served. Or so they’d always taught him.

  But now, all of a sudden, it seemed they’d changed the rules on him. It was no longer a simple matter of representing Joey Spadafino. They were telling him that more was at stake now, much more. And that along with the power that had been placed in his hands came a responsibility, a duty to exercise that power wisely, for the common good, lest a horrendous disaster occur.

  Was that how the system worked? At some point, was Dean really supposed to stop thinking like a defense lawyer who represented his client so zealously as to blind himself from all social considerations whatsoever, and start looking instead at the bigger picture? Did there finally come a moment when he was supposed to act just like the cop who bent the rules ever so slightly to make sure his arrest of a vicious felon stood up in court, or the judge who chose to overlook some minor technicality when dealing with a particularly horrible murderer? Was that what it meant to stop thinking like a defense lawyer?

  But suppose Joey continued to insist on demanding a trial in spite of everything? Suppose he persisted in his “fuck you” attitude? What then? Was his right to a trial some ultimate, God-given thing? Or was it just something to be weighed against other things which might turn out to be more important? Was Joey’s determination to have his day in court at the expense of everyone else just the stubborn act of one s
elfish brat? And if that’s all it was, didn’t Dean have the right to try to talk him out of it? Didn’t he have the duty to do so?

  He tried to picture Joey Spadafino, tried to imagine what Joey was doing at that particular moment, but he couldn’t. Joey seemed small and far away and totally insignificant. Did it really matter what happened to him? When it came right down to it, was his life worth even a fraction of Janet’s? Or a fraction of what Edward Wilson’s life had been worth? Or Mr. Chang’s or Officer Santana’s? And how was Dean supposed to measure even those lives against the hundreds or thousands of future victims of the David Billupses and Johnny Casados and Richard Spraigues of the world? Who was he to say he might not have done the very same things as Silvestri and Childs and the rest of the cops had he found himself standing in their shoes?

  While Dean lies awake tormented over dilemmas regarding conflicting sets of morality, on 4 North in the Tombs things are much simpler for Joey Spadafino, and - despite his pain - sleep comes easily for him.

  Thursday came, and with it, the beginning of jury selection in the case of the People of the State of New York v. Joseph Spadafino. Dean had given up trying to convince Joey to accept the plea offer; it seemed that Joey was turning it into a game of just how stubborn he could be. Instead, Dean had backed off, counting on the arrival of the jury panel to finally shake some sense into Joey. He knew from experience that many a defendant who’d been irrationally insisting upon a trial all along suddenly got cold feet the moment he was brought face to face with the panel. There was even a word for it, borrowed from the poker table: folding.

  Maybe it was the opportunity for the defendant to look into the sea of faces of prospective jurors and to realize with sudden and sobering disappointment that too few were his color, or his age, or looked remotely like him, or seemed to be regarding him with anything approaching sympathy or understanding. Or maybe it was the simple awareness that after weeks and months of delays and postponements that had lulled him into a sense that there might never be a trial, here it was about to actually begin - the judge and the Assistant DA and the witnesses hadn’t been bluffing all this time, after all.