He shrugged, looking unhappy.
“But now, after this—this, well, cavalier application of Mr. Ross, I seriously doubt if Mr. Gorman—I mean, if the District Attorney’s office—will still be willing to consider a lesser plea.”
Ross smiled at him gently. “I don’t remember saying anything about wanting a lesser plea.”
Varick frowned. “You realize the position you will be putting your client in, I hope, Mr. Ross. If it’s all or nothing, he’s taking quite a chance. If and when he’s convicted, Dupaul will have to serve a life sentence on the charge as constituted.”
“Paul, tell Mr. Gorman—your office, rather—that we appreciate his concern for my client, but that we do not want any deals. We’ll take our chances on the charge as it now stands. Murder in the first degree.” Ross looked up at the judge. “And we still press our motion to set aside the assault conviction on the basis of the arguments already presented, Your Honor.”
Judge Waxler turned to look down at Paul Varick.
“What say you, Mr. Prosecutor?”
“Just what Mr. Gorman—” Varick coughed to hide his embarrassment. “I mean, Your Honor, that the law is quite clear. Section 40.20 of the new Criminal Procedure law does provide for cases such as this one.”
“Thank you for your interest in helping me with the law, Mr. Varick,” Judge Waxler said with gentle sarcasm, “and you are quite right. In cases such as this the law is, indeed, quite clear. It allows the judge on the bench to make his own decision based on the merits of the motion.”
He smiled briefly at the red-faced young prosecutor. “Gentlemen, the conference is ended. I suggest you return to your places.”
Varick walked back to the prosecution table and sat down abruptly, instantly beginning a whispered consultation with Gorman. The court stenotypist yawned and flexed his fingers, prepared to go back to work again. Ross stood by his chair, facing the bench.
“Your Honor, I should like to press my motion.”
“Motion granted,” Judge Waxler said. He turned as he continued, giving the prosecution table the force of the reasons for his decision. “The November 27, 1964, conviction for assault is set aside in the interests of justice. Elementary fairness does not permit the prosecution to press the indictment and force the accused to proceed to trial under the cloud of a conviction based on the same facts. The acts now charged relate to facts that were previously charged, and are now merged in the new homicide charge. The conviction must be set aside.”
His gavel banged once, settling the matter. Paul Varick was on his feet in the same instant.
“Your Honor,” he said, “now that my worthy opponent had won a Pyrrhic victory, the People ask that this case be set for trial as soon as possible.”
Judge Waxler turned his head. “Mr. Ross?”
Ross hesitated a moment and then looked up confidently.
“The defense is ready at any time, Your Honor.”
Judge Waxler swung about. “Clerk, what does the calendar look like?”
The Clerk of the Court knew the docket by heart. “Any time in the next week, Your Honor.”
“Good,” Judge Waxler said. “I set the date of October twenty-eighth, three days from today.”
He raised his gavel, brought it down with finality, and laid it down, as if preparing to declare the session ended, but Ross intervened smoothly, coming to his feet before Judge Waxler could speak.
“Your Honor,” he said, “the defendant has another application—”
Paul Varick had been stuffing papers into his briefcase. He turned his head, surprised. Gorman, at his side, leaned around to stare at Ross belligerantly.
“What in the devil—?”
The gavel was raised and descended sharply, cutting off further comment. Judge Waxler looked down at Ross.
“Yes, Mr. Ross?”
“Your Honor, the defendant now moves to vacate and set aside the sentence imposed upon him in December of 1968 as a second-offender—”
Gorman shot to his feet.
“What!” He turned to the bench and then thought better of it. A hasty whispered conference with Paul Varick ensued. The tortured expression on Varick’s face testified to his difficulty in listening to his chief and still trying to make sense of what Ross was saying. Hank Ross, aware of the other’s difficulty, kept a straight face as he continued his plea.
“Your Honor, the judgment and sentence issued on indictment 4256 of the year 1968 imposed a sentence of seven and one half years to twenty years on the defendant. We now request that the defendant be resentenced by this court as a first-offender immediately.”
Varick was now prepared. He came to his feet quickly.
“Your Honor, the prosecution does not pretend to understand this constant muddying of waters that the defense is engaged in. We are here to consider the charge of murder in the first degree against this defendant; the indictment is so drawn. Now, first we have sat here and heard the application—which was granted—for the removal of the first conviction, but at least, Your Honor, that had some connection with this case. This present application, however, the prosecution maintains, is totally irrelevant to the matter at hand, and the People ask that the defense be instructed to keep to the matter at hand.”
“But on what specific legal point does the prosecution object to the application?” Judge Waxler asked.
“On the basis that it is irrelevant, immaterial, and—well, immaterial.”
“It may not be immaterial to the defendant,” Judge Waxler said dryly, and turned to Ross. “Proceed, Mr. Ross.”
“Yes, Your Honor. The defendant is presently serving from seven and one half to twenty years in State’s Prison. Since Your Honor has just vacated the assault conviction which was the predicate for the sentence which he is serving now as a second-offender, quite obviously the crime for which he is now serving was a first offense. As such, he must be resentenced as a first-offender under the sentence which he is now serving.”
Gorman shook his head, muttering, “Good grief!”
Judge Waxler turned to the prosecution table, biting back a smile at Ross’s tactics, which he now fully understood.
“What say you, Mr. District Attorney? Isn’t what Mr. Ross says legally correct? If the defendant was originally sentenced as a second-offender and the first conviction has been set aside, he is in fact a first-offender. Isn’t he?”
Varick looked lost. “Well … but … well, I suppose so, Your Honor, but the prosecution doesn’t think resentencing should be done at this time.”
Ross looked across the courtroom.
“May I ask the prosecution why not? My client is no longer a second-offender. Isn’t he entitled to a correct and legal sentence as a first-offender?”
Judge Waxler settled the matter.
“Very well, the motion is granted. The sentence of seven and one half to twenty years imposed is now set aside. Mr. Ross, do you want me to resentence your client immediately?”
“I do, Your Honor.”
Judge Waxler turned to the Clerk. “Indictment number 4256, 1968.”
The Clerk nodded and left the room. Gorman and Varick fell into a deep conference, their heads almost touching. Billy Dupaul tugged at Ross’s arm. Ross turned to face the young man.
“Yes, Billy?”
“What’s this all about? I mean, what difference does all this make? When do we get down to business?”
“We’re down to business right now,” Ross said quietly. “If you think we’re not, take a look at Mr. Gorman—he knows we’re down to business.” A faint smile crossed his face. “He’s just beginning to wake up, I think, but he’s in for more surprises.”
“But what effect will all this mumbo-jumbo have on the murder charge? That’s what I’m interested in at the moment!”
“One thing at a time,” Ross advised softly. “Right now, let’s handle this.”
Billy Dupaul subsided, frowning his doubts. Ross waited patiently; Gorman and Varick continued to discu
ss the points in a whisper inaudible in the courtroom. The spectators began to move about restlessly as Judge Waxler accepted the indictment folder from the Clerk and began to study it. The courtroom stenotypist leaned back, staring at the ceiling, his mind miles away. At long last Judge Waxler closed the folder and cleared his throat. The courtroom came back to life. Judge Waxler looked past Ross to Billy Dupaul.
“Mr. Defendant, what have you to say before judgment of the court is imposed against you according to law. Do you wish to be heard or do you wish to have your counsel, Mr. Ross, speak for you?”
Billy Dupaul came to his feet slowly, still looking puzzled.
“I guess—I mean, I want Mr. Ross to speak for me.”
Ross came to his feet. He said, “Your Honor is now familiar with all the facts arising out of these two cases. The defendant has served approximately three years and ten months under the present sentence imposed upon him. The maximum sentence for the crime for which the defendant was found guilty, as a first-offender, would be five years in State’s Prison. By law a first-offender must be released upon completion of two-thirds of his sentence. It would serve no useful purpose to have him sentenced to five years and then have to go through all the technical red tape of State’s Prison in order to obtain his release.”
Gorman was glowering. Ross smiled at him, but his expression sobered as he turned back to the bench.
“I therefore ask that Your Honor impose a sentence of time served—that is, impose an unconditional discharge in view of the fact that he has actually served two months more than the two-thirds of sentence required by law.”
There was complete silence in the courtroom. A few of the spectators were beginning to see, beneath the complicated legal jargon, the high drama being unfolded. Judge Waxler turned to the prosecution table.
“What say you, Mr. District Attorney?”
“Your Honor,” Varick said, “the People oppose the application. Under the circumstances, the prosecution cannot oppose resentencing, but we request that the maximum sentence of five years be imposed, but that it be allowed to take its normal procedure.”
Judge Waxler frowned.
“I fail to understand the prosecution’s position. I see no purpose in imposing further burdens on State’s Prison authorities, who are already overloaded, especially since the defendant is not required by law to serve more time in prison than he has already served.” He turned, looking at Ross. “I will follow your recommendation, Mr. Ross. The defendant is sentenced to an unconditional discharge in view of time served by the defendant. Judgment accordingly.”
The gavel pounded once. Varick came to his feet.
“Your Honor,” he said, his voice attempting to sound exceedingly sincere, “I hope the defendant has not been led by his counsel to believe that these motions in any way change his status as a prisoner. I hope he has not falsely been allowed to believe that since his last sentence has been terminated that he will walk from this court a free man. There is still the impending indictment for murder, Your Honor.”
“I’m deeply touched for the prosecution’s concern,” Ross said. “In regard to that very matter, Your Honor, we have one further application—”
At the prosecution table Gorman threw up his hands.
“Oh, for God’s sake! What now?”
Ross paid him no attention. “Your Honor, we have an application for fixed bail …”
Gorman had had all he could take. He shot to his feet. “No, God damn it!”
The gavel came down, loud and clear. Judge Waxler leaned over the bench.
“Mr. Gorman, one more outbreak like that and I shall be forced to ask you to leave the courtroom. Do you understand? Good. All right, Mr. Ross.”
“Your Honor,” Ross said, “the accused now moves that Your Honor make an order admitting the defendant to bail upon reasonable conditions. It clearly appears upon the record that there is grave doubt that the crime of murder was even committed. The defendant, under the eighth Amendment of the Constitution, is entitled to reasonable bail and we respectfully ask that this bail be fixed.”
Judge Waxler turned to the prosecution table.
“What say you, Mr. District Attorney?”
This time Varick was not at all hesitant. He came to his feet prepared to argue this one right down the line.
“The People, Your Honor, vigorously oppose the fixing of bail in this case! This is an indictment for murder in the first degree, and while the Defense may not feel that the crime of murder was committed, the prosecution is prepared to prove it. And bail, as Your Honor knows, is normally not set in a murder case.”
His voice strengthened.
“Furthermore, this defendant was involved in a riot at Attica State’s Prison where three people, including a prison guard, lost their lives. We wish we had the evidence to prosecute him for the murder of that guard. We may, in fact, very well have that evidence to hand before this trial is ended. However, at present the only evidence we have supports the present indictment for murder. The People firmly believe, in view of this man’s terrible record, and under the circumstances, that bail should definitely be denied!”
Judge Waxler looked at Varick coldly.
“When the prosecution has evidence of other crimes, I suggest they bring in proper indictments. In the meantime we shall strike any mention of the prison riots from the record.” He swung about to Ross, leaving Varick red-faced. “What bail did you have in mind, Mr. Ross? And what other reasons do you have to convince me why I should set bail at all?”
“Your Honor knows,” Ross said evenly, “that bail may not be denied as a weapon of punishment before defendant has actually been convicted. The purpose of bail is to insure the presence of the defendant for trial. This defendant has been out on bail in the previous charges and has always appeared to fulfill his responsibilities to the court. Your Honor, this defendant has already spent many years in prison for a crime which the defense will prove he did not commit. Refusal of bail now would, in effect, constitute further punishment, and this punishment before conviction.”
Judge Waxler frowned for a moment, as if going over Ross’s words in his mind. He nodded slowly.
“Under the circumstances,” he said slowly, “I think I shall have to set a reasonably high bail—”
Varick was on his feet. “Your Honor, the People object!”
“Your objection will be duly noted,” the judge said drily. “I hereby set bail at one hundred thousand dollars.” The gavel descended. Judge Waxler looked from one table to the other and then, satisfied that there would be no more motions for the day, banged his gavel once again. “Court is adjourned until three days hence.”
He came to his feet, pulling his robes together with dignity, and descended from the bench. Billy Dupaul turned to Ross in utter amazement.
“You mean, I walk out of here? Just like that? Out into the street?”
“You walk out of here when bail has been made, which should be sometime this afternoon,” Ross said with a smile. “Now you know a part of what I was after all this time with that mumbo-jumbo.” He started to put his papers away. “What do you plan to do with yourself for the next three days?”
“I don’t know. I sure didn’t give it any thought; I never figured—I don’t know. Maybe I’ll take a bus up to Queensbury and see how the old place looks—”
“You stay in town,” Ross instructed sternly.
“But—”
“No ‘buts.’ You stay in town. And available. And I’d also suggest—”
He paused to face Gorman as the Chief Assistant District Attorney charged up. Behind him, at the prosecution table, Varick was finally managing to put his papers away in his briefcase. Gorman was seething. He pointedly disregarded the presence of Billy Dupaul.
“Ross, you should be disbarred! Why didn’t you make a further motion to strike off a medal for this man? It’s about all you failed to do! Using your profession to put a mad-dog killer back on the streets!”
Bill
y Dupaul, his face getting dangerously red, started to push himself to his feet. Ross pushed him down again, forcefully, turning to face the livid Gorman.
“Louie, you should know better than to make statements like that. How would a libel suit go down with your boss?”
Gorman stared at him a moment. “Bah! One day you’ll go too far, Ross, and I hope I’m around when it happens!”
It was on Ross’s mind to say that as long as his opponent was Louis G. Gorman, that day was probably far off, but he felt it would scarcely add to the moment. Gorman looked at him for a moment as if awaiting a reply, and then stamped off.
Billy Dupaul came to his feet slowly, rubbing his knuckles. Ross, understanding, grinned at him.
“Take it easy. Hitting him would probably have cost you a lot more than it would him. It would have cost him a sore jaw, but it could have cost you the rest of the years of your life. Don’t make his case for him.”
He turned away, closing his briefcase, and then remembered what he had been saying when Gorman interrupted.
“And Billy, for the next three days I’d suggest you stay out of bars. You and bars always seem to add up to trouble, and as far as trouble is concerned, you have enough right now …”
CHAPTER
10
Hank Ross returned from getting Billy Dupaul settled after making his bond. He came into the office to find Jerry Coughlin waiting for him in the reception room. The thin newspaperman appeared not to have changed clothes since their last meeting. He came to his feet easily, setting aside the magazine he had been leafing through.
“Mister Ross—”
“Yes?”
“We have a matter to discuss, I believe. A minute of your valuable time, if I might?”
There was a momentary silence, then Ross shrugged.
“All right,” he said quietly. “Come on in. As a matter of fact, I wanted to see you, too.”
A Handy Death Page 11
