“When you asked some of the jurors whether they would stick up for their views—even if all the other jurors disagreed— you were asking a defense attorney’s question. What are you looking for, Dennis? A hung jury?”
If I were not olive-skinned, Barry would have seen my blush. To any other attorney, I might have said, “Fuck you.”
But to Barry: “I just want strong, independent jurors.”
And Barry’s hunch was sound. I was indeed going for a hung jury. One of my colleagues on an earlier case had been stung with a not guilty verdict in ninety-six minutes flat. I was not about to let that happen to me.
Childish? Absolutely. But unlike the paragons of prosecutorial virtue we see in fiction, or in self-congratulatory memoirs, I had flaws and they were evident in this tactic. Certainly to Barry.
At some level, I believed in the case, even though I knew it was very weak. I had invested too much of my life in the investigation to just walk away.
Ultimately, it was my faith in Henry Winter and the investigation that inspired me to proceed to trial. Perhaps that was a mistake. But you can be the judge.
I met Henry after he’d been “flipped” by Joe Hynes, when I talked my way into being part of the investigative team that would run him as a confidential informant for an extraordinary four months.
Having a mole inside a notoriously corrupt police precinct was an investigative attorney’s dream. The role of investigative attorney—my job—is rarely portrayed by TV dramas that prefer to organize their shows law-and-order style: the cops investigate, the prosecutors bring police cases to trial. My job was and is the missing dimension in TV-Land. I actually ran the investigations I brought to trial.
True enough for the tube, most prosecutors “catch” cases brought to them by the police. Which is interesting, but nowhere near the excitement of building the case yourself. Investigative attorneys are thought to be wannabe cops. While there might be some truth to that, it’s too simple a notion. A good investigative attorney is always thinking about how the evidence gathered can be used at trial. Unlike the cops, our work is not over when the arrest goes down.
And so, as an investigative attorney for the New York State Special Prosecutor’s Office, I got to shape the investigation that would lead to the indictments and trials. Perhaps that is why I went astray in the 77th Precinct case. Chief John Guido, legendary head of the NYPD’s Internal Affairs Division, used to say, “Don’t fall in love with your investigation.”
But I thought the investigation was so good. I thought the sum total of the evidence would overwhelm even the least culpable defendants.
* * *
Soon after Henry Winter and his partner, Anthony Magno, agreed to cooperate with my office and NYPD Internal Affairs, we sent them back into the sewer of the 77th Precinct to catch more corrupt cops. As part of the investigative team of prosecutors and Internal Affairs detectives, I met with Henry and Tony at least once a week for the next four months, and almost every day listened to the hours of tapes they secretly recorded while on duty in the 77th.
I got to know them more through these tapes than from our personal meetings: Henry, the smooth talker, full of fun and credible to cops, crooks, and the community; Tony, a man of few words, direct, tough, and angry. Henry delivered the evidence right from the start, Tony dragged his heels. Henry understood he had to work off his time in jail, Tony was reluctant. In time, I realized that Henry was a natural undercover operative and investigator. He was inventive and helped create scenarios that captured other corrupt cops on tape.
I have often wondered since those heady days of the investigation whether we were too much like the scientists who go out into the field to make objective observations but “contaminate” the environment by our mere presence.
Did we make it too easy to be corrupt by providing a convenient way to dispose of illegally seized drugs and guns, though our undercover buy-back program?
And was it the flagrant, seemingly undetected corruption of Henry and Tony that inspired Gil Ortiz to spend too much time with them? Was it unreasonable for him to consider them the true leaders of the precinct?
When the investigation abruptly ended due to a leak that we never traced with certainty (though we had our suspicions), I would spend hours with Henry and Tony going over the tapes, refining the transcripts, getting a better understanding of the crimes. We were never buddy-boys, but I did respect their work.
And my respect for Henry increased when he agreed to testify in this one last trial, even though the police department had told him he would be terminated after it was over. Henry always held the hope that the department would let him and Tony stay on the job long enough to retire with a pension. Fat chance.
Henry could have walked away from the trial and not testified, and I could have subpoenaed him. But how would that have looked to the jury, and what kind of testimony would he have delivered? The time for threats had passed. Henry had been the star witness in three previous trials and I, for one, did not believe we should send him to jail for his failure this last time to live up to his agreement.
But it never came to that. When I called Henry to tell him about the trial date, he came in and got down to business. He told me that he was pissed that the department had decided to cut him loose.
I told him, “You know, Henry, we have no control over what the department does.”
I started to remind him of our deal: Cooperate fully and he would never see the inside of a prison because we would make the extent of his cooperation known to the department. But he stopped me.
“I know what the deal is,” Henry said. “I promised to see this through till the end and I’m keeping my word.”
The “Thanks, Henry” that followed was difficult because I had learned that he had worn a wire against me and another prosecutor during preparation for an earlier trial in order to try and get us on the record making a better deal than the one we had actually made. We had restated our understanding of the deal and Henry thereby got no additional leverage. So it was hard to accept that the ultimate rat was doing the right thing. But that appeared to be the case.
With jury selection out of the way, I would have a chance to tell the panel just what the People planned to prove—a conspiracy involving Henry, the defendant, and another cop to “hit” a known drug location, steal the drugs and money, and divide the proceeds of the crime. I told the jury that they would hear the testimony of a corrupt cop who had agreed to cooperate, and that, most importantly, they would hear “with your own ears” the money being split after the hit—where no drugs were found. This was the core of my case.
Barry underscored the weakness of my position—the ambivalent taped conversation, called a “conspiracy” by the prosecutors, and the failure of the tape to demonstrate that his client had accepted any share of money at all.
No one wins a case during opening arguments. But the stage is set and the jury is given a road map of where it will be going. We all agree that the burden of proof is on the prosecutor to prove each and every element of the crime beyond a reasonable doubt—a heavy burden indeed.
After openings, I began with an Internal Affairs witness who could tell the jury that he met with Henry Winter on the day of the crime, provided him with a fresh tape, and put the appropriate “header” on it—identifying himself and Henry, as well as date, time, and place. Also that soon thereafter, he retrieved the tape from Henry, and that the money was taken from the location. He testified that he vouchered both tape and money and had brought the very same tape and money to court today to be introduced into evidence as People’s exhibits.
Another police officer provided the basis for the introduction of evidence that Ortiz was on duty that day in the same sector where the hit occurred. I had a police witness introduce a map drawing of the location in question so that Henry could show where the defendant and he had been during the incident. All this testimony went smoothly and, I hoped, showed the jury the competence of our investigation. But a
s we used to say in those days, Where’s the beef?
Henry was the beef—or sacrificial lamb, I should say, given my experience watching him cross-examined at previous trials. But Henry was no lamb. In fact, it was open season on rats who testified against those presumed to be innocent.
Henry and I had agreed that I would do an abbreviated direct examination of his past crimes and bad acts. Having seen Henry subjected to an all-day direct examination of his entire oeuvre of bad acts—dating back to when he worked in a Modell’s sporting goods shop as a teenager and marked down the price of baseball gloves for his friends—I decided to spare him the double-dose of confessing first to me and then to Barry. No matter, Henry still faced days of withering cross-examination by defense counsel to show him for a liar, a cheat, and a thief beyond compare.
When Henry took the stand, I quickly established that he had been a crooked cop, that he’d stolen money and drugs, that he’d resold the drugs, protected some drug dealers and extorted others, that he was not beneath stealing from the dead, and, significantly, that he’d been caught and had made a deal with prosecutors to avoid jail. Barry did not raise any objections to this testimony. After all, I was doing his job— undermining the credibility of my own witness. The theory here is that it’s better for the jury to hear it from the prosecutor, who is hiding nothing, than for the defense counsel to expose a cover-up by the prosecution.
I wanted to get as quickly as I could to the facts of the case—what Henry had done on the day of the crime, and what the defendant had said and done. And this is where I ran into trouble. Barry had an objection to every question I asked. And while some were legitimate, I thought others were meant merely to disrupt the flow of the testimony. Each time he made an objection, he asked for a sidebar conversation up at the bench with the judge outside of the jury’s hearing.
But soon our sidebars became so loud and heated that the judge moved us to the corridor. I became more and more frustrated as the frequency of the objections and sidebars grew. Barry was clearly setting the pace and controlling the courtroom and preventing me from presenting my case in a coherent manner. We seemed to fall into a pattern of me asking a question, then Barry making an objection and calling for a sidebar. After the pattern has been set, Barry would just make the objection, get out of his seat, and walk toward the corridor for his sidebar, followed by the judge.
Too much, I thought. This has got to stop. The next time the migration began and Barry was out the door and the judge was approaching the door, I held my ground behind the prosecutor’s table, looked at the jury, and said in loud voice, “Who’s running this courtroom anyway?”
Big mistake. Not only did I insult the judge, who let me know that she would not tolerate that kind of behavior, but I undermined her authority in front of the jury. We all know that jurors tend to have great respect for the judge and look to them as the fount of justice in the courtroom. I lost my temper, squandered some of the dignity of the prosecutor’s position, and may have jeopardized my case. I had acted unprofessionally. Nonetheless, while Barry continued to make objections, the processions to sidebar talks decreased significantly and I proceeded with my direct examination.
Henry testified about his tour of duty the day of the crime, his conversation with the defendant about hitting a drug location and splitting what was recovered, and that he had captured the conversation on tape. He testified that he had given the tape to IAD, initialed it, and had subsequently listened to the tape in order to confirm it as a full and accurate representation of the conversation that he’d had with the defendant. I asked him if the tape that had been introduced into evidence earlier was the same tape that he had made and listened to and he answered affirmatively.
“May I play the tape for the jury, your honor?”
“Yes, Mr. Hawkins.”
This was supposed to be the evidence that would prove beyond a reasonable doubt that the defendant entered into conspiracy with Henry to possess and sell the “found” drugs. Of course, it was Henry who would steal the drugs, if any were found, and “sell” them to us in order to receive money to split with his coconspirators. We had devised this plan in order to keep other cops in the precinct from selling it to their sources and putting the drugs back on the street. It was an excellent investigative move, but during this type of trial it was not always clear if jurors bought into our deception or even thought it was fair play.
Not really a problem in this case because no drugs were found, only money.
Once the jury, judge, attorneys, and defendant put on their earphones, they heard Henry speaking, laying out a plan to hit a drug location, suggesting that if he found drugs he knew where to sell them and that he would share the proceeds. It was clear that the defendant was present but not so clear that he agreed with Henry, an essential element of the conspiracy charge. Ortiz was told that he should cover the back exit of the apartment building to prevent drug dealers from escaping—the usual role for a junior police officer—and that Henry would go into the apartment and conduct the search for drugs and money.
Ortiz seemed to agree to cover the back exit, which in legal terms is an overt act in furtherance of a conspiracy. “Seemed” is the operative word. No clear agreement, no conspiracy. I knew I was on shaky ground with my agreement, but I thought that the conclusion of the tape could put me over the top and beyond reasonable doubt.
Ten minutes of tape went by as judge, jurors, and counsel heard Henry tromp around the empty apartment searching for drugs and money—and commenting from time to time about what a “shit-hole” the place was. Then we heard Henry discover some cash, with his comment on the find: “Not much, but better than nothing.”
The tape concluded with Henry apparently meeting the defendant outside the location and reporting better-than-nothing. In a clear voice, Henry counted out Ortiz’s share: “One, two, three, four, five, six, seven—buy yourself a beer.” Henry laughed in his good-natured way. And we heard the rustle of the bills as they were being counted out. This constituting my “gotcha” moment.
Unfortunately, there was no taped response from the defendant. Dead silence.
I looked at the jury panel. Some jurors looked back at me with expressions that said, Is that all there is? So I switched off the tape, turned to Henry on the witness stand, and asked him to fill in the blanks with specifics.
“What, if anything, did you find at the location?”
“I found twenty-one dollars.”
“And what did you do with that money?”
“I gave the defendant seven dollars and kept fourteen to divide between my partner and myself.”
“And what did you do with your share?”
“I turned it in to IAD at the end of my tour.”
“And is this seven dollars, previously marked as People’s Exhibit Three, the money that you gave to IAD?”
“Yes.”
“How are you able to identify it?”
“I put my initials on the money.”
“Your honor, I ask that People’s Exhibit Three be moved into evidence.”
The judge said to Barry, “Any objections, Mr. Agulnick?”
“No, your honor.”
I continued questioning Henry.
“Now, could you describe what it is that you are doing at the conclusion of the tape with respect to the remaining money?”
“I’m counting out seven dollars to give to the defendant.”
“And did you in fact give that money to the defendant?”
“Yes, I did.”
“That concludes the People’s questions for this witness, your honor.”
I glanced at the jury and once again got the feeling that some were asking, once again, Is that all there is? Unfortunately, yes. That’s the case against Gil Ortiz. You either believe Henry or you don’t. You have a tape that is, at best, circumstantial evidence. Or you have no real evidence at all.
For me it was easy to believe Henry. For months he had trolled for evidence of corruption in t
he 77th Precinct and I’d never caught him in a lie. Most of his allegations were backed up by taped evidence—including assertions of corruption by Gallagher, Rathbun, and Spivey.
But as I look back now some twenty years after the events, I ask myself whether we should have charged the kid—a twenty-two-year-old who, at the time, was younger than my youngest son. I don’t know the answer, but I do know that I think about it more than any of the so-called successes of my career.
I had done my job and presented the evidence I had; now it was Barry’s turn. And did he ever do his job. He flayed Henry over the course of the next two days and made him admit that he was a liar, a thief, a man of no conscience, and someone who would do anything to avoid prison. To this last point I objected.
There was little I could do to protect Henry. He knew it and I knew it. He was a corrupt cop by his own admission. From time to time, I would object: “Argumentative, your honor,” or, “Assuming a fact not in evidence.” But these were bullshit objections, meant to give Henry brief respite from the onslaught of Barry’s cross-examination.
After a particularly grueling series of questions from Barry, I saw that Henry needed a real break; he was turning bright red with the embarrassment of his position. So I objected by employing Barry’s tactic: I asked for a sidebar.
As Barry and the judge moved toward the corridor, I collected some papers I thought I might need for the argument and saw Henry look at the jury, shrug his shoulders, and wiggle his ears. Some jurors laughed. No one seemed to notice and I kept it to myself. Here was Henry trying to reach out to the jury and portray himself as a human being. I probably should have informed the judge so that she could admonish him about inappropriate communication and instruct jurors that they were to disregard it as a prejudicial attempt. But I said nothing, deciding that if that’s what it might take for Henry to reestablish his humanity, so be it.
At lunch that day, after a recess in the cross-examination, I bought sandwiches for Henry and me and we went to the Promenade overlooking New York Harbor. We couldn’t talk about his testimony because that’s against the rules, and at this point in our careers we didn’t want to break them.
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