Death's Witness

by Paul Batista

  If I’m wrong, you have yourself another nice issue for your appeal.”

  After Judge Feigley gave a dismissive wave of her hand, saying, “We’ll meet in five minutes in the jury room,” Sorrentino walked quickly to where Congressman Fonseca was sitting. He D E AT H ’ S W I T N E S S

  was beautifully tailored, as always, but his face revealed strain, lines, and concern. His whole demeanor was wearier, irreversibly wearier, than when the trial had started. Whatever the outcome of this trial was going to be, Fonseca had already been diminished, depleted, weakened.

  Over the last several days Sorrentino had become abrupt with him. Fonseca repeatedly asked the same questions: “Why do they want to hear that read back again? What do you think it means, Vinnie? How much longer will she let them go on?”

  And Sorrentino had repeatedly given the same answer: “The 199

  longer it goes on the better for you, but I can’t give any guarantees.”

  Nothing had satisfied the Congressman. When Sorrentino tried to reassure him that the length of the jury deliberations was not a bad sign, Fonseca said, “Hey, but there’s a lot of counts here; maybe they’re resolving the small ones one at a time to get to the big ones.”

  “Maybe they are, Danny,” Sorrentino nodded, deliberately cruel in order to cut the old man off. “Maybe.”

  Now, as he described the note and the conference with Judge Feigley, Sorrentino could see that his client—skeptical, confused, and frightened—had no interest in details and was intent on the big question: “What do you think’s up, Vinnie?”

  Sorrentino paused to moderate his impatience with this steadily weakening man. Sorrentino reminded himself that not he but fun-loving Danny Fonseca was threatened with the prospect of spending the rest of his life in prison if convicted on even one of the many counts in which he was named. Sorrentino said, “I don’t know, Danny. Juries are strange, they have unpredictable dynamics, they’re like hurricanes.” He paused, gave the Congressman the knowing, mock lecherous smile they used to share more often: “And like women.”

  “Please don’t remind me about women,” Fonseca said, trying now to regain and project his nonchalant attitude from the early months of the trial. “If this broad gets to sentence me I won’t get a whiff of pussy until I’m ninety-three.”

  P A U L B A T I S T A

  Sorrentino, leaning toward Fonseca and so close that he could smell his cologne and the meaty, breathy flavor of his mouth-wash, laughed and said, “Your friend the judge won’t let you back there with us, to see the ladies and gentlemen of the jury.”

  Still feigning bravado, the Congressman said, “That’s okay with me, I think I can do without the contact. You be my eyes and ears and come back and tell me what happened.”

  * * *

  What happened in that room surprised and intrigued even 200

  Sorrentino. He was the last to arrive, a small rebellion against the stolid inflexibility of Judge Feigley. Sitting without her robes at the head of a conference table as the twelve jurors waited nervously on both sides of her, she had started without Sorrentino. When he entered the room, she interrupted the flow of her words to the jurors with the terse comment, “Let the record reflect that Mr.

  Sorrentino has joined us, at last,” and then returned to the rhythm of her speech, delivering her words in that grandiose, elaborate style she reserved for jurors.

  “Now, no one knows better than I the enormous sacrifices you ladies and gentlemen have already made. I recognize the time out of your lives. You know, although I like to consider it the highest duty of citizenship when men and women come to sit in judgment, I also know that reaching a verdict can be difficult.”

  Sorrentino’s practiced eye recognized the blank, barely suppressed appearance of impatience in the expressions of the twelve jurors, their eyes averted, whose faces he could see as he stood, with the other lawyers and a few of the marshals, along one of the walls. He knew none of the jurors by name: at the outset of the trial Steinman had moved to put in place an anonymous jury, its members designated by numbers only, arguing, even before Perini and Klein had been killed, that there were special dangers associated with this prosecution.

  Sorrentino had argued that impaneling an anonymous jury would prejudice the jurors against the defendants. Anonymity, D E AT H ’ S W I T N E S S

  he said, was unusual, it was an old prosecution ploy calculated to send a tacit message to the jurors that the defendants were dangerous, unsavory men. Since Judge Feigley had ruled in Steinman’s favor, Sorrentino and the other lawyers, after eight months, knew these people only by numbers.

  Juror Three, a thirty-three-year-old unemployed graphic designer, had been selected, by some unknown process, as the foreperson. He was gay. Intense, intelligent, impatient, he had a mustache and fuzzy hair that always looked as though it was freshly blow-dried. “We understand all that, really we do. We sent 201

  out the note for a different reason.”

  In an enormous black dress, wearing strands of white pearls, Judge Feigley paused, allowing what Sorrentino recognized as her flash of aggravation with the interruption to subside. “Certainly, certainly,” she finally murmured. “Do you want to tell me what the problem seems to be?”

  “Seems to be? It’s not a question of seems. We’re stuck. I don’t know how much I’m supposed to say, but—”

  “You can say whatever you want. I have a duty to get to the bottom of this.”

  “We have eleven people here who are all of a single mind about what should happen. And we have one person who has become terribly unreasonable, who says he doesn’t want to hear anything more, who says he will never vote to convict anyone.

  We’re at the end of our wits, really.”

  “Have you tried to talk this through with this person?”

  “He’s impossible, just impossible.”

  And then Juror Seven, a forty-five-year-old nurse who, Sorrentino remembered from jury selection eight months ago, lived in the Bronx with his parents, said quietly and steadily,

  “I’m the guy.”

  He was a fat man with unhealthy skin. Balding, eccentric, he arrived at court almost every day in the summer wearing T-shirts, baggy pants, and sandals that resembled slippers, the kind of clothes vacationers wore at airports and on airplanes. Sorrentino P A U L B A T I S T A

  and the other defense lawyers privately called him “Blimpy.” He was the only juror they did not refer to by number. And Sorrentino had been concerned about him. Through glasses whose tinged lenses changed with the amount of light, he was constantly fixing his stare on Fonseca and the other defendants.

  As Blimpy spoke, his voice was a complete surprise to Sorrentino. It was not the voice of a heavy middle-aged slob from the Bronx who still lived with his parents. It was instead the literate, accentless voice of a zealot.

  “I have a sister who is ten years older than I am. She gradu-202

  ated from CCNY in 1970s with a degree in accounting. She surprised everyone in the family by deciding to join the New York City Police. She loved her work. Apparently her fellow police officers were not as happy with her as she was with them. One night, three years into the job, she was arrested with four other cops for taking bribes. She had never touched anybody’s money in her life. When she was indicted, Rudy Giuliani—does anybody remember him?—told all the newspapers that she was guilty of the worst kind of public corruption. Pettiness, pervasive pettiness, he said, and systemic rot. She was suspended without pay, we spent all the money we had to find a lawyer for her, she pleaded not guilty, and no one listened.

  “Finally, after six months, she went on trial. Three cops testified against her, said they saw her take money, again and again.

  And then she testified. She said no, no, no. That night one of the cops’ wives, who had sued him for divorce, told a TV reporter that her husband had bragged to her about how he and the others had ‘set up the cunt’ to get rid of her.

  “The lawyer we had hired subpoenae
d the wife. The next afternoon he put her on the stand to testify and the judge—a man who looked like a squirrel—overruled every question our lawyer asked. It was like smothering him. He was good but he was desperate; it was like slapping water. The prosecutor didn’t want the jury to hear a word from this wife, and they didn’t, because the judge kept on saying ‘Hearsay…objection sus-D E AT H ’ S W I T N E S S

  tained…hearsay…sustained…move on…’

  “We cried in the courtroom. We loved our sister. And she had been twice set up. First by the police and then by the judge. The judge refused to dismiss her from the case, the jury convicted her—they had no choice really because of the instructions they heard from the judge and then, after six more months of anguish, the appeals court threw the conviction out. Because the judge had thwarted the defense. It didn’t matter. By that time my sister was broken down, demoralized, and she’s been in and out of institutions ever since.”

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  He paused and then finished: “I don’t trust anything that I’ve heard in that courtroom. It’s all bullshit.”

  His face a mask of exasperation, Juror Three said in the direction of the judge, “There, see what we mean? Unreasoning, inflexible, rigid.”

  The criticism had no visible impact on Blimpy.

  In the forty-second interval of silence before Judge Feigley spoke again Sorrentino tried to suppress the rush of relief he felt, the sudden overwhelming sense of an ending. His instincts told him that Judge Feigley would not let the case end in a mistrial without a struggle and that she would try to persuade this man to relent and change. And Sorrentino was right. He tensed as he heard her say:

  “Sir, we all have the deepest sympathy. I know better than any of you that the system, the justice system, is imperfect. What happened to your sister was terrible. But that was that case, and this is this case. Nothing comparable has happened here.”

  “So you say.”

  She appeared to wince visibly. She knew how to deal effectively with negative attitudes from lawyers by withering them with glances or threatening them with contempt. But she was powerless to deal with the defiance of this obese man. With a tone of enforced calm she said: “You owe it to your fellow jurors to listen to their views, weigh the evidence in this case, and make a decision on the facts of this case.”

  P A U L B A T I S T A

  Juror Three spoke out, his voice peevish, “What I’d like to know is why we didn’t know all this before, eight months ago?”

  Blimpy said, “No one asked me if I had a family member who had ever been accused of a crime. Someone asked whether I had been. I hadn’t been. I learned from watching my sister’s trial that the system is that you answer only what you’ve been asked. The judge just said to respect the system. It’s imperfect, but respect it, she said. I did. Nobody asked the right question.”

  Sorrentino watched the visible collapse of Steinman’s stern, 204

  rigidly held expression as he heard those words. Steinman was about to speak when Judge Feigley raised a hand to silence him.

  She said, “Well, I don’t believe that enough time has passed in jury deliberations for every juror’s views to be seasoned. More time is needed. I think that this man”—she gestured at Blimpy, whose heavy, ugly face was impossible to read because the chameleon-like lenses were now dark, dark, as though some change in color had taken place in the room or his body’s tem-perature had changed, radically—“is a reasonable man. Reasonable men listen. I would only say that the jury should spend more time and keep in mind that this is an important case, an expensive one to both sides, one that should be resolved, definitively, by a verdict rather than a mistrial.”

  Sorrentino was not able to restrain himself. “Judge, can I suggest that you’re on the verge of a problem area? The jurors could understand you to mean that they should reach a verdict because of the expense of the case instead of its merits—”

  “Mr. Sorrentino, will you shut up please?”

  She struck the table with the palm of her hand. There was a stinging resonance in the room. She glared at him. She ended the long glare without speaking to Sorrentino again and then turned an equable, calm face toward the jurors.

  “Obviously,” she said to them, “you must reach a verdict in each of your own hearts and minds. You must not be swayed by any extraneous factor, such as the cost of this case. But I urge all D E AT H ’ S W I T N E S S

  of you to devote more time to the evidence, to confer again, to use your judgment about this case.”

  Still peevish, Juror Three said, “But does that mean we still have to continue to deal with this man? Don’t you understand?

  He will not change.”

  Impassive, Judge Feigley said, “You all have to work together.

  Talk, reason with one another. I was appointed by President Lyndon Baines Johnson, who always said, ‘Come, let us reason together.’”

  She began to rise. “I want to see all the lawyers in the next room, on time, in two minutes.”

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  As he filed to the robing room with the other defense lawyers and Steinman and his team, Sorrentino felt the hot recognition that she was about to deliver some blow to him, some stored-up sanction that his interruption had triggered. The feeling he had was like the one he had experienced in parochial school, an all-out anxiety of becoming a target of a nun’s wrath. He also knew every other lawyer in the silent group sensed that they were about to witness the chastisement of Vincent Sorrentino.

  Instead, Judge Feigley walked among them as they stood in the room, which had only one chair. She was a large presence, closer to them than ever before, standing in their midst. She said, “That man is not rational, do you all know that?”

  There was a murmur of voices, no agreement, no disagreement.

  “That man is sick, in fact.”

  Sorrentino immediately saw where this was leading.

  After another murmur of voices, Judge Feigley said, “I had a thought, let me express it. If a juror became physically sick at this stage, and I perceived that, I would have the ability to discharge the juror and, with the consent of all sides, proceed with a jury of eleven.” She paused. “This man is not physically sick, but I perceive him to be mentally unwell, obsessive, lacking all judgment, abnormal.”

  Steinman spoke: “The government agrees. We think a jury of eleven people is acceptable and would do justice.”

  P A U L B A T I S T A

  “How about that?” she asked.

  Jennifer Kellman spoke out. “No, I can’t see that. My client would never waive his right to have a jury of twelve decide.”

  Her expression plainly unhappy, Judge Feigley said, “You should all think about that. If this jury of twelve deadlocks and there’s a mistrial, and Mr. Steinman decides, as I’m sure he will, to have another trial, think of whose interests would be served. The next trial would start soon and may take as long. I would be disinclined to release any of you lawyers from your clients. And don’t come crying to me that your clients have stopped paying you: that’s your problem, you 206

  married them, you stay with them. All of you should have an interest in finality. A verdict, one way or the other, would be better for your clients than the indecision of a mistrial. Think about it.”

  No one answered.

  * * *

  It was a beautiful November day. Julie pushed Kim’s lightweight stroller as Vincent Sorrentino walked beside her. They began their late afternoon walk at the Guggenheim Museum at Fifth Avenue and East 89th Street. The golden autumn light was spread like cream on the curved, enormous surfaces of the museum’s beige exteriors. Joggers moved into and out of Central Park on the far side of Fifth Avenue. Other people, couples for the most part, pushed carriages and walked with children along the avenue, enjoying the languid beauty of the monumental city buildings, the leafy park, the quiet air.

  “God,” he said, “I don’t get up to this neighborhood as often as I should. Believe it or not, when I first moved to M
anhattan, in the seventies, I had a one-room apartment on East 89th Street, just around the corner. I never once set foot in the Guggenheim, the Met, or any other museum. I worked all the time. My office was in one of those old buildings across 42nd Street from Grand Central.

  The Lincoln Building. Basically a slum for sole practitioners, small-time criminal lawyers, little personal-injury law firms. I took the number 4 train from 86th and Lexington downtown. A ten-minute ride. I worked all the time. I was either there or in court.”

  D E AT H ’ S W I T N E S S

  “How long did you live up here?”

  “Three or four years. I got married in 1980 and moved to Brooklyn Heights. By that time, miracle of miracles, I was making real money. Later, we moved to Connecticut.”

  “I was raised near Los Angeles.”

  How much, Sorrentino wondered, was she prepared to tell him about herself? He said, “Is that right? When did you leave?”

  “When I left for college. I think I was sixteen. I might have been seventeen. Some place along the way I skipped a year of junior high school.”

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  “My,” Vincent said. “I did the third grade twice. I got held back.”

  “Don’t be impressed,” Julie laughed. “I was running in a very slow field.”

  The three of them—Sorrentino, Julie, Kim in her carriage—

  stopped. They were at the corner of 86th and Fifth, waiting for the light to change. As they started across the broad street, Sorrentino tried to look only at her profile because he didn’t want to embar-rass himself by making it obvious that he was taking in all of her slender beauty. She wore faded blue jeans that encased her legs, her rear, her waist. Her pink button-down shirt revealed the outline of her breasts.

  Julie said, “Why don’t we cross over to the Met, sit down, and let Kim play a little. She likes the fountains.”

  They crossed Fifth Avenue to the wide stone esplanade in front of the museum. The long, narrow fountains to the right and left of the central staircase were on, water rising from dozens of pipes and falling into the stone basins. They sat on a green bench under the delicate green trees, and Julie released Kim from the stroller. She walked toward the fountain.