“First, he doesn’t have anything except what we have, Dr. Maish’s report from the Tombs. Second, for anything else he’d have to get a physical examination of Alvarado. The United States Constitution guarantees that no person can be forced to be a witness against himself. Alvarado can’t be forced to submit to a physical examination.”
Mike nodded, impressed.
CHAPTER XII
Monday, April 8th, 1968
The court session did not begin until eleven. At ten forty-five, Siakos entered the courtroom accompanied by Mrs. Hernandez. She sat alone in the first row of the spectator’s section until the jury was polled and the judge sat on the bench. Siakos called her to the witness stand. The eyes of the jurors followed her with curiosity, watching as she was sworn. She stood tall, her strong, firm body accented by a clinging red and black silk dress.
Mrs. Hernandez testified, through the interpreter, that at about 8:30 the morning of July 3rd her husband drove her to the factory on East 121st Street where she worked. She next saw him about noontime; they ate in a nearby luncheonette. Some of her fellow workers, she said, were there at that time. At about I P.M. she went back to work and gave Hernandez a dollar to buy gas. The next time she saw her husband, he was under arrest, charged with murder.
At the station house, where she arrived at approximately 6 P.M. that day, the police kept her in a side room on the second floor. She was under constant observation and was not allowed to go to the ladies’ room or anywhere else. At one time, the police moved her to a bench in the hallway near the stairs. After a while, she saw Hernandez coming down the stairs with some detectives. He had no shoes on, his hair was disheveled, and he was wearing only his undershirt, trousers, and socks. He looked quite racked.
When the detectives walking with Hernandez realized who the woman was who was sitting in the hall, they immediately had her moved back into the small room, where she was watched by two policemen. Mrs. Hernandez testified that she remained there for many hours. When Alvarado was brought into the station house about 1:30 A.M., he was taken into that room. Much later, about 4:30 A.M., she was taken into another room, the office of detectives. There was a large steel cage in the corner. In the cage, on the floor, moaning and groaning, holding his stomach, was Hernandez. Alvarado was on a chair in the middle of the room, his hands handcuffed behind his back. Mrs. Hernandez said that except when the police took her home to search her apartment, she was kept in the police station until 9 o’clock the next morning.
Siakos had no further questions. Sam stood to cross-examine. Mrs. Hernandez testified that when Alvarado was brought into the small room where she had been detained, one of the detectives hit him across the left side of the face with a vertical karate chop. Alvarado’s nose began to bleed.
“Could you identify the man you say hit Alvarado if you saw him again?” Sam asked.
“I believe so,” the interpreter said.
Sam had the five detectives brought into the courtroom again. Mrs. Hernandez studied them a moment. She stepped off the stand, on her firm, taut legs. Her dark eyes were narrowed. She walked to the railing on the other side of which the officers were lined up. She walked past each, her eyes looking straight into theirs: Garcia, Johnson, Tracy, Jablonsky, Mullaly. Mullaly was looking over her head at the wall. She poked her finger out at him, almost puncturing his chest.
“Him!”
“Let the record show she has pointed to Detective Mullaly,” said the judge.
The detectives left the courtroom, and Mrs. Hernandez took the stand again. Sam had no further questions.
Ellis stood in place, rolling a pencil between his hands.
“Have you ever seen your husband sick from want of drugs?”
“Yes.”
“By the way, did you ever give him money to pay for drugs?”
“I paid for food and the rent, never for drugs,” she answered firmly.
“When Hernandez was sick for lack of drugs, did he moan and groan.”
“Yes.”
“And when you saw him in the cage, on the morning of July fourth, when he was moaning and groaning, was it the same as when you had seen him sick from want of drugs?”
“Yes,” she said softly, without hesitation. Her honesty was compelling.
“I have no further questions.”
“Look at that jury,” Sam whispered. “They respect her.”
Sandro looked at the jury box. The jurors continued to watch Mrs. Hernandez, seeming to admire her spirit and fearlessness.
“She sank her own husband a little just now. As the jury sees it, she’s got to be telling the truth,” Sam continued. “And if she’s telling the truth, then what she saw Mullaly do to Alvarado must be true. We got some great mileage out of that.”
“Ellis doesn’t even dare ask her about that karate chop,” said Sandro.
Siakos called as the next witness on the voir dire, Dr. Joseph Waters, the Tombs doctor who had examined Hernandez on July 3rd, 1967.
Dr. Waters was short and graying and wore glasses and a white, knee-length medical coat. Somehow the coat made him look more like a butcher than a doctor. He took the stand and was sworn. Siakos handed him Hernandez’s medical cards. He read them.
“Did you give this man a physical examination, Doctor?”
He read the cards. “Yes, yes. There was the usual examination upon commitment. I don’t remember the man.” The doctor looked up to study the counsel table. He didn’t know which man was Hernandez. He shook his head.
“What sort of physical was it, Doctor, gross or detailed? Can you tell from those records?”
“We observe the men, mostly observe, to determine their condition.”
“What were the results of this examination?”
The doctor looked at the cards. “Nothing remarkable. Nothing on the heart, no venereal history. He was an addict.”
“Do you have his blood-pressure reading?”
“No, that wasn’t done.”
“Or heart evaluation?”
“No.”
“Those cards say no marks on the man’s body, do they not?”
“Yes, right here. No marks.”
“And if there were any unnatural or unusual marks you would have noted that fact?”
“Yes.”
“Does it note there any puncture holes and scar tissue on each arm from constant injection of heroin?”
The doctor studied the card again. He shook his head.
“Don’t shake your head, Doctor,” the judge admonished. “The reporter must hear your answers, and unfortunately he can’t hear your head shake.” The judge twisted and winked toward Sandro.
“No.”
“Doctor, will you look at this man’s arms? May we, Your Honor?”
“Certainly.”
Hernandez was brought forward. The doctor examined his arms.
“Are there scars and marks that were not recorded on these cards?”
“Yes.”
“Old scars and marks?”
“They do not appear to be recent.”
Siakos nodded. “Does the card indicate anything else, Doctor?”
“Yes, there’s a diagnosis of traumatic pleuradynia, here.”
“What is pleuradynia, Doctor?”
“An inflammation or difficulty with the pleura.”
“Where is the pleura, Doctor?”
“Behind the ribs, by the lungs.” He pointed to the middle of his own chest.
“You point to the middle of your own chest, Doctor?”
“Objection.”
“Overruled.”
The jury was alert and fascinated.
“It can be in there, yes,” the doctor answered.
“And what does the word traumatic before pleuradynia signify?”
“The pleuradynia resulted from some trauma.”
“What is a trauma, Doctor?”
The doctor rubbed his chin. “It means something to do with an injury.”
“Actually, doesn’
t trauma mean injury caused by an external force, an external shock or blow?”
“Objection.”
“Overruled.”
“Yes, it can mean from a blow.”
“In other words being struck by something or someone.”
The doctor hesitated. He looked at Siakos steadily. He nodded. “Yes.”
“What treatment did you give Hernandez for this traumatic pleuradynia, Doctor?”
The doctor studied the card. “Two aspirins,” he replied.
“Just like the lousy Army,” Sam whispered, not breaking the flow of his note-taking. “I wouldn’t let this guy take care of my bunion.”
“Do the cards indicate anything else, Doctor?” Siakos asked.
“A contusion of the left chest near the breastbone.”
Two of the jurors edged forward to listen.
“What is a contusion, Doctor?”
“A bruise, a discoloration without a break of the surface.”
“And do you diagnose a contusion objectively, by feeling and seeing, or by being told by the patient?”
“You can see it.”
“And if it says contusion, is it a reasonable assumption that you actually saw and felt a contusion, and it wasn’t just something the patient complained about?”
“Yes.”
“Doctor, will you look at this man’s chest now, particularly at two marks on the left side near the breastbone?”
The judge allowed the guards to bring Hernandez forward again. The doctor examined Hernandez.
“Can you see anything there?”
“Yes. Two slight discolorations.”
“Could that be the remnants of the contusion you noted almost a year ago?”
The doctor scratched his head, rubbed his chin. “It’s in the right place. It could be, I suppose, but I don’t know for sure.”
“Anything else done for this man, Doctor?”
“Yes. His chest was strapped.”
“What with, Doctor?”
“Bandages. All around.”
“When you say all around, Doctor, tell the jury where, if you will?”
“Well, from about the top of his chest, around the armpits, down to his waist.”
“What does strapping do, why is it done?”
“Usually it’s to relieve pain. Holds the chest and eases pain.”
“And this strapping was of the whole chest?”
“Objection sustained, repetitious,” the judge said without benefit of Ellis.
“How many times was this man treated by the doctors in the Tombs?”
“Since the beginning?” The doctor read and then counted ponderously. “Sixty-two times.”
“I have no further questions.”
“Let’s take a short recess,” said the judge. He admonished the jury and returned to his chambers.
When court resumed, Ellis, wrinkling his nose, began to question the doctor. Most of Hernandez’s sixty-two clinic visits after the chest-strapping appeared to be complaints of the prisoner, and there did not appear to be any further indication of objective findings of contusions. Ellis had the doctor re-examine the scars on Hernandez’s chest.
“It’s an old scar,” the doctor said. Although not displaying it to the jury, Ellis was ebullient. “About six months to a year old, perhaps,” added the doctor. Ellis could almost be heard to deflate.
The doctor testified that the marks came from some abrasion or contusion in the skin. Ellis sat while he was ahead.
Siakos had no further questions. He rested Hernandez’s evidence on the voir dire.
“Your Honor, on the basis of this evidence, I move to exclude any alleged statement made by the defendant Hernandez on the ground that it could not be voluntary beyond a reasonable doubt.”
“Your Honor,” Ellis said, rising. “I have some evidence on the voir dire which I’d like to present.”
“Yes, we’ll hear Mr. Ellis’s evidence.”
For his first witness on the voir dire, Ellis called Lieutenant Garcia of the Seventh Squad. Garcia was about fifty years of age. He did not look Spanish. He looked like a cop.
Garcia testified he was never in the third-floor locker room on the evening of July 3rd, 1967, or the early morning of July 4th. He recalled that the first time he saw Hernandez was in the detectives’ squad room on the second floor shortly after 5 P.M., July 3rd. From there, Hernandez had been taken upstairs and Garcia did not see him again until he was brought down about 6 P.M. At that time, Garcia had been tied up with an inspector and did not speak to Mullaly or any other detective who had been upstairs. Hernandez was placed in the clerical office, connected by a door with his own office.
“Lieutenant Garcia, did you ever hit, strike, kick, or in any way physically abuse this defendant?”
“Certainly not.”
“Did you ever say anything to insult or abuse the defendant, his race, religion, or anything like that?”
“Certainly not.”
“Did you see any other person or policeman or detective do any of these things in your presence?”
“No, never.”
“I have no further questions, Your Honor.”
“Proceed, Mr. Siakos.”
Siakos asked Garcia how many policemen had been working on the case. The lieutenant answered it was a huge manhunt, perhaps four hundred policemen. He further testified that he was in charge of the investigation because he was commander of the precinct detectives. He said he spoke to Hernandez after he was brought down from the locker room at 6 P.M.
“Did he tell you anything about this case.”
“Yes, off and on.”
“And for how long, would you say, did he tell you things?”
“Well, on and off for several hours. As we needed information.”
“Did he deny to you sometime after 6 P.M. that he had anything to do with this crime?”
“In the beginning he did. He made no admissions.”
Siakos continued, not changing his tone or delivery. Sandro moved to the edge of his chair. Sam stopped writing notes and looked up.
“How many times would you say that, after six o’clock, he denied flatly having had anything to do with this crime?”
“Once or twice, perhaps three times.”
Siakos continued, trying to open a bigger hole in the prosecution case. Mullaly had said there was never a denial by Hernandez, and by 6 P.M. the confession was complete. Now the lieutenant testified there were still denials on and off for several hours after 6 P.M.
At this point, the judge recessed the jury and the court for lunch.
Siakos walked over to Sam and Sandro, keeping his back to the jury as they filed out.
“You got him now,” Sandro exclaimed.
“Sure,” said Siakos, smiling.
“Mullaly and friends were probably afraid to prep the lieutenant and tell him what to say,” added Sam. “Too bad we had to go to lunch before finishing him. Wait and see if his whole story isn’t straightened out over lunch.”
After lunch, Siakos questioned Lieutenant Garcia about all his activities after 6 P.M. on July 3rd, 1967. Garcia testified that Hernandez stayed in the clerical office until 9 P.M., when he was taken to Brooklyn to point out Alvarado’s house. On his return, Hernandez was put in the cage in the squad room while awaiting the D.A., who was to take a formal statement. Garcia testified they had returned from Brooklyn about 11 P.M. He said he saw Mrs. Hernandez at the station house that night, but only once, about 8 P.M.
Garcia testified that at no time did he see the prisoner manhandled; nor did he ever see the prisoner when he looked as if he had been manhandled. He never saw the prisoner without all his clothing.
Siakos was looking now for a strong point upon which to end the examination.
“How many times all together would you say the defendant Hernandez, when in your office after six P.M., denied to you any guilt in this case?”
“I object, Your Honor, there’s no such testimony in the record,” said Ellis
.
“He made a mistake trying to bring him back over this,” Sam whispered. “He’s going to lose all his points right now.”
“I’m afraid the district attorney’s memory is conveniently faulty,” said Siakos.
“Wait a minute. Your Honor, I don’t think such remarks are proper. Mr. Siakos knows better than that.”
“Gentlemen, let’s not argue amongst ourselves. Rephrase your question, Mr. Siakos.”
“Lieutenant, I believe you stated previously that you questioned Hernandez intermittently from six P.M. to nine P.M. IS that right?”
“Yes, sir.”
“And I believe you further stated that Hernandez denied any participation in this crime?”
The lieutenant tilted his head a bit and crossed his legs. “What I meant to say, sir, is that he denied shooting the patrolman.”
“Lieutenant, didn’t you testify before you went to lunch that Hernandez denied at least twice, after six P.M., any part in the crime?”
“I didn’t understand your question.”
Sandro and Sam both knew Siakos was enraged. His face was impassive, however, projecting only calm to the jury.
“How many times have you testified in court, on any cases, Lieutenant?”
“I’d say approximately two hundred times.”
“You’re not nervous here, then, are you?”
“Not nervous, no.”
“And if I ask you whether a man denied any part in the crime, and you say, yes, he denied any part in the crime, what would you mean by that?”
The lieutenant puckered his mouth. “Well, I understand your question to be—from what I understand, the part that he denied was the shooting of the patrolman.”
“I told you the sons of bitches would straighten him out over lunch,” Sam whispered to Sandro, not taking notes, just watching.
Siakos tried to recall the exact words of the question he asked the lieutenant before lunch. Ellis objected that Siakos’s paraphrase was not exact. The judge called a recess, so that the stenographer who had recorded the morning’s session could type the relevant passage and bring it to the court forthwith. The lieutenant went back to the witness room. Ellis followed him as soon as the jury had retired.
“You can’t fight that,” Sam said, watching Ellis.
“It’s so goddamn obvious,” said Sandro. “I hope the jury gets the byplay.”
PART 35 Page 33
