The Law of Second Chances

by James Sheehan

  Jack knew this was the moment to make a record for appeal. If Langford didn’t grant his motion and give him time to get his own expert, Jack would have a better-than-average shot at overturning a conviction on appeal. At the moment, that was looking like Benny’s best hope.

  Langford Middleton didn’t reply right away; he was trying to think of a way to keep the whole thing from falling apart. His stomach was grumbling.

  After a long few moments he looked at Jack. “We don’t have to make a decision today on your motion, Mr. Tobin. We’ll let Officer Ingram do his tests, and you can meet with him and talk to him. Who knows? He may not be able to say this gun is the murder weapon. I’ll tell you this, Mr. Tobin: the people of the state of New York have rights too. They have a right to see that justice is served, not delayed. If Mr. Ingram determines that this is the gun that killed Mr. Robertson, I’ll want to hear this opinion outside of the presence of the jury before making my final decision on your motion. Now, is there anything else?”

  “Yes, Judge,” Spencer Taylor replied. “I am requesting that you enter an order releasing prosecution’s exhibit number 6—that’s the bullet, your honor—to Detective Severino so that he can deliver it to the state’s ballistics expert.”

  “So ordered. Anything else?”

  “No, Judge,” they both answered.

  The lawyers returned to their tables and the judge addressed the spectators. “Ladies and gentlemen, some new matters of evidence have come up, as they often do during trials of this nature. We are going to have to recess for the day. We will resume promptly on Monday morning. Please leave the courtroom now in an orderly manner.”

  He called the jury in next and gave them the same speech. The judge then left the courtroom.

  Spencer walked over to Jack, who was huddled with Luis and Benny. “Call me at three o’clock this afternoon,” Spencer said, cutting in. “We can probably set up a meeting with the firearms guy at that time.” Jack nodded curtly, and Spencer turned and left.

  Only Jack, Benny, Luis, and Benny’s guards now remained in the courtroom. The guards gave them room to talk.

  “What happened?” Luis asked.

  Jack looked at Benny. “I don’t want you to say anything during this conversation. Just listen.” He turned back to Luis. “They think they found the murder weapon.”

  “They think?”

  “They have to test it. That’s the reason for the delay.”

  “This is bullshit. They’ve had this all along. They just waited to spring it on us.”

  “Hold on there, Luis. We don’t even know if it’s the gun.”

  “Do you think their expert, a police officer, is going to say it’s not the gun, Jack? Come on.”

  “But he has to give reasons, and we can attack his reasons.”

  “It doesn’t matter, Jack.”

  “What do you mean, it doesn’t matter?”

  “Look me in the eye and tell me that if they have the gun Benny has any chance of getting off.”

  “Luis, the gun doesn’t really put them in a better position. They had the bullet. Now they have the bullet and the gun. Who shot the gun is the issue.”

  “I don’t trust these people, Jack. There’s more to this, you watch. The dandy has something else up his sleeve.”

  Jack felt it too. Spencer was holding something back. They would have to wait until Monday to find out what it was. “You may be right, Luis. We’ll just have to deal with it as it comes—make our objections for the record and keep fighting.”

  Benny sat silently through the whole exchange, but his expression spoke volumes.

  63

  Henry and Valentine set out early Friday morning for Castle Hill Lake, stopping first at the local Wal-Mart to buy winter coats. It was freezing cold, and the roads were icy. Valentine turned out to be very good at directions and they found Milton Jeffries’s cabin without too much trouble; it was right on the lake. Unfortunately, the door was locked and nobody was home.

  While Henry tried the windows, Valentine walked around to the back porch that faced the lake and did some investigating of his own. Henry caught up with him out on the dock. The lake was frozen, and there were some fresh snowmobile tracks leading from the dock.

  “It snowed here last night, so those tracks have to be fresh,” Valentine told Henry. “Which means he left this morning. Who knows where the hell he went?”

  “Damn!” Henry exclaimed. “We should have come last night.”

  “We never would have found this place last night, Henry, you know that. We’ll just wait.”

  “That’s a big lake out there, Valentine. He might be gone for days.”

  “Unless he’s got a cabin out there on the ice or a honey on the other side of the lake, he’ll be back today. He’d freeze out there overnight.”

  “We’re going to freeze here,” Henry replied.

  “Let’s just go find a place to eat and we’ll come back from time to time and check on the place.”

  At four o’clock that afternoon Jack met at a downtown office with Pete Ingram, the firearms expert who had analyzed the newfound gun. Jack had anticipated that Spencer Taylor would be present during the conversation. He never expected to be able to question the prosecution’s expert alone. Spencer had to be extremely confident.

  Pete Ingram got right to it. “They told me to tell you everything, so here it is. The gun they found is a Glock 17 semiautomatic. All the serial numbers were filed off, so we couldn’t tell where it was purchased or who purchased it. You probably know how we test a gun to see if it was used in a crime, but I’ll tell you anyway.” Jack smiled and nodded encouragement for him to continue. “It’s very simple. We load the gun with a cartridge or bullet of the same make and type as the one found at the scene. We then fire the gun into a soft material, retrieve the slug, and compare it under a microscope with the slug found at the scene to see if the lands and grooves match. I assume you’re familiar with those terms?”

  Jack nodded again and said, “Yes, thanks. So what did you find?”

  “I could show you the slides, but it’s easier if I describe it. I can tell that the slug from the crime scene is from a Glock. Their grooves are unique, and there’s enough there for me to determine that. But I can’t compare the slugs. The one found at the crime scene is too distorted. Thus, I can’t match that slug to the gun that was found.”

  Jack couldn’t believe his ears. The system actually did work. He started to smile but caught himself. Now was not the time to relax. Spencer Taylor might have other surprises up his sleeve.

  Henry called Jack that night.

  “How’s it going?” Henry asked.

  “Not well. They supposedly found the murder weapon yesterday.”

  “You’re kidding me! A year later, in the middle of trial, they find the gun? That’s a little convenient, isn’t it?”

  “It sure is, but I think we can deal with it. Have you got anything?”

  “Are you sure we should do this over the phone?”

  “Stick to the ground rules we talked about and we’ll take the chance. I really need some good news.”

  “Well, the good news is we found our man. The bad news is, he won’t talk to us. We waited for him to come home all day, and when he finally arrived, he wouldn’t talk to us. This guy is really spooked. He knows something, and I’m not sure what it is. I think we’re dealing with something that’s way over our heads, Jack.”

  “We can’t think about that, Henry. Listen, you’ve got until Tuesday. Stay there and keep trying to get him to talk. If you find out anything, get here as fast as you can. At that point, don’t call me or tell me when you’re coming or what you’ve got—the risk would be too great that they’d try to stop you. And keep an eye on that Busby guy. He may be our only hope if nothing else comes up. See you Tuesday morning.”

  “I’ll be there.”

  Jack called Charlie right away. “Got anything yet?”

  “Nothing.”

  “Well, we
’ve got an extra day. Don’t call me before you come. I don’t want to know when you’re coming or where you’re staying. We can’t trust the phones anymore. I’ll see you in the courtroom on Tuesday morning at the latest, and you can give me anything you’ve got then. It’s the criminal courts building, 100 Centre Street, eleventh floor. And have Dick and Joaquin escort you—I don’t care what the cost is. All right?”

  “We’ll be there.”

  64

  It had warmed up a little, and by Monday morning the temperature was into the low thirties. But that wasn’t the reason the sidewalks were jammed again. Spencer had leaked the discovery of the gun to the press over the weekend, and it had made front-page news in all the papers.

  Jack could tell from his first sight of Spencer Taylor in the courtroom that the prosecutor still had a few surprises in store for him.

  “Mr. Taylor, as I stated on Friday, you can call your next witness outside of the presence of the jury,” Judge Middleton told Spencer after he had entered the courtroom and the proceedings had begun for the day.

  “Before I call that witness, your honor, I would like to call the police officer who found the gun so we can establish a time line.”

  “All right,” the judge said and spoke directly to the bailiff. “Bring the jury in.”

  After the jurors were seated, Spencer rose from his place at the prosecution’s table and announced his next witness.

  “The state calls Detective Joseph Fogarty, your honor.”

  As the bailiff brought him in, Joe Fogarty avoided looking at Jack. Only when he took his seat in the witness chair did they make eye contact.

  Spencer had Joe give his name, rank, precinct, and all the other preliminaries as quickly as possible. He was clearly anxious to get to the meat.

  “Officer Fogarty, tell the jury what you did at approximately eight o’clock on Friday morning.”

  “Well, I got a call at home about seven that morning from downtown. They told me they had received an anonymous call the night before. The person said he knew where the gun used in the Carl Robertson murder was located. He said the gun was in an abandoned building where Benny Avrile lived in the South Bronx, behind a loose brick in the wall. So they called me.”

  “Is that all the person said?”

  “As far as I know.” It was all hearsay, but Jack wasn’t going to object and give Spencer the opportunity to parade about five more cops into the courtroom.

  “Why did downtown call you?”

  “I’ve known Benny for about five years, maybe longer. We used him for information.”

  “He was a snitch?” Spencer spat the words out.

  “Yeah.”

  “Did you know where he lived?”

  “Yeah, I knew the building and that he was on the fifth floor.”

  “So what did you do?”

  “I immediately went up there and searched for the loose brick. It took me about fifteen minutes. I pulled the brick out and there was the gun.”

  Jack was furious. He had felt in his bones that Spencer Taylor was holding something back. Now he knew what it was. Spencer spent the rest of his time establishing the chain of custody from the time Joe Fogarty picked the gun up until it appeared in court that morning. He offered the gun into evidence.

  Jack was on his feet. “May we approach, your honor?”

  “Come on,” the judge replied.

  Jack was still so angry when he reached the judge’s dais that he could hardly speak.

  “Judge, there is no evidence that this was the gun that was used in the murder,” Jack said. “Therefore, it should not be admissible.”

  The judge didn’t even ask Spencer Taylor to comment.

  “I agree with Mr. Tobin. At this point, there is no concrete evidence to establish that this gun is the murder weapon. You can try and do that with your next witness, Mr. Taylor.”

  It was a small victory, but as he walked back to counsel table, Jack realized he had made a major mistake not objecting to Joe Fogarty’s testimony before the man said a word. He should have demanded that Fogarty also testify outside the jury’s presence. Now, even if he got the gun excluded as evidence, the jury had heard that a Glock 17 had been found where Benny lived. There was an old saying in the law: “You can’t unring a bell.” The jury could be instructed not to consider the evidence, but they had already heard it. Spencer Taylor had snookered him.

  “Cross-examination, Mr. Tobin?” the judge asked when the lawyers had returned to their seats.

  “Yes, your honor.” Before he stood, Jack glanced at Benny, who was staring straight ahead, expressionless. Then he turned to Luis, who was looking at the floor, shaking his head back and forth. Luis had predicted these last-minute tricks, and Jack had told him not to worry. Now Joe Fogarty had linked the gun and the bullet to Benny. Jack walked to the podium and faced Joe Fogarty.

  Jack recalled the promise he had made to Joe as they sat on the stoop around the corner from the Carlow East. But that was before either one of them knew that Joe was going to be one of the star witnesses for the prosecution. So what was it going to be? Honor his promise to a man he didn’t know, or defend his client with every weapon he had? At that moment he also remembered that Frankie O’Connor had trusted him not to betray Joe.

  Joe Fogarty was sitting on the witness stand rubbing his hands together nervously. Jack saw the look of fear in his eyes.

  “Detective Fogarty, you said you knew the defendant, Benny Avrile, for five years or more, is that accurate?”

  “Yes.”

  “And he lived in a condemned building?”

  “Yeah, that’s accurate.”

  “And when you got information from him, did you pay him?”

  “Sometimes.”

  “Getting information like this is a part of law enforcement, isn’t it?”

  “Yes.”

  “An essential part?”

  “I’d say, yes.”

  “So Mr. Avrile was assisting law enforcement in a way?”

  “Yes.”

  “If you knew where Mr. Avrile lived, were there other people in the neighborhood who also knew?”

  “I’m sure there were. It wasn’t a secret.”

  “Did the place where the defendant lived have a door that you could lock?”

  “No.”

  “Anybody could get in there?”

  “Sure.”

  “Had you been up there before?”

  “Yes. After Benny was arrested, I took a team of forensic people up there and we searched the place entirely. I didn’t know about the hiding spot behind the brick, though.”

  “A few moments ago Mr. Taylor took you through the chain of custody from the time you picked this gun up until you brought it into this courtroom. Chain of custody is a procedure you follow in every case, isn’t it?”

  “Yes.”

  “And that is to ensure that evidence is not tampered with, stolen, or replaced, isn’t it?”

  “Yes.”

  “So you can walk into this courtroom and account to the jury for every moment that a piece of evidence has been in your custody, correct?”

  “Correct.”

  “And when a piece of evidence is collected, it is marked and entered into a logbook and placed in the property room or evidence room at the police department, correct?”

  “Yes.”

  “And the evidence room is guarded at all times?”

  “Yes.”

  “But this gun was in an open and unguarded room in a condemned building, correct?”

  “Yes.”

  “And there was no chain of custody before you retrieved it last Friday morning, correct?”

  “That’s true.”

  “Can you tell the jury as you sit here today whether it was there for a year or a day before you retrieved it?”

  Spencer Taylor wanted to object, to throw Jack off his rhythm, but he couldn’t—he had no grounds.

  “No, I can’t say how long it had been there,” Joe Fogarty
replied.

  “Now, the anonymous person who called the police on Thursday evening and told you where the gun was located obviously knew about the hiding place behind the brick, correct?”

  “Yes.”

  “Was the gun tested for fingerprints, do you know?”

  “Yes, it was. Nothing came up.”

  “Did the gun have any serial numbers so you could trace who purchased it?”

  “No. The serial numbers had been filed off.”

  “In the five years that you knew Mr. Avrile, did you ever see him with a gun?”

  “No.”

  “Do you know whether he owned a gun?”

  “No.”

  “Was he ever involved in any type of violence to your knowledge?”

  “No.”

  “You were the officer who arrested Mr. Avrile, correct?”

  “That’s correct.”

  “Did he resist in any way?”

  “No.”

  “Did he have a gun on him at the time?”

  “No.”

  This was the spot. Jack had the questions on the tip of his tongue. Did you tell Benny to clam up the day you arrested him? Did you tell him to clam up because you thought he was being railroaded because some big shot had been killed and the brass downtown needed a sacrificial lamb? Did you meet with me? Did you tell me the same thing? Joe was shifting again nervously in the witness chair.

  “No further questions, your honor.”

  Joe looked at Jack and held his gaze for a moment. His hands went still and his shoulders visibly relaxed. Jack merely turned and walked back to his table.

  “Redirect, Mr. Taylor?”

  Spencer thought about it for a moment. He had what he needed, and Jack hadn’t made any dents in that. “No, your honor.”

  When Joe Fogarty had exited the courtroom, Judge Middleton explained to the jurors that they once again had to be excused while he took up some legal matters with the lawyers. Jack noticed that some of them looked disgruntled. After they had filed out, the judge addressed the prosecutor.

  “Call your weapons expert, Mr. Taylor.”

  “The State calls Officer Peter Ingram.”