“Mr. Iello,” Judge Turner put in, “may we have questions and answers instead of a story?”
“Mr. Iello,” Epstein continued, “were ethnic matters mentioned before members of the Hudson County prosecutor’s office?”
“I heard the term ‘niggers’ mentioned several times. ‘They’re all criminals,’ I heard them saying. And that was in my parents’ home, right in front of my mother and father.”
“Who are ‘They’”
“De Vivani and another officer. They said, ‘Oh, your son has to do this for the families of the people who were murdered.’ That crack upset my stomach. I became extremely nervous. I couldn’t figure out why it had to be me to do something for people I never even knew and don’t want to meet. If I had an attorney I wouldn’t have been there, I would have been out of town. Far out.”
“When you were asked what reward you hoped to get, did you not answer, ‘I was never promised anything from the prosecutor’s office?”’
“I gave that answer. It was a lie. De Vivani had told me I was going to get a reward of either ten thousand or twelve thousand five hundred. I forget which.”
“Then you were aware of this reward before the trial?”
“Of course.”
“When was the last time your attorney requested this reward?”
“The last time he mentioned it I told him, ‘Forget it. You aren’t needed. Leave me alone. Don’t bother me.’”
“You gave the police a description of Mr. Calhoun sitting in a white car. Was that true or false?”
“I remember saying I had seen a white car. I forget who I told that to.”
“Do you recall seeing Mr. Calhoun in it?”
“How should / know where Calhoun was that morning? He may have been in his car. He may have been fighting in Madison Square. He may have been home in bed with his wife. I don’t try to keep track of things which are none of my business.”
The first thing state’s attorney Scott asked Iello was whether he remembered telling detectives Conroy and Motley, in a diner in Paterson, that he had seen Calhoun coming out of the Melody Bar and Grill with a revolver in his hand.
“I remember telling them I wasn’t sure who it was,” Iello replied.
“Do you recognize these initials?” Scott asked him, showing Iello his own initials—K.P.I.—on the margin of a statement he had made for the prosecuter’s office, identifying the killer as Ruby Calhoun.
“Is this not your signature?” Scott demanded.
“Yes,” Iello conceded, “but at the time B was under pressure. I just went ba-ba-ding ba-ba-ding, just ripped it right off.”
“I regret we don’t have music for that lyric,” Judge Turner observed.
“You were going ba-ba-ding, ba-ba-ding for two complete pages,” the prosecutor reminded Iello. Do you recall that?”
“I just wanted to get out of there and get it over with.”
“Do you remember that, in the police van, you made certain statements about how you were going to get De Vivani?”
“What was the statement I was supposed to have made? I just came out of a hospital for being a chronic alcoholic. I don’t even remember what happened two months ago. How can I answer a question when I don’t even know what you’re going to tell me?”
“He’s asking you,” Judge Turner interposed, “whether or not, on your return trip to Bergen County jail, you said anything about Lieutenant De Vivani. That’s a simple question.”
“I don’t remember offhand.”
“Did you say this to Detective Zileski?” Scott asked. “I’ll let you look at it.
“That doesn’t mean a thing to us,” Judge Turner decided. “If you want to ask him you have to ask him so it’s on the record, sir.”
“I’ll ask him so it’s on the record. Do you remember saying this: ‘They fucked me again, I’ll get all those cocksuckers back. I should have signed that fucking statement the other day when I had the chance. I’ll get all the motherfuckers back starting with the prosecutor’s office. I don’t give a shit if they give me five hundred years. They fucked me long enough. Tell De Vivani I’ll fix his ass. You’ll read about it in the Times Sunday. I’m going to sign that statement.’ Did you say that?”
“Not in words like that. I seldom use foul language.”
“What words did you use?”
“I don’t remember.”
“You swore in an affidavit that a couple cops jumped you in the street and broke a couple of your ribs. Did you say that to Mr. Kerrigan?”
“That ought to be rephrased.”
“Rephrase it.”
“The cops were standing right there while I was getting worked over by one of their heavies. That is just how it went. It’s on the record where I got my ribs fixed. Those could be gotten.”
“Has your memory improved since you talked to the officers?”
“What officers? Look, the night all this happened I’m not even sure I was talking to Baxter. Look, you don’t go into and out of a bar and have a murder without being a little excited. I may have talked to somebody. I don’t remember exactly because there was such a crowd there. I believe, for a time after that shooting and way up into the trial and through it, I must have been in some type of shock or something. I was under strain. I didn’t even realize what was happening until years later.”
“Were you under the same type of strain,” the prosecutor asked, “when you talked to Mr. Kerrigan?”
“I was under pressure for three months in that lousy Hudson County jail. It’s where I got my back sprained and I had a tooth pulled with the roots left in the mouth and now I’m in P.C.”
“Please give me the names of the people who kept harassing you in the county jail.”
“If I did there’d be only two people left in there.”
“When was the first time, and to whom, did you say, ‘When I said the man I saw was Ruby Calhoun, I was lying’”
“When I gave that statement to Mr. Kerrigan.”
“Was this the first time you had seen Kerrigan?”
“I’d seen him once or twice before, last year. He wanted me to talk but I didn’t want to come forward at that time. Later I thought, why not get it off my chest once and for all?”
“What is the present charge against you in the Bergen County jail?”
“There is no charge against me in the Bergen County jail. I’m there because I sprained my back in the Hudson County jail. I was sent to the hospital because Hudson County said I was insane. The nurse there said to me, ‘You ought to be on the cuckoo farm. You’re nutty as a fruitcake. There are only forty-four cards in your deck.’ ‘That’s eleven more than there are in yours, Butch,’ I told her. ‘Your oil don’t even hit the dipstick. You been around the bend so long you can’t see ahead of your ass.’ So they said, ‘We don’t know what to do with him, let’s ship him to Bergen County.’ So they shot me down here. For two years I was tellin’ De Vivani I wouldn’t have anything further to do with New Jersey vs. Calhoun. I washed my hands of that case. ‘Count me out,’ I told De Vivani, ‘I’m doing all right on my own without all that.’”
“Can you explain to us, once again, what you meant when you told us you had been fashioned by Hudson County?”
“I was in a room with fifteen cops and one of them said to me: ‘This is the way it’s to be. No other way.’ That was how Hudson County fashioned me. Hudson County promised to take care of me in event I should get jammed up. I believed I was doing the right thing. Then things got worse after De Vivani visited me. They stopped my mail. The whole reason was so I wouldn’t testify against them. I’m testifying all the same, just to let people know exactly the way they are and just what happened.”
“Testify to what?” Judge Turner asked Iello.
“To exactly what I did know at that time, just about what I can recall, that’s what.”
“Mr. Baxter,” defense attorney Epstein asked the second witness, “you know that I am Ruby Calhoun’s attorney, do you not?�
�
“Yes.”
“Mr. Baxter, on the morning of June seventeen, nineteen hundred sixty-six, at about two-thirty A.M. …
“Hold it, Jack. Hold it. I don’t want to hear nothing.”
“I’m sorry,” Judge Turner asked with some surprise, “I didn’t hear you. You want to say something?”
“Yes.”
“What do you want to say?”
“Nothing.”
“Did you talk to your lawyer before you came on the stand?”
“I don’t want to say anything, your honor.”
“You don’t want to say anything. May I ask you why not?”
“Just don’t.”
“Just don’t?”
“No.”
“Under our law, when you are subpoenaed as a witness you must testify under oath unless there is some good reason which you assert why you should not. So far I haven’t heard anything. You can’t just come into court and say ‘I don’t want to say anything.’”
“Just don’t.”
“Let me warn you, sir, that unless you testify the court will issue an order compelling you to testify. If you violate such an order you face confinement for contempt. Is that clear?”
“Let me talk to my lawyer.”
The court waited while the witness conferred with Max Epstein. He was back on the stand in minutes.
“Mr. Baxter, you met with Mr. Kerrigan and myself last night, did you not?”
“Yes.”
“You told us both that you wanted to do the right thing, to come here and testify. Is that right?”
“I said I’d testify. So all right. I’m here.”
“Mr. Baxter, on the morning of June seventeen, nineteen hundred sixty-six, at about two-thirty A.M., were you at the rear of a supply plant called Apex Supply?”
“Mr. Epstein, do you have to go through all this detail?”
Epstein turned to the judge. “Your honor, I think the witness is nervous.”
“I’m not nervous,” Baxter corrected him, “I just didn’t see what I said I saw, that’s all.”
“That doesn’t mean anything to us,” Judge Turner informed the witness. “What did you say you saw that you didn’t see?”
“I didn’t see anything. I wasn’t even on that corner. That’s it.”
“Do you remember going toward the Melody Bar and Grill?” he asked the witness.
“No. I was never going toward there. I was never going toward there my whole stupid life.”
“Did you identify Ruby Calhoun as being at that scene?”
“I did.”
“Was that true?”
“No. That was false. I lied.”
“Why did you lie?”
“I was facing charges. Numerous counts. Four different counties.”
“Did anyone ever tell you that, in return for your testimony, you would be helped in respect to those charges?”
“More or less, yes. By the county prosecutor’s office.”
“An office, a room, tells us nothing,” Judge Turner pointed out. “Do you have information as to who told you that?”
“It isn’t a question of that, your honor.”
“What is it a question of?” Judge Turner persisted. “Can you answer my question or can’t you answer it?”
“No one ever really threatened or pressured me. I knew myself what I was facing. Nobody told me.”
“So it wasn’t anybody in the police department or in the prosecutor’s office who said to you, ‘Look, we want you to say there was a white car and that one of the people in it was Ruby Calhoun?’ Did anybody tell you to say that?”
“No.”
“Then you lied of your own accord and not through the suggestion of somebody else?”
“I was told that the prosecutors in each county would be advised of my testimony and would probably help my sentencing.”
“Who told you that?”
“Lieutenant De Vivani.”
“Did you feel,” Epstein resumed, “that you were going to be helped by testifying?”
“I wasn’t helped as much as I ought to have been. They were questioning me, showing me photographs and telling me this and that but all I had in mind was just one thing—to get out of there. I didn’t care about anything except that I was fearful of just one thing: all the time I was facing.”
“The first day you were in custody,” Judge Turner reminded the witness, “you took off and they caught you on the police range. Is that right?”
“Correct.”
“Ten days later you escaped once again and you were gone two days before an officer rearrested you and returned you to headquarters?”
“I wasn’t confronted by just one officer.”
“You mean that a couple of them grabbed you as you were coming out the back door with Esteban Escortez?”
“Correct again.”
“When you were in Bordentown, how many officers came to see you?”
“Two.”
“Did you discuss the Melody Bar and Grill murders with them?”
“That’s what they came there for. To feel me out.”
“And when, in reply to your question, ‘Who was the person in front of you?’ and your answer was, ‘I wasn’t sure,’ you are now telling us that that was made up?”
“Right. Iello came running back up to me and handed me money. And all he kept saying was, ‘Get out of here, get out of here. Take this stuff and get out of here.’ He wasn’t acting right.”
“Were the officers around you discussing the murders?” Epstein asked the witness.
“Mr. Epstein,” Baxter complained, “you are asking me questions I have no way of answering. All I remember is how they went over my statement. I saw a way out of the mess I was in. I bought my way out. Then I came home one night and Kerrigan was waiting for me with Don Kessler.”
“Who is Don Kessler?”
“Someone I knew from jail.”
“Is he a friend of Calhoun’s?”
“He was locked with Calhoun.”
“Was he locked with you?”
“Correct. And what I told Kessler was that I had no doubt but that Calhoun had been framed by the Jersey City police.”
“Thus the trial judge must himself consider where the truth probably lies,” the State Supreme Court of New Jersey decided in State vs. Baldwin, “and if the trial court is satisfied that the present testimony of the recanting witness is unbelievable, the application must be denied.”
Judge Turner’s opinion, on the motion for a new trial, was based upon the above precedent. In assessing the credibility of both recanting witnesses he felt that a cloak of suspicion was upon them because it took them seven years after the trial to confess their alleged perjury.
“Baxter claimed he had created the details of his own testimony,” Judge Turner decided. “He did not attribute his alleged perjury to pressure from anyone. He repudiated his previous testimony about hearing shots and observing a white car. That had been a figment of his imagination, he told the court. He had said that he had withheld information out of fear of involving himself in the break-in at the Apex Supply plant and also out of fear of retribution from friends of Calhoun.
“There is also evidence of a revenge motive, on Iello’s part, toward Lieutenant De Vivani. In both witnesses there exists an overwhelming fear of bodily harm from followers of Calhoun.
“Finally it is appropriate to discern motives in witnesses; but this pair is so devious, and so immoral, this court cannot analyze their mental gyrations or their actions.
“The jury, not the court, determines the witness’s credibility. The jury decided that the defendant committed a triple homicide. In absence of such recanting evidence as would indicate a miscarriage of justice, such a verdict must stand.
“There remains no support for the contention that the state knowingly permitted a witness to perjure himself. This court therefore accepts Baxter’s answer, that no promises or guarantees have been made to him.
“I believe in the jury system. The jury said Calhoun was guilty. It is not my privilege to alter that finding.
“I am therefore compelled to refuse a second trial to Ruby Calhoun.”
“Any man can make a mistake,” Nick Iello commented upon Judge Turner’s denial of a new trial to Ruby Calhoun, “but only a man who totally wants to become part of society will take the stand and admit he has made a mistake and will correct it openly. I put myself into jeopardy with the authorities by testifying against the prosecution. But this is a small thing when one considers how much Ruby Calhoun has taken in his years of confinement. Judge Turner doesn’t understand that in nineteen hundred sixty-six and nineteen hundred sixty-seven I was a sick, confused alcoholic. He assumes I was lying now, but it was then that I was lying. This time I did tell the truth.”
“You tell the truth, they don’t believe you,” Dexter Baxter complained, “when you lie they suck up every word. I should have known something like this would happen. The judge is so wrong. Why should I go up there to admit I lied? No one gave me fifty thousand dollars to do a thing like that. I had nothing to gain. The judge disregarded how convenient it had been, how I’d been allowed to overhear what the detectives had in mind, so I could get the story they wanted to hear together without they’re having to tell me directly.”
“Two statements from known criminals,” Iello added, “become two very small voices. They believed me in nineteen hundred sixty-seven because what I said then fitted into what the prosecutor wanted said. I’m willing to testify again, right now, for Calhoun.”
Iello, at this time, was serving a nineteen-month sentence in the Bergen County jail for burglary.
4
Moonigan
Dovie-Jean had Stared unbelievingly at the price list of the Carousel when Red first showed it to her:
BEER … $3.75
SMALL SPLIT BOTTLE … $30.00
COCKTAIL … $10.00
“Strictly legit,” Red assured her, pointing to the official sanction of these outrageous prices:
The Devil's Stocking Page 19
