Innocence On Trial

by Rick Bowers

  “Yeah, I guess you’re right, Nick.”

  “I have one more point to make.” Nick paused, as if searching for the right words. “It’s going to sound cruel and crass and totally uncaring. I apologize in advance.”

  “What is it?”

  “It’s about the Lamberts.”

  “Okay.”

  “Well, their daughter was a stripper, a drug addict, and an alcoholic. Their daughter was killing herself.”

  “Yeah.”

  “Where were their tears when she was alive?”

  72

  Former-strip-club-bouncer-turned-drug-dealer, Jimmy Dean Bernadi, knew that once he took the oath to tell the whole truth, he would lie his ass off. Bernadi had memorized the script prepared for him by friends in high places and was ready to recite the words in open court. In response to a set-up question posed by Prosecutor Ward, Bernadi pointed to the defendant, swearing that Nash had stormed into the Bottoms Up Gentleman’s Club the afternoon before the murder.

  “Nash sat at the bar and demanded a beer. I served him. I wanted to calm him down. He seemed all agitated and nervous. To tell you the truth, he seemed out of control.”

  “What happened after that?” Ward lobbed the softball questions before stepping back to admire Bernadi’s swing. “What did the defendant do?”

  “He started peppering me with questions about Erin: Where was she going after work? Was she still on the pills? I told him the truth: She’d been going out to that bridge to get high. Eddie went nuts. He threatened to go out there and make her pay for all her lies. Let me put it this way: Eddie said—and I quote—‘I’ll kill the bitch.’”

  As for his own whereabouts at the time of the murder, Bernadi presented the jury with what appeared to be a solid alibi. He had taken time off from the Bottoms Up to attend a rock concert in Buffalo. According to Bernadi, when Erin Lambert was hanged from that bridge, he was a hundred-and-fifty miles away, swaying to a rock-and-roll beat with ten-thousand other music lovers.

  “The police corroborated my alibi. I was nowhere near that bridge.”

  ***

  As the prosecutor returned to his table, Laura studied her legal pad. On the top page, she had scrawled six words: Genesee. Two. Planted. Pink Floyd. Alibi.

  She’d made the notes after a phone call with Delilah, who’d been researching the life and times of Jimmy Dean Bernadi. Laura also had memorized the report from Lou, summarizing the backroom conversation between Bernadi and Demario at Angel’s Gate. She knew the creep was testifying from a prepared script, and she had to push him off it. Jimmy Dean Bernadi was none too smart, she thought, and he could be manipulated on the stand.

  “Mr. Bernadi.” Laura blocked his view of the jury. “You testified that Mr. Nash ordered a beer from the bar at the Bottoms Up. Is that right?”

  “Yeah.”

  “What kind of beer?”

  “What?” Bernadi laughed at the question. “Look, this happened ten years ago. I don’t remember who ordered what back in 2009. Do you remember what kind of beer you drank on a specific date ten years ago? Give me a break.”

  Laura turned to the judge. “Your Honor. Permission to treat the witness as hostile?”

  Judge Striker looked down at Bernadi’s slicked-back hair and leather jacket. “Granted.”

  “Mr. Bernadi. Did Mr. Nash have just one beer? In point of fact, didn’t he have two beers?”

  “Hmmm.” Jimmy seemed nervous. “Now that you mention it. Yeah. It was two beers. Big deal.”

  “What kind of beer? Eddie always favored Genesee.”

  “Yeah. That was it. He had two Genies. In those green bottles.”

  “Makes sense,” Laura said. “Genie is a local favorite. Brewed right up the road in Rochester.”

  “Good beer,” Bernadi said. “We sold a lot of it.”

  “Thank you, Mr. Bernadi. Now…”

  Laura paused for a moment to watch him squirm. Silence had that effect on bad liars. She had to keep him off-balance. She recalled a Mets game her dad took her to as a kid. The Mets pitcher threw hundred-mile-an-hour fastballs that the Dodger hitters pasted all over the park. The Dodger pitcher threw slow curves the Mets batters whiffed at and popped up. Laura was going to feed Bernadi a steady diet of slow curves.

  “You testified that you had an alibi. You claimed to be attending a music concert in Buffalo the night of the murder.”

  “I didn’t claim it,” Bernadi snapped. “I was there. Love a good concert. I’m a hard rock connoisseur.”

  “Did you go with a friend?”

  “No.”

  “Did you save the ticket stub?”

  “No.”

  “Did you use a credit card at the venue?”

  “No.”

  “So, you can’t prove you were there.”

  “The cops checked it out. They verified it. I was there.”

  “Like they verified the tire track evidence?”

  The prosecutor shot to his feet. “Objection.”

  “Withdrawn. Mr. Bernadi. What band headlined the concert?”

  “What?”

  “Who was the headliner? The main act?”

  “Um, damn… I know this… don’t tell me… hell, I don’t recall at the moment.”

  “You don’t recall the headline group?”

  “Nope. It was a long time ago.”

  “Pink Floyd headlined the concert. Who forgets Pink Floyd? Even ten years later? You call yourself a rock connoisseur?”

  Bernadi shifted in his seat and tugged at his leather sleeves, then wiped beaded sweat from his forehead and coughed into his balled fist. “I forgot, okay? It happens.”

  “You saw Pink Floyd. One of the most famous rock bands of all time. And you don’t remember it?”

  Bernadi looked around the courtroom like a kid lost in a grocery store.

  Laura scanned the courtroom pews. Detective Demario sat in the third row. The right side of his mouth was twitching, and his eyes flashed like hazard lights. PI Charles Steel stood against the back wall. He shook his head back and forth. No. He had not found the towel.

  “Mr. Bernadi. Jimmy Dean.” Laura was setting him up for the fall. “Were you really at that concert?”

  “Yes.”

  “Okay. Let’s recap your testimony. Just to make sure we understand. Prior to the murder, you served Mr. Nash two bottles of Genesee beer at the Bottoms Up. It follows that you collected two empty Genie beer bottles from the bar after he left. It also follows that Mr. Nash’s fingerprints and DNA were on those bottles, which were in your possession the afternoon before the murder.”

  “Umm. I guess.”

  “Were those the two bottles that ended up at the crime scene? The ones seized by the police? The ones with the defendant’s DNA?”

  “No. No way. I know nothing about that.”

  “Now, Mr. Bernadi. Jimmy Dean. You also testified that you left the club that afternoon and drove to Buffalo. You were going to attend a rock concert. Except you have no ticket stub, no credit card receipt, no one saw you there, and you don’t remember the headline act: The unforgettable Pink Floyd.”

  “I guess so. Listen. It is what it is.”

  “Isn’t it true you never attended the concert?”

  “No. I mean, I did. I mean, yes. I did go to the concert.”

  “Isn’t it true you went out to the bridge to meet Erin?”

  “No.”

  “You were angry with her. For breaking up with you. You committed this crime and planted the empty beer bottles to incriminate Mr. Nash.”

  Bernadi sat dumbfounded, stupefied, and mute, a deep shade of red washing over his face.

  “Objection! Objection! Objection!”

  “Thank you, Mr. Bernadi. No further questions.”

  73

  THE EXONERATI
ON ALLIANCE

  INNOCENCE BLOG

  BREAKING NEWS:

  Exonerations Hit Record High

  For the fourth year in a row, the number of exonerations in the United States hit a record high. Two-hundred-and-seventy-two men and women across the country were added to the National Registry of Exonerations. This brings the total number in the national database to 2,568. The registry has captured detailed information on all known exonerations in the U.S. since its founding in 1989. Each person in the database was convicted of a major crime and later cleared as a result of new evidence of actual innocence. Registry Founder, Professor James Samuelson of UCLA Law School, said the growing numbers prove that wrongful convictions are more common than ever believed:

  “Many prosecutors, police officers, and judges continue to insist that wrongful convictions are rare exceptions—the price we pay for a civil society. We now know just how wrong they are. In fact, imprisoning an innocent person is an all-too-common occurrence.”

  74

  “The Council Against Wrongful Convictions” was etched on a temporary sign on the foggy glass door of the rental office at 124 Main Street in Eden. A winding staircase led to the sparse, second-floor workspace. Laura sat at a thrift-store desk, crafting questions for the state’s expert psychiatric witness, who was set to take the stand when court reconvened on Monday. Feeling a need to stretch her legs, she clutched her half-full coffee mug and strolled to the plate-glass window that overlooked the street. She’d spent much of the night talking to Nick on the phone. He had become a supportive listener. His calls had helped her through the rough patches.

  Laura watched the storm pummel pedestrians at the intersection of Main and Church. The brave souls pushed against a gusting wind that blew sheets of ice and snow into their faces. Ice crystals clung to telephone wires, and the branches of oaks and birches bent toward the sidewalk in the plaza across the way. Beyond the buildings, in the distant hills, the sun wove in and out of the inky clouds rolling in from Lake Erie.

  Laura reflected on the case in the silence of the moment. For the most part, the defense of Eddie Nash was off to a good start. The strategy of counter-punching the prosecution witnesses was damaging the state’s case. Detective Demario’s cross-examination had pried loose an important cornerstone of the prosecution’s narrative: The confession. The rattled detective’s arrogant embrace of military-style interrogation techniques confirmed that the confession was coerced in violation of police standards and common decency. The county medical examiner’s cross-examination had loosened another pillar in the case against Nash. The ME’s description of the hanging cast doubt on Nash’s ability to even commit such a precise and complex act. This crime reflected the skill of a cold, calculated executioner with knowledge and experience in the grim hangman’s art. Then, there was the cross-examination of the former strip club bouncer. The bumbling and stumbling Jimmy Dean Bernadi had handed the jury a viable alternative to the prosecution’s theory. Did Bernadi lie about his alibi? Did he drive out to that bridge? Did he kill his ex-girlfriend? It seemed, Laura thought, that the defense was building reasonable doubt. Was it enough to motivate the jurors to acquit? Not yet.

  Despite the small victories, Laura guarded against overconfidence. Those narrow courtroom successes, those skillful manipulations of bad witnesses and weak evidence, were not enough. Short of a breakthrough, State of New York v. Edward Thomas Nash II would be decided by a second jury verdict.

  Laura looked down at a legal pad and lifted a ballpoint pen. She had a thought to incorporate into the final statement to the jury.

  Imagine this: You turn on the news to learn that a close friend has been murdered. You’re reeling from the shock, when the police knock on your door. You’re eager to help them find the killer, until you realize the shocking truth: You are their target. You’re arrested. You’re chained to a wall. You’re beaten with a phone book. Threatened with a gun. Suffocated into falsely confessing. You’re dragged into court, dressed in an electrocution belt, and called “a monster.” You’re found guilty and sent to prison for the rest of your life. And you’re innocent.

  She put down the pen. She was getting ahead of herself. She needed a breakthrough.

  The only game changer in sight was the bloodstained towel—the likely source of exculpatory DNA evidence—and it was nowhere. Charles and Lou had cultivated sources to scour the Erie County evidence room, to no avail. They had cultivated another source to search the state police lab, to no avail. Where was it? Given the monstrous nature of the crime, and the unpredictability of human nature, without that evidence, those twelve mortal men and women might do anything, including convict an innocent man for the second time. She needed that bloodstained towel. Charles and Lou had to find it. Where were they?

  Buzz. Buzz. Buzz.

  The front door buzzer snapped her back to the here and now. Who could that be? She hustled down the narrow staircase, opened the door, and gasped with delight.

  “Dad!” she said. “Tripod!”

  75

  John Tobias brushed snow off his blue-and-white ski parka before opening his arms in an eagle spread.

  Laura stepped out the door and into his arms before bending to embrace the shivering, three-legged Border collie.

  “What are you doing here?” She looked up at her dad’s wind-reddened face and snow-flecked stocking hat. Laura scooped up Tripod and headed back upstairs. “Come in,” she urged, looking over her shoulder. “You must be freezing.”

  John stomped his black snow boots on the ground before following upstairs. “Winter picked a hell of a day to make a show of force.”

  Laura stored his coat, hat, and gloves in the closet at the top of the stairs, then carried the collie to the threadbare couch. Settling on the worn cushions and holding Tripod in her lap, she asked her father the obvious questions: “Why are you here? What’s going on?”

  John pulled up a wooden chair and sat opposite her. The smile on his face gave way to a serious glower. Reaching into his red-and-white flannel shirt, he withdrew a set of papers, a half-inch-thick stapled sheaf, folded down the middle. After straightening out the fold, he held out the cover page, revealing the emblem of the New York State Police.

  Laura strained to read the title:

  NEW YORK STATE POLICE COMMISSION ON CORRUPTION

  DRAFT

  CONFIDENTIAL

  “What is this?” Laura asked. “It looks official.”

  John opened to the first page. “Remember how I told you I’d been tapped to serve on a special commission to examine police corruption in New York State?”

  “Yeah.” She nodded. “Thanks to your rep as the prosecutor of crooked cops.”

  “Well, the chairman just distributed this memo. It summarizes the results of a major investigation into police misconduct in western New York State.”

  “Hush-hush? And you’re showing me?”

  “Look, kid. I have to be straight. I am crossing an ethical line. I’m making a conscious choice to cross that line. You have to know what’s happening around you. You have to understand the people you’re dealing with. The danger you’re in. You’re my daughter, for God’s sake. Ethics be damned.”

  Laura nodded. “I get it. So, I’m making the conscious choice to cross my own line. I want to know what’s in it. What I’m up against. I want to know just how bad these people are.”

  John flipped to Page Two and starting reading. “This memo summarizes the findings of a two-year joint investigation by the New York State Police and the FBI into suspected law enforcement corruption in four counties in western New York State. The probe found that a network of rogue police officers took bribes and payoffs from legitimate businesses in exchange for protection, and skimmed drugs and money from major narcotics dealers. The police conspired to arrest, convict, and imprison suspects without regard for guilt or innocence to build their reputations as ‘super-cops.’ Cer
tain prosecutors, judges, and prison administrators either took part in the scheme or turned a blind eye to the corruption.”

  “Holy—!” Laura gasped. “What a scam.”

  “An unprecedented breach of duty.”

  “How did it work?”

  “You’ve heard of ‘heater’ cases?”

  “Heater cases?”

  “Okay. County prosecutors had the option of designating high-profile investigations as ‘heater’ cases. Each case was funded to the hilt and fast-tracked to expedite an arrest and swift conviction. The cases were routed to the detectives with the highest arrest rates, and judges with the highest conviction rates and most severe prison sentences.”

  “A straight line to the slammer.”

  “Yes.”

  Laura tilted her head. “There’s still nothing illegal about a program of efficient prosecutions and convictions.”

  “Until a band of rogue cops formed a secretive network—codenamed ‘Vigilance’—to supercharge the process. The Vigilance cops routinely manufactured evidence and lied on the witness stand to make sure suspects went down fast and went away for long stretches. Vigilance prosecutors kept a steady line of convicted defendants flowing into the state prison system, while prison administrators made it hard for those inmates to meet with lawyers or file appeals. The pipeline just went on and on. Justice ran amuck.”

  Laura pictured the face of Attica Superintendent Leon Wilkes, and the swirling red-and-blue lights of a prison patrol car. She recalled all the bureaucratic barriers, designed to block her face-to-face meetings with her client. Was Wilkes part of the scheme?

  She returned her focus to her dad. “Why would the cops go to the trouble of framing innocent people?”

  “The detectives became gods in blue uniforms. The highest conviction rates. The biggest cases. In the shortest amount of time. No one wanted to question the success of cops who were taking bad guys off the street. Their reps as arrest and conviction machines insulated them from scrutiny from Internal Affairs and state police inspectors. These ‘super-cops’ were making the streets safe from crime, so they did as they pleased.”