Enemy Within

by Robert K. Tanenbaum

  “Fuck the president! I mean about McBright. Norton here says he’s going to announce today.”

  “He’ll make a fine district attorney,” said Karp.

  “No, Butch, you’re supposed to express horror and predict sheer anarchy and chaos in the streets.”

  Karp said, “McBright! My God, there’ll be sheer anarchy and chaos in the streets. Besides that, do you think he has a chance?”

  Fuller answered, “Hell, yeah, he has a chance, the fucker. Historic first black New York DA? The minority vote’ll eat it up, and the usual West Side liberal-guilt vote, a lot of that will roll his way, too. I think we got a fucking serious fight here, chief.” Fuller had a deep, gravelly voice, remarkable in so small a man. Karp suspected he kept it low through conscious effort. That and the salty language. Being tough was high on Fuller’s list of virtues.

  “Which means,” Fuller continued, “we absolutely have to have the whole goddamn white, ethnic, law-and-order vote, which means we got to have the union endorsements, especially the cops.”

  “We’ve always had the union endorsements,” said Keegan.

  “Right, but McBright’s father is a sanitation worker. That’s a lot of votes. And there’s the Jews, too. This whole fucking Benson thing. You need to come out on that ASAP. In fact, it would be good if you came out with it when McBright announced. Fucking steal some of the bastard’s thunder.”

  Both men now looked at Karp. Keegan asked, “What’s going on with Benson, Butch?”

  “Roland thinks it’s a strong case,” said Karp.

  “Roland always thinks it’s a strong case,” said Keegan. “What do you think?”

  Karp waggled a horizontal hand. “Strong depends on what you’re going to do with it. Strong enough to convict? Yeah, I’d say so.”

  “Remind me.”

  “Jorell Benson, nineteen, record for strong-arm robbery, did time in Spofford and Rikers. Just after six P.M. in a stairwell of the Bowery subway station on the M line, it’s a Friday, last August, he accosts Moishe Fagelman. Fagelman’s a diamond merchant. He’s going home for the Sabbath. Benson demands his jewels and money, shows a knife. Fagelman resists and is stabbed. He dies on the platform. Two days later, Benson walks into a shop in the diamond district and tries to sell three stones. The merchant, needless to say, recognizes the stones, calls the cops, and they grab him up. Subsequent search of Benson’s room reveals a paper envelope with seven other diamonds. These are identified as belonging to Fagelman. Benson’s story is that he found the stones in the subway.”

  “Well, duh, I’ll believe it,” said Fuller.

  Karp ignored this and went on, “No murder weapon was found, and no blood was found on Benson’s clothes. The token clerk at the Bowery station, a Mr. Walter Deng, picked Benson out of a lineup as having been through the station at about the time of the murder. On interrogation of Benson’s known associates, the police came up with Alicia Wallis, age sixteen, who told the cops, and later testified to the grand jury, that Benson had told her he was going to, quote, get paid off of one of them Hymie diamond guys, unquote, and that he had shown her the proceeds of the robbery on the night thereof. Benson has no significant alibi, admits that he was on the subway at approximately the time of. That’s basically the case. The good part, that is.”

  “What’s the bad part?”

  “Alicia. At the original Q&A she said she didn’t know nothing. Then later, she went to the cops and told her diamond story. Roland wants to call her and cross-examine her as to her conflicting testimonies and let the jury decide when she was telling the truth.”

  “And you think . . . ?”

  “It’s a risk. It’s allowed under the Green decision, as you know, but it’s a risk in this case. You got a young girl there, probably show up at the trial in a white dress and Mary Janes—the defense will bring out how she was browbeaten by the cops to implicate her boyfriend, establishing in the jury’s mind that maybe the cops did other not so nice stuff to close out a high-profile case with the first likely African-American male. Assuming we get past that, I would predict a conviction on the token clerk’s witness and the possession of the stolen goods. Benson, by the way, has an IQ of seventy-two. The question for you, Jack, is do we have enough coal to fire up a death-penalty conviction, and here I’d say we have not.”

  “That’s crazy,” blurted Fuller. “He tracked the victim—that’s lying in wait. And murder for profit. Two special circumstances. And no mitigation. The fucker’s a career criminal. Also, and I can’t stress this enough, Jack, the Jewish community is ballistic on this case. And business. The whole diamond trade depends on guys walking around with fucking millions in their pockets, and nobody bothers them. And emotionally, look at the picture—a guy’s going home for the Sabbath, and this little piece of shit kills him. I mean, if you’re not going to go for fucking death on this one, when are you?”

  Keegan listened to this rant in silence. He turned to Karp. “Well?”

  “I can’t help you, boss,” said Karp. “I got no experience with death-qualified juries, and we haven’t had a likely case since they reinstituted the penalty. You’re the only person in this building who’s ever won a death-penalty murder case.”

  Keegan nodded. “Yeah, I guess I am. Twenty-eight years ago, just before they banned it, that was the last one. Before that, I sent four guys to the chair.”

  “That’s a big selling point, too,” said Fuller. “In the election. But it won’t help if you wimp on this one. Our polls are running three to one to give him the needle.”

  Karp stared at the man, his eyes widening. “You’re taking polls?” He looked over at Keegan. “Jack . . . polls? To influence your decision on a criminal case?”

  Keegan said, “Nah, for crying out loud, it’s just part of the campaign. Everybody takes polls, Butch. And, you know, I opposed the death penalty, I spoke against it up in Albany. But now we’ve got it. We represent the People, and the People, for whatever reason, have concluded that executing murderers is a good thing. And this case, Benson, is exactly what the public had in mind when they pushed to change the law, a stranger killing for profit. So Norton’s right—if not this, when the hell?”

  “Jack, you’re the district attorney,” said Karp, and got the cigar pointed at him.

  “I love when you tell me I’m the district attorney in that tone of voice. You think I’m violating my principles for political expediency?”

  “I would never say that, Jack.”

  “You’re thinking it, though. Just tell me one thing: Are you ethically opposed to death under any and all circumstances?”

  Karp gave this question some thought. “No. Not under any and all. Probably there are a few, a very few people, your Ted Bundy, your John Wayne Gacy, your Ed Gein, Eichmann, who shouldn’t be allowed to breathe the same air as the rest of us. Where the guilt is so manifest that a trial is a formality, and the guy admits it and says he’ll gladly do it again. Like that. Maybe. But a semimoron like Benson, who denies it, where we have nothing but circumstantial evidence, a weak eyewitness, no weapon, no forensics? No, then I think not. Life in the can? Yeah. Execution? I’m not comfortable. Obviously, the people I put away for murder, they all did it. The people you put away I’m not so sure of.”

  A frosty smile here. “Funny, that’s just how I feel. About your cases, I mean.”

  “Right. My point being is that we both know about how trials work and how little things throw them one way or the other. It’s good enough for the usual kind of case, because in the back of the mind you’re thinking, ‘I know this guy did it beyond a reasonable doubt, but still, if it turns out he didn’t, if I missed something, the cops screwed up, then we get off with an apology and compensation.’ We kill the guy, though, that’s a whole other moral universe. I think I’m pretty good at this work, but I have qualms about my ability to function in that environment. And the state, hell, this office is full of prosecutors who got no more business trying a capital case than they do starting fo
r the Yankees.”

  Karp looked at Fuller as he said this, but Fuller did not pick up the look. Looking down, he was shaking his head from side to side, like a goat searching for a choicer patch of clover.

  “No, Butch,” Fuller said, “you’re not focused on the real problem. The real problem is that Jack stands a good chance of losing the Jewish vote if he gets all squishy about this prick. McBright is a strong deathpenalty guy, which is why he’s a viable candidate in the first place. I mean a black guy practically has to be if he’s going to run for DA in this state. And against McBright, you absolutely have to have that vote, all of it. I mean, fuck it, moral scruples and all are fine, but after the election.”

  Karp closed his ledger and stood. “Terrific! Look, if you’re actually going to bring political considerations into this kind of decision, or any prosecutorial decision, then there’s no point in me sitting here. You know what I think of shit like that.”

  “Sit down, Butch,” said the DA. After a minute pause, he did so. The DA continued, “And I do know what you think, since you’ve never been shy about comparing your unsullied purity with my base corruption. In any event, I will come to a decision in re Benson on the merits, as I always do. Now, can we move on?”

  Karp moved on, summarizing the reports of the various bureau chiefs.

  “Oh, some good news,” said the DA. “I assume this Marino prosecution is going to go down with no problems?”

  “Apparently so. Police Plaza seems to have washed its hands. The guy is a baddie, with a record of petty corruption. Of course, they should have bounced him ten years ago, but who’s complaining.”

  “And Cooley, no problems there?” A long pause. “Butch?”

  “A white-on-black cop shooting?” said Karp, pursing his lips in a manner that could have been either judicious or the response to an unpleasant taste. “You’re not going to avoid some controversy. Catafalco seems to be moving with uncharacteristic speed.”

  “That’s good,” said Fuller. “Speed is good here. We want the thing locked up before we get into serious campaigning. It drags on, McBright is going to make an issue of it. Our position is a simple case of police selfdefense. Only one cop with his gun shooting, too, that always plays well. The perp is a known felon. The perp turned his monster truck around, this huge Cherokee SUV, a fucking tank, and charged the police car on a highway. What could Cooley do but shoot? It’s a no-brainer.”

  Karp said, “Vic, Norton.”

  Fuller stared at him. “What?”

  “Vic. If you’re going to use that salty cop talk, technically Lomax is the victim here. The perp is Cooley. Technically.”

  “Oh, please,” said Fuller, bridling, and then Keegan said, “What I want to know is, Catafalco thinks it’s a clean shooting and he expects a no-bill?”

  “So he tells me,” said Karp, now in a tired voice. It was, he knew, one of his moral failings, to let the exhaustion get to him, to sink into passivity in the presence of people who did not get it, who would never get it, even if he screamed or pounded on desks. He sat back into his chair and observed the other two men through half-closed eyes. Fuller would never get it. Ambition and the hallucination of control had rendered him permanently blind. A man like that should be selling cigarettes at an ad agency or brokering shady bond issues. Keegan was another story. Keegan got it. Keegan had, in fact, taught Karp to get it, years and years ago. Now he got it unreliably, like an old-fashioned radio in a thunderstorm, the message only coming through amid static and howls. Was it mere age, Karp wondered, or the effects of office that eroded the decent man and left the hollow politician, a core of cheap eternal plastic? Or ambition? A term at DA and now he saw higher office as a possibility, maybe follow Tom Dewey into the state house, maybe something beyond even that. Or the times? The dreadful seventies, when public order in New York had nearly collapsed, or the eighties with their twelve hundred murders each year and lesser crimes almost beyond counting, battering the DA’s operation into a kind of moral pulp, the natural food of people like Fuller and Catafalco. Now they were in the nineties, hooray, the new gilded age—crime was down, way down, everyone was rich, except the poor, who were suitably cowed now, not at all like the threatening, hostile poor of twenty years ago. The cops ruled the streets again. He wondered why this victory did not taste sweet to him.

  Keegan was talking to him, some details about court scheduling, some meetings to set up. Karp wrote in his green ledger, making minimal responses. The meeting ended, and Karp went back to his office.

  “How was His Excellency today?” asked Murrow.

  “Excellent, as usual,” answered Karp, throwing his ledger fairly hard against the side of a steel filing cabinet, which made a loud bass-drum sound in response.

  “Uh-oh,” said Murrow. “Should I hide, or would you like to take out your frustrations by abusing me and making me cry?”

  Karp threw himself down in his chair, kicked it back against the wall hard enough to shiver plaster, and put his feet up on the desk. “It is all your fault, Murrow. The corruption of the criminal justice system by politics, the cowardice of its guardians, the worms and vipers creeping in everywhere, the stupidity, the incompetence, the criminal ugliness of this building even, the tackiness of our work environment—all this I lay at your door.”

  “I’m sorry, sir. I’ll try to improve in the future. But aside from that . . . ?”

  Karp laughed, not without bitterness. “You know, Murrow, I’ve been in this business for a long time. I started working for the greatest district attorney of all time, Francis P. Garrahy. This was before the deluge, the whole crime-in-the-streets insanity. He actually expected everyone who worked for him to be decent, honorable, and competent. He actually expected, and I know you’ll find this hard to believe, that people who committed crimes should go to jail for the time stipulated in statute, and if they didn’t plead guilty to the top count, he would try their ass, and win. Then I worked for a human slime mold named Sanford Bloom. I find that hard to believe, but I did, and not only did I work for him, I actually rescued him on a number of occasions from the results of his folly and misfeasance. I quit the office on two occasions, I’m proud to say, and then I came back.”

  “Why did you?”

  “I’m an addict,” said Karp. “I need to smell a criminal trial on a regular basis even if I don’t do them anymore. I should write ‘Stop me before I prosecute again’ in lipstick on the men’s room mirror. Anyway, eventually I put Bloom in jail. Now we have Jack Keegan, who I have to say is a lot closer to Phil Garrahy than he is to Bloom, but the rot is still there. Politics.”

  “It’s a political office.”

  “Yeah, right, the people get to decide if the guy’s doing a decent job and toss him out if he’s not. But you can’t decide how you’re going to handle a case on the basis of what you think various segments of the population will think about it; then you might as well hang it up. I mean, forget the law and trials and procedures—just haul the defendant up to the top of the courthouse steps and let the mob decide. I really think we’re going to condemn this dumb kid to death to keep a segment of the electorate happy.”

  “Didn’t Benson do it?”

  Karp sighed. “That’s not the fucking point, Murrow. What’s happening is that a decent Orthodox Jew with six kids was murdered in the subway and we got a black kid up for it, and we can probably wangle a conviction. What we don’t do all the time is execute people like that. It was one of the things that distinguished the great state of New York from places where I personally couldn’t stand to live for a long weekend, like Texas and Florida. No more, apparently. And then there’s Lomax.”

  “The cop shooting.”

  “Right. Here’s the first installment of that lecture I threatened you with, the police in the criminal justice system. Okay, first off, we know they do stupid cop tricks. It’s part of the game we play with them. A little perjury on the stand, a little illegally seized evidence, the occasional foray into coerced confession
s, the very occasional naked frame-up. Every cop wants to be judge, jury, and executioner, if they possible can. It makes their job a lot easier, and especially, it makes them feel better. They have a really shitty life. So they do stupid cop tricks, and we catch them at it and throw the cases out, and then they can curse us out for bleeding hearts, civil liberties nuts, which makes them feel good, too. And if we don’t catch them, which is a percentage I don’t like to think about too much, then they can say, ‘Hey, we did our job— you guys fucked up.’ That makes them feel good, too, and superior to a bunch of candy-ass lawyers. So it’s a winwin for the cops, which is why they keep doing it.”

  “You think this shooting is a stupid cop trick?”

  “I don’t know. On the one hand, there’s the incredible-idiocy defense. Is it credible to believe that the NYPD—in the situation they’re in now, with the Mollen report, with the exposure of corruption, with these crazy cop shootings, here in the post–Rodney King era—would actually conspire at the highest levels to cover up a bad shooting? I would not buy that at this point in time.”

  “You think it’s not a cover-up?”

  “Not as such. I think every ass above captain on this thing has got to be stuck inside a pair of stainless-steel Jockey shorts. No one has ever actually said, ‘Hey, let’s lie, cheat, and steal and get old Cooley off the hook.’ But I do think they want to make it go away. ‘Pay no attention to the man behind the curtain, folks.’ Like that. And they’re depending on us to help them make it disappear, hence the intemperate speed. Hence . . . hmm.”

  Karp’s eyes had gone blank and he was frozen in position; his finger, raised to make a point, stayed erect and directed at the ceiling, as if he were for the moment transformed into a classical statue—Large Jewish Lawyer, Late Hellenistic Period. Murrow did not panic, nor did he call 911 to report a case of narcolepsy. He was used to this tic in his boss. If Karp’s mind were a 1950s computer, it would be whirring and clicking and spitting out punched cards.

  After a decent interval, Murrow said, “Hence . . . ?”