The Right to Remain Silent

by Charles Brandt

  I had her attention. I continued. “I don’t know what this intake thing really is, but I’m on my own time now, and why I’m a cop or how long I’m going to remain a cop is my own business. What about this investigation? Out with it.”

  “Out with it? That’s the point. Out with everything. It’s the worst thing I’ve ever seen. The written confession is unusable in any court of law in any state. Ditto for the oral confession. Ditto for the identification that Stevie Morris made in the principal’s office. Ditto for the red bandanna you took out of his back pocket. Sum total. No evidence. No case. Gandry walks as soon as I pick up this telephone.”

  “That doesn’t make any sense. I don’t understand.” My legs felt weak. I was tired and I realized that I was still standing.

  “First of all, you handcuffed Gandry in the hall and searched him without probable cause to do so under any U.S. Supreme Court definition. Next, you staged a lineup in the principal’s office that was unnecessarily suggestive. There’s a Delaware decision tossing out evidence of an out-of-court identification in a principal’s office exactly like yours. Then, you didn’t give him his Miranda rights. That is unbelievable. You didn’t tell him he had the right to remain silent, that anything he said would be used against him in a court of law, that he had the right to an attorney, and that if he couldn’t afford an attorney one would be provided free of charge. Good God, he even asked for a lawyer. Haven’t you ever heard of the exclusionary rule?”

  “If that’s what they call it, it’s an FBI rule. The FBI should have rules against them with all their power, but not us. They used to ask us to get evidence for them that they could use in court only if we got it. Are you saying all those old FBI rules now apply to us, too?”

  “Oh, brother. What did you read in Brazil? Nothing but menus I bet. Those old rules and some new ones are the law of the land, and I wouldn’t want to live in a land without them. This isn’t Brazil. Individual liberty is what this country is all about.”

  “It took me awhile to learn to read Portuguese,” I said. “Where I was, the people can’t read. Besides, they don’t publicize things like that in Brazil. I want to learn about it. Now.” I sat down and looked intently at her. “This is important. If this boy walks out of jail tonight, he’ll be far more dangerous than he was this morning. Explain all this law to me. Maybe I’ll see some way of handling this.”

  “I can’t do that. It’s very complex. I couldn’t teach you enough in one sitting to get you through a purse snatching. You’d have to take a course in it. Furthermore, the rules are hard and fast, and there’s no way to finagle around them once you’ve broken one, if that’s what you have in mind.”

  “Can’t you think of something legal to fix this case?”

  She smiled. It was a relief. I could tell by her smile she knew I was sincere.

  “Maybe if we wait long enough for the taint of this identification to wear off, we can try another ID by Stevie during the trial itself.”

  “How long a wait?”

  “Who knows? And the more I think about it, what trial? We can’t get that far. My job this week is to screen out bad cases, and I wouldn’t waste the office’s time with a case that depended entirely on a four-year-old boy’s very stale trial ID when no mention could be made to the jury that the boy originally ID’d the defendant just a few hours after the crime. I’m truly sorry, but even if the boy could ID Gandry in trial, it would probably be too close in time to the illegal ID to be allowed in as evidence. We just don’t have any evidence.”

  “I get the feeling I’m in another time warp and you’re talking a language from another time zone. I don’t understand what you said. And I’m trying hard to. I’ve got a reason besides this case. A personal reason. If I’m lucky enough to find the needle in a haystack that I’m looking for, I hope I know what to do with that needle when I find it. Now, what about the fact that the gym teacher was there when I questioned Gandry? He saw there was no strong-arm stuff. Gandry kidnapped that boy, and he told us the truth when he said he carried him down to the tracks.”

  “It doesn’t matter.”

  “All right. I can go out to the lockup, tell the little boy- killer his rights, and I personally guarantee another confession.”

  “Forget it. When you first started to question him, he asked for a lawyer. That’s it. No more police questioning. Maybe if by some miracle he confessed to his cell mate…”

  “All right, we’ll put an undercover man in his cell.”

  “Let me finish, Sergeant Razzi. You are not allowed to do that. You cannot ask him a single question directly or through someone else unless he knowingly and intelligently waives his right to counsel, and in this case he’s already asked for a lawyer. And on top of that you still can’t do it because any new evidence you got would stem directly from the illegal evidence. It would be ‘fruit of the poisonous tree.’ ”

  “ ‘Fruit of the poisonous tree,’ ” I erupted. “What about the Fruit of the Loom? Of the poisonous loom? Who the hell talks like that?”

  “ ‘Fruit of the poisonous tree’ is a direct quote from a Supreme Court opinion. It’s a commonsense doctrine that maintains the integrity of our constitutional rights. And this case could have been solved with today’s rules if you had let someone else solve it. Now the potential evidence is so tainted only a miracle could save it.”

  “Like if he talks to a cell mate,” I said, “and that cell mate turns him in.”

  “Yes, or a relative or a friend he’s confessed to is willing to tell us about it.”

  “Hand me the phone book, please.”

  She did and I looked up a number and dialed.

  “Mrs. Smotz, this is Sergeant Louis Razzi. I’m the one from city court when bail was set on your grandson…Good, you remember me…I’m glad that you feel that way, and we’re anxious to get him psychiatric care just like you are. My job is not finished with an arrest. Believe me, prison is no place for a sixteen-year-old white boy. I’m a Christian and a human being just like you, and my regular assignment is in the Officer Friendly program in Youth Diversion. I’m here to help youth. Now the newspapers might be calling you, so I advise that after we hang up, you leave your phone off the hook…That’s right. If you’ve got a heart condition, the last thing you need is reporters bothering you. You don’t want any bad publicity over this, and we can’t control the newspapers, so keep your phone off the hook. Getting back to John. Is he all right? Does he need anything? Did you get a chance to talk to him?…Good, good, that’s fine, especially the part about blacking out. That proves he needs psychiatric help. Listen, I’d like to come over and get this psychiatric background down on tape for you while it’s still fresh in your mind, but I’ve got a million things to do and I can’t promise anything. Do you own a tape recorder you could speak into?…Oh, that’s too bad. John will need all the psychiatric background you can give him. He belongs at the state hospital, not in prison. I’ll try to get over with a tape recorder, but if you don’t see me by six o’clock, I advise you to write down everything John said to you so you have it for later, especially the part about blacking out. Okay, now be sure and keep the phone off the hook and don’t say anything to anybody about anything until we can get John squared away at the state hospital.”

  I hung up the phone. “What are the rights I have to advise her of?”

  “None, not as long as you don’t arrest her. She’s a witness. Not a suspect. She has no rights. Want a Kel Kit?”

  “What’s that?”

  “Never mind, take this.” She handed me a small cassette recorder. “Hurry up back with something, because if you don’t get back soon I have to release him. I probably shouldn’t hold him now. And if you hadn’t charmed her so quickly on the telephone, I wouldn’t be letting you go back out there. And I’m not letting you go by yourself. Take someone with you.”

  “I can’t. Speed counts. I can’t clo
se this sale with another cop there. I’m going out as a Christian and a human being. I’ve got to go alone.”

  “Mazel tov,” she called after me as I left her office.

  10

  The Smotz house, where John Gandry grew up after his parents deposited him at the age of three and a half never to be heard from again, was a brick row home not unlike the homes in the Morris neighborhood about a dozen blocks away.

  I stood on the red-brick stoop. The bricks were loose underfoot. I knocked on the door, and an elderly white male voice growled from within: “Agnes, get the door for chrissake. It’s that goddamn cop from city court. Ain’t we got enough trouble?”

  The door cracked. The night chain was latched and it cut across Mrs. Smotz’s face as she peered at me.

  “My husband says not to talk to you,” she said. “He thinks you’re trying to trick me. He says my heart can’t take it.”

  “The psychiatrists have determined that your grandson harbors a deep hatred for women,” I said. “He wants to rid the world of women. It’s not something that concerns your husband, but it should concern you, as a woman, especially when he’s released.”

  “We ain’t goin’ for bail,” she said through the crack.

  “Good. That’s smart, but in the event that he’s released because he’s a juvenile, certain safety precautions have to be taken in the home. All steak knives must be removed. All sharp tools and all blunt objects, too. There are certain procedures that have to be followed to protect you, not your husband. He’s a man. It’s the women in the house we’re worried about. We’ve seen this pattern before and we’ve learned from our mistakes. Maybe you’ve read about some of the tragedies. Are there any other women living here?”

  “No.”

  “I’m coming in. We’ve got to make the house as safe as possible for you.”

  “Charlie, I’m lettin’ him in now. This don’t concern you,” she yelled.

  “You’re ignorant,” Charlie yelled back. “Don’t let him come near me.”

  She closed the door in my face long enough to scare me, and long enough to unlatch the chain as well. She reopened the door and let me in.

  Dirty lampshades gave a yellowish tint to the lighting, and the once-white walls looked as if they had a thin layer of cooking grease on them. She waddled into the kitchen and I followed silently. It smelled like an old damp cellar and bacon. She sat at a kitchen table with a green oilcloth on it.

  I poked through the kitchen closets.

  “Do you have any rat poison or other pesticides?” I asked.

  “No.”

  “Good. I want you to take all your sharp knives, your ice pick, and all your blunt hand tools like your hammer and keep them next door whenever John is home.” I began piling such things on the kitchen table.

  “When’s he coming?”

  “Maybe never. It depends on whether he’s mentally ill, and that’s where your information comes in. But before we get to that, let me finish what I’m doing. Count all your drinking glasses. If there are any missing, check your food for ground glass. Your safest bet is to eat food that comes from cans and packages that you yourself open. Get me? Again, it’s women he hates. He’s got a strange streak in him about women. Maybe you noticed it.”

  “He got a temper, the boy. He never went after Charlie, but he threw a whole pot of boiling water on me when he was eight. I still got burned marks on my legs. That boy is my cross.”

  “You be especially sure to hide your knives next door. It gives me shivers to picture him coming home here and sitting at this table for dinner and eating a piece of meat and looking at you and grinning that evil grin with his braces while he’s cutting his meat with a steak knife.”

  “He broke my middle finger when he was thirteen. He just bent it back. He’s always too strong for me. He never liked nothin’. Women or nothin’.”

  “That proves he needs help. Don’t you agree? We’ve got to get him into the state hospital under lock and key getting treatment.”

  “He needs something. I don’t know what, and I don’t care what he says.” She thumbed toward where Charlie’s voice had been. “The boy is the best of me. I had two heart attacks. I gotta take heart pills. I’m diabetic, you know.” She seemed proud of it.

  “That’s all the more reason to get this over with and get him into the state hospital, where he belongs. They won’t release him from the state hospital until he’s cured, even if he is a juvenile. It’s not like prison, where you’re in today and out tomorrow. They keep you at the state hospital. Let’s get this over with. This is a minicassette tape recorder. I’ve just put it on. Mrs. Smotz, as you know, I’m Sergeant Razzi. Tell the tape recorder what your grandson, John Gandry, told you this afternoon about blacking out when he tried to kill the little boy.”

  “I only know he said he didn’t mean to do it. Something come over him like and he kinda blacked out from some dope he took, but you never know with that boy. He ain’t no dope fiend. He’s sick in the mind. The male side of the family got something in their blood. They got suicides and everything in their blood. He thought the kid was dead when he ran off. He choked him with his own pants. Now, I say that ain’t right, a thing like that.”

  11

  “As Casey Stengel used to say, ‘This is amazin’,’ ” said Honey Gold as she turned off the tape recorder. “It’s the kind of thing my chief deputy, Morris Dershon, thrives on. Making the illegal legal, but really legal. You’re a quick study, Detective Razzi.”

  “What if Grandma Smotz won’t repeat this at trial?” I asked.

  “Nothing to it. As long as she shows up for trial, gets sworn in, and answers a few preliminary questions, we can have you introduce the tape recording.”

  “No rule against it?”

  “None. Now that it’s legal, it wasn’t so bad, was it?”

  “Not too bad, but there were some moments. Now what?”

  “Now I think it’s a case. I’ll approve it for presentment to the grand jury. I may even take it to trial myself.”

  “That, Miss Gold, is a genuine thrill.”

  “Well, Sergeant, looks like you’ll be staying in town a little longer than you planned.”

  “Not necessarily. I can always fly back from Brazil to testify. Are you married, Miss Gold?”

  “Honey. And it’s not a nickname. Divorced.”

  “The sadder, but wiser, girl.”

  “That’s from The Music Man.”

  “Honey, I’ll bet we have some things in common. I bet we could get through a meal without yawning. You hungry?”

  She hesitated, then said, “Now I know how Mrs. Smotz felt. You sure work fast. Speed really does count with you, but what do I have to lose? What are you gonna do, kill me? Everybody dies. Sergeant, I’ll let you buy me a meal, a good meal.”

  12

  The plan was to meet at the Green Room in the Hotel DuPont at about 8:15, after her shift. Meanwhile, I went back to my room for an hour’s sleep. My mind was full of the past two days, and sleep was slow in coming. I had just dozed when the phone rang.

  “Thank you,” I said.

  “Excuse me?” said Marian.

  “I thought it was a wake-up call.”

  “I don’t have much time,” she said. “Can I come up to your room?”

  “Where are you?”

  “Downstairs at the front desk. Carlton and Sarah think I went to the ladies’ room. I’ve only a minute. I’d love to see you, even if only for a minute. Yes or no?”

  “Where are they?”

  “In the Green Room. You always loved the Green Room, and I thought we might see you there. Frankly, I hoped Sarah would get to meet you fortuitously without a lot of anxiety being built up on her part.”

  “Don’t come up. It’s 7:40. I’m having dinner at 8:15. The meeting can still be an accident.”

&n
bsp; “I won’t leave. I’ll be waiting for you.”

  It sounded like a sad song sung to a GI during the war. Years of trying to fit in with the fox-hunting set must have taken their toll on Marian. To be tolerable, life had to have intrigue. I couldn’t get back to sleep, and I spent the next half hour cleaning, shaving, getting back into my white suit outfit, and keeping my mind empty. I reached the Green Room foyer by 8:15. Honey was sitting in a green Victorian love seat.

  “See the redhead,” she said.

  “You’re the redhead,” I said.

  “Not me, her. The very attractive redhead. Watch my finger ‘indicate.’ ” She pointed toward a table with Marian facing us. Carlton Cruset to her left and Sarah Razzi Cruset to her right.

  The hostess came up to us carrying menus.

  “Razzi reservation for two,” I said to the hostess.

  “That redhead asked about your reservation,” said Honey. “She wanted to know if you were dining alone.”

  “Just a minute,” I said to the hostess and brought us all to a stop. “She’s my ex-wife,” I said to Honey. “Sitting with my ex-daughter and my ex-daughter’s stepfather. I just learned a half hour ago they’d be here. Want to leave?”

  “I’ll stay if you want to. I don’t mind. They say you can’t go out to eat in Wilmington without seeing somebody you know.”

  “Lou,” Marian called out. She was standing by her seat. In the blink of an eye she was fifteen years older. She leaned forward in her bright pink tight-fitting silk dress with three buttons opened at the top. Her bust had gotten larger, as if from surgery. Her red hair was cut short, very stylish. Too short. No gray. And bright red, not light like Honey’s. Bright red lipstick, too, and pearls all over her neck. Jewelry on her wrists and fingers. Big stones and gold. No opal.

  My heartbeat was rapid, and the first surge of adrenaline flowed just above my kidneys as my eyes moved from Marian to Sally. Sally with my black hair and brown eyes. She was beautiful. Except for the coloring of the hair and eyes, she looked exactly the way I remembered Marian in high school. She turned away from me back to her mother.