Tainted Evidence

by Robert Daley

  He said: "Those notes you have there, did you make copies?"

  "I'll have them typed up when I get back to the office."

  "Give them to me," said the PC reaching for them.

  "But Commissioner--"

  "What about your men, did they write anything down?"

  After a moment Pommer decided to say: "I told them to hold off until I knew how you wanted to play this."

  The PC was scanning the notes. "I'm concerned about possible Rosario material when Epps goes on trial," he said. "The most important single task facing this department is to convict the sonuva bitch.”

  Rosario material was the nightmare of every cop. Anything committed to paper during the course of an investigation had to be turned over to the defense, which could then use it to impeach police testimony. Or ridicule police testimony, if it came to that. Defense lawyers got their rocks off ridiculing cops on the witness stand on the basis of some asininity the cop had written down during the investigation. Some asininity such as Pommer's notes here. "This business about the drunken detective, for instance.” The PC ripped a page off the yellow pad and crumpled it up. He was becoming angry. "The defense doesn't need to know that."

  "I agree, Commissioner."

  "If they find out, fine, but we don't have to tell them.” He ripped off a second page. "The defense doesn't need to know about his ex-wife either.” The PC was turning pages. "The 77th precinct has nothing to do with the case.” He tore the pad in half. "I would say the defense doesn't need to know about any of this.” Getting up, he dropped it into the basket under his desk. Malloy's already florid face seemed to become redder. "Do I make myself clear?"

  "Suppose something goes wrong, and they come after us on this?” Pommer's entire investigation had just been thrown in the basket. "Demand to know what sort of internal investigation we did?” He was trying to make his questions sound intellectual. He was trying not to let his humiliation show. He was pretending to play the devil's advocate.

  "You let me worry about that."

  "Should I continue my investigation or not?"

  "Stop it right where it is," said Malloy. As soon as Pommer had left the room he would put a stop also to any other investigations still in progress. He had read all the other preliminary reports, none of them nearly as complete as Pommer's.

  "It could turn out that these are corrupt guys."

  "We'll worry about that after the trial. For the time being they're heroes."

  The PC began to lecture the internal affairs chief. He had five shot cops on his hands, he said. His red face was getting redder, even as Pommer's dark face got darker. The trial of Lionel Epps thus became of paramount importance to the department, the PC said. The morale of every cop demanded a conviction at all costs. For as long as the case pended there must be no suspicion that the actions of the police on that particular night had been anything but professional and above board. Nothing must come out that might damage the prosecution's case.

  Midway through this lecture the PC's tone changed, became that of a man talking to a friend and ally. He started walking Pommer to the door, he put his arm around him, the big man was almost hugging the smaller one. At his best there was a certain bluff heartiness to Malloy. He thought of it as his major positive attribute. On those occasions when he chose to employ this heartiness he imagined that others found him charming. He himself mistook his manner for charm.

  "So how's Marge?" he asked Pommer. "We haven't had a chance to even mention her yet. And the kids. Adam's at Dartmouth I remember. How's he doing?"

  This was another of Malloy's attributes: he remembered the names of his subordinates' wives and children.

  Pommer mumbled suitable responses.

  The case was now in the hands of the district attorney's office, Malloy said at the door. It had been assigned to Norman Harbison to prosecute. Norm Harbison, as Syd Pommer knew, was chief assistant DA. This proved that the DA's office was giving the case the importance it deserved. The police department could do no less. He himself was pleased that Harbison, the highest ranking active prosecutor in New York County, and the most experienced as well, had the case, and he knew Pommer felt the same. And he thanked his internal affairs chief--for what, Pommer had no idea--and closed the door on him.

  Which left Chief Pommer standing out in the hall humiliated, smarting. He was focused on Malloy. It seemed to him that the PC enjoyed humiliating people, himself especially. Each time Pommer got admitted to the royal presence, the PC found a way to do it, usually in front of others. But humiliation, Pommer told himself, bothered him only peripherally. In his thirty two years as a cop he had been humiliated many times by many people, but had usually managed to turn it to his advantage, which he would do again, he believed. His notes were gone, but he could replace them. Notes that related to a criminal prosecution. Destroyed by the police commissioner himself. It was unbelievable. Malloy had destroyed them. If Pommer spoke just a hint of this into the right ear it would cause a cover-up scandal and Malloy would be out on his ass. He might even go to jail. An incredibly stupid act by a stupid man.

  But Pommer could not go to anyone with this, he realized. It would be his word against the Police Commissioner's. The mayor would side with the PC, would have to, since he had appointed him. Everybody would.

  Chief Pommer needed additional ammunition, and he decided to get it by continuing his investigation of Muldoon and Barone. If he could prove them dirty, then he could bring them down, and Malloy their protector with them.

  And in fact Pommer had a sense that Muldoon and Barone were dirty. Why? He had never spoken to them. Instinct, probably. He was chief of internal affairs. Nearly every cop with whom he came in contact, was dirty; he rarely saw any other kind. He was man who trusted this instinct. To him it never failed.

  But the investigation would have to be invisible, or nearly so, or the PC might spot it.

  Suppose Malloy did spot it? But he wouldn't. It would be an investigation of such subtlety that even if he thought he had spotted it, he wouldn't be sure. He wouldn't be able to do anything. He couldn't publicly meddle in integrity matters anyway. He wouldn't dare.

  For some years there had existed in each precinct one or more young cops recruited straight out of the police academy as "integrity associates.” Pommer had appointed some. Others had been appointed by his predecessors. The cops around them did not know who they were. Even the precinct commanders did not know who they were. If they saw wrongdoing of any kind they were expected to report it to internal affairs, and an overt investigation would be begun. Their names would never become known to their colleagues. This system did not work perfectly. Some of these integrity associates reported nothing. You never heard from them. They got sucked into that police brotherhood crap. They found they could not testify against another cop.

  But others of them were responsible for some solid prosecutions.

  Pommer decided to place an integrity associate in the Three-Two squad. Not many of these associates were detectives. It would take a little time to find the right man, one who could be trusted, and move him in there in a manner that would seem normal. He would place him as close to Muldoon and Barone as he could get him.

  If Police Commissioner Malloy were brought down, the mayor would need a man of unquestioned integrity to replace him. He might look no further than his internal affairs chief. Why not Syd Pommer? Thirty two years an honest cop. Why not New York's first Jewish PC?

  Chapter 7

  Clutching a stack of dossiers to his chest Norman Harbison, chief assistant district attorney and the man who would prosecute Lionel Epps, entered the DA's office.

  To Harbison it was an imposing office, not because it was big, or because of the flags, the plaques, the oriental rug on the floor, but because of the man who now looked up at him from behind the desk. To most people, meaning those who didn't have to work for him, the DA was a revered figure, almost a legend. He had won eight straight elections, had held office thirty two years.
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br />   "Yes, Norman?"

  "I have a number of administrative matters--"

  "I'm a bit busy today.” Tall, thin, white-haired, 72 years old, the DA had a reputation for absolute political independence, for absolute probity as well, and he tended toward curtness, increasingly so as he got older, at least toward Norman Harbison.

  "I'm sure you can decide without me, eh Norman?"

  But today, unlike other days, Harbison stood his ground.

  The DA, who was busy signing letters, did not even glance up. "Something else, Norman?"

  Harbison was there on a delicate matter. "Have you made any decision yet, sir?" he said nervously.

  "Decision?"

  "Kauffman, O'Rielly--I met with them last night."

  "I see."

  Now the DA did look up.

  "They initiated it," said Harbison defensively. "I didn't call them."

  "Of course."

  "They asked me to come over, yes.”

  The DA looked at him.

  "So I went over," said Harbison.

  The DA leaned back in his swivel chair. He was nodding at Harbison who, after a moment, studied the floor.

  "They asked me," Harbison forced himself to say, "what your intentions were."

  "And you said?"

  "I told them I didn't know."

  "Kauffman and O'Reilly," murmured the DA, "the heart and soul of the Democratic Party.” He swiveled toward his window. Outside on this grey winter day it had begun to snow. When he swiveled suddenly back, Harbison's eyes again dropped to the floor.

  "They wanted to know," the old man mused, "after eight terms in office, if the incumbent district attorney of New York county might be contemplating retirement. Or is it you trying to retire me, Norman?"

  "Not at all sir. The party--"

  "Do you think I'm too old to run again, Norman?"

  "Of course not."

  "Seventy two years of age is the prime of life, as you'll find out one day."

  When talking to the newer assistants on his staff, young men and women just starting out in the law, the DA could seem a kindly, fatherly old man. But to Harbison and the other bureau chiefs he most often seemed what he was--tough and manipulative.

  Which was his mood at this moment, Harbison realized. He saw that this interview had become a confrontation, and that in provoking it he had made a mistake.

  The DA came around his desk and put his hand on Harbison's shoulder.

  "If I'm not thinking of retiring, I certainly should be, don't you think, Norman? You deserve your chance after all these years, don't you think, Norman?"

  Harbison already had the answer he had come in here for. The old bastard had every intention of running again.

  "You're loyal, hardworking, a fine administrator, an able lawyer--” The DA said all this in his kindly, fatherly tone, but he was walking Harbison to the door.

  "Go to the committee for me, Norman. Start the process as if I'll run. That's the way politics works, keep them guessing. Then at the last minute, you can be ready to jump in. If I don't run, you're the man."

  Harbison's humiliation went over into a kind of smothered anger. He was not some flunky to be ignored. At the door he made the only protest available to him. "I've been offered a job on Wall Street. A big firm."

  "Which one?" the DA said bluntly.

  He had the old man's attention now. He gave the name of the firm--the string of names of the firm's founders.

  The DA was impressed despite himself--who would have thought such a firm would recruit Norman? His eyebrows rose slightly.

  This reaction was almost imperceptible, but Harbison noted it and was pleased. "And of course they're offering much more money."

  "How much?"

  "More than twice what I'm earning here."

  "Money isn't everything, is it Norman?"

  Harbison stood almost at the door, and the DA studied him. How long had Harbison been chief assistant? Eight or nine years? Was it that long already? When did he conceive the notion that he was qualified to become--might be elected--district attorney in his own right? For years the DA had seen Harbison as obedient, self-effacing, sharp-eyed, docile. The equivalent of the perfect butler. He made the house run smoothly and one hardly knew he was there. Most of the young lawyers were afraid of him. If the man were to quit, the DA himself might have to handle problems which at present never reached his desk. Harbison must certainly be prevented from moving to Wall Street, but he ought to be taught a lesson as well.

  And so the old man repeated the name of the Wall Street firm--it was quite a mouthful--then remarked confidently: "That's not for you, is it, Norman? Civil litigation, a huge firm like that. I need you here running this office. And besides, you're my successor. Can't be my successor on Wall Street, can you?”

  When he saw the air go out of Harbison he ceased to worry that he might have pushed him too far. This man doesn't want to be a rich lawyer, the DA told himself. He wants my job, which no one will ever elect him to, even if the idiots running the party nominate him one day.

  Though it did not show, the DA had become angry. Harbison must be punished.

  "I've been thinking about that shootout last summer," the DA said. "The Lionel Epps case."

  The abrupt change of subject seemed to Harbison to indicate that the DA bore no hard feelings. Much relieved, the chief assistant responded proudly, almost eagerly: "As you know, I'll be prosecuting it personally and--"

  "I've decided to take you off it."

  "Take me off it?"

  "Not worthy of you, my boy."

  "But I've been working on it for months, I've been announced in the press--my prestige--"

  "--Is great. We don't want to risk damaging your prestige, do we, Norman? You'll need that prestige if you run for my job in the fall."

  Harbison attempted to keep his face a blank, but didn't quite succeed. The DA saw this and knew he had guessed right. The Epps trial was vital to Harbison's plans. All those shot cops. Harbison was counting on weeks in the spotlight, followed by victory. It could be enough, possibly, to make him attractive to the politicians, and maybe even to the voters.

  "It's a messy case," the DA said. "We don't want to let you get messy, do we?” The DA was silently chortling. It wasn't often, he thought with pleasure, that one devised the perfectly appropriate punishment.

  "I can convict Epps, win the case--"

  "I'm sure. What do you think about letting Mrs. Henning take over?"

  Harbison could only stand there, stricken, as the old man went to his intercom.

  "Send Mrs. Henning in please."

  Although his principal object was to put Harbison in what he conceived to be his place, the DA was now seeing additional advantages. By choosing Karen Henning he would appear to have given a prominent case to a woman in these feminist times and, who knows, it might win him a few extra votes in November. Not that he needed them. He had never been defeated and several time the Republicans had conceded the election to him in advance--did not even put up a candidate against him.

  As he showed Harbison out the DA was talking almost to himself. "A woman might actually do better than a man," he told Harbison. "And if she fails, well, she was a woman."

  "But sir--"

  The door closed.

  As Harbison went out through the anteroom he could barely see. As a result he almost bumped into Karen Henning coming in. The chief assistant had never before looked at her this closely. Previously he could not have told the color of her eyes nor what clothes she wore.

  He had been aware of her principally because she was almost the only supervisor who dared resist his decisions. Sometimes she ignored them outright, which was infuriating because he could do nothing about it. Women in these feminist times had become untouchable. It was the DA himself who had suggested her as chief of the trials division; Harbison had been obliged to concur. He had never thought the Manhattan DA's office an appropriate place for female lawyers, and for the most part had seen Karen He
nning as a woman with a rather prominent jaw who probably wished she were a man.

  At this moment for the first time he saw her also as a rival.

  "Hello, Norman," she said curtly, and he nodded.

  She was carrying case folders under her arm and she was wearing today a navy blue suit.

  "I've asked him to give you the Lionel Epps case, Karen."

  "What?"

  "That's why he's called you in."

  "But--"

  "When he tells you, act surprised."

  "But you--"

  "I've made my decision. If you don't want it, tell him so. Don't tell me."

  "But--"

  "He's waiting for you."

  As she entered the DA's office, Karen was trying to understand what Harbison had just told her, and to figure out what it meant, but there wasn't time. The old man was standing at one of his windows, but he came across to meet her.

  "Ah, Mrs. Henning, thanks for coming in.” He was a formal man. He had never called her anything but Mrs. Henning. He was formal toward the other supervisors too. It was a way of keeping them at arm's length, she supposed. Of course his age and prestige did that already. To his present staff he seemed a remote, unapproachable figure.

  His manners were almost courtly--at least they had always been courtly to her. Now he took her hand and led her to the chair beside his desk. "Don't you look nice today," he said.

  From a younger man a compliment of this nature might have caused Karen to frown. From a man this old, and especially at a time such as now when she was trying to sort out her confusion, she accepted it.

  "Thank you," she said.

  "And how is your husband?"

  "Fine, thank you."

  "And your lovely children?"

  "They're fine too."

  "How old are they now, anyway?"

  "My daughter's fifteen and my son is twelve."

  "Yes," said the DA. Having moved behind his desk he sat down and looked at her over steepled fingers. "What do you know about the Lionel Epps case?"

  "That he shot five cops," she answered. "That jury selection starts in two weeks.” She watched him. She wanted to ask: What's happened, what's going on here? But instead she said nothing.