Tainted Evidence

by Robert Daley

  "You'll never guess what happened today," Karen said.

  But he interrupted her. "I had a letter from NYU.”

  "Mom, can I have a sandwich?" said Jackie.

  "No, you'll wait for dinner.” To her husband Karen said, "what did it say?"

  Henning had begun emptying bags, putting groceries away. "There may be an opening for an assistant professorship in the fall."

  "And?"

  "I've got a good chance."

  "Only an assistant professorship?"

  "I'd take it. NYU is a great school. It's really a promotion."

  Karen's son was pestering her. "When are we going to eat?"

  She turned to her twelve year old. She looked at his teeth every day to see if they were holding. So far they were. "In about twenty minutes."

  "I won't be an assistant professor long, believe me, and even at the start there'd be more money. I could give up coaching swimming on the side," said Henning. He glanced down into the frying pan: pork chops. On the nights when he did the cooking he did not serve pork chops.

  "A chance to do serious teaching," said Karen.

  "A chance to pitch in the big leagues," said Hank.

  He grinned and gave her a squeeze. then: "I'm tired of kids who never learned how to study, who don't appreciate what I can give them. I'm tired of holding their hands. Give me some students who really want to learn.”

  Was teaching really what he cared about, Karen wondered. Or was NYU, if they took him, purely a chance to advance his career? As well as she knew him, she wasn't sure. Perhaps he wasn't sure himself.

  "I'm hungry, Mom."

  Henning went to the cabinet to make himself a drink, and though he didn't like pork chops, he didn't say so. He poured scotch over ice. "Want one?" he asked his wife.

  "No thanks."

  Both fell silent while he sipped his drink. "What were you going to tell me?" he asked her.

  It was the opportunity Karen had been waiting for, and she opened her mouth to speak about the Lionel Epps case but nothing, to her surprise, came out.

  "It's not important," she said. He was in an ebullient mood and her news would only dampen it. But also she was not sure he would understand why she should be so upset or, understanding, accord her the sympathy she was looking for.

  "No, tell me what's on your mind," Hank insisted.

  So finally, somewhat hesitantly, she began. "Do you know the name Lionel Epps?"

  "No. Should I?"

  "This afternoon I became involved with him."

  "Romantically of course," Henning interrupted. He grinned at her, raised his eye brows.

  She saw that he would turn whatever she told him into a joke.

  She frowned, then said: "I can't stop thinking about him, I'll grant you that much."

  Karen went back to her cooking, glancing at him from time to time.

  "And your lives have become intertwined forever," Henning prompted.

  "For the next couple of months.” Then she added dryly: "After that, we may tire of each other."

  "And you'll come back to me."

  "If you're still here," she told him.

  Henry gave her a hug, his attitude of banter dropped away, and he spoke with a certain feeling. "I'll always be here.” After a moment he said: "What did he do?"

  "Who?"

  "Lionel Epps."

  "Shot five cops."

  "Oh, that Lionel Epps.” Again he was making a joke of it, and again Karen frowned.

  "Do you remember the case?"

  "Vaguely."

  "His lawyer is Justin McCarthy."

  "The famous civil rights lawyer."

  "Why does everybody say that?" cried Karen. "I doubt McCarthy cares about civil rights at all. I doubt he cares about the law at all."

  Henning grinned at her. "Don't worry, you'll beat him.” And he took a long pull of his scotch.

  Chapter 8

  Two days later, promptly at 3 PM as scheduled, Justin McCarthy was shown into Karen's office. Waiting for this supposed titan of the bar, Karen had grown increasingly nervous, and in fact had just come back from the ladies room where she had renewed the little makeup she wore, pulled a comb her hair and otherwise got herself together. Was she afraid of McCarthy after all?

  She told herself no but was not so sure. She doubted he knew anything about her, had ever heard her name before today, whereas she knew all about him. Although she had tried and won major cases, she had not attempted to make them seem notorious as a means of attracting attention to herself. Whereas McCarthy seemed to search out notorious cases only--the more notorious the better. He was the great defender of unpopular people and causes. He had defended Vietnam deserters, militant Indians, black revolutionaries, men indicted as spies. He was admired by some, hated by many. Supposedly he worked such cases for no fee, though who knew. He worked them from little evidence, that much was clear, sometimes none, but he won verdicts. He got clients off. His pro bono work, he called all this, every lawyer should do some. And as Karen well knew, most did, they just didn't pick the cases McCarthy picked, and they didn't make speeches about them on the newscasts every night. He had sued major corporations on behalf of injured workers, and had extorted notable settlements, and however noble his press conferences and statements, he probably took money there. He had pleaded a number of scandalous divorce cases too, one or two in Hollywood, and if he didn't charge top dollar for that he was a fool.

  All in all it was a puzzling persona, one that, to Karen, did not add up. But it was certainly impressive.

  Now her intercom buzzed: "Justin McCarthy is here.”

  Coombs had asked permission to stay for the interview. "I want to get a look at the guy."

  After hesitating briefly, Karen had decided to allow it. He was seated now in the corner as her door opened, and McCarthy followed her secretary in.

  The lawyer was shorter than she had expected. He had white hair. Karen came around the desk with her hand outstretched but he stopped her by taking half a step backwards as if stunned by her beauty. Then he stepped forward again, taking both her hands, not one.

  "I had heard. I did not believe, I never thought--"

  It was a highly theatrical entrance. The rest of him was theatrical too. The flowery bow tie. The flannel mouthed, flowery manner. The hint of an Irish brogue despite the fact that Who's Who listed his birthplace as Brooklyn.

  He had been in Karen's office ten seconds and already her teeth were on edge.

  She said coolly: "This is Assistant District Attorney Coombs, who is helping me on the case."

  "Mr. Coombs," said the lawyer bowing, "Justin McCarthy."

  Coombs, who had risen to his feet, took half a step backward mimicking similar awe. "I had heard," he said, "I did not believe, I never thought--"

  It brought a smile to Karen's mouth, though she quickly erased it.

  But McCarthy had wrung Coombs' hand, had ignored his remark, and had turned back to Karen, at whom he stared with exaggerated pleasure.

  "Criminal law is a desperate business," he declaimed. "Ambitious young prosecutors, hardened older prosecutors. You must forgive my surprise, my delight, to have come upon this--vision."

  "What's on your mind, Mr. McCarthy?"

  "I thought, lovely lady--” McCarthy's mood shifted abruptly. In an instant it had turned exaggeratedly pensive. "--That perhaps you and I could reach an agreement."

  Karen nodded. "You want to plea bargain."

  "I want--” It seemed to Karen that she had never heard so much earnestness in a human voice. "--I want to save trouble and expense for everyone."

  Karen went back behind her desk and sat down. "But your client attempted to murder about twenty cops."

  "Oh?” McCarthy feigned surprise. "I thought the indictment said five."

  "Yes, the indictment specifies only five. In that respect you've already got off easy, it seems to me.”

  "Only five. Whew! That's a relief. You had me worried there for a moment."

&n
bsp; "Put five young men in the hospital."

  "But the facts of the case are what we have to consider, lovely lady. The facts, even if proven, do not necessarily constitute a crime.”

  "Really, Mr. McCarthy."

  "I could think of numerous grounds--and you should be thinking of them too--on which the jury, any jury, might acquit."

  "Like what, for instance?” In the face of such calm assurance Karen felt momentarily shaken. Was there something she had overlooked?

  "For instance, American jurisprudence has always held that a man has an absolute right to defend the sanctity of his home. The courts have so ruled every single time."

  "Which home would you be speaking of, Mr. McCarthy?"

  "My client's actions could certainly be considered in defense of the integrity of his home."

  "It wasn't his home, it was a condemned building."

  "On that particular night it was his home."

  "I doubt that particular argument will fly, Mr. McCarthy."

  "But we can't be sure, can we? A jury might indeed be swayed by such reasoning if, let us suppose, it were put to them in a convincing manner."

  "What other arguments have you considered?"

  "How about not guilty by reason of insanity?"

  "Insanity?"

  "Temporary insanity. No one will doubt that my client was afraid. Twenty cops shooting at him. I would be afraid. Wouldn't you be? Fear is a form of insanity."

  "Interesting."

  "He was so afraid he didn't know what he was doing."

  "He was trying to kill cops, that's what he was doing."

  "Seeing all those cops with their guns drawn made him temporarily insane.”

  "I don't think so, Mr. McCarthy."

  "Unfortunately," said McCarthy in a concerned tone of voice, "one never knows in advance how a jury will see things."

  Karen looked at him in silence.

  "Another possible argument is self defense," said McCarthy.

  Karen wondered if he had prepared for this interview. She had the impression he was firing off ideas as they occurred to him. But at least she should credit him with gamesmanship. He was giving her a lot to think about. On which line of argument would he base his defense? She would have to construct her own case several different ways just to be prepared for whatever he might do. Maybe that was his intention--to double or triple her workload.

  "He had a perfect right to fire back," McCarthy said. "Otherwise those police officers probably would have shot him. A clear case of self defense."

  Karen had got over her original awe of this man. Her impulse now was to do something rude, laugh in his face, perhaps. But a number of past juries had accepted his preposterous arguments, not laughed at them. Reminding herself of this, she only studied him, while beginning to nod her head. "What sort of plea were you looking for?" she asked.

  "Why don't we reduce the charge to, say, resisting arrest."

  "You can't be serious, Mr. McCarthy."

  "Ah, lovely lady, you're good at your job, I can see that."

  Karen was twisting the wedding band on her finger. "May I ask you something, Mr. McCarthy?"

  "Ask away."

  "Why are you defending a thug like Lionel Epps?"

  "Perhaps because he is not guilty of the charges against him."

  "Come now, Mr. McCarthy."

  "His guilt or innocence is for the jury to decide. It does not fall to you and me."

  "The man is a thug, and you know it as well as I do. So why did you take the case?"

  "At stake are issues vastly more important than mere guilt or innocence."

  "Like what, for instance?"

  "A society's worth is measured by its behavior toward its underprivileged.” Karen had read articles about McCarthy in which he had expounded on this notion in some detail. He did so again now. The constitution was real, he told her, the bill of rights was real. The rights of everyone were guaranteed, not just rich people, or educated people, or people of whom society approved. In defending the rights of Lionel Epps, one defended the very real rights of everyone else, including your rights and mine.

  Karen interrupted: "A guy shoots five cops, he goes to jail."

  "Perhaps it is the cops who should be in jail."

  Where did this idea suddenly come from? "Why not use your talents," Karen said, "to defend civil rights cases that deserve it?"

  "Whenever the law persecutes a member of an oppressed minority, it persecutes us all." "I see."

  "Do you want to know the two most beautiful words in the English language, lovely lady?"

  "Let me guess."

  "Not guilty."

  "You didn't give me time to guess," said Karen.

  "You don't want to lose this case, now do you? Any of the arguments I have outlined might be sufficient to sway a jury. Certain of them swayed those juries in the Bronx, in Queens. And you haven't even had sufficient time to prepare.”

  This man was outrageous, Karen told herself. If he weren't so outrageous he would be funny. If he hadn't won all those cases he would be funny. But he had and therefore he wasn't.

  "Why not accept a plea? I'll go a bit higher. Simple assault. How's that?"

  She didn't know what reaction was called for. A man like McCarthy was a new experience for her. She decided to smile sweetly.

  Which caused his face to break into a confident grin. "And if you promise not to ask for more than a year, I'll plead guilty to possession of an illegal handgun."

  "You will?"

  "I will indeed."

  "He had four guns as I recall."

  "When you don't have much of a case, you must accept the best you can get. Think of the time saved, the expense saved. Think of your career."

  "I'm thinking of it," said Karen.

  McCarthy's voice, his manner, had become seductive. "Remember the verdicts in Queens, in the Bronx," he murmured confidently.

  Karen's head began nodding again. "A plea seems a good idea to me too," she mused. "Your reputation, Madame is one of sound common sense."

  "There is one plea I might accept.”

  "What plea, may I ask?"

  Karen's mouth set like a suture. "Guilty to five counts of attempted murder of police officers."

  And she showed him out.

  When he had gone, Karen and Coombs stared at each other.

  Finally Coombs said: "Quite a piece of work, isn't he?” He waited to hear Karen's reaction, but she showed none, merely went back behind her desk and sat down.

  "The defendant shot five cops but it was due either to insanity or self defense or while preserving the sanctity of his home," said Coombs, "--you don't suppose he'd really plead such nonsense in court?"

  "I wouldn't put it past him."

  "But--insanity, self defense? It's absurd."

  "Depends what he can make twelve jurors believe."

  There came a knock on the door. "The DA wants to see you as soon as you've finished with Mr. McCarthy," said Karen's secretary.

  Karen threw Coombs a look. How did the DA know McCarthy was even in the building? Who was orchestrating all this? There were times, and now was one of them, when Coombs seemed her only ally.

  She went down the long hall. This time the DA did not get up to greet her, nor did he invite her to take the chair beside his desk.

  "I understand you just had a plea bargaining session with your esteemed opponent."

  "Yes, I did."

  "And?"

  Karen told him the gist of it.

  Several times the DA nodded in a concerned way. "What's your instinct on this?" he asked when she had finished.

  "We go to trial."

  "Are you sure that's wise?"

  "It's an open and shut case."

  "No," said the DA, "in eight terms in office I've learned one thing above all else. There is no such thing as an open and shut case."

  This was not what he had said when giving her the assignment a few days before. "I still say we go to trial.”

&n
bsp; "I see.”

  So did Karen. It shocked her that the old man considered a plea acceptable. Perhaps not the specific plea offered this afternoon, but some kind of plea, a compromise still to be worked out.

  "I mean, we have to go to trial," she insisted. "The guy shot five cops. He fired shots at about fifteen others. We could have twenty counts of attempted murder here, if we chose. The city will be outraged if we don't go to trial."

  "The city doesn't get outraged over very much, I have found."

  Karen was silent.

  "I want you to think this over carefully," the old man said.

  "Well, we certainly don't accept any such plea as McCarthy offered today," said Karen, adding lamely: "Do we?"

  For a time the DA only gazed at her. "An election is coming up in a few months.”

  The word election hung there between them. Karen was offended that such a consideration should enter into this discussion at all, and thought it showed weakness that he had mentioned it. Was there a split at the top of the Democratic Party? Was he in bad health? He was old, after all. What did the professional politicians know that she didn't? What pressure were they putting on him? After eight terms in office he suddenly felt vulnerable, that much was clear.

  "McCarthy is tough," the DA mused. After a brief pause he added: "And he'll turn this into a civil rights case. We don't need a racially polarized city, do we?"

  Was he worried about the city going up in flames, or that he could be turned out of office as a result? She said: "Do you want me to accept a plea?”

  "Juries are unpredictable and it's a messy case."

  Karen was frustrated, possibly even appalled. She was extremely confused and perhaps the DA perceived this. In any case he seemed to decide to back off for the moment. "Jury selection begins in a week's time," he said. He smiled at her as if fondly. "See what kind of jury you get. We'll decide then."

  Once out in the hall, Karen almost ran in the direction of Harbison's office, and she walked in on him without being announced. Present in the chair beside his desk was his assistant, Goldman. Karen asked Goldman to leave and waited until the door closed behind him.

  "I've just had a very unpleasant interview with McCarthy," she began, "and after him with the boss.” And she outlined the plea arrangement McCarthy had offered. "You know the case," she concluded. "Is there something I don't know? What do you think?"