Tainted Evidence

by Robert Daley

  McCarthy, if she convicted Epps, would certainly appeal. If in the meantime Pommer had come forward with damaging charges against two of her most important witnesses, then the court could very well overturn the verdict.

  Even if she won she would lose. She was twisting her wedding ring on her finger.

  She was furious and trying to conceal it. "Please tell me what you're talking about."

  "Nothing for you to get upset over. We looked into your case and found nothing significant."

  "Nothing illegal? No evidence of corrupt acts of any kind?

  "No."

  "McCarthy has been charging that the cops went there not to arrest Epps but to murder him to cover up drug sales."

  "Yes, I read that in the papers. Nothing to it that we could find."

  "You looked?"

  "Of course."

  "Hard?"

  "I'm not in the habit of covering up for corrupt cops.”

  She felt renewed confidence. Perhaps she could put Pommer on the stand after all, and the other commanders with him.

  "However," Pommer said, "Some discrepancies in past cases did come to light.”

  "What discrepancies?"

  "It has to do with internal disciplinary matters."

  "That's all? You're sure?"

  "Our inquiry is still ongoing."

  "Nothing on paper?" she said.

  "No."

  "You're certain?”

  "You'll be the first to know.”

  She wished she could order him to abort his investigation right now, whatever it was, but as an officer of the court she could not.

  "Anything else you wanted?"

  "No."

  "You're missing an earring," Pommer said.

  Karen's hand went to her ear. Then she glanced around her desk. Having found the earring beside the telephone, she clipped it on.

  "Good to talk to you again," said Chief Pommer.

  "Really?" she said, and he went out.

  She sat for a moment at her desk, both hands on her blotter, breathing somewhat hard, picturing how McCarthy's cross examination would go if she put Pommer and the other commanders on the stand. McCarthy would rub his hands together in glee, and then he would pounce. A secret investigation. No written report. Supposedly minor discrepancies. He would raise his eyebrows and turn toward the jury. Ho, ho, ho. What have we here?

  She couldn't chance it, couldn't ask the commanders to testify.

  So much for that brilliant idea.

  She shook her hair out, resolved not to think about it anymore, picked up the folder on Toole, the last of the wounded police officers, and began to study it.

  Late in the morning she called Officer Toole to the stand and he was sworn in.

  She kept him there most of the rest of the day, making him describe in minute detail how the raid was put together, and then his own part in it. As he was trying to come in the window off the fire escape, he said, Epps had shot him. It was dark in the room behind Epps. He hadn't even seen him, just the muzzle blast as he fired, the white light many times repeated. Other cops had got him out of there and into the ambulance and then the hospital. He had come to with tubes in him in terrible pain.

  She turned the young man over to the defense for cross examination.

  "You look quite fit to me, Police Officer Toole," McCarthy began. By the way, you filed a lawsuit against the city, I believe. Charging what, if I may ask?"

  "Negligence, reckless endangerment. I don't know. My lawyer filed it."

  "What damages are you asking?"

  "I was shot in the groin and in the side. I spent a month in the hospital. Five million dollars."

  McCarthy, playing to the jury, gave a low whistle. "Five million dollars. Not a bad month's pay."

  Courtrooms are solemn places and often tense ones. Any untoward remark can evoke mirth, and this one sent the spectator section into gales of laughter. For as long as it lasted, McCarthy pranced around grinning. He played it like a comedian, and when the laughter began to diminish he started it up again by ostentatiously straightening his bow tie.

  That the spectators had laughed did not much bother Karen. The spectators were no concern of hers. It was the jurors she watched; she scrutinized every face. To her relief no one had laughed outright. Nearly all, however, had been amused, and this was enough cause for concern. The average weekly income of these black citizens was how much? What did a number like five million dollars mean to them?

  Finally McCarthy got back to business. "And did other police officers join you in your suit, Officer Toole?”

  "The raid wasn't properly planned," said Toole evasively. "No one had time to get into position.”

  The previous laughter had had the additional advantage, from McCarthy's point of view, of throwing Toole even further onto the defensive.

  "How many others have sued?" persisted McCarthy.

  "Three others.”

  "The raid was bungled?"

  "Yes."

  "Too much haste?"

  "Yes."

  "Because the object was not to arrest my client, but to murder him before he could get away, before he could talk, is that not correct?"

  Feigning intense disgust, McCarthy walked away before the witness could answer.

  Karen approached the stand, and Toole seemed relieved to see her. "Was the object to kill the defendant, Officer?”

  "No it was not."

  "Is it a crime to bungle an arrest of this kind?"

  "No."

  "Arrests are bungled from time to time?"

  "It happens."

  Karen: "Did any of the police officers commit a crime that night? Or talk about committing a crime, or suggest committing a crime?"

  Toole: "No."

  Karen, who was dressed for the office, and Henry, still in pajamas and bathrobe, sat at the kitchen table sipping coffee. Outside it was just getting light. "Do you remember Jill Herman," Karen asked him.

  "Your college roommate."

  Karen had her hand on top of his. To anyone peering in the kitchen window it might have seemed an intimate scene between husband and wife.

  "She and her husband are going to Europe for two weeks," Karen said.

  "Husband No. 3," Hank said.

  "I've seen her once or twice lately.” Karen stopped. Hank didn't know she had joined Jill's tennis group, and she wasn't going to tell him now. I thought I was an honest person, Karen reflected. Now I've begun to lie all the time. "Anyway," Karen finished, "she and her husband are off to Europe."

  Karen bit her lip. Next came the hard part.

  "She's offered to let me use her apartment," Karen told her husband. "It's near the courthouse.”

  She had intended to tell him at dinner last night--tell the children too. She had made a start at it but had been interrupted and when it became her turn again she found that the words were difficult to speak, and she had put it off.

  Now she was about to leave the house as she did every morning, except that this time she had a bag packed at the door. It was now or never.

  "I can have the apartment starting tonight."

  "You're moving out," said Henry.

  "Of course I'm not moving out."

  Henry disengaged the hand lay under hers and lifted his cup to his mouth. He said nothing, merely looked at her over the cup. She supposed he was either angry or hurt, most likely hurt. Or pretending to be hurt, which was a way men had when thwarted. Anything to make the woman feel like a shit.

  "It will save me two hours a day commuting," she said.

  He remained silent.

  "Just till the trial ends," she said.

  Still he made no response.

  He feels rejected, she decided. Sympathy for him welled up, but she did not know how to express it. This is not a sexual rejection, she wanted to tell him. I'm not choosing someone else's bed over yours. But to voice such a denial would be to acknowledge that another man's bed was possibly real. It would make the rejection seem to him even more persona
l.

  It was so complicated that her sympathy for him evaporated. He ought to understand what she was going through. It shouldn't be necessary to tell him. "I need time alone to write my summation," she said stubbornly. "And after that I'll have to stand by round the clock until the jury comes in."

  Jackie entered the kitchen dressed for school, his hair slicked down. He kissed his mother.

  "What's for breakfast, Mom."

  She was barely aware of her son's kiss, his question. Her eyes were fixed on her husband. "It's just for a few days, Hank."

  Her gaze moved from her husband to the boy. "Jackie, I won't be home for the next few days. I'll be very busy in New York.” Hillary came into the breakfast room, and Karen repeated this speech. When she had finished it her eyes met Hank's again, but there seemed nothing further to say.

  Chapter 19

  McCarthy said to the woman in the witness box: "And did the day come, Mrs. Epps, when you visited your son in jail?"

  "He's a good boy, and he's my son."

  "Yes, and you visited him in jail?”

  She was hefty, middle-aged, serious. "As soon as I found out where they had him, I went to bring him what comfort I could."

  "And did you promise him something?"

  The witness declaimed her lines like a revivalist preacher. "That the men who had done awful things to him would be brought to justice.”

  Karen's eyes went skyward. There was nothing even to object to. Questions and answers were equally pious and equally absurd.

  "Awful things?" said McCarthy.

  "Awful things."

  "Brought to justice?" said McCarthy. "Meaning who?"

  "Meaning the police."

  Karen almost wanted to laugh. "Objection, your honor," she said mildly.

  Judge Birnbaum said: "Let's try to stay closer to factual evidence, please, Mr. McCarthy."

  Mrs. Epps was dressed in a severe brown suit that was clean and well pressed though not of the best quality. Probably McCarthy had picked it out for her. Karen could visualize him climbing the stairs in a Harlem walkup, going through her wardrobe, reaching in and saying: "wear this.” On second thought he would never have bothered to go there himself. He would have sent one of those eager young law students who worked for him without pay.

  But the image he wished his witness to convey was clear. This devoted mother was honest, hard working, the backbone of her family, the epitome of the matriarchal Harlem society. Was the jury buying it? Harlem was a place of broken families. It was often described as a society without men. The jury knew this better than Karen. In many cases the women raised their children by themselves. This was considered normal, was almost expected. Women like Mrs. Epps were regarded in Harlem as pillars of the earth. How was she coming across to the jury? After six weeks, having called more than forty witnesses, Karen had rested her case. McCarthy had promptly called Irene Epps. She would be the first--and perhaps only--witness for the defense.

  McCarthy as he paced remained closer to the jury box than to the witness. He was watching the jurors not the witness, was asking his questions almost over his shoulder. Obviously he was trying to put himself as close to the jurors as possible so that subconsciously, subliminally, they would feel he was one of them. That he was as impartial as themselves. That his only object was the same as theirs: to see the truth revealed. Clearly he would have climbed into the box with the jury if allowed.

  Karen thought this technique transparent. But perhaps the jury did not.

  "And when you visited your son in jail," said McCarthy over his shoulder, his voice low and more pious than ever, "did he tell you who had fired first?"

  It was an outrageous question. No ethical lawyer would have asked it. He was trying to introduce a mother's hearsay evidence on behalf of her son. Karen was on her feet: "Objection, your honor."

  "Sustained," said Judge Birnbaum.

  "He said the cops fired first.” Ignoring the judge's ruling, speaking in a loud firm voice, the witness had answered anyway.

  "Question and answer will be stricken from the record," said Judge Birnbaum. "Jury will disregard."

  "He said they came to kill him," declared Mrs. Epps.

  She had been, Karen saw, well coached. "Judge--" Karen cried.

  "The jury will disregard," said Judge Birnbaum.

  Sure, thought Karen. The jurors will erase from their heads what they just heard, the way one erases a cassette tape. Sure. Score another point for McCarthy. As he prepared his next question, it seemed to Karen that he was smirking.

  "Do you know a detective named Muldoon?" he asked.

  "Yes, sir."

  "And how is it that you know him?”

  "He came every week to my house."

  "Every week?"

  "Some weeks more than once."

  "To see your son?"

  "He would go into the room with Lionel and close the door."

  "Close the door?"

  McCarthy nodded knowingly. Had one or two of the jurors nodded knowingly as well?

  "They would stay in the room for a while?"

  "They would talk in low voices in there."

  "Could you hear what they were saying?"

  "I couldn't make it out."

  "Did you ask your boy about it afterwards?"

  "He wouldn't tell me, he was so ashamed. He would say: Mama, don't make me tell. He was a good boy. I never seen him so ashamed as he would be after that detective left him."

  "Did money change hands?"

  "Oh yes. Every time that detective leave, Lionel would have money."

  "How do you know this?"

  "Because he would give me some to buy food for the table. He would say, you spend it, Mama. I don't want to touch it."

  McCarthy now looked positively triumphant. He was practically strutting. "And did something unusual happen one day?”

  "It was about two weeks before the police tried to shoot my boy to death."

  "And what took place on that day?"

  "Detective Muldoon came to my house. I told him Lionel wasn't there."

  "And then what happened?”

  "He called me terrible names and threatened to kill Lionel."

  "What exactly did he say?"

  "He said, I'm going to kill that bastard."

  "I'm going to kill that bastard," McCarthy repeated. And then again musingly: "I'm going to kill that bastard.”

  The courtroom was silent. For more than a minute, which can be a very long time, McCarthy studied his witness. He let the woman's words drip like acid onto the jurors' minds.

  A third time he said: "I'm going to kill that bastard.” And then to the witness: "And what did you do?"

  "Went downtown and filed a complaint with the civilian review board."

  McCarthy went to his table, rummaged among papers, and came up with a form which he asked to be marked for identification. "And is this a record of that formal complaint?” He held out the form, waved it at the jurors, and handed it to Mrs. Epps.

  The mother looked it over. "Looks like it."

  Karen at her table had passed through a number of emotions, boredom, disgust, confusion, outrage and then, as the complaint form was entered into evidence, an intense and passionate anger. Some of Mrs. Epps's testimony was no doubt true. The portion about the civilian complaint was certainly true. Karen had known nothing about it, had never been told.

  "Did you know about this?" she hissed at Coombs.

  He looked as shocked as she was. "No.”

  She was furious at Muldoon who, it seemed to her, had withheld information vital to her case. Verdicts had been lost over much less. Barone must have known also. How dare they not tell her?

  "Go to my office. Find Muldoon. Find Barone. Have them wait in my office till I get there."

  Barone was at the Three-Two picking up his paycheck when called to the phone. It was Coombs. The conversation was abrupt and unfriendly: report to Karen's office forthwith.

  "What's it about?" inquired Barone.


  "Forthwith," said Coombs, and hung up.

  Barone stared a moment at the dead phone, then shrugged and drove downtown.

  He was sitting on a straight chair in Karen's anteroom when she came in. He knew she was going to be mad about something, but did not know what.

  "We can't find your partner?" she demanded as soon as she came through the door, "where is he?"

  "Danny's not working today,” Barone said, and watched her.

  "Come into my office. Do you know Epps's mother?"

  The anger in her voice was barely repressed and Barone, trailing her, paused before answering.

  "I've met her," he said cautiously. "I know the whole family more or less."

  "Why wasn't I told?"

  "We went over this for a week with Mr. Harbison at the very beginning. Before Coombs even came on the case. You mean he didn't tell you?"

  He had suspected a quarrel between her and Harbison for a long time; this confirmed it.

  "He hasn't been much help to you, has he?" Barone said.

  She looked at him a moment, but did not answer. He was not surprised. She would consider the subject not his business.

  "What's happened?" he asked. "Is there something I can do? Name it. Anything. You know that."

  He did not like to see her worried. He tried to put as much sincerity as possible into his voice but she was in no mood for sincerity, or else it registered on her as something else.

  "I want everything you have on Irene Epps, everything you can find out about her. Drop whatever you're doing and get on it.” She was almost shouting at him. "If you need extra detectives, see Inspector Pearson upstairs. Tell him you're acting on my authority."

  "Alright," said Barone.

  "And I want to see you and Muldoon tonight. Both of you.”

  "Look--" said Barone.

  "I don't want an explanation. I want you to get on it. Go.”

  Barone stood his ground. "I know you don't like me but--" He stopped.

  "I do like you," said Karen.

  "You do?"

  "Yes," said Karen after a moment, "I do."

  It was an admission that caused a kind of surprised silence on both sides.

  "There was a file on Mrs. Epps," said Barone. "Everything was in there."