Tainted Evidence

by Robert Daley

  "There's almost nothing in the file on Mrs. Epps."

  "Mr. Harbison had it. I saw it."

  "I don't believe you."

  Barone forced a smile. "Usually I only lie when I'm on the witness stand under oath.” But his smile faded and he said stubbornly: "Most of what was in the Rastar Williams file and the Irene Epps file I provided. Somebody's mislaid them both. What did Mr. Harbison say when you asked him about Rastar's file?"

  "He said he knew nothing about it."

  When Barone remained silent she added grudgingly: "By the time I asked him Rastar was back in Attica, so I didn't press the point."

  "But Irene Epps is still on the stand.”

  "I'm aware of that."

  "So ask him about the Irene Epps file.”

  "I'll ask him after court."

  He saw that she did not like the idea of confronting Mr. Harbison. "Do you want me to ask him?"

  "I'm quite capable of asking him myself.”

  "Don't get mad at me. I hate it when you get mad at me."

  He was pleased to see a tentative smile. She said: "You sound like a little boy."

  "When I'm around you that's what I sometimes feel like."

  This caused another long silence.

  Barone said: "I just thought that if I were the one to ask him it might be easier for you."

  "No, I'll ask him."

  "Because I'm the one who knew about the files, and it might seem less confrontational to him coming from a man instead of from a--” He stopped.

  "--From a woman," said Karen. "Do you realize what an offensive remark that is?"

  "Sorry."

  "How truly ugly?"

  "I said I was sorry."

  They stared at each other.

  Barone said: "You don't like the idea of asking him, do you?"

  "Not particularly, no."

  "If you want to ask him now," Barone said, "I'll go with you."

  "He's at a bar association meeting at the moment, I believe.”

  "Do you have the keys to his office? You must have. Get the keys and we'll go down there and have a look."

  "I said I'd ask him," Karen snapped. "I suggest you take care of the detecting and you let me run this office. Is that clear?"

  "Perfectly," Barone said. "I'll have the information on Mrs. Epps by tonight. Do I bring it to your house on Greenfield Avenue, or what?"

  "How do you know I live on Greenfield Avenue?"

  Barone was momentarily speechless, and they stared at each other.

  "I'll be staying in an apartment here in the city," Karen said, and gave the address. "Bring it there."

  The pious Mrs. Epps remained on the stand all afternoon. Around her McCarthy spun his web of half truths, inanities and lies, and Karen listened and fretted.

  Harbison must have known about the complaint against Muldoon, but hadn't told her. Well, he hadn't told her much, just turned over a ten inch thickness of files, one of which seemed to be missing. Two of which, maybe. A civilian complaint resulted in documents. It seemed inconceivable that Harbison had never sent for them. He must have sent for them. There was a file somewhere--or had been a file once--with those documents in them, and perhaps much more. Karen as she brooded was getting terrifically angry.

  When court ended she went back to her office where she telephoned Harbison.

  As soon as he came on the line she said: "Did you know about this civilian complaint against Muldoon?"

  "Of course."

  "Where's the paper on it?"

  "In one of the files in one of the case folders."

  "No it's not."

  "You have everything I had."

  "Do I?" said Karen.

  After hanging up she went out to her secretary's desk. "We have a set of master keys here someplace, don't we?”

  "In the safe," said Betty.

  "To the offices and to the filing cabinets too, don't we?"

  At six PM Betty stuck her head in the door to say she was going home.

  Karen said to her: "Leave the safe open for me, please. Good night."

  Coombs came in. She told him to go home, she was too tired to work tonight, and was leaving herself in a moment.

  So he too departed.

  For another half hour, too tense even to return phone calls, Karen waited.

  Finally she went out to the safe, selected the keys she wanted, and walked down the hall to Harbison's office.

  His door was locked and when she knocked there was no response. Stealthily she put keys into the locks, and walked in past his secretary's desk.

  The light was on in his office, which stopped her for a moment. But his coat was gone and she did not see his briefcase.

  The room was neat, everything in its place, the pencils lined up precisely, his telephone and desk calendar in line with the desk's edge. You've been in here before, Karen told herself, don't be so surprised.

  There were four filing cabinets along the wall, four drawers each, sixteen drawers in total. She opened the first cabinet and went through the drawers one after the other, the last of them on her knees. The drawers were neat too. Mostly they contained case folders, each folder four or more inches thick, each one properly identified as far as she could tell, none of them relating to the Lionel Epps case. What she was looking for would not be that thick, only a few pages. If it was here. She parted each pair of expandable envelopes looking for something slimmer that would have been forced down in between and which would perhaps not be labeled at all. But she found nothing.

  She kept listening for footsteps outside in the hall that might be Harbison returning. She could feel sweat trickling down her backbone, she was that tense. There was no way she could be sure her chief assistant had gone home, or would not come back.

  The second cabinet was the same. And the third and the fourth.

  She stood up and peered around. There were bookshelves which she approached, looking them over carefully. But they seemed to contain only books.

  His desk then. She went and sat down in his chair and tugged at the drawer handles, but the desk was locked too. She sorted through the keys she had brought.

  It was as she turned the key that unlocked the desk that she noticed Harbison's briefcase. It was in the kneehole upright on the floor beside her shoes. Seeing it there gave her a terrific start, for it meant that Harbison was still in the building. Lawyers, Harbison in particular, almost never went home without their briefcases. He could be working in some other office, or he was in the men's room, or he had gone out for a quick bite to eat and would be back any moment. If she were to find anything she of course meant to confront him with it, but suppose he came back and caught her searching his office and she had found nothing. She felt like a burglar ransacking a room for valuables. She felt like a criminal must feel. Hurry, she urged herself, hurry.

  There was nothing in the desk's middle drawer except paper clips, rubber bands and such.

  Nothing significant in the top drawers to either side, either: a tape recorder, batteries, packages of chewing gum, an adding machine. Old Christmas cards. More pencils. Stamps.

  The two bottom drawers were file drawers. The one on the left contained more case folders.

  Just then Harbison's briefcase tipped over onto her shoe. She dragged it out and rummaged through it. Some letters, his income tax forms.

  Footsteps approached in the hall. She waited for them to pass by but they did not do so. A key was inserted in the outer door, and it stiffened her.

  The cleaning woman perhaps. But she knew it wasn't the cleaning woman. There was no place she could run to, nowhere to hide.

  She had found no evidence against Harbison and she was about to be caught rifling his briefcase. She preferred to be caught rifling only his desk. Thrusting back the papers any which way, and the briefcase back under the desk, she sat up straight.

  Harbison stood in the doorway.

  "What are you doing in my office?"

  She imagined her face had gone red. She coul
d feel her cheeks burning and once again cursed her fair complexion. She took a deep breath, willed her heart to stop thumping, and looked up at him.

  "I was looking for a certain file."

  "What file?"

  "There's a file missing in the Epps case. I thought you might have it."

  "Get out of my office."

  Instead of obeying, she yanked open the final file drawer and peered down into it. This was a defensive reaction only. She was trying to prove to him and to herself that she had a right to search his office and files if she chose because she was the boss. Because she was district attorney, and he was not.

  "I'll go when I've finished," she said in a dogged, unsteady voice. "When I'm finished you can have your office back."

  She no longer expected to find anything incriminating. She had been through the cabinets, the bookshelves, his briefcase, and most of the desk already. It was unlikely she would find missing files in the only drawer left.

  In the drawer were folders marked personal: letters, some photos; and files relating to his taxes for the past several years. Finally she came upon a file marked miscellaneous. In it she noted other thinner files. They stood inside it and protruded slightly. One of them was marked "Williams, Rastar", and she plucked it out and dropped it on the desk.

  "What's this?"

  Harbison picked it up and clumsily flipped through it. As he went to put it back on the desk it slid off and splashed to the floor.

  "Pick it up," said Karen. "Now hand it to me."

  As he handed it over he almost dropped it again. He said: "I have no idea how that got there, and Williams has already testified, so whatever is in this file is moot."

  Karen went through it straightening pages until she came to a copy of her fax to the penitentiary at Attica asking that Williams be sent down to be interviewed by her prior to the trial.

  And a second fax, also signed by her, canceling the first one. A cancellation she had never written or ordered sent. Which would explain why she had been unable to interview Williams until the day before he testified.

  "Interesting," said Karen grimly, pushing it across the desk to Harbison.

  She lifted a second folder out of the drawer. It was marked "Epps, Irene", and she thrust it at him. "I bet this one is interesting too."

  It contained, she saw as she paged quickly through, the civilian complaint against Detective Muldoon, the disposition of that complaint, and much more. Dropping the folder on the desk, she stared up at her chief assistant.

  Harbison bit down on his lower lip.

  "Was there some special reason you hid these two files?" she asked. "Did you pick them out at random, or what?"

  It was such an unlawyerly thing to have done. She could hardly believe it of the man she had always supposed Harbison to be. How he must have resented her taking over his case, wanted her so much to lose. How he must hate her.

  "I want you out of here tonight," she said.

  "You can't fire me."

  "Oh, no? I've just done it."

  "The governor--"

  "If you go whining to the governor, be sure to tell him why I fired you."

  "He won't believe you."

  She waved the two files at him. "I rather think he will."

  "My secretary misfiled those files--"

  "I want your shield."

  Assistant district attorneys carried badges similar to police lieutenants.

  "Your shield and your keys."

  Sweat had popped out on Harbison's brow. "Do I get a chance to explain?"

  "No," said Karen.

  "It must have been my secretary--"

  "Clean out your desk," said Karen.

  "My secretary--”

  "Personal items only."

  "Wait a minute," said Harbison, "wait a minute.” But all the air had gone out of him.

  "I want you gone."

  "I've been here twenty six years and--"

  "Gone"

  "You can't do this to me."

  "Oh yes I can."

  "Not like this."

  "Just like this."

  "Can I ask you something?"

  "No."

  "I need time.”

  "Your keys, your shield."

  "Please," he said.

  "Give them to me. Now."

  Harbison put his shield and keys down on the desk. "A little time. Until Monday. Before you announce it. Can you please do that?"

  "You're joking."

  "I have a wife and children. Give me a chance to find something. You have to give me a chance."

  "I don't have to give you anything."

  "A few days."

  He was begging. "That's all I ask.”

  His mood turned suddenly truculent. "I can turn this into a scandal.”

  He said: "You don't need that."

  "It would smear you more than me.”

  "Suppose I don't go to the governor," Harbison said.

  Karen eyed him speculatively.

  "Suppose I resign and I go quietly, no fuss."

  The fierceness of her rage had surprised Karen. So had her ability to decide and fire this man, all in a few seconds.

  She had no desire to destroy Harbison's family, and her emotion was already beginning to abate.

  "Give me your letter of resignation," she ordered. And then in a milder voice: "Date it Monday if you like.” A letter would tend to protect her with the governor. "Just as long as you're out of here tonight."

  With this less than total victory, she decided to be satisfied. She was perhaps making a mistake, and knew this. If so, she told herself, at least it was on the side of decency.

  As she walked back to her office, she began to feel elated. She had prevented any protracted struggle by Harbison to keep his job. She had avoided the kind of juicy story the news media loved. Such publicity would have distracted her jurors, not to mention herself. And who knew, the media might even have taken Harbison's side, might have castigated her for days. She did not need that either.

  Jill's apartment was on MacDougal Street in Greenwich Village. Karen let herself in. She was carrying her bulging case files and was trailed by her driver with her suitcase. She was still thinking about Harbison.

  She said to Detective McGillis: "Just set it down anywhere.”

  Peering around, she felt triumphant, happy and bit flighty, as if she had come to this borrowed apartment for an illicit tryst, and was only waiting for her lover to appear. She put her briefcase on the kitchen counter, and when she looked up McGillis was still there, awaiting instructions.

  "Thanks for your help," she told him. "I won't need you anymore tonight.” She locked the door behind him. Three locks because this was New York City. She locked them all.

  As she moved through unknown rooms she began to remember her teenage years when she used to baby sit. She would enter each new house or apartment with a young girl's excitement. She would be eager to find out how two strange grownups lived. As soon as the couple had gone out and the child or children were asleep she could begin exploring. She would go to the bedside tables to see what kind of birth control they were using. She would look through the dressers, the closets, the jewelry boxes, the medicine cabinets. She would open and sniff the perfumes. Sometimes if the fit was right she might try on an article of clothing. She would examine the bookshelves, flip through some of the books looking for sexy passages.

  She felt excitement tonight too, though it was of a different kind. In the bedroom she pressed down on the mattress, testing its firmness. In the living room when she turned on a lamp she noted an envelope with her name on it on top of the television set, held in place by a bottle of champagne. The message inside told her how to put out the garbage, and that one of the windows was broken and would not open. It advised her to enjoy the champagne, and her few days off from home as well. Karen smiled.

  Having decided to call Hank she went to the telephone, but then put it down again because she was still savoring her conduct of less than an hour ago
, and was not yet ready to share it. Instead she went to the window, looked past her face in the dark glass, and watched the movement on the street below. She felt decisive. She felt somehow purified. Then she sighed and said to herself: "get to work, lady," and she sat down on the sofa, and opened her briefcase. As she began studying the newly obtained "Epps, Irene" file, she became elated all over again. With what was in it she could destroy Mrs. Epps' testimony tomorrow, and McCarthy with her.

  She closed the file and as she sat there she was almost gloating. Her enemy was gone. She had fired Harbison. She had never been a boss before, never fired anyone. She had not really had confidence in herself as district attorney, but she did now. I can do this job, she told herself. I'm more than a trial lawyer. I can run the office and win verdicts and manage the personnel too. Harbison had tried to destroy her, and he was gone and she was still DA, still in charge.

  Presently the doorbell rang. She opened to Detective Barone.

  "I've got most of what was in the original file," he said, "and a lot more besides."

  He handed her some papers which she carried into the living room to the light.

  He had followed her. "Did you talk to Mr. Harbison?"

  She tried to keep from smirking. "I did, yes."

  "What happened to the missing files?"

  "Well, we found them."

  "Good," said Barone. "At least you know I wasn't making it up. Where were they?"

  Karen pretended to be studying the material he had brought. "They were in a drawer," she said.

  "Misfiled?"

  "Yes, misfiled.”

  "Misfiled on purpose, or what?"

  How could he have known that, she wondered. "Of course not," she lied.

  "I owe you an apology," she said. "I wasn't very nice to you before."

  "When was that?" Barone said, "I didn't notice."

  They looked at each other. "You have a nice smile," Barone said.

  "So do you."

  This exchange brought silence on both sides.

  Barone said: "The mother's been arrested four times. She has four sons. Lionel is the youngest. His older brothers, half brothers I think they are, have done a total of twenty six years in the can."

  Karen glanced down at the papers he had brought. There was a richness of material here beyond even the contents of Harbison's file. Nonetheless, the cross examination of Mrs. Epps would be delicate. "The mother's not on trial," she said. "She's his mother. I can't attack her too much or I lose the sympathy of the jury. Her other sons--I don't know. Where's Detective Muldoon?"