The Best Friend

by Adam Mitzner

  In New York State, murder in the first degree is limited to killing a police officer and a few other special classes of people, mainly those involved in the justice system. Killing your wife in a premeditated fashion was charged as second degree. New York didn’t impose the death penalty for second-degree murder, but Nicky was still staring down the possibility of life in prison if convicted.

  As I got up to enter the well of the court, I turned to look behind me, back to the one and only entrance into the space. Nicky was making his way in, his hands again cuffed behind his back. Another local police officer was guiding him down the corridor. I joined him when he passed the first row, and we walked together to the small table in front of the judge. The prosecutor was already in place. He looked to be my age, clean-cut the way prosecutors usually are.

  “Waive reading of the indictment,” I said.

  This was a given in criminal practice. As a vestige of a bygone era, the law required that the defendant be read the charges aloud in open court. Not only was it a gigantic waste of time, but it was painful for the defendant to hear the awful things he’d been accused of doing.

  “That’s not the way we do things here,” Judge Carson said. “First, I need your appearance.”

  In Manhattan, you give your appearance to the court clerk before the judge takes the bench. That way, the proceeding can begin as soon as the judge arrives. In Mount Pleasant, apparently, no one was in a hurry.

  “Assistant District Attorney Barry Mendelson, of the Westchester County District Attorney’s Office,” the prosecutor said.

  “F. Clinton Broden, New York City. Counsel for the defendant.”

  “Now, Mr. Broden, is it?” Judge Carson asked.

  “Yes, Your Honor.”

  “Would you like Mr. Mendelson to read the indictment, or do you waive reading?”

  He said it with a mocking smile. It was his way of telling me that I wasn’t in Kansas anymore. I’d heard about other New York City lawyers getting hometowned outside the five boroughs, but this was my first time being on the receiving end.

  “The defense waives reading,” I said.

  “On the only charge in the indictment, murder in the second degree, how does the defendant plead?”

  I nodded for Nicky to say his line. “Not guilty,” he choked out barely loud enough for me to hear, much less the judge.

  Still, it was enough to make the record, because Judge Carson quickly asked, “Mr. Mendelson, what is the People’s position on bail?”

  “Thank you, Your Honor. Mr. Zamora is charged with murdering his wife of only a month by drowning her in the bathtub. The savage nature of the crime makes Mr. Zamora a danger to the community. In addition, he has no ties to Westchester County. No children. The defendant is therefore a definite flight risk. The People therefore request that Mr. Zamora be held without bail.”

  Prosecutors are no different from defense lawyers—we both set out extreme positions, pushing the bounds of truth to the breaking point.

  “Mr. Broden?”

  “Your Honor, I will spare the court the usual recitation of how flimsy the People’s evidence is because I recognize that the seriousness of the charge alone warrants meaningful bail. But it should be set at the lowest level that will ensure Mr. Zamora’s appearance at trial. Contrary to the ADA’s claim, Mr. Zamora has extremely significant ties to the community. He grew up less than thirty minutes from here, in Queens. His parents still live there, and they are in the courtroom today.”

  I turned and motioned for Nicky’s parents to stand. Mr. Zamora managed a crooked smile, but his wife buried her face in her handkerchief.

  “Mr. Zamora’s parents are willing to post the home they have lived in for nearly forty years and the business that has been in their family even longer than that, a grocery store in Queens. They will also pledge the building it occupies, which they also own. The value of this package is going to top out at five hundred thousand dollars,” I said, deliberately lowballing it. “That is a significant amount, especially to people of the Zamoras’ means. I therefore respectfully request that you select a bail figure that they can achieve.”

  The judge’s gaze went past me and focused on Nicky’s parents in the gallery. Then he turned back to Nicky.

  “Sir, do you love your parents?” Judge Carson asked.

  The question must have confused Nicky, because he didn’t immediately answer. Then he said, “Yes. Very much.”

  “Do you promise me that if I free you on bail, you’re going to come back here to face trial?”

  “I promise.”

  Judge Carson looked down at the indictment, no doubt to recall Nicky’s name. “Believe me, Mr. Zamora, I will not hesitate to take your parents’ home and their business from them if you do not. Do you understand that?”

  “I do. I swear.”

  Judge Carson gave a single nod. “Bail is set at five hundred thousand dollars.”

  8.

  More than five hours after the arraignment, Nicky still hadn’t been released. I canceled my after-work appointments and settled in for what I expected might be a long night. My main concern was that, despite the judge granting Nicky bail, if everything wasn’t finalized soon, Nicky would still end up spending the night in confinement. As each hour passed, the ranks of the reporters dwindled, undoubtedly because they too expected there’d be no photo op today.

  A little before seven, Nicky passed through the gate. By that time there were only two or three news outfits still in attendance. They took their pictures and asked for a comment, to which I responded, “Mr. Zamora is innocent of these charges and will prove that at trial.”

  We drove back to Mount Vernon in silence. I had been prepared for Nicky to pepper me with questions during the car ride—about the evidence, the likely jail time if he were convicted, the odds that he’d win at trial, or simply what would happen next. But he didn’t say a word. He stared out the window, as if the answers were to be found on the highway.

  I periodically looked in the rearview mirror to see if we were being followed, but a picture and a quote were apparently all the reporters wanted. When Nicky and I pulled into the Skyline diner, we were alone.

  “How’s the food in the joint?” I asked Nicky when we sat, my effort to inject a little levity.

  He smiled for a moment, then looked at me with meaning. “Seriously, Clinton, thank you. For everything, man. I—”

  “No need. I’m here for you. Just like I know that if someday my freedom depended on you writing a really good book, you’d be there for me.”

  He laughed. “You know I would.”

  “One thing, though. You know the old expression about the lawyer who represents himself in court . . .”

  “Fool for a client, yeah.”

  “Well, I’m not sure having your best friend as your lawyer makes you much smarter than that. Which is my way of saying that, starting right now, you have to think only of yourself.”

  Instead of turning somber, Nicky smiled, as if to acknowledge that had never been much of a problem for him.

  “What I mean to say is that you can’t feel any obligation toward me, Nicky. There’s a reason that doctors don’t operate on family members, right? It’s not because of shaky hands; it’s because the emotional bond can cloud your judgment. This is your life we’re talking about. Win or lose, I go home when the trial’s over. So if you want a lawyer who you can curse out, or even if you’re thinking about suing for malpractice when it’s all over, if it came to that, I can get you names of people I think are terrific, and I’d be fine with that. I could help out in some other way, or provide no legal services at all and just be your friend.”

  “You may have a fool for a client, Clinton, but I have the best criminal defense lawyer in New York City.” He smiled. “Besides, who else is going to do it for free?”

  “I do come cheap, that’s true. But all kidding aside, just remember this, and we don’t have to discuss it again, but you should fire me the second you think t
hat I’m not the right guy for this.”

  “Deal,” he said, still smiling. “Maybe the one thing that won’t suck about being wrongly accused of murdering the woman I loved will be firing your ass.”

  Needless to say, I wasn’t worried about being fired. My concern was that my best friend was going to end up serving life in prison because of me.

  After we ordered, while we were waiting for the food to arrive, I told Nicky what I’d learned about the case against him.

  “The indictment doesn’t say much, which is pretty standard. It just repeats the elements of the crime and alleges that you did them. I asked the ADA to put some meat on those bones, but he said it wasn’t his case and he was just there for the arraignment. Apparently some guy named Brandon Sherman is the ADA in charge. I’ll reach out to him tomorrow.”

  “Why do they even think Carolyn was murdered?” Nicky asked. “It was obviously an accident.”

  “Without seeing their discovery, particularly the autopsy, it’s impossible to know for sure. But with the lawyerly caveat that this is pure guesswork, and everything I tell you could be proven wrong, the fact that they made the arrest a week after Carolyn died tells me that the autopsy didn’t support an accidental death. I had a few theories as to how Carolyn might have died. I’m sure you did too. A brain aneurysm or a seizure, or maybe she had a reaction to some medication she’d started and it caused her to pass out. But the autopsy must have disproved those possibilities. It likely shows that she was in perfect health and didn’t have any drugs or alcohol in her system.”

  “But why would that make them think that I murdered her?”

  His naivete on this point surprised me.

  “Nicky, if the autopsy didn’t show a medical reason for her to pass out, then there was probably a contusion on her head or something. Maybe she slipped getting out, but the DA could have concluded that someone hit her. And you were the only other person in the house. They weren’t thinking about other suspects.”

  Nicky winced at the suggestion. “Jesus.”

  “I know. But here’s what worries me: I don’t believe that just a bang on the head would be enough for them to indict. They must have more than that.”

  “Like what?”

  “A reason why you wanted her dead. In a spousal situation, one that isn’t going to involve child custody, it usually comes down to money or infidelity. Sometimes it’s both.”

  He was shaking his head to deny either possibility, but I asked the question anyway.

  “Did Carolyn have any family money? Like a trust or something like that?”

  “No. The McDermotts are reasonably well off, but nothing like that.”

  “Life insurance?”

  “No. I’m screwed financially now. Without Carolyn’s paycheck, I won’t be able to pay the property tax on the house, much less the mortgage.”

  “Okay. So there’s no financial motive. What about infidelity? Yours or hers?”

  “We’re still newlyweds. I don’t know what it was like with you and Anne, but Carolyn and I were still having sex every night and twice a day on the weekends. There’s no one else, I swear. For either of us.”

  The financial part I accepted at face value. If Carolyn’s parents were millionaires, I would have known about it, and lying about insurance money made no sense because Nicky must have known it would be easy to prove. The infidelity, however, was another matter. I didn’t know Carolyn well enough to pass judgment on whether she would cheat on her new husband, but I’d known Nicky to step out on prior girlfriends. But, like he said, Carolyn and he were newlyweds, and there was no reason for him to marry her if he had someone else on the side.

  “So that’s the good news, then,” I said. “There is no motive.”

  “Do you think it’s possible?”

  Attorney-client privilege does not have an exception for wives. Although Anne could not be compelled to reveal anything I said to her under the doctrine of spousal privilege, repeating what a client told me, even to Anne, was still an ethical breach. But Anne and I had always talked about my cases, and usually that included my revealing things that I would never tell someone outside of the attorney-client privilege. Something about Nicky’s case could come up that I’d shield from Anne in the future, but I was not going to draw the line at general questions like the one she was asking now.

  “Absolutely not,” I said.

  In response to my full-throated denial, she nodded, but in a way that suggested she did not believe as strongly as I did in Nicky’s innocence. I didn’t begrudge her this doubt. She didn’t know him like I did.

  “Why do they think he killed her?”

  During the early days of our marriage, Anne would listen to the fact patterns of my cases as if I were recounting the plot of a particularly good novel. After a few years, she came to assume the dispassionate air of a juror, rendering judgment after I’d laid out the evidence. By this point in our marriage, however, Anne’s interest in my work had waned. On those occasions when I’d come home to share some new evidence I’d unearthed, more often than not she’d say that my cases all blurred together in her mind.

  It was only natural, however, that Nicky’s defense reawakened her interest in my work. And being married to a defense lawyer means that you acquire some of the tricks of the trade. In Anne’s case, she was a natural cross-examiner. Her question about my opinion of Nicky’s guilt had revealed only that I loved him; now she was attacking the issue from another angle.

  “The indictment didn’t specify a motive. That’s not unusual, though. Motive isn’t an element of the prosecution’s burden, and they usually like to play it close to the vest. Besides, in a spousal situation, the motive could be virtually anything. The usual things, of course, are money or infidelity, but Nicky’s emphatic that neither of those things were issues between him and Carolyn.”

  “There’s got to be a reason why they think he killed her,” Anne said.

  The prosecution would argue otherwise. They’d say that it doesn’t matter why. That people fly into murderous rages over nothing all the time. Nicky could have been triggered by a sudden request to do the dishes.

  But I believed the answer to Anne’s question was much simpler.

  “There is a reason,” I said. “It’s that they’re wrong.”

  Again, I wasn’t sure she believed that. And like before, she deflected my certainty to address a logistical issue.

  “So what’s next?”

  “Preparing for trial.”

  “Are you up for that?”

  There were a multitude of meanings packed in that one question. Am I capable of representing someone in a murder case? I’d done two murder cases, but both were gang killings between drug dealers with long criminal records. In neither did my clients put on a defense, and both were convicted. Or maybe Anne wasn’t questioning my bona fides, but instead asking if I was ready to represent a friend. And not just any friend, of course. Nicky was my oldest and dearest friend. My wife was well aware that in the few previous instances someone I knew socially had asked me to represent them, I’d declined for the reasons I’d already shared with Nicky. It was also possible that Anne wasn’t concerned about Nicky, but about our finances. The trial would occupy at least the next six months of my life and require my full-time attention. She knew from experience that, a month or two after the case ended, I’d lack regular work because I hadn’t been able to accept new clients during the trial. She also knew that I would never in a million years charge Nicky a dime. From a financial perspective, this meant that representing Nicky would be the rough equivalent of taking a half-year, unpaid sabbatical. Our bank account didn’t reflect that I had that luxury.

  “Yes,” was all I said.

  9.

  A criminal defense begins by demanding the prosecution share its evidence. More often than not, that demand is met by stonewalling. Then, shortly before the trial date, the prosecution produces what in the jargon of criminal defense is referred to as Brady materials, th
e constitutionally required minimum of information, which amounts only to exculpatory or impeachment evidence. Other than that, the prosecution has limited discovery obligations pretrial, and they typically hold even that back until the last possible moment.

  It was therefore something of a surprise when, less than two weeks after I made my demands in Nicky’s case, I received the forensic evidence. This was not necessarily good news. Prosecutors respond early only to demonstrate they have the defendant dead to rights, in order to set the stage for a guilty plea. The criminal-law equivalent of shock and awe.

  The evidence consisted of thirty pages of medical reports and half as many autopsy photographs. The pictures were graphic—Carolyn’s dead eyes staring at me—but it was the medical analysis that mattered, and to decipher that I needed an expert’s assistance, which was why George Graham was now sitting in my office.

  I met George when I was at the FD, and he worked for the New York City Medical Examiner. It didn’t take me long to realize that George was the ME you wanted on your case. Not only because he was smart and thorough, but because he gave it to you straight, whereas many of his colleagues thought of themselves as part of the prosecutorial team, which made defense lawyers the enemy.

  George left the ME two years ago after being railroaded by his boss. He never told me what happened, but I’d heard from others that when Ben Kornitzer stepped down as the city’s chief medical examiner, the Mayor’s office spoke to the rank and file to get the lowdown on Paul Zimmerman, who at the time was the First Assistant and the odds-on favorite to be offered the top spot. Reading the writing on the wall, the members of the staff sang Zimmerman’s praises, which is another way of saying that they lied. Except George. He wasn’t built that way. He told the truth—that Zimmerman was a second-rate pathologist who likely had a drinking problem and definitely had anger issues. Of course, the story ended the way anyone could have predicted: Zimmerman got the job anyway, someone told him about George’s comments, and George was sent packing.