Without Fear or Favor

by Robert K. Tanenbaum

  Karp had never tried a case in front of her, but she had a reputation for favoring the defense. In fact, when some of the younger ADAs in the office heard that she was going to preside over the Johnson case, they’d rolled their eyes and predicted a long, uphill battle. But Karp quashed that at a Monday-morning bureau chiefs meeting with a story from his college basketball career.

  “We were feeling sorry for ourselves at the half because the ref wasn’t giving us the calls,” he told them. “But my old coach had one response: ‘Score more points, stop them from scoring, and take the ref out of the game.’ We are going to score so many points and stop them from scoring during this trial, that the judge won’t be able to throw the game, even if she wants to.”

  Now Karp went into more detail on how he planned to counter a defense-leaning jurist. “We are going to prepare for this case like we’ve never prepared in the past.”

  “You’ve always emphasized preparation as the key to successful prosecution,” Katz noted.

  “Yes, but we’re going to double and triple that. I want you to prepare a legal memo, a mini-brief, on every potential legal issue that might arise, no matter how insignificant or unlikely it might seem. If it comes up during the trial, we’re going to have it at our fingertips to hand to the judge. We’re not going to get in a war of words and argue semantics with the defense—that’s what Nash wants. Let them howl at the moon all they want, we’re going to put the law in front of the judge in black and white and force her to make her rulings based on that. She’s not going to want to be overturned by an appellate court; she wants a seat on the federal bench, and she’s not going to get it if she gets reversed for ignoring the law, especially in the trial of a cop killer.”

  Karp reminded Katz that they knew what the defense was all about. “We’ve seen it before. The Big Lie—say it enough times and hope the jurors will buy it—combined with the frame defense. Goes back to the old law school courthouse saw for defense attorneys: If your case is weak on the facts, try the law. If your case is weak on the law, try the facts. And if your case is weak on the law and the facts, try the district attorney. The facts aren’t on her side and she doesn’t have a legal case. As long as we stick with the game plan, we’ll take her apart like Grant took Richmond.”

  “Nice imagery.” Katz laughed. “Are you going to want me to file these legal memos as pretrial motions for the judge to rule on?”

  Karp smiled and shook his head. “No. Only if necessary to counter defense arguments, regarding the admissibility of evidence, for example,” he said, and then explained how he planned to lay a trap for the defense, which left Katz grinning.

  Their conversation about Judge Kershner ended with Katz complaining about her refusing to excuse Mannheim. “After everything he said about the police, it was clear he wasn’t going to be fair and impartial.”

  However, Karp had surprised Katz by somewhat defending Kershner’s decision. “Yes, she should have cut him loose for cause, but judges don’t like dismissing jurors for cause because it’s an appealable issue. Again, the last thing Kershner wants is to have a verdict overturned because the appellate court doesn’t like a decision she made during jury selection. So put it on the lawyers—me, in this case—to get rid of some clown like Mannheim.”

  THE FOLLOWING DAY started with Judge Kershner admonishing the jurors that they were to consider only the evidence such as they heard it from sworn witnesses and any exhibits she accepted into the record. “What the lawyers say is not evidence,” she stressed.

  After that, she had invited Karp to give his opening statement, which he kept simple, laying out a general outline of the facts of the case, as well as what witnesses and other evidence he intended to present. He did take the opportunity to “respectfully add to Her Honor’s definition of what evidence jurors could consider” by pointing out that they could note “demeanor when determining the credibility of a witness.”

  Standing at ease in front of the jurors, he then touched on the “frame defense” and how Nash would have no choice but to attack the prosecution’s evidence “lacking any evidence of her own to the contrary. But you’ll see that, barring a crystal ball, which, obviously, does not exist, there is no way that my office, no matter how venal or contemptible Ms. Nash may deem it, could have created the voluminous trustworthy, corroborated, and dovetailing evidence you will be given.”

  Karp spoke calmly and matter-of-factly, looking into the eyes of each juror as he moved along the jury box rail and without the histrionics that Nash was certain to display. He’d save any righteous indignation he might want to channel for his summation, when it would count.

  “And when this trial is over, the People will have proved that the defendant, sitting in this courtroom over there,” he said, turning quickly to point at Johnson, who ducked his head at the suddenness of the accusatory finger, “brutally executed, in cold blood, Officer Tony Cippio—the father of two young children, and the loving husband of a pregnant wife—as he lay on the sidewalk, mortally wounded and begging for his life. He then attempted to murder Officer Bryce Kim by callously and indifferently persuading a promising young man, Ricky Watts, to commit this heinous crime, handing him his mother-of-pearl-handled, forty-five-caliber revolver. You will see that weapon here in evidence.”

  Returning to the prosecution table, Karp looked again at the jurors for a long moment and then concluded, “And we, the People, will prove this assassin’s guilt not just beyond a reasonable doubt, but beyond any and all doubt. Thank you.”

  After Karp took his seat, Kershner asked Nash if she wanted to present an opening statement. “I do, Your Honor,” said Nash, who was dressed in a gray suit and a figure-hugging white blouse. She walked toward the jury, shaking her head before she looked up.

  “Ladies and gentlemen, you will see that the State’s case is nothing more than a shameless, dangerous conspiracy to silence critics of law enforcement in New York County . . .”

  Margarite Nash paced like a caged animal in front of the jury box as she delivered her opening remarks, her voice dripping with well-rehearsed contempt. “And as you will hear, they will stop at nothing, including murder, to achieve that goal.”

  “So, what exactly are the facts—the FACTS—in this case? Well, we know that a young police officer was killed in Marcus Garvey Park during some sort of confrontation with several individuals. We have no idea what this confrontation entailed. Whether he said or did something to provoke the attack, we’ll never know, but tragically his death was the result. And why won’t we know?”

  Nash smiled sardonically. “Because the police couldn’t find the real killer. In fact, they had no information except the guess of a traumatized teenager who witnessed the incident from a distance.” She held up a finger as if to scold. “But that didn’t stop the NYPD or the District Attorney’s Office from settling on a suspect . . . someone whom they knew had spoken out against police brutality in the past. Someone whom they knew was visiting New York City and had been asked to speak at several gatherings of young men about standing up for their rights and their communities. But such talk is dangerous, so when they needed a suspect for the death of Tony Cippio, they had the perfect fall guy.”

  This time she was the one who pointed at Johnson, sitting in his button-down Brooks Brothers shirt, tie, and slacks, but he’d been warned, and instead of ducking he shook his head sadly. “They had my client.”

  As Nash pointed, Karp turned to look at the defendant, whose face was the picture of aggrieved injustice. Glancing behind the defendant, he noted the packed gallery that included Reverend Hussein “Skip” Mufti and his bodyguards. “That’s right,” members of the gallery spoke aloud. “You tell them, sister.”

  As his counterpart spewed venom, Karp kept his expression bland and his focus on the jurors to see how they were reacting to her accusations and tone. They were all attentive, but their faces betrayed various emotions from concern to studious concentration to angry scowls, though whether the latter was d
ue to Nash’s words or her tone was impossible to know.

  In general, he wasn’t worried about how the jury took the opening remarks. The trial had a long way to go, and they had not yet heard any of the evidence, or closing statements, when he’d get a chance to put all the pieces together for them.

  Karp spotted Pete Vansand in the gallery. He didn’t show it on his face, but he felt a flash of anger remembering Marlene’s account of the run-in with the journalist and his cameraman when she was escorting Judy Pardo back to the East Village Women’s Shelter. The same man who helped a would-be assassin get past the police at his press conference and then filmed the murderous plot. His distaste for Vansand’s ethics had only grown when Murrow showed up in his office a few months after the event with a newspaper photograph of Vansand smiling as he accepted the Emmy for his story on Karp’s near miss with a killer.

  The man had been a patsy for the defense ever since, and a mouthpiece for Johnson and Mufti. Now he capped it off by harassing a witness who was already frightened and not looking forward to the humiliation she would suffer on the witness stand.

  However, there was nothing Karp could do about Vansand, and he wasn’t going to let his aversion to the man distract him. He resumed watching the jurors as Nash described the People’s case as “a shotgun approach to justice . . . pull the trigger and send as many little pellets as you can out there, hoping that one or more hit something that will resonate with you.”

  More than an hour after she began her opening statement, most of it repeating herself in a variety of ways, Nash wrapped up. “The prosecution and their henchmen the police have three goals. The first is revenge, plain and simple—they want blood for the blood of Officer Tony Cippio. It doesn’t matter to them if they convict the right black man so long as it’s a black man—the same sort of mentality as a KKK lynch mob in the South, just string up the first black man you see.”

  Nash’s eyes narrowed. “As bad as that is, the other two reasons are, to me, even worse. One is to obscure the murder of two young black men—Imani Sefu and Ricky Watts—at the hands of New York police officers. It’s a bait and switch, people: ‘We don’t want you to look over there at what the police did, we want you to look over here at this young man whom we’ve chosen as the sacrificial lamb.’ The other is to silence a courageous and outspoken critic of the racist monolith of law enforcement, and they will stop at nothing, including, as you will see, murder.”

  Nash walked over to the defense table and stood behind Johnson, placing her hands on his shoulders. “This is nothing more than a classic attempt to frame an innocent man by any means possible. And we’ll be asking you to send a message that we refuse to live in a police state by finding Anthony Johnson not guilty of these outrageous charges.”

  When Nash sat down, Kershner looked at Karp. “Are you ready to call your first witness?” she asked.

  “I am, Your Honor.” Karp nodded to Detective Clay Fulton, who was standing next to the door in the side of the courtroom that led to the witness waiting room. “The People call Vincent Cippio Sr.”

  18

  KARP WAITED UNTIL THE FATHER of the slain police officer was sworn in and eased his large frame into the chair on the witness stand. When the man was settled, he asked, “Would you please state your name and spell it.”

  “My name is Vincent Cippio . . . that’s V-I-N-C-E-N-T C-I-P-P-I-O.”

  “And do you sometimes go by another name?”

  “Yeah, most people call me ‘Vince’ or ‘Sarge.’ ”

  “Why ‘Sarge’?” Karp asked.

  “When I retired I was a sergeant in the New York Police Department. That’s what my guys called me and it stuck, I guess.”

  “How long were you with the NYPD?”

  “Thirty-five years, all with the Seven-Three Precinct in Brooklyn.”

  “And you were a sergeant how much of that time?”

  “About thirty years.”

  As Cippio spoke, he kept his eyes on Karp or the jurors. He knew he couldn’t risk looking at the defendant. “I know if I look at him in the courtroom,” he’d told Karp in the witness waiting room that morning, “and he has that smug look on his face that I’ve seen on television, I’ll want to rip the bastard’s throat out. It will be all I can do to not go off on him just knowing he’s there.”

  “Have you received any commendations during your career?”

  Cippio half shrugged his broad shoulders. “I received the Medal for Valor and a few others.”

  “The Medal for Valor . . . NYPD’s third-highest award for heroism,” Karp said.

  “Objection,” Nash said as she smiled condescendingly and rose to her feet, taking a moment to straighten her tailored gray jacket. “Your Honor, what is the possible relevance of this line of questioning?” she asked, as if dealing with a prosecutor just out of law school. “The witness supposedly is here to testify as to the identity of the deceased, his son. However, the district attorney is launching into this irrelevant tour of family history to inappropriately play on the jury’s emotions.”

  Karp turned slightly to address the judge, though he made it a practice to never put his back to the jurors. “Your Honor, as she has through the media prior to this trial, counsel at least implied during her opening statements that she would attempt to impugn the character of New York police officers as a class of people, including the victim and members of his family. I am merely establishing for the jury the sort of officer the witness was during his long and stellar career.”

  “And now the district attorney is making speeches,” Nash shot back.

  Judge Kershner’s face twisted as she thought for a moment, then nodded. “The district attorney is correct that you implied that strategy and he has the right to address this with his witness. So your objection is overruled. However, Mr. Karp, please move on.”

  As he walked toward the witness stand, Karp said, “You just testified that you were always assigned to the Seven-Three Precinct in Brooklyn, which for the jurors is referred to by the public as the Seventy-Third Precinct, correct?”

  “Yes.”

  “That’s a pretty rough precinct, is it not? A lot of homicides and violent crime?”

  “Yeah, about as rough as it gets. But there’s a lot of good people there, too, just trying to get by. I made a lot of friends working at the Seven-Three.”

  “Are you aware of the racial makeup of the population served by the Seven-Three?”

  “It’s basically a minority community, mostly black.”

  “Sergeant Cippio, as a police officer, did you interact with civilians differently based on their race or ethnicity?”

  Cippio shook his head. “People’s people. Every group has its bad apples, but for the most part if you treat other people with respect, you get respect back.”

  Karp nodded. The whole delving into the background of a victim’s family member wasn’t something he normally did, and he found the entire exercise of having to “prove” the sergeant’s exemplary career to be distasteful. But it had been necessitated by Nash’s statements to the media, as well as her comments during pretrial hearings and jury selection, that implied that even the victim’s police officer father was a racist bent on seeing a black man convicted whether or not he was guilty.

  Asking hard questions of a grieving family member would normally be akin to playing with fire for a defense attorney. But she was counting on a change in climate for how the public viewed law enforcement.

  “Sergeant Cippio, would you describe for the jurors your family’s history with the New York Police Department.”

  “There’s been a Cippio with the NYPD since 1920, when Alphonse Cippio, a second-generation American, joined the force. Typical New York Italian family. Basically, males are expected to become cops or priests or join the military, though there’s been a few black sheep who went to medical school or started a business,” he added with a smile.

  “Is there a reason for that?”

  Cippio shrugged. “I gues
s it’s sort of a feeling of wanting to give back to the community that took our family in when we first came to this country. It’s been passed down ever since. I remember my grandfather talking about it, and I certainly heard it from my dad. I talked about it with my sons since they were little . . .” He stopped and blinked his eyes several times. “I guess I sometimes now question the wisdom of that.”

  Nash stood up again. “Your Honor, this is all very touching, but I really have to object about the relevancy.”

  Without turning to look at her, Karp responded with a touch of anger. “Again, defense counsel has been the one throughout the proceedings leading up to this trial to make it clear this isn’t just about defending her client; it’s a wholesale indictment of all police officers. All I’m trying to do at this point is explain to the jury something about the character of the victim and what led to his being in Marcus Garvey Park on the afternoon he was brutally, cold-bloodedly executed by her client.”

  “Very well, Mr. Karp, a little more and that’s all,” Kershner replied. “Overruled.”

  Karp turned back to Cippio. “Have members of your family on the force been killed in the line of duty other than your son Tony?”

  “Yes, my grandfather’s brother, I guess he’d be my granduncle. He was killed by the Mob in the 1930s when he refused to take bribes from the Black Hand in the Garment District,” Cippio replied. “And my brother, Dom, was killed responding to a domestic violence call.”

  Cippio paused and swallowed hard. “Then my first son, Vince Jr.”—he stopped and had to collect himself—“he died on September 11, 2001. He was last seen running into Tower Two at the World Trade Center. He’d already brought two groups of people out and was going in for more when the building collapsed.”

  “And was he recognized for his bravery?”

  Cippio nodded. “Yes, he was awarded the NYPD Medal of Honor.”

  “And that would be,” Karp said, walking over to the lectern to study his notes on a yellow legal pad, “the department’s top award for, and I quote, ‘individual acts of extraordinary bravery intelligently performed in the line of duty at imminent and personal danger to life.’ ”