Wiseguys in the Woods

by John P. M. Wappett

  The second area was his career choice. He might be an ordinary prosecutor, but he loved the work so much, that he always tried to be the best ordinary prosecutor he could be. Early on, in the Albany DA’s Office, he had volunteered to work in the Appeals Bureau, where for more than three years he had studied the criminal law and written briefs which were explanations and justifications for the work of the trial ADA’s. Within 90 days of his being hired as an ADA, he had appeared in an appellate court, stood before a panel of judges, scared shitless, and argued the points in his brief. He’d already done a tour in the Army trying their “Be all you can be”, and he was still trying to.

  Peter looked up from his list of the morning’s cases as Judge Ginola addressed the gallery, although speaking to Peter, with his nearly perpetual twist of his mouth that served as a smile: “Do you have any preference on which case to start with, Mr. Drake?”

  “No, sir. Please surprise me!” Peter wondered if anyone else had caught just how underwhelmed that had sounded.

  “Okay, how about Kevin Stevens?”

  “Certainly, your Honor”, acknowledged Peter, as he pulled out the Stevens file from his stack. There were some fifteen other files in the pile, so this was going to be a fairly long Special Term, at least for this Court. Peter remembered how Special Terms in Albany County would easily last the entire day with several Special Terms per week.

  Special Term is a preset period for defendants and their attorneys to appear before the County judge, during which any number of actions can occur with regard to a case, though rarely is any of them “special”. Another incongruous term was the Special Term calendar, which wasn’t a calendar as most people thought of one. It was the term used for the list of matters to be worked on during a particular session of the court.

  Most routine matters, including arraignments, pleas, sentencings, bail applications and the like were handled in Special Term. In a small county like this, one day per week was usually sufficient to keep up. Hearings and trials were scheduled separately on days when the Court and the attorneys can devote the hours, even days that they might take.

  Kevin Stevens was brought out from the holding cell, by Sheriff’s deputies and security guards. He walked up to the defense table and stood next to his attorney, Walter Lawlor.

  “Am I correct in assuming that there is to be a plea in this matter today?” quizzed the judge.

  “One can never be certain, but hope springeth eternal”, chimed in Walter Lawlor, joining in on the light-hearted banter.

  Peter contributed, “And sometimes it springeth infernal.”

  When cued by Judge Ginola, Peter recited the details of the plea agreement for the stenographic record. As he did so, he thought of reasons for his acquiescence to this remarkably lenient disposition. Walter had even kidded him that he was going soft. The agreement included dropping the second count of the indictment for a reason that Peter was not going to disclose. Before the plea agreement got watered down by Peter, the defendant was insisting that he wanted to go to trial, rather than accepting a plea bargain that included prison time. As part of his early pretrial preparation, Peter had reviewed the file and then, his curiosity already piqued by what he had just read, interviewed the lead investigator and ADA Castor, who had presented the matter to the Grand Jury. What Peter learned, made his blood boil, doubly so as it was so unnecessary.

  The investigator, who was working undercover during the investigation phase of this case, posing as a fence who was looking to buy stolen jewelry and other things, had arranged to go to the defendant’s home along with an informant who knew the defendant. The plan was for the informant to make introductions so that the investigator/fence might be shown some stolen merchandise for possible purchase.

  Everything went well until the informant went off script and asked the defendant to sell him some weed. When he and the defendant went out into the kitchen to do the marihuana deal, the investigator, who had stayed in the living room, got up and let himself into defendant’s bedroom. He searched the room and found a box under the bed, containing jewelry which matched the description of items taken in an open burglary. He returned to the living room and completed the meeting with the defendant, but wasn’t shown anything that he recognized from burglaries.

  The next day, the defendant’s home was raided by a police team armed with what they all thought was a perfectly valid search warrant. This warrant’s application contained the normal sworn statement of information that would satisfy the issuing judge that it was more likely than not that the home owner was engaging in criminal activity and that proof of those crimes would be found in that house. The investigator had included a description of the conversations that had take place the day before and had also included information about what the investigator saw in the bedroom. David Castor, a fairly new ADA had presented the case to the Grand Jury and obtained an indictment.

  When Peter called ADA Castor and the investigator, Brian Loftus, into his office, Peter confirmed that the defendant had never given the investigator or his informant permission to wander about the house the day of their visit. Since the defendant had only allowed the investigator/fence to enter the house and sit in the living room while defendant and informant went into the kitchen, his actions in looking around were actually an illegal and warrantless search of the bedroom. That meant that his observations of the jewelry under the bed were inadmissible in any trial, as were all of the items of evidence seized pursuant to the search warrant, as they were “fruits of the poisonous tree”. Ironically, the discussions in the living room would have been enough to justify a warrant for the defendant’s home without reference to the bedroom.

  ADA Castor argued that Peter did not have to dismiss those charges as neither the attorney nor Judge Ginola would recognize the problem. Peter told Castor that he was missing the point and that he really ought to read and understand the pertinent law and follow it, rather than looking for shortcuts or relying on the judge’s ignorance. Castor had left the meeting pouting. To his credit, Investigator Loftus agreed with Peter and apologized for screwing up. He understood that Peter’s actions also saved him from possible disciplinary action by his superiors. The modified plea bargain, which was being put into effect at today’s proceeding, was limited to charges unrelated to the officer’s unauthorized observations in defendant’s home.

  Peter had once explained to his wife, Eileen, his theory that newly hired Assistant District Attorneys seemed to go through the same phases as youngsters learning to drive cars. When a teenager is first handed his license, he is scared to death and drives as though his vehicle is rigged to explode. This terror phase lasts some 6 to 18 months, long enough to gain some measure of control over the vehicle. Phase Two, the over-confident phase, is when the teen is convinced that he or she is proficient and can handle any situation, even though he has only seen a few. This most dangerous period can last for a few years, until maturity and a few good scares bring the teen into Phase Three, which is the experienced and prudent driver.

  ADA Castor, although a fifth year prosecutor, had still not managed to get past Phase Two. He was remarkably (and unjustifiably) sure of himself, and convinced that he knew all that there was to know of criminal law. He was also Judge Ginola’s favorite and therein lay the real problem. Setting aside this thought for the moment, Peter monitored the judge’s questioning of the defendant to make sure that this guilty plea was going to be a voluntary one and with the advice of the defense attorney. This episode was wrapped up with Stevens receiving a copy of his conditions of probation and being sent on his way.

  The remainder of the Special Term proceeded without incident and Peter was able to put himself on auto pilot to handle his part in the proceedings, as he had handled hundreds of such proceedings while in Albany County. As usual, Peter took note of which hand the defendant used to sign his name. For reasons beyond his understanding, there were consistently more left-handed defendants than the normal human ratio. Peter had also noticed an inord
inate number of prosecutors and judges, including himself, exhibited the same trait. Though far from a scientific survey, Peter wondered if it might mean that these disparate groups of individuals had more in common than they would ever admit. Given popular opinion of lawyers, it seemed likely that Hell would be heavily populated by southpaws.

  The only excitement that punctuated the remainder of the afternoon was when a twice-convicted drug dealer was being sentenced to significant prison and he told the judge that he wanted probation. Peter could not resist quipping to the court, “I understand that he wants probation and is disappointed. I, for instance, wanted to be six foot-two and good-looking. As you can see, that hasn’t worked out either.”

  The defendant’s attorney chimed in, “I have heard Mr. Drake make that same assertion before, but he would always claim that he wanted to be six foot, four!”

  “Your honor, I confess that I have had to lower my own expectations. I, however, continue to hold out hope for ‘good looking.’”

  As he left the courtroom at the end of Special Term, ADA Castor popped back into Peter’s head, and he promised himself that he would keep a closer eye on his headstrong, young colleague. Peter tried to look back into his own past. Had he been as arrogant and self-important?

  Nine years ago, Peter had become an intern at the Albany County District Attorney’s Office, while in his second year of law school. It was a rare, paid position, sponsored by CETA (Civilian Employment Training Act), for military vets as they learned civilian job skills. When he first entered law school, Peter had had no interest in criminal law, thinking vaguely that environmental law was an interesting area. Years later, when talking about those early days, his wife Eileen, would laughingly remind him that he had gone from being a left wing, tree hugging liberal to a firebrand, somewhere to the right of Genghis Khan, in the space of ten weeks that summer.

  It was true. That first summer in the Albany DA’s Office had changed Peter’s outlook on his future completely and becoming a prosecutor was all he was interested in being. Peter had been assigned to assist ADA Larry Williams, the Grand Jury assistant and a Special Forces Vietnam vet with a wry sense of humor. Together, they dug through dozens of felony cases each week, preparing the most significant matters for presentation to the Grand Jury, including eight murder cases. Among other things, Larry taught young Peter that a sense of humor was essential when dealing with life’s carnage on a daily basis.

  One day, Peter looked up from the file he was reviewing, to see Larry silently contemplating a glass of water he had just poured. After swirling the contents of the glass, Larry brought the glass to his face and pressed it gently against his cheek. “Cool.” He then held the glass up toward the window, through which the sun was shining and squinted at the glass. “Clear.” Finally, he brought the glass down and to his lips and took a sip, which he swished around in his mouth before swallowing, “Water.” At which point Peter echoed, melodically, “Water.” Through their laughter, Larry began to sing, “Old Dan and I with throats burned dry and souls that cry for water. Cool, clear, water.”

  Peter got to meet many of the police and other significant members of the law enforcement community with whom he would work for the next nine years, though none so colorful as the medical examiner, Jack Neville Daugherty of Bristol, Eng land.

  Dr. Daugherty, who strongly resembled the Father Christmas of Peter’s dad’s youth, was delighted to learn that young Peter was the son of a Geordie, that being any person from northeast England around Newcastle. As a result, Dr. Daugherty took extra care to explain his findings, in rich detail, to the new kindred intern.

  On one unforgettable occasion, the doctor was at the DA’s office to testify before the Grand Jury on a brutal homicide of a homeless man. Before being brought before the Grand Jury, he met with Peter and outlined, in his usual animated style, his autopsy findings, all the while waving around and jabbing with a stubby, tobacco stained finger at 8 by 10 color glossy photos of the procedure, the grimmest of which he had just shoved under the nose of his favorite law intern.

  “Now you can see, Master Peter, that this poor fellow survived the initial beating with nary a bump nor visible bruise, but the blows to his abdomen had in fact ruptured his spleen and bowel. The green colored areas you can see so clearly in this photograph are the peritonitis to which he eventually and painfully succumbed. Oh, dear Peter. You, too, seem to be going a bit green on me, as well, hmm?” “Ha, ha, ha, ha.”

  Like many of the good forensic types and other professionals who regularly participated in these investigations, he was a magnificent witness - professional, charming and occasionally witty. Whenever a defense attorney attempted to cast doubt on the impartiality of his testimony, by asking him if it was, in fact, true that was paid by the government for his testimony, Dr. Daugherty would turn to the jury and, in his broadest Bristol accent, remark with feigned surprise, “Well I should jolly well hope so!” Then, turning to the attorney, he would continue, “If, however, you wish to pay me instead, I don’t suppose that District Attorney Shearer would object too loudly. Do understand though, that my testimony will not change one whit.” No attorney ever repeated that mistake, with the jury’s laughter still ringing in his or her ears.

  Through that summer, the less serious felonies were sent back to the local courts by Larry and Peter to be handled as misdemeanors. This form of prosecution triage was often necessary when the volume of new cases became overwhelming. Such a pressure release valve had, at first, struck young Peter as being somewhat unfair and arbitrary. Defendants whose cases were subjected to it could make out better, simply due to the timing of their crime, but the practical necessity of the triage soon became clear. That summer, with eight murders in eleven weeks, the staff was driven to something resembling a siege mentality by the sheer volume of major crimes to handle.

  And Peter loved every second of it.

  By the time he got his notice that he had passed the New York State Bar Exam some two years later, he had received an offer from the long-serving District Attorney, Samuel Shearer, to join up as an Assistant District Attorney, right there in Albany County. In January, 1983, Peter was admitted to the practice of law and a couple of hours later, was sworn in as an ADA. Peter still felt that days just didn’t get much better than that one.

  When Peter got back to his office after the three and a half hour stint in Special Term in front of Judge Ginola, he had the typical dozen or so phone message slips in his Inbox. One, in particular, caught his eye, as it was from State Police Investigator Abe Dorn, returning Peter’s call from earlier that morning. Peter had seen an article in the morning paper about an incident in a bar in Lake George, and wanted to find out the details. The two agreed to meet later that afternoon, at the New York State Police substation in Queensbury, a few miles south of Lake George.

  The investigators’ wing of the substation was under the command of Senior Investigator Ned Khoury, a skilled and experienced investigator with natural leadership skills. He was the kind of guy who would be automatically deemed to be “in charge” among a random group of investigators from a number of police agencies, by his very presence. He had been in the State Police long enough that he had been a member of the assault team that recaptured Attica from the rioting prisoners back in 1971. Like military combat vets, Ned would always find a way to avoid talking about that experience.

  Peter respected and valued Ned and knew that Ned, in turn, would take a bullet for him, even though he was a lawyer. It was Peter’s habit to stop by that substation each morning on his way to the office, for a cup of Ned’s coffee (which Ned never drank) and to catch up on cases in person. Peter did much the same each day with the county Sheriff’s investigators. Peter was aware that such fraternization between senior prosecutors and police was highly unusual, but he felt it was an efficient method of encouraging communication and discussion between the two branches of law enforcement. Besides, he enjoyed the camaraderie, certainly preferring the company of cops to most
attorneys. He also liked coffee, a lot.

  One investigator for the Sheriff’s Office, Ed Lima, had already developed a routine where he would see Peter in their office pouring coffee and invariably call out, “Peter! While you’re here…” and then present some fact pattern for which he wanted Peter’s opinion. Ever a good sport, Peter always played along. The scenarios presented were often thought provoking, and you simply could not help but smile whenever you saw or heard Ed. He was just one of those guys whose face lit up when he saw you, as if your presence had just made his day. How could you not smile back?

  Earlier that morning, when Peter stopped off at the substation, Abe was already out on a call, so now was the first time Peter and he would speak. Peter arrived early for his afternoon meeting and sat, sipping coffee while he waited for Abe. He idled away the time thinking about that morning’s Special Term and how much harder it was to do his job, when he had to think for the judge as well as for his own Office.