by Don Winslow
“Which?” Malone asked.
“What do you mean?”
“I mean,” Malone said, “I can tell the truth or I can get the conviction. Which do you want?”
“Both,” Hinman said.
“You can’t have both.”
Because if he told the truth, they’d lose the case on a Mapp issue because Malone had no warrant and no probable cause to enter the apartment. The evidence would become the “fruit of a poisoned tree” and the dealer would walk.
She thought this over for a few seconds and then said, “I can’t suborn or encourage perjury, Officer Malone. I can only advise you to do what you think you need to do.”
Mary Hinman never advised Malone to just tell the truth again.
Because the real truth that they both know is that without cops “testilying,” the DA’s office would hardly get any convictions at all.
This doesn’t bother Malone.
If the world played fair, he’d play fair. But the cards are stacked against the prosecutors and police. Miranda, Mapp, all the other Supreme Court decisions, give the advantage to the skels. It’s like the NFL these days—the league wants touchdown passes, so a defensive back can’t even touch a receiver. We’re the poor defensive backs, Malone thinks, trying to keep the bad guys from scoring.
Truth, justice and the American way.
The American way is, truth and justice maybe say hello in the hallway, send each other a Christmas card, but that’s about the extent of their relationship.
Hinman gets it.
Now she sits across the table in a courthouse meeting room and looks at Malone. “The hell did you do last night?”
“Rangers game.”
“Uh-huh,” she says. “You ready to testify? Give me a preview.”
“My partner, Detective Sergeant Phillip Russo,” Malone says, “and I received information from neighborhood residents that there was suspicious activity at 324 West 132nd Street. We had set up a visual surveillance of the address and observed a white Escalade pull up and the defendant, Mr. Rivera, get out. I didn’t have a conclusive reason to believe that it contained drugs, certainly not sufficient visual evidence to indicate probable cause.”
This was the cool part of their dance—take it the other way to convince the jury that you’re telling the truth. Plus, they expect it from watching television.
Hinman asks, “If you didn’t have probable cause, what gave you the right to force entry into the apartment?”
“Mr. Rivera was not alone,” Malone says. “Two other men exited the vehicle with him. One was carrying a MAC-10 machine pistol with a suppressor,” Malone says. “The other was carrying a TEC-9.”
“And you saw these.”
Malone says the magic words. “They were in plain sight.”
If a weapon is in plain sight, you don’t need probable cause. You have immediate cause. And the weapons were in plain sight—at Malone’s feet.
“So you gained entry to the address,” Hinman says. “Did you identify yourselves as police officers?”
“We did. I yelled, ‘New York City police!’ and our badges were clearly visible on lanyards over our protective vests.”
“What happened next?” Hinman asks.
We planted the machine guns on those dumb mooks. “The suspects dropped their weapons.”
“What did you find in the apartment?”
Malone says, “Four kilos of heroin and an amount of American currency in $100 bills that eventually turned out to be $550,000.”
She goes over the boring shit about the voucher numbers and how he could be certain that the heroin he seized was the same heroin now in the courtroom, blah blah blah, and then she said, “I hope you bring a little more energy at trial than you did in this session.”
“In the words of Allen Iverson,” Malone says, “‘We’re talking about practice here. Practice.’”
Hinman says, “We’re talking about Gerard Berger.”
This is how Malone sums up his opinion of Gerard Berger—
“If he was on fire,” Malone has said, “I’d piss gasoline on him to put it out.”
Denny Malone hates three things in life, not necessarily in the following order:
Child molesters
Rats (the human variety)
Gerard Berger
The defense attorney doesn’t pronounce his name like what you get at P.J. Clarke’s, he pronounces it “Bur-jay” and insists that you do too. Which Malone steadfastly refuses to do, except in open court, so he doesn’t look like a smart-ass in front of the judge.
Anywhere else, it’s Gerry Burger.
Malone isn’t alone in his hatred of Berger. Every prosecutor, cop, correctional officer and victim despises him. Even his own clients hate him, because by the time the case is concluded, Berger owns much of what they used to—their money, their houses, their cars, their boats, sometimes their women.
But, as he reminds them, “You can’t spend money in prison.”
Berger’s clients usually don’t go to prison. They go home, or they go on probation, or they go into drug rehab or anger management classes. They go back to doing what they were doing, which is usually something criminal.
He doesn’t care.
Drug traffickers, murderers, wife beaters, rapists, child molesters—Berger will take any client who has a fat wallet or a story that can be sold to a publisher or the movies or preferably both, such as Diego Pena. He’s seen versions of himself portrayed by A-list actors, some of whom have come to him for advice, which he sums up in the simple phrase “Be a total asshole.”
It has been said that the only time any of Berger’s clients confess is on Oprah—and then he has the confession tossed out.
Berger doesn’t bother to hide his wealth—he flaunts it. Multithousand-dollar custom suits, custom shirts, designer ties, designer shoes, expensive watches. He comes to court in Ferraris or Maseratis, cars that were given to him, Malone figures, in lieu of payment. He has the penthouse on the Upper East Side, the summer place in the Hamptons, the ski condo in Aspen that was signed over to him by a grateful client who now resides in Colombia and whose deal doesn’t allow him to come back to the United States anyway.
Malone has to admit that Berger is very good at what he does. He’s a great paper lawyer, a genius at motions (especially to exclude), a canny and vicious cross-examiner and a master of opening statements and closing arguments.
The biggest secret to his success is that he’s dirty.
Of this, Malone is convinced.
He’s never been able to prove it, but Malone would bet his left testicle that Berger has judges on the arm.
The other filthy secret of the so-called justice system.
Most people don’t realize it, but judges don’t make a lot of money. And they usually have to spend a lot to get the robe. The mathematics of that means that a lot of them can be bought.
It doesn’t take a lot to swing a case—a motion granted or denied, evidence excluded or admitted, testimony allowed or stricken. Little things, small things, arcane details that can spring a guilty defendant.
The defense bar knows—shit, everyone knows—which cases they can buy. One of the most lucrative judicial posts is on the scheduling docket; for the right money you can pay to have a case assigned to the judge you’ve already purchased.
Or rented, anyway.
Malone and Hinman do their dance on direct examination and then they adjourn for a few minutes before Berger starts his cross. Malone goes to take a shit. When he comes out of the stall to wash his hands, Berger is at the next sink.
They look at each other in the mirror.
“Detective Sergeant Malone,” Berger says. “What a pleasure.”
“Hey, Gerry Burger, how’s it hanging?”
“Oh, it’s hanging just fine,” Berger says. “I can’t wait to get you on the stand. I’m going to eviscerate you, humiliate you, and show you to be the lying, corrupt police officer that you are.”
“Y
ou buy the judge, Gerry?”
“The corrupt see only corruption,” Berger says. He dries his hands. “See you on the stand, Sergeant.”
“Hey, Gerry,” Malone calls after him. “Your office still smell like dog shit?”
Malone and Berger, they go way back.
He takes the stand and the bailiff reminds him that he’s still sworn in.
Berger smiles at him and says, “Sergeant Malone, does the phrase ‘testilying’ mean anything to you?”
“Generally.”
“Well, generally, what does it mean, around police circles?”
“Objection,” Hinman says. “Relevance.”
“He may answer.”
“I’ve heard it in reference to police not telling the exact truth on the stand,” Malone says.
“The exact truth,” Berger says. “Is there an inexact truth?”
“Same objection.”
“Where is this going, Counselor?” the judge asks.
“I’ll develop, Your Honor.”
“All right, but do so.”
“There are different points of view,” Malone says.
“Ah.” Berger looks to the jury. “And isn’t it true that officers’ point of view is that they ‘testilie’ in order to convict a defendant that they feel is guilty, regardless of the admissible evidence?”
“I’ve heard it used in that context.”
“But you’ve never done it.”
“No, I have not,” Malone says. If you don’t count a few hundred exceptions.
“Not even on your last answer?” Berger asks.
“Argumentative!”
“Sustained,” the judge says. “Move on, Counselor.”
“Now,” Berger says, “it’s your testimony that you did not have probable cause to enter the apartment on suspicion of drugs, is that correct?”
“Yes.”
“And it’s your sworn testimony that you did have probable cause based on your seeing my clients’ associates carrying weapons. Is that correct?”
“Yes.”
“You saw the weapons.”
“They were in plain sight,” Malone says.
“Is that a yes?”
“Yes.”
“And absent your seeing those weapons ‘in plain sight,’” Berger says, “you had no probable cause to enter that domicile, is that correct?”
“That is correct.”
“And when you saw those weapons,” Berger says, “they were in the suspects’ possession, is that correct?”
“Yes.”
“I’d like to enter into evidence this document,” Berger says.
“What is it?” Hinman asks. “We haven’t been notified of this.”
“It just came into our possession, Your Honor.”
“Both counsel approach the bench.”
Malone watches Hinman go up. She flashes him a WTF look, but he doesn’t know what the fuck, either.
“Your Honor,” Berger says, “this is an evidence voucher dated 5/22/2013. You’ll note it logs in a MAC-10 pistol with the serial number B-7842A14.”
“Yes.”
“It was vouchered into the evidence room of the Thirty-Second Precinct on the date recorded. The Thirty-Second is, of course, in Manhattan North.”
“What’s the relevance of this?”
“If the court admits,” Berger says, “I will demonstrate relevance.”
“Admitted.”
“I object,” Hinman says. “We were not given access to this document—”
“Your objection is preserved for appeal, Ms. Hinman.”
Berger goes back to the cross-examination. He hands Malone a document. “Do you recognize this?”
“Yes, it’s an evidence voucher for the MAC-10 pistol removed from one of the suspects.”
“Is that your signature?”
“Yes.”
“Will you read for us the serial number of that weapon?” Berger asks.
“B-7842A14.”
Berger hands him another document. “Do you recognize this?”
“It appears to be another evidence voucher.”
“Well, it doesn’t ‘appear’ to be,” Berger says. “That’s what it is, isn’t it?”
“Yes.”
“And it vouchers in a MAC-10 pistol, isn’t that right?”
“That’s correct.”
“Please read us the date of that voucher.”
“May 22, 2013.”
Goddamn it, Malone thinks. Goddamn it, they assured me the weapons were squeaky clean.
Berger is walking him toward a cliff and there’s no stopping.
“Now please read us the serial number,” Berger says, “of the MAC-10 pistol seized on May 22, 2013.”
I’m totally fucked, Malone thinks.
“B-7842A14.”
Malone hears the jury react. He doesn’t look over, but he knows they’re staring daggers at him now.
“It’s the same weapon, isn’t it?” Berger asks.
How the fuck did he get this voucher? Malone wonders.
Like everything else, dummy. He bought it.
“It seems to be.”
“So,” Berger says, “as an experienced police officer, could you tell us how the same weapon could be locked away in the Thirty-Second Precinct evidence room and then magically appear ‘in plain sight’ in the suspects’ hands on the night of February 13, 2015?”
“Argumentative. Calls for speculation.”
“I’m going to allow it.” The judge is pissed.
“I don’t know,” Malone says.
“Well, there are only so many possibilities,” Berger says. “Is it possible it was stolen from the evidence locker and sold to alleged drug traffickers? Is that a possibility?”
“I suppose that’s possible.”
“Or is it more possible,” Berger says, “that you took this weapon in order to plant it on the suspects and cook up a pretext for probable cause?”
“No.”
“Not even possible, Sergeant?” Berger asks, enjoying himself immensely. “Not even possible that you burst into that domicile, shot two suspects, killed one of them, planted weapons on them, and then lied about it?”
Hinman jumped up. “Argumentative, speculative. Calls for a hypothetical. Your Honor, defense counsel is—”
“Approach the bench.”
“Your Honor,” Hinman says, “we do not know the provenance of this document, we were not allowed sufficient time to investigate its legitimacy, its accuracy—”
“Goddamn it, Mary,” the judge says, “if you cooked up this case—”
“I wouldn’t for one moment impugn Ms. Hinman’s ethics,” Berger says. “But the fact remains that if Sergeant Malone did not see the weapons as he claims that he did, there was no probable cause, and any evidence found in the domicile is fruit of a poisoned tree. I’ll move to dismiss, Your Honor.”
“Not so fast,” Hinman says. “Defense counsel himself brought up the possibility that the weapon was stolen from the locker, and—”
“You bring me one big headache here,” the judge says. He sighs, then adds, “I’m going to exclude the MAC-10.”
“That still leaves the TEC-9.”
“Right,” Berger says, “the jury is going to believe that one weapon is dirty but the other is clean. Please.”
Malone knows that Hinman is considering her options, all of them shitty.
One of them is that NYPD officers are selling automatic weapons out of their evidence rooms to drug dealers. Another is that a highly decorated NYPD detective perjured himself on the stand.
If she goes with that it could open up a flood of headlines, the shooting becomes wrong, and IAB launches an investigation on one Sergeant Denny Malone, including all his previous testimony. Hinman could lose not only this case, but have twenty others reversed. Twenty guilty skels will walk out of prison and she’ll walk the plank.
There’s one other option.
He hears Hinman ask Berger, “Would your clie
nt be open to a plea offer?”
“It depends on the offer.”
Malone feels the bile rise in his mouth as Hinman says, “One count of simple possession. A twenty-five-thousand-dollar fine, two years with time served deducted, and deportation.”
“Twenty thousand, time served and deportation.”
“Your Honor?” Hinman asks.
The judge is disgusted. “If the defendant agrees, I will accept that plea and issue the negotiated sentence.”
“One more thing,” Hinman says. “The record is sealed.”
“I have no problem with that,” Berger says with a smirk.
There was no media in the room, Hinman thinks. There’s a good chance of keeping this off the radar.
“The record is sealed,” the judge says. “Mary, the court is not happy about this. Go do the paperwork. Send Malone into my chambers.”
The judge gets up.
Hinman walks over and tells Malone, “I’m going to fucking kill you.”
Berger just smiles at him.
Malone goes into chambers. The judge doesn’t offer him a seat.
“Sergeant Malone,” the judge says, “you were about three syllables away from losing your shield, your gun, and being indicted for perjury.”
“I stand by my testimony, Your Honor.”
“As will Russo and Montague,” the judge says. “The Blue Wall.”
Goddamn right, Malone thinks.
But he keeps his mouth shut.
“Thanks to you,” the judge says, “I have to release an almost certainly guilty defendant. To protect the NYPD, who are supposed to be protecting us.”
It’s thanks to Berger, asshole, Malone thinks. And some careless assholes at the Three-Two too lazy to shit-can an old evidence voucher. Or who are on Berger’s pad. Either way, I’ll find out.
“Do you have anything to say, Sergeant?”
“The system is screwed up, Your Honor.”
“Get out, Sergeant Malone. You make me sick.”
I make you sick, Malone thinks as he walks out. You make me sick, you hypocrite. You just participated in a cover-up of this thing, you know what’s going on. You didn’t protect cops out of the goodness of your heart, you protected us because you have to. You’re part of the system, too.
Hinman is waiting for him in the hallway.