by Ed Gaffney
“So,” John said as he sat back down. “Sorry about that. Where were we? Somebody took a shot at a private eye? First time I’ve heard that one. Seems like something you’d run into on a bad television series.”
Another weird thing was that John seemed a whole lot more interested in work than in anything personal. Of course, he might just have been feeling like they should spend their time on common ground until they got more comfortable with each other. But even though that was a reasonable explanation for why he seemed to be driving the conversation in that direction, it just didn’t feel like the real one.
He seemed particularly interested in the Babe Gardiner case. Maybe it was because John was the first cop on the scene, and was going to have to testify at the trial. Whatever. But he honed in on the fact that one of Gardiner’s lawyers, the big one named Terry, had sent Vera a letter, asking her to look into Gardiner’s disciplinary record at prison. Apparently, no matter what institution he was transferred to, he always seemed to get beaten up.
But whatever the reason for Mr. Gardiner’s problems, Vera was hoping that she and John might talk about something else before their evening was over. Maybe favorite musicians. Or movies.
“Yeah,” she replied. “It was strange. This private detective named LoPresti—you ever hear of him?”
“Office over on Fifth?”
“That’s the one. Anyway, a few months after LoPresti starts working on the Babe Gardiner case for Gardiner’s lawyers, his secretary gets a threatening phone call, telling LoPresti to back off. Then, a few weeks later, somebody fires a bullet through his office window and then makes another threatening call, saying the next bullet was going to hit somebody.”
The shooter obviously had no intention of hitting anyone with that first shot. The trajectory from the street guaranteed that the bullet would end up hitting the office ceiling, which is exactly where they found it.
“And you’re sure this guy specifically wanted them off the Gardiner case?”
“Yup.”
“You don’t think there’s any connection, do you?” John asked. “I mean between the threatening phone calls and the fact that Gardiner keeps getting stepped on in prison?”
Vera had thought of it, and looked into it, but couldn’t find anything to tie it together. Babe Gardiner was a really skeevy guy. Some inmates just got picked on more than others. “No. He just seems like, well, like a kind of a punching bag.”
John nodded, then swallowed a piece of steak and took a sip of beer. “Nobody’s been bothering you, though, have they?”
Vera laughed. “Threaten a cop? No way. Besides, who’d bother me? The people getting intimidated are working for Gardiner. Which is why this is kind of puzzling. I mean, who cares? The guy’s going to go down for murder. So let him go.”
“Yeah, I hear you,” John replied. “I mean, what’s been happening with that case, anyway? I thought it was pretty cut and dried.”
It looked like the conversation about movies was going to have to wait.
EIGHTEEN
THE COURT: Next is the Commonwealth’s motion to allow television cameras into the courtroom to televise the trial. Mr. Lovell, has your office been approached by news media with respect to this case?
ASSISTANT DISTRICT ATTORNEY LOVELL: Actually, Your Honor, it is the policy of the District Attorney’s Office to make this motion before every trial of a serious felony.
THE COURT: I see. And that’s not your personal policy?
ASSISTANT DISTRICT ATTORNEY LOVELL: I, um, I guess I don’t have a personal policy on this issue, Judge. But to answer the court’s prior question, the local cable news station has informed my office that if the court allows the motion, they will be broadcasting the trial.
THE COURT: Very well. Mr. Tallach. Or Mr. Wilson?
ATTORNEY WILSON: We would oppose the motion, Your Honor. My feeling is that television coverage does not add to, and sometimes detracts from, the ability of the defendant to get a fair trial. Also, because of the size of this courtroom, I’m not sure that there’s enough room to have television cameras and crews everywhere.
THE COURT: I’m going to allow the motion, but Mr. Wilson is right. The courtroom is small, so only one camera will be allowed. My normal practice is for the attorneys to ask questions from the podium set up here in the middle—between their tables—and I think that if the camera is set up in the center aisle, toward the back of the room, it will be able to see about half of the attorney’s tables and the podium from the back, as well as the bench and the witness stand. I don’t want anything else on camera anyway, so that will work out well.
(Commonwealth v. Gardiner, Volume I, Pages 13–14)
JUROR QUESTIONNAIRE
JUROR 1-15
Name: Raymond Scollari
Address: 44 West Pine Street, Springfield, MA
Age: 49
Occupation: Retired
List involvement in any prior court proceedings (other than as a juror): Witness at two civil cases brought by disgruntled prison inmates
Have you or any family members been employed by any law enforcement, court, or government agency? If yes, explain: I was a corrections officer in Massachusetts for twenty-two years before I retired as a sergeant.
( Juror ID Card #15, Commonwealth v. Gardiner)
Hostage
SHE WAS SOAKED WITH SWEAT, HER TONGUE felt like it was wearing a thick woolen sock, her headache was so bad that every blink felt like a slap in the face, and the cramps in her stomach were so severe that they were making her double over. And they were getting more and more frequent.
Not to mention the rising tide of nausea and fatigue that threatened to wash over her with every passing moment. And the pain in her bladder was so bad that if she didn’t get to the bathroom soon, she was going to wet herself.
She tore off the piece of tape that had been gagging her for the past several hours, burning the skin on and around her lips raw. She took the deepest breath she’d ever taken and, for the first time in hours, felt a little better.
She never would have guessed how hard it was to cut through duct tape with a piece of broken glass.
To start with, finding a good one among all the shattered shards on the tabletop wasn’t the easiest thing in the world. A ton of the glass had fallen to the floor. The piece she needed had to be thick enough so that it didn’t just break apart as soon as she started pressing it into service.
And it had to be long enough for her to be able to grasp it with her fingers and still drag it back and forth across the edge of the tape.
But there were a couple of candidates lying on the table, and with a little shifting around, and only one cut on her left thumb—jeez, did that ever hurt—she got hold of one and started, agonizingly slowly, to cut herself loose.
It took a ridiculous amount of concentration to fight the fatigue that made it hard to just hold the stupid piece of glass tight enough, but finally, the tape began to fray. And once it did, it was only a short time before she was able to cut and rip through the rest of it.
She listened again for the sweet sound of her captor’s snoring. Steady and strong. Exactly like she didn’t feel herself. Soon though, that was going to change.
She bent over to untape her left ankle from the leg of the chair, and instantly lost her balance. All the blood in her body immediately rushed into her head, threatening to burst it wide open. She sat back up slightly, hugged her knee, closed her eyes, and prayed that she stayed conscious.
An involuntary spasm contracted her stomach, and she almost vomited.
After vomiting, an individual suffering from ketoacidosis can lapse into a coma at any moment. The situation should be considered a grave emergency.
No kidding.
At least she was remembering some useful things now, and not these stupid disembodied pearls of wisdom.
You will always have what you need. You just need to know where to look.
Fine.
The moment of nausea passed, the
throbbing in her head returned to merely half-blinding, and she freed first her left leg and then her right.
She lifted herself stiffly off the chair and suddenly pins and needles raced up and down her arms and legs. Then a brutal pain shot through her stomach, and before she could even make it into the bathroom, she lurched to the corner of the room and vomited.
The coma might be only minutes away.
September 7, 2004
Day 1 of the Babe Gardiner trial
10:34 A.M.
TERRY TURNED TO HIS RIGHT AND WATCHED Babe watch the prospective jurors as they filed past him and Zack and entered the jury box. It would be a real kick if Captain Not Credible had some kind of sixth sense about who would be a good juror.
Zack leaned over and whispered to Babe, “Have you got any feeling for how these fourteen shape up?” Terry had the same thought.
Babe swallowed, and made a big show of looking the candidates over carefully as the last of the group, a thin, elderly black man, took his seat.
The top row of seven was unremarkable except for a stern-looking woman who had an amazingly stiff hairdo, and a U. Mass student who looked like he was really hungover.
The bottom row, though, was chock full of rejects, including a couple of guys whose questionnaires revealed one to be a cop and the other an ex–prison guard. The first looked like a bulldog with a beer belly. The other one just looked scary. Anybody with half a clue wouldn’t want them anywhere near a jury deciding their fate.
Babe finished his inspection, then leaned over to whisper to Zack. “Uh, not really.”
Maybe his sixth sense was busy working on the unified field theory.
Babe’s latest knucklehead move was to steadfastly refuse to attend the trial in anything other than the Day-Glo-orange jumpsuit he wore in the prison, with the stylish “MCI–Whitemarsh” stenciled in white letters across the back.
No matter what Zack or Terry said, the young man could not be convinced that it was a better idea for him to appear at the trial in a regular suit. His mother was still in the hospital, so Zack even volunteered to buy one for him.
But the slouching, greasy-haired, mouth-breathing defendant was not to be swayed. The orange jumpsuit stayed.
Babe Gardiner—what a dreamboat. The jury was going to fall in love with him.
The fourteen people already in the box, plus the fifty or so who were still seated in the gallery, had all acceptably answered the standard questions that Judge Park had asked: Could they be unbiased? Did they know any of the lawyers or the defendant or the judge? Could they serve without hardship for the week or two that the trial would take? Did they understand and accept the fact that, believe it or not, people in this country were still supposed to be presumed innocent until proven guilty?
So now it was time for one of the most bizarre rituals the Massachusetts criminal justice system had to offer. The automatic challenges of jurors by the parties in order to ensure that the defendant was tried by a jury of his peers.
A jury of Babe Gardiner’s peers. What would that look like? Twelve eight-year-olds who refused eye contact? A dozen stringy-haired mannequins?
Zack handed Terry a sheet of paper with two rows of seven boxes drawn on it, the appropriate juror numbers written in each box, and the fourteen questionnaires that corresponded with the people currently sitting in the jury box.
They’d pick a jury of fourteen, so that if anyone got sick or had to leave for another reason, when it came down to deliberations, they’d have at least twelve.
“Can I see counsel at sidebar?”
There was something obnoxious about the whole sidebar business. It made sense that there were some things that the jury shouldn’t see or hear. But somehow, the idea that at various times in the trial, the lawyers and the judge would all huddle at the side of the judge’s bench opposite the jury box and whisper—well, it just seemed rude.
Terry looked over at the prospective jurors and shrugged a silent apology as he headed to sidebar with Zack and the A.D.A. The cute high school teacher in the bottom row with the short blond hair smiled at him. Zack and Terry hadn’t been sure about her when they first went over the juror questionnaires. Now it was clear. She was a keeper.
When the lawyers had all joined the judge, the court reporter, and the clerk at the far side of his bench, Judge Park leaned in and whispered, “Have you told your client that he has the right to attend these meetings at sidebar?”
Zack answered, “Yes, Your Honor. The defendant has waived his right to be present at sidebar.”
That was a damn good call. All they needed was for Babe to be trotting up here every fifteen minutes, annoying the shit out of everybody. As the defendant in a criminal trial, he was already the guy in the big, muddy hole. No need to volunteer to dig it deeper.
“Very well. The defendant has fourteen peremptory challenges. And both parties please make note of the fact that I am extremely conscious of anyone attempting to exclude jurors from the pool on the basis of race alone.” The judge turned to Zack. “Does the defendant wish to exercise any challenges at this time?”
“Yes, Your Honor. The defendant would like to excuse Juror 1–3 in seat 2, Juror 1–10 in seat 7, 1–12 in seat 8, 1–19 in seat 10, and 2–2 in seat 13.”
And away they went. No one had ever satisfactorily explained to Terry why prospective jurors had two-part numbers, why some judges went through this process fourteen people at a time and why some did it one person at a time, or, for that matter, much of anything about this crazy business. But the bottom line was that Ms. Helmet Head on the top row, and four others in the bottom row, including the two tough guys, were going home. The clerk read out loud the numbers of the five jurors who were let go, and then the numbers of the five others who rose from the gallery to take their places in the jury box.
Zack and Terry checked out the questionnaires of the new five, and only one was a problem—his brother-in-law was a cop. So they challenged him, got a satisfactory replacement, and had a jury they could live with. With eight challenges left. With any luck, they might be able to keep one or two of the better candidates in the box for the trial.
Now it was the A.D.A.’s turn. He had fourteen automatic challenges, too.
This was the part where, despite what the judge had said, every black, gay, Asian, low-income, Hispanic, and any other kind of person you could name that might possibly be sympathetic to someone in the underdog’s shoes would disappear from the jury. Because prosecutors didn’t really want a cross section of the community represented in the jury box.
They wanted twelve bloodthirsty, vengeance-seeking hotheads, because they wanted a conviction.
“Judge, since the prospective jurors already seated in the box have all made it clear that they can try this case fairly and without prejudice, the Commonwealth is quite content with the jury as currently constituted. I see no need to exercise any peremptory challenges.”
There was a moment of silence as everyone paused to absorb that one. In the dozens of trials for murder and every other serious felony you could think of that Terry had been in, he had never seen a prosecutor decline to exercise his peremptory challenges. This lawyer wasn’t going to throw anyone off the jury. The skinny old black guy in seat 14, the young Asian dance instructor next to him who was either gay or the gayest-looking straight guy Terry had ever seen, the Hispanic telephone installer, the truck driver with the hearing aid, sweet grandma number one and sweet grandma number two, the cute high school teacher—damn. This wasn’t one of the best juries Terry had ever seen.
It was the best jury he’d ever seen.
“Ladies and gentlemen,” the judge said with a surprised smile as he straightened up and moved his high-backed leather, swivel desk chair to its normal place behind his bench. “Thank you for your patience. We have a jury.”
As the court officers escorted the unused members of the jury pool back downstairs to the holding room, Terry sat down next to Sean, who was writing furiously in his note
book.
Jury selected at 11:22 A.M.—consists of five men and nine women—two African-Americans, one Asian-American, three Hispanics, and eight whites, one under 20, three 20–30 yrs old…
Terry sneaked a look across at A.D.A. Lowell, who was looking over his notes, probably preparing to make his opening statement. It was true that all the Commonwealth was supposed to want in a criminal trial was for an honest presentation of the facts before a fair jury.
But Terry had to admit that it took balls for that guy to actually act like it.
If somebody didn’t watch out, with this judge, and this prosecutor, and this jury, Zack and Terry’s guilty-looking, always-lying-about-something, good-for-nothing, orange-jumpsuit-wearing, probably-did-it client was going to get a fair trial.
Damn.
NINETEEN
Massachusetts Correctional Institution Inmate
Status Report as of September 8, 2004
GARDINER, RUFUS. aka Babe, Babe Gardiner.
DOB: April 2, 1976
Height: 72 inches
Weight: 160 lbs
Dist. Marks: None
Inmate #: W–84440
Incarceration Status: MCI–Whitemarsh,
08/24/04–present (CH3)
MCI–Wakefield,
07/30/04–08/23/04 (CH3)
MCI–Bayview,
06/22/04–07/29/04 (CH3)
MCI–Wakefield,
03/20/04–06/21/04 (CH3)
MCI–Bayview,
08/15/00–10/02/00
(CH1–2)
MCI–Wakefield,
07/11/99–07/12/99 (CH1)
Criminal History (convictions/open cases only):
1. DATE: 07/11/99. Possession Class A with Intent to Distrib.
2. DATE: 08/15/00. Larceny, night; intentional destruction of property over $250.