by Ed Gaffney
Zack nodded again. “That’s true. You can’t tell from the video.” Then he hesitated for a second and asked, “But you can’t tell from the video that the defendant was the robber, either, can you?”
The jury was fascinated. The thin black man and the truck driver with the hearing aid looked bemused. Grandma one looked surprised. Grandma two looked a little scared. And the rest of the expressions in the box reflected intense interest.
Early in Morrison’s testimony, the jury had heard him describe the clerk’s identification of Babe, and their faces fell a little. What kind of a trial was this turning out to be? The guy who got robbed saw the robber and told Captain America who it was. The case was going to be over in five minutes.
But now the superhero witness with the million-dollar smile and all of the answers wasn’t smiling, and didn’t have all the answers. They were suddenly paying very close attention to everything.
So Zack gave them more.
“Detective Morrison, I’d like to draw your attention to that part of the police report where you describe the condition of the victim as he told you what had happened to him.”
Morrison looked a little wary, but obviously relieved that they were shifting gears. The judge’s clerk gave him a copy of the report, and he looked at it, and then back up at Zack. “Okay.” The smile was back. He’d been writing police reports for years. There was no way he was going to get tripped up here.
“You wrote ‘Mr. Hirsch was nervous and upset, and his hands were shaking.’ That’s correct, isn’t it?”
Morrison checked his report. “That’s correct.” He was starting to look cocky.
Zack took a few steps to retrieve a book of Massachusetts court decisions that he’d placed on the defense table earlier. As he did, he asked, “Are you familiar with the doctrine of ‘excited’ or ‘spontaneous utterances’?”
A falsely puzzled expression, and then an apologetic little smile crossed Morrison’s face. “I’m afraid that’s your department, Counselor. It’s got something to do with hearsay, doesn’t it? It’s pretty technical stuff, I think.” Subtext to the jury: Hey, I’m just an ordinary guy. It’s this slick lawyer that you need to watch out for.
Zack was busy turning the pages of his big law book, and finally found what he was looking for. “So you are not familiar with the holding in the case of Commonwealth v. Fagan, in which the court wrote, ‘because the victim was nervous and upset and his hands were shaking, the prosecution was able to avoid the hearsay rule entirely, and present evidence of the victim’s statement, since the victim was not available to testify himself.’”
Morrison just sat there. This had never happened to him, and he didn’t like it. Zack was making him look like a lying punk. Well, the truth hurts, Johnny. He cleared his throat and said, entirely unconvincingly, “I have never heard of that case before.”
Another lawyer might have pounced, but Zack was going to play this right to the end as the respectful, but increasingly concerned, citizen. “So it’s just a coincidence? The fact that the words ‘nervous and upset and his hands were shaking’ appear in your police report and are the exact words identified by the Massachusetts Supreme Judicial Court as the key to avoiding the hearsay rule for the prosecution? That’s just a”—he paused, looking around for the right words—“a lucky break for Assistant District Attorney Lovell in this case?”
Morrison couldn’t refuse the bait. His voice got louder. “Call it what you want, sir, but I had never heard of that case before.”
Zack remained steady. “And of course, since you didn’t know the importance of those exact words, you also had no idea that the only way they would come into play would be if Mr. Hirsch was not available to testify. But you couldn’t have known that he wouldn’t be at the trial when you spoke to him, correct?”
“Of course not,” Morrison snapped. “What are you trying to imply, Counselor?”
And that’s why Zack had stayed so calm. At Morrison’s attack, all he had to do was look a little surprised, as if taken aback by the good police detective’s sudden unpleasant tone. Zack didn’t say a word, but every juror in the place got the message—this witness was acting awfully defensive for someone who was supposed to be the good guy. They were wide-eyed.
Sure, the A.D.A. was a smart lawyer, and he was going to be able to rehabilitate Morrison on redirect. It wasn’t like just because Zack made a few points they had won the case.
But it was starting to look like Babe Gardiner actually had a chance.
TWENTY-TWO
CROSS-EXAMINATION BY ATTORNEY WILSON:
Q: Dr. Trahn, are you familiar with fingernail scrapings?
A: Yes.
Q: Could you describe what fingernail scrapings are to the jury?
A: Fingernail scrapings are the materials collected from beneath the fingernails of victims of crime, or individuals who are suspected of committing crimes.
Q: And what are such scrapings typically used for?
A: Occasionally, the victim of a crime engages in a struggle with his or her assailant. And sometimes, especially if the victim manages to scratch the attacker, bits of skin, hair, or blood of the attacker are lodged beneath the victim’s fingernails. Conversely, sometimes bits of such material are found under the attacker’s fingernails, tying him to the victim.
Q: And in this case, did you find such material under the fingernails of the victim, Mr. Hirsch?
A: Yes.
Q: Can you describe for us your findings?
A: Yes. Under the fingernails of the victim’s right index finger and ring finger, I found skin cells….
(Commonwealth v. Gardiner, Trial Volume V, Pages 122–123)
“I DON’T GIVE A SHIT THAT SHE’S IN THE HOSPITAL. You gotta get to her.”
Elmo was supposed to be having dinner with Wally, but Wally was the only one eating anything. Elmo’s stomach was too upset. Everything was falling apart. It was all he could do to drink his beer. And even that was a pain in the ass. Wally had insisted on getting a couple of six-packs of Heineken, and when they got back to Elmo’s place, they couldn’t find a bottle opener. Thank God Elmo remembered that his old Swiss Army knife had one.
They were sitting in the downstairs den, at the card table. Wally was working on his second slice. Elmo was working on making sure that his entire life didn’t go down the shitter.
“They got too many people in there. No way to do it without getting caught.” Wally lit up a cigarette, then opened up another Heinie and took a swig.
“Jesus H. Christ, Wally, you should have seen that trial today. No investigation on where the money went, no fingerprints—he couldn’t even explain why he wrote the report the way he did. The whole thing was a goddamn disaster.” Elmo stood up and walked into the next room, retrieved a bottle of Jack, and brought it back to the table. He’d need that in about fifteen seconds. “I gotta do something. You know they just found this Zwaggert asshole in the lake.”
Wally chewed another slice of pizza thoughtfully. “I can still reach out to Gardiner. He doesn’t know we can’t hit his mom in the hospital.”
“Yeah, but so far what’s that got us? We gotta be ready with something more.”
Wally washed down a bite of the crust with another swig of beer. “I been tailing the lawyers, like you said,” he said.
Elmo laughed. “I didn’t tell you to tail them so we could whack them. That’s not gonna get me a guilty. I was just thinking we might find something we could use.”
“That’s what I’m saying,” Wally said, opening another bottle. “The skinny one lives in this neighborhood with all these houses and people all over the place. He’s got a kid, and he’s all buttoned up by dark.”
“So what are you saying?”
“The other one. He lives in these condos out by Riverside, in the middle of nowhere. He’s always out late, driving around by himself in his hot-shit car, going to movies, restaurants, whatever.”
“So?”
“So, what about w
e wait for him back by the entrance to the condo complex, and grab him?”
“What for?”
“To blackmail the other lawyer. Lose the case, or you lose your partner.”
Whoa. Elmo knew that Wally was good for muscle, but he hadn’t counted on him coming up with a solid plan like this. “That might just work.”
Wally shrugged. “It’s risky,” he said. “The guy’s pretty big.”
Elmo nodded and reached over for a slice of pizza. His stomach was feeling better. “I know. We’ll save it for a last resort. But if this thing doesn’t turn around soon, I wanna do it.”
September 13, 2004
Day 5 of the Babe Gardiner trial
MARIA WATCHED AS ANTHONY SIGNALED AND then pulled into an empty parking lot near a small, overgrown playing field. “I’ve got to get something out of the trunk,” he said, getting out of the car.
Maria was curious, so she got out, too, just in time to see Anthony open up a small box sitting next to the spare tire storage compartment. Inside was a scary-looking black pistol. “You’ve got a gun?” she asked, completely surprised.
Anthony took the weapon out of the box, checked something near the trigger, and then put it into the holster he was wearing under his sports jacket. “I’ve got a handgun, and a license to carry,” he said, shutting the trunk and climbing back into the car. “Not that I’ve ever actually carried it before, but this seemed like a good time to start.”
They were working their way down the list of people who had visited Roger Tedesco while he was in prison, starting with when he was there with Babe Gardiner. The list wasn’t that long, which was good, because they didn’t have much time. Babe’s trial was already under way. If they were going to turn up anything useful, it was going to have to be in the next day or two.
They had decided to start with the people who had visited more than once. Two names topped the list: Jimmy Perez, who had come to the prison five times in five weeks to see Tedesco, and Angela Gannon, who had come to see him four times. Actually, she’d been to that prison a total of nine times, but five were in the month and a half before Tedesco had been transferred to that facility.
Neither had listed phone numbers, so they drove first to Jimmy Perez’s apartment, since it was only about a half hour from the office. Angela Gannon lived in North Babylon, which was more than twice as far away, in the other direction.
It was funny, but there were times when just thinking about her life insurance policy made Maria feel like she was wearing a bulletproof vest. Knowing that Felix and her mother would get a check for a half million dollars was so comforting that occasionally it calmed down the part of her that was terrified by the thought that somebody had threatened to shoot her.
Yet there were still times when the terrified part of her was in charge. Like the first time she returned to the office after the window had been replaced.
It was weird, because when she walked in that morning, there was really nothing different than any other morning. Anthony was already there, having coffee in his office. Maria went into the kitchen area, poured herself a cup, and then went to her desk.
But then she heard a car engine approach as it came down the street, and her heart started to race. She froze, and even flinched a little, as it drove past.
She had felt like a total fool.
Anthony, of course, had seen it, and had told her that it was going to take some time before she was back to normal. It was natural, he said, for someone who had gone through such a startling incident to be a little jumpy. He called it “hypervigilant.”
That sounded about right, because she sure was hyper now. Her heart was pounding like a salsa band as Anthony pulled up in front of 1083 Maple Street, in Westhaven. “Let’s go,” he said.
Perez’s home was on the left of a side-by-side, rundown two-family house. As they walked up the steps to the front porch, a cat jumped out from behind some overgrown shrubs that were on the side of the building and bolted across the street. Maria was so startled she nearly threw up.
Anthony tried the doorbell, but they didn’t hear anything when he pressed the button, so he knocked on the door. They waited a few seconds, and he was just about to knock again, when it opened. A heavy old woman with very dark brown skin and gray hair opened the door. “Que?” she said.
Anthony looked at Maria, who suddenly felt very useful. Speaking in Spanish, she told the old woman that they were looking for Jimmy Perez, because he might be able to help them find a friend of his named Roger Tedesco.
Two minutes later, Anthony and Maria were in his car, driving like crazy toward North Babylon. From what the old woman said, it was obvious. Angela Gannon was the key.
LOUIS WASN’T INTERESTED IN GROSSING ANYBODY out, but the facts were the facts. Whoever had done this crime had hit Steve Hirsch in the head hard enough to fracture his skull, then wrapped and taped him up in garbage bags, stuffed him in the trunk of a car, and then abandoned the car in the middle of the woods. The jury had to learn the facts in order to do their job.
He gathered the crime scene photographs together and brought them to Officer Cherry, who was his last witness. “I’d like to show you a series of photographs that has been marked for identification as items J, K, L, M, uh, J through T. Can you please tell me whether these photographs fairly and accurately depict the car and the body you discovered in that car on July 6?”
Officer Cherry looked through them all and then handed them back to Louis. “Yes.”
Louis turned to the judge. “Your Honor, I’d like to offer these photographs into evidence.”
The defense lawyers objected, and they all headed for the sidebar.
The conversation between the lawyers and Judge Park was predictable, and necessary. The defense attorneys didn’t want him to inflame the jury with unnecessarily graphic and gory photos of decomposing flesh and bloody carnage. Conversely, the Commonwealth had to make sure that the jury had a full understanding of what had happened to that young man.
Louis had been through enough of these conferences to know how it would turn out. He’d been careful in selecting the pictures he wanted in the case. He had chosen color photos for all of them, except those depicting the victim after the plastic bags had been stripped away. Black-and-white shots of the badly damaged head and decomposed body were all Louis could expect anybody to handle. They were tough enough for him to take, and he was a pro at this.
And besides protecting the jury, Louis had no intention of giving the defense an issue to argue on appeal. Louis took a lot of pride in knowing that when the defendants in his trials were convicted, they stayed convicted.
To their credit, the defense attorneys recognized that Louis had taken pains to keep the worst photos out of the case. They knew that the judge was going to have to allow the jury to see some crime scene photos, and so they only tried to eliminate the ugliest ones of the victim.
The judge made his ruling, they stepped back from the bench, and Louis handed the admissible photos to the court officer.
“With the court’s permission, I’d like to publish the exhibits to the jury, Your Honor.”
“Very well,” Judge Park replied.
Silently, the jurors passed the photographs from one to the next. In almost every face, you could see a series of emotions play out. First, curiosity, as they examined the pictures of the old, battered car, oddly parked in the middle of the woods. And then horror, as they saw the brutality reflected in the images of the decomposing body of a young man who had suffered a crushed skull.
The judge had allowed all of Louis’s proposed photos into evidence except one—a close-up of the head injury. He felt that was too graphic, especially because there was another photo of the head and shoulders of the victim, clearly showing the injury.
Louis hadn’t agreed, but that was all right. He had done his job, and the judge had done his job.
The last juror handed the photographs to the court officer, and Louis stood up. “Your Honor, the prosecutio
n rests.”
“BY NOW, YOU ALL KNOW THAT THERE IS SOMETHING very unusual about this case.”
Terry watched the jury as Zack began his opening statement.
Zack had established a great deal of rapport with many of them over the course of the trial, especially during his cross-examination of Detective Morrison. But now that the prosecution’s case was closed, and the reality of the murder and Babe’s possible connection had been presented to them, they were obviously very torn.
The evidence against Babe was pretty strong. Not perfect, by a long shot. No one could deny that it was weird that there were so many unanswered questions about things like the fingerprints, the stolen money, the fingernail scrapings, and the language of the police report. And Zack was planning to get into the fact that there seemed to be absolutely no motive for this crime when he questioned Babe.
But Morrison testified that the victim had told him that Babe was the robber, and that Babe had threatened to kill him. And then sure enough, when the cops found the victim’s dead body, it had Babe’s hair on it.
The jury was not unaffected. Many, if not all, if pressed to vote right after they had seen the pictures of the dead body, would probably have voted guilty. And might well have convinced the others to go along.
But Zack was really on today. The man always had a way with people, but something unusually powerful was working inside him now. As he described how Babe intended to defend himself against the accusations, he managed to reconnect with just about every single person on the jury, presenting himself as just another person trying to make sense of it all. So calm, so confident.
Why would an otherwise gentle man suddenly commit armed robbery—and then murder? How could he be so cunning as to commit an armed robbery without a trace of fingerprints or any other evidence, and yet be so sloppy as to leave his own hairs on the body of the victim? What did he do with the money he supposedly stole? And how about the weapon?
As Zack calmly and logically went through the defense—essentially arguing a lack of motive, supported by the defendant’s denials—even if you weren’t looking at the jury, you’d know he was making some serious headway. And when you actually saw the faces of the jury, you could see that by the end of his opening statement, this case was Zack’s to lose.