by Ed Gaffney
THE DEFENDANT: No. I dropped out.
THE COURT: Yesterday, there were fourteen people sitting in those seats over there. Can you tell me what those people were doing?
THE DEFENDANT: They were listening to the trial.
THE COURT: Yes. And who are they?
THE DEFENDANT: The jury.
THE COURT: That’s right. Do you know what their role is in a trial?
THE DEFENDANT: They get to say guilty or not guilty.
THE COURT: Right. They decide whether the Commonwealth has proved beyond a reasonable doubt that you are guilty of the crimes you’ve been charged with. Now, who are your attorneys?
THE DEFENDANT: Mr. Wilson and Mr. Tallach.
THE COURT: Before the trial began, did you speak to them about the trial?
THE DEFENDANT: Yes. A lot.
(Commonwealth v. Gardiner, Volume VI, Pages 12–16)
TERRY CLIMBED INTO HIS CAR, TURNED THE CD player on, and turned the volume up until Stevie Wonder was filling the car with music, then pulled out of the courthouse parking lot and headed down Spring Street. It really was best for everyone that he already had plans to attend this ethics dinner with Judge Baumgartner tonight. Earlier in the day he’d considered bailing on it, but now he was all about getting together with a bunch of other tired lawyers and cops and A.D.A.s and eating not very good food and talking about bad behavior in criminal law. Otherwise, he’d be in the courthouse lockup now, wrestling with Zack and Sean, because they’d want to try to keep him from killing their client.
It wasn’t just that Babe got on the stand and admitted to the robbery. Terry had represented plenty of people who were guilty, and plenty who had pleaded guilty. That was part of the deal of being a criminal defense lawyer. Some, if not many, of your clients were going to be factually guilty of the crimes they were charged with. The cops weren’t idiots. Well, at least most of them weren’t. When they arrested somebody, they usually had a pretty good reason for it.
But representing Babe had been such a relentless exercise in getting your balls broken that to endure all of his bullshit, only to have him blow himself up right there in the middle of the trial, without any warning, really sucked ass. He could have spared them a lot of aggravation if he’d just told them from the start that he did it and that he wanted to admit it.
As always, Babe’s motives were incomprehensible. What was he thinking? That the jury would believe that he did the robbery and didn’t murder the guy? That was pretty damn stupid, even for Babe. Maybe he thought if he admitted something they would cut him a break. Terry could just hear sweet grandma one talking to sweet grandma two in the deliberation room: “He already said he did the robbery—let’s not be too hard on the poor boy. Maybe we should acquit him of the murder.”
Terry pulled into the parking lot of the restaurant where the judge was holding his meeting. There weren’t that many cars there, which wasn’t exactly the biggest surprise.
Judge Baumgartner had been holding these things about every six months for the past three or four years. He was getting close to retirement age, and he had hoped that he could help everybody in the criminal justice system—cops, prosecutors, judges, and defense attorneys—get a good working agreement on ethical conduct in the prosecution of crimes.
Lately, it seemed that he’d given up on that, and simply was hoping that people would at least talk about ethical conduct in the prosecution of crimes.
And he hadn’t been having a lot of luck with that.
So far, Terry had been to three of them in the past two years. In one, he’d gotten into a lively debate with an asshole assistant attorney general who was actually arguing with a straight face that the attorney-client privilege made criminal defense lawyers nothing more than well-educated accessories-after-the-fact of whatever crime their clients were charged with.
But other than that, the conferences had been pretty dead. Terry didn’t have particularly high hopes for this one, either.
He entered the restaurant and walked through the lobby to the dining room that had been reserved for the meeting. A couple of tables had been set up on either side of the long room, with a podium between them at one end. Somewhere between fifteen and twenty people were milling around with drinks, many with familiar faces.
And then suddenly, the conference got a whole lot better. Because standing there, talking with a couple of the local A.D.A.s, including Louis Lovell, was Springfield Police Detective Vera Demopolous.
“SO YOU’RE TELLING ME THAT HE CONFESSED TO the crime, but we’re still chasing after this woman?”
Maria watched as Anthony put his cell phone back into a slot in the dashboard. “Yeah. Zack says that as long as we’re this close, we might as well talk to her. The trial is going to be over tomorrow, so if we don’t turn up anything now, we’re finished with this case. But he still thinks there’s more going on than his client is telling him.”
Maria shook her head as the two of them pulled up to a tired-looking house on the outskirts of North Babylon. This was exactly the kind of thing she was afraid of. The case should be over, and the danger should be past. But no. They keep working on it, and then bang. Somebody starts shooting.
That would be just her luck. To get shot after they should have been finished with their assignment. Jesus, Mary, and Joseph.
Anthony got out of the car and headed toward the front door. Maria scanned the face of the house as she approached, about five feet behind him. There were windows everywhere, on both the first and second floor. If anyone had wanted to, they’d have a clear shot at either or both of them as they came up the walkway.
Anthony reached the house and rang the bell. Maria joined him. No shots rang out. No windows broke. Instead, hurried footsteps got louder as someone came to the door.
Then it opened. A small woman, about twenty-four years old, stood there, in a T-shirt and jeans. Her hair looked badly rumpled, like she’d just been sleeping. Her makeup was a mess. She looked like she might have fallen asleep after she had been crying for a while. She smiled. “Can I help you?”
Anthony smiled back and said, “Angela?”
The young woman said, “Angela’s working right now. I’m her sister. Can I help you?” The smile was a little tentative now. Maria felt herself tense. What if there was somebody behind the door?
Anthony said, “We’re private investigators, and we’re trying to find a witness named Roger Tedesco who might be able to help our client. I’m wondering if you could—”
“Oh my God,” the young woman gasped, holding her hand up to her mouth. “Are you looking for Davy?”
Anthony stole a quick look at Maria and then cocked his head. “No, we’re looking for Roger, because a guy named Babe Gardiner might be able to use him as an alibi witness. We were hoping—”
“Thank God you got here,” she interrupted. “Angela’s been going crazy about this. She kept asking me what to do and I kept saying call the cops, but she said she couldn’t. She’ll be back from work at around eleven.”
EVEN THOUGH VERA HAD BEEN LOOKING FORWARD to it, the ethics buffet dinner was turning out to be even more fun than she had expected. Judge Baumgartner reminded her of her grandfather—smart, funny, and somebody she wished she knew when he was young. And even though Louis and a couple of the other A.D.A.s had to leave early, two of the others—both young women who had started with the D.A.’s office about a year ago—had invited her to a kickboxing class they were taking at their health club this Saturday.
But the highlight of the evening was Terry Tallach, the big, loud lawyer who represented the inmate she’d interviewed when she was looking for that fugitive Tedesco in the Davy Zwaggert investigation. Sitting next to Terry during dinner was like going fishing with her uncle Max up near Moose Rock. She wasn’t sure that anything he said was actually true, but it was a blast to listen.
A tall thin man with a sparse gray beard got up to get some more bread. “Did you meet Dick Danniker? Good lawyer, but I swear to Jesus—what a load. If Dick star
ts telling you about his big Texas death penalty case, pretend to faint, or have a seizure or something.”
It went on like that all night. Mary Franco was a decent judge for civil cases, but in a criminal trial, you might as well stick a Magic 8-Ball up on the bench. Ralph Katz was a killer A.D.A., but give him two beers, and suddenly he can’t do anything but giggle and urinate. Police Captain Sandy Kasperian had only two jokes—both dirty, neither funny.
At the end of the dinner, as they walked out toward their cars, Vera said with a smile, “Well, thanks so much for letting me know all of the horrible things about the people I’ll be working with. You are so full of information, it’s…”
“I’m sure full of something,” Terry said, smiling apologetically. “Sorry about talking so much. Sometimes when I get going…” He kind of shrugged, rather than finishing the sentence. He was so tall that she had to tip her head back to look up at his face. “I love Harry Baumgartner, and I try to come to as many of these things as I can, but sometimes they’re, well…” He sighed. “Not the greatest way to spend an evening.”
“Oh, please. Don’t worry. For somebody who’s pretty new in town, this was a great time,” Vera said. “And what made it even better was that it’s my birthday. So I got to do something a little special—”
“You’re kidding!” he interrupted. “Today’s your birthday, and you spend it with Harry Baumgartner on Good and Evil Night? Well, happy freakin’ birthday to you.” He shook his head. “No song, no cake—you didn’t even have any dessert. Not that you were missing much—the ice cream at that place tastes like ass. Are you sure you don’t want to go somewhere for a real piece of birthday cake, or something? On me? I know a great Italian pastry shop—”
“No, I can’t, really,” Vera said. “I’d love to, but I’ve got a health thing. Believe it or not, I’ve really got to watch my—wow, it sounds so trendy—but I can’t have a lot of carbohydrates. Especially things like desserts and cakes. I’m diabetic.”
He didn’t miss a beat, which was kind of refreshing. “Oh. Well, that doesn’t matter. I had an aunt who was diabetic. Scared the shit out of me thinking about those shots, until one day she showed me, and then it was kind of cool. You can have fruit, can’t you?”
Vera was a little taken aback, but she nodded. “Uh, yes, but—”
“I know the perfect place,” Terry said. “It’s this natural foods restaurant. They stay open late with live music, and they have lots of desserts on the menu that are perfect for you. We stick a candle in one of those babies and bingo! You got yourself a real birthday mango sorbet banana split.”
It sounded tempting. Especially with somebody as fun as Terry. “Okay, if you’re sure you don’t have to get home,” she said.
“Oh yeah, I forgot how much I’m dying to hurry home and think about how Babe Gardiner is single-handedly screwing himself in his trial.” Vera was about to ask him about that, but he cut her off. “Let’s just say that having dessert with you would be great, and leave it at that,” he continued. “The restaurant is about two blocks down from here. Want to walk? I wanted to tell you something.”
They started down the sidewalk and turned left at the corner, down a well-lit street with lots of little shops. The night sky was clear and the moon was full. As they walked along, there was a short period of silence, which seemed to be unusual for Terry. But it ended abruptly.
“I need to tell you this because, well, I don’t know. It’s just my thing, I guess. I tell people stuff.” He paused to look at a window display of a local artist’s pottery. “So here it is. I think you are an incredibly attractive woman, and in just about any other circumstances, I would be asking you for your phone number.”
Wow. If that wasn’t the biggest lead-in to a “but” in history, it was definitely getting an honorable mention. But I’m married. But I’m on the rebound. But I’m gay.
“But I’m a criminal lawyer, and you’re a cop. And my partner, Zack, well, he tells me I’m crazy, but I don’t think it’s right. I just can’t see dating a cop. It’s too—I don’t know. It just seems wrong. Being your friend seems fine. I’m just talking about anything more. I wish I didn’t, but I’ve got this problem with it.”
Vera had never heard that one before.
She was surprised that Terry’s assumption that she wasn’t seeing anyone didn’t bother her. Of course, in the end, it didn’t matter. They’d be friends, which would work out fine.
“Well,” she said, “since it’s my birthday, I think I’m going to just take that as, I guess, an unusual compliment.” They came to the door of a funky-looking little place called Camille’s. The sounds of a jazz saxophone were making their way out to the street. “And then I’m going to enjoy some birthday mango sorbet with my new friend.”
ELMO LOOKED OUT THE VAN WINDOW AND SAW that the lawyer had a girlfriend. He watched them enter the restaurant, smiled at Wally, and said, “Change of plans.”
TWENTY-FIVE
THE COURT: Good morning, ladies and gentlemen of the jury. I hope you had a pleasant evening. Before we begin, as always, I’d like to start the day by asking you if you complied with my instructions….
ATTORNEY WILSON: Babe, when we left off yesterday, we were talking about the robbery, and I’d like to pick it up there, if you don’t mind.
THE DEFENDANT: I don’t mind.
Q: Good. So, just so that we’re all on the same page, I’d like to ask you again. Did you, on March 19, 2004, enter the Nite & Day Convenience Store and rob Steve Hirsch at knifepoint?
A: Yes. I told you that yesterday. I robbed that man at the convenience store. But I didn’t kill him.
Q: And you understand that you are under oath, and that lying while under oath is itself a crime.
A: Yes. I understand that. I ain’t lying. I robbed him.
ATTORNEY WILSON: Your Honor, may I have a moment to confer with cocounsel?
THE COURT: Of course. [Defense counsel conferring.]
ATTORNEY WILSON: May we be seen at sidebar, please?
(Commonwealth v. Gardiner, Volume VI, Pages 51–52)
ZACK WAS HOME WITH HIS SON, JUSTIN, PLAYING a game of Go Fish. Justin was winning, big.
“Do you have any fives?” Justin asked with an expectant smile.
Babe Gardiner’s case had to be the most perplexing one that Zack had ever encountered. The A.D.A. was solid, and fair, and the jury was also fair. And there were some significant holes in the case against the defendant.
Yet, for reasons completely unknown to Zack, his client had completely sandbagged him on the witness stand, and admitted to the robbery.
Which virtually locked up the conviction on the murder. If Babe had robbed the clerk, then the jury was sure to believe that he had threatened him. Add the robbery, the threat, and the hairs on the dead body together, and you’ve got yourself a first-degree-murder conviction.
“Daddy, do you have any fives?” Justin asked again, a little more insistently this time.
“Oh, sorry, buddy. I got distracted again by this trial I’m having a problem with.” Babe’s case had been pulling Zack’s attention away from Justin ever since he’d gotten home tonight. “Here you go.” Zack handed over a pair of sixes to his son.
Justin rolled his eyes and gave them back to his father. “Daddy. I said, ‘Do you have any fives?’ Not sixes.”
Zack took back the pair and sighed. “I’m sorry, Justin. I am such a loser today.”
“Did you get distracted again by your problem trial?” Justin asked.
Zack put down his cards and opened his arms for Justin to come in for a hug. “Yes, I did.”
“‘You know, sometimes big problems get smaller when you talk about them,’” Justin said as he crawled into Zack’s arms.
Hearing his own words come back to him that way startled Zack a little. Last week, Justin had been frustrated to the point of tears as he tried to put together a puzzle. Finally, completely overwrought, he went to Zack, who discovered that there were p
ieces missing, which had made completing the puzzle impossible. And then Zack told Justin that it was better to ask for help than to get overly upset by a problem. Using the words just now quoted by the boy.
It was somewhat embarrassing being counseled by a six-year-old, but there was no denying it. Zack needed to talk to somebody about this. The problem was that the most likely candidates—Terry and Sean—were unavailable. Terry was at Judge Baumgartner’s ethics conference. Sean had TiVo’d the trial, and was watching it over again on television, and revising his notes.
“Do you want to talk about it, Daddy?” Justin asked.
Zack smiled, and hugged Justin tight. Sometimes, like right now, he loved his son so much that nothing else mattered. “Sure. Shall I tell you the problem?”
The little boy turned so that he could look directly into Zack’s eyes. “Okay.”
“Okay. Here’s my problem. My client in this trial was testifying today, and right in front of everybody, I think he told a lie.”
Justin gasped. Zack had worked very hard impressing upon the little guy how important honesty was. There wasn’t much in Justin’s world that was worse than a lie.
“So you see why I’m so upset.”
Justin nodded, fully serious. Clearly, this was a bigger problem than he had expected. But then suddenly, his face brightened. “I know, Daddy! You can tell the judge he’s lying.”
Zack smiled and pushed a stray strand of hair back off the little boy’s forehead. “Oh, buddy, I wish it were that simple.”
September 14, 2004
Day 6 of the Babe Gardiner trial
MARIA WAS EXHAUSTED THE NEXT MORNING when she and Anthony reached the courthouse to meet with the lawyers and report what they had found.
By the time they had gotten home after speaking to Angela Gannon it was after two A.M. And Maria had to be up before seven to make sure that Felix and her mother had everything they needed before Anthony picked her up. Thank God he had stopped at Starbucks on the way.