Bad Faith

by Robert K. Tanenbaum

  Karp stood up and looked out the window at the view of the park in Chinatown. “I know you’re well versed in all of this, but I think it helps sometimes to review it, get it clear in your head. I know it does for me. So let’s go over the categories of murder we have in New York.”

  He turned back to Katz and held up a finger. “Beginning at the top, there’s ‘intentional murder’—that is to say that the defendant intended to cause the death of the deceased and then in fact caused the death of the deceased. I think we can all agree that the defendants in this case did not intend to cause the death of their son. They knew their son was very sick, but we’ll assume that they truly believed that prayer would cure him.”

  “But then doesn’t that get us back to the question of constitutional protections to practice their religion as they saw fit?” Katz asked, warming up to the discussion.

  “If that’s the case, then what about Islamic extremists who claim that their actions are sanctioned by God and, in fact, that jihad is their religious duty? Did that give them the constitutional right to murder more than three thousand innocent people on September 11, 2001?”

  When Katz didn’t answer, Karp moved on. “The second theory, if you will, of murder in New York is what we call felony murder—a death that occurs during the course of and in furtherance of committing or attempting to commit an underlying felony, such as robbery, rape, or kidnapping. For instance, the wheelman in a robbery; he doesn’t intend for anyone to get killed when he pulls up in front of a liquor store so that his armed accomplice can rob the store. But inside the store, the gun goes off, the store owner drops dead—the wheelman is just as guilty of felony murder as the gunman. In this case, however, there’s no evidence that the Ellises were committing some other felony and in the course of committing that felony, or to cover it up, their son died. So felony murder isn’t appropriate either.”

  Karp sat on the edge of his desk. “So that brings us to the theories of ‘reckless’ and ‘negligent’ homicide, and even here you have to add the concept of ‘depraved indifference’ murder. A simple explanation of reckless homicide is that the defendant was aware of the risk that grave physical injury or death might occur due to his actions, but he consciously disregarded the danger and someone died as a result. Depraved indifference has to do with the defendant’s state of mind. For instance, throwing a gasoline bomb into an apartment building at night knowing people are asleep inside is not merely disregarding the danger; it is viciously, wickedly indifferent to the likelihood that your actions will harm or kill other people—depraved. You may not have intended to kill any particular person, or even cared if someone died, so it is not intentional murder, but it is certainly reckless to the degree of depraved indifference.”

  “Then didn’t the Ellises show depraved indifference to their son’s suffering and potential for death?” Katz asked.

  Karp shook his head. “They did not purposely do something to place their son in danger, not caring if he lived or died. In fact, I think there is ample evidence, which the defense is sure to introduce at trial, that they were shocked and devastated by his death. So we come at last to whether to charge them with negligent homicide or the more severe reckless manslaughter; for that I’ll use an analogy I’ve used many times when explaining the difference for grand juries.”

  A man who thought best on his feet, Karp rose again and began to pace. “In this scenario, a man takes a child to the rooftop of a New York high-rise to check on his homing pigeons. When they get there, the man notices a gun lying on the ground. He doesn’t bother to see if it’s loaded, nor does he put it in a safe place, but just goes on about his business. But the child goes over, picks up the gun, it discharges, and the child is killed. That’s negligent homicide. The man failed to exercise reasonable judgment to protect the child. He violated the reasonable man’s standard of care.”

  Katz nodded and took over the anecdote. “In the second scenario, the man sees the gun, picks it up and discovers it is loaded, but places it back down where he found it. The child picks up the gun and is killed—that’s reckless manslaughter. He was aware of the risk but consciously disregarded it.”

  “Right,” Karp agreed. “So were the Ellises aware of the risk that their child would die?”

  “Well, they certainly knew that he was very sick and in a lot of pain,” Katz said. “He’d suffered seizures and was probably blind before he went into a coma.”

  “I think you just answered the question,” Karp said. “They were aware of the risk that their son was so sick that without medical attention he would die, but they consciously disregarded that fact to stick with their religious belief system, which, again, does not protect them from the criminal act of recklessly disregarding their son’s worsening medical condition.”

  Karp looked at Katz and smiled. “So we cool?”

  “Yeah, we’re cool,” Katz said.

  Suddenly there was a knock on the door; Fulton entered and without speaking turned on a television mounted in the bookcase. The screen was immediately filled with an image, obviously taken from the air, of a ferry sitting still in the waters off Liberty Island. A bold headline across the bottom of the screen announced, “Breaking News: Terrorists Attack Liberty Island Ferry.”

  As the videographer went to a wide shot, Karp could see that about one hundred yards from the ferry what appeared to be a cabin cruiser also sat still in the waters. Between the two were a number of smaller boats, several of them with the word “police” clearly visible on them.

  “We’re taking you now to the Nine News Sky Copter and reporter Tessa Laine for the latest on this breaking event,” the news anchor said. “What can you tell us, Tessa?”

  “Well, so far only that police have apparently intercepted an attempted terrorist attack on a Liberty Island ferry,” Laine reported. “It appears that the police are attempting to negotiate with the terrorists, who are in that boat you see surrounded by police boats.”

  “Can you see what is happening on board the ferry?” the anchor asked.

  On cue, the cameraman zoomed in on the ferry. “Only that there appear to be armed men on the ferry,” Laine answered, “but as the police seem to be concentrating on the other boat, perhaps the armed men on the ferry are on our side. We’re going to try to get a better picture of the people on the deck of the ferry.”

  “Jesus, is that who I think it is?” Fulton asked.

  Although the images were small and jumped around quite a bit from the movement of the news helicopter, the screen suddenly showed Karp’s daughter, Lucy; her fiancé, Ned, who was peering at the terrorist boat through the scope of a rifle; Espey Jaxon; and U.S. Marshal Jen Capers. However, Karp knew that his friend’s exclamation wasn’t because he’d seen them. It was because of the blond woman who was standing with them, looking at the news helicopter.

  “It is,” Karp growled. “It’s Nadya Malovo. She’s back in town.”

  7

  JAXON RUSHED TO THE RAILING NEXT TO WHERE BLANCHETT lay looking through the scope of his rifle. “What have you got?” he asked, lifting the binoculars he had hanging around his neck.

  “Not sure but there’s a lot of movement and they appear to be arguing, or at least making a lot of aggressive-looking hand gestures,” Blanchett replied.

  “They’re fighting,” Lucy confirmed. “One of them just called and said they wanted to give up, but then the phone went dead—”

  At that moment, a shot rang out across the water. “That wasn’t at any of us,” Blanchett said. “I think there’s a mutiny—”

  Suddenly, a man jumped from near the terrorist boat’s cabin onto the bow carrying a long tubular device.

  “Rocket grenade!” Blanchett yelled.

  “Take him out, Ned!” Jaxon shouted back.

  The words were hardly out of his mouth before Blanchett’s M40A3 sniper rifle boomed. The man on the bow of the cabin cruiser reacted as though attached to an invisible wire that jerked him backward and off the boat.


  The 7.62-millimeter bullet reached him not a moment too soon as while falling, he pulled the trigger on his weapon, launching a rocket-propelled grenade. However, having a hole blown in his chest destroyed his aim and the grenade soared almost straight up before plummeting down harmlessly into the water.

  Everything was quiet for a moment, and then all hell broke loose. The cabin cruiser’s engines roared to life and the boat surged forward toward the ferry. Those on board began firing at all the police vessels, the gunboat, the police helicopter, and the ferry.

  A burst of automatic fire stitched its way across the water and up the side of the ferry, passing only a few feet from where Jaxon stood. At the same time, a rocket was fired from the cruiser, striking one of the police vessels, which erupted in a ball of fire.

  The response was furious. The Coast Guard gunboat opened up with its fifty-caliber, tearing chunks out of the cruiser as it roared across the water toward the ferry. The police officers on the smaller boats also joined in the shooting gallery while trying to run interference for the ferry.

  Someone aboard the terrorist boat aimed at the news helicopter and opened fire. Struck, the helicopter began to bellow thick dark smoke and spun out of control into the water.

  On board the ferry, the NIDSA agents fired away with their handguns while Blanchett’s big gun boomed again and again.

  Jaxon glanced over at where Lucy had been standing when the shooting started and was horrified to see her lying on the deck, bleeding from an apparent shoulder wound. She was trying to help a NIDSA agent who lay motionless on the ground next to her, a pool of blood growing beneath him. Blanchett looked over at the same time and stopped shooting.

  “I’ve got her, Ned,” Jaxon yelled, and ran to Lucy even as more automatic rifle fire raked the ferry, clanging off steel and whistling overhead.

  “I’m okay,” Lucy yelled. “Just nicked.” She looked back at the agent she’d been trying to help. “But I think he’s gone.”

  Blanchett’s expression turned from concern to anger as he nodded and began to shoot again, the big gun’s bullets punching hole after hole into the cruiser’s cabin and taking out gunmen whenever they appeared.

  The battle ended as quickly as it began. Thousands of rounds had been exchanged, and the cabin cruiser was again dead in the water, only now there was black smoke pouring from it and a small fire was visible in the rear. The men on board had stopped shooting, though none could be seen.

  Ascertaining that Lucy was not in any immediate danger from her wound, Jaxon moved to the railing and studied the terrorist vessel through his binoculars. He was still watching when a man on the cruiser dove into the water and another man ran to the rail and shot the diver. Blanchett immediately dispatched the shooter.

  The Coast Guard vessel swept in closer. “Throw down your weapons and raise your hands,” a voice demanded over the gunboat’s loudspeakers.

  Jaxon saw several men start to comply. He and everyone else around him began to relax as the police vessels cautiously moved toward the terrorists. Resistance appeared to be over.

  Lucy, who’d picked herself up and was listening in again, yelled, “They want to surrender! I think—”

  Suddenly, the terrorist boat erupted in a massive fireball that also consumed the police vessel closest to it. The heat and concussion could be felt on the ferry, still fifty yards away. Then all that remained was debris, some of which was still falling out of the sky, and small oil fires on the surface of the water. There were no signs of any survivors.

  Jaxon heard the ferry door behind him open and turned to see Capers leading Malovo out, joined by Rolles and her partner, Masterson. “They do that or us?” Capers asked.

  “Them,” Jaxon replied. “We weren’t shooting when it happened.” He slapped his hand on the railing. “Damn it, I would have liked to take those guys in and see if we could get them to talk. This was pretty sophisticated, media-savvy planning, and I’d like to know who was behind it.”

  Malovo, who’d been looking with satisfaction at the debris on the water, shrugged. “Good riddance, no?” she said. “Besides, maybe the other two will be able to tell you something.” Capers turned to Malovo, who was looking at the fires burning on the water with a satisfied grin. The assassin laughed. “There’s just something about death that turns me on,” she purred. “Is it the same for you?” she asked, turning to meet Capers’s gaze.

  Eyes blazing, Capers swung Malovo around and cuffed her wrists behind her. “Yeah, well, you’re going to have to take care of that all by yourself in a cell tonight.”

  Malovo laughed again. “It would not be the first time, my beautiful friend, but perhaps someday we can let the men yell while we help each other with such things?”

  “Not on your life,” Capers shot back. “There wouldn’t be enough hot water in the world to get the stench off.”

  The smile disappeared from Malovo’s face for a moment, but then her eyes glittered and she grinned. “Perhaps someday we will take a shower together and find out, no?”

  As they disappeared into the interior of the ferry, Jaxon looked over at Lucy, who was frowning and looking at the water where the terrorist boat had been. “What is it, Lucy?” he asked as he walked over.

  “I’m not sure,” she replied. “I’ll talk to you about it later.”

  Late that afternoon, Jaxon arrived in a dark sedan at a private entrance on the Hogan Place side of the Criminal Courts Building in downtown Manhattan. Clay Fulton was waiting for him there and escorted him to the elevator. They took it to the eighth floor and the anteroom that led directly into the inner office of the New York district attorney.

  “I take it you’ve seen the news,” Jaxon said when he opened the door and saw Karp waiting for him.

  “Yeah, caught it this morning and a few dozen replays since,” Karp replied. “Just got back from Beth Israel Hospital. Lucy’s lucky the bullet didn’t hit any organs or major blood vessels.” He paused for a few moments. “So everything went down like you told me it was going to.”

  “Yeah, pretty much,” Jaxon responded. “I was hoping we could take more prisoners.”

  “What’s the body count?” Karp asked.

  “Not sure on their side, maybe a dozen,” Jaxon responded. “We lost five police officers, two more badly burned, and one federal agent—the guy who’d been next to Lucy. Also, the pilot of the news helicopter is in serious condition, though the reporter seems to have gotten away with nothing worse than a dunking.”

  “Could have been worse,” Karp noted.

  “Much worse,” Jaxon agreed. “If we weren’t able to intercept these guys, it would have been a catastrophe. Hundreds dead. A big public-relations coup for al-Qaeda.”

  “So we owe Malovo our thanks?” Karp asked, shaking his head.

  “I wouldn’t go that far,” Jaxon replied. “She’s looking out for number one, herself.”

  “I’d rather be prosecuting her for murder and putting her on death row,” Karp said.

  “I won’t argue with you there.”

  “You know she can’t be trusted.”

  Jaxon sighed and nodded. “Funny, but you’re not the first one to say that to me today.”

  8

  “HONEY?” DAVID ELLIS CALLED OUT AS HE ENTERED THE TINY apartment on West 88th Street. There was no answer, nor sound of any kind aside from street noise outside. The shades in the living room were drawn, the windows closed, adding to the gloom and stillness.

  She’s probably napping, he thought as he stood for a moment in the entranceway before closing the door behind him. Nonie, his wife, napped a lot and had ever since Micah died. And when she wasn’t asleep, she walked around as if in a daze and spoke in a monotone devoid of any emotion. The only time her voice was animated at all was when she talked about the Reverend C. G. Westlund, or if David said something that irked her, particularly if it could be construed as critical of the reverend.

  In fact, Westlund was the reason David had feigned an illness at his
job as a computer programmer so that he could come home and talk to his wife about her obsession with the man and their trial, which would start with jury selection in two days. He would have waited to talk until that evening after work, but when he got home she would usually already be in bed, or would soon rush out of the apartment to attend a church meeting or some other business with Westlund and wouldn’t come home until late, after he’d gone to bed. Awake, he’d listen to her slip quietly into the apartment and then would hear the door leading to their son’s old room, where she slept, click shut.

  It had been a long time since they’d slept in the same bed, a fact he’d even once brought up with Westlund after Micah’s death, when he still thought of the reverend as a friend and spiritual guide. When he complained that his wife refused to have sex with him, Westlund had counseled him to be patient. Women whose children “are taken into the arms of God” often lose their sex drive as they grieve, the reverend advised. “Give her time,” he said.

  However, time had only seen his marriage go from bad to worse, and he now considered the reverend a big part of the problem. When he complained to Nonie that she should be turning to him, her husband, when she needed consoling, she bitterly retorted, “The reverend is the only person who understands me.” She wouldn’t come right out and say it, but she implied that Micah would not have died if David’s faith had been stronger. And he knew where that was coming from.