Felony Murder
Page 6
“First, while it’s true that the defendant does have a prior record, his only convictions are for drug crimes. He’s never before been even arrested for robbery or anything to do with violence. Second, while this incident ended in a terrible tragedy, I’m told by Mr. Bingham that the cause of death has been determined to have been a coronary, and not the result of any force or blow administered by the defendant. But for Commissioner Wilson’s bad heart and my client’s bad luck, all we’d have here would be a simple third-degree robbery, a Class D felony. And finally, if I understand the prosecution’s case, it hinges largely upon a statement that the police claim my client made, which is contradicted by a videotaped statement he made to Mr. Bingham less than an hour later.”
Justice Soloff looked up from her examination of a computer printout of the defendant’s criminal history. “Mr. Bingham?”
“Yes, Your Honor. Mr. Abernathy has omitted a few things,” Bingham began, standing well off to one side so that he could simultaneously face the judge and be profiled by the camera. “As to Mr. Spadafino’s record, he has two felony convictions and five other arrests, not counting this one. As to the cause of Commissioner Wilson’s death, that’s totally irrelevant: The indictment charges felony murder. And the felony, if Mr. Abernathy will look at the indictment, is first-degree robbery, not third-degree. As to the strength of the People’s case, it’s absolutely overwhelming. We have much more than the defendant’s confession. We have two eyewitnesses,” Bingham revealed, taking the bait, “one of whom saw the entire incident. We have the money taken from the deceased and recovered from the defendant. We have a money clip, unique in design, recovered from a trash can precisely where the defendant told us he discarded it. We’ve even matched the brand and number of cigarette butts found at the crime-scene doorway with the half-empty pack of cigarettes the defendant had at the time of the arrest. There were eleven butts, and there were eleven cigarettes missing from the pack. And we’ve recovered a weapon from the defendant, a knife, which fits the description of the knife used in the robbery, according to one of our witnesses. If that’s not a strong case, I don’t know what is.”
“All right,” said Justice Soloff. Unlike Bingham, she didn’t raise her voice for the camera. “I’m satisfied that this appears to be a strong case. It’s a serious case, notwithstanding the immediate cause of death, which isn’t relevant. And the defendant seems to be homeless, with no immediate family or roots in the community. I’m not going to set bail.” Then, “The case is assigned to Judge Rothwax, Part Fifty-six, and adjourned to the twenty-third of this month.”
* * *
Back at his office, Dean tried to digest what he had heard in court. Bingham had sprung several surprises. The indictment itself had contained the first, and Dean now read it in full for the first time.
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
THE PEOPLE OF THE STATE OF NEW YORK – V - JOSEPH SPADAFINO, Defendant.
THE GRAND JURY OF THE COUNTY OF NEW YORK, by this indictment, accuse the defendant of the crime of MURDER IN THE SECOND DEGREE, in violation of Penal Law Section 125.25(3), committed as follows:
The defendant, in the County of New York, on or about January 31 of this year, engaged in the commission of the crime of robbery, and in the course of such crime, and in the furtherance thereof, and of the immediate flight therefrom, caused the death of Edward Wilson, not a participant in the crime.
SECOND COUNT:
AND THE GRAND JURY AFORESAID, by this indictment, further accuse the defendant of the crime of ROBBERY IN THE FIRST DEGREE, in violation of Penal Law Section 160.15(3), an armed felony, committed as follows:
The defendant, in the County of New York, on or about January 31 of this year, forcibly stole property from Edward Wilson, and in the course of the commission of the crime and in the immediate flight therefrom, used or threatened the immediate use of a dangerous instrument, to wit, a knife.
THIRD COUNT:
AND THE GRAND JURY AFORESAID, by this indictment, further accuse the defendant of the crime of CRIMINAL POSSESSION OF A WEAPON IN THE THIRD DEGREE, in violation of Penal Law Section 265.02(1), an armed felony, committed as follows:
The defendant, in the County of New York, on or about January 31 of this year, possessed a dangerous knife with intent to use the same unlawfully against another.
ROBERT M. MORGENTHAU District Attorney
Attached to the indictment was another piece of paper, an Information filed by the District Attorney alleging that Joseph Spadafino had previously been convicted of a crime. That fact served to elevate the possession of the knife, otherwise a misdemeanor, to the status of a felony. By not permitting the inclusion of the allegation in the indictment, the court protected the defendant’s right to have his case tried by a jury unaware of his prior record. Only if he took the stand to testify in his own defense would his record be revealed, and even then, the jury would be instructed to consider it only in weighing his credibility as a witness.
For Dean, the shocker had been the first-degree robbery. Unlike second-or third-degree robbery, first-degree robbery required the use or threatened use of a weapon. It was clear from the wording of the indictment that the grand jury had been satisfied that the defendant had not only possessed a knife, but had somehow used it during the robbery of Edward Wilson.
Dean reviewed the notes he had scribbled during Bingham’s argument against bail. Two eyewitnesses . . . one had seen the entire incident . . . money recovered from the defendant . . . a “unique” money clip recovered from the trash precisely where the defendant said he had thrown it . . . the match between the cigarette pack and the butts found at the crime scene . . . the knife recovered from the defendant matching the description of the knife seen by a witness.
Where had this knife come from? Dean had heard nothing about it from Joey. It hadn’t been mentioned in the signed statement made for the detectives. Bingham hadn’t asked about it during the videotaped Q&A. There had been no word of it in Joey’s written narrative prepared for Dean. And now it had come out of left field at the bail argument.
Except, Dean realized, the grand jury had heard about it two weeks ago. And they couldn’t have learned of it through Joey’s statements, because none of his statements mentioned a knife. That meant they had heard the testimony of an eyewitness, one close enough to see - and later be able to describe - a knife used by Joey Spadafino during the course of the robbery.
Dean turned to the Voluntary Disclosure Form Bingham had supplied him at the arraignment. He compared the time of the crime with the time of arrest and noted that they were a mere six minutes apart. The location of the arrest was just as bad, less than three blocks away. There were references to the signed statement and the videotaped Q&A. Dean turned the page.
PEOPLE v. JOSEPH SPADAFINO
VOLUNTARY DISCLOSURE FORM
PHYSICAL EVIDENCE VOUCHERED
From Defendant:
1. $288.15 United States currency
2. One pack of Kool cigarettes containing nine cigarettes
3. One folding pocketknife with blue handle
4. One dark blue jacket
5. One blue wool cap
6. Two packs of matches
From Crime Scene:
7. Eleven cigarette butts, “Kool”
8. Thirteen used matches
Other:
9. One gold money clip with NYPD shield “#1”
There was the knife again, recovered from Joey. Dean could only imagine what other bits of information his client had neglected to tell him. Well, at least he knew about the weapon now, as well as the eyewitnesses, the cigarettes, and the money clip. The strategy of drawing Walter Bingham out with the bail application had proved successful. But the small victory had been a Pyrrhic one, completely eclipsed by the gravity of what Dean had learned. Bingham had been right, and Justice Soloff had been kind in characterizing the prosecution’s case as strong. It wasn’t strong. It wasn’t overwhelming.
The day’s mail brought a telephone bill for $311.15, of which $209.38 was past due and had to be paid the day before yesterday or Dean’s phone service would be disconnected; a bank statement showing a balance of $88.56, of which $1.20 was “available”; the fingerprint cards of a defendant whose case Dean had got dismissed last year; an L.L. Bean catalog; several envelopes bearing postage less than 32 cents (which meant they went directly into the trash, unopened); and the autopsy report on Edward Wilson.
AUTOPSY
Case No. M-237758
Approximate Age: 62 Approximate Weight: 205 lbs.
Height: 73”
Identified by: Garth Wilson Residence:
Stenographer: Mary Singletary Residence: 145 E. 92 St.
New York, NY
AUTOPSY PERFORMED BY DR. VAN DEN BERG, DEPUTY MEDICAL EXAMINER IN THE PRESENCE OF DRS. ABDULLAH, DE CICCO, PULASKI and SINGH.
I hereby certify that I HANS VAN DEN BERG have performed an autopsy on the body of EDWARD WILSON at Manhattan Mortuary on the 1st day of February 30 hours after the death, and said autopsy revealed
EXTERNAL EXAMINATION:
The body is that of a 6’1”, 205 lb. black male appearing slightly younger than the reported age of 62 years. Rigor mortis is present in the cool body, and liver mortis is faint, dorsal, and purple. The scalp hair is gray, 1” in length. The irides are brown. Natural teeth are present in the upper and lower jaw. The torso is unremarkable.
INTERNAL EXAMINATION:
The viscera are in their normal anatomical locations. The appendix has been surgically removed many years ago.
Dean had no interest in Wilson’s appendectomy. He scanned down the page until he came to what he was looking for.
CARDIOVASCULAR SYSTEM:
The heart is somewhat enlarged and weighs approximately 550 grams. There is evidence of scarring to the cardiac muscle, both past and recent. There is a massive and clearly lethal subendocardial hemorrage in the left ventricular outflow track, extending to the area of the myocardium.
The remainder of the systems appeared normal. Dean skipped down to the bottom of the fourth and final page.
DIAGNOSES:
1. MASSIVE CORONARY OCCLUSION.
2. CIRCULATORY SYSTEM COLLAPSE.
OPINION:
CAUSE OF DEATH:
HEART ATTACK, SUSTAINED DURING ROBBERY.
MANNER OF DEATH: HOMICIDE.
Hans Van den Berg, M.D. Deputy Medical Examiner
A letter from Joey Spadafino arrived on Wednesday.
An envelope from a prisoner looks like no other mail. To begin with, it is almost always addressed in pencil, the occasional exception being the archaic, uneven type of an old Remington or Smith-Corona portable. The upper left-hand corner contains a return address, whether a street, a road, or a post office box - but never the name of an institution. (One prison in upstate New York actually goes by the name of “Drawer B,” followed by a box number and a zip code.) The city or town generally bears a pleasant, bucolic name, such as Green Haven or Great Meadow. Sing Sing becomes Ossining; Clinton Prison turns into Dannemora. The biggest concession to incarceration might be the letters “C.F.,” initials meaningless to the general public but signifying to those familiar with the system that the sender is a resident of a correctional facility.
The writer’s name will more often than not be preceded by a “Mr.” as a statement to the recipient - or perhaps a reminder to the writer himself - that within those walls resides an individual still worthy of title and stature, and hence respect. For immediately following his name comes the reminder, the designation by which he is better known behind those walls: his inmate number. And, thereafter, some briefer combination of letters and numbers informs the knowledgeable reader of the prisoner’s unit, tier, or section within the institution.
Hence, in this case, the center of the envelope had Dean’s name and address carefully printed, and the absence of spelling mistakes strongly suggested that Joey had copied the information painstakingly from the business card Dean had provided him.
Prominently penciled on the envelope, in much the same fashion as the average citizen might note “First Class Mail” or “Personal and Confidential” on correspondence intended for a friend, a loved one, or a business associate, were the words “LEGAL MAIL,” a loud and clear warning to those in authority that within this crudely ciphered exterior lay all the majesty of a constitutionally protected communication between attorney and client.
Dean read the letter three times. He stapled the envelope to it.
Why was it that nobody, not even the Joey Spadafinos of the world, faced with absolutely indisputable proof of their guilt, could ever simply admit that they had in fact committed the crime?
He tossed the letter in the file.
The light snow that fell Thursday night was enough to persuade Dean to play hooky the following day.
Dean was a single practitioner. He liked it that way. He had no boss or partner to answer to. Every piece of paper that bore his name, from the simplest pro forma motion to the most lengthy and complicated appellate brief, was his work. His clients knew that he, and not some associate or paralegal, would be the one handling their cases. He answered his own phone, opened his own mail, and when able to, paid his own bills.
There were drawbacks, to be sure, of going it alone. Income was highly irregular and totally unpredictable. The single criminal law practitioner forever finds himself in a state of either feast or famine. A cluster of new cases can fill his pocket with cash and make him feel like a millionaire one day; a month later he finds himself wondering if he’ll ever earn another dime. When he first put his nameplate on his door, Dean had bought a ledger to keep track of his receipts on a monthly basis. The very first month he recorded that he had taken in just over $12,000. Multiplying it out, Dean had giddily projected that his income for the year should be $145,000.
He didn’t see another penny for three months.
There were schedule conflicts as well. Trials, particularly lengthy ones, and court appearances outside his “home court” of Manhattan occasionally meant calling on others to help out, so Dean had forged loose arrangements with several colleagues, whereby they covered for one another in pinches. His closest colleague was his officemate Gerry Leighton, whom Dean regarded highly enough to entrust with his clients’ cases when Dean himself was away or otherwise unavailable. Furthermore, over the ten years he had been practicing, Dean had earned a good reputation with the judges he appeared before on a regular basis, and they knew his rare absences from court were unavoidable, so they tended to cut him a little slack.
The best part was that, except for his court schedule, Dean’s time was his own. By habit, he woke early, was often in his office before seven, biking the five miles in good weather, taking the subway in bad, or driving his Jeep when the spirit moved him. He found the early-morning hours at the office his most productive time, before his suitemates were there to come into his room for advice, stamps, or conversation, and before the telephone began to ring. Even if caught up with his work, Dean would still arrive early. Dressed in the jeans, sweatshirt, and sneakers he commuted in, he would spread The New York Times out on his desk. The business section he sacrificed for orange peel, a piece or two of fruit being the only food Dean would eat until dinner. Then, his feet propped up on his desk, he would devour the remaining sections. Sports would be first if the Knicks or Giants had won the evening or day before; otherwise he might skip that section. Then he would work his way to the metropolitan news, the national, and-if time permitted - the international, with news about which Dean usually felt rather remote and powerless to do anything and often chose to ignore altogether.
By nine o’clock, it was time to change into one of several suits Dean kept in his office, put on a shirt and tie, and substitute a pair of loafers for his sneakers. By twenty after, he was on his way to court, a seven-minute walk. Dean liked to be the first lawyer there
. He trained his “out” clients, those who had been released on bail or their own recognizance, to arrive as early as he did. And the court officers who manned the various courtrooms knew Dean’s penchant for punctuality, and brought his “in” clients to court early whenever possible.
When not on trial, Dean would generally have two or three cases on each day in court for pre-trial appearances of one sort or another. Starting early, he could often complete them by midmorning. Then, back at his desk: more paperwork, phone calls, reviewing the following day’s work, and preparation for future trials.
By early afternoon, Dean had often had enough of his office, and one or two o’clock invariably found him back in jeans and sweatshirt. Those who had become accustomed to his routine knew better than to try to reach him at his office after three.
Dean’s goal was to make two days out of one: the first he spent at work, the second he indulged himself. In nice weather, he was up on the roof of his apartment building by midafternoon, with a book and a Thermos of iced tea. He had several writing projects he was working on: an introduction to rock climbing, a novel about a sailing adventure, and a book of poems (though so far he hadn’t had the nerve to disclose his poetry writing to anyone). In winter, he would build a fire in the blackened fireplace of his tiny living room. He was something of a purist about the fireplace and refused to use either the Duraflames so popular with city dwellers or the prepackaged firewood sold by the neighborhood Korean grocer. Instead, he retrieved his chainsaw, sledgehammer, and wedges from the basement storage area and lugged them upstate, cutting and splitting logs until his Jeep struggled heavily on its old leaf springs during the ride home. He would read or write in front of his fire, often sleeping in front of it on colder nights.
The routine worked well as long as Dean was not in the midst of a trial. When he was, the transformation was total: He worked virtually around the clock, his involvement with the case leaving him additional time only for enough food and sleep to survive. He immersed himself in the trial; he obsessed. He invariably went into court better prepared than his adversary, and he used that advantage to free him to concentrate on the subtleties of the trial: the psychology of preconditioning the jurors even as they were being selected, the packaging of his client as believable and sympathetic, and the preparation of his summation, which he began to construct long before the first witness took the stand. All this effort was sometimes not enough, but Dean, ever the sports fan, kept mental track of his own won-and-lost record well enough to know that he got a far higher percentage of acquittals than any other lawyer he knew.