Felony Murder

by Joseph T. Klempner

  Maybe Bingham was right. But was it coincidence that the body could no longer be examined, having been cremated on orders from someone other than the Commissioner’s widow, and that now the tissue samples had been destroyed as well? Being paranoid was disabling for the average person, but for the criminal defense attorney a little paranoia was a healthy thing.

  The phone rang.

  “Hello,” said Dean.

  “Dean, Walter Bingham again.”

  “Yeah.”

  “Dean, I’ve been thinking. What do you figure the chance is that your guy might be interested in a plea?”

  “He already turned down the minimum, fifteen to life.”

  “No,” said Bingham. “I mean a real plea.”

  “What do you have in mind?” In fact, Dean wasn’t sure what Bingham was driving at, but it sounded as though he was about to make a real offer in the case, something he hadn’t done until now. Something he certainly hadn’t done on any of the occasions the case had been in court, in front of Judge Rothwax. Was he embarrassed about the destruction of the body and the liver sample and afraid that Judge Rothwax might get on his case about it or, worse yet, that a jury might make something of it?

  “Well, I can’t offer him manslaughter, because the only murder here is felony murder, and I know he probably didn’t intend to hurt Wilson. So there’s really no lesser plea possible to the murder count. But I might be able to give him the Rob One. It’s a B, the same as Man One, so as a practical matter, there’s no difference. But the label’s a lot better.”

  “I doubt my guy’s into labels too much,” said Dean. Jail had a way of creating pragmatists, and a defendant generally cares far less about what he’s pleading guilty to than what his sentence will be. “What kind of time are we talking about?”

  “C’mon, Dean. I’m offering you a Rob One on a murder case I can’t lose. He’d have to take the max.”

  The “max” on first-degree robbery was, for someone with a prior felony conviction like Joey Spadafino, twelve-and-a-half to twenty-five years. Better than fifteen to life, the minimum on murder, but not exactly time served.

  “Why the sudden change of heart, Walter. Do I detect a touch of human kindness?” The truth was, he wanted to know what this development was all about.

  “Don’t bust my chops, Dean. Why don’t you run it by your guy?”

  “I will,” said Dean.

  So Dean devoted another Saturday to visiting Joey Spadafino at Rikers Island and conveying to him Walter Bingham’s offer.

  Not that there was much point to it. Having rejected in the strongest possible terms a plea that would have given him fifteen years to life, Joey was not likely to jump at this new offer of twelve-and-a-half to twenty-five years. And even though Dean continued to see the case as a loser at trial, something in him wasn’t entirely unhappy at the prospect that Joey was certain to reject this new offer in favor of holding out for something better, or to reject any offer for that matter, however reasonable, and to insist instead upon going to trial despite the odds against him. Nonetheless, he recognized his obligation to inform Joey of the development.

  Dean believed that too many lawyers took over the decision-making process for their clients. In doing so, they often failed to recognize that what was the right choice for the lawyer was not necessarily the right choice for the client. Under the mistaken impression (because often the thought process was subtle and unconscious) that they were acting in the best interest of their clients, lawyers went to trial in high-profile cases for the publicity, while talking other clients into pleading guilty when a trial would be too time-consuming, expensive, or inconvenient. Dean tried his hardest to divorce himself from such considerations, but he knew that sometimes he succumbed to the pressures of the real world. He made a conscious effort to avoid being overly paternalistic when it came to decisions that rightfully belonged to the defendant. Even when a client faced with a difficult decision turned to Dean and asked him whether he should take a plea or go to trial, Dean liked to say, “Hey, it’s your case, it’s not mine. You’ve got to decide.”

  So Dean drove out to Rikers Island to present Joey Spadafino with a choice. And basically because he had nothing better to do.

  His investigation was at a standstill. He had nobody to look for, no witness to interview, no body to exhume, no liver sample to reanalyze, no theory to pursue. He was caught up on his other cases. The top of his desk was visible to the naked eye for a change. At home, he had washed the pile of dishes in his sink, made his weekly pilgrimage to the laundry room, and performed the monthly vacuuming of his apartment.

  His social life had reached ground zero. He had had one date in the past month. A nice enough person with the unlikely name of Iphegenia Houdranian, she was a teaching fellow in the classics at Columbia University whom Dean had met over the cantaloupe section at Fairway. She had caught Dean pressing the melons, testing them for ripeness.

  “Smell it,” she had said.

  “Excuse me?”

  “Smell it,” she had repeated. “It’s not enough to feel it. Smell the end where the stem was. If it smells good, it’ll be ripe.”

  Together they had smelled cantaloupes, laughed, and introduced themselves. Dean had ended up with her phone number and something approximating her name. A real New York Story. A respectable week later, he had called her, and they went out for dinner, a Greek Syrian and an Irish Jew at a Japanese restaurant.

  Only it turned out they had little to talk about. Joey was ignorant when it came to the classics, and try as she might, Iphegenia Houdranian could not approach or even appreciate Dean’s intensity as he described to her the various twists and turns in Joey Spadafino’s case. She ended up appearing somewhat bored and more than slightly bewildered at Dean’s concern for this worthless ex-convict who had brought about the death of another man.

  He drove her back to her Morningside Heights apartment and walked her to the door, where they shook hands. The dinner had been pleasant enough, and the fact that Iphegenia Houdranian had insisted on splitting the check had helped ease Dean’s latest fiscal crisis. Not to mention that for the rest of his days, he would be an expert when it came to selecting ripe cantaloupes.

  So he drove his Jeep out to Rikers Island to tell Joey Spadafino that he could have twelve-and-a-half to twenty-five years on a robbery plea.

  “Fuck that shit, man.”

  No need for paternalism after all. It appeared that Joey was going to be able to make this decision on his own, without too much difficulty.

  “So what’s goin’ on?” Joey wanted to know. “What’s new with the case?”

  Dean had already told Joey about the cremation of the body. He now explained to him that the liver sample had been destroyed as well, making it impossible to determine if Commissioner Wilson’s death had been in any way related to medication he had been taking.

  “Great,” said Joey. “It’s just one thing after another. I can’t buy a fuckin’ break, can I?”

  “Well,” said Dean, “there is one thing.”

  “Whatsat?” asked Joey without looking up.

  “The woman, the eyewitness - the one who saw you pull the knife on the guy-”

  “I didn’t pull the knife.”

  “You’re right. I’m sorry.” Dean corrected himself. “The one who says she saw you pull the knife. It turns out she makes skin flicks. Porno movies.”

  “Makes ‘em, or is in ‘em?”

  “Is in them.”

  “Howdya know?”

  “It’s my job to find these things out,” Dean explained with a smile. “I investigated. I’ve even got one of her movies.”

  “So whatasat mean?”

  “I’m not sure it means much of anything,” Dean admitted. “We can embarrass her with it.”

  “That ain’t right,” said Joey.

  “Since when are you Mr. Morality?”

  “Whaddayou mean?”

  “Nothing,” said Dean. He realized that Joey operated on a
very literal level, that he never seemed to know whether Dean was speaking seriously or ironically. He wondered if it sometimes seemed to Joey that Dean was making fun of him. At the thought, Dean’s Jewish half delivered him a pang of guilt.

  “Whyn’t you bring it to her?” Joey’s voice brought Dean back to the interview. “You know, like a peace offerin’. Tell her you won’t use it if she’ll tell the truth.”

  “Suppose she’s already telling the truth?” Dean asked.

  “Fuck you, Dean. You wasn’t there. I was there. She says I pult the knife, she’s lyin’. You tell her I said that. If you’re my goddamn lawyer, you tell her that to her face. Else I’ll hire that other guy.”

  “What other guy?”

  “Nobody,” Joey mumbled.

  “What other guy?” Dean repeated.

  “Some lawyer came to see me,” Joey explained.

  “Who?”

  “Some sleazebag. Winton? Winters?” Joey groped for the name.

  “Leonard Winston?”

  “Yeah.”

  Dean knew of Leonard Winston, and sleazebag was not too far off the mark. Sometimes referred to as the Silver Fox, Winston was generally regarded as short on legal skills but good at theatrics and playing to the media. He had first gained publicity as a lawyer with the Patrolmen’s Benevolent Association, where he had successfully represented police officers accused of committing crimes. More recently he had landed several high-profile clients. The vanity plate on his Rolls-Royce read wins tons.

  “Who sent him to see you?” Dean asked.

  “I dunno,” said Joey. “He wouldn’ say.”

  “That’s Leonard Winston, all right.”

  “So you gonna do it?”

  “Do what?” Dean was still trying to figure out Leonard Winston’s interest in Joey Spadafino.

  “Go see her. Tell her you’ll forget the nasty movies if she’ll tell the truth?”

  “I’ll think about it,” said Dean. “You want to think about the twelve-and-a-half to twenty-five?”

  “No way, man. He can stick that up the Hershey Highway.”

  Joey thinks about all of it that night. He lies on his bunk in the dark, feeling encouraged. He now knows he was right to refuse to plead guilty to murder, just as he’s right to refuse to plead guilty to robbery. Other inmates have told him this: No matter what lawyers and judges say, if you can hang tough they’ll offer you less and less time as it gets closer to trial. And he now sees they’re right. First they offered him fifteen to life. He turned it down. So next they offered him twelve-and-a-half to twenty-five. He figures next they’ll offer him ten to twenty. He’ll hang tough all right. When it gets down to something he can deal with, then he’ll think about it. Maybe two to four. He could do that.

  Also, he’s kind of glad he told Dean about the other lawyer. He could see Dean was a little upset about that. Meaning Dean is afraid Joey might fire him and get a street lawyer. That’s good, Joey knows, because it’ll make Dean try harder. Maybe get him to take the movie to the woman and get her to say he didn’t pull the knife.

  Being a lawyer can’t be so hard, Joey decides. He wonders if maybe he should think about acting as his own lawyer on this case. He’s heard about a guy in C Block who represented himself on a burglary case and beat it, got found not guilty on the whole thing.

  For one thing, if he was the lawyer he’d know what to do about this woman. You go to her, and you get her to say she didn’t see him pull the knife, that’s all. What’s the big deal about that? How hard can that be?

  Dean went to trial on a stolen-car case. The defendant, a twenty-year-old Korean named Bong Kao, had been stopped driving a car that turned out to have been stolen a month before. Bong claimed that a girlfriend had loaned him the car an hour earlier. He testified that he had seen her driving the car off and on for about a week and assumed it was hers. She had given him the ignition key, but no door or trunk key, explaining that she had lost those. Dean argued in summation that the jury could convict Bong only if they were convinced beyond a reasonable doubt that he knew the car was stolen. Apparently they were. It took them the better part of two days of deliberations, but in the end they found Bong guilty.

  The day after the verdict, Dean stayed home. Facing his colleagues at the office or the courthouse after winning a case was glorious; facing them after a client had been convicted was unbearable. In fact, Dean realized that over the years, he had even adopted an entirely different language to describe the two results: When the jury returned a not-guilty verdict, Dean would answer inquiries about the result with a proud “I won”; when the jury’s verdict was a guilty one, Dean would explain that “they convicted him,” immediately distancing himself from the outcome.

  But while staying home protected Dean’s bruised ego from the queries of his colleagues, it failed to distract him from thinking about work. And thinking about work meant thinking about Joey Spadafino’s case.

  For one thing, Dean found the business about Leonard Winston upsetting. Although all lawyers had clients who drove them crazy, and cases they wished would somehow disappear, no lawyer liked being knocked out of a case, even when it was a court-appointed case, and the client or his family found the money to retain a private attorney. So the notion that another lawyer had tried to hustle his biggest case away from him angered Dean. His dislike for Leonard Winston - whom he had seen but never met - further fueled that anger. What puzzled him was Winston’s interest in the case. Surely it wasn’t money; neither Joey Spadafino nor his family had any. Nor did Joey’s case strike Dean as a particularly attractive case from a publicity standpoint. Certainly there would be media attention during the trial, but media attention was something to which Leonard Winston had easy access without the Spadafino case. Joey Spadafino himself was hardly the type of client with whom a publicity seeker would want to identify. And because the trial seemed inevitably headed for a conviction, the long-range effect of any publicity was bound to be negative.

  Finally, it struck Dean as curious that Winston, with his old ties to the PBA and the Police Department, should be interested in representing the man accused of murdering the Police Commissioner. But then again, Dean knew that trial lawyers were basically mercenaries, gunslingers who were able to switch sides at the drop of a hat, without losing any of the fervor it took to represent either party to a lawsuit with total dedication. The toughest assistant district attorney would leave his job and would suddenly be representing accused criminals with the same vigor with which he had been prosecuting them a month earlier. The only common denominator seemed to be an intense desire to win. To those who cited this chameleon quality of the litigator as proof of the moral bankruptcy of the legal profession, Dean agreed up to a point, but he also insisted that it was that same intense desire to win that produced the best trial lawyers. A lawyer, after all, was an advocate. If he stopped to ponder the moral strength of his client’s position, and allowed his estimate of it to dictate how hard he fought in court, he was worthless to all but those few whom he was convinced were totally innocent of any wrongdoing. Dean believed mightily in the system. He believed that even society’s lowest member, accused of its very worst crime, was entitled to one advocate in his corner. It was the job of that advocate, short of cheating, to give his client 100 percent of his effort. The rest of the world could - and no doubt would - be affected by its loathing for who the defendant was and what he had done. The only person who could not be affected, who could not pull his punches and try less hard to win, was the defense attorney.

  For better or worse, Joey Spadafino was such a defendant, a lowly ex-con accused of murder, and Dean Abernathy was his lawyer. He found it hard to believe that Leonard Winston wanted the case because his desire to win it was greater than Dean’s. And it pissed him off that some slick hustler with ulterior motives was trying to steal it from him.

  To distract himself from his growing anger over Leonard Winston, Dean forced himself to think about other aspects of the case. But with his in
vestigation at a virtual dead end, he kept coming back to Janet Killian and When Carry Met Sally.

  Try as he might, Dean couldn’t think of a constructive use for the movie. His mind game of assuming there was such a use, and then trying to discover it, had failed him. Joey had suggested he go back to Janet Killian and present her with his copy of the movie, as some sort of peace offering, a barter in exchange for her telling the truth. The problem was that Dean was firmly convinced that she was telling the truth, that she’d actually seen what she described to Dean that afternoon in Detective Rasmussen’s car. Joey, of course, did not like that particular truth.

  So what Joey was really suggesting amounted to extortion. Dean’s bringing the movie to Janet Killian would be nothing more than a way of letting her know that he had it. Even as he presented it to her, she’d know that he was aware of her pornography career and could easily locate another copy of the movie - or other movies in which she might have appeared - to expose her on the witness stand. The message would be clear enough: If she’d back off from the truth in her testimony, Dean would keep quiet about her secret. That’s all there was to it.

  Unless.

  Unless the premise behind all that thinking was wrong.

  Unless Joey Spadafino was the one who was telling the truth and Janet Killian was lying.

  And slowly it came over Dean that he wasn’t giving that scenario a chance, much as he hadn’t believed Joey’s claim that the detectives had forged his signature on the second page of his written statement - the page that had Joey demanding money from Wilson - until the copy-machine enlargements proved that Joey was right after all.

  And in that moment, Dean knew that he was wrong to preclude the possibility, however unlikely it seemed to him, that Janet Killian was lying. Dean owed it to Joey to go back to her. Notwithstanding her reluctance to talk to him and his own understanding with Detective Rasmussen to leave her alone, Dean had an obligation to his client to confront her point-blank about whether she had really seen Joey pull out his knife and threaten the man with it, or whether she was adding that crucial detail to the things she had actually seen because the police had convinced her to do so. If Joey was wrong about everything else, he was right about one thing: Dean had to go back to her and ask her.