Felony Murder

by Joseph T. Klempner

  “You’re not mistaken,” said Bingham.

  “So I take it that you’re caught by surprise that at some point we would proceed to trial?”

  “Well,” said Bingham, “to a certain extent, I am, now that you mention it. I had made a pretty generous offer to Mr. Abernathy, and I’m frankly quite surprised at his client’s stubbornness in turning it down.”

  “And what was this generous offer, if I may be so bold?” Rothwax asked.

  “Rob One,” said Bingham. “Five to ten. I’d even go along with the minimum, four-and-a-half to nine, if he wants to take it today.”

  Rothwax turned to Dean. “And your client has displayed the good judgment to reject that offer, Mr. Abernathy?”

  “I’m afraid so, Judge,” said Dean.

  “Do you understand the felony murder rule?” asked Rothwax, his voice rising in anger.

  “Of cour-” Dean began.

  “This isn’t for you,” Rothwax whispered. “I’m doing this for your client’s benefit. Believe me, I know you understand.” Then, raising his voice again, “I appreciate the fact that there is no evidence that your client ever intended to kill Mr. Wilson. If it were up to me, I might decide that this shouldn’t be a murder case at all. The law, however, is much smarter than I am. It recognizes that robbery is one of those felonies that is considered so dangerous that victims sometimes die even when their deaths are unintended by the perpetrator. In Mr. Spadafino’s case, it takes his intent to rob his victim, and it says, ‘That’s enough.’ If your victim happens to die while you’re robbing him - or fleeing from having robbed him - that intent to rob him will be sufficient to convict you of murder. So all Mr. Bingham here has to prove is a simple robbery. Then he brings in someone from the Medical Examiner’s Office, who, with the aid of a Russian or Indian interpreter, testifies that Mr. Wilson is dead. That seems to be something that even Mr. Bingham should be able to manage.”

  “Thanks,” Bingham mumbled.

  “And once that’s done,” continued Rothwax, without missing a beat, “Mr. Spadafino will have the next twenty-five years to life to figure out what went wrong with the jailhouse advice he’s been listening to. This case is adjourned one week, for the defendant to reconsider the offer that’s been made to him, and to pick a date for hearings and trial. The offer will stay open until next Wednesday. After that, it will be withdrawn, and there will be no further offers made in this case. Is that understood?”

  “Yes, sir,” said Bingham.

  “Yes,” said Dean.

  Rothwax looked at the defendant and said, “You may go in now, Mr. Spadafino.”

  * * *

  The first letter arrived the following day.

  Dean had returned to his office from court and found the day’s mail on his desk. There was a bank statement, which he tossed unopened into a drawer. Every six months or so he would open all his statements, spend a half hour trying unsuccessfully to balance his account, and give up, shoving the statements into the back of a desk drawer. There was a phone bill that could wait. A fingerprint card of a client whose case Dean had got dismissed. A college alumni bulletin, an Eddie Bauer catalog, and a solicitation from a life insurance company. And an envelope looking like it had been addressed by a child. In place of a typed or handwritten address, the information had been spelled out, letter by letter, number by number, using characters clipped from newspapers and magazines and then pasted carefully onto the envelope.

  His first thought was that it must be the work of his niece or nephew. But Dean’s birthday was several months past, and no holiday or special occasion came to mind. He tore open the envelope. Inside was a single sheet of white paper, adorned with a message created in identical fashion to the address on the envelope.

  Dean looked at the envelope again. There was no return address. The postmark indicated that the letter had been mailed the day before, from New York, NY 10028.

  By the time it occurred to him that his new FBI friends might have been able to have lifted fingerprints from the letter, Dean had been handling it for ten minutes. He photocopied it, along with the envelope. The originals he put in a file that he marked simply letter and placed in a file drawer. The copies he folded and put in his shirt pocket. Then he dialed Janet Killian’s number. When her answering machine picked up, he left a message asking her to phone him. He toyed with the idea of calling Leo Silvestri and at one point actually dialed his beeper number, but when he heard the tone, he hung up without entering his own number. He would show Janet the letter before he did anything else. They were in this thing together; if he was in danger, so was she. That meant she had the right to help decide their next move. Besides which, he readily admitted to himself, it gave him a wonderful excuse to see her again.

  It was almost five when Janet phoned him back. “What’s up?” she asked.

  “What’s up is that I want to see you. What can I bring you for dinner?”

  “And here I was all set to unleash my considerable culinary skills on a Lasagna Primavera Lean Cuisine.”

  “You can still eat that if you want,” said Dean. “I was thinking of food, myself.”

  “Like what?”

  “Like takeout from Hunan Empire Mandarin Szechuan Garden Balcony Emporium East.”

  “Ooh,” said Janet. “Scallops with black bean sauce? Brown rice?”

  “Might be able to manage that,” said Dean.

  He also managed moo shu vegetables, green onion pancakes, and an order of lichees, all of which he held out to Janet in a slightly leaking paper bag when she opened the door of her apartment. They ate out of the cartons spread out on the floor of Janet’s living room while the food was still hot. Nicole did an admirable imitation of adults’ eating, taking particular delight in flinging rice in all directions and squeezing lichees in her tiny fists. By the time Janet picked her up for bath time, it looked like a wedding had taken place.

  It was only after Janet came back into the living room from nursing her daughter and putting her to bed that Dean showed her the copy of the letter that had arrived in the morning’s mail.

  “Is this some kind of a joke?” she asked.

  “I don’t think so,” said Dean. “Someone spent a considerable amount of time doing this. Whoever it was wanted us to get the message without the risk of being identified. None of my friends has a sense of humor that strange.”

  “What do we do?”

  “I don’t know,” Dean confessed. “One obvious option is to turn it over to Leo Silvestri.”

  “I suppose we could do that.” Janet nodded somewhat tentatively, Dean thought.

  “You don’t seem convinced, either.” Without being able to put his finger on it, Dean - and now Janet, it appeared - had some vague misgiving about running to the FBI with the letter. It wasn’t that they didn’t trust the agents; they did. It was rather, they finally agreed, their fear that the FBI people might overreact and want to begin monitoring their mail, listening in on their phone calls, and following them more closely rather than at the present comfortable distance. Those were things neither Dean nor Janet wanted to put up with. And after all, wasn’t the writer simply warning Dean that he was in danger, something both he and the FBI already recognized? In the end, they agreed that they could risk holding off calling Silvestri, at least for the time being.

  Though they tried their best to spend the remainder of the evening together like two normal people, the letter and the warning it contained hung over their heads like a cloud that would not disappear. They turned on the TV and tried watching a Chevy Chase-Goldie Hawn movie, Foul Play, but the story kept reminding them of their own plight, and the funny parts didn’t seem funny. They switched to a Cheers rerun, but the episode centered around Cliff Clavin’s social life and proved no more diverting. When Nicole woke for what would be her eleven-thirty feeding, they decided to call it an evening. They held hands at the door, then kissed good night. It was an almost brotherly-sisterly kiss, lips coming together, barely touching, then withdrawing
, but it was more than enough to pump testosterone through Dean’s body the entire drive home.

  The second letter arrived four days letter.

  The envelope was addressed in the same newspaper and magazine print collage. As before, there was no return address. Again there was a New York City postmark; the zip code this time was 10003.

  Dean remembered to handle the letter inside with care, removing it from the envelope with a pair of tweezers he borrowed from one of the secretaries in the office. He managed to unfold the single page and flatten it out on his desk without touching it with his own fingers. The lettering was virtually unchanged from that on the envelope or in the earlier letter, but the message was somewhat more elaborate.

  The upsetting ingredient was the addition of “her,” an unmistakable reference to Janet. It meant that the writer was not just a good Samaritan concerned with Dean’s welfare while he was handling a high-profile case, or even an irate member of the public uttering a harmless threat. It meant instead that whoever was cutting and pasting these letters knew what Dean was up to, and also who - and therefore what - he had found. And while the “you” of the first letter could be read as either singular or plural, depending on whether one wanted to come to terms with the fact that Janet might be in danger as well as Dean himself, the second letter left no room for doubt.

  Again he called Janet to tell her he wanted to stop by.

  “Something’s the matter,” she said as soon as she heard his voice, “isn’t it?”

  “No,” Dean lied. He had become more suspicious than ever that their phones might be tapped, and he didn’t want to say anything about the letter.

  “Are you sure?” Either she was very perceptive, or Dean sounded as concerned as he felt.

  “Absolutely,” he said. It certainly sounded upbeat enough to convince him.

  But apparently not her.

  “So what’s the matter?” Janet asked him when she let him in. “And don’t ever play poker.”

  Dean handed her a photocopy of the second letter. “Welcome to the Two-Most-Wanted List,” he said as she studied it. “I think we’ve got to turn these over to the FBI,” he said. Her reply was limited to a nod. It was the first time Dean had seen her at a loss for a lighthearted comment.

  Dean used Janet’s phone to call Leo Silvestri’s beeper. When Leo called back four minutes later, Dean told him he had received a couple of letters he thought Leo might be interested in.

  “Threats?”

  “More like warnings,” said Dean.

  “Have you handled them?”

  “Not the second one. I didn’t know what the first one was until I had opened it and got my prints all over it.”

  “Okay,” said Leo. “When can I get them from you?”

  “First thing in the morning,” Dean said. “I’m in my office by seven.”

  “No chance tonight?”

  “No, I left the originals downtown. I didn’t want to be carrying them around.”

  “All right,” said Leo. “Your office at seven-thirty. See you then.”

  “See you.”

  Dean hung up and glanced at Janet. She stood in the kitchen doorway, staring off into space. She looked small and vulnerable. He walked to her and said softly, “Are you okay?”

  “I’m okay,” she answered. “But I’m all Nicole has.”

  “I know,” said Dean.

  “So I can’t afford to pretend I’m brave. If something happens to me, she’s all alone.”

  Joey Spadafino is thinking he’s all alone when he walks into the weight room of C-93 at Rikers Island. It turns out he’s wrong. And the man who’s there somehow seems to have been waiting for Joey, seems to have arranged the meeting. He’s a large black man they call Big Brother, with almost black skin, in his late twenties or early thirties. He’s lying on his back on a padded bench, lifting a weighted barbell over his head over and over again. He wears a pair of shorts and is bare-chested. His upper body glistens with sweat over muscles so sharply defined as to remind Joey of pictures he’s seen in bodybuilding magazines.

  The man finishes his set and walks over to where Joey’s toweling off after doing curls with hand weights. “You Spadafino?” he asks.

  “Yeah,” Joey answers, tensing and trying to sound tough, though he knows he’s going to take a beating if that’s Big Brother’s pleasure.

  “Well, you better be watchin’ that little white butt of yours, you know what be good for you.”

  “Yeah?” is all Joey can think of to say.

  “Yeah. You the one’s got the Po-leece Commissioner’s body, right?”

  “That’s what they say,” Joey says.

  “Well, they also say there be a pretty good price on your ass. Seems some folks don’t want you to have no trial. Seems it’s worth five figures to them to see you don’t get one.” And then he walks off. Joey doesn’t thank him or call after him or ask for more details. He knows he’s been told everything he was meant to hear. You don’t say thank you in jail, or ask stupid questions when somebody risks his own life to go out of his way to warn you about yours.

  Five figures means that there’s a $10,000 contract on Joey. Not that a contract like that is ever paid off in jail; whichever inmate was to step forward and kill Joey for the money would surely be the next victim, both to avoid the need to pay him off and to silence the link back to the requesting party. But there are a lot of inmates who don’t know that part of the deal, or don’t believe it could happen to them, and Joey has to worry about that, too.

  Faced with no other choice, Joey demands to see a captain that evening and fills out a written request to be placed back in administrative segregation. Even though it’ll keep him in contact with the COs, he’ll be isolated from other inmates, which means that the COs will be unlikely to harm him with nobody but them to be held accountable. Joey’s forced to lie on the form, first so he doesn’t have to identify Big Brother as the source of his concern, then to put down enough to constitute “actual injury and/or threats of actual injury.” In the blank where he’s required to name the inmates who injured or threatened him, he inserts nicknames and descriptions of guys he used to know out on the street and adds, “Ackshual names un-none.”

  Joey’s request to call his lawyer from the captain’s office is granted, but it’s late and Dean isn’t there. Joey hangs up without leaving a message on the tape.

  Around midnight, Joey’s awakened and told to gather his belongings, taken out of his cell, and led back into the Hole.

  True to his word, Leo Silvestri was at Dean’s office by seven-thirty the following morning. He had with him four clear plastic evidence envelopes, complete with locks and FBI labels, and his own set of tweezers. He carefully placed each of the letters and each of the envelopes in its own evidence envelope. Only then did he read the pasted-on messages, shaking his head from side to side as he did so.

  “This worries me a lot, Dean,” he said.

  “You and me both, Leo.”

  “I want you to give us permission to screen your mail.”

  “What does that mean?”

  “It’s no big deal,” Leo explained. “You authorize the Postal Service to deliver your mail to us for the time being. We examine it, pull out anything that looks suspicious, and forward everything else to you.”

  “What do you do with the suspicious stuff?”

  “We dust it for prints, X-ray any packages, bring in the K-nine unit for anything that could be a bomb-”

  “Open and read any suspicious letters?”

  “Certainly anything that bears the same characteristics as these two,” Leo said.

  “And how long before I get the rest of my mail?”

  “A day, two at the most.”

  “I need to think about it,” Dean said. He wanted to be helpful, and certainly didn’t want to seem ungrateful for the Bureau’s concern. But the truth was, Dean was having a hard time seeing things the way that Leo was: that the letter writer was likely to progress from wa
rning Dean that he and Janet were in danger to sending a bomb through the mail. And perceiving no such threat, Dean was reluctant to surrender his privacy, expose his other clients to having their mail opened and read, and accept an additional day of delay in the arrival of his mail.

  “Please do,” said Leo. “This guy sounds like he plays for keeps.” He promised to inform Dean whether or not the lab succeeded in lifting any prints from the letters, and left.

  Judge Rothwax had adjourned the case in order to give the defendant one final opportunity to accept Walter Bingham’s plea bargain offer. Now it was Wednesday, the point of no return in the case of the People v. Joseph Spadafino. If there was ever going to be a plea, it had to be now. Today it was robbery, four-and-a-half to nine years. After today, it was murder, twenty-five years to life.

  The media showed up, perhaps alerted by some reporter who had been phoned by a court officer in exchange for a $20 bill, perhaps responding to a sixth sense that told them something newsworthy might be brewing in Part 56. A half dozen of them were waiting on the eleventh floor when Dean stepped off the elevator. There was a television crew and a sketch artist, as well. It was Mike Pearl of the Post who approached Dean.

  “Is he going to take a plea?” Mike asked.

  “I don’t know” was Dean’s truthful answer. “Let me talk to him. I’ll let you know.”

  Inside the courtroom, Dean checked with court officers and learned that Joey had been produced. Rather than waiting for him to be brought down to the feeder pen alongside the courtroom, Dean went through the pen area and took the stairs to the twelfth floor so that he could talk with his client in the counsel visit room. He took a seat on one side of the mesh window and waited for Joey to be admitted to the other side.

  He was startled by what he saw when Joey arrived. The prisoner had dark semicircles under his eyes, and the pupils looked dull. His face was drawn and thin, and his clothes seemed to hang on his body, suggesting that he had lost a lot of weight. His hair was messy and looked unwashed. He clearly hadn’t shaved in several days.