Felony Murder

by Joseph T. Klempner

  But if Joey Spadafino was folding, he showed no sign of it.

  The media was present again, but the front two rows were sufficient to contain their numbers. Apparently they’d somehow sensed that no deal had been worked out, that any hope of a quick headline story had given way to an acceptance that the next several days would be devoted to the more mundane business of listening to two lawyers competing to see who could put more people to sleep with his questions to the prospective jurors.

  Dean tended to agree that the business of jury selection was not only excruciatingly boring, but largely unproductive the way most of his colleagues did it. His approach to the process was simple: He didn’t much care what the jurors did in their spare time, or what magazines they read or TV shows they watched; he had no interest in knowing the schools they’d gone to or the neighborhoods they lived in. He left the gathering of such trivia to the judge and the prosecutor.

  Instead, he framed his questions in such a way to tell the jurors as much as he could about the bad things they were going to hear about his client and his side of the case: a prior criminal record if the defendant was going to testify, or the very fact that he wouldn’t be taking the stand if that were the case; a drug dependency; an incriminating statement he’d made to the police; or a weapon he’d had in his possession at the time of his arrest.

  By bringing these things out in the open at the earliest possible opportunity, Dean hoped to lessen their dramatic impact. Also, by being the one to mention them first, he made it look like he was being open and honest and worthy of their trust. But there was yet another bit of psychology at work here, a more subtle motive. In telling them the bad news - Joey’s record, his history of drug abuse, the fact that he’d been arrested in possession of a knife just moments after the death of Commissioner Wilson and had freely admitted taking Wilson’s money - while at the same time asking the jurors if they could promise to give him a fair trial in spite of those things (which they all hurriedly and earnestly assured him they could), Dean was actually soliciting their promises that they would, in effect, ignore those harmful things. In a sense, he was brainwashing them to disregard the very worst of the evidence against Joey!

  So for Dean, this part of the trial took on great significance. At the same time, however, it was terribly repetitive and even more boring for him than for the jurors. While for them it was new, he’d done it a hundred times before.

  So his thoughts kept wandering to Janet. Was her life really going to be the price of Joey’s absurd insistence on going to trial? Dean found it hard to believe that the police would make good on their threat to kill her. But he couldn’t get Bennett Childs’s words out of his mind. “If the situation demands,” Childs had told him, “we’ll do whatever we have to do to contain this business.” That was not a master of subtlety at work.

  Jury selection proved even more tedious than Dean had anticipated. Almost all of the panel members admitted they’d read or heard something about Commissioner Wilson’s death or seen TV footage of Joey Spadafino being led in handcuffs to the station house or standing in front of the judge at his arraignment. Many seemed to have legitimate doubts about their own ability to be fair to a homeless ex-con who seemed to have already confessed to just about everything he was accused of. Others used the publicity surrounding the case as a subterfuge to get excused so they could get back to their jobs or families.

  By the one o’clock recess, only two jurors had been selected.

  When Joey’s led into court Thursday morning, he finds the room almost empty. One entire side of the audience section is completely empty, as is half of the other side. He soon finds out why. At a signal given by the judge, the jurors are brought in. There must be close to 100 of them, Joey figures. They fill the empty side of the room and the half-empty side, and even then, some of them have to stand along the walls. Names get read from little slips of paper pulled out of a wooden thing, the way they pick numbers at Bingo Night at church, and the jurors whose names are called take seats in the jury box. By the time the jury box is filled, there are enough places in the courtroom for the other jurors to find seats.

  The judge talks to the jurors for what seems like hours. Many of them say they can’t be jurors on the case because it’ll take too long, or because their mothers were mugged, or because they’d believe anything a cop would say or nothing a cop would say. Each time one of them gets excused, another name from the bingo thing is picked, and the empty seat is filled with another juror. Then the judge has to ask that juror all the questions he missed. Sometimes that juror gets excused, too.

  When the judge is finished asking questions, the DA takes over. He’s very tall and very smooth, and Joey’s afraid Dean may be overmatched. A couple of times, the DA gets the jurors to laugh, and Joey worries that they’re getting to like him too much.

  Then it’s Dean’s turn. He’s shorter than the DA and doesn’t seem to have as many jokes, and Joey worries that the jury doesn’t like him as much. But after a while, Dean seems to loosen up a little and hit his stride, and the jurors seem to like him okay, too.

  When Dean finishes, he comes back to the table and goes over his notes with Joey. He’s made a diagram of the jury box, with a little square for each juror, and he asks Joey how he feels about each one. Joey has ideas about a few of them. He doesn’t like a couple of them who have relatives in the Police Department or who have been robbery victims themselves. He likes one black man who’s out of work and a guy who talked about a bad experience he once had with the police. Also a young woman who doesn’t seem afraid to look at him like most of them do.

  But it turns out the DA knocks off all the people Joey wants. Dean knocks off the ones he and Joey don’t like. When they’re finished, it’s pretty unbelievable, but only one juror’s been picked. So they pick more names and start the whole thing all over again.

  After a while, Joey knows the judge’s questions by heart, and the same for the DA’s and Dean’s. In order to stay awake, he takes one of Dean’s pens and begins drawing pictures on a piece of paper. He draws airplanes and rockets and a battleship. When Dean notices what he’s doing, he asks him to stop, saying he doesn’t want the jury to think he’s a jailhouse lawyer. Joey wonders what drawing a battleship has to do with being a jailhouse lawyer, but he stops.

  At one o’clock, they break for lunch. One more juror’s been picked, making two. Joey spends the next hour and half sitting on the floor in the feeder pen alongside the courtroom. He’s brought a cheese sandwich on white bread and a cup of something that’s either strong tea or weak coffee, he isn’t sure which. He drinks it anyway. Afterward, he still isn’t sure.

  Joey’s side still aches, and it still hurts him to breathe, but he makes believe he’s in a fight, resting between rounds. When the bell rings, he’ll be ready to get up, whatever it takes.

  * * *

  For Dean, the first afternoon of jury selection went no more quickly than the first morning had. It seemed that a disproportionate number of panel members had relatives or friends who were members of the Police Department, and despite the protestations by many of them that they could be fair, Dean had his doubts.

  By the end of the day, he’d exhausted thirteen of his allotted twenty peremptory challenges, while Walter Bingham had used only nine. Five more jurors had been selected, bringing the number of sworn jurors to seven.

  Judge Rothwax recessed until Friday morning, telling the lawyers he expected to complete the selection process then, after which they should be ready to make their opening statements.

  Dean headed back to his office on the verge of despair. He had the sense that the process was absurdly irrelevant. Here he was, going through the motions of picking a jury, while Janet was locked up somewhere across the river in another state, her very life hanging in the balance. What difference did it make to her if some juror had an uncle who was a cop in Rochester?

  To Joey Spadafino, the afternoon in court is a rerun of the morning session. The judge and the la
wyers drone on. Names get picked from the Bingo wheel. Jurors come and go. Joey understands by this time that Dean and he can’t pick the jurors they like, they can only keep off the ones they dislike. Dean tells him it works the same way for the DA, but somehow the system seems unfair to Joey. And stupid. This way, don’t they end up with a jury nobody likes?

  Since who gets picked doesn’t seem to matter so much after all, Joey eventually loses interest and leaves the choices up to Dean. But without the jurors to worry about or his drawing to occupy him, Joey has nothing to do and finds he has a hard time staying awake. When he feels himself beginning to nod off at one point, he bites the inside of his cheek until he can taste his own blood. He knows it would be bad for the jury to see him asleep. They would figure he doesn’t give a shit about his own murder trial. That would be even worse than them thinking he’s a jailhouse lawyer, he bets.

  By the end of the afternoon, they’ve got some more jurors picked, but they’ve also used up the ones in the audience. The judge says they’ll need to start with more in the morning and declares the court in recess.

  Only when the last juror has left the courtroom do the court officers tell Joey to stand up so they can take him into the pens. Dean has explained to him that jurors aren’t supposed to know he’s in jail. Where the fuck do they think he is? If they’re too stupid to know that, how are they supposed to figure out he didn’t murder anybody?

  It was close to eight by the time Dean turned off the lights and locked up his office. He wasn’t particularly hungry, but he knew he should probably eat something - he’d had nothing all day. There was no food in his apartment - it had been days since he’d thought to shop for anything. So, against his better judgment, he stopped at a diner near his subway stop and found a seat at the counter. Somebody had once said the food was good, though he couldn’t remember who it had been.

  Nothing on the menu appealed to him. He looked around to see what other people were eating, but the fried chicken on his right seemed greasy, and the ham steak on his left looked truly scary. He spied a crayoned list of specials taped onto the mirror in front of him. old fashioned meet loaf platter $4.99 caught his eye. Comfort food, he thought to himself, complete with down-home spelling. How wrong could he go?

  Pretty wrong, it turned out.

  Joey’s dinner consists of old-fashioned macaroni and tomato sauce. It isn’t good, like real food, but it’s certainly better than what he was getting at Rikers Island.

  The Tombs, Joey finds, is better than Rikers Island in almost all ways. Not only is the food better and the cells cleaner and less crowded, it seems the COs treat you better, too. The feature that most of the inmates like best is that it’s easier for their “people” to get to than Rikers Island, so they get more visits. More visits means more commissary money, more fresh clothing, less isolation. Joey wonders if it’s just a coincidence that there are so many white inmates in the Tombs compared to Rikers Island, which as far as he could tell was almost all black and Hispanic.

  * * *

  Dean lay awake with indigestion from meat loaf and gravy and mashed potatoes. He located CNN on his cable TV, and shortly after eleven, he heard that “Opening statements are expected tomorrow in the trial of Joey Spadafino, the homeless man accused of the robbery-murder of Edward Wilson. Mr. Wilson was New York City Police Commissioner at the time of his death early this year. Spadafino faces twenty-five years to life if convicted.”

  A mini-surge of adrenaline rippled through Dean’s body. Added to his mounting concern for Janet and the edginess from the two cups of coffee he’d had with dinner, it made sleep impossible. But did nothing for his indigestion.

  They were back in court Friday morning. Working on less than two hours’ sleep, Dean struggled to stay awake while Judge Rothwax addressed a new panel of jurors. After that, Walter Bingham questioned them for a good forty-five minutes. By the time Dean’s turn came, he had to request a ten-minute recess so he could go to the men’s room and splash water on his face.

  They picked the remaining five jurors by one o’clock. Judge Rothwax announced that he wanted six alternates. They broke for lunch, the judge reminding them that he wanted to proceed with opening statements that afternoon, as soon as the alternates had been selected.

  Dean had known all along that his opening statement in this case would be absolutely crucial. Unlike some states that permit the defense to defer opening until the end of the prosecution’s witnesses, New York procedure requires the defense attorney to make his opening immediately after the prosecution’s or to waive it altogether, something Dean knew he couldn’t afford to do in this case: He desperately needed to outline for the jury his contention that Joey was being framed to cover up the police conspiracy. Otherwise the jury would be at a complete loss, lacking the framework to understand where he was going with his cross-examinations of Bingham’s witnesses and with his direct examinations of the witnesses Dean himself intended to call.

  But how could Dean say what he needed to without playing his hand and thereby condemning Janet to death? That was the question for which he had no answer.

  Which meant that for Dean, a terrifying moment of truth was rapidly approaching.

  It takes them till three-thirty to select the extras, and for the first time, Joey gets to see the jury, his jury, all sitting together in the jury box.

  Of the eighteen - Joey can’t be sure which are the regular jurors and which are the extras - he counts eleven women and seven men. He doesn’t know if that’s good or bad, though Dean tells him women are generally more sympathetic. There are nine whites, five blacks, two Puerto Ricans or Dominicans (Joey isn’t sure which), a Chinese or Korean guy, and a dothead from India or Pakistan or someplace like that. None of them look too smart to Joey, and he worries about that. How could they possibly understand in a few days what the real story is, when it took Dean, who’s pretty smart, months to figure it out?

  Judge Rothwax used the next twenty minutes or so to give them his preliminary instructions. Though the jurors seemed to listen intently, to Dean it was all a blur. It wasn’t just that he’d heard the speech a hundred times before and knew it almost by heart; it was simply that his thoughts about Janet kept racing out of control, leaving room for nothing else. How could he decide between his duty to his client and her very life?

  At some point, Dean was aware that Judge Rothwax had finished and that Walter Bingham was addressing the jury. He tried his best to focus on Bingham’s words, but it was a losing battle, and all that came through was gibberish. I can’t do this! he wanted to shout. It’s not fair!

  The jurors come back in through a side door. Each time they sit in the jury box, they have to take the same seats. It reminds Joey of fourth-grade English class with Miss Sweeny.

  This time, the judge sounds like a referee going over the rules. Any minute, Joey expects him to start telling them about the three-knockdown rule and the mandatory eight-count. But instead, it’s all about presumptions and burdens and a lot of other stuff too confusing to understand. But the whole time, the jurors look at the judge and nod up and down, pretending they get it, when Joey’s sure they don’t have a fucking clue.

  These people don’t know the first thing about the law, he realizes. Some of them said they’d never even been on a jury before. And now his life is in their hands.

  It’s very fucking scary, is all he can think.

  The judge tells the jurors that the People give their opening statement first. Joey doesn’t like the way the prosecution gets to be called “the People.” It makes it seem like it’s everybody in the world against him. Pretty unfair sides.

  The DA gets up and clears his throat. He starts by reading his indictment, which says that Joey Spadafino murdered Edward Wilson and robbed him. Even though the judge has explained to the jurors that the indictment isn’t supposed to count as evidence, the way the DA reads it makes it sound like it’s all true, that Joey did all those things it says in there. It’s like the game’s over before it
starts.

  “This is a very simple case,” the DA tells them next. “It’s a case about a man who mugged somebody, robbed him. Only he picked the wrong man to rob. For one thing, the man he picked to rob turned out to be the Police Commissioner of the City of New York. For another thing, the man he picked to rob turned out to have a damaged heart. Unluckily for the robber, his victim had a fatal heart attack during the course of the robbery.

  “The name of the victim was Edward Wilson. The name of the robber is Joey Spadafino. He sits right over there.” And here, the DA points directly at Joey, making a big deal of it, like they don’t already know who he is. Fuck you, Joey thinks to himself, doing his best to stare right back at the DA in case anyone’s noticing.

  “We will produce the proceeds of the robbery, and demonstrate why they belonged to the victim and to no one else. We will produce the weapon used during the robbery. We will connect the defendant to that weapon by fingerprint evidence. We will prove the defendant’s guilt not only beyond a reasonable doubt, but beyond any shadow of a doubt whatsoever.” Here the DA pauses to take a sip of water from a paper cup. Joey knows he can’t possibly be thirsty after speaking for three minutes, that it’s just for effect. He hopes the jurors know, but he doubts it. They seem to be eating up every word they hear. And the worst thing is, the DA makes it all sound like he knows it’s true, when it’s not, and when he wasn’t even there in the first place.

  “Up until now, you’ve heard me talk about robbery, but not murder. I’ll be honest with you. I’m not going to be able to prove that the defendant intended to kill Commissioner Wilson. But the law is such that I don’t have to. Judge Rothwax will explain to you at the end of the case exactly how felony murder works. Suffice it to say that I’m going to prove to you that the defendant intended to rob Commissioner Wilson, did rob him, and that Mr. Wilson suffered a fatal heart attack during the robbery. And that’s all I have to prove in this case.