“Did you serve in criminal court?” asked Keenan.
“Yes, I served in criminal for a number of years. I believe I can do all that, and I have no objection to that. But I do object strenuously to the imputation which will come all over the city and the country that I am mentally incompetent to stand trial. I see no reason for it. I see the statement that I am making today, this very moment, as a statement of evidence that I can handle it.”
Keenan agreed. “I find that she is competent to stand trial mentally,” he concluded. “The trial is starting tomorrow at 9:30 in the morning.”
31
The Trial
At ten minutes past eight on Tuesday, October 4, 1988, the opening day of her trial, Bess emerged alone from the Lexington Avenue subway and bounded up the long granite staircase of the Federal Courthouse in lower Manhattan. Arriving more than an hour before the trial was to begin, Bess was hoping to slip into the courthouse before the press arrived. But she was too late. A huge gathering of photographers, reporters, and television camera crews was already waiting for her on the steps.
“There she is!” shouted a photographer. As the crowd stampeded toward her, waving notebooks and microphones, Bess quickened her pace, walking briskly in her low-heeled patent leather shoes as the crowd surrounded her on the courthouse portico, among the massive Corinthian columns rising four stories high. Bess kept walking straight ahead, ignoring their requests for interviews, slipping inside the white marble lobby through the revolving front entrance door.
Now that her day in court had finally arrived, more than two years after the federal investigation had begun, Bess summoned up all of her strength to project an image of dignity. In an interview with her friend, New York Post columnist Cindy Adams, that was published that morning, Bess said she saw the trial as one more tribulation of a hard life.
“Life is very painful,” she told Adams. “I had a bad first marriage, but from it came a daughter. I had a bad second marriage, but from it came a second career. I have lived with cancer. I must live even with the foolish parts of me. So now what I have to do is get through this with dignity. That means grace under pressure. Whatever the end may be, so may it be.”
Bess had taken the subway to the courthouse in Foley Square on the advice of her lawyer. Fred Hafetz thought that the image of Bessie from the Bronx, the straphanger, would serve their case better than that of Bess, the powerful and wealthy woman stepping out of a chauffeur-driven limousine.
Bess no longer trusted chauffeurs, anyway. “They turn around and talk to the press even if you tell them not to,” she complained to New York Post reporter Ann Bollinger that afternoon. “And even if you say nothing, they turn around and say you did.
“Nancy was big on chauffeurs,” she added, unable to hide her contempt for Andy’s ex-wife. Bess told friends that she blamed Nancy for all of her present troubles. She contended that Nancy went to the federal authorities after she did not get what she wanted from Andy during their divorce.
Bess took the elevator to the courthouse’s fifth-floor cafeteria, where she bought a large cup of black coffee. She remained there for almost an hour, avoiding Courtroom 318, two floors below, until five minutes before the proceedings were scheduled to begin at 9:30.
She appeared perfectly composed as she entered the courtroom. Two weeks earlier she had arrived for the first day of jury selection pale, trembling, and hiding behind dark glasses. This time she strode into the imposing courtroom with its twenty-two-foot-high ceiling and gray marbled walls as if she were walking into a reception as the guest of honor.
It was one of the largest courtrooms in the thirty-one-story classical-style courthouse. Keenan would have preferred to have held the trial in his own, smaller courtroom on the fourth floor but agreed to move to larger quarters to accommodate the more than fifty reporters covering the case.
The first two rows of the press section were filled with sketch artists, who used binoculars to study Bess close up even though she was seated only a few yards away. Behind them were five rows packed with newspaper, television, and radio reporters from all over the country.
Bess was dressed in a black-and-white striped suit and red silk blouse. At Andy’s suggestion she had cut her shoulder-length hair, and curled it into a fluffy bouffant style. Andy thought the curls made her look less severe.
At the defense table Andy was smiling and talking with his lawyer, Jay Goldberg, and Bess’s attorney, Fred Hafetz. Dressed in a well-cut navy blue suit and starched white shirt, Andy looked haggard, with deep circles under his large brown eyes. Prison guards had roused him at 4:30 that morning from his jail cell at the Metropolitan Correctional Center on Park Row, next door to the courthouse. Andy was staying there, far from the more comfortable surroundings of the federal prison camp at Allenwood, Pennsylvania, for the duration of the trial. In what would become a daily routine, Andy had already spent several hours in a crowded holding cell in the bowels of the courthouse, waiting to be taken to trial. Some days, so many prisoners would be crowded into the holding pen, waiting for their court appearances, that Andy would have to stand for hours. The stench of urine in the cell was overpowering.
Walking to the well of the court, Bess smiled at Andy and then turned to the other end of the long defense table to greet Judge Gabel and her eighty-one-year-old husband. A quiet, soft-spoken man with blue eyes and thick gray hair combed straight back, Milton Gabel accompanied his wife to the trial every day, sitting directly behind her and attending to her needs—from fetching her a snack from the cafeteria to putting drops in her eyes.
The Gabels had also taken the subway downtown to the courthouse that morning. Sukhreet had seen them off after going to their apartment around 7:30 to help her mother put on her makeup and choose a blue print dress. Sukhreet was furious that she had been barred from attending the proceedings because of her status as a witness. She had hoped at least to hear the prosecutors and defense attorneys make their opening statements. “I’ve spent two years working on this case,” she complained angrily to Marcia Kramer of the New York Daily News. “I probably know more about it than anyone involved. Is this justice?”
Bess chatted briefly with the Gabels and then returned to Andy’s side. They had about fifteen minutes to visit quietly with each other over coffee before Keenan entered the courtroom and took his place behind the bench. A short man with a reddish complexion, thinning white hair, and silver-rimmed glasses, Keenan looked like an Irish priest in his black robes and stiff white collar. A few minutes later the twelve jurors and their six alternates filed into the room. Bess watched them as they took their seats in three rows of green leather swivel chairs arranged on a platform adjacent to the witness stand.
Choosing a jury for most trials takes about a day. But in this highly publicized case the judge took nearly two weeks to interview 150 prospective jurors so that he could eliminate those from the jury pool whose prejudices or biases might prevent them from reaching a verdict based strictly on the evidence.
Each prospective juror was required to answer a thirty-four-page questionnaire prepared jointly by the defense attorneys and prosecutors. The questionnaire was intended to probe their backgrounds, moral attitudes, and knowledge of the case. Would they be biased against a man accused of beating his wife or a woman who had had a relationship with a married man? Did they believe that most public officials tended to be corrupt? Those who answered yes to those questions and others designed to ferret out any biases or prejudices were excused immediately. One potential juror lost the chance to sit on the jury after writing that he had read about Bess’s shoplifting “escapade” in Pennsylvania and believed as a result that “her behavior is inherently criminal.”
The prosecutors were looking for older, conservative, middle-class jurors with families. Such jurors, particularly married women, they believed, would be deeply offended by high-ranking public officials’ abusing their power and by a married man who had left his wife for another woman.
The defense
team felt it needed an entirely different jury to win its case. The defense wanted well-educated, sophisticated people, who were capable of putting aside whatever personal feelings they might have about the case to return a verdict based strictly on the evidence and the law.
Throughout the interview process both sides could submit questions to the judge to ask prospective jurors. The defense lawyers relied heavily on Jay Goldberg’s wife, Rema, for advice. An attractive, intelligent woman, she used her training in psychology and her experience as a career counselor to assess those jurors, who, she hoped, would conclude from the evidence that the government did not have much of a case.
After the judge pared down the original pool of 150 prospective jurors to fifty, the defense and prosecution lawyers chose twelve men and women and six alternates to hear the case.
The defense team counted itself lucky to have what it considered to be a well-educated jury hearing the case. There were six men and six women—a nurse, two engineers, a computer operator, a computer technician, two medical office workers, an administrative assistant in a bank, an artist, an unemployed actor, a nursing home administrator, and a retired postal worker. Rema Goldberg’s top choice had been juror number nine. She was Linda Berardi, a pretty, petite, twenty-nine-year-old administrator at a state mental health facility in Westchester County who was also studying for a master’s degree in psychology.
She struck Rema Goldberg as smart and tough. She was also single, an important factor, Rema thought, considering that the backdrop of the case was a bitter divorce. The Goldbergs also liked the idea that she lived upstairs from her elderly Italian grandparents, who had worked in the construction business, which they hoped might make her sympathetic toward Andy. “Smile at Linda,” Rema would quietly coax Andy as they sat together at the end of the defense table. He would look over at the jury box, where Berardi sat in the middle of the second row, and smile and nod to her now and then. Andy called it “jury patrol.”
Turning to the jurors after court was called to order, Judge Keenan reminded them about the seriousness of their job and gave them a few rules to follow: They were not to talk with anyone about the case or share their opinions about the case with one another until the very end. Although the jurors were not sequestered, the judge warned them against reading newspaper articles or watching television reports about the trial. “You have the Mets’ play-off game tonight,” Keenan said good-naturedly. “You’ve got the presidential election. Hopefully, you will be able to talk about the Mets in the World Series.”
Keenan also explained to the jurors what they could expect in the coming weeks. First they would hear both sides lay out the broad outlines of their case in opening statements. Next the prosecution would present its case by calling witnesses. Those witnesses could be subjected to cross-examination by the defense. Then the defense would have an opportunity to relate its version of the events. Finally, before the jurors began their deliberations, the prosecution and the defense lawyers once again would speak directly to them in closing arguments.
Before turning over the stage to the lawyers, there was one last thought that Keenan wanted the jurors to bear in mind: “The government has the burden of proving each defendant guilty beyond a reasonable doubt.”
Lawrence looked a little nervous as he rose from the prosecution’s table and walked over to the podium set up in front of the jury box. He opened up a black binder and began reading in a soft voice that belied the dramatic language of his statement.
“This is a case about money and greed and the abuse of power. It is about the use of secrets, deceptions, and lies to keep the truth from the public. It is about local people who decided to use their wealth, their power, their positions of privilege to violate the public trust in exchange for personal gain and profit. This is a case about whether such privileged people are above the law.”
From her seat at the defense table Bess stared intently at Lawrence with lips pursed and chin held high, her hands folded in her lap. Her posture was so rigid and her bearing so implacable that she looked as if she wasn’t breathing. The only visible sign of tension was in her jaw, which she continuously opened and closed.
From the beginning Lawrence warned the jurors about what would turn out to be the single biggest hitch in the case: no direct evidence. “There will be no one or two witnesses who will be able to tell you the entire story,” he said, nor “one or two documents that can reveal everything to you.”
He also tried to prepare the jurors for the most distasteful aspect of the government’s case, Sukhreet’s impending testimony against her own mother. “The government, if it had a choice, would prefer never to call a daughter of a defendant or any child of a defendant. This is not a pleasant situation or something that anyone likes, but Sukhreet Gabel will not be taking the stand simply because she is Judge Gabel’s daughter. The evidence will show that she is taking the stand because she is a witness in the case. She was part and parcel of the defendant’s scheme.”
Lawrence talked for more than two hours. It was ten minutes past noon when he completed his opening statement, too early to break for lunch. Since Bess, Andy, and Judge Gabel were each represented by a lawyer, there were three more opening statements for the jury to hear. The defense attorneys had decided among themselves that Jay Goldberg would go next.
He jumped up and in a booming voice told the jurors “why this unjustified prosecution was brought.” Andy leaned back in his chair with a broad smile on his face and watched his attorney, looking as if he were in a nightclub waiting for the entertainment to begin.
Goldberg delivered. Pacing back and forth in front of the jury, he sought to make the jurors so angry at the government for bringing the case that they would disregard all the evidence and return what he called “a repulsion verdict.” To accomplish this, he later explained, he needed to create “repulsion characters.”
Using one of the oldest tricks in a defense attorney’s bag, Goldberg intended to put Nancy Capasso “on trial” in the hope that it would make Andy more sympathetic and enable Goldberg to cast the trial as an extension of the Capassos’ bitter divorce instead of as “a federal case.”
“There was no fury as intense and mean-spirited as that of Nancy Capasso; no rage as venomous as that of Nancy Capasso once her love for Andy Capasso turned to hate and once her friendship for Bess Myerson turned to hate,” he said. “When the case is concluded, and you have heard the evidence, and the judge’s instruction, you will conclude that it is Bess Myerson and Andy Capasso who are the victims, and not, as the indictment wrongly charges, Nancy Capasso.…
“I pledge to you that you will not see one single, solitary believable witness, not one piece of documentary proof to support the claim that in the divorce case Andy Capasso resorted to any improper means, let alone sought to bribe one of New York’s most respected, one of New York’s most admired and revered justices of the supreme court, Hortense Gabel.”
Goldberg took the jury through the entire divorce case, arguing that Judge Gabel had cut Nancy’s alimony payments to shift “the money away from the greedy wife for the benefit of the children.”
Knowing that he was not going to win much support from the jury if he kept them much past one o’clock without lunch, he concluded by telling the jury that it would be their “solemn duty, because you will have no choice—it will be your responsibility to return a verdict of not guilty. Thank you.”
For the hour-and-a-half lunch break, Andy was led away to a jail cell behind the courtroom. Bess joined Post columnist Cindy Adams and Post reporter Ann Bollinger for a tuna sandwich on whole wheat in the courthouse cafeteria.
She had taken only a few bites from her sandwich when a woman approached her to wish her well. Bess chatted briefly about Hunter College with the woman, who said she was a fellow alumna.
After the woman left, Bess turned to Adams and Bollinger and sighed. “You can’t just tell people to go away,” she said.
When she finished her lunch, she lit a Marlb
oro cigarette and returned to the courtroom with a large cup of black coffee for Andy. They chatted quietly at the defense table until the judge returned and called the jury back in.
Next to present his opening statement was Bess’s attorney, Fred Hafetz. He stood in front of the jury box, his hands folded in front of him, and began delivering the statement that he had virtually memorized the week before.
Hafetz spent the first half of his opening statement making a plausible case for Sukhreet’s hiring. He outlined her lengthy academic credentials and her fluency in languages. But he also pointed out that Bess was unaware at the time she hired her that Sukhreet had recently been a patient at a psychiatric hospital.
He said that Bess realized that she had erred in giving Sukhreet a job when the New York Post ran a gossip item on October 18, 1983, but Hafetz asserted, “There is a world of difference between making an error of judgment and committing a crime. And what Bess Myerson did was to make an error of judgment, she realized, in hiring the daughter; but errors of judgment, thank God for all of us, for we have all made errors of judgment, are not criminal offenses. They are not acts committed with specific intent to commit unlawful criminal acts. They are what they are, errors of judgment.”
Hafetz then conceded that following the Post gossip item Bess wrote a “misleading letter” to Mayor Koch as “a kind of damage control” in an effort to avoid a potentially embarrassing political problem she feared the Post story would trigger.
Bess sat at the edge of her seat, her head tilted slightly toward Hafetz, so that the hearing aid she wore would pick up every word. But when he came to explain why Bess had disguised her identity by leaving messages with false names for Judge Gabel at the judge’s court chambers, Bess lowered her head in apparent embarrassment.
Describing Bess as a “complex person,” Hafetz dismissed that damaging evidence against his client as “oddities of behavior in her, as indeed there may well be in all of us. But oddity of behavior or occasional unusual behavior does not a crime make.”
Queen Bess Page 40