Queen Bess

by Preston, Jennifer

  Following that advice, Koch was a dutiful, docile witness on cross-examination. He did not volunteer anything. He sat there, blowing air in and out of his cheeks, remaining completely under control.

  Hafetz had him tell the jury that a commissioner did not have to conduct an “exhaustive search” to fill the job and had “absolute discretion” in hiring someone for a job under $20,000 a year. But the most important task for Hafetz that afternoon was to get the mayor to cast doubt on Herb Rickman’s testimony that he had walked into Koch’s office to talk to him about the New York Post article shortly after it appeared.

  The government lawyers knew it was coming.

  “I have no recollection of that incident,” Koch said calmly. Then he added, “It could have occurred, but I have no recollection of it.”

  On redirect examination David Lawrence tried to get Koch to remember the conversation with Rickman, reminding him of a City Hall press conference the mayor gave right after the Tyler report was released. What the mayor said that day could be interpreted to mean that he had, in fact, discussed the New York Post article and Bess with Rickman back in 1983.

  But Koch could not be budged, not to save Herb Rickman, not to save the government, not to save the government’s case. He was not going to testify to something under oath in court that he had not told the government in a sworn deposition in September of 1987.

  David Lawrence handed a transcript of the press conference to the mayor. “Does that refresh your recollection?” he asked.

  “Of what?”

  “As to when was the first time that you had a conversation with Mr. Rickman concerning the hiring of Sukhreet Gabel.”

  “It doesn’t add to my recollection over and above what I have testified to this morning.”

  Over the next couple of weeks the prosecution wrapped up its case by calling a series of witnesses, including city officials, to testify that Bess had not followed city hiring regulations to put Sukhreet on the payroll; former employees at the Department of Cultural Affairs to testify about Bess’s decision to hire Sukhreet; former employees of Andy’s to testify about his anger and obsession over his divorce; and close to a dozen witnesses who could corroborate parts of Sukhreet’s story.

  Among those corroboration witnesses was a doorman from Sukhreet’s apartment building who recalled the night in June 1986 when Bess appeared in the lobby, wearing a jogging suit, to meet Sukhreet for a walk around the block. The government arranged for Sukhreet’s old boyfriend, Tony Babinec, to fly in from Chicago to tell the jury that Bess had picked up the $66 tab for Sukhreet’s birthday celebration with her parents. And then, after Jay Goldberg had suggested in court that $66 was not enough for food and liquor for five people, the government called the woman who ran the Chinese restaurant. It was a low point in the prosecution’s case. As the woman testified through a Chinese interpreter about the 1983 prices of fried rice and spareribs, a few jurors giggled. One shook his head in disgust and turned his chair away from the witness, as if to say, “C’mon, give us some real evidence.”

  To establish the “affair of the pocketbook” motive, the government called a Mercedes-Benz salesman who testified that Bess had picked up a 380 SL roadster with a hefty $41,000 price tag. The government also called Andy’s loyal secretary to show that he had paid the bill on the Diners Club card used by Bess Myerson at the Chinese restaurant for Sukhreet’s birthday celebration.

  Some of the most embarrassing testimony in those final weeks came from Bess’s former secretary and her former city driver.

  An elderly woman with snow-white hair and short tight curls, Barbara Kennedy told the jury about the day in May or June of 1983 when she placed a call to Judge Gabel on behalf of Bess and left the message that Bess Myerson had called. “Ms. Myerson was very upset with me at the fact that I had left her name, and she said I was in the future to leave my name when I made calls and Judge Gabel was not available at the moment.”

  “Would you describe Ms. Myerson’s tone of voice when she told you this?” asked David Lawrence, hoping that Bess’s use of aliases would demonstrate “consciousness of guilt.”

  “She was very—she was angry with me and upset, and she spoke rather sharply to me.”

  Bess looked down, as if embarrassed, and started scribbling on a yellow legal pad.

  Another embarrassing moment came when her former driver, Nelson Pagan, told the jury about the time that Bess put a new card addressed to Judge Gabel on a bouquet of flowers that she had received and then sent them to Judge Gabel’s home.

  It may have been these embarrassing moments that motivated Bess to insist that her close friends and family not join her in the courtroom. On the day that Pagan testified, an old friend from Los Angeles, Roz Wyman, was sitting in the spectators’ section. Wyman, a Democratic power broker who had served on the Los Angeles City Council and had known Bess for years, was in New York for only a couple of days and wanted to lend Bess support. But Bess seemed uncomfortable in her presence. During a recess, she walked up to her friend and began explaining that she never would have given away flowers sent to her. “No one would have any reason to send me flowers in October, anyway,” Bess insisted.

  When the proceedings resumed, Bess struck a pose at the defense table, looking incredulous at the testimony of her former driver.

  A big, handsome man in his late twenties with black hair and a thick neck, Pagan was not allowed to testify about everything that Bess had said to him in the car. Keenan decided to strike from the record Pagan’s testimony that, following the publication of the New York Post story, he overheard Bess mumbling in the car, “I should have never hired her. I should have listened to him.” Pagan assumed she was referring to Herb Rickman. The prosecution, desperately trying to find some direct evidence, argued to keep Pagan’s testimony in the record because it supported Rickman’s story that he had advised Bess against placing Sukhreet on the city payroll. But Keenan refused and acceded to a defense request to strike his testimony; noting that Bess could have been referring to anyone, even “President Reagan.”

  Under the questioning of prosecutor Stuart Abrams, Pagan told the jurors next that he had twice driven Bess and Judge Gabel to dinner. The government did not have any evidence at all that Bess and the judge struck a deal at these dinners, but the prosecutors were hoping that the jury would believe a conspiratorial conversation might have taken place.

  Then Pagan told the jurors a story that went right to the heart of the prosecution’s case: Bess’s obsession with Nancy Capasso. One afternoon during the summer of 1984, he recalled, he was driving Bess somewhere near Fifth Avenue when she told him to stop the car. Then she pointed out Nancy Capasso walking along the sidewalk.

  “Did she say anything about Mrs. Capasso at that time?” Abrams asked.

  “… She was talking about the case as to how vicious this woman was and how she wants to destroy Andy.”

  “Did she say anything about Mr. Capasso’s property or wealth at that time?”

  “Well, she was just stating, you know, she [Nancy] wanted everything he had and she was trying to destroy him.”

  “Did Ms. Myerson make any comment about her feelings about the divorce case?”

  “Yes,” Pagan said. “She said that she is very evil, and she wouldn’t get a penny from her, you know, meaning him, over her dead body.”

  Bess smiled broadly and turned her head to face Andy. They broke into laughter.

  There was one final witness the defense was waiting for the government to call. His name was Tony Bailey, and he had worked as a driver for Andy and Nancy for a couple of years before Andy fired him in late 1983, while in the middle of his divorce. Andy accused Bailey of giving information to Nancy to use against him in his divorce case. After he was fired, Bailey found out that Bess had arranged to have his telephone changed to an unlisted number so that Nancy would have trouble locating him.

  Andy and Nancy shared Bailey until Andy became so involved with Bess that he had to hire another d
river to take care of Nancy. Bailey did not approve of Andy’s affair with Bess. Bailey was fond of Nancy, who had been kind to him. Bailey later said he found Bess to be cold, haughty, and imperious.

  Andy instructed him to drive Bess wherever she wanted to go. He remembered frequently picking Bess up at her apartment and driving her over to the West Side to WCBS-TV, where she was working as a television reporter at the time. He took her shopping on Madison Avenue and drove her to Rhode Island, Connecticut, and southern New Jersey to deliver speeches. He also delivered to her apartment divorce papers for Bess to read.

  The government would have liked Bailey to tell the jury about delivering the divorce papers because it would have helped support their obsession theory. And the government would also have liked Bailey to testify about a few other things that he had overheard Andy and Bess discuss in the car. Bailey had the strongest evidence of all against Andy and Bess.

  According to Bailey, Andy once said, “I can buy any judge.” Bailey also supposedly heard Bess say, “I can do anything I want with respect to this litigation.”

  Considering that the government needed every piece of evidence it could get, it seemed strange at first to many reporters covering the trial that the prosecution did not intend to call Bailey at all.

  But David Lawrence did not want to take the chance of putting Bailey on the stand. He worried that the defense lawyers were laying a trap for him.

  For one thing, Jay Goldberg was prepared to use a transcript of a telephone conversation between Bailey and Nancy just before her 1985 divorce trial. On the tape Nancy and Bailey are gleefully talking about how Andy would have a “heart attack” when he saw Bailey at the divorce trial prepared to testify against him.

  But what convinced Lawrence and the other prosecutors and investigators involved in the case not to take a chance with Bailey on the stand was not so much his connection with Nancy Capasso. They learned that Bailey had an attorney at the time. The attorney was a former partner of Jay Goldberg’s, and Andy Capasso was paying the bill.

  The day after the prosecution rested its case, the defense began. It lasted a total of one hour and forty-five minutes. Fred Hafetz brought one witness, Mayor Koch’s former counsel, Pat Mulhearn, to the witness stand to tell the jury that Rickman never told him about his discussions with Bess Myerson in 1983. Then, to disprove the government’s theory that money was a motive in the case, Hafetz read into the record a list of Bess’s assets, totaling millions of dollars. He did not call any character witnesses because he did not want to run the risk of the prosecutors asking them if they had heard about Bess’s shoplifting.

  Jay Goldberg called no witnesses. He introduced a couple of documents, including a long computer printout that showed that Andy Capasso had paid his divorce lawyers $480,600 to represent him in the divorce case. He thought it would show that, if the divorce case was fixed, he could have “gotten a firm out of the yellow pages.”

  Michael Feldberg brought a series of character witnesses to testify about Judge Gabel’s reputation for honesty and integrity. Former mayor Robert Wagner took the stand, followed by former U.S. housing and urban development secretary Robert Weaver, former city council president Paul O’Dwyer, and Robert Caro, the author of the Robert Moses biography The Power Broker: Robert Moses and the Fall of New York.

  Caro was the most eloquent witness, telling the jurors how Judge Gabel had a reputation “for honesty, for courage, and for having been unusually concerned for thirty years about the plight of poor people in the city of New York.” He said that Hortense Gabel had been the only one “who would listen to the poor” when Robert Moses’s slum clearance project was forcing tens of thousands of poor people out of their homes. “Hortense Gabel was the only official in the city government who was interested in what happened to them,” he said.

  Now that both sides had finished presenting their cases, no one mattered to Bess Myerson but the twelve strangers sitting in the jury box. The words of encouragement from friends and others who showed up in the courtroom to lend their support were no longer relevant. One afternoon a former Miss America contestant, Miss Detroit of 1957, who described herself as the “other Jewish beauty queen,” sat in the back of the courtroom. She was too shy to introduce herself to Bess, but she walked up to one reporter to tell her, “I think it’s a terrible injustice, a terrible injustice.”

  When court recessed for the day, the reporter ran into Bess Myerson as she was heading down a stairwell. “Miss Detroit of 1957 was here today,” she told Bess. “I told her to introduce herself to you, but she didn’t want to. She said she thought this was a terrible injustice.”

  Bess Myerson stopped for a second and glared at the reporter as if to say that she was tired of hearing words of encouragement. Then she lit a cigarette, opened the door to the stairwell, and on her way out said, “She’s not the jury.”

  It was Tuesday, December 13, less than a dozen shopping days before Christmas. The holiday season had once again turned Manhattan into a glittering, magical place. Twinkling lights hung across Fifth Avenue. The Salvation Army volunteers, dressed as Santa Claus, rang bells at street corners for donations. Choirs gathered in building lobbies. It was a time of goodwill and peace toward men—the perfect season, the defense lawyers said half-jokingly, for a criminal case to go to the jury.

  Inside the courtroom that morning, where closing arguments were to begin, however, there was no sign of the holiday season. The room was darkened by a gray sky that hinted at snow. After eleven weeks of testimony almost everyone involved in the case seemed tired and eager for the trial to come to an end.

  Stuart Abrams stood up to deliver the closing argument for the government. A shy, polite, scholarly lawyer, he had an earnest, boyish manner that seemed to command the attention of the jurors as he sought to summarize the government’s complex, circumstantial case following testimony from thirty-four prosecution witnesses. His straightforward style was a sharp contrast to the ridiculing theatrics of the defense team.

  His voice was tinged with anger and indignation as he addressed the jury, punctuating his points by striking his fist in the air while pacing back and forth along the length of the jury box. It was as if he was trying to instill in the jurors his own sense of personal outrage over the “overwhelming evidence” demonstrating that Bess had abused her public office and manipulated the emotionally fragile daughter of Judge Gabel out of “greed and vengeance.”

  To underscore the weight of the evidence against the defendants Abrams used the words “no doubt” seventeen times during the four-and-a-half hours he addressed the jury as he recounted the critical facts of the government’s case.

  “There is no doubt that in 1983, when the divorce case came before Hortense Gabel, all of a sudden Bess Myerson swoops in … and … scoops up Sukhreet Gabel. In fact there is no doubt that the same day Sukhreet Gabel got her job with the Department of Cultural Affairs, Justice Gabel … told her law clerk she had granted Mr. Capasso’s motion” to reduce his alimony.

  “We are here to decide whether or not city jobs get used to pay bribes or whether they get assigned fairly,” Abrams said in a stern voice.

  He took the jury through the entire case, pointing frequently to a five-foot-high chart set up on an easel that listed the events as they had unfolded in 1983. With the date of each event—from the beginning of the divorce action to Sukhreet’s hiring—clearly marked and the names of the three defendants highlighted in different colors, it was easy for the jury to see how Bess, Andy, and Judge Gabel had interacted that year. Abrams was hoping that the chart would diagram for the jury how a conspiracy to commit bribery, and not mere coincidences, had brought the defendants together that year.

  As Abrams meticulously laid out the government’s case, Bess sat stone-faced at the defense table, alternately watching Abrams and then the jurors, who were listening intently to the prosecutor. This would be the first and only time they would hear the government tie together all of its circumstantial evidence into
a compelling argument that Bess had bribed Judge Gabel by hiring Sukhreet in return for the judge’s lowering Andy’s alimony payments.

  Abrams’s closing was so powerfully persuasive and charged by his own indignation at the crimes he alleged that one of the jurors later said she was moved to tears. Another juror, who was leaning toward acquittal, said nonetheless that he thought for sure that Abrams’s summation would compel the other jurors to vote to convict.

  After Abrams finished, the defense team looked visibly worried for the first time since Sukhreet had left the stand. “That was a ten, a ten,” Jay Goldberg told reporters somberly in the courthouse corridor after court was adjourned for the day. Andy’s lawyer was scheduled to appear next in front of the jury to deliver his summation.

  The next morning, in a closing argument filled with ridicule, sarcasm, and one-liners that kept everyone in the courtroom laughing uproariously, Goldberg worked the room like a borscht-belt comedian.

  Comparing the government’s witnesses to bad vaudeville acts, Goldberg said the prosecution’s case reminded him of “The Gong Show.” “The jurors should have a button on their chairs to sound the gong on witnesses,” he said to laughter from the jurors and the spectators.

  He said that the government case was like a television soap opera. “Never have so many days, so much time, energy and taxpayers’ money … been spent on such trivial pursuits.…

  “How important was it that you learn Bess Myerson didn’t want people to know she was sleeping with Andy Capasso?” he asked the jury.

  “Was it important for you to know that Bess Myerson tried on Nancy Capasso’s bathing suits or that Bess Myerson threw out Nancy Capasso’s potted plants?”

  He blasted the prosecutors for manipulating Sukhreet, this “sick and disturbed woman,” and for giving her “a forum for the unfair destruction of her parents.

  “They take this disturbed girl in 1986, a girl who has a self-professed love-hate relationship with her parents and with Bess Myerson.… A girl who has no friends.… They take this woman … and they put her up to taping her own parents.…