“There has got to be a level of decency beneath which even an advocate will not sink in a quest to make a case.… The prosecutors, in their quest to make a case, struck blows so low that their knuckles scraped the pavement.”
Returning to his tactic of blaming Nancy, he asked the jurors not to mistake Andy’s ex-wife for “some virginal victim.”
“Pity poor Nancy,” he said, his voice dripping with sarcasm. “She couldn’t make ends meet with a piddling $2 million a year.”
Then, in his very best Brooklyn accent, Goldberg delivered his best line of the day. “Where I grew up in Brooklyn, we have an expression,” he said, pausing for dramatic effect. “Don’t make a federal case out of it.”
The courtroom erupted in laughter. Smiling broadly, Linda Berardi, the juror Goldberg and his wife were most hopeful would vote to acquit, nodded her head in agreement.
Late that afternoon Michael Feldberg changed the tone in the courtroom with his quiet, serious manner. “Is there any direct proof of a secret agreement?” he asked the jurors. “Is there any witness who came before you and said, ‘I saw it, I heard it, I smelled it, I tasted it’? The answer to that is no.”
Then, continuing his summation the following morning, he tried to evoke sympathy for his client. He walked behind the judge’s chair and, resting his hands on her shoulder, looked up at the jurors and said, “Don’t convict this good woman, ladies and gentlemen. If you do, God forbid … in the end you will say, ‘Oh my God, what have I done?’”
Fred Hafetz had worried throughout the trial that the jurors wouldn’t like Bess. The government had presented a succession of Bess’s former employees as witnesses, and they had described her as a demanding, imperious, and inconsiderate boss. Having concluded as a result of that testimony that he wouldn’t win any sympathy for Bess, Hafetz drafted a closing argument intended to tear apart the government’s case fact by fact and cast doubt on virtually every bit of circumstantial evidence against Bess.
“If Bess Myerson were going to use Sukhreet Gabel as the instrument for a bribery conspiracy,” he asked, “why do it in such a public, identifiable way? … Why make her special assistant? Why let her have cards printed up to be given out to the world as ‘special assistant to the commissioner’?”
Then, addressing what he feared would be the most damaging evidence against Bess—her use of aliases when she left messages for Judge Gabel—Hafetz once again referred to Bess’s “strange behavior. It is eccentric behavior. But criminal cases are not made of eccentric or strange behavior.”
Bess leaned back in her chair and laughed aloud at this. But as Hafetz brought his summation to a close, she looked somber when he reminded jurors of the importance of their decision to Bess’s life.
“At this point in Bess Myerson’s life the most important thing—the most important event—from the time of her birth until now will be the decision that you will make in this case.”
Throughout the trial Judge Keenan did nothing to camouflage his opinion about the government’s case. It was apparent to everyone in the courtroom—the defendants, the spectators, the press, even members of the jury—that he thought little of the government’s case and the way the prosecutors were handling it. He repeatedly told the prosecutors that he did not want his courtroom turned into “a daytime soap opera,” and he frequently snapped his criticisms of them in front of the jury.
While his rulings had been straight down the middle, favoring neither prosecution nor defense, his expressive face had revealed whenever he was annoyed, amused, or disgusted. More than once he had rolled his eyes upward and swiveled his chair to face the courtroom’s paneled wall when a prosecution witness was testifying.
Before the case went to the jurors on Monday, December 19, Keenan instructed the jurors on the laws of conspiracy, bribery, mail fraud, and obstruction of justice—the legal framework from which they were to find Bess, Andy, and Judge Gabel guilty or innocent.
In what Jay Goldberg would later say was the defense team’s luckiest break in the case, Keenan also defined circumstantial evidence for the jurors in a way that may have suggested that such evidence carried less weight than it normally carries in federal court.
Then the defense got what it considered a second break in the case when Keenan broke with tradition that morning and chose the foreman of the jury. He picked juror number nine, Linda Berardi, to lead the deliberations. In federal court cases in Manhattan judges usually select juror number one as the jury foreman. In this case, however, that juror, a Cuban exile, did not speak English well. But Keenan’s selection of Linda Berardi as jury foreman surprised both sides, because both the prosecutors and the defense lawyers had concluded from watching Berardi’s reaction to the testimony that she had little use for the government’s case.
Judge Keenan did not explain his choice, but Berardi later told Jeannie Kasindorf of New York magazine her theory about her selection. “I think the judge chose me because he saw I was pro-defense,” she said. “I think he tended to favor the defense and he saw there was no case and that was part of the reason he chose me. There were moments between myself and the judge during the trial when I felt him glancing at me. I felt at certain moments that he knew what I was thinking.”
There was another person in the courtroom whom she felt in sync with at certain moments and who laughed when she laughed. That was Andy Capasso. “There’s something warm about him,” Berardi told Kasindorf. “He’s got a nice sense of humor.… He seemed to have the same family values I have.”
As the jurors filed out of the courtroom that morning to begin discussing the case among themselves for the first time in weeks, Jay Goldberg was smiling. Whenever he worried about a conviction during the ensuing four days of jury deliberation, Goldberg would repeat what he had come to call his mantra: “Linda will never say Andy is guilty. Linda will never say Andy is guilty. Linda will never say Andy is guilty.”
Returning to the jury room following Keenan’s instructions, the jurors revealed to each other for the first time what they thought of the case. Their initial poll made it clear that a consensus would not be reached easily. Five jurors thought Judge Gabel was not guilty, three said she was guilty, and four were uncertain. In Andy’s case, four jurors favored acquittal, three thought he was guilty, and five were uncertain. And three jurors believed Bess should be found innocent, three thought she was guilty, and six were unsure.
Although Berardi felt strongly that the government had not proved its case against the defendants, she signaled in the poll that she was undecided. As jury foreman she believed that it was important in the beginning of the deliberations to be the “gatekeeper” and the “facilitator.”
After reading the indictment for the first time, the jurors began discussing the government’s central charge against the defendants, conspiracy to commit bribery, and the battle lines were drawn: Nelson Marty, a forty-four-year-old electrical engineer, and Lucy Gray, a sixty-three-year-old computer operator, argued for conviction. Daniel Handley, a quiet and aloof forty-one-year-old unemployed actor who had spent the past few months reading a book in the corner of the jury room during breaks, surprised his fellow jurors with his forceful, emphatic arguments for acquittal.
Handley later said that Sukhreet’s testimony against her mother had deeply disturbed him and as a result he had discounted much of what she had said. He also said the soap opera aspects of the case had turned him off: “I guess you could take Joan Collins’s character on ‘Dynasty’ and make her into Bess, and people have very strong feelings on those types, but that’s nothing you can judge a crime on.… The more they just painted an ugly personality picture, the more I just started pulling back; they were pushing that idea too hard.”
Joining Handley in his argument for acquittal were Zenaida Alvarez, a fifty-seven-year-old administrative assistant in a bank, and Gerald Purcell, a sixty-four-year-old retired postal worker who thought that the key prosecution witnesses—Sukhreet, Herb Rickman, and Shirley Harrod—were a
ll lying.
Unable to reach a consensus that afternoon, the jury, now sequestered, boarded a bus that took them to a midtown Manhattan hotel for the night. They returned to the courthouse at nine o’clock the following morning and resumed deliberations. With the jurors still unable to reach a decision on the conspiracy charge, Berardi, as the foreman, suggested they consider the obstruction of justice charge that had been filed only against Bess. The charge stemmed from Sukhreet’s testimony that Bess had told her to keep her mouth shut about her hiring after the federal investigation had begun, during a late-night walk around the block in June of 1986. Since the charge was based virtually entirely on Sukhreet’s testimony, most of the jurors dismissed it outright with little discussion.
Before returning to the conspiracy charge, Berardi decided it was time to make her opinions known. “I had explored some of the evidence, and I felt comfortable saying not guilty,” she later said. Handley was pleased to have her as an ally.
She requested that the judge provide her with a flip chart and felt-tip pens so that she could illustrate her arguments for an acquittal. She diagrammed three columns—labeled “innocent,” “reasonable doubt,” and “guilty.”
“Almost none of us feel complete innocence—most of us are here in the middle,” she remembered telling the jurors at the time as she pointed to the chart. “We feel they are guilty of some things. We feel they are not guilty of other things, but we still have to come in with a not guilty verdict, because we’re not beyond a reasonable doubt.”
While the chart convinced some jurors to switch their votes from undecided to not guilty, others switched their votes back and forth between guilty and not guilty. Several jurors brought up the possibility that Judge Gabel was the mastermind of the conspiracy, and juror Sheila Adler remembered that one juror suggested that Gabel was “pushing all of the buttons.” By late Tuesday night, the second day of deliberations, three jurors who had been undecided on the conspiracy charge had moved their votes into the not guilty column. Berardi was pleased that she was making some progress.
By the following day, several jurors concluded there were possibly reasons for Judge Gabel to have lowered Andy’s alimony payments other than getting her daughter a job. They also concluded that Bess might have hired Sukhreet based on her résumé. With many of the jurors now conceding these points, the element of reasonable doubt about a conspiracy had been introduced into the deliberations, and the defendants could be convicted only if the jury was convinced of their guilt beyond a reasonable doubt.
Handley even sought to explain away what some jurors considered suspicious behavior by Bess, such as wearing sunglasses the night she walked around the block with Sukhreet. Celebrities, he said, wear sunglasses at night because they don’t want to be recognized. They use aliases when they make telephone calls, he added, because they want to protect their privacy.
And Bess’s misleading letter to Mayor Koch about Sukhreet Gabel’s hiring, Handley and Berardi argued, was simply a matter of political expediency. “She did not out-and-out lie really terribly; she was just apologizing publicly for an error in judgment,” Berardi recalled telling her fellow jurors. “I would send a letter, too. I would do something to bandage it.”
By Wednesday night, the end of the third day of deliberations, most of the jurors favored acquittal. Only two jurors were inclined to vote to convict—Nelson Marty, the electrical engineer, and Lucy Gray, the computer operator.
By lunchtime of the following day, Thursday, December 22, all but Lucy Gray were prepared to vote for acquittal on all charges. Berardi had persuaded Nelson Marty to vote for an acquittal that morning after asserting that it was not his fault that the government had not provided him with enough quality evidence to find them guilty.
Berardi, however, had no luck in convincing Gray. “Tell the judge it’s a hung jury, Linda,” Gray told her.
“Are you kidding?” Berardi replied. “I am not going to embarrass myself by going out there and telling the judge that on such a high-publicity case.”
The tension in the jury room was palpable. Jurors began shouting at each other. Berardi demanded that Gray explain why she believed they should be found guilty. “This is all wrong,” Berardi told her angrily, reminding her that the defendants were entitled to a presumption of innocence. “You should be standing up and trying to prove guilt to me.”
But Gray would not budge from her position that afternoon, nor would she explain her vote. “They’re guilty. They’re guilty,” is all she would say.
On that Thursday afternoon, the fourth day of jury deliberations, the hot and stuffy courtroom was packed with reporters and spectators milling around, waiting for a verdict. No one had any idea what was going on in the jury room, but everyone agreed that lengthy deliberations were not a good sign for the defense.
With each passing hour Bess grew more worried about her fate. She spent most of the time seated at the defense table with Andy and his sixteen-year-old son, who had spent each day of the deliberations with his father in the courtroom. Occasionally Bess would wander into the press section or the corridor to chat with reporters. To one reporter she compared herself to the central character in the movie A Cry in the Dark, about an Australian woman, portrayed by Meryl Streep, who was wrongfully accused of murdering her child.
A few of her friends came down to the courthouse during deliberations to offer her encouragement and support. Dr. Ted Rubin and his wife, Ellie, were there, along with Esther Margolis, who had published the story of Bess’s Miss America triumph, and Bess’s longtime friend Sandy Stern, who had won a Bess Myerson look-alike contest sponsored by New York magazine.
Noticeably absent was Bess’s daughter, Barra, who remained in California working on her television show. Bess said she understood why her daughter couldn’t be there, and in any event, Bess had her six-year-old granddaughter, Samantha, staying with her that week. When she returned home from the courthouse each night, Bess said, her granddaughter’s presence helped take her mind off the deliberations.
The Gabels sat at the other end of the defense table during jury deliberations. Judge Gabel and her husband would occasionally doze off for a half hour or so. Dr. Gabel was deeply distressed that it was taking the jurors so long to return with a verdict. “I thought that after they heard what Mayor Wagner and the other people said they would return quickly with a not guilty verdict,” said a despairing Dr. Gabel.
Judge Gabel was also worried that the deliberations were dragging on. Perhaps that is why she decided to call Sukhreet at four o’clock that morning to ask her to join her at the courthouse that day.
For days Jay Goldberg had been trying to convince the Gabels’ lawyer, Michael Feldberg, to get Sukhreet to return to the courtroom and sit in the spectators’ section. Goldberg was hoping that the jurors would spot her if they returned to the courtroom for further instructions from the judge or to listen to the court reporter read back parts of the testimony. He was hoping that seeing her in the courtroom would remind the jurors of how repulsive it was for a daughter to testify against her mother.
“You tell me whether any old-time trial lawyer wouldn’t do this,” Goldberg later said with a sly smile. “I said to Michael Feldberg, ‘Ask Milton Gould [the senior partner at his law firm] if any war-horse wouldn’t see this as the greatest fucking move.’ I wanted her in the first row during the judge’s charge.”
Worried about Bess’s reaction to Sukhreet’s presence, Hafetz was adamantly against Sukhreet’s returning to the courtroom. Feldberg wasn’t too excited about the prospect, either. There wasn’t much they could do about it, though, when the judge called her daughter before dawn that Thursday morning to ask her to join her in the courtroom at ten.
At fifteen minutes past ten that Thursday morning, Sukhreet, dressed in a gold brocade suit, walked into the courtroom. Goldberg was delighted. With a big smile on his face, he stood up and said, “Oh, Sukhreet is here. Have her sit in the front.”
David Lawrence and Tony
Lombardi were furious. Since Sukhreet had stepped down from the stand, she had been appearing on radio and television talk shows, including the nationally broadcast “Larry King Live.” On the very day that Stuart Abrams was delivering his closing argument, Sukhreet was on the television show “People Are Talking,” undergoing a complete cosmetic and fashion makeover. And while testimony was still being given by government witnesses, Sukhreet made her singing debut at the El Morocco nightclub in a zebra-striped dress, belting out the song “Let the Punishment Fit the Crime.”
“We expected some mugging for the camera,” Lawrence said later. “Did we think she would go to the El Morocco? No, we didn’t think she would do that.”
When reporters surrounded Sukhreet that morning to ask why she had decided to return, she told them she had been invited. “I learned I was welcome,” she said with a broad smile. “I’m glad to be here. I didn’t want to show up where I wasn’t welcome. I’m on coffee duty. I’m going to get coffee for Mummy.”
Bess was not happy about Sukhreet’s presence. Walking over to the other end of the defense table, she said to Judge Gabel, loudly enough for reporters to hear, “I don’t want to talk to Sukhreet, so don’t bring her over. I love you, dear, but I don’t want to talk to her.” The judge nodded her head in understanding.
When the jurors filed back into the courtroom that morning to ask the judge about a legal point, Sukhreet sat at the very back of the press section, out of the jury’s sight. But the second time the jury returned to listen to the court reporter read back testimony, Sukhreet was seated at the front of the spectators’ section, in full view of the jury.
Sheila Adler was the first juror to spot her. She turned and whispered to the juror next to her that Sukhreet was sitting in the courtroom. As the word spread to the other jurors, several of them covered their mouths to hide their laughter. Taking care to make sure the entire jury spotted her, Jay Goldberg rose from his seat and elaborately looked over at her. Andy was laughing so hard at Goldberg that he bit the back of his hand to stop.
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