“Generally speaking,” he said, “and I hate like hell to admit this, but generally speaking, the guy who’s likeliest to try the best case is the lawyer trying it. Not some cop — no offense, John — who’s even there, and certainly not some other bastard, isn’t even there. You start lookin’ over your shoulder, Terry, taking free advice, worrying what people think, you’ll get in the shit.”
“Yeah,” Gleason said, “but the thing of it is, I am worried.”
“Why?” O’Malley said.
“Because Fred,” Richards said, “Fred doesn’t know squat about trying cases, but he’s identified a problem and there’s no doubt about that.”
“What’s the problem?” O’Malley said. “Something I can do?”
“Nope,” Gleason said. “Nothing anyone can do. John Morrissey’s come up with this insanity defense. The only witness we’ve got who could even come close to rebutting it — and he probably couldn’t do that — has come down with a bad case of testicular insufficiency.”
“Ah,” O’Malley said.
“Well,” Gleason said, “it’s as bad as it sounds, but it’s no worse’n it was. He couldn’t’ve done much anyway, and if Morrissey beats me, well, I’m not the first guy he’s beaten, and I certainly won’t be the last. And, quite frankly, I never wanted put this punk on the stand in the first place. He’s got a lot of weasel in him. And he’s gotten a reward. So already, before he started tossing, turning in his sleep, I had big problems letting Morrissey loose to cross-examine him. Now he’s got cold tootsies, and he’s jittery, and Big Mo can spot jitters like a wolf smelling fresh lamb. So, why do I need this? So John and I decided: Well, let’s try it slippery-stones. If you’ve got to put flat stones down in the creek to get across, the water’s gonna make them slippery, and the more of them you put down, the likelier you make it that you’re gonna slip on one. So, if I can get away with it, I’m not gonna put El Ratto on the stand. And if I can’t, I still might not. That’s why I’m doing this. But Fred is gonna be pissed off. And if I lose, quite loud.”
“Fuck him,” O’Malley said. “On to more important matters. First thing: Who’sa broad?”
“What broad?” Gleason said. “I didn’t see no broad.”
“In the audience,” O’Malley said. “I seen her come in when I did. Just ahead of me. Young. Really beautiful. Gorgeous-looking kid. Looks like a mulatto. Sat up in the front row. Next to this old couple. Like they knew each other.”
“Got me,” Gleason said. He looked at Richards. “This after, all right? Check that out? While I got my back turned?”
“Naughty, naughty,” Richards said. “You’re a married man.”
“I’m a worried one, as well,” Gleason said. “John Morrissey’s got it in mind to run pool on me. At least I’d like a little notice, where he’s getting any cues.”
“Point well taken, Terry,” Richards said. “Should’ve thought of that. Tomorrow morning, maybe, we’ll put June out at the door, couple metal detectors? Say we know they all got checked, when they came in downstairs, but we’re checking anyway. Get IDs from all the folks — get ’em all pissed off, and see what that smokes out.”
SEPTEMBER 13, 1978
14
Judge Bart emerged from chambers at 10:05. Spectators filtered slowly into the back of the courtroom. James Walker had been brought down with the other three defendants on John Bigelow’s promise to the court that his client “says he’ll behave himself, your Honor, and that’s all I can represent.” The jury box was empty. The bailiff directed all to draw near and give their attendance, promising that they would be heard. The judge sat down. He said: “Good morning. Yesterday I decided not to bring the jury down until I had put a minor matter to the Commonwealth and the defense, on the record. This morning I was informed that Mister Morrissey wishes to file a written motion, and be heard on it, so yesterday’s was a prescient decision on my part.
“What concerned me,” he said, “was the information I received from the court officers to the effect that they propose to take the jury, or as many of them as wish to go, to a Red Sox game. In my experience, at least, nobody actually at Fenway Park ever concerns him or herself with so trivial a matter as a first-degree murder case, so I think it unlikely that any of the jury will be contaminated by attendance. But I wanted to have it on the record, in case any of you think otherwise. And, of course, if you do, then that will be the end of it.”
John Bigelow stood up. “Your Honor,” he said, “this is more or less just out of curiosity, because I can’t imagine why my client or I would have any objection to this jury going to the ballgame. But I do have two questions. The first is: How the dickens are you getting them in? This is the hottest ticket in town.”
The judge smiled. “I don’t know, Mister Bigelow,” he said. “The court officers tell me they can lay their hands on a block of tickets. I decided a long time ago never to ask court officers how they manage such magical things.”
Gleason stood up. “Is there any chance they could get six or eight for us, your Honor?” he said.
Bart shook his head. “I’d think not, Counselor,” he said, grinning. Gleason sat down.
“My second question,” Bigelow said, glaring at Gleason, “is whether the jury knows that the Court has given counsel veto power on the issue of whether they get to go to the ballgame. Because, if you have, I think you’ve put us in one hell of a spot, and I hope it doesn’t happen again.”
Bart’s face hardened. “The answer to your question is: No, Counselor. Now,” he said, surveying the lawyers again, “I’ll put my original question: Any one of you object to the jury attending the ballgame? I see no objection, and hear none. Jury can go to the ballgame.
“Now,” he said, “Mister Morrissey has a motion?”
Morrissey, burly in a dark grey suit, stood up and walked to the clerk’s desk. He placed one sheet of paper before the clerk and returned to counsel table. He picked up copies and delivered one to each of the other lawyers. The clerk read the paper, made a notation on it, and handed it up to the judge. The judge scanned it and put it down. He folded his hands. “Mister Morrissey?” he said.
Morrissey cleared his throat. “Your Honor,” he said, “as we all are aware, there has been a major question in this case since its inception. The question is now by way of becoming a problem, and I think we have to deal with it — this Court has to deal with it — before it becomes any larger. Because it’s a serious problem.
“The Commonwealth secured its indictments on hearsay. Now I’m well aware that the grand jury is within its rights to return charges on pure hearsay, if it believes the hearsay reliable. And in this instance, clearly, that is what they did. But the petit jury is not entitled to base its verdict in any way upon hearsay, at least as the term is traditionally understood.
“The grand jury minutes, which Mister Gleason promptly furnished as soon as the defendants had counsel, those minutes consist almost entirely of testimony delivered by Lieutenant Richards — for whom I have the utmost respect — reciting, or reading from reports of information given to him from confidential informants. I have no reason whatsoever to doubt the Lieutenant’s veracity in telling that grand jury that he believed the statements he was relaying to be truthful and accurate.
“But I can’t cross-examine the Lieutenant on the underlying truth and veracity of those statements, your Honor. To do that, I need to have before me, up there on the stand, the person or persons who made them to him in the first place. It may very well be that that person or persons would be able to substantiate every detail of what he or she told the Lieutenant, and that my client and I after interviewing them would either decide not to expose them to the jury, or deeply regret it if we decided otherwise.
“Point is, your Honor, neither my client nor I can make that decision, precisely the sort of critical strategy decision that we have to make, if he’s to have a fair trial, without knowing who those informants were — their names — and their current whereabouts.
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“Now,” he said, opening his coat and hooking his thumbs in his belt, “I listened very carefully, very attentively, to my learned brother’s opening statement yesterday. Just as I listened, in the pre-trial hearings on this motion I’m renewing now, to his statements made at those. In July, when I asked for the names and addresses of all possible witnesses — anyone he knew of who might have any information germane to the trial of this case, whether probative of innocence or probative of guilt — Mister Gleason put me and this Court off. He said that he would timely serve a list of prospective witnesses as soon as it was ready. And he did. And it was not helpful.
“When he made his opening,” Morrissey said, “when he made his opening statement yesterday, the roster of witnesses he gave mirrored the one he served timely. Which is of course to say that he has made a decision — he and Lieutenant Richards have made a decision — not to call any of the informants — however many there are — to testify in this case. So that is what prompts me to renew, this morning, my motion for those names and addresses.
“Your Honor,” Morrissey said, “we have a definite Brady v. Maryland problem here. Again emphasizing that I in no way question the integrity of the prosecution team, that I know them to be fine, upstanding gentlemen, from long experience, and that I have had — except for this exception — only the finest and most cooperative relationships with them, I have to point out to the Court that if any of those informants was lying, if any of them has now changed his or her mind and now has exculpatory evidence to offer, evidence that would suggest to the jury that my client was indeed — as he also claims, along with his alternative defense of incapacity — framed, I need to have access to it. If Mister Gleason doesn’t want to call these anonymous accusers, if he doesn’t want to put himself in the position of propounding their testimony to the jury in this case, well, that’s certainly his right. I think his choice to exercise that right may imply something about his — and the Lieutenant’s — current estimation of their veracity, but that’s another matter. Point is, and I say it again, if he’s not going to produce these faceless nameless accusers, and let us cross-examine them, at least give us the opportunity to decide for ourselves, as is our right, whether to expose them ourselves.”
“Mister Gleason,” Bart said.
Gleason stood. “Your Honor,” he said, “I am sensible of my brother’s concerns. My natural inclination would be to accede to his motion. Indeed, I have known Mister Morrissey so long, and have opposed him so many times, that as he will, I’m sure, agree, discovery motions in our cases have become formalities. So, why won’t I give him the names? Simple: we have four defendants on trial here. By order of this court, on agreement by counsel, the indictments were retyped from the originals, which accused seven persons, three of them John and Jane Does. This Court, and each of the attorneys representing defendants here, is aware of the background of this case. In the interest of fairness to these defendants, at this trial, the Commonwealth not only agreed to expunge the Does, lest this jury conclude that others are still at large, and dangerous, but in fact proposed the amendment. As Mister Morrissey and his colleagues on defense are aware, and as this Court is aware, the Commonwealth remains concerned that such persons are still at large, are armed and dangerous, and may retaliate against persons whom they know to have provided us with information. Or, against officers of this court.
“Now,” he said, walking around the prosecution table to the front, “I will state for the record, and I will, if requested, either ask Lieutenant Richards to take the stand, or file an affidavit, stating that all our evidence, with the exception of the names and current whereabouts of informants, has been provided, lock, stock and barrel, to each defense attorney. We don’t have anything else. If there’s anything that the jury might even remotely deem exculpatory in our evidence, defense counsel has it. All they need to do is read it.
“The law is well settled that the trial court and jury may not look behind the motives of the grand jury issuing indictments. The grand jury may indict on whim, in anger, or in appalling ignorance, and woe betide the prosecutor who conducts a public trial of an indictment so returned. But unless the prosecutor chooses not to proceed on an indictment, after its return, unless he decides to nol pros the charges, then the only issue is whether the prosecutor has sufficient evidence to back up the grand jury’s charges. Not whether it’s the same evidence. Not whether it’s all the evidence. Not whether the grand jury was wise in its indictment. No, the issue at trial is whether the Commonwealth can back up its charges. Whether it has the goods.
“Mister Morrissey’s question,” Gleason said, “Mister Morrissey’s question today was raised by him, and raised by each of the other counsel, at hearing on the motions to suppress the physical evidence that we seized in the cabin. The issue then was whether the Commonwealth had probable cause sufficient to justify those seizures. The Court found we did. I submit Mister Morrissey’s motion today falls under the heading of ‘Matters already decided.” Against him. That he has no right, though every reason, to attempt to determine what direction or what strategy the Commonwealth shall take in this prosecution. His motion should be denied.” Gleason returned to his chair and sat down.
Klein and Veale were coming to their feet. “Miss Veale,” the judge said, “Mister Klein. And Mister Bigelow, as well. I assume you wish to join in Mister Morrissey’s motion?” Each of them nodded. “Record will reflect,” Bart said, “that each of the defendants renews his or her motion to compel disclosure of names and addresses of confidential informants known to the Commonwealth. Court has carefully considered arguments of counsel on each side of the issue. Court finds no substantial reason to believe that the Commonwealth is withholding, or has in the past withheld, exculpatory matter. Court further finds merit in Commonwealth’s contention that protection of innocent persons is a legitimate concern in this matter. The motion to compel disclosure is therefore denied, as to each of the defendants. Objections are recorded, and exceptions noted.” He handed Morrissey’s motion down to the clerk. “Bring the jury down,” he said.
Klein stood up. “Your Honor,” he shouted.
“Oh, dear,” the judge said. To the bailiff, whispering into the courtroom telephone at his desk, the judge said: “Hold it, Harry. Don’t bring the jury down. Mister Klein wants to declaim.” To Klein he said: “Okay, Mister Klein, what’s on your mind?”
“I haven’t a written motion,” Klein said. “The reason I haven’t a written motion is that I didn’t know the grounds for it until I got off the elevator half an hour ago. My motion is for mistrial on the grounds of the Commonwealth’s prejudicial action in installing metal detectors and searching spectators outside this courtroom this morning.”
The judge looked at him and nodded. “Yes,” he said, “I saw that when I went into chambers this morning. I must admit, Mister Klein, that while I didn’t think a great deal about it at the time, I did share your basic curiosity. Why you doing that, Mister Gleason?”
Gleason stood. “Basically, your Honor,” he said, “for the same reason we’re so tight-lipped about the identity and location of informants. I can go into further detail if you wish, but we do have the media here, and I’m not sure whether it might not be better to review it with counsel in camera? But I’m agreeable, either way.”
Bart rubbed his chin. “Yeah,” he said, “Counselor.” He paused. “You said ‘review,’ Mister Gleason — that deliberate?”
“Yes, your Honor,” Gleason said. “The reason’s no different today than it was when the motions to suppress were brought. No different, and no less.”
“You,” the judge said, “you’re not searching jurors, I hope.”
“No,” Gleason said. “Just spectators, sir.”
“Yeah,” the judge said.
“I protest, your Honor,” Klein said. “When the jurors come down, sooner or later they’re bound to see those machines. Their certain inference will be that these defendants are dangerous, or have dangerous fr
iends. Or both. And that is prejudicial.”
The judge nodded. “I agree with you,” he said, “it is. On the other hand, as Cardozo said, defendants are entitled to fair trials, not perfect ones, and we have to do the best we can, under the circumstances. Far as prejudice’s concerned, on the dangerous people thing, well, you’ve heard, and they’ve heard, the Commonwealth’s attorney here allege that these four defendants killed seven people, not to mention two dogs, in cold blood. So the Commonwealth’s opinion that they’re dangerous people, and may have dangerous friends, made manifest by the security outside this courtroom — that probably isn’t going to come as news to them. To the jurors, I mean.”
He shook his head. “No,” he said, “I see the reason for your concern, Mister Klein. I even share it, to an extent. But this courthouse’s been bombed once, which is why we have the security in the lobby, and while I’m sure neither you nor any other of defense counsel wishes me to recapitulate the discussions we all had in chambers pre-trial of this case, I want you to know I also have that in mind. I think the Commonwealth is being reasonable and prudent in ordering additional security for this case.”
“But your Honor,” Klein said, “the police are taking names. They’re checking IDs as a condition for admission to a public trial in an American court of law. This is unconstitutional, and it is unjust.”
The judge leaned on the bench. “Mister Klein,” he said, “you know just as well as I do why the cops’re taking names. They’re still looking for some people that might know your clients here. You want me to go further on the record with that? Is that really what you want?”
Outlaws (Vintage Crime/Black Lizard) Page 13