PART 35

by John Nicholas Iannuzzi

  “I just saw Ellis in court. He said he’s ready, wants to start the Huntley hearing and then the picking of the Alvarado jury the beginning of next week.”

  “What’s a Huntley hearing?” Mike asked.

  “That’s where the judge hears evidence about the confessions they’re supposed to have,” Sam replied. “If Ellis can prove they were voluntary, they’ll be admitted into evidence for the trial.”

  “What about that severance?” Sandro asked. “We don’t even know whether we can have a trial separate from Hernandez.”

  “That’s why I’m here. Ellis told me the decision against us is in the mail this morning. I called my office, and it wasn’t there. So I came here.”

  “I didn’t get it either.”

  “It just came in the second mail. I asked your girl, and she said she just got it.” Sam handed Sandro an envelope.

  Sandro slit it open. It contained the court order denying their motion.

  “So now there’s nothing to stop us from starting a full trial next week,” said Sam. “Are we ready?”

  “You tell me, Sam. Mike and I were just looking at some films we took in the rear yard. Let’s finish them, and then we can talk it over.”

  Sandro turned off the light and turned on the projector. Once again, Shorts stepped from the roof onto the fire escape. Sandro went through the timing with Sam.

  “Only problem with the film,” said Sandro, turning the light on again, “is that the famous Italian woman isn’t going to testify. After we shot this, Mike got a statement from her saying that she can’t identify the man on the fire escape.”

  “Maybe we can enter it in the New York Film Festival as neorealism,” Mike suggested.

  “We may need it anyway,” said Sam, nodding, puffing his cigar. “Keep it.”

  “What for?” Sandro asked.

  “Right now, nothing. But when you investigate a case like this, just gather as much information as possible, and store it away like a squirrel stores nuts for the winter. You never know what the D.A. is going to turn up, and you may have saved just what you need for counterattack. For instance, Ellis’s got to have a case here. I’m sure I’ve said it before, he may not be fireworks or fancy footwork, but if you step into his bear trap, brother, you’ll never walk again. And neither will Alvarado.”

  “What do you figure he has, Sam?” asked Mike.

  “We won’t find out until the trial. That’s why you should follow every lead, even if it leads to a blind alley. You never know when that blind alley opens up.”

  “As for any other possible eyewitnesses,” said Sandro, “they can only come from the rear yard.”

  “What about the front of the building, the roof?” asked Sam.

  “The roof can’t be seen from the buildings across the street in front. On one side of it is a blank brick wall. And the killer ran over the other side to escape. I’m sure nobody was standing there.”

  “He’d be dead meat,” Sam said. “The interior should be no problem. Being inside a building isn’t a crime, unless someone can connect you directly to the shooting. And if the D.A. has someone who can connect you directly to the shooting, why worry about someone who just saw you in the building?”

  “Right, Sam. That’s why we only have to worry about the rear. Now here’s something else. We’ve been talking about getting large still photographs of guys who look like Alvarado. I was thinking we could use them in the back of the courtroom to test a witness’s powers of observation. What do you think?”

  Sam was just chomping off a straggly end of his cigar. He lifted it off his tongue with the tip of an index finger.

  “Dangerous,” he said, putting the strand of tobacco in the ashtray.

  “How are they dangerous?”

  “Identifying this guy through the dirty windows, the fire escape, across the yard, in the rain, all that, sounds impossible. Anybody who testifies to a positive identification through all that, the jury’ll look a little funny at them. Now, supposing you put up these pictures in the back of the court. And the witness can’t really tell Alvarado from a hole in the wall. But he has to point out one of the pictures. He can’t just sit there. So he points, like he’s aiming a dart at a telephone book. And he points at the right one. By mistake. At that point, Alvarado’s dead. If the witness just happens, just happens, to be right, you’ve helped buttress his original identification. Why take the chance?”

  “No contest, Sam,” Sandro agreed. “You’re right.”

  “The only thing the D.A. seems to have,” Mike said, “are those confessions.”

  “Do you think we can knock them out at the Huntley hearing, Sam?”

  “All we can do is play them by ear,” said Sam. “The confessions rise or fall on the cross-examination.”

  “But Alvarado says he was beaten,” said Mike.

  “Okay, we have a shot with the medical stuff when we put it together. But don’t kid yourself, when a cop testifies you confessed, that’s real trouble, whether you did or not.”

  “If a guy didn’t actually confess, what the hell difference does it make what a cop says?” asked Mike.

  “All the difference in the world.” Sam paused to puff at his cigar. “The cop says he heard the defendant confess. The defendant says he didn’t. Now, who’s the jury going to believe?”

  “The cop, I guess.” Mike nodded reluctantly.

  “You bet your ass,” Sam assured him. “It’s hard to prove someone didn’t hear something. Hearing can’t be measured, weighed. I say I heard something. How can you say I didn’t?”

  Mike didn’t seem to like that.

  “Jurors are just ordinary people,” Sam continued. “They hear a cop say one thing, the defendant say another. And if they have to decide, they’ll go for the cop every time. Thank God, most cops have some decency in them.”

  “Yeah,” Mike scoffed.

  “More important are our alibi witnesses, Sandro. Will they stand up?”

  “They’ll hold up, Sam. We’ll prepare them to stand up to the juggernaut,” said Sandro. “I just hope we can get them all to court.”

  “And when they do get there, we have to hope they don’t get slaughtered by Ellis,” added Sam. “Let’s go through the alibi, Sandro.”

  “Okay. First we have Annie Mae Cooper. She says Alvarado was in the Associated Five & Ten about, say, one fifteen, one twenty, the afternoon of July third.”

  “Okay,” acknowledged Sam.

  “The assistant manager of the store, Phil Gruberger, supports her story. He remembers okaying her changing the hundred-dollar bill, and he remembers her coming to talk to him the day after July fourth and showing him Alvarado’s picture in the paper.”

  “Then what?” asked Sam.

  “After he left the store, Alvarado bought a belt. But the guy in the store won’t help us. We should be okay without him though.”

  “Next,” said Sam.

  “Next, we have Pablo Torres from the Velez Restaurant who says Alvarado ate there. He says Alvarado came in about one forty-five, somewhere after the lunch crowd, and before two. Alvarado took about twenty minutes to eat.”

  “That means he left about two ten, two fifteen, at the very latest,” Mike said.

  “These people have to be sure about these times,” Sam said.

  “We’ll have them prepared. We’ll go over it with them,” Sandro assured him.

  “Okay. I’ll rely on you for that.”

  “You getting skeptical of me in your old age, Sam?”

  “No,” Sam smiled. “I just want to remind you.”

  “Okay. The last alibi witness is the barber, Francisco Moreno. He says Alvarado came into his shop about two twenty-five, two thirty. He gave him a haircut and trimmed his moustache. Alvarado left about two fifty.”

  “I don’t know how Ellis’ll get around that if the witnesses stand up,” said Sam. He was nodding appreciatively.

  “I wish there was some real evidence we could use to prove the haircut, bolster th
e barber’s story,” said Sandro.

  “Don’t need it. I’d like to have motion pictures of Alvarado getting a haircut too,” said Sam, “but we can be satisfied with what we have. It’s enough.”

  “That’s it,” exclaimed Mike, snapping his fingers. “We can get motion pictures. Everyone we talked to saw this thing on TV the next day. The TV stations have pictures of Alvarado a couple of hours after he was arrested.”

  “He’s right, Sam. What the hell have we been thinking about? We can subpoena the newsreel film from the TV stations.”

  “Fabulous,” said Sam. He was smiling, shaking his head admiringly. “You fellows are really working on this. Of course, they might have tossed out that film by this time. Let’s not get too carried away until we check it out. But even if they don’t have them, we’ve still got a great case. Does that about wrap it up?”

  “Sam,” Sandro began, “Mike has come up with a theory about the killing. Perhaps we can prove someone else actually shot the cop.”

  “Let’s hear,” said Sam, studying them both.

  “Well, in our investigation we came up with all sorts of strange things—like Mullaly trying to pump us for information.”

  “You should be glad he did,” replied Sam. “I never heard of a D.A. getting so sucked in that he didn’t move to have you reveal your alibi. That’s the best thing we’ve got going for us.”

  “Well, this guy Mullaly was, as Mike puts it, under every rock we turned over.”

  “What’s this theory,”asked Sam, “if Mullaly’s been doing his job, and trying to screw us up? That isn’t against the law, by the way.”

  “We timed the routes of the two cops, Lauria and Snider, with a stopwatch,” said Sandro. “Mike ran their routes to the roof consecutively.”

  “Bastard,” complained Mike.

  Sandro laughed. “He ran Lauria’s route first. And even though he was pooped, he still ran Snider’s route twenty seconds faster.”

  Sam’s eyes narrowed.

  “I figure Snider shot Lauria,” Mike said boldly. “Either by mistake, or maybe even intentionally. This guy Snider got himself in trouble with narcotics several years ago. Was thrown off the narcotics squad. Maybe he was still involved in something and Lauria was going to turn him in.”

  “We don’t know what he was thrown off for,” Sandro corrected.

  “Okay, but we know he was thrown off,” said Mike. “And this guy Mullaly has been going around covering up the trail so the dirty finger won’t point to a fellow cop.”

  Sam just listened, looking from Sandro to Mike.

  “We can bring this stuff out at the trial, Sam. We can show the time sequences, show that Snider was on the roof before Lauria was shot. It’ll look awfully suspicious to the jury.”

  “Sandro, let me ask you a serious question. Are you a lawyer in this case, or a detective?”

  “Come on, Sam …”

  “No, I’m serious. Answer the question. Which are you?”

  “I’m a lawyer, all right?”

  “Well, remember it. We’re supposed to defend Alvarado, not figure out who did it, if Alvarado didn’t.”

  “Would it hurt if we did both?” Sandro asked.

  “No. But you won’t do it with that evidence. You said yourself it’s just suspicions. Can you prove Snider did it? Can you prove that he was actually on the roof before Lauria was shot?”

  “No.”

  “Do you have witnesses, anything besides supposition pieced together with speculation because of some time discrepancy?”

  “No,” Mike answered.

  “Now, I’m not saying it couldn’t happen. Don’t get me wrong. But this won’t do a damn thing except hurt Alvarado. The jury’ll think here’s some son-of-a-bitch lawyers who’ll stop at nothing, even accusing a cop of murder, to get their lousy goddamn client off. They may resent it. If you had more, it’d be all right. But just to throw bare suspicion out might ruin our chances of showing the jury our alibi, showing that Alvarado was in Brooklyn. We’ve got a great case going for us now. Why screw it up with wild ideas we can’t prove?”

  “Maybe we can get more,” said Mike.

  “Get it. Then we’ll talk.”

  Sandro nodded. “I guess you’re right, Sam. We really can’t prove anything with what we have.”

  “But we can do our job with what we have. I just hope we didn’t miss anything. Well, we’ll see next week.”

  “What Part is Ellis moving the case in, Sam?” asked Sandro.

  “Thirty-five.”

  “Who’s sitting there?”

  “Judge Porta.”

  “Judge Porta?” Sandro had never even considered the possibility. “He appointed us.”

  “He’s also trying the case. He’s a good trial man,” Sam said, “right down the middle. See you on Monday.”

  BOOK TWO

  CHAPTER I

  Sandro and Sam walked toward the courthouse. The day was clear, crisp, and sunny. Spring would be arriving soon. Green buds had begun to appear at the tips of tree branches and on shrubs.

  “Well, he sure as hell gave Ellis an edge,” Sandro was saying.

  “Look, Porta had to pick the lesser of two evils—he could either give Ellis another bite at the apple in front of the jury or give us the entire case before it even got to the jury. I’m not saying this is always what happens. But, speaking practically, in this case the Huntley hearing had more to do with tactics than with deciding if the confessions were voluntary.”

  “But even so,” Sandro said stubbornly, “that’s exactly what the Huntley does have to decide. Ellis didn’t even produce medical evidence to explain away Alvarado’s trip to Bellevue. So how could the judge be convinced beyond a reasonable doubt that the confession wasn’t beaten out of Alvarado?”

  “He wasn’t. All he had to do was say that he was convinced. Now, instead of crippling the D.A.’s case—maybe killing it—by tossing out the confessions, he drops the whole bundle into the jurors’ laps. Let them hear all the evidence and decide it. Why should Porta go out on a limb to make a tough decision he doesn’t have to make?”

  “Okay, from a practical standpoint, that makes sense. But then why have the Huntley hearing at all?”

  “Because the United States Supreme Court said so. What’s the big deal? We’ll have a chance to go through the whole thing again when we have a voir dire on the confessions in front of the jury. And then we’ll tear them apart with our medical stuff.”

  “Sam, don’t you think it’s a bit ludicrous to go into a voir dire in front of the jury when the judge is automatically going to deny our motions to suppress the confession again?”

  “But this time he’s going to let the jury decide it as a question of fact—if they believe our evidence they can throw it out, if they believe the police they can consider it as evidence. That’s the way the Supreme Court figured it’d be fairer to the defendants.”

  “If the jurors are aware people, they’ll know the judge has already decided it was voluntary beyond a reasonable doubt. And if they’re not aware, why the hell do we want them on our jury?”

  “Porta decided it, practically speaking, as a question of law. The jury will decide it as just some more facts in the case. That’s the system, Sandro. I told you, come the millennium, it’ll all be perfect.”

  They entered the building and took the elevator up to the eleventh floor. As they entered Part Thirty-five, they saw the spectators’ seats in the large courtroom filled. There were more than two hundred people there, men and women, young, old, black, white, and all variations between, well dressed and not so well dressed. This was a random sampling of New Yorkers, making up the panel from which the jury would be selected. Ellis was already seated at the prosecution’s counsel table. Sam and Sandro put their briefcases on the defense table and sat down. Siakos hadn’t arrived yet.

  “We have to break these jurors in, Sandro. There are a couple of things they’ll have to live with if they’re going to sit on this jury—Alva
rado’s record, cop-killing, confessions that were beaten out—”

  “How about the narcotics?”

  “Right. Whatever Ellis’ll throw at us during the trial. I’d rather shake up prospective jurors that we can challenge than sworn jurors that we’re stuck with during the trial.”

  Siakos arrived and joined them at the counsel table.

  The court clerk went into the judge’s chambers. Shortly, thereafter the door opened again, and a court officer, who had been with the judge, came out. He looked about the courtroom and then pounded the door twice. Judge Porta swept into the courtroom, trailing his long black robes and the court clerk behind him. He ascended the bench. The clerk returned to his desk.

  “All rise. Hear ye, hear ye. All persons having business in Part Thirty-five of the Supreme Court of the State of New York, in and for the County of New York, draw near, give your attention, and ye shall be heard. The Honorable Gaetano S. Porta presiding,” the officer announced.

  “Bring out the prisoners,” the judge instructed another court officer.

  A door next to the judge’s bench opened, and Hernandez and Alvarado entered the courtroom. Hernandez was in a gray suit. Alvarado was wearing a Madras jacket two sizes too big. He must have borrowed it from another prisoner, and could not be too choosy about fit, style, or season. They sat at the defense table. A guard sat behind each of them.

  “You may proceed, Mr. Ellis,” said the judge.

  Ellis rose and faced the entire panel sitting in the spectators’ area.

  “Ladies and gentlemen, my name is David Ellis. I’m the assistant district attorney in charge of the prosecution of this case. The name of the case is People of the State of New York against Ramon Hernandez and Luis Alvarado. Mr. Nicholas Siakos is the counsel for the defendant Hernandez. And Mr. Samuel J. Bemer and Mr. Alessandro Luca are the attorneys for the defendant Alvarado. Now this is a trial for murder in the first degree, the defendants being charged with the death of one Fortune Lauria, who, it will be revealed in evidence, was a policeman of the City of New York.”

  Many heads in the panel turned, and a slight murmur rose in the room.

  “I am making this preliminary statement so that you will understand the type of case on which you are going to be asked to serve, and so you get to know the names of the defendants and their attorneys. This is a case which might involve capital punishment. But that does not come into play in the first part of the trial. Only if the defendants are convicted. However, you should know that, too, in the event that you may wish now to make any application to be excused from this trial. To save time, rather than asking individually, I’ll ask any persons who have moral scruples against capital punishment in the proper case—and I emphasize that, in the proper case, where the defendant may be proven guilty beyond a reasonable doubt—any persons who have such scruples, please rise so that you may be brought to the judge’s bench to see about being excused.”