“Maybe you should lead him through the beating again so the jury is sure to have all the details. Ask him what the police did to make him tell the name of Alvarado,” suggested Sandro.
Sam asked. Hernandez described the beating again. He also testified that the police had brought in a small black radio. When asked what color it was, Hernandez said it was black. They told him the radio taken from the apartment, which was then being dusted for fingerprints, was actually red. They punched him several times until he said that the radio that looked exactly like the black one they were holding was actually red. They brought in a woman’s purse. It was black, and they insisted it was white. Finally, Hernandez admitted that the black purse was actually white.
Hernandez said in response to Sam’s questions that when he had been taken back upstairs in the early morning hours, Alvarado was standing against some lockers bleeding at the nose. His hands were handcuffed behind him, and policemens surrounded him.
At this point, Sam had no further questions. Ellis stood, wrinkled his nose and began to cross-examine. Ellis asked about Hernandez’s narcotics habit. It cost six dollars a day to support, Hernandez replied. He admitted to not having worked from March to July of 1967. Hernandez repeated that he hadn’t seen Alvarado the entire day of July 3rd, and the last time he had seen him was perhaps two or three days before that. He testified that he had left his house about 8:30 that morning, accompanied by his wife.
“Ellis’s starting to go into the alibi,” Sandro said apprehensively.
“Nick, object to this,” Sam leaned over and whispered hurriedly.
Siakos motioned for them to be still, as he sat listening intently to the answers, not bothering with the import of the question.
“If they get to it now,” whispered Sandro, “then they can go out and screw up the alibi, sink him. If he’s sunk, we’ll get sunk. Object, Sam. Think of something.”
Sam stood. “Your Honor, Mr. Ellis’s question has nothing to do with the activities of the police at the station house after Hernandez’s arrest. It is, therefore, a collateral matter, and is not proper for this voir dire.”
“Your Honor, I believe this goes to the issue of credibility,” Ellis suggested.
“I’ll allow it, Mr. Bemer. Credibility is never collateral. It is always an issue.”
Ellis continued to question, and Hernandez told how he drove his wife to work the morning of July 3rd and then burglarized the apartment in El Barrio. The jurors sat upright.
Now, finally, Siakos stood to object, realizing where the D.A. had led Hernandez. The judge overruled. And now Siakos’s entire defense was going to be revealed, not when he wanted and as he wanted, but leaked out here in the early stages of the trial, to be buried under the words and days the jury would yet endure.
“All right,” Sam whispered to Sandro, who sat seething. “Take it easy.” Sam pretended to be reading papers on the counsel table. “Don’t let the jury see you carry on.”
They listened to Hernandez describe how he broke into the apartment in El Barrio, put clothing, a portable radio, and a bankbook into a suitcase he found there, and put the suitcase in the trunk of his car. He told of driving back to meet his wife for lunch, and getting a dollar from her to buy gasoline. Then he told of his efforts to pawn the suits and radio under the name Antonio Cruz. He described his buying of narcotics and then driving home, desperate to take a fix. He testified that when he got to Stanton Street, it was blocked with an ambulance and many police cars. He left his car double-parked and ran to his apartment, where, a short time later, Mullaly arrived.
Ellis now produced a full-length black-and-white photograph of the defendants in the nude, taken at police headquarters the morning of July 4th. Hernandez said he remembered the picture’s being taken. Ellis offered it into evidence. It was shown to defense counsel.
There, side by side, stood Hernandez and Alvarado, naked, forlorn, and embarrassed.
“You see how Ellis slowly, effectively cuts you down,” said Sam. “And look how careful they were. I’ve never seen a photo like this. I guess they figured somebody’d complain of beating, and they got prepared in advance. I don’t see any bruises here. Do you?”
“I can’t see them either,” agreed Siakos.
“But the doctor in the Tombs found scars,” said Sandro. “The Department of Correction gave us the medical records.”
“Pictures can be doctored,” said Siakos. “I’m not going to object to the picture. I’ll show the jury the medical records, even bring the doctor in to say what he noted on Hernandez’s medical charts. Then in summation, I’ll talk about how they doctored the pictures and who knows what else.”
Sam nodded. Siakos had his moments.
“Are there any black and blue on me in that picture?” Alvarado whispered to Sandro.
Sandro turned toward Alvarado. “Now, how in hell could I see black and blue on you?”
Alvarado put his hand to his mouth to hide his smile. He rubbed his lip and looked up at the jury soberly.
Since the picture was offered only against Hernandez, the judge had the clerk scissor it in half, and returned Alvarado’s picture to Ellis.
“Now, Hernandez,” Ellis asked, “you said you told Alvarado in Spanish, up in the locker room, that he should admit the crime to the police so they wouldn’t kill him, and you could straighten it all out in court?”
“Right, right.”
“Well, when you got to court for the arraignment, that very morning, did you say anything to the judge about the police beating you?”
There was tense expectancy in the courtroom as the interpreter translated the question, Hernandez replied in Spanish, and the interpreter spoke again:
“No, I don’t believe so.”
Two of the jurors exchanged glances.
“Did your lawyer say anything about a beating to the judge?”
“I hardly spoke to him. I didn’t tell him nothing. I was in pain.”
“Did you say anything to the doctor in the Tombs?”
“He saw it.”
“Did you say anything, is the question.”
“No.”
“To any official in the prison?”
“No.”
“No further questions.”
Neither Sam nor Sandro said anything. Their faces were calm. Sam continued writing. Any juror looking at them would have thought that nothing at all had just happened.
Siakos rose. In answer to his question, Hernandez testified that the doctor’s examination in the Tombs had been so cursory that he didn’t have a chance to tell him anything.
“What did the doctor do for you?” Siakos asked.
“He put some bandages all around my chest, from the armpits to the waist.”
“Jesus Christ, that’s good stuff if we can support it,” said Sam.
“It’s here in the medical cards.” Sandro slid the blue medical cards from the Tombs across the table.
“If he had that done, then it won’t mean a thing that he’s stupid and didn’t say anything to anyone,” Sam added.
Siakos took the medical cards and read them. He had Hernandez describe the doctor’s step-by-step procedure in strapping his chest. Hernandez stood and showed the jury from where to where the bandages had been placed.
“I offer these medical cards in evidence, Your Honor,” said Siakos.
“Objection, Your Honor. The doctor from the Tombs should be here to explain these notes before these cards are admitted into evidence.”
“Yes, Mr. Siakos, you can introduce these cards when the doctor from the Tombs takes the stand.”
“Very well, Your Honor.”
Siakos asked the judge to have the detectives in the witness room brought into the court so that Hernandez might try to identify the men who hit him in the police station. The judge granted the application.
Five detectives stood side by side just behind the rail separating the spectators from the bench: Johnson, Negro, bull-like, bald; Jablonsky, tall, heavy, a
nd potbellied; Tracy, tall, sleek; Mullaly, tall, emotionless; Garcia, the lieutenant, somewhat embarrassed and annoyed to be in a lineup. Hernandez was allowed to leave the stand and walk toward them. As he neared the rail, Hernandez visibly cringed. He pointed to Mullaly and Johnson, and returned quickly to the distant witness chair. The detectives turned and left through the side door.
Siakos, now that he had allowed the alibi to seep into the case, had no choice but to develop the entire story. He questioned Hernandez about his activities on July 3rd. Hernandez repeated what he had told Ellis about the burglary, lunch, and the pawnshops. Herandez said that he had not arrived at the first pawnshop until approximately 2 P.M. He said he arrived at Stanton Street at approximately 2:45 P.M. The police cars and ambulance were already there.
Hernandez testified he had never told the police of the pawnshops or of his activities because they had never asked him where he was. They had never asked him anything. They had just accused him and wouldn’t hear anything from him except a confession. They did know, as Mullaly testified, about the pawn tickets, but they had ignored them.
Siakos had no further questions.
“Let the witness step down,” said the judge. “We’ll adjourn now. Members of the jury, do not discuss this case. Good night.” The judge and jury left.
“Well,” said Sam as he packed his briefcase. “At least, we didn’t end on total failure today.”
“I thought we were going to for a minute,” said Sandro.
“So did I, but those medical cards are going to be awfully hard to explain. He was strapped from top to bottom.”
“What do you think?” asked Siakos.
“I think you pulled it out,” Sam said.
Siakos smiled.
CHAPTER XI
Sandro and Mike sat opposite Dr. John Rider, director of the Metropolitan Hospital narcotics ward. Sandro sounded him out on the points that would convince a court that he was an eminent authority in his field. Dr. Rider treated perhaps fifteen hundred addict-patients a year. He also taught nurses and other doctors about narcotics, the withdrawal syndrome, and detoxification. He was a consultant on the staff of many other New York hospitals as well. Sandro was quite satisfied.
“Doctor, as I told you on the phone, my problem is that I need some expert medical advice on narcotics and withdrawal.”
“I’ll try and help,” said the doctor. He was young, round-faced, with dark hair. “What are the facts?”
“As I explained, I have a client who is accused of murder. I’m not going to ask you to tell me that he wasn’t responsible for any of his acts because of drugs, or anything like that. He had a seizure in prison, six days after he got there. I want to know if heroin could cause a clonic seizure, Cheyne-Stokes breathing, tachycardia, and various other things.”
“Where did you get the diagnosis?” the doctor asked.
“This is a report from a Dr. Maish, who was on duty in the prison that night. It’s his diagnosis.”
Dr. Rider read. “How long did you say this man had been in prison?”
“From the morning of July fourth, 1967.”
“And could he get any drugs there?”
“No. Certainly there’s no one who would ever admit giving a prisoner drugs. For all practical purposes, we can assume that there were no drugs after he was incarcerated.”
“And this seizure occurred six days later?” The doctor pursed his lips. “No, it could not have been caused by addiction to heroin, in my opinion. Do you know the size of his habit?”
“He said two three-dollar bags a day,” Sandro replied.
“That’s not much of a habit.”
“And you’d say such a habit would not cause a convulsion six days after withdrawal?”
“I’ve never seen anyone have any kind of seizure—I’ve never even heard of it—at any time after withdrawal from heroin.”
“Does it matter about dosage, Doctor?” Sandro asked.
“No, that wouldn’t even be a factor. Heroin just doesn’t cause convulsions. And, I’ll tell you, with the quality of heroin that is sold in New York, it’s even more unlikely.”
“You mean the way it’s cut down?” asked Mike.
“Exactly.”
Mike looked at Sandro and smiled. “That’s a nice start on the medical question, isn’t it?”
“Does that help you?” the doctor asked.
“Sure does. Doctor, I don’t know all the medical aspects of this. Where can I get myself trapped? What could the D.A. come up with to show that the convulsion resulted from withdrawal and not from trauma, from a beating?” asked Sandro.
“Barbiturates! Barbiturates can be far deadlier than heroin, if you can imagine that. We expect convulsions with barbiturates.”
Sandro tried to remember if Alvarado had ever mentioned barbiturates.
“A lot of addicts want a change of pace and take barbiturates for a while, then heroin,” the doctor continued. “They get their kicks different ways—so their bodies don’t get tired of the same old destruction.”
“How do we get around that?” Mike asked.
“I doubt we have to,” said Sandro. “Alvarado says he had a heroin habit. That’s all there was; that’s all he’ll testify to. How can Ellis dispute that?” Sandro paused a minute. “Unless, of course, he can offer some junky a break for testifying that he saw Alvarado taking pills.”
“Barbiturates didn’t cause this convulsion either,” said the doctor, matter-of-factly. “The period of separation from drugs was much too long.”
“You trying to get me old before my time?” asked Sandro, smiling.
The doctor grinned. “A barbiturate convulsion, which is very common—and more often than not it causes death—occurs after withdrawal, within, say forty-eight to seventy-two hours, two or three days. Then the danger subsides. Six days later is just too late, too remote for drugs to have caused this convulsion.”
“Doctor, I’d like you to testify in court just as you’ve explained it to us here.”
“When?”
“I’m not quite sure, yet. Perhaps the end of next week. Thursday or Friday?”
“Make it the following Monday, and you’ve got a deal. I’ve got to teach on Thursday, and Friday’s out too.”
“Okay,” agreed Sandro. “I’ll call you in advance and let you know exactly when.”
“And, of course, you’ll have to compensate me for the time I have to spend in court.”
“Of course, Doctor. I’ll get the judge to sign an order for it. It may take a couple of weeks for the comptroller’s office to make out a check, but I’ll get it for you.”
“Fine.” The doctor rose.
Sandro and Mike rose and shook hands with him.
“Thank you, Doctor. Talk to you at the beginning of the week.”
Mike and Sandro left and drove across town to the office of Dr. Arthur Fulton, a well-known neurologist.
Dr. Fulton, a tall, well-tanned man with steel-gray hair, ushered them into his office and listened attentively while Sandro summarized the symptoms that Alvarado had had, and the history leading up to his seizure. He explained about the beating in the police station, how Alvarado’s head had hit the lockers, and the convulsion six days later.
“Could this beating have caused the convulsion Dr. Maish found on July tenth?” Sandro asked.
“Certainly,” Dr. Fulton said in a soft, firm voice. “Trauma can easily cause such a reaction. But I’m not too sure about the effects of narcotics.”
“I’ve got a narcotics expert who will come into court and testify that narcotics did not cause the seizure. Heroin never causes convulsions, and he says too much time had elapsed for barbiturate convulsions.”
Mike nodded.
The doctor smiled. “Very well, if you have an expert in the field who says that there is no cause of convulsion there, then I can safely testify that an injury such as the beating you’ve described could easily be the cause of a convulsion.”
“What about
the time factor?” Sandro asked. “Couldn’t the beating also be too remote from the convulsion to be causally connected?”
“Not really. There’s no great significance in that. A seizure following a brain injury can occur abruptly, or it may be delayed for days, weeks, even months or years. Post-traumatic seizures have been reported as long as twenty years after an injury. Most of them, however, follow immediately after, within two or three months.”
“Well, that keeps us in the ball game. What about the fact that there have been no more seizures since that first one?” Sandro asked, trying to anticipate Ellis.
“A seizure doesn’t have to be recurrent. A patient can have single or periodic post-traumatic seizure. There’s no way of telling if they’ll recur until they do.”
“Doctor, would a week from Monday be a good day for you to testify?” Sandro asked.
“Monday? I have office hours that day. From two thirty to five. Can you fit me in before then? I’ll be at the hospital in the morning, and then go to my office. But if you can squeeze me in around lunchtime, I’ll do it.”
“How about if I work it out with your secretary? I’ll talk to the judge and see what time schedule we can get. I’d like you to go on the stand right after the narcotics expert, and then we can let you get right back to your practice.”
“Fine. You call her and tell her where you want me, and I’ll be there. Of course …”
“I know, you will get a check from the City of New York. It’ll take a couple of weeks after I get the order signed.”
“Fine. Good seeing you.” Dr. Fulton stood and shook hands with Sandro and Mike.
“That’s quite a nice piece of work, Sandro,” said Mike. “I got a little hung up in the middle on some of that stuff, but it comes out in the end sounding great for our side.”
“That’s what it’s got to do for the jury too, end up creating the impression Alvarado was seriously injured. That’s all. Once we do that, Ellis has to prove the police didn’t injure him. And he can’t possibly do it.”
“Why do you say Ellis can’t possibly show that Alvarado wasn’t injured by the cops?” Mike asked.
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