Malice

by Robert K. Tanenbaum

  “Humbug,” Epstein replied. “The nut of this was the right to confront witnesses and present evidence.”

  “What good would it have done Raleigh to cross-examine Cobham and present his letter if the judges and juries were still predetermined to find him guilty?” a short man who looked somewhat like Albert Einstein asked.

  “It was damned unfair,” a heavyset man agreed. “Even Raleigh’s judges and jurors recognized that—if somewhat too late. On his deathbed, Justice Gawdy said, ‘The justice of England was never so depraved and injured as the condemnation of Sir Walter Raleigh.’ And some members of the jury knelt before him and begged his forgiveness.”

  “I read that his widow kept his preserved head in a cupboard, which she would trot out to show visitors,” said an effete-looking gentleman whose voice and mannerisms reminded Karp of Truman Capote. He obviously found the macabre more fascinating than the constitutional questions.

  “Gentlemen, gentlemen, we digress from our topic,” Plaut interrupted. “Today on the black anniversary, we were to stick to the impact of Raleigh’s trial on the confrontation clause of the Sixth Amendment and how it applies, if at all, to the pretrial publicity surrounding the rape charges brought against members of the Duke University lacrosse team.”

  The admonition seemed to get the others’ attention, but it was soon diverted again when a buxom fortysomething waitress with a lip ring arrived to take their order.

  “Hey, babe,” Epstein growled, wiggling his eyebrows, “if I told you that you have a beautiful body, would you hold it against me?” The others cackled at the old joke and sat expectantly awaiting her response.

  Which was to roll her eyes and reply with a heavy Queens accent, “Not on your life, Murray. You’d probably have a heart attack and the cops would arrest me for moider.”

  “I’d sign a waiver for you, Marjorie,” Epstein replied.

  Marjorie the waitress was about to respond when she noted that the men had all stopped looking at her to watch a leggy model type in tight jeans walk past on the sidewalk to their appreciative wolf whistles.

  “Hey, so what did I become, chopped liver?” Marjorie complained in mock seriousness. “I swear the minute I turn my back on youse guys, you’re ogling some anorexic teenager with a bad dye job.”

  “Turn your back on us,” the Albert Einstein look-alike replied, “and you can bet our eyes will be on you. That’s one nice can you got there, sister.”

  “That’s better,” the waitress sniffed. “For a moment there, I thought you might all leave me for some floozy with a pair of plastic tits.”

  “As the old saying goes, ‘Who cares if they’re fake,’” Epstein said.

  “That’s an old saying? I think the copyright on it is a lot younger than any of you,” she scoffed.

  “Oh, so now you’re a lawyer,” Hall quipped.

  “Well, I don’t lie or cheat, so that rules out that career,” Marjorie shot back. “Now, shall I call your wives and tell them to cut back on the vitamin E? Youse guys are getting a little too frisky, and you might fall and break a hip or something.”

  The men laughed and applauded the waitress’s sauce and pleaded for mercy. That’s when they noticed Karp and Sunderland standing to the side, enjoying the repartee, and waved them over.

  “Ah, gentlemen, look what our good priest has brought us,” Epstein said, clapping. “The district attorney of New York, Butch Karp. Have a seat, have a seat.”

  “So, Mr. District Attorney, did you overhear our topic of discussion on this auspicious occasion?” Hall asked.

  “I did,” Karp replied.

  “Well, then, would you care to weigh in?” Epstein asked, shooting the others a sly glance.

  The way the others suddenly grew rapt with attention gave Karp the impression that he was not so much being asked to weigh in as he was being weighed. Taking a seat, he joined the fray. “Well, prosecutors should do their talking in court. It’s not advisable to engage in press conferences or encounter-type give-and-takes with the media. Just proceed in an orderly and fair fashion.”

  “Would you care to elucidate further on that position?” Hall asked, as if facing a witness on the stand.

  The obvious challenge might have intimidated another man. But on the list of things Karp loved most in life were first his wife and kids, followed shortly thereafter by discussing the law. He shifted to address his opponent more directly and winced when the movement put a little too much pressure on the wounded muscle of his leg.

  The others noticed the reaction and asked solicitously if he was all right. “We, of course, heard about the unfortunate incident,” Plaut said.

  “Hell of a way to try to win an election,” faux Albert Einstein said. “And by the way, the name’s Bill, Bill Florence. I used to be an editor on that fish-wrapper the New York Post.”

  “Guess she lost her head, and the name’s Saul Silverstein, I was in ladies’ apparel for a time,” the heavyset man cracked.

  The others groaned at the reference to the fact that by the time Marlene finished emptying her gun at her husband’s assailant, there wasn’t much left above her neck.

  “Forgive my friends Mr. Florence and Mr. Silverstein for their tasteless senses of humor,” Sunderland said, shooting the pair a dirty look. “They don’t know any better. And by the way, my friend Mr. Silverstein is being unusually humble this morning. He wasn’t just in ‘ladies’ apparel,’ he practically invented women’s slacks in the late forties.”

  “What? What?” Silverstein objected, as if Sunderland was reading something into his comment that he had not intended.

  “My apologies, Mr. Karp, you’ll find that the Sons of Liberty Breakfast Club and Girl-Watching Society is comprised of ancient cynics,” Plaut noted. “The commentary can at times grow somewhat morbid or, as the good friar noted, a bit dark for some tastes.”

  Karp held up his hand and smiled. “No apologies necessary, gentlemen. No one understands more than those of us working at the DAO that if it wasn’t for the ability to laugh at dark humor, we’d all go mad.”

  “The name’s Geoffrey Gilbert,” the effete-looking man said, laughing. “I’m an artist, which makes me ‘the sensitive one.’ But I’m quite sure that Mr. Karp understands satire, even if it’s dark satire.”

  “Might I ask about the name of your group?” Karp ventured. “If my memory serves, the Sons of Liberty were a secret band of revolutionaries before and during the War of Independence.”

  “Very good, Mr. Karp,” Sunderland said. “The name’s a bit grand for the likes of us. But it does serve as a reminder as we have these little debates that we owe that right to other men who pledged their lives, their fortunes, and sacred honor to defend it.”

  “Hear, hear,” Florence added. “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants; it is its natural manure.”

  “So spoke Thomas Jefferson,” Sunderland pointed out. “But come, let’s not be so dramatic with Butch, as he has asked me to call him, or he might not want to come out and play with us anymore.”

  Karp caught what seemed to be a meaningful glance between Florence and Sunderland.

  “I was just staying with the revolutionary theme,” Florence complained. “But fine, Butch, accept my apologies and do go on with your take on our question of the day.”

  Karp looked around at the faces of those who waited for him to speak. Their hair was gray, or they were bald, and the wrinkles aged their faces, but their eyes were bright with intelligence and so engaged in the debate that they seemed younger than their years in spirit. Not a fool among them, he thought.

  “Well, the courts have held that part of the intent of the confrontation clause is that no citizen be deprived of his liberty interests without the right to hear the evidence against him, prepare his defense, confront any witnesses, and present witnesses and evidence of his own,” Karp said. “So it’s important that the DA proceed meticulously, cautiously, and prudently and avoid not
only a rush to judgment but also the lamentable, egocentric, politically cool press conference that is unseemly and prejudicial to the accused.”

  “But how does that deprive the players of their liberty interest? They were all granted bail and free prior to trial,” Hall noted.

  “A liberty interest is not just whether a person has been deprived of his physical freedom,” Karp replied. “The courts have also held that a Fourteenth Amendment liberty interest includes the right to pursue the career of one’s choice. In this case, the young men in question were suspended from the university even though they had not been tried, much less found guilty, reminiscent of an act of academic McCarthyism that certainly could affect the pursuit of their chosen careers. Who is going to hire someone publicly branded a sex criminal? Even if later tried and acquitted, the stain will remain. They have been stigmatized by an avalanche of pretrial publicity. Prosecutors must be sensitive and professional to avoid that occurrence. It’s why DAs should avoid press conferences and do their talking in court, not in front of the cameras.”

  “But the defense lawyers also made statements to the press that their clients’ DNA did not match any samples taken from the alleged victim,” Hall pointed out. “Wasn’t this also trying the case in the court of public opinion?”

  “Yes,” Karp acknowledged. “But the defense attorneys made their statements only after the prosecutor went in front of the cameras to proclaim the players’ guilt. Obviously, both sides are playing to the potential jury pool. But it seems to me that the prosecutor jumped to his conclusion despite the fact that this young woman showed up drunk at a party so that she could be paid to take her clothes off.”

  “So you’re saying that strippers can be raped with impunity?” Florence asked.

  “Of course not,” Karp replied. “But look what came to light after the prosecutor made his comments to the press. It’s not just the negative DNA tests either, or even that it took three days for her to come forward with these allegations—we can agree that victims of sexual assault may delay due to embarrassment or fear. But then her story kept changing. First she was raped by thirty men, then ten, then three. Then we learn that several years earlier, she accused three other men of raping her but nothing came of those allegations either. Also, there’s the alleged timeline exonerating one of the accused. Perhaps all of this should have been ascertained and weighed before the lives of these young men were damaged without the benefit of a trial.”

  “But isn’t the prosecutor supposed to take the side of the victim and be her advocate?” Gilbert asked.

  Karp shook his head. “That’s a common misconception created by television and by inept prosecutors. It is a defense attorney’s duty to zealously protect the rights of the client and force the state to prove its case beyond a reasonable doubt before it can deprive that client of his liberty and sometimes even”—he looked at Sunderland and smiled—“his life. However, competent prosecutors engage in a two-step threshold analysis before charging anyone with a crime. First, you have to determine if the defendant is factually guilty. Once convinced that the defendant is a thousand percent factually guilty, you go to the next step, and that is: Is there legally admissible evidence to convict the defendant beyond a reasonable doubt? We may have factual guilt, but not have legally admissible evidence to convict. For example, we may have a defendant’s statement that was taken in violation of a Fifth Amendment privilege, or we may have incriminating physical evidence, but there may be a Fourth Amendment infirmity that could prohibit admissibility. However, once there is factual guilt and legally admissible evidence, the prosecutor’s duty is to go forward. He should be resolute and firm but compassionate and sensitive to the task at hand. It is a prosecutor’s job to do this objectively, without taking sides.”

  “But in the Duke case how does the confrontation clause, which has to do with the right of a defendant to cross-examine witnesses during a trial, apply?” Plaut noted. “What does it matter if these statements are made to the press as long as the defendants’ rights are protected at trial?”

  “At trial, the defendants will have the opportunity to present evidence, confront witnesses against them, and have their fate determined by the rule of law as applied by an impartial judge and a jury of their peers,” Karp said. “All those things that Raleigh was deprived of at his trial. But that due process fairness is compromised by prosecutors who engage in pretrial, win-the-hearts-and-minds of the jurors press conferences. The defense lawyers chimed in to proclaim their defendants’ ‘innocency,’ as Raleigh did, but the damage to their reputations was done.”

  “I find this attitude surprising, and refreshing, coming from the district attorney of New York,” Epstein said, grinning at Hall.

  “Not really,” Karp replied. “Mr. DA Francis Garrahy established the model here in Manhattan before I was born. He mentored us to understand that the unjustly accused must be exonerated, and that not to prepare thoroughly, and not to courageously and vigorously represent the people were the cardinal sins of prosecution.”

  When Karp finished there was a moment of silence. Then Plaut began to clap and was quickly joined by the others. With cries of “Hear, hear,” they raised their glasses of orange juice and toasted his speech. Florence produced a flask of brandy and, after applying a generous dollop to his orange juice, passed it to the others, who spiked their drinks with an air of teenagers getting away with something.

  The alcohol seemed to go straight to Karp’s head and in the glowing effect he asked about the origins of the Sons of Liberty Breakfast Club. The answer was somewhat vague but essentially came down to their wives having grown tired of their postretirement hanging around the house and kicking them out. “We were driving them batty,” Florence announced proudly.

  However, there was a darker reason. “We were sitting right here when the bastards flew the planes into the World Trade Center,” Gilbert said, pointing to the empty space four blocks to the south where the towers had once stood. “We thought that, perhaps, it was a good time to remember that during times of stress and fear, the protection of civil liberties is all that much more important.”

  “Well said,” Karp responded. “To paraphrase Roosevelt, our greatest fear when it comes to liberty should be fear.”

  Most of the rest of the meeting was occupied by the arrival of breakfast and the group teasing the pretty girls who walked by. Full of pancakes and banter, Karp rose to leave and get the rest of his morning walk in.

  “I think I speak for all of us, Mr. Karp, when I say that we enjoyed your company and your contribution to our little breakfast club,” Plaut said. “Perhaps you’ll join us again?”

  “I’d be honored,” Karp replied.

  Florence passed a different silver flask to Karp, who unscrewed the top and sniffed. “Whiskey?” he asked, and then looked at his watch. “At nine a.m. on a weekday?”

  “How do you think we lived this long?” Florence replied, and the others laughed.

  Karp shook his head and raised the flask to his lips as the others shouted, “To Raleigh! This is sharp medicine that will cure all my ills.”

  “To sharp medicine!” the others shouted again.

  As they watched Karp depart, Sunderland leaned toward Plaut. “Interesting fellow, wouldn’t you say?

  “Yes,” the judge answered. “We’ve been following his career for quite some time.” He turned to Sunderland. “Did you get the package off that our dear departed friend left in our care?”

  The group fell silent and turned to the priest. “Yes. If you remember, that’s why I was heading to see Mr. Karp on the day he was shot. But due to concerns over traitors and such, we agreed on this new route. It should have arrived already.”

  “Good, good,” Epstein said. “That should get the wheels in motion.”

  “So now we just watch?” Gilbert asked.

  “Yes, now we just watch,” Plaut replied. “After all, that’s what we’ve done for more than two hundred years.”

  Unawa
re that he was still the subject of discussion back at Kitchenette, Karp continued four blocks to Vesey Street and stood looking at the emptiness that had once been occupied by the World Trade Center. It wasn’t just that the towers were missing, he thought, but it was as if their destruction had created a vacuum that pulled the eye to the hole in the ground and the mind to the numbing thought of what had happened.

  Hard to believe that five years had passed. So much had changed. A war in Afghanistan. Followed by another in Iraq. All falling under the general rubric of the War on Terrorism. But were we winning these wars? Do we have the strength of character to win?

  As many people had died that day as had been killed at Pearl Harbor sixty years earlier, launching the United States into a war that U.S. leaders had from the beginning said would end with one acceptable solution. Unconditional surrender. No negotiations. No allowing the enemy to keep the means to wage wars of aggression. It was surrender or die every last man, woman, and child if necessary. And they’d used atomic weapons to make the point.

  What, Karp wondered, would U.S. leaders and, more important, a wavering public be willing to accept from al Qaeda, or an Islamic extremism in general that set as its goal a world caliphate? Unconditional surrender? The death of every Muslim, every man, woman, and child in those parts of the world that threatened the West?

  And what would the United States and its allies be willing to accept in casualties to win? Not just in the lives of their young men and women, but in their way of life and their civil liberties. Tens of thousands of lives? A military government? A dictatorship that promised to keep them safe in exchange for their freedoms?

  Watching the smiling, joking tourists standing in front of the observation area and snapping photographs as though they were at the Grand Canyon, Karp imagined the same scene at Fiftieth and Fifty-first streets, where there would have been a hole in the ground if Andrew Kane and the terrorists had succeeded in blowing up St. Patrick’s Cathedral.