by Sol Stein
Urek nodded slowly. The sergeant poised his pad and pen.
“You were taken into custody by the Police Department pursuant to a warrant issued by Judge Clifford at one A.M. this date alleging that you committed the crime of first-degree assault on the persons of Edward Japhet, his father, Terence Japhet, and Lila Hurst on or about eleven P.M., January 21, and upon the person of Edward Japhet in Phelps Memorial Hospital on or about nine P.M. January 24.”
Mr. Metcalf looked away from his notes. “Now, young man, it is quite possible that a plea of guilty to a lesser offense would enable you to be tried in the local court—your counsel can waive the jury if he likes—which might effectively reduce your chances of drawing a long sentence in the Elmira Reception Center. One of the three boys allegedly with you on the night of the assault has a past conviction and may want to turn state’s evidence and be a witness against you. Before discussing the matter more fully with you, I must advise you that you have a right to remain silent and refuse to answer questions.”
Urek stared at him as if he were crazy.
“Anything you say,” continued Mr. Metcalf, “may be used against you in a court of law. As we discuss this matter, you have a right to stop answering my questions at any time that you desire. You have a right to talk to a lawyer before speaking to me, to remain silent until you can talk to him, and to have him present during the time you are being questioned. If you desire a lawyer but you cannot afford one, the Legal Aid Society…”
“Mr. Metcalf,” said the sergeant, “he’s represented by Thomassy.”
“I see. Do you understand each of these rights which I have explained to you?”
Urek looked blank.
“Answer yes or no.”
“Well, I—”
“Now that I have advised you of your rights, are you willing to answer my questions without having an attorney present?”
“I want Mr. Thomassy.”
The sergeant glanced at the wall clock. “He’s probably in his office.”
“Do you want to talk to Mr. Thomassy on the telephone?”
Urek nodded.
The sergeant unlocked the cell and, holding Urek by the arm, led them into the squadroom next door and to a phone. The sergeant looked up the number and dialed. When the phone started ringing, he handed the instrument to Urek.
“Mr. Thomassy, this Mr. Metcalf is asking me questions. He says one of my friends is going to rat on me.” Urek, his heart drumming, listened, then handed the phone to Mr. Metcalf.
“Metcalf here.”
Metcalf s face slowly turned pink.
“Yes,” he said.
“All right,” he said.
“Yes, certainly I understand, Mr. Thomassy,” he said and hung up, pointing to Urek and motioning to the sergeant to take him back to his cell.
*
Thomassy put the phone down on the cradle and thought, that son of a bitch Metcalf, trying that Junior League ploy on a sixteen-year-old kid, he ought to be disbarred. If he’d gotten anything resembling a confession, I would have got the whole case thrown out faster than a finger-snap. I should have let him try. So he’s going to charge the other kids and get one of them to cop a plea. That warning is very much appreciated, Mr. Metcalf, thank you.
*
As Judge Clifford looked about the courtroom, he thought that some of these people were going to be disappointed by not being called, especially those who had brought lawyers with them. He probably could dispose of the trivial cases quickly, but it was difficult to predict when some minor offense would draw a contest. In any event, habit directed him to deal with serious matters first. Maybe he could get this Urek case out of the way. He asked Mr. Metcalf and Mr. Thomassy to come up to the bench.
“Gentlemen, I’d like to send this matter on to County Court. George, have you considered waiving a preliminary hearing?”
Metcalf prudently stood silent. He turned to get Thomassy’s reaction.
“Well, your honor,” said Thomassy, “if you were to suggest that, I don’t think I could accept your Honor’s recommendation.”
“Because?”
“Naturally, my client would insist on a preliminary hearing.”
Judge Clifford sighed. This wasn’t going to be a one-two-three. “Have you seen the information and the depositions?”
“Yes,” said Thomassy, “but I think we have a dearth of objective witnesses to the alleged offense.”
“Oh, come on now,” Metcalf broke in.
Thomassy raised his voice just enough to override. “We don’t have to trouble the County Court—”
“It’s not a question—”
“I think the whole matter should be dismissed right here,” said Thomassy.
Judge Clifford leaned forward on his elbows.
“As far as I can see,” Thomassy said, “no crime has been committed.”
Mr. and Mrs. Japhet, in the second row, strained to hear.
“If we start sending fist fights between school kids to the grand jury—”
“I object!” said Mr. Metcalf.
“Well, we’re trying to keep this informal,” said the judge. “But state your objection.”
“The assailant—”
Thomassy cut in, “The defendant!”
“The defendant,” continued Metcalf, “is sixteen years old. Under the law, he’s an adult, not a kid.”
“Your Honor,” said Thomassy, his voice suddenly quiet, “this defendant is less than sixteen and two months old. If this alleged offense had happened sixty days ago, it’d all be a juvenile matter for quick disposition in the Family Court.”
“There has to be a demarcation line somewhere,” snapped Metcalf, “and the law says—”
“I know what the law says, Mr. Metcalf,” said the judge. “The bench would like to send this on, to see if the grand jury in White Plains would find a true bill because frankly I see the possibilities of a borderline here.”
“Oh, your Honor!” said Thomassy.
“What is it, Mr. Thomassy?”
“I’m sorry, your Honor. It’s just that I hate to see things blown up. Assault third is a misdemeanor which can be disposed of right here. It seems to me that a schoolyard fist fight—”
“Your Honor, Mr. Thomassy is forgetting the second assault in the hospital, with a deadly weapon—”
“Now, hold it, Metcalf, the hospital is in a different jurisdiction and—”
“Gentlemen, we are jumping way ahead,” said the judge.
“That’s exactly my point,” said Thomassy. “I think this ought to be heard in an orderly fashion, here in this court.”
“Assault first and second are felonies and would have to be heard in White Plains anyway,” said Metcalf.
Thomassy figured the case must have some extra significance for Metcalf. He was an amateur, who let his real feelings show instead of limiting his expressions to those that might prove useful.
“I was trying to point out that Phelps Memorial is in the village of North Tarrytown, and whatever allegedly happened there is not in this jurisdiction.”
“Well,” said the judge, “I’d have to consider other offenses by the same defendant in setting bail.”
“I don’t want to prejudice my client’s position with regard to bail, your Honor,” said Thomassy. “Cutting a tube, as it is alleged happened in the hospital, is not physical injury to a person. We’re prepared to show that no physical injury did or could come about through the cutting of the tube.”
“Your Honor,” said Metcalf, “the victim was severely injured, confined to the intensive-care unit of the hospital for days, and—”
“Hold everything,” said Thomassy. He had the eye of everyone in the courtroom. “Mr. Metcalf knows, I am sure, that we’re dealing with two separate allegations. There was allegedly a fist fight which ended with one of the combatants in the hospital. A fist fight will usually be third degree, in the absence of intent to cause serious physical injury by means of a deadly weapon or dangero
us instrument.”
“But the knife!” said Metcalf.
“The knife,” said Thomassy, “has only to do with the second allegation, in another jurisdiction, and no one, I repeat, no one was hurt, much less hurt seriously, by the incident in the hospital.”
“Your Honor, the defendant went into that hospital with intent to kill—”
“We are not dealing with intentions right now, Mr. Metcalf, we’re trying to get at the facts.”
“The fact is—”
“The fact,” said Thomassy, “is that we haven’t even established who was in the hospital.”
“Your Honor, the nurse’s aide can identify the defendant.”
“Who did you say?”
“The nurse’s aide, Alice Ginsler.”
Thomassy repeated the name to himself twice. Then he spoke, even more quietly than before. “Your Honor, Mr. Metcalf can call whoever he wishes to testify in due course, but before we get lost in the fantasies of what might or might not have gone on in the head of someone in the hospital that night, shouldn’t we be clarifying the incident at the school?”
Judge Clifford said, “Mr. Metcalf, I think the defense has a point. We have to keep the two incidents separate.”
“But, your Honor, the same people were involved in both incidents.”
“The fact that one assault allegedly followed another assault upon the same person is a matter for separate consideration.” In mid-sentence the Judge noticed a man in the second row whispering agitatedly to the woman next to him.
“This is insane,” said Terence Japhet to his wife. “It’s so clear what happened.”
Mrs. Japhet tugged at his sleeve. The judge was staring at him.
“I had hoped,” said Judge Clifford, “to save the people and the defendant time, but it looks now as if we can’t shortcut the procedures.” He looked at the people who had hoped to have their cases tried that day. “You’d better reschedule all these other people for Thursday,” he said to the police officers.
There was a low moan in some parts of the room. The judge tapped his gavel once, lightly. Four or five people left the room. Several others consulted in whispers with their lawyers, and the policeman ushered them out as well so that they could talk beyond the doors and not disturb the court.
“Well, then,” said Judge Clifford. “We’re not trying the case now, we’re trying to determine whether he should be bound over. If by any chance the results of the preliminary hearing show the possibility of first- or second-degree—”
“I believe we can,” said Mr. Metcalf.
“Now, let’s wait,” Thomassy thundered. Even the policeman at the door turned to look.
“I’m sure Mr. Metcalf didn’t mean to interrupt.”
“I thought your Honor had finished.”
“All right,” said the judge. “Now, I don’t want to make things complicated. There was allegedly a fight. Mr. Metcalf, you’ve got to satisfy me by evidence that this is a case of first- or second-degree assault, and that there is reasonable cause that the defendant named in your complaint is guilty. If what you produce convinces me that the grand jury might indict, I’ll pass it on. If not, I’ll hold him here for trial on assault third. I’ll have to determine where the case will be tried, and then—”
“I’m sure your Honor means,” said Thomassy, “that he’ll first determine whether there is anything to try.”
“Yes, of course, Mr. Thomassy. If there seems to be a case, and we determine the degree of assault involved, I’ll decide whether we’ll hear it or whether it goes to the grand jury in White Plains. What is your pleasure?”
“I hope we won’t have to go all the way for a grand-jury indictment to be dismissed for lack of evidence. I believe,” said Thomassy, “that it can be done right here.”
“You are going to argue…”
“I am asserting that no crime has been committed and the distinguished attorney for the people cannot so prove.”
“Mr. Metcalf, how many witnesses do you intend to call?”
“Five.”
Thomassy quickly ticked them off in his head: Ed Japhet, the father, the girl friend, the nurse’s aide, and—it had to be one of Urek’s gang, offered a deal and squealing. Something will have to be done about that.
“Can you have your witnesses here at two o’clock?”
“It’d be easier tomorrow morning,” Mr. Metcalf said.
“Are they all local people?”
“Yes, your Honor.”
“Are any of them employed?”
“Two, your Honor.”
“By?”
“The high school and the hospital.”
“I’m sure their employers will sympathize with the calendar problems of the court. Let’s have your witnesses here at two.”
Judge Clifford felt satisfied. It was easier to find out what went on if the witnesses couldn’t be rehearsed at length.
“Mr. Thomassy,” said the judge, “I notice the defendant has been staring down throughout this hearing. Is he ill?”
“I don’t believe he’s ill, your Honor.”
Urek glanced at Thomassy from under his hands. Thomassy nodded. Urek let his hands fall and looked around for the first time.
“I hope the judge hasn’t inconvenienced your afternoon,” Thomassy said to Metcalf.
“Not at all, Mr. Thomassy,” said Metcalf, feeling desperate about collecting his people by telephone on such short notice with no chance to brief them properly.
Everyone stood so that the judge could leave the courtroom. The last to stand was Mr. Japhet, whose head clanged with the words, “No crime has been committed.” Nothing mattered now, he thought, but that justice be done. Or was it vengeance he wanted?
Chapter 16
“Do you promise to tell the truth, the whole truth, and nothing but the truth, so help you God?”
“I do.”
Mr. Metcalf laid the Bible aside carefully, as if it were a living thing. “Name and occupation,” he asked.
“I’m sorry, I didn’t hear you.”
“Please state your name and occupation.”
“Terence Japhet. I’m a teacher at the high school.”
“What do you teach?”
“Biology.”
“You are the complainant in this case?”
“Yes, I signed the complaint.”
“How long have you been at the high school?”
“Fourteen years.”
“Do you know the school well?”
Thomassy was on his feet..
“Now, gentlemen,” said Judge Clifford, anticipating Thomassy’s objection, “this is not a trial. It’ll take forever if you constantly object to each other’s questions. We’re only trying to hear from the witnesses themselves, in order to find out whether we’ve got a felony that needs moving to County Court or a misdemeanor that can be handled right here.”
“Or nothing,” said Thomassy.
“Or whether the case is dropped, correct. Mr. Metcalf, let’s find out what happened at the school and in the hospital. If you want to make a record, make it at the trial.”
“If there is to be a trial,” said Thomassy.
“Mr. Thomassy, I have very much in mind your feeling that there may be no case at all. Any further reminders will constitute an annoyance.”
“I’m sorry, your Honor.”
“Let’s just find out as quickly as we can what the witness saw and heard. Mr. Japhet, can you describe in your own words what happened on the night of January twenty-first?”
“My son was to do a—”
“Your son is Edward Japhet, the person who was injured in these incidents?”
“Well, he was the principal victim.”
Judge Clifford could see Thomassy bristling. “Mr. Japhet, we’re trying to narrow things down.”
“I understand, your Honor, but while my son’s injuries are the primary concern, his friend, the girl he took to the dance, was molested, and my automobile was damaged.”
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“Well, let’s go on.”
Thomassy relaxed in his chair, his feet stretching to their full length under the table. If opposing counsel had to tread warily in order to avoid constant objections, the man would have to concentrate on the formulation of his questions rather than their effect, which was what counted. Metcalf could be kept in line. But the judge could get annoyed. There was a fine line between keeping the pressure up and antagonizing the judge.
Metcalf resumed. “You were telling us that your son was going to do something on the particular evening in question.”
Jesus, thought Thomassy, kids in law school can pose questions better than Metcalf. He liked a tough opponent. Metcalf was sponge cake.
Japhet was talking. “My son, Ed, that is, was going to do a magic show for the school dance. I’ve seen his magic tricks, and I wasn’t one of the faculty people assigned to chaperon that evening. So I was going to drive Ed and his girl, Lila, to the dance and pick them up afterward.”
“Did you do so?” asked Mr. Metcalf.
“Yes. He had two suitcases full of equipment, and I helped get those to the school, too. We picked up Lila—Miss Hurst—on the way. It was snowing.”
“Go on.”
“Well, nothing untoward happened on the drive to school. I dropped the kids off. Ed was to call me to pick him up.”
“Did he in fact call you?”
“Yes.”
“What time was that?”
“I’m not sure. I’m afraid I had dozed off in front of the television.”
“We can establish the time in other ways. What happened when you arrived at the school?”
“To pick them up?”
“Yes.”
“I didn’t see them at the front. I assumed they’d be inside because the snow was still coming down.”
“Did you see anyone else when you drove up to the school entrance?”
“No, no one. I parked just past the school-bus zone, I’d say fifty feet past the entrance, where the driveway starts to go down.”
“And then?”
“I went inside the school building and saw my son and his girl down the hall. Ed had the bags. I took one, and Lila followed us.”
“How long would you say you were inside the school building?”
“Three or four minutes, no more.”