“He’s pretty new. I don’t know much about him,” said Marc. He rose and walked over to one of the court officers who he knew slightly. “How’s this Judge?” Marc whispered.
The officer turned his back to the judge’s desk and rotated his hand from side to side. “He’s not too bad on a plea. He doesn’t like to send anyone to jail, yet. On a hearing, he holds most of the stuff in. You know, he’s new.”
“Thanks,” said Marc, returning to his chair.
Maricyk inquired with a jut of his jaw.
“He apparently doesn’t throw many cases out,” said Marc. “But at least we’ll be able to get a line on the D.A.’s case, hear what Schmidt is going to say.”
“Do I have to say anything?” Maricyk asked. “What do I have to do?”
“Nothing,” replied Marc. “We’ll let them present their case, see if there’s enough to convince the Judge that a crime has been committed.”
“Officer,” said the Judge. “See if you can turn the air conditioning higher. It’s pretty close in here.”
The court attendant touched the dials. The machine squawked and began pelting out a new, louder rhythm.
“Better leave it where it was,” said the Judge. “Let’s proceed.”
The case was called. Schmidt took the stand, swore to tell the truth. The D.A. asked him to explain to the Judge what had occurred the night he arrested Maricyk.
Schmidt testified that he and his partner stopped Maricyk for an illegal U-turn. Schmidt also tesified that Maricyk tried to talk him out of issuing a ticket. After Schmidt refused to hear Maricyk’s plea, he testified, Maricyk became belligerent and tried to punch Schmidt. Thereupon, Schmidt arrested Maricyk and brought him to the station house.
“Now while at the station house, Officer,” said the D.A. continuing, “did anything else occur?”
“Yes, the defendant said he’d make it worth my while if we just gave him some kind of disorderly conduct summons.”
“What did you do then, if anything?” continued the D.A. “Explain it to the Court.”
“I said, wait a minute, I want to talk to my partner about how much it’d be worth. Then I went outside, and told the sergeant. He gave me a small wire recorder, which I put under my jacket. I went back in, and the defendant kept talking about how he didn’t need any trouble, he’d make it worth my while. So I asked him how much. And he said that was up to me, twenty bucks. I said, okay, where’s the dough? He took it out of his pocket and tried to hand it to me.”
“And then what happened?” asked the D.A.
The Judge was leaning back in his chair, listening. The stenotypist’s moving fingers were recording everything that was said.
“I placed the defendant under arrest for attempted bribery.”
“Do you have the recording of what the defendant said to you that night?” the Judge asked.
“Not with me. It’s at the station house.”
“But you do have the recording?” asked the D.A.
“I do.”
“I have no further questions, Your Honor.”
“Cross-examination, Counselor?” asked the Judge.
Marc rose. He knew it was pointless to cross-examine Schmidt. This wasn’t a trial after all, and surely there was enough evidence on the record for the Judge to find a crime may indeed have been committed. As a practical matter, after hearing Schmidt testify about having recorded the bribe conversations, Marc realized that the best service he could render Maricyk was to get the D.A. to consent to a guilty plea to a reduced charge, and have Maricyk take such a plea before a reasonable judge.
Marc knew that more than ninety per cent of all criminal charges were disposed of through plea bargaining. Indeed, although many critics raise their voices in derision of such a system, if there were no dispositions of cases by the D.A. offering to the defendant a lower plea than the one originally charged, and if the defendant didn’t, in turn, offer to have a plea of guilt entered against him to the lowered charge; if every case was disposed of only by trial, our courts would have to work around the clock and personnel—judges, D.A.’s, lawyers, officers, stenographers, clerks—would have to be trebled, and still the overflow of untried cases each year would fill the jails to bursting.
And those who would suggest that pleas of guilty should be permitted, but not lesser pleas to lesser charges, should recognize as a fact of life that it would not interest a defendant to plead guilty to the top count or charge against him if the worst thing that could happen to him at a trial is to be convicted of the very same count. He might as well proceed to trial and take a chance. After all, he might win. And if he lost, he’d only be convicted of the top charge against him anyway.
Moreover, in a very substantial number of cases, it isn’t that the D.A. is granting a unilateral favor to the defendant in permitting a plea to a lesser count—only the D.A., charged with the responsibility of prosecution, has the right to offer a lesser plea. For many a case is based on hazy evidence, or unsure witnesses, or illegal evidence, and if, indeed a trial were to ensue, there might be a hung jury or an outright acquittal.
Since the outcome of trials is an uncertainty, for both prosecution and defense, and since the D.A.’s desire to permit the defendant to plead guilty to a lesser charge is directly tied in to the D.A.’s evaluation of his chances of success—the weaker the D.A.’s case, the more prone to a lesser plea he is, and vice versa—the D.A., in the ordinary instance of plea bargaining, is doing no more for the defendant than the defendant is doing for the People.
Most of the time plea bargaining is a fair exchange, a good bargain which can usually be measured when neither side is completely pleased.
In Maricyk’s case, Marc realized the D.A. had a strong case, and the D.A. would probably be less amenable to a lower plea.
“I have no questions of the witness,” said Marc.
“Is that the People’s entire case?” asked the Judge, looking at the D.A.
“Yes, sir.”
“Do you have any witnesses?” the Judge asked Marc. He smiled pleasantly. He had an air of affability about him; particularly since he had a case before him that was solid, there were no complex issues to decide. He was astride the matter firmly.
“No, sir. The defense rests,” Marc replied.
“Motions?” the Judge asked.
“Yes, sir. I move first to dismiss those charges alleging possession by the defendant of marijuana, on the grounds that there is absolutely no proof whatever in the record concerning any narcotics in this case.”
“No, I’m going to deny that motion,” the Judge said. He had a pleasant, don’t-take-it-personally smile on his face. “There’s enough here to hold this case for the grand jury.”
“Your Honor,” said Marc, “most respectfully, I suggest that there may be some evidence relating to an alleged attempted bribe, but I respectfully submit you can’t hold a charge concerning marijuana in this case where the D.A. has failed totally to produce any evidence whatever concerning the same.”
“Denied.” The Judge smiled. “Any other motion?”
“May I ask Your Honor for the record on what grounds you are denying the defendant’s motion to dismiss the marijuana charges?” Marc asked pointedly.
“Counselor, I’ve made my decision. You have an appeal available at the appropriate time if you so desire,” replied the Judge. “Any other motions?”
Despite the fact that the Judge was being hard-nosed and seemingly legally obtuse, he was acutely aware at this precise moment, just as were Marc and the D.A., and even Maricyk, that Maricyk was stretched over a barrel by the evidence; that a jury, if they had any doubt of Maricyk’s guilt after Schmidt testified, would be more than assured by the tape recordings. Thus, the Judge knew that it was 100 to 1 that Maricyk would plead guilty. It was also 100 to 1, therefore, that there would be no appeal by Maricyk. And, thus, what difference did it make what he decided, right or wrong, about marijuana, about anything at the hearing?
“Denied,
Counselor,” said the Judge. “I think there’s enough to hold this attempted bribery, and that’s what I’m going to do. This is a felony and must therefore go to the grand jury. If there’s merit to what you say, the grand jury can dismiss it.” He nodded with assurance. “The Supreme Court can throw it out if they want. I will not.” The Judge wrote his decision on the papers before him.
“Will Your Honor consider a reduction of defendant’s bail at this time?” asked Marc. “Particularly since the defendant and his family are totally incapable of meeting the present bail conditions. He hasn’t been able to make bail since his arrest.”
“What does the D.A. have to say about that?” asked the Judge. “Will you consent to lowering the bail?”
The young D.A. shook his head. “I’m not going to consent to anything, Judge.”
“Your Honor, you do not need the consent of the D.A. to lower the bail,” said Marc. “That’s solely the Court’s province. And I urge a reduction over the D.A.’s reluctance where the D.A.’s position is so arbitrary and totally without any relation to the absence of danger of this defendant not appearing to answer the charges. Since that’s the only purpose of bail, to insure the defendant’s presence at future proceedings, and since the D.A. hasn’t even suggested there would be any danger of this defendant fleeing the jurisdiction and not answering the charges, I respectfully suggest a lower bail is eminently appropriate.”
“I’m afraid, Counselor, that I’m not going to reduce the bail at this time,” said the Judge. “You can make an application in the Supreme Court if you want to lower the bail.”
“May we approach the bench, Your Honor?” Marc asked.
“Yes, surely.”
The D.A. skirted one side of the counsel table, Marc the other. They met at the judge’s bench.
“I’m just inquiring, Your Honor, if the D.A. is amenable to a disposition at this time,” said Marc.
“This is certainly a case for disposition, Mister Conte,” agreed the Judge. He looked to the D.A. “You willing to reduce the charges?”
In the Criminal Court, where there is jurisdiction over misdemeanors only, the felony charges have to be reduced to misdemeanor proportions, before the Court has any jurisdiction.
“No, sir,” said the young D.A. “This is an out-and-out felony. I won’t reduce it to a misdemeanor.”
“That’s all I can do, Counselor,” the Judge said to Marc.
“Very well, sir.”
“Hold the case for the grand jury,” the Judge said aloud for the record. “You’ll be notified when you’re to appear in the Supreme Court.”
“Thank you, sir,” Marc said, turning toward the rear of the courtroom. Schmidt accompanied Maricyk back toward the bull pen to await return to The Tombs.
Mrs. Maricyk waved to her husband as he was escorted from the courtroom. She held her hand over her mouth to stifle her emotions as she turned to join Marc.
“What was that all about, Mister Conte?” asked Mrs. Maricyk. She was very upset. “I hope you don’t think I’m dumb, I just don’t know what’s going on. I’m all confused.”
“The Judge held the case for grand jury action,” said Marc.
“When does that happen?” she asked. “I didn’t hear no date.”
“The D.A. schedules the grand jury,” said Marc. “I’ve explained that we don’t go to the grand jury unless Joey testifies. Other than that, the D.A. conducts the grand jury and then notifies us if Joey’s indicted.”
“They didn’t even say anything about marijuana,” said Mrs. Maricyk. “Just like you said. Joey’s going to be indicted for that too?”
“I’m not sure,” replied Marc. “He shouldn’t be.”
“How about what the Judge said about getting lower bail in the Supreme Court?” she asked.
“It’s possible,” Marc replied. “But I need the minutes of this hearing first to show the Judge in the Supreme Court.”
“Do it, Mister Conte. Don’t let him stay in jail so long. How long will that take to get the minutes?”
“That’s difficult to say. The stenographers are so back-logged or inefficient, or a combination of both, that it’ll take about a week to ten days to get the minutes. I imagine if we paid three times more than the regular price, they’d somehow find a way to speed it up.”
Mrs. Maricyk closed her eyes hopelessly.
“Don’t worry about the money,” Marc said. “I’ve already told the stenographer I want the minutes.”
“Don’t worry about the fee, Mister Conte. You’ll get it. I promise.”
Marc nodded.
“Can’t nothing be done, meanwhile?” she asked.
“Sure, I can apply without the minutes, and this same D.A. will appear upstairs to oppose a reduction. At least if a Supreme Court Judge reads the minutes, he can reduce the bail based on the legal grounds which appear in the record.”
“This place stinks more all the time, Mister Conte. How can you stand it?”
“Because if everybody felt the way you do, nobody’d ever get out of jail.”
13
Thursday, August 17, 1:30 A.M.
Jack O’Loughlin stood in the darkness of his living room still half asleep, dressing mechanically as he gazed out through the picture window at the dark, deserted street below. O’Loughlin lived on the upper floor of a brick two-family house on Colonial Road and Seventy-third Street in Brooklyn. It was a good family kind of neighborhood. Nothing much ever happened on that tree-lined street in front of O’Loughlin’s house, even at peak hours, save for an occasional pedestrian or a passing car. Nothing at all ever happened at this time of night. O’Loughlin twisted his wrist to pick up some reflected light from the street lamp. A few grains of sleep still clouded his eyes, so he had to stare at his watch a couple of seconds until he could make his eyes focus. It was 1:35 A.M.
O’Loughlin finished zippering his pants, then buckled the heavy leather belt he always wore around his waist. He reached down in the darkness and picked up the holster and pistol that were on the table. O’Loughlin cracked the cylinder and felt five live rounds into the chambers, then slipped the holster into the front of his waistband until a metal retaining clip on the holster caught the leather belt.
He heard a noise behind him. O’Loughlin turned. His wife was rocking the baby on her shoulder, trying to lull little Jamesy back to the sleep that the ringing phone had disturbed.
“What did they want this time?” his wife asked. She was thin, short; her head was covered in a mass of vari-sized curlers.
“They didn’t say,” O’Loughlin replied, donning a plaid, short-sleeved sport shirt. He left the tails of the shirt outside his pants to better conceal the pistol. “Maybe I better wear the jacket, just in case,” he said almost to himself. He removed the pistol and holster, placing them back on the table, as he stuffed the shirt tails inside his pants.
“I’m going to bed,” shrugged the wife. Little Jamesy was off again. “Don’t forget we’re going to Lally’s racket tonight.”
“I won’t forget,” said O’Loughlin. He put the pistol back in his waistband, then lifted a light wash-and-wear suit jacket from the back of a chair. He carried the jacket with one finger through the loop at the back of the neck; he’d put it on when he got to the D.A.’s office. O’Loughlin looked out the picture window again. Still deserted; not even the leaves were fluttering. He could feel perspiration already starting to soak into the shirt at the small of his back. One of these days, he was going to spring for an air conditioner for the apartment. Once he got past the sergeant’s test, they’d be okay, he figured, for the hundredth, no, thousandth time. Sergeant’s money was pretty good.
A dark Plymouth sedan cruised slowly toward O’Loughlin’s house, its headlamps sweeping an ever advancing patch of lighted asphalt before it. Mickey’s car, thought O’Loughlin, turning. He descended the flight of steps to the street quietly, so as not to wake up his in-laws. His wife’s parents owned the house and lived downstairs; O’Loughlin and his wi
fe and little Jamesy lived upstairs. Not rent free, O’Loughlin always reminded himself. The way he figured it, if he had a daughter, which he didn’t, just yet, and he was retired as a Captain from the job with a pension, as his father-in-law was, and he had an empty apartment in his house, he sure as hell would let his daughter and her husband live there without gouging out the rent; especially when the daughter and her husband didn’t have enough money saved, just yet, even for an air conditioner.
O’Loughlin opened the front door and walked to Mickey Cassidy’s car that was at the curb.
“What the hell is this all about?” O’Loughlin asked as he hung his jacket on the hook over the rear door. He sat in the front seat next to Cassidy.
“What the hell do I know?” replied Cassidy. “I was down at Toolan’s watching the movie on the late show and having a few good night brews when the wife called and told me they called.”
“You were still sitting at Toolan’s having some good night brews?” O’Loughlin looked at Cassidy. “You’re okay, aren’t you?”
“Are you kidding me or something?” asked Cassidy. “We only had a couple. Mostly bullshitting. We weren’t doing any serious drinking.” Cassidy guided the car onto the lower end of the Gowanus Highway, heading toward the Brooklyn-Queens Expressway and the Queens County D.A.’s office.
Both O’Loughlin and Cassidy were on the Queens D.A.’s squad. They were regular New York City police detectives, but their assignment was to the D.A.’s office. Which was a pretty good assignment, and you needed a pretty good rabbi, that is, connection, to get it. O’Loughlin’s father-in-law was not only his landlord, he was his rabbi. Lately, however, with all the attention being given to organized crime, the D.A.’s squad was really stiff duty. Marty Braverman, the Queens D.A., was pushing all kinds of investigations through his rackets grand jury, directed against organized crime figures. Braverman wasn’t going to let the Feds steal all the spotlight on the organized-crime stage, particularly in Queens.
“It must be something big,” said Cassidy. “Aaronwald wouldn’t even tell me what the hell it was all about.”
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