“Then let’s go, let’s handle this calendar with dispatch. Let’s try dispatch instead of expedition this time.”
“Very well, Your Honor. Shall I arraign the defendant for the record?”
“You’ve done that twice already, for heaven’s sake. Is there any doubt at this point that this is Oscar Johnson, the defendant?”
“My name is not Johnson, it’s Ali Al-Kobar,” Johnson interrupted with disdain. “I don’t have no slave name.”
The Judge shook his head in exasperation and twirled his seat until he faced the wall.
“I’m being persecuted on a political charge here,” Johnson continued loudly. “We were demonstrating against the offensive conditions of that pigsty called The Tombs and now we’re being persecuted for a crime because we demand being treated like human beings.”
“Right on,” shouted someone from the court audience.
“None of that,” the Judge snapped, twirling forward again. He pounded his palm on the bench. “I’ll clear the courtroom.”
There was a group of young people, sitting in the back of the courtroom listening to the preliminary proceedings of the The Tombs riot trial. Marc recognized the pretty blond girl who had been demonstrating outside the court the day of the riots. What was her name again? Andrea something, Marc recalled. He remembered she had asked him for his card. Apparently she remembered too; she smiled at Marc.
“Mister Oscar Johnson also known as Ali Al-Kobar,” said O’Reilly, unflapped. He spoke slowly, carefully. “You have not been properly or completely arraigned. Please be kind enough to listen to my admonitions and instructions as to your rights before you speak further.”
Johnson was silent.
O’Reilly nodded. “Now, do you have an attorney, Mister Johnson? If you do not, as you are entitled to an attorney at all stages …”
“Mister Johnson,” the Judge cut in, speaking directly to the defendant.
“Ali Al-Kobar,” Johnson demanded.
“Fine, fine,” said the Judge quickly. “Whatever you want to call yourself is satisfactory to the Court. As long as we get on with it. You are entitled to a lawyer. I’ll appoint an attorney, if necessary, at the county’s expense for you. Do you understand?”
“I already had me a Legal Aid lawyer, Your Honor,” said Al-Kobar. “He was no good. He didn’t even want to come to see me to discuss my case. He didn’t know nothing about it. I want my own lawyer.”
“Can you afford to retain your own lawyer, Mister Johnson?” asked the Judge.
“Al-Kobar,” Johnson insisted.
“I meant Al-Kobar,” said the judge curtly.
“I been laying up here in The Tombs for a long time, Judge,” said Al-Kobar. “Even before The Tombs trouble. I don’t have no money to pay a lawyer. Does that mean that a poor Black man charged with a political crime for waiting to be treated like a human being, that he is prejudiced as a result of his state of fundlessness?”
“It means nothing of the sort, sir,” retorted the Judge. “And I want you to know and the record to reflect clearly that no one is prejudiced in my court because of race, creed, color, or condition of finances.” The Judge was looking straight down at the defendant. “You’ll have a lawyer appointed. A private lawyer, not a Legal Aid lawyer. Is that what you want?”
“I want my own lawyer,” said the defendant.
“And you’ll have one. And we’ll do this expeditiously, Mister Al-Kobar. Was I correct that time?” the Judge probed cuttingly.
The defendant stared defiantly at the Judge.
“You’re one of The Tombs riot defendants,” said the Judge. “And the case is being prepared for trial for the September term. Is that right, Mister D.A.?”
“That’s what Mister O’Connor said, Your Honor,” replied the young D.A.
“Yes,” agreed the Judge. “And you, Mister Al-Kobar, have a motion to suppress evidence pending. That will be handled by the trial judge just prior to the trial.”
“What if I win the motion?” asked Al-Kobar. “Or are you prejudging the motion, Your Honor?”
“I’m doing nothing of the sort,” the Judge said angrily. “I’m not even going to be the trial judge. I’m just going to make sure you have a lawyer. Now I will certainly provide you with the opportunity to be represented, as is your right, as I have already stated, but it must be done with expedition. There are two other defendants in your case, which is the first of the riot cases, and you are charged with initiating the riots in The Tombs. Now this is a matter of grave concern to the public. The District Attorney wants to proceed with the trial without delay.”
“It is a matter of grave concern to me too, Judge,” said the defendant. “I want an attorney of my own choosing.”
“Now just a minute. Just a minute,” said the Judge. “The Court will appoint an attorney for you. Those judges in the Appellate Division have been judges longer than you’ve been out of your diapers, so I think they can pick a better lawyer for you than you could for yourself.”
“I don’t want no lawyer then,” said Al-Kobar curtly. “I want a lawyer of my own choice, or I don’t want one at all.”
“You’re not going to impose your will on this court, Mister Al-Kobar. Let me assure you of that,” said the Judge. “And you’re not going to play games with this court. I know how it’s done. I’ve been around. You try your own case, handle your own defense and then when the case goes up on appeal, you get a reversal because you should have had an attorney. Not in this court, mister. You’re going to have a lawyer and a trial with all the trimmings. Your rights are going to be safeguarded all the way down the line.”
“May I be heard, Your Honor?” asked the defendant. He was hostile and belligerent now.
The Judge studied Al-Kobar. “You may,” he said. He swiveled half around, looking at the side wall.
Al-Kobar began to speak. He spoke about his rights, about being poor, Black, prejudiced by the facist system, unable to defend himself in court. Someone from the audience cheered loudly. The Judge pounded on the bench. The courtroom became silent. Al-Kobar continued. The Judge now picked up the Law Journal which contained all the court calendars in the City, as well as all the decisions that had been made in all courts the day before, and other news items of importance to judges and practicing attorneys. Al-Kobar was still speaking, saying whatever he wished for the record. The stenographer was calmly recording everything said. The defendant began declaiming now against tyranny, oppression, and racism. Whatever he said, however, wasn’t about to change Judge Kahn’s opinion about anything. The clerk and court officers lounged back and relaxed while the defendant made his speech.
“You aren’t even listening,” the defendant complained angrily to the Judge. “I want the record to show that the Judge is looking away, reading a newspaper, while I’m here pleading for my life and the lives of all poor Blacks and other poor people caught in this fascistic society.”
The Judge whirled on his seat, tossing the Law Journal aside. “You have the audacity to say for the record that I’m not paying attention to what you’re saying?” he boomed. “Is that your opinion? Is it?”
“Yes it is. Those are the facts,” said Al-Kobar.
“Right on,” called a voice from the audience.
“I just want the record to reflect the following facts,” the Judge continued, ignoring the outburst this time. He proceeded to repeat, almost verbatim, everything Al-Kobar had said concerning fascism, racism, Black people, and all other subjects the defendant had mentioned. The Judge stared directly at the defendant as he repeated what had been said. “Now, is that what you said, in words or substance?” he demanded, of Al-Kobar.
The defendant glared back.
“I asked you a question, Mister Al-Kobar.”
“That’s right, Your Honor,” Al-Kobar grudged. “That’s what I said, and you weren’t paying any attention to me.”
“You heard me repeat it, didn’t you?” the Judge asked. “Your jailhouse law degree ought to in
clude a course in the errors of presumption.”
“Can I speak, Your Honor, or are we going to continue to exchange verbal assaults? And I repeat you paid no attention to what I said.”
The Judge frowned impatiently. “The records speaks for itself. Go ahead. You want to say something else for the record?”
“Yes, I do.”
“Go ahead. Say whatever you want.” The Judge picked up his Law Journal and swiveled again.
O’Connor strode into the courtroom and up the aisle to the well of the courtroom. He saw Al-Kobar at the defense table, and walked to the prosecutor’s table, standing there, his arms folded across his chest as he listened.
Ali Al-Kobar continued speaking for the record, now decrying the judicial system; a poor man, especially a poor Black man, could not get justice in America, he said. The Judge continued to read his Law Journal. The court officers and the clerk chatted quietly among themselves. The young people in the courtroom were straining to hear every word, nodding in silent agreement. Finally, the defendant talked himself out.
The Judge turned front again. “Put the case on one week from today. Remand the defendant. Have the Appellate Division appoint counsel. Call the next case.”
The court officer accompanied a scowling Al-Kobar back to the bull pen. Just before he disappeared through the door Al-Kobar gave the raised fist salute of the revolution. Marc saw the pretty girl in the hippie group return the salute.
O’Connor walked to the empty jury box and sat.
“The case of Joseph Maricyk is next, Your Honor,” intoned O’Reilly. “On behalf of the defendant is the eminent and erudite Mister Marc …”
“Don’t listen to him any more,” the Judge directed the court reporter annoyedly. “Just let him keep talking. I’ll call the calendar. Maricyk!”
Maricyk was brought out from the bull pen. He waved to his wife.
“What’s your pleasure on this case, gentlemen?” said the Judge.
The assistant D.A. in charge of the Part looked at Marc.
“The defendant is ready for a suppression hearing, Judge,” said Marc.
The Judge nodded. “After the call of the calendar, if you’re ready, Mister D.A.,” he said.
“We’ll be ready, Judge. It’ll only take a few minutes to get prepared.”
“Fine,” said the Judge. “Wait awhile and we’ll get going.”
“Would you call the Wainwright case, Judge?” said Marc. “I’m on that too.”
“Certainly. Wainwright,” the Judge announced. “Where’s the defendant?”
O’Connor walked to the prosecutor’s table. The Judge nodded to him.
“This is only a motion for a bill of particulars,” said Marc. “The defendant isn’t here.”
“Very well, we don’t need the defendant then,” said the Judge, looking at Marc’s motion papers, which O’Reilly had handed up to the bench. “Can you gentlemen agree on some of the particulars so that we only have to litigate the ones you can’t agree on?”
“Your Honor,” said O’Connor, reading from his copy of the papers he held in his hand, “we’ll give him the time, the place, and the autopsy report. All the rest of the matters requested in these papers are evidentiary in nature, and we refuse.”
“Mister Conte,” said the Judge. “I’ll hear you. You know, of course, you’re not entitled to evidentiary matters.”
“Your Honor, I do not believe that photographs of the scene of the crime are evidentiary. They are objective facts no longer in existence. The deceased’s body has, of course, been removed, the physical scene has been changed. But the police have photographs of the scene. I’d like to see them. I say I have a right to see them. They might be of help to me in formulating a defense. The People won’t be prejudiced if I see them, I might add, since I certainly can’t alter or change the photographs or the scene that existed that night.”
“Denied.”
“And the ballistics information,” Marc continued, not surprised at the Judge’s ruling. “Ballistics evidence is not evidentiary either. It, too, is objective fact which existed at the time of the crime, evidence which should be available to both sides, so that the truth can be developed. To permit the District Attorney to keep these facts hidden from the defendant is to permit the motor of justice to operate on half its cylinders, to condemn a defendant to defending himself from the onslaught of a tiger with a paper shield.”
“Denied.”
“Your Honor,” Marc continued, “it isn’t fair or just that the People have access to the scene of the crime, take possession of all the evidence there and withhold it totally from the defendant.”
“I have made my ruling, Mister Conte. The matters you seek are evidentiary in nature. If you don’t like my decision, you can appeal. You have any other point you wish to mention?” the Judge said brusquely.
“Just that it’s too late at an appeal after a trial for a defendant to complain about not knowing about the evidence.”
“Are you going to give me a lecture on the law, Mister Conte?”
“Certainly not, sir,” said Marc. “Just putting my statement and objections on the record.”
“You have. Come up here on that other case—the Maricyk case,” said the Judge. “Can we dispose of that without a hearing?” he asked as the two lawyers stood at the bench.
O’Connor shrugged. “I’m not on that, Judge. But I’ll handle it.” O’Connor took the file jacket on Maricyk’s case from the prosecutor’s table. He read the fact sheet as Marc explained his version of what had happened during and after Maricyk was arrested. Marc was careful to mention the injuries Maricyk mysteriously sustained.
“What about the charges that the policeman brutalized this defendant, Mister O’Connor?” asked the Judge.
“That’s an old saw, Judge. It doesn’t cut as far as I’m concerned.”
“Ask Mister O’Connor for the mug shots of Maricyk taken after he was arrested, Judge,” said Marc. “See if they look like a man who was just out for a quiet drive.”
“You have them there, Mister O’Connor?”
O’Connor went through the file and handed the mug shots and a full-length photograph of Maricyk up to the Judge.
The Judge studied them. “The defendant does look marked up,” he agreed.
“On the record in the Criminal Court, when he was first arraigned,” said Marc, “I enumerated his bruises and contusions. Mister O’Connor wasn’t there. But Judge Rathmore acknowledged the marks. Here are the minutes,” said Marc, handing the papers up to the Judge. “My client has already complained to the Police Civilian Complaint Review Board.”
The Judge leafed through the minutes, then looked to O’Connor. “Mister O’Connor, we’re not dealing with a really serious situation here. A traffic infraction started all of this. I mean, it’s not like he was trying to bribe the cop to not arrest him for a murder or robbery. He’s only charged with an E felony. How about disposing of this as a misdemeanor?”
“A bribe, a bribe, Judge?” asked O’Connor.
“I know,” said the Judge. “But his isn’t the cleanest case in the world. Look at those pictures. Look at them yourself.”
O’Connor looked. He was unimpressed.
“What if the defendant drops the Civilian Reivew Board case against the cop?” the Judge asked O’Connor. “Your client Maricyk is willing to do that?” he asked Marc.
“If he pleads guilty to, say, an attempt to resist arrest as a misdemeanor,” said Marc, “he couldn’t very well complain about injuries sustained when the cop tried to restrain him.”
“That’s right too,” said the Judge. “What do you say, Mister O’Connor?”
“I don’t like it,” said O’Connor. “But, if he drops the charges against the cop, we’ll agree to let him plead to a misdemeanor.”
And so Maricyk pleaded guilty, indicating on the record that he was dropping the complaint against Schmidt and waived any further suit against the police or the City of New York.
; “Fine. I’ll only ask for a short form probation report,” said the Judge. “Let’s put sentencing down for September 11.”
And, thus, another case was disposed of, a plea was entered, a defendant guilty, and, after all the facts sifted down, it came out just about right, thought Marc. Maricyk didn’t get away with the courthouse, neither did the D.A. or the cop. The people could sleep safely one more night. Not so Mrs. Maricyk, thought Marc as he looked to the audience. She was sitting on the edge of her seat. Marc knew she would have plenty of questions to ask him.
23
Wednesday, August 30, 11:03 A.M.
Marc sat in a small area just off the huge, marble and columned entrance corridor of the prestigious Association of the Bar of the City of New York. He was absently reading a copy of the Law Journal. Across from him sat a short, thin man with a mustache reading the Wall Street Journal. A little farther away, another man seated on a wooden backed chair smoked a cigar. There was no door to the sitting area, and the three of them had a full view of the main corridor and the large, wooden doors across that corridor which led to the Dag Hammarskjöld Conference Room.
The Mayor’s Committee on the Judiciary was in session behind those doors. This Committee served, without compensation, by appointment of the Mayor, to screen proposed judicial appointees. Most of the members of the Committee were lawyers. And each one represented, in some fashion, a segment of the diverse ethnic, economic, social, religious, racial, groups of which the City was composed.
A door to the Dag Hammarskjöld room opened. The three men in the sitting area turned as a man with blond hair emerged and walked toward them. He wore round tortoise-shell glasses and a vest across which hung a gold chain.
“Luis Del Gato?” the blond man inquired.
“Yes,” said the man smoking the cigar. He rose hastily and stubbed out the cigar in an ash tray.
Courthouse Page 26