Justice Denied

11

Nothing improved Karp’s spirits like being in court. It was his gambling, his girls, his heroin. He glanced around at the courtroom. Milton Freeland was at the defense table, along with a young Legal Aid acolyte and the defendant, Hosie Russell. Russell had clipped his hair and was wearing glasses. He looked like a deacon.

The judge, a large, olive-skinned, beetle-browed man, was already seated at his presidium, peering over his half glasses and discussing some business with his clerk. His name was Martino, and Karp was very glad indeed to see him. He could not have asked for a better judge. Martino knew the law; he knew the difference between rights and legal trumpery; and he was ferociously impatient with lawyers who didn’t know what they were doing, into which class Karp thought that Milton Freeland very likely fell.

A pretrial hearing is like a dress rehearsal for a trial, a clearing of decks, a showing of cards, so that the trial proper may proceed expeditiously, if it proceeds at all.

No jury is present, of course. Karp was expected to expose his critical evidence and his official and police witnesses to demonstrate to the judge the veracity of the evidence and the probity of the identification of the defendant, all of which had been challenged by Freeland.

Motion to suppress the Bloomingdale’s VISA slip taken from Russell at the scene: the basis-no probable cause for a search. The judge heard Freeland out and decided that a police officer finding a man answering the description of a fugitive hiding under a boiler in a building where a dozen people had seen him go was probable enough cause. Motion denied.

Motion to suppress the blue shirt and the handbag and the knife. But the knife had human blood on it. The bag was the victim’s bag, the blue shirt had, according to several witnesses, been worn by the perpetrator; the defendant had, in fact, identified it as his own. Motion denied.

Here Freeland raised an objection. “Your Honor,” he said, “I must protest. The testimony that the blue shirt was the defendant’s was elicited after arraignment and in the absence of counsel. It was the product of an illegal interrogation.”

The judge said, “How was it an interrogation, Mr. Freeland? Both Captain Chelham and Detective Cimella have testified that the statement was voluntary on the part of the defendant. He asked about his shirt and they brought it to him and he identified it.”

“It’s still incriminatory,” Freeland shot back.

That was interesting, thought Karp. He’s not reading the judge. He’s bugging him, but he doesn’t care; he’s getting objections on record, trying for a reversible error. Fat chance.

“How is it incriminatory?” asked Martino, his brows twitching. “He says, ‘It’s my blue shirt.’ I have a blue shirt too. You have a blue shirt. Admission that we have them is not incriminatory. Statement of the defendant was not in response to any interrogation connecting defendant with the crime or with any other statement of the defendant. Motion denied.”

Freeland did not seem flustered by this rebuke. Karp had to admit that he had a good courtroom demeanor. A strong voice, a snappy appearance.

Next motion. Move to suppress defendant’s priors under the Sandoval rule, which says that a defendant cannot be cross-examined on his criminal record unless those convictions speak to the credibility of the defendant as a witness. Karp struggled to his feet, and they went through Russell’s fifteen convictions, one by one. The judge allowed the burglaries, the larcenies. The jury can know that the guy steals things. On the assaults, Freeland began to argue from a parole report-the defendant was subject to uncontrollable rages-when Martino stopped him abruptly. “Is Counsel arguing mental incompetence here?”

“Ah … no, Your Honor, it speaks to circumstances mitigating the effect of the convictions on the credibility of the witness.”

The judge lowered his head for a moment as if to clear his throat, and the court clerk thought she heard him say, “What total horseshit,” which was impossible, and then the judge said, out loud, “Either argue it or don’t! I will strike four of these convictions: two narcotics possessions, the carrying a deadly weapon, and this receiving stolen property. The rest stand.”

It suddenly struck Karp, and the thought inspired a vague queasiness, that the parole reports that Freeland had just used had been written by the dead woman’s sister.

Next, Freeland turned to the witnesses, arguing from Ward that the lineup was so unnecessarily suggestive as to be unfair. The point of this was to throw out the identifications made by the Digbys and Jerry Shelton. The judge studied the photographs. All the people in the lineup were black men of about the same height and build. Motion denied. The same thing happened to Freeland’s motion to suppress the spontaneous identification made by the leather-shop owner, James Turnbull.

Freeland objected. “Judge, if you’re going to allow this eyewitness testimony, defense should have the opportunity to examine the People’s witnesses at this time. Also, I move that the prosecution should be required to supply us with the names and addresses of all witnesses they intend to call.”

Karp rose. “Your Honor, the People have no obligation to provide names and addresses of civilian witnesses. Statements of potential witnesses are not discoverable under New York law, Section 240.20, Criminal Procedure Law.”

“Thank you, Mr. Karp,” said the judge. “I am familiar with the statute, but it is also true that New York precedent gives the trial judge broad discretion to compel disclosure, although People’s witnesses should be compelled only on a showing of most unusual and exceptional circumstances. Are you prepared to make such a showing, Mr. Freeland?”

“Your Honor, since the physical evidence in this case has no direct or obvious connection with the defendant, the testimony of the identifying witnesses is of extreme importance. Also the nature of this case-the murder of a white girl, this incredible rush to select a black indigent as the murderer. I would construe that as unusual and exceptional, certainly.”

“Would you?” asked Martino. “Well, I would not, within the guidelines suggested by People v. Hvizd. Denied as to the discovery.”

Karp saw an odd look come across Freeland’s face, a nervous look but touched with something mischievous, as when a boy is deciding whether to heave a snowball at a cop. Freeland spoke again, confidently, “Your Honor, citing People v. Blue, Appellate Division, 1973. The court found that the pretrial hearing was inadequately and improperly conducted in that the identification witnesses were not called by the prosecution to testify at it and that the hearing court would not permit the defense counsel to examine the witnesses as to their original testimony to the police.”

Blue? thought Karp, suddenly asweat. What in hell was Blue? He should know all about any cases that bore on prosecution witnesses. Protection of witnesses was essential to winning trials-if Freeland could get all Karp’s civilian witnesses up on the stand now, he could probe for weaknesses, confuse them, establish a record of contradictory testimony, alienate them-it would be much worse than simply getting their names and addresses.

But Blue was a mystery. Unless … He looked again at Freeland, and all at once he was sure.

“Shit! He’s trying it again!” The words appeared in his mouth before he could stop them.

“Excuse me, Mr. Karp, I didn’t get that,” said the judge inquiringly.

“Oh, sorry, Judge. I meant to say, I believe the Appellate Division ruling in Blue was reversed by the Court of Appeals.”

“Mr. Freeland, were you reading from an Appellate memorandum?” asked Martino, frowning. “Yes? Okay, five-minute recess. Get the law.”

The look on Milton Freeland’s face was worth a month’s salary.

In front of 525 East 5th, the street and sidewalk were full of tattooed men in sleeveless T-shirts and leather pants, sitting on big, shiny, customized Harleys, drinking beer and wine from bottles, looking corpselike under the glare of the sodium lights. They were shouting and scuffling, grabbing and kissing similarly attired tattooed women and each other, and doing all the other things that outlaw motorcycle clubs do to make themselves loved and admired by the general population, all this to the sound of music that seemed to be largely composed of guitar feedback played at the max.

They were also dealing drugs fairly openly, despite the fact that Harry Bello was standing across the street, leaning against the stoop of number 528 and watching them. Or maybe they were doing it because Bello was there.

He didn’t mind. He had no intention of making a drug bust, but he wanted them to know he was there and watching.

Something swift and bright appeared in the corner of his vision. It was a thin girl of about ten, dressed outlandishly in a tattered bridal veil and a lacy pink party dress. She had come darting past the stoop to talk with a Puerto Rican woman. The woman had dyed blond-streaked hair and was wearing pink shorts, a sequined halter, and sandal spikes. She was leaning against a parked car, drinking with several similarly attired Puerto Rican women.

The little girl was arguing with the woman. Their voices grew shrill. Bello’s Spanish wasn’t that great, but he gathered that the two were mother and daughter and that the mother wanted the girl in the house, and the girl wanted some money to go down to Avenue A and get ice cream.

A smack sounded, a hard one: The girl shrieked like a vole in a trap. A flurry of blows. The bridal veil was torn loose. Sobbing, the child gathered it up and ran into the house. The woman in the sequins laughed and resumed her chat with her sister whores.

Bello stared at the woman. He recalled her; her apartment had a good view of 525, he had interviewed her twice. She was one of the tribe of din-see-nothins. Bello tried to think about how to make her some trouble.

He watched the gang across the street some more. A young woman in light green coverall and a head scarf, a woman going to a night shift somewhere, walked out of an adjoining building and started west on 5th. When she saw what was going on, she checked and crossed the street.

One of the bikers saw her cross and made a run at her, laughing. He threw a clumsy arm around her shoulder and tried to kiss her, but she shrugged off the arm and ran across the street. Harry tensed and put his hand on the butt of his revolver.

The man saw the gesture and snarled and shouted something and went back to his pals. His friends egged him on, attributing homosexual qualities to him in colorful language.

Bello walked behind the young woman down to Avenue A. In an all-night, he called Marlene.

She was used to getting calls from Harry at odd hours. The baby had been so cranky these last days she wasn’t getting much sleep anyway.

“It’s not Avanian,” he said without preamble when she picked up the phone.

She nevertheless felt cranky. “Is that a new greeting, Harry? I like it. Let’s not say, ‘Hello, Marlene, sorry to disturb you.’ Let’s all start saying, ‘It’s not Avanian,’ when the other person answers.”

“The brother was by Beekman,” said Harry, ignoring this.

“I don’t get it, Harry. That’s the woman went to the coast and came back. I thought you checked with United.”

“It’s the woman who went, but the woman who went wasn’t Avanian.”

“Harry, what about the credit card? Where did Avanian’s plastic come from?”

“It was the tattoos. We should have figured. I’m slowing down.”

“What tattoos, Harry?”

“On the Beekman girl-woman. Avanian didn’t have any that her brother knew of. But the woman in Beekman had tattoos. Quite a few. So do the women who hang out with Vinnie and his friends.”

Marlene hated playing the straight man. She tried to kick her brain into gear. “Okay, so if she wasn’t Avanian, she was somebody who had at least one of Avanian’s possessions, or knew someone who had, and if she was also connected with the gang, that means …” What did it mean? Then it hit her, with a cold chill.

Before she could speak, Harry said, “The Jane Doe is Gabrielle Avanian. She lived in the neighborhood. She was walking down the street that night and they grabbed her. I almost saw it happen to a woman tonight.”

“Just at random?”

“Sure. The fuck do they care? Our Beekman woman must have boosted her stuff, her credit card, and her ticket, went off and had a little vacation. Disneyland, L.A. Vinnie and them were probably not too pleased about that. She must have blown five, six grand. Then she came back, like an asshole, and they found her and did her. We could confirm it was Avanian through dental records. I’ll get on that first thing.” He paused. “Still no witness. We could roust their place.”

Marlene considered it briefly. Could she get a warrant on the basis of a witness seeing two silhouettes on a roof and a crazy theory? Maybe. Then what if they found evidence connected to the victim in apartments occupied by the gang? The mutts could play nobody-knows-nothin’ or he-did-it forever. There was probably a substantial transient population going through there anyway; without eyewitness testimony or a confession, they didn’t have a case that would stand up.

She was about to share these considerations with Bello when he said, “I saw your little friend tonight. The princess.”

“Oh, yeah? Where?”

“Building across the street from the mutts. She lives on three. Her mom’s a pross. She was giving the kid a hard time.”

It popped into Marlene’s mind all at once. Angels falling from the sky and getting smooshed. It had to be that.

“She lives across the street from where the murder took place? With a street view?”

He caught the tone in her voice. “Yeah. What’s up?”

“She saw it, Harry. She’s our witness.”

“Witness? A flaky kid?”

“And if she saw it, the odds are her mother saw it too.”

“I asked her already. Zip.”

“Yeah, but we didn’t know. Now we know! Get her, Harry. Squeeze her.”

The following day, Concepción (Chica) Perez proved to be squeezable. Most prostitutes are. After obtaining a guarantee that the police would find her another place to live, she admitted that she and her daughter had watched as Vinnie Boguluso grabbed Gabrielle Avanian off the street, picked her up like a doll, and carried her into his building, amid the laughter of Eric Ritter and Duane Womrath and several others she could not identify. An hour later, she saw the woman being thrown over the roof parapet. She also observed the three men standing on the sixth-floor fire escape attempting to urinate on the body in the street below.

Marlene read over the formal Q. amp; A. she had taken from Perez after Harry had finished with her.

“I’m going to warrant all three of them. Let’s pick them up right now. Who’re you going to take?”

“I’ll do it.”

She looked at him to see if he was joking. It would have surprised her. Harry didn’t go in much for joking. He wasn’t joking.

“Harry, these guys are dangerous.”

“To girls,” he said.

He did go by the Fifth Precinct and collect a RMP and a driver, and they drove to 525 East 5th Street. It was nine-thirty in the morning. Harry told the driver to wait in the car and went into the building alone. The gang occupied the first two floors. The apartments on the upper floors were either abandoned, their fixtures and wiring ripped out, or home to a transient population of junkies and runaways.

He knocked on the scarred door of Apartment 1-C, and knocked steadily for something like three minutes. These were not early risers. A surly voice shouted, “Who the fuck is that?”

Harry shouted, “It’s Harry Bello. Open up!”

Monkey Ritter threw open the door, dressed only in grayish Jockeys and a sagging T-shirt. He saw Harry and his eyes widened. As he drew breath to shout a warning, Harry’s fist caught him solidly in the solar plexus and he crumpled; only a strangled whine escaped his throat. Harry cuffed him and frog-marched him unresistingly down the hall, out into the street, and into the back of the RMP.

“Keep him quiet, would you?” said Harry to the amazed young cop. “And can I borrow your cuffs? I only brought one pair.”

The driver gave him a set. “You sure you don’t need any backup?” he asked.

Harry shook his head and went back into the building.

He found Vinnie in the back bedroom of 1-C, lying on a mattress with a girl. Also in the room were piles of dirty clothes, a new nineteen-inch television set, a red steel toolbox, a disassembled 1956 Harley-Davidson Electra-Glide, and, lying near the mattress, a sawed-off shotgun.

When Bello entered the room, Vinnie said, “What the fuck do you want, pig?”

Harry said, “Get up, Vinnie. Let’s go.”

“I’m not goin’ no fuckin’ where with you,” said Vinnie, his eyes moving to the shotgun.

“Look at me, Vinnie, not at the gun. You’re not going to go for the gun.” His voice was calm, as if instructing a dull child.

Vinnie looked at Bello’s face, at his eyes. It was a revelation. Vinnie had never looked at a face that held no fear, even when he looked in a mirror, and he was an expert; people were afraid of Vinnie Boguluso. This man didn’t care whether he lived or died, and certainly didn’t care whether Vinnie lived or died. Vinnie saw his own death written on this face.

He licked dry lips. “Hey, what’s this about?”

Harry said, “Get up, Vinnie. Don’t fuck me around anymore.”

“I wanna get dressed.”

“Make it quick.”

Vinnie hesitated, then rose clumsily to his feet, using the blanket to cover his crotch, and uncovering the girl, who shrieked and cursed him. Vinnie kicked out at her and told her to shut the fuck up, exposing himself in the process.

Vinnie went into the corner and put on jeans, a T-shirt, and boots, and Harry then cuffed him and led him out.

Bello put them in cells in the Fifth Precinct and read them their rights. Neither asked for a lawyer. He talked to Vinnie a while, but Vinnie had regained some of his bravado and was uncooperative. That didn’t matter. It was Eric Ritter who was going to crack. Ritter’s toughness went about as deep as his many tattoos. Harry explained to him that he was going to do time, but the kind of time-where and how long-depended on whether he cooperated or not. He pointed out the various things that might happen to a skinny white boy in Attica after hours, especially one who had a big iron cross and swastika tattooed on his chest. He asked Eric to think about fifteen years of that.

In the afternoon, Marlene came down to the precinct. “How’s it going? I see you’re still in one piece.”

Harry said, “The Monkey’s about ready to go.”

“Get a stenographer.” Marlene had decided that she wasn’t going to prosecute the homicide. She hadn’t the time; one of Karp’s people could do it. But she wanted to take the initial Q. amp; A. to round out her investigation. And she wanted to get a crack at Vinnie.

They went with a police stenographer to the interrogation room, where Eric Ritter was sitting. He seemed startled when Marlene walked in and sat down across from him. She introduced herself, explained what was happening, identified everyone for the steno, and offered to provide Ritter an attorney.

He said, “I don’t need no lawyer. I didn’t do nothin’.”

“Okay, Eric, let’s start with what happened on the night of March 13, this year. You were sitting with some of your friends on the stoop at 525 Fifth Street.”

“Yeah. We like saw this chick walking down the street, toward us. And Vinnie, he goes-”

“Excuse me, this is Vincent Boguluso?”

“Yeah, Vinnie the Guinea. So Vinnie, he goes, ‘I’m gonna fuck that.’ So we all, we go, ‘The fuck you are,’ and like saying he doesn’t have the balls and all. So when she comes by, he grabs her and drags her into the place.”

“What happened then?”

“Well, he gets her in the apartment; he’s got her in this choke hold, and she musta passed out or something. We all go in there to see what he’s gonna do.

“We’re all crowded in the door of Vinnie’s room. I was, like, in the back. Vinnie was pissed everybody wanted to watch. Even the bitches. Evelyn, she was yelling at Vinnie, and he raps her a couple and slams the door.”

“Who’s Evelyn?”

“Evelyn. Vinnie’s main squeeze. Or was. That’s why she took the stuff and split. She was fuckin’ pissed. Drunk too, or stoned, or she never woulda done it.”

“This is the woman who was beaten up last week?”

Ritter giggled. “Yeah. She took the chick’s bag offa the street. Fuckin’ bitch sent Vinnie a postcard from Disneyland. He went fuckin’ crazy, man. About the credit card. And the ticket. Then the crazy bitch comes back, if you can believe that.”

“Okay, let’s go back to the night of the thirteenth. Vinnie’s in the room with the woman he abducted. What happened then?”

“Well, after a while he comes out and asks if anybody wants sloppy seconds. He had her tied down by then. He stuffed his shorts in her mouth. So, like, everybody did her.”

“Including you?”

A pause. “Yeah, well, everybody was in on it.”

“Then what?”

“Urn, Vinnie was getting into the wine pretty good by then. This was a couple hours later. So he goes, ‘Hey, let’s fuckin’ throw the cunt off the roof.’ So he did.”

“All alone?”

“Yeah, well, I think Duane helped him out. I don’t remember that part too good. I was wasted myself.”

‘That’s Duane Womrath you’re referring to, right? Do you know where we could find him?”

Shrug. “He’s around. I heard he was shackin’ up with some chick over on C.”

“Right. Up on the roof. Vinnie and Duane take the woman up there. Was there anyone else around?”

A sideways look. “Yeah, we was all up there.”

“You all watched him do it?”

“Yeah, I guess.”

“And she was alive at the time?”

“I guess. She was pretty beat up. But she was movin’ when he dropped her over that little wall they got up there. Then Vinnie and Duane and some guys went out on the fire escape and pissed down on the street, seeing could they hit her or not.”

A few more questions about the beating of the biker woman, which Ritter had also observed at close range, and the interview was over. He was taken back to the cells, and Vinnie Boguluso was brought in. Marlene did the usual formalities in a hurried monotone. She was not that interested in Boguluso anymore. She had him.

Vinnie looked at Harry Bello and then looked quickly away. He looked at Marlene and grinned. He had large, widely spaced greenish-yellow teeth. Marlene couldn’t help thinking about the bite marks on the two victims and what an easy job it would be to present a convincing match-up as evidence. She thought about this in preference to thinking about what the last hours of Gabrielle Avanian had been like.

“What the fuck you lookin’ at, cunt?”

Marlene saw Harry start to move and held up her hand, shouting, “No, Harry!”

The stenographer looked up from her machine, startled. “Do you want that in?”

“No,” said Marlene, “and I think you can go now. Tell them we’re done with him. Unless Vinnie wants to make a statement. Do you want to make a statement, Vinnie? Like about how you kidnapped, raped, tortured, and killed Gabrielle Avanian on the night of March 13 at 525 East Fifth Street?”

“I ain’t done nothin’ and I ain’t gonna say nothin’.”

The stenographer left. Marlene said, “That’s too bad, because your buddy Eric gave us an earful. According to him, it was your show from start to finish.”

“He’s a lyin’ fuck, then.”

Marlene gathered up her files and rose. Two big cops appeared at the door. “Okay, Harry, back to the pens with this one. Charges are murder two, rape one, assault one, kidnapping, on the Avanian. We’ll charge him later on the girlfriend.”

She looked Vinnie in the eye and took a deep breath. He was smirking at her. “You’re gonna die in prison, Vinnie,” she said matter-of-factly. “You will never, ever walk on the street again, ride a motorcycle, touch a woman, have a beer. What’re you, thirty? You could live another forty years. That’s almost sixteen thousand days. And that’s because I’m gonna make sure you never get out. Every parole hearing you get, until you’re dead or I’m dead, I’m gonna be up there telling them exactly how Gabrielle Avanian died.”

Vinnie stood up quickly, his face pale. Bello and the two cops tensed. “Fuck you, cunt!” he screamed. Then he gripped his crotch and thrust his hips back and forth. “I’ll get you, bitch. I’ll fuck you in half, you dried-up cunt!”

The cops moved forward and grabbed him. Foamy spittle flecked his lips as he continued to roar vengeful obscenities.

In the uproar it was remarkable that Harry’s voice could be heard clearly. He said, “Marlene, the reason he talks that way is that he has a very, very tiny little dick.”

Marlene snorted, then giggled, then burst out in a belly laugh, helplessly. “No kidding, Harry? How little?” she snorted. The cops were laughing too, even as they cuffed the struggling and roaring Vinnie.

Bello held up his thumb and index finger, separated by an inch and a half. Everyone laughed some more, except Vinnie.

They dragged him away. He didn’t seem to be fighting that hard, considering how big he was. He seemed to have lost considerable steam. Marlene watched him go and said to Harry, “It’s funny. He’s probably going to do just fine in Attica. He’ll have a little gang, and respect, and plenty of terrified skinny kids to rape and torture. Three hots and a cot. Drugs. It doesn’t seem fair. What seems fair is if we just took him out right now, this minute, to an air shaft full of rotting garbage and rats and just shot him in the head and left him there for the dogs and the rats.” She shuddered. “Christ, what am I saying?”

“It could be arranged,” said Harry.

She gave him a sharp look and then slapped his sleeve playfully. “You old thing! You’re so bad for me, Harry. You trigger all my worst Sicilian instincts.”

“Go for coffee?”

“No, thanks, I need to get back to Centre Street and wind this up and then pick up Lucy-and then! — I want a long, slow, hot bath. Not that I’ll probably get one until fucking midnight.”

Karp limped on his crutches down a dank hallway in the Tombs. The Manhattan House of Detention, to give it its official name, is attached to the Criminal Courts; it is essentially the same building, joined by many corridors and passageways, so that the accused can be expeditiously transferred from cell to court and back again.

Karp was going to take a shower in the guards’ locker room. He did so every evening after work, after first wrapping his cast carefully in a dry-cleaning bag. Then he hung his suit and shirt and tie on a hanger and put his shoes in a sports bag and dressed in sweatshirt and sweatpants and one sneaker and clumped back to his office, gripping the hook of the hanger in his teeth and the strap of the bag by a thumb.

He looked and felt ridiculous. It was a stupid idea, living in his office, but having decided on it, he felt bound to continue. It was only another couple of weeks until the trial.

He took his shower, alone in the steamy room. The shower was used only when shifts changed, and Karp was careful not to use it at those times. He was just pulling on his sweatpants, sitting on a locker room bench, when he heard a clanking sound behind him.

It was one of the trustees on the clean-up crew. Karp pulled up his pants and knotted the cord. He slipped into his sneaker and got his crutches under his arms. When he tried to stand, one of his crutches slipped on a wet spot and skittered away across the floor. Karp sat back down on the bench heavily, cursing.

The trustee left his bucket and got the crutch and brought it over to Karp. He looked up, and his smile froze on his face. It was Hosie Russell.

Karp cleared his throat and said, “Thanks.”

Russell nodded. It was silent for a while there in the locker room, except from the gurgle of water in pipes and, far off, the continuous murmur of thousands of confined men.

Russell wasn’t wearing his glasses. He was dressed in an orange jail uniform with TRUSTEE stenciled across the chest and back. Karp wondered for a moment why they had let Russell be a trustee, and then it struck him that no one was better suited than this man, who had spent two thirds of his adult life behind bars, who understood the routines of jail and prison perfectly, who had never given his various warders a lick of trouble.

Russell broke the silence, “You got a cigarette?” “No, I don’t smoke.” Then, to his own surprise, he added, “I could bring you some. I’m here every night about this time.”