Killer Heat

TWELVE

We know that DNA is good science," I told the jurors the next morning. "It works when it exonerates the innocent, and it works just as well when it points a finger directly and reliably to those who are guilty.

"You could fill the 56,546 seats at Yankee Stadium every day for the next fifty thousand years," I said, speaking to the majority of jurors who had listed themselves as baseball fans, "and the possibility simply doesn't exist that you will find another human being who could be linked to the seminal stain that Floyd Warren left behind the night he raped Kerry Hastings."

Just in my time in the practice of law, science had changed the way sexual assaults were being tried. That was not true for the victims of acquaintance rape or domestic violence, who were still subjected to rigorous crosses about their relationships with the alleged abusers and the degree to which they had consented to some kind of sexual encounter.

But in cases of stranger rape, victims had historically been vulnerable to defenses of mistaken identification. DNA took that issue completely out of the line of attack.

The crime that had condemned Kerry Hastings to self-doubt for thirty-five years had been retried in a day and a half.

I was grateful that none of the Latin Princes had appeared in the courtroom this morning. I was hoping that no juror had been affected by the chanting gang member who had screamed out that I was a liar. Judge Lamont took the jury through the legal definitions of firstdegree rape and sodomy. I could recite those lines as easily as a three year-old could sing the alphabet.

"The penal law defines dangerous instrument as follows: any instrument-like a knife-under the circumstances in which it is to be used, attempts to be used or threatens to be used, is readily capable of causing death or other serious physical injury."

I watched the jurors absorb the information. How had I missed the nut-a well-educated housewife and mother-who had hung one of my cases two years earlier because the victim had not been stabbed by the knife-wielding rapist? Using a knife, she had argued to her eleven frustrated colleagues, didn't mean just holding it against someone's neck. If the defendant had wanted to use it, he would have killed the woman against whose throat he had held the blade.

The charge went on for more than an hour. Often, at this point in the trial, I used my legal pad to make lists of the groceries I had run out of during prolonged litigation or the names of friends whose calls I'd neglected because of the intensity of the case.

Today, glancing up from time to time to try to read the expressions on the jurors' faces, I was charting the similarities-and the distinctions-in the circumstances of the deaths of Amber Bristol and Elise Huff.

"You have the obligation to deliberate, ladies and gentlemen, and to attempt to reach a verdict that will be fair, both to the people of this state and to the defendant, a verdict that will reflect the truth based on the evidence in this case that you believe and on the law as I charged it, whether you agree with that law or not.

"Now, Ms. Cooper and Mr. Grassley, will you approach the bench?"

Several jurors stared at Floyd Warren as he shifted his chair to face them. He tapped his pencil on the table and then again started picking at his front teeth with the lead point. If they were trying to discern what had driven this man, who had never opened his mouth to speak throughout the trial, to commit such a brutal crime, they would have to do a lot more than consider his now benign appearance. "Any exceptions to the charge? Any requests?"

Each of us answered, "No."

"Then I'll send them inside to begin. Their sandwiches have already been delivered, so they'll start out with lunch," Lamont said. "This could be a quick one. You both in the building this afternoon?"

Gene Grassley and I nodded and stepped back to our places.

"That concludes all our business, ladies and gentlemen. You will now retire to begin your deliberations."

We waited until the twelve jurors were excused and the judge asked the four alternates to wait in the witness room. "I'll see you both later,"

Lamont said as he dismissed us.

"Locking up?" I asked Louie Larsen. "Yep. You can leave your files. Mercer's in the hallway to take you downstairs."

"None of my amigos lurking today?"

"Three of them showed up in the middle of Gene's argument,"

Louie said, shrugging his shoulders. "I didn't have the personnel to do any manual searches, and they're the jerks that broke the machine, so I told 'em they'd just have to wait. Guess that didn't suit them."

"You get that group ID'd yesterday?"

"Only the ringleader, the kid we locked up. The others ran too fast. I gave Mercer the information about Ernesto Abreu."

"Priors?" I said, opening the courtroom door.

"Drugs, drugs, and more drugs. Felony arrests all knocked down to misdemeanors."

"How'd it go?" Mercer asked. "You got a slam dunk this time?"

"Fingers crossed. Don't jinx me."

"Kerry's in the conference room. She wanted to be here this afternoon, to wait out the verdict with us."

"I like that. Have you spoken with Mike today?"

"Yeah. He's home, waiting on the results of the Huff autopsy." The phone was ringing as I stopped at Laura's desk for my messages. "Hold on," she said. "Alex has just come in. Let me ask her."

"Who's that?"

"It's Ed, the intake supervisor from the Witness Aid Unit," she said to me, holding the receiver aside. "A young woman tried to get in to see you this morning. Lobby security knew you were in trial and sent her around to them to see if they could offer her some counseling."

"Why does she want me?"

Laura started to repeat the question but the person on the other end had obviously heard what I asked. "Ed's telling me she wants to report a rape. That the advocate at St. Luke's told her to ask for you specifically, because she's ambivalent about going forward and they want you to encourage her. Doesn't want her parents to know, so you'll have to explain the realities of a prosecution."

"Can it hold for another day?"

Ed was talking to Laura, who repeated to me what she learned.

"Yeah, that's fine. She's been examined and all. Wants answers about what's involved before she makes her decision about pressing charges."

"You're the keeper of my book this week. What have I got?" The only thing I knew for certain was that Friday evening-the next day-the new guy I had met a couple of months ago was coming to town and I was determined to make time for dinner with him. Laura had my appointment book open in front of her.

"For tomorrow, there's still a big question mark next to Floyd Warren's name. I guess that's in case the jury's still out. Then you've got it highlighted from eight to four, if the trial's over. Says you're accompanying Mike to the range. Rodman's Neck."

"I can put that off." The notation referred to the NYPD's shooting range, where officers were required to go twice a year to qualify with their handguns.

"Not again," Mercer said. "You made a solemn promise, Alexandra.

Joe Berk and his cronies almost put your lights out. Mike insisted he'd teach you how to use a gun at the end of that case and I do believe I heard you say 'amen.' "

"Just a minute," Laura said to Ed, the social worker who was trying to book the date. "We're just checking Alex's availability. Let's try for next week. Can it wait until Monday, at eleven? And why don't you tell me the young lady's name?"

"I hate guns," I said to Mercer. "You know that."

Laura was penciling in the appointment. "Clarita Munoz. That's confirmed. You'll send up the paperwork and her contact information, Ed? Thanks a lot."

"You're around guns too much not to know what to do with one,"

Mercer said as I opened the door and went to my desk.

The red light on my telephone hot line-the intercom that linked the district attorney directly to my desk-was flashing as I walked in the room.

"Paul?"

"What the hell went on between you and Herb Ackerman?"

"I had no time to tell you. You weren't in yet when I went up to court this morning."

"Come on over right now," Battaglia said. "I need to know what he's got to be so sorry about."

"What do you mean?"

"That's the note he left. 'Sorry for everything.' Herb Ackerman walked out your door, went up to his office at the Trib, and swallowed a bottle of pills. I didn't tell you to kill the man, Alex, did I?"