Killer Heat

TWO

Ms. Cooper, are you withdrawing your offer?"

Alton Lamont had taken the bench minutes earlier, just after court officers had uncuffed the prisoner and seated him next to his lawyer.

Although the odors of the waterfront and the grisly scene of the previous evening lingered in my mind's eye and brain, I tried to concentrate on the pretrial proceedings under way in Lamont's courtroom

That's not a real plea bargain she suggested, Your Honor," Gene Grassley said, pointing his stubby forefinger in my direction. "It's Ms. Cooper's version of a death sentence. "Mr. Grassley knows we're going forward." We had spent most of the day selecting a jury and were finishing up the afternoon with some last-minute housekeeping before setting a timetable for opening statements. "My victim boarded her flight in Seattle at dawn-the offer's off the table. Floyd Warren was studying his copy of the indictment as his lawyer talked about him. "My client turned sixty-one last week. He can't serve out thirty years in state prison. "He's looking at fifty if this jury convicts him," Lamont said, smiling at Grassley. "I expect he'll try to do the best he can."

Warren looked up at Lamont, scowled, and licked his front teeth.

"I don't mean any disrespect by this. I know you've been a judge longer than I've been practicing law." Grassley had started his career with the Legal Aid Society a few years before I became an assistant district attorney. "But sixty-one-year-old men simply do not, can not- well, they're not your typical rapists."

"May I be heard, Your Honor?"

"Let me finish, Alex." Grassley was a head shorter than I. He liked to keep me in my seat once jurors were in the courtroom, as though he feared they would be swayed by my arguments because of my greater height. "I know what she's going to say, Judge. There's no such thing as a typical rapist. I've heard her spiel before."

"May I-?"

"Okay, so older guys are still capable of molesting children or beating their wives," Grassley said, as though those were insignificant criminal acts. "I'm not saying such things are impossible. But Mr. Warren is charged with climbing up three stories on a fire escape, squeezing through a small window, struggling with a healthy young woman to rape and sodomize her. Suppose for a minute he even did those things- when was this? Thirty-five years ago. Thirty-five years ago. He's not capable of doing them now. He's not possibly a danger to anyone. There's a legal doctrine Alexandra Cooper has no respect for. You need to help her with it."

"And what is that, Mr. Grassley?" Judge Lamont took off his glasses and rubbed the bridge of his nose.

"Rachmones, Judge."

"Rock what?"

Alton Lamont was an African-American, a former defense attorney who had been elected to the Supreme Court-New York State's highest trial court-more than twenty years earlier. He cupped one hand to his ear and shook his head.

"Compassion. It's the Yiddish word for compassion."

The heavy door creaked behind me and I turned to look over my shoulder. A young man dressed in a T-shirt and jeans walked down the short aisle of the small courtroom and sat in one of the empty rows of benches.

"A few months back, Mr. Grassley, when you were here with Ms. Cooper on another matter, you were complaining she was too soft, a bleeding heart, if I'm not mistaken."

"Yeah, you're right. But she only bleeds for her victims. Try to talk logic to her about an alleged offender and you can't even get ice water from the tap. She's got blinders on."

I was saving my arguments for the serious legal issues ahead. Judge Lamont could handle this.

"And what's your logic this time? Seems to me Mr. Warren could have had this all behind him if he'd stayed in town after the first trial." Lamont was studying the court file. "Looks like the jury almost let him walk."

Floyd Warren put his elbows on the table and rested his forehead in his hands.

Grassley passed behind me and leaned against the rail of the jury box. "They were hung nine to three for an acquittal."

"Doesn't make sense that your man skipped," Lamont said. "The prosecution case never gets better the second time around."

"There was another rape charge filed before a date for the retrial was set, Judge. Kings County," I said from my seat. The defendant had been identified by a woman in Brooklyn who saw his photograph in the newspaper.

"And even then my client was still free on bail. Couldn't have been such a big deal."

Lamont rested his head against the back of his tall leather chair. "Those were different times, Mr. Grassley. 1973, I'd venture to say there weren't a dozen rape prosecutions successfully brought in this entire city that year. Archaic laws, no Special Victims Units, and DNA hadn't been heard of yet. There wasn't a lawyer on either side who could have dreamed that science would give new life to these old cases."

"Alex and I were still in diapers, Judge. Ancient history."

Warren glanced at me and sneered again.

"What are you looking for here, Mr. Grassley?"

"Give him a couple years, maybe three, and membership in AARP," Grassley said, laughing nervously. "He'll go back to his wife and his little suburban house outside Birmingham. Whatever you think he may have done, Judge, he's retired now. Out of the business. For the last ten years he's lived quietly, supported himself as a landscape gardener. Where's your rachmones?"

Lamont looked over my head as the door opened again. Another young man walked in, dressed like the first, and took a seat behind him. I assumed there were cases on the calendar late in the day that the judge would hear after he finished our arguments.

"You're putting on a good show for your client, Gene," the judge said, waving at the court reporter to tell her that he was going off the record, "but your bullshit-sorry I don't have a legal term for it, it's just plain bullshit. And it's so far over the line that it's insulting to me and to the-how many victims, Alex?"

"Forty-two and counting."

"Alleged victims," interjected Grassley. "My client hasn't been charged in any of those cases yet."

"In 1974, Mr. Warren jumped bail before his retrial here-almost certain to be acquitted-and began a rampage more devastating than the worst hurricane on record. He left New York and-Alex, refresh my recollection, will you?"

"He moved south and became the Philadelphia 'Strip Mall' rapist- about a dozen cases reported there over the next eighteen months. Then he continued on to the DC area, where DNA has recently confirmed that he was the Chevy Chase 'Carjack' rapist-head count still growing from police there and up the road in Silver Spring-before going on to terrorize the academic community in North Carolina as the 'Chapel Hill Campus' rapist. Patterns all along the East Coast throughout the next twenty years."

"And if you and your cops are so damn smart, how come nobody identified him in all that time?"

I was standing now, and my slim five feet ten inches of indignation towered over Grassley's short, pudgy frame.

"In the seventies and eighties, Floyd Warren had moved around the Southeast like a chameleon, changing his name in every location. When SVU detective Mercer Wallace backtracked to collect the evidence from three decades of closed cases, he found local records that matched a transient calling himself Warren Floyd, who later became Floyd X and a variety of aliases before settling in Alabama and adopting the name of the late judge before whom his case had been tried-Howard Rovers. "

"Surely you haven't forgotten, Mr. Grassley, that the defendant attacked all of these women before 1989, which was the first time DNA was accepted as a valid scientific technique in any courtroom in America. And that it was another decade before databanks were established in many of the states in which he was most successful. God knows what we'll find when Alabama links up to CODIS."

The Combined DNA Index System was making it easier for communities all over the country to identify offenders from evidence submitted to a centralized FBI computer program.

Floyd Warren licked his front teeth again, staring at me as I spoke, and then tapped on the table to get Grassley's attention. He wrote something on a piece of paper and slid it across to his lawyer.

Gene Grassley looked at the note and shook his head.

Floyd Warren started to get to his feet and the two court officers standing behind him stepped forward to hold him in place. "Judge Lamont. Yo, Judge."

Lamont banged his gavel. "Stay seated, Mr. Warren. Tell Mr. Grassley what you want to say. It's really not appropriate, nor is it smart, for you to speak directly to me."

Grassley slipped into his seat and tried to calm his client.

Floyd Warren wasn't interested. "Judge, what about my statues?"

"I'm warning you, Mr. Warren. Speak through your lawyer."

"Don't you have no damn statues in this state?" He held up the piece of paper he'd just written on. "Statues of limitation?"

"Statutes? You mean statutes?"

"Yeah, that's what I'm saying. Statues."

The court officers were trying to keep Warren in place by holding on to his broad, powerful shoulders. They were waiting for a signal from the judge to use more force.

"Hasn't Mr. Grassley explained this to you?"

"He hasn't 'splained nothing to me. I got rights, don't I?"

"Of course I've told him," Grassley said, as the court officers shoved him aside so they could keep their hands on the defendant.

Lamont banged his gavel again. "Shut up, Mr. Warren. This isn't going to be a free-for-all in front of the jury. Not in my courtroom, I can promise you that. Handcuffs and leg irons come next."

There was a momentary silence and the officers let Floyd Warren settle back in his chair. His face was rounder now than in the mug shot taken at the time of his arrest so many years ago, and his dark skin wrinkled. He seemed to like being the center of attention.

Just as quiet resumed, the doors opened again and a third young man stepped inside, scoped the situation, and joined the others in the rows behind my seat. All three were wearing bright yellow T-shirts.

"Perhaps, Judge, you can repeat for Mr. Warren what I've already brought to his attention several times."

"I'd be happy to, Mr. Grassley." Lamont checked with the reporter to make sure this would all be part of the official record. "In New York State, until quite recently, there was a statute of limitations on rape cases, just as there are for all other violent felonies, with the exception of murder."

"I didn't kill nobody," Warren said, in a stage whisper meant for all of us to hear. He picked his teeth with the tip of his lead pencil.

"Because of the advances in DNA technology-the certainty of that science-many state legislatures have eliminated those five-year statutes. The district attorney is now able to bring charges on sexual assaults that occurred yesterday, even if they aren't solved for another fifty years.

"But that's a new law, Mr. Warren. That wouldn't apply to your old case. The sole reason Ms. Cooper is able to go forward now is because of your own actions. You kept this case alive all by yourself, all this time, by jumping bail and fleeing the jurisdiction."

Even if a second jury had convicted Floyd Warren three decades earlier, the sentences imposed on rapists were so light then that most were released to parole within five to ten years. The recidivism rate- the rate at which they repeated their offenses, often using exactly the same modus operandi-was staggering.

Lamont stopped speaking as the doors opened and swung shut again. I turned my head and saw two more young men, both yellowshirted, walk in and take seats with the others. The judge removed his glasses and looked at me quizzically. I realized these kids must not have been there to see him, and I shrugged my shoulders.

I looked back once more. There was something written on the front of the T-shirts, but the five solemn onlookers were sitting with arms crossed over their chests and I couldn't make out the words.

Lamont went on. "The statute was tolled by your very-"

"Told what?" Warren mumbled. "Nobody told me nothing."

Lamont pretended he hadn't heard the belligerent prisoner. He wagged a finger in Warren's direction. "The effect of the statute was suspended by your flight. That's what has kept the case alive."

It had been dead in the water for thirty-five years, until the day a few months earlier when Floyd Warren, aka Howard Rovers, stopped at a dealer's outside of town to buy a shotgun. Confident that he had eluded law enforcement for over three decades, he submitted his fingerprints for the application. When he returned to make the purchase, the local police were waiting. The New York warrant for bail jump had appeared as a match in the automated fingerprint system when Warren's background check was run. After the NYPD's Special Victims Unit was notified, Mercer Wallace asked me to dig through the archives to find the old trial folder, in hopes that some evidence still existed to send to the lab for DNA analysis. A crumpled pair of cotton underpants gave us our break.

"Ms. Cooper, Mr. Grassley-are you clear with the rest of my rulings?"

"Yes, Your Honor," I answered aloud, and Gene Grassley nodded.

"And I want the record to reflect," Lamont said, standing so that he could gesture with both arms, expressing the enormity of his outrage, "that I consider it shameful, a morally offensive blot on the legal history of this state that I am obliged by the Constitution to take this woman's testimony according to the laws of 1973."

"Objection, Your Honor," Grassley said. "Most respectfully, I don't think-"

"Save that nonsense for the jury. I'll say what I damn well please when they're not here. I was practicing law back then, Gene. You understand that when a stranger climbed through the window of your home and held a knife or a gun against the body of-of your mother or your sister or your wife, that woman, no matter how saintly she might have been, couldn't go to court unless she could prove she had struggled against her attacker, even when he threatened to shoot or to stab her? There had to be independent proof of who this animal was? That the testimony of every raped woman was deemed incompetent as a matter of law?"

"Judge, my client-"

"All that changed, as you both know, in the mid-1970s, before either one of you came to the bar. Yet I'm bound by those rules today. How foolish is that?" Lamont asked, tapping his gavel lightly against the copy of the penal law on his desk. "More than thirty years have gone by, the legislature finally caught up with reality, but I'm forced to make my rulings based on what the laws were when this attack took place. And I must say that is really a disgrace."

I couldn't tell whether Alton Lamont was truly outraged or not, as he placed his right hand over his heart and patted his chest several times. But I knew this statement would read well on his campaign materials when he stood for reelection in another year.

"Ms. Cooper, does your witness realize that I have no choice but to follow the old law?" He looked at the name in the indictment. "Miss Hastings, is she set to go?"

"Yes, she is, Judge. She understands." I didn't need to add that she was terrified at the thought of being in a courtroom with her rapist again. I didn't need to allow Floyd Warren to gloat with pleasure at the prospect of subjecting this woman to the same humiliating ordeal she had undergone a lifetime ago.

"Then we're good for tomorrow morning at eleven? That gives you time to settle in with Ms. Hastings first thing."

The judge knew that Kerry Hastings had flown in twice from her home on the West Coast to meet with Mercer Wallace and me. The first time, after so many years of silence had led her to assume the case would never be solved, was to give her own saliva for the DNA analysis of her clothing and bed linens. The second was for our initial preparation for trial.

"That leaves just the rape shield issue, Judge," I said.

Lamont cupped his hand to his ear again. "Didn't catch that, Alex."

As soon as I spoke, the five men in T-shirts had started to cough. Fake, exaggerated coughs that were loud and disruptive. I tried to ignore them.

"I said we need to address the question of the rape shield law, Judge."

The hacking noise made it impossible for Lamont to hear me. He wiggled his finger at the captain-Louie Larsen-who was standing near the last row of benches. Larsen began ambling to the well of the courtroom.

I looked to see whether Floyd Warren was communicating with the quintet of young men, but he never turned his head.

"Gene, Alex. Come up here to the bench."

I walked forward while the two officers behind the defendant closed in around Warren, anticipating that he might have had a way to orchestrate the small commotion.

"You know these guys?" Lamont asked me.

"No, sir."

"Grassley, they have anything to do with your client?"

"Don't look at me, Judge. They're sitting behind Alex. Thought she imported some cheerleaders to buck her up."

Louie Larsen took his place between Grassley and me. "Pablo Posano."

"What?" My head snapped around and I studied the faces of the five young men. None of them looked familiar.

"You've gone white, Alex," Judge Lamont said. "Who's Pablo Posano? Is he here?"

"He was the leader of the Latin Princes until we put him away this spring. He's in Attica, Judge. Posano's got to do all his time in maximum security. He raped a twelve-year-old girl as part of an initiation rite. I tried the case, Your Honor. Posano hates my guts."

The Princes were among the most dangerous drug gangs in the city. For every member jailed or killed on the street, ten more seemed to sign up the next day. Posano's posse had threatened the trial judge and intimidated several of the witnesses, who thereafter refused to testify in my case. I was as chilled as though someone had held an icicle to my spine.

"How do you know they have anything to do with Posano?" I asked Larsen.

I swiveled to take another look at the unwelcome spectators. I had given Floyd Warren too much by reacting to the punks. He was staring me down.

The kid in the second row stood up, the others behind him rising as if on cue.

"It's on the back of their shirts."

"What is?"

"Pablo Posano. That's what's printed there."

"Stop!" Alton Lamont said, banging his gavel on his desktop.

The five gang members paid no attention.

Now I could see that the black letters on the front of each yellow shirt spelled a single word: FREE. As they turned their backs to Lamont to follow their leader out of the courtroom, the judge got the message as clearly as I did. FREE PABLO POSANO.

Floyd Warren licked his front teeth and laughed. He could see the fear in my eyes.