The Law of Second Chances

64

It had warmed up a little, and by Monday morning the temperature was into the low thirties. But that wasn’t the reason the sidewalks were jammed again. Spencer had leaked the discovery of the gun to the press over the weekend, and it had made front-page news in all the papers.

Jack could tell from his first sight of Spencer Taylor in the courtroom that the prosecutor still had a few surprises in store for him.

“Mr. Taylor, as I stated on Friday, you can call your next witness outside of the presence of the jury,” Judge Middleton told Spencer after he had entered the courtroom and the proceedings had begun for the day.

“Before I call that witness, your honor, I would like to call the police officer who found the gun so we can establish a time line.”

“All right,” the judge said and spoke directly to the bailiff. “Bring the jury in.”

After the jurors were seated, Spencer rose from his place at the prosecution’s table and announced his next witness.

“The state calls Detective Joseph Fogarty, your honor.”

As the bailiff brought him in, Joe Fogarty avoided looking at Jack. Only when he took his seat in the witness chair did they make eye contact.

Spencer had Joe give his name, rank, precinct, and all the other preliminaries as quickly as possible. He was clearly anxious to get to the meat.

“Officer Fogarty, tell the jury what you did at approximately eight o’clock on Friday morning.”

“Well, I got a call at home about seven that morning from downtown. They told me they had received an anonymous call the night before. The person said he knew where the gun used in the Carl Robertson murder was located. He said the gun was in an abandoned building where Benny Avrile lived in the South Bronx, behind a loose brick in the wall. So they called me.”

“Is that all the person said?”

“As far as I know.” It was all hearsay, but Jack wasn’t going to object and give Spencer the opportunity to parade about five more cops into the courtroom.

“Why did downtown call you?”

“I’ve known Benny for about five years, maybe longer. We used him for information.”

“He was a snitch?” Spencer spat the words out.

“Yeah.”

“Did you know where he lived?”

“Yeah, I knew the building and that he was on the fifth floor.”

“So what did you do?”

“I immediately went up there and searched for the loose brick. It took me about fifteen minutes. I pulled the brick out and there was the gun.”

Jack was furious. He had felt in his bones that Spencer Taylor was holding something back. Now he knew what it was. Spencer spent the rest of his time establishing the chain of custody from the time Joe Fogarty picked the gun up until it appeared in court that morning. He offered the gun into evidence.

Jack was on his feet. “May we approach, your honor?”

“Come on,” the judge replied.

Jack was still so angry when he reached the judge’s dais that he could hardly speak.

“Judge, there is no evidence that this was the gun that was used in the murder,” Jack said. “Therefore, it should not be admissible.”

The judge didn’t even ask Spencer Taylor to comment.

“I agree with Mr. Tobin. At this point, there is no concrete evidence to establish that this gun is the murder weapon. You can try and do that with your next witness, Mr. Taylor.”

It was a small victory, but as he walked back to counsel table, Jack realized he had made a major mistake not objecting to Joe Fogarty’s testimony before the man said a word. He should have demanded that Fogarty also testify outside the jury’s presence. Now, even if he got the gun excluded as evidence, the jury had heard that a Glock 17 had been found where Benny lived. There was an old saying in the law: “You can’t unring a bell.” The jury could be instructed not to consider the evidence, but they had already heard it. Spencer Taylor had snookered him.

“Cross-examination, Mr. Tobin?” the judge asked when the lawyers had returned to their seats.

“Yes, your honor.” Before he stood, Jack glanced at Benny, who was staring straight ahead, expressionless. Then he turned to Luis, who was looking at the floor, shaking his head back and forth. Luis had predicted these last-minute tricks, and Jack had told him not to worry. Now Joe Fogarty had linked the gun and the bullet to Benny. Jack walked to the podium and faced Joe Fogarty.

Jack recalled the promise he had made to Joe as they sat on the stoop around the corner from the Carlow East. But that was before either one of them knew that Joe was going to be one of the star witnesses for the prosecution. So what was it going to be? Honor his promise to a man he didn’t know, or defend his client with every weapon he had? At that moment he also remembered that Frankie O’Connor had trusted him not to betray Joe.

Joe Fogarty was sitting on the witness stand rubbing his hands together nervously. Jack saw the look of fear in his eyes.

“Detective Fogarty, you said you knew the defendant, Benny Avrile, for five years or more, is that accurate?”

“Yes.”

“And he lived in a condemned building?”

“Yeah, that’s accurate.”

“And when you got information from him, did you pay him?”

“Sometimes.”

“Getting information like this is a part of law enforcement, isn’t it?”

“Yes.”

“An essential part?”

“I’d say, yes.”

“So Mr. Avrile was assisting law enforcement in a way?”

“Yes.”

“If you knew where Mr. Avrile lived, were there other people in the neighborhood who also knew?”

“I’m sure there were. It wasn’t a secret.”

“Did the place where the defendant lived have a door that you could lock?”

“No.”

“Anybody could get in there?”

“Sure.”

“Had you been up there before?”

“Yes. After Benny was arrested, I took a team of forensic people up there and we searched the place entirely. I didn’t know about the hiding spot behind the brick, though.”

“A few moments ago Mr. Taylor took you through the chain of custody from the time you picked this gun up until you brought it into this courtroom. Chain of custody is a procedure you follow in every case, isn’t it?”

“Yes.”

“And that is to ensure that evidence is not tampered with, stolen, or replaced, isn’t it?”

“Yes.”

“So you can walk into this courtroom and account to the jury for every moment that a piece of evidence has been in your custody, correct?”

“Correct.”

“And when a piece of evidence is collected, it is marked and entered into a logbook and placed in the property room or evidence room at the police department, correct?”

“Yes.”

“And the evidence room is guarded at all times?”

“Yes.”

“But this gun was in an open and unguarded room in a condemned building, correct?”

“Yes.”

“And there was no chain of custody before you retrieved it last Friday morning, correct?”

“That’s true.”

“Can you tell the jury as you sit here today whether it was there for a year or a day before you retrieved it?”

Spencer Taylor wanted to object, to throw Jack off his rhythm, but he couldn’t-he had no grounds.

“No, I can’t say how long it had been there,” Joe Fogarty replied.

“Now, the anonymous person who called the police on Thursday evening and told you where the gun was located obviously knew about the hiding place behind the brick, correct?”

“Yes.”

“Was the gun tested for fingerprints, do you know?”

“Yes, it was. Nothing came up.”

“Did the gun have any serial numbers so you could trace who purchased it?”

“No. The serial numbers had been filed off.”

“In the five years that you knew Mr. Avrile, did you ever see him with a gun?”

“No.”

“Do you know whether he owned a gun?”

“No.”

“Was he ever involved in any type of violence to your knowledge?”

“No.”

“You were the officer who arrested Mr. Avrile, correct?”

“That’s correct.”

“Did he resist in any way?”

“No.”

“Did he have a gun on him at the time?”

“No.”

This was the spot. Jack had the questions on the tip of his tongue. Did you tell Benny to clam up the day you arrested him? Did you tell him to clam up because you thought he was being railroaded because some big shot had been killed and the brass downtown needed a sacrificial lamb? Did you meet with me? Did you tell me the same thing? Joe was shifting again nervously in the witness chair.

“No further questions, your honor.”

Joe looked at Jack and held his gaze for a moment. His hands went still and his shoulders visibly relaxed. Jack merely turned and walked back to his table.

“Redirect, Mr. Taylor?”

Spencer thought about it for a moment. He had what he needed, and Jack hadn’t made any dents in that. “No, your honor.”

When Joe Fogarty had exited the courtroom, Judge Middleton explained to the jurors that they once again had to be excused while he took up some legal matters with the lawyers. Jack noticed that some of them looked disgruntled. After they had filed out, the judge addressed the prosecutor.

“Call your weapons expert, Mr. Taylor.”

“The State calls Officer Peter Ingram.”

Pete Ingram was almost as forthright and honest in his direct testimony before the judge as he had been with Jack in his office, except for one important opinion that he had failed to mention at the meeting on Friday afternoon. Spencer Taylor did the prompting.

“Mr. Ingram, do you have an opinion as to whether this gun found at the defendant’s living quarters was the gun used to kill Carl Robertson?”

“Yes.”

“And what is that opinion?”

Jack objected but was overruled.

“I cannot say for certain that this was the gun from looking at the slug alone, as I have already testified. However, considering the fact that the defendant was at the scene at the time of the murder; that the slug was fired from a Glock semiautomatic; and that a Glock 17 semiautomatic was found at the defendant’s premises-it would be my opinion that this gun was probably the gun that was used to kill Carl Robertson.”

Jack had only a few questions for Pete Ingram.

“Officer Ingram, you cannot through any type of scientific examination link the gun that was found last Thursday to the slug that was taken from Carl Robertson’s skull, correct?”

“That’s correct. The slug is too deformed.”

“And you would agree that there was no chain of custody for that gun from the time of the murder until this anonymous tip was received by the police department on Thursday night?”

“That’s correct.”

“So you cannot say with any degree of certainty when this gun was placed behind the brick wall at the defendant’s residence, can you?”

“No.”

“So somebody could have heard from the testimony in this very courtroom that a Glock 17 was used as the murder weapon and planted the gun as late as last Thursday in the defendant’s residence and then called the police anonymously, couldn’t they?”

“That’s possible,” Pete Ingram replied. “But I don’t know of any evidence that suggests that scenario happened.”

“Thank you, Officer Ingram. No further questions.”

Spencer Taylor had no redirect. It was now up to the judge whether Pete Ingram was going to testify before the jury or not and whether the gun was going to be admitted into evidence.

“Mr. Tobin, would you state your objection for the record?”

“Yes, Judge. I would reiterate my objection that this witness was a complete surprise, and I would add that this type of testimony is the most dangerous form of speculation there can be. An anonymous call out of thin air more than a year after the murder, no chain of custody, and now, opinions based on that house of cards. We’re talking about a man’s life, Judge. This testimony is too prejudicial and speculative to be admissible. And for the record, I renew my motion for mistrial. If this evidence is inadmissible, Officer Fogarty should never have been allowed to testify.”

Judge Middleton didn’t even ask for a reply from Spencer. He gave his ruling as soon as Jack was finished.

“Based on the facts that Mr. Avrile was present at the crime according to eyewitnesses, that the slug found in the deceased’s body was from a Glock semiautomatic, and that a Glock 17 semiautomatic was found at the abandoned building where Mr. Avrile resided, I am going to rule that Officer Ingram can testify about his opinions to the jury and that the gun, the Glock 17, is admissible evidence. Mr. Tobin, you can make your arguments to the jury at closing as to the weight they should give to this evidence. Bring in the jury.”

Jack had wanted Langford Middleton to be strong and definite in his rulings, and he was doing exactly that.

While the bailiff went to get the jury, Spencer Taylor had a few choice words for Jack. “You told me you were looking forward to seeing what else I had in my arsenal. Now you know.”

Jack didn’t respond. He was afraid there might be another murder if he did.

After Pete Ingram’s testimony before the jury, the state rested its case and they recessed for lunch. Jack expected some retribution from Luis at the lunch break-a little “I told you so.” He got none of it. Luis spoke to him as the guards were taking Benny out and the courtroom was emptying.

“You are amazing, Jack, how you hang in there. No matter what they throw at you, you keep your cool and get what you can from the witness. No matter how this turns out, my son has had the best lawyer there is.” He then left the courtroom with the few remaining stragglers from the crowd.

When the afternoon session began, the judge addressed Jack.

“Mr. Tobin, are there any matters we need to take up before you start your defense?”

“Yes, your honor, I have some motions to argue at this time outside the presence of the jury.”

“You may proceed, Mr. Tobin.”

Jack stood up. His argument was going to be short and sweet and direct.

“Your honor, my motion is directed to all counts of the indictment. The state has simply not met its burden. In particular, I want to address the felony murder count.”

Jack was signaling the judge. He had to make his record for appeal, but at the same time he wanted to let the court know that there was a real basis to dismiss the felony murder count.

“Your honor,” Jack continued, “I am handing you and counsel for the state excerpts from the testimony of Angela Vincent, Paul Frazier, David Cook, and Detective Tony Severino. I have highlighted the appropriate questions and answers. As you can see from Detective Severino’s testimony, the assumption was that the defendant stole ten thousand dollars from the deceased. However, both eyewitnesses said that they didn’t see the defendant take anything, and Angela Vincent said that she didn’t know whether Mr. Robertson had the ten thousand on his person that night. In short, your honor, there is no evidence of a robbery. Therefore, the court should grant the motion for acquittal on that count.”

The judge didn’t have any questions. He looked to Spencer Taylor for a reply. Spencer had connected the gun to Benny, and he had Benny kneeling over the victim at the time of the murder. The jury had all the evidence they needed to convict on the charge of first-degree murder, which had been his goal-and that of his bosses-all along. He made a halfhearted counter to Jack’s argument on the felony murder charge.

Langford Middleton didn’t know why Jack was even wasting the court’s time with this motion. His client was about to be convicted of first-degree murder. He had a point, though, and he had the evidence, and the state didn’t seem to care.

“The court is going to grant your motion as to the felony murder count, Mr. Tobin. I find that there is insufficient evidence that the deceased was killed during the commission of a robbery. I deny your motion as to all other counts of the indictment. Are you ready to call your first witness?”

“Your honor, with all the delays we have had in this case, it has been difficult to schedule my witnesses, especially since most of them are coming from out of town. I would like to begin promptly at nine o’clock tomorrow morning.”

“Very well, Mr. Tobin. This court is dismissed until nine a.m. tomorrow.”

Jack followed his usual procedure and went to Mike McDermott’s office for a couple of hours to prepare for the next day’s testimony. He didn’t know who was going to show up or what they were going to say. He prepared open-ended questions, hoping for the best. At seven-thirty, he hopped in a cab and headed uptown. His original plan was to go straight to Aunt Dorothy’s apartment and get to bed, but he decided to stop at P. J. Clarke’s for a beer or two. He needed to unwind.

The first beer didn’t do the trick, nor did the second. He had succeeded in getting the felony murder count dismissed, but Benny was on the verge of going away at least for the rest of his life. That reality weighed heavily on Jack’s shoulders.