"What's that supposed to mean?"
"I wasn't being literal."
"Because my chest is hairless."
"Glad to hear it."
"Entirely hairless."
"Perhaps if you drank whiskey sours."
"Is that what you want for me?" Myra asked.
"A cosmo is just on the girlie side, is all," I said. "Not an
adjective I associate with you."
"Just because I'm a criminal defense lawyer doesn't make me Barbara Stanwyck," Myra said.
"I'm allowed to be girlie when I want to be."
"I don't think I've quite figured you out, have I?"
"I didn't know you were trying to."
We got another round as the evening settled in around us. Myra went over to the jukebox, spent five minutes picking out songs. I watched her do it, but she didn't seem to notice, never looking away from her task. It occurred to me that it'd been a long time since I'd picked out songs on a jukebox. Watching Myra, it seemed like a fine thing to do.
"Are you going to tell me when your songs come on?" I asked when she came back to the bar.
"I never tell," Myra replied.
"So how bad do you think this Lester Bailey is going to be for us?" I asked.
"Hard to say until we set eyes on him," Myra said. "With any luck
he comes across as a stone-cold liar who can't keep his story straight."
"You think there's any chance he's telling the truth?"
"You never know," Myra said. "But I really don't think so. Lorenzo
strikes me as too savvy to give it up to somebody at Rikers like that."
Bob Dylan came on the jukebox, "Visions of Johanna." I looked at Myra, who grinned.
"You really know how to lift the spirit of a bar," I said.
"I love this song," Myra said. "It's such a great New York song.
It couldn't be written about anywhere else."
"I think of it as less about a place than about a time of day," I said.
"It's a four-in-the-morning song."
"That's true. Fitting for us, I guess, seeing as we have a
four-in-the-morning job."
"A four-a.m. job?" I said. "You mean because if our clients just
went to bed at a reasonable hour, a lot of them wouldn't be in trouble?"
"That's what criminal law is: it's how the day tries to correct
the night's mistakes. Most of my cases, people have done something they never
would've dreamed of doing in broad daylight."
"What does that make us?" I said. "The night's janitors?"
"We're absolutely that," Myra said, sipping her cosmo. "What else
do we do but clean up after it? That's why we'll never run out of work. Not
unless someone invents a cure for night."
19
P
RETRIAL PROCEEDINGS
on the Tate case were scheduled for nine thirty in Judge Ferano's courtroom. There were two issues before the court: The first was the
Wade
hearing, which was our attempt to suppress Yolanda's identification of Lorenzo as the shooter. Second, the prosecution had filed a
Molineux
motion—meaning that they wanted to introduce evidence relating to Lorenzo's other criminal conduct. In this case, it wasn't criminal acts for which Lorenzo had ever been charged or convicted—his record was clean—but rather they wanted to be allowed to present evidence seeking to establish that Devin Wallace owed our client money arising out of a drug deal. This would be admissible only if the prosecution could establish a sufficient connection between the uncharged crime and the crime Lorenzo was charged with, and if the court found that the evidence of the uncharged crimes was more probative of guilt than prejudicial to the defendant's right to a fair trial. The DA was arguing that the evidence had to come in because the drug debt was the motive for the murder.
I'd researched and written our motion papers a few weeks back and would be conducting today's proceedings. Myra had been busy with the Gibbons appeal, as well as the rest of her felony docket. She'd looked over our papers before we'd filed, made a handful of revisions, but essentially the pretrial motions were mine to handle.
We were in a different courthouse from the one I was used to, as felony cases in Brooklyn were tried in a separate court from lesser crimes. The felony court on Jay Street was large and new; from the outside it looked more like a corporate office building than a traditional courthouse, and it was a good deal nicer than the rather dilapidated conditions I was used to. Our courtroom was on the twenty-first floor, the windows at the end of the hallway offering a view of Manhattan across the river.
This would also be our first appearance before the judge who would be trying the case, Al Ferano. The judge's rep was that he wasn't on the bright side, but that he didn't try to be, that he relied instead on his instincts and sense of rough justice. He was considered a pretty good draw for the defense, but nobody you wanted to get fancy with. Because the Democratic Party so thoroughly controlled the selection of judges in Brooklyn, you could pretty much count on getting a liberal on the bench every time, but many of them were nevertheless aggressively law and order. This wasn't because of politics, but rather the tabloids.
Judge Ferano kept us all waiting for about twenty minutes before taking the bench. He was in his late fifties, visibly portly even in a judicial robe, with a full head of graying hair he wore slightly long.
Lorenzo had the right to appear at any proceedings in his case, so he'd been brought down from Rikers for the argument. We'd done our best to explain the legal points we'd be addressing, and Lorenzo had at least made an effort to appear interested, but I got the distinct feeling he viewed this more as a break from the monotony of prison than he did an opportunity to get key evidence in his case thrown out.
Per Myra's instruction for all courtroom proceedings, Lorenzo sat in the middle seat while we flanked him. As a practical matter this could be slightly inconvenient, as it was far more likely that Myra and I would need to communicate with each other in court than that we'd need to communicate with Lorenzo, but Myra was convinced that the symbolism was important: she didn't want the two of us to appear to exclude our client.
The prosecution called as its witness on the ID issue Detective Kate Spanner, the detective who'd been the primary investigator of the Lipton murder. Detective Spanner was a stocky woman in her late thirties, with short hair and a military bearing. ADA Williams ran the detective through her background: the number of years she'd been a cop, then a detective, then a homicide detective. I barely paid attention: it was routine stuff, simply establishing that Spanner was competent and experienced, generally givens when dealing with homicide detectives.
Finally Williams shifted ground. "Turning your attention to the
night of April 6 of this year, were you the responding detective to a shooting
at Glenwood Gardens?"
"Me and my partner were, yes. I was the primary investigating
officer."
"Were you the first police officers on the scene?"
"No," Spanner said. "When we arrived there was already two sets of
uniforms, EMS, a crime scene unit. That's typical."
"What did you do upon arriving?"
"What we do is we talk to everybody who is already there," Detective Spanner said.
"Get the overview from the uniforms, find out victim status from EMS, see if CSU
thinks they got anything we can work with."
"When you talked to the officers who were already there, what if
anything did they tell you?"
"They told me that two people had been shot, one dead at the scene, the other critical," Spanner said.
"They also told me they had an eyewitness who could identify the shooter."
"Was the eyewitness still there when you arrived?"
"Yes. The witness, Yolanda Miller, was in the back of a patrol
car."
"Did you ask her if she could identify the shooter?"
"I didn't even get the chance to," Spanner said. "Ms. Miller
immediately volunteered that she had recognized the shooter, and she gave us a
street name."
"What name did she say?"
"Strawberry."
"Did you ask her to describe this Strawberry after she identified him as the shooter?" Williams asked.
"Yes," Spanner said. "Ms. Miller described the man she called
Strawberry as a black male between five-foot-seven and five-nine, thin build,
dressed in black jeans and a black shirt, white doo-rag, birthmark just above
his left eye."
"Did you consider this sufficient evidence to arrest this man,
assuming you could identify him?"
"We did," Spanner said.
"Were you able to identify who Strawberry was?"
"We were able to that night, yes."
"How were you able to do that?"
"Uniforms knocked on a bunch of doors in the project," Spanner said.
"Several people said Strawberry was the street name of Lorenzo Tate."
"Did you then feel you were in a position to arrest Lorenzo Tate?"
"Absolutely," Spanner said. "We were already prepared to arrest
Mr. Tate based on what Ms. Miller had told us, but before doing so we thought
we'd do the photos to allow Ms. Miller to make an identification of Mr. Tate.
But since she'd given us his street name, it was really just a sort of
formality."
"When was the photo array conducted, Detective?"
Spanner requested and received permission to review her notes.
"The day after the shooting."
"And where was it conducted?"
"I brought it to Ms. Miller's residence."
"Is that your usual practice?"
"Normally we'd bring someone in to look at photos on our computers, see if they could pick someone out," Spanner said.
"This was different, though, because Ms. Miller had already made an ID of the
defendant. This was really just a belts-and-suspenders approach."
"Did Ms. Miller say anything to you regarding the photo array
before you showed it to her?"
"Yes," Spanner said. "I recall that Ms. Miller indicated that she
didn't like the idea of viewing a photo array, that she would prefer to see the
defendant in person."
"Was there a reason you nevertheless conducted a photo array
rather than a lineup?"
"I'd already put the photo array together and brought it over to her," Spanner said.
"Plus the fact that we did not have Mr. Tate in custody at that time."
"Did you have a warrant for Mr. Tate's arrest?"
"We did, yes," Spanner said. "But Mr. Tate didn't have the
courtesy to turn himself in."
"So you proceeded with a photo array despite Ms. Miller's having
voiced some discomfort with the idea?"
Spanner was starting to look uncomfortable herself, pausing a little before answering.
"I suppose so, yes."
"How did Ms. Miller react to the photo array?"
"She barely looked at it," Spanner said quickly, regaining some confidence.
"How long would you say she looked at it?" Williams asked.
Spanner shrugged. "Maybe five seconds, tops."
"What happened after that?"
"I asked her if she recognized anyone."
"What did Ms. Miller say?"
"Ms. Miller again said she'd prefer to do it in person," Spanner said.
"I was a little frustrated, to be honest, because she hadn't really looked at
the pictures. So I asked her again if she recognized anyone, and again Ms.
Miller said she'd know Strawberry if she saw him in person."
"What happened after that?"
"I thanked Ms. Miller for her time and told her that we'd have her
back when we had Mr. Tate in custody."
"In your view, Detective, do you think that Ms. Miller failed to
make an ID when shown the photo array?"
"In my view, she didn't try to make an ID on the photos. I didn't
consider it relevant to the question of whether or not she could identify Mr.
Tate, because she made it clear that she didn't want to pick him out from
photographs."
"One last thing about the photo array you prepared, Detective," ADA Williams said.
"In putting it together, was there anything you did to alter the photos
themselves?"
"There was, yeah. In her initial ID, Ms. Miller had described the
defendant as having a noticeable birthmark. That birthmark was visible in the
photo I had of him. I'd looked for other photos where people had similar
birthmarks but couldn't find any. I didn't want some defense lawyer claiming
that Ms. Miller had just picked out the only picture of somebody with a
birthmark on his face. So what I did was, I just drew the birthmarks on the
other photos, then photocopied them so the birthmarks would blend in better."
"Had you done something like that before?"
"Once or twice I have, yeah," Spanner said.
"Is doing so normal police department procedure?"
Detective Spanner looked a little uncomfortable with the question.
"Far as I know," she said.
ADA Williams then proceeded to walk Spanner through the in-person lineup they'd done once Lorenzo was in custody. Myra had been present at that lineup, although at the time she'd known nothing about the photo array, or even Yolanda's description of Lorenzo on the night of the shooting. Myra had objected to a couple of other lineup participants as in no way resembling Lorenzo, but she hadn't known to raise the birthmark issue.
"What happened when Ms. Miller was brought in to view the lineup?" ADA Williams asked.
"She looked for a couple of seconds; then she identified the
defendant." "How did she seem when she made that identification?"
"Confident," Spanner said. "She didn't hesitate."
"Thank you, Detective," Williams said, nodding once at Spanner before heading back to her seat.
I felt my heart start pounding as I stood to cross-examine the detective. I'd slept terribly the night before, unable to shake my nerves at the prospect of this hearing. This was my first proper cross-examination, and even though I was as ready as I could be, that didn't calm me down.
"Detective Spanner," I began, "you selected the pictures that
appeared in the photo array and the individuals who appeared in the lineup,
correct?"
"Yes."
"In doing so, you wanted to have people who had a general
resemblance to Mr. Tate?"
"That's the idea."
"So, for example, everyone in both the photo array and the lineup
was African American, correct?"
Detective Spanner shifted uncomfortably. "Well, yes, of course
they were. The witness had described an African American, so it would have been
silly to include someone of a different race."
"Because skin color was a core part of Ms. Miller's initial
description of Mr. Tate?"
"I don't know what you mean by a core part," Detective Spanner said.
"But yeah, she told us the shooter was black."
"The description given by Ms. Miller formed the basis for your
assembling the photo array and the lineup?"
"I suppose so, yes," Spanner said. "I also had an old picture of
Mr. Tate from the Housing Authority, back from when he lived at Glenwood
Gardens, which is what we used in the photo array."
"Now, Detective Spanner, I would like to ask you specifically
about the photo array. You testified that you added a birthmark on the other
photographs, right?"
"I did, yes. Like I said, I couldn't easily find pictures of other
people who had this sort of birthmark, so I added them on."
"How did you add them on?"
"I just used a pen and drew them on."
"I wasn't clear from your earlier testimony: are you authorized to
modify photographs in that way?"
"Why wouldn't I be?" Spanner said. "I was just making sure that
the photo array was as fair as I could make it."
"Because the birthmark was part of the witness's description,
right?"
"She mentioned it, yeah."
"So just like everyone in the photo array was African American, so
too everyone had a birthmark, because both of those were fundamental parts of
the witness's description?"
"I don't know about fundamental," Spanner said.
"Did you ever receive any training on modifying photos in this
way?"
"Training by who?"
"By the police department."
"No."
"Do you have any special experience in drawing?"
"Experience in drawing?" Spanner said quizzically. "I mean, I can
draw."
"But nobody taught you how to draw identifying characteristics
onto lineup photos?"
"I'm not aware of anyone who's been taught how to do that," the detective responded.
"Your department employs sketch artists, does it not?"
"Sure. For getting witness descriptions."
"Wouldn't they be trained to draw identifying characteristics such
as birthmarks?"
"I suppose so."
"But you didn't think to have a professional sketch artist assist
you here."