Courthouse (19 page)

“You're not telling me to lay down on this Wainwright case, are you, Chief?”

“Absolutely not,” Byrnes said. “I just suggest you handle the case … just handle the case carefully taking into consideration the political ramifications.”

O'Connor studied Byrnes who was again looking out the window as if some very important event was taking place on the sill.

12

Wednesday, August 16, 2:35
P.M.

The bridge man in Part AP-3 of the Criminal Court called the Maricyk case, then handed the court papers up to Judge Bamburg. The Judge read the papers as the defendant was escorted from the bull pen into the courtroom by arresting officer Schmidt.

Marc walked from the audience to the counsel table. He stood beside Maricyk, identified himself and gave his address so the stenotypist could record his appearance. Mrs. Maricyk was seated at the rear of the courtroom, watching anxiously.

“The defendant is ready for a hearing, if Your Honor pleases,” said Marc.

The Judge looked to the assistant D.A. “Mister D.A.? What is the People's position in this case?”

The D.A. conferred with Schmidt in low whispers. “Your Honor, this matter has not been presented as yet to the grand jury.”

“What do you want to do here?” the Judge asked the D.A. “The defendant says he's ready for a hearing. I don't like to keep men in jail without some sort of hearing. This defendant hasn't made bail yet, has he, Counselor?”

“No, sir,” Marc responded.

“This is a jail case, Mister D.A. What about it?” said the Judge.

“I'd like one further adjournment,” said the D.A.

“Bastard,” whispered Maricyk to himself.

“Your Honor,” said Marc, “the D.A. handling the matter in the arraignment part insisted on an adjournment the last time this matter was on because it might have been presented to the grand jury that day. It obviously wasn't. Now another adjournment is asked for by the People. I haven't heard of any reason for such adjournment, legal or otherwise. I suggest that this Court should not permit the People these delays intended only to frustrate the defendant's right to a hearing.”

“Well, I don't know that that's the People's intention. However, if you are not prepared to hold a hearing today, Mister D.A., I'll entertain counsel's application to lower the defendant's bail.”

“We'll let them have a hearing,” the D.A. said with a shrug.

“Very well,” said the Judge. “Go right in the back. The back-up part is open.”

Behind the main courtroom of AP-3, in what had been a small office or judge's robing room, there is a small courtroom, AP-4, where cases from the front court are sent for hearing to determine if a crime has been committed or for non-jury trial if they are misdemeanors.

Marc entered AP-4's courtroom through a door to the side of Judge Bamburg's bench. Inside, there was a small business desk at floor level behind which another Judge sat. Two uniformed court officers stood conversing near the judge's desk. A young female stenotypist sat with her machine at the side of the Judge. There was only room enough in the court for one spectator bench with a three-seat capacity. The window air conditioner was old and clackety. Schmidt brought Maricyk into the courtroom and sat him at the counsel table in front of the judge's desk. There was only one counsel table which had to be shared by both the prosecution, the defense, and the defendant.

“People against Maricyk,” said one of the court officers, reading from the papers brought in from the front room.

“Let me have a couple of minutes, Judge,” said the young, red-haired assistant D.A. assigned to AP-4. “I want to prepare the case.”

“Go ahead,” said the Judge. He sat back in his chair, gazing at the ceiling. It was peeling and bubbled.

“Officer,” said the D.A., turning to Schmidt. He led Schmidt to a corridor outside the little courtroom, so that Schmidt might relate the facts of the case to him for the first time.

Marc waited at the counsel table next to Maricyk.

The court officers began talking about yesterday's baseball games.

“Who is this Judge?” Maricyk asked.

“Judge DeGeorge,” Marc replied. “He had been Commissioner of Purchase.”

“Any good?”

“He's pretty new. I don't know much about him,” said Marc. He rose and walked over to one of the court officers who he knew slightly. “How's this Judge?” Marc whispered.

The officer turned his back to the judge's desk and rotated his hand from side to side. “He's not too bad on a plea. He doesn't like to send anyone to jail, yet. On a hearing, he holds most of the stuff in. You know, he's new.”

“Thanks,” said Marc, returning to his chair.

Maricyk inquired with a jut of his jaw.

“He apparently doesn't throw many cases out,” said Marc. “But at least we'll be able to get a line on the D.A.'s case, hear what Schmidt is going to say.”

“Do I have to say anything?” Maricyk asked. “What do I have to do?”

“Nothing,” replied Marc. “We'll let them present their case, see if there's enough to convince the Judge that a crime has been committed.”

“Officer,” said the Judge. “See if you can turn the air conditioning higher. It's pretty close in here.”

The court attendant touched the dials. The machine squawked and began pelting out a new, louder rhythm.

“Better leave it where it was,” said the Judge. “Let's proceed.”

The case was called. Schmidt took the stand, swore to tell the truth. The D.A. asked him to explain to the Judge what had occurred the night he arrested Maricyk.

Schmidt testified that he and his partner stopped Maricyk for an illegal U-turn. Schmidt also tesified that Maricyk tried to talk him out of issuing a ticket. After Schmidt refused to hear Maricyk's plea, he testified, Maricyk became belligerent and tried to punch Schmidt. Thereupon, Schmidt arrested Maricyk and brought him to the station house.

“Now while at the station house, Officer,” said the D.A. continuing, “did anything else occur?”

“Yes, the defendant said he'd make it worth my while if we just gave him some kind of disorderly conduct summons.”

“What did you do then, if anything?” continued the D.A. “Explain it to the Court.”

“I said, wait a minute, I want to talk to my partner about how much it'd be worth. Then I went outside, and told the sergeant. He gave me a small wire recorder, which I put under my jacket. I went back in, and the defendant kept talking about how he didn't need any trouble, he'd make it worth my while. So I asked him how much. And he said that was up to me, twenty bucks. I said, okay, where's the dough? He took it out of his pocket and tried to hand it to me.”

“And then what happened?” asked the D.A.

The Judge was leaning back in his chair, listening. The stenotypist's moving fingers were recording everything that was said.

“I placed the defendant under arrest for attempted bribery.”

“Do you have the recording of what the defendant said to you that night?” the Judge asked.

“Not with me. It's at the station house.”

“But you do have the recording?” asked the D.A.

“I do.”

“I have no further questions, Your Honor.”

“Cross-examination, Counselor?” asked the Judge.

Marc rose. He knew it was pointless to cross-examine Schmidt. This wasn't a trial after all, and surely there was enough evidence on the record for the Judge to find a crime may indeed have been committed. As a practical matter, after hearing Schmidt testify about having recorded the bribe conversations, Marc realized that the best service he could render Maricyk was to get the D.A. to consent to a guilty plea to a reduced charge, and have Maricyk take such a plea before a reasonable judge.

Marc knew that more than ninety per cent of all criminal charges were disposed of through plea bargaining. Indeed, although many critics raise their voices in derision of such a system, if there were no dispositions of cases by the D.A. offering to the defendant a lower plea than the one originally charged, and if the defendant didn't, in turn, offer to have a plea of guilt entered against him to the lowered charge; if every case was disposed of only by trial, our courts would have to work around the clock and personnel—judges, D.A.'s, lawyers, officers, stenographers, clerks—would have to be trebled, and still the overflow of untried cases each year would fill the jails to bursting.

And those who would suggest that pleas of guilty should be permitted, but not lesser pleas to lesser charges, should recognize as a fact of life that it would not interest a defendant to plead guilty to the top count or charge against him if the worst thing that could happen to him at a trial is to be convicted of the very same count. He might as well proceed to trial and take a chance. After all, he might win. And if he lost, he'd only be convicted of the top charge against him anyway.

Moreover, in a very substantial number of cases, it isn't that the D.A. is granting a unilateral favor to the defendant in permitting a plea to a lesser count—only the D.A., charged with the responsibility of prosecution, has the right to offer a lesser plea. For many a case is based on hazy evidence, or unsure witnesses, or illegal evidence, and if, indeed a trial were to ensue, there might be a hung jury or an outright acquittal.

Since the outcome of trials is an uncertainty, for both prosecution and defense, and since the D.A.'s desire to permit the defendant to plead guilty to a lesser charge is directly tied in to the D.A.'s evaluation of his chances of success—the weaker the D.A.'s case, the more prone to a lesser plea he is, and vice versa—the D.A., in the ordinary instance of plea bargaining, is doing no more for the defendant than the defendant is doing for the People.

Most of the time plea bargaining is a fair exchange, a good bargain which can usually be measured when neither side is completely pleased.

In Maricyk's case, Marc realized the D.A. had a strong case, and the D.A. would probably be less amenable to a lower plea.

“I have no questions of the witness,” said Marc.

“Is that the People's entire case?” asked the Judge, looking at the D.A.

“Yes, sir.”

“Do you have any witnesses?” the Judge asked Marc. He smiled pleasantly. He had an air of affability about him; particularly since he had a case before him that was solid, there were no complex issues to decide. He was astride the matter firmly.

“No, sir. The defense rests,” Marc replied.

“Motions?” the Judge asked.

“Yes, sir. I move first to dismiss those charges alleging possession by the defendant of marijuana, on the grounds that there is absolutely no proof whatever in the record concerning any narcotics in this case.”

“No, I'm going to deny that motion,” the Judge said. He had a pleasant, don't-take-it-personally smile on his face. “There's enough here to hold this case for the grand jury.”

“Your Honor,” said Marc, “most respectfully, I suggest that there may be some evidence relating to an alleged attempted bribe, but I respectfully submit you can't hold a charge concerning marijuana in this case where the D.A. has failed totally to produce any evidence whatever concerning the same.”

“Denied.” The Judge smiled. “Any other motion?”

“May I ask Your Honor for the record on what grounds you are denying the defendant's motion to dismiss the marijuana charges?” Marc asked pointedly.

“Counselor, I've made my decision. You have an appeal available at the appropriate time if you so desire,” replied the Judge. “Any other motions?”

Despite the fact that the Judge was being hard-nosed and seemingly legally obtuse, he was acutely aware at this precise moment, just as were Marc and the D.A., and even Maricyk, that Maricyk was stretched over a barrel by the evidence; that a jury, if they had any doubt of Maricyk's guilt after Schmidt testified, would be more than assured by the tape recordings. Thus, the Judge knew that it was 100 to 1 that Maricyk would plead guilty. It was also 100 to 1, therefore, that there would be no appeal by Maricyk. And, thus, what difference did it make what he decided, right or wrong, about marijuana, about anything at the hearing?

“Denied, Counselor,” said the Judge. “I think there's enough to hold this attempted bribery, and that's what I'm going to do. This is a felony and must therefore go to the grand jury. If there's merit to what you say, the grand jury can dismiss it.” He nodded with assurance. “The Supreme Court can throw it out if they want. I will not.” The Judge wrote his decision on the papers before him.

“Will Your Honor consider a reduction of defendant's bail at this time?” asked Marc. “Particularly since the defendant and his family are totally incapable of meeting the present bail conditions. He hasn't been able to make bail since his arrest.”

“What does the D.A. have to say about that?” asked the Judge. “Will you consent to lowering the bail?”

The young D.A. shook his head. “I'm not going to consent to anything, Judge.”

“Your Honor, you do not need the consent of the D.A. to lower the bail,” said Marc. “That's solely the Court's province. And I urge a reduction over the D.A.'s reluctance where the D.A.'s position is so arbitrary and totally without any relation to the absence of danger of this defendant not appearing to answer the charges. Since that's the only purpose of bail, to insure the defendant's presence at future proceedings, and since the D.A. hasn't even suggested there would be any danger of this defendant fleeing the jurisdiction and not answering the charges, I respectfully suggest a lower bail is eminently appropriate.”

“I'm afraid, Counselor, that I'm not going to reduce the bail at this time,” said the Judge. “You can make an application in the Supreme Court if you want to lower the bail.”