PART 35 (36 page)

“Was he standing on the fire escape?”

“Yes.”

“And when you answered Mr. Ellis's questions two days ago, you said you saw him face to face?” Sandro made a motion with his flat hand at eye height, parallel to the floor, indicating from face to face.

“Yes.”

“In a straight line?”

“Yes.”

“When you saw him face to face was he standing still, or was he moving?”

“I don't remember if he was moving, but I know I saw him. He was going up.”

“You say he was going up? Was he moving?”

“I don't remember.”

“Was he standing still.”

“He was standing there.”

“He wasn't moving, then? He was standing still?”

“Afterward I went to my room.”

“I object, Your Honor,” said Sandro. “I ask that the answer be stricken as not responsive to my question.”

“Strike it out.”

“Was he moving to go up?”

“I didn't see, because I went into my room.”

“So you didn't see if he was moving or standing still?”

“No.”

“And you don't know what position he was in?”

“He must have been frontward, because I saw his face.”

“When you say, ‘He must have been,' you don't know that as a matter of fact. You're just guessing?”

“I saw him. I only saw him,” she insisted angrily.

“How long did you see him.”

“One minute.”

“Was it quick?”

“Yes.”

“It wasn't a minute. It was like that?” He snapped his fingers.

“Yes.” She nodded. “Fast.”

“And then you went to the other room to see from another window. And he was on the stairs then?”

“Yes.”

“And his back was to you then as he went up?”

“Yes.”

“You saw his face then, didn't you?”

“No.”

“You only saw his face from your son's room?”

“Yes.”

“How high from the floor is the windowsill in your son's room?”

“I don't know.”

“Is it right at the floor?”

“No.”

“It's up a little bit?”

“Yes.”

“Would it be up here?” Sandro asked, indicating his hips. “At approximately the hip bones?”

“It could be.”

“It's much lower than the hips, isn't it?”

“No.”

She distrusted him enough now to give answers opposite to anything she thought he might want to hear.

“The windowsill was at the hips then?”

“Yes, at the hips.”

Sandro showed Mrs. Santos the police picture of the room which had been ransacked in Soto's apartment on the top floor. She said her windowsill was approximately the same height from the floor.

“Now, this fire escape that was outside your son's window. Was its floor right outside at the level of the windowsill?”

“I don't know. I moved from there.”

“Well, look at this picture of your old fire escape.” Sandro showed her one of Jerry's pictures of the rear of the building, which he had introduced through Loughlin. “The fire escape is right at the level of the windowsill, isn't it?” Sandro held the picture for her to view. She looked at it, but did not answer.

“Is the fire escape platform at the level of the windowsill or not?”

Still she did not answer.

“I'll let you see it a little closer.” He walked directly up to the witness. “Does it start at the windowsill, is the question.”

“Do you understand the question?” the judge asked.

“It looks enough like it.”

“When you saw this man, you were in your apartment, standing on the floor at the window, right?”

“Yes.”

“And this man was standing outside, on the fire escape?”

“Right.”

“And while he was standing on the fire escape, you were face-to-face level with him?”

“I turned my head to look outside and saw him.”

“Face-to-face level, you saw him?”

She nodded. “I saw him.”

“No, the question is: were you face-to-face level?” Sandro indicated a parallel line from his eyes outward. “As you were standing inside, looking from that window at the man outside?”

“I saw him. I saw him.”

“No, the question is: were you face-to-face level as you stood at the window?”

“Your Honor, I object,” said Ellis.

“She has not responded to the question,” said the judge.

“I object to counsel's position. He looks like he's ready to pounce on the witness.”

Sandro became aware that he was leaning toward the witness, his eyes fixed on her.

“Sorry, Your Honor,” he said, backing toward the jury box again.

“Mrs. Santos,” said the judge, “the lawyer wants to know, when you saw this man on the fire escape, if your face was on the same level as his.”

“Not at the same level, no,” the interpreter said for her.

“Wasn't it at a level, face to face, when you first saw him?” Sandro again made the level motion of his hand moving from his eyes.

“I don't remember.”

“Two days ago for Mr. Ellis, and five minutes ago, when I first asked you about that fire escape, you said the man was face-to-face level. A moment ago you said you were not at the same level. Now you say you don't remember. Which of your three answers is true? Was he face-to-face level, wasn't he, or don't you remember?”

Mrs. Santos was glaring at Sandro now. She bit her lip. “I was a little lower.”

“It was just an inch, wasn't it?”

“No.”

“You weren't more than five inches lower though, were you?”

“Yes, I was.”

“Fifteen inches lower?”

“I don't know.”

“Were you four feet lower?”

“I don't know.”

“Were you ten feet lower?”

She didn't answer.

“I have no further questions.” Sandro returned to the counsel table.

Sam was drawing figure eights in his notebook. “You destroyed her,” he whispered, not looking up from his doodling.

Alvarado slid his hand over and squeezed Sandra's arm. “You my man.”

Ellis got up and directed some additional questions at Mrs. Santos in an attempt to clarify some of the discrepancies. He asked a few questions and sat down.

Siakos rose. Sandro watched apprehensively.

“Mrs. Santos, the baby you were pregnant with when you saw these men as you say, did you have the baby?”

“No.”

“You lost it?”

“Yes.”

“When?”

“In the end of July.”

“And you think the men who shot the policeman, whoever they are, are responsible, don't you?”

“No.”

“No further questions.”

The judge recessed the court for lunch.

“Your Honor,” said Sam, “before you leave the bench, may counsel approach?”

“Yes, come up.”

They moved close to keep out of range of the jury's hearing.

“Your Honor,” Sam said, “based on the developments in this witness's testimony, I feel it might be advisable for us to go with the jury up to the scene of this crime and let them see firsthand what the hallway looks like.”

“I go along with that application, Your Honor,” said Siakos.

The judge turned to Ellis.

“I don't think there's too much necessity for all that, Your Honor. We do have photographs, particularly all these pictures Mr. Luca has. We've also had the engineer describe the scene.”

“Yes,” agreed the judge, “and we have the engineer's diagrams. I don't think there's any necessity for taking the whole jury over there. Motion denied.” The judge rose and left the bench.

Mike Rivera had arrived and accompanied Sam and Sandro back into the courtroom after the lunch recess. Ellis recalled to the stand Loughlin the engineer. Loughlin testified that he measured the distance from the windowsill of Apartment 2B in the rear of the building at 153 Stanton Street to the railing of the fire escape of 5B, Soto's apartment. The distance was thirty feet. Loughlin drew a line on a photograph the D.A. handed him and marked it thirty feet. Ellis had no further questions.

“Can that be for the Italian woman?” Sam whispered.

“No. She's not going to testify. Besides, Two-B is the junky's apartment.”

Defense counsel had no questions for the engineer.

“Call your next witness,” the judge said.

“Carmen Salerno,” Ellis called.

“I thought we weren't having the Italian woman.” Sam said.

Through the side door came Mrs. Salerno, wearing her ponytail, without makeup. She jiggled keys as her heels scuffed in a sort of strut. “That's not the Italian woman. That's the junky's wife. She's Puerto Rican.”

“Well, she's got an Italian name. What's she going to testify about?”

“She told me she didn't know anything. I found a DD5 where she said she saw someone on the fire escape. She wasn't able to identify his face, however.”

Mrs. Salerno was sworn by the clerk. Her face was like a mask as she waited for Ellis to question her. She didn't look at Sandro.

Ellis questioned Mrs. Salerno. She testified that she had been in her apartment on the day of the shooting, watching her own child and two children of a friend. Early in the afternoon she heard a squeak of the fire-escape ladder. She did not pay any attention to it at the time. A little later, she heard another sound, like someone climbing the fire escape. She went to her window, the one next to, but not on the fire escape, opened it, and looked down. There was no one below. She looked up and saw a man standing on the fire escape outside the Soto apartment, three stories above. She said the man was standing facing the window. She testified he turned and leaned over the rail, looking down in her direction. She testified she saw his face.

“Do you recognize anyone in this courtroom?” Ellis asked.

“Him.” She pointed at Alvarado.

“Let her step down,” said the judge.

“Walk over to the man you say you recognize, Mrs. Salerno,” said Ellis.

She scuffed her heels toward the counsel table and pointed directly at Alvarado.

“Let the record reflect the witness pointed to the defendant Alvarado,” said the judge. “All right, Mrs. Salerno, return to the witness chair.”

“Here it is,” Sandro whispered to Sam. He slipped a sheet of paper between the pages of a yellow pad, and slid the pad to Sam. It was a copy of the DD5 Sandro had been quietly searching for, recording an interview with Mrs. Salerno on July 3rd, 1967, by Detective Anthony Panetta. She told the detective that she had seen a very dark Negro, in a shabby mustard-colored jacket and black pants, moving on the fire escape. She did
not
see his face.

Sam read the document and nodded.

“We should be able to get at her with this,” said Sandro.

Sam shrugged. “Ellis has all the DD5's too. He'll probably have her admit this, say she was frightened, like Mrs. Santos. Then you have no discrepancy, and you can't use this to show she's lying.”

Ellis asked Mrs. Salerno what happened after she saw the man on the fire escape. She testified she saw one of the policemen as he climbed the fire escape in the rear. He went up to the roof. She heard the shots, Mrs. Salerno testified, and then she stayed in the house with the children.

Sandro was puzzled as Siakos rose to cross-examine. She hadn't even mentioned Hernandez.

She testified that she had never appeared before the grand jury in this case, but she did speak to the police and to the district attorney at the police station the evening of the shooting. Sure, Sandro remembered now, hadn't Alma Soto seen her coming out with Asunta? Soto must have seen her too then, he thought, because he was there before his wife came in. But he hadn't mentioned her, only Asunta and the Italian woman. Something wrong there, Sandro thought.

Siakos was now asking for any statement by this witness or notes concerning her that the district attorney had in his possession. Ellis gave Siakos two handwritten yellow sheets.

“Perhaps the other counsel can read the pages at the same time, so that we may proceed without too much delay,” the judge suggested.

Siakos walked over to Sandro and Sam. They laid the sheets out on the table. The notes were made by Assistant District Attorney Brennan, who went to the police station the evening the defendants were arrested. The notes indicated that Mrs. Salerno was on relief, lived with her husband and baby son. She told D.A. Brennan that she had heard a noise in the rear of the building, looked out and saw someone above on the fire escape standing and bending. He had ripple-sole shoes, black pants, and a short yellowish jacket. He was a very dark Negro. She said the man she saw in the station house that night looked very much like the man on the fire escape.

“This identification in the station house is a hell of a lot less positive than the one she gave just now,” said Sam.

“Sure, that night he just
looked
like him,” Siakos added.

“You see this bit about her being on relief?” Sandro pointed. “And also her husband's a junky. He just got back from doing nine months. He was in Lexington for a year before that.”

“How'd they have the baby, then?” Siakos wondered.

“Anyway,” Sandro said, “she's probably an easy mark for police persuasion.”

“Sure,” said Siakos. “She cooperates or they'll bust her husband again. Maybe she wants a big family.” Siakos smiled momentarily. He stood and walked back toward the jury box. He put Brennan's notes on the shelf and looked up at Mrs. Salerno. If ever a witness was hostile, it was she. She huddled in the chair like an animal ready to spring.

Siakos asked about her husband and her home. Her husband, she testified, was not employed. He was being given clinic care for narcotics addicts. She said she was on relief. She denied that any policeman or detective had threatened to arrest her husband and send him back to jail if she didn't cooperate. Siakos questioned her about the first noise she said she had heard. He asked if she had seen Hernandez. She testified she hadn't. He had no further questions.