PART 35 (38 page)

“You may, sir.”

A court officer handed the photograph to the foreman. The jurors studied it minutely.

Mrs. Salerno, in answer to Sandro's further questions, testified that on July 3rd, 1967, she didn't know who lived in the Soto apartment, and that as far as she knew, the man on the fire escape could have been the tenant of Apartment 5B.

Mrs. Salerno testified that she had to lean far out of the window and twist to her left to see upward. She testified that it was not raining at the time she looked up, and no rain went into her eyes as she watched the man above.

“And while you were leaning way out, your head twisted to the left, you saw the face of a very dark Negro looking down?”

“I saw him, sure.”

“Did he have a moustache?”

“I didn't say I saw that.”

“So you don't know if the dark Negro looking down had a moustache or not?”

“I saw him, but…”

Sandro watched her sip a glass of water. He now picked up the photograph of Mike Rivera standing on the fire escape, leaning over the rail, looking directly down at the camera. Mike's face appeared ninety percent shadow, the ten percent being the side of his face away from the building, lit by the late afternoon sun of the day before. He was unrecognizable.

“Can you recognize this?” Sandro asked, handing her the photograph.

“This is a man.”

“The same view as you saw from the window on July third?”

“Yes.”

Sandro offered it into evidence, and it was accepted without objection. The officer handed the photograph back to Sandro. He held it in both hands and studied it momentarily. He wanted to pique the jury's curiosity. Sandro looked up to the witness.

“Now, on the day that you viewed this
dark
Negro on the fire escape, his head was outlined against the sky as in this picture, wasn't it?”

“Yes.”

“In other words, the
dark
Negro's face was silhouetted against the sky, wasn't it?”

Her eyes narrowed slightly. “I don't know what you mean by that.”

“There were shadows on the dark Negro's face, weren't there?”

“What do you mean by shadows.”

“You know what a shadow is, don't you, Mrs. Salerno?”

“Yes.”

“Was the man's face covered with shadows?”

“I don't know exactly what you mean by shadows.”

Sandro looked again at the photograph in his hands.

“The dark Negro's face had about the same amount of light on it as the face in this photograph. Isn't that right?”

“About the same.”

“His face was covered with shadows when he was looking down, wasn't it?”

“I don't know exactly what you mean.”

“May I show this photograph, exhibit H, to the jury, Your Honor?”

“You may, sir.”

The jury grabbed it up. Sandro walked to the counsel table and sat. He and Sam watched the jurors devour the photograph.

When they had all viewed the photo, Sandro continued to question Mrs. Salerno. She testified that when the police came, the man had long disappeared. She testified that the man she had seen, as far as she knew, might have even descended the fire escape and walked away through the yard before Lauria made his fateful climb.

Mrs. Salerno testified that she saw the police in the building after the shooting, and went to the station house that night. There, she viewed Alvarado through a two-way mirror.

Sam signaled him. Sandro walked over to the counsel table. Sam handed him the notes that the assistant D.A., Brennan, had taken at Mrs. Salerno's interview. He leaned toward Sandro and whispered, “That sure as hell is your Italian woman. Here's your chance to get her.”

Sandro introduced Brennan's notes into evidence.

“You were not as positive in the station house, when you spoke to the D.A., as you are here at this trial, were you?”

“I don't understand. You better say that again.”

“On July third, you said the man you saw in the station house only looked like the man on the fire escape.”

“I had my reasons for it.”

“You had special reasons for not telling the district attorney what you knew about this case?”

“Sure, I had my reasons.”

“Do you have special reasons for telling the jury what you're telling them?”

“No, only then.”

Sandro studied her, as if to contemplate her reasons. The jury watched him.

“Do you remember talking to me in the hallway of One fifty-three Stanton Street early in August, 1967, Mrs. Salerno?”

“Yeah.”

“And do you remember telling me you knew nothing about this case?”

“Yeah.”

“That was a lie, wasn't it?”

“Yeah.”

“You had a reason for that lie though, didn't you?”

“That's right.”

Sandro took a DD5 out from between the pages of his yellow pad and read it to himself slowly as he stood before the jury. Mrs. Salerno watched him.

“You remember speaking to the police in the very building where all this took place, on the very day it took place?” Sandro still studied the DD5.

“That's right.”

“And they took notes of what you told them?”

“Yeah.”

“And did you tell the police”—Sandro read from the DD5 as he questioned—“that you saw a man on the fire escape?”

“Yes.” She stared at the paper Sandro was reading.

“And did you describe what he was wearing?”

“I don't remember that. It was a long time ago.”

“I'll let you read this and see if this refreshes your recollection.” Sandro walked forward and handed the DD5 to Mrs. Salerno. She read it and handed it back.

“I tol' 'em.”

“You said he wore a mustard jacket, right?”

“Yeah.”

“And black pants?”

“Right.”

“You said it was a real dark Negro, didn't you?”

“Real dark? I don't think I said that.”

“Here is the DD5 again. Will you read it?” She read the DD5 again.

“I told them that too.”

“And all that is written down there, isn't it?”

“Yeah.”

“And you also told the police that you didn't see the face of the man on the fire escape?”

“Yeah.”

Sam was right. Ellis
had
prepared her to admit all the things in the DD5.

“And that was a lie to the police too?”

“Yeah.”

“And did you have reason to lie to the police too?”

“Yeah.”

“You wouldn't lie to this jury, would you?”

“No.”

“But they have only your word for it?”

She studied Sandro. “So?”

“If you have a reason, you don't mind lying, do you?”

“I ain't lyin'.”

“Detective Mullaly knows you're on relief, doesn't he?”

“Yeah.”

“He told you he'd make sure you didn't get relief money any more if you didn't testify, didn't he?”

“I object, Your Honor,” said Ellis, rising. “Unless the question is in good faith, unless there's some basis for it.”

“Overruled. Mr. Luca may ask such questions, but is bound by the answer. He may not pursue it,” said the judge. “You may answer, Mrs. Salerno.”

“No.”

“Detective Mullaly knows your husband's a junky, doesn't he, Mrs. Salerno?”

Her jaw muscles were twitching with anger. “Yeah.”

“Did the police tell you your husband would go back to jail if you didn't cooperate?”

“No.”

“That's your reason for lying to this jury, isn't it, Mrs. Salerno?”

“I object, Your Honor,” Ellis said, leaping up.

“Sustained.”

“You don't want your husband to go back to jail, do you?”

“I object, Your Honor.”

“Sustained.”

“I have no further questions,” Sandro said, walking to his chair.

“Let's see what Ellis does now,” Sam whispered as Sandro sat. “He'll have to let her explain why she lied to the police.”

Ellis requestioned Mrs. Salerno. She testified that her reason for lying to the police on the day of the shooting was fear of “getting involved.” That was the whole, the only, the easily testified reason. Ellis had no further questions. Siakos had none. Sandro rose.

“May I have one or two questions, Your Honor?”

“You may.”

“Mrs. Salerno, you've told the jury you lied so many times because you didn't want to get involved?”

“That's right.”

“And giving the police a positive statement, describing the man on the fire escape, his clothing, even the shoes he wore, going to the police station at night, speaking to the D.A., is not getting involved?”

“Objection as argumentative,” Ellis said, half-rising.

“Sustained.”

“Did you ever, Mrs. Salerno, tell the police you knew nothing about this case so you wouldn't get involved?”

“No.”

“No further questions,” Sandro returned to the counsel table.

“Your next witness, Mr. Ellis,” said the judge.

Ellis called Roger Snider to the stand. As Snider was being sworn, Sandro looked toward the spectators. He saw Mike Rivera sitting in the front row. Mike nodded to Sandro.

Snider spoke very quietly, softly, wrapped in sorrow. The court was very still as he almost whispered his testimony. He testified that on July 3rd, 1967, he and Lauria were sent to investigate a reported prowler at 155 Stanton Street. He testified that a woman in 152 Rivington Street, the building directly across the rear yard from 153 Stanton Street, pointed to the roof. Snider said he had called to Lauria to go slowly while he, Snider, went into the building and up the interior stairs. When he reached approximately the second landing, Snider said, he heard a fusillade of shots. He dashed the rest of the way to the roof and found Lauria lying in a pool of blood.

The judge called a luncheon recess.

“Your Honor, may we again approach the bench?” asked Sam.

“Surely.”

“Now, Your Honor, I want to renew my application to have the jury go to the scene of the crime to see the premises firsthand. I realize you initially denied this motion, but now, after Mrs. Salerno's testimony, I believe there's more reason to go there.”

The judge looked at Ellis.

“Your Honor, I'm not generally in favor of such trips. However, since we seem to be getting more bogged down in what could and what couldn't be seen, perhaps it might serve some purpose to have the jurors see the area for themselves. It's up to you, of course, Judge.”

“Let's go into chambers and discuss this, gentlemen,” said Judge Porta, rising. The lawyers followed him through the side door into the rear corridor. A court officer opened the heavy door to the robing chambers.

Judge Porta sat at the desk. He lit a cigarette, inviting the attorneys to smoke if they wished. Sam and Siakos sat on a leather couch. Ellis sat on a chair next to the judge's desk. Sandro stood, leaning against a window that overlooked Columbus Park.

“I don't usually permit the jury to visit the scene of the crime,” said the judge. “It's too hard to control what they see. It's almost impossible to show them the physical scene exactly as it was.”

“We could restrict them to the hallway where Mrs. Santos said she saw Hernandez,” Sam suggested. “She saw the pictures we took and said it appeared to be the same as when she saw Hernandez.”

“We could do that,” the judge nodded.

“Why not let them go into the backyard and see the rear facade of the building?” Sandro added. “The fire escape and the building are certainly still the same.”

“That's pretty easily controlled, Judge,” Sam said, lighting a cigar in a big billow of smoke.

“We'd better talk fast, before Sam fumigates this place,” Judge Porta interjected. “What do you say, David?”

“If we can keep the situation controlled, staying in certain restricted areas, going to the scene could be beneficial. Frankly, I've never been there myself, and sometimes I get a little confused.”

“Looking at that hallway where Mrs. Santos says she was seems all right,” said the judge. “And the backyard. Maybe even the roof. However, I won't let them look out the window from which Mrs. Salerno said she saw the man on the fire escape. Who knows what the lighting conditions actually were that day? It's dangerous to try and re-create that. Could be very prejudicial one way or the other.”

“But that's an essential element of Mrs. Salerno's testimony,” Sandro protested.

“True, but we're simply not going to be able to duplicate what appeared on July third, 1967. We have no choice on that.”

“Then we are definitely going there, Your Honor?” Ellis asked.

The judge nodded. “Unless there's some strong objection, David. I think we can obtain a salutary result. Do you agree, gentlemen?”

The attorneys nodded.

“I'll have to get the clerk to hire a bus so we can go there in some semblance of order. Maybe we can get a picnic lunch somewhere, and after we go to the scene, we'll go the Central Park and have a game of Softball.” The judge was smiling.

“We'll have one defendant on each team,” Siakos said. Ellis snorted. The others laughed.

“Let me work out the details with the clerk,” said the judge, rising. “Perhaps we could go next Wednesday morning. We'll meet here, and take the bus to Stanton Street.” Judge Porta crushed his cigarette in the ashtray and moved toward the door. “Lunchtime, gentlemen. We'll resume at two thirty.”

For lunch, Sam, Sandro, and Mike went to Giambone's Italian Restaurant on Mulberry Street, directly across Columbus Park from the courthouse.

“Come on, let's tear off that sad puss of Snider's,” Mike urged. “He's a phony. Now he says he was only at the second landing.”