PART 35 (60 page)

“So this is the way he's going to get the Q. and A. in,” said Sam. “I knew he couldn't risk not using it.”

Siakos asked for a few moments to read the document. The court granted a short recess.

Upon resumption, Ellis questioned Hernandez about the assistant D.A.'s examination of him in the station house on July 4th. He was trying to establish that Hernandez's testimony did not agree with his statement to Brennan. Hernandez said he didn't remember either the questions or the answers because they were beaten into him. The judge struck out his answer as not responsive.

In the statement Hernandez had allegedly told Brennan that he had met Alvarado at the Hotel Ascot the morning of July 3rd. Hernandez now testified that he had said that to the D.A. but that he had lied.

Siakos rose. “Your Honor, I object to having the statement read since it is not in evidence. Further, I would like to request that the voir dire be reopened to question the validity of this statement because Mr. Ellis is attempting to use it as an additional confession. The beating that the defendant Hernandez said he received is the continuing cause of this statement. I object further that there is no proof of the accuracy of the statement, the method of its being taken, or the ability of the stenographer or interpreter who recorded it.”

“This is not being used as a confession,” said Judge Porta. “It is not being used for the truth contained therein, but merely to impeach the witness's credibility by a prior inconsistent statement. Overruled, Mr. Siakos, except that I direct Mr. Ellis to produce the D.A. who took this statement, the stenographer, and interpreter at the proper time.”

“This is the proper time, Your Honor,” Siakos persisted. “If it's not done now and the statement is later found to be inadmissible, the damage would have already been done, and it would be grounds for a mistrial.”

“Overruled. Continue, Mr. Ellis.”

“Hernandez, do you remember the following questions asked of you on the morning of July fourth, 1967, and these answers? Question: ‘Now, my name is William E. Brennan. I am an assistant district attorney in Manhattan. Do you understand? Answer: Yes. Question: Now, in this room are Detectives Tracy and Mullaly, Mr. La Fontana, an interpreter, and Mr. Connors, a stenotypist. Do you understand that so far?'”

Ellis read on. Brennan had explained the defendant's rights to him. Brennan then asked Hernandez for his name and address and about his background. He asked questions about the hotel on the morning of July 3rd, about meeting Alvarado, about talking with Alvarado, about stealing, about the size of his habit. The answers were the same as those Mullaly had testified to.

“Do you remember being asked those questions, Hernandez, and giving those answers?”

“Some of them,” the interpreter said.

“Will Mr. Siakos concede that I'm reading the statement accurately?” Ellis asked.

“Without conceding anything as to the truth of this alleged statement, Mr. Ellis is reading what is here correctly.”

“Perhaps further questions will refresh your recollection, Hernandez: Question: How long were you riding around? Was it one hour, two hours, or three hours? Answer: Minutes. Question: How long were you talking to him in the hotel? Answer: Until about ten o'clock. Question: Do you know what time it was when the shooting took place? Answer: No. Question: Was it in the morning or the afternoon? Answer: I believe it was in the afternoon. Question: If you left the hotel around ten o'clock, weren't you driving around for a few hours before you came to Stanton Street? Answer: Yes, sir.'

“Now, do you remember those questions and your answers?” Ellis asked.

“Some.”

“This Hernandez is so dumb,” Sandro said, “he didn't even remember what the cops beat into him. He's fouling up the confession for them.”

“That's a break for us. It makes the confession look ridiculous if the man who was there doesn't know what happened.”

“And do you now deny that these things you said are true?”

“I was beaten. I was afraid.”

“Did you say that to the D.A.? Did you tell him that?”

“I was going to save it for my lawyer.”

Ellis stared at Hernandez. “Perhaps these questions will refresh your memory: ‘Question: Where did you go when you went into the building? Answer: Went to break the door. Question: What floor did you go to? Answer: Second floor.'”

“It was the fifth floor,” Sandro whispered to Sam.

“The jury knows it, too. Look at number five.” Sandro saw Youngerman, the telephone repairman, frowning with confusion. “This is going to help us.”

Ellis went on. “‘Question: How did you open the door? Answer: I open with a crowbar. Question: Who had the crowbar? Answer: Luis. Question: Well, then, did you open the door with a crowbar? Answer: Luis opened the door. Question: So you didn't use the jimmy? Answer: No. Detective Tracy: Did you use your shoulder? Question: Did you push the door open? Answer: No, sir. Question: Luis used the jimmy? Answer: Yes, sir.'”

“Did you say those things to the D.A., Hernandez?”

“Some of them.”

“But now, after you've had almost a year to think about it, you say these things aren't true?”

“They were a lie then, too.”

“Did you tell that to the D.A.?”

“No.”

“Perhaps these questions will help your memory. ‘Question: Well, did you go into the apartment to take the radio out? Answer: No, he brought me the radio. Question: What color was the radio? Answer: Black. Question: You sure it wasn't red? Answer: No, sir. (At this point, Detective Johnson left the room and brought back a red radio.)

“‘Question: Is this the radio? Answer: Yes. (Mr. Brennan then said, Let the record indicate this is a red radio.) Question: Was it red? Answer: Yes, that's the radio. Question: So when you said black, were you mistaken? Answer: Yes, I was mistaken.'”

“Jesus Christ,” said Sam, “this is beautiful.”

“Why the hell is Ellis using this stuff? It can't be helping.”

“Just think what we could do on summation if he didn't use it. We'd be able to say that they never confessed to the D.A., that they denied the crime, and Ellis was afraid to reveal it. He's stuck, and it's beautiful.”

Ellis repeated Brennan's questions. They were about the TV set and the roof and the policeman coming onto the roof. Hernandez's answers still followed Mullaly's version.

“‘Question: Is that true, Luis grabbed the cop from behind? Answer: Yes. Question: Did Luis knock the cop down? Answer: He shot him.'”

“He's not reading the whole statement,” Sandro whispered quickly. “He's skipping whole sections.”

“They must hurt him,” Sam replied. “We'll read them for him.”

“Siakos should read the rest of this to the jury.”

Sam nodded and leaned over to whisper to Siakos. Siakos nodded.

Ellis finished reading. He pointed out that at no time had Hernandez made a complaint, not even in reply to the D.A.'s direct questions about being ill-treated.

“Your Honor,” said Ellis, “that completes what I intend to read from this statement. Now with Your Honor's permission, I'd like to bring someone into the court for Hernandez to identify.”

“You may, sir.”

“Angel Belmonte,” called Ellis. A court officer went through the side door to the witness room. He returned with a dark-haired man in a white shirt, tieless.

“Did I tell you or not?” asked Sam.

“Is this Angel Belmonte who you bought drugs from on the afternoon of July third?” Ellis asked Hernandez.

Hernandez nodded. The interpreter said it was.

“Twenty-five dollars says Belmonte denies it when Ellis puts him on the stand,” said Sam. “Belmonte probably has charges against him or he will next week, and they'll give him a break for this testimony.”

“I have no further questions,” said Ellis.

“We'll take our luncheon recess now.” The judge retired from the bench.

After lunch, Siakos rose. Hernandez testified that Detective Johnson had taken him to the washroom before he saw the D.A., and Johnson told him that if he didn't say the right things to the D.A., they'd take him back to the third floor and break his balls. He said that he believed they would. Siakos took the question-and-answer statement.

“Mr. Hernandez, do you recall these questions and answers?”

“Objection, Your Honor. That document is not in evidence. It can only be used as a prior inconsistent statement, and defense counsel may not impeach his own witness.”

“Quite true. Sustained.”

Siakos's disappointment was obvious. He asked Hernandez if the story he had told the D.A. were true and, if not, why he had told such a story. Hernandez said that he had made up much of the story because he couldn't remember the things the police had said to him. He had thought that if he told the D.A. something, anything, the police wouldn't hit him.

“Mr. Hernandez,” Siakos asked dramatically, “did you have anything to do with the crime which occurred July third, 1967—the murder, that is?”

“I swear to God, no.”

“I have no further questions,” said Siakos.

“No questions,” said Ellis.

“No questions,” said Sam.

“Call your next witness,” the judge intoned.

“Antonio Quiñones,” Siakos said. A court officer stood to go out to the corridor. “He's sitting on the windowsill by the elevator,” Siakos said.

Shortly, a tall, thin man entered the courtroom. He was sworn and sat in the witness chair.

“Mr. Quiñones,” said Siakos. “Was your apartment burglarized sometime last year?”

“Yes, on July third.”

“What time did you leave your apartment that day?”

“About eight thirty in the morning.”

“Was anyone then in your apartment?”

“No, it was empty.”

“What time was it that you came home that day?”

“Five thirty.”

“And you found your apartment had been burglarized?”

“Yes.”

“Do you recognize these things, Mr. Quiñones?” Siakos showed him the portable radio and the suits.

“These are my things.”

“Will you put on one of the jackets, please?”

He did. It fitted him.

“May we have for the record that the black suit fits the witness perfectly?”

“It fits him,” said Judge Porta. “That's enough.”

“I have no further questions,” said Siakos.

None of the other attorneys had questions.

“At this time, Your Honor, the defendant Hernandez rests.”

The judge nodded. “Very well. We'll adjourn until Monday at ten fifteen. Be prompt, and do not discuss this case with anyone,” the judge admonished. The jury filed out.

CHAPTER XXVIII

“No, no, I tol' you. I am not testifyin' in no court,” Annie Mae Cooper insisted angrily. “I tol' you the other day, an' I'm tellin' you again.”

“Don't get excited, Annie Mae,” said Sandro. “I only want you to help a man accused of a crime he couldn't have committed. You know that; you saw him here. He was supposed to have killed a cop over in Manhattan a couple of minutes after he was here with you. Now, how would your conscience feel if you let a man like that get convicted without even trying to help him? He could go to the electric chair.”

“That's not my fault. Besides, that's your job, not mine. I already tol' you he was here. You go to court and tell them what I said.”

“That's not the way it can be done, Annie. You have to go to court.”

“I don't have to nothin'.”

Sandro reached into his inside jacket pocket and took out the buff-colored subpoena that Judge Porta had signed, ordering Annie Mae Cooper to appear in court on Monday, April 22nd, 1968.

“Annie, I didn't want to have to do this, but I've got to serve you with a subpoena,” Sandro said. He took a dollar bill from his pocket. “Here. Here's a subpoena and a dollar. That's the mileage fee that I have to give you to travel to court.”

“I don't want none of that. I tol' you I don' want that,” she insisted. She took the paper and the bill out of Sandro's hand and threw them both on the floor. She turned and stormed toward the back of the store.

“What the hell are we going to do with her?” Mike asked.

“Who knows? If she doesn't cooperate, we're stuck. I won't put her on the stand if she's hostile. I thought the subpoena would loosen her up a bit. Do you see Phil around?”

“Yeah, there he is,” said Mike. Gruberger was walking toward them.

“What the hell did you do to Annie? She's all upset, crying. What happened?”

“I told you I was going to serve her with a subpoena. Now it's up to you to see if you can get her to court. Explain to her that she'll get herself in trouble if she doesn't honor the subpoena. Try and calm her down.”

“Okay, leave it with me,” Gruberger assured Sandro. “I'll see if I can do something with her. Don't worry about it. She'll be there. I can't lose my first big witness, can I?”

“You want me to talk to her again?” Sandro asked.

“I don't think you'd better. She'll listen to me. Where do we have to go?”

“I'll have Mike pick you up about eleven Monday morning. Right in front of the store.”

“That's fine.”

Sandro and Mike got back into the car. “Where to now?” Mike asked.

“Drive down to Spring Street, between Mulberry and Mott,” Sandro replied.

“What are we going to do down there?”

“I got a call today from a fellow who wants to see me.”

Mike parked the car directly in front of the Two Steps Down Inn.

“Come on in,” said Sandro.

“Who do you know hangs around in an old beat-up place like this?” Mike asked.

“Just an old fellow I know.”