PART 35 (70 page)

“Objection, Your Honor.”

“Yes, Mr. Luca, I'll run the courtroom,” Judge Porta intoned mildly. “Proceed.”

“Mrs. Salerno, you lied to me, did you not?”

“Yeah, you too.”

“Did Mrs. Ramirez ever say to anyone else that Alvarado was the man she saw?” Sandro asked.

“No.”

“She told the police she wasn't sure, didn't she? And she said the same thing to the district attorney?”

“Yeah.”

“And the only time, you say, that Mrs. Ramirez said to you that Alvarado was the man on the stairs was when you two were alone. No one else heard?”

“That's right.”

“And this jury has only your word for that?”

“I ain't lyin'!”

“No further questions, Your Honor,” Sandro said. He turned back to the counsel table.

“The people rest, if Your Honor please,” Ellis said, rising.

“Both sides rest?” the judge asked.

Sam looked at Sandro, brows upraised.

“That's all there is. There ain't no more,” Sandro murmured.

“The defendant Alvarado rests, Your Honor,” said Sam.

“The defendant Hernandez rests,” said Siakos.

“Very well. Ladies and gentlemen, we will have summations tomorrow morning. I want you here promptly at nine forty-five. The lawyers and I have some legal business to take care of now, so I'll excuse you at this time. Do not discuss this case.”

The jury began to file out. When they were gone, Siakos first, then Sam, made several motions to dismiss the indictment on grounds of legal insufficiencies and judicial errors. The judge denied the motions and directed all the attorneys to be prepared to sum up in the morning.

“How long will you require, Mr. Bemer?”

“Mr. Luca is going to sum up for the defendant Alvarado, if Your Honor please.” Sam turned toward Sandro and winked. Sandro took a quick breath.

“Very well. Mr. Luca?” The judge's eyes were smiling.

Sandro hesitated a moment. “Two hours, if Your Honor please.”

The judge nodded. “Mr. Siakos?”

“The same, Your Honor.”

“Mr. Ellis?”

“I'll require about the same, Judge,” said Ellis.

“Very well. Tomorrow at nine forty-five. Good day, gentlemen.” The judge left the courtroom.

CHAPTER XXXVI

Friday, April 26th, 1968
,
A.M.

Ellis was sitting, drumming his fingers on the prosecution counsel table. Siakos, Sam, and Sandro sat at their table. Sandro was reading some notes. Alvarado and Hernandez were in their places, staring straight ahead; the guards behind them were talking about a pay raise. Sandro looked around. The courtroom was crowded. The buffs, a number of the witnesses, many of the policemen who had been on the case, including Mullaly, all were out there.

“Put it all together for the jury, Sandro,” said Sam. “And anticipate Ellis. We won't get another chance to answer him.”

“Don't worry, Sam. It's all together.”

The judge was announced. The jurors filed in and took their places. They sat gazing about, ready to listen, needing to be romanced, swayed, convinced.

“You may proceed, Mr. Luca,” the judge said.

Sandro stood and walked to the jury box, facing the jurors. He put his notes before him on the shelf.

“If it please this honorable court, Mr. Ellis, Mr. Siakos, Mr. Bemer, Mr. Hernandez, Mr. Alvarado, Mr. foreman, ladies and gentlemen of the jury. As you know, this part of the trial is called the summation. It is not a preview of what is to come, as the opening was, but a recapitulation of what has passed before you during the trial.”

The jurors were all solemn, most of them looking straight ahead, not at Sandro.

“I am not going to try to persuade you, to sway you with fiery oratory, as some of you might have anticipated from courtroom dramas in the movies or on television. Rather, I am going to attempt merely to highlight some of the facts, the evidence in this case. And it is upon those facts, without prejudice or sympathy, that you must decide this case.

“Before I go into those facts, however, I'd like to extend my appreciation to you on behalf of the defendant Alvarado for your patience and attention during this long and sometimes tedious trial.

“My summation is not part of the evidence. Nor is anything the district attorney says, nor anything the court says. And if anything I say disagrees with your recollection of the evidence, just forget what I say, throw it away as if I had never spoken. The same goes for what the district attorney says, or what the judge says. For you, the jury, are the exclusive judges of the facts, just as His Honor is the exclusive judge of the law in this case. And so it is your recollection of the evidence that must reign here, that is supreme here. If there are parts of the testimony or the evidence that you wish to have read again, to refresh your recollection, I am sure the judge will accommodate you.”

The majority of the jurors were still gazing calmly ahead, looking at Sandro occasionally. Sandro moved to the far end of the jury box now, near the alternates.

“In this role as the exclusive judges of the facts, you are, each of you, shortly to assume a role similar to that of the ancient kings, whose word was law, who decided questions of life or death.”

“Now, Your Honor,” Ellis said, rising. “I hate to interrupt a summation, but the intrusion of the concept of death has no place in this trial. It is totally improper. This jury has nothing whatever to do with death penalties or punishment.”

Sandro had hoped Ellis would leap to the bait. He wanted the thought of the death penalty planted firmly in the jurors' minds.

“Yes, Mr. Luca, do not get involved in matters not in issue,” said the judge.

“Very well, Your Honor. Ladies and gentlemen, as you were informed when you were picked as jurors, there may be what seem discrepancies in the law. Now, none of you, of course, would be sitting here today if you had any moral scruples against capital punishment in the proper case—I emphasize that, in the proper case. Yet I am not allowed to mention death penalties.

“Murder, the taking of human life, is the supreme human' passion. And to be a part of a jury to determine questions relating to murder is a supreme responsibility. I, too,
had
a responsibility—had, past tense. For with each word that I utter, my responsibility here decreases and, in direct proportion, yours increases. And soon my task shall be completed, and you will have the full responsibility of fulfilling your oaths as jurors to try the issues here well and truly.

“Now, the district attorney will tell you that he represents the people of the State of New York. And so he does. But my mandate from the selfsame people of the State of New York is no less clear and no less powerful than his. Our system of law, called the adversary system, requires that a lawyer representing one side gather all the information he possibly can to support his position, and that a lawyer on the opposite side gather all the information he possibly can to support the opposite position. And when all this information has been brought forth, at a trial, in the form of legal evidence, the jury becomes the scale upon which that evidence is weighed.

“Now the people of this state in their majesty and wisdom demand that a person charged with a crime have the strongest and boldest defense possible, just as the people want the boldest and ablest possible prosecution, so that truth may be discovered and there will be no miscarriage of justice rendered in the name of the people. Mr. Bemer and I have been appointed by the Supreme Court of this state, therefore, to represent not merely the defendant Alvarado but, more important, the people, just as truly as Mr. Ellis represents the people.

“The result of this trial, either conviction or acquittal, is immaterial to the people of the State of New York, for the people and the district attorney are victorious not when a man is convicted, not when one of their citizens goes to jail, but when justice is done. Even an acquittal, if it is just and true, is a victory for the people. And that is what your oath requires of you—justice, truth, not conviction, not even acquittal.

“And the people of the state again in their majesty and wisdom have legislated that the district attorney must prove all the elements of the crime charged to your satisfaction
beyond a reasonable doubt
or there can be no conviction. Reasonable doubt. There's a common phrase you've heard hundreds of times. Idle words before, perhaps, but they are not idle words here. The defendant needn't say a word in his own defense. Rather, the defendant is cloaked in a mantle—he is presumed to be as innocent of this crime as you are. And that mantle of presumed innocence cannot be taken from him until and only until the district attorney can remove from your minds
all
reasonable doubt about
all
the elements of the crimes charged.

“Remember, you do not have to be convinced that the defendant is innocent beyond a reasonable doubt. You are required under your oath to pronounce the word guilty
only
if you are convinced beyond
all
reasonable doubt that he is guilty of
all
elements of the crime. Anything short of that, whatever suspicions you might harbor,
requires
an acquittal.”

Sandro kept his delivery slow, suiting it to the solemnity of his words.

“To do otherwise would be a violation of your oath; it would be a violation of your sacred duty. You would be doing something the people neither want nor appreciate.”

His eyes scanned the jury. That got through, thought Sandro, as he strode slowly toward the number four juror, the shoe company man who had marched to Washington. They were watching him now.

“I am not going to explain to you what reasonable doubt is. That's the judge's province. But so that we have a basis for speaking, reasonable doubt is doubt which is based on reason. Easy! It is a doubt for which you can point to a reason. I
don't believe the witness; there's not enough proof.
Those are reasons. And they don't have to be Einstein's reasons, but your reasons. What makes sense to you counts here.

“The court will advise you what the elements of the crimes are, and, however many of them there are, the district attorney must remove all reasonable doubt from your minds about each and every one of them, or he has failed in his burden of proof. And you would be required to acquit.”

Sandro wanted to get into the meat and potatoes before the jurors' attention waned. He still had them looking. He walked toward the foreman, Richard Haverly, the advertising man they had battled to get so many weeks ago. All eyes followed Sandro.

“Now, just what evidence did Mr. Ellis present here to convince you beyond a doubt that the defendant Alvarado committed this crime?

“There was Mrs. Santos. Mrs. Santos who just happened to be everywhere, to see everything. On the stoop she saw the car and the defendants. Inside the hallway coming out of the toilet closet, she saw Hernandez. In her child's room, looking out the window, she saw Alvarado. She saw just everywhere, and she saw … Well, you heard what she saw. On the stoop, five months pregnant, in the rain, bending over, her head turned toward the
bodega
to look for her girl friend, she saw men in a car. She didn't know what they were doing. Couldn't tell if they were looking at her, or up, down, around. Or if they were talking. But she said she saw the defendants. Even saw their eyes were open. Through the rain, through the wet windshield of a car ninety feet away. Then in the hallway she saw Hernandez going up the stairs. She could see Hernandez on a stairway where a camera couldn't photograph a person. Here's the picture,” said Sandro, raising the picture to the jury. “Here's the hallway, here's a hand, but where's the body of the person who belongs to that hand? It isn't there because a person on that stairway can't be seen from where Mrs. Santos was. And she told us where she was. She put an ‘X' on another photograph showing where she was. She stood at the very spot where the photographer took this picture of a hand. And all of you stood there yourselves and saw what she could see.

“And then she was in the bedroom, looking out the window, seeing Alvarado standing on the fire escape—remember the position—standing, looking at her, face-to-face level. Remember that motion I made with my arm. Face-to-face level.”

Sandro was warm now and he was starting to move.

“And for how long did she see this man? For the snap of a finger. Remember that, for the snap of a finger, face-to-face level. And I asked, ‘Mrs. Santos, where was that fire escape outside your window? Did it start at the floor level of your apartment?' And then Mrs. Santos thought, and then she remembered that the fire escape started at the windowsill, three feet above the floor on which she stood. And the man
standing
on the fire escape couldn't be face-to-face level with her. ‘Oh, he was higher,' she recalled. ‘You mean, not face-to-face level?' ‘No, now that I think of it, he was higher.' ‘How much higher?' ‘I don't know.' ‘Four inches?' ‘I don't know.' ‘Two feet?' ‘I don't know.' ‘Ten feet?' ‘I don't know.'

“And remember how accurate Mrs. Santos's testimony was about the car that was double-parked? One day she testified it was parked on the south side of the street. Remember, Mr. Siakos questioned her carefully about that. The next day, when she returned, the car had moved to the north side of the street. Just a slight mistake, just a slight error in recollection.

“And remember the accuracy of this witness in describing that door to the toilet closet. She insisted that it opened from the back of the hallway toward the front. If it had, it would have blocked her view of the front hallway completely. And we showed her the picture, showing her that it opened just the opposite way. And even after she saw the picture, she insisted it opened the other way. Even looking at what was there, the physical facts, she didn't know what she was looking at. And it wasn't almost a year later, either. But at that moment, as she was looking at the photograph, she couldn't testify about what she was looking at. And you were there. You saw it for yourselves.”