PART 35 (75 page)

“Now, I don't think I need remind you, ladies and gentlemen, that a crucial question in this case is whether or not those confessions are voluntary. For, if you find that they are true and voluntary, then I don't think it's unreasonable to suggest to you that you have practically finished your job.

“Now, what evidence do we have that these confessions are involuntary? Well, Hernandez tells you that he was beaten so badly, so viciously, that he insisted in his delirium that he had killed the police officer. And then he said he changed that story at the suggestion of the detectives. The detectives contradict Hernandez, and the credibility of the witnesses is a question for you to decide. Hernandez against these detectives—who can you believe? Who has the motive to lie?

“Now that the alibi has been eliminated as we discussed before, it's as simple as that. Hernandez against the policemen—who has the most to gain by a lie?

“What guideposts can you use in helping you to determine who is telling the truth? Well, Hernandez told you of the viciousness of the beating. Yet he never mentioned anything to his lawyer at the first arraignment on July fourth, nor to the judge in court on the very same day, nor to the doctor who examined him in the Tombs that day.

“And you saw a picture of Hernandez without his clothing, taken in police headquarters by the detectives just for this purpose on July fourth. And did you see any marks? You look at the photographs—they're in evidence—and see if there are any marks.

“Alvarado, in his defense, denied saying anything to the D.A., and he said he even told the D.A. that he hadn't confessed to the police. Alvarado also testified that he told the D.A. that he was beaten. Well, this statement is in evidence, ladies and gentlemen, and you have a right to take it into the jury room with you. Read it, and see if Alvarado didn't again damn himself as a liar.

“He was even asked by the D.A., do you have any complaint, and he said
no.
Now doesn't that brand his testimony here a total lie?

“Now when Alvarado's lies start backing him into a corner, because what he testified he said to the D.A. was different from this typewritten statement, well then, in keeping with the vicious plan he's been concocting for months, he starts bringing the D.A. into the monstrous conspiracy. He has the audacity to imply the D.A. and his staff were part of some frame-up. Does it abuse your common sense that he protests too much? Doesn't he unmask himself as a liar?

“Sure, Alvarado said to the D.A., get me out of here, and I'll talk to you. That wasn't because he had been beaten, as he wants you to believe. I suggest to you as a matter of common sense, anybody who was being questioned in connection with the killing of a police officer would be afraid if he knew he was involved. But His Honor will tell you that just because he was afraid doesn't destroy the admissibility of the confession. It has to be fear from physical threat or violence, not fear because of his own guilty conscience.

“The police officers got on the stand, and they testified they never touched Alvarado. Need I go any further to make out the fact that Alvarado is a liar? Need I go any further to show which witnesses are more credible?

“And after this alleged vicious beating, did Alvarado say one word to anyone—to a doctor, to a lawyer, to a judge?

“Oh, sure, six days later, he says he started to spit blood, he started to have an attack. The doctor from the Tombs told you that he has seen people in the Tombs fake anything, just to get a fix, to get drugs. The doctor said that Alvarado appeared unconscious. Perhaps Alvarado was so good he fooled the doctor. Well, let's not just suppose. Let's be reasonable. If Alvarado had been unconscious, could he have described what the doctor in the Tombs did for him? When he was here testifying, didn't he tell you about being on the floor, about the doctor putting the oxygen mask on his face, about all the details of that evening?

“How unconscious was he, this cunning killer?

“And doesn't that testimony finally and completely brand him as the liar he is—and being that, also the killer he is?

“I know I don't have to remind you of the theory of the people's case. I ask you to consider the evidence calmly, coolly, dispassionately, without prejudice or sympathy. Your only task at the present time is to decide the guilt or innocence of these defendants, and nothing else.

“You promised me that you would accept the law from the court. I ask you to be faithful to your oaths, and based upon them and the credible evidence, and the law, in the interest of justice, and in the name of the people of the State of New York, I ask you to find both of these defendants guilty of murder in the first degree. Thank you very much.”

Ellis sat. The courtroom was silent. The judge adjourned until Monday morning, when he would charge the jury.

CHAPTER XXXVIII

Wednesday, May 1st, 1968

It was 9:15
P.M.
Sandro, Sam, and Mike were sitting in the jury box. Ellis, Mullaly, and Tracy were in the spectators' seats. The rest of the courtroom was empty, as it had been since shortly after Judge Porta had sent the jurors out for deliberation. The jury had had the case more than two days—53 hours and 15 minutes all told. And, as usual, the lawyers had not been able to leave the vicinity of the courtroom for any length of time except during lunch break or at night, when the jury, together with several of the court's uniformed officers, was sent in a private bus to a midtown hotel for the night. The jury was returned to the courtroom about 10
A.M.
and was sent to bed by the judge at 11:30
P.M.
During the long vigil, the lawyers talked, read, played cards, and did anything else they could devise to kill time. Now that it was over, Ellis was a fellow lawyer and not merely an adversary. He was three dollars ahead in the poker game.

“Now you know what I meant about Ellis,” Sam said to Sandro, “a bear trap that looks harmless, without a lot of pizzazz, but he's effective. He pieced a damned strong summation together. Of course, he didn't get around the medical evidence with that bit about unconsciousness. The report itself said Alvarado had lucid moments. But he sure was strong on those alibis.”

Sandro nodded.

“I don't buy it anyway,” Mike said, shaking his head. “With all we know about this case, how could these guys be guilty?”

“Remember, Mike,” Sandro cautioned, “the jury wasn't with us. Everything that we saw didn't and couldn't go into the record. They don't know about the witnesses, the Sotos, the Salernos, all about Mullaly—all those things we know from our investigation. They only know what happened during the trial days here in court.”

“That's right,” agreed Sam. “The rules of evidence are part of the system, and a lot of your stuff just couldn't be introduced. Go and read the minutes of the trial, Mike, day by day, and then you'd see what the jury knows, nothing more. And Ellis built a nice, solid case. Not as good as ours,” he added hastily.

“It couldn't be,” said Mike. “That phony stuff Ellis put in the summation is just bullshit. How can they come back with any verdict except not guilty?”

Sam shrugged. “Who ever knows what a jury will do? The only way you can tell anything is when they come out of the jury room. If they look at us, we've won. If they avoid our eyes, we've lost.”

“What do you say?” Mike asked, turning to Sandro.

“Only two people know what actually happened on that roof, Mike, and one of them is dead. Frankly, I want to walk out of here with Alvarado. But if we lose, I can accept that too.”

Mike looked incredulous.

There was a commotion at the side of the courtroom, near the clerk's desk. Judge Porta entered the courtroom and ascended the bench.

“I believe we may have a verdict,” the judge said. The sound echoed through the silent room. A couple of the buffs, still waiting for word, entered the back of the courtroom.

Sandro saw the tension in the defendants' faces as they were brought back in. They sat at the counsel table.

“Bring in the jury,” the judge instructed.

The jurors filed in. The first three—Haverly, Roscoe Anderson, and the railroad man's widow—didn't look toward the defendants' table. But the fourth man, the shoe salesman who had marched with Dr. King, did. As did the fifth, Arthur Youngerman, the Vietnam veteran. The sixth man—the insurance salesman Fresci—didn't. Seven and eight—the bearded music teacher and the retired buyer—did. It was hard to tell about the rest. They took their places in the jury box.

“Let the prisoners rise,” said the judge. “Mr. foreman, look upon the defendants. Defendants, look upon the jury.”

The foreman stood.

“Have you reached a verdict?” Judge Porta asked.

“Your Honor,” Haverly said, “the jury is unable to agree upon a verdict. We've deliberated for many hours, and we still cannot agree.”

Alvarado's hand was on Sandro's arm, squeezing. Sandro motioned him to remain still.

The judge nodded. “Do you feel, Mr. foreman, that if the jury returned to the jury room, you would be able to deliberate and possibly reach a verdict?”

“Your Honor,” Haverly replied, the weariness obvious in his face and voice, “we've been deadlocked for about sixteen hours. It is my opinion, and that of the others, that if we stayed in the jury room another week, our opinions would not change. It has gotten to that point.”

The judge looked at the lawyers. He studied their faces, then turned back to the jury. “Very well. I am going to dismiss you from service at this time with the thanks of the court. You may return to …”

Sandro wasn't listening any more. It was all over. They had started so long ago with the impossible, and they had gotten a hung jury. Wasn't that a victory in itself?

“Remand the prisoners,” the judge said.

“You still my man, Mr. Luca,” said Alvarado as the guard led him away. “We going to get them. We really going to get them next time. You my dynamite.” Sandro watched the defendants being led back to the bullpen. They had been in jail ten months, and they would stay there now until a new trial.

The jurors filed out. Ellis shook hands with Sam. Then with Siakos. Finally with Sandro.

“Great job, Sandro,” said Ellis, still stony-faced.

Sandro smiled briefly.

“Mr.Luca, would you step up to the bench, please,” Judge Porta asked. Sandro walked up to the bench. Judge Porta leaned forward and said in a whisper: “You are one beautiful lawyer.
Bravo!
” He shook hands with Sandro.

“Thanks, Judge,” Sandro said, hearing his own voice coming as if from a great distance.

Sandro started out of the courtroom with Sam and Mike. “It's all over, and I'm tired. But at least I know I put everything I had to give into this trial.”

“That's fine, kid,” said Sam, “but winning would have been the icing on the cake.”

“No, Sam, for me the icing on the cake is that I did it the way I did. No matter what the jury says or what other people think about it, I did my job the best I knew how.”

Sam snorted.

“Could I have done more, Sam?”

“No, Sandro, you couldn't. In fact, I don't think I ever saw anyone do as much.”

Sandro smiled. “They sure knew they were in a fight though, didn't they?”

“That they did, kid. You really earned your spurs. But me, I want them all to count. I don't have time for moral victories. This case is all yours now, Sandro. I'm finished.”

“What do you mean? You can't desert the ship now.”

“It's your case. You know more about it than anyone in the goddamn world.”

“If it's tried again, I need you with me, Sam.”

“You don't need me. You'll handle it fine. I can't take this kind of strain again, not so soon.”

The three of them stood facing the elevator door. They could hear the cables whining around the pulleys.

Mike finally broke his thoughtful silence.” Do you
really
think they might have done it?”

“God knows.” Sandro shrugged wearily. “It doesn't matter.”

“Yeah, yeah. You did all you can. I heard all that.”

“It's true. We've got enough just doing what we have to do, guarding the legal concept of guilty or not guilty. God's responsible for moral guilt or moral innocence. It's all part of the system, right, Sam?”

Sam looked at him, not speaking. He took a cigar from his breast pocket and unwrapped it.

“Come the millennium, it's going to be better, right, Sam?”

Sam bit off the end of the cigar and blew the bit of tobacco off his tongue. He grunted as he lit up.

The elevator arrived, and they entered.

“How long before we go back to trial?” asked Mike.

“Could be any time, but we'll have a couple of months, I'm sure,” Sandro replied.

“Good. Cause I've been figuring. Somewhere out there is a colored guy about five nine or ten—”

“Hold it,” said Sandro. “Right now, all we're going to look for is a drink. Maybe in a couple of months we'll talk about it.”

“You guinea bastard, just because these guys are spics, you don't give a damn about them, is that it?”

Anyone watching the three men leaving the elevator and making their way out into Centre Street might have thought they were laughing happily.

Books by John Nicholas Iannuzzi

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Condemned

J.T.

Courthouse

Sicilian Defense

Part 35

What's Happening?

Non-Fiction

Handbook of Trial Strategies

Handbook of Cross Examination

Trial: Strategy and Psychology

Cross Examination: The Mosaic Art