Felony Murder Read online

  Typically, the grand jury hears only those witnesses whom the prosecutor chooses to present, those civilian victims and police officers or detectives with testimony bearing on the guilt of the accused. Occasionally - but only occasionally - a defendant will waive his right to silence and, accompanied by his lawyer (whose role is limited to sitting silently and ceremoniously beside his client at the table), tell the jurors his side of the story in narrative fashion. Thereafter the prosecutor is free to cross-examine the defendant, and the grand jurors can themselves suggest additional questions for him to put to the defendant. But the right of the defendant, and his lawyer, to be present is limited to that portion of the proceedings during which the defendant himself is testifying; it does not extend to permit their presence during the testimony of other witnesses, whether hostile or friendly, who precede or follow the defendant. Throughout the process, a court reporter seated at a stenotype machine records every word. An interpreter is provided if the witness needs one. No one else is permitted in the room.

  After hearing the witnesses, the grand jurors consider the case they have heard. Generally it is a bare-bones, no-frills presentation: the prosecutor, with no defense lawyer to cross-examine the witnesses or call witnesses of his own, has given the grand jury only as much as they need to hear. Knowing that if the case ultimately goes to trial the defense will then be entitled to pierce the veil of secrecy and obtain the transcribed testimony of those witnesses who have appeared before the grand jury, the prosecutor avoids questioning his witnesses in detail; instead he elicits from them a sort of shorthand summary of the events. It is invariably enough.

  At the conclusion of the testimony, the prosecutor tells the grand jury what crimes he would like them to consider charging the defendant with and explains any rules of law peculiar to those crimes.

  Voting not on the much more difficult issue of whether the defendant’s guilt has been established beyond a reasonable doubt (a standard reserved for trials), but only whether they are satisfied that “probable cause” has been demonstrated that a crime has been committed and that it is the defendant who committed it, the grand jurors need not reach a unanimous verdict (a requirement again unique to the trial courtroom). Instead, a bare majority of their number is all that is required to vote an indictment, a piece of paper formally accusing the defendant of those crimes for which he will be held over for trial in Supreme Court.

  It has been said, and often repeated, that a grand jury will indict a ham sandwich if asked to do so. The truth of the statement has hardly been undermined by the fact that the source of the quote, the chief judge of New York’s highest tribunal, the Court of Appeals, ultimately found himself indicted by a grand jury, possibly even feeling a bit like a ham sandwich.

  “Come on, Walter,” prodded Dean. “Stop being such a hardass. Did you get your indictment yet?”

  “Well,” said Bingham, “let’s just say there were no surprises.”

  The surprise came when Dean watched the videotape that night.

  Dean did not have a VCR. Actually, he had one, but he had somehow managed to break it trying to figure out how to record a Giants-Redskins game one Sunday afternoon when he had to be at a wedding reception for a friend from college days. First the timer had stumped him. Whatever he did, it continued to flash “12:00” in green numbers. Then the VCR worked, but he lost the reception on his TV screen, which turned a snowy gray, accompanied by a whooshing noise that replaced the audio. Late for the wedding and frustrated at his mechanical ineptitude, Dean had finally ripped a wire out of the back of the VCR. His TV picture had been restored, and the whooshing noise had vanished, but his VCR was history.

  So Dean had needed to be resourceful. With his copy of the Spadafino Q&A in his hand, he went through his address book, going alphabetically through names of candidates who might have VCRs that actually worked.

  Of the various Abernathys that monopolized the first page, only Dean’s sister Tillie seemed a possibility, but that meant traveling to far-off New Jersey. Dean’s parents were out of the question: his mother lived in fear of electromagnetic fields and refused to use any appliance more sophisticated than a toaster. She made an exception for a black-and-white television set to watch her daytime soaps, but kept it on a foam rubber pad to avoid static buildup.

  Joanne Bushfield had a VCR, if Dean remembered correctly, but seeing her would mean listening while she filled Dean in on all the events of her life in the four months since they had last spoken. And that thought struck Dean as about as appealing as reading a four-month stack of The New York Times classified ads sections in a single sitting.

  Herb Carson had two VCRs. He knew how to make copies of movies he rented. But Herb had a penchant for cigars and tended to favor those that smelled the worst and lasted the longest, and he liked to save them, half smoked, in ashtrays scattered throughout the apartment.

  Arlette Franks had a VCR, for certain, because she was into amateur pornography. While Dean was dating her, she had suggested renting a videocamera and taping their lovemaking. All Dean could imagine was turning on Eyewitness Video or some such program one night and being confronted with the two of them going at it on her dining room table.

  Penelope James had a VCR, too. But she was an Assistant District Attorney herself, and watching the tape with her struck Dean as somehow unseemly.

  Vinnie Mastrangelo probably had a VCR, but Vinnie had moved, and Dean didn’t have his new number.

  Hotwire Harry Reynolds no doubt had a dozen VCRs. Although Dean didn’t make it a practice to keep clients’ names in his address book, he’d made an exception in Harry’s case. Dean had represented Hotwire Harry some years back on a charge of violating Federal Communications Commission laws. It seemed Hotwire Harry, an electronics whiz, had figured out a way to have his long-distance phone calls billed to any number he chose. But Hotwire Harry couldn’t resist the irony of choosing the Internal Revenue Service as his victim, and had managed to get caught. Dean had got him off with a fine and a warning, and Harry, out of gratitude, had ever since showered Dean with a steady stream of well-intended but seldom used gifts. These included a state-of-the-art radar detector (which Dean never used, his Jeep being all but incapable of exceeding posted speed limits), an unblockable caller-ID contraption for a telephone (dutifully buried in the back of Dean’s bottom desk drawer, since such devices were still strictly illegal in New York State), a “hot” cable box for Dean’s TV (which Dean resorted to only in the event of a true video emergency, such as a Giants or Knicks game being blacked out on normal channels), and a variable-speed, self-lubricating vibrator with interchangeable “warheads” (Dean had yet to find a suitable companion he dared even show that one to). No doubt about it: Any of Hotwire Harry’s VCRs would turn out to be illegal, stolen, or worse. Dean decided to continue his search through his address book.

  Elna Terjesen had a VCR she had bought from a fellow flight attendant, who, in turn, had a boyfriend with access to all sorts of electronic equipment that was forever falling off trucks and going for a fraction of list price. But Dean hadn’t heard from Elna since she’d walked out of his life and set off in pursuit of her own kneads.

  In the end, just before getting to the XYZ page, he called Mark Wexler, a fellow defense attorney who at various times had been Dean’s rock-climbing partner, sailing navigator, and marijuana connection during his smoking days. Which meant, of course, that they were forced to smoke a joint and a half between them for old times’ sake before even starting the tape.

  BINGHAM: Hello, Mr. Spadafino. My name is Walter Bingham, and I’m an assistant district attorney. I know you’ve already met these two gentlemen, but for the record they are Detective Richard Rasmussen and Detective Dominick Mogavero of Manhattan South Homicide. You’ve spoken with them already, right?

  The camera panned to the two detectives, then settled back on Joey Spadafino. He sat alone behind a gray metal table. He looked tired and somewhat lost.

  SPADAFINO: Yeah, right.
r />   BINGHAM: Okay, before we start, I’m going to ask you certain questions about your Constitutional rights.

  SPADAFINO: They already did that.

  BINGHAM: I know, but I’m going to do it again. First, you have the right to remain silent. Do you understand?

  Spadafino nodded, looking down at the table.

  BINGHAM: I’d prefer you to answer out loud. You don’t have to, but I’d prefer it if you would, so I can be sure you understand me.

  SPADAFINO: Okay.

  BINGHAM: You have the right to remain silent. Do you understand?

  SPADAFINO: Yes.

  BINGHAM: Anything you say may be used against you. Do you understand?

  SPADAFINO: Yes.

  BINGHAM: You have the right to have an attorney present at this and every other stage of the proceedings. Do you understand?

  SPADAFINO: Yes.

  BINGHAM: If you cannot afford an attorney, the court will provide one for you, free of charge. Do you understand?

  SPADAFINO: Yes.

  BINGHAM: Knowing all this, do you wish to voluntarily answer my questions?

  SPADAFINO: Yes.

  So much for the Miranda rights. Bingham had covered them perfectly, and whatever followed would stand up in court.

  BINGHAM: Okay. As you know, Mr. Spadafino, I’m investigating an incident that took place on Bleecker Street, in front of Seventy-six Bleecker Street, at approximately two-thirty this morning. Were you there at that time?

  SPADAFINO: Yeah.

  BINGHAM: What were you doing there?

  SPADAFINO: Nuthin’. Trying to keep dry.

  BINGHAM: How long had you been there before this thing happened?

  SPADAFINO: I dunno. Coupla hours, I guess.

  BINGHAM: Did there come a time when you saw the deceased?

  SPADAFINO: Huh?

  BINGHAM: The guy who died.

  SPADAFINO: Yeah.

  BINGHAM: Where was he when you first saw him?

  SPADAFINO: Comin’ down the block.

  BINGHAM: What was he doing?

  SPADAFINO: Walkin’, he was walkin’.

  BINGHAM: Was there anyone else around?

  SPADAFINO: No.

  BINGHAM: What did you think when you first saw him?

  SPADAFINO: Honestly, at first I thought about askin’ him for some money, you know, some change. Then I saw he looked drunk. So I did think about takin’ him off. I admit that, I did think about that.

  BINGHAM: What do you mean by “taking him off”?

  SPADAFINO: You know, robbin’ him.

  BINGHAM: Did you have a weapon of any sort?

  SPADAFINO: No.

  BINGHAM: How were you going to rob him?

  SPADAFINO: Jus rob him. Act bad. You know.

  BINGHAM: And did you do that?

  SPADAFINO: No.

  BINGHAM: No?

  SPADAFINO: No, I didn’t.

  Dean moved forward to the edge of his chair, as surprised by the answer as Walter Bingham had obviously been. But here was Joey Spadafino, the same Joey Spadafino who a half hour earlier had signed a written statement admitting the robbery, now backing off from it. Dean listened intently as Bingham pursued the point.

  BINGHAM: Are you sure?

  SPADAFINO: Sure, I’m sure. I was the one who was there.

  BINGHAM: Well, Joey - okay to call you Joey?

  SPADAFINO: Yeah.

  BINGHAM: Well, Joey, you told the detectives here that you did rob him.

  SPADAFINO: I told them the guy fell down, and that’s when I robbed his money. That’s exactly what I told them.

  There it was again. Part of the problem was that Joey, the homeless ex-con, didn’t know the legal definition of robbery. But Dean, the lawyer, did. In order to rob someone, you had to use physical force against your victim, or at least place him in fear; if all you did was take money from someone - say a guy lying on the sidewalk - it was only larceny. And though larceny was a crime, it wasn’t one of those crimes that made a death that occurred during its commission a felony murder. While the distinction was a meaningless one to Joey Spadafino, it certainly hadn’t been lost on Rasmussen and Mogavero.

  RASMUSSEN: You told us you demanded his money, and that’s when he fell down. Right, Joey?

  SPADAFINO: No.

  RASMUSSEN: That’s what you said, Joey.

  MOGAVERO: That’s what you said.

  SPADAFINO: You guys are confusin’ me.

  BINGHAM: You want to take a break, Joey? You want some coffee?

  SPADAFINO: No, no. I’m okay. Listen, I didn’t kill the guy. I didn’t touch the guy. I swear to God. He fuckin’ fell. You gotta believe me.

  BINGHAM: But you did take his money, right?

  SPADAFINO: Yeah, I took his money.

  BINGHAM: And at some point you were going to rob him?

  SPADAFINO: Yeah. No. I thought about it. To be perfickly honest, yeah, I thought about it. At some point.

  BINGHAM: And you did take his money?

  SPADAFINO: Yeah.

  BINGHAM: What else did you take? Anything else?

  SPADAFINO: No. Yeah. I mean there was this metal thing holdin’ his money. So I guess you could say I took that, too.

  BINGHAM: It’s not what I say. It’s what you say. Did you take that, too?

  SPADAFINO: Yeah. It was attached to the money.

  BINGHAM: Now, the money you had on you when you were arrested, Joey. Was that the money you took from the man?

  SPADAFINO: Yeah.

  BINGHAM: How about the metal thing? Did you have that on you when you got caught?

  SPADAFNO: No.

  BINGHAM: Why not? What did you do with it?

  SPADAFINO: I trew it away.

  BINGHAM: You threw it away?

  SPADAFINO: Yeah.

  BINGHAM: Why?

  SPADAFINO: I ain’t stupid. I figure I get caught with that, that ties me to the guy.

  BINGHAM: But you kept the money?

  SPADAFINO: Money’s money.

  BINGHAM: You remember where you threw the metal thing?

  SPADAFINO: Yeah, I remember. Inna trash can on Seventh, a block downtown.

  BINGHAM: Seventh Avenue?

  SPADAFINO: Yeah.

  BINGHAM: Which side of Seventh Avenue?

  SPADAFINO: The same side.

  BINGHAM: Okay, Joey, just a few more questions. Have these detectives treated you all right?

  SPADAFINO: Yeah.

  BINGHAM: Nobody’s beaten you or threatened you?

  SPADAFINO: No.

  BINGHAM: All right. That concludes the interview. The time is 6:48 a.m.

  The tape went blank. Dean leaned over, stopped the tape, then pressed the rewind button. He had some mechanical aptitude after all. He looked over to Mark Wexler for a comment on the tape, but Mark had his head down, already busy rolling another joint.

  “So what do you think?” Dean asked.

  “I think you better smoke this. You’re going to need it.”

  In the case of the People of the State of New York v. Joseph Spadafino, that Friday was One Eighty Eighty Day. This day derived its name from Section 180.80 of the New York State Criminal Procedure Law, which decreed that a defendant charged with a felony had a right to be released from custody six days from the moment of his arrest, no matter how long his record was or how serious the charge against him, unless the prosecution had obtained a grand jury indictment or was prepared to establish probable cause at a preliminary hearing. Since preliminary hearings, unlike grand jury presentations, were conducted in public with the defendant and his attorney present throughout and permitted to cross-examine the prosecution’s witnesses, the District Attorney’s Office virtually never resorted to them. Instead, they sought and obtained indictments whenever possible, and invariably consented to the release of those defendants they were unable to indict. Because they were not about to consent to the release of the murderer of Police Commissioner Wilson, they had obtained an indictment against Spadafino with two days to s
pare and were prepared to announce that fact on One Eighty Eighty Day to the court and the rest of the world.

  The media again turned out in droves for what Dean Abernathy knew would be another nonevent. But turn out they did, to zoom their pool camera in on the drawn, dejected face of Joseph Spadafino as he stood before the Part F - for felony - judge and heard Walter Bingham announce that the grand jury had voted a true bill, meaning an indictment, against Spadafino for the charge of murder in the second degree. A date was selected and the case adjourned two weeks for the defendant’s first appearance in Supreme Court, where felonies were dealt with once an indictment had been filed.

  Dean said hardly a word during the proceedings, which were over in two minutes, and afterward, only Mike Pearl of the Post bothered to stop him and ask him for a comment. Dean declined. The truth was, he had nothing to say.

  With Joey Spadafino lodged at Rikers Island, not the easiest place to get out to, Dean decided to take advantage of his client’s presence in court by going upstairs to meet with him again after the adjournment. They sat across from each other in a closet-sized cubicle, separated by a wire mesh that made looking at the other person a difficult exercise in visual concentration. Dean found his eyes continually drawn to the details of the mesh, the way a film director might shift the focus of a camera from background to foreground, leaving Joey in the distance, reduced to a featureless, watery blur.

  Dean explained the significance, as well as the lack of significance, of the court appearance they had just been through. He described in some detail what lay ahead. Although Joey was no stranger to the criminal justice system and had actually done time upstate for a minor drug sale, he struck Dean as somewhat naive in his understanding of the process, a naiveté that surprised Dean but posed no problem. He far preferred it over the arrogance of the jailhouse-lawyer type intent on impressing his attorney with his own experience and legal skills.

  “So how are they treating you, Joey?” Dean asked.

  “Okay, I guess.”

  “Did you ever get a chance to write out what happened that night?”

  “Yeah.” Joey reached into the back of his jeans and fished out a worn sheet of paper, folded into a pocket-sized wad and covered with penciled words. “I’m not much of a writer,” he said as he extended it through the slot under the wire mesh. Dean took it and unfolded it. The writing was large and primitive. He felt as though he were reviewing the composition of an eight-year-old. At the top was a title.