Felony Murder Read online

  But Joey knows he’s not good at writing. So he pays two days’ worth of desserts to an inmate they call Sleepy, who has hooded eyelids that make him look like he’s always falling asleep, to help him write a letter to the judge. Joey tells Sleepy what he wants to say, and Sleepy puts it into long words and legal language. There are a lot of “most respectfullys,” “wherefores,” and “aforementioneds.” It’s going to be a very impressive letter. When Joey gets to the part complaining about how his lawyer has been out to Rikers Island only once to visit him, Sleepy stops him.

  “He ackshully came out here?”

  “Yeah,” says Joey. “One fuckin’ time is all.”

  “When?”

  “Coupla Satadays ago.”

  “On a Sataday? You telling me your lawyer came out here on a Sataday?” Sleepy is incredulous.

  In the end, they tear up the letter.

  Walter Bingham’s written response to Dean’s motion on the Spadafino case arrived in the morning’s mail. Bingham was getting prompt, apparently. It was pretty standard stuff. In the computer age, the New York County District Attorney’s Office had developed a standard form to deal with defense motions. If a standard form could have a personality, this one was guarded and uninformative. It conceded that the judge could inspect the grand jury minutes, but promised that the inspection would reveal no insufficiency of evidence or procedural irregularity. It refused to provide names, addresses, and dates of birth of prosecution witnesses, none of which Dean had requested. It declined to provide police reports to which the defense was not entitled until the trial began. It conceded that pre-trial hearings might have to be conducted, but insisted that at no time had the defendant’s rights been violated so as to warrant the suppression of any evidence.

  Enclosed with the response was a copy of the autopsy report, which Dean already had. Stapled to this one, however, was the serology report, which Dean hadn’t seen before. It contained the results of laboratory tests done on a sample of blood taken from Commissioner Wilson at the autopsy. According to the lab, every test they had run on the sample had proved negative - there was no trace of opiates, barbiturates, amphetamines - except for the presence of alcohol, which was calculated at .04 percent, or four parts per 10,000 parts of body weight. Well less than legally intoxicated, which New York State law presumed at .10 percent, and even under the level for impaired, which began at .05 percent. But not altogether insignificant: Wilson had had a couple of drinks that evening. Not that that fact had any legal significance.

  Also enclosed were copies of the property vouchers filled out by the police. There were no surprises here: The Voluntary Disclosure Form, which Dean had received several weeks ago along with the indictment, had summarized them. The police had vouchered the money seized from Spadafino, which came to $288.15, broken down into various denominations; the Kool cigarette pack with nine remaining cigarettes; the knife; a jacket and cap Joey had been wearing, no doubt seized because witnesses had described them and would be asked to identify them at trial; and two books of matches. From the crime scene, they had vouchered eleven Kool cigarette butts, which, added to the nine remaining, completed a pack; they had also retrieved thirteen used matches. And finally, in a trash container on Seventh Avenue that the defendant had directed them to, the police had succeeded in finding the gold money clip with a miniature New York Police Department shield. The tiny number one on the shield identified it as belonging to none other than the Police Commissioner himself.

  Dean flipped back to the list of items seized from Joey Spadafino. He focused his attention on the description of the knife.

  1 Folding pocketknife with dark blue handle and stainless steel blade, overall length 6”.

  Dean recalled Walter Bingham’s assertion at the bail application that one of the eyewitnesses to the robbery had been able to describe the knife. A six-inch folding knife had a blade of three inches at most. Joey’s hand presumably would have been closed around the handle, which was dark in color at any rate. That would have left nothing exposed but a three-inch blade, in a snowstorm at two-thirty in the morning. Where could this eyewitness have been, Dean wondered, to be in a position not only to see the blade, but to be able to actually describe it later on?

  Dean got out his Spadafino case file and found a copy of his written motion. He compared the list of documents he had asked for with what Bingham had supplied him. The property vouchers were all accounted for. He had the autopsy report and now the serology report. That meant he still needed the toxicology report, which generally took longer. Bingham had indicated that there were indeed photos of the crime scene, and copies would be forthcoming. Dean had the defendant’s written statement to the detectives, complete with the altered signature on the second page, about which he had decided not to say anything yet. He also had his own copy of the videotaped Q&A.

  That left the 911 tape and the sprint report printout of the emergency calls and police radio traffic relating to the case. Dean’s interest in those items had been kindled by his skepticism over whether an eyewitness had truly been able to describe the knife in Spadafino’s hand. If any witnesses had called 911, the calls would have been automatically tape-recorded, and the defense was entitled to hear them.

  Dean picked up the phone and dialed Walter Bingham’s number. Already he knew it by heart.

  “Bingham,” came the answer.

  “Hello, Walter. Dean Abernathy.”

  “Hey, Dean. Howsitgoing?”

  They exchanged small talk, male bonding stuff. Dean was actually fond of Bingham, in a way. He was real, he shared Dean’s impatience with bullshit, and he was a Knicks fan.

  “Got your response, Walter.”

  “Yeah? Pretty well written, wouldn’t you say?”

  “Spelling’s okay, grammar could use some help. I’m afraid you lost a lot for lack of originality, though. Overall, I give it a C minus.”

  “Shit,” said Bingham. “I thought I was doing better.”

  “Keep taking those review courses.”

  “You mean you think there’s hope?”

  “No, but keep taking them anyway. They’re deductible.”

  “You’re a hard man, Dean.”

  “Me? You send me nothing but a pile of property vouchers. How about the nine-one-one tape, the sprint report? How about the Fives?” said Dean, referring to the stack of DD-5’s, the follow-up reports prepared by the detectives investigating the crime, which would include summaries of interviews with witnesses.

  “You know you’re not entitled to the Fives until trial, Dean.”

  “What’s the big deal here?” Dean asked. “You let me have them on Peralta.” Hector Peralta was a minor hit man whom Dean had represented; it had been Bingham’s case.

  “Peralta was different.”

  “How was Peralta different?” Dean wanted to know.

  “Peralta didn’t kill the Police Commissioner, last I checked.”

  “I actually suspected that,” said Dean. “Why does that make a difference?”

  “Get real, willya, Dean? It makes a difference because I’ve got every cop in the city with a rank of captain or higher calling me on this case every fucking hour of the day. I’ve got my bureau chief reviewing every piece of paper that crosses my desk. I’ve got the Old Man demanding weekly progress reports, for chrissakes. I’ve got 3,000 reporters wanting exclusive stories. Yesterday I had a guy follow me to the fucking toilet for an interview. That’s why it makes a difference.”

  “How did the interview in the toilet go?” Dean asked. “Good acoustics, I bet.”

  “It went about the same as all the others. I’m not giving anybody anything.”

  “Including me.”

  “Look, Dean. I’ll get you the sprint report. I’m still waiting for the nine-one-one tape. As soon as I get it, you can have it. That’s the best I can do right now.”

  Bingham was right about the DD-5s; the defense was not entitled to them until trial, so there wasn’t much Dean could do about
them. But the 911 tape and sprint report were another matter. Dean fished around in his file drawer until he found a blank subpoena and began filling it out. Those items he could obtain on his own.

  The Spadafino case appeared for the first time in Part 56, where it would remain for all further proceedings, including trial.

  Part 56 was the domain of Justice Harold J. Rothwax, who was universally admired for his ability and disliked for his temperament. He knew the law as well as any trial judge, and his rulings were invariably correct and generally fair, except when it came to matters of credibility; like the great majority of judges, Rothwax deferred to police witnesses and chose to accept their version of events when it conflicted with that of defendants, even when the officer’s testimony seemed conveniently tailored to secure a conviction. It was, Dean knew, the judicial extension of the end-justifying-the-means doctrine: when you had a bad crime or a bad defendant, or both, you could expect most judges to do what they could to side with the prosecution. And the main thing they could do, without fear of criticism or reversal by an appellate court, was to say they believed the police. Rothwax tended to do just that.

  He was a judge who worked hard and expected the lawyers who appeared before him to do the same. He was often disappointed on that score, and he displayed his disappointment in the form of a caustic, sarcastic humor that operated at the expense of defense attorneys, prosecutors, and defendants alike. His repertoire of one-liners included “You certainly have avoided the dangers of overpreparation,” “You may go in now,” and “If God were on your side, you’d be before another judge.”

  He was renowned for raising the bail of defendants whom other judges had released, and an absent or late defendant could expect to be remanded without any bail at all. He was coercive in plea negotiations: If a defendant refused an offer of a given amount of time in exchange for pleading guilty, the offer was promptly withdrawn and the time increased at the next court appearance. His demeanor had earned Harold Rothwax the imperious nickname of “Prince Hal,” which some members of the defense bar expanded to the more ominous “Prince of Darkness.”

  Harold Rothwax and Dean Abernathy did have one thing in common. Rothwax, like Dean, preferred the bicycle as his method of transportation to and from the courthouse. Once, while presiding over the trial of Joel Steinberg, a lawyer accused of murdering his illegally adopted daughter, the judge had been sideswiped and knocked off his bike on the way to work. Breaking his fall with his hands, he had suffered two fractures to both wrists. But by early afternoon he was on the bench, sporting twin casts and telling the jury, “There are good days and bad days. So far this has been a bad day.” Then, turning to the prosecutor, “Call your next witness.” When the jury went on to convict Steinberg of manslaughter, Rothwax sentenced him to the maximum term the law permitted.

  Dean Abernathy and Harold Rothwax got along. Dean’s penchant for preparation earned him the judge’s respect. As for Dean, when he had a complicated legal question or a difficult ethics problem, it was Rothwax he would go to for advice.

  Once, on a plane to Colorado, Dean had struck up a conversation with the passenger he found himself seated next to. Upon learning that Dean was a criminal defense lawyer, the woman had asked him if he happened to know her friend Hal Rothwax. When Dean allowed that he did, she asked him for his opinion of the judge. Knowing that his remarks might find their way back to Rothwax, Dean had nevertheless been candid in his review. After describing some of Rothwax’s strengths and weaknesses, he’d added the observation that the judge’s sarcasm seemed to reveal a basically angry person, and Dean had been forced to conclude that his workday was, as a rule, unhappy.

  Sure enough, not a month later, Dean was sitting in Part 56 when he heard himself summoned to the bench. “Abernathy!” the judge called out. “Step up, please.”

  After approaching, Dean listened as Rothwax brought the incident full circle. “It seems you were on a plane recently with a very close friend of my wife and mine,” began the judge gravely. “And while she reported to my wife that you had some very complimentary things to say about me, she also related your impression that I appear to be unhappy in my work. Well, I just want you to know that, as a result, before I leave the house every day now, my wife shakes her finger at me and lectures me, ‘Now, Harold, you make sure you smile a lot and have a happy day today.’ So I must thank you for that wonderful addition to my life.”

  But if his wife’s lectures had worked, their impact was not readily apparent. Harold Rothwax continued to be a tough judge with no sympathy for habitual offenders and little tolerance for relaxation in his courtroom. It had by no means been by accident that he had been selected by the administrative judge to preside at the trial in the case of the People v. Joseph Spadafino.

  Once again, the media had assembled, although there was no television camera in sight this time. Apparently the press had accepted the notion that there would be no further significant court appearances until the beginning of the trial itself, or at least the pre-trial hearings. Nonetheless, a good dozen or so reporters had come to get another glimpse of Commissioner Wilson’s killer, and to try to pry a quotable comment or two out of the principals. Also present were two sketch artists, who had arrived early, taken seats in the front row, and were already busy re-creating the courtroom in colored chalk.

  On several occasions in the past, Dean had been involved in other “high profile” cases worthy of the sketch artists. Each time, the artists had called him afterward to ask if he might be interested in buying one or more of the sketches that included him. Once, his curiosity had prompted him to ask the price. The response, several hundred dollars, had astonished him. His lack of interest had led to a series of follow-up calls over the next week or two, each offering a further reduced price, culminating in an “absolutely final offer” of $25. Dean, who never even hung his diplomas on his wall, preferring nautical charts and drawings of sailboats, persisted in his refusal, but was amused to learn how nonexistent the market was for such stuff.

  Justice Rothwax took the bench unceremoniously, as was his habit. Seeing both Dean and Walter Bingham in the front row, he inquired of his court clerk whether Joseph Spadafino had been produced yet by the Department of Corrections. Court language tended to dehumanize defendants, and they were “produced” rather than brought in. And to inform the clerk how many prisoners had been “produced,” a corrections officer would supply the clerk with a “body count,” a phrase that never failed to transport Dean back to the evening newscasts of the Vietnam War era.

  Joseph Spadafino’s body had indeed been produced, and the case was called. The defendant was ushered out of a door that led to the holding pens. Dean was struck again by how small and insignificant Joey looked. Justice Rothwax asked the lawyers to approach, and they walked up to the bench. Dean had mastered the crutches well enough to negotiate around the court reporter’s table without incident.

  “Is there an offer in this case?” Rothwax wanted to know, turning to Bingham.

  “Yeah,” replied Bingham. “Murder.”

  “I’ll supply the sarcasm in this courtroom, Mr. Bingham,” said the judge. Murder was the top count in the indictment; to “offer” it meant to make no offer at all.

  Rothwax turned to Dean, fixing his eyes on him over his frameless half-glasses. Dean was ready for the drill. “If your client is interested, he can have the minimum today, fifteen to life. Next time, it will be twenty to life. After trial, he gets the maximum, twenty-five to life. Do you want a second call to talk with him?”

  “No,” said Dean, “he’s not interested.”

  “Fine with me,” Rothwax said, making some notations on a file card. “Okay,” he said, looking up again. “Let’s talk about scheduling.” He was pleased to learn that defense motions had already been served, filed, and responded to. There was a brief conversation about pre-trial discovery. Bingham assured him in his sincerest voice that he was proceeding as quickly as he could but was still awaiting certain d
ocuments. “Okay,” said Rothwax. “Why don’t you gentlemen step back so we can give the press something to cover, before they file a complaint against me.”

  Dean resumed his place next to the defendant. He leaned over and whispered in Joey Spadafino’s ear, “I can get you fifteen to life right now. You’d do twelve or thirteen.”

  “Fuck, no!” Joey answered, loud enough so that reporters and lawyers in the front rows laughed. Rothwax hit the top of his desk once with a gavel, and the courtroom quieted.

  “I take it,” the judge said, “that after careful consideration, your client has just voiced his opinion of the offer made to him, Mr. Abernathy.”

  Dean smiled. “It would seem so, Your Honor.”

  “Well, at least it has the virtue of clarity.” That, too, was a standard Rothwax one-liner. “Very well,” said the judge. “The record should reflect that defense motions have been made and responded to. The People will submit the grand jury minutes to me for inspection. There will be a Mapp/Wade/Huntley hearing prior to trial. The matter is adjourned until the twenty-third for a ruling on the grand jury minutes, and for the parties to continue the pre-trial discovery process. You may go in, sir. Next case.”

  It was vintage Rothwax.

  The cast came off that Friday, and Dean traded in his crutches for a cane. An elastic support still covered his ankle and required him to wear a loosely laced sneaker on his right foot, but at least he could walk and tolerate the pain of putting some weight on the foot.

  The same day, he received a letter from the Police Department’s Legal Affairs Division. Dean’s subpoena seeking the 911 tape and the sprint report had been rejected. Across the face of it, someone had written in red ink, “supplied to district attorney.” It was the first time Dean had ever seen such a notation. He called Walter Bingham.