Brooklyn Noir 3: Nothing but the Truth (14 page)
Ten minutes of tape went by as judge, jurors, and counsel heard Henry tromp around the empty apartment searching for drugs and money—and commenting from time to time about what a “shit-hole” the place was. Then we heard Henry discover some cash, with his comment on the find: “Not much, but better than nothing.”
The tape concluded with Henry apparently meeting the defendant outside the location and reporting better-than-nothing. In a clear voice, Henry counted out Ortiz’s share: “One, two, three, four, five, six, seven—buy yourself a beer.” Henry laughed in his good-natured way. And we heard the rustle of the bills as they were being counted out. This constituting my “gotcha” moment.
Unfortunately, there was no taped response from the defendant. Dead silence.
I looked at the jury panel. Some jurors looked back at me with expressions that said,
Is that all there is?
So I switched off the tape, turned to Henry on the witness stand, and asked him to fill in the blanks with specifics.
“What, if anything, did you find at the location?”
“I found twenty-one dollars.”
“And what did you do with that money?”
“I gave the defendant seven dollars and kept fourteen to divide between my partner and myself.”
“And what did you do with your share?”
“I turned it in to IAD at the end of my tour.”
“And is this seven dollars, previously marked as
People’s
Exhibit Three
, the money that you gave to IAD?”
“Yes.”
“How are you able to identify it?”
“I put my initials on the money.”
“Your honor, I ask that People’s Exhibit Three be moved into evidence.”
The judge said to Barry, “Any objections, Mr. Agulnick?”
“No, your honor.”
I continued questioning Henry.
“Now, could you describe what it is that you are doing at the conclusion of the tape with respect to the remaining money?”
“I’m counting out seven dollars to give to the defendant.”
“And did you in fact give that money to the defendant?”
“Yes, I did.”
“That concludes the
People’s
questions for this witness, your honor.”
I glanced at the jury and once again got the feeling that some were asking, once again,
Is that all there is?
Unfortunately, yes. That’s the case against Gil Ortiz. You either believe Henry or you don’t. You have a tape that is, at best, circumstantial evidence. Or you have no real evidence at all.
For me it was easy to believe Henry. For months he had trolled for evidence of corruption in the 77th Precinct and I’d never caught him in a lie. Most of his allegations were backed up by taped evidence—including assertions of corruption by Gallagher, Rathbun, and Spivey.
But as I look back now some twenty years after the events, I ask myself whether we should have charged the kid—a twenty-two-year-old who, at the time, was younger than my youngest son. I don’t know the answer, but I do know that I think about it more than any of the so-called successes of my career.
I had done my job and presented the evidence I had; now it was Barry’s turn. And did he ever do his job. He flayed Henry over the course of the next two days and made him admit that he was a liar, a thief, a man of no conscience, and someone who would do anything to avoid prison. To this last point I objected.
There was little I could do to protect Henry. He knew it and I knew it. He was a corrupt cop by his own admission. From time to time, I would object: “Argumentative, your honor,” or, “Assuming a fact not in evidence.” But these were bullshit objections, meant to give Henry brief respite from the onslaught of Barry’s cross-examination.
After a particularly grueling series of questions from Barry, I saw that Henry needed a real break; he was turning bright red with the embarrassment of his position. So I objected by employing Barry’s tactic: I asked for a sidebar.
As Barry and the judge moved toward the corridor, I collected some papers I thought I might need for the argument and saw Henry look at the jury, shrug his shoulders, and wiggle his ears. Some jurors laughed. No one seemed to notice and I kept it to myself. Here was Henry trying to reach out to the jury and portray himself as a human being. I probably should have informed the judge so that she could admonish him about inappropriate communication and instruct jurors that they were to disregard it as a prejudicial attempt. But I said nothing, deciding that if that’s what it might take for Henry to reestablish his humanity, so be it.
At lunch that day, after a recess in the cross-examination, I bought sandwiches for Henry and me and we went to the Promenade overlooking New York Harbor. We couldn’t talk about his testimony because that’s against the rules, and at this point in our careers we didn’t want to break them.
Henry was a wreck. He’d forgotten how difficult cross could be. I told him that he was doing fine and that he was doing the right thing. He was close to tears and I had to use all my professional skills to keep from joining him. I thought about the quiet, dark boxes of the confessional, where I secretly told my sins to a priest, who would absolve me by prescribing a simple penance of Hail Marys and Our Fathers. How perfect those confessions are—expiation without too much pain. God love the Catholic Church. But a public confession on the witness stand is something quite different, namely a public humiliation.
Barry ended his cross when it was clear to all that neither Henry nor my case had any credibility whatever. All that was left were closing arguments.
Barry led by declaring what any defense attorney would under the circumstances: Henry was a liar, a thief, and a cheat all of his life, and his “performance” in this trial was payment for his do-not-go-to-jail ticket. He called my evidence worthless, and maintained that his client was a good and honest young cop who happened to be in the wrong place at the wrong time.
All that was left was for me to make a compelling closing argument and pull the conviction rabbit out of the hat. I spun the usual prosecution bullshit: If the
People
wanted to make up a story to frame the defendant, we would have done a much better job of it, and Henry had nothing to gain from accusing the defendant.
“What did he do?” I asked. “Take his own money into the drug spot and then pretend to count it out for the defendant’s share?” I worried that some jurors might be thinking exactly that.
The judge gave instructions to the jury and sent them out to deliberate, just before dinnertime. Which I considered a nice break for me: With an extra hour or so to eat before deliberating, the jurors just might be kept overnight.
The judge told Barry and me to be available in case of an early verdict. As the age of cell phones had not yet dawned, we gave beeper numbers to the clerk. I decided to have a bite at a local Irish pub rather than go back to the office. Some colleagues from the Special Prosecutor’s Office joined me. Foregoing food, we had a beer or two.
As time went by, I grew convinced that I had the jurors struggling with the evidence. I thought I must have done something right and ordered another beer, convinced that the jury would retire for the night without rendering a decision.
At about 10 o’clock, my beeper went off and I called the court—expecting to be sent home for the night. But no, there was a verdict.
There goes my hung jury
, I thought. I returned to the courthouse hoping for a miracle. I ran into Barry in the corridor and he said that I tried a good case, given what I had to work with.
I replied, “You kicked my ass, Barry.”
The jury returned to its place in the courtroom, with nobody giving a sign I could detect of what their decision was. The judge asked the foreperson if a verdict had been reached and she said, “We have, your honor,” and passed the verdict sheet to a clerk who gave it to the judge. I noticed no extra court officers in the room—a telltale sign of a guilty verdict.
The judge read the verdict sheet and returned it to the clerk, who returned it to the foreperson. My heart raced as it always did right before a verdict, and I listened as the judge asked the foreperson, “On the first count of the indictment, how do you find?”
“Not guilty, your honor.”
Which was the same response to the remaining counts. And so, the last trial in the 77th Precinct investigation ended.
The judge thanked the jurors for their service and I asked if I could speak with them—customary practice for attorneys who want to know how jurors analyzed the trial. I moved to the jury box, from which most good citizens had fled but a few remained. I approached an attractive young woman whom I thought had listened with close attention during my closing arguments.
Before I could ask a question, she said to me, with some hesitation, “We tried, Mr. Hawkins, but there really wasn’t evidence.” I thanked her for at least considering the facts.
Another juror said, “We just could not believe Winter. He is so bad.” A few others offered their thoughts and I thanked them all before leaving.
Barry and his client were talking in the corridor as I headed for the elevators, which even during the day took forever to arrive. Normally, I would walk down the stairs to avoid running into the defendant, but tonight I waited, thinking the stairways might be locked due to lateness of the hour.
When the elevator finally came, I entered, alone. As the doors closed, there stood Barry and his client, taking a pause from their conversation. The defendant grinned. I pointed my finger at him and said, “Get ya next time.”
Nice work, Dennis. Very professional, especially since the system worked exactly the way it’s supposed to: I brought a case I could not prove beyond reasonable doubt and the jury found the defendant not guilty.
There I was, playing the
Dirty Harry
version of a prosecutor and making threats to a kid who smiled his awkward smile because he was relieved and didn’t know how to relate to the guy who just tried to send him off to jail.
It may not have been the last time I acted like an asshole, but it’s the time I remember best.
The next day, Barry called to ask what the district attorney’s office planned to do about the other indictments. I told him that we would have to review the situation. (We ultimately dismissed those indictments and referred the cases to the Police Department for administrative hearings. I was told that Gil resigned before those trials.)
“And Dennis,” Barry said, “you really shouldn’t have said that to my client.”
“I know, Barry, I know. Would you please tell him I’m sorry?”
Ah yes, confession is good for the soul. As is an appropriate apology. But some confessions do not absolve the guilt.
Gallagher’s partner wrote page after page of confession in the hours before he killed himself. Henry Winter confessed his sins three times over while sitting in the witness box. Some years later, he hanged himself at his home in Valley Stream, Long Island.
Today, I still carry their confessions with me, along with my own smaller sins, but sins nonetheless.
And I remember what Joe Hynes said to the
New York
Times
some years ago on the subject of investigating cops: “[It] is the saddest job I’ve ever had. It destroys lives. If you enjoy it, you’re sick. If it gets to you to the point where you have trouble sleeping at night, you ought to be out of it.”
Thank God I’m out of it.
I
never saw the body. I found out that Vladimir the antiques dealer, a.k.a. Bobby from Russia, had been shot in the head at point-blank range in the doorway of his shop at Vanderbilt and DeKalb because the drums were talking. This is how it went in Fort Greene, Brooklyn, in the mid-1990s.
Friends called friends to alert them to the fact that there’d been another mugging in Fort Greene Park, or gunshots heard from an unknown source on Adelphi at 3 a.m. A mention of Fort Greene on the news usually meant that another four-year-old had been shot tragically in drug-related violence in the Walt Whitman Houses. Myrtle Avenue was referred to as “Murder Avenue” by all and sundry. The local citizenry protected each other with all-points alerts about crime in an area labeled up-and-coming, yet still on its way to that elusive goal, whatever it meant to anyone who wasn’t a real estate broker.
Burnt out on tourists, nonstop street spectacle, and rising prices in Greenwich Village, I’d moved to Brooklyn in 1990, thrilled by the beautiful architecture, the wide, treelined streets, and the warm and generous spirit of the people who lived here. Hell, I got a free dessert the week I moved in. Christine, a Caribbean woman who ran a bakery at the corner of Carlton and DeKalb, told me, “Watch out going by the park after dark,” as she welcomed me with a delicious rum pudding. No one had given me free anything in the twelve years I’d lived in Manhattan. This was Fort Greene in a nutshell:
Welcome, and watch your back
.
Taxi drivers told me I was crazy to live in a neighborhood like this. Unspoken was the fact that I was white and the area was predominantly African American. Perhaps I was naïve, but I didn’t worry. In the nine years I’d lived on Jones Street between West 4th and Bleecker, I’d been mugged in broad daylight in the lobby, burglarized by a guy who called on the phone a week later to let me know he could come back anytime he wanted, and terrorized by a drug-and-booze-addled jazz musician neighbor whose friends I passed shooting up in the hallway on my way to work. How much worse could it be in Brooklyn?
It was tough in New York then, and things could happen anywhere: This was the common wisdom passed from one nervous neighbor to another. Watching your back was a way of living, the price of being in the big city, with all it had to offer. The worst thing that happened to me in Fort Greene was being labeled “white meat” by a bunch of teenaged boys eager to look tough for their cohorts. But if I stayed out late I hoped and prayed I would find a parking spot close to my apartment. Muggers exercised equal opportunity in their choice of targets.