"I can't say it occurred to me to do so."
"And after Ms. Miller failed to identify anyone in the photo
array, when it came time to put together the lineup, you didn't have birthmarks
added then, did you?"
"It's obviously harder to do on real people," Spanner said.
"Besides, your colleague was there, and she didn't say anything about it."
"Were all the people in the lineup African American?"
Spanner paused, clearly fearing a trap every time I brought up race.
"I believe so," she said.
"Same as the photo array, right?"
"Far as I know."
"Because the witness had identified an African American?"
"Like I said before, yeah."
"So the race of the people stayed consistent between the photo array and the lineup," I said.
"But in the former everybody had a birthmark too, and in the latter only my
client had a birthmark."
"I have no reason to believe that played any role in Ms. Miller's
being able to pick out the defendant. She knew what he looked like."
"Had the photo array been turned over to the defense at that
time?"
"I don't believe so."
"Had the defense even been informed that a photo array had been
presented to Ms. Miller?"
"I don't believe so."
"That's because you hadn't included it in your case files,
correct?"
"It wasn't evidence of anything," Spanner said. "As I've
explained, it wasn't that the witness failed to make an ID; it's that she didn't
try to make an ID."
"She looked at the photos, right?"
"Briefly."
"And Lorenzo Tate was included in that photo array, right?"
"He was."
"And Ms. Miller didn't pick him out when shown the photos, right?"
"She said she wanted to see him in person."
"Meaning she didn't pick the defendant out when shown the photos,
correct?"
"She didn't pick anyone out from the photo array."
"Thank you, Detective," I said, figuring this was as much of a concession as I was likely to get.
"And was it your decision not to include the photo array in your investigation
file of this case?"
"Yes. As I said—"
"How about the witness statement in which the birthmark was
highlighted as part of Ms. Miller's identification? Was that given to the
defense prior to the lineup?"
"I don't know."
"Would it surprise you to learn that it hadn't been?"
"I guess it wouldn't surprise me, no," Spanner said. "We were
still in the early investigation stage of the case."
"So if neither Ms. Miller's previous description nor the existence
of the photo array had been disclosed to the defense, there wouldn't have been
any reason for defense counsel to realize that the birthmark had any
significance, would there?"
"Maybe not."
"Isn't it true that in the photo array, all the photos featured
prominent birthmarks, while in the lineup only Mr. Tate had such a
distinguishing characteristic?"
"I suppose so."
"And that Ms. Miller was unable to identify Mr. Tate in the photo
array but did so in the lineup?"
"Like I said before, I don't think it's that she was
unable
to identify him in the photo array," Spanner said.
"I don't think she really tried."
"When you interviewed Ms. Miller the night of the shooting, did
she tell you what she was doing outside at that time of night?"
"She said she was on her way out to a bodega on Flatbush."
"What was the relationship between Yolanda Miller and Devin
Wallace as of April 6?"
"It's my understanding that they were dating at the time of the
shooting."
"And she just happened to be out in the project at the same time
as the shooting of Mr. Wallace?"
"I believe Mr. Wallace spent a lot of time outside in the project," Spanner said.
"He and Ms. Miller lived in the same complex. I don't think it's that huge a
coincidence."
"Isn't it possible that Ms. Miller was actually out looking for Mr. Wallace that night?" I asked.
"That's not what she told me."
"Did you investigate the possibility?"
"No."
"But it's possible?"
"Anything's possible."
"Did Ms. Miller describe to you what she saw after she left her
apartment?"
"Ms. Miller told me that she came out of her building and saw a man who she recognized as Mr. Wallace standing on the far side of the projects," Detective Spanner answered.
"There's a large open courtyard in the middle of the Gardens project. I guess
maybe it's where the garden was supposed to be. According to Ms. Miller, Mr.
Wallace had his back to her and was talking with another man, who turned out to
be the deceased victim, Mr. Lipton. Ms. Miller was considering heading across
the square to speak to Mr. Wallace when the shooting started. Ms. Miller pressed
herself against a wall as she realized the shooter was to the side of her,
firing at Mr. Wallace's back. About a half dozen shots were fired in quick
succession; then the shooter ran past her. That was when she had a chance to see
him and to recognize him as Lorenzo Tate."
"Were there any other eyewitnesses to the shooting?"
"None that have come forward so far, no."
"Now, Detective Spanner, the nature of your job means you are
pretty familiar with the Glenwood Gardens project, correct?"
"It's part of my precinct, so I suppose I'm familiar with it,
yes."
"You've had occasion to investigate other crimes there?"
"Sure."
"The Gardens are known as a sort of open-air drug bazaar, aren't
they?"
"Objection, relevance."
"Objection sustained," Judge Ferano said after a moment. "Move on,
Counsel."
I looked over my shoulder at Myra, raising my eyebrows. She shook her head slightly.
"No further questions," I announced, returning to counsel's table.
"Does the state wish to call any further witnesses for the purpose of this hearing?" Judge Ferano asked.
Williams declined, and the state rested.
"I'll hear whatever arguments anyone wants to make," Judge Ferano said.
I had barely sat down, but quickly returned to my feet. I began by arguing that Yolanda's ID should be suppressed on the grounds that the police hadn't disclosed the photo array. I then argued that the identification procedures used by the police were both unfairly suggestive and not independently reliable. When I was finished ADA Williams took her turn, arguing that Lorenzo's birthmark hadn't played an important role in the identification, especially in light of the fact that Yolanda had seen Lorenzo on several previous occasions.
"Thank you, Counsel," Judge Ferano said when we were through. "I'll reserve my decision. Next up is the
Molineux
issue. The People seek the admission of evidence relating to the allegation that
the defendant had sold one of the victims illegal drugs."
Williams again took the argument, claiming that testimony that the money Devin owed Lorenzo arose from a drug debt should come in to establish Lorenzo's supposed motive. The judge seemed skeptical, particularly when Williams revealed that the testimony they were proposing was that of Latrice Wallace, who had no firsthand knowledge regarding the nature of the debt, rather than Devin Wallace. This was good news for us in that it confirmed that Devin was still not cooperating with the police. When it was my turn I kept my argument short, wanting to stress my confidence that this proposed evidence did not fit the
Molineux
exceptions. After I finished, the judge again indicated that he would reserve his decision.
On our way out of the courtroom Myra and I were approached by a small, middle-aged man, his hair and goatee going gray, wearing a paisley tie whose fashion date had expired some years back and a worn sports jacket.
"Got a second, Myra?" he asked.
"For you, Adam," Myra replied, "no."
The man turned to me, smiling. "Myra's charming," he said. "Isn't
she charming? When people ask me about Myra, first thing I always mention is the
charm."
"Joel, this is Adam Berman from the
New York Journal
. He's
here because a white kid got killed."
"That's not entirely true," the reporter said, following us out into the hallway.
"The college student angle plays a part too."
I recognized Adam's name from the newspaper. I'd been keeping track of the press coverage on the case, regularly checking the Web sites of all the New York papers for any articles. I read everything I came across, but in many ways it just felt like I was reading the same article over and over. From the shrillest populist tabloid to the most restrained establishment national paper, they all expressed the same perspective, the only difference being one of linguistic restraint, some papers blaring in headlines what others would only imply between the lines. However loudly they did it, they all demonized Lorenzo while practically deifying Seth Lipton.
There was absolutely no sign anywhere of the presumption of innocence. In its place the press appeared to have settled on a collective story, one in which an innocent young white person made the mistake of showing curiosity about the nonwhite people around him and paid for his youthful enthusiasm with his life. This was the story that sold, apparently, or else it was just the story the papers thought sold.
"What do you want, Adam?" Myra asked as we walked toward the elevators.
"You really think you can suppress the ID here?"
"I don't comment about stuff like that," Myra replied.
"What about the rumors I'm hearing that the DA's looking to add a
hate-crime charge here?"
This stopped Myra in her tracks. "That's total bullshit. The DA
feeding you that crap?"
"You know I can't tell you where I'm hearing it. But if I'm hearing it, that means other reporters are too, and maybe somebody who isn't as . . .
scrupulous
as myself decides to print it."
"Somebody's really feeding you a line about this being a race
thing?"
"Black defendant, Jewish victim, deep in the heart of Brooklyn.
You're old enough to remember the Crown Heights riot."
"Give me a fucking break," Myra said. "This is not that."
"Listen," Adam said. "I don't need to point out to you that your
guy's getting bad press. I'm just giving you a chance to even the scales a
little bit."
"How?" Myra asked.
Adam shrugged. "You can give me a little preview of what you've
got. What's your defense going to be?"
"That'd be premature."
"You got anything you want to give me?"
"Slip me a card," Myra said, "and I'll let you know when I know."
20
I
WASN'T REALLY
hoping to ever see you again," I said to begin my meeting with Chris Delaney. Chris looked significantly worse than he had the first time we'd met, a remarkable achievement considering how bad he'd looked then.
I'd been given a heads-up by Shelly the day before, after she'd represented Chris at arraignment. This new bust meant that Chris was in violation of his probation from his earlier plea, and that he'd almost certainly be facing prison.
Isaac had given me the case because of my having previously represented Chris. I hadn't argued with him, but the fact was I didn't want it, didn't want Chris as a client. I hadn't liked being around him; he'd gotten under my skin.
"I know, I fucked—I messed up, I'm sorry," Chris said.
"You did fuck up," I said. I didn't quite know why I was being so hard on Chris, but even just the initial sight of him had brought it out of me. The truth was, I really hadn't wanted to see him again, or even think about him. If anything, I wanted to assume he'd gotten himself together and lived happily ever after, scared straight by his brush with the law. I had no interest in being confronted by the depth of his trouble, in being reminded of just how far a downward spiral had to go for some people before it reached anything like the bottom. My own state was still far too precarious for me to welcome such reminders.
It was wrong of me to feel this way; I knew that: my job was to worry about his problems, to fix them the best I could with the crude tools the law provided, and I would do my job, but that didn't mean I welcomed his presence back in my life.
"You remember what I told you after you were arrested the first time? Your
staying out of jail was conditioned on your not getting in any more trouble for
a year. Your initial deal is gone now."
Chris nodded slowly, not looking at me.
"That means you're going up with two pending drug charges," I said.
"That means you're facing time."
"Look at me," Chris implored. "I can't do time."
"Yeah well," I said, "that's not really how this works."
"What should I do?" Chris said. "How do I get out of this?"
"I can try to get a deal," I said. "But I certainly can't promise
it's not going to involve actual time. I think it probably will."
"I can't go to jail," Chris said, sticking with his motif.
"I've read the charges, Chris," I said. "They found the drugs on
you, they watched you buy them, they've pretty much got this sewed up."
"Aren't you supposed to be my lawyer?" Chris demanded plaintively, clearly losing it a little.
"Whose side are you on?"
"Deceiving you about your situation isn't being on your side," I said.
"But I'll talk to the DA's office and see what they'll offer."
"I need help, man," Chris pleaded. "I'm sick. I need to get
treatment, not go to jail."
"I can see if they want your testimony to go after the dealers," I said.
"That might get you a deal that would keep you out of jail, but it would mean
potentially testifying at trial against your dealer. There're obviously
downsides to that."
"Would they kill me?" Chris asked with a skittish, failed laugh.
"That's an example of a downside," I replied. "I can't promise you
that they wouldn't consider it. Though I certainly think it's unlikely."
"Maybe I could tell the cops something about Seth Lipton," Chris said hesitantly.
"He's the guy from my school who got killed."
I'd never thought to ask Chris about Seth, or even mentioned to Chris that I was working on the case.
"You knew Seth Lipton?" I asked after a moment, trying to keep my voice neutral.
"Sure, I knew Seth," Chris said. "It's kind of a small world, us
BC druggies."
"You're saying that Seth Lipton did drugs?" I asked.
"That's not the point, though, right?" Chris said.
"What is the point?"
"Maybe I could tell the cops something about his little scheme," Chris said.
"Maybe it would be like a motive or something for his getting shot."
"His scheme?"
"At school. Seth bought from the dealers in the Gardens, like in
bulk, and dealt it on campus. He was the college's number one dealer."
"I beg your pardon?" I said.