PART 35 (31 page)

The judge refused to excuse the juror for cause.

Sandro walked back to the counsel table and sat down. “Christ, I was sure that guy was going to be number seven. If he just hadn't answered that question like that.”

“What lies beyond what is, is not,” murmured Sam. “Forget it, and challenge him when you get the chance.”

Sandro didn't have to. Ellis did.

By the end of the fifth day, there were ten jurors. Number seven was a bearded man named Nicholas Spoda, who taught music in a city high school. He was unmarried. Sam thought he would be sympathetic because the popular imagination arbitrarily links musicians and drugs. Number eight was a retired executive buyer for Saks Fifth Avenue named Dora Kleinsinger. Number nine, Harry Magnusson, was vice-president of a large company that exported and imported home furnishings. Number ten was a Negro letter carrier named Clarence Noble.

The judge, before dismissing the jury for the night, admonished all the jurors not to discuss the case with anyone. He then asked the court clerk to send for a new panel, because there was no one left of the original two hundred.

By the end of the sixth day, the final two regular jurors had been selected. Morris Apfel was number eleven. He was in textiles and was a grandfather of six. Charles Hanrahan was number twelve. He was a retired rewrite man on the foreign desk of the Associated Press.

During the morning of the seventh day, the jury-picking stalled again, with the alternates not yet chosen. Among those excused was a man who identified himself as an equine podiatrist. The score of peremptory challenges used by now was seventeen for Ellis, twenty-three for the defense.

That afternoon, the four alternates were picked. Solomon Roth, a fur salesman in his forties, was the first of them. The second was Michael Sobiestz, a baker. The third was Arthur Kovinsky, a time salesman for an advertising agency. He did not know Richard Haverly. The last alternate was named Philip Littick. He was a negative-opaquer for an offset printing plant.

“Gentlemen and ladies of the jury,” the judge said after the entire jury box was filled with sworn jurors and alternate jurors. “It is now three thirty on a Friday afternoon. Although it is still early for court work, I think that the foreman and the other jurors who were picked first need a little rest, as do the lawyers, as does everyone, before we begin what may be a long trial. So, I'm going to excuse you until Monday morning at ten
A.M.
Please be prompt, as we want to get started on time. Do not discuss this case with anyone, and do not let anyone discuss it near you. Good afternoon.” The judge turned toward the lawyers. “Counsel, please be prompt. You shall open to the jury at ten
A.M.”

“Well, Sandro, this is it,” said Sam. “Don't worry. If we're not prepared, no one ever was.”

They walked out of court together.

CHAPTER II

Sandro entered Judge Porta's chambers on the seventeenth floor of the Criminal Courts Building.

The woman behind the desk looked up from her typewriter and smiled. “Yes, may I help you?”

“I'm Alessandro Luca. The judge said defense counsel might come up to look at some records we subpoenaed from the police department and the Department of Correction.”

“Oh, yes, Mr. Luca. I'm sorry I didn't recognize you. I was all involved in typing one of the judge's opinions. The judge is not in, but he did tell me to expect you. Are the other lawyers coming?”

“Perhaps Mr. Siakos. I'm not sure.”

“Well, I've set everything up in this office,” the woman said. She rose and led Sandro to a small cubicle. There was a desk, and on it were several thick envelopes. “The judge said you could stay as long as you like.” She smiled sweetly, quickly, and left Sandro alone.

Two of the envelopes were filled with pages of photostatted police reports and DD5's—printed supplementary report forms filled out and signed by police force members who participate in an investigation. Sandro set about sorting out the records. He read each page carefully and, when finished, placed it on a pile according to subject matter, so that he could find what he would need during the trial when this material would be officially turned over to him.

One thick pile was for the DD5's that described interviews with the tenants of all the buildings in and around 153 Stanton Street on July 3rd, 1967. Many officers had been involved in this aspect of the investigation. Each building was reported on a separate DD5, with entries for each tenant by apartment number or name. All results were negative. No one had seen anything.

Sandro was surprised to find a DD5 concerning an interview of Mrs. Salerno. She told the police she saw a man moving on the fire escape, a very dark Negro, but she didn't see his face. She told me she didn't see anything, Sandro thought. No matter, not seeing the face was just as good.

A second pile was for DD5's which verified the ownership of every car that was parked on Stanton Street, Suffolk Street, or Norfolk Street on July 3rd.

Sandro also separated the DD5's recording interviews with every store owner on Stanton Street. These, too, had been negative.

There were miscellaneous DD5's, some relating to telephone calls that were traced in the search for the person who had made the phone call about prowlers on the roof; also negative. Some related to the factory across from 153 Stanton Street. No one had seen anything.

In another pile were the DD5's filled out by the officers who had arrested or interrogated Hernandez and Alvarado—Tracy, Mullaly, Johnson, Jablonsky. These DD5's were terse, indicating only that the defendants had been arrested, that statements had been taken, that the case should still be marked active. There was no hint, however, about what had been said in those statements.

Sandro was pleased to find a DD5 made out by Mullaly on July 9th, 1967, that reported an interview the big Irishman had had at the station house with two men named Quinones and Arce. They lived in an apartment on 119th Street in El Barrio, which had been burglarized the morning of July 3rd, 1967. They had identified as their own the property in the valise taken from Hernandez's car, as well as the goods Hernandez had pawned.

Sandro next separated the reports from the police department laboratory. Here it comes, he thought. He read them quickly, then, incredulous, read them again. The lab investigation showed that there had been no fingerprints belonging to Alvarado in the Sotos' apartment. All the prints belonged to Soto or his family. There were also none of Alvarado's on the stolen property or in Hernandez's car. Only a fragment of a fingerprint had been found on the patrolman's gun, and that fragment could not be identified.

The lab reports also stated that the door of Soto's apartment had been opened by a force other than a jimmy, probably a kick-in.

Sandro finished the police reports and returned them to their envelope. He searched through the Department of Correction records, and drew out the medical diagnosis report that had been sent back to the Tombs from Bellevue on July 10th, 1967. It contained the findings of a Dr. Edward Maish who was on duty at the Tombs late on the evening of July 9th. The report indicated that Alvarado had been found on the floor of his cell in the throes of a clonic seizure. That was a new one, Sandro thought. All he had had to go on before was a possibility of internal bleeding.

Dr. Maish's report stated that he had found Alvarado in “an apparent clonic seizure, with Cheyne-Stokes breathing, all his extremities spasmodically shaking, with tachycardia, guarding and rigidity in the abdomen, and exquisite tenderness in the epigastrium. In lucid moments, the inmate claims to have been beaten at the police station prior to being brought to Manhattan House of Detention for Men.” Dr. Maish had sent for an ambulance and had Alvarado transferred to Bellevue so that the hospital might “rule out internal bleeding.” At the bottom of the diagnostic report, Dr. Waxman from Bellevue had written that there were no signs of internal bleeding.

With all these other symptoms, Sandro thought, the internal bleeding was now only a minor factor.

Hernandez's medical records were also there. They indicated that Hernandez had been suffering from traumatic pleuradynia when he entered the Tombs. His chest was then strapped, and he was given some medication. These records are a gold mine, Sandro thought.

He put all the reports and DD5's back in the envelopes, and put his notes in his briefcase, glad that he had been so hard-nosed about getting these documents. They were going to be very useful—and Ellis couldn't say the source was tainted.

CHAPTER III

Monday, April 1st, 1968

Fourteen somber men and two somber women filed out of the jury room, into the courtroom, and entered the jurors' box, glancing furtively at the lawyers and defendants. The four alternates sat farthest from the judge's bench. Alvarado was wearing the oversize Madras jacket again. Hernandez watched the jury settle in. Sandro read some notes on the yellow pad before him. Ellis filled a paper cup with water. The clerk polled the jury. The stenographer recorded their names. A court officer pounded the door of the judge's robing room just as it swung open before the judge. All rose.

“Hear ye, hear ye, all who have business with Trial Term, Part Thirty-five of the Supreme Court, draw near, give your attention and you shall be heard. The Honorable Gaetano S. Porta now presiding,” announced the officer.

The judge strode to the top of the steps leading to his bench, nodded to the jury and to counsel, and sat. He gathered his robes about him and gazed down at the district attorney. “Mr. Ellis, you may open to the jury.” The judge swiveled in his chair, until he was three quarters turned away from the jury, staring straight ahead, his mind at the ready.

Ellis rose. He walked slowly toward the center of the jury box and placed his notes on a shelf hinged outside it. He turned to the bench and wrinkled his face into one of its two basic positions.

“May it please this Honorable Court, gentlemen for the defense, Mr. foreman, gentlemen and ladies of the jury:

“At this point in the trial, the law imposes upon me, as assistant district attorney charged with the prosecution of this case, the duty of making what is known as an opening statement.

“Now, the purpose of this opening is merely to preview the evidence you are about to hear or see, so that you may follow that evidence with more facility and understanding.

“In all fairness, I should point out that what I am about to say to you is certainly not evidence. You will get the evidence from the witnesses who appear here to testify.”

Sandro watched the back of Ellis's head. Ocasionally, he jotted notes on the pad before him. Ellis rested his hands flat on the jury-box shelf.

“Now, the evidence will show that these two defendants, Hernandez and Alvarado, were friends. They met on the morning of July third, 1967, in the vicinity of Stanton and Allen streets. During a conversation, they decided between themselves to burglarize an apartment, steal some property, sell it, and obtain some money.

“Thereafter, the defendants entered a car, driven by Hernandez, a Chevrolet, bearing Connecticut plates. They proceeded uptown to east Harlem—or, as it is called, El Barrio—where they spent some time. Then, in the early afternoon, they returned to Stanton Street between Norfolk and Suffolk streets.

“Hernandez lived in that block at that time. They double-parked this Chevrolet on the north side of the street near number One sixty Stanton Street. According to a prearranged plan, Alvarado ascended the rear fire escape, and, as he climbed, he looked into each apartment to see if anybody was home. When he got to the roof, he again met Hernandez.

“Now someone saw Alvarado climb that fire escape, and that someone called the Seventh Precinct. A radio car was dispatched to investigate a prowler on the roof of One fifty-five or One fifty-seven, not, mind you, One fifty-three. In that radio car were Patrolmen Roger Snider and the now deceased Fortune Lauria, both in full uniform.

“The evidence will further show that the defendants went down the interior stairs to the top-floor landing, and, by use of a jimmy, they broke and entered the rear apartment, 5B, leased by Mr. and Mrs. Robert Soto.”

Sandro made a note about the jimmy, the police lab report still fresh in his mind.

“Meanwhile, the police arrived in the street and proceeded to the rear yard. While there, a back window in a building on Rivington Street opened, and a woman directed the policemen's attention to the roof of One fifty-three.

“Patrolman Lauria went up the fire escape, while Patrolman Snider went back through the courtyard to the street and started up the front stairs of One fifty-three.”

Ellis moved down toward the jury foreman.

“Now, the two defendants, in the meantime, carried from the apartment a television set, a radio, and a woman's purse containing a sum of money. They deposited this property on the rooftop. Then Alvarado went down the fire escape, to re-enter the apartment from the window to get whatever else he could find. When he got to the window, Alvarado was unable to raise it because there were screw locks and a metal gate on the inside.”

Sandro wrote another note. Apparently they were going to stick with this story about a burglar so inept that he went into the apartment first and then had to climb down the fire escape to discover that the window was locked from the inside. He wondered why.

Ellis, still speaking, moved down to the alternates' end of the jury box. “They began to carry the stolen property over the roof. Alvarado heard noises on the fire escape. He went to the edge of the roof and saw Patrolman Lauria coming up. Alvarado told Hernandez the cops were coming. Then Alvarado hid behind the bulkhead that housed the stairway leading up from the top floor. Patrolman Lauria reached the roof, his revolver in hand. He pointed it at Hernandez, who was standing by the stolen property.

“At this point, Alvarado jumped from behind the bulkhead onto Lauria's back. He hooked his arm around the patrolman's neck and wrestled the revolver from his hand. Lauria, knocked off balance, fell to his hands and knees. Alvarado stepped back and fired five shots into the back of Patrolman Lauria.”