PART 35 (43 page)

“You point to the middle of your own chest, Doctor?”

“Objection.”

“Overruled.”

The jury was alert and fascinated.

“It can be in there, yes,” the doctor answered.

“And what does the word
traumatic
before pleuradynia signify?”

“The pleuradynia resulted from some trauma.”

“What is a trauma, Doctor?”

The doctor rubbed his chin. “It means something to do with an injury.”

“Actually, doesn't trauma mean injury caused by an external force, an external shock or blow?”

“Objection.”

“Overruled.”

“Yes, it can mean from a blow.”

“In other words being struck by something or someone.”

The doctor hesitated. He looked at Siakos steadily. He nodded. “Yes.”

“What treatment did you give Hernandez for this traumatic pleuradynia, Doctor?”

The doctor studied the card. “Two aspirins,” he replied.

“Just like the lousy Army,” Sam whispered, not breaking the flow of his note-taking. “I wouldn't let this guy take care of my bunion.”

“Do the cards indicate anything else, Doctor?” Siakos asked.

“A contusion of the left chest near the breastbone.”

Two of the jurors edged forward to listen.

“What is a contusion, Doctor?”

“A bruise, a discoloration without a break of the surface.”

“And do you diagnose a contusion objectively, by feeling and seeing, or by being told by the patient?”

“You can see it.”

“And if it says contusion, is it a reasonable assumption that you actually saw and felt a contusion, and it wasn't just something the patient complained about?”

“Yes.”

“Doctor, will you look at this man's chest now, particularly at two marks on the left side near the breastbone?”

The judge allowed the guards to bring Hernandez forward again. The doctor examined Hernandez.

“Can you see anything there?”

“Yes. Two slight discolorations.”

“Could that be the remnants of the contusion you noted almost a year ago?”

The doctor scratched his head, rubbed his chin. “It's in the right place. It could be, I suppose, but I don't know for sure.”

“Anything else done for this man, Doctor?”

“Yes. His chest was strapped.”

“What with, Doctor?”

“Bandages. All around.”

“When you say all around, Doctor, tell the jury where, if you will?”

“Well, from about the top of his chest, around the armpits, down to his waist.”

“What does strapping do, why is it done?”

“Usually it's to relieve pain. Holds the chest and eases pain.”

“And this strapping was of the whole chest?”

“Objection sustained, repetitious,” the judge said without benefit of Ellis.

“How many times was this man treated by the doctors in the Tombs?”

“Since the beginning?” The doctor read and then counted ponderously. “Sixty-two times.”

“I have no further questions.”

“Let's take a short recess,” said the judge. He admonished the jury and returned to his chambers.

When court resumed, Ellis, wrinkling his nose, began to question the doctor. Most of Hernandez's sixty-two clinic visits after the chest-strapping appeared to be complaints of the prisoner, and there did not appear to be any further indication of objective findings of contusions. Ellis had the doctor re-examine the scars on Hernandez's chest.

“It's an old scar,” the doctor said. Although not displaying it to the jury, Ellis was ebullient. “About six months to a year old, perhaps,” added the doctor. Ellis could almost be heard to deflate.

The doctor testified that the marks came from some abrasion or contusion in the skin. Ellis sat while he was ahead.

Siakos had no further questions. He rested Hernandez's evidence on the voir dire.

“Your Honor, on the basis of this evidence, I move to exclude any alleged statement made by the defendant Hernandez on the ground that it could not be voluntary beyond a reasonable doubt.”

“Your Honor,” Ellis said, rising. “I have some evidence on the voir dire which I'd like to present.”

“Yes, we'll hear Mr. Ellis's evidence.”

For his first witness on the voir dire, Ellis called Lieutenant Garcia of the Seventh Squad. Garcia was about fifty years of age. He did not look Spanish. He looked like a cop.

Garcia testified he was never in the third-floor locker room on the evening of July 3rd, 1967, or the early morning of July 4th. He recalled that the first time he saw Hernandez was in the detectives' squad room on the second floor shortly after 5
P.M.
, July 3rd. From there, Hernandez had been taken upstairs and Garcia did not see him again until he was brought down about 6
P.M.
At that time, Garcia had been tied up with an inspector and did not speak to Mullaly or any other detective who had been upstairs. Hernandez was placed in the clerical office, connected by a door with his own office.

“Lieutenant Garcia, did you ever hit, strike, kick, or in any way physically abuse this defendant?”

“Certainly not.”

“Did you ever say anything to insult or abuse the defendant, his race, religion, or anything like that?”

“Certainly not.”

“Did you see any other person or policeman or detective do any of these things in your presence?”

“No, never.”

“I have no further questions, Your Honor.”

“Proceed, Mr. Siakos.”

Siakos asked Garcia how many policemen had been working on the case. The lieutenant answered it was a huge manhunt, perhaps four hundred policemen. He further testified that he was in charge of the investigation because he was commander of the precinct detectives. He said he spoke to Hernandez after he was brought down from the locker room at 6
P.M.

“Did he tell you anything about this case.”

“Yes, off and on.”

“And for how long, would you say, did he tell you things?”

“Well, on and off for several hours. As we needed information.”

“Did he deny to you sometime after 6
P.M.
that he had anything to do with this crime?”

“In the beginning he did. He made no admissions.”

Siakos continued, not changing his tone or delivery. Sandro moved to the edge of his chair. Sam stopped writing notes and looked up.

“How many times would you say that, after six o'clock, he denied flatly having had anything to do with this crime?”

“Once or twice, perhaps three times.”

Siakos continued, trying to open a bigger hole in the prosecution case. Mullaly had said there was never a denial by Hernandez, and by 6
P.M.
the confession was complete. Now the lieutenant testified there were still denials on and off for several hours after 6
P.M.

At this point, the judge recessed the jury and the court for lunch.

Siakos walked over to Sam and Sandro, keeping his back to the jury as they filed out.

“You got him now,” Sandro exclaimed.

“Sure,” said Siakos, smiling.

“Mullaly and friends were probably afraid to prep the lieutenant and tell him what to say,” added Sam. “Too bad we had to go to lunch before finishing him. Wait and see if his whole story isn't straightened out over lunch.”

After lunch, Siakos questioned Lieutenant Garcia about all his activities after 6
P.M.
on July 3rd, 1967. Garcia testified that Hernandez stayed in the clerical office until 9
P.M.
, when he was taken to Brooklyn to point out Alvarado's house. On his return, Hernandez was put in the cage in the squad room while awaiting the D.A., who was to take a formal statement. Garcia testified they had returned from Brooklyn about 11
P.M.
He said he saw Mrs. Hernandez at the station house that night, but only once, about 8
P.M.

Garcia testified that at no time did he see the prisoner manhandled; nor did he ever see the prisoner when he looked as if he had been manhandled. He never saw the prisoner without all his clothing.

Siakos was looking now for a strong point upon which to end the examination.

“How many times all together would you say the defendant Hernandez, when in your office after six
P.M.
, denied to you any guilt in this case?”

“I object, Your Honor, there's no such testimony in the record,” said Ellis.

“He made a mistake trying to bring him back over this,” Sam whispered. “He's going to lose all his points right now.”

“I'm afraid the district attorney's memory is conveniently faulty,” said Siakos.

“Wait a minute. Your Honor, I don't think such remarks are proper. Mr. Siakos knows better than that.”

“Gentlemen, let's not argue amongst ourselves. Rephrase your question, Mr. Siakos.”

“Lieutenant, I believe you stated previously that you questioned Hernandez intermittently from six
P.M.
to nine
P.M. IS
that right?”

“Yes, sir.”

“And I believe you further stated that Hernandez denied any participation in this crime?”

The lieutenant tilted his head a bit and crossed his legs. “What I meant to say, sir, is that he denied shooting the patrolman.”

“Lieutenant, didn't you testify before you went to lunch that Hernandez denied at least twice, after six
P.M.
, any part in the crime?”

“I didn't understand your question.”

Sandro and Sam both knew Siakos was enraged. His face was impassive, however, projecting only calm to the jury.

“How many times have you testified in court, on any cases, Lieutenant?”

“I'd say approximately two hundred times.”

“You're not nervous here, then, are you?”

“Not nervous, no.”

“And if I ask you whether a man denied
any
part in the crime, and you say, yes, he denied
any
part in the crime, what would you mean by that?”

The lieutenant puckered his mouth. “Well, I understand your question to be—from what I understand, the part that he denied was the shooting of the patrolman.”

“I told you the sons of bitches would straighten him out over lunch,” Sam whispered to Sandro, not taking notes, just watching.

Siakos tried to recall the exact words of the question he asked the lieutenant before lunch. Ellis objected that Siakos's paraphrase was not exact. The judge called a recess, so that the stenographer who had recorded the morning's session could type the relevant passage and bring it to the court forthwith. The lieutenant went back to the witness room. Ellis followed him as soon as the jury had retired.

“You can't fight that,” Sam said, watching Ellis.

“It's so goddamn obvious,” said Sandro. “I hope the jury gets the byplay.”

They walked outside. Sam relighted a cigar. One of the courtroom buffs, a tall, lean, gray-haired Irishman, came over to them.

“You're doing all right now,” he said. “I wouldn't believe a station house confession on a bet. Now the lieutenant is spilling the beans on them.”

“Not after he comes out again,” added a gray-haired woman, another of the buffs, who was standing next to the Irishman. Sam smiled and nodded. “They'll fix him up good before he comes back.” Sandro returned to the courtroom.

The stenographer from the morning session was in court within twenty minutes with the typed testimony. He gave copies to all counsel and the judge. Lieutenant Garcia again took the stand. Siakos rose to face him. He asked the lieutenant where he had been just before getting back on the stand.

“In the witness room, right outside.”

“Was anyone in there with you?”

“Other detectives.”

“Did Mr. Ellis walk into the room?”

“I don't recall.”

“Mr. Ellis, will you rise, please.” Ellis was reluctant. He looked at the judge. The judge nodded. Ellis was annoyed as he rose. “This is Mr. Ellis. Was he in the witness room with you just now?”

The lieutenant pursed his lips, uncrossed and recrossed his legs. “He might have been.”

“Thank you, Mr. Ellis.” Siakos stared incredulously at the lieutenant.

“Lieutenant, this morning I asked you the following question.” Siakos read from the typed minutes, “‘How many times would you say that, after six o'clock, he denied flatly having had anything to do with this crime?' You answered: ‘Once or twice, perhaps three times.' Do you recall that?”

“Yes.”

“And do you now tell this court and jury that you meant that he had denied only having shot the patrolman?”

“That's correct, sir.” Garcia cleared his throat.

“Lieutenant, I'll ask you now the same question I asked you this morning. Did he deny to you flatly that he had anything to do with this crime?”

“What he denied to me, sir, was the killing of the policeman—”

“Yes or no, please, to my question.”

Ellis objected to restricting the lieutenant to yes or no. He suggested the lieutenant might not be able to answer completely by just yes or no.

“Objection,” said Sam, rising. “The witness hasn't indicated any problem in answering. Mr. Ellis should not prompt the witness into confusion.”

“If the lieutenant can't answer yes or no, he should give a full answer,” the judge allowed.

“Your Honor, will you ask the lieutenant whether he can answer yes or no,” Siakos suggested.

“No, sir,” replied the lieutenant, who was Ellis's quick student.

“You may give a full answer.”

“Officer, do you mean you do not understand my question?” said Siakos.

“Your Honor,” said Ellis, jumping to his feet, “the court has said the lieutenant may give a full answer.”

“That's right. The lieutenant hasn't answered your first question yet, Mr. Siakos.”