Another police officer provided the basis for the introduction of evidence that Ortiz was on duty that day in the same sector where the hit occurred. I had a police witness introduce a map drawing of the location in question so that Henry could show where the defendant and he had been during the incident. All this testimony went smoothly and, I hoped, showed the jury the competence of our investigation. But as we used to say in those days, Where’s the beef?
Henry was the beef — or sacrificial lamb, I should say, given my experience watching him cross-examined at previous trials. But Henry was no lamb. In fact, it was open season on rats who testified against those presumed to be innocent.
Henry and I had agreed that I would do an abbreviated direct examination of his past crimes and bad acts. Having seen Henry subjected to an all-day direct examination of his entire oeuvre of bad acts — dating back to when he worked in a Modell’s sporting goods shop as a teenager and marked down the price of baseball gloves for his friends — I decided to spare him the double-dose of confessing first to me and then to Barry. No matter, Henry still faced days of withering cross-examination by defense counsel to show him for a liar, a cheat, and a thief beyond compare.
When Henry took the stand, I quickly established that he had been a crooked cop, that he’d stolen money and drugs, that he’d resold the drugs, protected some drug dealers and extorted others, that he was not beneath stealing from the dead, and, significantly, that he’d been caught and had made a deal with prosecutors to avoid jail. Barry did not raise any objections to this testimony. After all, I was doing his job — undermining the credibility of my own witness. The theory here is that it’s better for the jury to hear it from the prosecutor, who is hiding nothing, than for the defense counsel to expose a cover-up by the prosecution.
I wanted to get as quickly as I could to the facts of the case — what Henry had done on the day of the crime, and what the defendant had said and done. And this is where I ran into trouble. Barry had an objection to every question I asked. And while some were legitimate, I thought others were meant merely to disrupt the flow of the testimony. Each time he made an objection, he asked for a sidebar conversation up at the bench with the judge outside of the jury’s hearing.
But soon our sidebars became so loud and heated that the judge moved us to the corridor. I became more and more frustrated as the frequency of the objections and sidebars grew. Barry was clearly setting the pace and controlling the courtroom and preventing me from presenting my case in a coherent manner. We seemed to fall into a pattern of me asking a question, then Barry making an objection and calling for a sidebar. After the pattern has been set, Barry would just make the objection, get out of his seat, and walk toward the corridor for his sidebar, followed by the judge.
Too much, I thought. This has got to stop. The next time the migration began and Barry was out the door and the judge was approaching the door, I held my ground behind the prosecutor’s table, looked at the jury, and said in loud voice, “Who’s running this courtroom anyway?”
Big mistake. Not only did I insult the judge, who let me know that she would not tolerate that kind of behavior, but I undermined her authority in front of the jury. We all know that jurors tend to have great respect for the judge and look to them as the fount of justice in the courtroom. I lost my temper, squandered some of the dignity of the prosecutor’s position, and may have jeopardized my case. I had acted unprofessionally. Nonetheless, while Barry continued to make objections, the processions to sidebar talks decreased significantly and I proceeded with my direct examination.
Henry testified about his tour of duty the day of the crime, his conversation with the defendant about hitting a drug location and splitting what was recovered, and that he had captured the conversation on tape. He testified that he had given the tape to IAD, initialed it, and had subsequently listened to the tape in order to confirm it as a full and accurate representation of the conversation that he’d had with the defendant. I asked him if the tape that had been introduced into evidence earlier was the same tape that he had made and listened to and he answered affirmatively.
“May I play the tape for the jury, your honor?”
“Yes, Mr. Hawkins.”
This was supposed to be the evidence that would prove beyond a reasonable doubt that the defendant entered into conspiracy with Henry to possess and sell the “found” drugs. Of course, it was Henry who would steal the drugs, if any were found, and “sell” them to us in order to receive money to split with his coconspirators. We had devised this plan in order to keep other cops in the precinct from selling it to their sources and putting the drugs back on the street. It was an excellent investigative move, but during this type of trial it was not always clear if jurors bought into our deception or even thought it was fair play.
Not really a problem in this case because no drugs were found, only money.
Once the jury, judge, attorneys, and defendant put on their earphones, they heard Henry speaking, laying out a plan to hit a drug location, suggesting that if he found drugs he knew where to sell them and that he would share the proceeds. It was clear that the defendant was present but not so clear that he agreed with Henry, an essential element of the conspiracy charge. Ortiz was told that he should cover the back exit of the apartment building to prevent drug dealers from escaping — the usual role for a junior police officer — and that Henry would go into the apartment and conduct the search for drugs and money.
Ortiz seemed to agree to cover the back exit, which in legal terms is an overt act in furtherance of a conspiracy. “Seemed” is the operative word. No clear agreement, no conspiracy. I knew I was on shaky ground with my agreement, but I thought that the conclusion of the tape could put me over the top and beyond reasonable doubt.
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.”