The defense’s first witness in People v. Russell was, to Karp’s surprise, a familiar face. Paul Ashakian took the stand and was sworn in. He looked young and blank-faced up there.
Freeland took him through the usual background material, schools, profession, the fact that he was not a bodybuilder or involved in any athletics at present, and then on to the meat. Freeland had set up an experiment. He had taken Ashakian up to the stairway in 58 Barrow, and there Ashakian had propped up the skylight, jumped up, grabbed the lip of the skylight base, and chinned himself up to the roof. He testified that once up on the roof, he had observed numerous ways to leave the building.
Freeland asked, “Now, Mr. Ashakian, is there any doubt in your mind that a person of approximately your height and build could enter the skylight as you did and escape from the roof in any of the ways you have described?”
Karp objected. “Speculative.”
“Sustained.”
Freeland asked, “Well, then, did you yourself have any difficulty whatever pulling yourself up through the skylight to the roof?”
Ashakian said it had been easy.
Karp rose for cross. He had been about to ask that the entire testimony be stricken as speculative and irrelevant, but a memory flashed into his mind and he approached the witness.
“Mr. Ashakian, you testified that you attended St. Joseph’s High School. While there, did you participate in any sports?”
“Yes, I was on the gym team.”
“You started for the St. Joseph’s gymnastic team?”
“Yes.”
“And during that time, were you ever required to perform on the high bar?”
“Yes, I was.”
“Did that entail leaping up for a bar set nine feet above the ground, pulling yourself up so that your legs were on the bar, and rotating your whole body rapidly around the bar?”
“Yes, it did,” said Ashakian. To his credit, he seemed embarrassed.
“No further questions,” said Karp.
Freeland’s second witness was a thin, elderly man named Walter Tyler. Tyler testified that he had been walking down Hudson Street and that he had seen Susan Weiner stagger, bleeding, out of her doorway and a man running away from that scene. The man had glanced over his shoulder as he ran, and Tyler had seen his “full face.” The running man had not been Hosie Russell.
Tyler testified further that he had gone with the crowd to 58 Barrow, had shouted out that Russell was not the right man, and had been ignored. Later he had gone up to a cop and had given his story, which the cop had written down. When he saw that the police were continuing to charge Russell, he had gone to Freeland. Karp looked over at the jury. They were listening with interest. Wrinkles of doubt appeared on their faces. They had all watched enough Perry Mason to believe that the defense could pull in a secret witness at the last moment to overturn the prosecution’s carefully constructed case. Disaster loomed.
Marlene, dressed in her best black, perfumed heavily, attempting to radiate class, sat in an uncomfortable Louis XV chair in Stephan Sokoloff’s cozy office and looked at Aziz Nassif, who was sitting in a similar chair. Sokoloff sat behind his desk smiling genially upon the supposed transaction taking place. On the desk, on a tray covered in black velvet, were four coins.
“Thirty thousand for the four,” said Marlene. “It’s my best offer.”
Nassif licked his lips, hesitated, then nodded. Sokoloff’s smile broadened. He said, “I’ve taken the liberty of preparing a bill of sale. I’ll just write in the price, here, and Mr. Nassif, if you’d just sign it …”
Nassif read the document and scratched his name on the appropriate line. Marlene took it, folded it, and put it in her bag. The door to the office opened. Ramon Rodriguez and Harry Bello walked in and arrested Nassif for art fraud.
Rodriguez took the protesting Turk away. Marlene pulled a paper out of her bag and gave it to Bello.
“Okay, Harry, this is a search warrant for Nassif’s restaurant and his apartment. It’s for the art fraud charge. You’re looking for phony art objects or other evidence of fraud. Just like it says on the warrant. Of course, if you should happen to find any evidence of other crimes not named in plain sight, then you can seize that too.”
Harry raised an eyebrow. “Smart.”
“I thought so,” said Marlene.
Karp stood and addressed the bench. “Your Honor, since this witness was not known to us before now, I request that Mr. Freeland turn over to the People all notes and statements pertaining to Mr. Tyler.”
Freeland rose instantly and said, “Your Honor, the only records I have from this witness are personal notes, personal working notes, which I don’t believe I am under any obligation to turn over.”
Martino beckoned them to the bench. He addressed Freeland.
“You have no statement from this man?”
“No, sir.”
“No statements? You interviewed this witness without taking notes about what he told you?”
Freeland said, “Well, yes, but they’re just rough notes-”
“That’s what I want,” said Karp.
“I don’t have to give them,” said Freeland, petulance creeping into his tone.
The judge said, “You have all Mr. Karp’s material, notes, police reports, statements from witnesses….”
“That was Mr. Karp’s option in that he thought those materials fell under Rosario, which he was obligated to give up. I am under no such obligation.”
“I am directing you to turn them over.”
“Your Honor, I’d like to know under what rule of discovery, or case you are directing me to.”
Martino squinted his eyes in thought. “Rule of discovery, it’s … what?” He glanced at Karp.
“Dolan, Your Honor,” said Karp.
“Right, Dolan. That’s Dolan, Mr. Freeland: D-O-L-A-N.”
“I’m not familiar with that case, Judge.”
“Not my problem, Mr. Freeland. I’m going to recess now for five minutes, during which you can peruse the law, and during which you will turn that material over to the People.”
It was as Karp had expected. Eight sheets of yellow paper covered with scribbling that contained almost none of the testimony that Tyler had just given, except for his insistence that the man who had committed the crime had worn a blue shirt. The actuality was easy to reconstruct. An elderly man had seen something dramatic, a murder. He’d seen a figure race away. He’d followed the crowd to 58 Barrow. When the cops dragged out a man wearing a red T-shirt, he’d called out, “That’s not the guy.” Somehow Freeland had located him, or he had drifted in to Freeland, and the original story had been fertilized by suggestion and encouragement and the desire to be important, and Freeland’s unprincipled ambition, until the current testimony had appeared, like a gross and noxious weed. Perjury.
“Mr. Tyler,” said Karp, “could you stand up and come down here where I am?” As Tyler did so, Karp continued, “Your Honor, could we have Mr. Tyler demonstrate for the jury how the man was running and how he turned his head?”
The judge assented.
“Mr. Tyler,” Karp continued, “now, this man you saw, was he running fast or slow?”
“He was running fast.”
“All right, could you do that, could you just run away from the jury box and show the jury how the man was running and how he turned his head?”
Tyler broke into a clumsy trot across the well of the court and, after a few steps, threw his head back over his shoulder, then continued on for a few more steps. It was a good demonstration that if a man is running away from you and he looks over his shoulder, you can’t see his full face.
Karp said, “Now could you tell us exactly how far this man was away from you when he turned his head?”
“Thirty feet. I said thirty feet.”
On his crutches Karp backed slowly away from Tyler. He stopped at the rail dividing the well from the spectators. “About here?”