Robert Tanenbaum - Justice Denied

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?”

“No, farther than that.”

Karp opened the little gate and moved up the aisle. “Here?”

“Yeah, that’s good,” said Tyler.

Karp turned his back on the witness. “Mr. Tyler, can you see my back?”

“Yes.”

“Mr. Tyler, you see that I can’t run very well now, but I’m going to look over my right shoulder at you. Was this how the man on Hudson Street looked over his shoulder?”

“Yeah, like that.”

“Mr. Tyler, can you see my full face?”

A pause. “Well, it wasn’t just like that … he sort of stopped a little.”

“Answer the question,” said Martino.

“No, I can’t.”

“And it follows that on Hudson Street that day, you couldn’t really see the full face of the man you saw running away, isn’t that true?”

“Yes.”

“So what you actually saw that day was a portion of a man’s face at a distance of perhaps thirty feet for about one second, isn’t that true?”

Tyler agreed that it was.

Karp said, “Mr. Tyler, when Mr. Freeland first interviewed you, didn’t you say that you were forty-five feet away from the man when he turned?”

“No, thirty feet.”

“But Mr. Freeland’s notes, which I have here and which I now submit in evidence, state clearly forty-five feet. Is this the incredible shrinking distance?”

“Objection!” from Freeland.

“Withdrawn. Did you say you were forty-five feet away from the over-the-shoulder glance when you first spoke to Mr. Freeland?”

“Objection! These are personal notes. What I wrote down there may or may not be what Mr. Tyler told me, and they shouldn’t be used to cross-examine the witness.”

There was a moment of stunned silence, and the judge gave Freeland one of his long looks. “Mr. Freeland, are you stating that Mr. Tyler did not just testify to the same facts that he told you originally, or that you didn’t write down what he said then correctly?”

“Uh, no, Your Honor, I was not saying that.”

The judged turned to Tyler. “Answer the question.”

“It was thirty feet.”

Karp then questioned him about the cop who had purportedly interviewed him. Tyler couldn’t remember the cop’s name or give a convincing description of him, or explain why he hadn’t gone to the police, or the D.A. or a judge with his testimony. Karp dismissed the witness, feeling confident that he had creamed him pretty well. Freeland declined to recross, which was a good sign.

“Defense calls Geri Stone.”

It took Karp a moment to comprehend who Geri Stone was. When he did, he rose and said, “Offer of proof on this witness, Your Honor?”

Freeland said, “This witness was the defendant’s parole officer. She knows the defendant quite well and was in fact instrumental in obtaining his release from prison. She will testify as to the defendant’s propensity for committing this type of crime.”