James Sheehan - The Law of Second Chances

“Before I call that witness, your honor, I would like to call the police officer who found the gun so we can establish a time line.”

“All right,” the judge said and spoke directly to the bailiff. “Bring the jury in.”

After the jurors were seated, Spencer rose from his place at the prosecution’s table and announced his next witness.

“The state calls Detective Joseph Fogarty, your honor.”

As the bailiff brought him in, Joe Fogarty avoided looking at Jack. Only when he took his seat in the witness chair did they make eye contact.

Spencer had Joe give his name, rank, precinct, and all the other preliminaries as quickly as possible. He was clearly anxious to get to the meat.

“Officer Fogarty, tell the jury what you did at approximately eight o’clock on Friday morning.”

“Well, I got a call at home about seven that morning from downtown. They told me they had received an anonymous call the night before. The person said he knew where the gun used in the Carl Robertson murder was located. He said the gun was in an abandoned building where Benny Avrile lived in the South Bronx, behind a loose brick in the wall. So they called me.”

“Is that all the person said?”

“As far as I know.” It was all hearsay, but Jack wasn’t going to object and give Spencer the opportunity to parade about five more cops into the courtroom.

“Why did downtown call you?”

“I’ve known Benny for about five years, maybe longer. We used him for information.”

“He was a snitch?” Spencer spat the words out.

“Yeah.”

“Did you know where he lived?”

“Yeah, I knew the building and that he was on the fifth floor.”

“So what did you do?”

“I immediately went up there and searched for the loose brick. It took me about fifteen minutes. I pulled the brick out and there was the gun.”

Jack was furious. He had felt in his bones that Spencer Taylor was holding something back. Now he knew what it was. Spencer spent the rest of his time establishing the chain of custody from the time Joe Fogarty picked the gun up until it appeared in court that morning. He offered the gun into evidence.

Jack was on his feet. “May we approach, your honor?”

“Come on,” the judge replied.

Jack was still so angry when he reached the judge’s dais that he could hardly speak.

“Judge, there is no evidence that this was the gun that was used in the murder,” Jack said. “Therefore, it should not be admissible.”

The judge didn’t even ask Spencer Taylor to comment.

“I agree with Mr. Tobin. At this point, there is no concrete evidence to establish that this gun is the murder weapon. You can try and do that with your next witness, Mr. Taylor.”

It was a small victory, but as he walked back to counsel table, Jack realized he had made a major mistake not objecting to Joe Fogarty’s testimony before the man said a word. He should have demanded that Fogarty also testify outside the jury’s presence. Now, even if he got the gun excluded as evidence, the jury had heard that a Glock 17 had been found where Benny lived. There was an old saying in the law: “You can’t unring a bell.” The jury could be instructed not to consider the evidence, but they had already heard it. Spencer Taylor had snookered him.

“Cross-examination, Mr. Tobin?” the judge asked when the lawyers had returned to their seats.

“Yes, your honor.” Before he stood, Jack glanced at Benny, who was staring straight ahead, expressionless. Then he turned to Luis, who was looking at the floor, shaking his head back and forth. Luis had predicted these last-minute tricks, and Jack had told him not to worry. Now Joe Fogarty had linked the gun and the bullet to Benny. Jack walked to the podium and faced Joe Fogarty.

Jack recalled the promise he had made to Joe as they sat on the stoop around the corner from the Carlow East. But that was before either one of them knew that Joe was going to be one of the star witnesses for the prosecution. So what was it going to be? Honor his promise to a man he didn’t know, or defend his client with every weapon he had? At that moment he also remembered that Frankie O’Connor had trusted him not to betray Joe.

Joe Fogarty was sitting on the witness stand rubbing his hands together nervously. Jack saw the look of fear in his eyes.

“Detective Fogarty, you said you knew the defendant, Benny Avrile, for five years or more, is that accurate?”

“Yes.”

“And he lived in a condemned building?”

“Yeah, that’s accurate.”

“And when you got information from him, did you pay him?”

“Sometimes.”

“Getting information like this is a part of law enforcement, isn’t it?”

“Yes.”

“An essential part?”

“I’d say, yes.”

“So Mr. Avrile was assisting law enforcement in a way?”

“Yes.”

“If you knew where Mr. Avrile lived, were there other people in the neighborhood who also knew?”

“I’m sure there were. It wasn’t a secret.”

“Did the place where the defendant lived have a door that you could lock?”

“No.”

“Anybody could get in there?”

“Sure.”

“Had you been up there before?”

“Yes. After Benny was arrested, I took a team of forensic people up there and we searched the place entirely. I didn’t know about the hiding spot behind the brick, though.”

“A few moments ago Mr. Taylor took you through the chain of custody from the time you picked this gun up until you brought it into this courtroom. Chain of custody is a procedure you follow in every case, isn’t it?”

“Yes.”

“And that is to ensure that evidence is not tampered with, stolen, or replaced, isn’t it?”

“Yes.”

“So you can walk into this courtroom and account to the jury for every moment that a piece of evidence has been in your custody, correct?”

“Correct.”

“And when a piece of evidence is collected, it is marked and entered into a logbook and placed in the property room or evidence room at the police department, correct?”

“Yes.”

“And the evidence room is guarded at all times?”

“Yes.”

“But this gun was in an open and unguarded room in a condemned building, correct?”

“Yes.”

“And there was no chain of custody before you retrieved it last Friday morning, correct?”

“That’s true.”

“Can you tell the jury as you sit here today whether it was there for a year or a day before you retrieved it?”

Spencer Taylor wanted to object, to throw Jack off his rhythm, but he couldn’t-he had no grounds.

“No, I can’t say how long it had been there,” Joe Fogarty replied.

“Now, the anonymous person who called the police on Thursday evening and told you where the gun was located obviously knew about the hiding place behind the brick, correct?”

“Yes.”

“Was the gun tested for fingerprints, do you know?”

“Yes, it was. Nothing came up.”

“Did the gun have any serial numbers so you could trace who purchased it?”

“No. The serial numbers had been filed off.”

“In the five years that you knew Mr. Avrile, did you ever see him with a gun?”

“No.”

“Do you know whether he owned a gun?”

“No.”

“Was he ever involved in any type of violence to your knowledge?”

“No.”

“You were the officer who arrested Mr. Avrile, correct?”

“That’s correct.”

“Did he resist in any way?”

“No.”

“Did he have a gun on him at the time?”

“No.”

This was the spot. Jack had the questions on the tip of his tongue. Did you tell Benny to clam up the day you arrested him? Did you tell him to clam up because you thought he was being railroaded because some big shot had been killed and the brass downtown needed a sacrificial lamb? Did you meet with me? Did you tell me the same thing? Joe was shifting again nervously in the witness chair.