Linda Fairstein - Likely To Die

Only two of my dozen colleagues scowled openly when I walked past them to the warden, who controlled the sequence of cases that were presented during the session. My presence in the waiting room, and my new assignment to a high-profile case, meant that I had come up to ask to be taken out of order and jumped over the line of grand larcenies and drug busts whose crews had been assembled for more than an hour.

“Relax, Gene. I’ll only be a minute. No witnesses. I’ve just got to open the investigation so we can start serving some subpoenas. I won’t hold you up.”

“Debbie’s got a five-year-old in her office down the hall. Father’s girlfriend scalded her with boiling water when she wouldn’t stop crying. She’s really a mess-”

“That goes first, obviously. I’ll just slip in after she’s finished.”

When the warden gave the signal that the jurors had a quorum, I phoned Debbie’s extension and suggested she bring the child down to testify. The badly scarred kid, her hair missing and her skull scorched on the left side of her head, clutched the hand of the prosecutor as she walked the gauntlet of lawyers, cops, and civilians. They paused together at the heavy wooden doorway of the jury room as Debbie looked the child in the eye to reassure her and ask if she were ready.

An affirmative nod was the reply and the door opened for Debbie to lead her by hand to the witness chair in the front of the room. The court stenographer brought up the rear. I had done it hundreds of times over the last decade-with women, men, adolescents, and children. I had seen the mouths of the twenty-three jurors drop open in gapes of horror, repelled by the damage one human being had inflicted on another. I recognized the traditional importance of the body and respected its power. But in addition, I understood how a manipulative district attorney could use the inherent imbalance of the process to his or her own end, so I also credited the more modern maxim that most prosecutors could indict a ham sandwich if they chose to do so.

The child was out after six minutes, having told her tale. Her father testified next, followed by the two police officers who had responded to the scene and made the arrest. A clean presentation-bare-bones, as we teach it-just the essential elements of the criminal act laid out by the assistant district attorney for the jurors. No need to try the case to them, as there is neither judge nor defense attorney nor defendant himself in attendance.

Debbie and the steno rejoined us in the waiting room so that the jurors could begin the process of deliberating and voting. The buzzer, which signaled their decision, rang within seconds. No one who saw the child doubted that a true bill had been returned-the defendant was indicted for attempted murder.

The warden waved me into the room. I walked to the front and placed my pad and Penal Law on the table provided.

“Good morning, ladies and gentlemen. My name is Alexandra Cooper. I’m an assistant district attorney and I’m here to open an investigation into the death of Gemma Dogen.”

So far, no bells went off. I was facing the jurors, who were arrayed in amphitheatrical fashion opposite my position. Two rows of ten sat in a double-tiered semicircle, capped by three seats at the top from which the foreman, his assistant, and the secretary ran the proceedings. As usual, they were still holding newspapers in their laps and chewing on the bagels and muffins they had smuggled in past the posted signs that cautioned that no food was allowed.

“I am not going to present any evidence to you today, but I will be back throughout your term on the same matter. I’d like to give you a code name by which I will refer to the case whenever I appear before you. I think that will help you remember it since you’ll be hearing so many different presentations. The code will be ‘ Mid-Manhattan Hospital.’ ”

Not as clever as some of our reminders but it had the virtue of clarity. Jurors began to sit up and look more attentive. Several whispered to their neighbors, obviously explaining that this must be the stabbing of that woman doctor they had heard about on the news and read in their papers. Brown bags with breakfast remains were crumpled and stowed under seats. Two men in the front row leaned forward and gave me a careful once-over, as though it might make a difference when I finally returned later in the month to offer them up a murderer.

“I would like to add a special reminder today. As some of you may be aware, there are accounts of Dr. Dogen’s death in the newspapers and on television. When you come upon those stories, I must direct younot to read or listen to them.”

Fat chance, I thought to myself as I said the words aloud. Now that they’re sitting on the case, most of them will be surfing the channels looking for coverage they would never have bothered with before.

“The only evidence you will be asked to consider in this case is the testimony of witnesses who appear here before you or documents that are properly qualified and submitted to you in this room. News accounts and opinions of your family and friends are not evidence. And of course, you must not discuss this case among yourselves.

“I’m going to leave some subpoenas here for the signature of the foreman, and I will be in again sometime next week. Thank you very much.” Unless the detectives had some lucky breaks in a day or two, it was unlikely that I would begin to present testimonial evidence until the time a suspect was targeted.

I was out of the room quickly and turned the jury back to my colleagues. “You coming to the party for Broderick tonight?” Gene asked as I swept by on my way back to my office. Another classmate was leaving the office for private practice.

“Yeah. I’ve got a lecture to do at seven-thirty, but I’ll swing by when I’m done, assuming this case doesn’t heat up.”

Laura met me at the foot of the staircase on the eighth floor and told me that Battaglia wanted me immediately.

I turned toward his wing instead of my own, and was admitted by the security officer on the desk.

“Hey, Rose, great suit. I love that color on you.”

“Good morning, Alex. Thanks. Just wait a few minutes ‘til he gets off the phone, then go right on in.”

Rose was turned to her side, pounding away at the word processor. I glanced over the mounds of correspondence on her desk, trying not to “do a Covington.” Rod Squires had often ridiculed one of the guys who used to work in the office, Davy Covington, who had taken the surreptitious reading of Battaglia’s mail to an art form. He used to stand opposite Rose, pretend to engage her in pleasant conversation, and scan the District Attorney’s letters upside down. Battaglia had caught him at his own game more than once. When Davy gossiped about a local congressman’s fraud investigation before the matter was even officially brought to the office, the District Attorney gave him some very warm references for another job about fifteen hundred miles away. The temptation to peek was overwhelming, but the penalty made it much easier to resist.

I picked up the day’sLaw Journal and skimmed the headline decision. The Court of Appeals’s reasoning on a ruling about a police officer’s search of an abandoned suitcase in Port Authority looked interesting and I made a note on my pad for Laura to clip the opinion for my files.

The familiar odor of a Monte Cristo No. 2 wafted out to announce that Battaglia was on his way to summon me into his office. It was one of the features that Rod and I most appreciated when the D.A. made his unexpected forays onto our end of the corridor. The inevitable cigar smoke and smell always preceded him by a few seconds, time enough for Rod to get his feet off the desk or for me to slip back into my shoes.