Linda Fairstein - Cold Hit

I escaped the rest of the hot afternoon and evening by immersing myself in completing the court papers I had to submit on Monday morning. The case was an old arrest of Mercer’s, and my adversary had used his skills to challenge every aspect of the police procedures used in the investigation. The hearings we had just ended included the propriety of the arrest tactics, the legality of the search and seizure of evidence linking the perp-Reggie Bramwell-to the beating and rape of his estranged lover, and the admissibility of statements that Bramwell made to Mercer in the hours after he was taken into custody.

The case was pending in front of Harry Marklis, a jurist from the old school who didn’t get domestic abuse at all. My last pretrial motion was an effort to convince the judge to allow my victim, Mariana Catano, to testify to two earlier episodes that involved the same defendant. One was an attempted assault that he had pleaded guilty to a year before, and the other was a confrontation in which he had threatened to set fire to her so that she’d look ugly enough that no other man would want her.

I had argued myself blue in the face, but Marklis was clueless. “So, why didn’t she just leave him, Miss Cooper? What the hell’d she take him back for?” If I hadn’t been able to explain the complex dynamic of a relationship of battering to a justice of the Supreme Court of the State of New York, I could only imagine how the average juror would respond to the same issue. Yet over and over again, my colleagues and I would see the cycle of violence escalate in these cases, and attempt to understand the complicated panoply of emotional, familial, and economic binds that kept the partners in place.

Mercer Wallace joined me in my office at nine o’clock on Monday morning. He was keenly interested in the outcome of Mariana’s matter and wanted to hear my argument on this final pretrial issue. Marklis had directed our appearances for 10 a.m., although he was known for taking the bench late in the morning and quitting early in the afternoon.

“Anything develop last night?”

“Nope. Wasn’t able to reach Daughtry anywhere. Gallery’s closed on Sunday and Monday all through the summer, and his answering service just kept telling me they’d given him my message several times. Trying to get his home address so we can pay him a visit, but I’ll wait till you’re done upstairs. Allnighter?”

“Not too bad. I was home before midnight. Polished this off and started a rough draft of a warrant on the word processor, ready to go when you guys come up with something.”

“All work and no play…”

“Don’t go there, Mercer. You’re as bad as Mike.” I gathered up my file folders and motioned to him to move so we could head upstairs to Marklis’s court part. “I’m fine. Got stood up for the weekend ’cause this guy I’ve been seeing was sent out of town on assignment. But thanks for asking.”

The only people in Part 59 were the three court officers and Rich Velosi, the court clerk. I placed my files on the counsel table and asked if there was any word from the judge.

“Yeah, Ms. Konigsberg just called,” Rich answered, referring to the judge’s law secretary. “He’s working in chambers, she says, so he won’t get up here for another half hour.”

The court officers all laughed, knowing that “working in chambers” was just a euphemism for “The judge hasn’t arrived yet.” But neither had my adversary. “Prisoner produced?”

“He’s in the pens.”

Mercer began to schmooze with the officers while I reviewed my notes. From baseball they went to golf, from golf to the first pro football exhibition games, and from the games to the Bramwell case. “Y’think Cooper’s got a chance to get a decision on this motion before Labor Day?”

“Marklis make a decision? Listen, he’s got two toilets in the robing room and it usually takes him twenty minutes to figure out which one he wants to use. All depends on the troll factor.”

Mercer and I both smiled. The officers referred to the petite law secretary, Ilse Konigsberg, as “the Troll.” Whatever she whispered in Marklis’s ear was bound to be the law of the case.

It was exactly eleven twenty-eight on my watch when Marklis, short and stout, waddled through the door and took his seat at the bench as the clerk called us to order and asked everyone in the courtroom to rise. The defendant had been brought out from the pens minutes earlier, when his lawyer had entered the well.

“Good morning, gentlemen. Miss Cooper. Why don’t you all state your appearances for the record, and then we’ll get started.”

“Alexandra Cooper, for the People.” I spoke aloud and remained standing while the defense attorney, Danny Wistenson, spelled his name for the stenographer.

“It’s now nine thirty-five, and we’re going to resume argument in the Bramwell case.”

I glanced over my shoulder at Mercer and rolled my eyes in disgust. Marklis had long protected himself by making a phony record of the time of the proceedings. My colleagues and I had challenged him on any number of occasions, but I knew that if I tried it today, it would seal my fate in the argument I was about to make. His arrogant grin confirmed that he knew he had me.

“I have the papers you submitted in support of your Molineux application, Ms. Cooper. Do you have anything to add this morning?” It was clear that he was hoping I did not.

“I do, Your Honor.” I rose to my feet, but before I started to lay out the law that supported my position, Marklis went on.

“You know, evidence of a defendant’s prior crime can’t be admitted at a trial for the sole purpose of showing that he has the propensity to commit the crimes he’s now charged with.”

“I do know that, Judge Marklis.” He’d obviously done the minimum amount of homework necessary to get through this process. “But Molineux makes it quite clear that it’s admissible when it’s probative of his motive, his intent, and a common scheme or plan.

“In the instant case, Bramwell’s prior threats and assaults on Ms. Catano are ‘inextricably interwoven,’ using the language in the Vails opinion, and-”

“You got that cite, Counselor?” Marklis swung his chair around and pointed at Wistenson.

“It’s in Ms. Cooper’s brief, but I’d like to be heard on this, Your Honor.”

“I’m not finished, Judge.”

“Yeah, well, I’ve got about all I need on this point, dear.”

I turned away from the bench, steaming at Marklis’s laziness and choice of appellation. At some point during the argument, Chapman had slipped into the courtroom and joined Mercer in the front row on the far side of the rail. I read his lips as he mouthed to me, “I love it when you’re angry.”

As I walked toward the detectives, I asked over my shoulder, “Judge, may I have a few minutes?” and kept moving without waiting for a response.

“When you put your hands on your hips, blondie, it’s a dead giveaway. Temper, temper.”

The diminutive judge stepped down from his seat and walked over to whisper to Ms. Konigsberg. Chapman couldn’t resist another crack, looking at the huddle of two small figures, like conspiring Munchkins. “What’s going on, Coop? Looks like a wrap party for The Wizard of Oz. ”

“Don’t get me in any more trouble with Marklis. How come you’re down here so early?”

“Caxton played cute with the memorial service. Ten o’clock this morning. Invitation only-just a handful of friends, and Daughtry wasn’t among them. My guy inside says the husband wants to wait until the fall, when everyone is back from summer vacation, before he holds a real memorial. Wouldn’t want to slight all the artists and clients who couldn’t get here on short notice. But you better cut this exercise in futility short, ’cause we need some help.”