PART 35 (37 page)

Sandro walked over and faced the witness. He questioned her about the weather on the day of the shooting. She testified that it had been cloudy, but that the sun had come out once in a while.

Sandro introduced the official United States Weather Bureau report for July 3rd, 1967. There was no sunshine whatever, and the sky had been covered by maximum clouds the entire day. It had rained constantly from 11:30
A.M.
until 3:45
P.M.

Sandro looked up at the clock. It was now 3:40. He walked toward Sam at the counsel table. “Sam. In a few minutes, why don't you ask the judge for an early adjournment today. I want to go over to Stanton Street and get some pictures of the fire escape while there's still light.”

“Okay. Keep at it until about four, then I'll ask him.”

Sandro walked back to the jury box. He started on a tangent, asking Mrs. Salerno how she arrived at court that day. She said Detective Mullaly drove her. She said she did not know that she was to be a witness in this case until a few days ago. Detective Mullaly was the one who had come to her apartment and taken her to the D.A.'s office.

“May I see all counsel for a minute,” requested the judge. They approached the bench. “Come on, Sandro. You're fishing around with nothing. She said she saw your man. That's the real point, isn't it? Don't waste time with this stuff.”

“Your Honor, Sandro's not trying to waste your time. You know us better than that. We have to defend our client though. It's his life,” said Sam.

“I know it, I know it, and I love you like a brother,” Judge Porta said playfully, “but for justice's sake, let's get going. If you have some point, I'm not going to stop your questioning. You can question her until doomsday. But when I see you going nowhere, I've got to cut you short.”

“Your Honor,” said Sam, “we have some investigation to complete today. Do you think we can adjourn now? The investigation pertains to this witness.”

“Well, we're not accomplishing anything this way. Are you prepared to cut out this baloney and move along tomorrow?”

“Scout's honor, Judge.” Sam raised a three-fingered salute just high enough for the judge to see it, but shielded from the jury.

The judge looked at Sam skeptically.

Sam renewed his shielded three-finger salute.

“Sam, if this young whippersnapper doesn't get down to business tomorrow, you'll both be put on my sentencing calendar for the following morning.”

“I have a wife and family,” Sam protested.

“Six months of jail for you'll do them good.” The judge turned to the jury. “Ladies and gentlemen, the attorneys have requested an adjournment at this time to finish some work relating to the case on trial. I am inclined to grant their application. Tomorrow morning at ten, promptly. Do not discuss the case. Good afternoon.” The judge retired to his robing room.

Mike walked up to the counsel table.

“Mike,” Sandro said as he collected his papers, “do you remember if Soto said anything about Mrs. Salerno being at the station house?”

“He only said he saw the Italian girl and Asunta.”

“You mean the Italian woman.”

“No,” Mike said, taking his notebook from his pocket. “Here. He said Italian
girl.
” Mike handed the opened book to Sandro.

“Son of a gun! He
did
say Italian girl. And then it was Italian woman every time after that, after Mullaly straightened him out.”

“So?”

“So Mrs. Salerno is the Italian woman we should have been worrying about all along, the one who looked at Alvarado through the two-way mirror.”

“But she's Puerto Rican, Sandro,” Sam broke in. “Didn't you tell me that?”

“You're right, Sam. But she's Italian to Soto, just as she was to you. He kept calling her husband the Italian guy downstairs.”

“Sure,” Mike said. “And Mullaly was faking us out of our jocks about the woman across the yard. He got Soto to keep us worrying about her and not even thinking of Salerno's wife. I hope the next time I run into Soto, I'm in my car.”

“Now's your chance. We're going to Stanton Street for some pictures of that fire escape. Sam is going to pose.”

“To quote Mike,” Sam snorted, “this guy'll burn before I go back to that lousy neighborhood.”

CHAPTER VII

Sandro had called Jerry Ball's studio and found that he was out shooting and was not expected back before 5:30; by then, there would be too little daylight to take photographs in the rear yard. Sandro was holding his own camera as Mike Rivera knocked on the door of Apartment 1B, where Mrs. Santos used to live. It was also the apartment directly under the Salernos'. Sandro wanted to get out on the fire escape to take pictures of the view above.

The door eased open an inch. A man's eyes, watery and red, peered through the opening. Behind him, the apartment was black. Mike addressed the eyes in Spanish. There was a curt reply, and the door shut quickly.

“What did he say?” asked Sandro.

“He didn't want us to go in. He said if we wanted to go on the fire escape we could, but to go through the yard.”

“Wonder what's happening in there,” Sandro said.

Mike shrugged. “Something. Who cares? Let's go.”

Sandro climbed the ladder at the side of the one-story extension in the rear. He stepped carefully onto its roof. His eye level was now about five feet below Mrs. Salerno's window. He looked up to study the Soto fire escape and the steel slats that formed its platform. They were approximately two inches wide, with three-quarter-inch spaces between.

“If someone had been standing up there,” Sandro called softly down to Mike, “Mrs. Salerno would have had to look up at him through the bottom of the fire escape, through the steel slats.”

“She wouldn't even be able to see his face that way,” Mike gauged.

“Right. That's why Ellis had to have her testify that the man leaned over to look down at her.”

“That's great. Except if a burglar is looking down, sees her looking straight up at him, and then she disappears, would he stick around to wonder was she maybe calling the cops?”

“Of course not. It's illogical,” Sandro replied. “The story she told the cops the day of the shooting makes more sense. She saw the burglar, he didn't see her, and she didn't see his face.”

“Yeah, but how're you going to get around her saying that she did see this guy leaning over?” Mike asked.

Sandro studied the fire escape overhead. “You know, Mike, I'll bet that even if a man did look over the rail of that fire escape, the way Salerno said he did, she couldn't have recognized his face. Especially a very dark Negro.”

“Why not? It doesn't look that far away.”

“It's not. But from where you're standing, the angle is different. From here, looking straight up, there'd be nothing as a background but the sky. He'd be silhouetted. Like someone on a stage where all the light is in back of him.”

“Yeah,” Mike exclaimed, smiling. “How can you recognize a very dark Negro in silhouette?”

“Mike, go up to Soto's fire escape. Let's take some pictures before all the light is gone. First, I'll take you standing straight on the fire escape, through the slats. Then you bend over the rail and look right down into the camera. If we can't see your face, how could we see the face of a very dark Negro?”

Mike walked back to the alley and disappeared. Sandro waited, camera in hand, standing on the shed. He wondered what was going on inside the Santos apartment. Perhaps another crime was brewing, another defense would be needed. Mike whistled from above. He was on the fire escape.

As they drove uptown, Sandro wound the film and removed the exposed roll so that Jerry Ball could develop and enlarge the pictures for the morning.

“What street does Dr. Waxman live on?” Mike asked.

“Eighteenth. Three-oh-eight east.”

“He's expecting us, isn't he?”

“Yes,” Sandro replied, “he said this was about the only time he could see me.”

“Well, it's more than my wife can say. She doesn't get to see me at all. Which isn't so bad, now that I think of it.”

Mike drove to 18th Street and parked the car. They walked to the doctor's house, and Sandro rang the bell. A young man with a blond crew cut answered the door.

“Dr. Waxman?” Sandro asked.

The young man nodded. “You Mr. Luca? Come on in.”

The furniture was sparse, and there were many paperback books.

“Doctor, here's the medical report you made out at Bellevue in the early hours of July tenth, 1967.” Sandro handed the single sheet to Dr.Waxman. “Do you remember Alvarado? Can you tell me about that night—what Alvarado looked like, if he had any signs of a beating?”

The doctor shook his head. “There are so many cases in Bellevue. I don't remember this.” He read his report. “Apparently, I checked out what he was sent for, and I didn't find any bleeding or signs of bleeding.”

“How about the other things that were in Dr. Maish's original diagnosis? Clonic seizure, Cheyne-Stokes breathing, all the rest. Do they have anything to do with.internal bleeding?”

“No.”

“Did you check anything about his head, Doctor, any head X-rays, or EEG?”

“No, apparently not. We just checked out the internal bleeding. We were only for consultation. The doctor in the prison was in charge of the case.”

“In other words, the clonic seizure could exist, as it apparently did, even though there was no internal bleeding?” asked Sandro.

“Sure. The clonic movement or seizure has to do with a brain dysfunction. It hasn't anything to do with internal bleeding. It's like an epileptic fit. Lots of people have them and don't bleed.”

“And you didn't rule out the possibility that a physical beating caused the clonic movements and Cheyne-Stokes and whatever else there was?”

“I didn't get involved in that. I checked if he was bleeding internally. He wasn't. I couldn't tell you what caused the other things.”

“Let me ask it this way, Doctor: if you were called by the district attorney, could you say that the clonic movements and the rest were
not
caused by a beating?”

“I didn't get involved in that. I examined him specifically for one thing. That's all.”

“Fine. I guess I need a neurologist to give an expert opinion,” said Sandro.

“Can you wait about four years?” asked Dr. Waxman.

“In a word, no.” Sandro replied, smiling.

“Neither can I,” laughed Waxman.

CHAPTER VIII

Thursday, April 4th, 1968

“And in order for you to see this man,” asked Sandro, “the one you saw standing on the fire escape, Mrs. Salerno, you had to look up through the steel slats. Isn't that right?”

The defiant dark eyes bored into Sandro. “That's right,” she released through unmoving lips.

“I show you this photograph and ask you if you recognize what it depicts.” Sandro handed Mrs. Salerno the photograph of the Soto fire escape viewed from just below her window. “At the bottom of the picture is the window you were looking from, and in the background, at the top, is the fire escape you say the man was standing on, isn't that correct?”

She studied the picture carefully. “Yeah.” She didn't like giving Sandro yes answers.

“And it looks the same as the day when the man was there, doesn't it?”

“Well, those things weren't on the fire escape,” she said, pointing to the dark, round mass which appeared through the slats of steel.

“Well, other than these things being on the fire escape then, is this what it looked like?”

“Yeah.”

“I offer this into evidence, Your Honor,” said Sandro.

“Show it to Mr. Ellis.”

Ellis studied the photograph. “Your Honor, I have no objection to this being received in evidence, provided it is understood that whatever these things are that appear up on the fire escape, they were not present at the time.”

“On July third?” the judge inquired.

“Yes, sir.”

“May I see it, please?” the judge requested.

A court officer carried the picture to the judge. “Those dark objects which appear on the fire escape will be deemed deleted from the exhibit. Otherwise the district attorney has no objection. Received in evidence.”

“Defendants' exhibit G in evidence,” said the clerk.

The court stenographer marked the photograph and handed it back to Sandro. He walked to the end of the jury box and turned. Mrs. Salerno's eyes had never left him. It was as if she thought he would pounce on her if she let him out of her sight. Mrs. Santos must have told her of cruel tortures at the hands of the cross-examiners.

“Now, Mrs. Salerno, these things, these objects that you see on this photograph which weren't there on July third, can't you tell me what they are?” Sandro handed her the photograph.

“No, I can't,” she said with relish.

“If I told you the objects were the feet of a man standing on the fire escape, would you disagree with that?”

She looked at the photograph again. “That's what it looks like to me—a man.”

“Mrs. Salerno, didn't you testify a moment ago that you couldn't tell what the objects were up there.”

“I thought it was a man, but I didn't—”

“I move the answer, as far as it's gone, be stricken as not responsive, Your Honor,” Sandro said, turning to the bench.

“Strike it out.”

“Mrs. Salerno, didn't you say a moment ago you didn't know what these
things
were?”

“Yes, but I didn't say what was inside, you know.”

“I move the answer be stricken as not responsive, Your Honor.”

“Strike out everything except ‘yes.' Proceed.”

“May I show this photograph to the jury, Your Honor?”