PART 35 (46 page)

The defendants were led from the bus and up the stoop of 153 Stanton Street. The stenographer and the clerk followed. The judge and the attorneys entered, and stood on the stairs leading to the second floor. Each of the jurors was allowed to enter the hallway, and walk back to stand at the spot where Mrs. Santos said she had stood when she saw Hernandez. A court officer stood on the steps where Hernandez was supposed to have been.

“Your Honor,” asked Ellis, “will you permit the jurors to move from side to side as they stand there?”

Neither Sam nor Sandro objected.

“Very well,” said the judge, “but they may not move forward.”

When all of the jurors had viewed the spot, the entourage made its way slowly up steps worn rounded by generations of immigrants, through the dim hallways, to the roof.

“Let the record reflect,” Judge Porta instructed the stenographer, “that all of the jurors are present upon the roof, approximately at its center, and are viewing the rooftop. To all intents and purposes, the roof appears to be in exactly the same condition as in the Police Department photographs taken July tenth, 1967. Is that correct, gentlemen?”

The lawyers nodded. The jurors were allowed to look, but no discussion or questions were permitted.

This odd procession made its way down to the street again, where the jurors lined up two by two in front of the building. The court officers led the way through an alley to the rear yards.

“That's where the Italian woman lives,” Sandro said, motioning with his head.

“You mean, the Italian woman who turned out not to be
the
Italian woman,” Sam corrected.

“Don't rub it in.”

Some of the jurors appeared surprised at the refuse and debris over which they had to walk. They stood next to the one-story extension and looked up, studying the building and the fire escape. Again, no discussion was allowed.

It was 12:15 by the time they had finished with the rear yard. Everyone was brought out to the street again, and they took their seats as before.

“Well,” the judge said, turning as the bus began to move away, “are you ready for a little lunch?”

Katz's capped the holiday mood. The judge pointed out the sign that said, “Send a Salami to your boy in the Army.” Many of the huge delicatessen's patrons looked up from the hot tea they were drinking out of water glasses to scrutinize this strangely assorted party. The busboys, hats firmly in place as they cleaned off the tables, barely gave a second glance.

Finally, the holiday mood still prevailing, the bus returned to the Criminal Courts Building. Judge Porta admonished the jurors not to discuss the case, and sent them home. The defendants once again returned to the Tombs.

CHAPTER XVI

Thursday, April 11 th, 1968

Ellis recalled Detective Mullaly. The jurors edged forward. The courtroom grew still.

“Now, Detective Mullaly, you were about to tell us of a statement Hernandez made to you. Will you tell the court and jury what, if anything, you said to the defendant Hernandez at that point and what, if anything, he said to you?”

“I said, ‘Now, you saw Crispin Lopez. Now, do you believe we have him?'

“He said, ‘Yeah.'

“I said, ‘Now, tell me again. Did you lend Lopez your car today?' He said, ‘Yeah.' And I said, ‘You're lying. You heard what Lopez said. He was at work. Now, tell me the truth. Tell me what happened today.'

“And he said, ‘Okay, okay. I'll tell you what happened. I didn't loan Crispin my car. I was in the car today. And I met a friend, named Luis.' And I asked him what Luis's name was, and he said he did not know.

“I said, ‘What time did you meet him?' He said, ‘About nine o'clock this morning.' I said, ‘Where did you meet him?' He said, ‘The Hotel Ascot.' I said, ‘Where is the Hotel Ascot?' He said, ‘That's at Allen and Delancey Street.'

“I said, ‘What did you do at the hotel?' He said, ‘I met Luis, and we went into the hotel, and we went into the bathroom. And we talked about going to steal. Then we left the bathroom, and we got into my car, and we drove uptown to El Barrio.'

“And I said, ‘What time was that that you were in El Barrio?' He said, ‘That was around eleven
A.M.'

“I said, ‘What did you do then?' He said, ‘We got back into the car and we drove around some more. And in the early afternoon I parked my car on my block, across the street, but near my house.'”

Sam Bemer rose. “Your Honor, I move that you explain to the jury that any alleged statement made by the defendant Hernandez can only be used as evidence against Hernandez. It is not evidence which can be used against Alvarado, and must not be considered by the jury as evidence against him.”

“Mr. Bemer's recitation of the law is quite correct, members of the jury. You may not consider this evidence against Hernandez in any way binding upon or affecting the defendant Alvarado. You may continue, Mr. Ellis.”

Ellis nodded to Mullaly. “Please continue, Detective Mullaly.”

“I said, ‘Go on. Then what happened?' He said, ‘We had decided to do a robbery in a building near my house.' I said, ‘What building?' He said, ‘I don't know the number, but it was the building a couple of doors away, across from the factory.'

“I said, ‘Then what happened?' He said, ‘We broke the door of an apartment on the top floor of that building.' I said, ‘What apartment was that?' He said, ‘I don't know the apartment number.'

“I said, ‘Why did you pick that apartment?' He said, ‘We picked that apartment because we thought that nobody was home in it.'

“Then I asked him how he got into the apartment. He said, ‘Luis used the jimmy on the door, and we both pressed on the door with the shoulders, and that's how we got into the apartment.'

“And then I said, ‘Then what happened?' He said, ‘We went into the apartment, and Luis took a TV set and a ladies pocketbook.' And I asked him what color the pocketbook was, and he said, ‘White.'

“And he said, ‘Luis gave me a small radio and the jimmy to take.' And I asked him what color the radio was, and he said it was red.

“Then I said, ‘Then what did you do?' And he said, ‘I carried the red radio and the jimmy. And we put the stuff on the roof. And then Luis went down the fire escape, from the roof, to get back into the apartment again.'

“I said, ‘Why did he go down the fire escape?' He said, ‘Because there was another television set near the window, in the apartment.'

“Then I said, ‘Then what happened?' He said, ‘Luis came back up the fire escape and said to me he couldn't get in the window because of the bars on the window.'

“Then he said that he and Luis lifted the TV set to the high wall, and Luis walked over to the back of the roof and looked down the fire escape and said to him, ‘The cops! The cops!'

“‘Then what happened?' I asked. He said, ‘I stood on the roof next to the TV set, and I saw the cop come over the roof, from the fire escape. And he had his hand out, with a gun in it. And I was afraid.' And he said, ‘Luis hid behind the stairway wall,' and he demonstrated a crouching position. And he said, ‘As the cop passed Luis and said to me, “Hold it, hold it,” Luis jumped on the cop from behind and put his left arm around his neck. And the cop fell forward and fell down.' And he said, ‘Luis grabbed the gun from the cop's hand, and he shot him in the back.'

“I said, ‘How many times did he shoot him?' He said, ‘I don't know, but it was many times.'

“So then what happened?' I asked. He said, ‘I was afraid. I cut out for my apartment. I ran over the roof, and I threw the jimmy away on the way over to the apartment.'

“Then Detectives Johnson and Jablonsky brought the television set, the red radio, and the white pocketbook that had been recovered from the roof of One fifty-three Stanton Street into the room. And Hernandez identified the property.

“Then I again asked Hernandez if he knew the last name of this Luis. He said he didn't know. I asked him where he lived. He said that he lived in Brooklyn. He thought it was on South Ninth Street because he had been up there about a week before at about three or four in the morning. He said he thought that he could point out the house to us.”

Mullaly testified that Hernandez's entire statement was made by 6
P.M.
After the police had the statement, they undertook an investigation of their files to find the last name of the person Hernandez called Luis. At approximately 9
P.M.
, the police discovered it was one Luis Alvarado for whom they were looking. A squad was then sent to the rooming house in Brooklyn where Hernandez had said Alvarado lived.

Ellis had the radio, the television set, and the other goods found on the Stanton Street roof brought into court. Mullaly identified them. He testified further that he saw Luis Alvarado for the first time about 1:30
A.M.
on the morning of July 4th, when he was brought in by Detective Johnson. Ellis turned the witness over to Siakos.

Siakos was now permitted to read beyond the first eight pages in the notes Mullaly made on July 4th, but only up to page 14. Beyond that page was the alleged confession made by Alvarado.

Mullaly repeated his testimony on Siakos's cross-examination with the same aplomb he had displayed earlier in the trial.

Mullaly was not only a relentless detective, Sandro thought watching him, but a superb witness as well. He might have been chosen to testify at the trial because of his ability to talk with a straight face.

Mullaly admitted that when he searched Hernandez at the station house he found ten or twelve pawn tickets. However, Mullaly said he no longer had them nor did he know who, if anyone, on the police force now had them. Mullaly said that he had looked at the pawn tickets when he obtained them, but that he had made no notes concerning them. He said Hernandez had no wallet.

Siakos started to attack vehemently. He questioned whether any investigation had been undertaken after Hernandez allegedly said he could point out the house where Luis lived. Mullaly testified that no one had been detailed to Brooklyn until 9
P.M.
, when the last name of the man Luis was known.

“Officer, you wanted to avoid a possible flight out of the state if this man Luis was the actual culprit, did you not?”

“It is possible, I don't know.”

“You say you don't know?”

“That's right, Counselor.”

Siakos studied Mullaly. He questioned Mullaly intensely about the time Hernandez's alleged statement had been obtained. Siakos suggested that it was not before 11
P.M.
Mullaly insisted the statement was obtained by 6
P.M.
Siakos turned the witness over to Alvarado's defense.

“He did nothing to him,” Sandro whispered.

“What did you expect, for Christ's sake? This guy is a great witness, and what is there to question him about. Let me try my luck.” Sam stood and walked toward the witness.

Sam showed Mullaly photographs which had previously been introduced into evidence. One, a police photo, showed that the broken door jamb of Soto's apartment was not in the place where Mullaly said he found it. Another was a photo which showed the window in the Chevrolet closed, not open as Mullaly said he found it. Sam was attempting to cast some doubt on the evidence that the police were relying upon. Perhaps small sticks, but enough small sticks might beat the prosecution down.

Sam showed Mullaly the picture previously identified by Loughlin, the engineer, showing the rear yard behind the Stanton Street buildings and the alley leading to Suffolk Street. Mullaly said that the yard had been different on July 3rd, that there had been a fence across that backyard, blocking the way to Suffolk Street. Sam walked over to the counsel table to shuffle his notes.

“What do you make of that?” Sam asked Sandro. “He just built a fence!”

“He's a liar. We'll prove it,” said Sandro. “Try and get something on that Brooklyn investigation. The time is still all up in the air.”

Mullaly testified that between 6 and 9
P.M.
, while Luis's last name was being searched out, nothing was done.

“There were many policemen working on this case, weren't there?” Sam asked.

“Yes, Counselor.”

“And there were many police personnel crowding the station house, waiting for assignment during the hours between six and nine
P.M.
?”

“Yes, I would say so.”

“That was the reason Hernandez was questioned in the third-floor locker room—the precinct was crowded, right?”

“Yes.”

“And not one of those unassigned men was sent to Brooklyn between six and nine
P.M.
—three hours—just on the chance that Hernandez could point out Alvarado's house?”

“No.”

“In Brooklyn there's a station house near South Ninth Street, isn't there?”

“Yes, Counselor. I think it's the Sixty-third Precinct.”

“Did you call the Sixty-third Precinct and ask them to go over to South Ninth Street and search for Alvarado?”

“No.”

“Were you saving the cost of the gas or telephone calls? Is that why nothing was done?”

“Objection,” said Ellis.

“Sustained.”

“Wasn't it actually that you didn't get any information from Hernandez until after nine or ten or even eleven
P.M.?”

“No, he gave the information by six
P.M.
We were investigating.”

“You had to work him over until nine o'clock before you got what you wanted, didn't you?”

“No. We never touched him, Counselor.”

Their eyes locked, as if looking down would show weakness.

“Aren't you just saying you got a statement by six o'clock so it won't look as if you gave him the third degree?”