PART 35 (67 page)

“They said they stayed.”

Sandro nodded. “Ask Safi about the other cop, the one who didn't go up on the fire escape. Did he run? Did he walk? Or just what did he do when he left the yard?”

Mike asked, and they replied. Mike asked something more, surprised. They answered.

“He says Snider didn't go through the alley next to One fifty-three when he went through to the street! He apparently bolted, and ran behind two buildings, One fifty-three and One fifty-five Stanton Street, then ran to the street.”

“Are they sure?”

“That's what
I
asked them, and they said they were positive. Both of them said the same thing. Snider ran too far out of the way, and had to go all the way behind two buildings, around One fifty-five to the street.”

“Did they ever see the men who were supposed to have done this thing in their neighborhood, either that day, or some other day?”

“Never.”

“Thank them for me,” said Sandro. He turned back into the shop. Mike followed. Safi shut the platform door behind them. As Mike and Sandro were descending the stairs, Sandro turned.

“You know what this bit about Snider means, don't you, Mike?”

“If I'm reading you right, it means that it took Snider time to go the extra distance down to One fifty-five and then out to the street and then back to One fifty-three, and that's why he got up to the roof so much later than he should have.”

“That's it, Mike, exactly. That seems to kick that idea in the stomach for good.”

“I'll be a son of a bitch.”

“All that worrying, working, for nothing, Mike? You even have to give up on Mullaly with this. Mullaly couldn't very well be protecting Snider, if the only thing Snider did was to goof again.”

“We can still use it,” Mike exclaimed. “Mullaly's been around making it with Mrs. Hernandez, Snider doesn't even know where he ran the day of the murder. Why can't we put this guy and Mrs. Hernandez up to testify about these things? Okay, so it's not because Mullaly and Snider are involved in the killing, but because they're liars and fuck-ups. We can undermine the whole case, shake their credibility with the proof we have about them. The jury'll have to buy that.”

Sandro shook his head as they reached the front entrance and walked out to the street. “No, Mike. I agree, you've finally come up with the way to use this evidence against Mullaly and Snider. And we could still put it into the rebuttal. But I'm not going to use that evidence or these witnesses.”

“Why not? We've got them cold.”

“Mike, we're representing Alvarado, and whatever we do has to function around Alvarado.”

“Right, and this'll undermine Ellis's main witness, Mullaly, and also Snider.”

“It'll destroy them, all right, in their jobs, with their families. What will it do for Alvarado? What does the fact that—in addition to other things—Mullaly's been fooling around with Mrs. Hernandez do for our defense? What does the fact that Snider is dumb do for our defense? Snider hasn't even testified to anything that hurts Alvarado.”

“That's true, but it's one of those straws Sam is always talking about. Add it to the load, maybe it'll help.”

“If we haven't already done it with our alibi, our destruction of their eyewitnesses, the inconsistencies, then character assassination isn't going to help us. Why bother destroying two men, no better, no worse than the average, just for the sake of destroying them? One is dumb, the other's horny. Isn't everybody?”

“You think Mullay'd let up on you if he had you in his sights the way you've got him?” Mike asked.

“I don't base my decisions on what Mullaly might do, Mike. I'm doing what I think is right.”

“Couldn't we bang just Mullaly's ass around then, and leave Snider out?”

“Mike, Alvarado's life is on the line, not our pride. Or whether we look good or Mullaly looks bad on any given day.”

“Ah, you're a pain in the ass,” said Mike, as they walked to the car.

CHAPTER XXXIII

Wednesday, April 24th, 1968

Ellis started his rebuttal with Francis Connors, the stenotypist who recorded the statements taken by D.A. Brennan on July 4th, 1967. Tall, blond, and pockmarked, he sat on the witness chair watching Ellis shuffle through his notes. Connors described the persons present and their relative positions at the time the defendants' statements were taken. He testified that he had accurately transcribed the questions of the district attorney and the answers.

Sandro questioned Connors about what had taken place in the room when Alvarado said to the D.A., “See my hands from having cuffs.” Did Alvarado, he asked, display his hands? What, if anything, appeared on the wrists? Connors said there was nothing in the record. He didn't know.

Sandro asked Connors about the point where Alvarado referred to his chest and said that he couldn't hold it any longer. Connors was unable to say whether Alvarado had been holding his chest in pain. He admitted that it would appear in the transcript only if the D.A. had told him to record it. Sandro had no further questions.

Ellis next recalled Assistant D.A. Brennan to the stand. Brennan testified in answer to Ellis's questions that there had been no off-the-record conversations with either defendant before or while the statements were taken. Brennan said that Alvarado had shown him his wrists, but he had not seen any cuts or bruises. During the statement, he said, Alvarado had watery eyes, and he was sniffling. He also kept his arms crossed over his chest, and every once in a while would bend forward, then sit back. Ellis asked Brennan if, in his official capacity, he had ever had occasion to observe drug addicts in the throes of withdrawal. Sam objected to Brennan's expertise in diagnosing a medical symptom. The judge sustained the objection, but Ellis had already conveyed the idea to the jury.

“You know, Sam,” said Sandro, “I was just looking at these nude pictures of Alvarado taken at police headquarters, to see if we could actually get a look at the cut wrist.”

“We
know
his wrist was cut. We saw it the first time we talked to Alvarado in the Tombs,” said Sam. “Do you have any pictures that show it?”

“No. But, you know, when Siakos was examining Hernandez, about two weeks ago—must have been on his voir dire—I saw Ellis with some color pictures in his hand. He looked at them and put them back in his file.”

“You saw pictures that Ellis didn't give us?” asked Sam.

Sandro nodded. “I didn't even think of them until now. I'm going to ask about them.”

Siakos rose to cross-examine Brennan. Brennan said that the police had outlined to him the alleged confessions before he had taken the statements. He said, however, that he did not speak to the prisoners off the record at any time. Siakos asked Brennan if he had taken any notes while he spoke to the police. He said he had. Siakos was given the notes. He read them, and showed them to Sam and Sandro. The notes indicated that Brennan had been told that Hernandez had been interrogated intermittently by Mullaly, Tracy, Johnson, Jablonsky, Garcia, and others. No one had told Brennan, however, that pawnshop tickets had been taken from Hernandez, or that any goods had been found in the trunk of his car. Siakos had no further questions.

Sandro approached Brennan.

“Now, Mr. Brennan, you mentioned that Alvarado's eyes were watery and he was sniffling and holding his arms across his chest. Is that correct?”

“Yes.”

“Did you ever see anyone cry?”

“Yes.”

“And when you say his eyes were watery, were they similar to those of someone who had been crying?”

“No!”

Sandro hadn't really expected Brennan to cooperate.

“When you indicate they were different, in what way were his eyes different?”

“Well, he was sniffling and watery …”

“I am asking you about the eyes.”

“His eyes were watery, but the water was not running down. It wasn't running down his cheek.”

“No, but we are talking about the eyes. Were they watery in the same way they might have been had someone been crying, other than the fact that tears were not rolling down his cheeks?”

“Yes.” Brennan was angry.

“And, sir, at those times when you have observed people crying, have you ever observed any of them also sniffling?”

“Yes.”

“And have you ever observed simultaneous sniffling and crying?”

“Yes.”

“Very fine. Now, the arms folded across the chest, where were they folded? Do you recall?”

“Right here.” Brennan demonstrated.

“Around the middle of the chest?” Sandro asked.

“Yes.”

“Also called the epigastrium?”

Reluctantly he said, “Yes.”

Sandro just nodded.

“At this time, Your Honor, I am going to call upon the district attorney to turn over to defense counsel all photographs of these defendants,
in color
as well as in black and white. I have reason to believe that there are photographs available which have not as yet been shown to counsel.”

Ellis looked at Sandro, then at the judge.

“Do you have any photographs, black and white, or color, which you have not yet shown to counsel, Mr. Ellis?”

Ellis rose. He began to untie a string on his cardboard file portfolio. He reached inside and removed an envelope. There
were
color photos!

“I am turning five color photographs over to counsel,” said Ellis. He handed the pictures to Sandro.

“May we have a few moments to look at these, Your Honor?” asked Sandro.

“Yes. We'll take a short recess now while you look at those photographs. Do not discuss this case, members of the jury.”

“Look at these, Sam,” said Sandro. “Here's one of Alvarado that we can use.” It was a side view. Alvarado was naked, shown from just above the knee to the top of his head. “Look at his wrist. There's the laceration on it in living color.”

“And Ellis didn't even give us these before,” said Sam.

“He's just protecting his case. Part of the game, right, Sam?”

Sam grunted.

When court resumed, Brennan was still on the witness chair. Sandro offered the color photo of Alvarado into evidence. It was received without objection from Ellis, except that a small square of white paper was stapled to the picture to cover Alvarado's genitalia.

“Now, Mr. Brennan, I show you this exhibit, defendant's exhibit triple B, which the district attorney failed to turn over to counsel before, and—”

“Mr. Luca,” Judge Porta admonished, “no more speeches, please.”

“Very well, Your Honor,” Sandro returned his attention to the witness. “Do you recognize what this is a picture of?”

“Yes, of course. It's the defendant Alvarado.”

“What is that mark that appears on the right wrist, on the underside.”

Brennan studied the picture.

“Do you want the magnifying glass?” asked Sandro.

“No, that's not necessary. It looks like a scrape of some sort.”

“It looks more like a laceration, doesn't it, Mr. Brennan?”

“I'm not an expert on medical things, as you know.”

“Very well. May we show this photograph to the jury, Your Honor?”

“You may.”

“One further question. Do you recall seeing this mark now that you see the picture?”

“No.”

“I have no further questions.”

No one had further questions of Brennan. The court officer handed the photograph to the jury as Brennan walked toward the witness room.

Ellis next called William John Cesar, the Puerto Rican police buff who had interpreted for Hernandez and the district attorney when Hernandez made his formal statement to Brennan. Cesar testified to his education, his ability to speak Spanish, and the correctness of his translation. Ellis had no further questions.

Siakos stood to cross-examine. He gave Cesar a whole string of words from Hernandez's statement for translation into Spanish. Cesar responded, although not a juror, nor the judge, nor the other counsel knew what he was talking about. He was shaking his head, talking to himself in Spanish as he wrote.

After this Spanish lesson, the court was recessed for lunch.

Sandro brought the defendants two pastrami sandwiches on rye and two pieces of chocolate cake. They smiled happily as they unwrapped their delicacies.

In the afternoon, Ellis called Detective Lawrence Reilly, who testified that he had interviewed Mrs. Hernandez on July 3rd, 1967, in the Seventh Precinct station house. He testified that she had spoken English to him and had said to him that she last saw Hernandez when she had left him at home at 8:30
A.M.

On cross-examination, Reilly told Siakos that he had used no interpreter, since Mrs. Hernandez spoke English clearly.

“Now that's a lie, out and out,” Sandro whispered to Sam. “I've been with that woman plenty of times, and she couldn't communicate with me. I always had to have Mike as an interpreter, even for the simplest thing.”

Siakos had no further questions. There was nothing to question. It was only Reilly's oath of truth against Mrs. Hernandez's.

Ellis now called the name Angel Belmonte. The courtroom stirred. Hernandez watched Belmonte every step of the way up to the witness chair. Belmonte did not look at Hernandez. Ellis immediately started to develop Belmonte's criminal record, which was extensive.

Belmonte testified that he had
not
seen Hernandez at any time on July 3rd, 1967. He also testified that sometime after the shooting, in September, 1967, he had been arrested and, while detained in the Tombs, he met Hernandez, who then suggested that Belmonte be a favorable alibi witness for him in this trial. Belmonte said that he refused Hernandez because he didn't want to get caught in perjury and get five years. He said that Hernandez asked him to say that he, Hernandez, had been at Belmonte's home on July 3rd, at about 3
P.M.