The Cross: An Eddie Flynn Novella (14 page)

“Your Honor, in the wake of this incident, the police department undertook a full investigation, and a reminder bulletin was sent to every single officer, to reinforce their training, that choke holds should not be used under any circumstances. We do everything we can to prevent this type of incident. Unfortunately, we can’t be with every officer every minute of the day. We expect them to adhere to their orders.”

“Nothing further,” said Boles.

Some of the jury looked at each other and nodded. They were taking Johnson’s word. Boles saw it and immediately made a note. I was sure Boles thought he had it in the bag.

I suddenly became aware that this wasn’t exactly necessary. I could probably squeeze Boles for a million by dangling the video in front of him. That was the figure I was aiming for. This cross-examination was for Chilli, Maria, and the baby. They deserved it. Somebody had to ask these questions; it might as well be me.

“Deputy Commissioner Johnson, the jury heard you refer to the NYPD Patrol Guide. You said it’s a set of rules for all New York City police officers and that it bans choke holds, correct?”

“That is correct, Mr. Flynn.”

“I’m just going to read an excerpt from the guide. At section 203-11, about halfway down the page it reads, ‘Members of the New York City Police Department will NOT use choke holds. A choke hold shall include, but is not limited to, any pressure to the throat or windpipe that may prevent or hinder breathing or reduce intake of air.’ Is that correct?”

“That is correct.”

“Am I right in saying that there is no caveat to this rule? For example, it doesn’t say ‘You will not use choke holds unless your life is in danger.’ It doesn’t say that, does it?”

“No, it does not.”

“Under section 203-12, which deals with the use of deadly force, the Patrol Guide states that officers shall not fire a weapon at a fleeing felon if that person bears no imminent threat of causing death or serious harm to anyone else present, correct?”

“Yes.”

“So what would happen if one of your officers shot and killed an unarmed man who was fleeing the scene of a car accident?”

“They would be arrested, and a criminal investigation would commence. Within the department, they would be disciplined,” said Johnson.

“You mean kicked off the force?”

I thought Johnson caught a glimpse of the path I was leading him down and was beginning to struggle against the tide.

“That is one possible outcome. All of the circumstances would have to be taken into account before a decision was made.”

“Oh, so you can shoot an unarmed man, in breach of the Patrol Guide, and not get kicked off the force? Is that your testimony to this jury?”

“No, that’s not my testimony. All I’m saying is that the decision would need to be taken after examining all of the facts and circumstances.”

Despite all of his good work previously with Boles, Johnson was now beginning to sound like a politician—guarded and cautious answers without properly addressing the question at all.

“I’m afraid I don’t understand. The question is simple. If one of your officers breaks the rules and shoots a civilian, they don’t get punished or fired?”

“Again, everything—”

“I think you have your answer, Counselor,” said Judge Winter.

I had some ammunition from that exchange, but not as much as I would’ve liked.

“So if an officer breaches the Patrol Guide by strangling a member of the public until they are dead, surely that officer should be kicked off the force?”

“We take everything on a case-by-case basis.”

“We’re not talking about this case, or any other. I’m asking you plainly and simply, if an NYPD officer breaches the guide and chokes a suspect, should they lose their job?”

The jury looked tired of this song and dance. They wanted a straight answer. Johnson was smart enough to see this himself, so he gave one.

“In my opinion, yes. If an officer breaches the Patrol Guide and chokes a civilian, then they should lose their job.”

There are moments when the best thing you can do in court, as a lawyer, is to shut the hell up. Judge Winter put down his black pen, took up his red one, and wrote down Johnson’s answer. The pause became loud, and Johnson shifted in his seat, adjusted his jacket, and folded his fingers together.

“Deputy Commissioner, you receive regular figures in relation to complaints against officers from the Civilian Complaints Review Board, right?”

“Yes.”

“In the last five years, there have been more than a thousand choke hold complaints made to the Review Board. Is that correct?”

“I don’t have the exact figures, but it sounds about right.”

“The Review Board investigates those complaints, and they can decide to uphold or dismiss the complaint?”

“That is their role.”

“How many complaints has the board upheld in the last five years?”

“I don’t know for sure. Not many.”

“That’s correct. Ten complaints were found to be proven against the officers involved. Tell me, do you believe that the other eleven hundred or so complaints were false?”

“Objection,” said Boles. “This officer does not investigate those complaints. How would he know?”

“Your Honor, you don’t have to investigate a sewer to know that it stinks,” I said.

“Mr. Flynn makes a crude but important point. Mr. Boles, I have not come across these statistics before, and they may be relevant to your defense. I’m going to allow Mr. Flynn to continue.”

“Obliged, Your Honor. The question was, do you believe the other eleven hundred or so complaints were false?”

A roll of the eyes from the deputy commissioner. He hadn’t seen the train coming yet. In fact, he didn’t even realize he was strapping himself to the rails.

“No, but I’m sure that some were false. Probably a lot of those complaints didn’t have any independent evidence to back them up, so it would’ve been the officer’s word against the suspect’s. In that situation, the complainant would have failed to prove their case.”

“So you accept that in reality, the use of choke holds by New York City police officers is probably a lot higher than ten cases in five years?”

“It may well be.”

“Of those ten cases where the board found that the officer did place a civilian in a banned choke hold, how many of those officers lost their jobs?”

“I didn’t make any of those disciplinary decisions. All such matters are handled by the chief commissioner—”

“I didn’t ask you if you made the decision. I know that you didn’t. But I am also aware that you have knowledge of each of those cases as deputy commissioner. It’s a lot easier if you just answer the question and stop avoiding it. How many officers who breached the Patrol Guide, went against their training and choked civilians in New York City, lost their jobs? How many?”

The jury seemed to lean forward. Winter had lifted his red pen, ready to make a note that he would remember. Boles slid down into his seat and bowed his head.

Deputy Commissioner Johnson stared into space and said, “None.”

I put on a confused expression and flicked back a few pages in my notes. I leaned over and pretended to ask Jack to look at his notes of the testimony. Jack flipped over two pages of nervously scrawled doodles, and I pretended to read the testimony from Jack’s notes.

This was all a game. I knew the inconsistency. I’d worked hard to get it. It was all about delay—let the jury catch up; don’t ask anything else until every single juror was thinking the same thing.

“Correct me if I’m wrong, Deputy Commissioner, but didn’t you just testify that if one of your officers chokes a civilian, they should lose their job?”

Before I got halfway through that question, I could already see a number of jurors nodding in agreement.

“Each case has to be examined on its own merits by the commissioner.”

Another pause; the jury became agitated crossing their arms, shaking their heads.

“The jury heard your earlier answer, even if you won’t repeat it now.”

“Objection. Counsel is making a statement,” said Boles.

“I withdraw that,” I said. Time to wind it up. The train was coming.

“Am I correct in stating that some of those officers who were disciplined for choking simply had to go through a period of retraining, some suffered no sanctions whatsoever, and other officers suffered a loss of benefits?”

“Yes.”

“Of those ten proven complaints of choking, the highest sanction, in relation to removal of benefits, was loss of three days’ vacation time?”

Johnson looked at the ceiling, crossed his legs, and said, “Yes.”

“In relation to those ten complaints, what was the recommendation from the Review Board in relation to sanctions for those officers?”

“They recommended the highest form of sanction, which includes dismissal.”

“And of those ten recommendations, how many were followed by the NYPD?”

“None.”

“Were any reasons given by the commissioner for departing from the Review Board’s recommendations?”

“Not that I recall.”

“The complaint filed by Maria Hernandez against Detective Marzone has not yet been decided by the board, is that right?”

“Correct.”

“And if the board finds that the complaint is valid and they recommend disciplinary action against Detective Marzone, how many days’ vacation does he stand to lose?”

An arc of light danced around the side of Johnson’s head as he pumped his jaw muscle, grinding his teeth, making sure he didn’t open his mouth before his anger subsided. New York juries have a profound sense of injustice. They know when something isn’t right. When the people in power begin to abuse their privilege, most decent people can spot it a mile away. New Yorkers could smell it, taste it, feel it, drink it all in, and then spit out a goddamn fireball of retribution the size of Liberty Island. The people of this city knew what it
was to suffer—and they do not tolerate those who cause it. One juror pulled at his tie, popped his top button open, and looked as though he might leap over the jury stand and knock Johnson out cold. Two female jurors in the front row held hands and choked down their tears. Their glistening eyes flitted from Maria to Johnson.

The train was coming in.

I saw Johnson’s eyes widen. He was a smart man. And there was only one answer to my question—throw it back in my face.

“I take exception to that question, Mr. Flynn. You cannot compare minor disciplinary action for a breach of a rule to the death of a citizen. We take the unfortunate death of Mr. Hernandez very seriously, even if you don’t.”

In my mind, the train rolled over Johnson and he didn’t even notice.

“Thank you, Deputy Commissioner. The jury will remember that answer. The NYPD takes choke holds seriously only when someone dies.”

Boles rose in his seat as Johnson’s face plummeted, and their voices canceled out each other in a cacophony of noise that sprang from them, then the crowd. The judge hollered for quiet. I had one last question.

“Detective Marzone has admitted to choking Chilli Hernandez. He died in Marzone’s grip. Detective Marzone has not been fired, has he?”

“No.”

Slowly I walked back to the plaintiff’s table and sat beside Maria. Her hair was straight, and she sat up naturally, no death grip on the table, no quivering lips or tear streaks. She looked stronger than anyone I’d ever met.

“Did they tell you?” I asked.

Her face shined as she spoke.

“Yes. It’s a boy. I wanted to know today. He’s doing great. I’m gonna call him Chilli.”

Chapter Thirty

It had taken Boles a full half hour to calm the deputy commissioner and another half hour on the phone to the commissioner himself. He sat in the consultation booth like a man who’d just had his balls slapped.

“Eddie, you made a few good points. You know that. The city can see you made progress. But you haven’t even begun to establish any liability on Marzone. If the jury believes him, you’re done for. They can’t give your client damages unless you prove Marzone acted unlawfully. The point about the knife is interesting. Why didn’t Marzone get stuck with the knife he says Hernandez was holding? I don’t know. But you’ve got no evidence to challenge him. Only Roark and Marzone can tell the tale; no one else was there apart from Hernandez, and he’s not here to testify, unfortunately. But look, we see your client is in distress. We can do half a mil. That’s it. No negotiation. That’s my first and final offer. Take it to your client and get back to me.”

To make it absolutely clear there was no negotiating, Boles closed his files and stood, held out a hand to usher me from the room to go speak to my client.

I didn’t move.

“You gonna speak to your client? Half a million dollars is a lot of money.”

“No, it isn’t. Not for this,” I said. I reached under my chair for the gym bag, placed it on the table, and removed the camera.

It was only Boles and me in the room. He didn’t react much to the video. A couple of times he swept his finger across his top lip, but that was about all. When the film finished, he handed me back the camera.

“The half a million offer is off the table. Marzone killed that poor man. The city doesn’t have to pay a . . .” He said, and then suddenly fell silent.

“Why did you show this to me? It kills your case stone dead. What are doing?” he said.

“I’m doing you favor. And you’re right. This video proves your defense, but it gives me a whole new case against the city, one that I can’t lose. While Marzone strangled a man to death, the head of the Internal Affairs Bureau watched. He recorded the murder. He didn’t stop it. He didn’t interfere at all. He didn’t shout out for help. There was no call for backup. He didn’t even call a paramedic. Frost failed to perform the most basic of his primary duties, resulting in my client’s death.”

Silence. Boles racked his brains. Then he curled his lips and said, “I’ll make a call, see if I can up the offer to one million.”

“No. You’ll pay Maria five million. Then you’ll set up a trust fund for another five million dollars. A month from now, when all of this has died down, the NYPD will issue a press statement exonerating Chilli Hernandez and confirming that the police are reopening the investigation into Ed Genarro’s death. You’ve got fifteen minutes to make the call and confirm your authority for settlement. If we don’t have an agreement, I’ll file suit against Frost’s estate and the NYPD first thing in the morning, and the commissioner can watch this video on YouTube while he’s having his cereal. That’s
my
final offer.”