The Ex (11 page)

“Okay, kicking puppies is starting to sound like a step up for this guy.” I asked Hannigan if I could get a copy of the deposition transcript, and he tapped a quick note into his phone.

“I still think we had a good lawsuit,” he said. “Neeley was the one who purchased the guns his son used at Penn Station. And he knew his son was seriously disturbed—arguably he even made him that way—and he actively blocked the mental health system from providing much-needed care.”

“So why’d the case get dismissed?” The media had reported the fact of the lawsuit’s dismissal, but not the reasoning behind it.

“I looked you up.
Columbia Law Review
. You can probably guess.”

“No proximate cause: Todd was responsible for his own actions. And if that’s the case, you’re suing Neeley for failing to stop his son, and there’s no duty to protect strangers.”

“You nailed it. We tried to argue that he and his son in concert were the cause, because his son couldn’t have acted without his father’s assistance. The judge didn’t buy it.”

I used his summary of the dismissal as a way to circle back to what I really wanted to know. “And just how angry did Jack seem about that?”

He inspected the last piece of bread crust in his hand, dropped it to his plate, and began pulling fresh napkins from the stainless steel holder. “People say things they don’t mean, Ms. Randall. You’re a criminal defense attorney. You know that.”

I pushed my final remaining pierogi away with my fork and braced myself for what was coming next. “What exactly did Jack say that he didn’t mean?”

“He said, ‘If there’s any justice in this world, Malcolm Neeley will find out exactly what it feels like to have some gun-happy madman ruin his life.’”

I closed my eyes. “Is that a direct quote?”

“Pretty close.”

“Why didn’t you just lead with that?”

“Because I wanted you to have some sense of why I didn’t read anything into it, and why I still don’t. In context, it was an extremely natural emotion to express.”

“And please tell me you were the only one to hear him express it.” Communications between Jack and Hannigan were covered by attorney-client privilege.

“There was one other plaintiff there.”

“Who was it?”

“Nope, can’t do that. But Jack will be able to tell you. And then I guess you’ll find out sooner or later if the police know about it, but it won’t come from me.”

“DON’T TAKE THIS THE WRONG
way, Olivia, but you literally smell good enough to devour.”

The words could have been stomach churning if they hadn’t come from Don, and if I wasn’t acutely aware of the scent of smoked meat that accompanied me into the conference room. “Gary Hannigan would only make time if it involved a Reuben from Veselka.”

“You’re killing me. Any luck with the brother’s former partner?”

“No, but I did bring back this.” I revealed the takeout bag I’d been holding behind my back.

“An angel,” he declared. “A goddamn angel.”

As he dug the supersize sandwich from its Styrofoam container, I perused the documents spread out across the table. “Any luck?”

“Possibly, at least enough for a few surprises.”

Today’s hearing wasn’t just about a bail determination. This was a high-profile case. Even worse, it fell into a pre-scripted narrative—from
VICTIM TO VIGILANTE
,
as the
Post
proclaimed. The odds of getting Jack released were close to zero, but the bail hearing might be our only shot to reframe the conversation before the entire jury pool made up its mind.

“Don’t suppose you came up with one clear theory that explains away all their evidence.”

“I’m good but I can’t make GSR disappear,” Don said.

Our best hope in the long run would be to argue that Jack had not gone to the precinct with Detective Boyle consensually. If the police arrested him without probable cause, we could suppress any evidence gathered at the station, including the GSR testing. But that motion wouldn’t be made for weeks, maybe months. More important, what we needed to do today was to raise real questions about whether the police had arrested an innocent man, not whether they had used the right procedures to catch a guilty one.

“It’s not a total lost cause,” Don said, setting down his sandwich. “We’ve got enough to make some waves.”

DON FED ME TALKING POINTS
like a ringside trainer calling jabs and hooks. “Stay on the theme of tunnel vision. The police admit they homed in on Jack the second they saw him on the video; they had him at the precinct within the hour. Hammer away at that. What have they been doing since? Did they even bother looking at other possible suspects? No. They haven’t had time. And then we start lining up all the other possible candidates.”

“The fifty-nine other named Penn Station plaintiffs,” I said, tick
ing off this first point on my thumb. I had to be careful about how I handled this point. I wanted the other families to support Jack publicly.

Don pushed one of several piles of paper toward me across the conference table. “And it turns out that the Penn Station lawsuit was only one of many disputes against Neeley, or at least against the Sentry Group. Eight SEC complaints against his hedge fund, some settled confidentially, a couple still pending. And here’s a real gift: a lawsuit filed by Red Pin Capital, demanding the return of its $72-million stake in the Sentry Group.”

“Sounds like something for the financial pages.” As a motive for murder, a corporate fight about money wouldn’t resonate in the same visceral way as revenge for a wife’s death. “Rich people sue, they don’t shoot.”

“Ah, but you’re missing the best part. The creator of Red Pin Capital is another little Wall Street asshole named Frederick Gruber. In addition to his Harvard MBA and an oceanfront estate in East Hampton, Mr. Gruber also has a wife, Marnie Gruber. Guess who Malcolm Neeley was sleeping with?”

“How’d you get this so fast?”

“It’s all there in black and white,” he said, tapping the table excitedly. “Look at the complaint. The basis for the lawsuit is that Gruber invested in Sentry by relying on his wife, an experienced and respected financier in her own right. Gruber claims Neeley and his wife hoodwinked him by concealing their affair and overstating Sentry’s performance when the fund was overextended and needed a fast cash influx.”

“This is amazing, Don. There’s no way the prosecution will know about this, not yet.” This man’s involvement in Neeley’s murder was a theory that might easily be debunked once investigated. Marnie could have reconciled with her husband by now. Gruber could have an alibi. Seventy-two million dollars might be chump change in that kind of world. But for today’s purposes, this was exactly the kind of evidence
we needed. We’d catch the prosecution by surprise and show both the judge and the media how much the police still didn’t know.

“You’re welcome,” Don said, snagging another bite of his lunch. “You should remember to point out that there are also two other victims, and that the prosecution is simply assuming that Neeley was the target.”

“What do we know about them?” The Jack versus Neeley angle had been so prominent in the press coverage that the other two victims were purely an afterthought. Clifton Hunter was described as an unemployed janitor, and Tracy Frankel as a part-time college student.

“Hunter’s forty-one but looked sixty. Multiple arrests and a few convictions, all for low-level stuff: public intoxication, shoplifting, a lot of criminal trespasses. Last known address was three years ago in Hoboken.”

“So he was homeless.” A homeless man wasn’t a likely target for murder, but the only point I needed to make was that the police probably hadn’t even bothered to check whether he was involved in something rough on the streets.

“That leaves Tracy Frankel,” Don said, “and she’s looking pretty interesting. Her only college experience was one class last semester at CUNY. Looks to me like it may have been for show. A few months before that, she got picked up trying to buy heroin from an undercover officer in Washington Square Park. She got diversion treatment for a first-time offense, and my guess is that enrolling in a college class helped. She dropped out once her case was dismissed.”

“Now how in the world did you find that out?” Education records were notoriously hard to access.

“I have a very grateful former client who works at the college.”

If this were a trial, I’d need admissible evidence. But at a bail hearing, I could argue anything as long as I had a good-faith basis for asserting it. This was good. Either Tracy or Clifton was just as likely to have been targeted as Malcolm Neeley.

“There’s one more person we might want to add to the list,” I said. “Max Neeley.”

“The son?”

“Todd’s older brother. He works at Sentry. Just the quick conversation I had with Hannigan made it sound like there were some major issues there. And if the hedge fund was having money problems—”

Don completed the thought. “The son might be eager to take over whatever was left of the family fortune.”

“I know, it’s a long shot.”

“We’ve had stranger theories pay off.”

Max Neeley had experienced his mother’s suicide, his younger brother’s mass murder and subsequent suicide, and now his father’s murder. But we would take him and use him however we needed. “Okay, so we’ll dig a little more on Max.”

There was a knock on the door. Einer popped his head in the conference room. “Hey, not to interrupt, but those plaintiffs are starting to show up. I’ve got them gathered in the lobby, but you’re probably going to want this room, right?”

Don threw his Styrofoam container in the trash and began stacking documents to clear the way for another group of people for us to use as pawns in Jack’s defense.

I
BARELY RECOGNIZED
Buckley when she met me in front of the courthouse in the navy wrap dress and modest black flats, as promised. Her messy strawberry blond hair was secured in a tidy ponytail at the nape of her neck. At my request, she came unaccompanied. If Charlotte were there, the judge would start asking her questions about whether she was willing and able to continue caring for Buckley while Jack was incarcerated pending trial, and nothing good could come of that—not only because her answers to both would be yes, but because she was Charlotte, meaning she’d undoubtedly piss the judge off.

When we got to Judge William Amador’s courtroom, Don was waiting on a bench in the hallway outside. “Well done rallying the troops.”

“Thanks.” It had been my idea to gather a group of Jack’s fellow plaintiffs at our firm as potential supporters. After our meeting, Don had escorted the willing participants to the courthouse, while I stayed behind until the last minute, preparing for argument.

“Where’s Dad?” Buckley asked as we walked into the courtroom, her wide eyes scanning the crowd.

“They’ll bring him in when his case is called.” I was doing my own survey. I recognized at least three reporters and nearly a dozen of the Penn Station plaintiffs. Don was right: it was a good turnout. “We’re not the only matter on the docket.”

After three other short hearings, the arraignment ADA, whom I recognized as Amy Chandler—probably six years in the office—called the matter, and an officer walked Jack into the courtroom in handcuffs and an orange jumpsuit. His eyes were downcast, and he walked with an arched back, almost shuffling. I had warned Buckley that her father would likely look bedraggled—I had actually used the word “bedraggled”—but she grabbed my hand and squeezed it as Don and I stood.

“Your dad’s stronger than you know,” I whispered, even though I’d never known Jack to be strong. She released her grip, but I gave it one last squeeze before leaving to take my place at counsel table.

Jack took the seat between Don and me. “Are you okay?” I asked. He just shrugged.

Before there was time for further discussion, the state was asking that Jack be held without bail, as expected. I was glad to see Chandler handling the arguments. On the one hand, the fact that Scott Temple hadn’t bothered to appear personally meant the state believed that a no-bail hold was guaranteed. But Temple was better than Chandler. I had a greater chance of reframing the issues with her on the other side of the aisle.

“This was an especially heinous and dangerous crime,” Chandler droned in a high-pitched monotone. There was a reason that Chandler was assigned to arraignments instead of jury trials. “The defendant not only premeditated the shooting of one victim, Malcolm Neeley, age fifty-seven, in cold blood, but also was willing to shoot two other people at random: Clifton Hunter, age forty-one, and Tracy Frankel, age twenty.”

I heard Jack suck in his breath at the mention of the final victim. He
turned to look at Buckley, who was staring straight ahead. Tracy Frankel was only a few years older than Jack’s own daughter. Don leaned over and told Jack not to show any reaction, but Jack was obviously shaken.

“Not only was the crime in this case especially cruel and calculating, Judge, but the People have a very strong case against the defendant. We have video of the defendant near the crime scene just before the shooting. The defendant had a long-standing vendetta against victim Malcolm Neeley—”

I half-rose in my seat—“Objection to the word ‘vendetta,’ Your Honor.”

Judge Amador waved me back down. “There’s no jury here, Ms. Randall. But, she’s correct, Ms. Chandler: Enough with the heinous and the calculating vendetta stuff. Facts pertaining to release, please.”

I’d made the objection only for the sake of the considerable number of reporters in the courtroom. I did not want to leave the impression that we were accepting the prevailing narrative about the reasons for this shooting.

“My point,” Chandler said, clearing her throat, “was pertaining to
motive
.” She went on to describe the fact that Jack was a named plaintiff in a wrongful death suit against Malcolm Neeley that had been dismissed less than a month ago. Of course, she did not mention the basis for the lawsuit, which would have reminded Judge Amador that Jack had been a sympathetic figure until yesterday. “We also have evidence showing the defendant’s obsession—”

I objected again. “Facts, please, ADA Chandler,” the judge snapped.

“The police seized an entire file cabinet of materials from the defendant’s house, all pertaining to victim Neeley. It would be a strong coincidence indeed that the defendant just happened to be feet from Mr. Neeley’s execution—I mean, fatal shooting. Physical evidence also links the defendant to the crime.” At this point, she was obviously reading from file notes, learning the facts for the first time
herself. “He was seen in close proximity to the shooting carrying a picnic basket—a basket that he was holding when he left his apartment, but no longer possessed when he returned home, according to footage from the elevator in his building. It is the People’s theory that this basket was used to conceal the murder weapon. Most important, the shirt the defendant was wearing just shortly after the murder tested positive for gunshot residue.”

Next to me, Jack began quietly protesting in my ear. “What? That’s got to be wrong.” He was looking over his shoulder again. It had been a mistake to bring his daughter. He was worried more about what Buckley thought than his own freedom.

I wrote, LATER, on my legal pad, while Chandler continued. “In short, this is a murder case involving multiple victims—first-degree murder—and a very strong case. The People request detention without bail.”

Chandler’s cut-and-dry approach was exactly what I’d been hoping for. Now it was my turn.

“Your Honor, I objected to Ms. Chandler’s rhetoric for a reason. She is trying to get you to stereotype this case—to make you, and most likely the public, think you already know what this case is about: yet another person with a long-harbored grudge who grabbed a gun to solve the problem. But she glossed over important details. What evidence did she actually present? That my client, Jack Harris, allegedly had a motive? She has told you nothing to suggest that Mr. Neeley was the intended target any more than the other two victims. Even after only one day, our independent investigation reveals that Mr. Hunter was transient and Ms. Frankel was involved in recent illegal drug activity. It’s at least as likely that one of them was the intended victim, rather than Malcolm Neeley.”

I heard murmurs in the gallery. The reporters, like the police, had been chasing down the connection between Jack and Neeley, not bothering to check out the other two victims. I continued my argument.
“The ADA emphasizes the lawsuit against one of the three victims, but fails to mention that my client was one of nearly sixty other plaintiffs who sued Malcolm Neeley for failing to supervise his minor son, who killed thirteen people in Penn Station three years ago.” I gestured toward the group of Penn Station families in the courtroom, several of whom either rose or waved. “If you are interested in hearing from them, Your Honor, one of these plaintiffs, Mr. Jonathan Weilly, will testify that, like my client, he was also within close proximity to the shooting yesterday morning, hitting practice balls at the golf range at Chelsea Piers before work. Another, Ms. Lila Condon, was two blocks east at a yoga studio. I have been asking the district attorney’s office for surveillance video from the morning of the shooting to establish that my client was blocks away from the football field at the time of the shooting, but they have failed to turn over any video footage.”

I have been asking
was a bit of an exaggeration, given that I had made the request only once, informally of Scott Temple, on the phone last night. But Scott wasn’t here to correct the impression.

“Save all that for trial, Ms. Randall, but I get your point. His mere presence at the waterfront does not overwhelm me, nor does this business about the picnic basket. Last time I checked, plenty of people find ways of carrying guns without using elaborate containers to disguise them. But what about the GSR evidence?”

This was where Chandler’s choice to go for a bare-bones presentation of the People’s evidence could pay off for Jack. “Several police officers appeared at Mr. Harris’s home, based solely on the fact that he was near the shooting location—just a few blocks from his apartment. I have seen no information about how many of those officers had recently fired their weapons, handled other weapons, or processed suspects who may have handled weapons. They also dragged him down to the precinct, where any number of people and items could have been sources of contamination. As you know, Your Honor, gunshot residue is just a matter of transfer.
If
my client’s shirt tested positive for GSR—
and I’m simply taking ADA Chandler at her word on that point—that is not proof he fired a gun. His shirt likely came in contact with residues from one of the many police officers who descended on his apartment without probable cause, or while he was in police custody. Importantly, no trace of residue was found on his hands.”

If this were a real trial, the state would be prepared to call each and every officer to exclude as a potential source of transfer. But, for now, I was confident that Chandler would have nothing to rebut my basic point that GSR evidence had its limitations.

“We have also learned,” I continued, “that Mr. Neeley was involved in far more combative litigation than the case my client shared with his fellow plaintiffs.” I heard more whispers as I launched into the fraud allegations against the Sentry Group based on Neeley’s affair with the wife of one of his principal investors. “And that wasn’t the only dispute about money. We are still investigating, but Mr. Neeley also had some contentious financial disagreements with members of his family that we are exploring. In sum, the People have no evidence. Moreover, ADA Chandler did not even discuss the most important factor for your consideration, Your Honor: whether my client is a flight risk. He is absolutely not. He is a widower. He is the sole parent to a sixteen-year-old daughter, Buckley Harris, whose mother was murdered in Penn Station. Neither he nor his daughter has ever lived outside New York. Mr. Harris writes for a living. His only money comes from book royalties, which he can only earn if his publisher knows where he is. He is in no position to go on the lam.”

Chandler sprang from her chair. “Your Honor, I object to this elitist argument. You mean an award-winning author should be shown favor over a regular workingman?”

“Ms. Chandler can throw around as much hyperbole as she wants, but she’s right about only one thing—this was a heinous crime, a triple homicide, committed only yesterday. If the People get a no-bail hold, they’ll be under the clock of New York law to seek an indictment.
They’ll rush the investigation, as they’ve already done, and as we’ve seen them do in other high-profile cases.”

“Your Honor,” Chandler said, “discussion of other cases is highly inappropriate.”

Perhaps, but Judge Amador had to remember that, just last year, the district attorney persuaded him to hold a defendant without bail based on preliminary information. Only after the man was brutally assaulted in jail did prosecutors discover evidence proving his innocence.

“What’s inappropriate is taking away a man’s liberty based on nothing but inflammatory rhetoric. And if that happens, Your Honor, my client will have to wait and wait and wait for his day in court, while he endures the hardship of custody, while he’s separated from his daughter, and while his daughter is forced to live without the only parent she has left.”

I wanted the reporters to remember that Jack was a real person—a widower and a father. “The sole consideration today is whether there is
some
set of circumstances to assure you my client will appear for trial. We know the charges are as serious as they come, but they can’t come in here with no concrete evidence and pull this two-person family apart. My client will do whatever is necessary to assuage any concerns you have: a gag order, turning over his passport, home confinement—”

“Electronic monitoring?” the judge asked.

I answered immediately, while we had momentum. “Absolutely.”

Chandler was up again. “Your Honor, this is ridiculous. It’s a triple homicide. This is a classic no-bail case.”

“And that’s the problem, Ms. Chandler. Someone sent you here thinking your job would be that easy. Do you have any other evidence to show that Mr. Harris is a flight risk, if he’s on twenty-four-hour home arrest with monitoring?”

Chandler was flipping through file pages to no avail.

“That’s what I thought. Mr. Harris, I have no idea whether you’re guilty or not, but the last time I checked, we have a presumption of
innocence in this country, and I don’t appreciate the way the prosecution tried to ignore that fact today. I am troubled that your lawyers seem to know more about the relevant evidence in this case than the prosecution.”

As the judge read a long list of the release conditions, even I could not believe what I was hearing. “Bail is set at one million dollars.” Charged with three counts of first-degree murder, Jack was going home.

DON WAS GIVING ME VERBAL
pats on the back as we stepped into the courthouse elevator. The doors were stopped by a last-minute hand, and a young man stepped forward to hold them open. He looked familiar, but I did not immediately place him.

“Is that how you plan to defend my father’s killer?” The spittle that flew from his lips with the “f” in father landed on my face, and I wiped it with the back of my sleeve. Now I recognized him. Max Neeley’s sandy blond hair was swept back the way he’d worn it for his photo on the Sentry Group website. “You can’t just drag a dead man through the mud that way. I’ll sue you for slander. Leave the fund out of this. That’s his legacy, don’t you get it? Sentry Group is all I have left.”

I was pushing the Door Close button, and the elevator alarm began to sound.