On Tuesday, May 21, the day after Add Armstead’s testimony, Demakos presented six police witnesses in an effort to bolster his case.
Patrolman John Higgins was the first to testify. Speaking in soft measured tones, he told of responding to the lot, carrying Clifford Glover to his car, and rushing the boy to Mary Immaculate Hospital. Next, the prosecution called Eddie Anderson, who corroborated Higgins’s testimony.
“How long did it take you to get from 112th Road and New York Boulevard to the hospital?” Demakos asked.
“I’d say between ten and twelve minutes,” Anderson replied.
“Did you or your partner speak to the boy?”
“I spoke to him.”
“Did the boy speak back?”
“He did not.”
“Did any sounds come out of him?”
“He was groaning.”
Cops generally make good witnesses. Having appeared regularly at grand jury proceedings, evidentiary hearings, and trials, they understand legal jargon and are at home in court. For this reason, and perhaps also because they had promised Demakos their cooperation, the day went smoothly.
Following Anderson’s testimony, Patrolmen Ralph Panico and Francis Alvy took the stand and told of responding to the shooting site.
“Did there come a time,” Demakos asked Panico, “when you arrived in the vicinity of 112th Road and New York Boulevard?”
“Yes.”
“Did you see anything?”
“No.”
“What did you do?”
“We went to Dillon Street and started to pass Mathias.”
“Did you see anybody or anything at Dillon and Mathias?”
“Yes.”
“Who or what did you see?”
“There was a man standing in the middle of the street, waving.”
“Who was he waving at?”
“He was just waving,” Panico answered. “And he was shouting something like ‘shooting.’”
“Did you later learn who he was?” Demakos pressed.
“Yes.”
“Who?”
“Add Armstead.”
Francis Alvy, the prosecution’s next witness, explained that he and Panico passed Armstead by because they thought a brother officer was in danger.
Demakos did not quarrel with their motives. He had the testimony he wanted. Add Armstead had sought to flag down the first police car he saw after the shooting. It was hardly the act of a guilty man.
Following a break for lunch, Patrolman Thomas Scott was sworn as the day’s fifth witness. He told of responding to the lot with his partner, Al Farrell.
“We proceeded to the corner of Dillon and 112th Road, and then we observed a man coming down Dillon Street towards us.”
“Was he black or white?”
“Black.”
“Was he running, walking, what was he doing?”
“He was like walking fast towards us, waving his hands.”
“Show us how,” the prosecutor urged.
Scott raised both arms above his head and swept them back and forth in a huge arc.
“Like this. He was coming towards us to get our attention.”
“And what did you do?”
“We pulled the radio car up to him, and my partner and I both got out. I didn’t know who he was or anything like that, so I had my gun out. He was speaking very rapidly and excited.”
“And what did he say to you at that time?” Demakos pressed.
“He was speaking very fast, saying, ‘They’re shooting in the backyard. My son shot in the backyard.”
“Did he say anything to you with respect to where to go?”
“He just kept saying, ‘In the lot.’”
On cross-examination, Evseroff sought to negate the fact that Armstead had flagged down two police cars by reviving a collateral issue that had emerged during Armstead’s cross-examination.
“Patrolman Scott, you spoke with Mr. Armstead, did you not?”
“Yes.”
“You had a conversation with him in your police car going to the station house?”
“Right.”
“Did he tell you that, as he and his son were on the street, some-body stopped behind them?”
“Yes.”
“Did he say to you that he then turned around and there was a man with a gun?”
“Yes.”
“He told you that the man had a gun, that’s for sure?”
“Right.”
“I have no further questions.”
The last witness of the day was Al Farrell, whose testimony was largely duplicative of what had been said earlier. As the session wore on, Justice Dubin leaned back in his chair, sometimes following the testimony closely, sometimes giving the appearance of less-than-total attention.
The jurors’ eyes seldom left the witnesses. They were a captivated as well as a captive audience.
“That’s good,” Demakos told Gaudelli at day’s end. “I want that jury to listen carefully, so they understand what this case is all about.”
On Wednesday, May 22, the questioning of police witnesses resumed.
Sergeant Joseph Kennedy testified to arriving at the lot, sighting Shea, and walking with him to Clifford Glover’s body.
“What, if anything, did he say to you at that particular time?” Demakos asked.
“He told me he had to shoot someone back in the lot, that he and his partner were coming down New York Boulevard and observed two males fitting the description of a previous taxi robbery. When they got out of the car and identified themselves as police officers, the two males started running through the lot.”
“Continue,” Demakos instructed. “What else did he say?”
“Patrolman Shea said he was chasing them through the lot when one of them reached into his pocket and turned around with a gun. That’s when he fired.”
“Did you ask Shea if he recovered the gun?”
“Yes.”
“What did Shea say?”
“He said he didn’t recover the gun. He said that, when the one he shot fell, he tossed the gun to the other perpetrator.”
“He told you he tossed the gun to the other person?” Demakos pressed.
“Yes,” Kennedy answered.
“In that conversation, did Shea say anything to you about the boy saying, ‘Fuck you, you’re not taking me’?”
“I don’t recall such a statement.”
Demakos had elicited the testimony he wanted. Next, he called Sergeant Donald Bromberg to the stand and zeroed in on Bromberg’s interview with Shea at the station house shortly after the shooting.
“Tell us, what did Shea say to you in that conversation?”
“He stated that one of the men turned around, pulled a gun from his pocket, pointed it in his direction, and the officer fired. The second man bent down, took the gun from the first man who had fallen, and ran off.”
The contradiction in Shea’s statements was apparent. In talking with Kennedy, he had claimed that Glover “tossed” the gun to Armstead. Yet he told Bromberg that Armstead “bent down” to take it. Also, he had not told either man about Glover allegedly saying, “Fuck you, you’re not taking me.”
“Did Patrolman Shea tell you that one of these two people, Glover or Armstead, said to him, ‘You won’t take me’?”
“Not to my knowledge,” Bromberg answered.
“Do you have any recollection of it?”
“No.”
Rising to cross-examine the witness, Evseroff sensed the problem and decided to fire one of his big guns—the idea that Armstead would never have run in the first place if he hadn’t done something wrong.
“Sergeant Bromberg, did there come a time when you saw Add Armstead?”
“Yes sir, in the precinct station house at approximately 8:15 A.M.”
“Did you speak with him?”
“Yes.”
“Did he say that two white men jumped out of a car, and his son and he started to run?”
“Yes.”
“Isn’t it a fact,” Evseroff boomed, “that you didn’t ask him, nor did he tell you, why it was that he ran?”
The strategy backfired.
“He was frightened,” Bromberg answered. “That’s the impression he gave me.”
It had not been a good morning for the defense. And as lunch neared, the possibility existed that things would get much worse. The next scheduled witness was Patrolman James McArdle.
“I know him,” Shea told Evseroff. “He and I used to moonlight together as chauffeurs for the Carey Limousine Service.”
“What else do you know about him?”
“He’s in the Communications Division,” Shea said. “He works with tapes.”
At the close of Bromberg’s testimony, James McArdle took the stand. To Evseroff ‘s surprise, it was Gaudelli rather than Demakos who rose to question him.
“Officer McArdle, how long have you been a member of the New York City Police Department?”
“Sixteen and a half years.”
“And in April 1973, where were you assigned?”
“To the Communications Division as an audiotape technician.”
“What were your duties at that time?”
“To make reproductions and transcripts of calls that came in on our radio frequencies.”
“In the course of your duties, can you approximate how many reproductions you have made of official Police Department recordings?”
“About twenty-five hundred.”
With McArdle’s credentials as an “expert” established, Gaudelli shifted to the shooting date.
“Did there come a time, Officer, when you removed from Police Department records the 103rd Precinct radio transmissions which occurred between 11:00 P.M. on April 27, 1973, and 11:00 A.M. on April 28, 1973?”
“Yes.”
“And do you have that master tape with you?”
“Yes, I do.”
Shea shifted uneasily.
“I show you this tape recording,” Gaudelli continued, offering the witness one of two tightly wound reels resting on the stand in front of him. “And I ask if you recognize it.”
“This is a reproduction I made of the master tape beginning at four hours, four minutes, and ten seconds of April 28, 1973, and concluding at five hours and thirty minutes of that day. There is an electronic impulse imprinted on the tape every five seconds.”
“And the purpose of that is so, when the tape is replayed, you can tell the exact time of each radio transmission; is that correct?”
“That is correct.”
“After you made the reproduction,” Gaudelli continued, “what did you do with it?”
“It was delivered to the Queens County District Attorney’s Office.”
Gaudelli turned to the Judge. “At this time, Your Honor, I make an offer of the tape recording into evidence.”
Immediately Evseroff was on his feet.
“If Your Honor please, I respectfully object to the offer on grounds that it’s not relevant, it’s not material, and it’s prejudicial to the defendant.”
Gaudelli was quick to respond: “I submit to the Court that this matter is probative, relevant, and admissible.”
A heated colloquy followed. After both sides had voiced their views, Dubin turned to the jury.
“Go to lunch,” he said. “Don’t discuss this case, and don’t listen to any radio or read any newspaper reports about it. Come back at two o’clock. I’ll reserve decision until after lunch.”
The proceedings resumed at 2:00 P.M.
“The Court has gone over the tape transcript,” Dubin announced. “That part of the transcript which pertains to this case is admissible, but the court orders the redaction [editing out] of everything in the tape that has nothing to do with the case.”
“Your Honor,” Gaudelli said with obvious joy, “I would like to actually play the tape for the jury’s benefit. I have an audio technician here and, once we set up, he can operate the machine so as to only broadcast the admissible portion. If Your Honor will give me a moment or two, we’ll set up.”
“Let me ask a question,” Dubin responded. “In the interest of time, are there any other witnesses we can put on while he’s working on it?”
“I’ll put another witness on.” Demakos volunteered. “The defense calls Sergeant Thomas Donohue.”
Donohue’s recitation of events, including his post-shooting conversation with Shea and Walter Scott, added little to the previous two days’ testimony.
“Do you have another witness?” Dubin inquired when the questioning closed. “No, Your Honor,” Demakos answered. “I prefer that, before we put anybody else on, the tape be played.”
“You said that before; where is it?”
“It should be here shortly.”
The Judge shook his head, then turned to the jury.
“Ladies and Gentlemen, there will be a short recess until the tape is ready.” Forty-five minutes later, court was reconvened.
“I have some news,” Dubin announced. “Evidently it will be another hour before they get the tape in order. It’s after four now and, rather than keep you here doing nothing, we are going to adjourn. I don’t want to make a career of this trial, but I guess it’s one of those things. Have a nice evening. I’ll see you tomorrow morning at ten o’clock.”
As the day ended, Thomas Shea’s fate appeared to be dangling on a string. Or, to be more precise, on a reel of tape.
The following morning, Thursday, May 23, Patrolman James McArdle was recalled as a witness, and Gaudelli handed him a sheaf of papers.
“Officer McArdle, I show you this transcript and ask if you recognize it?”
“I do.”
“Is it a transcript containing all transmissions for April 28, 1973, concerning a shooting in the area of 112th Road and New York Boulevard?”
“Yes.”
“Do you have a tape of all the material contained in that transcript?”
“Yes.”
“And do you have that tape with you?”
“Yes.”
“At this time,” Gaudelli announced, turning toward Dubin, “I offer the tape and transcript into evidence.”
“Your Honor,” Evseroff interrupted, “may we approach the side bar?”
“All right,” the Judge answered, exasperation clearly present in his voice.
The two lawyers moved forward, and Dubin motioned for McArdle to join them. Speaking in hushed tones so the jury could not listen in, Evseroff pointed to a line on the transcript.
“This remark here isn’t relevant, and it’s clearly prejudicial.”
“Is this still on the tape?” Dubin demanded.
“Yes, it is,” McArdle told him.
“Well, it shouldn’t be. That’s got to be redacted.”
Evseroff breathed a sign of relief.
“If I’m going to have to redact this,” Gaudelli began, “I couldn’t do it. You should have ordered it yesterday.”
“Don’t tell me what I should have done. I’m not the DA on this case,” Dubin snapped. “If I were, I’d be down there prosecuting. Utter sheer nonsense. A nonsensical statement that was. We will have another witness.”
On that note, McArdle was temporarily banished and Captain Leonard Flanagan took the witness stand. Gaudelli led him through his chores as on-duty Captain for Queens on the day of the shooting, then focused on Flanagan’s conversation with Shea and Walter Scott.
“Upon arriving at the 103rd Precinct, did there come a time when you spoke with Officer Shea?”
“Yes.”
“Was anyone else present?”
“Patrolman Scott.”
“What did you say to Shea, and what did he say to you?”
“Well,” Flanagan began, “I told him I wanted more details, and he started telling me what happened. He said that him and Scott was in pursuit of two perpetrators. When they got to the beginning of the wooded area, Scott returned to his car, drove it around to 112th Road, and came into the area. I drew a rough diagram, and Shea indicated how they came in. I couldn’t figure out how Scott—”
“Your Honor,” Evseroff interrupted, “I move to strike anything which is the conclusion and operation of the witness’s mind.”
“I will allow the statement,” Dubin said.
“I asked them how they came in,” Flanagan continued. “And they drew a line on the diagram. I told them I didn’t see how it was possible that Scott could get around and be there the same time Shea was before Shea discharged the gun.”
“Tell us what Shea said,” Gaudelli pressed.
“Shea said the line they drew was not exactly the right line. It should have been more of a curved line that would give Scott time to get in there.”
“That line was supposed to indicate the path of the chase; is that correct?” Gaudelli asked.
“Yes.”
“And you didn’t think it was reasonable, did you?”
“No.”
“You didn’t think it was feasible that the two policemen could be where they said they were in terms of the line they drew; is that correct?”
“That’s right.”
At the close of Flanagan’s testimony, there was a brief recess. “Five minutes, not fifteen,” the Judge reminded everyone.
When court resumed, James McArdle took the stand for the third time, and the much-ballyhooed tape was played. Having been further edited, it seemed anti-climactic. The tape, Evseroff hoped, was now a dead issue.
After lunch, Inspector Robert Johnson and Assistant District Attorney Martin Bracken testified with regard to the interviews they had conducted with Shea and Scott on the day of the shooting. Evseroff’s cross-examination of both men was brief.
The session ended with Patrolman William Anthony, the 103rd Precinct station-house clerk, vouching for the authenticity of several clerical forms filled out by Shea on the morning of April 28, 1973.
“Not a bad day,” Evseroff remarked as the defense team filed out of court. “Flanagan was the only witness who hurt.”
“You know something,” Cahill said. “Leonard Flanagan will be a captain for a long time. The job is civil service, so they can’t take it away from him, and anything higher is by appointment based on merit.”
The prosecution was proceeding on schedule. Its first four “visual witnesses” had provided a map and photographs of the shooting site. Then Add Armstead testified to the shooting itself, after which a dozen cops and Martin Bracken had recounted their postshooting conversations with Thomas Shea.
On the morning of Friday, May 24, Demakos played his next few cards. Ten cops were called to the witness stand in an effort to prove that there had been no “black gun.”
Detective Richard Gray (who had been Sergeant Joseph Kennedy’s driver on April 28, 1973) testified that a brief search conducted by officers responding to Walter Scott’s “ten-thirteen” call for assistance had been futile. Patrolman John McCabe (Sergeant Thomas Donohue’s driver) stated that he saw no civilian in the vicinity of the lot who might have picked up the weapon. Detective Henry Sephton confirmed that a search of sewer catch basins in the area unearthed a metal starter’s pistol, nothing more. Patrolmen Edward Zajc and Thomas Brophy of Emergency Services testified that they arrived at the lot forty minutes after the shooting and searched for a weapon without success.
Captain Raymond Kenny of Emergency Services was the day’s sixth witness. He told of arriving at the lot at 1:30 P.M. and ordering the most thorough search possible.
“How many members of the Police Department were present and conducting the search at that time?” Gaudelli asked.
“About twenty.”
“Were any tools used?”
“We used rakes, shovels, and our hands.”
“And could you tell us the manner in which your men proceeded across the lot?”
“They were practically elbow to elbow,” Kenny answered.
Next, Captain John Curran of Emergency Services confirmed Kenny’s testimony.
“First we searched the vacant lot with rakes and shovels. Then we searched east and west on Dillon Street between 111th and 112th Road. We searched open areas, driveways, lawns, gutters, everything. We searched Mathias Avenue between Dillon and New York Boulevard. We searched Claude Avenue, which is the next block over; all in the same manner.”
“Was any weapon recovered?” Gaudelli asked.
“Not in the search that I conducted.”
Sergeants Edward Leighs, John Segreto, and Clarence Reichman (all of Emergency Services) told of similarly futile efforts. The impact of their testimony was clear. The policemen searching the lot had been doing their best to find a weapon and thus exonerate a brother officer of wrongdoing. Now the thoroughness of their efforts had backfired. More and more, it appeared as though there had been no gun.
Shortly after 3:00 P.M., the prosecution called Joseph McKeefery—the retired policeman who claimed to have found a black plastic pistol in a nearby lot on New York Boulevard one day after the shooting. Showing the toy to the jury, Demakos offered it into evidence. Under no circumstances could it have been the alleged black gun. It was not capable of firing (which Walter Scott claimed Armstead had done), and it had been found several blocks from the shooting site. Nonetheless, the prosecutor wanted the record to show that he had withheld nothing that remotely resembled exculpatory evidence.
The “weapon” (stamped “Auto Pop, Made in Hong Kong”) was passed from juror to juror, after which court was adjourned for the Memorial Day weekend.
“I wish you all a happy holiday,” Dubin said in parting. “Forget about this case; have fun. I’ll see you Tuesday.”
“You know something,” Cahill observed, turning to Shea when the jury had departed. “Most of these witnesses haven’t wanted to testify against you. They’d all be happier if they’d been off duty the day Clifford Glover was shot.”
“They aren’t the only ones,” Shea responded. “I wish I’d been off duty, too.” He paused to reflect on the week ahead, then turned to Evseroff. “Who do you think the prosecution will call next?”
“Your guess is as good as mine,” the lawyer answered.
The guessing game ended Monday night, when Cahill received a telephone call from Walter Scott.
“Bad news,” the cop reported. “I’ve been ordered by the Department to appear in court tomorrow morning.”
“I guess that means we’re still not finished with the tape,” Cahill said.