When a good lawyer tries a case, his involvement is total. He eats it, thinks it, and wakes up in the middle of the night to jot down notes about it. While shaving in the morning, he is likely to stop in midstroke, his face lathered with shaving cream, to compose a paragraph for use in front of the jury. In court, even more is demanded of him. For sixty minutes an hour, he must concentrate on every question asked and every answer given. Then, when the day’s proceedings are done, he must prepare for the next set of witnesses to be called the following morning.
As the trial of Patrolman Thomas Shea entered its third week, Thomas Demakos and Albert Gaudelli were exhausted. Neither man had taken a day off since early May. Both had worked nightly until midnight. Now they were preparing for a major gamble—calling Shea’s partner, Walter Scott, as a witness for the prosecution.
Clearly, Scott would be uncooperative. Subsequent to the shooting, he had been unwilling to testify before the grand jury until given a grant of immunity. Then, when Demakos sought to discuss the case with him on the Saturday prior to trial, the cop had refused. In all probability, his courtroom testimony would back Shea to the hilt. Nonetheless, Demakos was determined that he be called to testify.
In part, the prosecutor’s resolve stemmed from his method of trying cases. He believed in putting everything before the jury.
“Scott says he was there,” Demakos told Gaudelli. “I’ll call anyone who claims he saw what happened.”
Then too, the prosecutor reasoned the jury might hold it against him if he failed to call Shea’s partner as a witness. It would look as though the DA’s office had something to hide. But most compelling, Demakos wanted to show Walter Scott up as a liar. He had read the cop’s prior testimony and thought he could break him in front of the jury.
On Tuesday, May 28, the trial resumed. Almost immediately, Demakos called Scott to the stand.
“Raise your right hand,” Court Clerk James Higgins instructed.
The witness complied.
“Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?”
“I do.”
Sitting at the counsel table with Cahill and Evseroff, Shea cast a worried look toward the jurors. There was no way to tell how they were leaning. Doubtless, many of them were aware that their names had appeared in the newspapers. They couldn’t be happy about that, especially the jurors with young children. Still, they remained inscrutable.
The ill will between Demakos and Scott was obvious from the start. After a few preliminary questions, the prosecutor got to the heart of the matter.
“Mr. Scott, were you on duty on April 28, 1973?”
“Yes.”
“What hours?”
“From 11:00 P.M. on April 27 to 8:00 A.M. on April 28.”
“Did you have a partner with you?”
“Yes sir.”
“Who?”
“Police Officer Thomas Shea.”
“Were you in an automobile?”
“Yes.”
“Were you the driver?”
“Yes.”
Glancing at the outline of questions he had prepared for the occasion, the prosecutor continued.
“Did there come a time on April 28, 1973, when you were proceeding up New York Boulevard approaching 112th Road and Mathias Avenue?”
“We were.”
“And as you approached 112th Road, did you see anything?”
“It was Mathias we were approaching,” Scott answered. “I observed two black males, one wearing a white floppy hat and a gold jacket and the other wearing a three-quarter-length brown coat.”
“What did you do as you made this observation?”
“I nudged Patrolman Shea, and I said to him, ‘There are the two guys from the taxicab stickup.’”
“What happened after that?” Demakos pressed.
“We made a U-turn and pulled up alongside. Patrolman Shea exited from the car and said, ‘Stop. Police.’”
“Did he have a gun in his hand?” Demakos asked, moving closer to the witness.
“I don’t believe so. I was getting out of the car at the same time.”
“Did you have your gun in your hand?” Demakos pressed, his voice growing louder.
“Yes sir.”
“If Your Honor please,” Evseroff interrupted, “I respectfully object to Mr. Demakos raising his voice to this witness, and I ask for a direction that the District Attorney be instructed to stand back from the witness while examining.”
“Keep your voice low,” Dubin ordered.
“All right, Judge,” the prosecutor answered. “I’ll try.”
Standing his ground directly in front of the witness, Demakos continued. “What happened after the defendant Shea said, ‘Stop. Police’?”
“The one in the white floppy hat and gold jacket yelled out, ‘Fuck you, you’re not going to take us.’ We started chasing them, and they ran south on New York Boulevard into the lot.”
“Then what happened?”
“As we were pursuing them, Tom yelled back to me, ‘Get the car and head them off.’“
“How many steps had you taken in pursuit?” Demakos queried.
“I don’t know. I wasn’t counting.”
“You took a few steps?” the prosecutor pressed. “That’s correct.”
“And then you ran back and got the car?”
“Correct. I got back in the car, and I started going around to 112th Road. Halfway up 112th Road, I got out of the car and ran into the lot.”
“What did you see when you ran into the lot?”
“I saw Armstead, Clifford Glover, and Police Officer Shea running.”
“Where was Shea?”
“He was behind them.”
“How far behind them?”
“Ten feet, maybe.”
Tension in the courtroom was reaching new heights.
“How far away were you from them?” Demakos pressed.
“Fifteen feet, maybe.”
“What happened then?”
“The one in the white hat made a turning motion and I heard shots.”
“How many?”
“Three.”
“What happened after you heard the shots?”
“The one in the white hat staggered forward with his hands outstretched, and the father took a gun from his left hand.”
“When did you first see the gun?” Demakos demanded.
The witness pushed both arms forward.
“When Clifford Glover went like this with it.”
The prosecutor nodded with satisfaction. First Shea had told Sergeant Joseph Kennedy that Clifford Glover “tossed” the gun to Armstead. Then Shea told Sergeant Donald Bromberg that Armstead had “bent down” to pick it up. Now Walter Scott was testifying that Clifford Glover reached out and handed the gun to his father. Three different versions of the same event.
“Will you describe the gun?” Demakos pressed.
“It was black metal.”
“Was it a revolver?”
“I believe it was.”
“How far away from the father were you at the time he took the gun from the boy?”
“About ten feet.”
“What happened after that?”
“I started pursuing the father.”
“Where?”
“He ran north around a fence and two big trees. There’s an incline there, and he turned and fired at me.”
“Did you have your gun out at that time?”
“Yes sir.”
Breaking off his questions, Demakos reached for the map drawn by Patrolman Charles Fox and placed it on an easel in front of the jurors.
“Would you step down here, please,” he asked the witness, “and indicate to the jury the route the father took as you pursued him?”
Scott complied, sketching a narrow line on the exhibit. Then Demakos resumed his interrogation.
“How far behind Armstead were you when he fired at you?”
“About fifteen feet.”
“What did you do?”
“I returned fire.”
“Then what happened?”
“He was fleeing again.”
“And what did you do?”
“I turned around and went back to 112th Road.”
“You ran back to your car?” Demakos asked incredulously.
“That’s correct.”
“How far in front of you was he?”
“Maybe twenty feet.”
The scorn in the prosecutor’s voice was obvious.
“Although you were only twenty feet behind Armstead, you ran all the way back to your car parked on 112th Road?”
“Yes.”
“Then what happened?” Demakos asked, still shaking his head.
“I drove it around to Dillon Street, got out, and looked around for Armstead.”
“Did you see anything?”
“No sir.”
Walter Scott was sticking to his story, but Demakos had elicited the testimony he wanted. It was Scott’s claim that, after chasing Armstead and Glover for several yards, he had run back to his car, driven 340 feet around the block to 112th Road, jumped out of the car, and run 130 feet more into the lot in time to see Clifford Glover make a turning motion toward Thomas Shea. Moreover, Scott’s story rested on the claim that Armstead and Glover had run so slowly as to enable the cop to drive around the block, run into the lot, and witness the shooting, but that Armstead had thereafter run so swiftly as to elude capture.
“What did you do after Armstead got away?” the prosecutor asked.
“I started back toward Patrolman Shea.”
“Where was he when you saw him again?”
“In back by the fence where the kid was.”
Once again, Demakos edged toward the critical portion of the tape, which he had been unable to play for the jury.
“Did the boy say anything to you?”
“Yes sir.”
“Were you standing over him?”
“I believe I was.”
“And the boy said?”
“He said, ‘Don’t shoot; don’t shoot.’”
“Did you say anything in return?”
“No sir.”
“Did you curse at him?”
“I did not.”
“Did you tell him—”
“Your Honor,” Evseroff roared, drowning out the prosecutor’s words. “This is the highest form of prosecutorial misconduct. I am trying to defend a client with the grossest type of prejudice.”
“You don’t have to yell and scream like that,” Dubin admonished. “It’s uncalled for.”
“If Your Honor please,” Evseroff persisted. “I object to him saying anything further about this in the presence of the jury.”
“Judge,” Demakos interrupted, “I’m going to request that the tape be played here with this witness on the stand to determine whether or not he said a few things.”
“I object to that proposed practice,” Evseroff shouted, his face red with anger.
Once again, Justice Dubin deferred decision.
“We’re not going to do it now. It’s a quarter to five, and I’m going to adjourn. I will decide tomorrow.”
The jury was excused. Then Dubin admonished the lawyers before him.
“Now both of you, listen. One thing I want in this court is an orderly trial. I don’t want any yelling or screaming. I don’t want any play-acting. I don’t want any histrionics. And I don’t want to be in a position where I have to yell to make myself heard. Is that understood?”
Both sides responded in the affirmative. On that note the day ended.
At the start of proceedings on Wednesday, May 28, Demakos renewed his request.
“Your Honor, my application is to bring the tape into the courtroom and play it as I am questioning the witness Scott.”
“If Your Honor please,” Evseroff entreated, “I move at this time on behalf of Patrolman Thomas Shea that the District Attorney be precluded from asking any further questions of the witness with respect to the tape. In the posture of this case, I’m hard pressed to see anything more prejudicial to the defendant. It’s collateral, it’s irrelevant, it’s immaterial, and it’s highly prejudicial.”
Dubin threw his hands in the air. “The Court has heard the same arguments before. The District Attorney has a right to test the witness’s credibility. I will allow the tape.”
When the jurors were seated, Demakos recalled Walter Scott to the stand. Then, focusing his questions on the spot where Clifford Glover had fallen, the prosecutor began. “Where was it that you saw the boy stagger after you heard the three shots?”
Scott pointed to a spot on the Fox map, indicating a location in the middle of the lot.
“Did you go by the boy when you chased the father?”
“I imagine I would have.”
“The jury doesn’t want your imagination,” Demakos snapped. “Did you see the boy when you ran after the father?”
“No.”
“There came a time when you were standing over the boy; is that correct?”
“Yes.”
“And where was the defendant Shea at that time?”
“He had gone out to get some help on New York Boulevard.”
“So there were no other police officers at the scene near the boy except yourself; is that correct?”
“I can’t answer that question.”
Scott’s evasiveness was futile.
“You testified that the defendant Shea went out to get help,” Demakos persisted. “Is that correct?”
“That’s correct.”
“If there were police officers standing with you, why would the defendant Shea go out for help?”
Evseroff objected to the question as “argumentative,” but Demakos had proved his point. Walter Scott had stood alone over the body of Clifford Glover.
The crucial moment was now at hand.
“Judge,” Demakos urged, “I request that the tape be set up.”
“All right,” Dubin told him. “I will allow it.”
On signal from Demakos, Albert Gaudelli distributed a new transcript to each juror. Then the tape was played.
“Ten-thirteen,” the jurors heard Walter Scott cry. “112th and New York Boulevard.”
“Ten-thirteen,” the dispatcher sounded. “112th and New York Boulevard; 112th and New York Boulevard. Ten-thirteen.”
“Three Charlie on the way,” a radio car responded.
The jurors pulled closer.
“We got one of the two guys from the taxicab robbery,” Scott said.
“What is your location now?” the dispatcher asked.
“Back street on Dillon, the garage.”
“Central,” a police team radioed forty seconds later, “where’s the unit for the ten-thirteen?”
“Anticrime,” the dispatcher asked, “what’s your location on that ten-thirteen?”
“The backyard.”
“Location? What address?”
“We’re on Dillon Street,” Scott shouted.
“We just passed there,” another car called. “We don’t see nothing.”
“The backyard,” Scott cried. “Come over to Dillon Street. You’ll see a green Javelin or something.”
The time was four minutes and forty-five seconds past 5:00 A.M. on the morning of April 28, 1973. Walter Scott was standing over the body of a mortally wounded ten-year-old boy.
The jurors listened intently.
“Die, you little fuck,” Scott said.
When the furor subsided, Evseroff rose to examine the witness. Somehow, despite what the jury had just heard, he had to rehabilitate Scott as a credible figure.
“Patrolman Scott,” the defense attorney began, “how old are you?”
“Twenty-six.”
“Are you married or single?”
“Married.”
“Do you have any children?”
“Yes sir, I have a baby.”
“How old?”
“One month.”
Nothing could be gained by further delay. The tape had to be confronted directly. The colloquy about to occur had been rehearsed several times.
“Patrolman Scott, there came a time, did there not, when certain things were played for you—this tape you heard just now?”
“Yes sir.”
“Isn’t it a fact that, on the morning of the occurrence, you were not the only policeman in Queens with a walkie-talkie?”
“That’s correct.”
“Were there other units transmitting?”
“Yes sir.”
“For instance,” the attorney continued, “you will observe something on the transcript which says, ‘We are responding to 112th and New York Boulevard.’ That wasn’t you talking, was it?”
“No sir.”
“Would you say that this was some other police officer making that communication on a walkie-talkie?”
“A walkie-talkie or a car radio.”
The big denial was at hand.
“Was that your voice, the epithet that was hurled?”
“No sir,” Scott answered softly.
“Did you hear that on the tape?”
“Yes sir.”
“Was that you speaking?”
“No.”
For the first time since the trial began, open disbelief registered on the faces of several jurors. They had heard the tape. The voice was Scott’s. Evseroff, who had done the best he could, paused briefly, then moved on, asking the witness to recount his sessions with Inspector Robert Johnson, Assistant DA Martin Bracken, and the Queens County grand jury. In each instance, the attorney pushed the notion that, unlike Armstead, Walter Scott had never changed his story.
“Did there come a time,” Evseroff pressed, “when you went to the District Attorney’s office?”
“Yes sir.”
“Who questioned you?”
“Mr. Gaudelli.”
“Would you tell us what happened in the course of that interrogation?”
“Yes sir,” Scott answered. “Mr. Gaudelli told me that, if I didn’t tell them what they wanted to hear, they were going to fire me and seek an indictment against me for perjury and hinderance of prosecution.”
“Did you change your story?”
“No sir, I did not.”
Walter Scott—the honorable man who stood firm in the face of overwhelming pressure. Others, Evseroff wanted the jury to believe, were not so principled. As proof thereof, the attorney next raised the issue of community pressure as the motivating force behind Shea’s indictment.
“Did there come a time on April 28, 1973, when you saw some members of the community at the 103rd Precinct station house?”
“Yes sir,” Scott answered.
“How many?”
“About three or four.”
“Were these civilians?”
“Yes.”
“What did you observe with respect to these people?”
“One of them came out of a meeting with the superior officers and said, ‘If something isn’t done about this, Jamaica is going to burn.’”
The attorney paused to let the answer sink in.
“Was it thereafter that Patrolman Shea was placed under arrest?” he finally asked.
“I believe it was.”
Two additional points for the defense followed. The first, that Shea and Scott had not known Clifford Glover was a ten-year-old boy. The second, that Shea and Scott genuinely believed they were apprehending two taxicab robbers.
“A description had come over the radio with respect to the clothing of two perpetrators of a taxicab stickup; is that correct?”
“Yes sir.”
“Is it a fact that the transmission indicated one of the two was wearing a white hat?”
“Yes sir.”
“And was Clifford Glover wearing a white hat?”
“He was.”
“Did the transmission indicate that the other perpetrator was wearing a brown three-quarter-length jacket?”
“Yes sir.”
“And was Armstead wearing such a jacket?”
“Yes sir.”
“Did you believe that these two were the perpetrators of that stickup?”
“Yes sir.”
“Was it your intention to take them into custody?”
“Yes.”
Evseroff was now ready to pose the question which, to his way of thinking, epitomized the entire case.
“Patrolman Scott, were you doing your job as a policeman?”
“Yes sir, I was.”
“I have no further questions.”
Quickly Demakos was on his feet.
“If Your Honor please, I have several additional inquiries.”
“Go ahead,” Dubin instructed.
His voice dripping with contempt, Demakos approached the witness. “Mr. Scott, you are a trained police officer; is that correct?”
“I believe so,” Scott answered.
“And as a trained police officer, are you required to note the height of possible perpetrators?”
“Yes.”
“And as a trained police officer, are you required to note the ages of possible perpetrators?”
“Yes.”
“And as a trained police officer, are you required to note the weight of possible perpetrators?”
“Yes.”
As Evseroff had done several times earlier in the day, the prosecutor paused for effect.
“You are a trained police officer, are you not?”
“I’m still a human being,” Scott answered.
“So you are,” Demakos murmured. “I have no further questions.”
The testimony of Walter Scott had come to an end. Moments later, the jury was excused until 2:00 P.M.
“We picked up points,” Demakos told Gaudelli as the two men gathered their papers prior to lunch. “Scott’s testimony is crucial to Shea’s defense, and we made a liar out of him.”
“Does the jury know that?” Gaudelli asked.
“I think so. They heard the tape. I’m just sorry we couldn’t do more to shake the son of a bitch. He’s unflappable.”
A courtroom security guard approached the prosecutors.
“I just thought you’d like to know,” the guard said. “Walter Scott is in the men’s room puking.”