Shortly before 10:00 A.M. on Tuesday, June 11, Justice Bernard Dubin entered the courtroom.
“Good morning,” he told the assemblage. “At least it’s a little more comfortable today than yesterday.”
Evseroff nodded his concurrence. Then, on signal from the Judge, Court Clerk James Higgins rose and declared, “The Court is about to charge the Jury. Anybody wishing to leave must do so now. No one will be allowed to leave during the charge.”
No one left. Dubin surveyed his domain and began.
“Lady and Gentlemen of the Jury. We now come to that part of the trial known as the charge. The People of the State of New York have called upon you to render an important service. No other public obligation requires a greater degree of intelligence, fairness, patience, integrity, and courage. A juror assumes great responsibility when he or she sits in judgment of another person and seeks to determine the issues that arise in a trial. Although you knew that service would involve great responsibility, you responded in the spirit of cooperation. I extend to you my profound thanks.
“As you sit as jurors, we are all one color. We are all one nationality. We have no Italians, no Jews, no Negroes, no Poles, no Irish. We are Americans, and as Americans we seek justice for everyone. I am not a flag waver. Waving the flag doesn’t make anybody an American. It is what you are doing now that does. You are Americans.
“Now, in a trial such as this, we have got to leave our emotions out. The Police Department is not on trial. Whether you like policemen or not doesn’t enter into it. Sympathy for or against the deceased or for or against the defendant has got to be out. You must decide this case on the facts. Prejudice and sympathy were left out in the street before you entered this courtroom. Both the People and the defendant are entitled to a fair trial.”
Briefly, the Judge reviewed generally accepted methods for evaluating the credibility of witnesses and noted the jurors’ right to study trial exhibits and have portions of trial testimony read back to them during their deliberations. Then he came to the standard of proof imposed on the prosecution.
“Under our system of justice, a defendant is presumed innocent until the contrary is proven. That presumption of innocence remains throughout the trial until such time as a jury unanimously agrees that the defendant’s guilt has been established by reliable and credible evidence beyond a reasonable doubt. The burden of proving the guilt of a defendant is at all times on the prosecution. If the evidence is as consistent with innocence as it is with guilt, the defendant is entitled to the innocent construction and must be acquitted.
“A reasonable doubt is an actual doubt that the jury is conscious of having after going over the entire evidence of the case. But it is not a mere whim, guess, or surmise. Nor is it a subterfuge to which resort may be had in order to avoid a disagreeable duty. It is a doubt that must be founded on the evidence. It must be a doubt founded in reason and must survive the test of reason. The People are not required to prove the defendant’s guilt beyond any doubt because, in most cases, that’s impossible.”
Having laid the ground work, Dubin next outlined the specific charges against Shea. Under the indictment, the defendant could be found guilty on one of four charges—two of them relating to “murder,” the other two to “manslaughter.”
“The indictment in this case charges the defendant with two counts of murder,” Dubin explained. “Let us look at the first count. A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person. There are two essential elements constituting murder under this count: intent by the defendant to cause the death of another person, and the causing of such death. To find that the defendant intended to cause the death, it is essential that you come to the conclusion that it was his conscious objective to do so. If you find only an intent to injure, then one of the essential elements constituting the crime of murder is missing and you may not find the defendant guilty of murder under this count of the indictment.”
After pausing briefly to make certain that his instruction had been absorbed by the jurors, the Judge continued.
“We come now to the second count of murder as differentiated from the first.
A person is also guilty of murder when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person. In order for you to find the defendant guilty under this count of the indictment, the People must establish to your satisfaction beyond a reasonable doubt that, one, the defendant evinced a depraved indifference to human life; two, the defendant recklessly engaged in conduct which created a grave risk of death to another person; and three, the defendant caused the death of that person. ‘Depravity’ means an inherent deficiency of moral sense and rectitude. ‘Indifference’ means impartial, unbiased, disinterested; feeling no interest, anxiety, or care. Murder under this count of the indictment is the highest form of reckless homicide. It embraces extremely dangerous fatal conduct performed without specific homicidal intent but with a depraved indifference. It does not require a specific intent to cause death.”
Several jurors nodded their understanding. Dubin noted their response and read on.
“If each of the elements constituting murder has not been proven beyond a reasonable doubt, you may not find the defendant guilty of murder. However, you may consider whether the defendant is guilty of manslaughter. A person is guilty of manslaughter in the first degree when, with intent to cause serious physical injury to another person, he causes the death of such person. There is no requirement that there be an attempt to cause death, but there must be an intent to cause serious physical injury.
“You may also consider whether the defendant is guilty of manslaughter in the second degree. A person is guilty of manslaughter in the second degree when he recklessly causes the death of a second person.”
The Judge paused to let his instruction sink in.
“That’s all you need on this count—recklessly.” Shea shifted uneasily, and Dubin continued.
“A person acts recklessly with respect to a result when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in a like situation.”
The four possible guilty verdicts had been fully explained. All that remained was for Dubin to define the one set of circumstances which would legally justify Shea’s conduct—the defense of “justification.” Carefully enunciating his words, the Judge pressed on.
“In considering whether the defendant is guilty of murder or any lesser form of homicide, you the jury must give consideration to the testimony concerning events leading up to the shooting. You must consider whether the defendant’s conduct was justified. The defendant said he thought the deceased had a gun. Our Penal Law reads as follows: ‘A peace officer, in the course of attempting to effect the arrest of a person whom he believes to have committed an offense, may use physical force to the extent he reasonably believes such force to be necessary to effect the arrest or defend himself; except that he may use deadly physical force for such purpose only when he reasonably believes that the use of deadly physical force is necessary to defend himself from the imminent use of deadly physical force.’”
Once again, the Judge paused, allowing his remarks to sink in. Then he went on. “It is the defendant’s contention that whatever physical force he did use was justified. In order for you, the jury, to find justification for the defendant’s act, you must conclude that he reasonably believed his conduct necessary to defend himself from what he reasonably believed to be the imminent use of deadly physical force.”
The legal complexities of the charge were now complete. All that remained were a few closing remarks.
“In order for you to find the defendant guilty or not guilty under this indictment, you must vote unanimously. In other words, all twelve of you must agree as to the defendant’s guilt or innocence. You can’t find the defendant Thomas Shea guilty on two or more counts. It has to be guilty on one count or not guilty on all counts. Earlier, I told you not to discuss the case. Now I’m telling you to reason with each other. Vote your conscience, but don’t be stubborn. Your duty is to reach a verdict, fairly, justly, and equitably. No innocent man should be convicted, and no guilty man should be acquitted. The defendant has a right to a fair verdict, and the People have a right to a fair verdict; not based on sympathy, not based on prejudice, just on the facts.”
At 11:30 A.M., the jurors retired to deliberate and an armed guard was posted outside their chamber. Twenty-five minutes later, the Judge received a note signed by the foreman, Sidney Horn, asking to examine the Fox map of the shooting site, the gun found by Harold Cannon at the Pilot Automotive Wrecking Company, the transcript of the infamous tape, and the trial testimony of Thomas Shea, Add Armstead, Walter Scott, and Doris Lyons. The request for trial testimony ran counter to the general rule that witness transcripts (as opposed to court exhibits) are not sent into the jury room.
Accordingly, Dubin asked that the jurors be brought back into court. “Is there any particular part you want to hear?” the Judge asked.
The jurors offered no response.
“Do you want to hear the entire testimony or certain portions?”
“The entire testimony,” Dennis Connolly (juror number ten) answered.
Dubin shook his head, then turned to the court reporter. “Well, you’d better start reading. Let’s start with the defendant.”
One hour later, with Shea’s testimony still being read, the Judge interrupted and sent the jurors to lunch. At 3:00 P.M., they returned and Shea’s testimony was completed followed by that of Doris Lyons.
“Now you want to hear Scott?” Dubin inquired, clearly annoyed at the length of time the reading would take. “The entire testimony?”
“Your Honor,” Evseroff suggested, “it would be all right with me if the jury took the testimony of Patrolman Scott into the jury room and read it at their leisure rather than all of us sitting here listening to it.”
Dubin looked toward Demakos.
“It’s up to the jury,” the prosecutor said. “If the jury wants to take it in, it’s all right with me.”
Several jurors nodded their concurrence.
“Take it in,” Dennis Connolly said.
A slightly worried look crossed the Judge’s face.
“I’ve never done this before in any trial. I don’t know if it’s legal. I want the defendant to agree to it.”
“I agree,” Shea said.
“And you too?” the Judge asked, turning to Gaudelli.
“Yes sir.”
“I think we’re all in agreement,” Evseroff prompted.
“All right,” Dubin responded. “Do you want to do the same thing with Armstead?”
The attorneys agreed that they did. At 4:00 P.M., the eleven men and one woman returned to their sanctum to deliberate.
“You know,” Evseroff said, turning to Cahill when the jurors had gone, “you never get used to it. You can try cases for a hundred years. You can pretend you don’t care. You can say, ‘I’ve done my best; there’s nothing more I can do.’ But you never get used to it. You grow a little older with each case, and waiting for the verdict is hell, especially when you care about a case like I care about this one.”
“I’ll tell you something,” Cahill answered. “I’m a pretty conservative fellow, but this case has made me more of a liberal. I’ve had the feeling all through trial that here’s a cop who just got caught up in the system. And once things went into motion, nothing could stop them. There was no way this case could have been plea-bargained away or dropped. The news media would have had a fit. But I don’t think the media or the police brass or anyone else ever really cared about Clifford Glover. They’re just pursuing their own interests, and Tom Shea is an insignificant figure caught up in their schemes.”
At 6:30 P.M., the court clerk announced a temporary recess for dinner. Flanked by Hinchy and Curtin, the defense attorneys and Shea crossed Queens Boulevard to a restaurant called the Flagship Diner.
“You know what I think?” Evseroff proclaimed over soup. “I think that black woman is all alone on the jury.”
Cahill agreed.
“I hope you’re right,” Shea said.
The jury resumed its deliberations at 8:00 P.M. Unable to sit still any longer, Shea began pacing up and down the courthouse corridor. One at a time, his bodyguards, Evseroff, and Cahill took turns accompanying him. Upstairs Justice Dubin sat in his chambers, working on a backlog of court motions. Demakos and Gaudelli waited side by side in a spectator pew.
At 9:50 P.M., the jurors were brought back into the courtroom. Moments later, Dubin mounted the bench and announced, “I have a note signed by the foreman. The jury wants a recharging on manslaughter in the first and second degree.”
Evseroff turned white.
“A person is guilty of manslaughter in the first degree,” Dubin began, “when, with intent to cause serious injury to another person, he causes the death of such person. Under manslaughter in the first degree, there is no requirement that there be an intent to cause death, but there must be an intent to cause serious physical injury. A person is guilty of manslaughter in the second degree when he recklessly causes the death of another person. All that is necessary here is to prove that he recklessly caused the death. You don’t need intent.”
Briefly, the Judge redefined “intent,” “recklessly,” and the defense of justification. Then the jury was sent back to continue its deliberations.
“Congratulations,” Evseroff said shakily, approaching Demakos and Gaudelli. “I think you’ve got a winner.”
Then, walking back to Shea, the defense attorney hung his head. “I’m going to die,” Evseroff said.
Hugh Curtin went to a pay telephone in the courthouse corridor and dialed his home number. For the past month, Shea’s wife had spent five days a week at the Curtin home.
“Give Bonnie the strongest drink you can,” Curtin told his wife. “It looks like they’re coming back with a verdict of guilty on manslaughter.”
At 10:50 P.M., Dubin ordered the jurors brought back into the courtroom. One day earlier, they had been advised that they would be sequestered overnight if unable to reach a verdict by a reasonable hour.
“Madam and Gentlemen,” the Judge said. “You have had a very rough day, so we are going to send you to a hotel to rest. From now until tomorrow morning when you come to court, don’t discuss this case. When you go to your hotel room, don’t turn on your television or radio or read any newspapers. Have a good night’s sleep, have a nice breakfast, and get here tomorrow about 9:30 A.M.
The jurors left the courtroom and were shepherded to a bus which would take them to the International Hotel at John F. Kennedy Airport. Soon after, the lawyers, reporters, and spectators began their journey home. Dubin retired to his chambers to tend to a few more court matters, then left the building via the front entrance. As he descended the steps, a young white woman approached and looked him straight in the eye.
“God help us if they find that cop guilty,” the woman said.
On Wednesday morning, June 12, the defense team gathered as usual at Ann’s Cafe across the street from the Queens County Criminal Courthouse.
“Guilty on manslaughter,” Shea said, staring at his coffee. “That’s what the verdict will be. I know it.”
Evseroff didn’t answer. He had spent much of the night downing martinis with a friend, and his assessment of the situation was equally bleak. Curtin and Hinchy were just as morose. Only Cahill was optimistic.
At 9:00 A.M., the five men rose and left the diner. The sky was bright blue. A gentle breeze would moderate temperatures throughout the day ahead.
“Look at them,” Evseroff muttered, pointing to a dozen mostly white pickets on the courthouse steps. “Even the goddamn whites are picketing.”
“Screw them,” Hinchy said.
It was one year to the day after Evseroff had been notified by the Queens County District Attorney’s office that his client had been indicted for murder.
Moments before 9:30 A.M., the jury resumed its deliberations. “How long do you think it will take?” Shea asked.
Evseroff shrugged his shoulders.
“I don’t know. Not too much longer.”
An hour later, still awaiting a verdict, the lawyer and Shea left the courtroom and began pacing the halls. At 11:15 A.M., a court officer approached.
“The Judge wants to see you inside,” he instructed.
The two men returned to the courtroom, where Dubin was seated.
“I have received a communication signed by Sidney Horn, the foreman,” the Judge said. “We have reached a verdict.”
On signal, the twelve jurors were ushered into court.
“Jurors,” Court Clerk James Higgins ordered, “please answer when your name is called.”
One by one, the members of the jury affirmed their presence.
“Mr. Foreman,” Higgins asked, “has the jury agreed upon a verdict?”
“We have,” Horn answered.
“Will the defendant please rise and look upon the jurors,” the clerk commanded.
His face bright red, Shea rose, struggling to maintain his composure.
“Mr. Foreman,” Higgins intoned, “what is the jury’s verdict?”
The world was frozen in one awesome, terrifying moment.
“NOT GUILTY,” Horn said.
Shea collapsed in his chair and began to sob uncontrollably. A half dozen reporters rushed for the courtroom door.
“Quiet,” Dubin ordered, banging his gavel hopelessly amidst the increasing tumult. “Quiet, please.”
The roar continued.
Again, the Judge sought to make himself heard. “The defendant is discharged.”
Lifting his head from his hands, Shea looked toward the jurors. “Thank you,” he said.
“Come on,” Evseroff shouted, grabbing hold of his client’s shoulder. “Let’s go celebrate.”
Joyously, the victors trooped from court, surrounded by a flock of cameramen and reporters.
“I feel as though I’ve been reborn,” Shea said, his voice still choked with emotion. “Thank God for the jury system. I did my job, and that’s all I ever did. All I want is to do my job again. I don’t care where they send me. I just want to be a cop.”
On the courthouse steps, an angry bystander charged forward and shouted, “We’ll get you, you white motherfucker, you and your fucking lawyer. Just wait!”
Pushing by, the defense entourage swept down Queens Boulevard to Luigi’s Restaurant, where they had lunched for much of the past four weeks. As they entered, the proprietor handed Shea a congratulatory snifter of brandy.
“I feel as though I’ve been reborn,” the cop said again. “This past year has been a nightmare. I couldn’t have survived if I didn’t have the greatest wife in the world. In the end, when a lot of other women wouldn’t have, she stood by me.”
A half dozen jurors, Ederica Campbell among them, entered the restaurant.
Shea rushed to the black woman’s side and planted a kiss on her cheek.
“She’s going to go through hell for this,” he said, returning to his compatriots. “I give her a lot of credit.”
Immediately, several reporters cornered the jurors and asked about their deliberations. The verdict had been reached after hard, sometimes bitter debate. The initial vote was six to three for acquittal with three abstentions. Then, after Shea’s testimony was reread, the vote changed to nine–three in the defendant’s favor. By dinner on Tuesday night, only Mrs. Campbell and Dennis Connolly (the telephone company cable splicer who sat next to her) favored conviction. Then, at Mrs. Campbell’s request, the jurors asked for a rereading of the Judge’s charge on manslaughter, after which Connolly joined the majority.
“Armstead said he didn’t look back to see what happened to the boy,” Connolly explained to the reporters. “But when he flagged down the police, he said, ‘My son is shot!’ His testimony wasn’t right.”
The morning after Connelly’s defection, Mrs. Campbell’s resolve weakened and she agreed to go along with the others.
“There were too many guns,” juror Martin O’Brien later added. “You had the starter’s pistol the cops found in the sewer, the toy gun, and the revolver Armstead kept at work. Where there’s smoke, there’s fire.”
“Nothing would have happened if Armstead hadn’t run,” juror Daniel Ehring said, explaining his vote. “And the fact that he kept running after his son was shot had a lot to do with my decision. He had something to hide if he kept running like that, and it gave him time to get rid of the gun.”
Strangely, in light of their verdict, five jurors disbelieved Walter Scott’s testimony that he had witnessed the shooting. But except for Mrs. Campbell, these same jurors also felt the “woodwork witnesses” were lying. Perhaps juror George Stell summed up his colleagues’ feelings best.
“The Judge told us that, in order to convict Thomas Shea, we had to find him guilty beyond a reasonable doubt. We all had that doubt. Outside of Shea and Armstead, I guess only God really knows whether the boy had a gun. But I think Shea was a very fine cop. He had seven hundred arrests, and that’s some record. He was always there. He didn’t fear nothing. We need more cops like that so there will be less crime.”
“It’s the old plantation philosophy,” a black reporter observed bitterly. “White folks are conditioned to believe that the police are their last line of protection against the black hordes. Convict a cop, and you’ll live to regret it. The hands of the police must not be tied. The police arrested Shea. The grand jury indicted. The District Attorney’s office prosecuted the case. It was the jury that let him go—eleven men and one woman telling us exactly where they stood. That says something about America.”
Add Armstead and Eloise Glover sat on the steps of their ramshackle house at 109-50 New York Boulevard as police cars cruised periodically by. Armstead had learned of the verdict while listening to the radio at work and come immediately home. A contingent of reporters arrived minutes later.
“The trial wasn’t right,” Eloise Glover said. “No justice has been done. There are a lot of people who don’t want to work, but Clifford was learning at an early age how to earn a living. My son’s blood is on Shea’s hands. He can’t wash it off.”
Then she and Armstead turned their backs to the reporters and retreated inside after one tormented burst of bitterness.
“For that one kid,” Armstead proclaimed, “there’s going to be a thousand whites die. God hasn’t told me how, and I won’t raise my hand to do anything. But God’s going to see that I get justice. God don’t like ugly.”
The celebration at Luigi’s was under way.
“You know what I’d like,” Evseroff shouted above the din. “Someday I’d like to defend a black cop who kills a white kid. Then I wouldn’t be called a racist.”
Several onlookers roared their approval.
“A toast,” someone cried. “We need a toast.”
All eyes turned toward Thomas Shea. Majestically Evseroff rose to his feet and hoisted a glass on high.
“Gentlemen,” the attorney said. “To victory! It’s better than getting laid.”