SITTING BACK IN HIS CHAIR WITH HIS FEET UP ON HIS DESK, Karp watched his protégé alternately chewing on a pencil and scribbling on a yellow legal pad as he sat in a corner by the bookshelf. The young man shook his head and looked up.
“Spit it out, my man,” Karp said. “You’re squirming like a Times Square junkie.”
Katz tilted his head and started to say something, then stopped. He tapped the legal pad with the pencil. “Well, it just struck me, the disparity between O’Dowd’s fight to keep Jojola and Tran from testifying and her efforts against Dean Newbury.”
“What do you mean?” Karp asked.
“Well, we just spent three hours arguing motions, and trying to suppress the testimony of Tran and Jojola probably took up two hours of that,” he said. “But she was done with Dean Newbury in twenty minutes. Plus, over the past four months, I was buried with a mountain of paperwork attacking our guys but hardly a motion to keep Newbury off the stand.”
“Maybe she’s more worried about Tran and Jojola,” Karp pointed out. “She’ll have plenty to attack Newbury with while trying to make us look like we made a deal with the devil. She’s also got a better argument against our agents provocateurs, which we’ve been battling since February.”
Karp was referring to an in limine motion he’d made three months earlier asking the court to limit O’Dowd’s cross-examination of federal agents Jojola, Tran, and Jaxon, “in respect to their counterterrorism activities except this specific case. They cannot give up sources and methods regarding pending matters that could endanger past and ongoing covert operations and law-enforcement personnel.”
Karp had noted that such testimony under cross-examination could also be “highly prejudicial” to Jabbar, a reference to his part in the attack on the New York Stock Exchange that had resulted in the killing of two of New York’s finest. Although the murder of Miriam Juma Khalifa was directly related to the stock-exchange attack, and Karp could have made a case that he should be allowed to present that evidence to the jury under the doctrine of “prior bad acts,” but he chose not to.
O’Dowd could have rightfully pointed out that Jabbar had not been convicted of any crimes connected to the attack, nor was he charged with them now. More important, Karp had intended to make the motion in limine and knew that once he opened the door, he wouldn’t be able to pick and choose where O’Dowd could go with her cross-examination of the agents.
However, O’Dowd had a good argument that granting the motion in limine would severely hamper her efforts to cross-examine Jojola, Tran, and Jaxon. She would necessarily be precluded from raising issues about background events and motivations to possibly frame her client.
Three months earlier, Mason had agreed with her and denied Karp’s motion. The judge’s decision had crippled the People’s case. Mason knew that granting O’Dowd wide-open latitude in cross-examining the counterterrorism agents would preclude Karp from calling them as witnesses. He couldn’t risk the blow to national security.
Without Tran and Jojola, two eyewitnesses, connecting the defendant to the execution of Miriam, Karp wasn’t left with much. He’d felt his case would have the evidentiary impact of a feather.
So he had immediately filed an expedited interlocutory appeal, playing the national-security card. The appellate court had agreed and reversed Mason. It had surely antagonized the judge, but it also made him more gun-shy. Thereafter, Karp had mused that it was as if the ideological air had been sucked out of the judge’s “alleged mind.”
“So, obviously, she’s spent more time on them than on Newbury,” Karp pointed out to Katz as they debated the issue in his office.
“I understand all that,” Katz replied. “However, I see two problems with your arguments. One, we all know she’s staking her case on the ‘government conspiracy’ and ‘agent provocateur’ scenarios. So if I were she, I’d actually want Tran and Jojola on the stand. If she knows anything about their backgrounds, she probably thinks Jojola is some hick Indian from the sticks, and Tran, well, Tran’s a Vietnamese gangster, and she’ll have a field day going after him. And neither one is going to be able to say much about what he does with Jaxon’s agency—at least, not the classified stuff—or talk about the stock-exchange attack, which is going to make them look suspicious and as if they’re withholding information. And that should play right into O’Dowd’s strategy.”
“Good points,” Karp said. “Go on.”
“Well, I also think that if I’m her, and blaming the murder on these government agents, I’d rather not have a third party—Dean Newbury—provide the connections among Al-Sistani, Nadya Malovo, and Jabbar.”
Karp took his feet off the desk. “All valid considerations,” he said, “but I’m seeing it a little differently. Without Tran and Jojola—or that damned videotape that was supposedly made, and God knows where it is—we have no ‘eyewitnesses’ to Miriam’s death. We have a body. A bloody knife with fingerprints on it that Jaxon has identified as belonging to Malovo. But very little evidence of Jabbar’s involvement either before or during the murder, except some testimony that he was responsible for recruiting the Al-Aqsa Martyrs Brigade. Keeping Tran and Jojola off the stand would have been a devastating blow to us, a total and complete game changer. And as I said, Newbury’s credibility will be an easy target.”
“I’m surprised she didn’t make more of the fact that Newbury was the mosque’s attorney, and therefore Jabbar was his client and their conversations privileged,” Katz said.
“To a point,” Karp replied. “But attorney-client privilege extends only to Newbury acting in his role as an attorney. It does not extend to acting in concert to commit criminal acts. O’Dowd wants to preserve the record to give herself a chance to fight it on appeal, but she knows she’s not going to win. Anything else?”
Katz again started to say something but shook his head. “No, it makes sense. It just seems as if she’s not worried about Newbury. Anyway, I’m going to hit the road. I want to make sure everything’s ready for tomorrow.”
After Katz left the office, Karp kicked back again and thought about his protégé. He was pleased with Katz’s progress. He had recently successfully tried a felony murder case where the judge had gone out of his way to write a complimentary note about his “professionalism and preparation.”
In this, their third murder trial together, Karp had given the young man more to do than in the past, such as answering most of the motions filed by O’Dowd. Katz always checked his work with him before filing it with the court clerk, but Karp had found very little to critique.
Experience seemed to be Katz’s only shortcoming, and he was fast gaining on that. And his observations about O’Dowd’s efforts thus far were sophisticated and intellectually penetrating.
Ever since Jabbar’s arrest on Christmas morning, Karp had done everything he could to move the proceedings along as expeditiously as possible. He wasn’t trying to rush the case, nor was he worried about the defendant’s right to a speedy trial. He just didn’t believe that it was appropriate for DAs to engage in pretrial detention willy-nilly because they had the power to influence the bail-setting magistrate. For him, it was a liberty issue, the belief that nothing was more important to a man than his freedom.
If he had not already believed it in a philosophical sense, he’d been convinced many years earlier, when he was fresh out of law school and newly hired at the New York DAO. His bureau chief, Mel Glass, had taken the newbies on a tour of the Tombs. An eye-opener, to be sure. The stifling heat and unbearable humidity of August and the stench of urine, unwashed bodies, and cleaning materials had nearly made him gag. It sounded like the inside of a cuckoo’s nest, with screaming, loud yells, and insane laughter. The steel gates clanging and clicking behind and in front of him, and the walls and bars pressing in had given him insight into the isolation, loneliness, and fear felt by many of the inmates.
The Manhattan House of Detention, the Tombs, was occupied mostly by defendants awaiting trial. At tour’s end, Glass had admonished all of them that they should seriously weigh requests for high bail and a man’s freedom against the likelihood of a defendant absconding or allegedly presenting a danger to the public. “Knowing now the hell in which he’ll live until his trial if he can’t get out,” Glass had said.
However, there were cases that justified the setting of high bail—such as a sexual predator—or, in the case of murder, no bail at all, only remand to the Tombs. The flight risk for such a crime and potential sentence, as well as the potential danger to the public and witnesses, was too great. But to Karp, that meant that ethically, he had to move even more expeditiously with a murder case than one in which the defendant could get out on bail. Each and every time Karp had asked the court to remand a defendant in a post-indictment murder case, he had informed the court that the People were “ready for trial.”
Karp had been surprised that O’Dowd had made little effort to postpone or delay this trial. In fact, he had noted that O’Dowd had not filed a motion for a change of venue away from New York County. Most defense lawyers with black Muslim clients charged with anything resembling terrorism had demanded a change of venue since September 11, 2001.
Karp had read somewhere that as much as forty percent of the people in the city thought that the government might have had something to do with the attack on the World Trade Center. If he intended to argue that his client was a victim of a government conspiracy, he might want to keep the trial there, too.
While the lack of a change-of-venue motion seemed explainable, Karp had also noted that O’Dowd was not using the usual defense methods to delay a trial. She had not attempted to raise a mental-competence argument, thus avoiding months of waiting for reports from mental-health experts. And she’d settled for a single defense forensic expert to look over the evidence.
The only surprise had been that afternoon, when she’d announced that the defense would be calling an alibi witness and handed over the information about the witness’s statement and how to contact her.
“Megan, thank you for giving this to us on the eve of the trial. So typical,” Karp had said.
“I only just learned of the witness myself,” O’Dowd had retorted. “My client is married—to another woman—and had hoped to keep this assignation quiet.”
The judge had allowed it, and Karp had looked back at Fulton, who’d been sitting behind the prosecution table. The big detective had nodded, and Karp knew he’d be all over the witness to catch her in her lies.
Still, all in all, Megan O’Dowd seemed as anxious to get this trial under way as he had been. Maybe Jabbar was simply confident that he’d be acquitted and wanted out of the Tombs so that he could wing off to some renegade Muslim nation and be feted as a hero like Al-Sistani.
The intercom buzzed, and Darla Milquetost announced that he had a call. “Moishe Sobelman on line one,” she said.
Karp leaned forward and picked up the phone. “Shalom, Moishe,” he said.
“Shalom, Butch,” the old man replied.
“To what do I owe the honor of this call?”
“I wouldn’t bother you with such a trivial matter,” Moishe said at last. “But you told me I should call when that woman returned to my shop. She is here now, talking to my Goldie. There is just something about her . . .”
“Say no more, my friend,” Karp replied. “I’ll call Clay, and he’ll have one of his detectives there in twenty minutes.”
“Well, it is probably nothing . . . oh, wait, she is leaving.”
“Can you see where she’s going?”
“Just a moment, I am walking to the front of the shop. Yes, she is crossing the street.” There was a sharp intake of breath. “That man is over there. She walked past him, but he has turned and followed her. I do not see them anymore.”
Karp frowned. It could be nothing. The woman might like a bite of cherry-cheese coffee cake before she met with her boyfriend, and it was nothing more than that. But he’d talked to Fulton after he got back from the Breakfast Club meeting last week, and the detective didn’t like it, either.
“They do a lot of cash business,” Fulton had noted. “And some of these older store owners are known for tucking their profits into the mattresses. Maybe this couple has heard a rumor that the Sobelmans don’t use banks. I’ll call my buddy who heads the patrol desk in that precinct and ask him for a couple extra drop-bys. And if this woman or her partner show again, call me, and I’ll send a detective to check it out. If they are up to something and know we’re on to them, they’ll probably go away.”
Karp punched the button on his phone for Fulton’s office. “Hey, Clay, I just heard from Moishe,” he said. “That woman was in the shop again a few minutes ago. She left and met her boyfriend across the street. . . . Yeah, just left. . . . Good. I’d hate to have something happen to those two.”
He looked at his watch. Marlene was supposed to meet him in a half hour, and they were going to dinner in Brighton Beach with his uncle Vladimir Karchovski at the old man’s restaurant.
He stood up from his chair, walked over to the window, and observed the many different people below from all walks of life and many different nations. Drawn here not just for the opportunity to make a better living but for a better life free from political, religious, and ethnic persecution.
Moishe’s call reminded him of the main topic of conversation at the Breakfast Club meeting, “American Exceptionalism,” a 180-year-old theory that the United States occupies a special moral place among nations because of its credo of freedom and justice for all, protected by two promissory notes, the Declaration of Independence and the Constitution, that guaranteed certain inalienable rights.
It was a typical topic of conversation for the Sons of Liberty Breakfast Club and Girl-Watching Society, a self-described group of “old codgers whose wives chase us out of the apartment once a week” to meet over breakfast and debate politics, the law, art, foreign affairs, and anything else that interested them.
The members were Frank Plaut, a respected former federal judge with the Second Circuit Court of Appeals; Saul Silverstein, a former Marine who’d fought at Iwo Jima and returned from the war to make a fortune in women’s garments; a Jesuit priest, Jim Sunderland; a former top defense attorney, Murray Epstein; his conservative counterpart Dennis Hall, who was a former U.S. attorney for the Southern District in Manhattan; a retired editor of the New York Post, Bill Florence; and renowned Village artist Geoffrey Gilbert.
That particular morning, Hall and Epstein had been in opposing corners on the topic. The former U.S. attorney had argued that “the United States has a special moral and ethical role to play in world history.” But Epstein had countered, “That’s jingoistic and self-serving. It allows us to excuse our faults—such as slavery, civil rights, our treatment of American Indians, and even our refusal to accept Jews fleeing Nazi Germany—without owning up to them. It makes us appear arrogant to the rest of the world.”
It was Plaut who’d asked Karp if he’d care to join the fray as the group settled in around the table. The topic was a favorite, and he’d begun by quoting the Puritan leader John Winthrop, who’d said around 1630, “We will be as a city upon a hill. The eyes of all people are upon us, so that if we deal falsely with our God in this work we have undertaken and so cause Him to withdraw His present help from us, we shall be made a story and a byword throughout the world.” To which Ronald Reagan added in 1974, when still the governor of California, “You can call it mysticism if you want to, but I have always believed that there was some divine plan that placed this great continent between two oceans to be sought out by those who were possessed of an abiding love of freedom and a special kind of courage.”
Karp had paused and reminisced. “Let me give you a down-home personal example of what I mean. My grandparents fled Europe’s poverty, oppression, and anti-Semitism to come to America to seek freedom and a better life for themselves and their family. They couldn’t speak English, they had no place to live, but they worked hard and never took a government handout. They made a warm and comfortable home for their family and made sure their children were educated. ‘Only in America,’ they always said. Hitch your wagon to a star. Go to school, work hard, and your dreams can come true. There was always the notion at home that their children and grandchildren could do anything they put their minds to if they were willing to commit and sacrifice and be prepared to do that which was necessary to succeed on their merits.”
“Yeah, okay, but what about slavery?” Epstein had said. “What about the treatment of American Indians?”
“And the ills that are still with us—racism and people trapped in ghettos,” Gilbert had added. “How can we claim moral superiority with so much poverty and unequal access to decent health care and quality education in the inner cities?”
Karp had taken a sip of his coffee and looked down at the table, seemingly lost in thought. He’d placed the cup next to his cherry-cheese coffee cake and looked up at the Breakfast Clubbers, whose eyes were fixed upon him. “Yes, gentlemen, we have made mistakes, and we are still struggling to convert the promise of this country into reality for all of us. Without doubt, slavery is a stigma on our history, but we also fought a long and bloody civil war to end it, which saved our country’s soul. We sacrificed our best and bravest against brutal and well-trained enemies at distant places like Guadalcanal, Midway, and Normandy, not because our borders were threatened but to save millions of others from death and enslavement on continents far from ours. I’m a firm believer in American Exceptionalism. We live in a country that cherishes freedom and liberty from governmental interference. We are a moral and virtuous people, committed to fairness and the eradication of evil. I can assure you that evil exists. I’m a volunteer soldier in the battle to destroy evil. As DA, I try to institutionalize systems in my office that will effectively combat evil in the framework of due process.”
Karp thought of a man like Imam Jabbar, who spoke only of his perception of what was wrong with America and engaged in murderous violence to tear it down, and compared him to a man like Moishe Sobelman, a concentration-camp survivor, a man who’d witnessed the darkest side of human nature and fled to the United States for similar reasons to Karp’s grandparents’ almost a century earlier.
“It seems to me,” Karp had continued, “that we are duty bound to honor and preserve our liberty and pass it on to our children. We are a moral people and must never waver in our commitment to do what is right, no matter what the threat or intimidation. I do believe that we are heroic and fearless in the pursuit and eradication of evil and the men who commit it, whether it is in the name of National Socialism or Allah.”
“I’ll drink to that,” Judge Plaut had said, raising his glass of orange juice. “God bless America.”
Karp’s reverie was interrupted again by the intercom and Milquetost’s announcement that his wife had arrived. The door opened immediately, and Marlene walked into the room.
“Now, there’s the best-looking woman I’ve seen all day,” he said with a smile.
“Hmmm . . . Keep talking like that, and you might get lucky,” she replied. “You still working?”
He shook his head and stood up. “Nope. We have a jury, and opening statements and testimony start tomorrow.”
“Still feel like going out? I’d understand if you want to skip it and stay focused.”
“Are you kidding me? Pass up a chance to spend a few blissful moments with the love of my life?” Karp took her into his arms and kissed her tenderly.
“Well, you’re a lot closer to hitting a home run after that one, DiMaggio.” Marlene giggled.
“Then the sooner we leave,” he said, wiggling an eyebrow, “the sooner I get a chance to round the bases and score.”
They were still laughing as they left the Criminal Courts Building. As they approached the curb to catch a cab, they came across Dirty Warren, who was humming to himself as he closed up his newsstand.
“Good evening, Mr. and Mrs. . . . oh boy assssss . . . Karp,” he called out cheerily. “Beautiful evening. Love is in the air! Whoop!”
Karp and his wife looked at each other, amused.
“Why, Warren, you are positively aglow,” Marlene said. She looked closely at him. “I do believe our Warren is in love.”
Karp started to laugh until he saw the look on the news vendor’s face. “I think you’re right, he’s blushing,” he said. “Okay, give, who is she?”
“No one you know. Just . . . oh boy oh boy kiss my . . . an old friend,” Warren replied. He kept working to make sure all his magazines and other merchandise were in neat, orderly stacks as he tried to redirect the conversation. “Hey, Karp, I got one for you.”
“Let’s have it.”
“Okay. ‘The key goes where the book editor sees his wife and son off to Maine.’ That’s . . . whoop . . . it.”
Karp furrowed his brow. “That’s not much to go on. Tell you what, I promise not to cheat, but we’re running late, and I’ll have to get back to you tomorrow on that one.”
Warren grinned. “Well, I hope you get it right. I’m stumped, and I have a movie . . . whoop tits and balls . . . date riding on it.”
“Well, then, I’ll give it my best effort.”
At that moment, two large men stepped up to Warren and flashed their gold detective shields. “Are you Warren Bennett?”
Surprised, Warren nodded his head. “Do you need a newspaper? I’m closed, but—”
“You’re under arrest,” said one of the men.
“What’s this about?” Karp asked.
“Sorry, Mr. Karp,” said the other detective. “But there’s a warrant out for this man.”
“What’s the charge?” Marlene asked.
“Murder,” the first detective said. “A woman named Michelle Oakley was killed sometime over the weekend—”
“Michelle! . . . Whoop oh boy fucking bitch . . . no, it’s not possible!” Warren cried out. He started to twitch and hop.
One of the detectives stepped forward and grabbed him. “Hands behind your back,” he said. “Turn around and hold still, or I’ll have to put you on the ground.”
“Take it easy. He’s got Tourette’s,” Karp said. “He can’t help the twitching or the language.”
“You have the right to remain silent . . .” The second detective began to read Warren his Miranda rights as the first handcuffed him.
“No, no, not her . . . dirty whore whoop whoop . . .”
Realizing that Warren was digging himself a hole, Marlene stepped forward and addressed the detectives. “I’m his attorney. And he will not be making any more statements.”