THE GALLERY SECTION OF PART 39 WAS BUZZING WITH ANticipation as those journalists and spectators fortunate enough to get through the screening before all the seats were taken eagerly awaited the start of the Jabbar trial. It was expected that sparks would fly when O’Dowd and Karp clashed, contributing to the prize-fight atmosphere. The Times had even done a special pull-out section with a look back at the cop-killer trial, a timeline for the current case, side-by-side columns on the respective careers of Karp and O’Dowd, and various legal experts weighing in on the likely strategies of the two sides.
When Karp entered the courtroom and took a seat at the prosecution table, he put away his thoughts and concerns about Marlene and Dirty Warren. He had a job to do, and his wife was as capable as anyone he knew. It was time to get his game face on.
Taking a deep breath and letting it out, he relaxed and chuckled quietly. It’s always been the same, he thought, regardless of the nature of the competition, whether as a kid in high school or college playing ball or here in the courtroom. Once the contest begins, all of the anxieties, uncertainties, and general angst evaporate.
All of the preparation and laser focus always paid off. When the games began, he went into a performance zone and played it out with all of the zeal and vigor he could muster.
Kenny Katz sat to his right, fussing with the large three-ring binders that contained the thousands of pages of police reports, transcripts, motions, and photographs. Glancing back at the gallery, Karp saw several faces he recognized as detectives on Fulton’s squad sprinkled in the crowd. Detective Sergeant Mike Cordova sat behind him in the first row, speaking quietly into the microphone clipped to his lapel.
Over on the defense side, a half-dozen members of Megan O’Dowd’s staff occupied the first bench, including her chief clerk, Elijah, a decent young black man who’d introduced himself when Karp entered the courtroom, though not without first checking to make sure his boss wasn’t present. Of the others, three were large black males whose main purpose seemed to be as bodyguards for O’Dowd; they spent a lot of time glaring at the prosecution table and staring down people in the gallery. The other two were white—a young man with Rastafarian dreadlocks hanging nearly to the middle of his back who seemed to be a gofer and a plump, dark-haired, middle-aged woman who sat quietly taking notes.
When his eyes flicked to the defense team itself, he saw that O’Dowd and Jabbar were both looking at him with smirks on their faces. He was reminded of the scene in his office before court, when he, Katz, Ray Guma, and his administrative assistant, Gilbert Murrow, had gathered to watch the news on television and witnessed the arrival of O’Dowd at the courthouse.
“This ought to be good,” Guma had exclaimed.
O’Dowd did not disappoint him. Although there were empty places along the sidewalk, the cab she was in had conveniently stopped where a group of a dozen protesters, both black and white, were marching in a circle, carrying signs with such pithy slogans as “KKK Karp” and “Free Imam Jabbar from the Terrorist State” and “White Justice, Black Lynching.”
Into this group, O’Dowd had emerged from the interior of the cab like a water buffalo climbing out of a mud hole. With a shout, the reporters and cameramen had converged on her. Someone in the crowd of journalists had yelled a question: “What do you think of the protesters?”
“My brothers and sisters on the streets know the truth,” O’Dowd had shouted back as she adjusted her purple dashiki and green gele head wrap. “This government will do anything to silence its critics. It cannot be trusted to do the right thing. The black man has known this for more than three hundred years, and some enlightened white folks are catching on now, too.”
“Bet ya a slice of pizza, she paid for that question to be asked.” Guma had snorted.
“I’ll see your bet,” Katz had replied, “and raise you another slice that she also paid for her ‘brothers and sisters’ from the streets to be here.”
O’Dowd had made a pretense of trying to push her way through the throng, though no one in their right mind would have really dared to stand in her way. She’d paused as though exasperated.
“Is your client a terrorist?” the same reporter had shouted.
“The only terrorists here are government terrorists,” she’d replied. “I expect to prove at trial that Miriam Juma Khalifa, my client’s loyal and much-missed receptionist, by the way, was murdered by agents working for the United States government.”
“Why?” the man had shouted again.
“I can think of a number of reasons,” the defense attorney had said. “Possibly to prevent her from exposing them or to frame my client and others. But I suggest you ask Mr. Karp that question.”
Now in the courtroom, with their expressions somewhere between arrogant and smug, O’Dowd and Jabbar were looking at him as if they expected an answer. But he gave them one they didn’t expect. A wink.
It wasn’t his normal practice to bait the opposition, but in this case, he wanted to judge their reactions. Jabbar’s face clouded over with doubt before he regained control and casually looked away as if he couldn’t be bothered. However, O’Dowd’s countenance positively radiated hatred.
It surprised him a little that an old warhorse like O’Dowd wasted her time on such a useless emotion in the courtroom. He personally didn’t like her or care for her ethical lapses, though she was an effective lawyer; but he didn’t hate her or let his feelings for her enter the picture when it came to trying the case.
In general, Karp had enormous respect for the defense bar and believed that his adversaries should operate under different standards from the DAO’s. His duty was to seek the truth, no matter where it led. But the defense obligation was to vigorously challenge the government’s case, aggressively question the evidence, fiercely cross-examine the witnesses, and force the prosecution to prove a defendant’s guilt beyond a reasonable doubt.
It was intended to be an adversarial relationship, but only rarely did that carry over to a personal level. He certainly had known defense attorneys who did not like him. He could be pugnacious and abrasive in court, and it didn’t help his popularity with the defense bar that he’d only once lost a major felony case in a career where he’d personally tried to verdict more than two hundred felons. But even then, there was usually mutual respect, and both sides handled themselves professionally.
Only a few of the defense attorneys let their personal dislike for him affect their behavior in the courtroom. These were usually the ones who saw themselves as “radicals,” and it was them against Evil Government, of which Karp and the assistant district attorneys who worked for him were the prime representatives. It wasn’t about their clients so much as it was winning personal victories over their counterparts at the DAO, even if that meant bending the rules that might let violent criminals back on the streets.
O’Dowd was one of those. But Karp still didn’t hate her; she wasn’t worth it.
Jabbar, on the other hand, was a different kettle of fish. Karp had been fighting his kind of evil his entire career. The imam wasn’t someone who in the heat of the moment stabbed or shot someone; he didn’t plan a robbery and end up killing the store owner in a struggle for the gun. He’d help plan a terrorist attack that he knew from the onset would result in many deaths, including the young men he’d influenced to throw their lives away on a false cause by telling them they were dying for God.
Yet Karp didn’t let his personal feelings for Jabbar get in the way of his duty. If he hadn’t been one-thousand-percent convinced of the defendant’s factual guilt and known that he had the legally admissible evidence to prove it, they wouldn’t both have been in the courtroom that day. Disgust for Jabbar and the imam’s hateful ideology had nothing to do with his reason for prosecuting him; justice did.
That didn’t mean Karp couldn’t use the hatred Jabbar and O’Dowd had for him to his advantage. And so he’d winked.
Twenty minutes later, Karp stood in front of the jury, placed his notes on the ledge extending out from the jury rail, and began to deliver his opening statement. Over the years, he’d come to believe that in a case like this, a good opening was almost like a summation. It covered the critical and damning evidence in narrative form that left no doubt in the jurors’ minds of the defendant’s overwhelming guilt. He gave his opening remarks with righteous and persuasive passion.
To heighten the drama and keep the jury attentive, after reading the indictment, he walked over to the defendant, looked him in the eye, and unequivocally assured the jury, “Simply stated, the People will prove and the evidence will demonstrate that this defendant, with his henchmen, mercilessly attacked Miriam Juma Khalifa—an innocent, unarmed, defenseless young woman—grabbed her, dragged her down the stairs leading to the basement of the mosque, beat her, tortured her. All the while, the defendant encouraged and directed the vicious assault and then orchestrated the decapitation execution of the deceased. Thereafter, with his cadre of killers, he celebrated what he had just done in a place he calls holy.”
For Karp, the case on trial was not a series of separate, disconnected events. Rather, a trial was one whole, and each individual moment was connected to present a complete picture of the defendant’s guilt, like each tile in a mosaic. It all started with the investigation. During that phase, he was already thinking about how the evidence would be presented at trial. The opening statement, the presentation of the People’s case, and the closing summation were all integral, connected moments.
Everything Karp did now in the courtroom was designed and planned to accomplish one goal, and only one goal: to persuade the jury that Jabbar was guilty, not beyond a reasonable doubt but beyond any and all doubt. He told the jurors to see his remarks as a “preview” of the evidence. “Think of it like the table of contents to a book presented to help you to follow the evidence with that much more ease, facility, and understanding.”
Throughout the opening, Karp kept an eye on Hassan Malik. He was serious and attentive, and to Karp’s liking, he was wearing a well-tailored blue pinstriped suit. So far, score one for the good guys, he thought.
As Jabbar was charged solely with the murder of Miriam Khalifa and not with any other crimes, the prosecution and its witnesses were prohibited from discussing or even alluding to Jabbar’s role in the attack on the New York Stock Exchange. He’d even been prohibited by Judge Mason from using the term counterterrorism because of a motion O’Dowd had won, arguing that the use of terrorism would “unfairly bias the jury and link my client to crimes he did not commit.” Nor was Karp, because of yet another motion, to refer to the young men who had been in the basement during Miriam’s murder as jihadis, “due to the prejudicial nature of the term.”
So Karp limited his comments regarding Tran and Jojola by informing the jury that the young men in the basement were “followers” of Jabbar and that his two eyewitnesses were acting in their capacity as undercover agents for a federal law-enforcement agency investigating a case when they witnessed the murder of Miriam. He noted that the young woman had been cooperating with the investigation. “You will hear for yourselves testimony from the witness stand about what it was like for Jojola and Tran to have to watch this brutal slaughter without being able to act to save her.”
Karp had followed his general outline of the prosecution case by briefly reviewing what he’d told the jurors during the selection process about the concept of acting in concert to commit murder. “Whether or not he actually held the knife doesn’t matter. What does matter and what we will learn from the evidence is that the defendant participated in the planning and acted with murderous intent to execute Miriam Juma Khalifa.”
He’d then concluded, “Keep an open mind until you’ve heard all of the evidence, because at the conclusion of the case, as the district attorney responsible for presenting the evidence on behalf of the People, I will ask you in the name of the People of the State of New York to find the defendant Jabbar guilty of the crime of murder of young Miriam in the basement of the Al-Aqsa mosque in Harlem, where the defendant desecrated that holy place by ruthlessly and viciously taking her life.”
Karp rested his hands on the jury rail and looked at each juror with a solemn expression. The courtroom remained stone silent as he turned, and as he approached his seat at the prosecution table, he informed the court, “The People have concluded our opening statement. Ms. O’Dowd may proceed.”
O’Dowd followed Karp’s remarks by speaking for nearly three times as long, much of her opening painting a fanciful “alternative scenario” in which “thuggish” government agents “invaded the sanctity of a holy place determined to destroy Imam Jabbar at any cost . . . including murder.”
She was able to use the prohibition against referring to the stock-exchange attack to make it appear that Jojola and Tran had “used subterfuge and lies—pretending to be someone they were not—to enter the mosque without a justifiable legal reason but for their own nefarious purposes.”
Standing at the lectern in the well of the courtroom, her hands either on her hips or occasionally gesturing angrily toward the prosecution table, she spoke tersely. “They were looking for something, anything, to use to link Imam Jabbar to foreign Islamic nationalists who, while perhaps misguided in their tactics, are trying to throw off the shackles of oppressive capitalist governments like that of the United States. These agents provocateurs wanted to silence even Imam Jabbar’s moderate voice in pointing out how the actions of the United States government continue the disparity between haves and have-nots and create enemies for the rest of us peace-loving and fair-minded citizens. But these two spies could not find any legitimate evidence condemning Imam Jabbar, so they concocted a plan to frame my client for a murder he did not commit or participate in planning in any way. In fact, you will hear from another young woman, who, though it will cause her a great deal of embarrassment, will assure you that he was with her on the night Miriam Juma Khalifa was tortured and murdered.”
O’Dowd noted that Jojola had been in contact with Miriam Juma Khalifa several times outside the mosque, “where he had ample opportunity to brainwash this simple, semiliterate young woman from a small fishing village in Kenya into helping with his plan to infiltrate the mosque.
“Or perhaps,” O’Dowd had said, pausing for effect, “he simply threatened her with deportation, or worse, if she didn’t cooperate. After all, she was a trusted employee of Imam Jabbar, who took her under his wing and gave her a good job after her husband died unexpectedly.”
Unexpectedly? Karp thought when he heard the defense attorney’s comment. You think? He probably expected to die when he set off his suicide vest inside the Third Avenue Synagogue. But O’Dowd didn’t have to worry about being called on her statement, as the judge had also acquiesced when she demanded that no references to Jamal Khalifa’s murderous attack on the synagogue be allowed. “It would be an unfair ‘guilt by association’ inference,” she’d argued, and the judge had agreed.
“Of course, Mr. Karp will say, ‘Look at the evidence,’” O’Dowd said with a sneer. “He will tell you that only he has any so-called real evidence. But I’m here to tell you that the evidence was fabricated—it’s all lies—and exactly what you would expect from a racist, oppressive District Attorney’s Office.”
Although Karp felt the heat rising to his face at O’Dowd’s slander, he remained stoic and sat in his seat listening as if to a somewhat interesting dissertation by a first-year law student. However, when the defense attorney implored the jury to “keep an open mind that this case is a frame job,” he leaped to his feet.
“I object!” he shouted. “Counsel knows that she has no evidence to support that ridiculous, outrageous statement impugning the honesty and integrity of not only this office but good men and women who put their lives on the line for the citizens of this country! If she has any such evidence, let her describe it now!”
The vehemence of Karp’s objection took Mason by surprise. The judge merely looked at O’Dowd and said meekly, “Counsel?”
O’Dowd glared at Karp but shook her head. “I will go no further with this point at this time,” she said. “But wait until cross-examination of Karp’s ‘good men,’ as well as what witnesses for the defense will say from the stand, not Mr. Karp’s bellowing protestations.”
“Then the objection is sustained,” Mason ruled, and admonished the jury to disregard Ms. O’Dowd’s comments regarding any alleged frame of her client. He went on, “What the lawyers say is not evidence and should not be considered by you to be evidence. Continue, Ms. O’Dowd.”
“As I was saying,” O’Dowd said, thinly veiling her anger at the ruling, “the so-called evidence the prosecution intends to use to persuade you is fiction. What about this supposed ‘meeting’ in the basement of the Al-Aqsa mosque with Imam Jabbar and this mysterious cadre of followers, who rather oddly will not be called by the prosecution to testify to this event? You’d think they’d find at least one of them, wouldn’t you? But they can’t, because it never happened—at least, not to my client’s knowledge, because he was visiting a friend that night who will testify to his actual whereabouts when Miriam Juma Khalifa was killed.”
O’Dowd paused to make brief eye contact with each juror, then smirked as if she knew they, too, were in on the joke. “And what about this character of the mad assassin who supposedly was the actual killer? This crazy Russian femme fatale, Nadya Malovo? Does she even exist? And if so, where is she? And isn’t it just a tad convenient that the killer has gone missing?”
The defense attorney hung her head, which she shook slowly from side to side. When she looked back up this time, her face was grim. “Or is it that Nadya Malovo is another fiction, created by a sinister and secretive government agency to cover up the actions of its own dark servants?”
As she spoke, O’Dowd turned slowly to face the prosecution table. “Perhaps Miriam realized that she was being used to harm a man who’d treated her only with kindness, her employer and spiritual leader. A man she knew had done no wrong, despite the lies the agents were drumming into her head. Maybe she threatened to expose them and had to be stopped. Or perhaps the plan all along had been to murder her and blame it on my client.”
Karp started to rise. “I—”
“Don’t bother,” O’Dowd interrupted with a dismissive wave of her hand. “I withdraw the statement, and we’ll deal with such possibilities later during the trial.”
O’Dowd turned back to the jurors, whom she told that “without a doubt,” the prosecution would call a man to the stand “who, if anyone, deserves to be sitting at the defense table.” This man, Jabbar’s former attorney Dean Newbury, she said, was under indictment himself. “And he will appear on that stand,” she said, waving at the witness stand, “and attempt to save himself, and his powerful friends, by cynically throwing a man of God to the wolves.”
Now O’Dowd made a point of looking at the black members of the jury. “Of course, the DA will want you to believe that Dean Newbury—wealthy, white, and one of the most powerful attorneys in the country before his arrest, a man with important friends in high places—is not getting a deal for his lies. That there’s no difference between how a rich white lawyer is being treated and my poor, black client. Of course, there’s nothing on paper, so we won’t know what sort of sweetheart arrangement he’ll get until he’s actually sentenced. That’s how the state does things these days. But some things you just know in your heart; don’t be afraid to listen to what your heart tells you is true.”
As Karp sat listening, he marveled at O’Dowd’s ability to spin something out of nothing. But he knew better than to assume that some member, or even members, of the jury wouldn’t buy the big lie. If the first mistake he’d made during that first trial against O’Dowd and the Harlem cop killers was how he approached jury selection, the second had been that he did not believe that a jury would buy into such an outrageous defense based on speculation and the inferences O’Dowd spun off that speculation. He’d thought any rational person would see through such a phony defense. And he had been wrong.
In the retrial, Karp had focused on witness preparation and then hammered away, nail by nail, stroke by stroke, at the defense’s illusory fantasy, rebutting it by using hard and corroborating evidence. In doing so, he’d demonstrated that O’Dowd’s strategy was an insult to the jurors’ intelligence. He’d learned that lesson well, and never again had he taken for granted that jurors would be able to see through the smoke and mirrors. But he knew that if he stayed the course and countered O’Dowd’s fiction with fact, the truth would cut through her obfuscation like a sharp knife through cheese.