Chapter 17
Day Four began at 9:10 A.M. on Tuesday, February 21, 1978, with Judge Skinner’s announcement of a blizzard-caused tragedy that was welcome news to us: “Juror number two was a victim of the flood situation in Nahant,” he said sadly, “and has lost his home. He apparently has various arrangements to make and he asked to be excused. . . . I have no objection to excusing [him] under the circumstances.”
“I certainly go along with the court on that,” said the old man.
“What do you say, Mr. Keefe?” asked Skinner.
“I have no objection to that.”
Turning to the jury, Skinner said, “Mr. Cohen, as the first alternate, you will drop down there and sit in the number two seat.”
Cohen looked as if he’d just been handed tickets to the World Series. As he scrambled into the front row, the old man gave him a welcome-aboard nod.
Assuming that the two-week recess had dimmed his jurors’ memories, Skinner told them: “I’m going to just review with you the names of the witnesses that we’ve heard so far, so that perhaps that will help you get back into this case.”
Looking down at his notes, he continued: “The first witness was John Martin Sheehan, a civil engineer from the Boston Department of Public Works. . . .
“The next witness was Walter Logue . . . and he told you about the spent bullets and . . . the revolvers of the two defendants [and] a thirty-two-caliber Fabrique Nationale automatic. No fingerprints.
“Then the next witness was John R. Tanous [who] talked about the broadcasts . . . from Cambridge . . . and a broadcast that he made.
“Lieutenant Petersen of the Cambridge Police Department identified a teletype that was put out by his department. And then Robert Mullen, who is stationed in the turret, . . . told about a report that he got from a car and what he did about it.
“Then, the next witness was Ken Kobre, who was . . . riding in the back of the police cruiser.
“The next one was David O’Brian, who was . . . riding in the back of the cruiser at the time of these events.
“The next witness was Henry Smith, who was Mr. Bowden’s boss . . . and he talked about his income and the time that he checked out on January 29.
“Then Doctor Luongo . . . gave his opinion as to the cause of death.
“Then Donald Webster from Boston City Hospital, who saw Mr. Bowden sometime that afternoon.
“The eleventh witness was Elsie Pina, who was a supervisor at the Housekeeping section . . . and assigned Mr. Bowden to certain tasks that day and saw him in the afternoon.
“Then the next witness was Jessina Stokes, a thirteen-year-old girl, who was talking across the courtyard there to her friend and looked out and saw these events.
“And Carla Davis, who is another thirteen-year-old girl—who I guess was ten years old at the time—who was in another window in conversation with Jessina.
“Then there [were] Mr. Bowden’s employment and salary records. . . .
“Then the fifteenth witness for the plaintiffs was Patricia Bowden, the widow of the deceased. And she testified about their life together.
“The last witness for the plaintiffs was Jack A. Marshall, the actuary. . . .
“So far, we have had two witnesses for the defendants. Ronald Monroe . . . talked to you about calls in and out [of] the Tactical Patrol Force headquarters.
“Then Mr. Mullen . . . was called by the defendants and testified again about the calls that he received and sent out. . . .
“So, we are still progressing with the defendants’ case, and we will now proceed.”
Keefe called Lieutenant Henry Gallagher of the Cambridge police. The defense was still concentrating on radio traffic. Gallagher brought a tape recorder to the stand. He said he was “in charge” of Cambridge’s radio tapes, which are recorded “on a twenty-four-hour basis.” At Keefe’s request, Gallagher played five minutes of the tape of January 29, 1975, “starting at approximately two-thirty P.M.”
Somewhere in the middle of heavy static and a bunch of unrelated messages, Ethel’s voice crackled into the air, saying “6368.” Nothing else of her call over what Gallagher identified as the “emergency line” was audible. Seconds later, the dispatcher could be heard saying something about a car headed for the Charles River.
Skinner allowed Gallagher to identify Ethel only as “the lady that called from the Pearl Food Market that day.”
We welcomed the introduction of the Cambridge tape. It confirmed that the reported plate number was not Bowden’s and made the absence of Boston’s turret tape all the more conspicuous. On cross, the old man asked Gallagher only a few insignificant questions about how Cambridge’s taping system worked.
With his next witness, Keefe apparently wanted to show that what we had just heard was the intercity broadcast about the robbery. He called the Cambridge dispatcher John McCann. Keefe was in for a two-minute exercise in futility.
After establishing that McCann’s was the voice on the tape, Keefe asked, “Do you have any recollection concerning whether you made any broadcast concerning that incident?”
“Yes, I did.”
“And do you have a recollection of making a broadcast over the intercity?”
“No.”
Keefe was knocked off stride by the answer. He had to revert to a hypothetical: “If you were the person to put the broadcast out over the intercity, what would be your practice or procedure concerning relaying . . . the information you received?”
Keefe was leading his witness, and the old man decided to put a stop to it: “I pray Your Honor’s judgment.”
“Sustained.”
Keefe led again: “Certain of the information concerned a blue Buick with a black vinyl top headed towards Boston?”
“I pray Your Honor’s judgment.”
“Sustained.”
Keefe gave up and called John Tanous for a quick rehash of the testimony he had given about receiving Cambridge’s intercity and relaying it “to all our units throughout the entire city.” By now, Keefe and McKenna should have realized that this would only give the old man yet another chance to hurt them with the turret tape, which he proceeded to do.
The old man began by asking Tanous how long he’d been assigned to the turret.
“At that time,” said Tanous, “I was up there seven years.”
“In seven years, did you ever get curious about listening to a tape?”
“Never had occasion to.”
Michael held out Tanous’s report. The old man took it, plopped it in front of the witness, and asked: “When you say you never had occasion to, it is so, on February 3, 1975, you were asked to submit a report to your boss, Deputy Bradley?”
“Yes, sir.”
“You submitted it, and on the last line you said, ‘All this information is to the best of my recollection.’ Now, would you tell this court and jury why you’d be depending on your recollection when you had a tape?”
“Objection.”
“Overruled.”
“This here was from my notes,” said Tanous.
“Now, [in] giving this to your superintendent, that was a time to turn on [the tape] and listen to it, wasn’t it?”
“I suppose so.”
“Did Deputy Superintendent Bradley say to you when he got your report, ‘I don’t want your recollection. Get the tape and we’ll both listen to it’?”
A hearsay question if there ever was one, but Keefe let it go.
“No, sir,” said Tanous. “He accepted my report as is.”
The old man tried the same finish he had used with Mullen: “Officer Tanous, would you go up to Headquarters, find out, and let us know this afternoon whether or not [there] is a tape for January 29?”
This time Keefe was ready with an objection, which Skinner sustained. You can’t send witnesses on errands.
The old man sat down and Tanous left the room. Keefe turned toward his clients and nodded. Denny whispered something to Eddie, and in a second Eddie was sliding through the bar enclosure on his way to the witness stand. Mary led Eurina and Jamil out of the room as Eddie was taking the oath. She took them back to the office, where my mother had their coloring books and a few toys ready for them, since we expected Eddie to be on the stand for a long time. I grabbed a fresh note pad. Michael did too. And I think Skinner did too. The old man pushed his chair back from the table and twisted it to face Eddie. Apparently he wasn’t going to bother taking notes—a signal of supreme confidence. Pat Bowden sighed and said nothing. A rustle went through the jury box. Everyone studied Eddie in the long seconds of charged silence before Keefe asked, “Would you state your name, please?”
Keefe quickly moved Eddie through the resumé preliminaries: age, address, education, military service. The fourteen years between the Navy and the Department were covered with: “Basically, I worked construction and as a salesman.”
Eddie’s style of speaking was disconcertingly slow, full of uhs and punctuated by his wrinkled-forehead pauses. It seemed to me to be the speech of a man trying too hard to be sincere and it came in a voice that was hard as a curbstone. As Michael had promised, demeanor was going to be a problem for Eddie.
In twenty minutes Keefe had Eddie “patrolling the area of Mission Hill, Tremont Street, Gurney Street, Smith Street,” with O’Brian and Kobre in the back seat, having heard John Tanous’s alert “concerning the Cambridge robbery” a few hours earlier. At that point—11:05 A.M.—Skinner called for the morning recess.
In the men’s room, the old man, who had been staring at Eddie for every second of direct examination, said, “He’s great, isn’t he?”
“He was just like that in the deposition,” Michael affirmed.
“Now, Holland wasn’t the driver, right?” asked the old man. “Or was he?”
I was so shocked by the question, I couldn’t speak.
“He was the radio man,” Michael said.
“Oh, yeah,” said the old man.
We never expected the old man to know the case as well as we did, but this lapse of memory was frightening.
He’s a crammer. He was as a student and he is as a lawyer. He does his homework at the last minute. He usually knows what he has to know for as long as he has to know it, and not a day longer. Ask him about a case a week after he’s tried it, and he won’t even get the names right. It had seemed like he was ready for Eddie and Denny two weeks ago, but that was two weeks ago. That morning my mother told me that he was up most of the previous night apparently studying depositions, but she said she heard the television going at a few points. Michael, who was never any kind of studier in school, does his lawyerly homework well in advance and retains the minutiae of a case forever. Cramming isn’t the way to prepare for anything important, I kept telling Michael. He kept saying that the old man would be ready when he had to be.
“How do you know?”
“Because he always has been.”
Infuriated now, I pulled Michael aside as we walked back into the courtroom. Before I could say anything, he said, “Okay, so he won’t have every detail straight, but he’ll get almost everything in.”
“What do you mean, almost everything?”
“He’ll get everything that counts. He’ll be jumping all over the place and he’ll hit a lot. That’s the best you can hope for. He’s not gonna start working with notes now. I’ll give him one of our Eddie checklists, but once he’s on his feet, he won’t remember to look at it. We’ll get in what he has in his head, and that’ll be good enough.”
“What’s this ‘good enough’ shit?”
“Hey, just keep feeding him questions. He’ll ask them.”
Almost every time the old man examined a witness, I had been writing suggested questions on index cards and handing them to him when he was close enough to me or leaving them on the lectern for him to pick up on his next swing by. He had used all of them.
I took up my front-row position again and pulled some extra index cards out of my briefcase. Suddenly, the old man was leaning over the bar enclosure whispering in my right ear so that Pat wouldn’t hear him: “Don’t worry. I’m gonna knock him out of the fuckin’ ring.”
It was as if I were six years old again and he was tucking me in, telling me that Santa Claus was on his way or that the Brink’s guys were innocent.
I believed him.
At 11:25 Eddie was back on the stand and Keefe was back at the lectern. In half an hour of asking “What next did you observe or what next did you do, Officer?” Keefe took Eddie all the way through his story without offering a single exhibit, such as his report or a medical record, to back it up.
Eddie: “Parked on the right-hand side of the street was a blue Buick with a black vinyl top. As I passed the vehicle, I took a glance to the right and noticed the front plate was missing. . . . I asked Dennis to stop the car. . . . He made a U-turn, and I made mention that that vehicle fits the description of the one put out over the air, used in the Cambridge Pearl Street Market robbery. We stopped just beyond the rear of the vehicle and glanced over at the plate, 4F•6838. At that point, we went to the corner of Gurney Street. I surmised there that perhaps this was the vehicle used in the holdup.”
“As I best recall, to my memory, I had conversation with the TPF office, and I don’t know who was on the other end. . . . I remember a communication coming back saying that that’s the car, ‘Sit on it,’ [and] to be careful, that there was a shotgun and a gun used in the holdup.”
“Officers Molloy and Dwyer in the 841 car said they would station themselves on St. Alphonsus Street at the [other] end of Smith Street.”
“The next thing that I recall was a T-Bird . . . making a very slow turn to Smith Street. . . . I observed the operator of that vehicle had a Levi jacket on and a Levi hat, blue in color, denim type, dungaree type, whatever you would call it.”
“I observed the Thunderbird pull alongside of the Buick or just opposite it.”
“It appeared to me that a person alighted from the—stepped out of the passenger side of the Thunderbird and went to the operator’s side of the Buick. . . . He appeared to me to be a black male.”
“I observed the T-Bird back up. . . . I observed it back up and . . . back into a parking spot with about perhaps a foot or foot and a half of his taillight sticking out.”
“I observed the Buick start in motion backwards. At that point—I believe it was myself, I’m not sure—but I can hear a voice saying that we’re moving in and there’s a T-Bird involved in it.”
Keefe asked, “Can you recall at this time, Officer, where your weapon was?”
Eddie replied, “My weapon, at this time, I really don’t know.”
“What next, Officer, did you observe or do?”
“The vehicle I was in moved down to the rear of the Buick that was backing up. The Buick came to a stop. Dennis got out the operator’s side of the vehicle. I got out the passenger’s side. Dennis went to the operator’s side of the Buick, front door. I went to the passenger’s side of the Buick with my badge displayed and my gun in hand. I banged on the window, announcing my office, stating, ‘I’m a Boston police officer. Get out of the vehicle.’ I then moved to the front of the vehicle, offset to the right side approximately two, perhaps three feet. I placed the gun in my pocket and kept my hand on it. The next I recall the vehicle took a sharp right toward me, striking me, knocking me off balance. . . . It just grazed me . . . and spun me around to the rear of the vehicle.”
“What next did you observe, Officer?”
“I observed the vehicle. I was perhaps three or four feet to the rear and directly in back of the right rear fender. At tremendous acceleration, the vehicle came backwards, striking me and hit me on the left side of the left knee. I went to the ground. I got up. As I got up, there was a shot fired from across the street. Whether it was fired at me or not, I don’t know, but there was a figure standing outside of what I believe to be the T-Bird with a rifle or some type of a gun with an elongated barrel on it. Again, still in reverse, the Buick moved in reverse just a short distance as if he was trying to get it out of gear into another gear. I was knocked down again. I grabbed ahold of the door handle. I pulled myself up. I was confronted with a man in that vehicle holding a gun directly at me. At that point, the front passenger window blew out of the car. I was struggling. I still had my gun partially out and I returned the fire into the vehicle.”
“What next did you observe, or what next did you do?”
“Well, I was stunned at the time. When I got hit in reverse the first time, there, it actually brought tears to my eyes it hurt so bad. It was like hitting a crazy bone. I was actually stunned at that point. The next thing I knew the Buick had left down Smith Street . . . and I got back to the vehicle somehow.”
“What did you do then after you got back to your vehicle?”
“Well, the next I remember is calling for an ambulance. That is the next thing I remember doing there. I believe I put the number out over the air.”
“And where did you get the number of the T-Bird from?”
“I don’t know. I don’t know whether I made a note of it going around the corner or whether I got it off of Dennis or what.”
“When was the last time you saw the Thunderbird?”
“The last time I saw the Thunderbird, it was making a left just before the Tobin School into an alleyway. . . . I believe it was just after the Buick had left. I don’t know. Maybe I’m wrong on that, but that is to the best of my recollection.”
“After you got back to your own vehicle, Officer, what next did you do?”
“I believe we went right to the scene, right to the crash scene. . . . I observed several people. And they just seemed to come out of hallways and everything down there. And they were all around the car. There was what appeared to me to be a young Spanish man. And he had on a sequin jacket. He was inside the car going through the glove compartment of the car. I yanked him out of there and told him to get the hell out of there.”
“I visually observed the inside of the vehicle . . . and the only thing I can remember was that there were two packages—Zig-Zag and a package of cigarette paper—right on the door itself. There was a black man in there in an upright position, and Dennis was attempting to give him first aid, help of some type.”
“I walked around to the rear of the vehicle, and the trunk of the vehicle was open. . . . I observed inside of the trunk the number plate, a Massachusetts Registration 4F•6838, lying right point-blank in front of me in the trunk of the vehicle.”
“So what then did you do, Officer?”
“We went to District Two. . . . We went to the Detectives’ Room.”
“Approximately how long were you there in the Detectives’ Room at District Two?”
“I don’t recall the exact time, but it was quite a while.”
“What were you doing up there?”
“Well, I was sitting in a chair. . . . I sat in a chair up there most of the time. . . . I had a conversation with, as best I recall, Sergeant McHale. . . . I gave Sergeant McHale a brief report of what had happened. . . . I then went down to the Carney Hospital.
“I was taken into the emergency room . . . examined and treated, given a pair of crutches, and told to stay on them.
“Perhaps between one and two o’clock [in the morning] I was making a written report of the incident.”
“What, if anything, occurred the next morning, Officer?”
“I really don’t recall.”
“Did you have occasion to go to court that day?”
“I don’t recall going to court that day, sir. . . . As I best recall, when I did go to court, it was perhaps two weeks later, sir. It was much, much later.”
“What was the nature of the court proceeding?”
“Well, apparently some police officers—after the number of the T-Bird was put out over the air—they traced the vehicle to some address on Annunciation Road and apprehended the operator of the vehicle. . . . I believe it was [for] assault, A and B, assault by means of a dangerous weapon, and assault with intent to murder. I may be wrong about that, but that is the best of my recollection. . . . I gave testimony in the case, and I could not identify that person as being in the vehicle.”
“Did you have occasion to seek medical attention again?”
“Yes, sir. I went to Doctor Creeden.”
“How did your knee feel at that time?”
“I was still shaky.”
“Do you recall how many times you saw Doctor Creeden in connection with this?”
“I don’t recall, sir.”
“Did you return to work at some time?”
“I did, sir. . . . It was about three months after the incident.”
“During those three months . . . why didn’t you work?”
“I was unable to.”
“Why?”
“I was an invalid.”
“Why were you an invalid?”
“From being struck by the Buick.”
“No further ques—”
Before Keefe could finish the line, the old man was in the middle of the room, booming, “Now, Officer Holland.”
“—tions, Your Honor.”
“Do you recall that at the Carney Hospital they took an X ray and found you had no evidence of a fracture?”
After a pause even longer than usual, Eddie replied, “No, sir. I don’t recall that.”
“And do you remember,” the old man continued, as Keefe scurried back to the defense table, “they checked your leg—an arthrogram—and they found everything normal?”
“They didn’t tell me anything, sir.”
“I see.” The old man nodded. “And you weren’t curious enough to ask?”
“No, I did not, sir.”
“You never walked into Doctor Creeden’s office on February 28, 1975, with a pair of crutches, did you?”
“As I best recall, I did.”
“I see.” The old man winked—actually winked—at the jury. Skinner missed it, as did Keefe, who had just begun taking notes. “Now would you change your testimony if I told you Doctor Creeden, under oath, said you didn’t?”
“I, I don’t—I say I don’t recall whether I did or not, sir.”
It was a splendid opening minute. Three hours of cross lay ahead.
When the old man was in law school, he found, buried in heaps of dull, assigned reading, a passage on cross-examination that he has never forgotten. It is in Volume 5 of the Third Edition (1940) of John Henry Wigmore’s A Treatise on the Anglo-American System of Evidence in Trials at Common Law: “Cross-examination . . . takes the place in our system which torture occupied in the mediaeval system. . . . it is beyond any doubt the greatest legal engine ever invented for the discovery of truth. . . . cross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law.”
The old man didn’t then read, and hasn’t since read, anything about how to cross-examine. He just took Wigmore’s thought and his own genetic inheritance of a boxer’s instincts into the courtroom and started bobbing and jabbing and slugging. Had he consulted the how-to books, as most lawyers do, he might have been influenced, as most lawyers have been, by such warnings as: “In cross-examining the hostile defendant, counsel must be extremely calm, extremely courteous, and above all, show no signs of hostility towards the defendant [because] the sympathies of the jurors are ordinarily with the person on the witness stand.”* When he squared off with Eddie in Courtroom No. 6, the old man was a wild-eyed, snarling eruption of hostility.
Leaning on the jury rail: “Now, you told this court and jury that it was days afterwards—a long time afterwards—that you went to the Roxbury District Court regarding a Thunderbird and a long rifle pointing out at you on Smith Street?”
“That is to the best of my recollection, sir.”
Running to the witness stand, grabbing a document from Michael on the way: “I show you this piece of paper dated January 30 and ask if your signature is contained thereon?”
“Yes, sir.”
“Now, sir, isn’t that an application for criminal process against one Ernest Winbush [and] didn’t you sign that on January 30?”
“Apparently I did, sir.”
“You did sign that in the Roxbury Court on January 30, didn’t you?”
“I perhaps did, sir. I don’t recall. . . . I just don’t recall the next day, sir.”
“You were over there the next day getting this application for criminal process against Mr. Winbush,” the old man declared.
“I don’t recall, sir,” said Eddie weakly.
“And furthermore, in March . . . the case was thrown out, right?”
“That’s right, sir.”
The old man offered the Roxbury Court record as an exhibit. Keefe made no objection. When admitting it, Skinner asked for “the name of the defendant on that.”
“Ernest Winbush,” said the old man, sneaking another wink at the jury. He meant, “Be patient. I’m going to put Winbush on the stand in my rebuttal case.” Of course, no juror could guess that.
Next, the old man showed Eddie his report, had him identify it, had it admitted as an exhibit, and asked, “Officer Holland, do you have one word in this report . . . about a Thunderbird with a gun firing at you?”
“No, sir,” Eddie replied quietly.
“Keep your voice up,” the old man ordered.
Eddie dutifully moved closer to the microphone. It was now fifteen minutes into cross, and the old man already had Eddie on puppet strings.
“Do you have one word in this report about a Spanish man at the [glove] compartment of the crashed car?”
“No, sir.”
“Do you have one word in this report about Zig-Zag papers being [in] the smashed-up Buick?”
“No, sir.”
“Do you have one word in this report regarding the trunk of the Buick being open and your looking in and seeing a plate?”
“No, sir.”
“Did you talk with Dennis McKenna before writing this report?”
“No, sir. I didn’t even see Dennis.”
The old man let ridiculous answers like that go when he was already zooming in on something else: “It is so, isn’t it, [that] at no time did he ever back you up about a rifle pointing out of the Thunderbird [and] shooting at you?”
“I don’t know, sir.”
“Have you ever discussed that aspect of your experience on Smith Street that night with Dennis McKenna?”
“No, sir.”
“To this day, under oath, you say you went out on that street January 29, 1975—you on the passenger side, McKenna on the driver’s side—and as to the Thunderbird firing at you, you never discussed it with Dennis McKenna.”
“No, sir. I have not.”
“Dennis McKenna was in the Roxbury Court . . . when they found no probable cause. Did you see him there?”
“I don’t recall at this time.”
The most telling aspect of Eddie’s testimony had become the ever longer, ever more awkward silences he was leaving between the question and his answer. Sometimes he appeared to be searching his memory, but most often he just seemed lost.
From the lectern, after reading one of my index cards, the old man asked, “Incidentally—when you talk about your knee—isn’t it a fact that you had an accident with a police car on January 28, 1975, wherein you smacked it against a dumpster, ash barrels, and the wall of Twenty-four Heath Street?”
“Would you repeat that, sir?” Eddie requested. The old man did so, with obvious pleasure, and Eddie said, “I remember hitting a dumpster that night, yes, sir.”
“And you damaged the police car?”
“There was some damage, yes, sir.”
“How about your left knee?”
“There was no damage to my body whatsoever, sir.”
“Wasn’t there damage to the left side of the car?”
“There was damage to the left and to the right, as I recall it, sir.”
“All right.”
Standing in front of the defense table, blocking Tom McKenna’s view of the witness stand: “As you approached the [Buick], you had in mind that you were approaching the car of an armed man, right?”
“Yes, sir.”
“You couldn’t identify anything specific about him, could you?”
“Just one thing.”
“What is the one thing?”
“That he was black.”
The old man let that answer float through the air for a while. He looked at Skinner, who was scribbling furiously.
“It is a fact, when you aimed your gun at Mr. Bowden and squeezed off four bullets . . . you intended to kill him.”
“I intended to kill him or stop him any way I could.”
“All right.”
The old man pulled his chair into the center of the room, sat on it, and said, “Assuming I’m Mr. Bowden sitting here behind the wheel, would you get down and show how you placed yourself?”
Eddie stepped off the stand and took a position near Michael that indicated he was in front of the car.
“Were you within the headlight rays of the Bowden car?” asked the old man, still sitting.
Eddie nodded and said, “I wasn’t directly in front, though.”
Michael reached into a box and pulled out a toy car about eight inches long and a tiny policeman doll. The old man put them on the witness stand and had Eddie use them to show exactly where he stood. Eddie placed the car and the doll thus:
The old man kept Eddie on his feet for the remaining twenty minutes before the lunch break.
“You were in full view of this man you eventually shot and killed?”
“I imagine he could see me, yes, sir.”
“Would you give this court and jury an explanation of how you would come to expose yourself to being killed by walking in front of a car that you feel is occupied by a robber with a gun?”
“Well, it has been my experience that there is no definite way to approach a vehicle, and this has been proven many, many times over. No matter what angle you approach a vehicle from, it is not safe. You take the safest precautions that you feel. You use prudence in it and the best things that work out. And this has worked for me many, many times. And I’ve never had a problem with it.”
“Yeah,” the old man grunted. It was a devastating one-word review of the answer.
“Now, where you have yourself stationed in front of the Buick . . . you make an excellent target for the person in the Buick.”
“No, sir. I wouldn’t say that.”
“Would you even concede that if you crouched by the side of it, you would be less of a target than standing in front of its headlights?”
“That may be so.”
“While you were standing [in front of the car, Bowden] didn’t point a gun at you, did he?”
“No, sir. He did not.”
“Isn’t it a fact, Mr. Holland, that what you did was immediately shoot?”
“No, sir. It is not.”
“Within about five seconds?”
“No, sir. It is not.”
“For what purpose would you ever leave the side of the car and walk up in front?”
“So I could see the operator, see what he was doing.”
“How about looking through the window you banged with your hand? You’re closer to him.”
“I just went to the front. I had a better view of him from there.”
“Isn’t that just a contrivance that you made up to extricate yourself from killing this man for no good reason?”
“Would you put it in simple words?”
“Isn’t it a lie?”
“As God is my judge, I was standing in the front of that vehicle and that man drove it directly at me.”
“Why didn’t you shoot him?”
“I perhaps would have if I didn’t lose my balance. . . . I got hit good enough to knock me off balance.”
The old man had Eddie step off the stand and demonstrate what happened to him when he lost his balance. Eddie did a pirouette and demi-plié.
“You’re not knocked down?”
“The first time, no, sir.”
“All the time you had a gun in your hand?”
“I did not. . . . I had it in my hand and I put it in my pocket. . . . I was fumbling for my gun.”
“What was McKenna doing when this car was doing these things to you?”
“I had no idea what Dennis was doing.”
“You could see him?”
“Dennis was the last thought in my mind right then.”
“What do you mean, ‘the last thought’? He was right there in the street separated by the width of the car!”
“Mr. O’Donnell,” Skinner interrupted, “just ask questions.”
“I’m sorry,” said the old man. Turning back to Eddie, he said, “Dennis McKenna, a man with a gun—was he there?”
“I don’t know where Dennis was.”
“And is it your testimony that the operator put the car in reverse and came back and hit you?”
“Yes, sir. He did . . . with tremendous acceleration.”
“You got hit on the knee?” The old man got down on his left knee.
“That is when I got struck, yes, sir.”
“Having in mind something coming at you with tremendous force, you move, don’t you?” The old man did a quick sidestep.
“You try to get out of the way,” Eddie agreed.
“What do you mean try? You jump!” And the old man jumped.
“I was trying to get out of the way,” said Eddie.
“I want to see how you stepped. You stepped to the right?”
Eddie bent his left knee, stuck his left foot out to the side, and said, “I stepped to the right.” He hopped to his right, pulling his left leg along, and said, “I brought my left foot to the right. I just got out. Otherwise, he would have cut me right in half.”
The old man spent the next ten minutes going over each of the Buick’s moves and each of Eddie’s corresponding moves in inch-by-inch detail. Then he asked, “There wasn’t anything to stop the Bowden car from going right up to St. Alphonsus Street, was there?”
“No, sir.”
“But your testimony is that it stayed to put itself in reverse, go forward, then back up at you again?”
“Yes, sir.”
“I see.”
The lunch break came as usual at one o’clock, but this time it lasted two hours because Skinner needed some time to rule on motions pending in other cases. Back at the office, Michael and I didn’t try to stuff the old man with facts to use in the afternoon session. He was doing just fine with what he knew. The long lunch hour raced by and at three o’clock Eddie was back on the stand and the old man was two feet away from him holding out his hand and asking, “May I have the plate that you saw that night in the trunk?”
“I don’t have it, sir.”
“What did you do with it?”
“I never touched it.”
“What happened to it?”
“I don’t know, sir.”
“You didn’t tell me about it when I took your deposition.”
“You never asked me about it.”
“Who is the first person you told about the plate?”
“I mentioned the fact to Mr. Keefe.”
The old man gave Keefe a suspicious look, pointed to him, and said, “He’s the first person you ever told about it.”
“Yes, sir,” replied Eddie.
We weren’t sure how Eddie and Keefe thought this new claim helped the defense. Keefe looked down at his notes.
The old man put three toy cars on the stand and asked Eddie to place them in the positions of the Buick, the Thunderbird, and the ACU car during the shooting. Eddie’s arrangement of them can be seen on the next page.
“When did the Thunderbird appear in there?” asked the old man with a face full of confusion.
“The Thunderbird, to the best of my recollection, was there all the time, sir.”
“That’s just to the best of your recollection?”
“That’s correct, sir.”
“You can’t positively say it was there all the time, can you, Mr. Holland?”
“No, sir. I cannot.”
“At what point in the sequence of events where you are getting whacked by the car did the person in the Thunderbird fire a rifle at you?”
“Just after being hit there the second time.”
The old man took Eddie’s gun from the clerk’s desk and said, “You had ammunition in this.”
“Yes, sir. I did.”
Springing into a firing stance, aiming the gun at the front wall, the old man barked, “Did you smack this revolver right at [the Thunderbird] and squeeze off a couple?”
“No, sir.”
Holding the firing stance, the old man asked, “Now, in your police training, they did enlighten you [that] if someone shoots a rifle at you, you can shoot back?”
“Yes, sir.”
“But you elected not to shoot at this individual?”
“I didn’t have my gun out.”
The old man put the gun in his coat pocket, saying, “You had it in your pocket.” Whipping it right back out, he said, “You take it out and shoot him.” Wanting a demonstration from Eddie, he put the gun on the stand and told him, “Just stick it in your pocket, the right-hand pocket.”
“I don’t have pockets.”
“You don’t have pockets in that jacket?”
I counted four pockets in Eddie’s jacket.
“I do,” said Eddie, blushing, “but they’re sewn up.”
The old man sighed and shook his head. Cohen smiled. The old man had to skip the demonstration, but he stayed with the rifle fire: “You didn’t shoot at the Thunderbird because your gun was in your pocket?”
“That’s right. Plus the fact that I was injured.”
“That’s your knee! Your hand is really working! It can keep you alive! If someone points a rifle at you out of a Thunderbird, you just fire back!”
Keefe should have been up objecting to the old man arguing his case instead of asking questions. But the old man had the momentum of a freight train.
He asked, “Are they gentle and only fire one shot at you [from the Thunderbird]?”
“I don’t know.”
The old man growled, “You never saw a Thunderbird firing at you, did you, Mr. Holland?”
“Yes, sir. I did.”
“You just contrived that story to get away with the killing of James Bowden!”
“No, sir.”
“All right. . . . Did you note the number of the Thunderbird [after] seeing someone in that Thunderbird shoot at you?”
“Somehow I had it in my mind. I don’t know where I got it from.”
“You just happened to have it in your mind. Okay.”
Emphasizing the preposterous answer was probably more effective than what someone with an encyclopedic command of the details would have done—i.e., confront Eddie with what he had told John Geagan: Dennis “had the number of the vehicle. He got that probably, uh, I don’t know where he got it from, to be honest.” Of course, you’re not allowed to do that—repeat a witness’s answer for purposes of ridicule—unless you do it in the form of a question. Ordinarily, Skinner would have rebuked the old man, even without an objection from Keefe. But perhaps thinking Eddie deserved a hard time, Skinner let the old man get away with whatever Keefe didn’t protest.
“When the Thunderbird pointed the rifle out at you and shot, did you say, ‘Dennis, duck! There’s a guy with a rifle behind you!’?”
“No, sir. . . . I don’t know where Dennis was at the time.”
“He was on that side of the street! He was on that side of the Buick! Did you try to help him? Did you say, ‘Watch out for the guy with the rifle! He just shot at me!’?”
“I don’t recall saying anything, sir.”
“You never warned him, did you?”
“I don’t recall ever saying anything.”
“Having in mind your testimony [that] you don’t know where Dennis McKenna was, how tall do you say Dennis McKenna is?”
“I would say approximately my height . . . five eight.”
“You know you were both higher than this car—about fifty-five inches, the height of the car.”
“I would say so.”
“So, did you take any step at all to guard against shooting Dennis McKenna?”
“No, sir.”
The old man picked up Eddie’s gun again. “Did you hold it in one hand?”
“That is all I had a chance to do, sir.”
“You grabbed ahold of the handle of the car?”
“Yes.”
“And what did you do then?”
“I was fumbling for my gun.”
“What do you mean, fumbling? It was in your pocket!”
“Yes, sir.”
“Then you put your hand in and take it out.” The old man was putting the gun in and pulling it out of his pocket repeatedly.
“I just couldn’t get it out of there,” said Eddie.
“This is a recessed hammer. There is nothing to catch on your clothing, right?”
“Yes.”
“That’s why it was designed that way.”
“Right.”
“Now, what did you see the driver of the Buick do?”
“I saw a silhouette of a man leaning over with what appeared to me to be a forty-five-caliber, a very large, automatic.”
“Did you shoot him?”
“No, sir.”
“What were you waiting for?”
“I was getting my gun out.”
“What did he do? Wait until you got your gun out?”
“No, sir. The window of the car blew out.”
“You know Dennis McKenna shot through from the driver’s side?”
“No, sir. I don’t.”
“So, when he’s pointing this gun at you, you didn’t fire?”
“I didn’t fire because my gun was still in my pocket.”
“Nothing wrong with your right hand?”
“I was stunned.”
“Do you mean unconscious?”
“It brought tears to my eyes.”
“No—I understand there are tears in your eyes. There’s a fella pointing a rifle at you, shooting at you, another fella pointing a forty-five at you. Did you lose consciousness?”
“I had tears in my eyes not because someone was pointing a gun or rifle at me, but because I was injured.”
“The question is,” Skinner suddenly intoned, “did you lose consciousness?”
“I was stunned. I don’t recall, Your Honor. Honestly. I could have for a second.”
“Next question,” said Skinner.
“How much time would you say elapsed,” asked the old man, “between the time you got hit the third time and firing your gun?”
“Perhaps twenty seconds.”
“Twenty seconds goes by, and when you started to squeeze off your four bullets, he still was at the wheel of the car pointing that forty-five at you?”
“Yes, sir.”
“You can squeeze off a lot of bullets out of an automatic in twenty seconds. . . . Could you give this court and jury any reason why you weren’t dead on that street—why you didn’t get hit with about six bullets out of the magazine of that gun?”
“God only knows, sir.”
“How close are you to [Bowden] when you squeeze off four shots?”
“I can’t honestly say, sir.”
“Two feet?”
“Close.”
“What happened to the man when your bullets went into him?”
“I don’t know what happened to him, sir.”
“Did you see him fall over the wheel?” The old man was in his chair now, falling over an imaginary steering wheel.
“No, sir. . . . The vehicle sped off.”
“And went down to the Tobin School and smashed up?”
Eddie nodded. The old man rose and wandered around the floor.
“And at that time, did you look in the car for the gun?”
“I visually observed.”
“When you say ‘visually observed,’ you mean you just looked?”
“A quick glance, yes, sir.”
“Wouldn’t it be very helpful for you to search that car to see if you could find a gun?”
“No, sir. It would not be.”
“Well, assuming you found one and had it on the witness stand today, with Bowden’s prints on it, would that be of any use to you?”
“At a shooting scene, sir, we are taught not to touch anything.”
“Do you want the jury to understand you didn’t take a thorough look, you didn’t take a policeman’s look, you didn’t take an interested look in there for a forty-five?”
“I just visually glanced.”
“Does ‘visually glanced’ mean you looked?”
“I did, sir.”
“Did you find any discharged cartridges that would hold a bullet?”
“I didn’t go in the vehicle at all, sir.”
Strolling by the lectern, the old man found Eddie’s Internal Affairs interview, which I had placed there half an hour earlier.
“Now, you gave a statement to Sergeant John Geagan on Thursday, February 13, 1975.”
“I did.”
“When you gave that statement to Geagan, you were accompanied by Mr. McGee as your attorney.”
“I don’t know if he was representing me or not, sir. I imagine he was there for a reason.”
“How did he happen to be there with you?”
“I have no idea.”
“If you look at this, you’ll see it says you elected to be accompanied by your lawyer, Frank McGee.”
“Where does it say that, sir?” Eddie looked mystified.
The old man put the transcript in front of Eddie and quoted Geagan saying: “You’ve exercised your right to have your attorney present here with you—Attorney Frank McGee, sitting at your right.”
“Like I say,” said Eddie, “I admit he was there.”
“You talked this matter over with Mr. Frank McGee?”
“No, sir. I did not.”
“Now, when you gave your story to Sergeant Geagan of Internal Affairs, you never said one word about seeing a plate [in] the trunk.”
“No, sir. I did not.”
“You never said one word about a Spanish fella fishing through the glove compartment.”
“No, sir. I did not.”
“And you never said anything about Zig-Zag papers.”
“No, sir. I did not.”
“Now, having in mind that you are looking for a gun down there in the Buick . . . it is critical as to who is putting their hands in that car, isn’t it, Mr. Holland?”
“Well, I don’t know what the boy was doing, sir, whether he was trying to help the victim or what.”
“Did you mean to leave the inference he was probably taking the gun or bullets out of there?”
“He didn’t have that much time in my opinion, sir.”
“You did nothing but say, ‘Get the hell out of here’?”
“That’s correct, sir.”
“So, when did you first tell anyone on the planet Earth about this Spanish person rifling the glove compartment?”
“I made mention to Mr. Keefe there.” Eddie looked at Keefe, as did the old man and everyone else. Keefe looked at his notes.
“Now, when you mention Zig-Zag papers . . . is that the type of paper you would roll marijuana in?”
“It could be used to roll cigarettes,” Eddie said innocently.
“Didn’t you want the jury to think there was probably a pound of marijuana on the front seat of the car? You never used that before?”
“I don’t recall saying it, sir.”
“What would make Zig-Zag papers stick in your mind?”
“Just that it was there and I did see it. I tried to visualize everything I did see at the scene there.”
“And one thing you would want to have in mind, you would look at Bowden to see if he was wearing any gloves, wouldn’t you, Mr. Holland?”
“No, sir, not necessarily.”
“Would you think of fingerprints? ‘I wonder if he left fingerprints on the gun.’ Now, can you say whether or not Bowden had gloves on?”
“I don’t know, sir.”
Toward the end of the day, the old man closed in on Eddie’s version of the stakeout.
“When you observed the number on that car—4F•6838—you wrote it down. That’s so, isn’t it?”
“I don’t recall, sir.”
“Did you have a pencil, pen, a piece of chalk, anything with you . . . to write down numbers and information?”
“I don’t recall.”
“You trusted everything to memory?”
“I just don’t recall whether I had a pencil or not.”
“Did you have a piece of paper?”
“I don’t recall, sir.”
“You wanted to verify the number 4F•6838, didn’t you?”
“Yes, sir.”
“You wouldn’t want to shoot anybody in that car without verifying that number?”
“Positively not, sir.”
“Did you call in to the turret?”
“I don’t believe I ever called the turret, sir. . . . I believe it was the TPF office.”
“Isn’t it a fact you were 841?”
“To the best of my knowledge, we were 841A.”
“Isn’t the 841A designation something you adopted for the purposes of covering up your error?”
“No, sir.”
“Well, when you called the TPF office, did you give them 4F•6838?”
“I can’t recall at this time, now, sir, but I believe I did.”
Eddie had sounded sure about this during direct examination.
“Did you hear that number come in on your walkie-talkie or radio earlier that day?”
“I don’t recall, sir.”
“When you took the number off the plate, did you check it against numbers you had written down earlier?”
“I don’t recall writing anything down, sir.”
“Aren’t you supposed to write down numbers of cars involved in robberies?”
“Not necessarily, sir.”
“Would you tell this court and jury when it would be necessary to write down a robbery number?”
“I can’t answer that.”
“Now, can you think of any occasion, with your background and training as a police officer, when it would be necessary to write down a number of a robbery car?”
“I’ve never had occasion to, sir.”
The old man arched his eyebrows to the jury and gave that answer some time to sink in.
“Did you hear David O’Brian testify?”
“Yes, sir, I did.”
“Did you hear him say you had a pad with you, making notes?”
“I heard him say I had a clipboard, yes, sir.”
“Isn’t it standard procedure to have a pad there to write down this type of information, the number plate of a robbery suspect car?”
“No, sir.”
“You had no memo to look at to verify that that was a number used in a Cambridge robbery?”
“I don’t recall, sir.”
At this point, Eddie’s memory was completely gone. Things he had said hours and even minutes earlier eluded him now.
“Now, when you observed the car, and you picked up this number, and you have it in your head, before shooting anyone in that car, did you check with anyone to get the number used in the Cambridge robbery?”
“I don’t recall, sir.”
“So that when you shot Bowden, you had no way of knowing whether or not 4-Frank 6838 was the plate on the car in the robbery?”
“No, sir.”
“Did it come over the air? The number of the car used in the robbery?”
“I don’t recall, sir.”
“So now, according to your testimony, when you approached the Bowden car . . . you didn’t know anything about the number!”
“I don’t recall if I did or not, sir.”
Eddie wasn’t squirming anymore. He had clearly given up the fight. Elbows on the counter, both hands holding his head, he stared glumly at the floor. He seemed beaten. The old man finished him off with a setup and a question that I had given him on an index card an hour earlier.
“Finally, Mr. Holland, this is the last question.”
A very chancy announcement. It promises the jury something big.
“When you shot Mr. Bowden, he was looking at you and pointing a gun at you?”
“Yes, sir.”
Turning to Eddie with his arm extended, as if aiming a gun at him, the old man whispered, “Can you tell me how your bullets went through his back and the back of his head?”
Eddie took his longest pause of the day, and the old man still held the imaginary gun on him. Perhaps hoping for an objection, Eddie looked to the defense table. Then to the floor. To the old man. To the floor again. Sitting eight feet from Eddie, Michael could see his lower lip quivering. Finally, looking bewildered and pained, Eddie groaned, “I have no idea.”
The old man fell into his chair.
I heard what sounded like voices coming from another room. It was Skinner inviting redirect, Keefe declining, and Skinner adjourning.