I spent the night at the old man’s house. The plan was for me to pump him up with information for the argument. But he fell asleep on the couch at eight-thirty—about ten minutes after we walked in the door. I spread my notes out on the living room floor, and while he snored I wrote one-liners on index cards.
It must have been well after midnight when I fell asleep. My mother found me sprawled on the floor at seven.
“Where’s the old man?” I asked.
“He’s in the shower. He’s been awake since three.”
My notes and cards were exactly where I had left them.
Soon the old man came bouncing down the stairs—tie tied, vest buttoned, hair combed—carrying a couple of old sport coats.
“Hey, I found these in the attic,” he said. “What do you think? Will they fit you? Try them on. They’ve gotta be twenty-five years old, the both of them.”
One was a blue-gray cashmere. It fit. I took it. The other was a Harris tweed. It was too big, but I took it. It seemed that nothing could have made him happier.
He pulled a handful of cards out of his pocket, gave them to me, and said, “Tell me which ones I should use.” There were eighteen cards. On each, in his surprisingly careful handwriting, was a line by Shakespeare, Abraham Lincoln, Plato, William Butler Yeats, or another of a flock of sages.
“You don’t need these guys,” I said. “You need evidence.” And I handed him my cards.
“No, come on now. I wanna use some of them. I know I can’t use them all.”
I gave him the Byron and one of the Daniel Websters. He wanted more, but I was adamant.
He studied all the cards as we crawled along the Southeast Expressway and, at some point, said, “How the hell did I ever try cases alone?”
On the elevator in the parking garage, he started doing that little dance that boxers do before coming out of their corners. It suddenly occurred to me that the one athletic thing he ever tried to teach me was how to hit a punching bag—the speed bag. He could make it go like a propeller. Still can. I never caught on.
“It’s the case of a lifetime,” he said. “I mean it’s the case of my lifetime. . . . I mean I’ve lived my whole goddamn life for this case. . . . I mean . . . You know what I mean?”
Kevin showed up for the arguments, as did my mother, who hadn’t been in a courtroom since the Brink’s case.
On Eddie and Denny’s bench were two reporters assigned to the Federal Court—one from the Globe and one from the Herald. Word had spread through the building that the O’Donnells—of all people—were putting on a pretty good civil rights case against a couple of cops and actually had a chance of winning.
Eddie and Denny were inexplicably absent—not out in the hall either—when Skinner entered at 10:10 A.M. And they didn’t arrive during the ensuing half-hour bench conference that Skinner convened to discuss points of law he wanted to mention in his charge to the jury.
At 10:40 A.M. Skinner had the marshal bring in the jurors.
The old man did not look at them.
Skinner apologized for the delay and for the temperature of the courtroom. “We’re back in our freeze-and-fry sequence of heating in this room,” he said, “and it got pretty hot.” I hadn’t noticed. “I’ve opened this window, here. . . . If that’s uncomfortable or drafty for anyone, let me know.” No one complained.
“Now,” he said, “we’re at the point where the lawyers have a right to argue as to the version of the facts that you should accept, the testimony that you should believe or reject, and the conclusions which you should draw from the evidence. And to the extent it differs from your recollection of the evidence, you should disregard it, because it is your memory of the evidence that governs. . . . And that is true with respect to the remarks that I may make later on, if I talk about the evidence. . . .
“Pay attention to the lawyers. They have studied the case. They’ve lived with it and will undoubtedly be helpful to you in reviewing the evidence. . . . So, I urge you to pay careful attention to what they say. . . .
“The defendants go first. . . . Mr. Keefe, are you ready?”
“Yes, Your Honor.”
Forcing the defense to argue first is a procedure that courts instituted long ago as an advantage to prosecutors. Every other time I had seen the old man argue, he had gone first. I always thought it unfair. But now, as Keefe stepped up to the lectern, well . . .
He carried only a single legal pad with him. He moved the lectern to a spot between the counsel tables and turned it around to face the jury. The old man’s back was about six feet to Keefe’s right and the jury rail was about eight feet in front of him. The old man leaned back to listen. Michael hunched over to take notes. Tom McKenna gave Keefe rapt attention. Eddie and Denny were still absent.
Keefe coughed and, in his most hard-to-hear tone, said, “Madam Forelady and gentlemen of the jury, I would like to thank you for listening over this long period of time. . . . I would like to review with you some of the issues in the case [and] to summarize the evidence . . . in order to help you in your determinations. . . .
“Here we have many many witnesses trying to determine whether a certain few things happened on Gurney Street and on Smith Street.”
Judges are extremely reluctant to interrupt final arguments, but Skinner had to respond to the pained expressions in the jury box. “Mr. Keefe,” he said gently, “I think if you expect all of the jurors to hear you, you have to speak more loudly. Possibly you may want to get closer to them because they are not hearing you very well.”
Keefe smiled, nudged the lectern forward a few inches, and continued. Skinner leaned forward and cupped his ear. Keefe turned out to be more a suggester than an arguer. He sometimes spoke with feeling but stopped far short of passion. And he used the Socratic method lawyers often use when they have weak cases: give the jury questions instead of answers. He didn’t cover all the evidence, but lawyers seldom do in summations. The idea is to drill the jury on your strong points and glance over, and sometimes ignore, your weak points.
Most of the first half of his argument—twenty minutes—was devoted to the plate number controversy. He launched into it right after the Skinner interruption, saying, “You have to consider whether the police officers on Gurney Street had a reasonable suspicion [that] the person getting into the Buick might be involved in the Cambridge robbery or in illegal activity. And you have to consider to what extent a mistake might have been made, who it was made by, and what the effect of the mistake might have been. Was it proven to have been made by these officers? If it was, was the mistake so significant in light of all the circumstances? . . . [Would] a reasonable man . . . have considered it reasonable to approach the vehicle to ask the person in the vehicle questions concerning the Cambridge robbery?”
Skinner was going to answer that one in his charge to the jury.
Keefe went on: “You have to consider the good faith of the police officers. Is there anything that has been demonstrated to you that they were not acting in good faith? . . .
“Before I start to summarize the evidence, I would like you to consider [that] the plaintiffs are seeking damages. We had an economist in here who testified. When you are to consider damages, if you so find, you should consider, as the economist did testify, that personal consumption is a factor, taxes are a factor . . . and you have to consider [at] what interest rate the money could be invested. . . .
“Now, we’re going to start to discuss the circumstances . . . starting from the Cambridge robbery, the communications that were made, and the knowledge of the officers in their patrol car going down Smith Street. . . . You should consider, in this regard, the different lines of communication. Here you have a report coming in from victims in the Cambridge robbery. . . . It’s possible that a number can be made a mistake on in that time. You then have the first person who receives it at the police station reporting it to the next person—the person who perhaps receives the telephone call reports it to the radio operator. You have another juncture at which a number can be made a mistake about. Each time you have a juncture, you have two possibilities for a mistake—the sending and the receiving.
“With respect to Officer Mullen receiving a call . . . you should consider whether Officer Mullen wrote down what he heard. You should consider whether Officer Molloy reported the number correctly. . . .
“Officers McKenna and Holland . . . called the TPF base. They called in the description as best they knew it. They called in the plate as best they knew it. And there has been no evidence to show that they called in the wrong plate. . . . You, once again, have to consider the junctures. Officer Monroe took the call. Did he take the call correctly? He called the Cambridge Police. Did they even listen to the whole plate? Did they hear blue Buick Electra with the plate Four-F, and say ‘That is the one’?” There is no evidence to show the mistake in the plate was made by these officers!”
Keefe turned to point to Eddie and Denny, only to find them still missing.
“I submit to you there is no evidence that the defendant officers, McKenna and Holland, made that mistake.”
With half of his time gone, Keefe moved into the action.
“The officers are entitled to rely on the information they receive. . . . I ask you: Are they entitled to suspect the person who comes to the car if he matches the categorical description that they have? The man . . . was a black man, and this categorical description . . . matched the categorical description they had received over the radio. . . . It is their duty to follow up and to pursue this dangerous situation. . . .
“They approached the Buick. . . . Both of the officers have testified that they each announced their office. . . . You will recall the diagram with the little cars on the witness stand that showed that Officer Holland had taken a position in front of the car. You recall his testimony that the car came at him, the car struck him . . . came back at him, struck him, hit him in the knee, struck him hard. . . . It brought tears to his eyes. . . . He was down. . . . He grabbed the handle of the car when he came up.
“It’s interesting to consider that the little girls, or the schoolgirls, that were in the project testified that they had seen something, that they looked away, and they had looked back, and then saw some shooting. . . . One thing that the little girl did testify to was that she noticed the hand of a person on the car door. . . . That does, in fact, substantiate Holland’s testimony with respect to that aspect.
“You should also, with respect to the schoolgirls, consider that . . . they were unable to recall any details as to color, or any details as to what they saw. And when you think of that, you should consider the distance . . . they are looking from [and] that it is dark and it is at night and Smith Street is not that well lit. . . .
“You should consider the danger to undercover plainclothes police officers, in that they are not able to let people know as well as uniformed officers that they are police. . . . The announcing of the office by plain-clothesmen is something they do for their own protection. . . .
“You heard testimony from the reporters, O’Brian and Kobre, [that] they didn’t hear any noises except the shooting. I submit to you [that] with them scrunched down in the back seat . . . they were unable . . . to hear anything on the street except for the very loud noise of the shots. . . .
“Try to place yourself in that scene, trying to carry out your duties, the duties of a police officer. . . .
“You should consider the treatment by Doctor Creeden of Mr. Holland. When Doctor Creeden first saw Holland, [he] was still able to observe objective signs of the injury that Officer Holland received on Smith Street when the car struck him.”
Now Keefe had one minute left, and Skinner broke in to warn him: “Your time is about up, Mr. Keefe. Do you want to wind up?”
“Yes, Your Honor.”
At that moment, Denny entered and slid into the front bench.
“With respect to Mr. Winbush,” Keefe continued hurriedly, “you should consider that there is testimony from the police officers that there were tracks. . . . And you should consider that Mr. Winbush acknowledged to you that he had lied to the police officers! And I ask you to consider why he would want to do that. . . .
“You should consider the testimony of the girl that works at the hospital with respect to having James Bowden under her supervision on the twenty-ninth. She said that the reason she remembers that James Bowden was working for her that day was because James Bowden took the place of Donald Shaw. You should consider the testimony of Mr. Smith, the administrator . . . that Donald Shaw was working on the twenty-ninth. . . .
“Lastly, you should consider the gun that was found on the street. . . . You should consider whether this is the weapon that was observed by Officer Holland just prior to the window going out. . . . With respect to the ejection [of a shell], there was a possibility there was not a thorough search inside of the vehicle, or it’s possible it went out the window when the window blew out. . . .
“You should also consider that the vehicle’s motions are independent acts from the firing of a weapon. . . .
“Finally, you should consider the time references that were made with respect to what happened on Smith Street. You have the report of O’Brian. . . . I ask you to consider the accuracy as to the time he would estimate with respect to how long it took for the shots to start. He said three to five seconds. I submit to you, if you consider what actually happened out there, it would happen very fast! Perhaps it would take twelve seconds. And I ask you to consider Mr. O’Brian is wrong when he says three to five seconds! . . .
“Finally, I ask you to consider all the testimony of all the officers that you have heard. Consider their demeanor. Consider their jobs. And ask yourselves how did they impress you when you saw them talking on the stand. And I ask you to consider the reasonableness of the conduct of Officers McKenna and Holland! To consider the danger that’s involved in their duties as police officers in the city of Boston! And to make your deliberations carefully.
“Thank you very much.”
Keefe strode back to the defense table and took his seat just as Eddie came through the door and skulked over to Denny, as if hoping no one would notice his tardiness.
Conventional wisdom has it that defendants should always try to convey to juries an abiding interest in their trials. Steady attendance is one very good signal of that. Eddie and Denny had been irregular attendees since Day Two, but at least they had been in their seats at the beginning of each day. There was no point in speculating about why they were late this morning. (They were excused from work during the trial.) I was just glad they arrived in time for the main event. The old man needed them more than he needed my cards.
The old man dumped a pile of legal pads, cards, and exhibits on the lectern. He tried to organize the material neatly but gave up in a few seconds. He stepped back, looked at the clock on the back wall—11:22—and checked his silver pocket watch. He spoke slowly. “Your Honor, Madame Forelady, members of the jury, on behalf of the plaintiffs, thank you for your attention throughout this long, difficult trial. We also [thank] the United States marshal. And the court reporter. And the clerk.” He bowed to each person he mentioned.
Pause. “I look to the rear of the room, and there is a portrait of a judge on the left. . . . That is the Honorable George C. Sweeney, who served this court between 1935 and 1966. . . . He was appointed by Franklin Delano Roosevelt. . . . I want you to notice the frame that the portrait artist used. Beautiful gold leaf. Hand carved.”
Turning back to the jury, he drew a deep breath and whispered, “In this case you’re getting a perjury frame!” Louder: “And the perjury frame is around James Bowden and disabled Ernie Winbush!” Louder: “That’s a perjury frame! It’s a nefarious frame! It’s made of fraud, deceit, and perjury!”
The old man had thirty-nine minutes left in a three-year job. Michael slouched and just listened. The entire argument went on behind his back. No matter. His work was done. Mine was too. I put down my pen and held on to the bench. Pat was expressionless.
“But preliminarily, I say this is not the usual civil case. . . . The plaintiffs take the position that there was willful, wanton, reckless conduct here. . . . We have a wrongful death statute in Massachusetts. Chapter Two-twenty-nine. And in that statute there is a provision [for cases of] ‘willful, wanton, reckless conduct,’ [which allows] you to give punitive damages. . . . Now insofar as that is concerned, we have to tell the world, we have to tell the Commonwealth, we have to tell the City of Boston: ‘Don’t kill people just because’—the only characteristic Holland and McKenna ever knew was he was black. They never once stated here that he conformed to the description given out by Cambridge. They never said that. . . . He got killed because he was black! . . . Willful, wanton, reckless conduct will be found here. It reeks of it! It’s in this very courtroom.” He glared at Eddie and Denny.
Back to the jury again: “And we come to you under the federal law, which His Honor will discuss with you, Section 1983. . . . Now, that civil rights statute was passed in 1871 [and] it gives you the power . . . to police those who are charged with policing us all. . . .
“There isn’t a sane, fair-minded person who doesn’t support policemen. There isn’t. It is a sensible, civilized thing to do. And it’s the same way we support our armies. With our armies, we decorate. . . . We reward. We give Congressional Medals of Honor. We give Silver Stars. . . . Nevertheless, that same army that gives those rewards holds courtmartials, and they punish wrongdoers within their ranks. . . .
“Can anyone go into the jury room and say, ‘I’m voting for Mr. McKenna and Mr. Holland because James Bowden robbed the store in Cambridge’? He never did anything in his life! . . .
“Cambridge teletype. One black male, six feet, thin build, wearing a dark-blue denim jacket, white sneakers. Sneakers give you a lot of height? And the other: five-ten, thin build, wearing a hat, white sneakers.
“So what does the one man they can’t fix [do]? He measures James Bowden. . . . Sixty-four point five inches . . . That is a careful measurement. That is the measurement of a pathologist. . . . I admire Doctor Luongo . . . a public officer who will tell the truth. . . .
“There was not one piece of evidence brought in by this big police force that showed James Bowden wasn’t in the City Hospital [at 2:30 P.M.]. . . . No one ever got on that stand and said James Bowden robbed them in Cambridge! Nobody ever got on that stand and said James Bowden robbed them! . . .
“The pieces in this case can’t fit together. . . . The very first witness, Walter Logue . . . Does something go wrong there? He testifies, ‘At seven o’clock I found the Fabrique Nationale.’ And then I said, ‘Look, do you know Fagone?’ He jumps up to eight-fifteen! . . .
“What possible reason could an honorable, decent man like James Bowden have to do anything on Smith Street? They have him in a Buick automobile doing things that a prima ballerina couldn’t do. With that big car? Back up, go forward, make it go sideways, do this, do that? . . . This ballet around the car, it’s just ludicrous. . . . See, the defense case is: The cow jumped over the moon.” And the old man jumped.
“They thought they would come in here and impress you with their superior police work. . . . Let me give you an example of police work. . . . We had the biggest robbery known to mankind on January 17, 1950. The Brink’s robbery at One-ninety-one Prince Street.”
Skinner leaned forward with a knowing gleam in his eye. There was no great revelation coming. The few members of the Brink’s gang still living had recently admitted guilt—in exchange for book and movie money.
“It happened in 1950. There were no arrests until 1956. Eleven perpetrators of that crime were arrested by the FBI and not a shot was fired. Now . . . these men had been suspects all the time. Two of them were fugitives, [and when they] were caught, they had guns. Not a shot was fired. It’s been done. . . .
“There is not a shooting and killing in every arrest. . . . That’s only on TV. That distorts police work. . . . Men serve thirty years and never pull out their guns. It’s a rare, unusual thing. . . .
“I’ll tell you what we’ve got here. We’ve got people who killed and went for the cover-up—don’t recall; don’t remember; have no records; we don’t know how to write. Couldn’t give you a piece of paper. Wrote on a newspaper. A multimillion-dollar turret system? . . . You didn’t hear a whisper from it! . . .
“There’s nothing important on those tapes. Just a black guy got killed. (They’re still calling him colored—a colored male.) So what? We’ll beat the rap. We’ll cover it up. Who the hell can penetrate the Boston Police Department? We’ve got the patrolmen’s union. Let them try to press this case. Let them try to get any of these records.
“It wasn’t easy. . . .
“When they were down on Smith Street, they said, He’s black; he’ll be a drug pusher; he’ll have a record a mile long; he’ll live in a housing project; he’ll be on welfare. The vicious stereotype! Class libel! Vicious!”
Then, in a low voice: “What did they get? A twenty-five-year-old man . . . Worked continuously for seven years . . . Married . . . Paying rent in a three-family house.” Long pause. “Son, six months.” Voice cracking: “A daughter, three years . . . Sure, it moves me! I tell you what I want to do! I want those kids to be able to grow up and say, ‘My father wasn’t a robber. He’s not here, but he left us his name, and we . . . want to go along and not have that on us. We loved our father.’
“Jamil, the boy. Six months. You saw them in here. They’re plaintiffs. Eurina, the daughter. What do you think? Do you think she felt her father’s arms around her? Do you think at three years old there was something there she wanted? Do you think she misses it?
“The poor widow sitting there . . . Who does she turn to now? . . . Nobody.”
The old man’s eyes leaped from Pat to Eddie and Denny. “They were just two orphans in the storm, two little orphans in the storm. They found themselves out on Smith Street. It was so awful. . . . Terrified poor little Eddie Holland had tears in his eyes. Oh, God, it was awful.” The old man ran to the clerk’s desk, grabbed the TPF guns, and came whirling back with one in each hand. “But let me tell you they were out there with these things! Two orphans in the storm. Two killers! They put it right into him! Bang!” He pulled the triggers. “Poor man was shot and killed. They didn’t give him a chance! They blew him to kingdom come! . . . Miserable, mean, cruel killers . . .”
He dropped the guns on the defense table and raced to the model. Pointing to Dwyer and Molloy’s stakeout position: “They had an armament up there.” Pointing to MacDonald and McClinton’s stakeout position: “They had armament down there. . . . What the hell have they got a team for if they don’t act like a team? One little suspect on Smith Street. . . . To pick him up, why, it would’ve been nothing. Absolutely nothing. What the hell did he have in the car? Nothing. Nothing! . . . Firing those bullets there that night was crazy! Jessina Stokes could have been killed. . . . Crazy. Not justified. . . .
“Poor little Mark Molloy. Undernourished little fella with the red hair, sitting on the stand. Eight-forty-one. What a bold way to come into a federal court. . . . You get the conspiracy? . . . All those reports are alike because they all consulted, obviously. . . . They knew there was a bad number that very night. . . . They just figured they were close enough.
“Go down to the sweepstakes if your number is close [to the million-dollar winning number]. Try to get them to give you five hundred thousand because you’re only a couple of numbers off. . . .
“What about Ernie Winbush? . . . Four of them nailed him—no criminal record, no wrongdoing—and they lugged him into the station house. What did Eddie do? (Tears in his eyes. So sensitive . . .) He only charged him with assault with intent to murder.
“It’s surprising that Winbush didn’t die. That was a tough spot for him to be in [that night]. That man in that physical condition. . . .
“Sergeant Byrne, in talking to Deputy Schroeder . . . said Holland identified him in the station that night. And he quit in court because he couldn’t bag the case. . . . They had an able judge over there by the name of Philip Tracy, a Harvard Law grad. He wouldn’t buy it. He threw it out. . . .
“Expert in weapons. That was a death trap! They set up a death trap. . . . Why, he didn’t have a chance. . . . That foot went on the accelerator as he was going down to his death. . . . They absolutely willfully killed . . . and they’ve been running the cover-up ever since. . . . They were squirming on that stand with their perjury frame.”
He wandered around, head down. “Byron once said: ‘Guilt, Oh that pang, where more than madness lies, the worm that will never sleep and never dies.’” Pointing to Eddie and Denny: “It will be with them forever. Forever! . . . They are men of depraved hearts and diseased minds from this. And it showed on the witness stand. . . . When they were on that stand, they twisted, they squirmed, they were perjuring themselves. They were trying to put something over. They were liars! They were perjurers! Did you get a feeling of confidence as they spoke to you? Did you feel they gave you everything they could to help you? Did you feel that they wanted to be forthright? . . . Guilt. Guilt is in them. . . .
“And then we get the contrivance that a Spanish man was down at the car, putting his hands in there.”
He looked at Eddie. “You never said that before, Eddie! Who told you to say that?”
He waited as if expecting an answer, then looked at John Keefe and Tom McKenna, and then turned back to the jury. “Can you think of a more Humpty Dumpty—they can’t put the pieces together. All the City’s horses, all the City’s talent, all the Boston Police Department can’t put Humpty Dumpty together. Because the facts are against them!”
Eventually the old man mentioned money, but only briefly. “What is Jim Bowden worth?” he asked, unable to answer. The rules wouldn’t allow him to suggest a figure to the jury. All he could do was refer to the actuarial testimony. “Mr. Marshall gave an estimation of a million dollars plus. He gave lesser figures for present value . . . a significant and substantial amount of money. . . . But there is no money that can bring back James Bowden.”
He took the autopsy photographs from the lectern and held up one in each hand. “And there he is. You meet him in death.” Nodding to Pat: “That lady knew him in life.”
He put down the pictures. “His kids are entitled to him. . . . You can’t take a man away from children . . . and think you can get away with it. They’re entitled to have those killers of their father punished. . . . And, as Daniel Webster said in this Commonwealth, ‘Every unpunished killing takes away something from the security of every man’s life.’”
Skinner looked at the clock. Two minutes left. The old man hadn’t been keeping track of the time. I was ready to signal him, but he was facing the jury.
“That was willful, wanton slaying! . . . Stupid! Stupid and willful and wanton! . . .
“They thought: He’s black; he’ll never be able to fight this case; he’ll never get it to a court of law. We’ll trip him and put up every obstacle—which they didn’t hesitate to do. . . .
“When you’re in that jury room, say to yourselves: ‘Show me one, show me one honest man who took that witness stand and condemned James Bowden! . . .
“What I want to do—most important—I want to vindicate the name of James Bowden. It should be cleared. . . . James Bowden was an honest man. And he went too soon. . . .
“Men can be evil and men can kill, but they can’t and shouldn’t . . . get away with it.”
Suddenly he spun away from the jury, charged toward Eddie and Denny—five or six steps—and shouted, “You’re not gonna beat the rap!”
Back to the jury, with his voice steadily falling from a shout to a whisper: “Teach what has to be taught: Man values life, and . . . kids like to have a father, and wives like to have their husbands.
“They took him away; let them pay.”
The old man held an accusing finger on Eddie and Denny for a long, silent moment, then slowly walked back to his chair, sat down, and turned away from the jury.
Cohen rubbed his eyes.
Skinner said softly, “We will take a brief recess.”
Michael and the old man stayed in their seats during the nine-minute recess. Pat and I did too. We said nothing. Kevin and my mother went back to the office.
At 12:13 P.M., Skinner began his charge to the jury. After an introductory explanation of Title 42, Section 1983, he gave the standard lecture on evidence: There are two kinds: direct and circumstantial. “Direct evidence consists of testimony [which] describes what [the witness] perceived. Direct evidence may also [be] physical exhibits or documents. . . . Circumstantial evidence establishes facts from which . . . an ultimate fact in issue may reasonably be inferred. The law [gives] circumstantial evidence and direct evidence . . . equal weight. . . . Now, I’m [going] to give you an example of the two kinds of evidence.
“The defendants here seek to establish that James Bowden had a gun.”
I perked up.
“Now they offer direct evidence through Officer Holland. . . . He saw a gun pointed at him. . . . And Mr. McKenna . . . saw a flash of the gun in the car. . . . That is direct evidence. . . . They ask you to draw the inference that [that] was the gun found on the street. . . .
“Now, you can consider what the [circumstantial] evidence was: . . . that it wasn’t found for some considerable time . . . that no discharged shell was found inside the car . . . what James Bowden’s physical condition was [when he would have had to] fling it out the window . . .
“The plaintiffs suggested . . . that this was a throw-away gun that the police planted. . . . It’s for you to decide which inference you think is more likely.”
Skinner turned to the problem of deciding who told the truth. “That is your most serious task. That is why you’re here. . . . How do you do it? . . . You listen to the story. Does it hang together? Is it consistent? Is it in accordance with the laws of physics and the laws of nature? You listen for tone of voice. Is the tone of voice forthright? Does it suggest hesitation or attempt to fabricate? You look at the expression of the face. You look at the body English. . . . You do this all the time. You listen to salesmen. You listen to political campaigns. You listen to squabbling neighbors. You listen to your children or in-laws who may be at one another over something. And you try to find out who is telling the truth. . . .
“With respect to all of the witnesses—the newspapermen, the policemen, the little girls, Mr. Winbush, everybody else—you can consider whether they . . . have any motive for telling you something other than the truth. . . .
“You can reject part of a witness’s statement and accept part. Or you can consider that if a witness is not telling the truth in one respect, he may not be telling the truth in another.”
Skinner defined the trial issue clearly. “What we’re dealing with is what the officers did when they got out [of their car] on the street. . . . There was justification, in my view—and I so instruct you—for the officers to at least make an inquiry of the occupant of the [Buick] at that point. . . .
“Now, what constitutes justification [for the officers’ shooting]? If the police officers were being fired upon or were being attacked with an automobile or both, or had reasonable belief that they were being fired upon or being attacked—a reasonable belief—then they would be justified in defending themselves by the use of deadly force.”
Thirty minutes into the charge, Skinner took up the matter of damages. “I wish to make it clear that you don’t get to the issue of damages until you determine liability. . . . One measure of [compensatory] damages is loss of earnings.” He adopted the figures Keefe elicited—between “$183,000 [and] $164,000”—“as being the present value of the lost earnings.” He added, “You are entitled further to assess a dollar value for the loss of the care and love and affection and companionship. . . . How you put a dollar value on these things is something of a mystery. . . .
“Punitive damages have nothing to do with the plaintiffs’ loss. The purpose is to punish and deter. Deter not only these defendants but others similarly situated from unjustified acts, willful assaults . . . There is a minimum amount. If you find a willful killing which is not justified . . . then you must find at least five thousand dollars of punitive damages.”
I didn’t like the way Skinner said that. It sounded as if $10,000 would be a lot of punitive.
“If you make a finding for the plaintiffs,” he continued, “damages—compensatory and punitive—are to be reasonable. I’m not going to try to tell you what reasonable is. . . . That is for you to decide.”
Skinner glanced at his notes, then raised his final point. “You may find that only one defendant should be liable. There is not much in the evidence that would warrant that result, but I can’t say that it’s impossible.”
He looked at his notes again and said, “Your verdict must be unanimous.”
He explained that the marshal would soon deliver lunch to the jury room and then said solemnly, “All right, jurors, you are excused to commence your deliberations.”
It was 1:06 P.M. on Friday, February 24, 1978.
We went back to the office. No one wanted to have lunch. Michael tended to some long-delayed paperwork. The old man returned month-old phone calls. Pat and Bill and Mary and Kim Bonstrom and I sat in the library and talked—about anything but the case. The weather was a recurring topic. I’d been marveling at the blinding sunshine since we left the courthouse. I felt as if I’d been in a movie theater for a week.
At two-forty-five, the clerk called. The jury had a question.
We were all in the elevator in a minute. Only Pat and Mary had grabbed their coats. The old man, Michael, and I ran down Devonshire Street and over the melting snowbank in front of the courthouse.
I waited with them at the plaintiffs’ table.
“It’s got to be a damages question,” said the old man.
I agreed. Michael said nothing.
“It’s got to be something like ‘Can we give more punitive than compensatory?’” said the old man. “Something like that.”
Michael still said nothing.
“Michael, listen to me. I’m tellin’ ya it’s a fuckin’ damages question.”
We waited forty minutes for the defense to arrive. The clerk tried unsuccessfully to reach Keefe and left word for him at City Hall.
Skinner decided not to wait any longer and had the jury brought in at three-thirty. Their question had come to him as a handwritten note from the foreman. With everyone seated, and the defense still missing, he began.
“Madam Foreman and gentlemen, I’m sorry to keep you waiting so long for a question, but there are certain procedural formalities that have to be attended to before I can address you. And that’s what we were doing.
“Your questions are as follows: ‘Was a McKenna report entered as evidence like Holland’s report, plaintiffs’ exhibit seven-B?’
“The answer is no. There was no such report introduced.
“The second question: ‘If there is a McKenna report, may we have it?’
“And the answer to that question is, I have no idea whether there is a McKenna report, and in any case, you can’t have it because it hasn’t been introduced into evidence. You can only deal with those matters that have been offered by the parties.
“The third part: ‘If no report, may we have a copy of his testimony?’
“At present, the only copy of his testimony is a strip of paper that comes off that [stenotype] machine, which you would not be able to read. . . . There is no copy of his testimony that you can have. . . . You will have to simply rely on your recollection of his testimony. . . .
“I’m sorry not to be able to give you more satisfaction in response to your questions.”
“I excuse you once again to continue your deliberations.”
“Thank you very much,” said the foreman, and the jury left.
Cohen had been expressionless for the four minutes that he was in the courtroom.
John Keefe, Tom McKenna, Eddie, and Denny arrived as Skinner was leaving. He waved the lawyers into a bench conference and told Keefe and McKenna about the questions. They turned away jubilant, of course.
No one left the courthouse. In the men’s room, I tried the it’s-not-your-fault line, but I didn’t mean it, and Michael wasn’t listening anyway. He kept repeating, “I can’t believe I left that fuckin’ thing out.”
The old man stayed in the courtroom. A wise choice. He probably would have gotten into trouble in the hall. The defense was out there, leaning against the wall and doing a lot of laughing. Eddie and Denny were taking big drags on cigarettes. The old man hates cigarette smoke.
When Michael and I returned, the three of us gathered at the table.
“Well,” said the old man wearily, “maybe they’re gonna let McKenna off. He wasn’t in so deep on the Winbush thing, so they figure he deserves a break. And they probably think Holland fired first, so . . .”
“No,” said Michael. “Skinner charged them on that. He said there was no difference between them.”
“Cohen will at least give us a hung jury,” I said with feigned confidence.
“Hey,” said Michael, “we got by a directed verdict, for chrissake. That’s more than most people do in these goddamn things.”
A long silence followed. Then Michael muttered, “Nobody’s ever won one.”
I started thinking about cold-looking number three and the foreman and our hippie mechanic and number five and number four. We never had any indication that they were on our side. Oh, they were always riveted to the old man, but who else was there to watch?
How were we supposed to keep racism out of the jury box? A Boston jury box. How was Cohen supposed to stand up to it? Boston racism.
The day after Martin Luther King, Jr., was assassinated, there was a march of mourning and protest in Boston. Marchers wore black armbands. Kevin was in the Suffolk University contingent. A television camera randomly picked him out of the crowd on Tremont Street and zoomed in on his face and armband. The next day, down the corner, I had this conversation with a high school friend who had just picked up his senior prom tuxedo:
“I saw your brother Kevin last night on the news!”
“Yeah. I heard they had a shot of him.”
“Uh, what’s the story?”
“What d’ya mean?”
“You know—doesn’t he hate niggers?”
“Uh, well, uh, I guess not.”
“What the fuck’s the matter with him?”
No reply.
“Do you?”
“Do I what?”
“Hate niggers.”
“No.”
“Jesus! You fuckin’ guys. Me and my old man fuckin’ cheered when we heard they shot that fuckin’ nigger.”
I bumped into that friend some years later in a courthouse. “Drunk driving?” I guessed.
“Nah, I got jury duty.”
Fifty minutes after the jury had resumed deliberation, the clerk came in and said, “They’re ready.”
“Well, I guess that’s it,” said the old man, forcing a smile. “If they were still on evidence an hour ago, they couldn’t have figured out damages by now.”
“Ask for a Judgment Notwithstanding the Verdict,” said Michael.
In civil cases, judges have a limited and rarely used power to overturn jury verdicts on the spot.
“I gotta talk to Patricia,” said the old man.
She smiled nervously as he approached.
“Patricia, uh, it doesn’t look good. But there are still things we can do. Appeals, uh . . .”
The jury started to file in. The old man quickly walked away.
I took Pat’s hand and spoke to her. Neither of us remembers what I said.
The defense scrambled into place. Eddie and Denny were on the edge of their bench.
The jurors—including Cohen—looked at the floor.
We stood for Skinner’s entrance. He asked the foreman whether the jury had reached a verdict. She nodded and handed a folded piece of paper to the clerk. He passed it to Skinner, who read it in a second and returned it. The clerk looked at it, cleared his throat, and read it aloud: “We find the defendants, Edward Holland and Dennis McKenna, liable to the plaintiffs in the amount of two hundred and forty thousand dollars in compensatory damages and ten thousand dollars in punitive damages.” And the clerk smiled.
As I remember it, the jurors filed out rather abruptly. The old man stood and bowed and thanked each of them as they walked by him. I don’t know when I let go of Pat’s hand. I don’t think we said anything. I know I shook the old man’s hand. And Michael’s. I may have said, “Congratulations.” The old man hugged Pat and spoke to her. Mary ran up and hugged him. I shook hands with Bill. With Kim. I patted someone on the back. Over someone’s shoulder, in the distance, I saw Judge Skinner smiling. We were out of there in a minute or two, and I’m almost sure that Keefe and McKenna and Eddie and Denny hadn’t moved.
There was no celebration in the offing. The old man has never celebrated the outcome of a trial.
Back at the office, Pat used Michael’s phone to call her mother. “We won,” she said softly. Her lips trembled. “We won,” she said again. Then she put down the telephone and cried.