Have you ever heard a retired cop or prosecutor tell a war story, or write a memoir, where he wasn’t the hero? I haven’t and I’m tired of listening to all the air-bags blather on for fun and profit.
So I’ll tell you a tale of failure, with all the hope that confession is good for the soul. Bless me Father for I have sinned:
There was a time before I became a legend in my own mind for my piece of the action in the 77th Precinct investigation, the Howard Beach case, the capture of “Gaspipe” Casso, the first death penalty case in Brooklyn, the Colombo wars—yadda, yadda, yadda.
Back in spring of 1988 I was a green prosecutor, and I failed miserably during a trial called The People of the State of New York v. Gilbert Ortiz, this being the case of an alleged 77th Precinct grass-eater, which is a term of art in the police profession meaning a cop of ordinary corruption as opposed to a meat-eating hog.
And Gil, let me apologize now for telling this sad tale. It’s the mid 1980s in New York City. Mayor Ed “How’m I doing?” Koch appoints Ben Ward as the city’s thirty-fourth police commissioner in early ’84. According to Jet magazine, “Ward oversaw the nation’s largest police department during the rise of the crack cocaine epidemic and a sharp increase in crime and murder.”
What an understatement. The way I remember it, the city was a sewer, the precincts in the poorest neighborhoods were free-fire zones, and no one gave a shit about crime in the ghetto because the social scientists absolved us from effective law enforcement by telling us that the only way to cure crime was to remedy the root cause—poverty. Don’t hold your breath.
Imagine for a moment being a cop in one of the precincts in the heart of Brooklyn during those times—the 75th in East New York, the 73rd in Brownsville, the 77th in Crown Heights. Brian O’Regan, who committed suicide rather than surrender at the end of the 77th Precinct investigation, wrote in the note he left behind, “The precinct is hell.” And it was hell, in Brian’s opinion, because no one really cared what happened in the ghetto. I think he was correct.
If the 77th Precinct was indeed hell, the lords of hell were two sets of partners, so far as I know from evidence uncovered: William Gallagher and Brian O’Regan, and Henry Winter and Anthony Magno. They were the veterans, the leaders—except for O’Regan, the ultimate follower—and they set the standard for corruption in the precinct. It was a very low standard, nickel-and-dime compared to the thieves of Enron and thieves of Baghdad yet to be discovered in Iraq.
Petty the officers were, but so very corrosive to the oath they took to uphold the law. They robbed from the drug dealers, from the dead, from the violated. As a fireman of my acquaintance once said, they would steal a hot stove with both hands.
Into this hell comes Gilbert Ortiz, a twenty-two-year-old when he was arrested in 1986, a police officer since only two years before that. You didn’t stand a chance, Gil. No one in the police department was looking out for you. And you became my target because you were there—in the wrong place at the wrong time.
As I think of you now, I think of the kid who shows up at a pickup softball game and is the last one chosen for the team. He’s stuck in right field. Maybe nobody will hit the ball to him. Unfortunately for you, Gil, this was the corruption team of the precinct from hell and because you’re stuck in right field you get tagged with the loss.
But the tale I tell reveals itself not at a game, but at trial. So let us proceed.
In the spring of 1988, I took the short subway ride from the Office of the Special State Prosecutor at 2 Rector Street in lower Manhattan to the Brooklyn Supreme Court at 360 Adams Street, a trip I had made many times, though never before to try a felony case. Exiting the train in Brooklyn, I walked through the large, sterile plaza dominated by the State Supreme Court, built in the 1950s and designed by the same architects who created the Empire State Building. I drew no inspiration from the long, squat structure that would house the case of People v. Ortiz for the next week or so. While the Empire State Building raises the spirits with its soaring reach to the skies, this functional mausoleum of a court flattens all hope. It was here that defendants saw their last glimpse of a tired-out urban downtown before going upstate for their incarceration. And it was here that the hopes of prosecutors, who could not make their cases, were dashed.
As I walked up the courthouse steps, I remembered that it was also here, eighteen months earlier, that Charles Joseph Hynes, the New York State special prosecutor for the city criminal justice system, scheduled the arraignment of the “dirty dozen” cops from the 77th Precinct in Brooklyn.
It was a most extraordinary arraignment in which Joe Hynes, after addressing the judge in a stately manner—“May it please the Court”—made an elegant opening speech about the entire investigation and the reason we the prosecutors, the twelve defendants, their defense attorneys, and a full house of journalists were in court that day.
Joe had a commanding presence in the courtroom, and neither the judge nor defense attorneys objected during his speech. He talked about the scope of the corruption that led to the arrest of defendants who had betrayed their oaths as police officers. When he finished, he sat, leaving the “technicalities” of the arraignment to me and my colleagues, who had presented the cases to a grand jury for the return of indictments.
One by one we stood to present the charges, only to have the reading of them waived by defense counsels. One by one the defendants pled not guilty and we made bail arguments. Return dates and a schedule for motions and discovery were set.
I recall nothing from that day of police officer Gil Ortiz, charged with five counts that ranged from conspiracy in the fourth degree, an E felony, all the way down to a trespassing violation. Perhaps I should have paid more attention, because this was the case I would ultimately try. But my thoughts were on the charges against Officer William Gallagher, charged with eighty-six counts, ranging from criminal sale of a controlled substance, an A-II felony, down to the A misdemeanor of official misconduct. Gallagher’s was the case I had hoped to try—the first and most important case of the lot.
I also wondered, Where the hell is Gallagher’s partner, Brian O’Regan? He had been scheduled to surrender with the rest, but had not reported to Internal Affairs division headquarters that morning. Was he in Ireland? That was surely where I would have been if I were he.
But those arraignments were long ago. Since then, O’Regan killed himself rather than surrender; Gallagher and three others pled guilty before trial; two other defendants were tried and convicted, two were acquitted after trial; and two others had indictments dismissed. Three defendants were left: Gil Ortiz, plus two others involved in the theft of precinct garbage cans—the bottom of the barrel, so to speak.
Today was my turn in that barrel, as prosecutor in People v. Ortiz. I was not looking forward to the trial, given that the evidence was a single taped conversation between Ortiz and Henry Winter, one of two dirty cops who had flipped at the beginning of the four-month investigation. Winter was possibly one of the most corrupt cops in the precinct, although he had denied it in an earlier trial, accusing Gallagher and O’Regan of being even more corrupt.
Ortiz was represented by Barry Agulnick, an experienced defense attorney who specialized in representing police officers. He was one of the defense lawyers in the high-profile Michael Stewart case back in 1985, resulting in the acquittal of all the transit police officers accused by the Manhattan district attorney of killing Stewart during his arrest for writing graffiti in the subways. I knew Barry because he had represented Gallagher and had negotiated a realistic plea agreement for his client. The evidence in that case was overwhelming, and Barry knew it; he obviously had a different read on the Ortiz case.
This trial would only be my fifth; my first two as second seat counsel had resulted in convictions, my next two as lead prosecutor the same. I was not cocky about my skills, but thought I made a nice appearance, spoke well, was organized, and had done the prep work needed. I also knew the central weakness of the case: Henry Winter versus a good-looking rookie cop, namely Gil Ortiz.
We assembled in a large courtroom on an upper floor of Kings County Supreme Court to select a jury on that beautiful spring morning. I still did not fully understand the science of jury selection, and to this day wonder if it isn’t all just a crapshoot.
How do you tell in a few minutes if a jury prospect will be fair, if he or she will truly listen to the facts of your case and do the right thing? There are attorneys who wax poetic about their ability to identify a juror who will be good for the prosecution or good for the defense. There are old wives’ tales about the predilections of accountants, social workers, and church ladies. There are jury consultants who will tell you that if a juror grows roses, it’s a sure bet that person is patient and discerning. I didn’t know then and I don’t know now if I buy all that. What I did know is that I wanted smart people who could get along with their fellow jurors, make a group decision, and not hate my star witness—Henry Winter, a guy known to cops as a “rat.”
I prepared the prospective jurors to the extent that I could during voir dire interviews. They would be hearing from a witness who committed many other crimes himself before finally being caught and offered a deal for his cooperation, I informed the prospects. I then asked them if they could listen carefully to the testimony of such a witness, if they could fairly assess the truthfulness of his testimony, and if they could reserve judgment until hearing all the evidence. Both Barry and I explored prejudices that might get in the way of their rendering a just verdict, which is another way of figuring out if they could buy into the theory of our respective cases.
Jury selection was uneventful, with a minimum of posturing by either Barry or myself. Along with the judge, we ultimately believed we had a competent panel. For my part, I was happy with the twelve jurors in the box because I thought I had connected with a number of them, and that they considered me trustworthy. I’m sure Barry felt the same way.
After our jurors were told when to return for trial, Barry approached me to say, “I’ve never seen a prosecutor do what you did today.”
My first thought was that Barry was trying to play head games with me, even though that had not been my experience with him in the past.
“What do you mean?” I asked him.
“When you asked some of the jurors whether they would stick up for their views—even if all the other jurors disagreed— you were asking a defense attorney’s question. What are you looking for, Dennis? A hung jury?”
If I were not olive-skinned, Barry would have seen my blush. To any other attorney, I might have said, “Fuck you.”
But to Barry: “I just want strong, independent jurors.”
And Barry’s hunch was sound. I was indeed going for a hung jury. One of my colleagues on an earlier case had been stung with a not guilty verdict in ninety-six minutes flat. I was not about to let that happen to me.
Childish? Absolutely. But unlike the paragons of prosecutorial virtue we see in fiction, or in self-congratulatory memoirs, I had flaws and they were evident in this tactic. Certainly to Barry.
At some level, I believed in the case, even though I knew it was very weak. I had invested too much of my life in the investigation to just walk away.
Ultimately, it was my faith in Henry Winter and the investigation that inspired me to proceed to trial. Perhaps that was a mistake. But you can be the judge.
I met Henry after he’d been “flipped” by Joe Hynes, when I talked my way into being part of the investigative team that would run him as a confidential informant for an extraordinary four months.
Having a mole inside a notoriously corrupt police precinct was an investigative attorney’s dream. The role of investigative attorney—my job—is rarely portrayed by TV dramas that prefer to organize their shows law-and-order style: the cops investigate, the prosecutors bring police cases to trial. My job was and is the missing dimension in TV-Land. I actually ran the investigations I brought to trial.
True enough for the tube, most prosecutors “catch” cases brought to them by the police. Which is interesting, but nowhere near the excitement of building the case yourself. Investigative attorneys are thought to be wannabe cops. While there might be some truth to that, it’s too simple a notion. A good investigative attorney is always thinking about how the evidence gathered can be used at trial. Unlike the cops, our work is not over when the arrest goes down.
And so, as an investigative attorney for the New York State Special Prosecutor’s Office, I got to shape the investigation that would lead to the indictments and trials. Perhaps that is why I went astray in the 77th Precinct case. Chief John Guido, legendary head of the NYPD’s Internal Affairs Division, used to say, “Don’t fall in love with your investigation.”
But I thought the investigation was so good. I thought the sum total of the evidence would overwhelm even the least culpable defendants.
* * *
Soon after Henry Winter and his partner, Anthony Magno, agreed to cooperate with my office and NYPD Internal Affairs, we sent them back into the sewer of the 77th Precinct to catch more corrupt cops. As part of the investigative team of prosecutors and Internal Affairs detectives, I met with Henry and Tony at least once a week for the next four months, and almost every day listened to the hours of tapes they secretly recorded while on duty in the 77th.
I got to know them more through these tapes than from our personal meetings: Henry, the smooth talker, full of fun and credible to cops, crooks, and the community; Tony, a man of few words, direct, tough, and angry. Henry delivered the evidence right from the start, Tony dragged his heels. Henry understood he had to work off his time in jail, Tony was reluctant. In time, I realized that Henry was a natural undercover operative and investigator. He was inventive and helped create scenarios that captured other corrupt cops on tape.
I have often wondered since those heady days of the investigation whether we were too much like the scientists who go out into the field to make objective observations but “contaminate” the environment by our mere presence.
Did we make it too easy to be corrupt by providing a convenient way to dispose of illegally seized drugs and guns, though our undercover buy-back program?
And was it the flagrant, seemingly undetected corruption of Henry and Tony that inspired Gil Ortiz to spend too much time with them? Was it unreasonable for him to consider them the true leaders of the precinct?
When the investigation abruptly ended due to a leak that we never traced with certainty (though we had our suspicions), I would spend hours with Henry and Tony going over the tapes, refining the transcripts, getting a better understanding of the crimes. We were never buddy-boys, but I did respect their work.
And my respect for Henry increased when he agreed to testify in this one last trial, even though the police department had told him he would be terminated after it was over. Henry always held the hope that the department would let him and Tony stay on the job long enough to retire with a pension. Fat chance.
Henry could have walked away from the trial and not testified, and I could have subpoenaed him. But how would that have looked to the jury, and what kind of testimony would he have delivered? The time for threats had passed. Henry had been the star witness in three previous trials and I, for one, did not believe we should send him to jail for his failure this last time to live up to his agreement.
But it never came to that. When I called Henry to tell him about the trial date, he came in and got down to business. He told me that he was pissed that the department had decided to cut him loose.
I told him, “You know, Henry, we have no control over what the department does.”
I started to remind him of our deal: Cooperate fully and he would never see the inside of a prison because we would make the extent of his cooperation known to the department. But he stopped me.
“I know what the deal is,” Henry said. “I promised to see this through till the end and I’m keeping my word.”
The “Thanks, Henry” that followed was difficult because I had learned that he had worn a wire against me and another prosecutor during preparation for an earlier trial in order to try and get us on the record making a better deal than the one we had actually made. We had restated our understanding of the deal and Henry thereby got no additional leverage. So it was hard to accept that the ultimate rat was doing the right thing. But that appeared to be the case.
With jury selection out of the way, I would have a chance to tell the panel just what the People planned to prove—a conspiracy involving Henry, the defendant, and another cop to “hit” a known drug location, steal the drugs and money, and divide the proceeds of the crime. I told the jury that they would hear the testimony of a corrupt cop who had agreed to cooperate, and that, most importantly, they would hear “with your own ears” the money being split after the hit—where no drugs were found. This was the core of my case.
Barry underscored the weakness of my position—the ambivalent taped conversation, called a “conspiracy” by the prosecutors, and the failure of the tape to demonstrate that his client had accepted any share of money at all.
No one wins a case during opening arguments. But the stage is set and the jury is given a road map of where it will be going. We all agree that the burden of proof is on the prosecutor to prove each and every element of the crime beyond a reasonable doubt—a heavy burden indeed.
After openings, I began with an Internal Affairs witness who could tell the jury that he met with Henry Winter on the day of the crime, provided him with a fresh tape, and put the appropriate “header” on it—identifying himself and Henry, as well as date, time, and place. Also that soon thereafter, he retrieved the tape from Henry, and that the money was taken from the location. He testified that he vouchered both tape and money and had brought the very same tape and money to court today to be introduced into evidence as People’s exhibits.
Another police officer provided the basis for the introduction of evidence that Ortiz was on duty that day in the same sector where the hit occurred. I had a police witness introduce a map drawing of the location in question so that Henry could show where the defendant and he had been during the incident. All this testimony went smoothly and, I hoped, showed the jury the competence of our investigation. But as we used to say in those days, Where’s the beef?
Henry was the beef—or sacrificial lamb, I should say, given my experience watching him cross-examined at previous trials. But Henry was no lamb. In fact, it was open season on rats who testified against those presumed to be innocent.
Henry and I had agreed that I would do an abbreviated direct examination of his past crimes and bad acts. Having seen Henry subjected to an all-day direct examination of his entire oeuvre of bad acts—dating back to when he worked in a Modell’s sporting goods shop as a teenager and marked down the price of baseball gloves for his friends—I decided to spare him the double-dose of confessing first to me and then to Barry. No matter, Henry still faced days of withering cross-examination by defense counsel to show him for a liar, a cheat, and a thief beyond compare.
When Henry took the stand, I quickly established that he had been a crooked cop, that he’d stolen money and drugs, that he’d resold the drugs, protected some drug dealers and extorted others, that he was not beneath stealing from the dead, and, significantly, that he’d been caught and had made a deal with prosecutors to avoid jail. Barry did not raise any objections to this testimony. After all, I was doing his job— undermining the credibility of my own witness. The theory here is that it’s better for the jury to hear it from the prosecutor, who is hiding nothing, than for the defense counsel to expose a cover-up by the prosecution.
I wanted to get as quickly as I could to the facts of the case—what Henry had done on the day of the crime, and what the defendant had said and done. And this is where I ran into trouble. Barry had an objection to every question I asked. And while some were legitimate, I thought others were meant merely to disrupt the flow of the testimony. Each time he made an objection, he asked for a sidebar conversation up at the bench with the judge outside of the jury’s hearing.
But soon our sidebars became so loud and heated that the judge moved us to the corridor. I became more and more frustrated as the frequency of the objections and sidebars grew. Barry was clearly setting the pace and controlling the courtroom and preventing me from presenting my case in a coherent manner. We seemed to fall into a pattern of me asking a question, then Barry making an objection and calling for a sidebar. After the pattern has been set, Barry would just make the objection, get out of his seat, and walk toward the corridor for his sidebar, followed by the judge.
Too much, I thought. This has got to stop. The next time the migration began and Barry was out the door and the judge was approaching the door, I held my ground behind the prosecutor’s table, looked at the jury, and said in loud voice, “Who’s running this courtroom anyway?”
Big mistake. Not only did I insult the judge, who let me know that she would not tolerate that kind of behavior, but I undermined her authority in front of the jury. We all know that jurors tend to have great respect for the judge and look to them as the fount of justice in the courtroom. I lost my temper, squandered some of the dignity of the prosecutor’s position, and may have jeopardized my case. I had acted unprofessionally. Nonetheless, while Barry continued to make objections, the processions to sidebar talks decreased significantly and I proceeded with my direct examination.
Henry testified about his tour of duty the day of the crime, his conversation with the defendant about hitting a drug location and splitting what was recovered, and that he had captured the conversation on tape. He testified that he had given the tape to IAD, initialed it, and had subsequently listened to the tape in order to confirm it as a full and accurate representation of the conversation that he’d had with the defendant. I asked him if the tape that had been introduced into evidence earlier was the same tape that he had made and listened to and he answered affirmatively.
“May I play the tape for the jury, your honor?”
“Yes, Mr. Hawkins.”
This was supposed to be the evidence that would prove beyond a reasonable doubt that the defendant entered into conspiracy with Henry to possess and sell the “found” drugs. Of course, it was Henry who would steal the drugs, if any were found, and “sell” them to us in order to receive money to split with his coconspirators. We had devised this plan in order to keep other cops in the precinct from selling it to their sources and putting the drugs back on the street. It was an excellent investigative move, but during this type of trial it was not always clear if jurors bought into our deception or even thought it was fair play.
Not really a problem in this case because no drugs were found, only money.
Once the jury, judge, attorneys, and defendant put on their earphones, they heard Henry speaking, laying out a plan to hit a drug location, suggesting that if he found drugs he knew where to sell them and that he would share the proceeds. It was clear that the defendant was present but not so clear that he agreed with Henry, an essential element of the conspiracy charge. Ortiz was told that he should cover the back exit of the apartment building to prevent drug dealers from escaping—the usual role for a junior police officer—and that Henry would go into the apartment and conduct the search for drugs and money.
Ortiz seemed to agree to cover the back exit, which in legal terms is an overt act in furtherance of a conspiracy. “Seemed” is the operative word. No clear agreement, no conspiracy. I knew I was on shaky ground with my agreement, but I thought that the conclusion of the tape could put me over the top and beyond reasonable doubt.
Ten minutes of tape went by as judge, jurors, and counsel heard Henry tromp around the empty apartment searching for drugs and money—and commenting from time to time about what a “shit-hole” the place was. Then we heard Henry discover some cash, with his comment on the find: “Not much, but better than nothing.”
The tape concluded with Henry apparently meeting the defendant outside the location and reporting better-than-nothing. In a clear voice, Henry counted out Ortiz’s share: “One, two, three, four, five, six, seven—buy yourself a beer.” Henry laughed in his good-natured way. And we heard the rustle of the bills as they were being counted out. This constituting my “gotcha” moment.
Unfortunately, there was no taped response from the defendant. Dead silence.
I looked at the jury panel. Some jurors looked back at me with expressions that said, Is that all there is? So I switched off the tape, turned to Henry on the witness stand, and asked him to fill in the blanks with specifics.
“What, if anything, did you find at the location?”
“I found twenty-one dollars.”
“And what did you do with that money?”
“I gave the defendant seven dollars and kept fourteen to divide between my partner and myself.”
“And what did you do with your share?”
“I turned it in to IAD at the end of my tour.”
“And is this seven dollars, previously marked as People’s Exhibit Three, the money that you gave to IAD?”
“Yes.”
“How are you able to identify it?”
“I put my initials on the money.”
“Your honor, I ask that People’s Exhibit Three be moved into evidence.”
The judge said to Barry, “Any objections, Mr. Agulnick?”
“No, your honor.”
I continued questioning Henry.
“Now, could you describe what it is that you are doing at the conclusion of the tape with respect to the remaining money?”
“I’m counting out seven dollars to give to the defendant.”
“And did you in fact give that money to the defendant?”
“Yes, I did.”
“That concludes the People’s questions for this witness, your honor.”
I glanced at the jury and once again got the feeling that some were asking, once again, Is that all there is? Unfortunately, yes. That’s the case against Gil Ortiz. You either believe Henry or you don’t. You have a tape that is, at best, circumstantial evidence. Or you have no real evidence at all.
For me it was easy to believe Henry. For months he had trolled for evidence of corruption in the 77th Precinct and I’d never caught him in a lie. Most of his allegations were backed up by taped evidence—including assertions of corruption by Gallagher, Rathbun, and Spivey.
But as I look back now some twenty years after the events, I ask myself whether we should have charged the kid—a twenty-two-year-old who, at the time, was younger than my youngest son. I don’t know the answer, but I do know that I think about it more than any of the so-called successes of my career.
I had done my job and presented the evidence I had; now it was Barry’s turn. And did he ever do his job. He flayed Henry over the course of the next two days and made him admit that he was a liar, a thief, a man of no conscience, and someone who would do anything to avoid prison. To this last point I objected.
There was little I could do to protect Henry. He knew it and I knew it. He was a corrupt cop by his own admission. From time to time, I would object: “Argumentative, your honor,” or, “Assuming a fact not in evidence.” But these were bullshit objections, meant to give Henry brief respite from the onslaught of Barry’s cross-examination.
After a particularly grueling series of questions from Barry, I saw that Henry needed a real break; he was turning bright red with the embarrassment of his position. So I objected by employing Barry’s tactic: I asked for a sidebar.
As Barry and the judge moved toward the corridor, I collected some papers I thought I might need for the argument and saw Henry look at the jury, shrug his shoulders, and wiggle his ears. Some jurors laughed. No one seemed to notice and I kept it to myself. Here was Henry trying to reach out to the jury and portray himself as a human being. I probably should have informed the judge so that she could admonish him about inappropriate communication and instruct jurors that they were to disregard it as a prejudicial attempt. But I said nothing, deciding that if that’s what it might take for Henry to reestablish his humanity, so be it.
At lunch that day, after a recess in the cross-examination, I bought sandwiches for Henry and me and we went to the Promenade overlooking New York Harbor. We couldn’t talk about his testimony because that’s against the rules, and at this point in our careers we didn’t want to break them.
Henry was a wreck. He’d forgotten how difficult cross could be. I told him that he was doing fine and that he was doing the right thing. He was close to tears and I had to use all my professional skills to keep from joining him. I thought about the quiet, dark boxes of the confessional, where I secretly told my sins to a priest, who would absolve me by prescribing a simple penance of Hail Marys and Our Fathers. How perfect those confessions are—expiation without too much pain. God love the Catholic Church. But a public confession on the witness stand is something quite different, namely a public humiliation.
Barry ended his cross when it was clear to all that neither Henry nor my case had any credibility whatever. All that was left were closing arguments.
Barry led by declaring what any defense attorney would under the circumstances: Henry was a liar, a thief, and a cheat all of his life, and his “performance” in this trial was payment for his do-not-go-to-jail ticket. He called my evidence worthless, and maintained that his client was a good and honest young cop who happened to be in the wrong place at the wrong time.
All that was left was for me to make a compelling closing argument and pull the conviction rabbit out of the hat. I spun the usual prosecution bullshit: If the People wanted to make up a story to frame the defendant, we would have done a much better job of it, and Henry had nothing to gain from accusing the defendant.
“What did he do?” I asked. “Take his own money into the drug spot and then pretend to count it out for the defendant’s share?” I worried that some jurors might be thinking exactly that.
The judge gave instructions to the jury and sent them out to deliberate, just before dinnertime. Which I considered a nice break for me: With an extra hour or so to eat before deliberating, the jurors just might be kept overnight.
The judge told Barry and me to be available in case of an early verdict. As the age of cell phones had not yet dawned, we gave beeper numbers to the clerk. I decided to have a bite at a local Irish pub rather than go back to the office. Some colleagues from the Special Prosecutor’s Office joined me. Foregoing food, we had a beer or two.
As time went by, I grew convinced that I had the jurors struggling with the evidence. I thought I must have done something right and ordered another beer, convinced that the jury would retire for the night without rendering a decision.
At about 10 o’clock, my beeper went off and I called the court—expecting to be sent home for the night. But no, there was a verdict.
There goes my hung jury, I thought. I returned to the courthouse hoping for a miracle. I ran into Barry in the corridor and he said that I tried a good case, given what I had to work with.
I replied, “You kicked my ass, Barry.”
The jury returned to its place in the courtroom, with nobody giving a sign I could detect of what their decision was. The judge asked the foreperson if a verdict had been reached and she said, “We have, your honor,” and passed the verdict sheet to a clerk who gave it to the judge. I noticed no extra court officers in the room—a telltale sign of a guilty verdict.
The judge read the verdict sheet and returned it to the clerk, who returned it to the foreperson. My heart raced as it always did right before a verdict, and I listened as the judge asked the foreperson, “On the first count of the indictment, how do you find?”
“Not guilty, your honor.”
Which was the same response to the remaining counts. And so, the last trial in the 77th Precinct investigation ended.
The judge thanked the jurors for their service and I asked if I could speak with them—customary practice for attorneys who want to know how jurors analyzed the trial. I moved to the jury box, from which most good citizens had fled but a few remained. I approached an attractive young woman whom I thought had listened with close attention during my closing arguments.
Before I could ask a question, she said to me, with some hesitation, “We tried, Mr. Hawkins, but there really wasn’t evidence.” I thanked her for at least considering the facts.
Another juror said, “We just could not believe Winter. He is so bad.” A few others offered their thoughts and I thanked them all before leaving.
Barry and his client were talking in the corridor as I headed for the elevators, which even during the day took forever to arrive. Normally, I would walk down the stairs to avoid running into the defendant, but tonight I waited, thinking the stairways might be locked due to lateness of the hour.
When the elevator finally came, I entered, alone. As the doors closed, there stood Barry and his client, taking a pause from their conversation. The defendant grinned. I pointed my finger at him and said, “Get ya next time.”
Nice work, Dennis. Very professional, especially since the system worked exactly the way it’s supposed to: I brought a case I could not prove beyond reasonable doubt and the jury found the defendant not guilty.
There I was, playing the Dirty Harry version of a prosecutor and making threats to a kid who smiled his awkward smile because he was relieved and didn’t know how to relate to the guy who just tried to send him off to jail.
It may not have been the last time I acted like an asshole, but it’s the time I remember best.
The next day, Barry called to ask what the district attorney’s office planned to do about the other indictments. I told him that we would have to review the situation. (We ultimately dismissed those indictments and referred the cases to the Police Department for administrative hearings. I was told that Gil resigned before those trials.)
“And Dennis,” Barry said, “you really shouldn’t have said that to my client.”
“I know, Barry, I know. Would you please tell him I’m sorry?”
Ah yes, confession is good for the soul. As is an appropriate apology. But some confessions do not absolve the guilt.
Gallagher’s partner wrote page after page of confession in the hours before he killed himself. Henry Winter confessed his sins three times over while sitting in the witness box. Some years later, he hanged himself at his home in Valley Stream, Long Island.
Today, I still carry their confessions with me, along with my own smaller sins, but sins nonetheless.
And I remember what Joe Hynes said to the New York Times some years ago on the subject of investigating cops: “[It] is the saddest job I’ve ever had. It destroys lives. If you enjoy it, you’re sick. If it gets to you to the point where you have trouble sleeping at night, you ought to be out of it.”
Thank God I’m out of it.