September 20, 1968

Judge J. James Moriarty looked down at the lawyers at the defense table, his lips creased in their perpetual thin sneer; his black robes, buttoned up to the neck, contrasted with his white hair. Had he been a Jesuit, he would be a strict Prefect of Discipline, he was that straitlaced and unforgiving. He took pleasure in making people conform to his personal idea of righteousness. To add another ingredient to that volatile mix, Judge Moriarty was incompetent. He was not well versed in the law. And he masked this lack with a veneer of arrogance and hostility. Thus, any trial in front of Judge Moriarty was an adventure, leading, usually, into strange territory and ending with rulings distinguished by their tortuous illogic. When in doubt, which was often, he favored the prosecutor. In the criminal justice system, there are certainly good judges. But there are also many chosen because—and only because—they can be expected to align themselves with the old club, favor the prosecutor, lean toward conviction. Many of these prosecution-leaning judges are former DAs, and in their minds, the change from prosecutor to judge is merely a physical shift in the place they sit in the courtroom.

“Which is the next case?” the judge asked the court clerk. He saw Judge Tauber sitting in the audience, and knew very well, from the calendar on his bench, that the Tauber case was next. But Judge Moriarty relished twisting the knife in Judge Tauber’s gut. He watched Tauber’s expression with morbid delight as the clerk replied.

“People against Tauber, Your Honor.”

“Very well. Call it.”

Marty, who had been sitting at the prosecutor’s table, rose to his feet. Joe Brill and Peter Sabbatino rose and walked with their clients to the defense counsel’s table.

Judge Moriarty looked down at Judge Tauber with contempt.

“Good morning, Your Honor,” said Sabbatino, smiling. He felt nothing but loathing for the sanctimonious Moriarty. Everyone in the courtroom knew their mutual feelings, and all expected some acrimony before the proceeding was over.

“May the record reflect that I am handing each counsel answering papers to their motions for a Bill of Particulars and Discovery,” said Marty.

“I acknowledge their receipt,” said Brill. “I have not seen these documents before and, under the circumstances, am going to request an adjournment to determine if any reply is necessary.”

“We move cases in this part. We cannot tolerate adjournments merely to read documents. Read them in the jury box, and make whatever reply you want to make orally, this morning. Then you won’t need an adjournment.” A gloating grin covered the judge’s face.

“Even if I did that, Your Honor,” piped in Sabbatino, “and were subjected to having to read these fourteen pages in the jury box, I would prefer to have written reply papers to better protect the record. It would seem more appropriate, particularly since this is the first time the case is on Your Honor’s calendar, to have an adjournment.”

“I would like to know what defense counsel’s applications are before I commit myself to waiving written papers, Your Honor,” said Marty. “I might want our law department to do some research.”

“Mr. Sabbatino’s points won’t require much legal research, I’m sure. He just wants to scatter gun spurious arguments against the wall in the hope that some thing sticks. I’m fully aware of defense counsel tactics.”

“Your Honor is very kind,” said Sabbatino pleasantly. Lawyers in the front row snickered at his sarcasm. “However, Your Honor cannot seriously be referring to me. Your Honor well knows that I do not present spurious or frivolous arguments. The last two cases I’ve tried before you—which, of course, ended in conviction—were unanimously reversed on appeal.”

“Don’t start one of your garrulous speeches, counsel,” the judge said testily.

“If counsel needs anything further by way of discovery in this case,” Marty interrupted tactfully, “I’ll discuss it with them. Perhaps we can agree on the discovery and save the necessity for formal motions.”

Sabbatino and Moriarty eyed each other warily, like two brawlers parted by the crowd.

“Does that solve your problem, counsel?” Moriarty needled.

“Let me take care of this, Peter,” Brill whispered to Sabbatino. “What’s the sense of arguing when the prosecutor says he’ll give us what we want?

“We’ll accept Your Honor’s kind suggestion and the prosecutor’s offer,” Brill added aloud. “However, a quick perusal of the prosecutor’s papers indicates that there are tape recordings in this case. I’d like to ask the prosecutor for the tapes, or at least transcripts of those tapes.”

“You’re not entitled to any tapes at this juncture,” replied the judge. “I have no authority to order the prosecutor to turn over that material.”

“The tapes will eventually have to be turned over prior to trial,” said Brill. “By having them now, defense counsel could save the court’s time.”

“I’m sure that’s your reason,” the judge replied acidly.

“Your Honor, I have no objection to counsel having the tapes at this time,” Marty injected as diplomatically as he could.

The judge studied Marty now, with an almost imperceptible, impatient nodding of his head. He had his own idea of defendants, innocence, guilt, and trials, and any deviation therefrom was not received kindly, even when it was the act of the prosecutor.

“Well, Mr. Boxer,” the judge allowed reluctantly, “I cannot stop you from turning over material to the defense. Since you have no obligation to turn such over, I certainly won’t force you to do so. Have you discussed this disclosure tactic with your office?”

“I have, Your Honor.”

“And Mr. Wright has agreed to this unprecedented, premature disclosure policy?”

“He has left the entire matter to my discretion, Your Honor.”

Moriarty studied Marty with narrowed, steely eyes.

Sabbatino piped in. “I wish to note for the record that it is most refreshing to see such constitutionally correct procedures adopted by the special prosecutor.”

“Counselor”—Judge Moriarty leaned forward on his bench, literally hissing—“this court is convened neither for your convenience nor your approval. Your remarks, which I know are meant irreverently, are totally unnecessary.”

“My remarks are only intended sincerely, Your Honor.”

“Are you trying to bait the court?” Moriarty leaned further forward toward the old veteran.

“Certainly not, sir. Your Honor knows me better than that.”

Judge Moriarty’s eyes were hard with anger, his lips pressed tightly together.

“Your Honor, if we may,” said Brill, “we’ll retire to the corridor to go over these documents, and perhaps discuss the tapes with the prosecution.”

“You do that,” said the judge, his eyes still on Sabbatino.

The defense counsel and defendants turned and walked out of the courtroom and into the corridor.

“That prosecutor seems like a decent fellow,” said Judge Tauber.

“I hope he stays that way,” said Brill. “Peter, I thought Moriarty was going to come over the bench at you.”

“He hasn’t the balls,” replied Sabbatino calmly.

“Do you want to listen to the tapes today?” Brill asked.

“Where? In this corridor?”

“Let’s take Boxer up on his offer before Wright changes his mind for him.”

“I agree we ought to try and hear them now,” said Judge Tauber.

Marty came out of the courtroom and joined them.

“I just looked through the file,” said Marty. “I don’t seem to have the tapes with me.”

The defense group exchanged glances.

“I’ll get them from the evidence vault and you can hear them at my office. If you want, supply some blank tapes and I’ll make duplicate copies of the tapes for you.”

“That’s even better,” Brill said quickly.

“Whatever other evidence there is, you can have. I want to have this case tried in the fairest possible way.”

“I appreciate that very much, Mr. Boxer,” said Judge Tauber. “Forgive me if it’s out of line for me to speak like this, but I’m quite impressed by your fair attitude.”

“It’s just as it should be, judge. Nothing more.”

“Unfortunately it doesn’t always work that way,” said Sabbatino.

“Maybe we’ll start a new trend,” said Marty.

“May I ask you a question?” said Sabbatino.

“Surely.”

“Why are you being so cooperative? You’re making me nervous.”

Marty laughed. “I don’t want to have to go back in front of Moriarty either,” he replied. “He’s not my idea of the way to spend a morning. Besides, isn’t this better than the old trial by ambush that Judge Moriarty loves so much?”

“That it is,” said Brill.

“In this case, there should be a search for the real truth,” Marty added.

“You sound like you know something about this case that we should,” said Sabbatino.

“Not really. Facts are facts, aren’t they?”

“Not necessarily,” Brill replied with a smirk.