“THE PEOPLE CALL DETECTIVE CLAY Fulton.”
As soon as Fulton, who’d been sitting in the first row behind the prosecution table as the trial resumed the next morning, stood up, Mendelbaum jumped to his feet. “Your honor, the defense objects to this witness being allowed to testify. The defense believes that my esteemed colleague, Mr. Karp, will be attempting to elicit testimony that will be based on hearsay.
“The witness will be asked to testify about the interrogation of one Lars Forsling, who as you know we contend should be the defendant in this case, not Mrs. Stone. As you also are aware, Mr. Forsling is dead, and therefore he can’t be cross-examined as to his statements, nor as to the veracity of Detective Fulton’s recollection of those events.”
The judge looked at Karp, who had remained on his feet, waiting for Fulton. “Mr. Karp?”
“First, your honor, it is important to note that I, the prosecution, turned over to the defense the dying declaration made by Forsling; such a statement is an exception to the hearsay rules of evidence.”
Karp continued, “The defense wants to persuade the jury that Forsling is the bomber who murdered the deceaseds in this case. Hearsay is an out-of-court statement made by the declarant and offered for the truth of the matter asserted. However, in order for the jury to decide if the Forsling dying declaration is trustworthy, all the facts and circumstances must be known to the jury so that the dying declaration can be scrutinized with all the other evidence in context. The chief of the District Attorney’s Office detective squad will assist the jury by providing that context. I ask the court to admit this testimony, subject to connection on this crucial evidentiary issue.”
Looking over at Mendelbaum, who regarded him with arched eyebrows like one of his former law school professors looking for a weakness in his arguments, Karp smiled and shook his head. “One last point, your honor, Mr. Mendelbaum is trying to have his cake and eat it, too. He wants Forsling’s ‘dying dec’ introduced as an exception to the hearsay rule, but wants to exclude other statements made by Forsling to Detective Fulton, our office steno, Mrs. Carole Mason, and me.”
“Ah, but those statements were not made with the Grim Reaper and all of eternity looming over Mr. Forsling’s tattooed head, and therefore under the law are considered inherently untrustworthy, and do not carry the same weight as those of a man who knows that the moment of judgment is at hand,” Mendelbaum replied.
“The evidence in this case will demonstrate, your honor, that Forsling from his own statements and actions was obsessed with seeking vengeance against Detective Fulton and me because of his delusional, wrong-headed, far-fetched belief that we were responsible for the death of his mother,” Karp countered. “That’s why he kidnapped my two sons, and Mrs. Goldie Sobelman, and made clear he did it to seek vengeance. In furtherance of that delusional belief, he was in the process of trying to kill all three of them. We will learn from the evidence that his dying dec was nothing more than his last-gasp effort to get back at me.”
Rainsford looked from one attorney to the other and nodded. “I’m going to allow Detective Fulton to testify with the caveat that you prove, Mr. Karp, all that you just said. Mr. Karp, you may now proceed.”
Mendelbaum, as he passed Karp on the way back to the defense table, whispered, “Sometimes you have to throw the matzo balls against the wall to see what sticks.”
Shaking his head, Karp smiled. Fulton, who’d waited calmly for the lawyers to argue, now stepped up onto the witness stand. A seasoned pro at testifying, he stood tall as he was sworn in by chief court clerk James Farley. He then settled his large frame into the seat and turned toward the judge.
“One moment, Mr. Karp, before you question the witness I want to take a moment with the jury,” Rainsford said. “Ladies and gentlemen, generally these legal type arguments are heard at sidebar on the record, outside the hearing of the jury. However, since Mr. Mendelbaum objected to the witness testifying and initiated his legal argument in front of you, the jury, I permitted the legal argument to be fully aired for all of you to hear and I’m sure to understand. I determine the admissibility of evidence, and if it is trustworthy, I permit you to decide whether or not you will accept it in your final determination in this case. In making that determination you should take into account the demeanor of witnesses and the context in which evidence is offered. You may now proceed, Mr. Karp.”
Karp then quickly walked the detective through his career with the NYPD up to his current position as the head of the special unit of NYPD detectives assigned to work for the district attorney as investigators. He then brought him to the night of Rose Lubinsky’s book signing at Il Buon Pane. “Was there a reason why you and other police officers were at this particular event?”
“Yes, we’d been informed that a crowd of protesters were gathering across the street from the bakery,” Fulton replied. “Officers were dispatched for crowd control, and I was present in a supervisory capacity.”
“Can you describe the composition of this group of protesters?”
“Yes, they were mostly comprised of what the NYPD Gang Unit describes as white supremacists and/or neo-Nazis, sometimes referred to in the media as ‘skinheads,’ though that is a misnomer.”
“And why would using the term ‘skinhead’ be inaccurate?” Karp asked.
“Well, the so-called ‘skinhead movement,’ or group, started in England as a working-class youth subculture comprised of whites and blacks,” Fulton explained. “They were identifiable by some of their dress, such as Doc Martens boots, as well as shaving their scalps, thus the term ‘skinheads.’ However, it wasn’t until this subculture arrived in the United States that it took an offshoot lean toward white supremacist ideology. They’ve kept the clothing and the bald heads, but ‘real’ skinheads both here and in England actually resent the racism and fascist ideology. The two groups will even clash if they encounter one another.”
“So even though the media might refer to that group demonstrating across the street from Il Buon Pane as ‘skinheads,’ it is more accurate to identify them as Nazis and racists?”
“That’s correct.”
“Who or what were they protesting?”
“The who would be one of the deceased, Rose Lubinsky, and the what would be a book she wrote describing her experiences during World War II as a young Jewish girl in Poland,” Fulton said. “She was given by her parents to a Christian couple to save her from being deported to the Nazi death camps, where her parents and siblings perished. These neo-Nazis deny that the Holocaust occurred and were protesting the book as promoting what they call the ‘lies’ about what happened to Jews, as well as other minorities, during World War II in Nazi-controlled areas.”
“Are these neo-Nazis sometimes known for unprovoked violence against minorities and ethnic groups, including blacks and Jews?”
“Yes. They are frequently involved in assaults on both property and people, including some fatalities. These incidents often are prosecuted under ‘hate crime’ statutes.”
“You testified about the presence of NYPD officers and yourself for crowd control. Were these neo-Nazis the only protesters present?”
“No. After word got out that the Nazis were there, a crowd of what you might call counterprotesters assembled.”
“Can you describe the composition of this group?”
“It was somewhat mixed,” Fulton responded. “Mostly locals, I’d say, who didn’t appreciate the presence of neo-Nazis and racists in their neighborhood, which is mixed as far as race and ethnicity. There were also people who had come to support Rose Lubinsky.”
“Detective Fulton, you’ve described the deceased, Rose Lubinsky, as an author and survivor of the Holocaust. As it relates to this homicide investigation, are you aware of her having any other occupations or causes that she was involved in?” Karp asked.
“Yes. After a long career as a teacher in the New York public school system, Mrs. Lubinsky had been involved for many years in the charter school movement,” Fulton said. “At the time of her death, she was the president of the New York Charter Schools Association.”
“And was there something in particular regarding her position as the president of the charter schools association that became of interest during the homicide investigation?”
“Yes,” Fulton said. “She was the author of a bill that had been introduced to the New York State Assembly.”
“In general, what was the purpose of this bill such as you understand it?”
“Basically, it would have put charter schools on a more equal footing with public schools for government funding, as well as removing impediments to the growth of the charter school system and access for students interested in attending charter schools,” Fulton said.
“Were there any other particular provisions of this bill that were of note to the investigation?” Karp said as he casually walked over toward the defense table, drawing the jurors’ eyes.
“Actually, two,” Fulton said. “In general, the bill would have been a potentially serious blow to public schools and public school teachers unions because it would have impacted them financially. But there was also a provision that called for an audit of the Greater New York Teachers Federation that came to our attention during the investigation.”
“Did the Greater New York Teachers Federation oppose this legislation?”
“Yes, the federation was on record as opposing the legislation,” Fulton replied.
“And who was the president of the Greater New York Teachers Federation at the time?”
“Thomas ‘Tommy’ Monroe.”
Karp turned toward the defense table and stared down at the defendant Olivia Stone, who glared back up at him before looking away. “And what, if anything, was the defendant’s affiliation, past or present, with the teachers union?”
“At one time she was chief counsel for the union and reported to Monroe.”
“After she left that position, did she have any other association with the union?”
“Yes, the teachers union supported her election for DA of Kings County, Brooklyn.”
“What became of the charter school legislation after the death of Rose Lubinsky?”
“That was nine months ago, but it’s my understanding that it was tabled for the time being.”
“So the death of Mrs. Lubinsky achieved the union’s goal of at least delaying the state assembly vote on this bill?”
“Objection!” Mendelbaum shouted.
“Sustained,” Rainsford said. “Mr. Karp, please let’s not assume facts not in evidence.”
Walking over to the jury box, Karp looked up at Fulton. “Returning to the night of the murders, would it be safe to assume that the objective of the police officers present for crowd control was to protect those attending the book signing, as well as keep the two opposing groups of demonstrators apart?”
“That’s correct.”
Karp pointed at the diagram. “Detective Fulton, would you please look at People’s 1 in evidence.”
Fulton reached into the interior pocket of his suitcoat and carefully removed a pair of dark-rimmed glasses that he placed on his broad brown face. “I can now,” he said with a smile.
Karp smiled back; his friend resisted wearing glasses unless absolutely necessary. “They make me look old, just like the gray hairs on my temples,” he’d complained that morning in Karp’s office.
“You can see the circles representing where the two opposing groups were assembled, marked ‘Nazis’ and ‘Locals,’ as well as the area marked ‘bakery,’ a circle marked ‘Lubinsky car,’ and another circle marked ‘police car’?”
“Yes, quite clearly.”
“Would you say the diagram fairly and accurately represents the location of these various items as they were on the night of the murders?”
“Yes.”
“Did you see Lars Forsling that night in the circle marked ‘Nazis’?”
“At that time, I didn’t know what his name was,” Fulton said. “However, I did see a young man, who I later learned was Mr. Forsling.”
“Was there anything about him that caused you to notice him?”
“He was hard to miss,” Fulton replied. “For one thing, he had tattoos on his face. But he was also apparently the leader of that group and the most vociferous.”
“Was there something else that happened that night that brought Mr. Forsling to your attention? And if so, would you explain the circumstances?”
“Yes. The crowd control officers did their best to contain the groups in specified areas and away from each other and the bakery,” Fulton said. “However, the protesters were welcome to leave so long as they didn’t try to circumvent the ground rules. In fact, it was a very cold night, and many of the protesters on both sides didn’t last long. At some point, Mr. Forsling walked away from the area designated for his group, but instead of leaving, he circled around and was apprehended on the street near the area designated on the diagram as Mrs. Lubinsky’s car.”
“You said ‘apprehended.’ So he was arrested?”
“Yes, he’d been told to remain out of that area, and he was placed under arrest for disobeying a lawful command by a police officer.”
“What happened to him at that point?”
“He was placed in a squad car—marked ‘police car’ on the diagram—until we could spare the manpower to take him to The Tombs.”
“The Tombs, by which you mean the jail in lower Manhattan, located at 100 Centre Street inside this courthouse building?”
“Yes. It sits at the northern end of this building complex.”
“Was it at this point that you learned his name?”
“Yes . . . though not immediately . . . the arresting officer was black and Mr. Forsling initially refused to give his name and had no other identification on him. However, he gave his name to a white officer, who then told me.”
“Was Mr. Forsling eventually transported downtown?”
“Yes.”
“What happened between his arrest and being taken downtown?”
“The bomb was detonated.”
“At that time killing Miss Calebras and Miss Mohammad, and mortally wounding Rose Lubinsky.”
“Yes.”
“Thereafter, Mr. Forsling was taken immediately to The Tombs?”
“Yes, and then was taken to your office located in the southern end of this building at 100 Centre Street.”
“I requested this so that he could be interrogated about his possible involvement in the attack on the three women?”
“Yes.”
“And you were present during this interrogation, as was Mrs. Carole Mason, a stenographer who works for the District Attorney’s Office?”
“That’s correct.”
Karp left his place at the jury box and walked over to the prosecution table, where Assistant DA Kenny Katz handed him a photograph. Returning to the witness dais, he handed the photograph to Fulton. “Detective Fulton, I’m handing you People’s Exhibit 21. Is this the man who was arrested, placed in the police car, and then brought to my office to be interrogated?”
“Yes, that’s Lars Forsling.” He handed the photograph back down to Karp, who walked it back over to the prosecution table, where he set it down and picked up a sheaf of papers.
“Prior to the interrogation, were you able to review the criminal history of Mr. Forsling?” Karp asked.
“Yes.”
“What did you discover?”
“I did run a quick criminal background check,” Fulton replied. “There was nothing major. A couple of citations for vandalism. There was a notation that he was a suspect in attacks on Jewish businesses last November.”
“That would have been the anniversary of Kristallnacht, an event in Nazi Germany and Austria in 1938 in which Nazis destroyed Jewish businesses, as well as assaulting and murdering Jewish citizens of those countries.”
“That’s correct.”
“Were you able to learn anything else about Mr. Forsling?”
“He was considered to be one of the leaders of a group of neo-Nazis who gathered regularly at a bar called The Storm Trooper in Hell’s Kitchen,” Fulton said. “It’s a small group, and not particularly notable, but active enough to have come to the attention of the NYPD Gang Unit.”
“In reviewing what you could find about Mr. Forsling’s activities, was there any record of him acting violently against other people?”
“Nothing specific,” Fulton said. “These guys are always threatening to ‘defend themselves’ against minorities and ethnic groups by resorting to violence, and there were some members of this group associated with having records for violent crimes—one Jim Gerlach in particular. But Forsling seemed to be all mouth . . . at least at that point.”
Karp held up the sheaf of papers. “Detective Fulton, I am handing you the transcript of the interrogation of Mr. Forsling, marked as People’s Exhibit 22. Would you take a moment to look it over and tell the jury whether you believe it to be a fair and accurate representation of that event?”
As Fulton quickly scanned the transcript, Karp again returned to the rail alongside the jury box. “This appears to be a fair and accurate representation of the interview with Mr. Forsling,” the detective said.
“And this is an actual transcript of the conversation as it was taken down by a stenographer?”
“Yes, by Mrs. Mason, who I believe has been with the DA’s office for more than twenty years.”
“Detective Fulton, how would you describe Mr. Forsling’s attitude during this interrogation?” Karp asked.
“Belligerent,” Fulton said. “Paranoid.”
“Did he use epithets and racist remarks when referring to you and me?”
“Frequently.”
“If you’d refer to the second page of the transcript,” Karp said, “what was the first question he asked?”
“He asked, ‘Am I under arrest for the bomb?’ ”
“And my response was?”
“You said, ‘You were arrested for disobeying the lawful command of a police officer.’ And then you asked him if he was willing to answer your questions.”
“Did he have a concern that something might happen to him if he didn’t answer my questions? I’m referring to his response a few lines down from his question.”
“Yes, he pointed at me and said, ‘And if I’m not, you’ll have your house nigger beat me up.’ ”
“Did you respond to this provocation?”
Fulton laughed. “If I had a nickel for every time some suspect referred to me as a nigger, I could have retired from the force a long time ago. No, I didn’t respond.”
“Did Mr. Forsling make any comments indicating he believed that he was being ‘set up’ by law enforcement to take the fall for the car bomb? I’m referring to his comments on pages three and four.”
Turning to the pages, Fulton nodded. “Yes, first he said, ‘You and your nig . . . your cop . . . think I did it and that’s all that matters.’ He then said, ‘For all I know, you planted that bomb so you’d have a reason to go after us for murder.’ ”
“Did I indicate that Mr. Forsling was a suspect?”
“Yes, you pointed out that he and his friends had targeted the book signing and that he’d been arrested near the car that was bombed. You said, and I quote from page five: ‘It makes you a person of interest; it doesn’t make you guilty. I also know that you were sitting in the police car when the bomb went off and had a view of Mrs. Lubinsky’s car. And that makes you a potential witness.’ ”
“What was Mr. Forsling’s response to that?”
“He wanted to know if he could leave if he answered your questions.”
“Was he worried about someone?”
“Yes,” Fulton said. “He said his mother was an invalid and he wanted to get home in order to take care of her.”
“What was my response?”
“You told him he was going to have to wait until the next morning to see a judge before he could post bail. You also offered to contact NYPD to do a welfare check on his mother, but he declined the offer.”
“Why did he decline the offer?”
“He said that he was worried that a black or Hispanic officer would be sent and that would upset his mother.”
“Did Forsling then agree to answer my questions?”
“Yes, though he initiated the next part of the conversation by alluding to a potential alternative suspect he claimed to have seen while sitting in the squad car.”
“How did he describe this person?”
“As a ‘funny-looking nigger’ who he said was near the Lubinsky car. He said he saw him leaning over next to the car, and I quote, ‘as though he was tying his shoe.’ You then asked him to describe this person and he said—this is on page seven—‘You know, like his face was like half-black, half-white . . . like he had that thing that Michael Jackson had.’ ”
“Did you respond to that?”
“Yes, I said, ‘Vitiligo, it causes a decrease in skin pigmentation.’ ”
“Did he answer my question asking if he recalled anything else about this individual?”
“Yes, he said this individual was with the group marked on the diagram as ‘Locals’ and that right before the bomb went off, he separated from that crowd. Quoting here from page nine, ‘Then he took out his cell phone and punched in some numbers.’ You asked him about the significance of that and he said that this individual didn’t try to speak into the phone but was instead, this is page ten, ‘looking at it when that Jew bitch and her friends got in the car. He was watching them and then boom.’ ”
“Was there a second observation he made about this individual?”
“Yes, his shoes. He said this individual was wearing ‘cherry red canvas high tops.’ He thought it was unusual because it was cold outside and there was snow on the ground.”
Karp walked over to the witness stand and held up his hand for the transcript, which Fulton passed to him. “Did Mr. Forsling then terminate the interview?”
“Yes. He said he’d wait to see what we did with his information before he’d answer any more questions.”
Karp walked back over to the prosecution table and picked up another set of papers, which he delivered to Fulton. “Mr. Fulton, approximately a week after the murders outside of Il Buon Pane, did you have occasion to be in an establishment known as the Jay Street Bar in Brooklyn?”
“Yes. I was there to monitor a conversation being recorded between Thomas Monroe and one Micah Gallo.”
“I’ve handed you another transcript, People’s Exhibit 23. Do you recognize it?”
Fulton made a show of looking the transcript over although he’d reviewed it extensively during trial preparation. He looked up. “Yes, I recognize it.”
“Without commenting on the contents, does it represent a fair and accurate transcription of this conversation you were monitoring between Mr. Monroe and Mr. Gallo?”
“It’s word for word.”
“Thank you,” Karp said, walking up to retrieve the transcript from Fulton. “No further questions.”
Rainsford turned to Mendelbaum, who was leaning over to listen to Stone, and asked if he wanted to cross-examine the witness.
“Yes, your honor,” he said, standing and approaching the witness stand.
“Good morning, detective,” Mendelbaum said, “though my stomach’s telling me that it’s almost lunchtime so I’ll make this quick. Detective, during this interview with Mr. Forsling did he ever outright deny planting the bomb?”
“Not in so many words.”
“Actually, not at all,” Mendelbaum replied. “He accused my colleague, Mr. Karp, and yourself of jumping to that conclusion, but he never actually denied it either, did he?”
“You’re correct, he didn’t,” Fulton responded.
“Nor was he asked. Isn’t that correct?”
“We never got that far before he terminated the conversation.”
“And before he terminated the conversation, he wasn’t asked, was he?”
“No, he wasn’t.”
Mendelbaum walked right up to the witness stand, where he stood with his head craned to look up at the detective. “Mr. Forsling wasn’t brought to the offices of the district attorney that night because he’d been arrested for disobeying a police officer, right?”
“No.”
“In fact, he was brought to the offices of the district attorney because he was the prime suspect in the car bombing, isn’t that true?”
“He was a suspect.”
Mendelbaum looked surprised and turned to the jurors as if he’d heard some piece of stunning news. “Were there any other suspects I haven’t heard about?”
“Not at that time, no.”
“So he was the suspect, isn’t that right?”
“At that time, he was the suspect, yes.”
“However, Mr. Forsling alluded to a suspicious-looking character with some sort of marking on his face, wearing bright red canvas high-tops?”
“Yes.”
“Were there a number of police cars on the scene that were equipped with dash cams?” Mendelbaum asked.
“Yes, there were.”
“And did any of these dash cams reveal such an individual?”
“There was only one car with a camera pointed in the direction of the ‘Locals’ group.”
“And did it show this individual?”
“Not that I could see.”
“And wasn’t there quite a bit of media presence at this demonstration, recording both sides of the event?”
“Yes, there were several television crews.”
“And did any of their broadcasts depict such an individual?”
“Not in the amount of video I was able to view,” Fulton responded. Although he couldn’t say it, he was frustrated because the defense had won a pretrial motion that prevented him from saying that the television stations had refused to turn over their tapes of the events. He’d only been able to view what had been broadcast.
This time it was Mendelbaum who walked over to the jury box, smiling slightly at the jurors, most of whom smiled back at the grandfatherly figure. “Detective Fulton, one last question. You testified that Mr. Forsling didn’t have a record for violence against other people. But I believe we’re about to learn that he was quite capable of murder, aren’t we?”
Fulton shrugged. “Yes, we’ll learn he was capable of murder, but not these murders.”
“Nice try, detective, but we’ll see about that, won’t we,” Mendelbaum shot back.
“Oh yes, we will, you can make book on that one, Mr. Mendelbaum.”
“No more questions, your honor,” Mendelbaum dismissively replied.
“Mr. Karp, care to redirect?” Rainsford asked.
Karp rose and shook his head. “No, your honor.”
“The witness may step down,” the judge said, and looked at his watch. “It’s a little early, but let’s break for lunch and reconvene at one-thirty this afternoon. We’re adjourned until then.”