Triple Homicide

prologue

The story that I am about to tell is mostly true. I have changed the names of the characters out of my concern for their privacy. Much of this tale was told to me by an extraordinary journalist who was perhaps the last of those insightful observers and courtroom commentators working in New York City up until the 1970s. Those in that elite club included Jimmy Cannon, from the New York Post, Scotty Reston and Russell Baker, both of the New York Times, and, of course, the great Murray Kempton, who for years wrote for the New York Post and who ended his distinguished career as a columnist for the New York City and Long Island newspaper Newsday.

I’ll call my guy Morty, not his real name, because that’s what he wanted. If, he once said to me, you ever get around to writing about this, leave me out. Then he added, Ya see, if I wrote it, it would sound so far-fetched that no one would believe it, and I got a reputation to keep. You, on the other hand—you’re a fuckin’ lawyer, so it doesn’t matter if anyone believes you!

For years, Morty covered the New York City Criminal Court in Brooklyn for a great parochial newspaper, the Brooklyn Eagle. It was during the late 1950s and early ‘60s, and it was a glorious time to be a reporter. In those days there were ten major daily newspapers; the News and Mirror (many people thought that they were one newspaper, as in "da News ‘n’ Mirror"), the Post, the Times, the New York World Telegram and Sun, the Herald Tribune, the Journal American, the Staten Island Advance, the Long Island Press, and, of course, the small but mighty Brooklyn Eagle. Just as so many great trial lawyers learned their basic skills and honed them early in their careers in the local criminal courtrooms, working for the Legal Aid Society or the district attorney’s office, these same venues provided exceptional training for young journalists. And just as the lawyers cut their teeth on this invaluable experience and began to develop their technique through the sheer volume of cases available to them, so, too, did Morty and his peers learn their trade. They learned the critical need to make a deadline in order to get a story printed, how to cultivate sources, and how to find ways to get tips and scoop the competition. For these police reporters, particularly the young ones, the criminal court was unvarnished high drama, with its share of heroes and villains, joy and tragedy, chaos and pathos. Morty never permitted himself to lose his enthusiasm for covering the courtroom scene. He called the court at 120 Schermerhorn Street in Brooklyn the Hall of Hell. The hall, actually called the Criminal Court for the City of New York, is a huge ten-story building whose facade was constructed of gray sandstone blocks. It houses a dozen courtrooms, judges’ chambers, clerks’ offices, a large complaint room, where criminal charges are first docketed, and offices for the assistant district attorneys and for the lawyers from the Legal Aid Society, an organization known elsewhere in the country as the office of the public defender. The building, which occupies nearly three-quarters of a full city block, is filled each day with hundreds of police officers, hundreds more victims and defendants, and an equivalent number of tragic stories.

I first met Morty in 1963 when I worked as a criminal defense attorney for the Legal Aid Society at the Criminal Court. Our meeting was one of instant and mutual dislike. I was representing a federal agent, charged in a series of brutal sodomy attacks on seven children in separate incidents. None of the children was older than nine. While each act was particularly vicious, performed at gunpoint, there was a serious question whether any of the children had correctly identified the assailant. The children separately described the assailant as much heavier and considerably taller than the defendant. The only accuracy of the identification was that both the assailant and the defendant had facial hair, although even that similarity created difficulty for the prosecution because the hair color described by each victim ranged from bright red to jet black. The agent, a childhood friend of mine whom I had not seen in years, was in the lockup—the holding cells located in the basement of the courthouse. He spotted me while I was interviewing one of my clients. This subterranean cellblock could have been designed by Dante. It was poorly lit and permeated with the ubiquitous stench of urine and body odor, which clung to the walls and the clothing of everyone who passed through the holding area. In sum, it was a dungeon, which echoed with the ceaseless ramblings of the detainees packed together in several adjoining cells, creating a loud, frightening din. It most certainly was a terrorizing experience for a federal cop from the other side of the criminal justice system.

Special Agent Frank O’Sullivan of the Federal Bureau of Investigation was dressed in a blue golf shirt and tan slacks with worn brown penny loafers. His smoker’s face was prematurely aged with deep lines, and his hair was an odd mix of white and gray with clumps of each in no particular pattern. His slumping shoulders made him appear even shorter than his five feet six inches. He was leaning against the bars of his cell when he first spotted me. He was sadly self-conscious of the dried tears that streaked his cheeks, and through a voice breaking with fear, he begged me to represent him at his arraignment on the criminal charges. An arraignment is part of the initial court proceeding where a person charged with a crime is formally told the specifics of the charges. He told me that his lawyer was delayed and he had been told by the correction officer in charge of the detention area that his case would not be called until his lawyer appeared. I telephoned my boss and got permission to represent O’Sullivan for the arraignment. I was directed to make it clear to the judge that the Legal Aid Society was appearing on O’Sullivan’s behalf only for the arraignment.

When the case was called, the courtroom was filled with the anxious and angry parents of the seven little victims, several dozen police officers and court officers, and seemingly every reporter in New York City. This only served to piss off the local police reporters, Morty in particular, making them all the more ravenous for inside news in order to show up those people from the City, as the regulars referred to their invading colleagues. Of course, the children were kept in another room, protected by a detail of police officers and watched over by several social workers from the city-wide trauma unit of the Victims Services Agency.

The court officer motioned to O’Sullivan, who was seated in a holding area in the courtroom, and directed him to come forward as he called the docket number and the name of the case, which included the name of the defendant. This particular announcement has a daunting effect on the defendant because it proclaims the awesome power of the state, The People of the State of New York against…. Then, turning to me, he directed, Please give your notice of appearance. A notice of appearance is one of the court system’s numerous anachronisms. It means simply that the attorney must give his or her name, address, and affiliation for the stenographic record of the proceeding, which is preserved for future review—for example, to show that a defendant was properly advised of the charges brought by the prosecutor. I replied, Charles J. Hynes, associate attorney, the Legal Aid Society, representing the defendant.

Does he have a name? was Judge Cromwell’s curt inquiry.

Yes, of course he does, Your Honor, and it was just announced by the court officer, when the case was called. Judge Cromwell, a huge man whose distended belly and florid face were the marks of the final stages of a diseased liver, the result of decades of gluttonous boozing, immediately took offense. In a booming voice for all to hear, particularly the families of the victims, but especially the assembled media, he demanded, Why is the Legal Aid Society representing this federal agent, who surely has the resources to retain private counsel? Nothing I could say by way of explanation would keep the judge, one of the worst political hacks we had to deal with, from getting his moment in the sun. Judge Cromwell closed his tirade against the Legal Aid Society in general and me in particular with Bail is set in each of the seven cases at one million dollars. Each, he added, not sure that he was fully understood. Then he ended with this:

If this defendant, a federal agent—and here, in a loud and melodramatic voice, he pronounced and spelled O’Sullivan’s full name—Francis Emmett O’Sullivan can put up seven million dollars to secure his return to court when necessary, then perhaps you, Mr. Hynes, and your organization, which exists to represent indigent criminals—

Defendants, I shouted, interrupting the judge.

Don’t you dare interrupt me or I shall set bail on you! he screamed, with such intensity that it was accompanied with a noisy belch and the unmistakable odor of rye whiskey, part of his breakfast routine, assaulting everyone within five feet of the judge’s bench. He kept his menacing stare fixed on me for almost a full minute. Then he continued.

Very well, if he makes bail I assume he will pay for his own lawyer. My poor friend Agent O’Sullivan was too shaken to attempt to reply to any of this as he was led away in handcuffs. He looked plaintively in my direction and shrugged his shoulders. As he was being led away, handcuffed behind his back, to the detention cell, I mouthed, Don’t worry, and then I raced from the courtroom. It took less than an hour for me to prepare and serve a writ of habeas corpus on the New York City Department of Corrections, which was holding O’Sullivan.

A writ of habeas corpus is an ancient legal remedy that is a birthright of every American citizen and is one of the foundations of our protection against the vast power of government. The writ is an order issued by a judge directed to the custodian of a person held in confinement. The opening words of the document demand, Habeas corpus ad subjiciendum—or, in substance, You shall have the body brought before me immediately! Like so many other rights available to American citizens, it has its roots in English law. It is perhaps the most celebrated writ in English law and is revered universally as the great writ of liberty.

New York State Supreme Court Justice Peter King, who heard my application for the writ and who promptly granted it, at first laughed. Then, when he realized that Judge Cromwell was involved, he shook his head and said, That asshole!

I rushed back to the courtroom with the writ. It was there that I first encountered Morty. In fact, I ran smack into him, just as he stepped in front of me and in one breath snarled, "I’m Morty——of the Brooklyn Daily Eagle. How do you get off representing this bum, anyway? Morty was not much more than five feet tall with a rasping voice, the result of too many years of inhaling Camel cigarettes. He reeked of nicotine. His face was framed by an odd-looking porkpie hat, and he had a huge yellow pencil resting on his right ear. He was wearing a cheap cardigan sweater, dark gray trousers, and a loud red-and-white-striped shirt; it appeared to me that he chose his outfit for what he believed was the appropriate dress of his trade. I recalled that most of the other reporters in the press section of the courtroom wore similar attire. Morty repeated as if I hadn’t heard him the first time, What the fuck gives you the right to use taxpayer money to represent a bum like this?" After my ugly encounter with Judge Cromwell and his absurd brand of justice, I was in no mood for Morty or anyone else, so I pushed him aside and tried to ignore his shouts and complaints that I should be arrested for assault as I made my way to my office. Morty’s persistent telephone calls to my office, eleven of them, I left unreturned.

Later, after the writ was granted and Agent O’Sullivan was released without any bail set, Morty accosted me again. I ignored him and resisted a powerful temptation to take his head off.

As the years passed I went on to different jobs, mostly in government, but with some time spent in the private practice of law as a criminal defense attorney. I began to notice Morty’s byline on a number of significant crime stories. While I didn’t forget our first unpleasant encounter, I admired his writing style. It was clear, thoughtful, and comprehensive, and it contained no personal judgments. Soon he had a column in a major New York City tabloid three times a week, and I became an avid reader and very soon an admiring fan.

In 1985, our paths crossed again. In June that year, New York Governor Mario M. Cuomo appointed me the corruption special prosecutor for New York City. One of the first calls I received was from Morty, who asked to meet with me. He made a luncheon reservation at Forlini’s Italian restaurant on Baxter Street in lower Manhattan, not far from the federal and state courthouses and a favorite hangout of prosecutors, defense attorneys, and judges.

The restaurant is divided into two rooms. The main room, entered from Baxter Street, and its attached rear room have an identical placement of booths along the wall on the right side as you go in. Both in the middle and on the left side of each room, there are neatly arranged tables properly spaced for privacy. The booths in both rooms each have a small plaque affixed to the wall, identifying a famous customer, usually a judge, such as New York Supreme Court Justice Edwin Torres, the author of Carlito’s Way. Justice Torres is famous for a line in a sentencing speech he gave to some incorrigible drug seller: Listen to me, pal. With the sentence I’m about to give you, your parole officer hasn’t been born yet!

One of the booths bears a plaque dedicated to the current district attorney of New York County, Robert M. Morgenthau, the well-respected dean of the state’s district attorneys. Another honors John Fontaine Keenan, a federal judge, formerly the brilliant chief of the Homicide Bureau in the office of the legendary Frank S. Hogan, a feared and respected predecessor of Morgenthau in the DA’s office.

The lighting in Forlini’s rear room is subdued, so it appears to be a more confidential setting than the brightly lighted entry room. In truth there is really no difference. It just seems more private, although the occupants of the booths, seating four, are often seen leaning over, in secret huddles. Naturally the front room is usually occupied by people who want to be seen. It is generally filled with lively conversation and a great deal of laughter, interrupted by new important arrivals.

The bar at Forlini’s could easily be a setting for one of Damon Runyon’s stories. It is the venue where the various levels of the court system meet with little thought to class distinction. Court officers, defense attorneys, police officers, prosecutors, and judges freely mix in a convivial setting, gathered around a very long bar. The open kitchen sends waves of tantalizing garlicky smells throughout the bar. The bar is dark, and when you enter through its separate Baxter Street door, the patrons look more like shadows until your eyes adjust.

The bar area is filled at lunch hour, and some of its regulars remain late into the evening. It is mostly dominated by loud conversation, and the din it creates ironically offers more protection for confidential conversation than the rear room.

Appropriately Morty and I met in the rear chamber to discuss our mutual fascination with public corruption and, in particular, police corruption. Before we got to that subject Morty opened with, So kid, what ever happened to that fed child molester you represented, watshisname O’Reilly or …?

O’Sullivan, I corrected him. "It was a tragedy seemingly without an end in sight. You may not remember the details but Frank O’Sullivan was accused by seven little girls, none older than nine years, of separate or unconnected sodomy assaults in different neighborhoods throughout Brooklyn. He was arrested despite the fact that the only evidence was the eyewitness identification by the children, each of whom offered a contradictory recollection of his facial hair. The hair color given to the police by the kids immediately after each assault ranged from bright red to jet black, nevertheless the nature of the brutal attacks, which were identical, was so horrific that the district attorney refused to dismiss even though O’Sullivan’s facial hair was distinctly blond. He concluded that the discrepancies could be explained away by the age of the children and the traumatic circumstances of the assaults.

"‘Besides,’ the DA said to one of O’Sullivan’s lawyers, ‘there hasn’t been a similar attack since your guy was arrested.’

O’Sullivan went to trial six times and as I said the facts were identical, so much so that the police department’s sex crimes unit characterized the attacks as ‘pattern sodomies.’ In every case the victim was accosted inside an elevator of a residential building by an assailant with prominent facial hair, sideburns, and a goatee, wearing a bright bandanna which partially covered his face as well as the facial hair. Each victim said the attacker was armed with a small silver plated handgun held against their head. The assailant spoke only once and then briefly. He was somehow able to bypass floors as he took each little girl to the top floor of the building, usually the sixth floor. He then took her roughly by the arm and dragged the terrified child to a metal staircase resembling a fire escape that led up to a room containing the machinery which operated the elevator system. He then forced the victim to kneel.

At this point in my story I decided to give Morty a glimpse inside the trial where I defended O’Sullivan. I wanted him to know what we were up against.

"The assistant district attorney carefully brought the tiny seven-year-old victim through her first contact with her assailant, making it quite clear that her identification was solid.

"‘As you waited for the elevator were there lights on in the lobby?’

"‘Yes.’

"‘Were they very bright?’ The prosecutor knew it was an improper leading question but he also knew that the judge would not rule in my favor had I objected because of the child’s age and the stress she was under. It didn’t really matter because I had no intention of objecting, which I believed would have upset the child and had an adverse effect on the jury.

"The child answered, ‘They were very bright.’

"‘Were you alone?’

"‘Yes,’ she replied softly and then she added almost in a whisper, ‘for just a few minutes.’ Here the judge leaned over and said solicitously,

"‘Sweatheart, you will have to speak up so the jurors can hear you.’ The little victim then pointed to Frank and blurted out in reply, ‘Yes, until he came.’

"At this point tears streamed down her cheeks and she began to shake as she seemed to recall the ugliness of it all. I glanced in the the direction of the jury box and I could see the reactions of some of the jurors, from sadness to anger to disgust.

After the assistant DA had established that the lighting conditions were bright aboard the elevator and repeatedly asked the child where she was looking as she was abducted and throughout the ordeal leading toward her testimony about the assault in the machinery room he had clearly demonstrated to the jury that she had had ample opportunity to identify her assailant. It was at this point as I recalled her testimony that I carefully watched Morty’s reaction.

"‘What happened after you were forced to kneel down?’ the prosecutor continued.’

Now the child sobbed out of control as she described how her attacker zipped down his pants and…

When I finshed describing the wantonness and brutality of the assault I looked at Morty and saw his face had blanched and that he was angry.

How could you have defended that pig?

But Morty, I said, the guy was innocent.

I completed the account of her testimony where she recalled that the assailant told her, Count to fifty or else. Then to emphasize what he’d do if she did not, he cocked the gun and pushed it against her head. Then he disappeared out the door and quickly down the metal staircase.

Frank went to trial six times represented in each case by an experienced and competent trial lawyer. He was convicted in each case on all counts, which included kidnapping, attempted assault, and sodomy. By the time I took him to trial the appellate division had reversed the two prior convictions and dismissed the charges citing the unreliability of eyewitness identification in general and in particular these two cases. In my trial, not only was the facial hair significantly different in color and in length, the attacker was described as having jet black sideburns and a fully developed jet black goatee. Frank’s sideburns were blond like the rest of his hair and his arrest photograph showed a goatee with blond fuzz. There was also a serious problem with the height and weight description given to the police. The victim described her attacker as forty pounds heavier than Frank and at least six inches taller. None of that mattered any more than it mattered to Morty, and Frank O’Sullivan was once again convicted.

"By this time O’Sullivan had been fired from his job following his first conviction although he was appealing the ruling by the FBI. That administrative review by the bureau was rendered moot after his next conviction. Of course, his administrative appeal was put back on track after the second reversal which once again was halted upon his third conviction. Finally his marriage of ten years ended in divorce and he lost custody of his nine-year-old daughter. His wife, Rosemary, had stayed with him through the third trial but then said that she could no longer be sure of his innocence and that she was afraid for their daughter. At this point Frank, whose physical condition had deteriorated and who was fighting depression, said he that he was pretty much resigned to what had happened to him and that he fully understood Rosemary’s decision.

"Several months later Frank’s third conviction was reversed and the case dismissed but the DA refused to change his decision to continue the prosecution. Frank was tried and convicted three more times and in each case there was a reversal and dismissal based on what the appellate court concluded was a flawed eyewitness identification. But it was the language of the court’s sixth consecutive reversal and dismissal of People v. O’Sullivan that sent a clear message to the district attorney. In what would be the appellate division’s last unanimous decision in the O’Sullivan matter, the presiding justice of the court, Honorable R. Herbert Dayon, wrote with eloquent yet direct language, ‘No piece of evidence has so disturbed the courts of this state as that of the testimony of an eyewitness without any other support. While this Court does not reject such testimony entirely, every prosecutor who wishes to do a fair job must carefully weigh this evidence with a full appreciation of its potential for a perverse and unjust result.’ Dayon then added these words: ‘How many times must this Court reverse based on the facts in the O’Sullivan case before the district attorney of Kings County more fully understands that his job is not just to convict but to do justice?’ O’Sullivan would not stand trial a seventh