Circle of Six (39 page)

If I had to say one thing about the defense's lead counsel, Jacko, he was good at what he did. He was a courtroom showman. He picked his profession wisely. Nothing, and I mean nothing, he did or said was without premeditated thought. As he walked back to the defense table, he spun around, racing toward me. He pointed in my face and asked the wrong question. “Detective, tell me something. Have you ever locked up a white man for shooting a police officer?”

That came out of the left field. I turned to Harmon who sat back, folding his arms behind his head. I knew what he was thinking.

I waited a moment, collected my thoughts so I didn't look too eager with my answer, and I said, “As a matter of fact, Counselor, I have locked up
two
white men for the shooting murder of Patrolman John Verecha in 1968, and in that trial I convicted both of those shooters for killing that cop.” I leaned way across from where Jacko was standing. I looked directly
at Dupree. He had nowhere to look but back at me. I delivered this line with cold calculated precision. “They are both presently sitting in Sing-Sing prison, on death row, awaiting their execution.”

There was dead silence in the room for more than a number of seconds. Jacko looked at me and asked, “And they are white?”

“They are cop killers,” I said.

He turned to the judge and said, “Your Honor, that's not the question I asked.”

Judge Evans looked at him, shrugged his shoulders and said, “Counselor, you were the one who opened that door.”

Jacko turned to the jury, “I will remind the people of the jury; this is not a capital murder case we are trying. It is a murder second-degree, without premeditation...an
alleged
murder second-degree!”

What Jacko did, or was trying to do, was damage control. I don't think he succeeded. It was a relentless seven days on the stand, but eventually there were no other questions demanded of me. I was free to go.

Between the courtroom and the exterior hallway there is a room solely designated for witnesses for the prosecution. It's small, three or four chairs. I found myself sitting in that room with our star witness, Foster 2X Thomas. We had bought him a Robert Hall suit just for this occasion, with shirt and tie. We didn't say much to each other. I didn't want it to feel like a pep talk. As I was fixing his tie, I asked, “You know who's out there, yes?”

“The brothers are out there.”

He was preparing himself, sort of game-facing it.

I said, “Don't worry about any of it. Because like you, they also know the truth. They know you are not lying. The only reason they are here is to show support for the Nation of Islam, and you are a part of that nation, Foster.”

Suddenly, there was a knock on the door from within the courtroom. That meant he was being summoned to the witness stand. He stood, straightened his jacket, and opened the door. Before stepping into the courtroom where there were at least 100 people: court stenographer, sketch artists, jurors, news people, everyday spectators, and of course the Muslims, he breathed in deeply, and before entering the galley he quietly said to himself, “
Allahu Akbar
.”

I knew he was ready to go into battle, and I couldn't be any more proud.

Foster sat in the witness box erect, unafraid, clear-eyed, and above
all else, appearing honest and almost happy to be performing his civic duty. Harmon started his questioning with great emphasis on how and when he met me. He asked him if I'd ever threatened him, coerced him, or promised him or his girlfriend anything in return for his testimony. Foster, of course, repeated I had not done any of those things. Harmon wanted to know about our first encounter. Foster told him of the ride to the FBI, and on the way he said I was quiet, and friendly, so friendly in fact, that I offered him cake. I smiled as I thought of the box of cannolis I'd bought for my father-in-law. It was nice that Foster remembered that as well. Harmon was trying to establish what type of relationship we'd had for the past four years. Foster quietly said, “We're friends.” A white cop and a black Muslim, imagine that.

Harmon then went into the case and the day of occurrence. Foster broke down the events in clear succinct dialogue. When he described the shooting, he didn't fidget or look away. He pointed at Dupree, using his Muslim name, calling him
Brother
when he described him. He looked at the jurors when describing a certain situation. They were starting to like him, believe in him. And just like that, Harmon was through with his questioning. It was the defense's turn at him.

They came at him like an out-of-control buzzsaw. I thought that was the wrong tact to take with him, considering how likable he was to the jurors and to the judge. They insisted everything he had said to Harmon was fabricated. Foster came right back and said—without raising his voice, “No, Sir, everything I said to the Detective and to Counselor Harmon is the truth, because Minister Farrakhan always reminds the Muslims, that we must tell the truth.” Immediately, every Muslim in the room quietly said, “Amen.” Foster not only had us, and probably the jury believing him, but also the contingency of Muslims working for him too. That totally rattled Jacko. He ran toward the witness box pointing in his face. Foster was unflappable, unbreakable, and unafraid. Jacko screamed, “You say you're training to be a minister...”

“Yes, Sir, I am.”

“But it's been said you missed many meetings and were often late. Isn't it a fact, Mister Thomas, that you weren't even there inside the mosque that day?”

Foster began pointing out the Muslims in the audience, calling them by their names, “Ask Brother Leonard or Brother James.” He then leaned over and looked directly at Dupree. In a matter-of-fact, non-accusing voice he
said, “Ask Brother Lewis. He'll tell you I was there; he saw me.”

Most of the room laughed. The irony of his truthfulness was too powerful, and it seemed so unrehearsed. He was sitting there accusing Dupree of murder, and he was asking the man to verify for the jurors that he was in fact there the day Dupree murdered Phil. This was the stuff that only happens in the movies.

Foster was on the stand for half the time I was. Harmon told me in private, Foster was the best witness he ever had in all his time trying cases. He also told me his case was done. The rest of the prosecution witnesses, all forty-six of them, were happenstance and circumstantial. If we hadn't convinced the jurors by this point, we never would be able to. Foster's work was done.

For the next four and a half months, I sat in that tiny witness room and prepped every cop and witness that came through. My job was to make them seem likable, not to be baited into trading insults with the defense, Jacko. I also needed to make them understand that this was not an us-against-the-Nation-of-Islam thing, or a black-versus-white type deal. This was about convicting Lewis Dupree for the murder of a fellow cop; all politics, biases, and anger toward our bosses needed to be left inside that witness room. Some of the cops were good, and some of the best street cops floundered on the stand. Years later, as I moved ahead as a filmmaker, I heard a story that some of the best actors in Hollywood are terrible in casting sessions. For some reason they balked in a room full of critics, but ate the screen up when it came time to handle business. In any case, we did as fine as we could until Harmon had no other witnesses to put on the stand. The prosecution's case was over. Now it was time for the defense to present its case with their own witnesses, and guess what, there were none. They had no witnesses because my hero, Jim Harmon, had shut down the defense the moment he got this case. He did his job with the magnificence and tact and balls of a West Point paratrooper.

The jury was sequestered at an undisclosed hotel in midtown Manhattan. Everyday they were in by eight and out by five. They were seemingly deadlocked. After the fifth day, they came into court and relayed to the judge that they were, in fact, deadlocked, ten for conviction, two for acquittal. The judge gave them a pep talk, telling them of their civic duties, “You must come back with a unanimous decision.”

They went back into their chambers and tried to come to an agreement. On the seventh day of deliberations, one of the jurors couldn't take
it anymore. He went out sick. An alternate was brought in. That afternoon, the judge called them back into the courtroom, asking if they were any closer to a decision. The answer was no, still ten to two. This meant that the alternate had voted the same way as the juror who left. The judge, realizing the importance of this landmark case, and the time and money that had been spent on it, sent them back in for more of the same. On the tenth day, they came back out into the courtroom. The foreman had a hard time communicating to the court, some of the men began to weep openly. The foreman said, “Your Honor, we are still deadlocked ten to two.”

The judge, witnessing the physical and emotional strain these men and women were under, realized they were beaten. I watched the judge drop his head, shoulders slumping. There was nothing left for him to do. I felt my heart sink. I knew where this was heading. Judge Evans reluctantly said, “Thank you all for doing a thankless and difficult job. You are all excused.”

Judge Martin Evans declared a hung jury. The courtroom, naturally—having been filled with Nation of Islam supporters and no cops—erupted into sheer jubilation. They were hugging one another, praising Allah. I turned and looked at Joy Cardillo. I was in a fog. I really believed we'd proven our case. All I could feel was grief for Joy, her family, the NYPD, and of course Phil Cardillo. I had let them all down. I sat on that uncomfortable bench and watched the members of Mosque Number 7 explode with exultation, victory over the system I was sworn to uphold. What did I do wrong? How better could I have prepared? Was it my insubordination toward the job that held those two jurors out? Two jurors out of twelve, it had to be me they didn't trust, didn't like. I had failed miserably—game over.

I stood and slowly made my way to the prosecution's witness room. Before I entered, I noticed Josephs looking at me. He didn't crow over his victory. He nodded in kindly acknowledgment, as if to say:
good fight.
As I made my way past the Muslims, I was sure not to take my eyes off Dupree. He looked everywhere but at me. Then the other lawyers from the defense came to me and shook my hand. They acted with dignity. It didn't help, but it softened the crushing reality.

Inside the witness room, Vito was understandably destroyed. He sat staring at the floor, shaking his head uncontrollably. I was reminded of the moment when I'd seen him in the interrogation room, while he worked at the 2-5 Precinct, that glazed thousand-mile stare. The difference now was that Foster 2X Thomas stood behind him, rubbing his shoulders, trying
to console him. He'd say, “It's okay, Vito. We did the best we could. You and your God know the truth. Lewis Dupree, he too knows the truth, and Allah knows the truth.”

Foster was the real thing. He was a part of the team. He was one of the best partners I ever had. He had become a part of my life, my soul, my brethren. I was going to miss him.

The door flung open, and the force of nature known as Jim Harmon entered. It was back to business when he declared, “Randy, tomorrow, 9 a.m., prepping for the retrial.”

He shook Foster's hand, was about to pat Vito on the shoulder in a consoling manner, but decided against it. Harmon was a winner; he saw this as a bump in the road.

The only thing that was going to shock me more than losing the trial was what Harmon was saying. I couldn't believe we had to do this all over again. In the hallway, I was met with most of the jurors, some still crying, others holding onto me, hugging me tightly.
We're sorry, Detective,
they said over and over. What could I say? There was nothing left to say except
thank you
. It was later that I learned there was really only one holdout on the entire jury panel, a black woman. The second holdout was another woman who voted to acquit out of sympathy for the only other holdout. That stung. What about a sympathy vote for Phil Cardillo, his wife, and their children?

On the steps of the courthouse, Sam DeMilia held a live news conference. He was railing against the miscarriage of justice we'd all just witnessed. Then he started to name names. He was going to the State's Attorney General, Louie Lefkowitz. He also said that New York's governor, Hugh Carey, was completely abreast of the situation. With the PBA's war chest, the bosses who had a hand in murdering Phil a second time were going to be disgraced, then slaughtered.

IAD was waiting for me in Harmon's office the next morning. I was set to go on trial. It had to be waived because of the retrial. They'd have to wait for my crucifixion.

It took another ninety days before trial number two started, and eleven days to pick a jury, one third of the time it took to pick the first one. The whole courtroom vibe was different this time around. There were only a handful of Muslim supporters. Still, no cops were allowed throughout the proceedings. The press corps had also depleted in numbers, and there wasn't even a sketch artist. This trial was performed because it was our
civic duty to retry, and that really sucked. The trial was as expected, anticlimactic. It lasted five short weeks, and the only reason it lasted that long was because we put on almost as many witnesses for the prosecution as we had in the first trial. We posted all of our witnesses to the defense, which meant that we were telling them who we had and we needed to know who they were going to question for their defense. They came back at us with this: “We believe every witness you have brought forward has given truthful testimony. There is no reason for the defense to call anyone back other than Detective Jurgensen, and Foster Thomas.”

They also imparted this fact to us: they were bringing in four of their own witnesses, witnesses we'd never heard of. They were Muslims who asserted they were there, in the vestibule, the day of occurrence, but they didn't see Foster 2X Thomas anywhere near the scene. A smoke screen is what this was. We all knew he was there, because we had pictures of him outside the mosque, and numerous other Muslims corroborated it. This was just some nonsense that the new Nation of Islam attorney, Hudson Reid, was throwing onto the wall in hopes that it would stick. Deep inside, we all knew that none of this mattered. Yes, we went after Dupree with as much fervor as we had the first time, but the truth of the matter was simple—been there and done that—the public no longer cared. They had all heard of the first hung jury. Why would and should this be any different? When Foster was brought in, he gave his testimony as powerfully as he had the first time. But I could tell in the jurors' faces, their body language, they weren't ready to believe him. The judge, Aloysius Melia, after being informed the defense had no other witnesses to bring forward or cross, sent the jury out to deliberate. They came back with a verdict of not guilty. I don't know if it was luck, or complete misfortune, because that was the only day during both trials that Joy Cardillo wasn't present. Of course, there was another celebration, not nearly as raucous as the first time, but enough of one to sting like a son of a bitch. I looked at him, Dupree. He did it. He got away with murder. And at that moment, as harsh a reality as this is to admit, I wanted to murder him.