A Fool for a Client (22 page)

In effect Abrams had already succeeded in his objective: he had drawn the jury
’
s attention to the fact that there was an incriminating deathbed statement by Murphy which the defence wanted to suppress.
But he would have to come up with a good reason for trying to re-open the matter, otherwise the judge would slap him with a citation for contempt of court.

“You
’
re not empowered to act for the accused without her consent.
However, on my own motion I
’
ll hear arguments in the absence of the jury.”

On the judge
’
s instructions the jury was led out by a bailiff.
When the doors were closed behind them, Abrams was given the go-ahead to begin.

“Your Honour, In order to receive a statement in evidence as a dying declaration, The Court must be shown that the deceased was dying and that he knew this to be the case.
The Court has heard evidence that Murphy was dying and that he did die.
Regardless of the final cause of death, one of the elements of a dying declaration was clearly present.
The other essential element is that the deceased
knew
that he was dying.
Normally this requirement is satisfied by an inclusion of a statement to the effect that the deceased knew that he was dying in
the dying declaration itself.

“
In this case, concededly, Murphy
’
s statement to Detective Cruz contains no such statement.
However we are in a position to show that Murphy made such a statement to Dr. Stern in the presence of Detective Cruz, in the form of the words
‘
She
’
s a cold-blooded murderess
’
I submit that the use of the word
‘
murderess
’
clearly indicated a belief that he was dying and thus qualifies his subsequent statement to Detective Cruz as a dying declaration.”

Parker had by now openly assumed the mantle of Defence Counsel with no apparent opposition from Justine.
He wondered if she would let him continue as such for the remainder of the trial.

“Your Honour I must disagree with my learned colleague on a number of points.
First of all Murphy
’
s statement to Detective Cruz was given
after
he had been administered with a dose of atropine.
The doctors believed that the atropine would save Murphy.
If Murphy shared this belief then at the time he made his statement to Cruz he didn
’
t believe himself to be dying.”

“There is no proof on record that he
did
share that belief,” the judge pointed out.

“But there is no proof that he didn
’
t, and the
onus probandi
is on the prosecution to establish the admissibility of the statement.
Moreover there is clear evidence on record that Murphy knew
that he had been given the normal antidote to the pyrethrum.”

“In that case it hinges on when Murphy used the word
‘
murderess
’
,” said the judge.
“Before or after the atropine was administered?”

The Judge looked over at Abrams.

“Your Honour the remark was made to Dr. Stern
before
the atropine was administered,” Abrams replied, feeling the ground slipping away from under him.
“However, The Court should take note of the fact that the deceased made a statement similar to the contents of his dying declaration
before
the antidote to the pyrethrum was administered, even though it wasn
’
t written down at the time.”

“My learned friend forgets that
before
the antidote was administered there
’
s no proof that Murphy was dying.
The People
’
s own evidence suggests that he died of atropine poisoning.”

Abrams was being put on the defensive, and he didn
’
t like it.
He hit back with what little ammunition he had.

“Nevertheless he
did
die and at the time when he arrived at the hospital he truly
believed
himself to be dying, as evinced by his statement to Dr. Stern.
This is admittedly an ironic situation. When Sean Murphy
believed
himself to be dying he
might not
have been dying and when he
was
dying he
might
not
have
believed
he was dying.
But I would argue that coincidence of the belief and the fact is not necessary.”

“On the contrary,” Parker countered.
“The belief and the fact must coincide, or at least they must both be present at the same time as the statement was made.
This is vital test before a dying declaration is recognized.
The question is what did he believe when he made his statement and what was the case
in fact
.
He may have believed himself to be dying when he
arrived
at the hospital.
However the legal import of his words
‘
she
’
s a cold-blooded murderess
’
was swept into oblivion by the administration of the atropine.
Once that took place he may well have believed that he would live, even if it was the atropine that sealed his fate.
Furthermore, The Court should note that even before that, Murphy went of his own volition to a hospital where he was surrounded by some of the best doctors in the country.
Presumably he went there to get medical
treatment
in the belief that he had a chance of survival, otherwise he
’
d have gone straight to an undertaker.”

Laughter swept through the courtroom.

“Mr. Parker,” said the judge, scowling.
“I don
’
t take kindly to such displays of levity in my court.”

“I
’
m sorry Your Honour. The point I
’
m trying to make is that Murphy
’
s actions show that even when he said
‘
she
’
s a cold-blooded murderess
’
he believed that all was not yet lost.”

The judge nodded patiently and turned to the prosecutor.

“Mr. Abrams, do you have anything to add to the argument?”

“No Your Honour.”

“Mr. Parker?”

“No Your Honour.”

“Miss Levy?”

“No Your Honour.”

“Thank you.”
The judge looked Abrams straight in the eyes.
“It is clear that insufficient grounds have been established for admitting Murphy
’
s statement to Officer Cruz as a dying declaration.
Accordingly I see no reason to amend my ruling at the pre-trial against such admission.
I must also observe that I don
’
t even see any adequate grounds for the prosecution having re-opened the issue of Murphy
’
s statement, and I warn you Mr. Abrams that if there are any more attempts to poison the minds of the jurors, by raising issues already decided, you will be held in contempt Mr Abrams.”

Abrams looked away fearfully, realizing that while his gamble might have scored a few points with the jury in the few seconds that they had heard it, the exercise carried a dangerously high price tag with the judge."

A few yards away, Parker was leaning over towards Justine.

“You might show a little bit of an interest” he whispered as the jurors were led back.
“If that statement had been admitted as a dying declaration, you
’
d
’
ve been sunk.”

Justine showed no reaction.

The setting sun was dazzling to the eyes as
Thomas stepped out of the brownstone.
His hand slipped into the breast pocket to retrieve his sunglasses and put them on as he turned to start walking down the street.
He had followed Declan back to the apartment where he was staying and then paid it a visit while Declan was out doing his weekend grocery shopping.
Declan knew the gun laws in the State of
New York
very well and he made sure to leave the Colt 45 automatic in the apartment.
He would only take it out when he needed it.
Even having the gun was against
New York
’
s strict gun registration and
licensing
laws, but that was a risk Declan had to take.

Thomas had no qualms about killing another of the INLA trouble makers, to add to the four he had notched up already.
But he was operating under the same rules of engagement as other members of the Official IRA, and that meant no military operations in the
United States
.
It was in order to enforce this doctrine that he was here in the first place.
If wouldn
’
t do if he were to enforce the rule against operating in the
United States
while at the same time breaking it.
Of course the rule was a pragmatic one.
They purpose was to avoid to
appear
to be operating in the
United States
.
He could conceivably make the hit look like a m
ugging or a hit and run driver.

But there was always an element of risk involved in any sort of hit, and his brief had been very clear.
Stop him with minimal force and only kill him if absolutely necessary and unavoidable.

In any case, there was more than one way to skin a cat.
His approach was simple and involved the old principle of never doing your own dirty work when you can get some one else to do it for you.
In this case, the servants of his will would be
New York
’
s finest, and Thomas needed only one tool of the trade, and it was the telephone.

He had to time it so as to make sure that Declan would be there when they arrived.
He also had to make that they would conduct the search.
They had funny laws in the
United States
about “probable cause” and “illegal search and seizure.” Evidence had been thrown out of court because the police didn
’
t have a search warrant when they got it. Apparently American police officers were not allowed to use their initiative as their British counterparts were, a restriction which in this case did not work to
Thomas
’
s advantage.

On the other hand, they were allowed to follow their noses.
A police officer
’
s sense of smell could serve as probable cause.
Incriminating evidence discovered during searches of cars had been admitted because the officer conducting the search had sworn that he could smell marijuana.
The joint that Thomas had
lit and deliberately wafted around the room
would certainly leave a lingering aroma that any experienced member of
New York
’
s Finest couldn
’
t fail to detect.

He made his way to the pay phone at the end of the street.
The room had no phone and he didn
’
t want to risk being overheard by anyone else from the building by using the phone in the lobby.
Now all he had to do was wait.
No more than ten minutes elapsed before he saw Declan returning from the Korean supermarket with two brown bags packed with food.

He
dialled
the local police.

“Listen carefully
‘
cause I
’
m only going to say this once.
In apartment thirty one of three seven four, eighty second street you
’
ll find a drug dealer whose just made a score.
He has a gun, but he probably hasn
’
t got the balls to use it.”

He put the phone down and waited.
It was a long wait.
This was a working class area of the city, where the crime rate was high and police response times were slow, except when it was an “officer down.”

The police detectives arrived in an unmarked car using a silent approach.
They parked a safe distance away and entered the building quickly.
They had no warrant and a forced entry would have been questionable.
This was one of those many cases that they
’
d have to play by ear.
They checked for rear exits and found that the fire escape was
accessible from inside the room via the window.
One of them covered it while the other proceeded to the front door. He knocked and waited.