Chapter 1: Graveyard
“People of the State of New York against Bernardo Rios. Step up!”
Rios didn’t budge, didn’t seem to hear. He’d fallen into a slump, head dangling from a loose neck, much like the five strangers surrounding him on the prisoners’ bench. At four in the morning, mid-graveyard, every player in the courtroom was blinking grit, battling the nod.
Tilted upright behind the prosecutor’s table, Dana Hargrove evaluated the case. Through sheer will and frequent sips from a tall coffee cup, she snubbed the empty chair and remained standing. In a stiff-armed lean, hands grasping the table edge, she scanned the papers laid out on the surface below. The faint print on tissue-thin paper was nearly illegible.
This had to get better. A new computer system was promised for the summer of 1988, a few months from now. Until then, the district attorney’s intake clerks still typed the criminal complaints on multiple-sheet carbon forms, replete with black strikeovers. The police reports usually weren’t any better. This one was handwritten.
Dana’s large, brown eyes were red-rimmed and burning. Squinting hard under the buzz of fluorescent light, she tried to make sense of the swimming text. Never enough information and never enough time to formulate a strategy. Graveyard shift in arraignment court was the worst, an assignment dumped on new hires and a rite of passage for every rookie. With it came the absurd responsibility of making crucial, split-second decisions on zero sleep—plea bargains and bail applications in cases as serious as murder and rape.
But this one? Incredulous, Dana confirmed what she’d seen at first glance. Farebeat. Why was a farebeat in the system at four in the morning?
“Bernardo Rios, step up!” barked the clerk. This time the defendant snapped alert, suddenly aware that the name, spoken with a New York clip, was meant to be his. Bleary eyes searched the room and fell upon the uniformed court officer striding into his face, coaxing him up with a twitching finger. Rios straightened his legs, uncertainly finding his balance. Nothing restrained him. Unlike some of the prisoners, he wasn’t considered dangerous enough to be handcuffed or shackled.
“We need the interpreter, Your Honor.” Seth Kaplan of the Legal Aid Society addressed the Honorable Morris Chomsky.
The judge scanned the courtroom, rolled his eyes and growled, “Get the Spanish interpreter.” Hadn’t she been here a minute ago? Inexplicably, she’d disappeared. “Second call!”
Chomsky didn’t appreciate obstacles to his relentless pace, which he maintained even on graveyard. His normal state of irritability grew with lack of sleep, along with his habit of blaming everyone in sight—particularly the defendants—for his inability to avoid a temporary assignment to night court.
Rios, already halfway to the defense table, stopped dead against Kaplan’s upheld hand. “Esperas un momento,” the attorney stuttered, whirling his hand in circles, miming a command to turn around.
“How do you spell that?” asked the droopy stenographer, hands poised over her machine.
“Don’t take that down,” Seth told her, then to Rios: “Esperas…vamos a…well…otra vez.” A light went on in the defendant’s eyes, and he turned toward the prisoners’ bench. The judge, behind his obelisk of gouged, dark wood, swiveled his chair to the side and beckoned the court clerk, who came up to receive an instruction.
“Very good,” Dana whispered to Seth out the side of her mouth, keeping her head bent over the papers. She was practiced in a level of voice just beneath Chomsky’s hearing, loud enough to reach her adversary a few yards away at the defense table while the judge was distracted.
“Not bad for one year of college Spanish,” he replied with a wink.
“Trying to avoid the bologna and cigarettes?”
Seth understood her meaning and grinned, pushing a friendly set of quote marks into his cheeks. Earlier, he’d been allowed a two-minute conference with each of his prospective clients in the close quarters of the lockup, a breeding ground of singular odors on the breath and bodies of arrestees. Anyone held in the pens longer than six hours was entitled to bologna and American cheese on white, followed by a smoke.
“Just bologna on that one,” he whispered, keeping an eye on Chomsky, who was giving a final directive to the clerk.
Seth was likeable, a pleasant distraction from Dana’s nocturnal hallucination. His grin and lively blue eyes always tugged out a response, and his regular features made a welcome contrast to the grim vision of endless unsavory characters in the night. Some Legal Aid attorneys—those blindly overzealous champions of the accused—could make Dana’s graveyard shift completely miserable, but with Seth in the opposing camp, she could count on a comrade against Chomsky’s unpredictable wrath.
The shuffle of hard-soled shoes and scrape of a wooden chair floated in the cavernous space. The judge, now turning to face them, ran a palm over the half-dozen gray hairs on his head and dropped the hand to his desk. His fingers drummed the wood, sending audible vibrations into the unacceptable emptiness. “Let’s go! Call the next one.”
Meanwhile, out the corner of her eye, Dana saw Rios hesitate before resuming his seat, as if he’d just noticed his bench companions for the first time. Street people, three prostitutes and two disheveled, grimy men. Rios was a small cut above them with his clean, discount store clothing and a decent haircut. A sense of neatness. She wondered at this. The transit police usually didn’t arrest people like Rios for jumping the subway turnstile. Instead, they issued a ticket directing the accused to appear in court on a future date to answer a charge of theft of services, a low-level misdemeanor. On the books, the maximum sentence was six months, but standard practice was to impose a fine.
“People against Velvet Desire,” called the clerk.
Two court officers stood ready to escort the red-wigged woman as she slithered upward, giving Rios the extra space he needed on the bench to maintain some distance from the others. “De-zir-ray,” she corrected the clerk, stumbling toward Kaplan on stiletto heels. The officers exchanged amused looks and took up positions behind her at the defense table to prevent the possibility of an escape through the empty audience section and out the door.
Assistant DA Hargrove had no need to examine the thick stack of carbon paper on this one. Ten years of pross convictions marred Velvet Desire’s past. A raid early yesterday morning had sent more than two dozen prostitutes through the system in the last few hours. Chomsky wasn’t fond of hookers and always offered them an impossible choice: five days for a guilty plea or an extortionate bail for a not guilty plea. Either way, the punishment was unprofitable for their pimps, who took it out on them when they returned to the street.
Chomsky’s tough stance was out of line. Most judges would offer time served, anywhere from twelve to thirty-six hours between arrest and arraignment. But Dana didn’t have a hope of changing the judge’s mind. Neither did the defendants. At about 7:30 a.m., any prostitutes left over from the raid would stir up a scene in the courtroom, hoping to delay their arraignment until the day judge came on the bench. For now, there was nothing Ms. “De-zir-ray” could do but take what was coming.
Dana listened with one ear while continuing to eye Rios’s papers, trying to unfurl the mystery of his arrest.
“Waive the reading of the rights and charges?” asked the clerk.
“So waived,” responded Kaplan in between low, fast talk with his client. Velvet wasn’t a stranger to Chomsky and knew the game well. Nevertheless, she shouted for effect: “Five days. Sheee-it!”
“Keep it closed,” rapped the judge. “An extra day for the next outburst. You have fifteen seconds to give me your plea.” He set a timer on his watch. “After that, another day for every fifteen.”
Dana flipped up the Rios complaint and examined his yellow sheet underneath. Here was the answer. The transit cops must have recognized him. Rios had a recent conviction for theft of services and another for petit larceny. He was a small-time thief. He also used different aliases for each arrest. No wonder he hadn’t responded immediately when his case was called. “Rios” might not be his name at all.
“That’s bullshit,” spat the large purple mouth. For all her legal experience, Velvet hadn’t wised up. Seth pumped his hands up and down and whispered hoarsely, hoping to stem the overflow.
“Okay. That’s six days. You don’t like it? Get out of the business.” Chomsky turned to ADA Hargrove. “Hear the People on bail.”
Dana looked up. The judge didn’t want a speech, and in fact, anything more than a few words would aggravate him further.
“The People recommend $250,” she said simply.
“My client has community ties and isn’t a flight risk…”
The court officers snickered.
“Bail set at $1,500, cash or insurance company bond.” The judge lifted the gavel.
“One moment, Your Honor,” said Kaplan with an ear open to his rasping client. “Ms. Desire wishes to enter a plea of guilty to the charge.”
Stifling a grin, Judge Chomsky flew into the necessary litany to assure the legality of the plea. Dana shut her ears to the proceedings and concentrated on the Rios police report. In the box for “personal property,” the arresting officer had written “$3,300 cash, bank papers.” Dana reached the logical conclusion: poverty was no excuse for the defendant’s larcenous behavior.
With a crack of the gavel, Judge Chomsky imposed sentence.
“Seven days. That ain’t the deal!”
“Go back to school, Ms. Desire. Six plus one. The bail application took fifteen seconds.”
Velvet turned to her lawyer and screamed demands while Seth tried to convince her that the judge wouldn’t allow her to withdraw the guilty plea. The court officers stood at the ready.
“Let’s go,” demanded Chomsky, cracking the gavel again. He stood, and with a look of disgust, swiped the air with his hand to erase the sight. “Take her out. Court stands in recess. Ten minutes. Don’t go anywhere.” He descended from his fortress, shrinking into a surprisingly small, gray and ordinary man as he scurried toward the side door, on his way to chambers.
Court officers removed a kicking Velvet Desire while the defense and prosecution exchanged looks. With Velvet gone, a moment of dead silence fell. Dana looked down at the table, now a morass of disorganized papers. At the beginning of her shift, she’d fanned them out like a magician’s deck of cards, stretching the overlapping papers straight in a line with just the docket numbers and defendants’ names showing. Periodically, a clerk or paralegal from the district attorney’s office would enter the courtroom to deliver new papers and take away those already arraigned, challenging Dana’s neat organization.
Underneath the line, she’d placed an alphabetically organized row of notes from various assistant district attorneys concerning the most serious crimes or high-profile defendants. “Second call this case,” was a frequent message. “I want to appear on it.” The ADA’s office phone number or whereabouts would be noted. “I’m OT in 52,” for example, was code for “on trial” in the courtroom for Part 52 of the Supreme Court.
Of course, it was impossible to predict the exact moment when a particular defendant would be arraigned. There were too many variables. The assigned ADA couldn’t appear if the arraignment occurred on graveyard. So, every note included a backup set of specific instructions, including the amount of bail to request, the details of a plea offer, or a directive to refrain from plea bargaining—instructions intended to avert sure disaster committed by a rookie ADA like Hargrove, dizzy with fatigue and naïve with inexperience.
Eyeing the jumble, Dana smoothed her crown back down to the nape of her neck where a gold barrette neatly gathered her shoulder-length dark hair, shiny and thick as mink. She sat and quickly reorganized the papers, assuring herself in the process that nothing had been missed. Then she rose onto her low heels, the comfortable shoes she reserved for night court. Otherwise, her manner of dress was the same as daytime office wear—a gray, business skirt suit. She never wore a pantsuit, unlike some of the female Legal Aid attorneys she’d seen.
Dana pulled together the lapels of her jacket, buttoned it, and turned to go. There was just enough time to splash cold water on her face, among other things, in the ladies’ room.
“Wait.” Seth stopped her.
“I have to go.”
“Just a sec. What are you looking for in the Rios case?”
“The farebeat? He has to plead to the charge.”
“Yeah, but you’re recommending a fine, right? How much?”
Dana lowered her brow and peered at her adversary like he’d just landed from Mars. “Sure, I’ll recommend a fine. You know me, Seth. I just love to hear myself talk. I mean, where else can I be such an effective advocate?”
Seth grinned. “Don’t be so sure about the judge. Even Chomsky can see that Rios isn’t your common street punk.”
“If the judge is giving prostitutes five days, he’s giving time to a farebeat with a record.” Both attorneys turned, as if on cue, to regard the defendant, now reestablished on the bench in a cross-armed, sideways slump with his eyes closed.
“You know,” said Dana pensively, “if the judge wants to give your guy a few days, it’s all right with me.”
“Are you serious? He’s been locked up since noon. No farebeat should get more than a fine.”
“I don’t know…”
“Besides, not that you care, but he didn’t do it. Says he dropped his token, it was rolling away, and he had to jump the turnstile to get it.”
Dana raised her shapely eyebrows. “He told you all that, back in the pens? Without the interpreter? I’m impressed.”
“He was straight with me.”
“I mean, I’m impressed with your Spanish, not your client.”
“I understand a lot more than I speak.”
“So, he dropped his token. Very original.”
“I believe him.”
Seth’s earnest expression said it all. He didn’t often admit to a belief in his clients, so Dana took him at his word. He had spoken with Rios. She had not. And while intuition counted for a lot in this business, Dana’s intuition had been known to fail her at moments when she really needed it. In her nine months at the DA’s office, many people—witnesses, cops, defendants—had lied to her, and had lied well. Now she was more inclined to stick to the record and form her beliefs about an individual based on his past habits instead of the words out of his mouth.
“He has a record,” she declared. “He’s a thief and a liar. Why do you think he was arrested? The cops recognized him. Listen, I’ve got to go…” She picked up her purse and stepped away from the table.
“If the judge wants more than time served we’re taking it to trial.”
Dana halted and swung around to face him. A snappy retort would have been perfect just then, and her tongue might have found one if it weren’t for Judge Chomsky, who banged open the side door and strode up to the bench. “All rise,” intoned the clerk.
“Damn it, Seth,” she hissed under her breath. “Now I have to hold it in.”
“That weren’t no ten minutes,” he quipped with a shrug of apology and a parenthetical grin, almost making up for her lost break.
As the judge took his seat, a small, middle-aged woman entered the courtroom, scurried through the rows of empty pews and pushed through the swinging gate into the section reserved for the participants. Out of breath, she panted in a Spanish accent and glanced up at the judge but said nothing to explain her disappearance twenty minutes ago.
Judge Chomsky pointed to the court clerk. “Call that case with the interpreter.”
This time Rios jumped to his feet when the name was called. Before he could reach the defense table, Kaplan spoke. “May we approach, Your Honor?” He was angling for a private, off-the-record conference at the bench to learn the judge’s position on sentencing.
“Hold it,” snapped Chomsky, thrusting out a hand. “There’s nothing to talk about. Ten days, take it or leave it.”
Dana’s jaw dropped. Tough, even for Chomsky.
“Your Honor—” Seth began, in protest.
“The man got nothing for the other two raps. It’s time to do some time Mr. Rios, or whatever your name is. Clean up your act!” The color rose in the judge’s pallid cheeks as he geared up for a lecture. He always delivered one or two during his eight-hour shift, although Dana never knew when they were coming or which defendants would inspire them. Oddly, Chomsky more often unleashed his fury against the small-time thieves and street dealers than the kidnappers, rapists and murderers, for whom he clothed his tongue in solemnity. The serious criminals were beyond his help and therefore unworthy of his pearls of wisdom.
The Spanish interpreter rattled every word into Rios’s open ear. He stood mute behind black, emotionless eyes, protected by an invisible, impermeable wall against the judge’s harsh attention. His figure was so still, the air around him seemed to vibrate. Who was Bernardo Rios? Decidedly not a New Yorker. His past had trained his response, or lack of it, as he listened intently to the translation of Chomsky’s ranting with an unreadable expression. Behind that mask lay any number of possibilities within: acceptance, worry, fear, indifference, or seething rage.
“You’re a liar and a cheat, Rios. Two thefts this year. How many others did you get away with? Do a few days at Rikers and see how you feel then! Money in your pocket and still won’t buy a token. In this great city people who barely make it are still paying the fare. Nobody gets a free ride, Rios. Who needs you? Go back to Panama.” The judge held up and slapped the case papers with the back of his hand. “Or is it Peru or Colombia?” Dana looked at the defendant’s yellow sheet again, and sure enough, Rios had given the police a different native country each time he was arrested. “You’re a liar and a cheat. I don’t want you in my courtroom again. Do your time and learn a lesson and go home. We don’t put up with this kind of crap here!”
The judge paused for breath. The balls of his cheeks and rims of his ears were purple and a thin layer of white foam lined the inside corners of his mouth. “All right. Fifteen seconds. Give me your plea.”
Kaplan knew better than to comment on the judge’s lecture for fear of spurring a new tirade, aimed at him, not the client. He conferred briefly with Rios in hushed tones through the interpreter. Dana caught only a few words but grasped the understated outrage in Seth’s voice. A plea of not guilty could mean an impossibly high bail, enough to lock the door on Rios for the full ten days while awaiting trial. Still, Seth might be able to pressure Dana’s office into advancing the case. Almost any other judge would be more lenient. Rios could have his trial in the next day or two and win immediate release, even if convicted.
The trick was to finagle a short adjournment in a system jammed with cases. Dana decided she wouldn’t create an obstacle. After all, the outcome seemed fair. She would have recommended a sentence of a couple of days for this defendant—if Chomsky had asked for her opinion.
Rios looked at Kaplan while listening quietly to the interpreter. A smoldering passivity was palpable, a reluctant acquiescence to fate. Within the allotted fifteen seconds, Seth gave his response: “Your Honor, Mr. Rios wishes to enter a plea of not guilty and requests an immediate trial.”
Chomsky raised his eyebrows in boredom, his rage sated by his own recent outburst. He turned a blasé eye on ADA Hargrove. “People?”
The judge didn’t want to hear it, but Dana needed to make a record if the People were requesting bail in a farebeat case. A man with a larceny record who regularly lied to the police and now faced jail time was unlikely to return for trial, argued Dana—unless the court set a significant bail. Figures whirled on a roulette wheel in her head, the blurred numbers reflecting a world of differing opinions about the value of her words. The ball landed uncertainly in a slot. “The People recommend a bail of $1,000.”
Chomsky raised his eyebrows again, whether in disdain or surprise, Dana couldn’t be sure. He turned to her adversary. “Counselor?”
“That’s an outrageous amount!” spurted Kaplan, clenching his fists in midair. Dana took no personal offense at his keenly felt sense of injustice. While some defense attorneys put on a show for every defendant, Seth was choosy and therefore genuine. “Mr. Rios was falsely accused. He bought a token, it slipped out of his hand and rolled under the turnstile…”
“All right, all right,” Chomsky muttered, turning his head to the side and drumming his fingers.
“My client should be released on his own recognizance. He wants to return to court and testify…”
“Wants to tell his story, does he? A fine story indeed, but I don’t buy it. Bail is set at $1,500.”
“That’s unconscionable! It’s…”
“Watch it, counselor.”
“Your Honor, he can’t pay it. He’ll stay locked up before he’s found guilty of anything. At the very least, the court should order the DA to release my client’s funds. A sum of money was seized from him at his arrest.”
The judge turned to the prosecutor. “Your office will be forfeiting that cash, right Miss Hargrove?”
Dana was taken off guard. Forfeiture? She knew little about the law but assumed nothing could be forfeited unless related somehow to the defendant’s crime. Nothing in her papers suggested the $3,300 was related to any crime, much less farebeat. “Well, Your Honor, certainly I’ll discuss it with the attorneys in forfeiture. I’d request that the cash be held until then.”
“Listen to me, Miss ADA.” The judge turned a squinting eye on her. “You take this back to your forfeiture unit! The man here has $3,300 and won’t pay his fare. Deliberately won’t pay, even though he has enough for a ten-year supply of tokens. It proves his intent. It’s a forfeitable instrumentality of crime. Take that back to your office and thank me for doing your work.”
Dana had barely registered this far-fetched theory when the judge said, “Enough of this. Bail is set at $1,500.” He turned to the clerk. “Call the next case.”
“Judge,” interjected Kaplan. “We need a trial date. Later today or tomorrow at the latest…”
“May 18. Let’s go.”
“That’s a month from now.”
“Listen, Mr. Kaplan, I know your game, and don’t think I don’t. ‘Give me a trial, give me a trial.’ Come clean and tell us what you really want! Your guy here wants to wait until tomorrow to plead guilty, after you find a judge who gives fines, not jail sentences. I have news for you, Mr. Kaplan. I won’t be a party to your shopping expedition. If you really want a trial, you want motion practice—”
“Mr. Rios waives motions—”
“—if you’re serious about a trial that is. This case is adjourned for defendant’s motion papers, May 18th. You want it on earlier? Talk to the DA and see if you can get it advanced. May 18. Next case. Let’s go!”
copyright 2017 by V.S. Kemanis
V.S. Kemanis has had an exciting and varied career in the law and the arts. As an attorney, she has been a criminal prosecutor for county and state agencies, argued criminal appeals for the prosecution and defense, conducted complex civil litigation, and worked for appellate judges and courts, most recently as a supervising editor of appellate decisions. Ms. Kemanis is also an accomplished dancer of classical ballet, modern jazz, and contemporary styles, and has performed, taught and choreographed in California, Colorado and New York. Short fiction by Ms. Kemanis has appeared in Ellery Queen’s Mystery Magazine, The Crooked Road Volume 3, among others. She has published four collections of short fiction and four legal thrillers featuring prosecutor Dana Hargrove who, like the author, juggles the competing demands of family with a high-powered professional career in the law.
Find her at https://www.vskemanis.com