"That's it, we're done," Jimmy Breslin's telling me. "Me and Roberts are through. Finished. No more. That motion being granted was a slap in the face to New Yorkers. It was a fix all the way around."
The Roberts whom Breslin's talking about is Burton Roberts, attorney for Officer Sean Carroll, one of the four cops indicted in the Bronx shooting death of Amadou Diallo last February. And the situation he has in mind is the recent motion by a Bronx panel of judges to move the Diallo trial upstate to Albany. Since that legal tempest blew through town two weeks ago, more than a few people have been questioning just why and how it happened.
Traditionally in New York state, a trial isn't moved until voir dire is held for prospective jurors. This gives both sides time to evaluate whether a fair panel composed of people from the case's jurisdiction can be assembled. In the Diallo case, the defense made a pretrial motion to the Appellate Court, claiming that Bronx County's population won't be impartial to the four police officers, who've been indicted on murder-two charges. Burton Roberts argued in his motion papers that it's "long been the conventional wisdom among the legal community in the Bronx that jurors harbor an existing prejudice against police officers." Roberts cited a poll claiming that 81 percent of Bronx residents believe that there's no justification for police officers shooting 41 times at a suspect. The five-judge panel granted the motion, and moved the case upstate.
The judges were all George Pataki appointees, and it's been suggested that the defense waited until such a panel was sitting to make its motion. What's more, Albany has a strong pro-police reputation. The suspicion among some journalists is that Roberts, who used to be chief administrative judge of the Bronx, used his influence to work the motion in his favor.
Roberts and Breslin have been friends for more than 35 years. Close friends. But Breslin's not the type to let sentiment obscure his view of what he thinks is right, or the sort who goes after small game. He smells something rotten, he'll tell you, friend or no friend. And in this case, he's gone on record with his opinion that Roberts has acted dishonestly and as a fixer.
Breslin and Roberts met when the latter was an assistant district attorney, learning the legal ropes from legendary Manhattan D.A. Frank Hogan. Roberts eventually became Bronx County D.A., and would call Breslin often to talk and to crow about his latest victory. Later he was elected Bronx Supreme Court justice, and ruled mightily from the bench. He became something of a legend when Tom Wolfe modeled the tough Judge Kovitsky in The Bonfire of the Vanities after him.
Breslin's not impressed.
"The story that everyone is missing," he tells me, "is that they wanted this trial moved more for the judge than the jury. That Bronx judge was a black female, and they didn't want that. They want that guy up in Albany to hear this.
"I told Roberts back in April not to take this case. It wasn't just me saying this. He couldn't win with this one. I kept asking him, How was his client, that nice Irish boy who shot the guy in the neck? Then I started calling him a fixer. I told him he fixed the Eleanor Bumpurs trial, he fixed the Livoti trial. I told him he was dishonest. He didn't like that."
Breslin isn't alone in his disdain for Roberts. Jack Newfield is right there with him. Newfield's covered the New York court scene for more than 30 years, and has known Roberts that long, though he hasn't been as intimate with him as Breslin has.
"I find it indefensible that Roberts prejudged the population of the Bronx before he even tried to pick a jury," Newfield says. "Every controversial trial in New York in my memory has been held in the county where the crime was committed. From Goetz to Gotti to the World Trade Center bombing. Why move this one? I don't think it's fair play to move it. It sets up a Rodney King-like trial.
"I find it pathetic that Roberts would throw a stick of dynamite into the racial relations of this city," Newfield continues. "He's treating the whole thing like he's fixing a parking ticket. Al Lerner was one of the five judges who granted Roberts' motion. Al Lerner was one of Roberts' good friends when they were judges. Lerner should have recused himself from hearing that motion. And if you read Roberts' motion, he disenfranchises the Bronx, the borough that made his career. Those people up there voted for him and paid his salary! I warned him that he shouldn't take on this trial. His ego got in the way. We were teasing him that since he had retired as a judge he was in withdrawal from seeing his name in the paper. I told him newsprint was like crack to him. His mind was set, even though we kept telling him that even if you win, everyone will think it was a fix."
I called up Roberts, a man I've never met, and asked him what he thought.
"I have no comment on the case," he barked.
I told him that I understood he couldn't talk about the case, but that I had some other questions I wanted to ask.
"Look, I'm busy. I'm having dinner," he said.
A pause?then I could hear him taking the bait.
"All right. What is it?"
I asked him what he thought about Breslin's and Newfield's taking him to task.
"I have absolutely no comment on that."
So I called Nat Hentoff, who did as good a job of defending Roberts as Roberts himself might have done.
"I think Burton Roberts has every right to defend Sean Carroll," Hentoff insisted, "and he has a right to make a living. I also agree with the trial being moved. There is a Supreme Court tradition that goes back to the Sam Shepperd case that when a trial is being held in a city that has so much prejudicial matter a fair jury pool cannot be found, it must be moved. I believe that's what we have with this Diallo trial. Look at the ACLU ad with the 41 bullets through the Bill of Rights, or that New Yorker cartoon cover with a cop shooting at an arcade with that sign, '41 shots for a dime.' Then the Times had a damning editorial on those four cops. You couldn't find 12 people in New York that could be untainted."
Hentoff's right. The poison's been spreading month after month. Look at the protesters outside City Hall. Some are protesting systemic police brutality?which is all well and good. But Al Sharpton was agitating for the cops' indictment even while the grand jury was in session. When it comes to cops being indicted, people forget about due process.
"Now," Hentoff continues, "while I felt they had to change the venue, I think it was a big mistake for it to be moved to Albany. The joke on the history of judges in that city is that they wear policemen's badges on the bench. They should have moved it to Syracuse or Rochester, where the demographics might be the same as Albany but it's not as much of a cop culture as Albany."
Albany, though, is where this trial?the trial of the New Year?is going down. And as the trial's Jan. 31 date gets closer, you can feel the anxiety from many whites here in the city, who are cowering with fear that an innocent verdict will send dark rioting hordes charging down on them from the Bronx and uptown, raining holy hell on their heads. You get the sense?as you often do during racially charged legal situations like this one?that genteel white New York is rooting for the four cops to be found guilty, just so as not to inconvenience everybody else.
Will an innocent verdict happen? Probably not, and there's the chance that that will be the fault of the defense's own arrogance. If the defense likes the judge it draws, it will get cocky and request a bench trial. But that would be a major tactical error?the defense would be ignoring that New York state's elected officials would never allow a judge to render an innocent verdict from the bench. You can bet that Gov. Pataki and all the other supposedly pro-law-enforcement goons in the state government are going to sell the cops out. They always do. Those cops better demand that their lawyers opt for a jury trial, from which they might expect a little fairness.
And if a jury finds them innocent after all, and riots result, so what? We're due. It's bound to happen sooner or later anyway.