The streets of New York City, at night....a patrol car driven by Officer Quinn pulls to the curb in front of Ezra's Coffee Shop at 47 Central Park West. Officer Dilbeck gets out. A couple are arguing in front of the shop. An elderly woman restrains a dog barking at a pile of boxes. A young homeless woman asks Dilbeck for spare change. Dilbeck goes inside to use the facilities. A few minutes later she emerges. A transvestite who has been talking to Quinn through the car's open window straightens and sashays away. The couple are still arguing. As the patrol car pulls away the young woman, Mimi Sterngagen, tells the man she doesn't think they can start all over and to stop bugging him. Then she goes inside. The man, Nathan Roberts, angrily turns and kicks one of the boxes. A few minutes later, Mimi comes out with two cups of coffee. Nathan is nowhere to be found. She calls his name twice. Moving closer to the boxes, she sees something, drops the cups, and screams.
Down the street, Quinn and Dilbeck get the call.When they return to Ezra's they find Mimi bending over Nathan, who is flat on his back on the sidewalk. She's patting his chest, hysterical, repeating that he's going to be all right. But Dilbeck can see he isn't going to be. His shirt is soaked with blood.
At the 27th Precinct, Detectives Phil Cerreta and Mike Logan are questioning the old lady (Elsie Hatch), who has her dog in her lap, the transvestite (Sal Violet) and the young homeless woman (Murdoch). Elsie Hatch mentions that a naked man was running up and down West 74th with a crossbow last night. Murdoch wonders why all the freaks live in New York, and why some of "you people" don't move to Nebraska. Sal Violet says she's from Nebraska. "How do you think I got this way?" Cerreta determines that none saw the actual stabbing. He gets their names and addresses. He tells them they had to have seen Robbins fall. But none say they did. Sal Violet says there was a guy, about 5'10"; Elsie Hatch corrects her, the man was at least 6'2" and was running away. He wore a red parka. Sal Violet says it was overalls, and he's seen the man before, sleeping in boxes. Captain Donald Cragen comes up to tell the detectives that Nathan Robbins was DOA.
On the streets, the next day, Cerreta remarks to Logan that it's funny how three bystanders don't notice a stabbing right under their noses. Logan talks about the girlfriend -- a crime of passion would explain why Robbins still had a wallet on him. Or maybe it was a mugger who was scared off before he could get the money. Or, says Cerreta, he got mad because somebody kicked his box.
At Mimi Sternhagen's apartment, the detectives learn that she saw no one in the box, or anyone wearing a red jacket. She asserts that she and Nathan weren't arguing. Cerreta suggests they were "animated" and tells her, gently, that in a homicide investigation very few things will remain private. Mimi says she didn't like being proposed to on the street, that she'd always dreamed it would take place on a ship bound for Paris or something. Nathan had an engagement ring, and the detectives wonder what happened to it.
On Tuesday, July 10, Cerreta and Logan visit the scene of the crime. They ask Ezra if the man who slept in the box had a knife. Ezra tells them the man was crazy, that he thought everyone was a KGB agent. He describes the man as 5'10" with a crewcut and a yellow pallor. A lot of the street people have hepatitis. He usually wears overalls, not a red parka. Ezra remembers that the man had warned him to stay away from the lake in Central Park -- because it was CIA headquarters.
In Central Park, Cerreta and Logan question several homeless guys and learn that the man they're looking for is called Lemonhead. His real name is Christian Tatum, and he drinks Scotch. Logan remarks that this doesn't look like a Scotch-and-soda crowd, and the homeless men think that's very funny. One claims that Lemonhead had warned him away from the booze, saying he'd killed one guy already, and that last week he'd cut the privates off someone from the CIA. They direct the detectives to the Dunsmore Arms.
At the flophouse, Cerreta and Logan are informed by a young black woman at the desk that Christian Tatum is in Room 40. Reaching the room, Logan raps on the door, calls out to Tatum that he has a warrant for his arrest. When there's no answer, the detectives draw their guns and barge inside. The small cubicle is empty. They find a red parka, and in the pocket a ring box containing an engagement ring. Tatum appears at the door, sees them, and bolts. They catch him in the hallway. As he's being handcuffed, Tatum sings a song about a monkey that wrapped its tail around a flagpole.
Tatum is put into a lineup at the 27th Precinct. When Murdoch is called in to view the lineup she says she wants Bachelor # 2, the good-looking one, for an all-expenses-paid weekend in Miami. Cerreta tells a uniform to get her the hell out. Miss Fahey, Tatum's court-appointed lawyer, notes that the witness isn't exactly "grounded." Sal Violet is next; he asks that all the men in the lineup be made to turn around. She picks # 3, saying she never forgets a "nice behind." But she admits that # 3 wasn't in the vicinity of the stabbing. Elsie Hatch is next. She takes a look at the men in the lineup and says no. She starts to leave, then stops, looks again, and says that # 4 -- Christian Tatum -- was there, too. Logan snaps to it first -- there were two different guys involved in the crime.
When Miss Fahey arrives at the interrogation room, she apologizes to Cerreta and Logan for being late and blames it on crosstown traffic. Logan wryly says they were about to extract a confession from her client. Fahey suggests that Logan "extract this." Cerreta shows Tatum the ring. The red parka is on the table. Tatum says the jacket isn't his, that James gave it to him for safekeeping. He says he didn't stab anyone, James did. He was just the lookout.
When Cerreta and Logan enter Capt. Cragen's office, Cerreta admits that the second guy sounds like Lemonhead's imaginary playmate. Cragen tells them to find out if James if real and, if that doesn't work, to call Dr. Olivet.
In the 27th Precinct interrogation room, Dr. Elizabeth Olivet questions Tatum. He says he didn't stab anyone -- he just told the guys in the park he did for protection. When Olivet asks about the CIA man he supposedly emasculated, Tatum yells for her to stop and bangs his head on the table. Then he says he's killed a lot of people. He sneaks a peak under the table, smirking. Olivet raps on the table with her pen to get his attention. He asks if there's a reward. She wants to know if he's in a position to claim it. "Anything is possible," said Tatum, evasively.
In Cragen's office, Olivet reports to the captain, Cerreta and Logan. She says she doesn't think Tatum stabbed Robbins. He's delusional. James and the red parka, though, sound on the level. Wearing the red jacket was, for Tatum, a "badge of honor." Cragen proposes that Tatum is a psychopath who flew into a rage when Robbins kicked his box. Olivet says Tatum is psychotic, not psychopathic. She explains the difference: a psychotic thinks the doorman is an alien on a mission to plant mind control devices in your teeth. "Psychopathic is when you blow the doorman away, and take out twenty other people while you're at it." On her way out, she reminds the detectives that Tatum told her James lives under a tree near the Bridal Path.
Monday, July 23, in Central Park....Handcuffed and muttering gibberish, Tatum leads Cerreta and Logan through the park. He asks about the reward. Cerreta comments that he thought James was a friend. Tatum says he's flexible. A little further on they come to a homeless person's nest in some bushes -- an old mattress, a box, a cart filled with trash, clothes hanging from ropes strung between the trees. The detectives begin to search. Logan finds a Social Security card in the name of James Joseph Polesky. Cerreta finds a large hunting knife underneath the old mattress.
At One Police Plaza, a forensic technician gives Cerreta an evidence bag containing the knife. It's a match. The blood on the handle is B-negative, like Robbins'. Chest hair samples match Robbins. The size of the wound is consistent. She smiles and asks if Polesky's prints would be "overkill."
At night, in Central Park, Cerreta and Logan move cautiously through the trees, accompanied by several uniformed officers wielding flashlights. They see a movement. A man, running away. The policemen give chase. Logan catches the man, tackling him. As Logan wrenches Polesky's hands behind his back to cuff him, Cerreta, gun drawn, reads him his rights.
In the 27th Precinct's interrogation room, Cerreta and Logan try to talk Polesky into admitting his crime. Polesky's attorney, Mr. Scolar, is also present. Polesky wants to know if there's a deal on the table. There isn't. Polesky tells them to go get a rope. Logan indicates he'd be happy to wrap a rope around Polesky's scrawny neck.
Scolar pays Ben Stone a visit in the EADA's office. Stone claims he has irrefutable evidence and an eyewitness, so why would he make a deal? Scolar says his client was drunk and has a history of impulsiveness. Stone thinks a jury will see Polesky for what he is, an opportunistic and cold-blooded killer. When Scolar leaves, ADA Paul Robinette, who's been standing to one side, opines that Scolar will use the trial as a forum on the rights of the homeless. He envisions editorials like "Power of the State vs. Victim of Society." Stone points out they'll get flak from the other side too. With homeless lunatics killing innocent people, is the State powerless to protect its citizens? He advises Robinette not to worry so much about "the ink we're getting." Robinette says they could avoid a lot of hard feelings by making a deal. Stone is flexible where Lemonhead is concerned. But not Polesky.
At the arraignment, Scolar announces a plea of not guilty for his client on the charge of murder in the second degree. The judge denies bail and remands the defendant. In the case of The People v. Christian Tatum, the charges are murder in the second degree, conspiracy and larceny. Tatum's attorney, Miss Fahey, complains that The People have not made full disclosure. She notes that there is no search warrant in the papers Robinette turns over. Robinette can say nothing.
Cerreta and Logan visit Robinette in the latter's cubicle at the DA's suite of offices. Robinette tells them the judge had a problem with no search warrant. Logan is exasperated. Cerreta points out they were worried about securing the area. Robinette is sympathetic, but he needs one of them to testify at the suppression hearing. Logan volunteers.
At the suppression hearing, Logan testifies that the red parka found in Tatum's room was in plain sight. But Judge O'Malley grants the motion to suppress, declaring the search of the defendant's jacket illegal -- and rendering the ring belonging to the victim inadmissible as evidence.
In Ben Stone's office, Fahey tells the EADA that he has no case without the ring. Stone reminds her that Lemonhead confessed. Fahey claims her client was non compos mentis and didn't understand his rights. She suggests Attempted Robbery 2. Stone offers Robbery 2 -- on condition that Tatum testifies against Polesky. Fahey accepts.
On Tuesday, August 14, Stone steps into the men's room at the Supreme Court Building to find Robinette watching an agitated, nearly hysterical Christian Tatum. Lemonhead has seen Polesky in the courtroom and is convinced James has a knife and is going to kill him. Robinette assures him that Polesky no longer has the knife. All Tatum has to do is tell the court what he saw James do. Crouching in a corner, Tatum continues to rant. Stone tries to calm him, then grabs him and pins him against the wall. He states that the psychiatrist had said that Tatum had moments of rational thought, tells Lemonhead he is going to go into the courtroom now and have one of those moments.
In the Supreme Court, Trial Part 47, Tatum, questioned by Stone, testifies that he accepted a plea bargain in exchange for his testimony, that he took part in the robbery of Nathan Robbins, that he had picked Robbins and Mimi Sternhagen out for James. He points Polesky out. Polesky stares malevolently at him. Tatum says he saw James approach Robbins and stab him. He identifies the ring Stone shows him as the one Robbins had. Stone offers the ring into evidence. Scolar objects, saying the ring is inadmissible. O'Malley sustains the objection. On approach, Stone points out that the ring was suppressed re: Tatum, not for Polesky. O'Malley won't budge. Back at the prosecution table, Stone whispers to Robinette that O'Malley is an idiot. Scolar asks Tatum if the CIA had ever tried to assassinate him. Tatum says yes, most recently last Tuesday. He had briefed Mikhail Gorbachev several times last year and made the CIA look bad. The CIA didn't like that. He gives Scolar a snappy salute when the attorney thanks him.
Elsie Hatch takes the stand. Stone objects when Scolar asks her age. The judge overrules the objection. Scolar asks Elsie about her eyesight. She admits to needing glasses to read. She points out Polesky as the man she saw in front of Ezra's Coffee Shop. Scolar then asks her to describe the mural on the wall behind him. She tells him its Staten Island at The Narrows. Scolar wonders that she's familiar with the Staten Island of the 19th century. She crisply informs him that she can read the legend on the mural -- and she hopes Scolar's eyesight is better than his manners.
Cerreta testifies about the hunting knife and the lab report on it -- how the blood and hair matched, the size of the wound was consistent, and that the defendant's fingerprints were on the knife.
On Friday, August 17, Judge O'Malley sentences James Joseph Polesky to a maximum term of twenty five years to life.
Six weeks later, Robinette is in Stone's office when someone walks in and hands him a notice of appeal on Polesky. Neither Robinette nor Stone can believe what they read in the appeal notice.
At the 27th Precinct, Stone consults with Cerreta, Logan and Cragen in the latter's office. Cragen wonders aloud why Stone is bothering to visit personally, since everyone appeals. Stone explains that the appeal is based on the Fourth Amendment. They had no warrant when they searched Polesky's place of abode. Logan angrily points out that the place of abode was the bushes.
In the DA's office, Schiff peruses the notice of appeal, and chuckles when he reads the part about a "nontraditional place of residence." They have to give Scolar some credit. Robinette says it wasn't Scolar, and Stone adds that the appeal is the work of Norman Ackerman of the ACLU. Schiff comments that Ackerman's brief in the Skokie case was 120 pages long, and that his Wall Street buddies do his research pro bono because it makes them feel good. Stone argues the court can't extend Fourth Amendment protection to a bush. Schiff says the Supreme Court has taken a right turn and local magistrates are not sympathetic where the indigent are concerned. But the Manhattan appellant judges "may be the last liberal activists sitting on a bench anywhere."
The streets of New York, daytime....Stone and Robinette are walking. While conceding that Ackerman wrote a hell of a brief, Robinette says they have case history on their side going all the way back to Blackstone. Ackerman is relying on a 1967 Supreme Court decision, Katz v. U.S., in which the majority ruled that police couldn't tap a public phone without a warrant. Robinette worries that Schiff might be right about the appellate court. Stone is adamant -- Polesky killed a man for no other reason than greed. "This is the wrong case to make a point, isn't it?" he asks.
On Thursday, October 11, on the steps of the Appellate Division, Stone and Robinette are swarmed by reporters. One asks Stone if, given the extent of homelessness, the court won't leap at the chance to write new law. Stone says homelessness is a great tragedy, but the cure isn't to allow a convicted felon to walk the streets. Another reporter says Stone has a tough job defending a "patently unconstitutional search." Stone insists his job is to preserve a "valid murder conviction." At the top of the steps, he and Robinette watch the arrival of Norman Ackerman. Robinette remarks that Ackerman is called the modern Clarence Darrow. Stone hastens to add that even Darrow must have had his off days.
In the hallway of the Appellate Division, Ackerman intercepts Stone. He notes that the EADA has stopped attending the ACLU's annual fundraiser. Stone says he didn't agree with the ACLU's defense of the Nazis at Skokie. Ackerman says their only client is the Constitution. Stone reminds him that there are "practical consequences to every one of your crusades. People get hurt." Ackerman suggests that Stone just doesn't want the Great Unwashed on his doorstep. Stone says he doesn't want James Polesky hanging around his lobby at night.
Ackerman tells the appellate judges that in Katz Justice Stewart wrote that whatever a person seeks to preserve as private may be protected even if it's in an area open to the public. Judge Rosenblum saus the same court refused to extend protection to an open field in Oliver. At the time of Oliver, replies Ackerman, there weren't a million homeless people. Judge Marton wants to know if Ackerman is asking them to extend the same protection to a man sleeping in Central Park as they do to a man in his home. Ackerman says that Central Park is Polesky's home. Judge Green says its public ground paid for with local taxes. Taxes, argues Ackerman, that were supposed to build shelters and hospitals for the homeless. Now, public parks and alleyways had become domiciles for the homeless. The court ought not to allow intrusion into Polesky's private corner of the world.
On his turn at the podium Stone says the responsibility of the State for the homeless is not the issue. Weighed against the interests of the public in putting a killer behind bars, the Constitution should not shelter Polesky. Judge Green poses a hypothetical -- what if it was Polesky's personal diary found under the mattress? Should the police invade what is clearly private? Do only homeowners deserve an expectation of privacy. Stone replies that Justice Harlan wrote in Katz that the expectation of society should be one society recognized as reasonable. One attribute of private property is the right to exclude others, which Polesky could not do since his home was public property. Another judge wonders if it would have been that difficult for the police to get a search warrant.
In Adam Schiff's office, Schiff, Stone and Robinette watch a television newscast featuring Norman Ackerman on the steps of the Appellate Division, surrounded by reporters, one of whom asks if his victory will affect the problem of the homeless. Ackerman says it isn't his victory, but rather a victory for the Constitution. Turning off the TV, Schiff tells Stone the opinion was good. The court was predisposed against him. Stone says he thought the Constitution was supposed to protect society. Schiff replies that it's also supposed to protect the rights of individuals. Stone is unenthusiastic about the prospect of an appeal. Schiff wonders about a retrial. Stone says a new trial is pointless without the murder weapon. Robinette reminds them they still have the ring that Judge O'Malley excluded. Schiff speculates on the chances of getting O'Malley to change his mind. At a new trial Lemonhead could testify that he got the ring from Polesky. Circumstantial, but Robinette thinks it's enough. Stone says they'll have to find Tatum.
Robinette does -- at the Bellevue State Hospital on Wednesday, October 17. Tatum is wearing a straitjacket and sitting in a chair in a corner of the common room, mumbling gibberish. The orderly says yesterday Tatum was talking about habeas corpus, and asks Robinette what that means. Robinette says it means they can't hold him against his will.
Catching up with Stone on the steps of the Criminal Court Building, Robinette says there's no way they can put Tatum on the stand. Stone says Tatum was competent the first time. Robinette assures him its hopeless. Stone won't give up; he says Olivet might be able to bring Tatum around.
Dr. Olivet arrives in Stone's office to say that Tatum is on antipsychotics, which leaves him "listing to one side, and in danger of choking to death on his own tongue." Stone is sorry about that, but Tatum's testimony is essential. Can he take the stand? Olivet doubts Tatum could survive another visit to the courtroom.
Stone and Scolar pay a visit to Judge Bernard O'Malley in his chambers on Monday, October 29. O'Malley admits that Stone is right -- he was in error in excluding the ring at the Polesky trial. Scolar claims Sixth Amendment guarantees give his client the right to confront all witnesses against him. Stone points out that testimony given by a witness at a prior trial is admissible if the witness is unable to attend. He admits that Tatum is institutionalized. Scolar characterizes Tatum's testimony as "practically hallucinatory." Stone insists Tatum was competent. Besides, Scolar made no objection at the time. O'Malley agrees that Tatum's prior testimony will be read into evidence. If Scolar disagrees he can take his case to the "five wise men uptown," meaning the appellate court.
Outside the Criminal Courts Building, Scolar suggests Manslaughter 2 to Stone, who counters with Murder 2. Polesky would do twenty five years to life. Scolar threatens to appeal but Stone won't budge. Scolar tries Manslaughter 1 and Stone agrees, as long as Polesky serves the maximum. Scolar says his client won't be happy, but at least he'll have a roof over his head. So does Lemonhead, says Stone, and Nathan Robbins has six feet of dirt over his head. "So what's happy got to do with it?" They shake hands, and Stone walks away.
[Summary by Jason Manning, August 2002]