“You want me to tell you what I did?” Malone asks.
“Oh my God, no,” Berger says. “I have no interest at all in what you did. It’s totally irrelevant. All that matters is what they can prove that you did, or think they can, anyway. What are the charges?”
Malone lays out what O’Dell told him—a slew of corruption charges, multiple counts of perjury and now grand theft and narcotics trafficking.
“This is in regard to the Diego Pena matter?”
“Is that a conflict for you?”
“Not at all,” Berger says. “Mr. Pena is no longer my client. In fact, he’s dead, as you know.”
“You think I killed him.”
“You did kill him,” Berger says. “The issue is whether you murdered him, and it doesn’t matter what I think. It doesn’t matter if you did murder him, and I’m not asking if you did, by the way, so please shut your mouth. So far, they’re not charging you with homicide. In fact, they haven’t charged you with anything, they’ve simply arrested you. So shall we invite these fellows in and see what they do have?”
O’Dell comes in with Weintraub and they sit down.
“I thought you were a decent man,” Weintraub says to Malone. “A good cop who got caught up in something and didn’t know how to get out. Now I know you’re just another drug dealer.”
“If you’ve now gotten your personal disappointments and the excoriation of my client off your chest,” Berger says, “may we proceed to substantive matters?”
“Sure,” O’Dell says. “Your client sold fifty kilos of heroin to Carlos Castillo.”
“And you know this how?”
“A confidential witness,” Weintraub says. “Louis Savino.”
“Lou Savino?” Berger says. “The convicted felon, known Mafioso, that Lou Savino?”
“We believe him,” O’Dell says.
“Who cares what you believe?” Berger asks. “It only matters what a jury will believe, and when I get Savino on the stand and cross-examine him about his past and the deal that you will have doubtless offered him to testify, I would say that it’s at least an even bet that the jury will not believe the word of a mobster against that of a hero police detective.
“If all you have is some fantastic tale spun to you by a drug dealer looking to avoid life in prison and whose multiple mug shots I will make wallpaper of in the courtroom, I suggest you release my client immediately, and with an apology.”
Weintraub leans over, presses a button on a tape player and Malone hears Savino say, “You let me worry about me. What do you want for it?”
“A hundred grand a kilo,” Malone says.
Weintraub pauses the tape and looks at Berger. “I believe that’s your client.”
He hits the tape again.
“What the fuck world you live in?” Savino asks. “I can get smack for sixty-five, seventy.”
“Not Dark Horse,” Malone says. “Not sixty percent pure. The market price is a hundred.”
“That’s if you can go straight to the retailer. Which you can’t. Which is why you called me. I can go seventy-five.”
“Let’s fast-forward, shall we?” Weintraub says.
Malone hears himself say, “We got Shark Tank going on here. Okay, Mister Wonderful, we’ll do ninety a kilo.”
“You just want me to bend over a headstone here, you can fuck me in the ass? Maybe I could go eighty.”
“Eighty-seven.”
“The fuck, are we Jews?” Savino says. “Can we do this like gentlemen, say eighty-five? Eighty-five thousand a kilo times fifty. Four million, two hundred fifty thousand dollars. That’s a lot of chocolate-glazed.”
The motherfucker was wired, laying pipe the whole time, maybe even since Christmas Eve when he was bitching about his bosses, how thin his envelope was. He was digging an escape tunnel in case he needed it.
Then he hears himself say, “Another thing, you don’t put this out in Manhattan North. Take it upstate, New England, just not here.”
Weintraub stops the tape. “Was that your attempt at civic virtue, Malone? Are we expected to be grateful?”
He hits the tape.
“You’re a piece of work. You don’t care there are addicts, just as long as they’re not your addicts.”
“Yes or no?”
“Deal.”
“It’s inadmissible,” Berger says, sounding bored.
“That’s debatable,” Weintraub says. He looks at Malone. “Do you want to bet your life on a Mapp hearing?”
“Don’t answer that,” Berger says. He smiles at Weintraub and O’Dell. “What I heard, and what I believe a jury will hear, is a police detective setting up an undercover drug sale to a mobster.”
“Really?” O’Dell asks. “If that were the case, Malone would have been wearing a wire. Where is the copy of that tape? Where is the warrant? Where is the approval from his supervisors? Will you be able to produce any of that?”
“It’s well established that Sergeant Malone is something of a maverick,” Berger says. “A jury will conclude that this was just another example of his going off on his own.”
Weintraub smirks and Malone knows why.
If Savino taped the meeting at St. John’s, he also taped the actual sale. Sure enough, Weintraub inserts another micro-disc into the machine and sits back. On the tape, Carlos Castillo says, “What, do you think we didn’t know how many kilos were in that room? How much money?”
“What do you want?”
“Diego Pena was my cousin.”
“Murder a New York Police Department detective in New York City? The world will come down on your head.”
“We’re the cartel.”
“No, we’re the cartel. I got thirty-eight thousand in my gang. How many you got?”
“How is a jury going to like a police officer bragging that the NYPD is the world’s largest cartel?” O’Dell asks.
“You can buy it,” Malone says on the tape.
“It’s generous of you, offering to sell us back our own product.”
“You’re getting a deal that this guinea motherfucker cut for you. Otherwise it would be bust-out retail.”
“You stole it.”
“I took it. There’s a difference.”
“I think we’ve heard enough,” Berger says.
“Please,” Weintraub says, “let’s don’t do the ‘This was an undercover operation’ thing. Where is the subsequent arrest of Castillo? Where is the impounded heroin? I’m sure it’s vouchered into an evidence locker. But I don’t think we have heard enough.”
“We going to do this or not?”
“It’s all there. Four million, two hundred and fifty thousand dollars.”
“You want to count it?”
“I’m good.”
Malone listens to the rest of his conversation with Castillo, then hears Savino say, “Always a pleasure doing business with you, Denny.”
The room goes silent.
Malone knows that he’s 100 percent fucked.
Berger asks, “Where is the U.S. attorney for the Southern District on this? It’s her signature on Detective Malone’s witness agreement.”
“Ms. Paz has been removed from the case,” Weintraub says.
“By whom?”
“Her boss,” Weintraub says. “That would be the attorney general of the United States.”
“May I ask why?”
“You may, but we have no obligation to answer,” Weintraub says.
“I’m aware of that.”
“Let’s say she had a conflict of interest,” Weintraub says, “and leave it at that. Ms. Paz is facing her own indictment, as might a number of people in and around City Hall.”
“I’d like a moment with my client.”
O’Dell says, “This isn’t your office, Counselor. We’re not going to be sent in and out like associates.”
“I believe that my conversation with my client would move our discussion forward,” Berger says. “I ask for your indulgence.”
When O’Dell a
nd Weintraub step out, Berger says, “What do you know about Paz?”
Malone tells him about his conversations with Chandler, Anderson and Paz.
“Paz tried to sell your deal,” Berger says, “and they didn’t buy. She miscalculated.”
What Paz didn’t figure on, Berger explains, is that the administration in Washington wants the mayor’s political ambitions smothered in the crib and would relish a corruption scandal in New York. So when Paz pitched the deal to cover that up, Weintraub and O’Dell went Acela on her. She underestimated them.
“You played a strong card,” Berger says. “I must say I’m impressed. But it wasn’t strong enough.”
“Can you keep Savino’s tapes out on a Mapp hearing?” Malone asks.
“No,” Berger says.
“So I’m fucked.”
“Yes,” Berger says, “but there are relative degrees of fucked. They want your cooperation in bringing down the mayor’s administration, but it isn’t as valuable as it was now that they have Savino. Shall we find out what your potential testimony is worth on the market?”
He goes out and gets the two feds.
They sit down.
Berger begins, “My client is already a cooperating witness.”
“He was,” O’Dell says. “He subsequently confessed to crimes he didn’t disclose in the original agreement, so his violation of the full disclosure clause nullifies the agreement.”
“So what?” Berger asks. “He is now willing to testify to those previously undisclosed crimes. That’s what you really want, isn’t it? We’re entertaining offers, gentlemen.”
“Fuck you,” Weintraub says. “We have Savino for that.”
“We could make a deal on the other things,” O’Dell says. “The bribery, the case fixing. We can’t make a deal on a dirty cop putting fifty kilos of heroin out on the street.”
“You knew I was doing drug rips,” Malone says.
“Shut up, Dennis,” Berger says.
“No, fuck these sanctimonious assholes,” Malone says. “Fuck all of you. You want to talk about my crimes, what I’ve done? Let’s talk about what you’ve done. You’re as dirty as I am.”
O’Dell explodes. Stands up and slams the table. “This shit has to end! I will not allow—do you hear me, I will not allow police officers to become gangs of bandits robbing drug dealers and then slinging dope on the streets! I’m ending it! And if that means I have to fall on my own sword, then that’s what it means.”
“Concur,” Weintraub says. “Sit down, O’Dell, before you have a coronary.”
O’Dell sits down. His face is red and his hands are shaking. “We have one deal to offer you.”
“We’re listening,” Berger says.
“The days of you dictating who you give up, who you won’t, who you hurt, who you protect are over,” O’Dell says. “We want it all now. Everything on every cop. McGivern, the Task Force and, yes, Malone, I want your partners—Russo and Montague.”
“They don’t have—”
“Don’t give me that shit,” O’Dell says. “Your partners were there on the Pena bust. They won medals for it. They were in on it, and don’t tell me that they didn’t know you took those fifty keys and don’t try to tell me they didn’t take money from the sale.”
“That’s right,” Weintraub says. “Keep your mouth shut. Get thirty to life.”
“That’s up to a judge and a jury,” Berger says. “We will take this to trial and we will win.”
No, Malone thinks.
O’Dell’s right. It’s over. This has to end.
I go to prison.
Russo takes care of my family.
It ain’t a great deal, but it ain’t such a bad one either.
Anyway, it’s the deal I have.
He says, “I’m done. No more talking, no more negotiating, no more deals. Do what you’re going to do.”
“Did you call me so you could be your own attorney?” Berger asks. “I wouldn’t recommend it.”
Malone leans across the table at O’Dell. “I told you, day one, I would never hurt my partners. I can do time.”
“You probably can,” Weintraub says. “But can Sheila?”
“What?”
“Can your wife do the time?” Weintraub asks. “She could get ten to twelve years.”
“For what?!” Malone says.
“Can Sheila justify her income?” Weintraub asks. “When we turn the IRS auditors on her, can she justify her spending? Credit card payments she couldn’t make unless she had a hidden source of income? We go in your house, are we going to find envelopes of cash?”
Malone looks at Berger. “Can they do this?”
“I’m afraid they can, yes.”
“Think about your kids,” O’Dell says. “They’re going to have both parents in jail. And no home, Denny, because you have as much as a rain gutter you can’t justify from your salary we’ll take the house from you in civil forfeiture. The house, the cars, your savings account and Denny, look me in the eye, I’ll take your kids’ toys.”
Weintraub says, “You have the dope money stashed away somewhere for your family, forget about it. What we don’t take, your lawyer here will. You’ll spend every penny on defense costs and fines. When you come out, if you come out, you’ll be an old man without a penny to his name and adult children who don’t know who he is except he’s the guy that got their mother sent to the joint.”
“I’ll kill you.”
“From Lompoc?” Weintraub asks. “Victorville? Florence? Because that’s where you’ll be, in a federal max on the other side of the country. You’ll never see your kids, and your wife will be in Danbury with the diesels and the bull dykes.”
“Who’s going to raise your kids?” O’Dell asks. “I know the Russos are their guardians, but how’s Uncle Phil going to feel about bringing up a rat’s kids? Especially when you have no money to contribute. Is he going to put nice clothes on their backs, send them to college? Spend money taking them to visit their mom in prison?”
Weintraub says, “Russo’s a cheap prick. Won’t even buy a new overcoat.”
“How can I do that to their families?” Malone asks.
“Are you telling us you love their kids more than your own?” O’Dell asks. “You love their wives more than yours?”
“Dennis, let’s take this to trial,” Berger says.
“That could work out,” Weintraub says. “Maybe Sheila’s trial will be in the same department, you can take lunch breaks together.”
“You motherfucker.”
“We’re going to step out for ten minutes,” O’Dell says. “Let you think about it, confer with your attorney. Ten minutes, Denny, and then that’s it. You choose what happens after that.”
They walk out, and Malone and Berger sit in silence. Then Malone gets up and walks over to the window, looks out at Midtown. It’s New York busy—people scrambling, hustling a buck, trying to make it.
“This is hell,” Malone says.
Berger says, “You’ve always hated defense attorneys. Thought we were the scum of the earth, helping guilty people to escape justice. Now you know, Denny, why we exist. When the small guy gets caught in the system—if he has a vowel at the end of his name, or God help him he’s black or Hispanic, or even a cop—the machine just grinds him down. It’s not a fair fight. Lady Justice has a blindfold over her eyes because she just can’t bear to watch what happens.”
“Do you believe in karma?” Malone asks.
“No.”
“Neither do I,” Malone says, “but now I have to wonder . . . the lies I told, the phony warrants . . . the beatings . . . the wiseguys, the Jamaals, the spics I put behind bars. Now I’m one of them. I’m their nigger now.”
“You don’t have to be,” Berger says. “You have me.”
Yeah, Malone knows all too well how good Berger is in court. He knows what else the lawyer has in mind, but if this gets past a grand jury—and it will—no prosecutor or judge is going to take a chance sellin
g it.
“I can’t risk my family,” Malone says.
He didn’t need the ten minutes. Malone knew as soon as they started talking that he wasn’t going to let Sheila go to prison.
A man takes care of his family, end of story. “I’ll take the deal.”
“You’ll have to do time,” Berger says.
“I know.”
“So will your partners.”
“I know that, too.”
Hell isn’t having no choice.
It’s having to make a choice between horrific things.
Berger says, “I can’t represent Russo or Montague. That would be a conflict of interest.”
“Let’s get this done.”
Berger goes out and gets O’Dell and Weintraub. When they sit down he says, “Detective Malone will make a full proffer of his crimes and plead guilty to heroin trafficking. He will cooperate fully and serve as a cooperating witness against other serving police that he knows to be implicated in crimes.”
O’Dell says, “That’s not good enough. He has to wear a wire and get incriminating evidence against them.”
“He’ll wear a wire,” Berger says. “In exchange, he wants a memorandum of cooperation from the sentencing judge recommending a sentence of no more than twelve years, to be served concurrently on any multiple charges, fines amounting to no more than one hundred thousand dollars and forfeiture of any funds gained through the illegal activities.”
“Accept in principle,” Weintraub says. “We can work out the details later. Final adjudication of the charges will be suspended pending the satisfactory completion of the defendant’s cooperation.”
“On the understanding that Malone’s new 302 contains no lies or omissions,” O’Dell says, “and that he commits no additional crimes.”
Berger says, “Our other condition—”
“You’re in no position to make demands,” O’Dell says.
“If we weren’t,” Berger says, “we wouldn’t be here. We’d be in a holding cell at the Metropolitan Correctional Center. May I go on? Detective Malone’s cooperation as to Detectives Russo and Montague is contingent on a guarantee that no jurisdiction files charges against any of the spouses. That is nonnegotiable, must be placed in a separate memorandum countersigned by both of you and the U.S. attorney general.”
“You don’t trust us, Gerry?” Weintraub asks.