“Murder involves malice aforethought,” Morgenstern said.
“The question is whether or not Loring planned to kill your son,” the D.A. explained.
Downs’s face was drawn, lined with fatigue. “How can Mr. Morgenstern prove Loring didn’t plan it?”
“It’s up to the state to prove he did. Mr. Morgenstern has to prove very little.”
“And what is a mitigating circumstance?”
“Anything that diminishes Loring’s responsibility. For example, if he had a mental condition that impaired his judgment.”
“Or took drugs,” Morgenstern said.
“Took drugs?” Downs sounded incredulous.
Ray Kane handed Morgenstern a sheet of paper.
Morgenstern slipped a pair of bifocals over his nose. “We have a very strong precedent. On Palm Sunday, 1984, Christopher Thomas—a cokehead who had been free-basing for two years—massacred ten people in their Brooklyn home. A jury accepted the defense of diminished responsibility by reason of cocaine intoxication. They found Thomas guilty of ten counts of manslaughter. Now we’ll all admit that that case was a good deal more heinous than what we’re dealing with here.”
Cardozo looked at Lockwood Downs, flailing in the dark side of the moment. His wife reached across the table and clenched her husband’s hand.
Nothing came to Cardozo in words, only a knobbed something inside his ribs, a buried quiver of knowing he wasn’t just going to sit there with the parents and see the son’s murder whittled down into justified assault.
“What in hell is Counselor Morgenstern talking about,” Cardozo said, “body count? Murder is murder, and it’s just as illegal whether you kill one or a hundred.”
Morgenstern’s eyes glinted angrily in a pulp of wrinkles.
“Ted,” the D.A. said, “I can see an argument for manslaughter, but you’re going to have a hard time selling me on mitigation.”
“Provocation,” Morgenstern said.
Cardozo cut in. “Could I have a word with you, Al?”
In the other room, Cardozo shut the door. “Their son’s been murdered, for God’s sake, and you and Morgenstern could be pricing rugs in a Persian bazaar.”
“Vince, take it easy.”
“At least give them a meaningful choice. If it’s manslaughter, it’s manslaughter—no mitigation. Loring’s already getting away with murder.”
The D.A. shook his head. “Whether or not I buy Morgenstern’s argument, a jury might. If Morgenstern thinks he can produce mitigation, I want to know about it here, not in the courtroom.”
“You know damned well he’s going to say the victim was guilty and the killer was innocent and if anyone should be on trial it’s Jodie Downs, cocksucking dopester and disgrace to the human race.”
“If all he has is a bluff like that we’ll tell him it’s no deal.”
“Al, I’m not going to let you subject that man and woman to Morgenstern’s tactics.”
“It’s not up to you, Vince. I warned them what they were in for. They wanted to hear Morgenstern out. Any decision on a plea bargain is up to them.”
Back in the conference room, Morgenstern was calmly trimming and lighting a cigar. He waited till Cardozo and the D.A. took their seats. After four unhurried puffs he spoke.
“Jodie Downs had a police record. Three years ago he was picked up by a Transit Authority officer for sodomy in a subway men’s room.”
The shell came in on target. Meridee Downs’s face froze. Lockwood Downs looked at Cardozo quickly, terrified, then dropped his head.
Cardozo hadn’t known, and he realized Jodie Downs’s parents hadn’t known either. “Wait a minute,” he said. “Was Downs arraigned?”
Morgenstern nodded, smug. “He was arraigned in night court and paid a fine.”
“Let me see what’s on that sheet.”
Morgenstern’s assistant passed the tattered Xerox copy across the teakwood tabletop.
Cardozo’s eyes scanned the lines of erratically spaced type. “Jodie Downs pleaded guilty to loitering in a public place, not sodomy.”
Morgenstern’s eyes crinkled into a half smile. “The arresting officer’s report is more explicit.”
Cardozo turned to Lucinda MacGill. “Can Morgenstern use that report?”
MacGill glanced toward the D.A. He nodded, giving permission, and she answered. “Counselor Morgenstern will claim the report shows a pattern of reckless self-endangerment. The judge will admit it as mitigating evidence. At that point the arresting officer can be called to testify.”
“There’s something I don’t understand.” Meridee Downs was gripping the table edge as though the room were somersaulting around her. “Jodie did some wrong things in his life. No one’s denying that. But what does any of this have to do with his murder?”
“Counselor Morgenstern is sending you a message.” Lucinda MacGill’s voice was tight with controlled anger. “Unless you and Mr. Downs accept the plea bargain, he’s going to defame hell out of your son.”
“Harsh words, Counselor,” Morgenstern said.
“Scuzzy tactic, Counselor,” she replied.
“Let’s bear in mind,” the D.A. said, “that it’s Counselor Morgenstern’s job to defend his client, and this is a pretty standard defense.”
“He’s not defending the killer,” Lockwood Downs said. “He’s prosecuting our son.”
“In Mr. Morgenstern’s business,” Cardozo said, “it comes down to the same thing.”
Morgenstern continued, speaking quietly and steadily. “I have here a police report from the nineteenth precinct. This will be a very important part of Claude Loring’s defense. Three years ago, on the night of June twenty-third, Jodie Downs picked up a stranger in a gay s.m. bar called the Strap on Tenth Avenue.”
Meridee Downs covered her mouth.
“Jodie Downs took the stranger to his apartment on West Fifty-second Street, where according to his own admission they smoked ‘five or six joints’ and did ‘a couple of lines’ of coke. During sex—again Jodie Downs’s own admission—the stranger attacked him with a razor, maiming him and cutting off one of his testicles.”’
Lockwood Downs listened with eyes downcast. His fingers rested on the table, tips just touching.
“Jodie Downs was admitted to Saint Clare’s Hospital through the emergency room. Examining psychiatrists found Downs to be quote ‘a guilt-ridden sexually obsessed young man bent on self-destruction.’” Morgenstern turned a page with a little snap. “There are photographs that go with this report, and I assure you they are the equal of any photographs the prosecution might be hoping to introduce into evidence.”
Silence hit the table.
Cardozo absorbed the fact that Morgenstern had gotten hold of the report, just as he’d accepted that pages from the sealed record of one of Morgenstern’s trials had turned up blank. Cardozo felt the old familiar outrage, but no surprise. He had long ago realized that Morgenstern’s network was a cancer metastasizing into every institution in the city.
Smoke puffs fueled the stillness.
Cardozo realized he would never forgive Morgenstern for that cigar. For everything else, the deals, the sleaze, the distortions, maybe. For that cigar, waved in the face of these parents, no way.
“The report by the hospital psychiatrist is privileged,” Cardozo said quietly. “Am I right, Al?”
“We’d have to ask the Supreme Court,” the D.A. said glumly.
“Dead men,” Morgenstern said, “do not enjoy doctor-patient confidentiality. In any case, we don’t need the report. The doctor who wrote it, Dr. Larry Fenster of Saint Clare’s, is willing and ready to take the stand in Claude Loring’s defense.”
The D.A. narrowed his eyes in solemn speculation. “So what kind of deal do you have in mind, Ted?”
“Negligent homicide,” Morgenstern said.
“Negligent?” Lockwood Downs stared at Morgenstern disbelievingly. “You’re going to claim Claude Loring killed my son by accident?”
“No,” Morgenstern said. “The state is going to claim it.”
Cardozo and the Downses came down the broad marble steps into Foley Square. A sharkskin-sleek gray stretch limousine was waiting by the curb and a uniformed chauffeur stepped out to hold the door.