From the author: " This story surrounds an investigation of a crime that begins as a "no big deal, who gives a shit" crime, but it ends up raising several major legal-ethical-moral problems. The second part of this story will appear in this summer's apocrypha.
"Friedman was being a smartass," Jack McCoy told Assistant DA Jamie Ross when she asked him how his morning hearings had gone. The two lawyers were walking down the DA's office's main hallway, away from the administration wing towards their own wing at the opposite end of the building.
"Isn't he always?" she said. She was tall -- almost as tall as he -- with short hair, large dark eyes, and only slightly milder a temperament than Jack. Which meant she'd give warning before she bit your nose off.
"He was reading through the case reports and making snippy editorial comments about them." Jack continued, grinning wryly. "Like this one defendant, not one of mine -- he's Delgado's -- apparently speaks some weird Chinese dialect. Bell was insisting that the guy didn't understand English and needed an interpreter and the judge was like, "sure...he's probably like those Spanish guys who understand English until they get into a courtroom. He understood it when the cops read him his rights.'"
"Bell would say he didn't," Jamie observed.
"And the cops said he did. Go figure."
"Who'd the judge believe?"
"Friedman? Are you kidding? The cops."
Jamie thought about that for a moment as they walked down the hallway. "Like cops never lie. You think the defendant understood?"
"I dunno. He didn't say much. Pete says he did, and that guy's so damned honest and ethical that I would have to say that the cops told the truth, otherwise Pete would have pistol-whipped them, and they know it."
A legal secretary grabbed Jack's shoulder, surprising him. When he stopped and turned around, she handed him an affidavit, saying, "Jack, Probation sent this down."
"What is it for?"
"Revocation of bond for Samuel Warran... He screwed up again."
"Good, I want that fucker remanded. But why don't they just file the usual complaint and warrant? What's with this affidavit?"
"That's what I'm asking you."
"Like I know what's going through the heads of those idiots at Probation... Go bitch to them about filing the correct paperwork."
"I meant to ask you something..." Jamie mumbled after the legal secretary had hurried off down the hall to tell Probation exactly what Jack thought of them. She grimaced as she tried to remember what was so important that she had to ask him. After a moment of silence, she said, "Who's Sharon Cohen? Some witness you haven't told me about?"
Jack squinted at her, perplexed. "Who? Why would I--"
"On your desk, there's a note..."
"Oh, that." He nodded, suddenly remembering a phone call he'd received before he had gone to court. "Yeah... She called this morning. She said she's some nurse and has a legal-ethical question she wants to ask me. I said I'd call her back when I got the chance."
"And our copy machine's not working," Jamie added gravely.
"So what else is new? Use the one up in Fraud." Technology in the DA's office upped and died habitually.
The two prosecutors parted ways, Jamie to her office and Jack to his. While he'd been at court, some new paperwork had accumulated on his desk -- legal paperwork multiplied like fruit flies. There were various motions, close-out sheets, notes from police and DA's office investigators and fellow prosecutors asking him to look into certain things or call certain people, and other assorted bits and pieces of legal paraphernalia -- mostly random papers that needed to be inserted into case files, new case files, queries asking him to find old case files, and a huge stack of paper on his chair that was marked "Discovery -- People v. Ortez." He thought absently, "Oh good, Briscoe's finally getting more of that in." He moved the papers aside, stacking the case files, memos, motions, probation reports, several FTA complaints, a few close-out sheets, and a psychological evaluation in one corner and the discovery in another, where the legal secretaries could find it in order to copy and sort it.
Once his desk was less chaotic, he found the sticky note he'd written to himself earlier that morning, a reminder to call a nurse named Sharon Cohen. That he picked up and absently folded and unfolded several times, trying to clear his sleep-fogged head and doing a miserable job of it. It didn't help that his temples ached as if someone had beat his forehead with a baseball bat. Sighing, he took off his sport jacket, threw it unceremoniously over the back of his chair and pushed his sleeves halfway up his forearms. It was only Tuesday and already, he was thinking of ways to kill himself. Never, in his entire history at the DA's office, had there been a moment when he wasn't saddled with an onerous caseload, but this week was unusually onerous. Must be the time of year, or the alignment of the planets, or karma, or something. Jack felt like he'd dashed up all the stairs in the Empire State Building at a dead run. More than once. He didn't want to deal with the mound of paperwork, so he decided to call the nurse to see what that was about.
"Is Sharon Cohen in?" he asked the female voice that answered the phone.
"May I ask who's speaking?" the voice politely inquired.
"Jack McCoy with the District Attorney's office."
There was pause, then a different female voice picked up the line. "This is Sharon."
"This is Jack McCoy at the DA's office. You had some kind of question you wanted to ask?"
"Yeah... Let me explain the situation to you first, if you have time--" The voice was edgy, wary of disclosing too much to him, warier of what he might do.
Sharon Cohen was an OB-GYN at the hospital. Two days ago, she had seen a young girl, very young, thirteen years old. The girl was in for a follow-up appointment. She'd had an abortion six weeks before. She explained to Sharon that she had been having sex since she was twelve. Cautiously, Sharon had asked her about whom she was seeing now, certain that she would not like the answer. She'd been right. She hadn't liked the answer. The girl's boyfriend was eighteen years old.
"Do you know the law?" Jack asked.
"Well, not the exact wording on it, but I think thirteen and eighteen violates it," Cohen replied.
"If she's under fourteen and he's eighteen or over, it's illegal. It--" Jack stopped himself before he could add that the boy could be charged with rape in the second degree and/or sexual abuse in the second degree.
"Guess that's why I'm talking to you," Cohen said, sounding unhappy and resigned, and continued with her narrative.
She had asked the girl if she felt like she was being manipulated, if she felt like she was being forced, and if she felt like she could say "no" to sex at any time. The girl said that she was not manipulated, forced, and she could freely say no to sex whenever she wanted. Nonetheless, the law obligated Sharon, as a nurse, to report any such illegal actions. She had scruples about doing so, since the practitioner-patient relationship is as sacrosanct as the attorney-client relationship, and she felt horribly guilty about violating her young patient's trust. Nevertheless, the law usually superceded confidentiality.
"I've reported things before," she explained. "You know, like the no-brainer stuff -- fifteen year old kid with a forty-two year old man type of thing. But this... I dunno. I don't believe that there's any coercion in this relationship. But I guess it's still statutory rape under the law. I don't think these kids should be in jail. What do you guys normally do with these, is what I'm asking. How do you deal with these kids?"
Jack twirled a pen in his fingers and rubbed his forehead the back of his hand, toying with the problem in his mind. It wasn't a problem he wanted, either. He needed another case on his docket this week like he needed a bullet in his head. Suppressing his annoyance and unclenching his jaw -- no wonder he had a headache -- he explained to the nurse in a level tone that he normally prosecuted homicides, but now and then, he prosecuted a sex offense. The laws were explicit up to a point, but they were also flexible. Under certain conditions, something might be a class C felony whereas under other conditions, it might be a D felony. A DA had prosecutorial discretion -- he could charge down to a lesser included offense or dismiss charges altogether. He could give sentencing recommendations based on the seriousness of the crime. For something minor, say a class D or E felony, he could recommend intermittent imprisonment, a deferred sentence, probation with stipulations that the defendant take certain types of classes or counseling, or give a deferred prosecution. If the victim and her parents didn't want to pursue charges, the DA would probably drop them. No prosecutor likes a sex assault case where he hasn't a single cooperative witness. Without good witnesses, those cases just disintegrate within the system. He also added that you could not conduct a rape exam without the victim's consent. If the parents want the exam but the girl doesn't, too bad for the parents. You need the girl's consent.
Jack advised her to report the incident to the police and explain to the detectives what she had just explained to him. They would investigate, but given the circumstances, they would be very tactful about it.
"Do you know where the crime took place?" he inquired.
"Um... She lives around 107 and Amsterdam..."
"All right. That's in the Twenty-seventh precinct's jurisdiction. Report the assault to Detective Lennie Briscoe. He actually heads the homicide division, but he'll occasionally investigate a sex assault. Okay?"
"I don't think it's an assault --"
"Fine, just tell Detective Briscoe what you told me. You're doing the right thing." Jack didn't think he sounded very convincing, but the nurse conceded to the law anyway and told him she would call the cops. Her job was on the line if she didn't.
As soon as he hung up, Jack mentally kicked himself, wondering why the hell he told Sharon Cohen to report the damn crime to Detective Briscoe. Now it would be his problem, since most of Briscoe's cases went to him. Briscoe probably didn't want the damn case either.
Detective Lennie Briscoe and his partner, Detective Reynaldo Curtis, had spent most of the week in Syracuse for a homicide investigation. They didn't get back to New York City until Thursday. Lennie had spent the entire week running around East Bumblefuck like a chicken on acid, trying to track down a key witness to a murder. He was exhausted and felt sick, and the witness had incidentally turned up in Manhattan anyway. Rey, sick with something he'd either picked up at the precinct with its lousy circulation or from one of his children, had been less-than-helpful, so Lennie had investigated on his own while his partner vegetated in the hotel room. Now he wasn't feeling so hot.
Sighing, he collapsed into his chair, rubbing his forehead. His sinuses were all stopped-up so he couldn't breathe, his head hurt, his joints ached like he'd been hit by a bus, and all he wanted to do was lie down and not bother with any of this bullshit.
His voice mail beeped at him, demanding that he listen to the seven messages on it. Simply to shut the thing up, he struck the "play" button and listened absently to the litany of messages. Most were about cases he was currently investigating, one was from a cop at the Thirty-First precinct begging for information on a case he'd investigated two years ago, and another was from a nurse named Sharon Cohen who wanted to report a crime. Nothing was a pressing emergency -- he was feeling too lousy to care even if something was -- so he opted to go home, rest while he could, and deal with everything tomorrow.
As he gathered up a few papers to shove into various file folders before he left, his boss, Lt. Anita Van Buren, strolled up to his desk, observed that he looked like hell, and admonished him to go home. She looked as if she'd be happy to slit his throat if he didn't, and no one within sight would so much as protest if she did. A black woman in her place in the criminal justice system had to be hard as steel and tougher, and Van Buren knew it. When she snapped her fingers, anyone who had any common sense jumped, and quickly. If you didn't, the Lieutenant would make you regret it. Like most women in Lennie's experience, she was very, very good at making you regret things.
"Half this precinct is out sick," Van Buren complained. The woman was everyone's mother. "Go. Now. Rest. And don't get worse."
She looked at him askance in return for that smart remark, but let it go. "Bye, Lennie."
The following day, Lennie was still under the weather, coughing -- whatever had been in his head had moved down to his lungs -- and probably running a low-grade fever, not that he'd bothered to take his temperature since he didn't feel so sick he couldn't work. So long as he could stay on his own two feet without passing out, he would work. There was too much of it to do -- twice as much since Rey finally called in sick, in bed with a 101-degree fever, but too damn late insofar as Lennie's health was concerned. That and Lennie didn't have very many PTO days left since he'd used up more than he cared to admit recovering from his daughter's murder eight months ago.
He flipped through his voice mails again and told a detective named Gina Garette to deal with a couple of them while he called the nurse. On the message, she said she wanted to report a sex offense. Why she was reporting it to him was the sixty-four thousand dollar question, he being chief detective of the homicide division, not the sex crimes division. There were no details on the message, only an insinuation that she'd discussed the case with a DA. If she was reporting the damned case to him, the DA could only be Jack McCoy, following some ridiculous agenda of his. Fucking lawyers. Always maneuvering and plotting around. God knows what McCoy was thinking, taking this case. Didn't he have enough work to do with his usual docket of murder cases?
Lennie dialed the number the nurse left, and a teenager answered the phone.
"Is Sharon Cohen in?" he asked.
The teenager said, "I dunno... Guess I can check."
Lennie refrained from sarcastically telling her that he was sure she could as she yelled, "Mom! Phone!"
"Hello?" said a new voice.
"Hi. This is Detective Briscoe with the NYPD. You left a message saying that you needed to report something?"
Sharon Cohen affirmed that and explained to him the situation, emphasizing that she did not believe there was any coercion involved in the relationship, imploring that he and the DA not pursue an aggressive investigation and prosecution.
"We do this on a case by case basis," Lennie told her. "There's a lot of latitude in the law, but if you talked to a DA, I'm sure he told you that."
"Just... Don't be too hard on these kids."
Did he have time for this case? Dammit, he should give it to the sex crimes investigator. "We'll investigate it, see what's up, probably have our shrink give the boy a psychosexual eval, and you know, if no one wants to pursue charges, I think the DA'll just drop it. Have you told the girl you reported her?"
There was a pause before Sharon Cohen said, "No."
"She'll be wondering how the cops know about this. You might want to drop the hint. Look, call her today, let her know, then call me. I want to talk with you in person, then talk with the kids."
"Okay," Cohen said softly. The woman sounded like she was being dragged along kicking and screaming by the provisions in New York criminal law. At least she was reporting the crime. Most sex offenses never even got that far.
"Thanks for reporting this," Lennie told Cohen, making an attempt to sound encouraging. For no good reason that he could possibly fathom, other than that he was feeling too ill to bother transferring Cohen to the sex crimes detectives, Lennie decided to hold on to the case. It would probably be an easy one anyway. He hung up the phone and coughed a couple times -- that hurt, like someone was stabbing a dagger into his chest -- and the phone rang again before he could regret his decision to keep the case. The caller was a beat cop who had just found a murder suspect who had jumped bail two weeks ago very much dead. Supposing he'd better go deal with that, Lennie hauled himself out of his chair and shuffled miserably out to the cold garage to the car.
As promised, Sharon Cohen called Briscoe Monday, after she'd grimly told the thirteen year old girl she'd reported her activities to the police. Lennie had resigned himself to the reality that between himself and McCoy, they had made the case their problem. The sex crimes investigators were more overworked than he was anyway, and this one looked like it would come to a speedy disposition. In any event, Van Buren liked her detectives to broaden their experience by occasionally investigating something they usually wouldn't investigate, though Lennie found that policy ridiculous since he had more years in the Force under his belt than she did. He could run a sex crimes investigation as expertly as he could run a death investigation. Nevertheless, if this were his sex offense of the month -- a fairly easy one -- he could live with it.
Lennie and Sharon Cohen met at the precinct. Cohen was short, with auburn hair, kindly blue eyes, and an empathetic, gentle disposition. The situation made her uncomfortable, though. She sat stiffly in the chair, her expression doubtful. It was obvious to Lennie that she didn't trust him or anyone else in the entire criminal justice system to treat her patient with the delicacy she felt the girl deserved.
After informing Cohen that this conversation was being recorded on tape, Lennie asked, "You talked to the girl?"
Cohen nodded, grimacing. "She was upset. I knew she'd be upset."
Cohen's kindly blue eyes suddenly weren't so kindly anymore. They flashed with irritation at Lennie's acerbity. "Yeah... She was angry. She kept saying that this was all in confidence, that everything she told me was confidential, how dare I go to the police. I tried to tell her that it was against the law -- she knew it. She knew it was illegal for her to be messing around with an eighteen year old boy, but she was still pissed. She didn't understand my legal obligation to report this, that I really don't have a choice. I told her what you and the DA told me, but she's thirteen, for God's sake, Detective. She can't understand all these abstract legal concepts. She asked me if her boyfriend was gonna go to jail. Insisted that they weren't doing anything wrong."
"She's thirteen. Like she's gonna be thrilled," Lennie deadpanned. "How long has she been having sex for?"
"She said since she was twelve. I was seeing her for a followup for an abortion she had six weeks ago."
Lennie let the breath hiss out between his teeth. "At thirteen. Christ... If she'd gone ahead with the pregnancy, I may as well have arrested the kid now too. Saved ourselves the trouble of arresting him or her later."
Cohen frowned at him, unappreciative of his cynicism.
"Where are the parents in this?" he said. Most people didn't enjoy his sarcasm. He didn't care.
"To my knowledge, the relationship has their approval."
Lennie winced. He didn't say anything to the nurse, not yet, but he'd been working in the justice system long enough and spent enough time working with DAs -- namely Jack McCoy -- to know that prosecutors would try to bring charges against the parents for some bullshit crime like endangering the welfare of a child. You don't just let your thirteen year old screw around and get pregnant, and that might be only the tip of the iceberg. Any investigation would involve Social Services. The entire family was about to scrutinized and torn apart. In the interest of not making the nurse feel any guiltier than she already felt, Lennie decided to refrain from imparting to her that information.
"When you talked to her, she didn't say there were any indications that there was violence, coercion--"
"I told you. No coercion. Nothing. It sounded perfectly consensual."
"Other than the fact that she's thirteen years old, it was fine."
"You said she had an abortion. Do you know who the father was?"
Cohen shook her head sadly. "I was assuming that it was the eighteen year old, but I don't know. She didn't say how long they'd been dating."
"All right, just go through with me exactly what happened at the hospital."
"As I said, I was doing the follow-up check for the abortion. I dunno... I think the abortion counselors should have reported this as opposed to leaving it to me, but it's a don't-ask-don't-tell thing... and because she was so young, I just asked her how old her boyfriend was. She said eighteen."
"You didn't tell her at that time it was against the law?"
"No, I wanted to think about it. What did you expect, Detective? 'Oh, you know, you really shouldn't be doing that because it's statutory rape'?"
"Yeah... Just like that."
Lennie sigh, wheezing, and felt cold creeping up his spine. Outside, it was cold, but the heating should be on in here. He absently touched his cheek, and it burned against his hand. Fuck it -- he did not have time to be stricken with Rey's fever. "I need to talk to these kids. What are their addresses and phone numbers?"
Cohen complied, writing them down on the legal pad Lennie offered her. With trepidation, she slid the pad back across the table to Lennie and asked him, "And what... What are the penalties of this crime?" She braced herself, her eyes creased with concern, like she expected him to say drawing and quartering.
"It's rape two," Lennie replied absently, reading the addresses. One was on 107th Street, the other on 23rd, on the opposite end of town. The 107th address was an immigrant neighborhood, mostly Latino, where everyone expected crime and hated cops, and the 23rd address was a nice upscale neighborhood where everyone was in denial about crime and still hated cops. If addresses were anything to go by, this was a bizarre relationship. Lennie would have imagined that the girl's boyfriend was some neighbor kid or classmate or something, not a rich kid from the Upper East Side. He opened his mouth to ask Cohen about those addresses, but she was staring at him in horror, as if he had said the penalty was one hundred lashes with the cat'o'nine tails. He cleared his throat, smiled benignly, and explained, "Rape two's a class D felony. Or maybe the DA'll charge sex abuse two -- a bit nicer since it's only a class A misdemeanor."
Sharon continued to stare at him, those big blue eyes widening. "Rape two! That sounds like he... I don't think..."
Lennie grimaced, supposing that the woman wouldn't know New York penal law if it slapped her. "What you're thinking is something else," he said with as much diplomacy as he had to give. Today, all his strength was being bled out of him so he didn't have very much. "Aggravated sex abuse. Different crime. That's a B felony. This one is a D felony at most. Maybe even an A misdemeanor depending on how the DA wants to charge it. For rape two, it's a two to seven year prison term. For sex abuse two, it can't be any more than one year imprisonment. Didn't the DA tell you what kind of felony it was?"
"No. He only said it was illegal."
Just like McCoy to sidestep telling the whole truth and pass the buck. Of course, if Cohen knew what the kid could be charged with, she might have been reluctant to report the crime to the police. "Now you know."
She thanked him, stood up, and hurried out the door, eager to be out of the precinct.
After Cohen left, Lennie took Gina Garette and drove down to the address of the girl, whose name was Eva Solis. Today wasn't a good day to talk to anybody. Lennie felt lightheaded, dizzy, and when he held his hand out it front of him, he could see it shaking. But he was overworked and overloaded with cases, and he had to move on this case now, otherwise he'd get bogged down with other ones, and this one would go on a back burner somewhere and stay there for a long time, maybe until its statute of limitations ran out or Hell froze over.
The superintendent of the apartment lead the detectives up a long flight of stairs that groaned in protest under their weight to the apartment number that Sharon Cohen had written on the paper, and there they waited for ten minutes in the shabby, dimly lit hallway, occasionally pounding on the door. No one answered. Garette fussed impatiently with her necklace while Lennie rested his back against the wall, mostly so he wouldn't stumble, hoping the dizziness would leave him. Holding himself upright was an effort. Climbing those damned stairs hadn't done him any good.
After another five minutes had passed, Garette shook her head, saying, "I don't think they're home. And you look like you're gonna keel over dead."
"I'm not gonna die. Lets go."
"You gonna make it down the stairs?"
"I can walk down the damned stairs." Readjusting his overcoat, he tried to disguise the motion of wiping sweat off his forehead with his sleeve.
Garette looked dubious at best.
Lennie barely managed to walk down the damn stairs. His head spun. He had to clutch the railing to support himself, otherwise he was sure he'd fall.
The following Wednesday found Lennie and his regular partner, Rey Curtis, back at Eva Solis' apartment, lounging in front of the door in the cold dark hallway -- the heat didn't seem to be working -- and casting anxious glances at their watches. Lennie still didn't feel that he was at a hundred percent, nor did he feel like he was going to faint -- he felt good enough to be impatient at and annoyed by these people's obnoxious tendency to not be where he thought they were supposed to be.
"I am so sick of being sick," Rey complained, blowing his nose.
"If it makes you feel better, I got your cold now."
The younger detective knocked on the door again.
"You sure you got the right address?" he asked.
Lennie cocked a deprecating eyebrow at him. He had the right address, unless these people had decided to split -- a slightly improbable proposition since most people in these neighborhoods lacked the resources to go anywhere.
Rey paced, restless and infuriated, his severe features sharp enough to bore holes through the brick walls. Lennie had explained the situation to him and given him the case file he had begun to piece together, and Rey had gone ballistic, raking Jack McCoy over the coals for making this case, which really should have gone to the sex crimes investigators, their problem. In front of McCoy's face! Lennie had always known Rey had plenty of audacity, but to keelhaul McCoy! Lennie, of course, had no problem doing it himself -- McCoy's temper and vicious tongue had never fazed him -- but most people who knew the prosecutor were wary of getting into fights with him.
The district attorney hadn't flinched -- he'd stood, his spine stiff as as iron pole, his head tilted arrogantly to one side, watching Rey and Lennie with those fierce black eyes. But he'd not let his temper show, although Lennie knew that he must have been smoldering, straining to not erupt.
He did finally snap, "You don't tell me what cases I'll take!"
Before he could go off on a vituperative tirade of his own, Lennie had smoothly interrupted, "I could have asked a sex crimes detective to take it, but I didn't."
Jack had looked at him like he'd look at a guilty defendant, and Lennie imagined that the prosecutor was wishing the case had gone to a sex crimes detective.
McCoy had then stiffened his back even more, disdainful and prideful as ever, and snarled, "Well, I have to be in court."
After McCoy stalked off to court, Rey seemed to forget about his issues with the DA and spent the next half hour vilifying the boy for having the temerity to fuck around with a little girl, while the detectives returned to the precinct and waited for a ballistics report concerning another case. For half an hour, Lennie had cajoled his partner into being somewhat reasonable about the case and had caustically explained to him that not everyone rode the same moral high horse Rey Curtis rode. "So get off of it, pal. Do your job. The lawyers can preach all the hellfire and brimstone they want, but we can't."
The ballistics report showed up, and after reviewing it with Van Buren, the detectives went to Eva Solis' apartment.
Rey didn't climb off his horse, but he settled down, agreeing with Lennie that he still had to do his job as dispassionately as he could, but still, thinking that thirteen year old kids should not be having gratuitous sex was hardly riding anyone's high horse.
"And you're right," Lennie concurred. "Thirteen year old kids shouldn't be having gratuitous sex -- most of 'em can't understand, nor appreciate what the hell they're doing, but I'm not believing at this point that this is an 'assault.' Unless this kid was hiding a hell of a lot of info from her nurse, I don't think the DA should throw the boy in jail. And he won't. McCoy says that if this turns out to be what everyone says it is, he'll recommend probation. Plea it down to rape three or just go with the sex abuse two charge."
"Probation?" Rey exclaimed. "Only?"
"Oh, come on, Rey. We've been through this."
"It ain't right, Lennie."
"No shit, but it ain't right to throw the boy in jail for half his life either. If we do that, I guarantee you that in two to seven years, we'll be arresting him for something even more serious."
Rey's cell phone interrupted whatever argument he had opened his mouth to make. For ten minutes, he chatted on the phone, ignoring his partner's disapproving glares. Lennie didn't like cell phones. He'd been in a longstanding feud with technology, and when that vendetta exploded into warfare, technology inevitably won.
"How long are we gonna be here?" Rey finally asked Lennie.
Lennie shrugged and thought, to hell with these people. "We're leaving now." They began to walk slowly back down the hallway, back to the stairs when they heard the stairs creak and saw a pretty Latino woman accompanied by a preteen girl walking towards them.
Holding out his badge and hoping they spoke English, Lennie said, "NYPD. I'm Detective Briscoe. This is Detective Curtis. Are you Mrs. Mara Solis?"
The woman nodded warily, hesitating and putting a restraining hand on her daughter's arm. Police officers weren't popular around here.
"Ma'am, we need to have a chat with your daughter, Eva."
The girl interjected, "I know what you want and I don't got to talk with you."
"Eva," the mother exclaimed, exasperated and shocked by her daughter's impertinence. "These are cops! You don't talk to them like that. Got it?" She looked at the detectives, her face unreadable. "We don't got anything here."
"We're homicide," Rey said with a disarming smile. You'd think that wouldn't have ameliorated a thing, but telling her that they weren't narcotics cops at least took her off the defensive. More or less.
"What's the problem with my daughter?" the mother asked, clutching her shopping bag.
Lennie took her off to the side, away from Eva, and quietly explained to her what was going on, wary of any violent, angry reaction that the woman might have. Most parents, in his experience (himself included), had no clue about what their teenage children were up to most of the time, and if you told them that the kids were doing something dangerous or illegal, they went ballistic. Occasionally, in the interrogation room down at the Two-Seven, Lennie had had to physically restrain an irate parent who would have been happy to beat the crap out of his or her delinquent child, right there in the police station.
Mara Solis did not react at all. For all the emotion she showed, Lennie may as well have told her that it was going to snow tomorrow. She shrugged noncommittally, saying, "Kids will be kids, you know. And," she added after a short pause, examining Lennie's face carefully, "you look like you should be home in bed."
This is gonna be fun, Lennie thought, and told the mother, with as much tact as he could muster, that kids may be kids, but what the boy and her daughter were doing was against the law. What he should be doing wasn't her business.
"Well, what if I don't want you guys involved?" she suggested. "What if I think everything's fine?"
"We have to investigate anyway. We don't have a choice in these cases." He gave her the same spiel he had given to Sharon Cohen, but emphasized how important it was for her daughter's safety to be sure that there was no manipulation or coercion going on in the relationship, and you needed to bring a qualified expert in to ascertain that. If everything were fine, as she so insisted, the DA would either dismiss the case or, at the very most, pursue minimal charges with a light sentence. However, it was imperative that he and his partner speak to Eva. For her own safety. It was for her own safety.
The woman anxiously wrapped the handle of the shopping bag around her fingers and asked, "Where would you take her?"
"Oh, we could do it here, in your apartment. Or we could do it down at our precinct. It's your choice. You can even ask for a lawyer if you want, but no matter how we do it, we still gotta do it."
Mara Solis cast him a murderous glare, but conceded to let the detectives question the daughter in the apartment, so long as would not throw the boyfriend in jail.
"That's really not our call, so I can't promise you anything," Lennie said, and when she looked like she was going to tell him to take a hike, he quickly added, "But we'll try. We'll talk to the DA and see what we can do."
Mara Solis agreed, reluctant and anxious. She unlocked the door and unenthusiastically showed Lennie and Rey in to the apartment. A grim expression was plastered on her face, as if she were inviting the Spanish Inquisition into her home, a small apartment with old ragged furniture, a faded carpet that looked like it had been there since the 1950s, and enough crap scattered about on the chairs, the sofa, and the floor to make a prosecutor's office look tidy.
The girl slouched on the yellow sofa, glowering sullenly at the detectives.
"You said you know why we're here," Rey said. "Why are we here, Eva?"
She snapped, "You're here 'cause that nurse at the hospital told you about me and Martin."
"Martin's your boyfriend?" asked Rey.
She nodded. "Yeah, so? We're fine. Don't you have, like, actual crimes to be investigating?"
"Do you understand why we're investigating this?" Lennie asked.
"'Cause I'm, like, thirteen and he's older and the stupid laws say we can't do that. Fuck the laws--"
"Eva!" her distraught mother cried. "Don't talk like that!"
With forced patience, for he really wanted to slap the kid, Lennie continued, "Do you understand why the laws say that you can't have sex with someone who's eighteen years old, sweetheart?"
Eva did not answer.
Rey took over, gently asking, "Has your boyfriend ever threatened you? Has he ever made you feel like you had to have sex with him? Anything like that?"
"No. I told you, just like I told the nurse, everything's fine. He's not anything like you say he is."
"How do you feel about having sex with him?" Rey continued, quietly persistent.
"How do you feel about having sex?" the girl replied petulantly.
Rey ignored that and repeated the question in the same firm quiet tone.
"It's none of your business," Eva nearly shrieked.
"If you don't tell us what's going on," Lennie interceded, his voice as level as Rey's and even softer, "we're gonna have to talk to Martin, and you see, if you're not honest with us, we may arrest him and charge him with something he maybe shouldn't be charged with, and maybe he'll go to prison. We can't know what's really going on if you don't help us out a bit. If you don't, we're gonna have to make some decisions on our own based on what we know about this sort of thing."
Eva just scowled and snapped, "Well, you'd like do that anyway."
The mother stood up, concerned about her daughter's increasing agitation, and said, "I think my daughter's told you what you want to know."
She hadn't told them anything they wanted to know, but Lennie and Rey exited the apartment anyway, deciding at this point that it was better to not force the issue, not yet, not until the DA and the court's psychologist could see the girl. Her insistence that "everything was fine" was dubious at best. The detectives had seen too many victims of blatant domestic violence -- adult women -- insist that "eveything was fine" while they held an icepack to a black eye or broken nose. A child, especially a thirteen year old defending her older boyfriend from authority figures, would be even less inclined to be forthcoming. It was likely that she was intimidated by the boyfriend and feared retribution if she should get him in trouble with the law. Conversely, the relationship could very well be safe and mutually consensual and the girl didn't want the legal system to destroy it. To Lennie, trained as he was to recognize behaviors that indicated when something was off-kilter or when someone was distorting the truth, the former theory was most believable. But none of the textbook signs had been blaringly obvious to him or Rey, and there were no grounds to warrant immediate alarm.
Lennie did feel they warranted a warrant, though.
"I want to talk to the boyfriend," he said. "You got the phone? Call someone at the precinct and tell him to start writing an arrest warrant affidavit for Martin Kitring."
Rey called the precinct on his cell phone while Lennie drove them to the address Cohen had given them for Martin Kitring's apartment, the brownstone on 23rd Street. Rey gave Lennie a puzzled, surprised look, finding it unusual that a kid who lived in a brownstone would date a girl who lived in a shoddy apartment a good distance away.
"This is the right address?" Rey asked, staring at the brownstone doubtfully.
Lennie replied, "It's what the nurse wrote down." If it wasn't the right address, it wasn't the right address. He looked up at the sky, at the gunmetal gray clouds, more concerned about the weather.
A tall teenage boy answered the door, and when they asked him if he was Martin, he nodded warily.
"So," said Rey congenially, playing the good cop, "I hear your girlfriend's Eva Solis?"
"Yeah..." Martin mumbled. "How would the cops know that?"
"We talked to her," Rey continued cheerfully. A few snowflakes fell, white on his black overcoat.
"You talked to her?" repeated Martin. "I don't have to talk to you. I think I should get a lawyer."
"Yeah, no kidding," Lennie sneered, moving slightly to get under the shelter of the vestibule. "You're gonna need one. You know how old Eva is, don't you?"
"Did Eva tell you?"
"We're askin' the questions here," Lennie snapped. "Do you know how old Eva is, pal?"
"Come on," cajoled Rey. "If you be honest with us, we'll talk to the DA and maybe he'll go easy on you. If you don't..." He shook his head ominously.
"I don't got to say nothing until I have a lawyer. I'm not even under arrest, am I?"
"You want a class D felony on your record? You want to go to prison for seven years?" warned Lennie.
"I don't got to say nothing."
"If you tell us what's going on, we can help you out," Rey said.
The kid stubbornly refused to say a word.
Lennie stepped back, out of the shelter, "Fine then. We'll chat down at the precinct the next time, won't we?" He beckoned Rey to leave, and they walked back through the snow to the car.
"Kid knows his rights," Rey observed.
Lennie snorted. "Blame it on TV. I need the phone."
Rey handed him the cell phone, and he dialed Jack McCoy.
"You sure you have enough evidence for an arrest warrant," the prosecutor asked doubtfully.
"The girl's statement, the nurse's statement, the mother's statement, the abortion--" A fit of coughing interrupted him.
Rey frowned at him, concerned. The falling snow became heavier.
"You sound like hell," Jack said. "And I don't think that's admissible."
"The abortion? You're kidding --"
"Depends on the judge --"
"Fine, but the other stuff shouldn't be a problem. The point is we know that this kid is messing around with her. It's a warrant, McCoy. We ain't takin' him to trial tomorrow. Someone back at the 'house' is working on an affidavit as we speak."
"All right... Try to get your warrant." Jack paused, thinking, and then added, "You talked to the kids. You think what the nurse said was accurate?"
"Couldn't tell. Olivet needs to examine the girl and we definitely want a psychosexual eval on the boy. They were both thrilled to be talking with us, as you can imagine."
"Maybe she'll talk to Olivet," Jack suggested.
Elizabeth Olivet was one of the court's forensics psychiatrist, a forty-ish woman with a gentle, yet firm demeanor who could placate almost any criminal and win the confidence of even the most paranoid. She was also tenacious, easily able hold her own under the most vehement cross-examination or tell the most overzealous prosecutor exactly what she thought of his or her case. No prosecutor could intimidate her, no defense lawyer could annihilate her, no defense expert witness could discredit her. In the courtroom, during battles of the experts, juries tended to believe Liz Olivet because she was so clear in her explanations, so earnest, so professional, and defense attorneys could rarely find expert witnesses capable of holding up against her courtroom persona. Every smart prosecutor in the New York County DA's office tried to stay on Liz's good side, because when you needed a psychiatrist's testimony in a case, especially a complicated one with all sorts of complex issues for the defense to stir up, you wanted Liz to testify.
Ten days after Sharon Cohen had first called Jack McCoy, Liz met with Eva Solis in her office, an affable, soothing room with some flowering plants, a large pleasant window, light soft colors, plush furniture, and friendly informational posters on the wall. It was far more conducive towards cajoling people to talk to you than the interrogation room at the Twenty-seventh precinct or the DA's conference room. Olivet was tape-recording the interview, and Briscoe, Curtis, McCoy, and Ross were gathered around the speaker outside the room, listening intently to the conversation.
What they heard, to their immense disappointment, wasn't a hell of a lot different from what Eva had told the cops at her apartment. They weren't doing anything wrong. She didn't want to see Martin prosecuted. No, if the lawyers asked her, she would not testify against him because she loved him. There was nothing strange about their relationship. She was only five years younger than he. Monica Lewinsky was more than twenty years younger than Bill Clinton, so shouldn't they be prosecuting him for statutory rape? As the minutes ticked away, she became more adamant towards Liz about how wonderful her relationship was, how Martin would never hurt her, how she would never hurt him (assisting in his prosecution was definitely hurting him). The police and prosecutors cast each other grim stares.
Jack twirled a pencil around and fussed with some papers, vexed because he didn't like cases where victims and perpetrators alike were reticent about assisting in prosecutions. In homicides, you can get away with it because your corpus delicti is obvious -- a dead body -- and the victim's opinions really don't have much influence in the matter. Jack liked that about homicides, since no one's opinions had much influence over him. But sex offenses are nearly impossible to prove beyond a reasonable doubt without a victim who is willing to testify or at least cooperate.
This case, Jack knew, would never go to trial. It would be advantageous to both him and Kitring's defense lawyer to cut a deal, but it wasn't clear to him, listening to the tape, if he should ask for something light like a deferred sentence or probation, or push for jail time. Exhaling sharply, he stabbed the point of the pencil into a file folder. He didn't like these moral quandaries, these gray areas of the law that no matter how hard he tried, he couldn't make black and white.
The tape ended, Eva exited another door in Liz's office, out to the waiting room where her mother was, and Liz joined the police and prosecutors. All four of them looked at her, expressions hopeful, wanting her to tell them something definite -- yes, he is abusive, send him away for two to seven years; or no, he's not, go easy on him -- but she could not be as certain as they would have liked. Not that she ever was. The medical profession, she once told Jack McCoy while he glared holes through her, functioned within uncertainties, gray areas, while the legal profession functioned within certainties, black and white. Jack had told her to make the gray black and white. She hadn't yet, in all the years they had worked together.
"It's sometimes hard to tell in kids," Liz explained serenely, impervious to the disconcerted glares of disappointed cops and lawyers, "if they're just being defensive and contrary because you're an adult authority figure and therefore threatening, or if they're actually hiding something. She definitely wants to protect the boyfriend, but her motives for doing so are not clear. She's thirteen, so I don't think she's even certain of what her motives are."
"What's your gut feeling?" Jack asked.
"My gut feeling is that I want to do the psychosexual eval on the boy before I draw any conclusions for you."
Jack nodded, biting his lip. Trust the psychiatrist to say something disingenuous. They'd arrested the kid and he'd had his prelim hearing that morning -- the judge had granted Jack's information. Tomorrow, Olivet would meet with him.
"Kennan's meeting, Monday morning," he said to Jamie and the police officers. Jamie and Rey nodded. Lennie just rolled his eyes.
Because sex offenses could be so mystifying, the Executive Assistant DA who headed the sex crimes unit, Sarah Kennan, held meetings every Monday morning, where they would discuss all the sexual assaults that had occurred during the past week and decide what to do about them. If there were an overwhelming amount of them, they would only discuss the difficult ones. The usual attendees to these meetings were the ADAs who worked directly under Sarah, the detectives who were investigating those cases, any other prosecutor who happened to have a sex assault case on his docket and the cops investigating that, and one or both of the forensic psychologists on the court's payroll -- Liz Olivet and Emil Skoda. Rounding off this who's who of the New York criminal justice system were a couple of SANE nurses, a Victim's Advocate, and occasionally the District Attorney himself, Adam Schiff.
McCoy, Ross, Briscoe, and Curtis attended the meetings irregularly, since Jack's real job was to head the DA's office's homicide unit, and Lennie's real job was to head the Two-seven precinct's homicide division. Their last Monday morning meeting had been eight months ago, with the retarded girl case. And it wasn't just fortuitous circumstances that had kept them away from these meetings for as long as eight months, although blind luck had had something to do with it; no one, not Briscoe and McCoy, not Ross, not Curtis, wanted to deal with another sex assault case after that one. For Lennie, it reignited traumatizing memories -- just bad luck that his daughter happened to be murdered during a convoluted fuck-up case because she was also involved in another convoluted fuck-up drug case in King's County. For Jack, it proved beyond a reasonable doubt that he was not a sex crimes prosecutor, and he had spent several days wondering if Sarah Kennan or one of her ADAs couldn't have done better. Rey and Jamie were indignant that the judge had issued a directed verdict, smashing some of their ideals of justice with a blunt hammer.
On this Monday, they joined the sex crimes team meeting.
"Long time, no see, Jack and Jamie." Sarah said amicably. "How goes it, Lennie? Rey?" Lennie was in the process of coughing up a lung, so she added, "you don't sound so good, Lennie."
"No sex crimes for a while. You people have been doing such a good job of keeping those from overflowing and spilling onto everyone else's docket," Jack growled, taking a caustic potshot at her.
Sarah cocked an eyebrow at him. "Didn't like that last case, did you?"
"Lets start this. I have another meeting in an hour."
Sarah moved on, opening her meeting with one of her cases. Both the victim and the defendant had been intoxicated and no one could remember a thing about the night in question. All the prosecutors had was the defendant telling the vic that maybe she should go in to a clinic for a morning-after pill because maybe they had sex. The rape kit corroborated that, but there were no signs of force and the vic, who probably did have sex with the guy, didn't have the faintest clue about whether she'd consented or not. Neither did the defendant, but he said that if she hadn't consented, he wouldn't have had sex with her. The prosecutors also had a fifteen page transcript of a pretext phone conversation between the defendant and the victim that was totally useless. It was too ambiguous -- the gist of it was that neither party remembered enough to make the conversation worth two cents in court.
"The vic wouldn't know she'd had sex if she were sober," grumbled Jamie, reading through a transcript of a police interview with the victim.
"Oh, I get it," Lennie said. "He's so drunk off his ass that he can't even remember what happened, but if she hadn't consented, he'd have been cognizant of that."
"You'd better get a damned liberal jury if that's going to trial," Jack warned. "Like ex-hippies and college students. People think that if you're going to get totally wasted, you're just asking for it, so they acquit."
Sarah grinned, recollecting the bits and pieces of the file she'd passed around the table. "This is what these meetings were lacking for the past eight months -- we were missing out on your scintillating commentary."
Jack's comment about liberal juries wasn't just a wiseass editorial, but a valid observation from a lawyer who had seen many juries and knew how they behaved. Everyone at the table agreed that the case didn't have a chance in hell at trial. The best thing to do was get any plea you could wrangle out of the defense attorney and run with it. Rape three or sexual misconduct, probably. Either that or a flat-out dismissal of charges. The E felony or A misdemeanor were improvements over that.
The next case they looked at was the Eva Solis case.
"This one's yours, Jack," Sarah said brightly. "Lets see if it's as much fun as that thing you had a couple months ago."
"Not nearly," Jack replied, rolling his eyes. To Liz Olivet, he asked, "how do you think the psychosexual eval went?"
Liz replied, in the serious level tone of an expert witness or a college professor, "the results are in that file somewhere, but I think he's okay. It doesn't seem like a bad relationship, just an illegal one, and neither of them is happy about having to break it up. It's not a huge difference in years between these kids. It just happens to cross that four year boundary. If he were a year younger or she a year older --"
"So no coercion -- nothing like that?" an ADA named Sylvia Miller asked, looking as surprised as Rey Curtis who had the same burning question.
"Kid's been having sex since she was twelve," Liz explained. "It's not like this was her first boyfriend."
"That's too young," Rey groused.
"It happens." Liz could have been saying that weather happened.
Lennie, weary of his partner's unfailing idealism that the past three years working homicides had hardly abated, said acidly, "take a walk on Second Avenue, Rey. And don't bet that those kids there are the legal age for anything."
"Is there a chance that you could be wrong, Doctor?" McCoy asked Olivet.
She gave him a disparaging glare, her serenity slightly ruffled. "I didn't think this was a courtroom, Jack. You don't need to always sound like you're crossing someone when you ask them a--"
"I don't sound like I'm crossing you," Jack interrupted. When he cross-examined people, they knew it, just as they'd know if a tractor-trailer truck plowed into them at fifty miles per hour -- it was a similar experience. "If there's a chance you could be wrong about the kid, I don't want to give him a free ride."
Sylvia Miller argued, "It shouldn't matter what he thought or not. Kid's eighteen. He should know better. He should know he shouldn't be messing around with a thirteen year old."
"I bet you knew what the age of consent was at eighteen too," Jamie said in a sour voice.
"I knew it wasn't thirteen."
"Not everyone is as bright as you."
"Oh, please. This ain't rocket science."
Jamie gestured emphatically to the pile of case files on the desk. "Are any of these people rocket scientists, Sylvia?"
"Well, no, but no one's giving them probation. It's a sex assault--"
"Hardly. You keep wanting to call it that, but it's more like a sexual contact--"
"Oh, what? It's okay for thirteen year old kids to have sex!?"
"Is it really worthwhile to debate the age of consent now?" Lennie asked, looking at his watch. He and Rey had to be out of here, soon. Now was not the time to watch high-mettled district attorneys bicker amongst themselves, entertaining as it might be.
Jack seized the lull in the conversation. "Look, no one wants us to prosecute this -- not the kids, not their families. Prosecuting a case where not even the damned victim wants to cooperate is a royal pain in the ass. What I planned on doing was copping a plea on the thing -- sex abuse two with sentencing recommendations -- and moving on."
"I would recommend some counseling for the boy," Olivet suggested.
Rey, who agreed heartily with Sylvia but understood that the powers-that-be had already made up their minds, added, "I think he should have at least three months imprisonment." When he caught Lennie glaring at him, he quickly added, "Well, maybe an intermittent would do."
But Jack had already made up his mind, and Sarah and Lennie and the SANEs and even the VA agreed with him. Two years probation with "no contact" stipulations and counseling.
Their case discussed and decided upon, Lennie and Rey excused themselves from the meeting. They hadn't the time to stay, and Lennie thought even the few minutes he had spent there were a waste of his time. All Jack had really needed to do was ask Olivet about the psychosexual eval -- the information was even in the damn paperwork, and if he needed her clarification on something, all it would have taken was a phone call. The prosecutor knew what he was going to do and if Kennan hadn't agreed with him, it wouldn't have swayed his decision. No, he only attended the meeting and dragged Lennie and Rey along because Adam Schiff insisted that every prosecutor attend that meeting when he had a sex offense case. Eight months ago, Schiff hadn't cared. Maybe he decided McCoy's judgement about sex offenses wasn't so good after all, and wanted the sex crimes prosecutors to review Jack's decisions. That would drive McCoy nuts, of course, if that were the case. Lennie wasn't sure if it was, but it wasn't an implausible theory.
On the way out, Rey realized he had to ask another DA about something and went back down the hallway to find the DA he wanted. Lennie deliberated whether he ought to wait for Rey or not, then continued on his way to the elevators.
He ran into a pretty African-American defense attorney named Shambala Green, adorned with gaudy clothes that gave him a migraine to look at, long black hair that fell over her shoulders in hundreds of tiny braids, and a temper that could make McCoy look like a Buddhist. Green was one of those attorneys who always had a pet cause or two she was fighting for with enthusiastic vigor. For a while, it had been black rights, then women's rights. Nowadays, ever since New York had reinstated the death penalty in 1995, her pet issue was indigent rights.
She was in and out of the DA's office several times a week -- PDs were always in and out of the DA's office more often than private defense attorneys since they couldn't afford to send underlings to do the drudgework copying for them -- so Lennie ordinarily wouldn't have taken much notice of her had she not grabbed his elbow.
"Briscoe, tell Jack his copier's not working," she said in a tone that vacillated between gravity and superiority, as if she were asking him to tell Jack she was going to get him disbarred tomorrow.
"Gee," Lennie replied, shaking his arm free. "So what else is new?"
Shambala Green, who'd never liked him, stiffened her shoulders at his smart comment, and acted like she might beat the copy machine and Lennie into submission with her bare hands. Lennie didn't like Shambala either, so he walked off before the defense attorney could say something inflammatory that would keep him in the office for the next half hour.
"Briscoe, what's the deal on that sex offense?!" she called after him.
"The Kitring one."
He stopped, turned around, and yelled back down the hallway, "Probably sex abuse two! Probation."
"Only? Isn't that one of McCoy's?"
"So he's going for a fair sentence before the defense attorney kicks his butt?"
"Why wouldn't he? Even McCoy can see when jail would do more harm than good."
"Go use the copier up in Fraud!" The last thing Lennie needed right now was an argument with a lawyer. They were trained to argue, needless to say, but the good ones could pick a fight over just about anything you could name, and some of them did it with impunity.
"I tried it," Shambala complained. "They killed it copying discovery for an embezzlement case."
"It ain't my problem," Lennie perfunctorily told her as he continued backing down the hallway. "I don't work here."