THE FIGHTER (Wrestling With Your Conscience)

“Who’s Dicky Eklund?"  "Why he’s the pride of Lowell that’s who.”  “Did you know he went the distance with Sugar Ray Leonard?”  “Yup, knocked Ray down and stepped right the-fuck-over his body!”  “Yeah he’s guta wicked jab!” “The best we ever had up here in Lowell.”  “And his half brother Micky Ward is no slouch either.”  “That's For sure, Micky’s coming up fast. “  “You ain’t kiddin, that kid hits like a sledgehammer!”

In the early 1990’s I was new to Lowell.   As an intern in the District Attorney’s Office I’d been getting around the city and hearing the stories.  I had yet to meet the men behind them.  I was about to.

“Mr. Tamagini?”   “Yes Cynthia, I’m back here.”  “Oh, you were due in District Court five minutes ago.”   Shit…  “OK, I’m on my way, thanks.”

 I was beginning to wonder if taking this job was a mistake.  You’d think I would be happy since in the last hour I learned I’d passed the Bar Exam on my first attempt and was offered a position as an ADA.  So why the long face?  First of all no one was going to see it over this pile.  I had to stretch like an ostridge just to make eye contact with my secretary.   Second, when our other intern found out she hadn’t passed they dumped her cases for next week on my desk.  Right now I had to run, but if I stopped,  I would have realized it was her demise that secured my position.

Three years ago if anyone told me I would end up in this job I'd have said they were crazy.  Those who really knew me would say I was born to be on the dark side.  I spent my life behind the mask, always heavily armed.  I craved violence; pistol wiping uncooperative branch managers; threatening open safes through intimidation; torture by means of extreme atrocity and cruelty.  I didn’t spare hostages.  When we put together a crew I never chose to be a good guy.  I was perpetually the fugitive during recess, after school play and weekend recreation.  Wearing the white hat would be an altogether new experience for me.

My first inclination when seeking an internship was to represent the accused in the Public Defender's Office.  However, my father informed me: “The government is the one with all the resources. They will provide the best training.  If you want to learn how to keep’em out of jail, you’ve got to know how to put them in.”  This advice could not have been sounder.  But who listens to their father when they know everything.  If you really want the scoop on why I went after the job the answer is: a girl.

My first day at BC Law, looking around the arc of auditorium seating at my classmates, it took all of 30 seconds to spot her.  Auburn curls reflected overhead lighting off angelic features.  I had to have her and I was not alone.  Her father was a Chief of Police, her brother a prosecutor.  Her career path was predestined.  She possessed an oratory fearlessness where I spasmed epileptically at the thought of speaking in public.  It was a miracle I ever got a word out.  Yet in an effort to impress her I did.  So whether or not she knew it then or realized it years later when I was on Court TV and trying homicide cases in Superior Court, despite our relationship lasting one night, she was my initial inspiration.

Today I was going in green as Gumby.

 Speed walking across Church Street I had to go up on my toes every third step to see over the files in my arms.   Even at this stage I realized one thing: it was nearly impossible to discern the cases that would go to trial from those which would plea out or get continued.  This made preparation a game of Russian roulette.  But for my first day I had an advantage:  The pride of Lowell.

“HBO’s doing a special on my comeback,” was the first thing he told me.  “But now I’m fucked! How’em I gonna fight again with this cut?  It could open up too easy.  The kid that did this gutta pay.  Jimmy, you gutta make him fuckin pay.” 

I’d felt intimidated at that first meeting.  Dicky had shown up forty-five minutes late with two friends, Boo Boo and Brenda.  The three of them never sat still.  Dicky was missing most of his teeth and it was clear his career had taken a toll on his health.  The other two also looked rough…  they were all fighting something.   Together the group was a hat trick of flailing arms and raised voices walking in circles around my tiny office.  For an hour they didn’t stop and still we never reviewed the file between talk of: “HBO” this, “Comeback” that, and something about, “suing the little prick after win the criminal case.”

The facts were clear from the police report.  There was a bar fight, in the midst of which the defendant sucker punched Dicky with a set of keys cutting him above the eye.  What else did I need to know?  Eklund had a professional record of 19 wins and 10 losses, four of the wins by KO.  There was no doubt the defendant came out of nowhere during the brawl and hit Dicky when he wasn’t looking.  “Jimmy, I was in the wrong place at the wrong time and that’s all there really is to it. Now you gutta win this for me kid, ok?”   “Don’t worry Mr. Eklund, I don’t see any problem.”

Judge Neil Walker was slated to preside over bench trials upstairs in the Third Session Court Room.  Eklund’s case would be a priority. You couldn’t have asked for a nicer Judge.  He lived in my hometown and had gone to grammar school with my mother.  I felt confident.  The courtroom would be packed with spectators. I really don’t know why I was feeling sorry for myself before.  Who would have expected they’d assign me such a notable case for my first trial.  It was truly an honor.

The defendant’s name was Michael Walsh.  He was in his late twenties and worked for a Computer Company inside the Wang Towers.  Dressed in Dockers, Kakis, Polo shirt and sweater he appeared out of place among most of the defendants who’d slept in their cloths.  His family sat in the first row behind defense counsel’s table. By all indications Walsh was financially well off, which was spilt blood in the water of Dicky Eklund’s ocean.

Dicky entered the courtroom as though we’d already won.  He was a lunatic, bouncing around being loud and shadow boxing with Court Office Williams.  The fact he’d brought his friends for support did nothing to ease my anxiety.  The courtroom was at capacity as expected.  On one hand I was nervous but thought: this must be how Dicky always acts.  Everyone knows him.  Lowell loves him.  His boisterous, flamboyant manner is part persona, and a partial side effect of being wacked too many times is the noggin.

On the witness stand he was a train wreck.  When I posed the simple question: “What happened next?”  We were treated to a rambling, unintelligible narrative.  It’s a good thing I didn’t pursue boxing as a career. The head trauma really fries your brain.  Spectators in the gallery fought to contain their laughter while I struggled to remain focused, doing my best to redirect Dicky to the point where he was struck over the eye.  “And do you see the person who hit you in the courtroom now Mr. Eklund?”  “Yeah, I sure do.”  Could you please point him out and describe an article of clothing he is wearing for the record.”  “He’s right there.” He said pointing, “Dressed like a fag with the sweater over his shoulders.”

By the time Judge Walker had restored order I knew it was time to cut my losses and keep moving. The medical records proved his injury. The responding officer testified to the defendant’s original identification, apprehension and confiscation of the dangerous weapon, a set of keys.  Once chain of custody was established the keys were admitted in to evidence and the prosecution rested.

Certainly every case is unique.  However, as a general rule the defendant shouldn’t testify. There is not much he can say to help compared to the world of damage his own words can cause when up against a skilled cross-examiner.  The criminal trial is a game.  Broken down into its simplest form either the prosecution proves it’s case beyond a reasonable doubt to a moral certainty or the defendant goes home.  Period.  Most often your better off letting your lawyer break down the foundation of the government’s case, exposing that doubt.  Nevertheless, it’s tough keeping the accused off the stand; especially when he has an attitude and an ax to grind.  Walsh had both.

“While I was sitting at the bar this woman caught my eye.  She came over and sat and we began talking.”  “Do you see that woman in court right now?”  When Walsh’s lawyer asked the question you could have heard a piece of lint hit the courtroom floor.  When his client aimed towards the back of the courtroom I thought I snapped my neck turning.  Brenda?  “ We talked for I while and she seemed really into me and said we should get some coke and go back to her apartment and party.”  “When you say ‘coke,’ Mr. Walsh, are you referring to the drug cocaine?”  His lawyer asked trying to appear in control.  “Yes sir, cocaine.” “What happened next Mr. Walsh?”  “Well we went out to my car and got in and out of no where the rear door opened on the passenger side and he jumped in.”  “He, who?”  The lawyer asked, holding back a grin.  Then Walsh pointed directly at Eklund.  And I didn’t know if my bowels would release or my eyes popped out of my skull, when Judge Walker let out a spontaneous chuckle from the bench.

“She told me this was her brother and he’d help us score the cocaine.  I felt a little nervous but she put her hand on my knee and said not to worry everything was cool.  Then she gave me directions to a cluster of brick tenements. When I parked she told me to give her brother $300.00 so he could go in and buy an eight ball.  The brother hadn’t shut up the whole drive.  He said how he wanted to do a few lines with us for his trouble... trying to be friendly with me.  I reached in my jeans, pulled out my wallet and that’s the last thing I remember.  When I came to I had a welt the size of a plum on my temple.  I don’t know how long I was out but my wallet was gone with all my ID cards.  I had about $600.00 in cash but it was my ID for work and my driver license I had to get back.   Even though I felt woozy I started driving, trying to make my way to the bar.”  “Did you contemplate going to the police and reporting this robbery Mr. Walsh?”  “At that point I was a bit scared to talk about the coke… I was just hoping to find my IDs… figured he’d just toss them out and take the cash anyway.”  “What happened next?”  “It took a long time but I finally found the bar and as soon as I went in through the doors I practically walked into him.  Now he seemed different, lit up, really wasted, more than booze, he could hardly walk straight.  I tried asking where my wallet was but he took a swing at me; a wild haymaker that caught all air.  We locked up - I wrestled in college - others from the bar jumped in.  I was carrying my keys the whole time so maybe in the fray he got cut but… but I thought they were going to kill me – it was self defense…”  “Then what happened Mr. Walsh?”  “The bartender must have called the cops… I tried to explain but they wouldn’t listen.  I was dizzy, and beaten up, and he… he, was bleeding all over the place.  When I found out who he was - Jesus I could have gotten killed!”
Walker had the perfect temperament for judicial service.  But Lowell was one or our state’s busiest courts.   He had no time to waste and that’s what this matter had turned out to be.  His verdict of acquittal was handed down quick enough to give me hope Dicky had missed it.  Apparently he didn’t.  While he and his cohorts began acting up the clerk saved me by announcing: “Mr. Tamagini, Judge Grasso is holding you for trial down in the second session.”  Scooping up my files the slick exit I prayed for,  got as far as the swinging double doors.  “What am I supposed to do now?  You gutta appeal! That little puke hasta pay for this!”  There was no time to give Dicky a criminal procedure lesson outlining why there was no appeal of the not guilty verdict.  “Calm down Mr. Eklund I have another trial right now but we can discuss this later, ok?”  Without awaiting his response I kept moving, thankful Court Officer Williams followed in behind me.  “Lets go Tamagini, Judge Grasso’s waiting!”

There could not possibly have been a more disastrous way to begin my trial career.  Now they expected me to suck it up and go again?   Without so much as a clue which case it was or time to collect myself?  Fortunately I took the time to look them all over last night...   I guess it didn’t mater, regardless it couldn’t be worse than what just happened.  I was beginning to wonder if everyone knew what a mess Dicky Eklund had become?  Was that why the case landed on my desk?  Of course not – HBO is doing a documentary of his comeback.

Judge Grasso possessed a much shorter fuse than Walker.  He was stern, strict on the law yet generally impartial.  If anything he favored the prosecution.  He had a difficult time hiding the fact he loathed Lowell’s scum.  He wanted the prosecution to prove their case but if you didn’t he wouldn’t hesitate to flush it down the toilet. Moreover, he cared not if he embarrassed the shit out of you in the process.  He demanded the lawyers that came before him be prepared.  For these reasons I was thrilled the clerk called Commonwealth v. Cheryl Lynn Heath.

Ms. Heath was arrested in the parking lot of a place called the Blue Moon in Tyngsboro for distribution of a Class D substance to wit: Marijuana.  The arresting officer observed her from a surveillance position inside his undercover van to sell a sixteenth of an ounce of grass to a gentleman from out of her motor vehicle.  This man was arrested for simple possession.  His case was still pending making him unavailable to me as a witness.  Even so, the case was a slam-dunk.  It was impossible to loose.   Melting ice at the equator would require more effort.  Did I feel guilty for this?  Not in the least.   After that fucking fiasco with Dicky this is just what the doctor ordered to revive my expiring confidence.

During my direct examination the Officer’s testimony was introduced without the slightest difficulty.   Before Heath’s attorney began cross I caught myself wondering why in the world he let his client go to trial?  Then he delivered his first question:  “Isn’t it true Officer that your wife is a stripper at the Blue Moon and my client is the top tip earner at that establishment?”  - Complete silence -  “ And by arresting Ms. Heath, you and your wife have in effect conspired to get rid of the competition?”  This time I did shit my pants.  “Aren’t you going to object?”  Yelled the cop from the stand.  “Objection!”  I yelled.  “Overruled, it goes to bias, answer the question Officer!”  Yelled Grasso. “… Well… yes, part time… but she has nothing to do with this!”

Apparently Judge Grasso disagreed because when the crucifixion ended he threw out the case almost as fast as the Officer flew off the witness stand to confront the defense attorney.  The Court Officers rushed in to separate the men while I, still dazed from being sacked from the blindside twice in one day, figured this was a good time to make my exit.

I won’t tell anyone, I decided.  When friends and family ask: “Well James, how was your first day as a lawyer?”  I will summons all my powers of deceit and tell them: “It was tremendous,” steering the conversation away from any details. Yeah, that’ll work…  I am the king of positive thinking.  Tomorrow can only get better now that today is behind me.   Next I would go over to First Session and retrieve my jacket, drop these files off at the office and get the hell out of there.  With full arms I pushed the Second Session door open with my shoulder, rounded the corner and there was Dick Eklund and the future Junior Welter Weight Champion of the World “Irish” Micky Ward waiting for me in the lobby.

To Be Continued.,,