Short Stories 

 

 

 

Friday
May312013

Conduct Unbecoming By John A. Bray

The following is a true story, told exactly as it happened, although some dialogue has been added to enhance its readability as an instance of “true crime.”

The 1972 green Volkswagen Beetle turned into the Mercy Hospital parking lot from Peninsula Boulevard in Rockville Centre. The driver, his distraught countenance fixed with psychopathic intensity, positioned the car to keep the side exit door of the hospital in sight. After a few moments the door opened. A group of nurse-trainees filed out, their class recessed for the day. The man behind the wheel of the waiting car leapt from his seat and strode toward the crowd of women leaving the building.

He hailed one of the nurses by name, “Kathy, wait a moment.”

The startled woman turned to look but hastened her steps to reach another vehicle waiting a short distance further. Before she traversed the next few yards, the man from the Volkswagen seized her arm and pulled her toward his own car.

“Jake,” the woman cried, “let go, you’re hurting me. I have to go home with my mother and my aunt. They’ve been minding our daughter while I take this nursing refresher course.”

“I need to talk to you, Kathy. Just sit in the car with me for a few moments. I came here to wait for you.”

The young woman permitted the man to jostle her in the direction of the Volkswagen, protesting the while that she needed to get home. Jake opened the passenger door of his automobile and pushed Kathy inside. She remained seated while he ran to the driver’s side and sat behind the wheel.

“What is it, Jake? What’s so important that you need to talk to me right this minute?”

“Kathy, I’ve missed you and our little girl desperately. I can’t go on living unless you come home.”

“Jake, you know we haven’t been getting along for months. I need more time to thinks things over.”

“Kathy, please,” Jake begged.

At that moment, Kathy’s mother, Janice Butler and her aunt Helen Johnson, the driver of the other car waiting for her, approached Jake’s car on the passenger side where Kathy sat. Her aunt remained a short distance away, holding a neighbor’s child she baby-sat that day.

“This is the wrong time and place to discuss this, Jake,” Kathy complained. “I need more time to decide what I want to do.”

“Kathy,” Jake shouted, “you’re my wife and I have a right to see our child. Your mother prevents me from visiting her. What else can I do?”

A sharp rap on the passenger-side window caused them both to turn in that direction. Kathy rolled the window down. Her mother, leaning through the opening said, “Kathy, get out of the car. We have to get home and your daughter is waiting.”

The older woman grasped the outer handle and began to open the door. At that moment Jake pressed the muzzle of his five shot snub-nosed Smith and Wesson revolver against his wife’s left rib cage and squeezed the trigger. The bullet pierced the woman’s side and lodged in her lung. She uttered a soft cry and slumped over. The second round, fired through the open window, caught her mother in the upper chest. Falling back against a vehicle parked next to Jake’s Volkswagen, Kathy’s mother sat propped in a seated position against the side of the adjoining car. The older woman clutched at her chest gasping weakly.

Jake scrambled from his car emitting incoherent shrieks of rage. Kathy’s aunt, a few yards away stood horror-struck while cradling the child left in her charge that day. Immobilized by the sudden violence she had witnessed, the woman’s scream of terror died in her throat. Jake, brandishing his weapon, jumped on the rear bumper of the Volkswagen. While howling crazed obscenities, he fired the remaining three rounds from his weapon into the roof of his own vehicle. Still seized by a paroxysm of demonic madness he turned and aimed the pistol at the aunt holding the baby. Snapping the trigger rapidly, he heard the hammer fall ineffectually on the five expended cartridges.

The aunt with the child in her arms, finding her voice, shouted, “Jake, Jake, don’t shoot the baby.”

Jake lowered the revolver, and with his eyes glazed as his lunatic frenzy began to subside, said in an audible murmur, “Don’t worry, I won’t shoot the baby.”

Remaining rooted to the place where she stood, Kathy’s aunt watched in horror as Jake coolly opened the cylinder of his weapon and ejected the spent cartridges on the ground. He reached in his trouser pocket, extracted five loose rounds and methodically loaded each one into the cylinder. Turning back to where Kathy’s mother sat struggling to breathe after the gunshot wound she had received, Jake walked slowly toward her. She looked up and met Jake’s eyes. “Jake, you shot me too,” she gasped.

“No kidding, Mama,” Jake sneered, and fired the five rounds he had reloaded into the prostrate woman’s head.

Frozen in her fright and shock, the aunt could only watch Jake run once again to the driver’s side, slip behind the wheel, calmly back out of the parking space and race, tires screeching, out of the lot onto Peninsula Boulevard heading south toward the Southern State Parkway. Some of the bystanders, aghast at what they had seen, ran back into the hospital and dialed 911 to summon the Nassau County Police.

The first radio car to respond arrived within minutes of receiving the emergency radio dispatch, “Shots fired at Mercy Hospital, victim down”. The officer attempted to obtain a statement from the terrified and speechless aunt.

Finally she recovered enough from her hysteria to stammer, “He’s a New York City cop. He shot my sister. That’s her lying on the ground. He probably shot Kathy, too. She’s still in the car with him.”

“Which way did he go?” the officer pressed the frightened woman.

“He lives in Massapequa. That’s where he might take her.”

An emergency team from the hospital ran out into the parking lot with a gurney. When they saw the body, her head smashed beyond recognition from the multiple gunshot wounds, they returned to find a doctor to make the official pronouncement of death.

Other police cars arriving on the scene began to cordon off the area and collect the spent cartridges Jake had left lying on the ground. They called the central dispatcher to send a team of criminal scene technicians to begin the analysis of the scene and take photographs. Other officers fanned out to obtain statements from witnesses still watching in morbid fascination.

Jake drove home along the Parkway at a frantic pace. His wife, crumpled against the car door, struggled to breathe with the wound in her rib cage. Pulling into the driveway of their Cape Cod-style suburban home, Jake unlocked the front door then opened the Volkswagen door where Kathy sat, alternately gagging and moaning in pain. He lifted her in his arms, carried her through the front door and laid her full-length on their bed. The officers at Mercy Hospital obtained Jake’s address from the aunt. The multi-vehicle police pursuit streamed along the Southern State only moments behind him. When they arrived at the home where Jake had taken his mortally injured wife, the officers crept close and peered through an open window. They could see Kathy lying on the bed, Jake lying next to her, holding her hand and staring blankly at the ceiling. Reluctant to provoke an armed confrontation but anxious to rescue the woman, the cops tried calling to Jake through the window to surrender and let them take Kathy to the hospital. Suddenly, without answering the pleas of the officers for a peaceful conclusion, Jake jumped from the bed and ran to the kitchen. The cops could hear him dial a number and overheard his side of the conversation. Jake had telephoned the local Catholic parish and got the pastor to answer. “Father,” Jake sobbed into the phone, “I need forgiveness. I just shot two people. One of them is my wife.”

The officers could see him pacing back and forth in the kitchen, the phone to his ear. When he hung up the phone Jake returned to the bedroom and stood watching as Kathy seemed to have stopped breathing. Finally, in response to the officers’ pleas, Jake opened the door and came out, hands in held in a position of surrender.

After his arrest and commitment to the Nassau County jail, the Corrections authorities assigned Jake to protective custody and placed him in a segregated tier because of his status as a police officer. A member of law enforcement incarcerated in a correctional facility always risked retribution from other inmates. Jail classification sent Jake to a cell already occupied by an inmate secreted in the Nassau County facility to protect his identity as a Federal witness pending his testimony in an important trial. During one of their conversations Jake asked his cell mate, unbeknownst to Jake already a jail house informant, if he knew anything about using insanity as a defense to murder.

 

Months later, my boss, Inspector Bill Jameson, called me into his office. The Commanding Officer of the Department Advocate’s Office of the New York City Police Department, the Inspector frequently tasked me as one of his trial attorneys to try sensitive cases. Our office bore the responsibility to prosecute charges of misconduct brought against members of the Department. These charges could range in severity from a simple complaint of “off post while on duty” to the catch-all term “conduct unbecoming of an officer and detrimental to the good order and discipline of the department.” Such accusations could, and in this case did, include murder.

The boss handed me a file and explained the problem the department faced with this case. Patrolman Giaocchino Marino had stood trial for the murders of his wife Kathy and his mother-in-law. Through the efforts of a skilled and experienced defense attorney, the jury found the defendant Marino not guilty by reason of insanity. The judge presiding at the trial remanded the defendant, in accordance with the law, to a hospital for the criminally insane. Six months after his commitment to that institution the doctors found that Giaocchino “Jake” Marino no longer posed a threat to himself or others and released him.

            “This lunatic,” the inspector explained, “has made an application for a medical pension on the grounds that he is no longer able to perform the duties of a police officer due to his mental defect. We have thirty days within which to serve him with department charges, try him, convict and dismiss him or he gets a medical pension of one-third of his salary for life. Take a trip to the Homicide Bureau of the Nassau County District Attorney’s Office and pick up the trial transcript. The Assistant DA who tried the case is expecting you.”

            At the DA’s office I met with the Chief of the Nassau County Homicide Bureau, the prosecutor who conducted the trial against Marino. He handed me the trial transcript and explained what he believed had gone wrong with his case and why the jury found the defendant not guilty by reason of temporary mental disease or defect.

            “Apparently, Marino’s wife had run away with a young man she had met and spent a few weeks touring the South with him, including a trip to a show at the Grand Ole Opry. She had left the marital abode and took their adopted infant daughter to stay at her mother’s house. Her husband found out about the affair and confronted, not his wife, but the man with whom she had absconded. The two men met in a diner over coffee and Marino wheedled all the sordid details of their love tryst from the frightened paramour.

“The City Police Department had once before removed his weapons and placed him on limited duty when he discharged his firearm inside his house in an effort to persuade his wife he contemplated suicide if she left him. Marino convinced the psychiatrist to whom he was referred that he repented of his actions and pleaded for a return to full duty. The doctor agreed, restored his weapons and sent him back to work. Marino is a very cunning and manipulative person. His trial attorney retained a forensic psychiatrist who testified that his examination of the defendant revealed a clinically disturbed individual capable of periods of psychotic rage which blocked out all reason. During those episodes the doctor told the jury, Marino became incapable of understanding the nature and consequences of his actions.”

            The inspector flipped through the file. “The psychiatrist called to testify as an expert for the prosecution stated that his examination of the defendant disclosed a pathological streak in Marino’s personality which led him to commit unconscionable acts performed without regard to the pain or injury he inflicted. He concluded by saying that in his medical opinion Marino was not psychotic at the time of the commission of the murders and understood the consequences of his own behavior.

            “The defense attorney evoked all the craziness in Marino’s background in his summation and convinced the jury that he was bereft of reason at the time of the commission of the crimes and unable to understand the nature and consequences of his action.”

            Back at my desk, I read through the transcript and made an appointment to meet with the doctor who had restored Marino’s weapons after the incident in which he fired a round into the ceiling of his basement to frighten his wife. The psychiatrist admitted that when he interviewed Marino, he accepted his explanation that the officer had lost his composure at the prospect of the dissolution of his marriage and having to endure separation from his wife and the couple’s adopted infant daughter. The doctor agreed to the restoration of the officer’s weapons and return to full duty.

            Upon his arrest, the department had suspended Marino from duty. We had our process server team find him and serve him with the charges and specifications which said that “while engaged in conduct unbecoming of a police officer and detrimental to the good order and discipline of the department, he did wrongfully and without just cause shoot and kill one Katherine Marino” and added a similar charge for the murder of Janice Butler.

The process servers also served him with a written directive to appear in the Department Trial Room for arraignment. Because of our time constraints we asked the Deputy Commissioner of Trials to clear a day on his calendar to schedule an immediate trial. Marino appeared with a different attorney and the trial began.

            The first witness for the department, Police Officer James Vitale of the Nassau County Police Department, testified that he responded first to the radio call of “shots fired at Mercy Hospital”.  He described what he saw when he arrived at the scene. The body of the dead woman lay sprawled grotesquely next to a parked automobile, hospital personnel grouped around her. Helen Johnson, the sister of the deceased and aunt of Marino’s wife stood a short distance away, holding the baby she minded that day and crying hysterically.

            “I managed to get Mrs. Johnson to calm down long enough to find out what happened. She told me what she saw and I radioed the central dispatcher to send units to the address she gave me where the suspect might be headed.  I told the dispatcher that the suspect was armed had shot at least one and possibly two people and had what may be an injured hostage with him in his car. Other officers responding to Mercy Hospital asked the central dispatcher to send a crime scene investigation team.”

            The officer then drove to the location to which he believed the suspect had taken his estranged wife. He related that he and the other officers at the house could see Marino through the window. Marino lay next to his wife who he had placed on the bed. They watched as he jumped from where his wife lay dying to make a telephone call while pacing around the kitchen. The officers outside the house finally persuaded the suspect to surrender and he came out with his hands up. We called an ambulance for his wife and recovered the weapon he used in the shootings from the bedroom of the house. When we searched him we found 45 rounds of unexpended .38 cal. ammunition in his trouser pocket. Doctors at the hospital pronounced Mrs. Marino dead on arrival in the emergency room.

            Marino’s attorney declined cross-examination of the officer and I called my next witness, Helen Johnson, the sister and aunt of the deceased victims. I asked her to relate the events of the day in question. She testified that when she approached Marino’s car with her sister, Kathy’s mother, she heard a shot from inside the car and a second shot which struck her sister, causing her to slump against the parked car behind her.”

“What happened next?” I asked her.

“Jake then jumped on the rear bumper of the Volkswagen and fired three more shots at the car. He turned the gun on me and the baby I was holding. I heard the gun click five times. I screamed, ‘Jake, Jake, don’t shoot the baby.’”

“He said, ‘I won’t shoot the baby.’ Then he took more bullets from his pants pocket and put them into the gun. He went back to my sister and shot her five more times.”

“Then what happened?”

“Jake got into the car and drove away. The police came a few minutes later.”

“Are you related to Jake Marino?”

“He was my niece’s husband.”

“Do you see him here today, Mrs. Johnson?”

“Yes, that’s him sitting next to his lawyer.”

I then rested the department’s case.

The attorney had only a brief cross-examination of Mrs. Johnson and attempted to show her the crime scene photos of the body on the parking lot pavement. I objected and the Trial Commissioner sustained my objection.

Marino’s attorney called only one witness for the defense. He asked Dr. Alan Shapiro, a forensic, to take the stand. After the attorney, through standard questioning, qualified him as an expert, the doctor testified that after examining Officer Marino, in his opinion the officer suffered from a mental disease or defect which prevented him from understanding the nature and consequences of his actions at the time of the shooting. He concluded that the respondent, our term for someone answering charges in the Trial Room, had a deep psychosis and lacked sufficient responsibility to answer for the conduct of which the department had accused him. The attorney rested the case for the respondent. 

 From a perusal of the criminal trial transcript I began to understand that the prosecutor had focused primarily on the psychiatric testimony. The doctor who testified for the people simply took issue with the defense expert as to whether Marino had some debilitating mental defect.

During my cross-examination of the doctor I asked one hypothetical question.  Attorneys may ask such questions of expert witnesses.

“Doctor, let me pose this hypothetical question to you as an expert witness. Assume that a person takes a box of ammunition for his weapon and places it in his trouser pocket. Then goes to the place where he knows he will find his victim. He then shoots two people, makes a moral decision not to shoot a third, reloads his revolver from the loose ammo in his pocket, returns to his second victim and fires five more rounds into her, thereby killing her. How would you characterize that behavior?”

The doctor said, “But those aren’t the facts…”

The Trial Commissioner interrupted him. “It’s a hypothetical question, Doctor. Just answer it as posed.”

“Well, in that case I would say that the person had slipped into a psychotic fugue, came out of it momentarily and then slipped back into the psychotic fugue.”

The Trial Commissioner knew what I meant. The prosecutor in Nassau County had not emphasized the issue of conscious criminal intent. The crimes took some planning to execute. The shooter did not act in a fit of momentary rage. His use of extra ammunition he brought to the scene ruled out a psychotic “fugue”.

When the Commissioner told him to step down from the stand, the doctor walked past my table. He paused to lean over and whisper in my ear. “If you had been the prosecutor in Nassau County, he’d be doing life now.”

The Commissioner found Marino guilty of all charges and ordered him dismissed from the department and forfeiture of all pay and benefits.    

 

John Bray is the author of four soft-cover novels, The Ballad of Johnny Madigan, a historical novel of the Civil War era, and The Confidential, a police procedural/thriller, and Code Name: Caleb, the sequel to Johnny Madigan and the newly released, Broken Force, a police thriller and a sequel to his Kindle book, Blue Heat.

 

 

 

 

 

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