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Authors: Sebastian Junger

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The two men were cops, and they would be there all night waiting for Roy Smith to come home.

THIRTEEN

A
TTORNEY BERYL COHEN
stood around five feet eight and had a broad face and a full head of disorderly hair that made him look as if he might just have stepped off an overnight train. His style of speaking—of thinking, perhaps—was offhand to the point of seeming distracted. He talked as if he were simultaneously listening to a conversation in the next room and juggling three different things he wanted to say. It was a sophisticated style that could be very effective. “Mr. Goldberg,” Beryl Cohen asked on the second morning of the trial, “in the photograph that you identified this morning, do you recall whether or not both shoes were on both feet?”

“No, sir.”

“Now, when you first saw your wife's feet,” Cohen went on, “did you move closer into the living room?”

“Yes, sir.”

“Was there some furniture to get around?”

“I think so. I'm not sure.”

“Did you push any furniture around to get in?”

“I doubt it.”

“Why do you doubt it?”

“Because I don't remember touching anything.”

One can imagine Cohen letting a moment or two pass to allow the supposed implications of this sink in with the jury. “Well, this business of touching anything,” he went on. “You testified yesterday at great length to not having touched anything from the time you discovered your wife to the time the police came.”

“I don't think I said it that way.”

“Well, I'm sorry then.”

“I didn't touch my wife.”

“Then you observed her full body, is that correct?”

“Sooner or later, yes.”

“Did you remain in a standing position, or did you kneel down?”

“For a moment, I am quite sure, I stooped. I—”

“You didn't bend your knees, or put your knees to the floor?”

“No, sir.”

“Your vision was directed to the scarf around her neck. Did you attempt to loosen it at all?”

“I touched nothing, sir.”

“Well, Mr. Goldberg, were you preserving the scene?”

“No, sir. What do you mean?”

“Mr. Goldberg, you don't understand what I mean by ‘preserving the scene'?”

“I don't understand.”

“Do you understand perjury? Mr. Goldberg, on March 9, 1917, you became an attorney-at-law, is that correct?”

“Yes, sir. Is that the date? Yes, sir.”

“I will ask you again, Mr. Goldberg. Were you preserving the scene in the living room by not touching anything?”

“Probably that was in the back of my mind, I don't know. I know—one thing I know, it was helpless.”

“You knew you were helpless?”

“To help, in the manner of helping. I saw no breathing.”

“Now, you were two or three feet away?”

“Yes.”

“You didn't touch her?”

“No, sir.”

“Did you know that she was dead?”

“As far as being a doctor, no, but—I saw no movement.”

“How long did you observe her before you left the living room?”

“Seconds.”

“Seconds?”

“As far as I know,” Israel Goldberg said, “it was seconds.”

At the core of every criminal trial is the fact that almost anything can be presented in two different ways—otherwise there would be no judges in the world, no courts, no lawyers, no juries. Roy Smith leaves the Goldberg house around three o'clock and strolls across the street to buy a pack of cigarettes. A defense attorney would say that this reveals a clear conscience: No one would be stupid enough to murder a woman in Belmont and then linger any longer than necessary in the area. Nonsense, the prosecutor would counter; that's just the kind of cold-blooded son of a bitch Smith was: He raped a woman and then had to have a smoke.

To some degree every trial is an exercise in stretching reality as far as it will go; whoever has to stretch reality least in order to explain events wins. Had Israel Goldberg significantly altered the murder scene, Beryl Cohen would have claimed that the evidence was tainted. In fact he did not touch the murder scene at all, which allowed Cohen to say that he was intentionally preserving the
scene—and, by implication, may have committed the murder himself. Either way Smith was a little closer to being exonerated. Cohen didn't have to prove that theory—he didn't even have to
believe
it—but he had to turn it into a reasonable possibility. If he succeeded in that and one juror couldn't get the idea out of his mind, the jury would be deadlocked and Smith would get a new trial. Ideally ten guilty men go free for every innocent man who gets locked up. That means that not only are there significant numbers of innocent people in prison, but that ten times that number of real criminals are set loose. Both ideas, in their way, are horrifying; Smith's fate depended in part on which one the jury found more horrifying.

Later in his cross-examination of Israel Goldberg, Cohen brought up a man named Harold Breaker, who worked at the gas station around the corner from the Goldberg house. Years earlier, Mr. Goldberg had taken to playing cribbage there several nights a week with other men in the neighborhood, though he stopped after his wife's murder. He still bought gas there, though, even though Mr. Breaker was going to be a witness at the trial. “When you'd be at Mr. Breaker's for these card games and conversations,” Cohen asked Goldberg, “there had to have been several men there, is that correct?”

“Yes, sir.”

“Do you ever recall a conversation about the Strangler?”

“No, sir, not that I remember, not in any specific—”

“You don't recall discussing the Boston Strangler, so-called?”

“No.”

“Mr. Goldberg, sometime after March 11, did you attend the funeral of Beverly Samans?”

The murder of Beverly Samans was one of the bloodiest, and one of the most recent, of the Boston stranglings. “Yes, sir,” answered Mr. Goldberg.

“She had been strangled in Cambridge, is that correct?”

“Yes, sir.”

“Do you recall whether she had been strangled with a silk stocking?”

“I don't know what kind—probably a stocking.”

“You attended her funeral?”

“Not the funeral, no—at the school they had a memorial service.”

“For Beverly Samans?”

“Yes, sir.”

“You didn't know her?”

“No, sir.”

In some ways it was extraordinary that Goldberg was managing to address Cohen politely or even to answer him at all. Here was a man, after all, who was all but accusing him of killing his own wife; between different men in different circumstances, that conversation itself would have ended in violence. If, as a defense strategy, it was a distasteful one, that was because Cohen was blocked from knowing almost anything about the prosecution's case and so was unable to develop a plausible rebuttal. Under the laws at the time, pretrial discovery—where the prosecution is required to turn information over to the defense—was almost nonexistent. Today, if a prosecutor cuts a deal with one defendant in exchange for testimony against another, or if a crime lab turns up DNA evidence at a crime scene, the defense is entitled to know about it—the information is “discoverable.” The idea behind pretrial discovery is that the court theoretically has no interest in convicting someone with evidence that cannot withstand the scrutiny of the defense. “You don't conduct trial by ambush,” as one Massachusetts judge put it. “You don't play hide-the-ball.”

In Massachusetts in 1963, however, pretrial discovery was strictly
at the discretion of the court. So months before the trial, Beryl Cohen went before the court to request, among other things, that he be allowed to inspect the crime scene, that he be granted access to the autopsy and crime lab reports, that he be given a transcript of the grand jury minutes and of Roy Smith's interrogation in the Belmont police station, and that the prosecution provide the exact time and manner of Bessie Goldberg's death. “A trial in which a man's life is at stake should be more than a mere contest of wits,” he had told Judge McCaulay, who presided over the pretrial hearing. “The fundamental purpose of a criminal trial is not solely to convict the accused. The truism should be recognized that ‘The truth should have nothing to fear from the light.'”

By 1979 everything Cohen was asking for would have been granted automatically. It is thought that if the defense has access to every component of the prosecution's case and
still
can't rebut it, then an innocent man is almost certainly not going to prison. Cohen was allowed to inspect the crime scene accompanied by a Belmont police officer, he was allowed to inspect the autopsy report, and he was given something called a bill of particulars, which was supposed to set out the broad outlines of the commonwealth's case. All of Cohen's other motions were denied. As a result Cohen was less able to develop a rebuttal to the commonwealth's case and instead had to develop his own. Inevitably that would mean suggesting that Israel Goldberg could have committed the murder.

It would also mean suggesting that Roy Smith was primarily a suspect because of his race.

 


MR. PIZZUTO
.”

“Yes.”

“Do you recall the first time you learned what happened to Mrs. Goldberg?”

“Oh, I would say about five o'clock.”

“Did you discuss it with a great many people?”

“No, I never discussed it with anybody.”

“Never discussed what?”

“I didn't know nothing about the case, didn't discuss anything with anybody.”

“There was no case then.”

“Well, you are just saying that—”

“Just let me ask the questions. If my question is worded improperly you can tell me that and don't answer it.”

Louis Pizzuto was one of the commonwealth's most important witnesses because he—and he alone—claimed that Roy Smith looked agitated and nervous as he walked away from the Goldberg home. Without Pizzuto, Smith was just another man walking down the street. Pizzuto was the man who owned a sub shop called Gigi's. Around three o'clock on the afternoon of March 11, he had seen Roy Smith walk past his shop on the opposite side of Pleasant Street. A black man was not a common sight in Belmont, so Pizzuto got up from his seat and walked to the doorway to follow Smith's progress. He watched Smith go into the pharmacy and then emerge a few minutes later and continue walking up Pleasant Street toward the bus stop. According to Pizzuto, Smith glanced behind him continually as he walked. Sometime later, Pizzuto left his shop and walked across the street to the pharmacy.

Pizzuto was a big man and as he testified he pulled a handkerchief out of his pocket and began to dab the sweat off his face.

“You asked the kid in the drug store,” Beryl Cohen went on, “whether the colored fellow went in there?”

“Yes.”

“Is that what you said to him? Did you say, ‘Was there a colored fellow in there buying cigarettes?'”

“I said, ‘Did a colored fellow come into the store?' I didn't ask him ‘cigarettes.'”

“Did you say ‘colored fellow'?”

“Yes.”

“That was Kenneth Fitzpatrick you were talking to?”

“I don't know his name, he works in the drugstore.”

“Did you say to Ken Fitzpatrick, ‘Did you see the big darkie?'”

“No, I did not.”

“You didn't say that?”

“I might have said ‘negro.'”

“You might have said ‘negro.' Did you say ‘nigger'?”

“Well, I might have said ‘nigger.'”

“You might have said ‘nigger.' Did you say, ‘the big darkie'?”

“I wouldn't say it.”

“I'm asking you
whether
you said it.”

“Well, yes, I think I said it.”

“You did say it. What did you say?”

“‘Was that nigger in your place.'”

“Did you say, ‘Big nigger'?”

“No, I didn't say no ‘big nigger.'”

Pizzuto had alerted the Belmont police that he'd seen a black man walking down Pleasant Street, but he'd alerted them
before
he knew there'd been a murder nearby; he'd alerted them simply on principal after noticing police cars in the area. Everyone on Pleasant Street, it seemed, had noticed Smith walk by, and perhaps everyone on Pleasant Street had had the same thought: What's that black guy doing out here? Not everyone, however, was as forthright about it as
Pizzuto. Belmont was a sophisticated town where few people would openly say anything racist, but that didn't mean they weren't thinking that way. The merchants in Belmont Center or the bankers up on the Hill might have been just as suspicious of Smith as Pizzuto was, but most would never have owned up to it.

BOOK: A Death in Belmont
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