Drug traffickers, murderers, wife beaters, rapists, child molesters—Berger will take any client who has a fat wallet or a story that can be sold to a publisher or the movies or preferably both, such as Diego Pena. He’s seen versions of himself portrayed by A-list actors, some of whom have come to him for advice, which he sums up in the simple phrase “Be a total asshole.”
It has been said that the only time any of Berger’s clients confess is on Oprah—and then he has the confession tossed out.
Berger doesn’t bother to hide his wealth—he flaunts it. Multithousand-dollar custom suits, custom shirts, designer ties, designer shoes, expensive watches. He comes to court in Ferraris or Maseratis, cars that were given to him, Malone figures, in lieu of payment. He has the penthouse on the Upper East Side, the summer place in the Hamptons, the ski condo in Aspen that was signed over to him by a grateful client who now resides in Colombia and whose deal doesn’t allow him to come back to the United States anyway.
Malone has to admit that Berger is very good at what he does. He’s a great paper lawyer, a genius at motions (especially to exclude), a canny and vicious cross-examiner and a master of opening statements and closing arguments.
The biggest secret to his success is that he’s dirty.
Of this, Malone is convinced.
He’s never been able to prove it, but Malone would bet his left testicle that Berger has judges on the arm.
The other filthy secret of the so-called justice system.
Most people don’t realize it, but judges don’t make a lot of money. And they usually have to spend a lot to get the robe. The mathematics of that means that a lot of them can be bought.
It doesn’t take a lot to swing a case—a motion granted or denied, evidence excluded or admitted, testimony allowed or stricken. Little things, small things, arcane details that can spring a guilty defendant.
The defense bar knows—shit, everyone knows—which cases they can buy. One of the most lucrative judicial posts is on the scheduling docket; for the right money you can pay to have a case assigned to the judge you’ve already purchased.
Or rented, anyway.
Malone and Hinman do their dance on direct examination and then they adjourn for a few minutes before Berger starts his cross. Malone goes to take a shit. When he comes out of the stall to wash his hands, Berger is at the next sink.
They look at each other in the mirror.
“Detective Sergeant Malone,” Berger says. “What a pleasure.”
“Hey, Gerry Burger, how’s it hanging?”
“Oh, it’s hanging just fine,” Berger says. “I can’t wait to get you on the stand. I’m going to eviscerate you, humiliate you, and show you to be the lying, corrupt police officer that you are.”
“You buy the judge, Gerry?”
“The corrupt see only corruption,” Berger says. He dries his hands. “See you on the stand, Sergeant.”
“Hey, Gerry,” Malone calls after him. “Your office still smell like dog shit?”
Malone and Berger, they go way back.
He takes the stand and the bailiff reminds him that he’s still sworn in.
Berger smiles at him and says, “Sergeant Malone, does the phrase ‘testilying’ mean anything to you?”
“Generally.”
“Well, generally, what does it mean, around police circles?”
“Objection,” Hinman says. “Relevance.”
“He may answer.”
“I’ve heard it in reference to police not telling the exact truth on the stand,” Malone says.
“The exact truth,” Berger says. “Is there an inexact truth?”
“Same objection.”
“Where is this going, Counselor?” the judge asks.
“I’ll develop, Your Honor.”
“All right, but do so.”
“There are different points of view,” Malone says.
“Ah.” Berger looks to the jury. “And isn’t it true that officers’ point of view is that they ‘testilie’ in order to convict a defendant that they feel is guilty, regardless of the admissible evidence?”
“I’ve heard it used in that context.”
“But you’ve never done it.”
“No, I have not,” Malone says. If you don’t count a few hundred exceptions.
“Not even on your last answer?” Berger asks.
“Argumentative!”
“Sustained,” the judge says. “Move on, Counselor.”
“Now,” Berger says, “it’s your testimony that you did not have probable cause to enter the apartment on suspicion of drugs, is that correct?”
“Yes.”
“And it’s your sworn testimony that you did have probable cause based on your seeing my clients’ associates carrying weapons. Is that correct?”
“Yes.”
“You saw the weapons.”
“They were in plain sight,” Malone says.
“Is that a yes?”
“Yes.”
“And absent your seeing those weapons ‘in plain sight,’” Berger says, “you had no probable cause to enter that domicile, is that correct?”
“That is correct.”
“And when you saw those weapons,” Berger says, “they were in the suspects’ possession, is that correct?”
“Yes.”
“I’d like to enter into evidence this document,” Berger says.
“What is it?” Hinman asks. “We haven’t been notified of this.”
“It just came into our possession, Your Honor.”
“Both counsel approach the bench.”
Malone watches Hinman go up. She flashes him a WTF look, but he doesn’t know what the fuck, either.
“Your Honor,” Berger says, “this is an evidence voucher dated 5/22/2013. You’ll note it logs in a MAC-10 pistol with the serial number B-7842A14.”
“Yes.”
“It was vouchered into the evidence room of the Thirty-Second Precinct on the date recorded. The Thirty-Second is, of course, in Manhattan North.”
“What’s the relevance of this?”
“If the court admits,” Berger says, “I will demonstrate relevance.”
“Admitted.”
“I object,” Hinman says. “We were not given access to this document—”
“Your objection is preserved for appeal, Ms. Hinman.”
Berger goes back to the cross-examination. He hands Malone a document. “Do you recognize this?”
“Yes, it’s an evidence voucher for the MAC-10 pistol removed from one of the suspects.”
“Is that your signature?”
“Yes.”
“Will you read for us the serial number of that weapon?” Berger asks.
“B-7842A14.”
Berger hands him another document. “Do you recognize this?”
“It appears to be another evidence voucher.”
“Well, it doesn’t ‘appear’ to be,” Berger says. “That’s what it is, isn’t it?”
“Yes.”
“And it vouchers in a MAC-10 pistol, isn’t that right?”
“That’s correct.”
“Please read us the date of that voucher.”
“May 22, 2013.”
Goddamn it, Malone thinks. Goddamn it, they assured me the weapons were squeaky clean.
Berger is walking him toward a cliff and there’s no stopping.
“Now please read us the serial number,” Berger says, “of the MAC-10 pistol seized on May 22, 2013.”
I’m totally fucked, Malone thinks.
“B-7842A14.”
Malone hears the jury react. He doesn’t look over, but he knows they’re staring daggers at him now.
“It’s the same weapon, isn’t it?” Berger asks.
How the fuck did he get this voucher? Malone wonders.
Like everything else, dummy. He bought it.
“It seems to be.”
“So,” Berger says, “as an experienced police officer, could you tell us how the same weapon could be locked away in the Thirty-Second Precinct evidence room and then magically appear ‘in plain sight’ in the suspects’ hands on the night of February 13, 2015?”