In order to minimize that risk, Richard Kelley, as head prosecutor, bore something called the burden of production, which meant that he had to produce for the jury all evidence against Roy Smith; and the burden of persuasion, which meant that he had to assemble that evidence in a way that showed Roy Smith’s guilt beyond a reasonable doubt. It was up to Judge Bolster to decide if Kelley had presented enough evidence for the case to go to a jury, and it was then up to the jury to decide whether that evidence showed that Smith was guilty. Once a jury has found someone innocent of a charge, they are innocent of it forever; a defendant could deliver a full confession to the police after his acquittal and still never be retried for the crime.
Furthermore Kelley had to prove not only that Roy Smith had killed Bessie Goldberg but that he had intended to, and that he had been in a criminal state of mind while he was doing it. In the United States one cannot be punished for merely thinking about something, and one cannot be punished for doing something without an accompanying criminal thought. You can fantasize all you want about committing murder, you can go out and buy a gun, you can draw a bead on someone from your attic window, but until you pull the trigger you have not committed a crime. There is no crime without an act—without, in fact, some kind of muscular contraction. On the other hand, if you trip while carrying a gun and accidentally shoot someone, you cannot be charged with first-degree murder because malice did not accompany the act. As Supreme Court justice Oliver Wendell Holmes, Jr., observed about criminal intent, “Even a dog distinguishes between being stumbled over and being kicked.”
Roy Smith, on the other hand, was required to do absolutely nothing in his defense. He did not have to testify on his own behalf. His attorney did not have to present other witnesses. His attorney did not have to present evidence. His attorney did not have to make an opening statement or cross-examine the state’s witnesses. Theoretically, at least, Smith and his attorney could remain absolutely mute until the closing arguments without any adverse affect on the jury’s verdict. The case was Kelley’s to make or fail on the merits of his own evidence, and the jury was instructed by Judge Bolster not to draw any inference whatsoever from the manner of Roy Smith’s defense.
Not only that, they were also instructed not to draw any conclusions from the fact that he had been arrested in the first place, that he had been held on bail, that he had been indicted by a grand jury or that he currently sat before them in the dock. Absolutely nothing that had happened up until this point—and nothing that the prosecutor said at any point in the trial—could be considered evidence against Roy Smith. Smith was a blank slate; he was exactly the sort of blank slate that the jurors themselves would wish to be if the roles were ever reversed, and they found themselves in the dock instead of him.
PROSECUTOR KELLEY HAD a case on his hands that was both utterly straightforward and oddly elusive. On the one hand, Smith was a longtime petty criminal with several assault charges on his record who was the last known person to have seen the murder victim alive, and who had left the victim’s home less than an hour before the body was found. On the other hand, not one shred of physical evidence linked Smith to the body, and not one person saw him do anything wrong. People saw him go into the Goldberg home. People saw him leave the Goldberg home. People saw him take the bus, buy his liquor, ride around town, do whatever he did, but no one saw him kill Bessie Goldberg. What happened at 14 Scott Road that afternoon could never be determined with absolute certainty, so a jury of peers was required to decide what they thought happened. This was exactly the kind of case that the great, awkward loops of logic employed by the law are designed to resolve. Roy Smith’s case was entirely circumstantial but nearly airtight, marred only by the fact that he refused to admit that he did it. A jury would have to step in and say it for him.
The commonwealth called an enormous number of witnesses to the stand. They called every single person who had shown up at Dorothy Hunt’s apartment that night, including her nine-year-old daughter, Barbara Jean. They called the driver of the bus that Smith took back from Belmont. They called the clerk he bought liquor from; the pharmacist he bought cigarettes from; the pharmacist’s other customer, who watched the transaction; and the milkman who dropped milk off at the Goldbergs’ house. They called the cops who responded to the emergency call, the medical examiner who pronounced Bessie Goldberg dead, the doctor who examined her body and testified that she had been raped, and the woman who dispatched Smith to the cleaning job. They called every child playing on Scott Road that day, they called Israel and Leah Goldberg, and they called a fingerprint expert who testified, among other things, that one of the police officers had managed to leave his fingerprints at the crime scene.
The commonwealth, in fact, called so many witnesses—almost fifty—that all of Smith’s acquaintances were taken. Cross-examination, when an attorney has the chance to ask questions of a hostile witness, has been described as the “greatest legal engine ever invented for the discovery of the truth.” An attorney conducting a cross-examination has four basic options: He can challenge the credibility of the witness; he can show that the witness made an honest mistake; he can spin damaging testimony in his client’s favor; or he can ignore the testimony entirely. One of the strengths of cross-examination is that it is inherently adversarial, but many of the state’s witnesses knew Roy Smith, so Beryl Cohen would not necessarily want to become adversarial with these people.
What he could do, however—and the prosecution couldn’t—was ask leading questions. A leading question is a question whose answer is suggested in its phrasing: “Is it not true, Mr. Goldberg, that you arrived home around four o’clock in the afternoon?” A good trial lawyer asks leading questions he already knows the answer to. A good trial lawyer asks leading questions that result in a long series of “yes” answers from the witness. A good trial lawyer strings these “yes” answers together into an interpretation of events that show his client to be innocent. In the hands of a good trial lawyer, a hostile witness simply becomes a conduit for the defense to offer its version of events to the jury.
The fingerprint man was the first witness of real consequence, and the first one who perhaps raised a flicker of doubt in the minds of the jury. He was a state police officer named Arthur Morrison who led the jury through a tortuous explanation of the science of fingerprint analysis and concluded that Roy Smith had, in fact, been in the Goldberg house that day. Moreover, Smith had at some point touched a mirror above the mantelpiece near where Bessie Goldberg’s body was found.
This would have been devastating testimony in a trial where the accused had denied having been at the murder scene, but that was not the case. Smith had readily admitted to having been at the Goldberg home, so the great lengths to which the commonwealth went to prove his presence were in some sense wasted effort. Under cross-examination Beryl Cohen coaxed from Officer Morrison the fact that not only had another police officer contaminated the scene with his own prints, but that Roy Smith’s prints had appeared neither on Bessie Goldberg’s handbag nor on her jewelry box. That seemed odd, considering that the primary motivation for the murder was alleged to be robbery. Furthermore Officer Morrison hadn’t thought to dust the front and back doorknobs for prints, which might have shown whether Smith had let himself out of the house or not. Smith told the Belmont police that Bessie had shown him out at the end of the day; one palm print on a doorknob would virtually have sealed his fate.
Lacking incontrovertible evidence or damning testimony, a trial inevitably turns into a popularity contest, and this one was no exception. You cannot be found guilty for who you are, only for what you have done, but who you are unavoidably affects what the jury thinks you are capable of doing. Roy Smith was not going to take the stand in his own defense because, under the laws of the day, that would make him open to questioning from Richard Kelley about his criminal record, and Kelley would certainly bring up his occasional capacity for violence. Not only was it an all-male jury, it was an all-white jury—the resul
t not of racism but of the fact that jurors were drawn from voter lists—and the idea of a black ex-con running amok in the suburbs would be an idea that these jurors would find deeply disturbing.
So Roy Smith would not testify; Roy Smith would sit idly in the dock in the suit he’d bought for the occasion watching a roomful of white people argue over his fate. If Kelley could not bring out Smith’s terrible past, though, he could bring out his somewhat shabby present. The first chance he had to do that was with Dorothy Martin, who assigned temporary jobs at the Division of Employment Security and had sent Roy Smith out to Belmont on the morning of March 11. “Would you tell the jury,” Kelley asked her, “what you said, what he said and what was done at that time?”
“I asked him why he hadn’t come earlier,” Mrs. Martin said. “And he told me he went to another customer’s house, but she wasn’t home. I am always detecting odors, so I asked him if he had been drinking. He said no, so I leaned a little forward and he leaned a little backwards. And I said, ‘You know, we wouldn’t send anyone out who’s been drinking.’ He said he hadn’t, so I sent him out.”
The incident stuck in Mrs. Martin’s mind, and around four o’clock that afternoon she picked up the phone to call the Goldberg house. She wanted to know how Roy had worked out, and she also had another job to give him. Just as she was reaching for the phone, it rang. It was a police officer, though he didn’t identify himself as such. He just asked Mrs. Martin if she had sent a man out to the Goldbergs’ to do some cleaning. Mrs. Martin said that she had, and went on to ask if she should send Smith on other jobs.
I don’t know, the man said and hung up. Puzzled, Mrs. Martin called back, but no one answered. She checked the line with the operator and kept calling until eventually Israel Goldberg answered.
Richard Kelley: “Now when you spoke to Mr. Goldberg late in the afternoon of March 11, 1963, could you describe to the jury the manner of his speech?”
Mrs. Martin: “He was highly excited, emotional, and I identified myself and asked him was Roy Smith there. He said, ‘Who is that man you sent out?’ He said, ‘She’s dead!’ I didn’t get it, and he said again, ‘She’s dead!’ He screamed and said, ‘He killed her!’”
Mrs. Martin said that at that point she started screaming as well.
Soon after Mrs. Martin stepped down, Richard Kelley called Israel Goldberg himself to the stand. If Roy Smith, in the minds of some, might have seemed a likely murderer, Israel Goldberg must have looked exactly the opposite: a short elderly Jewish man who, according to testimony, wore a fedora and overcoat in cold weather and was careful not to step off the pavement when it snowed, so as to keep his shoes dry. Richard Kelley waited for Mr. Goldberg to settle himself on the stand and then led him, question by question, through the last day of his wife’s life.
Kelley took him through his workday in Chelsea, where Goldberg ran a small office building that he had inherited from his father. Kelley took him home at the end of the day down Route 60, stopping for twelve minutes at O’Brien’s Market, in Medford, to buy frozen peas and frozen orange juice and frozen succotash and frozen string beans, French-style. It must have been unspeakably painful for Israel Goldberg to recall this day in sufficient detail to convict the man accused of murdering his wife, but Kelley did not let up on him. Kelley made Mr. Goldberg park in his driveway and climb out of his car and take the packages of frozen food in his arms. Kelley made Mr. Goldberg say hello to the children playing kickball in the street and walk up to the front door and put his keys in the lock. Kelley made Mr. Goldberg open the door and step into his house and then walk into the kitchen and start putting his purchases away.
Mr. Goldberg had seen something, though—he’d seen something on his way in. Out of the corner of his eye, Mr. Goldberg explained, he’d noticed that the hose of the vacuum cleaner was on the floor in the living room and that the furniture was out of place. He hadn’t thought much about it because it simply meant the house was being cleaned, which was as it should be, but something was wrong. If the house was being cleaned, Israel Goldberg thought as he unloaded his frozen vegetables, then why was it so quiet? And if the house was done being cleaned…why was the vacuum cleaner still out?
“I ran into the bedroom,” Israel Goldberg told the court. “I dropped my overcoat at the foot of the stairs. And I was hollering.”
Kelley: “What were you saying?”
“‘Bess! Bess! Bess!’ And I walked into the living room and I had gone in four or five steps and I noticed my wife’s feet. I thought she had fainted and I didn’t know what to do but I rushed to her and then I noticed—”
Kelley: “You saw what?”
“Just her panties showing, up to her waist. I didn’t know what to do, I noticed her mouth, a tilt—there was a slight tilt and her mother had had a shock, and I thought she’d had a shock and it seemed puffed, a slight tilt, a puff, I think. I just stood there and then I noticed—I had never seen my wife wearing a scarf and she had—it looked like a beige or brown flimsy material around her neck a big bow. And I was wondering why she was wearing it.”
In fact Israel Goldberg was looking at the stocking that had been used to strangle his wife. “What did you do then, sir?” Kelley asked.
“I waited a second, trying to figure it out,” said Israel Goldberg. “And I didn’t know what to do. I ran to the kitchen. And I telephoned the police.”
TWELVE
ROY GOT OUT of Billerica for the second time in September 1962, and almost immediately he and Carol decided to move out of their Cambridge apartment to a bigger one in Boston. Shortly before they moved, a friend named Dorothy Hunt stopped by to see if she might move into the apartment that Roy and Carol were vacating on Marvin Place. Dorothy was a black woman from the Deep South who was raising two little girls on a teacher’s salary and living in essentially slumlord housing a few blocks away. She and Roy had met when he moved to Boston, and they had lived with or near each other ever since. Roy had become particularly close Dorothy’s younger daughter, Barbara Jean, calling her “Little Sister,” because she shared a name with his own younger sister. He carried a photograph of her in his wallet and eventually asked Dorothy if he could be her godfather.
“He was a southerner and I’m a southerner—I’m from Gastonia, North Carolina,” says Dorothy Hunt, now in her living room in a second-floor apartment in the town of Somerville. She is soft-spoken and dignified in the way that old people who have outlived a lot of bad history often are. “Sometimes the southerners would get together, you know—that southern hospitality. If you overstayed you could sleep over, no big thing. My mother told me, ‘You never turn anybody away. Don’t turn anybody away at night because anything can happen to them…wait till the daytime so they can see their way.’”
Dorothy wound up living briefly on Marvin Place before moving to a grim little flat-roofed building on Brookline Street. It had clapboard-style tin siding and a brick facade and shallow bay windows that her daughters could look out to see if any of the neighborhood children were playing on the street below. On the bottom floor was a tavern called the Brookline Café, and the other two floors had tenants. Around five o’clock on the afternoon of March 11, 1963, Roy Smith climbed the three flights to Dorothy’s new apartment and found her in the kitchen cooking dinner. He had not seen her since she stopped by Marvin Place looking for a place to live. In her living room were two men Roy knew from his days in the neighborhood, Ronnie Walcott and Ronnie Clark. Walcott was black and Clark was white, and they were drinking buddies known on the Coast as “the Two Ronnies.”
In the days after the murder, police investigators interviewed virtually every person who had contact with Roy Smith; as a result his movements on March 11 are known almost to the minute, and the conversations he had—and that others had about him—are recorded word for word. Sitting with Walcott and Clark was a young white woman named Peggy, who had arrived a few minutes before Roy. She baby-sat for Dorothy and was dating Ronnie Clark—“White Ronnie”—who happened
to live nearby. Peggy had fled home at fifteen because her parents objected to her socializing with black boys, and since then she had given birth to a mixed-race child and, as a result, been committed to a state-run school for wayward girls. Now she was eighteen and living in and out of Dorothy’s apartment until she got her feet on the ground. She was the youngest person there that night and the only one who did not drink.
By coincidence Peggy had noticed Roy Smith on the street several minutes earlier and remembered him when he walked in the door. They said hello to each other, and Roy went into the kitchen to talk to Dorothy. He had a half-pint of Schenley’s whiskey and two quarts of beer with him, and he opened up the Schenley’s and asked Dorothy if she’d seen his girlfriend recently. Roy said he hadn’t heard from her in days and that the only way she could hurt him was by taking Scooter away. Dorothy told Roy she hadn’t seen Carol in months, which was the truth, and went on to complain that her television had just stopped working. There was sound but no image, which wasn’t keeping the Two Ronnies from listening to it as if it were a radio.
Roy offered to lend her a spare television that he had at his apartment in Boston. While they were discussing how to get over there, a black man named William Cartwright showed up. Roy had never met Cartwright before, but he put two dollars in his hand and asked him to run out and buy a half-pint of Old Grand-Dad. That was quickly polished off, and next time it was Roy who walked up Brookline Street to Boyer’s Liquors and asked for another half-pint of Schenley’s. It was the second half-pint he’d bought in the past hour; he gave the clerk two dollars and got forty-three cents back, and after he walked out, the clerk shook his head and said to the other man stocking liquor in the back, “If it was me I’d ’a bought a pint.”
Roy went back to the apartment, and they all started in on the second Schenley’s. Roy had been drinking for three hours, and Ronnie Clark had been drinking steadily all day, having started after breakfast. By eight o’clock they were out of whiskey again, and Roy headed out in search of more. Instead of going to Boyer’s, he walked up Mass. Ave. and pulled open a heavy wood door on a low brick building and stepped into the smoky darkness of Dan Stack’s Lunch.