Depraved Indifference j-3

by Joseph Teller

  Which meant he had some interviewing of his own to do.

  That evening, Jaywalker got a call from Judah Mermelstein. Drake had called him from jail, he said.

  "He told me he's finished writing out some statement you asked him to do."

  "Good," said Jaywalker.

  "What kind of statement?" Mermelstein asked.

  "Facts," said Jaywalker. "I want his account of everything he can remember, starting twenty-four hours before the accident and continuing all the way up to his arraignment."

  "Aren't you afraid it'll get read on the way out?"

  "Of course I am," Jaywalker admitted. "But I was also afraid to talk on their phones. I'm not exactly covered by lawyer-client privilege. And even if I was, I wouldn't trust law-enforcement types to play by the rules."

  "Really?"

  Over the phone, it was hard to tell if Mermelstein was truly shocked or was putting Jaywalker on.

  "Really," said Jaywalker, deciding to play it safely down the middle. "I used to be one of them, in a previous life."

  "How about I go in and visit Drake tomorrow?" Mer melstein suggested. "It's a schlep for you, but it's right around the corner from here. And it'll probably be easier for me to get the papers from him. You'd probably have to sign your life away, wait two weeks for approval, and submit to a body-cavity search."

  "Good idea," said Jaywalker.

  "The body-cavity search?"

  "I think I'll take a pass on that, thanks." But the exchange brought a smile to Jaywalker's face. Not only was Mermelstein offering to save him time and aggravation, but he'd demonstrated that he understood how dysfunctional bureaucracies operated, or failed to operate. And that he possessed a sense of humor, without which a lawyer was definitely in the wrong business.

  Or was Mermelstein's offer his way of saying he wanted to see Carter Drake's statement for himself? Perhaps Jaywalker's little homework assignment for Drake had somehow ruffled Mermelstein's feathers. Then again, he was Drake's lawyer, at least for the next seven or eight months or so, which made the statement every bit as much his business as it was Jaywalker's. No doubt Jaywalker was being paranoid in attributing an ulterior motive to Mermelstein. But he couldn't help it; paranoia was one of the occupational hazards of being a criminal defense lawyer. Sooner or later you learned to suspect absolutely everyone and everything. Giving fellow human beings the benefit of the doubt and presuming innocent motivation on the part of others were noble enough concepts, but they were concepts best left for juries.

  True to his word, Judah Mermelstein went in to see Carter Drake on Monday, and on Tuesday an Express Mail envelope arrived at Jaywalker's apartment. In it was a second envelope, bearing the hand-printed words From Carter Drake III. Privileged Communication For My Lawyers Only. The gummed seal of the inner envelope was still intact; Mermelstein hadn't even opened it before forwarding it to Jaywalker.

  One of the good things about being paranoid was how often you got to be pleasantly surprised by people.

  STATEMENT OF CARTER DRAKE III

  The day before the accident I had a meeting scheduled for 10:00 a.m. in Nyack, N.Y. The client I have there owns a bunch of real estate holdings, and he wanted to go over certain things with me. We worked straight through, and then we went to a nearby restaurant to get something to eat, since we had skipped lunch. From the restaurant, which was a sort of a sports bar with lots of TV sets tuned to ESPN and other sports channels, the client called his girlfriend and suggested she come over and meet us.

  About an hour later, she showed up with 2 of her girlfriends. By the time they got there, I had already had some appetizers and a couple of drinks. I was drinking martinis, but when the girls joined us they started drinking tequila, so I switched over. I never did get around to eating a real dinner. Instead I had maybe 3 shots of tequila, for a total of 5 drinks, no more.

  By the time I left it was just dark outside. I was able to drive okay, but somehow I missed the entrance for Route 9W heading south to NYC. When I reached Route 303, I decided to take it instead. I knew it would eventually take me to the Palisades Parkway and the G. Washington Bridge to the city.

  As I was heading south, I noticed that a wasp was flying around inside my car. That worried me, because I'm highly allergic to insect bites. My eyes close up, my mouth gets all swollen, and I have trouble breathing. I've ended up in emergency rooms a couple of times. I know I should have stopped the car and gotten out, but just when I was getting ready to, the wasp landed on the inside of my windshield, toward the middle but closer to the driver's side. I took a folded newspaper and I reached over and tried to kill it. In the process I must have swerved over the center line, because when I looked up, a white van was right in front of me, coming at me. I cut back sharply into my lane, and I thought the van passed safely by me on my left, so I continued on my way.

  I made it all the way home without any other problems, getting there about 9:00. I was pretty exhausted, and I went right to bed.

  The next morning, listening to the news, I heard about the accident and that the police were looking to question the driver of an Audi with a partial license plate the same as mine. So I contacted my lawyer Chet Ludlow and turned myself in. I wanted to explain everything that happened, but Chet insisted that I remain silent, so I did.

  When I went before the judge, I thought he'd let me go. Instead he set 5 million dollars' bail. And to make sure I couldn't post it, they froze all my accounts and other assets. So here I am.

  And that's all I know. Honest to God.

  Carter Drake III

  Jaywalker read it from start to finish, three times. As statements went, it wasn't bad. Sure, there could have been more detail, but that was to be expected, and would come over time. But substantively, it was fine. Drake's version of the events laid out the makings of a pretty good defense. Under federal law imposed upon the states, with the cost of noncompliance being the denial of billions of dollars in highway funding, there is now a nationwide limit on the amount of alcohol a driver of a motor vehicle can legally have in his blood. That limit is. 08 percent, or eight hundredths of a percentage point, calculated by weight. A good rule of thumb is that for every drink consumed by the average adult male, there's a corresponding blood alcohol elevation of. 02 percent. Women, for some reason other than a lower average body weight, experience a slightly higher elevation per drink, closer to. 03 percent. And it doesn't seem to matter whether that drink is a twelve-ounce bottle of beer, a four-ounce glass of wine or a single shot of something far stronger. Nor does it depend upon whether that shot is served straightup, over ice, or diluted with soda, juice, water or anything else, so long as the anything else is nonalcoholic.

  The math was easy enough. Five drinks would have put Drake at about. 10 percent over the limit, to be sure, but only by a bit. Hell, Jaywalker had seen readings in the. 20s and. 30s in his day. He'd even had a murder case where the deceased's blood had read out at. 45 percent on autopsy, or almost one part in fifty. Miraculously, the guy had still been standing, at least up to the point when his stepson had conked him on the head with a bottle. But that was an extreme case. Most people will pass out before they reach. 30 percent, lapse into a coma around. 35 percent, and die of acute alcohol poisoning around. 40 percent.

  Compared to those numbers, Carter Drake had been a model of sobriety.

  And the business about the wasp was terrific. It explained how Drake had ended up in the wrong lane. Even the part about not realizing the van had gone off the road was good. Not only did it provide a defense for knowingly leaving the scene of an accident, it also negated the inference that Drake had fled because he knew how far over the limit he'd been. And it made him less of a villain for not stopping to help or turning himself in more quickly.

  Of course, all that depended upon whether Drake's version of the events-regarding his drinking, the accident, and his failure to stop-was to be believed. If he was lying about any or all of those things, it was a different story.

  An
d that, Jaywalker knew, was one of the problems with the written statement. Writing his account at his leisure had given Drake time to ponder, to choose his words carefully, to sanitize things, emphasizing the good stuff and editing out things he thought might work against him. In short, to lie. Jaywalker would have much preferred hearing Drake describe the events orally and extemporaneously. He would have liked to be able to interrupt him, challenge him, even cross-examine him as to certain details. But that opportunity hadn't been his.

  It was one of Jaywalker's pet peeves about the legal system. The rich got out on bail and were free to meet with their lawyers behind closed doors in plush offices. The poor had to settle for whispered conversations over ancient telephones in communal visiting rooms, or for opaque written statements, totally devoid of the usual indicia of credibility. Not that Carter Drake was poor, by any standard. It was just that he'd been rendered poor, or the functional equivalent of it, by the combination of a five-million-dollar bail and an order freezing his assets.

  There had to be some poetic justice, Jaywalker decided, to that particular set of circumstances. Or at least some economic justice. The rich-and-powerful financier suddenly finding himself reduced to the status of an indigent defendant, no better than a pauper in the eyes of the law. The bleeding-heart liberal in Jaywalker found he kind of liked the idea. But the defense lawyer in him hated it, just as he'd always hated it on behalf of his truly indigent clients.

  For consolation, he knew that sooner or later he'd get a chance to sit down with Carter Drake in a secure setting, and have a face-to-face conversation with him, a conversation in which all of Drake's little tells w ould become apparent to Jaywalker's trained eye-the tiny tics, the involuntary traveling of the hand upward to the mouth, the sudden breaking off of eye contact, the unnecessary repetition of the question to buy time before composing an answer, the pregnant pauses at inappropriate moments, the almost comical pulling back at the first mention of the word polygraph.

  But all that would have to wait. For now, Jaywalker would have to settle for trying to locate a particular unnamed sports bar somewhere in the vicinity of Nyack, and seeing if Bartenders A and B, and Customers 1, 2, 3, 4 and 5 would verify Carter Drake's account or put the lie to him.

  Tomorrow.

  7

  THE END ZONE

  The sports bar, it turned out, was a place called the End Zone, located on the outskirts of Nyack, if one was willing to grant Nyack the benefit of doubt in terms of worthiness of outskirts. It struck Jaywalker as a sort of Hooters for not-quite-yet-beer-bellied ex-jock wannabes in their thirties and forties who'd happened upon the True Meaning of Life: since God had given each of them two eyes, He must've intended one for watching tits and the other for watching football on a screen the size of Connecticut. Though not necessarily in that order.

  He'd found the End Zone by going undercover-if you wanted to stretch things again. He'd dug out an old New York Giants jacket, pleased to discover it still fit him. He'd matched it up with an even older Yankees cap, and had completed the outfit with dirty sneakers and a pair of faded jeans. Then he'd headed up to Nyack and started stopping total strangers and asking them if they happened to know where a guy could find a nice place to sit, have a beer or two, and maybe watch a ball game. A few folks seemed put off by the ancient Mercury, but one or two actually admired it. "Cool wheels," said one young man. " Retro, huh?" And not only did Jaywalker receive near unanimity in advice to try the End Zone, but he even got company, a fellow who answered to the name Bubba, who'd been thinking of heading that way himself, and allowed that he'd be more than happy to climb in and navigate. Bubba had a baby face and an easy grin. He could have been twenty-five or forty-five, or just about anything in between. But either way, his best years were clearly behind him. To Jaywalker, he was a perfect case study in what happens when muscle meets malt and converts to marshmallow.

  Between the Giants jacket and Bubba's first-name familiarity with the End Zone's late-afternoon regulars, Jaywalker had little difficulty locating one bartender and two customers who'd been in the place nearly a month ago, when Carter Drake had been throwing back shots of tequila.

  "Might not'a remembered him," said the bartender, a large woman whom everyone referred to as Twiggy, irony apparently being no stranger at the End Zone. "But a few weeks back, a coupla detectives came in with a picksher of him, askin' a lotta questions. But the guy you wanna talk to is Riley. He kept the tab on the table the guy was at, and they had him testify at the whatchacallit, the grand union."

  "The grand jury?" Jaywalker asked.

  "Yeah, that's it."

  "Any idea where I might find him?"

  "Yeah," said Twiggy. "Stay put. He comes on at eight."

  So Jaywalker stayed right where he was, drinking Cokes, eating salted peanuts, and leaving a couple of twenties on the bar in front of him, the way he'd seen big tippers do it. And sure enough, just before eight o'clock, a second bartender materialized in front of him, a wiry Irishman who couldn't have gone more than five foot four, but looked like he could take anyone in the place.

  "You Riley?" Jaywalker asked him after a bit.

  "Who wants to know?"

  Jaywalker slid one of the twenties a few inches toward the back edge of the bar. "I'm a P.I.," he said, immediately regretting it. It made him sound like a bit player in a Raymond Chandler movie.

  Riley said nothing, but he didn't turn away, either. Jaywalker had made sure that he'd noticed the bit with the twenty. Not that he'd had to; he was pretty sure this was a guy who didn't miss much.

  "I understand the D.A.'s people talked with you," said Jaywalker. "And I was hoping you could tell me what you told them."

  Riley began drying glasses with a towel. "Who you workin' for?" he asked.

  It was a fair question. "Guy's wife," he said.

  Riley kept drying glasses. He was good at it.

  "The thing is," said Jaywalker, "they're looking to throw the book at him. Want to give him twenty-five to life."

  "Maybe he's got it comin'."

  "Maybe," said Jaywalker. "I'm not saying he doesn't. I'd just like to know, one way or the other. That's all."

  Riley glanced down at the bar. Jaywalker took it as a cue, and slid the second twenty toward the first one, until the two of them were touching.

  "He was drunk," said Riley, "if that's what you want to know."

  "How drunk?"

  "I cut him off, made him call home."

  This was news. Drake certainly had made no mention of it. Then again, maybe Riley was making it up, to cover his own butt. Jaywalker decided to call him on it. "Anyone show up to drive him home?" he asked.

  "Yeah," said Riley, "as a matter of fact. A kid showed up, maybe eighteen or nineteen, young enough looking that I woulda carded him. But even before they was out the door, your guy was startin' in with him, saying he was okay to drive hisself."

  More news.

  "Tell me," said Jaywalker, "before they took you into the grand jury, did they make you sign any papers?"

  "Papers. What kinda papers?"

  "Something called a Waiver of Immunity."

  "Nah," said Riley, "I didn't sign no papers. I'da remembered if I did."

  They talked for a little while longer. Drake and the other people at his table had not only been doing shots of tequila, they'd been downing a "designer brand" that went for fifteen bucks a shot. Riley reached behind him at that point and produced a bottle. Jaywalker paid little attention to the name, other than spotting the word oro, which he was pretty sure meant "gold" in Spanish. Instead he looked for, and found, the alcohol content. According the label, the stuff was 120 proof.

  As for the bar bill, the detectives had taken that, then had Riley decipher it during his grand jury appearance. There'd been no way for him to tell from it exactly how many of the shots had found their way into the man whose photo Riley recognized, but Riley had estimated the number at eight to ten.

  Walking through the End Zone's parking lo
t, Jaywalker replayed the conversation in his mind. According to Riley, not only had Carter Drake had more to drink than he'd admitted to in his written statement, but the shots had been stronger. Ordinary tequila ranged from 86 proof to 100, with proof being the alcohol content doubled. Drinking 120-proof tequila changed the formula a bit, and pushed Drake's blood alcohol content even higher, up around the. 20 percent range.

  The other noteworthy piece of information to come out of the discussion was that the D.A. hadn't asked Riley to waive his own immunity from prosecution before putting him into the grand jury. A bartender who continues to serve an intoxicated customer commits a crime, and if that customer drives off and kills somebody-as Drake had done-that crime becomes a very serious one. But by having Riley testify without a waiver, Abe Firestone was giving him a pass: he was now immune from prosecution for whatever law or laws he may have broken. Evidently Firestone had made a decision as to his priorities. He didn't want some bartender minimizing how much he'd served a customer in order to protect his own ass.

  Firestone had apparently wanted truthful answers out of Riley, even if they came at the expense of never being able to charge him for his contribution to the nine deaths the tequila had led to. It was a reasonable trade-off, Jaywalker knew. After all, Riley might have been guilty of serving his customers too much and too long, but he hadn't killed anyone. So, forced to choose, Firestone had decided he didn't want Riley.

  He wanted Drake.

  Jaywalker found his Mercury, unlocked it and got in. He would have liked to revisit the scene of the crash- he figured it couldn't be more than fifteen or twenty minutes away-but knew it would be too dark to make the detour worth it. He started the engine, put the car in Reverse, and had just backed out of the spot he'd been in, when the driver of another vehicle, off to his right, evidently decided he was taking too much time doing it. The headlights of the vehicle headed straight toward him, or at least straight toward the side of his car, and for an instant Jaywalker braced for a collision. Then, at the last possible moment, the other driver veered off sharply and, without ever braking, pulled out of the parking lot, noisily spraying gravel behind him.