Depraved Indifference j-3

by Joseph Teller

  "Sorry," said Jaywalker. He decided to spare Carter the lecture about the need for preparation and the importance of the passage of time in calming the community's anger. He realized he was beginning to truly dislike the man, and that was bad. Not in and of itself, there being no requirement that he and his client be buddies. No, it was bad because if Jaywalker didn't like Drake, chances were the jurors wouldn't, either. And a jury that disliked a defendant would find it that much easier to convict him.

  "I met with the D.A.," said Jaywalker.

  "That clown?"

  "He refuses to offer you anything less than the murder charge. Though he says he'd be okay with the minimum sentence."

  "Which is…?"

  "Fifteen to life."

  Drake laughed. But it was a bitter, snorting laugh. A dislikable laugh. "Who told you to ask him?" he wanted to know.

  "Nobody," said Jaywalker. "It's part of my job. Just as it's part of my job to communicate his response to you."

  "Do me a favor?"

  Jaywalker nodded tentatively.

  "Don't go begging for me. Not to the D.A., not to the judge. I want a trial, T — R-I-A-L. Is there any part of that word you don't understand?"

  Dislikable? Try loathsome.

  "Okay," said Jaywalker, doing his best to ignore the sarcasm. "And at that trial, would you like to take the witness stand?"

  "Of course I would. Who else is going to explain what caused the accident?"

  "You mean the wasp?"

  "Exactly," said Drake.

  Jaywalker filled him in on what Concepcion Testigo had told Nicolo LeGrosso, that the car had stayed in the wrong lane for quite some time. "The wasp, in other words, may not fly."

  "He's lying," said Drake. "It was a momentary thing. I was there."

  "What about your wife?"

  "What about her?"

  "Would you like her to testify?"

  "About what? What could she say?"

  "That you didn't seem drunk to her? That you were able to start your car without any apparent difficulty, and pull out of the parking lot smoothly? That for as long as she followed you, you weren't speeding or weaving or anything like that?"

  "I guess so."

  "And your son?" Jaywalker asked.

  "Leave him out of it."

  "Why?"

  "What could he add?"

  "That he offered to drive your car, but you wouldn't let him."

  "He's only seventeen," said Drake. "All he's got is a learner's permit that's no good after dark."

  "Exactly," said Jaywalker. "You were protecting him. The jurors may find it in their hearts to like you a little bit for that."

  "What is this, a personality contest?"

  "In a way."

  "Can't I explain those things myself?"

  "You can," Jaywalker conceded. "But we call that kind of testimony self-serving. It means more when someone else says it."

  "Even my son?"

  "Especially your son."

  Drake seemed to think about that for a few seconds, before saying, "No, leave Eric out of it. He and I, we have issues. I don't trust him to be able to pull it off."

  Jaywalker shrugged. There'd be plenty of time to revisit the matter, he knew. Still, it was a curious position for Drake to take. Here he had two witnesses who were in a position to help him, if only tangentially. One he was lukewarm about, the other adamantly negative.

  Was it possible, Jaywalker found himself wondering on the drive home, that Carter Drake was in a hurry to go to trial and not looking for help because he was so consumed with guilt that he wanted to be convicted? If so, that would be a first for Jaywalker. Sure, back in his Legal Aid days he'd stood up for a wino or two who'd requested a couple of nights in jail to dry out, and a homeless guy who'd copped out to ninety days one December, just so they'd send him to Rikers Island and give him "three hots and a cot" till the worst of winter was over. But twenty-five to life? Nobody wanted that kind of time. Nobody but a total lunatic.

  "I need to talk with Eric."

  "I thought Carter said to leave him out of it."

  "He did," said Jaywalker. "That's why I need to talk with him."

  They were sitting in her hot tub, or Jacuzzi, or whatever the thing was called. It took up half her bathroom, held about fifty thousand gallons of water, and had more jets than Boeing. But it did wonderful things to Amanda's nipples, which in turn did wonderful things to Jaywalker.

  "He's off at school," said Amanda. She explained that Eric was on his sixth high school in as many years. This particular one was a boarding school up in Massachusetts. It was what they called an alternative school, she said, leaving it at that.

  "It's still August," Jaywalker pointed out.

  "They start early."

  "When will he be home next?"

  Amanda shrugged. " Home is something of a flexible concept for Eric," she said. "At any given time, it might mean here, or his father's apartment, or his grandmother's, or any of several friends with kindhearted parents."

  "What I mean is, when will he be physically in the city, so I can meet with him?"

  "Thanksgiving? Christmas, more likely."

  Which would be three weeks before trial. "How long does it take to drive up there?" he asked.

  "Two and a half, three hours. But they don't allow visitors."

  Jaywalker frowned. "Just how alternative is this school?" he asked.

  "Let me put it this way," said Amanda. "It was that or a secure juvenile facility until his twenty-first birthday. Okay?"

  "Okay."

  "Now I have a question," said Amanda.

  Jaywalker waited.

  "Is that some kind of periscope you've got there? Or are you trying to tell me you're in the mood again?"

  A week later, Nicolo LeGrosso showed up at Jaywalker's apartment with a thick packet of medical records. He'd subpoenaed three physicians, two emergency rooms, a walk-in clinic and a pharmacy. They in turn had supplied him with over a hundred pages of documents attesting to the fact that Carter Drake III was indeed highly allergic to insect stings and would go into full anaphylactic shock unless treated promptly with epinephrine, better known as adrenaline. One of Drake's doctors had prescribed an EpiPen for him, a self-contained device he was to keep with him at all times in case of emergency.

  "Good stuff," said Jaywalker. "Anybody willing to testify?" Getting a doctor to show up in court, he knew, was a little bit like getting a cat to show up for a bath.

  "Yeah," said LeGrosso. "The guy who wrote the scrip for the works."

  Nicky tended to talk like the ex-detective he was, at least when he was in the company of a former DEA agent. A scrip was a prescription, a set of works a junkie's tools for injecting himself.

  "Said he'll need three large for half a day," LeGrosso added.

  And three large was what it sounded like, three thousand dollars. Not too shabby for a few hours spent in court. But even at that rate, it would be worth it. There were times when it paid to be rich, Jaywalker knew, and standing trial on a murder charge was definitely one of those times.

  The following day Jaywalker received an envelope containing a written solicitation from a firm that special ized in assisting lawyers- attorneys, it called them- with jury selection. For a "reasonable fee," which worked out to just under twenty-five hundred dollars a day plus expenses, the firm promised to create a profile of the "ideal juror" Jaywalker should be looking for to sit on Carter Drake's trial, and then to supply an "experienced consultant" to sit with him at the defense table during jury selection, also at twenty-five hundred dollars a day.

  Jaywalker had by that time given considerable thought to just what kind of jury he wanted, and the answer was as alarming as it was elusive.

  Normally he looked for racial minorities, blacks and Hispanics. Over the years he'd found them to be distrustful of cops and prone to identify with defendants. But there were precious few of either group in Rockland County, and fewer still who voted, owned a home or registered
a vehicle there, the three things that would qualify them for jury service.

  His other favorite demographic was young people. They tended to be idealistic, and not yet cynical about crime and criminals. But Abe Firestone-who, like Jaywalker would have twenty peremptory challenges to play with-wasn't going to let anyone under forty on the jury if he could help it.

  Next came Jews, whom Jaywalker considered compassionate and forgiving. Maybe it was something about their collective history of persecution. Whatever it was, all things being equal, he'd take a Jew any day over an Irishman, a German or an Asian. Except in this case, of course, where the victims were Jewish, the prosecutor was Jewish, and the defendant had already been unfavorably compared to Hitler.

  Women, he'd found, were generally preferable to men. They tended to be softer, more sympathetic, less prone to anger. But in this case, women were actually problematic. Every one of those eight dead children had a grieving mother, and in a close community like New City, there would hardly be a woman who wouldn't know someone directly affected by the tragedy.

  Teachers, social workers and nurses made up another good group. They'd sacrificed big paychecks in order to join the ranks of the helping professionals, dedicating their efforts to the young, the needy and the ailing. But here again, the nature of the case stood conventional logic on its head. Young, needy and ailing didn't describe the defendant. It described the victims and their loved ones.

  Carter Drake was a rich, unlikable, forty-four-year-old, non-Jewish man whose reckless conduct and depraved indifference had led directly to nine deaths, eight of them young Jewish children. There simply was no ideal juror for him. Chances were, there weren't even any acceptable jurors for him. But Jaywalker didn't need to pay anybody twenty-five hundred dollars a day to sit next to him and tell him he should be looking for young, childless, black Muslim soup-kitchen volunteers who'd just arrived in New City on a spaceship from Mars. He put the solicitation back into its envelope and tossed it into the trash.

  Which was right around when a thought occurred to him. How about no jurors at all? What if he-with Drake's agreement, of course-were to waive a jury altogether, and take his chances with a bench trial?

  He'd done so before, with almost uniformly good results. But in many of those cases he'd been prompted by a judge who'd let on that he or she didn't think much of the prosecution's case. Or he'd known the judge well enough to peg him or her as someone who'd be inclined to give the defendant the benefit of the doubt. While that was something the law actually demanded of all f inders of the facts, meaning jurors and judges alike, there were plenty of judges out there who'd convict their own mothers, and then sentence them to the maximum.

  So which category did Travis Hinkley fall into?

  On the plus column, she'd struck Jaywalker as both smart and fair. She'd come right out and said she liked him, always an important consideration. And she seemed to have a limited tolerance for Abe Firestone. Finally, she wasn't Jewish, a fact that might insulate her just a tiny bit from the community's wrath.

  But there was plenty in column B. She was Irish, and in Jaywalker's book, going non-jury in front of an Irish judge created a prima facie case of ineffective assistance of counsel. Next she'd not only expressed her dislike of the defendant, she'd promised to throw the book at him after he was convicted. Not if he was convicted, but after. Then there were the pure mathematics of the calculation: it would take twelve jurors to convict Drake, but only one judge. With a jury, Jaywalker could hope for a weirdo who'd hold out and hang the jury. But there was no such thing as a hung judge, so long as one were to discount the rumors about "Long John" McGrath. Finally, there was an appeal to consider. In a jury trial, all sorts of things could go wrong and lead to reversible error. But after a bench trial conviction, the appellate courts had little to look at, and less to second-guess.

  So even without consulting his client, Jaywalker discarded the idea, just as he'd discarded the notion of a jury selection expert. Carter Drake would have a jury and, for better or for worse, Jaywalker would be the one to pick that jury.

  Though exactly how, he had no idea.

  September 5, which had once been their trial date, came and went. Jaywalker busied himself preparing for the Wade hearing, for jury selection, and for the trial itself. He drew up long lists of questions for potential jurors, aimed at disqualifying those who'd known the victims or were friendly with their parents, or were otherwise too close to the case to be impartial. He revisited the scene of the crash, taking photographs and measurements, from which he constructed poster-size blowups and diagrams. He met half a dozen times with his client, wrenching details from him and shaping them into a coherent direct examination, which Drake mastered effortlessly, yet somehow unconvincingly. Then Jaywalker would change his voice and do his best Abe Firestone imitation, putting Carter through a series of mock crossexaminations. He was alternately folksy, sarcastic and belligerent, but it didn't seem to make much of a difference. No matter which approach Jaywalker adopted, Drake did as poorly on cross as he did on direct. He met sarcasm with sarcasm, belligerence with belligerence, and folksiness with contempt.

  "Carter," Jaywalker would point out, "you're going to make it very hard for the jurors to like you."

  "I don't give a damn whether they like me or not," Drake would counter. "As long as they acquit me."

  "And why should they do that?"

  "Because I'm innocent!" Drake would shout. "Because I didn't murder anybody."

  And Jaywalker would be forced to point out that even though he was inclined to agree, that left half a dozen other charges, from drunk driving to vehicular manslaughter to leaving the scene of an accident, any one of which would send Drake off to state prison, even if not for quite so long.

  "I'm still pissed off at you," Drake would say.

  "At me?"

  "Yes."

  "For what?"

  "For postponing the trial without my permission." And then they'd fight that battle all over again.

  Amanda, on the other hand, would be a good witness. Jaywalker found her an easy study, quick to pick up hints without making him spell things out for her. There's a fine line between telling a witness what to say and telling her how to say it. The former is not only unethical, but can become downright criminal, as in subornation of perjury. The latter, teaching a witness how to best express herself, is not only permissible but is an important part of the defense lawyer's job. And anyone who doubts that needs to wake up and understand that across town-or, in this case, up in Rockland Countyit's precisely what the prosecutors were no doubt already doing.

  Although not nearly as well as Jaywalker.

  September gave way to October, and October to November. Thanksgiving came, and Christmas, though for a very large segment of New City, it came early, lasted eight days, and went by the name Chanukah. With the crush of the holidays, the almost biblical commandment to shop, and the first flakes of snow, the case at last vanished from the newspapers and the airways. It would come back, Jaywalker knew only too well, but not with quite the same urgency and drive for vengeance. Carter Drake might not like the idea of spending New Year's Eve locked up in the Rockland County Jail, and he might hate Jaywalker for his role in ensuring that he did. But in the meantime, delay was quietly going about her business, applying salve to raw wounds and giving new tissue a chance to begin forming over deep scars.

  14

  HEADS I WIN, TAILS YOU LOSE

  "Call your first witness on the Wade hearing, Mr. Firestone."

  Firestone stood up, as best as Jaywalker could tell. At an even five feet, it was sometimes hard to be sure. "Mr. Kaminsky will be conducting the hearing," said the D.A., gesturing toward the nerdy assistant seated immediately to his left. David Kaminsky, Jaywalker had come to learn, had been recruited from the Appeals Division, just as Julie Napolitano, to Firestone's right, had been drafted from Special Victims. Kaminsky was what trial lawyers referred to as a "law man," someone short on presence but long on prec
edents. With no jury around to play to, it made perfect sense that for the hearing, Firestone would yield center stage to someone who actually had some idea of what he was doing.

  "Mr. Kaminsky?" said Justice Hinkley.

  The young man stood, pushing a bony finger against the bridge of his glasses so that they rode up his nose a bit, but just a bit. It was a gesture he would repeat a thousand or so times over the next three weeks. "Yes?" he said uncertainly.

  "Call. Your. First. Witness."

  "I only have one witness," he said.

  "Call him!" shouted the judge. "Or her, or it."

  "The People call Investigator Alan Templeton."

  And with that, the hearing began.

  Having derived its name from a U.S. Supreme Court case decided dozens of years ago, a Wade hearing is triggered by a motion made by the defense-as Jaywalker had made on behalf of Carter Drake-to suppress, or exclude from the trial, the identification of the defendant by an eyewitness. The theory is that the witness has made a previous identification of the defendant under circumstances that were so fraught with suggestiveness caused by the police or prosecution that permitting a courtroom identification at trial would now deprive the defendant of the due process of law and, with it, a fair trial.

  In practice, the inquiry at the hearing becomes a twopronged one. First, was the conduct of the law enforcement authorities so suggestive, either in the words they said or the things they did, as to render the prior identification so suspect that any mention of it must be kept from the jury? And second, if so, has that impermissible suggestiveness resulted in a situation where the witness, if now permitted to identify the defendant at trial, either by pointing to him as the perpetrator or testifying that he is, will be remembering him not because of his recollection of him from the crime scene, but from the subsequent police-arranged viewing of him, or from some inseparable mingling of the two prior sightings of him? If the answer to the second question is also yes, then not only must any reference to the improper police-arranged confrontation be excluded, but the witness will be barred altogether from making an identification of the defendant at trial.